Be prepared!
Individuals applying for or receiving PHA program assistance have certain rights guaranteed by the U.S. Constitution when the PHA takes certain adverse actions against them. These rights are referred to as due process.
For example, when the PHA makes a decision that has a negative impact on an applicant or recipient of assistance, that individual is often entitled to appeal the decision.
Once an appeal is requested, the individual is entitled to a review or informal hearing, depending on the type of program and the individual's status as an applicant or recipient.
The work that you do as a hearing officer embodies these legal principles.
PHAs are required to provide due process
Hearing officers are in charge of the "fair hearing," which is a judicial or administrative hearing conducted in accordance with due process standards. A fair hearing means the individual requesting the appeal has:
- An opportunity to be heard
- The right to confront witnesses (cross-examination)
- The right to representation
- An impartial decision-maker
- A decision based only on the evidence presented at the hearing (no contacts with the hearing officer outside the hearing about the case)
- A decision that includes the reasons and evidence relied on
You will find due process procedural requirements for PHAs in HUD's Code of Federal Regulations (CFR). PHA policies contain more descriptive due process procedural requirements. Hearing officers must be aware of these requirements and must always use the principles of due process as a touchstone when rendering decisions.
The purpose of hearings is to resolve disputes without legal action and to correct PHA errors that may have occurred in the decision-making process. Hearing officers' written decisions must be clear, well-reasoned, and based on reliable evidence with stated findings and conclusions. Decisions must be written to be understood by the individuals appealing PHA decisions as well as by the PHA, and to withstand judicial scrutiny.
PHAs must choose individuals with a reputation for ethical behavior to be hearing officers. Critical qualities of a hearing officer include fairness, impartiality, and diligence. Hearing officers can be anyone other than the person who made or approved the original decision under review or a subordinate of that person.
Internal hearing officers, those from inside the agency, are likely already familiar with HUD regulations and PHA policies, but just as likely not familiar with how to hold hearings. External hearing officers, either volunteers or paid contractors, may have varying levels of expertise in holding hearings depending on their backgrounds, but will not be familiar with HUD regulations or PHA policies. (PHAs can recruit hearing officers from local bar associations, law enforcement agencies, volunteer agencies, and tenant groups.) PHAs must tailor their training for their hearing officers.
If you're an agency employee with hearing officer responsibilities, you should consult with other hearing officers to learn hearing procedures, and you should read prior hearing officer decisions. If you're an external hearing officer, you should study HUD regulations and PHA policies, consult with other hearing officers, and read prior hearing officer decisions.
NMA senior trainer Rhonda Brown, an attorney, has served as a hearing officer for nearly a decade. In addition to handling both HCV and public housing hearings for PHAs in western Washington State, she is also a full-time administrative review judge for a state agency, where she has been hearing appeals and writing decisions for over 20 years.
Ms. Brown, who currently teaches the NMA Hearing Officer Workshop, was also part of the team that developed the workshop. Contact sales@nanmckay.com to bring this training to your agency.
