DUE PROCESS DEVELOPMENTS IN TERMINATION AND GRIEVANCES

WHICH GRIEVANCE APPLIES

• DENIAL OF PARTICIPATION• VIOLATION OF RULES• TERMINATION OF ASSISTANCE• HOUSING AUTHORITY GRIEVANCE PROCESS?

DUE PROCESS

• NOTICE OF CHARGES• OPPORTUNITY TO RESPOND• ABILITY TO UNDERSTAND VIOLATION AND

CONSEQUENCES• FAIR AND IMPARTIAL HEARING OFFICER

MEANINGFUL NOTICE OF CHARGES

• NOT ENOUGH TO QUOTE THE PARAGRAPH OR RULE

• DESCRIPTION OF EVENT• WHEN, WHAT, WHERE, HOW, WHO• WHAT ABOUT DISCOVERY?• PAGE 8.9

ADA ISSUES

• ACCESSIBILITY TO PROCESS• COGNITIVE DISABILITY• PERCEIVED DISABILITY• ABILITY TO UNDERSTAND CONSEQUENCES• REQUESTS FOR REASONABLE ACCOMODATION

NOTICE OF ACCOMODATION

• BEGINS AT APPLICATION TIME• CONTINUES THROUGHT PARTICIPATION• NOTICE SHOULD BE GIVEN WITH

TERMINATION OF ASSISTANCE• MUST BE ABLE TO PROVE WHEN CHALLENGED

THE DETAILS

• THE POLICY• NOTIFICATION OF POLICY TO APPLICANTS AND

PARTICIPANTS• EXPLANATION OF RIGHTS• DID THEY COMPREHEND?

THE LAW VS. REGULATIONS

• SO FAR WE HAVE LOOKED AT POLICY AND REGULATORY ISSUES

• CASES CHALLENGED IN FEDERAL COURT AND UNDER FAIR HOUSING PROVISIONS

NOTICE

[T]he HA must give the family prompt writtennotice that the family may request a hearing. The notice must:

• (i) Contain a brief statement of reasons for the decision,• (ii) State that if the family does not agree with the

decision, the family may request an informal hearing on the decision, and

• (iii) State the deadline for the family to request an informal hearing.

HEARING OFFICER

Hearing officer: Appointment and authority.

• (i) The hearing may be conducted by any person or persons designated by the HA, other than a person who made or approved the decision under review or a subordinate of this person.

• (ii) The person who conducts the hearing may regulate the conduct of the hearing in accordance with the HA hearing procedures.

IMMUNITY

• QUASI JUDICIAL• TRAINING• FAIR AND IMPARTIAL

DUE PROCESS

• The HA must proceed with a hearing in a reasonably expeditious manner upon the request of the participant.

• The participant must be afforded an evidentiary hearing with minimum procedural safeguards before benefits may be terminated.

• At the hearing, the HA has the burden of persuasion and must initially present sufficient evidence to establish a prima facia case that benefits should be terminated.

• Thereafter, the participant has the burden of production to show that benefits should be continued.

DUE PROCESS, CON’T.

• The participant has a right to discovery.• There are other factors that warrant

discussion.• The hearing officer may only consider

evidence or documents introduced at the hearing.

• The hearing officer must rule expeditiously.

DISCOVERY

Discovery –• (i) By Family. The family must be given the

opportunity to examine before the HA hearing any HA documents that are directly relevant to the hearing. The family must be allowed to copy any such document at the family’s expense. If the HA does not make the documents available for examination on request of the family, the HA may not rely on the document at the hearing.

DISCOVERY, CON’T.

• (ii) By HA. The HA hearing procedures may provide that the HA must be given the opportunity to examine at the HA offices before the HA hearing any family documents that are directly relevant to the hearing. The HA must be allowed to copy any such document at the HA’s expense. If the family does not make the document available for examination on request of the HA, the family may not rely on the document at the hearing.

DISCOVERY, CON’T.

• (iii) Documents. The term “documents” includes records and regulations.

OPPORTUNITY TO PARTICIPATE

• Evidence. The HA and the family must be given the opportunity to present evidence, and may question any witnesses. Evidence may be considered without regard to admissibility under the rules of evidence applicable to judicial proceedings.

• The participant must have the opportunity to present written or oral objections to the HA decision.

DEALING WITH THE REPRESENTATIVE

• Hearing officer should establish ground rules to maintain control.

• Maintain decorum.• Not a trial.• Objections and how to handle them.• Record the hearing.

PREPARING FOR THE HEARING

Hearing officer:• Be familiar with case• Know the regulations• HAVE TRAINING

Parties:• Have witnesses ready.• Have witnesses prepared.• Have copies of everything for everyone

BURDEN OF PROOF

• Preponderance of the evidence standard.• “More likely than not”.• The standard is not beyond a reasonable doubt.• HA has the burden of persuasion and must

initially present sufficient evidence to establish a prima facie case.

• Thereafter, the Section 8 participant has the burden of production to show that the benefits should be continued.

THE RULE?

• Rule of exclusion.• Invoke the rule or not.• Practical considerations.• DON’T USE THE NEWSPAPER ARTICLE !!

CONDUCTING THE HEARING

• Hearing officer makes introductory statement.• Ground rules.• What to expect.• Do appear impartial.• Perception! Perception! Perception!• Opening statements.

USE OF HEARSAY

• It is permissible.• It is risky.• Compendium of proof.

CONTACTING WITNESSES WHO DID NOT APPEAR

• One word: DON’T!• Due process goes out the window.• Same with documents that were not produced

at the hearing.

THE DECISION

• Issuance of decision. The person who conducts the hearing must issue a written decision, stating briefly the reasons for the decision. Factual determinations relating to the individual circumstances of the family shall be based on a preponderance of the evidence presented at the hearing. A copy of the hearing decision shall be furnished promptly to the family.

• Keep copies of all rulings (redacted).

REQUIREMENTS OF DECISION

• Date, time, place.• Identify attendees.• Identify who testified and what was said.• Describe what was issued to participant.• Identify the date notice was given.• Identify the date of the request for the hearing.• Identify whether participant was represented by

someone.• Give synopsis of facts.• State decision.

CLOSING THE CASE

• Save copies of all things.• Preserve proof of mailing or hand delivering to

parties.• Do not send opinion to landlord.

SHOULD THE INSURANCE COMPANY BE NOTIFIED

• Consult with lawyer.• Claims that are reasonably anticipated to

result in a lawsuit should be under usual circumstances.

CONSTITUTIONAL RIGHTS

• CAN WE MAKE THE PERSON TESTIFY OR CAN THEY REFUSE UNTIL ANY CRIMINAL CASE IS CONCLUDED?

• DO WE HAVE TO NOTIFY THEM OF THESE RIGHTS?

• WHAT DO WE DO IF THEY ASSERT RIGHT NOT TO INCRIMINATE THEMSELVES?

CONCLUSION

• Be fair.• Maintain decorum.• Do not be sloppy.• Do it right the first time.• Maintain impartiality.• KNOW THE RULES