Thursday, July 01, 2010

housing - sec. 8 - criminal conviction

Belajac v. Allegheny Co. Housing Authority - Cmwlth. Court - June 30, 2010 - unreported memorandum opinion

The court upheld the decision of ACHA to terminate the petitioner's sec. 8 benefits based on a criminal convictions involving sexual offenses against a minor child that had taken place six (6) years earlier.

The court said that "the Authority is permitted to terminate Section 8 assistance “[i]f the family violates any family obligations under the program.” 24 C.F.R § 982.552(c)(1)(i). The family obligation set forth in Section 982.551(l) of the HUD regulations provides: “The members of the household may not engage in . . . violent criminal activity or other criminal activity that threatens the health, safety, or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises.” 24 C.F.R. § 982.551(l).

The tenant had been involved in the Section 8 program since 1995. In November of 2002, tenant was arrested and charged with indecent assault, endangering the welfare of children, corruption of minors, and involuntary deviate sexual intercourse. The charges related to conduct involving a five-year-old female victim, which occurred August 3, 2002, at tenant's subsidized unit at the time. On advice of counsel, tenant pleaded guilty to indecent assault and corruption of minors on September 24, 2003, and, as a result, was required to register as a sex offender with the Pennsylvania State Police for a period of ten years. In 2005, Belajac moved to his current subsidized unit located. On August 25, 2008, the Authority sent notification that it intended to terminate his Section 8 assistance for violating his family obligations2 and for being a lifetime registered sex offender.

The criminal incident was not reported to the HA. It is not stated in the facts when the HA became aware of it.

All the circumstances -- At the termination hearing, tenant presented mitigating evidence that he suffered a severe head injury in 1991, resulting in diminished competency, memory loss, high frustration levels, and temperament problems. He also presented letters of support from citizens of his community, including the chief of police. Citing its decision in Housing Authority of York v. Dickerson, 715 A.2d 525 (Pa. Cmwlth. 1998), allocatur denied, 560 Pa. 676, 742 A.2d 172 (1999), the Court held that, althought he hearing officer had in fact considered the mitigating evidence, "consideration of all of the circumstances in each case is discretionary, not mandatory," noting that Dickerson had overruled the decision in Housing Authority of York v. Ismond, 700 A.2d 559 (Pa. Cmwlth. 1997), affirmed, 556 Pa. 436, 729 A.2d 70 (1999), where it had held that the PHA was required to consider the mitigating factors listed in then-existing Section 882.216(c)(2) of the HUD regulations, formerly 24 C.F.R. § 882.216(c)(2), before terminating Section 8 assistance.

Threat to safety - Despite the remoteness of tenant's conduct, the HA and court held that his "obligation to register as a sex offender was 'highly suggesti[ve]' that he 'threatens the safety of other residents and those in the immediate vicinity of the premises' due to the fact that the purpose of the registration requirement is the protection of the community. The hearing officer determined that the conviction was not prohibitively remote due to the fact that he had a continuing obligation to register as a sex offender until 2014. In addition, the hearing officer explained that the period of time between tenant's conviction and the Authority’s decision to terminate Section 8 assistance was due to tenant's failure to report the conviction to the Authority. The hearing officer stated, “[t]here is no evidence that the [Authority] had knowledge of the conviction at the time it occurred. . . . [T]he conviction was discovered during a background check, rather than through normal reporting requirements of the tenant.” This discussion addresses the question of why the HA acted to terminate sec. 8 assistance when it did.

Scope of review - The court held that the trial court, which had reviewed and reversed the HA decision to terminate sec. 8 assistance, had exceeded its powers and wrongly substituted its discretion for that of the HA. "In Allegheny County Housing Authority v. Liddell, 722 A.2d 750, 753 (Pa. Cmwlth. 1998), this Court discussed a court’s scope of review when reviewing local agency action that by law is committed to the agency’s discretion. We stated: [C]ourts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion, in the absence of bad faith, fraud, capricious action or abuse of power; they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution. It is true that the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions." That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion. Liddell, 722 A.2d at 753 (emphasis in original).