Petties v. District of Columbia, CIV.A.95-0148 PLF.

• Decision Date: 25 June 2003
• Docket Number: No. CIV.A.95-0148 PLF.,CIV.A.95-0148 PLF.
• Citation: 268 F.Supp.2d 38
• Parties: Nikita PETTIES, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

268 F.Supp.2d 38

Nikita PETTIES, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.

No. CIV.A.95-0148 PLF.

United States District Court, District of Columbia.

June 25, 2003.

Eugene R. Fidell, James Feldesman, Tanya Ann Harvey, Melissa McKeithen Thomson, Khatereh S. Ghiladi, Feldesman, Tucker, Leifer, Fidell & Bank, LLP, Washington, DC, Beth Goodman, Bradford Paul Johnson, GOODMAN & JOHNSON, Washington, DC, Patricia Anne Millerioux, Elizabeth A, Greczek, University Legal Services, Inc. Protection and Advocacy Program, Washington, DC, Kelly R. Bagby, University Legal Services, Washington, DC, David Patrick Sheldon, Washington, DC, Jesse D. Stein, University Legal Services, Inc., Washington, DC, for Plaintiffs.

Andrew W. Racca, Steptoe & Johnson, L.L.P., Washington, DC, Barbara A. Miller, Birch, Horton, Bittner & Cherot, Washington, DC, Richard Stuart Love, Maria Claudia Amato, Jack M. Simmons, III, Robert C. Utiger, Garland Pinkston, Jr., Claude E. Bailey, Melvin W. Bolden, Jr., Jonathan F. Potter, D.C, Washington, DC, Laurel Pyke Malson, Crowell & Moring, L.L.P., Washington, DC, Michael Edward Zielinski, Social Security Administration, Long Beach, CA, Karen Ann Buck, Alexandria, VA, Walter A. Smith, Jr., Veleter Mazyck, DCPS General Counsel, Washington, DC, Daniel A. Rezneck, Office of Corporation Counsel, Washington, DC, Laurie Pouzzner McManus, Arlington, VA, Grace Perry-Gaiter, Washington, DC, for Defendants.

CONSENT ORDER APPOINTING TRANSPORTATION ADMINISTRATOR

FRIEDMAN, District Judge.

Upon consideration of recommendations of the Special Master, the Parties' agreement, the Plaintiffs' Motion to Appoint a Receiver and Defendants' Opposition thereto and the record in this case, and the requirements of the Individuals with Disabilities Education Act ("IDEA"), § 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act, and the Civil Rights Act, 42 U.S.C. § 1983; and

WHEREAS, the Defendants, including the District of Columbia Public Schools ("DCPS"), are charged with consistently providing safe, timely and appropriate transportation services to eligible District of Columbia special education students as required under applicable law;

WHEREAS, the Defendants are committed to providing those services in a safe, timely and appropriate manner;

WHEREAS, after careful consideration and consultation, the Parties have determined that it is in the best interests of the children of the District of Columbia to attempt to resolve the issues raised in Plaintiffs' January 2003 Motion to Appoint a Receiver while permitting the government of the District of Columbia to remain intimately involved and responsible for its obligations under the Orders in this case and other requirements of law;

WHEREAS, the Parties agree that District of Columbia students with disabilities will benefit if an independent Transportation Administrator is appointed to manage, supervise and assume responsibility for the operations of DCPS's Transportation services;

WHEREAS, the Parties recognize the importance of appointing an independent Transportation Administrator who will be accessible to DCPS staff and leadership, responsive to D.C. students with disabilities and their parents, and who possesses the requisite independence and authority to assume responsibility for the transportation needs of students with disabilities;

WHEREAS, the Parties agree that David Gilmore, Gilmore Kean, LLC, possesses the requisite management qualifications and experience to assume the position of independent Transportation Administrator;

WHEREAS, the Parties believe that David Gilmore, Gilmore Kean, LLC, as an independent Transportation Administrator, and in conjunction and cooperation with other DCPS and District of Columbia leadership, Plaintiffs, the Special Master and the Court, will be able to implement the necessary meaningful long-term institutional improvements to ensure the safe, timely and appropriate provision of transportation services to students with disabilities in the District of Columbia WHEREAS, the Parties agree that continued court monitoring and oversight in the context of the Orders entered in this matter would promote the effectiveness of an independent Transportation Administrator; it is hereby,

ORDERED, based on the Special Master's Recommendation for Entry of a Consent Order and the Parties' agreement, the position of an independent Transportation Administrator (herein "Transportation Administrator" or "Administrator") is created under terms and conditions set forth below; and it is

FURTHER ORDERED that David Gilmore is appointed as the independent Transportation Administrator with Gilmore Kean, LLC, to provide support for that position.

A. TRANSPORTATION ADMINISTRATOR'S DUTIES

The independent Transportation Administrator's duties shall include, but are not limited to the following:

1. To transform DCPS Transportation into a transportation entity that consistently provides safe and appropriate transportation services to eligible special education students in compliance with, inter alia, the Orders of this case, including the Petties Transportation Plan, the Petties Transportation Standards, and relevant statutory provisions;

2. To oversee, supervise and direct all financial, administrative, and personnel functions of DCPS Transportation, including payroll, labor relations, employee benefits, training, procurement and facilities management;

3. To preserve, protect, and administer all property and assets of DCPS Transportation, with the Transportation Administrator recognizing and preserving the District of Columbia's ownership interests in real property administered by the Transportation Administrator;

4. To develop and improve management systems, performance standards, recruitment, training and employee-management relations;

5. To cooperate and develop working relationships with the District of Columbia government, the Mayor, the Chief Financial Officer, the Board of Education, the Superintendent of Schools and other officials and staff within the District of Columbia Public Schools, the United States Congress, and federal agencies as necessary to achieve the purposes of this Order;

6. To establish a work plan for submission to the Court not later than six months after the date of the appointment which shall contain the following: (a) a statement of the current conditions and findings of significant deficiencies, if any; (b) establishment of specific objectives, tasks, schedules and performance standards to remedy each deficiency; (c) a proposed transportation budget, and (d) a plan for termination of the Transportation Administrator position created pursuant to this Order. The work plan will address the means through which the Transportation Administrator intends to bring DCPS Transportation into compliance with requirements established in this case;

7. To meet and consult bi-weekly, or more often as needed, with the Superintendent of DCPS personally, currently Dr. Paul Vance, and with a representative of the Mayor of the District of Columbia 8. To jointly meet and consult with counsel for the Parties, on a monthly basis or more often as needed. The Transportation Administrator and counsel for the Parties shall strive to discuss matters related to this litigation at joint meetings, however, the Transportation Administrator may separately consult with the Special Master, counsel for Defendants, or counsel for the Plaintiffs;

9. To develop a plan for the long-term administration of DCPS Transportation, which shall include consideration of the structure and funding for the long-term operation of transportation for students with special needs;

10. To report to the Court every six months or more often as necessary on: (a) major actions taken during the previous six month period; (b) progress made toward achieving the objectives in the work plan; (c) changes, modifications, obstacles encountered and/or additions to the established objectives; (d) significant budgetary issues; (e) status of plans for long-term administration of DCPS Transportation; and (f) any other issues deemed appropriate by the Transportation Administrator; and

11. To contemporaneously provide all Parties and the Special Master with copies of any communication filed with the Court.

B. POWERS AND AUTHORITY

After consultation with the Superintendent, the Transportation Administrator shall have the power and authority necessary, and consistent with applicable law and this Order, to carry out his duties and responsibilities. These include:

1. The authority to develop and make budget recommendations for DCPS Transportation and to work with the Superintendent, the District of Columbia Board of Education, the Mayor, the Chief Financial Officer, the City Council, and the United States Congress in negotiating and securing approval for the budget;

2. The authority to reform and restructure the DCPS transportation system;

3. The authority to establish personnel policies; to create, modify, abolish, or transfer positions; to hire, terminate, promote, transfer, evaluate, and set compensation for staff. The Transportation Administrator shall not modify employees' current pension benefits;

4. The authority to negotiate new, and renegotiate existing, contracts, agreements, and memoranda of understanding; and to act as a contracting officer as permitted or required by law. The Transportation Administrator shall inform the Court whenever an established contract, agreement or provision(s) thereof clearly prevent the Transportation Administrator from carrying out the duties and responsibilities set forth in this Order;

5. Authority to acquire, modernize, repair, lease and make recommendations for the disposal of property and equipment within DCPS Transportation's authority;

6. Authority to apply for and receive funds from public and private sources, including grant funding, and to expend funds in fulfillment of the duties...