In This Issue

• "Innocent Tenant" Evictions – The Saga Continues
• Public Employees – Pretermination Hearings
• Service Animals for the Disabled

"Innocent Tenant" Evictions – The Saga Continues

Lawrence F.
Feheley

In the last edition we reported on the Rucker decision. That case involved the anti-drug provisions of the U.S. Housing Act [Section 1437(d)(1)(6)], which generally provide that drug related criminal activity on or off PHA premises is grounds for termination of the tenancy. In Rucker the Ninth Circuit Court of Appeals held that the tenant must have knowledge of the criminal activity in order to justify eviction and, hence, that an "innocent tenant" should not be evicted.

Since then, the Eleventh Circuit has refused to follow suit. In Burton v. Tampa Housing Authority, 271 F.3d 1274 (11th Cir. 2001), the appellate court refused to incorporate the "innocent tenant" concept and, accordingly, upheld the eviction of a tenant because of the drug activity of a household member.

In the Burton case, the PHA tenant was evicted after her adult son, who was a member of the household under the lease, was arrested for engaging in a drug transaction on PHA property. The tenant said that she knew nothing of the drug activity, which did not occur in the leased unit. The appeals court ruled that the tenant could be evicted simply because of the household member's drug activity, even if the tenant had no knowledge of the activity. The basis for the court's ruling was that the language of the statute is "unmistakably clear" and supported by the regulations issued by HUD.

Less than two months after the Burton ruling, the same issue arose in the Illinois state appellate court. In Housing Authority of Joliet v. Keys, 2001 WL 1636500 (Ill. App. 2001), the state appeals court ruled that PHA tenants cannot be evicted because of the criminal activity of family members over whom they have no control. In that case, the tenant was evicted after her adult household member shot and robbed another person while they were at the PHA unit. At the time of the event, the tenant was on dialysis in the hospital. As in the other cases, the issue was the meaning and context of the phrase "under the tenant's control" in the statute. This court opted for the Rucker result, which bars the eviction of an "innocent" tenant. At about the same time as these decisions, an appellate court in Maryland reached the same conclusion, refusing to uphold the eviction of a tenant whose son was arrested for possession of marijuana. Housing Authority for Prince George County v. Williams, 784 A.2d 621 (Md. App. 2001).

The issue is currently on appeal to the U.S. Supreme Court. NAHRO, PHADA, and CLPHA have all filed amicus curiae briefs with the Court, arguing that the "innocent tenant" defense is misplaced and should not be recognized.

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Public Employees – Pretermination Hearings

It is now established that a public employee who has an expectancy of continued employment has a constitutional "property interest" in the employment. Where a property interest in continued employment exists, due process requires that the employee must be given a pretermination hearing before his employment can be terminated. Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985).

The Supreme Court held, however, that the required pretermination hearing is not a full evidentiary hearing. Instead, the due process requirement is met where the employee (a) has received notice of the charges, (b) an explanation of the employer's evidence, and (c) an opportunity to present reasons why the proposed action should not be taken, prior to the termination of employment.

In Robinson v. Springfield Local Sch. Dist., 144 Ohio App. 3d 38 (Summit Co. 2001), another contour of the pretermination hearing procedure came under inquiry. In that case, the employee sought to invalidate his discharge on the basis of the argument that no recording was made of the pretermination hearing. However, the Ohio appeals court rejected the argument, holding that the U.S. Supreme Court did not require the formality of a full-blown hearing, and that it was therefore not necessary that the pretermination hearing be recorded or transcribed.

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Service Animals for the Disabled

The fair housing laws require reasonable accommodation for disabled individuals. In some situations, this may mean that a disabled tenant will be allowed to have a service animal, even though pets would normally not be allowed in the leased unit. The courts have generally permitted service animals to assist blind, deaf, immobile, and autistic tenants.

An interesting twist arose in a recent case in West Virginia. The case of In re Kenna Homes Cooperative Corp., 2001 WL 1567358 (W. Va. 2001), presented the issue whether a pet that reduced the impact of a disability by providing companionship fell within this accommodation exception. In this case, the two tenants suffered from arthritis, high blood pressure, diabetes, heart palpitations, and depression. Their physician certified that their two dogs were medically necessary "to suppress both the physical and mental need for companionship as well as the confinement due to the various illnesses." Despite being worthy companions, the dogs were not trained, licensed, or certified as service animals for a particular disability.

The court rejected the tenants' argument. The court observed that the requirement that a service dog be "properly trained" is proper and legitimate, and that it is proper to require the opinion of a physician that the service animal is needed to lessen the effects of the disability. While a pet can provide comfort and companionship, that is only the "palliative care and ordinary comfort of a pet." Thus, merely reducing the effect of a disability by providing companionship or mental health support is not a required accommodation.

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