PHADA comments on one-strike proposed rule
The following are PHADA's official comments on the proposed rule for "One-Strike Screening and Eviction for Drug Abuse and Other Criminal Activity." The proposed rule was published in the July 23, 1999 Federal Register. Refer to the September 13 edition of the Advocate for an overview of the one-strike proposed rule.
PHADA appreciates the opportunity to submit comments to the Department on the proposed rule for amending screening and eviction regulations covering the Section 8 and public housing programs.
Our comments focus on the provision requiring PHAs to provide, at the Section 8 project-based owner's request, information regarding criminal conviction records of applicants and residents of the owner's property (24 CFR 5.902 (f)). Under this provision, "An owner of a unit with Section 8 project-based assistance that is located in a PHA's jurisdiction may request that the PHA obtain criminal conviction records of a household member from a law enforcement agency. The PHA must review the records on the owner's behalf..." and "...must determine whether criminal activity as shown by any criminal conviction record received from a law enforcement agency may be a basis for prohibiting admission in accordance with HUD regulations and the owner criteria."
While we recognize that this provision is drawn from section 575 of the Quality Housing and Work Responsibility Act of 1998 (QHWRA) that requires PHAs to "perform determinations for the owner regarding screening, lease enforcement, and eviction based on criteria supplied by the owner," we nevertheless are concerned about the potential legal risks that such a requirement places on PHAs.
To mitigate against these risks, we suggest that the rule make clear that the owner is ultimately responsible for making the final decision to admit or deny admission to an applicant for housing. Additionally, we would like to see language added that clarifies that the owner is responsible for conducting any informal hearings or grievance proceedings regarding admission denials. If this is not made clear, the PHA may become embroiled in disputes between owners and applicants regarding the owner's admission policies.
We are also concerned about the potential for legal actions that could arise against PHAs if an owner's policies are not in compliance with regulations, state or local laws, or if the owner's policies are found to discriminatory. The rule should specifically hold PHAs harmless from legal actions directed at the owner because of the owner's policies, actions, or inactions. In addition, we would like to see the rule clarify that it is HUD's responsibility, not the PHA's, to review and evaluate the legality and compliance of the owner's screening and eviction policies.
Finally, the association would like to see the rule specifically hold PHAs harmless regarding the owner's use or misuse of criminal records that the PHA must release to the owner in accordance with 5.902 (8). Once the records are released to the owner, the PHA has no control over their eventual use or destruction and the PHA should be exempted from any subsequent legal actions directed against the owner.
