In This Issue

• Disabled Tenants Pose Special Problems
  • Special Utility Allowances
  • Disabled Notification Requirements
• Section 8 Landlords May Terminate Tenancy Upon Expiration of the Lease
• Collateral Issues Affecting Discipline of Public Employee
  • Investigative Records
  • Privacy in Computer Records
  • Religious Proselytizing at Work

Disabled Tenants Pose Special Problems

Special Utility Allowances

Lawrence F.
Feheley

A class action consisting of disabled housing tenants has been certified by the federal district court in Hawaii. [Amone v. Aviero, 226 F.R.D. 677 (D. Haw. 2005)]. The purpose of the suit is to force a Public Housing Authority (PHA) to create special eligibility procedures for disabled tenants whose medical conditions require above-average utility usage. The argument is that a PHA must have a special program for disabled tenants, and that this special program is required by the Rehabilitation Act, the ADA, and the Fair Housing Act.

The lead plaintiff in the case, who is disabled, has a medical condition which requires her to use an oxygen machine, a nebulizer, and to maintain her air conditioner at all times. Although her monthly utility allowance was $41, her actual utility bills were often as high as $174.

The court allowed the case to proceed as a class action. The PHA estimates that there are almost 1,400 residents who are listed as disabled. In addition to air conditioning usage, other disabled tenants may incur high utility usage because of the use of other medical equipment. The court ruled that the class presented common questions of fact because, even though the tenants' specific medical conditions may differ, the injuries suffered by the class are identical. The class that was certified includes all disabled tenants who consumed utilities in excess of their allowance because of their disability, and who currently reside with the PHA, as well as those who resided there within the previous two years.

[Source: Housing Development Reporter, Current Developments; 4/11/05 issue; pp. 248-249].

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Disabled Notification Requirements

Another class action on behalf of disabled tenants has been approved by a district court in New York. This class action claims that the New York Housing Authority failed to satisfy notification requirements imposed by the Rehabilitation Act, the ADA, and the Fair Housing Act, resulting in the failure to identify and accommodate disabled tenants, leading to their eviction. [Blatch v. Hernandez, 360 F.Supp. 2d 595 (S.D.N.Y. 2005)].

In this case, the PHA used an annual form that requested tenants to identify themselves as disabled, and to request any necessary accommodations. The argument is that this procedure is not sufficient to meet the PHA's obligation to notify tenants of the availability of reasonable accommodations. In allowing the case to proceed as a class action, the court observed that "it is undisputed that certain mental disabilities may lead individuals to deny, or fail to perceive, their impairments."

However, the court also made a number of rulings in favor of the PHA. First, the court held that the PHA was not required, as a reasonable accommodation, to provide a guardian or other representative to each tenant who had a mental disability. Similarly, the court ruled that the PHA was not obligated to waive a prohibition of illegal drug use, or to provide personal services (such as financial management or apartment cleaning), to disabled tenants. On the other hand, the court ruled in favor of the tenants and held that due process requires the PHA to (a) create a process to ensure that a mentally disabled tenant has a "meaningful opportunity" to represent and protect their interests in internal administrative procedures, and (b) to advise a court in eviction proceedings when it has reason to believe that a tenant lacks the requisite capacity to participate in the proceedings.

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Section 8 Landlords May Terminate Tenancy Upon Expiration of the Lease

Federal regulations provide that tenants have a constitutionally-protected right to remain in federally subsidized housing during the term of the lease. Section 982.310 of the Regulations provides that a tenancy may not be terminated during the term of the lease unless the tenant engages in a serious violation of the lease or the law relating to the tenancy, or for "other good cause."

In a recent lawsuit in Butler County, a tenant challenged the termination of his tenancy, arguing that the same standards applied even after the expiration of the term of the lease. The appellate court denied the tenant's claim, ruling (a) that the termination standards in the Regulations apply to HUD-owned property and project-based assisted units, but not to Section 42 tenancies (projects receiving income tax credits), and (b) nonetheless, the standards do not apply when the landlord does not seek to evict the tenant during the term of the lease, but instead simply decides not to renew the lease upon its expiration.

The tenant also argued that the landlord was required to renew the lease for another year because it accepted HAP payments after the expiration of the lease, while the tenant remained in the unit when eviction proceedings were going forward. The court observed that the Regulations, Section 982.311, require the landlord to accept payment on behalf of Section 8 tenants as long as the individual remains in the unit and the tenant's right to remain is still in question. The decision was rendered in Vienna Forest Apts. v. Passmore, 2005-Ohio-2368 (But. Co. 2005).

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Collateral Issues Affecting Discipline of Public Employee

Investigative Records

Everyone knows that an employer has a legal obligation to investigate complaints of sexual harassment. But, what about the investigative notes – are they public records, open to inspection? This issue was recently decided by the Ohio Supreme Court. [State ex rel. Crawford v. Cleveland, 103 Ohio St. 3d 196 (2004)].

Eugene Crawford worked as the secretary of the Cleveland Board of Zoning Appeals. He was interviewed after reports surfaced of offensive conduct toward women. After the investigation, he was fired. He then requested that the City provide copies of all documents concerning the investigation to him. The City did not provide copies of the personal notes that the Director took at the interview, and Crawford alleged that these notes were "public records" that had to be disclosed upon request.

The Supreme Court disagreed. The Court stated: "[The law] defines 'public record' as a 'record that is kept by any public office.' It does not define a 'public record' as any piece of paper on which a public officer writes something." Since the notes in question were kept for the Director's own convenience, and they were not official records, they were not public records under the statute.

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Privacy in Computer Records

A decision from the Second Circuit Court of Appeals is a good reminder that public employers need to have a clear policy about privacy, especially concerning computers. The policy must advise employees that they are subject to monitoring, and that they should harbor no expectation of privacy in their computer and other records.

In Leventhal v. Knapek, 266 F.3d 64 (2nd Cir. 2001), the state received an anonymous letter about workplace abuses committed by an employee for the State Department of Transportation. The letter was specific enough to identify one of the State accountants. When the State inspected his computer, without his consent, they found material showing that he engaged in unlicensed tax preparation activities. The employee sued, claiming a violation of the Fourth Amendment guarantee against unlawful searches and seizures.

The Court ruled that the employee had an expectation of privacy in the contents of his office computer. If the employer had a written policy that disabused the expectation of privacy, this ruling would have been for the employer, not the employee. However, the State was lucky in this case. The court ruled that even though the employee had an expectation of privacy, giving rise to constitutional projection against an unreasonable search, the search in this case was "reasonable" because it was related to the investigations of workplace misconduct.

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Religious Proselytizing at Work

Does a public employer have to allow religious expression by employees in the workplace? Another federal court case outlined some of the boundaries. In Knight v. Conn. Dept. of Public Health, 275 F.3d 156 (2nd Cir. 2001), the public employer disciplined two employees for religious proselytizing to clients during work.

One employee was a home health worker who preached religion to a homosexual couple, one of whom had AIDS. The other was a sign-language interpreter who urged her religious beliefs on a mentally ill patient. In each instance, the employees argued that their conduct was protected by Title VII and the First Amendment.

The court ruled that public employees' First Amendment rights must be balanced against the state's interest in providing effective public service. The State also has an obligation to avoid violating the separation of church and State barrier of the First Amendment by providing services in a religiously-neutral manner.

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