A Citizen, Pro Se

April 15, 2008

Reply to Carroll Apr 15 08 – with digressions on technique

Filed under: Uncategorized — acitizenprose @ 6:45 pm

Well, I got those three emails last night from HUD/FHEO officials. I’ll post the email trail leading up to this exchange at another time, but I figured I might as well give a freeze-frame moment of government obstructionism in action. First, some background:

Kenneth J. Carroll, who I respond to below, is Director of HUD/FHEO’s FHAP Division, under the Office of Enforcement. ‘FHAP’ stands for ‘Fair Housing Assistance Program’. FHAP agencies (like the Indiana Civil Rights Commission) have to be certified by HUD in order to receive authority and funding to investigate Fair Housing Act (FHAct) civil rights complaints, and to enforce the FHAct at a state or local level. The regulations establishing FHAP agencies were set out in Title VIII (Title Eight) of the Fair Housing Act, which also established disabled people as a ‘protected class’ with enforceable civil rights under the FHAct. In order to receive and maintain their certification, FHAP agencies have to demonstrate that their laws and their procedures meet legally-defined standards of ‘substantial equivalency’ (see 24 CFR 115). In my ‘Reports’ section (when it is developed) I will show that HUD/FHEO have a history of negligence in regard to enforcing ‘substantial equivalency’ requirements.

Why is ‘substantial equivalency’ important? Because it is the legal and regulatory mechanism intended to ensure uniform standards of civil rights enforcement nationwide. The National Council on Disability’s report ‘Reconstructing Fair Housing’ (as well as several GAO reports and a report by HUD/Hawaii’s Office of Inspector General) have demonstrated that HUD/FHEO’s negligent enforcement of ‘substantial equivalency’ has led to a situation in which HUD’s FHAct enforcement varies by state, region, and locality. The Chicago hub (Region V), which oversees the Indiana Civil Rights Commission (ICRC), has been a consistently poor performer in enforcing ‘substantial equivalency’ in the states and localities it is supposed to govern.

‘Substantial equivalency’ (which is just another way of saying ‘due process’ as far as I’m concerned) is supposed to be applied to each case, and be observed by all FHAP agencies. HUD has authority to ‘reactivate’ a case that has not been handled according to prescribed procedures. (Carroll had misrepresented the law in his earlier email, saying that ‘HUD is prohibited’ from acting on a case after its referred to a FHAP agency, and here is backing away from that position after I challenged him by quoting 24 CFR.) Carroll’s office does not have authority regarding ‘reactivation’ of a case — but he is in authority over the FHAP agencies and their compliance with ‘substantial equivalency.’

In his April 14 email, Carroll predictably attempts two of the obstructionist techniques I’ve encountered often from HUD officials. (Is there a handbook for these techniques? Or is it part of the HUD corporate culture, learned in OJT?) Carroll attempts ‘Shutdown’ and ‘Deflection’ — with, of course, a little bit of ‘Confusion technique’ thrown in. His ‘HUD is prohibited’ statements in an earlier emaill were his first attempt at Shutdown. In his Apr 14 email, Carrol modifies that to the ‘You don’t fit the Criteria’ variation. ( What We The People are supposed to do when an Authority uses Shutdown is say, ‘well, golly, he’s the authority so I must be wrong.’ Wrong response. The LAW is the authority. And the source of the law’s authority is — WE THE PEOPLE.)

As far as Deflection, the clearest example here is Carroll’s misrepresentation of the Memorandum of Understanding (HUD’s contract with ICRC, which makes ICRC a FHAP agency) as a document that requires a FOIA request. Well, I already knew that it wasn’t (although I had a dickens of a time finding the exact part of 24 CFR 115 to quote to him — misplaced on my desktop.) That FOIA deflection, BTW, is terrifically popular with many Fed and State agencies, not just with HUD and their ilk. If it happens to you, don’t let it shut you down.

But I should point out that Carroll’s focus on the issue of reactivation — in this email and his previous one — is actually the major deflection he has attempted in this email exchange. My contact with him began because he is the Responsible Hud Official for dealing with a FHAP agency’s compliance (or noncompliance) with ‘substantial equivalency’ — and also for reviewing a FHAP’s performance standards relative to maintaining their certification. I brought up the ‘reactivation’ regs to demonstrate that HUD is not ‘prohibited’ from acting an a FHAP-referred case. He made them the centerpiece of his earlier response, which made it possible for him to Avoid (another technique) my requests for documentation about the ‘HUD is prohibited’ statements. (You’ll see I’ve reminded him of that avoidance.)

The other thing Carroll did as part of the Shutdown attempt was to contact the lowest-level Region V FHEO officer and have him contact me with a brief email saying, in effect, ‘ICRC did the right thing, shut up and deal with it, and if you need to contact anybody call the supervisor at ICRC.’ In other words, another Authority is instructing a citizen to speak only to the lowest-level representative of an agency which has already violated her rights to due process (among other things). Wrong again. If I were an employee with a complaint, upper-level employees would have the right to insist that I follow the chain of command and climb the ladder with grievances. However, I am not an employee — I’m a Citizen. And I can use my inherently endowed Right of Free Speech to address any government employee I choose. (There are some instances where administrative or legal procedures can exert some control over my Right to Free Speech — such as not having ex parte communications with a judge — but this is not one of those cases.)

Well, I got meta all over myself here. But it was worth it. And now on to —


Anne E. Citizen’s reply to Kenneth J. Carroll’s April 14 2008 email

Mr Carroll:

I appreciate your confirmation that HUD does indeed have authority to reactivate a case. Our correspondence to date has been in regard to the Indiana Civil Rights Commission’s failure to meet the performance standards required for it to maintain its certification as a ‘substantially equivalent’ FHAP agency. In my correspondence with you, I have not made a request for reactivation, since the authority for a decision on reactivation does not appear to rest with your office.

Your email raises several further questions, most of which revolve around this paragraph:

HUD has reviewed the case file, and has determined that ICRC commenced proceedings and proceeded with your complaint in a sufficiently timely manner. In addition, HUD has not determined that ICRC no longer qualifies for certification. Finally, while it is true that HUD may reactivate a complaint if the certified agency agrees to such reactivation, HUD has determined that it will not ask ICRC for a reactivation in this situation.

“HUD has reviewed the case file, and has determined that ICRC commenced proceedings and proceeded with your complaint in a sufficiently timely manner.”
**Who, specifically, reviewed the case file and made this determination under HUD’s authority, and on what basis? As you are aware, both TEAPOTS and the case file were so badly flawed (due to excluded evidence and failure to meet performance standards) that ICRC set aside the ‘determination of no reasonable cause’ and reopened the investigation. To the best of my knowledge, TEAPOTS and the case file remain uncorrected. Until TEAPOTS and the case file are corrected, any determination– even a determination on reactivation — based on the flawed and incomplete case file must be as invalid as the ICRC’s determination in its Notice of Finding.

“[HUD has determined that ICRC] proceeded with your complaint in a sufficiently timely manner” —
** You are correct in pointing out that 810(f)(2)(C) — as well as 24 CFR 110.103 — require ‘timely’ case processing. I have already pointed out that ICRC’s failure to meet 24 CFR’s standards of ‘completing an investigation’ after a full year does not seem ‘timely,’ and I will not belabor that point here. However, consideration of ICRC’s failure to meet performance standards must also be part of a determination on reactivation:

Sec. 115.207 Consequences of interim certification and certification.
(b) If HUD determines that a complaint has not been processed in a timely manner in accordance with the performance standards set forth in Sec. 115.206, HUD may reactivate the complaint, conduct its own investigation and conciliation efforts, and make a determination consistent with 24 CFR part 103.

An investigation and determination ‘consistent with 24 CFR part 103’ (and other relevant laws and regulations) was what I expected to receive from ICRC. HUD/FHEO has the authority to require ‘substantially equivalent’ procedures from ICRC (and all FHAP agencies), and to bring disciplinary action against noncompliant agencies, up to and including withdrawal of certification. This authority (as well as the authority to reactivate a case) is meant to ensure that every Fair Housing Act civil rights complaint receives one uniformly high standard of law and of procedure. The Indiana Civil Rights Commission has plainly failed to maintain the standards set by law and regulations — or perhaps I should say, ‘has failed once again,’ given the ICRC’s troubled history of noncompliance, which has led to disciplinary actions in years past. I urge you, Mr. Carrol to use the authority of your office to ensure that the people of Indiana receive the standard of justice established by the law, instead of a weak imitation.

“HUD has determined that it will not ask ICRC for a reactivation in this situation.”
**Who, specifically, made this determination, and on what basis? I have not yet requested a reactivation by HUD, and I assume that the ICRC’s Director has not made such a request. I find it extremely odd that a HUD official would make a determination to refuse reactivation preemptively, before HUD has received a request for the reactivation. Was a preemptive determination to refuse reactivation made in response to the information I provided about my case (regarding the Indiana FHAP agency’s failure to meet ‘substantial equivalency’ performance standards), or does HUD have a standing practice of ‘denial of reactivation’ without review of a case’s particular circumstances? (Your earlier statement that ‘HUD is prohibited’ from acting suggests the existence of such a ‘preemptive’ policy or practice. I note that you did not respond to my request for documentation regarding this ‘prohibition,’ which would suggest to some that this ‘prohibition’ exists as a kind of ‘off-the-books’ practice unsubstantiated by law, regulation or authoritative documentation. Please clarify.)

I note that you also deflect my request for a copy of ICRC’s Memorandum of Understanding (MOU) by instructing me to make a Freedom of Information Act (FOIA) request in order obtain the document. In regard to the Memorandum of Understanding, a FOIA request does not appear to be necessary: Under Indiana law, a document ‘available during normal working hours’ would be considered a public document.

24 CFR Sec. 115.308 Reporting and recordkeeping requirements.
(c) The [FHAP] agency will permit reasonable public access to its records consistent with the jurisdiction’s requirements for release of information. Documents relevant to the agency’s participation in the FHAP must be made available at the agency’s office during normal working hours (except that documents with respect to ongoing fair housing complaint investigations are exempt from public review consistent with federal and/or state law).

In fact, the statements by ICRC’s staff attorney Michael Healy in response to my initial request for a copy of the FOIA — in which he stated that ICRC had no such document in its possession, and indeed had never heard of it — is simply one more example of ICRC’s failure to meet regulatory requirements. I request that you instruct the appropriate Region V official (1) to provide ICRC with a copy of the MOU and (2) to inform ICRC that there is no legal basis for withholding a copy of the MOU from a citizen. (Please include me in the email distribution for these instructions.)

And finally, you state —

“HUD has not determined that ICRC no longer qualifies for certification.”
I understand that HUD has not yet made such a determination. But, if you will recall, my first email to Ms. Deitzer — which led to your initial email to me — was based on my (mistaken) assumption that the Federal Register notice to which I responded was an opportunity to inform those responsible for reviewing an agency’s certification about ICRC’s substantial failure to meet performance standards. I wrote with the hope and expectation that HUD would make use of my observations in reviewing the Indiana Civil Rights Commission’s certification.

The April 2007 Final Rule on the revised 24 CFR 115 ([Docket No. FR-4748-F-02] RIN 2529-AA90; ‘Certification and Funding of State and Local Fair Housing Enforcement Agencies’) states: “complaints about a FHAP agency will be considered and examined as part of an agency’s performance assessment.” I trust that you, Mr. Carroll, will ‘consider and examine’ the concerns I have raised when reviewing the Indiana Civil Rights Commission’s certification, and that you will instruct the appropriate Region V officals to ‘consider and examine’ my complaints when they assess ICRC’s performance. (Please include me in the email distribution when you forward these instructions to Region V.)

I look forward to your answers to the questions I raised in response to your email, and I will send you a more detailed list of ICRC’s performance failures at an appropriate time. If I decide to request reactivation of my case, I will address my request to HUD officials with whom authority rests to make such a decision.

Thank you again for being so generous with your time.

With due respect
‘Anne E. Citizen’


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