SINGLETON v. BOSTON HOUSING AUTHORITY (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following the termination of her Section 8 housing assistance, Aundrea Singleton brought an action against the Boston Housing Authority (BHA), seeking declaratory and certiorari relief for a violation of her State and Federal rights.² A judge of the Housing Court granted the BHA's motion for judgment on the pleadings and affirmed the termination decision. We reverse the resulting order and remand for further hearing by the BHA.³

Background. In January of 2018, Singleton's adult son was charged with murder as a joint venturer, and with assault and battery by means of a dangerous weapon. The alleged criminal conduct occurred approximately 1.7 miles from the Section 8 apartment where the son lived with Singleton.⁴ Until the police arrived to arrest her son, Singleton had no knowledge of his criminal activity. At the time these proceedings were commenced, Singleton had been receiving Section 8 benefits for approximately ten years. With the exception of one delay in reporting her income, Singleton had complied with all conditions of the program.⁵

Based on the allegations against her son, the BHA terminated Singleton's participation in the program for two violations of the program's family obligations: (1) a family member engaging in violent criminal activity, and (2) a family member engaging in criminal activity that threatens the health and safety of other residents and persons in the immediate vicinity of the premises. A BHA hearing officer upheld the termination after an informal hearing.⁶ Ultimately, the Housing Court judge allowed the BHA's motion for judgment on the pleadings concluding that she could not substitute her own judgment for that of the hearing officer.⁷ As a result of the termination, Singleton was evicted and rendered homeless.

Discussion. A tenant of a federally subsidized housing program may not be deprived of her benefits without due process of law. Wojcik v. Lynn Hous. Auth., 66 Mass. App. Ct. 103, 109-110 (2006). The United States Department of Housing and Urban Development (HUD) has issued detailed regulations providing for the elements of due process in termination proceedings. Id. at 110. Pursuant to these regulations, a family facing eviction is entitled “to present evidence and arguments about circumstances that might move the decision maker to impose a penalty less severe than termination.” Id. at 112. In turn, HUD's due process regulations require the decision maker to weigh the evidence, find facts relating to “all relevant circumstances,” and to balance them in the decision whether to impose a sanction less severe than termination. Id. See 24 C.F.R. § 982.552(c)(2)(i) (2016). HUD regulations compel a hearing officer “to exercise judgment, which involves the element of discretion.” Wojcik, supra at 114. To pass constitutional muster, the decision of a hearing officer must, among other things, “demonstrate that [the officer] is aware of his [or her] discretionary authority under 24 C.F.R. § 982.552(c)(2)(i), to take all relevant circumstances (including mitigated circumstances) into account; and indicate whether he [or she] either did or did not choose to exercise that discretion in favor of mitigating the penalty ․ in a particular case.” Carter v. Lynn Hous. Auth., 450 Mass. 626, 636 (2008). See id. at 637 (hearing officer's failure to make findings, coupled with failure to express awareness of authority to exercise discretion, was “contrary to our jurisprudence”).

We conclude that the hearing officer misapplied these governing standards. In her second amended decision, the hearing officer found several mitigating factors applied to Singleton. Singleton did not participate in or know of her son's criminal activity. She suffered from a disability and would be “greatly affected” by termination which would render her homeless. However, the hearing officer concluded that while she took “strong consideration of [these] mitigating circumstances, when weighed against the seriousness of the violations in this case, they are not sufficient to offset termination.” But the record also reflects that the hearing officer believed that she did not have the authority to consider the lesser sanction requested by Singleton.⁸ This was error. See 24 C.F.R. § 982.552(c)(2)(ii) (public housing authority may condition continued assistance to family on removal of wrongdoer). The hearing officer's rejection of Singleton's request to consider the lesser sanction of her son's removal from the lease, see note 7, supra, was contrary to HUD regulations and due process -- particularly where the BHA leasing officer had advised Singleton that she could present that option at the hearing (see note 5, supra). See Wojcik, 66 Mass. App. Ct. at 112 n.10 and cases cited. Accord Carter, 450 Mass. at 634-635. Moreover, the hearing officer did not address or make findings regarding Singleton's request for the lesser sanction. Absent such findings, we cannot agree that if the son no longer lived with Singleton, as she had proposed, and did not visit the apartment, the allegations against the son outweighed the mitigating factors that applied in Singleton's case. Nothing in the decision demonstrates that the hearing officer considered the possibility of a lesser remedy. In light of this error, we conclude that Singleton is entitled to certiorari relief.⁹ See Figgs v. Boston Hous. Auth., 469 Mass. 354, 361-362 (2014) (certiorari relief available to correct injustice from error of law when no other relief available).

The order of the motion judge is reversed, and the case is remanded to the Housing Court for entry of a judgment remanding the matter to the BHA hearing officer with instructions to conduct a de novo informal hearing consistent with due process and this memorandum and order. The hearing officer shall consider the lesser sanction of removal of the son as a tenant and shall make findings as to why that sanction is, or is not, appropriate under the circumstances.

So ordered.

Reversed and remanded

FOOTNOTES

2.   Although Singleton also named William McGonagle, administrator of the BHA, as a party, the only proper defendant was the BHA.

3.   No separate judgment entered on the docket as required by Mass. R. Civ. P. 58 (a), as amended, 371 Mass. 908 (1977). Where the parties have treated the judge's dispositive order as a final judgment, we exercise our discretion to reach the merits. See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 24 n.3 (1995).

4.   At the time of the informal hearing, the criminal charges arising from the son's involvement in the murder were pending, and the son was being held without bail. We were informed at oral argument that he was sentenced to from eight to ten years in prison in connection with the murder.

5.   Shortly before the BHA issued to Singleton the notice of the proposed termination, Singleton entered into a repayment agreement with the BHA based upon her delay in reporting income. Singleton informed the hearing officer she always reported and documented her income and that her “worker was trying to ․ figure out how that happened,” and that she had stated to the BHA that if there was any error, she would gladly pay the BHA back. The hearing officer did not make any finding with regard to the issue.

6.   As Singleton explained to the hearing officer, when she approached her leasing officer in March 2018 to report an income change due to her son's incarceration, she asked if she should remove her son from the family composition; the officer told her “she needed to wait for the hearing concerning the proposed termination.” Accordingly, on March 22, 2018, Singleton recertified her son as a family member.

7.   We note that in an effort to be fair to Singleton, the judge twice remanded the case to the hearing officer for additional findings regarding the reliability of the police report and the location of the alleged criminal conduct.

8.   When Singleton asked the hearing officer if she could keep her voucher if her son was taken off the lease and he did not reside with her, the hearing officer responded, “[T]he decision before me is whether or not, um, I agree with Leased Housing in moving forward with the proposed termination -- or whether I disagree with them. Um, and either I uphold it or I reverse it. And so in terms of you removing him off the vou[cher] that's somethin' that's not within, um, kind of my realm․ Um, again, I'm just strictly deciding on the violation, kind of -- the violations presented -- to me today. Um, I have three months to issue my decision.”

9.   It is also not clear how the hearing officer could have given “strong” consideration to a disability given the absence of evidence regarding the disability. Pursuant to the applicable Federal regulations, Singleton was entitled to present evidence about her disability and to have it weighed by the hearing officer as a mitigating circumstance. Singleton was not required to show a nexus between her disability and her son's violation of the family obligations that led to the termination. Contrast Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833, 848 (2009). While it was Singleton's burden to present evidence regarding her disability, the hearing officer's question -- “How is that [disability] related to the underlying violation?” -- may well have dissuaded Singleton from such a presentation.