A Citizen, Pro Se

July 30, 2008

MCS as ‘Handicap’ – HUD’s 1992 Directive GME-0009

Filed under: Uncategorized — acitizenprose @ 6:00 pm

When I first spoke to Maurice J. McGough (HUD/FHEO official in HUD’s Region V (Chicago) office) about the threat to my health and safety from the landlord’s planned renovations, he brought up the difficulty of ‘proving’ MCS as a handicap because of ‘the Daubert Rule’ — and I’ll write more about Daubert elsewhere. In brief, it’s one of the Federal Rules of Evidence (based on a Supreme Court case) that allows ‘expert testimony’ to be torn to shreds if the facts brought forward are not widely and generally accepted. ‘Daubert’ has been used extensively in MCS cases having to do with toxic torts (chemical injury cases), Americans with Disabilities Act (ADA) and Worker’s Compensation, and McGough tried very hard to convince me that ‘Daubert’ would make it impossible for my MCS to be recognized as a handicap under the Fair Housing Act.

Well, I answered him, there has never been an MCS case brought entirely under the Fair Housing Act, without ADA or other laws being brought into the case. My case falls entirely under the Fair Housing Act, I told him, and I can build a Daubert-proof argument based on the civil rights definition of ‘disability’ in 24 CFR, HUD’s 1992 Directive recognizing MCS as a handicap warranting Reasonable Accommodation, and the HUD/DOJ 2004 Joint Statement on Reasonable Accommodation Under the Fair Housing Act. None of these sources require medical documentation or expert testimony — so Daubert could not be invoked.

McGough & Co. began working very hard to keep me so busy that I never had time to finish writing my Daubert-proof argument — although I still want to finish it, if time allows. But here’s one portion of it — excerpts (with my notes) from HUD’s 1992 Directive GME-0009, ‘Multiple Chemical Sensitivity Disorder and Environmental Illness as Handicaps’.

‘Multiple Chemical Sensitivity’ (MCS) and ‘Environmental Illness’ (EI) are two names for the same disorder. Here’s the definition HUD used in GME-0009:

[A]n acquired disorder characterized by recurrent symptoms, referable to multiple organ systems, occurring in response to demonstrable exposure to many chemically unrelated compounds at doses far below those established in the general population to cause harmful effects. No single widely accepted test of physiologic function can be shown to correlate with symptoms.

Translated into English, this means that people with MCS get very sick from tiny amounts of many different chemicals that are in common use. But here’s the important part: The HUD definition is based on symptoms, and it accepts the fact that no medical (physiological) tests ‘correlate with’ those symptoms. This means that, to HUD, medical tests (or the absence of medical tests) are immaterial to the definition of MCS, which is defined by sypmtoms.

MCS HUD 1992 Excerpts

HUD Directive GME-0009 found at www.fairhousing.com , on ‘HUD Resources’ page. Comments beginning [NOTE . . ..] are my statements, not part of HUD GME-0009. Otherwise [ ] square brackets are used to summarize content of GME-0009. Bolding is mine throughout, underlining in original.

Excerpts from HUD Directive GME-0009 1992
Multiple Chemical Sensitivity Disorder and Enviornmental Illness as Handicaps

[Cover memo April 14 1992 to all Regional Directors of FHEO]

The General Counsel has accepted the attached memorandum as the Department’s position on the issue of when Multiple Chemical Sensitivity Disorder (MCS) and Environmental Illness (EI) are handicaps [under the Fair Housing Act].

individuals disabled by MCS and EI can be handicapped under the meaning of the Act.

 

[Directive GME 0009 — March 5 1992 memo (the Directive) from Associate General Counsel for Equal Opportunity and Administrative Law to Frank Keating, General Counsel on MCS/EI as handicaps]

. . . we conclude that MCS and EI can constitute handicaps under the Act. Our conclusion is consistent with the weight of both federal and state judicial authority construing the Act and the interpretation of other Federal agencies [such as Social Security and Department of Education]. The Civil Rights Division of the Department of Justice has also informed us that it believes MCS and EI can be handicaps under the Act. In addition, HUD has consistently articulated this position, and FHEO agrees with our conclusion.

footnote 1: As for any handicap, whether or not a particular complainant is truly handicapped is subject to a case-by-case determination. . . . [credible and objective evidence needed to substantiate any claimed handicap.] . . . The Act requires only that reasonable accommodations in rules, policies, practices, or services be made when such may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas. . . ..

[…]

At least one court has accepted the following definition for MCS:

[A]n acquired disorder characterized by recurrent symptoms, referable to multiple organ systems, occurring in response to demonstrable exposure to many chemically unrelated compounds at doses far below those established in the general population to cause harmful effects. No single widely accepted test of physiologic function can be shown to correlate with symptoms.

[NOTE that this definition is the basis for GME-0009’s understanding of MCS. According to this definition, MCS is a disorder characterized by symptoms, affecting multiple organs systems at very low exposures to chemicals. The fact that there is no widely accepted physiological test included in the definition of MCS as a handicap. HUD’s 1992 Directive recognizes MCS as a handicap on the basis of symptoms, and assumes the absence of any widely accepted test. HUD’s 1992 Directive does not require any medical documentation or any specific medical (physiological) tests, and the presence, absence, validity, or invalidity of an MCS-handicapped person’s medical records is not a factor in defining MCS as a handicap under the Fair Housing Act.]

Footnote 3: [In the absence of a clear medical definition of MCS, some] attribute the purported symptoms of MCS to a psychological problem or to other physical causes, rather than to chemical sensitivities. . . . However, under the Act, a handicap may be either physical or mental. Accordingly, even if MCS was a psychological or mental impairment, rather than a physical one, a person with MCS would still be afforded full protection under the Act, so long as that condition substantially limited one or more of his or her major life activities, or the person had a record of such an impairment, or was regarded as having such an impairment. 42 U.S.C [Sec] 3602(b); 24 C.F.R. [Sec] 100.201

[Section] II. MCS and EI Generally Meet the Statutory and Regulatory Definition of Handicaps.

Subsection 802(h) of the Act defines handicap as follows:

(h) Handicap means, with respect to a person —

(1) a physical or mental impairment with substantially limits one or more of such persons major life activities,
(2) a record of having such an impairment, or
(3) being regarded as having such an impairment [except for addictions to controlled substances]

[NOTE that HUD’s civil rights definition of handicap (disability in other sources) does not require medical documentation of a handicap, particularly under items (2) and (3). Also refer to HUD/DOJ 2004 Joint Statement of Reasonable Accommodations Under the Fair Housing Act (items 16 through 18), supporting other forms of verification such as the person’s own statements and/or the statement of a reliable third party. No medical records are required to establish a civil rights handicap under the Fair Housing Act.]

[…]

. . . the determination of whether any particular condition constitutes a handicap necessarily involves a case by case determination of all facts and circumstances relevant to whether the condition meets the Acts definition. . . . our understanding of the usual effects of MCS and EI is that persons with these conditions generally meet the Act’s definition of persons with a handicap.

[…]

[Courts, administrative agencies, and HUD] have found persons with MCS and EI to have a physiological disorder or condition, which, upon exposure to certain substances, causes the person to suffer substantial impairment of various body systems. [Including but not limited to neurological, musculoskelatal, special sense organs, respiratory (including speech organs), hemic, digestive, immunological.]

[Major Life Activities defined by HUD regulations:]

Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. 24 C.F.R. 100.201

People with MCS and EI can have one or more major life activities affected by their condition. [Including but not limited to: working, speaking, breathing, caring for themselves; performing manual tasks – may be substantially impaired by chronic fatigue and the need to avoid exposure, they are often bed-ridden, walking, seeing, hearing, learning]

[NOTE that the need to avoid exposure is acknowledged here as a substantial impairment of major life activities under the heading of caring for themselves/performing manual tasks.]

[…]

Persons with MCS and EI may be substantially limited in major life activities due to their handicap. For such persons, exposure to a variety of common substances may cause them significant limitations to their major life activities, such as those listed, supra, . . .. Moreover, due to the frequency that ordinary living normally brings people into contact with the commonly found substances to which persons with MCS and EI typically react, persons with these disabilities may be severely constrained in their daily living and must make major adjustments to avoid exposure. Since it is critical that people with MCS and EI minimize their exposure to common substances found in or near most housing facilities, they generally face a significantly limited choice of housing.

[NOTE that HUD recognizes the MCS-handicapped person’s “critical” need to “minimize their exposure” to chemicals, and that this ‘critical need’ causes the MCS-handicapped to be “severely constrained in their daily living”, making “major adjustments to avoid exposure”. HUD then recognizes that MCS-handicapped persons “generally face a significantly limited choice of housing” due to their handicap — because that handicap requires them to avoid exposure to chemicals.
[Review of court cases omitted here.]

[NOTE cont’d: I would submit that there is only one specifically MCS-related Fair Housing Act Reasonable Accommodation ever needed by those with MCS: A practical acknowledgement that the MCS-handicapped person’s critical health-and safety need to avoid chemical exposure outweighs a landlord’s business need to introduce chemicals into that person’s living space. Housing that is ordinarily ‘safe enough’ to allow an MCS-handicapped person ‘equal opportunity to use and enjoy a dwelling’ can instantly become a toxic prison with the landlord’s introduction of chemicals into such a tenant’s environment. If HUD’s recognition of MCS as a handicap warranting Reasonable Accommodation is to have any meaning at all, it must mean that an MCS-handicapped person has a right to a living space that allows him/her to avoid exposure to chemicals.]

[Section] IV. Legislative History Supports the Conclusion that MCS and EI Can be Handicaps

The Act’s legislative history also demonstrates that Congress intended that the Act’s definition of handicap be broad enough to include MCS and EI. Congress intended that the term handicap, as used in the Act, be interpreted consistently with judicial interpretations of the term handicap, as used in the Rehabilitation Act. In the preamble to the regulations implementing the Act, HUD noted the clear legislative history indicating that Congress intended that the definition of handicap be fully as broad as that provided by the Rehabilitation Act. 24 C.F.R. Subtitle B, Ch. 1, Subch. A, App. 1 at 704 (1991). To support this conclusion, the preamble cited portions of the House Report and floor debate on the Act which reflected Congress’ desire that the two definitions be interpreted consistently. Before Congress passed the Fair Housing Amendments Act, lower federal courts had interpreted the Rehabilitation Act to cover MCS and EI as handicaps.

Statutory construction principles lead us to conclude that, because Congress used substantially the same definition of handicap in the Act as it did in the Rehabilitation Act, Congress intended chemical hypersensitivity to be a handicap under the Act, as courts at that time had determined it to be under the Rehabilitation Act. . . .

[…]

. . . Interpreting the Act’s definition to include persons with MCs and EI is consistent with that Congressional intent.

[…]

. . . HUD had continuted to reaffirm its position that MCS and EI are or can be handicaps. For example, the FHEO provided all regional FHEO Directors a draft technical guidance memorandum dated June 6, 1991, stating that persons disabled by MCS and EI are handicapped within the meaning of the Fair Housing Act and Section 504.

[Note: this technical guidance memo is supposed to be appended to Directive GME-0009 as Attachment C, but is not attached in the pdf file found at http://www.fairhousing.com .]

[…]

As explained above, persons with MCS and EI generally will meet the statutory and regulatory definitions of persons with a handicap. In addition, HUD’s interpretation to date is fully consistent with case precedent, the interpretations of other Federal agencies, and the Acts legislative history.

[Section] VI. Conclusion

MCS and EI can be handicaps under the Act. This position is consistent with the statutory language, the weight of judicial authority, the interpretations of other Federal agencies, and the Act’s legislative history. HUD also has been consistent in articulating this position on prior occasions. Thus, HUD’s current interpretation seems correct, and there appears to be no compelling reason to change it now.

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’

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’

April 17, 2008

More Unilateral Chicanery by ICRC

Filed under: Uncategorized — acitizenprose @ 6:41 pm

(see update below for later thoughts and correction on the term ‘Consent Agreement’))

At 2:30 today, while I was working on my ‘ICRC’s ‘Defense by Proxy’ of Landlord’s Acts’ for posting tonight, the mailman came to my door with a fat certified letter from the Indiana Civil Rights Commission (ICRC). “What are they trying now?” I growled, taking the letter from him. I held the letter up to him and tapped my finger on the return address. “Your tax dollars at work,” I said, “obstructing justice.”

Not knowing what to expect, I finished re-formatting my document before opening the letter. (‘Damn if I’m gonna let them throw me off track again!’ I muttered to myself, typing.) I had committed myself to preparing two documents for posting tonight, and I made sure I accomplished that goal.

When I had finished my document and gotten myself comfortable and prepared to deal with whatever new outrage ICRC was going to throw my way, I opened the letter — and laughed out loud, hard and long, once I understood what they were doing.

They sent me a Consent Agreement!

What makes this so absurd? So many things, it will be hard to explain. A ‘Consent Agreement’ is supposed to be the outcome of meetings involving all the parties in the ‘conciliation’ process (also ‘mediation’ or the ‘ADR’ process [update: see later comments below]). The Consent Agreement I received today was unilaterally drafted by the ICRC Investigator and the Repsondent, obviously with an attorney’s assistance, but WITHOUT INPUT FROM THE COMPLAINANT (which would be me).

Now, the conciliation process is suppsed to include Official Trained Mediators along with the parties, and is supposed to be a process of discussion and negotiaton in which, eventually, the parties come to an agreement — the consent agreement. In the course of the negotiations, the Complainant can set enforceable terms such as civil rights compliance training for the Respondent (including all employees), and even monetary damages. Think any of those things are mentioned in the Consent Agreement I received? Well, gee, folks . . . they aren’t. Imagine that.

I haven’t had the time to give the Consent Agreement a thorough analysis, but here’s what jumps out at me at first glance. If I were to sign this agreement, I would be agreeing :

  • To waive my right to take this case to court (as it stands, I can file a case in Federal court up to two years after ICRC finishes dealing with the case; think I’m gonna give that up?)
  • To withdraw the complaint in this and any other venue (so the ICRC case would stop, as would the Section 504 investigation that’s just beginning)
  • To “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 [which never took place] with any person who is not a party to this agreement.” hahaha. hahahahaha. hahaHAHAHA HAHAHAHAHA!

And what would I get in return for giving up these rights? Well, I wouldn’t have to sign the Service Animal contracts — but I don’t have to sign them anyway, they would be indefensible in an eviction proceeding, particularly now with the nice, new, crisp letter from the Respondent that was included with the Consent Agreement. And the Respondent would no longer impose Service Animal contracts on any resident of the housing complex where I live — although the Respondent’s over 2000 units in 13 complexes in two states aren’t mentioned, and would still be subject to the Landlord’s ‘requirement’ of the contracts. And ICRC — yes, good old reliable ICRC, that bastion in defense of the law! — would be the one to oversee the Respondent’s compliance with the agreement.

Sound like a good deal to you?

Sounds like a good deal for ICRC and the Respondent. ICRC could close the books on a troublesome case, and could submit a bill to the Chicago office for the $2500 bonus that comes with a ‘conciliated’ case. The Respondent gets NO sanctions, no requirement for improvement, and doesn’t have to change a thing that they’re doing.

A note on ‘complete confidence[*]’ above: When one agrees to enter into the conciliation process, the law and regs say that the ‘default’ assumption for the process is that it will be conducted in complete confidentiality, unless both parties sign an agreement rescinding the confidentiality requirement. This is meant to allow free, open discussion without the parties having to worry that something they said might be quoted against them later. However, if new evidence comes to light during conciliation, the parties and the agency may investigate further based on something that is said, and if that investigation produces new evidence, that evidence is admissable. But this part of the Consent Agreement goes further than that. This part of the Consent Agreement, in effect, would have me agree to a ‘gag order’ — to never say or write anything about this case to anyone, ever again.

Think that’s gonna happen?

A few more important points before I finish this rant: First, I NEVER AGREED TO ENTER THE CONCILIATION PROCESS — in fact, I declined to participate, verbally (two events in May 2007) and in writing (June or July 2007, also included in my December 2007 appeals packet). Second, my most important reason for declining participation in the conciliation process had to do with the requirement that I give up (limit) my Freedom of Speech — which, for me, is a genuine matter of conscience (and matters of conscience share equal protection with Freedom of Religion in the Indiana Constitution). I informed my attorney, verbally and in writing, that I didn’t think conciliation was appropriate for this case, and that even if I were to consider conciliation, the first step would have to be having both parties sign a non-confidentiality agreement, because I cannot in conscience give up or limit my divinely-given, inherent Right to Free Speech.

So what good came out of this Consent Agreement, besides 45 minutes of good, gut-shaking laughter? That nifty little letter from the Landlord that means I never have to worry about a Service Animal contract, or the threat of eviction because of my Buddy, ever again. I got that for free, without signing their bogus Consent Agreement. And I got a perfectly wonderful reason to email the new ICRC Director, Tony Kirkland, to introduce him to the irregular performance of the department he’s just inherited from recently (and mysteriously) retired Director Gregory Kellam Scott. And (she said, rubbing her hands together with glee) I get to go back to 24 CFR and find out just how much of an infraction it is for ICRC to produce a ‘Consent Agreement’ without the knowledge or participation of the Complainant — which will come in handy as I try to go after ICRC’s certification in order to force HUD/FHEO to enforce ICRC’s compliance with Federally-established performance standards. So all in all, it’s been a good day.

And one last note on ‘Unilateral Chicanery’ in my title: Why ‘unilateral’ if two parties were involved (ICRC and Respondent)? Beause they are ‘one side’ (unilateral), one in their shared actions to evade the law, rather than observe it. And ‘chicanery’? Well, the word just occurred to me, so I put it in — then I looked it up in my old Webster’s —

Chicanery: deception by artful subterfuge or sophistry; trickery; a piece of sharp practice (as at law); trick

Hmmm. A bogus contract, drawn up by people on the government payroll, mailed at tapayer’s expense to a Complainant, in the hopes that she will be sufficiently intimidated by A Big Official Document Coming By Certified Mail that she will sign away her rights and sign herself into permanent enforceable silence about a HUD Project-based Section 8 Landlord’s violations of the Fair Housing Act and about the state HUD enforcement agency’s apparent malfeasance. And the agency can get a bonus of more Federal money if she signs.

Yep. Sounds like chicanery to me.

— Update, later the same evening —

I’ve settled down somewhat from the emotional tsunami that came as a result of that letter — a combination of outrage at the audacity of a unilaterally-produced ‘Consent Agreement’ and of relief that the letter didn’t contain something worse.  As the evening has worn on and I’ve had time to reflect, I’ve discovered some further sobering considerations.

There’s a real possibility that ICRC could use their ‘Consent Agreement’ to make it seem as though I’ve agreed to a document that was created without my knowledge, involvement, or consent.  ICRC has already ‘invented’ evidence (and yes, I can substantiate that).  So what’s to stop them from waving this Consent Agreement around and using it as ‘evidence’ to support a false position that ‘the case was resolved by agreement’?  Frankly, given some of the things they’ve done so far in this case, I wouldn’t put it past them.

The other troubling thing is this:  Throughout the post above, I described the term ‘Consent Agreement’ as though it is the final result of the conciliation process.  This is because I haven’t read the laws or regulations surrounding conciliation since last summer, after I decided that I wouldn’t engage in the process.  I remembered that the conciliation process ended with a ‘Something Agreement’.  Since today’s document contains some elements that would be seen in an actual conciliation agreement, but is titled ‘Consent Agreement,’ I mistakenly assumed that the document I received today was a result of a one-sided, bogus ‘conciliation’ process that excluded me.

Now I’m guessing that I was intended to think that.

I’ve just re-read the portions of 24 CFR and of the Indiana Code dealing with the concililation process.  Both Federal and State law define the term ‘conciliation agreement’ (as, of course, the final product of conciliation).  Neither the State nor the Federal Fair Housing Act laws contain the term ‘Consent Agreement’.  And both levels of law define the conciliation agreement as a document that must be made public.

If I *had* agreed to engage in the conciliation process, and if the Respondent’s attorney had drafted a preliminary example of what s/he’d like the final agreement to look like, that draft would probably look just like the Consent Agreement I received today from ICRC.  The ‘gag order’ portion of the draft document (see above) would have been stricken from the document immediately — probably by the mediator, and certainly by myself or my attorney.

ICRC’s authority is defined and limited by Federal and State law.  ICRC has the authority to produce a ‘conciliation agreement’ at the end of a valid conciliation process.  ICRC does not have the authority to produce a ‘consent agreement’.

I’ve written elsewhere about ICRC’s investigator presenting a ‘defense by proxy’ on behalf of the Respondent.  In this Consent Agreement, ICRC staff has acted, at taxpayer’s expense, as the Respondent’s attorney.

And this just leaves me speechless.

 

April 16, 2008

ICRC Director resigns

Filed under: Uncategorized — acitizenprose @ 7:05 pm

The office of Indiana Governor Mitch Daniels has announced that Gregory Kellam Scott has resigned from his position of Director of the Indiana Civil Rights Commission (ICRC), effective April 4 2008. Scott, who will be replaced by Tony Kirkland, has been hired by Ivy Tech to direct ‘diversity and community relations’. Here’s a bit from the announcement released by Daniel’s office —

http://www.in.gov/rde/xfw/in_pre/hs.xsl/17559.htm

[Tony] Kirkland, formerly of Evansville, has served as the governor’s senior advisor on minority affairs since Daniels took office in January 2005. In that role, he meets with minority groups throughout the state to discuss issues of concern and how the state can assist.

Scott, who was appointed to his post in February 2005, has accepted a position with Ivy Tech Community College. He came to Indiana after a long and distinguished legal career, including seven years as a member of the Colorado Supreme Court. During his tenure, the Civil Rights Commission has cut in half the length of time needed to bring discrimination investigations to a close. Because of the reduction, the state has submitted closed cases to federal contract agencies in a timely manner, resulting in receipt of more federal funds.

[…]

Scott’s resignation was effective on April 4, and Kirkland has begun his new duties.

***********

What interesting timing. ICRC’s Deputy Director Christine Cde Baca left her employment sometime between mid-December and the end of February, and now the Director is gone — a month to the day after I sent my March 4 ‘Year-End Review’ to him (and to Kim Kendrick, Kenneth J. Carroll, Maurice J. McGough, and Barbara Knox, all in Scott’s HUD/FHEO ‘upline’). Any connection there? No way of knowing. But Scott’s move to Ivy Tech seems like one more step down in his career ladder — the position will likely be as a public relations figurehead.

And this changes the complexion of the instructions I received from Region V FHEO official Hollie Boyd, who told me to restrict my further communications about my case to ICRC supervisor Henrietta Poindexter. I wrote yesterday that Boyd (as part of Carroll’s attempt at Shutdown) was using his Authority to direct my communications to the lowest-level, most powerless person in the HUD/FHEO/ICRC chain of command. That’s still true. But now it appears that Poindexter is, in effect, heading the operation as ICRC’s most senior member.

Hmmm. Looks like I get to introduce new Director Kirkland to the interesting case he has inherited. And it looks like time to get my ‘Year-End Review’ re-formatted for posting.

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’

April 14, 2008

FHEO responds

Filed under: Uncategorized — acitizenprose @ 8:47 pm

THREE emails from FHEO officials in my inbox this evening!  And I’m not sure I want to open any of them! All sent this morning, about an hour apart, starting with Kenneth J. Carroll at 9:27, then two from different FHEO officers lower down in the food chain — one from Indianapolis or Columbus IN, the second out of the Chicago (Region V) office but has a satellite office in Columbus.

( . . . reading emails . . .)

Well, as one would have guessed, two of the emails were (supposed to be) a total shutdown. The third was an initial contact from the newly assigned Section 504 investigator.

Carroll made a point of doing a shutdown on the ‘reactivation’ issue — however, he’s not in the chain of delegation for that portion of 24 CFR.

I’m not going to deal with any of that right now, since I came online with other things to do tonight. I’ll give Carroll one more go-round, just for the fun of it, before addressing the reactivation issue with the people who *are* in the chain of delegation for it. The mid-range FHEO official just referred me back to ICRC — I’ll ignore him (or send him my rebuttal documents!). The Section 504 investigator will learn about my need for written communication as a reasonable accommodation (reasonable modification in ADA terms). But not now.

Spending time this evening learning more about using WordPress. Just entered Street Prophets in my blogroll. Easy!

April 13, 2008

‘Street Prophets’ Sun April 13 2008

Filed under: Uncategorized — acitizenprose @ 1:53 pm

One website I visit daily is http://www.streetprophets.com — I’ll put a link in my blogroll when I figure out how. The have open threads called (usually) ‘Coffee Hour,’ and here’s what I posted there today —

Getting a start on my civil rights blog — actually a combination blog/website at WordPress.com.

A few days ago I made a committment to myself to post here from time to time about my progress with this effort, as a way of breaking my isolation and connecting with a community. I was surprised this morning to come online to find that SP’s own vesticular had stopped by and left me a comment. Thanks, vesticular!

I’m creating the website to document my experience with HUD’s (non)enforcement of civil rights under the Fair Housing Act. Little by little, I’ll be posting a year’s worth of documentation related to my case. I’ll also be creating pages based on reports from the GAO and the National Council on Disability, which will help me demonstrate that the roadblocks to justice that I experienced ‘aren’t a glitch, they’re a feature’ of HUD civil rights ‘enforcement’.

In the last few days, I learned that all my existing documents will have to be entered into a ‘Desktop Client’ as plain text, then completely reformatted before posting. I’m using wbloggar (it’s freeware), which posts directly to the ‘posts’ side of WP, rather than to the ‘pages’ (ie static webpages) side of WP. So last night I figured out how to transfer the re-formatted posts to the ‘pages’ side, how to get the pages into the order I want, and how to ‘nest’ pages. Then I posted two documents which I had re-formatted yesterday morning.

That was a big day’s work for me, given my disabilities, and in between computer sessions I made pea soup and biscuits, which I’ll be enjoying (along with egg salad) for the next couple of days. While cooking, I noticed that my carrots are starting to grow, and thought I’d make a carrot-almond soup next.

Well, thanks for listening. And if you’d like to stop by and check out my website, it’s https://acitizenprose.wordpress.com.

April 11, 2008

Learning Curve

Filed under: Uncategorized — acitizenprose @ 10:01 pm

Well, I’m on a learning curve relative to WordPress.  I had been cut/pasting existing documents straight from my word processor into the WP editor, and getting lots of strange formatting changes as a result.  Learned from a Help FAQ that I needed to ‘Desktop Client’.  Now I will have to enter my existing into wbloggar as plain text, then reformat before transferring to WP.

Spent some time tonight deleting messed-up posts — as yet unpublished, at least! — and rearranging my Home page (now static, I hope) and my Posts page.  My only real reason for writing this post is to test that arrangement.)  Last time I looked, however, I now have two ‘home’ pages, both with the same text — and the FAQ on ‘two Home pages’ doesn’t seem to apply to the theme I’m using.  Oh well!  It will all come out in the wash, sometime!

April 9, 2008

A quick summary of the situation

Filed under: Uncategorized — acitizenprose @ 9:11 pm

Yesterday I posted a static page here — my April 8 2008 email to HUD/FHEO’s Kim Kendrick, Kenneth J. Carroll, Lynn Grosso, and others (see sidebar).  Amusingly, all three of those mentioned are out of the office for at least a week, Grosso for the full month of April — April is National Fair Housing Month, you see, and they all have Places to Go, People to Meet.  But Kim Kendrick’s email autoreply kindly reminded me: ‘Fair Housing — it’s not an option, it’s the law!’

Nice motto, Kim.  Here’s hoping you’ll make the Indiana Civil Rights Commission, and all of HUD/FHEO’s FHAP (investigation/enforcement) agencies put it into practice .  Making sure they take the time to actually include evidence in the case file would be a good place to start.

Also yesterday, someone at dKos (www.dailykos.com) posted a diary on disabilities.  I posted a comment or two, and included a link to my Kendrick/Carroll email.  The diarist responded with all the usual suggestions — basically boiling down to, ‘can you get an attorney, or find an advocacy group to pursue this for you?’  Well, the answer to that is — of course not! — I live in Indiana.  The diarist also focused his response to me around the issue of having a service animal — which is only one aspect of the case.  That led me to write another comment, which seems like such a nice summary of the situation that I’ll include it here:

 The case has become two issues —

The first issue, the case itself, is pretty straightforward, particularly in light of the HUD ALJ decision in Sec v Country Manor (2001). The Respondent’s (Landlord’s) documents (service animal contracts) are direct documentary evidence of imposing ‘terms and conditions of residency’ on a sub-class of protected tenants. This direct evidence, along with every other piece of substantive evidence, has been excluded from the case file by the Indiana Civil Rights Commission.

The larger issue here is the Indiana agency’s indifference to the case-handling requirements spelled out in 24 CFR — requirements which are the basis for their certification as a FHAP (enforcement) agency, as well as for their authority and their funding. The Indiana agency is treating the Federal law and regulations as optional — and the Regional and Federal levels of HUD/FHEO appear to be supporting them in this.

In recent years, the GAO published several reports on HUD/FHEO enforcement, and the National Council on Disability (NCD) released a report (‘Reconstructing Fair Housing’). All of these reports focused on the fact that there is no uniform nationwide enforcement of the Fair Housing Act — enforcement varies widely by Region, state, and locality. Thus any indivdual’s rights depend on where s/he lives, rather than on the Federally-defined standards.

So this is really not about service animals — or even about my personal rights. It is about the right of every citizen who is a member of a Fair Housing Act protected class to expect that any complaint they may bring will be investigated fairly and completely as the law and regulations describe.

****End of dKos post

Anne E. here.  Just in passing, I’ll mention that I didn’t originally intend to use this WordPress site as a blog — I had intended it as a website, a collection of static pages chronicling this last year’s mis-handling of my Fair Housing Act civl rights complaint by the Indiana Civil Rights Commission (ICRC).  I’ll continue to work on posting, as static pages, all the evidence I have in my possession — most of which was excluded from the case record by the ICRC.  I’ll also begn to include pages about the laws and regulations that the ICRC is supposed to comply with while investigating civil rights complaints.  This will be a slow and laborious process, but I’ve become convinced that it’s my obligation as a citizen to make the handling of my case public, as a way of beginning to educate the public about how HUD/FHEO’s civil rights enforcement process is supposed to work — as opposed to how it works in the ‘real world’.

 

 

December 9, 2007

My pupose here —

My purpose here, as Annie Citizen Pro Se, is to exercise my First Amendment right to Freedom of Speech.  I believe I have both a moral obligation and a civic duty to make public the details about how my Disability Civil Rights case has been handled by the Indiana Civil Rights Commission (ICRC).

State and local agencies like ICRC were created under the Fair Housing Act (FHA) to investigate civil rights complaints and enforce the civil rights laws spelled out in the FHA.  When a civil rights complaint is received by an agency like ICRC (or referred to them by the HUD Regional Office — in this case, the Chicago hub), the agency is supposed to investigate all relevant facts and come to a determination (a ‘Finding’) of  ‘reasonable cause’ or of  ‘no reasonable cause’.  The Finding is supposed to be based on all available facts (‘the totality of facts’, one source says) and is supposed to determine if (1) the evidence  supports the possibility that a civil rights violation may have occurred and (2) the evidence is strong enough that the case would be accepted in a state or Federal Court.

Yes, friends, there will be lots of this kind of legal language on this blog.  So why should you care?  One reason is — anybody can become disabled, and when you become disabled you *need* to have your civil rights protected.  But the bigger reason is this:  If the handling of my case is an example of ‘HUD civil rights enforcement’ — then no one in America has the civil rights spelled out in the Fair Housing Act.

I could begin at the beginning, I suppose — landlord did this, landlord did that, and so on.  But my intention in this blog is to make public the terribly flawed procedures used by the Indiana Civil Rights Commission in my Disability Civil Rights case.  With that as my intent, it makes more sense to start off right in the middle — by showing you the list of evidence omitted by ICRC when they made the Finding on my case.  So that memo — with a list of omitted evidence that runs a page-and-a-half long, with small print and wide margins — was my first post here.  This explanation is my second.  As time goes on, I will post every bit of that omitted evidence here.

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