A Citizen, Pro Se

April 19, 2008

ICRC’s Egregious ‘Consent Agreement’

Filed under: Uncategorized — acitizenprose @ 8:26 pm

On April 17 I received, by certified mail, a truly egregious (aka outrageously bogus) ‘Consent Agreement’ devised by HUD officials and my HUD Project-based Section 8 Landlord.  Unfortunately, they forgot to ask me to the meeting — and they forgot the law.

This is the draft of my reply to the ‘Consent Agreement,’ which I hope to send tomorrow so they will have it waiting for them on Monday morning.  The ‘Year-end Review’ email, which I will append to this when I send it, is in the sidebar as ‘ICRC’s Case (Mis)-Handling — The First Year’.  If you want to see my initial response after receiving the ‘Consent Agreement,’ you’ll find it right below this entry.

Draft Reply re: Consent Agreement
begun Apr 19 08

TO: Tony Kirkland, Director, Indiana Civil Rights Commission (ICRC)
CC: Kim Kendrick, Kenneth J. Carroll, Maurice J. McGough, Barbara M. Knox
FROM: ‘Anne E. Citizen’
DATE: April 20, 2008

RE: ‘Anne E. Citizen’ v Henderson Court
ICRC No: HOha07040187 — filed 4/18/07
HUD Fair Housing Act Case No: 05-07-0776-8 — filed 4/17/07
HUD Section 504 Case No: 05-07-0106-4
HUD Inquiry No: 229400 — complaint made 3/22/07

On Thursday afternoon, April 17, 2008, I received a document titled ‘Consent Agreement’ by certified mail from the Indiana Civil Rights Commission (postmark and ICRC’s cover letter dated April 15).

As the Complainant in this case, I must express my dismay at the highly questionable step beyond its legal authority that the Indiana Civil Rights Commission has taken in producing — without my knowledge, consent, or participation — a ‘Consent Agreement’ that purports to resolve this case while depriving me of legally-protected rights. As a citizen, I must protest the misuse of government resources in ICRC’S production and delivery of this deceptive and unauthorized document.

For the last year, the Indiana Civil Rights Commission, by its continuing failure to comply with the case-handling performance standards mandated by Federal law and regulations, has persistently denied the substantial and procedural rights of this Complainant. Now the Indiana Civil Rights Commission — acting, in effect, directly as the Respondent’s attorney — has stepped entirely beyond its authority by collaborating with the Respondent to produce an invalid and unauthorized ‘Consent Agreement’. This ‘Consent Agreement’, if signed, would cause the Complainant to forfeit significant rights — including the right to Free Speech — which would otherwise be protected under valid, authorized Fair Housing Act enforcement procedures.

EGREGIOUS TERMS IN ‘CONSENT AGREEMENT
I have already asserted my opinion that the mere production of this ‘Consent Agreement’ is beyond the authority mandated to ICRC by the Fair Housing Act, and is therefore invalid. The ‘Consent Agreement’ contains fourteen ‘Provisions’, seven of which require the Respondent to comply with portions of the Fair Housing Act, and one of which states that ICRC ‘may’ enforce the Respondent’s compliance. Let me make it clear that although I object to and reject the ‘Consent Agreement’ in its entirety, I find three of its requirements (‘Provisions’) for the Complainant particularly egregious:

Provision 13, ‘Withdrawal of Complaint’: “Complainants agree that the above referenced complaint and any complaints filed with any other anti-discrimination agency that involve the events, transactions or occurrences giving rise to the complaint, are administratively closed.” To this, the Complainant’s response is: I have not agreed to withdraw, and will not withdraw my complaint; there is no support for an administrative closure of this case under Federal law and regulations.

Provision 1: “The Complainants hereby waive, release and covenant not to sue the Respondents with respect to those matters giving rise to the present charges filed with the Indiana Civil Rights Commission (ICRC) or the Department of Housing and Urban Development (HUD), subject to performance by the Respondents of the promises and representations contained within.” To this, the Complainant’s response is: I refuse to forfeit, limit, or to diminish in any way, my rights to bring any legal action permitted by law.

Provision 10: “All parties agree to keep the terms and conditions of this settlement agreement in complete confidence and further agree not to disclose or discuss anything revealed during the mediation conference with any person who is not a party to this agreement.” (Note that this provision refers to a ‘mediation conference’ — part of the conciliation process — when no such ‘mediation conference’ ever took place.) To this provision — which is, in effect, a ‘gag order’ — , the Complainant’s response is: As a matter of religious opinion and of conscience (as defined by Section 3 of the Indiana Constitution’s Bill of Rights), I refuse to forfeit, limit, or diminish in any way my Divinely-endowed, inherent, and Constitutionally-protected Right to Freedom of Speech.

I DID NOT ENGAGE IN CONCILIATION PROCESS
The language of the ‘Consent Agreement’ bears some resemblance to the language that would be used in a ‘Conciliation Agreement’. However, my June 26 email memo (also faxed as hardcopy to ICRC on Dec 13, as part of my Appeals Packet) makes it plain that, as early as May 2007, I had declined to participate in the conciliation process.

I WILL NOT WITHDRAW MY CASE
The so-called ‘Consent Agreement’ appears to be an escalation of, and an attempt to codify, the ICRC Investigator’s February 26 attempt to induce me to withdraw my complaint. I responded to that attempt in my March 4 email to ICRC’s former director Gregory Kellam Scott, with CCs to HUD/FHEO officials Kim Kendrick, Kenneth J. Carroll, Maurice J. McGough, and Barbara M. Knox. (see ‘Year-end Review, appended below; the attachments, omitted here, were faxed to ICRC on December 13 as part of my Appeals packet). I have never expressed any intention to withdraw my complaint — a fact which I made clear in my March 4 email: “I will not be satisfied until my case receives full, fair, objective treatment on the merits of all the evidence, as required by the Fair Housing Act.“

ICRC EXCEEDS ITS AUTHORITY WITH ‘CONSENT AGREEMENT’
A FHAP agency like ICRC is authorized to produce a ‘Conciliation Agreement’ as the final product of a voluntary conciliation process involving all the parties and a trained mediator. However, I can find nothing in the Fair Housing Act that authorizes ICRC to collaborate privately with one party (Respondent) while excluding the other party (Complainant) to produce a contract (‘Consent Agreement’) which is then delivered to the excluded party ‘under color of law’ (certified mail, ICRC letterhead) to produce the impression that the contract is an ‘official document’ which the excluded party is required to sign. In addition to being unauthorized by law, ICRC’s action contains elements of purposeful deception and is an attempt, through inappropriate use of ICRC/HUD authority, to intimidate the Complainant into believing that she is somehow ‘required’ to sign and return the contract for inclusion in the case file.

An email from Francis Smith, Enforcement Branch Chief of the Columbus, Indiana FHEO Center was waiting for me in when I went online a few hours after receiving the ICRC’s certified letter. Smith’s email, titled ‘Case Resolution,’ reads as though a ‘resolution’ to the case has already been accomplished through ‘negotiation’ between ‘HUD’ and the Respondent:

I must contact you about the resolution in your case. [… When both a Title VII case and a Section 504 case have been filed against the same Respondent,] it is prudent for the two jurisdictions to work in unison on the issues alleged against that same Respondent. HUD maintains over sight of the final resolution of the issues.

Accordingly, the issues in your complaint have been resolved through negotiation with Respondent. The resolution has been codified in an agreement that Respondent has deemed acceptable and has executed. The agreement has been forwarded to you for your signature. If you have any questions, please contact me.

Smith’s email clearly gives the misleading impression that the agreement between HUD and the Respondent is the ‘final resolution of the issues,’ and that those ‘issues . . . have been resolved’. With Smith’s email, a second ‘voice of authority’ follows closely on the heels of the ‘official documents’ delivered by certified mail, including the letter on ICRC letterhead which states “This [Consent] agreement covers the issues in regard to settlement of your complaint.”

All of the documents surrounding the spurious ‘Consent Agreement’ — ICRC’s letter, the Respondent’s letter, the ‘Consent Agreement’ itself, and Smith’s email — combine in an attempt to create a belief in the Complainant that the case is finished, ‘resolved’ by the ‘authorities’ — and not only ‘resolved,’ but ‘codified,’ a word giving the impression that the ‘resolution’ carries the force of law.

‘CONSENT AGREEMENT’ AN ILLEGITIMATE ATTEMPT TO FORCE CLOSURE OF AN OPEN CASE
The determination in this case was set aside by the Commissioners because such a substantial body of evidence was excluded from the case file, the TEAPOTS database, and the Final Investigative Report that the Commissioners found the determination invalid and remanded the case for further investigation. To the best of my knowledge, the case record has not yet been corrected, even though I explained to former ICRC Director Scott in my March 4 email that —

this case can only be remedied by including every piece of existing evidence — from both Respondent and Complainant — in the physical case file, the TEAPOTS database, and the Final Investigative Report. When the case record has been rectified so that it complies with the ‘substantial equivalency’ standards set forth in 24 CFR and other authoritative sources, then — and only then — can a valid determination, based on ‘the totality of factual information’ be reached.

ICRC has worked assiduously for more than a year to avoid entering the evidence into the case record, and to avoid reaching a valid determination based on ‘the totality of the facts’ as required by the Fair Housing Act. At this point, it appears that ICRC is supported in this stance by some HUD Region V (Chicago hub) officials and by some officials in HUD’s Washington DC office. Nevertheless, unauthorized and legally-unsupported actions by individuals who happen to be government employees do not obviate, diminish, or impair a citizen’s rights under the law.

This spurious ‘Consent Agreement,’ if signed, would benefit the Respondent, the Indiana Civil Rights Commission, and HUD’s Chicago and Washington offices —

The Respondent would benefit by receiving what is in effect a ‘consent decree,’ a kind of settlement normally contained in a court order, that would allow the Respondent to take certain actions (the ‘Provisions’ requiring compliance with the Fair Housing Act) without admitting guilt or fault. In addition, the ‘gag order’ provision, along with the waiver of the Complainant’s right to bring legal action, would ensure that the Respondent’s discriminatory Service Animal contracts never became part of any public record.

The Indiana Civil Rights Commission would benefit by being able to close this case either as an ‘administrative withdrawal’ or as a ‘conciliated case’ — and, if the case closure were reported to Region V officials as a ‘conciliated case,’ ICRC could receive a bonus ‘case-handling’ payment of up to $2500. The ‘gag order’ provision would also benefit ICRC, because it would ensure that violations of the Complainant’s rights to Due Process and to Equal Access to Justice (as well as ICRC’s denial of the Complainant’s substantive and procedural rights under the Fair Housing Act) could never be brought to public attention.

The HUD Region V (Chicago hub) and Washington officials who have been made aware of the Indiana Civil Right’s Commission’s failure to comply with the performance standards on which ICRC’s ‘substantial equivalency’ certification is based have thus far failed to use their legitimate authority either to require ICRC to handle this case in accordance with the requirements of the Fair Housing Act or to review ICRC’s standard procedures for compliance with ‘substantial equivalency’ requirements. In short, responsible officials in both the Chicago and the Washington HUD/FHEO offices are aware of the Indiana Civil Rights Commission’s non-compliance with regulatory performance standards, yet neither office has exerted its authority to correct ICRC’s performance. The handling of this case would be a public embarrassment to these offices if it were to become a matter of public record; these offices would also benefit from the closing of this case and the silencing of this Complainant.

As I wrote to former ICRC Director Gregory Kellam Scott on March 4: “My case, and every case brought before the ICRC, deserves to be treated in full accordance with the requirements of the law. I hope you will not allow ICRC to settle for less.” I will also remind you, Director Kirkland, of the new motto that HUD Assistant Director Kim Kendrick so blithely uses as the signature line of her emails:

“The Fair Housing Act: It’s not an option — it’s the law!”

The Fair Housing Act is the law, Mr. Kirkland, and it is not an option. The extra-legal ‘Consent Agreement’ devised and mailed by Indiana Civil Rights Commission staff suggests not just ignorance of or disregard for the law; the ‘Consent Agreement’ suggests scorn for the law, and is an active attempt to circumvent it.

Although the ‘Consent Agreement’ appears to have been prepared during former ICRC Director Scott’s tenure (based on the April 4 date of the Respondent’s letter included with the Agreement), it was mailed on April 15, the day your appointment as ICRC Director was announced by Indiana Governor Mitch Daniels. I sincerely hope that you will act immediately and decisively not only to correct the record in my case, but to bring all of the Indiana Civil Rights Commission’s practices and procedures into compliance with the requirements of the Fair Housing Act.

With due respect
‘Anne E. Citizen’

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4 Comments »

  1. Annie, what a service you are providing with this site. Reading over what has happened in your case brings to immediate mind the discovery of the “too cozy” relationship between the FAA and the airlines. It certainly appears that a too cozy relationship has developed between the ICRC and those it is supposed to regulate. As I read this over, the question that popped into my head is “Why?” Why would there be so plain a bias FOR the Respondent and against the Complainant? It does not seem to me that it can cost more for the ICRC to do its job right than it costs to do it wrong. And that leads me to suspect that there is somehow more at stake here than a mere $2500.00. When something seems so obviously out of kilter the first rule is to follow the money. I know your financial resources must be limited, so I think it unlikely you could follow the money through what is almost certain to be a confusing and intricate construct of shifting funds, but I’d bet that the answer to my question lies somewhere at the end of the money trail.

    Keep up the good work.

    Im

    Comment by Im Interested — April 20, 2008 @ 3:56 am | Reply

  2. Annie,

    This is simply overwhelming to witness, so I’m confident that it must also be overwhelming to experience.

    It grieves me that a private citizen has to do battle with “our” government like this, simply to get a fair hearing and fair treatment.

    Why? is right.

    JRC

    Comment by Janet — April 28, 2008 @ 4:34 pm | Reply

  3. Annie,

    In my representation of my sister in her Fair Housing complaint with her Section 8 provider, I have found that studying the HUD handbooks for providers (like 4350.3) and even the one FHEO use themselves can be used to persuade them to do right. For example, perusal of Handbook 8024.01 REV-2 for Intake, Investigation and Conciliation by FHEO, says on page 4-18, “Any non-Title VIII complaints in multi-jurisdictional cases (e.g. TITLE VI, Section 504, Section 109 complaints, etc.) should not be referred to FHAP agencies.”

    Since you were discriminated against in a federally funded program, project-based Section 8, you should have been covered by Section 504 of the Rehabilitation Act as well as Title VIII. Thus HUD should *not* have referred your case to a FHAP agency. Someone in their intake division erred. Perhaps you can use this as leverage . . . ?

    I recommend two things. Try to get counsel through a disability rights organization or a disability rights attorney. Contact your congressperson and/or one of your senators to get constituent services. Also, consider filing a discrimination complaint against HUD FHEO. You can do this with the Department of Justice, because HUD FHEO must adhere to Section 504, which they may have violated in your case. In the case of the FHAP, since they are federally funded to, as far as I know, they must adhere to Section 504. Both must adhere to the FH Act.

    You might find that researching lawsuits against FHAPS and HUD on the LexisNexis database will lead you to good information to serve you.

    I found that complaining to Linda Thompson, Director of the FHEO Office of Field Oversight moved the Region IX FHEO Office in the right direction. Have you passed the appeal stage of your complaint? You can appeal determinations, moving them up to Washington to a second-round. I spoke with Darren Gobbels at the FHEO Compliance Office. His office would have/will handle my sister’s case if it was/is appealed.

    I spoke with Attorney Chris Brancart at http://www.brancart.com/. He was recommended to me by the National Housing Law Project: http://www.nhlp.org/

    I understand your battle. The government doesn’t willingly do its job, and herculean efforts are required to induce them to. But, when you reach the tipping point . . .

    Good luck!
    John

    Comment by John Colby — July 5, 2008 @ 11:25 am | Reply

  4. John, thanks for writing such a thoughtful post. It’s nice to hear from another veteran of the HUD civil rights wars. I hope that you are (or have been) successful in you advocacy for your sister.

    And yes, ‘herculean’ is right — and in the Augean Stables!

    Different HUD Regions have varying ways of operating, which means that Fair Housing Act civil rights are not enforced uniformly nation wide — the vary according to state, region and even by locality. I’m in Region V (Chicago office) and they do thigs . . . well, they do things ‘the Chicago way’.

    I haven’t been able to post fro some time, for various reasons, but I hope eventually to add quite a bit more about my travails on the Service Animal Case, and add more about HUD’s non-enforcement of FHA civil rights, particularly as it relates to disabled people.

    Much to my surprise, I WON a ‘reasonable cause’ finding from the Indiana Civil Rights Commission on the SErvice Animal case. The case will now go the next stage — either to a state court (in my county) or conciliation or adjudication by an ALJ (lst two options through ICRC).

    The bad news is — I have now entered into ANOTHER complaint in an attempt to save myself from a landlord’s actions that can threaten by health and safety.

    I have Multiple Chemical Sensitivity (MCS), which HUD regognized (in a 1992 directive) as a handicap warranting reasonable accommodation. Once again HUD (Region V staff) seems to be more concerned with the property owner than with the disabled person.

    Thanks again for writing!

    Best regards ‘Anne E’

    Comment by acitizenprose — July 5, 2008 @ 10:57 pm | Reply


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