DHCD Lawsuit Dismissed

DHCD Lawsuit Dismissed

Resource Person:

Douglas Quattrochi - Doug

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All right, our update for August 1st, we’ll review the DHCD lawsuit, which has been dismissed but the story is not over yet because we will be filing a motion for reconsideration and an appeal.

What’s the big deal? Many of you may not yet know, MassLandlords is in litigation against the Department of Housing and Community Development related to pandemic rental assistance. The Department got $1 billion round numbers of rental assistance, not all of that was to be paid out to renters and landlords, but most of it was. Some of it was for administration, and the regional administering agencies, the agents of the department, received 151,000 applications for help through January 2022. Date is a little bit out of date, but that’s where the litigation really got going, so that’s the data point we’ll stick with.

One hundred fifty-one thousand applications. A lot of households in Massachusetts needed help. The state approved 61,142 as of that date for a total expenditure of $460 million; that’s a fantastic achievement. Our rental assistance safety net never did so well; however, 90,000 applications were not approved.

When we looked into this and we say, well how many of these were fraudulent or people who were not eligible, we think at most 15 percent were denied for cause and that’s not our estimate. That’s we, as in the State, as in people on Zooms telling us how likely fraud is in these different scenarios, it’s not many. That means 75,000 households who asked for help during the pandemic did not get it and failed to get it for a bogus reason. To make matters worse, when we asked the State to go in and look at these applications, they couldn’t find 47,000 of them. They’re lost to supervision among the regional administering agencies in bunker boxes, printed out, or received on paper in the first place but either way not digitally accessible.

The State has said that it will take 40 people working for a month to find these records and it will cost $200,000 records in mailing costs to notify people about it, they say they can’t afford it. But at the same time, they’re spending $800,000 to litigate fraud, which is as I’ve demonstrated, is a much smaller percentage of the total applications received, 10 percent versus maybe 30 percent that have gone missing.

MassLandlords had a hearing on this, June 15th. These are a public record and subject to the Public Records Law, but the State is saying partly because they don’t want to do the work that’s there’s privacy concerns involved here.

Now note, MassLandlords is not asking for the name of a single applicant. We’re only asking for the address of housing provider’s service that was supposed to be rendered, so not knowing who lives there anymore especially if they were evicted, we can’t match that up to renter names. But despite our very limited request, the judge dismissed our case. This just happened.

All right, so what does this mean exactly? I can show you the motion to dismiss, MassLandlords vs Department of Housing and Community Development, and it says, “The complaint is hereby dismissed.” This doesn’t end it, but I will just show you briefly what the judge has said here.

The judge has said a whole bunch of stuff supporting the State’s contention that privacy is at stake, and there may be some privacy concerns for some folks, but the main thing is, privacy has to be balanced against public interest, and the judge completely dismissed MassLandlords’ public interest claims.

She wrote, “MassLandlords has not described how, once it matches an address provided by the Department to a name involved in a summary process action.” We’re trying to compare.” I asked for rental assistance, I didn’t get, and therefore got evicted. We’re trying to find instances of that. “MassLandlords has not said how they can determine that the persons involved belong to one of the suspected groups without accessing some of the private data.”

The judge doesn’t understand how statistics works, and we can show for instance that City Life Vida Urbana, which is an organization whom we don’t share many political objectives, they have published a report with valid statistical methodology, and they can look at zip codes and census tracks that have a lot of black, immigrant, people of color neighborhoods, and they can determine correctly, rightly this conclusion is valid, that evictions are disproportionately harming people of color in Massachusetts.

The judge is clearly not familiar with that line of reasoning and thinks we have to somehow know the race of each person who asked for help to determine that the state had a problem, so that’s wrong. Then also, the judge wrote, “MassLandlords’ suspicion arises not from any affirmative facts by the Department but rather from what MassLandlords perceives as an alleged lack of procedure is in place to assist these groups,” because we asked the State, “Hey, can you show us that you’re going out of your way to help people who are English as a second language, who have a disability, who can’t use a computer. Show us that you’re working hard to get everybody included in the pandemic response.”

The judge again doesn’t understand the Affirmative Fair Housing Rules. I’ll pull up a slide from the Department itself. This is a DHCD, Department of Housing and Community Development, slide, and they talk about how they have an affirmative obligation to analyze and modify rules, policies, and practices that have potential discriminatory effects and disparate impact.

Lack of a procedure is prima facie evidence of unlawful disparate impact. We’re going to file a motion for reconsideration and inform the judge about these new trends in data analysis and disparate impact. Of course, we can appeal and separately we can file an MCAD complaint to start that because there is enough going on here to say, “Well, we can identify the disparate impact already.”

Even though the judge did dismiss our case, it’s not over by a long shot and we will keep you updated.

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