In This Issue

• Employee Terminations
• Public Record Disclosure
• Accommodation of Disabled Tenants
• Tenant Evictions – Criminal Activities

Employee Terminations

Lawrence F.
Feheley

Every employer these days is rightfully concerned when an employee's employment is terminated. Virtually every termination has the possibility of expensive and risky litigation. Among the frequent claims made by a discharged employee is a claim for "promissory estoppel." The essence of this claim is that the employee was told something that led him or her to believe that they had job security, or some promise of continued employment, and that the employee relied on what he was told to his detriment. The World War II adage that "loose lips sink ships" takes on new legal meaning.

A recent decision by the Franklin County Court of Appeals may give public employers some hope. In Drake v. Medical College of Ohio, 120 Ohio App. 3d 493 (Fkln. Co. 1997), an applicant for a position was told that the Board of Trustees had to approve her hiring, but that the approval would surely be forthcoming because the Board always "rubberstamped" the President's decisions. The individual relied on this statement and took the job. After she began work, the Board raised questions concerning her resume and did not approve her hire. The agency terminated her employment.

The Court of Appeals rejected her promissory estoppel argument. The reason was that the applicant was not legally entitled to rely on any statements made by the President. The statute governing this public agency, much like Section 3735.28 which concerns Housing Authorities, provides that the Board of Trustees has the authority to employ the agency's employees. Since only the Board could approve the hiring, any representations made by the President were contrary to the statute and therefore to no avail. "Public officers cannot bind the state by acts outside their express authority."

This was obviously not a comfortable situation for the applicant, the President, or the agency. However, if this decision is applied with equal force, as logic suggests, to statements made by management personnel of a Housing Authority, it may provide a helpful defense to promissory estoppel claims made by former employees.

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Public Record Disclosure

The Ohio Supreme Court has liberally interpreted the Public Records law, Section 149.43 of the Revised Code, to order the disclosure of a multitude of documents and records maintained by a public agency. A good example is the Court's recent decision in State ex. rel. Freedom Communications v. Elida Community Fire Company, 82 Ohio St. 3d 578 (1998).

In this case, a male employee of the agency allegedly sexually assaulted a female volunteer. The police investigated but did not file any charges. The agency chief prepared an investigative report and, on the basis of the report, terminated the employment of the male employee. A copy of the report was placed in the employee's personnel file. After the discharge, the local newspaper requested a copy of the report. When the agency refused to disclose the report, the newspaper sued. The Supreme Court ruled that the investigative report was a public record. The statute defines such a record as any document or item (regardless of form), created or received by a public office, which "serves to document the organization, function, policies, decisions, procedures, operations, or other activities" of the agency. As such, the record is open to public disclosure unless it is exempt from disclosure.

The agency argued that this record was exempt from disclosure because it was a confidential law enforcement investigatory report. The Court ruled that this exemption only applies to law enforcement and not to employment or personnel matters. The agency also argued that a disclosure of the report would violate the individual's constitutional right to privacy, an argument which the Court summarily rejected.

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Accommodation of Disabled Tenants

We have previously discussed the legal duty of a Housing Authority to accommodate a disabled or handicapped tenant. A recent case from Oregon exemplifies the scope of that duty, as well as the wide-ranging factors an Authority must consider in making accommodation decisions.

In this case, the Authority had a strict "no pets" policy. A mother and her deaf son were tenants. They requested a waiver of the policy for a dog. The Authority refused the request. The tenants then sued, alleging violations of the Americans with Disabilities Act (ADA), the federal Fair Housing Amendments Act, and the Rehabilitation Act.

The legal issue in the case was whether the dog was a "service dog" for the boy or, instead, simply a household pet. Clearly, dogs act as service animals for the visually impaired. In this case, however, the boy was hearing impaired, not vision impaired. The district court ruled that the dog was a service dog because it could alert the boy to knocks at the door or the sound of the smoke alarm. The court therefore ordered the Authority to modify the no-pet policy and to allow the dog to remain in the unit. Green v. Housing Authority of Clackamas County, 12 NDLR (D. Ore. 1998).

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Tenant Evictions – Criminal Activities

 PHAs across the country have grappled with the question of whether a tenant can be evicted for criminal activities of the tenantis relatives. Unfortunately, the HUD regulations do not provide very reliable guidance. The regulations direct the PHA to iconsider all the circumstances,i including the effect that an eviction will have on a family, the nature of the offense, and the level of participation in the offense by the tenants. 42 U.S.C. s1437(d)(1)(5).

A recent case in Minnesota state court is a good example of the vagaries of such an eviction decision. In Minneapolis Public Housing Authority v. Lor, 578 N.W.2d 8 (Minn. App. 1998), a mother and her four children were evicted after her 17 year-old son was detained by the police after a drive-by shooting and the police found three guns in the apartment unit. The PHA took the position that the tenant had violated the lease because a member of the household had engaged in criminal activity. The mother testified that the family didnit own the guns, and that she had no knowledge of her son's activity. She also testified that the family would find it very difficult to find other housing if they were evicted, and that her son would not live with the family if they were allowed to remain in the unit. On these facts, the Minnesota appellate court concluded that it would be an injustice to allow the eviction.

[Source: Housing & Development Reporter, Current Developments; 6/1/98 issue; p. 60]

Similarly, a federal court in California enjoined the Oakland Housing Authority from evicting tenants whose household members committed drug-related crimes off PHA property. Rucker v. Davis, 1998 WL 345403 (N.D. Cal. 1998). On the other hand, the court ruled, the PHA could evict tenants, even innocent, if the drug activity occurred in the apartment unit.

HUD requires that a PHA lease include a provision that the lease can be terminated for criminal activity on the premises, or drug-related criminal activity on or off the premises, by any member of the tenant's household or a guest under the tenant's control. There is no exception in the lease for the tenant's ignorance of the activity or lack of participation in it.

In the cases considered by the court, members of numerous tenants' families were charged with various drug-related criminal acts. Some occurred on the PHA property and others did not. The tenants claimed that the lease provisions, when applied to an innocent tenant, violated constitutional due process and freedom of association rights. The court concluded that it was unreasonable to punish a tenant by eviction simply because they live with someone who committed a crime outside the apartment unit. However, the court permitted the eviction of tenants whose household members commit drug-related crimes within the leased premises.

[Source: Housing & Development Reporter, Current Developments; 7/27/98; p. 165-166]

A Pennsylvania state court reached the opposite result in the similar circumstance of the eviction of a Section 8 tenant. Housing Authority of the City of York v. Dickerson, 1998 WL 385447 (Pa. 1998).

The regulations provide that Section 8 assistance can be stopped if a family member has engaged in drug-related or violent criminal activity. In this instance, the court permitted the termination of assistance to a tenant whose grandson, a household member, was arrested for robbery and burglary.

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