In This Issue

• Executive Sessions
• New Public Records Law
• PHA Termination of Section 8 Assistance
• PHA "One-Strike" Policy Evictions

Executive Sessions

By Lawrence F. Feheley

Ohio’s Sunshine Law, Section 121.22 of the Revised Code, requires that a public agency, including a PHA, adequately specify the specific purpose for entering into a closed executive session.

In a recent case involving a Park District, the plaintiff sought a $500 civil forfeiture penalty for each of twenty meetings (i.e., $10,000) where the Park District went into executive session. The only notations in the District’s minutes were that the executive session was to discuss “personnel matters.” The Court ruled that the Sunshine Law was violated because the District failed to “fully specify” its basis for entering executive session by demoting “the precise type of personnel matters it would address, such as hiring, discipline, termination, etc.” Although the Court found a violation, it awarded only one $500 penalty and did not aggregate or “stack” the separate meeting violations, because it found the violations were “technical” and there was no intent to conceal the overall purpose of the executive session. Under the statute, the plaintiff was also entitled to recover her attorney fees. [Weisbarth v. Geauga Park District, 2007-Ohio-6728 (Gea. Co. 2007)].

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New Public Records Law

By Loriann E. Fuhrer

Recent amendments to the Ohio Public Records law affect public housing authorities in Ohio. The amendments, which became effective last September, arguably require housing authorities and other public entities to adopt and maintain both a records retention schedule and a written policy for responding to public records requests. All public offices now must also create and display a poster summarizing the office’s public records policy.

In addition, the amendments require public offices:

• to notify the person requesting a record if the record being supplied has been redacted (unless the redaction is plainly visible);
• to provide an explanation of the reasons, including legal authority, for the denial of any request; and
• to provide the author of an ambiguous or overly broad request with the opportunity to revise the request.

The new law also generally precludes a public office from limiting or conditioning the availability of public records by requiring disclosure of the requester’s identity or the intended use of the requested record. A public office is permitted to ask that a request be made in writing, ask for the requester’s identity, and ask about the intended use of the requested information only if the public office discloses to the requester that compliance is not required and the written request or disclosure of the identity or intended use would enhance the ability to comply with the request.

A public housing authority created under Ohio Revised Code Chapter 3735 is generally regarded as a political subdivision of the State and is, therefore, a “public office” subject to the Ohio Public Records law.

[See generally Ohio Revised Code §149.43.]

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PHA Termination of Section 8 Assistance

By Lawrence F. Feheley

Federal regulations allow PHAs, when they consider whether to terminate Section 8 assistance, to consider all relevant, mitigating circumstances involving the tenant. The Massachusetts Supreme Court recently issued a restrictive and demanding ruling on this point. [Carter v. Lynn Housing Auth., 450 Mass. 626 (Mass. S. Ct. 2008)].

In this case the Section 8 landlord prevailed in court and recovered against the tenant for excessive damages. The PHA then held a hearing, after which the hearing officer terminated the tenant’s Section 8 subsidy. The tenant then challenged the termination of the assistance.

The court ruled that the termination ruling was invalid, primarily on procedural grounds. Although the court agreed that a tenant must maintain the leased property according to HQS standards, and that a PHA can terminate the subsidy for the tenant’s failure to do so, this court held that the following must exist for a hearing officer’s decision to terminate assistance to be valid:

1. The hearing officer must understand and state that he or she has discretion to consider all the relevant and mitigating circumstances;
2. The hearing officer must issue a written decision, stating the reasons and grounds upon which the decision is based;
3. The decision must address factual and credibility determinations, and whether the tenant’s circumstances and “mitigating factors” were considered; and
4. The decision must be based on a preponderance of the evidence before the hearing officer.

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PHA "One-Strike" Policy Evictions

By Lawrence F. Feheley

Federal law allows PHAs to evict tenants for criminal activity by a tenant or member of the household. The issue that arose in one case was whether this federal provision applies even if the terms of the “one-strike” law are not specifically written into the tenant’s lease. The federal court in the District of Columbus ruled that it does not. [Pratt v. Dist. of Columbia Housing Authority, 1993 U.S. App. Lexis 24428 (D.C. Cir. 2008)].

The case involved an eviction because a household member was driving a stolen vehicle. Although the lease permitted eviction for conduct that disturbed the peace, or was unsafe or unsanitary, it did not expressly allow no-fault eviction for one-time criminal activity. The PHA argued that the federal one-strike policy should be read into the lease, even if it wasn’t specifically written. The court disagreed. Thus, in order to rely on the federal one-strike eviction policy, those terms must be expressly included in the tenant’s lease.

[Source: Housing Development Reporter; 3/3/08 issue.]

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