IN THE UNITED STATES DISTRICT COURT
FOR THE
JOY
EVANS, et al., )
Plaintiffs, )
)
and )
)
Plaintiff-Intervenor, ) Civ.
No. 76-293 (SSH)
)
)
v. )
)
)
ANTHONY
WILLIAMS, et al., )
Defendants. )
)
)
CONSENT ORDER
I. Background
On February 10, 1999, this Court imposed contempt
fines of $5,096,340.00 for Defendants’ failure to comply with certain Court
Orders in this case. Evans v. Williams,
35 F. Supp.2d 88 (D.D.C. 1999). On March
31, 2000, the United States Court of Appeals for the District of Columbia
Circuit reversed and remanded this matter for further proceedings. Evans v. Williams, 206 F.3d
1292 (D.C. Cir. 2000). The Court of
Appeals determined that the contempt fines were criminal in nature and could
not be imposed in the absence of appropriate procedural safeguards.
In order to address the issues still before the
Court on remand, the parties have agreed to the following Consent Order. In this Consent Order, the Defendants and/or
the District of Columbia agree to endow and annually fund, pursuant to the
provisions below, a durable, independent, nonprofit organization that will
monitor and advance the individual and collective interests of people with
developmental disabilities in the District of Columbia’s service delivery
system, including Evans class members, in exchange for the waiver of any
and all claims for past violations of the Court’s Orders in this case as
specified in section II of this Consent Order. The specifics of the parties’ agreement are
set forth below.
II. Resolution of Past Non-Compliance with the
Court Orders
The parties have agreed to this Consent Order which
resolves all issues related to Defendants’ past non-compliance with the Orders
in this case, including those related to the Court’s February 10, 1999 finding
of contempt and the imposition of fines, subject to the following:
A. Except as otherwise stated in this section, the Plaintiffs and the
Plaintiff-Intervenor agree to waive any and all claims for past violations of
the Court’s Orders in this case based on Defendants’ past non-compliance with
the existing Court Orders in this case during the period up to and including
the date of the Court’s entry of this Consent Order. The parties agree that this Consent Order
does not affect the previously negotiated Settlement Agreement, dated September
22, 2000, as to the Symbral Foundation and the class members receiving services
therefrom. In addition, Plaintiffs do
not waive the claim for costs and reimbursement for the care of class member
Beverly Sutton. Plaintiffs do not waive
claims regarding University Legal Services, Inc., Protection and Advocacy
Program’s costs, expenses and attorneys’ fees in this case that may have arisen
prior to the date of this Order, subject to any available defenses or
objections raised by the Defendants.
B. The Plaintiffs and Plaintiff-Intervenor agree to waive any claim
for damages based on Defendants’ past non-compliance with the existing Court
Orders in this case during the period up to and including the date of the
Court’s entry of this Consent Order.
However, the Plaintiffs and the Plaintiff-Intervenor specifically do not
waive any claim they may have for damages or equitable relief due to
Defendants’ conduct prior the date of the Court’s entry of this Consent Order,
with regard to the following categories of claims only:
1. safeguarding and/or management of the benefits, personal possessions,
wages, bank accounts and/or funds of class members;
2. the failure of the Superior Court of the District of Columbia to
provide legal representation and lay advocacy services as required by the
Orders of this Court in this case and by statute (see Title 6 D.C. Code
Section 1901 et seq.); and
3. claims by class members for damages or other relief based on
causes of action independent of the Court Orders in this case. In relation to such claims only, Defendants
have agreed to waive the requirements of Title 12 D.C. Code Section 309 for
class members who first suffered damages on or after January 15, 1998, through
the date this Order is entered by the Court, except Defendants expressly do not
waive the requirements of Title 12 D.C. Code Section 309 for claims brought
under wrongful death or survival statutes.
C. Nothing in this Consent Order shall be construed to prevent the
Plaintiffs or Plaintiff-Intervenor from seeking equitable relief to remediate
current violations (that exist as of the date of the Court’s entry of this
Consent Order) or new violations of this Court’s Orders. Evidence of Defendants’ conduct prior to the
date this Order is entered by the Court shall be admissible in such
proceedings, subject to any available defenses or objections raised by
Defendants.
D. Nothing in this Consent Order modifies the current Court-ordered
fine schedule and process with respect to findings of contempt based on
violations of this Court’s Orders which may occur after the Court’s entry of
this Order.
E. The Quality Trust shall not provide direct legal representation to
class members with regard to any claims based on violations of the Court Orders
in this case which occurred prior to the date this Order is entered by the
Court.
III. Creation and Funding of the Quality Trust
A. The parties agree to the creation of an independent, nonprofit
organization to be named the Quality Trust for Individuals with Disabilities,
Inc., (hereinafter “Quality Trust” or “QT”).
B. Within 15 days of the Court’s entry of this Consent Order, the
Quality Trust shall be incorporated as a nonprofit, 501(c)(3) corporation under
the District of Columbia Nonprofit Corporation Act, approved August 6, 1962 (76
Stat. 265; D.C. Code Section 29-501 et seq.). The Quality Trust is to be incorporated as an
independent entity to insulate it from control by the parties.
C. The mission and purpose of the Quality Trust is set forth in a
Settlement Agreement (attached as Exhibit A) which is to be signed by the
parties and a designated representative of the Quality Trust, who is legally
competent to bind the Quality Trust, and filed with this Court.[1] The Settlement Agreement specifies that the
Quality Trust will provide, inter alia, monitoring, legal services and
lay advocacy services for individuals with developmental disabilities[2]
in the
D. Within 30 days of the filing of the Settlement Agreement signed by
the Quality Trust, the Defendants and/or the
E. Within 30 days of the filing of the Settlement Agreement signed by
the Quality Trust, as their initial annual payment, Defendants and/or the
District of Columbia shall provide the Quality Trust with annual operating
funds in the amount of two million dollars, prorated for the balance of the
District of Columbia’s Fiscal Year 2001 which ends on September 30, 2001. On or before October 1, 2011, Defendants
and/or the District of Columbia shall provide the Quality Trust with the
difference between two million dollars and the prorated amount paid in Fiscal
Year 2001 pursuant to the terms of this paragraph (in Year 2000 dollars).
F. Commencing October 1, 2001, for a period of five years, or until
September 30, 2006, the Defendants and/or the District of Columbia shall
provide the Quality Trust with annual operating funds of no less than two
million dollars per year (all in Year 2000 dollars). The timing of the annual payment is set forth
in paragraph III.H. below.
G. Commencing October 1, 2006, for a period of five years, or until
September 30, 2011, the Defendants and/or the District of Columbia shall
provide the Quality Trust with annual operating funds in the amount of 1.9
million dollars in Year 2006, 1.8 million dollars in Year 2007, 1.7 million
dollars in Year 2008, 1.6 million dollars in Year 2009, and
1.5 million dollars in Year 2010 (all in Year 2000
dollars). The timing of the annual
payment is set forth in paragraph III.H. below.
H. The Defendants and/or the District of Columbia shall provide
annual operating funding to the Quality Trust on or before October 1 of each
Fiscal Year for which the funds are intended (Fiscal Years 2001 to 2011), or as
soon thereafter as the budget process will allow.
I. Nothing in this Consent Order is intended to preclude any party or
the Board of Directors of the Quality Trust from advocating for funds to
increase those available to the Quality Trust above two million dollars in Year
2000 dollars in any given year.
IV. Quality Trust’s Right to Access and
Information
A. The employees, contractors and consultants retained by the Quality
Trust shall have full access to information that the Quality Trust deems
reasonably necessary and appropriate in performing the monitoring and lay
advocacy duties described in the Settlement Agreement. More specifically, the employees, contractors
and consultants retained by the Quality Trust shall have full access to consumers,
and their residences, facilities, buildings, programs, services, documents,
records (including medical and departmental) and other materials that the
Quality Trust deems reasonably necessary and appropriate in performing the
duties of the Quality Trust’s monitoring and lay advocacy functions. The Quality Trust may obtain copies of the
aforementioned documents, records, and other materials. The Defendants and/or the
B. Attorneys who provide direct legal representation of consumers under
a contract or other arrangements with the Quality Trust shall have the right to
access their clients’ records and any and all information regarding their
clients that flow from their attorney-client relationship. In litigation involving the Defendants and/or
the
C. The Quality Trust shall safeguard the information obtained
pursuant to paragraph IV.A. above, as required by all applicable laws and Court
Orders protecting the confidentiality of such information.
D. The Defendants and/or the
V. Conclusion
A. Upon (1) incorporation of the Quality Trust consistent with the
terms of this Consent Order, (2) Court entry of this Consent Order, (3) filing
of the Settlement Agreement referenced above with the Court with signatures from
the parties and the Quality Trust, (4) the Defendants’ and/or the District of
Columbia’s payment of eleven million dollars into an interest-bearing
investment fund for the exclusive use of the Quality Trust as described in
paragraph III.D. above, within 30 days from the date of the filing of the
Settlement Agreement signed by the Quality Trust, and
(5) the Defendants’ and/or District of Columbia’s
initial payment to the Quality Trust within 30 days of the filing the
Settlement Agreement signed by the Quality Trust, of the prorated amount of two
million dollars for Fiscal Year 2001 for operating funds of the Quality Trust
as described in paragraph III.E. above, the Plaintiffs and Plaintiff-Intervenor
shall comply with the provisions set forth in section II above, and expressly
waive any and all claims for past violations of the Court’s Orders in this case
as specified in section II above, based on Defendants’ past non-compliance with
the existing Orders in this case which occurred during the period up to and
including the date of this Court’s entry of this Consent Order.
B. The
Respectfully submitted,
FOR
THE PLAINTIFFS: FOR THE
PLAINTIFF-INTERVENOR:
STEVEN H. ROSENBAUM
Chief
Special Litigation Section
ELIZABETH JOHNSON
Deputy Chief
Special Litigation Section
____________________________ _____________________________
JOSEPH
B. TULMAN, No. 297671 RICHARD J. FARANO,
No. 424225
Counsel
for Plaintiffs United States
Department of Justice
UDC
David A. Clarke Civil Rights
Division
4200
Building
38, Room 207
202-274-7317
____________________________
KELLY
BAGBY, No. 462390
Counsel
for Plaintiffs
University
Legal Services
300
I Street, NE,
202-547-0198
FOR
THE DEFENDANTS:
ROBERT
R. RIGSBY
Corporation
Counsel, DC
JOHN
GREENHAUGH
Senior
Corporation Counsel
____________________________
ROBERT
UTIGER, No. 437130
Deputy
Corporation Counsel
____________________________
MARIA
C. AMATO, No. 414935
Senior
Counsel for
the Equity Division
441
Room
6S059
202-724-6642
WHEREFORE, the parties to this action, having agreed
to the provisions in the Consent Order set forth above, and the Court being
advised in the premises, this Court hereby GRANTS CONDITIONAL APPROVAL of this
Consent Order pending final approval after a fairness hearing pursuant to Rule
23 of the Federal Rules of Civil Procedure.
DONE, this ___ day of __________, 2001, at
______________________________
HONORABLE
United States District Judge
WHEREFORE, the parties to this action, having agreed
to the provisions in the Consent Order set forth above, and the Court being
advised in the premises and having concluded that this Consent Order is a fair
resolution of these matters after a fairness hearing held on __________, 2001,
this Consent Order is hereby entered as the ORDER and JUDGMENT of this Court.
IT IS SO ORDERED, this ___ day of __________, 2001,
at
______________________________
HONORABLE
United States District Judge
[1] The
Settlement Agreement shall not be incorporated into or be a part of this
Consent Order. The Consent Order and
Settlement Agreement are related documents.
The Consent Order sets out the obligations of the parties regarding the
endowment and funding of the Quality Trust in exchange for the waiver of
certain fines and other liability. The
Consent Order is to be adopted by the Court and shall be enforceable by
procedures and remedies available for violations of a court order. The Settlement Agreement is an agreement
amongst the parties and the Quality Trust which sets forth the Quality Trust’s
operations and duties in order to ensure that the Quality Trust complies with
the parties’ agreement regarding its mission and functions. This Court shall retain jurisdiction to
enforce the Settlement Agreement as to class members only, with remedies
available to the parties to the Settlement Agreement under applicable contract
law. Upon dismissal of this action, the
Settlement Agreement shall be enforceable as a contract in the Superior Court
of the
[2] This Consent Order provides throughout that
the Quality Trust’s scope of activities shall include review of services to
“consumers” rather than just “Evans class members.” “Consumers” refers to all applicants and/or
recipients of services of the