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HomeMy WebLinkAbout2409RESOLUTION NO.2409 A RESOLUTION designating an ADA Coordinator and adopting a grievance procedure for compliance with the Americans With Disabilities Act of 1990. WHEREAS, the Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, and applies to the City of Bremerton; and WHEREAS, this law prohibits discrimination against persons with disabilities and requires that a qualified individual with a disability should not be subject to discrimination in employment, access to public facilities, services, programs and activities; now, therefore, BE IT RESOLVED by the City Council of the City of Bremerton: That the Mayor shall designate an ADA Coordinator, whose duties shall include the provision of proper notice of the ADA grievance procedure to City personnel and the community at large, and the receipt and review of any ADA grievance directed to the City of Bremerton. BE IT FURTHER RESOLVED that the ADA Grievance Procedure, attached hereto as Exhibit "A" ,is hereby adopted. PASSED by the City Council of the City of Bremerton this 30th day of September, 1992. LYNN HORTON Council President APPROVED this 2 day of Oct., 1992 LOUIS MENTOR, Mayor ATTEST: KATHLEEN L. McCLUSKEY, Clerk CITY OF BREMERTON ADA GRIEVANCE PROCEDURE The City of Bremerton has adopted an internal grievance procedure providing for prompt and equitable resolution of complaints alleging any action prohibited by the Americans with Disabilities Act. ADA states, in part, that "no otherwise qualified disabled individual shall, solely by reason of such disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination" in programs or activities sponsored by a public entity. Complaints regarding access or discrimination should be addressed to ADA Coordinator, City Clerk's Office, City of Bremerton, 239 4th Street, Bremerton, WA. 98310, 478-5302, who has been designated to coordinate ADA compliance efforts. A complaint shall be filed in writing, contain the name and address of the person filing it, and briefly describe the alleged violation of the regulations. Other arrangements for filing a complaint will be made available for those with disabilities requiring further accommodation. A complaint shall be filed during the time the perceived violation exists or within sixty (60) calendar days after the complainant becomes aware of the alleged violation. An investigation, as may be appropriate, shall follow a filing of complaint. The investigation shall be conducted by the City of Bremerton's ADA Coordinator. These rules contemplate informal but thorough investigations, affording all interested persons and their representatives, if any, an opportunity to submit evidence relevant to a complaint. A written determination as to the validity of the complaint and a description of the resolution or recommended action, if any, shall be issued by the ADA Coordinator and a copy forwarded to the complainant no later than sixty (60) calendar days after the filing of the complaint. The ADA Coordinator shall maintain the files and records of the City of Bremerton relating to the complaints filed. The complainant may request a reconsideration of the complaint in instances where he or she is dissatisfied with the resolution. The request for reconsideration shall be made in writing within thirty (30) calendar days of notification of the ADA Coordinator's decision, and mailed or delivered to the Office of ADA Coordinator, 239 4th Street, Bremerton, WA. 98310. 10. The ADA Coordinator shall forward the request for reconsideration to the City of Bremerton's Disability Action Committee and facilitate the scheduling of a convenient time for the complaint to be heard by the Committee. A good faith effort shall be made to schedule the hearing within thirty (30) calendar days of receipt of the request for reconsideration. The Chairperson of the Disability Action Committee shall convey the Committee's written advisory decision to the complainant and to the Mayor of the City of Bremerton within thirty (30) calendar days of the conclusion of its public hearing. This advisory decision may uphold, overturn, or change the decision rendered by the ADA Coordinator. The right of a person to a prompt and equitable resolution of the complaint filed hereunder shall not be impaired by the person's pursuit of other remedies such as the filing of an ADA complaint with the responsible federal department or agency. Use of this grievance procedure does not effect nor does it prevent the pursuit of other remedies. These rules shall be construed to protect the substantive rights of interested persons, tomeet appropriate due process standards, and to assure that the City of Bremerton complies with the ADA and implementing regulations. 35718 Federal Register [ Vol. Trust Territory of the Pacific an~ the Commonwealth of the Northern Marlane Islands. § 3SJOS (a) A public entity shall within one yearof the effective date d this part, evaluate its current services, policies, and' practices. and the effects thereof, that c~ not or may not meet the requirements of this pa~ and, to the extent modification of any such sen, ices, policies, and practices is required, the public. entity shall proceed= to make the necessary modifications. (b) A public enlity shall provide an opportunity to imerested persons, incluclin~ individuals with disabi~ies er organizations representing individuals with disaMities. to participate in the self.evaluation process by submitting colElnents. (c) Apublic entity that employs 50 or more person shalL, for at_ least three years following completion of the self- evaluation. maintain on file and make available for public inspection: (1) A list of tee intersted persons consultack (2) A description of areas examined and any problems iden~eck and (3} A description of any modL~cations made. (d) If a public entity has already. complied with the RE-evaluation requirement of a regulation implementing section 504 of the Rehabilitation Act of 1973, than the requirements of this section shall apply only to those policies and practices that were not included in the previous self- evaluation. § 35.166 Notice. A public entity shah make available to applicants. participants, beneficiaries. and c~er h'.terested persons infornmtion regarding the provisions of tl'js part and Rs applicability to the sen, ices, programs, or activities of the public entity. and make suc. h information available to them in such manner as the head o£ the entity finds necessary to spp~se such persons of the protections against discrimination assured them by the Act and this part. § 35.107 Desiqnet|on o~ responsible employee sn~ sOo~tlo~ of grtevanc~ pmcedurss- {a} Desi~naL;on of resfions/b/e employee. A public entity that emplcys 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any ccmplaint communicated to it alleging its noncom~liance with this part or 56~ No. 144 / Friday, Iulh' 26, 19C1' alleging any actions that would be prohibited by this part. The public entity shall make available to all interested individuals the name, office address,. and telephone ntunber of the. employee or employees designated pursuant to this paragraph. (b) Complaintprvcedure, A public entity that employs 50 or more pe~ons shall adopt and publish grie~'ance procedures providing for prourpt and equitable resolution of complaints alleging any action that would be prohibited by this part. §§ 35,108-35,129 [Reserved] Subpad B---General Requirements § 35.130 General prohibitions a, cj~in~ discrimination, (a) No, qualified individ,aal with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, progains, at activities of a publicentity, orbe subjected to disa-i~nsfion by any public entity. (b) (1) A public entity, in pren-idL-_g any aid, benefit. or service, may not, directly or through ccnlrac~ual, licenag. or other~r~,.ngemev.~. on ~e basis of disability- (i) Deny a qualified individual with a disability' the opportunity to partial'pate in or benefit from the aid, benefit. or service; (ii] Afford a qualified individual with a disability an opporttmity to participate in or benefit from the ai~ bensilL or service that is not equal to that afforded others; (ill) l:h'o~ide a qualified individual with a disability v, ith an aid, beneft/, or service that is not as effective in affording equal opportunity to obtaL'~ the same resuk, to gain the same benefit, or to reach the same level of achievement as that provided to others; (iv) Provide different cr sepa..-ate aids. bensEts, or services to individuals with dieabilities or to any class of individuals with disab~ities than is provided to o~ers unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others; (v} Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discrhninates on the basis of disability in providing any aid, benefit, or service to beneficiaries of L~.e public entity's prod'am; (vi} Deny a qualified indiddual with a disability the opportunity to participate as a member of planning or ad"dsory hoards; / Rules ~ Regulations (vii] Otherwise limit a quali~ecr individual with a disability in the enjoyment d any riShL privLIege. advantage, or opportunity enjoyed by others receiving the aid, benefit. or service. (2) A public entity may not deny a quali~ed individual with a disability the oppanunity to participate in se~ices~ prodarea, or activities that are not separate ar different, despite the e.~stence of permissibly separate or different Fograms or a~ti~ities. (3} A publicentity may act. directly or through contractual. or other arrangemen~ ut~ize criteria m' methods of administraUom {i) That have the effect of subjecting- qualified individuals with disabilities to discrimination on the basis of disability; (ii) That have the purpose or effect. defeatin~ or substantially irapairing accomplis.~ment of the ohiectives of the public entity's program with respect to individuals with disabilities; or (iii) That perpetuate the discrimination af anotherpublic entity both public entities are subject to common administrative control o." a.'~ agencies of the same State. (4] A public entity may not. in determining the-site or location of a facility, make selections- (i) That have the effect of excluding individuals with disabilities from, denying them the benefits oL or otherwise subjecting them. to disc~mination: or (ii) That have the purpose or efteat of defeating or substantially impairing the accomplishment of the objectives of the service, program, or activity with respect to individuals with disabilities. (5} A public entity. in the selection of pro ,curement c~n~'actors. may not use criteria that subject qualified individuals with disabilities to discrimination on the basis or dis."bility. (6) A public en~ity may not administer a licensing or certification program in a manner that subiects quaiLfled individuals with disabilities to discrimination on ',he basis of disability, nor me7 a public entity establish requirements for the programs or activities of licensees or certified entities that sub!oct qualified individuals wi~ disabilities to discrhnination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part. (7) A public entity shall make reasonable modifications in poBcies, practices, er procedures when the modifications are necessary to avoid discrimination cn the basis of disability. CITY OF BREMERTON OFFICE OF THE CITY ATTORNEY · IAN R. SIEVEKS, CITY ATTORNEY Gateway to the Olympics and Home of the Puget Sound Naval Shipyard DATE: September 17, 1992 TO: Council Operations Committee FROM: Leila Mills, Assistant City Attorney RE: ADA Coordinator 1. Would it be legal to designate the City's Risk Manager as its ADA Coordinator? The federal regulations require public entities employing 50 or more persons to "designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any complaint communicated to it alleging any action that would be prohibited by this part." Fed. Register Rules and Regulations §35.107. The City is required to designate "an employee". There is no specification or restriction of the type of employee, or the position ordinarily held by the employee. As such, there is nothing illegal about designating the Risk Manager. 2. What is the propriety of designating the City's Risk Manager as ADA Coordinator? The Risk Manager currently has responsibilities which aim to not only protect the worker, but to protect the City from liability. For example, she develops and administers the City's Safety program and evaluates compliance with WISHA. The Risk Manager makes written recommendations regarding employee safety and the safety of the public using City facilities to the responsible department heard. If the department head disagrees with the recommendation, the Risk Manager forwards the recommendation to the City Clerk, and finally to the Mayor who directs compliance by the department head if there is concurrence. Similarly, under the ADA, the Risk Manager would be coordinating the program to ensure compliance, and would be communicating with the department heads if they are deemed to be in non-compliance. As with the WISHA enforcement, the Risk Manager's intent is two- fold: firstly to enforce the law (and thereby protect employees and the public) and secondly, to comply with the law so as to avoid claims against the City. ) BREMERT Memorandum September 17, 1992 Page 2 So far as the investigatory aspect of the position is concemed, there is an appeal system set up in the grievance procedure to ensure that anybody who is not satisfied with the Risk Manager's analysis may have the complaint reconsidered by the Disability Action Committee. The Risk Manager does not sit on the committee and therefore, the recommendation would not be affected by any other bias if, in fact, it exists. 3. Would the EEO Officer be a more suitable designee? From the perspective of bias or influence, there is little foundation to believe that the EEO Officer would have any less conflict or bias than the Risk Manager. The EEO Officer is also a City employee, and currently is performed by the Civil Service Officer. (In the past, other positions have held this post, such as the Purchasing Supervisor.) Whether or not it is the Risk Manager, the Civil Service Officer, or any other City position, all would presumably have an interest in protecting the City and avoiding claims against it. There will be an inherent bias incorporated into any employee's position, simply by virtue of being a City employee. However, the federal regulations require that an employee be designated as coordinator. Presently, the EEO Officer ensures compliance with the EEO program. The policy states that recruitment, upgrading and training shall be without regard to "race, color, sex, age, religion, mental status, national origin, political affiliation, and mental, sensory and physical handicap. Give that the ADA Coordinator (and the ADA Action Committee) will address the issues regarding mental, sensory and physical handicap, it is proposed that BMC 2.28.040 be amended to address complaints pertaining to discrimination in the areas of sex, race, and national origin and the ADA Coordinator and the Action Committee will address issues of mental, sensory or physical handicaps. It should be noted that handicap grievances have already been separated from the EEO grievance procedure through the procedures set forth in BMC 2.88 (Handicapped Action Committee). CONCLUSION: It is legal and propitious to designate the Risk Manager as the ADA Coordinator. The EEO Officer is not necessarily a more suitable position for this function, and this will ultimately be a discretionary decision for the City. The EEO responsibilities are already quite extensive, and it may simply be more practical and efficient to spread the ADA function to another City employee. LX,,X :j rd ADA.Mem - 9/17/92