Landlord and tenant – Voucher – Termination

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Where the Chelsea Housing Authority terminated a tenant’s rental voucher, that ruling must be vacated because (1) the tenant was not afforded an informal settlement conference and (2) state regulations concerning household members are impermissibly vague as applied to the tenant.

Superior Court judgment for Chelsea Housing Authority reversed.

Background

“… On July 9, 2009, [plaintiff Elizabeth] Rivas received notice from the authority’s voucher program representative, Carmen Torres, that the authority was terminating her voucher, effective August 31, 2009, because she did not report ‘changes in family composition and in family’s income’ within thirty days of the change, as required by the conditions of her voucher. …

“Specifically, the authority alleged that Rivas had failed to report to the authority that her mother, Ana Burgos, had begun to live with her at 12 Fourth Street, Apartment 4. Burgos, who had formerly rented an apartment from the authority before moving to Virginia, returned to Chelsea from Virginia in early 2008. On her return, she spent at least two weeks of every month living with Rivas, and spent the remaining two weeks living with her other daughters. On May 5, 2009, Burgos applied for her own housing with the authority. That application, along with additional supporting documentation, listed Burgos’s current address as Rivas’s apartment. … The decision to revoke Rivas’s voucher was reportedly premised on the information provided in Burgos’s application.

“… At no point did the authority offer Rivas the opportunity to engage in an informal settlement conference prior to the grievance hearing, as required by 760 Code Mass. Regs. section6.08(4)(b) (1998). Rivas, represented by counsel, presented evidence at the August 12 hearing. The authority’s grievance panel upheld the termination.

“Pursuant to 760 Code Mass. Regs. section6.08(4)(h) (1998), Rivas appealed to the authority’s board of commissioners (board). Rivas presented evidence before the board at a hearing held on September 16, 2009. After Rivas had presented her case to the board and had left the room with her attorney, Torres entered and provided the board with a package of documentary evidence that she had previously presented at the grievance panel hearing. Torres then answered questions from the board regarding both the regulations governing the voucher program and the contents of the evidence package. Following the hearing, the board affirmed the grievance panel’s decision.”

SJC’s conclusions

“[W]e consider the issue of informal settlement conferences in this context to be of sufficient public policy import to merit our attention here. Although Rivas had counsel beginning at the grievance panel phase, most tenants do not. The issue has been fully briefed by the parties and amicus curiae, and we exercise our discretion to consider it on the merits. …

“… The informal settlement conference is designed to give the tenant an opportunity to resolve the dispute before it becomes a formal grievance. It is focused on resolving the problem, not adjudicating the allegation. … Conversely, there is nothing in the record to indicate that any mitigating circumstances were considered by either the grievance panel or the board, or that Rivas was offered the opportunity to pay restitution in lieu of termination. Whereas the settlement conference would have been conducted by Torres, who could have negotiated a settlement with Rivas, the grievance panel consisted of third parties focused on adjudication, not resolution.

“It was unquestionably unlawful for the authority to proceed to the grievance panel hearing without first offering Rivas the opportunity to engage in settlement negotiations, and the authority should not be allowed to defeat Rivas’s claim of prejudice by demonstrating its unwillingness, at this stage in the proceedings, to reach a compromise on remand. Moreover, although Rivas concededly cannot prove that the outcome necessarily would have changed had she been provided with the conference, the law does not require her to make such a showing. …

“Rivas argues that the regulations she was found to have violated are impermissibly vague as applied because they do not define what it means to live regularly within a unit and do not give a tenant notice of when a guest like Burgos becomes a household member, triggering the tenant’s duty to inform the authority of a change in household composition and income. Rivas has a protected property interest in her housing subsidy, and she is entitled to due process of law before the authority can terminate it. …

“The problem is that there is no applicable regulation defining and governing when an overnight guest becomes a household member for purposes of the voucher program. …

“The regulations surrounding this issue are evidently not a model of clarity. Accordingly, we reject the Appeals Court’s reasoning and conclude, at least as applied, that the regulations are impermissibly vague.

“… In their current form, the department regulations fall short of informing a voucher program tenant when a guest becomes a household member that would trigger the tenant’s duty to inform the authority, and accordingly, their application here requires reversal. …

“… [T]he panel’s findings were insufficient because they failed to make clear how the panel defined ‘household member,’ except for the bare assertion that Burgos fell within that definition. Critically, the findings do not state whether the panel found a violation because it believed Burgos was living with Rivas full time, or if it accepted that she was only living with Rivas two weeks per month but nevertheless considered that a violation.”

Rivas v. Chelsea Housing Authority (Lawyers Weekly No. 10-021-13) (26 pages) (Cordy, J.) (SJC) Case heard by Holtz, J., on motions for judgment on the pleadings. Joshua N. Garick (Stephen J. Callahan with him) for the plaintiff; Thomas F. Feeney for the defendant; James M. McCreight, for Massachusetts Union of Public Housing Tenants, amicus curiae, submitted a brief (Docket No. SJC-11090) (Feb. 8, 2013).