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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
JERRY M., et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.
Civil Action No.
(Approving Memorandum of Agreement)
This matter is before the court on a consent motion to
approve Memorandum of Agreement dated May 13, 2004. In addition, the
motion requests the court to reserve decision on Plaintiffs’ Motion
for Transitional Receiver pending this court’s review and approval of
a work plan to be developed in accordance with the Memorandum of
Agreement. Upon consideration of the motion and the record herein, and
the discussions with counsel by telephone conference call on May 5, 6
and 13, 2004, it is by the court this 13th day of May 2004
ORDERED, that the consent motion to approve the
Memorandum of Agreement dated May 13, 2004 shall be and is hereby
GRANTED, and the Memorandum of Agreement attached hereto is approved by
the court; and it is further
ORDERED, that this member of the court hereby stays any
action on Plaintiffs’ Motion for Transitional Receiver pending this
court’s review and approval of a work plan to be developed in
accordance with the Memorandum of Agreement, or until further order of
Herbert B. Dixon, Jr.
(Signed in Chambers)
Peter J. Nickles, Esq.
Alan A. Pemberton, Esq.
Stephanie Harrison, Esq.
Elizabeth Alexander, Esq.
Richard Love, Esq.
Martha Mullen, Esq.
Michael Lewis, Esq.
Virginia A. Crisman, Esq.
MEMORANDUM OF AGREEMENT
I. With the agreement and at the request of the parties,
the District Government is to retain Grace Lopes as Special Arbiter as
soon as practicable. The parties hope that Ms. Lopes will be available
at least on a part-time basis by June 1, 2004. Her retention as Special
Arbiter will be submitted to the Court for approval. Her term of office
is to commence as soon as is practicable and will extend for two years,
unless extended for a further year by agreement of the parties, or by
the Court in the interest of justice. The Special Arbiter shall act to
ensure compliance with the Consent Decree, the Orders of the Court and
particularly, the Work Plan-to be developed as discussed below. The
terms of employment, including payment for services of the Special
Arbiter, shall be resolved promptly by the District in discussions with
Ms. Lopes. Upon notification that the terms of employment have been
agreed upon between the District Government and Ms. Lopes, the
plaintiffs will provide formal notice to the Court of this agreement
between the parties and will request that the Court reserve decision on
the pending Motion for Transitional Receivership pending the Court's
review and approval of the Work Plan. The parties agree that the
designation of Ms. Lopes as the person to serve as the Special Arbiter
is of the essence of this Agreement. The parties further agree that Ms.
Lopes is to function in an independent capacity in the exercise of the
authority provided in this Agreement.
II. In consultation with the Special Arbiter, the
District will create promptly an independent Compliance Unit within YSA
that will report directly to the Special Arbiter. The members of the
Compliance Unit will be selected by the Special Arbiter and the Unit
will be funded by the District. Members of the Compliance Unit will
assist the Special Arbiter in the execution of her mandate, and under
the direction and supervision of the Special Arbiter will make their
findings and recommendations available to the managers of YSA to assist
them in the performance of their responsibilities. The Special Arbiter
also will have the ability to communicate freely with District staff,
officials and plaintiffs' counsel. At the end of the term of the Special
Arbiter, the Compliance Unit will report to the City Administrator. The
size of the Compliance Unit staff, and the budget for such Unit,
including staff, office space and other expenses, will be negotiated
with the Special Arbiter as a priority upon her retention and resolved
no later than June 1, 2004, and may be reexamined at six-month intervals
or such other time as the Special Arbiter may determine is appropriate.
III. The parties will commence immediately the
negotiation of terms of a Work Plan with the assistance and supervision
of the Special Arbiter. The Work Plan will set forth action items to be
undertaken by the District with specific dates of implementation to
ensure compliance with the Consent Decree and the Orders of the Court.
Upon agreement by the parties on a particular action item and its date
for implementation, the District immediately will begin its
implementation of that term of the Work Plan. To the extent there is
disagreement between the parties on specific terms of the Work Plan, the
Special Arbiter shall have authority to resolve the disagreement; and
plaintiffs and the District shall be bound by her determination. Timely
payment by the District Government of the proper invoices of the Special Arbiter for her services
and the expenses of the Compliance Unit will be an important element of
compliance with the Work Plan.
The parties shall complete the Work Plan within a
deadline established by the Special Arbiter shortly after she takes
office, and shall submit the Work Plan to the Court for approval. Upon
the Court's approval of the Work Plan, the plaintiffs will withdraw
their Motion for Transitional Receivership subject to its renewal as
appropriate. During the development of the Work Plan, the Special
Arbiter will consult on a regular basis with the parties, and she will
have the assistance of such experts as she deems necessary and
appropriate, whose reasonable fees and expenses shall be paid by the
District. In addition, the plaintiffs will be entitled to have the
assistance during the preparation of the Work Plan of experts Paul
DeMuro and Marty Beyer, whose reasonable fees and expenses shall be paid
by the District; and the District may consult with such experts as it
deems appropriate. The Special Arbiter may consult during the
development of the Work Plan with the Monitors, Michael Lewis and
Virginia Crisman, and with others as she deems appropriate. Compliance
monitoring by the Monitors will be suspended during the term of the
Special Arbiter's service.
The District will be represented in the negotiations
primarily by the City Administrator, Robert C. Bobb, and the Mayor's
General Counsel, Leonard H. Becker, who in turn may consult with
interested personnel in the District government, and plaintiffs will be
represented primarily by Peter Nickles, Esquire, of Covington &
Burling, lead counsel for the plaintiffs herein. Messrs. Bobb and Becker
will delegate to others, if they choose and as they deem appropriate,
the day-to-day negotiations of the Work Plan on behalf of the District;
and Nickles, if he chooses and as he deems appropriate, will delegate to
others the day-to-day negotiations of the Work Plan on behalf of the
plaintiffs. However, Messrs. Bobb, Becker and Nickles will retain
primary responsibility for the success of the negotiations and are
committed to work together to achieve that success with the assistance
and supervision of the Special Arbiter. The District will pay
plaintiffs' counsel, except the Public Defender Service for the District
of Columbia, reasonable attorneys' fees and expenses incurred in
prosecuting Plaintiffs' Motion for a Transitional Receiver, developing
the Work Plan, and monitoring the implementation of the Work Plan.
Within 30 days of approval of the Work Plan by the Court,
the Special Arbiter will begin submitting reports to the Court and the
parties on such periodic basis, not less than quarterly, as the Special
Arbiter may determine, setting forth her findings as to the status of
compliance on each of the terms of the Work Plan. The Special Arbiter
will meet regularly with representatives of the parties on an ex parte
basis or otherwise, and will report to the parties any concerns she may
have as to the District's compliance efforts prior to the submission of
her reports to the Court and the parties.
In the event the Special Arbiter finds on a preliminary
basis that the District is in substantial noncompliance with any of the
terms of the Work Plan, she will provide prompt written notice of such
preliminary finding to the parties and will provide the District an
opportunity to address, correct or cure the preliminary finding of noncompliance. The Special Arbiter shall have the
discretion, with respect to matters of non-compliance that do not
substantially and adversely affect implementation of the Work Plan, to
make such findings, take such steps and to issue such directives as she
shall deem appropriate to achieve compliance, other than to recommend
the appointment of a receiver. The parties agree that they will be bound
by such findings and directives of the Special Arbiter.
If, after providing the District written notice and such
opportunity to address, correct or cure as she shall deem appropriate,
not to exceed 60 days, the Special Arbiter finds
i) that the District has failed
substantially to comply with any term or terms of the Work Plan;
ii) that the noncompliance substantially
and adversely affects the District's ability to implement significant
purposes of the Work Plan; and
iii) that the District is unlikely to be
able to comply with the Work Plan unless the Court appoints a Receiver
to assume the powers necessary to achieve such compliance,
she will report such finding to the Court in writing. The
parties hereby stipulate that such finding shall be a legally and
factually sufficient basis for the appointment of, and that the Court
may so appoint on Plaintiffs' renewed motion, a Transitional Receiver
with the powers set forth in the proposed order to plaintiffs motion for
appointment of Transitional Receiver, or such other powers as the Court
may order. Any appointment of a Receiver pursuant to such a process
shall be enforceable as an arbitral award under District of Columbia
law, and any court order appointing a receiver pursuant to such a
finding by the Special Arbiter may not be appealed.
IV. The Special Arbiter's mandate will include the
development of recommendations to be submitted to the parties and the
Court, as appropriate, including proposed changes in the Consent Decree.
The Special Arbiter's mandate further will include recommendations of
Exit Criteria that will provide for the ultimate dissolution of the
Consent Decree and termination of this Jerry M. litigation. The parties
agree that a primary objective of this Agreement is to develop and implement a comprehensive
remedial regime that, once proven successful, will support the dismissal
of the class action.
V. Nothing in this Agreement affects the Court's Order VIII
issued on April 15, 2004.
PETER NICKLES, ESQ. Counsel for Plaintiffs
ROBERT C. BOOB City Administrator
LEONARD H. BECKER
General Counsel, Executive Office of the Mayor