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Judge Herbert Dixon, Superior Court of the District of Columbia
Jerry M. v. District of Columbia
Civil Action No. 1519-85(IFP)
Order and Memorandum of Agreement

May 13, 2004




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JERRY M., et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 1519-85(IFP)

(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 the court.

Herbert B. Dixon, Jr.
(Signed in Chambers)

Copy to:

Peter J. Nickles, Esq. 
Alan A. Pemberton, Esq. 
Edward M. Mathias, Esq. 
Stephanie Harrison, Esq. 
Elizabeth Alexander, Esq. 
John Dodge, Esq. 
Richard Love, Esq. 
Martha Mullen, Esq. 
Michael Lewis, Esq. 
Virginia A. Crisman, Esq.


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   
General Counsel, Executive Office of the Mayor


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