Peter Vickery, Esq., Legislative Affairs Counsel
When you give lawyers a retainer, they deposit the money into something called an IOLTA account (IOLTA stands for “Interest on Lawyers’ Trust Accounts”).
The state takes the interest and gives it to an entity called the Massachusetts Legal Assistance Corporation (MLAC) that channels the funds to variety of nonprofit organizations.
Some of those organizations (Massachusetts Law Reform Institute, for example) lobby for measures that are diametrically opposed to the interests of MassLandlords members. Challenging that unfair system is a fight for another day. In the meantime, we face the more immediate question of how MLAC is distributing another pot of money - separate from IOLTA - under the Eviction Diversion Initiative, including a component of the initiative called COVID Eviction Legal Help (CELHP).
As discussed in a previous article, one notable feature of CELHP is that it helps fund the Volunteer Lawyers Project (VLP), which is supposed to help low-income landlords. But VLP itself does not represent landlords, nor does it even pay other lawyers to represent them. Rather, it tries to find lawyers who will represent landlords for free. (And VLP attorneys, although passionate, are not necessarily landlord–tenant experts. We have welcomed three to our educational events over the last several months.)
In addition, some CELHP funds are dedicated to about a dozen mediation organizations across Massachusetts, including the Martha’s Vineyard Mediation Program, Inc., and Cape Mediation (a.k.a. Cape Cod Dispute Resolution Center, Inc.). Perhaps there are a lot of residential landlord–tenant disputes in need of mediation on the Cape and Martha’s Vineyard. If so, public funding of those corporations could be money well spent, and we ought to be able to see the need clearly in public records. Or if not, perhaps some of it could go toward legal representation for low-income landlords, or elsewhere in the state.
To find out exactly how MLAC is spending the CELHP money that the Legislature appropriated, and how well the recipients are helping to resolve landlord–tenant disputes, on March 16, 2021, we submitted a public records request. In the request we asked for records detailing the distribution of funds, and about number of cases actually handled by the MLAC-funded mediation organizations. This was to be the beginning of a broader inquiry as to whether and how mediation works and how it might be improved.
MLAC Not Subject to The Public Records Statute?
On March 22, 2021, we received a letter from an attorney at Weil, Gotshal & Manges, LLP, a private law firm that represents MLAC, stating that MLAC “is not subject to the Public Records Statute and the materials you have requested are not public records subject to the statute.” The rationale? MLAC is part of the judicial branch, and the judicial branch is exempt from the Public Records Statute.
Is that true? Certainly, the statute that established MLAC (MGL Chapter 221A, Section 2) states that the corporation is “under the Supreme Judicial Court.” For administrative and budgetary purposes a public agency has to go somewhere, after all. But although it is “under” the high court, MLAC is not an adjudicatory body; its only job is to distribute money. And there is no doubt that it is a public agency with a public function. There is no ambiguity in the plain language of Chapter 221A:
The corporation is hereby constituted a public instrumentality of the commonwealth and the exercise by the corporation of the powers conferred in this chapter shall be deemed and held to be the performance of an essential public function.
Yes, MLAC’s lawyer is correct that the Supreme Judicial Court (SJC) has held that the Public Records Statute does not expressly include the judicial branch. But, as we pointed out in our reply to his letter, Chapter 221A provides that “[t]he corporation is hereby placed under the supreme judicial court but shall not be subject to the supervision or control of said court or of any other board, bureau, department, or agency of the commonwealth except as specifically provided in this chapter.”
So while MLAC is “under” the SJC, the SJC has no say in how MLAC does its job. Whatever the reasons for exempting the courts from the Public Records Law, it is hard to see how those reasons could apply to a body that: (1) is not a court, (2) is outside the control of the courts and (3) exists for the sole purpose of distributing funds.
MLAC is a corporation that the Legislature uses to channel public money to nonprofits of its choosing. But its lawyer argues that because the corporation is “under” the SJC it is not subject to the Public Records Law. In other words, MLAC does not have to share with the public the documents that show how it spends public money and how effectively (or not) the recipients of that money perform their publicly funded tasks.
Trying not to paint anyone into a corner, we asked MLAC’s lawyer - twice - if MLAC would agree to produce the records without conceding that the corporation is subject to the Public Records Law. We received no response. So we are trying something else, namely asking the Legislature to exercise its oversight function.
Joint Committee on the Judiciary
On April 12, 2021, we wrote to the Legislature’s Joint Committee on the Judiciary asking it to
“review and study the manner in which the Massachusetts Legal Assistance Corporation (MLAC) is disbursing public funds pursuant to the COVID Eviction Legal Help Project (CELHP) and the efficacy of that project.” Even if MLAC will not disclose its records to the public, it should have to disclose them to the Legislature.
As our letter says, “members of MassLandlords wish to know how MLAC is administering the funds that the Legislature appropriated for CELHP, (approximately $12 million) and whether those funds are successfully furthering the Commonwealth’s policy objectives.” We will keep you posted on how the committee responds.
The Legislature appropriated $12 million for a program designed to help resolve landlord–tenant disputes short of eviction. But MLAC will not tell us exactly where it is going. We suspect that none of it went toward helping those low-income landlords who have been hit hard by the politicians’ response to Covid-19, e.g., the unfunded eviction moratorium, the shifting criteria for subsidies and the delays arising from the unusually high rejection rate for RAFT applications. We suspect also, based on uneven county eviction rates, that the spending may not be allocated where it is needed most. This had spurred previous public records requests from DHCD.
In Chapter 257 of the Acts of 2020, the Legislature called for an Eviction Diversion Initiative Task Force to oversee this and other matters. To the best of our knowledge, no such task force has been convened. The Legislature entrusted a large amount of public funds to a public corporation that considers itself beyond the reach of the Public Records Law. It is time for the Legislature to tell us how - and how effectively - that money is being spent. (The Chapter 257 law has been extended from Jan. 1, 2023, to March 1, 2023 by the April 1, 2022, budget amendment.)