A Citizen, Pro Se

April 21, 2008

ICRC’s Questionable ‘Consent Agreement’

Filed under: Uncategorized — acitizenprose @ 5:38 pm

The Indiana Civil Rights Commission (and perhaps some HUD/FHEO officials) ‘negotiated’ a ‘resolution’ to the case privately with the Respondent (HUD Landlord), then ‘codified’ the ‘settlement’ into a contract called the ‘Consent Agreement’.  They sent it to the Complainant (that would be me) for my unquestioning signature — and had the area’s FHEO Enforcement Chief email me so I would be sure to understand that The Authorities Required My Signature.

Only one problem.  The law does not appear to allow that kind of ‘private negotiation’.  And I read the law. 

(The ‘Year-End Review’ referred to below is in the sidebar as ‘ICRC’s Case (Mis-)Handling – The First Year.)

 

TO: Tony Kirkland, Director, Indiana Civil Rights Commission (ICRC)
CC: Kim Kendrick, Kenneth J. Carroll, Maurice J. McGough, Barbara M. Knox, Bryan Greene, Cherly Ziegler, Hollie Boyd, Francis Smith, Linda Relford
FROM: ‘Anne E. Citizen’
DATE: April 21, 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

SUBJECT: ICRC’S QUESTIONABLE ‘CONSENT AGREEMENT’

Director Kirkland, although I wish you well in your new position as the Director of the Indiana Civil Rights Commission, I find I must bring a troubling development to your attention and request your immediate response.

On April 17, 2008, I received a document titled ‘Consent Agreement’ by certified mail from the Indiana Civil Rights Commission. ICRC’s cover letter, dated April 15, states: “This agreement covers the issues in regard to settlement of your complaint.” On April 17 I also received an email (titled ‘Case Resolution’) from Francis Smith, Enforcement Branch Chief of the Columbus, Indiana FHEO Center. This email states:

. .. I must contact you about the resolution in your case. […] When there are two separate cases; a Title VIII case filed with ICRC and a Section 504 case filed with HUD; and both cases are 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.

Having become fairly familiar with the Fair Housing Act and its supporting regulations, I understand that 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 have never participated in the conciliation (mediation) process and I am not aware of any portion of the Fair Housing Act that authorizes ICRC and/or HUD to negotiate 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 with the expectation of an immediate and unquestioning signature.

This ‘Consent Agreement’, if signed, would cause the Complainant to forfeit significant rights — including the right to pursue legal action in court and the right to Free Speech — which would otherwise be protected under valid, authorized Fair Housing Act enforcement procedures. As the Complainant in this case, I must express my dismay at the highly questionable step 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.

Please provide me immediately with citations of the law(s), regulation(s) and/or other authoritative document(s) that:

(1) grant authority to ICRC and/or HUD to negotiate privately with one party in a complaint, without the other party’s knowledge, consent, or participation;
(2) grant legal validity to a contract devised by ICRC and/or HUD in private negotiations with only one party in a complaint, while the other party is excluded from the negotiations; and
(3) require the party who was excluded from the private negotiations to accept the terms of a contract developed in those private negotiations.

 

I understand that you are new to your position, Director Kirkland, and so may not be familiar with the circumstances and history of this case. I am appending my March 4 email below the text of today’s email so that you may familiarize yourself with this case (‘Year-End Review’; attachments omitted here). I would also refer you to the 85-page packet of materials I faxed to ICRC on December 13, 2007 as part of the appeals review by ICRC’s Commissioners.

A few further points seem appropriate in regard to the history of this case and ICRC’s questionable ‘Consent Agreement’:

The language of ICRC’s ‘Consent Agreement’ bears some resemblance to the language that would be used in a ‘Conciliation Agreement’. However, my June 26 2007 email memo (see Appeals Packet) makes it plain that, as early as May 2007, I had declined to participate in the conciliation process.

Provision 10 of ICRC’s ‘Consent Agreement’ is particularly troubling because it would require the Complainant to withdraw the case from both ICRC/HUD and Section 504 consideration, while also imposing a ‘gag order’ forbidding the Complainant to communicate in any way about the case. On the issue of withdrawal, I must point out that the suggestion to withdraw the case was first introduced by the ICRC Investigator in a February 26 phone call. I have never expressed any intention to withdraw, nor have I expressed any agreement to ICRC’s suggestion that I withdraw my complaint. I made my intentions to continue to pursue this case perfectly clear to former ICRC Director Gregory Kellam Scott when I wrote: “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.“ (see ‘Year-End Review,’ below). In response to the ‘gag order’ language in Provision 10, I must state plainly that 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.

It may that ICRC and/or HUD, along with the Respondent, might have begun to find my persistence in requesting that this case be treated according to the ‘substantial equivalency’ case-handling performance standards mandated by 24 CFR as a hindrance to their normal operating procedures. It may be that ICRC’s ‘Consent Agreement’ was devised as a way to achieve what could appear to be an ‘administrative closure’. However, the conditions under which ‘administrative closures’ may be applied to a case are closely defined by 24 CFR and ICRC’s Cooperative Agreement with HUD, and this case does not fit those parameters.

The determination in this case was set aside by ICRC’s 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. […]

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.

Although ICRC’s irregular and troubling ‘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.

Here are my requests for action from you, Director Kirkland:

(1) Please provide documentation on the legal and/or regulatory basis for ICRC’s production of the ‘Consent Agreement’ (see detailed request above);
(2) If no such documentation exists, please acknowledge that fact to me by return email;
(3) Please inform me about how you plan to rectify the case record so that this case can be handled in compliance with 24 CFR; and
(4) If you find that ICRC is unable for any reason to handle this case in accordance with the requirements of 24 CFR, I ask that you request a ‘Reactivation of Complaint’ from HUD under 24 CFR 103.110 (a) and (c), and under 24 CFR 115.207(b), so that this case can receive both an investigation and a determination consistent with 24 CFR.

 

I look forward to your quick and complete reply to the issues raised here.

With due respect
‘Anne E. Citizen’

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