21.0 GRIEVANCE/HEARING PROCEDURES
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1 Chapter GRIEVANCE/HEARING PROCEDURES 21.1 PURPOSE AND SCOPE The purpose of this document is to set forth the requirements, standards and criteria for a grievance procedure and to assure that IHFA tenants are afforded an opportunity for a Hearing if the tenant disputes, within a 10-day period, and Association action or failure to act involving the tenant s lease or IHFA regulations which adversely affect the individual tenant s rights, duties, welfare or status. This procedure is incorporated in IHFA s lease by reference APPLICABILITY This procedure shall be applicable to all individual grievances between the tenant and IHFA, except for the following: 1. Any grievance concerning an Eviction or Termination of Residency based on the tenant s criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises of other tenants or IHFA employees shall be excluded. 2. Any grievance concerning an Eviction or Termination of Residency based on any drug-related criminal activity on or near such premises shall be excluded. HUD has determined that the Idaho law with respect to an action for unlawful detainer in the Idaho District Courts provides that the tenant has the opportunity for a pre-eviction hearing which meets the elements of due process in 24 CFR (c). Since enactment of the NAHA, IHFA is not required to give the tenant the opportunity for an administrative grievance hearing on the proposed eviction if any household member engages in a drug-related criminal activity or make a criminal threat to the health or safety of PHA tenants or employees. Thus, in Idaho, IHFA evicts tenants who engage in such activities in accordance with Idaho Law DEFINITIONS 1. Grievance shall mean any dispute which a tenant may have with respect to IHFA action or failure to act in accordance with the individual tenant s lease or IHFA regulations which adversely affect the individual tenant s rights, duties, welfare, or status. 2. Complainant shall mean any tenant whose grievance is presented to IHFA or at the project management office in accordance with 24 CFR and 24 CFR (a). 3. Elements of due process shall mean an eviction action or a termination of tenancy in a State or local court in which the following procedural safeguards are required: a) Adequate notice to the tenant of the grounds for terminating the tenancy and for eviction; 21-1
2 b) Right of the tenant to be represented by counsel; c) Opportunity for the tenant to refute the evidence presented by IHFA including the right to confront and cross-examine witnesses and to present any affirmative legal or equitable defense which the tenant may have; d) A decision on the merits. 4. Hearing Officer shall mean a person selected in accordance with 24 CFR of this subpart to hear grievance and render a decision with respect thereto. 5. Tenant shall mean the adult person (or persons)(other than a live-in aide); a) Who resides in the unit, and who executed the lease with IHFA as lessee of the dwelling unit, or, if no such person now resides in the unit, b) Who resides in the unit, and who is the remaining head of household of the tenant family residing in the dwelling unit INFORMAL SETTLEMENT OF GRIEVANCES Any grievance shall be personally presented either orally or in writing to IHFA office so that the grievance may be discussed informally and settled without a hearing. A summary of such discussion shall be prepared within ten (10) days, and one copy shall be given to the tenant and one copy shall be retained in IHFA s tenant file for three (3) years. The summary shall specify the names of the participants, dates of the meeting, the nature of the proposed disposition of the complaint and the specific reasons therefore, and shall specify the procedures by which an Informal Review/Hearing may be obtained if the complainant is not satisfied INFORMAL REVIEWS An applicant is eligible for an Informal Review after receiving a written notice of a decision denying assistance to the applicant, including a decision denying a position on the waiting list or participation in the Low Rent Public Housing Program (LRPH). An applicant is NOT eligible for an Informal Review regarding decisions which IHFA has made concerning discretionary administrative determinations, to consider general policy issues or class grievances, or IHFA s determination of the number of bedrooms the family is eligible to occupy according to the standards established by IHFA.21.6 INFORMAL HEARINGS A program participant is eligible for an Informal Hearing if IHFA has made a determination in the following cases: The amount of the Total Tenant Payment or Tenant Rent; A decision to deny or terminate assistance on behalf of the participant; The participant family is residing in a unit with a larger number of bedrooms than appropriate under IHFA s standard. To deny a family s request for an exception from the standards. 21-2
3 All grievances shall be personally presented either orally or in writing pursuant to the informal procedure prescribed in 24 CFR as a condition precedent to a Hearing. However, if the complainant can show good cause why he failed to proceed in accordance with 24 CFR , the provision of an informal conference as a condition precedent for a hearing may be waived by the Hearing Officer. The complainant must submit a request for a hearing to IHFA within ten (10) days after receipt of the summary of discussion pursuant to 24 CFR The written request must specify: 1) The reasons for the grievance; and 2) The action or relief sought. After filing a request for Settlement of Grievances or Hearing, the family, or with written authority, its representative, shall have the right of access to and a reasonable opportunity to examine any files and records of IHFA which will come before the Hearing. These documents include the family s file, all regulations of IHFA and non-privileged documents and records that are relevant to the issues to be raised PROCEDURE OT OBTAIN A HEARING The complainant shall submit a written request for a Hearing to IHFA within ten (10) days after receipt of the Summary of Discussion pursuant to the paragraph above. The written request shall specify: 1. The reasons for the grievance; and 2. The action or relief sought. Grievances shall be presented before a Hearing Officer. Hearing Officer: The Hearing Officer will be appointed by the Senior Vice President, Community Housing Services. The resident organization (if applicable) will be consulted regarding the Hearing Officer; however, IHFA retains the ultimate authority for the decision. The Hearing Officer will not be a person directly involved in the day-to-day administration of the housing assistance programs as it relates to a specific participating family or owner. The designee may be another IHFA employee. The Hearing Officer will be assigned with the task to compile the findings of fact and render a final decision on a contested case. No staff member who participates in the making of the decision at the Hearing will have participated in the initial determination, or have suggested any action in connection with the case or the specific controversy that may culminate in a case involving the same party. Any individual subject to the authority, direction or under the supervision of any person who participated in the initial determination or who suggested any action be taken in connection with the case of a pending factually related case involving the same parties shall not be a Hearing Officer. 21-3
4 21.8 FAILURE TO REQUEST A HEARING If the complainant does not request a Hearing in accordance with the procedure, then IHFA s disposition of the grievance under the informal settlement as herein described shall become final. Provided that failure to request a Hearing shall not constitute a waiver by the complainant of his right thereafter to contest IHFA s action is disposing of the complaint in an appropriate judicial proceeding HEARING PRE-REQUISITE All grievances shall be personally presented either orally or in writing to IHFA as a condition precedent to a hearing under this section. Provided that if the complainant shall show good cause why he failed to proceed in accordance with the procedure to the Hearing Officer, then the provisions of this subsection may be waived by the Hearing Officer ESCROW DEPOSIT Before a Hearing is scheduled in any grievance involving the amount of rent which IHFA claims is due, the complainant shall pay to IHFAIHFA an amount equal to the amount of rent due and payable as of the first of the month preceding the month in which act or failure to act took place. The complainant shall thereafter deposit the same amount of the monthly rent in an escrow account monthly until the complaint is resolved by decision of the Hearing Officer. These requirements may be waived by IHFA in extenuating circumstances. Unless so waived, the failure to make such payments shall result in termination of the grievance procedure provided that failure to make payment shall not constitute a waiver of any right the complainant may have to contest IHFA disposition of his grievance in any appropriate judicial proceeding SCHEDULING OF HEARING Upon complainant s compliance with this section, a Hearing shall be scheduled by the Hearing Officer within a minimum of ten (10) and a maximum of thirty (30) days for a time and place reasonably convenient to both the complainant and IHFA. Auxiliary aids, as requested, will be provided to individuals with disabilities. A written notification specifying the time, place, and procedures governing the hearing shall be delivered to the complainant and the appropriate IHFA official PROCEDURES GOVERNING THE HEARING 1. The Hearing shall be held before a Hearing Officer. 2. The complainant shall be afforded a fair hearing providing the basic safeguards of due process which shall include: a) The opportunity to examine before the Hearing and, at the expense of the complainant, to copy all documents, records and regulations of IHFA that are relevant to the Hearing. Any document not made available after request by the complainant may not be relied on by IHFA at the Hearing. 21-4
5 b) The right to be represented by counsel or other person chosen as his or her representative. c) The right to a private Hearing unless the complainant requests a public Hearing. d) The right to present evidence and arguments in support of his or her complaint, to controvert evidence relied on by IHFA, and to confront and cross-examine all witnesses on whose testimony or information IHFA relies; and e) A decision based solely and exclusively upon the facts presented at the Hearing. 3. The Hearing Officer may render a decision without proceeding with the Hearing if the Hearing Officer determines that the issue has been previously decided in another proceeding. 4. If the complainant or IHFA fails to appear at a scheduled Hearing, the Hearing Officer may make a determination to postpone the Hearing for not to exceed five (5) business days or may make determination that the party has waived his/her right to a Hearing. Both the complainant and IHFA shall be notified of the determination by the Hearing Officer. A determination that the complainant has waived his/her right to a Hearing shall not constitute a waiver of any right the complainant may have to contest IHFA s disposition of the grievance in an appropriate judicial proceeding. 5. At the Hearing, the complainant must first make a showing of an entitlement to the relief sought and thereafter IHFA must sustain the burden of justifying IHFA action or failure to act against which the complaint is directed. 6. The Hearing shall be conducted informally by the Hearing Officer and oral or documentary evidence pertinent to the facts and issues raised by the complaint may be received without regard to admissibility under the rules of evidence applicable to judicial proceedings. The Hearing Officer shall require IHFA, the complainant, counsel and other participants or spectators to conduct themselves in an orderly fashion. Failure to comply with the directions of the Hearing Officer to obtain order may result in exclusion from the proceedings or in a decision adverse to the interest of the disorderly party and granting denial of the relief sought, as appropriate. 7. The complainant or IHFA may arrange, in advance and at the expense of the party making the arrangement, for a transcript of the Hearing. Any interested party may purchase a copy of such transcript. 8. IHFA will provide reasonable accommodation including a signer, audio or visual aids, an interpreter or other aids as requested by the participants, to allow persons with disabilities to participate in the Hearing DECISION OF THE HEARING OFFICER 1. The Hearing Officer shall prepare a written decision, together with the reasons therefore, within thirty (30) days of the Hearing. A copy of the decision shall be sent to the complainant and IHFA. IHFA shall retain a copy of the decision in the tenant s file. A copy of such decision, with all names and identifying references deleted, shall also be maintained on file by IHFA and made available for inspection by a prospective complainant, his/her representative, or the Hearing Officer. 21-5
6 2. The decision of the Hearing Officer shall be binding on IHFA which shall take all actions, or refrain from any actions, necessary to carry out the decision unless IHFA Board of Commissioners or their designee, determines within a reasonable time, and promptly notifies the complainant of its determination, that: a) The grievance does not concern IHFA action or failure to act in accordance with or involving the complainant s lease on IHFA regulations, which adversely affect the complainant s rights, duties, welfare or status. b) The decision of the Hearing Officer is contrary to applicable Federal, State or local law, HUD regulations or requirements of the annual contributions contract between HUD and IHFA REVISIONS TO GRIEVANCE/HEARING POLICY IHFA shall provide at least 30 days notice to tenants and resident organizations (if applicable) setting forth proposed changes in the lease including the Grievance/Hearing policy used by IHFA and shall provide them with the opportunity to comment. Comments submitted shall be considered before formal adoption of new policies. 21-6
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