In This Issue

• Eviction – Posting Update
• Section 8 Landlords
• Pet Policies and the Disabled
• Employee Issues
  • Due Process and Pre-Termination Hearing Rights
  • Public Policy-For Cause Termination
  • Self-Incrimination Prohibitions

Eviction – Posting Update

Lawrence F.
Feheley

In the last issue of this Newsletter we reported on the decision in Cincinnati Metropolitan Housing Authority v. Morgan, where the Hamilton County Court of Appeals ruled that posting a three-day notice to vacate the leased premises on the outside of the tenant's door was insufficient service and, accordingly, that the notice must reach the interior of the unit to be effective. Last month, on December 15, 2004, the Ohio Supreme Court reversed that ruling.

The statute (Revised Code Section 1923.04) provides three ways for a landlord to serve the three-day notice: (1) by certified mail, (2) by handing it to the tenant, or (3) by leaving it at the "usual place of abode or at the premises." The Supreme Court interpreted the statute to allow a landlord to post the notice on the outside of the door to the leased unit. (In dicta, however, the Court left open a possible constitutional argument, on due process grounds, where the facts might indicate that posted notices are removed or do not remain on the doors long enough for the tenants to actually receive them.) Cincinnati Metropolitan Housing Authority v. Morgan (2004), ____ Ohio St. 3d ____, 2004 – Ohio – 6554.

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Section 8 Landlords

Does a Section 8 landlord have a right to sue if participation in the Section 8 program is terminated? According to a U.S. District Court in Texas, the answer is "no." Booty v. U.S. Dept. of HUD, 2004 WL 2645642 (N.D. Tex. 2004).

In this case, the landlords claimed that termination from the program violated their constitutional rights to procedural due process. In order to pursue such a claim the landlords must show that they have a "property interest" in participation in the program, since due process applies only to deprivations of life, liberty, or property. The district court rejected the landlords' argument, ruling that no such property interest exists. In reaching its conclusion, the court relied upon the HUD Regulations, 24 C.F.R. Section 982.306(c), which states that "nothing in this rule is intended to give any owner any right to participate in the program." Since the landlords have no rights to participate, the court reasoned, they have no due process rights upon denial of participation.

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Pet Policies and the Disabled

The Superior Court of New Jersey issued a decision recently that involved a PHA's pet policy. It is not a unique or remarkable ruling. Instead, it is a case of a PHA being behind the times.

In Oras v. Housing Authority of the City of Bayonne, Doc. No. A-6444-02T3 (Sup. Ct. N.J. 2004), the Housing Authority had a pet policy that allowed senior citizens or handicapped tenants to have pets. Dogs were limited to twenty pounds. The tenant in this case, Paul Oras, was a paraplegic who was wheelchair bound. He had a dog that he had trained to assist him with daily living functions, such as retrieving his keys and pulling him to and from the grocery store. The dog weighed forty-seven pounds.

The Housing Authority notified Oras that the dog had to be removed from the unit. Oras requested an exemption to the pet policy, supported by letters from two doctors that it was medically necessary for him to keep the dog. Notwithstanding the letters, the Authority told him again to remove the dog.

The court reached the obvious ruling. The court held that, despite its pet policy, the Authority is obligated to accommodate a tenant's disability "to the extent necessary to provide the handicapped person with an opportunity to use and occupy the dwelling unit equal to a non-handicapped person." In other words, the Authority could not put its pet policy ahead of its obligation to comply with the federal and state disability laws. In so ruling, the court held that an assistance animal does not have to be professionally trained or certified.

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Employee Issues

Due Process and Pre-Termination Hearing Rights

It is generally known that a public employee, like an employee of a Housing Authority, may have a constitutional right to due process. This right requires that the employee be afforded a pre-termination hearing before he or she can be discharged.

However, the constitutional guarantee of due process arises only when the employee has a "property interest" in his employment. A property interest is created by state law, such that the employee has a reasonable expectancy of continued employment. Under Ohio law, an unclassified civil service employee has no right to continued employment. Likewise, at-will employees who are not classified civil servants, like employees of housing authorities, generally do not enjoy a statutory right to continued employment. So, why is it that housing authority employees often have a property interest in their employment and must be given pre-termination due process rights?

The answer is that property interests are usually created by collective bargaining agreements. Union contracts generally provide that employees cannot be discharged without "just cause." In the recent case of Singfield v. Akron Metropolitan Housing Authority, 2004 U.S. App. Lexis 23800 (6th Cir. 2004), the U.S. Court of Appeals for the Sixth Circuit confirmed that a provision like this in a collective bargaining agreement constitutes a property interest that entitles the employee to due process protection and a pre-termination hearing.

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Public Policy-For Cause Termination

In Ohio, employees cannot be discharged for a reason that violates "public policy." Public policy has turned out to be an elusive concept, fertile for creative arguments by counsel for terminated employees.

In Mischer v. Erie Metropolitan Housing Authority, 2004 U.S. Dist. Lexis 23588 (N.D. Ohio 2004), an Executive Director argued that she was wrongfully discharged in violation of public policy. The Executive Director contended that the source of this public policy was Section 3735.28 of the Revised Code, which provides that a housing authority shall "fix the term of office, qualifications, and compensation" of its officers and employees. In the Executive Director's view this statute, requiring that her term be "fixed," embodied a public policy that prevented her discharge, even for cause.

The federal district court disagreed. First, the court observed that "to prevent employers from firing term employees for cause would allow such employees to violate employment and performance norms without risk of response by the employer aside from non-renewal of the term." Secondly, the court found that the Authority did not violate the statute, even though the Executive Director was hired for a probationary term on an at-will basis. In the court's view, to "fix the term of office" merely means to define how long the relationship may last. In this instance, the term was fixed as being on an indefinite, at-will basis.

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Self-Incrimination Prohibitions

Just like due process protections, public employees usually are afforded other constitutional rights, one of which is the Fifth Amendment guarantee of a right against self-incrimination. These constitutional rights often complicate matters when a public employer investigates suspected wrongdoing by one of its employees.

Franklin v. City of Evanston, 2004 U.S. App. Lexis 20311 (7th Cir. 2004), is such a case. (Although this case was decided on constitutional due process grounds, it could also have been decided on the Fifth Amendment right against self-incrimination.) An off-duty employee of the City of Evanston was arrested for possession of marijuana. When news of the arrest appeared in the local newspaper, the City began a disciplinary investigation. The employee asked that the proceedings be delayed until his criminal case was resolved, but the City refused. During the investigation, the City questioned the employee about the criminal charge. The employee refused to answer the questions. When the employee was fired for refusing to cooperate in the investigation he sued the City, claiming that he was denied his constitutional rights.

The Court of Appeals ruled that the City was required to either (a) inform the employee that he had immunity from prosecution for any statements made during the investigation, in which case he would be required to answer questions, or (b) delay the investigation until the criminal charges were resolved. The lesson is that if a public employer wants to question an employee about incidents that could involve a criminal charge, the employee must be advised beforehand that his responses cannot be used against him in any related criminal proceeding. A public employee cannot be forced to choose between his job and his constitutional rights. As a matter of practice, any warning given to the employee during the investigation, advising him of these rights, should be in writing so that there is no question about the accuracy and sufficiency of the warning.

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