Who is responsible: the town or its vendors?

Who is responsible, the town or its website vendor?

The town is responsible, even when a vendor designs the website, hosts it, or runs the agenda platform. The ADA Title II web rule covers content a town provides directly or through contracts, and the Justice Department says a town cannot hand that duty to someone else. A contract can share the work. It cannot move the obligation.

Remember: Your public entity can’t contract away its responsibilities under the ADA. That means that your public entity can’t take advantage of this exception by having a third party do its web posting.

First Steps guide, ADA.gov

The rule’s own text reaches content provided “directly or through contractual, licensing, or other arrangements” (28 CFR 35.200(a)). The same guide adds that a town “is still responsible for ensuring the accessibility of its web content and mobile apps, even if it outsources the accessibility work to somebody else.”

What the third-party exception covers

The third-party exception covers content posted by people who are not acting for the town, such as a resident’s post on an open message board. It does not cover a vendor, a contractor or anyone posting because of a contract, license or other arrangement with the town. The exception is narrow by design, and the text says so.

(c) Content posted by a third party. Content posted by a third party, unless the third party is posting due to contractual, licensing, or other arrangements with the public entity.

28 CFR 35.201(c)

The Department’s small entity guide defines third parties as “members of the public or others who are not controlled by or acting for state or local governments.” It lists what falls outside the exception: third-party tools the town posts, such as “calendars, scheduling tools, maps, reservations systems, and payment systems”; content a contractor posts for the town; and the platforms the public uses to post.

Website vendor, agenda software and the files you upload

Responsibility splits three ways in practice, but all three land on the town. The website vendor builds the template, menus and page viewer. The agenda software generates agendas and hosts packets. The clerk uploads the files. Each piece is content the town provides, so each generally has to meet WCAG 2.1 Level AA from your deadline.

What changes is who can fix what:

• The website template. Only the vendor can usually change it. If headings, menus or color contrast fail, that is a contract conversation.
• The agenda platform. The vendor controls the agenda it generates and the viewer. Ask whether uploaded attachments are passed through unchanged, because many are.
• The files. Agendas, staff reports, minutes and notices are the clerk’s to fix, whatever platform carries them. A vendor cannot tag a scanned staff report it never sees before posting.

That last point is where most small towns find their gap. An accessible website with an inaccessible packet on it is still an inaccessible packet. See how to make an agenda PDF accessible.

Packets with applicant submittals and comment letters

Packets often contain documents the town did not write: an applicant’s site plan, a developer’s traffic study, letters from residents. Once the clerk places them in the packet and posts it, the town is generally the one posting, so the third-party exception generally does not apply. The Department said the origin of the document does not decide it.

The exception in § 35.201(c) does not apply to content posted by the public entity itself, or posted on behalf of the public entity due to contractual, licensing, or other arrangements, even if the content was originally created by a third party.

Appendix to the 2024 rule, 89 FR 31367

The same page says the exception applies to “documents filed by independent third parties in administrative, judicial, and other legal proceedings” that appear on a government’s site. That describes a filer posting directly, such as through an electronic filing portal. A packet the clerk assembles is different. Where the line falls for your land use process is a question for your attorney. Either way, the Department’s example says that when a person with a disability needs such a filing, the entity “generally must timely provide those filings in an accessible format.”

In Colorado: content and platform

In Colorado, the statute itself assigns liability by who manages what. The public entity that manages the content answers for the content, and the public entity that manages the platform answers for the platform. The state rules also reach technology a town provides through contracts, and their third-party exception mirrors the federal one.

The statute says liability “as to content lies with the public entity or state agency that manages the content,” and liability for “the platform hosting the content lies with the public entity or state agency that manages the platform” (C.R.S. 24-34-802(1)(c)(I), as shown in HB24-1454). It names public entities, not vendors, so a contract with a vendor is where a town sets out who does the work.

The rules apply to technology “that the public entity provides or makes available directly or through contractual, licensing, or other arrangements” (8 CCR 1501-11, rule 11.2(C)). Rule 11.7(A) excepts third-party content “unless the third party is posting due to contractual, licensing, or other arrangements with the public entity.” See our HB21-1110 guide.

What to ask your vendors

What to ask your vendors is simple: how their product meets WCAG 2.1 Level AA today, what happens to the files you upload, what they will fix and by when, and whether the contract says so. Ask in writing and keep the answers. A clear reply helps you plan. A vague one tells you where your work is.

1. A current accessibility report. Many vendors publish an Accessibility Conformance Report, often based on the VPAT template. Section508.gov explains how to request one.
2. Uploaded files. Does the platform change uploaded PDFs, or pass them through as they are?
3. Generated documents. Are the agendas and minutes it generates tagged, titled and in a sensible reading order?
4. Known gaps and dates. What fails today, and when will it be fixed?
5. Contract terms. The First Steps guide reports practices some governments found helpful, including “Asking vendors to include a warranty in their contracts” and “Requiring vendors to provide indemnification for any breach of any accessibility warranties.” The Department does not endorse any one approach.

Our vendor letter tool drafts a short request covering these points.

A worked example: one packet, three hands

A worked example shows the split. Picture a hypothetical town of 3,200 people after its 2028 deadline. A website vendor runs the site on a template. An agenda platform generates the agenda and hosts the packet. The clerk uploads a staff report, an applicant’s traffic study and four resident letters, two of them scanned.

A resident using a screen reader reports that the packet is unreadable. The town checks each piece. The agenda the platform generated reads fine. The template’s menus work. The staff report, study and letters do not: they went up as the clerk received them.

The platform and the website vendor were never going to fix those files. The town fixes them, reposts the packet, answers the resident, and adds a step to its packet routine: every attachment is checked before posting. It also writes to its agenda vendor asking whether the platform can flag untagged uploads.

What we do about it

What we do about it is the file part of the split. Each month we find the agendas, packets, minutes and notices your town posts, on your website or your agenda platform, fix the ones a screen reader cannot read, including attachments you did not write, and log each step in the Readable Record. See how it works.

This guide explains the rule in plain language. It is not legal advice. For decisions about your town, talk to your attorney.