[Federal Register Volume 61, Number 232 (Monday, December 2, 1996)]
[Rules and Regulations]
[Pages 63756-63758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30622]
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LEGAL SERVICES CORPORATION
45 CFR Part 1633
Restriction on Representation in Certain Eviction Proceedings
AGENCY: Legal Services Corporation.
ACTION: Final rule.
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SUMMARY: This final rule revises the Legal Services Corporation's
(``LSC'' or ``Corporation'') interim regulation that prohibits the
representation of persons in public housing eviction proceedings when
such persons have been charged with or convicted of engaging in certain
illegal drug activity. The prohibition in the prior rule applied only
to LSC funds. This rule is revised to implement new legislation that
extends the prohibition to a recipient's non-LSC funds. Revisions are
also made to respond to comments received by the Corporation.
DATES: This final rule is effective on January 1, 1997.
FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel, at
(202) 336-8910.
SUPPLEMENTARY INFORMATION: The Legal Services Corporation's regulation,
45 CFR Part 1633, prohibits recipients from representing persons in
public housing eviction proceedings when such persons have been charged
with or convicted of engaging in certain illegal drug activity. The
prior rule applied the prohibition only to a recipient's LSC funds. The
interim rule extended the prohibition to a recipient's non-LSC funds as
required by Sec. 504(a)(17) of the Corporation's Fiscal Year (``FY'')
1996 appropriations act, Pub. L. 104-134, 110 Stat. 1321 (1996). The
Corporation's FY 1997 appropriations act, Pub. L. 104-208, 110 Stat.
3009 (1996), retains the restriction by incorporating Section 504 of
the FY 1996 appropriations act by reference.
[[Page 63757]]
Background
In order to implement the new statutory restriction in its FY 1996
appropriations act, on May 19, 1996, the Operations and Regulations
Committee (``Committee'') of the LSC Board of Directors (``Board'')
requested LSC staff to prepare an interim rule. The Committee held
hearings on staff proposals on July 9 and 19, and the Board adopted an
interim rule on July 20 for publication in the Federal Register.
However, the Corporation also solicited public comment on the interim
rule for review and consideration by the Committee and Board.
Nine comments were received by the Corporation, and the Committee
held public hearings on Sept. 29, 1996, to review the comments and
consider revisions to the interim rule. The Committee made several
recommendations to the Board for revisions to the rule based largely on
the comments. The Board adopted the Committee's recommendations as a
final rule on September 30, 1996.
Generally, the revisions to this final rule, as did the interim
rule, implement Sec. 504(a)(17) of Public Law 104-134, which prohibits
the Corporation from providing funds to recipients that defend persons
in public housing eviction proceedings who have been charged with
certain illegal drug activities, regardless of the source of the funds
used to pay for the representation. In addition, revisions have been
made in response to comments requested by the Corporation on policy
guidelines announced by the United States Department of Housing and
Urban Development (``HUD'') in March 1996, after the LSC Board
initially adopted part 1633 on February 24, 1996.
A section-by-section discussion is provided below.
Section 1633.1 Purpose
This section is revised to reflect new law that applies the
prohibition in this rule to all of a recipient's funds. The final rule
retains the language of the interim rule.
Section 1633.2 Definitions
The definition of ``charged with'' has been revised to better
conform with the intent of the rule. While the interim rule left the
language of this section unchanged from the prior rule, the Board
revised the definition of ``charged with'' in this final rule to better
conform with the overall intent of the rule. The revised definition
clarifies that a person must be charged by a governmental entity having
the authority to make such charges. The prohibition on representation
applies only when a formal charge of illegal drug activity, whether by
information or indictment or their equivalent, has been made by the
appropriate authority and is pending against a person, or when there
has been a conviction. Thus, the prohibition on representation of a
person does not apply when a charge has been dismissed or the person
has been acquitted of the illegal drug activity. See 63 FR 14250-14251
(April 1, 1996).
Section 1633.3 Prohibition
Except for the change which extended the prohibition in this
section to a recipient's non-LSC funds, the interim rule did not alter
the prior rule. In this final rule, however, the Board has made further
changes in response to the comments received as a result of the
Corporation's request for comments on conforming the rule to the new
HUD policy guidelines on public housing evictions.
The Corporation received 8 comments opposed to extending the rule's
prohibition to incorporate the HUD policies. On the other hand, the
Corporation also received one comment from the Public Housing
Authorities Directors Association (``Housing Association''), which
represents approximately 1700 public housing authorities, suggesting
several changes to conform to the HUD policy.
One element of the HUD policy requires housing authorities to
include in each tenant's lease a provision holding the leaseholder
responsible for the actions of all members of the household and guests.
The Housing Association suggested that, because housing authorities are
now required by law to initiate eviction proceedings against a
household ``even if the illegal activity was not undertaken by the head
of the household,'' the Corporation should adopt this policy in part
1633. Comments opposing the inclusion of this policy in part 1633
stated that innocent tenants should not be denied representation in
eviction proceedings because of the alleged actions of another family
member. These comments explained that most of these innocent tenants
are poor and legal services programs may be their only source of
representation. According to one comment, the innocent family members
often need legal protection from the drug abuser and to single them out
for denial of legal assistance would ``stand justice on its head.''
The LSC Board agreed that the prohibition should not be extended to
family members. Section 504(a)(17), which expressly limits the
prohibition to the person who has been charged with certain drug
activities, does not require the Corporation to adopt the HUD policy.
While the HUD policy may require housing authorities to begin eviction
proceedings based on the activity of other family members in the drug
abuser's household, no legislation prohibits legal services attorneys
from representing such family members regarding their eviction.
The Housing Authority also commented that the underlying
legislation for this rule is deficient in that it does not apply the
restriction on representation to a person who has been charged with the
manufacture and use of a controlled substance. The prohibition in the
interim rule tracked the statutory language and only prohibited
representation of persons who have been charged with the illegal sale
or distribution of a controlled substance.
The Board agreed to revise the final rule to add other drug
activities that would pose a danger to the people in the housing
communities. The Board determined the changes to be consistent with the
Congressional intent to address the evil of drug dealing in public
housing projects. Thus, the rule now prohibits a recipient from
defending any person in an eviction proceeding if that person ``has
been charged with or has been convicted of the illegal sale,
distribution or manufacture of a controlled substance, or possession of
a controlled substance with the intent to sell or distribute.''
Another issue raised by the Housing Association was whether part
1633 is intended to give legal services programs the authority to
determine whether, in a particular case, the drug activity constitutes
a threat to the health and safety of the housing project's tenants. The
Board agreed that the rule already clearly assumes that such authority
lies with the Housing Authorities. Recipients are prohibited from
representing a client when a Housing Authority has brought an eviction
proceeding on the basis that the drug activity threatens the health and
safety of the other tenants. Since it is the Housing Authority that
brings the eviction proceeding and the proceeding must be based on the
health and safety factor, then it is the decision of the Housing
Authority that is operative for the purposes of this rule. Accordingly,
no changes were made in the final rule to address this concern.
The Housing Association also recommended that more specific
language be used in the rule stating that eviction proceedings
contemplated by this rule may be initiated even when the illegal drug
activity takes place outside
[[Page 63758]]
of the housing premises. The Board determined that there is no need to
address this issue in the rule. There is nothing in the rule that
limits the prohibition to drug activity on the housing premises. It is
the decision of the Housing Authority whether to allege that illegal
drug activity threatens the health or safety of other tenants,
regardless of where it has taken place. When an eviction proceeding is
initiated alleging such a threat and the other terms of the rule are
met, legal services programs may not provide representation to the
persons charged with the violations.
Finally, the Housing Association opposed the provision in the
interim rule that representation is prohibited if ``the person has been
charged with or, within one year, prior to the date when services are
requested from a recipient, has been convicted of the illegal sale or
distribution of a controlled substance.'' [emphasis added]. According
to the Housing Association, this one-year provision exceeds statutory
authority and ``does not adequately address the wide variety of
circumstances that are associated with illegal drug activities.'' The
Board agreed to delete the one-year provision on the grounds that it is
unnecessary, because a Housing Authority must allege and presumably
demonstrate in court that drug related activities are a current threat
to the health and safety of the other tenants. The Board did make a
revision to Sec. 1633.3(b) of the final rule, however, to clarify that
the illegal drug activity for which the person has been charged
currently threatens the health and safety of other tenants.
List of Subjects in 45 CFR Part 1633
Grant programs-law, Legal services.
For reasons set forth in the preamble, 45 CFR part 1633 is revised
to read as follows:
PART 1633--RESTRICTION ON REPRESENTATION IN CERTAIN EVICTION
PROCEEDINGS
Sec.
1633.1 Purpose.
1633.2 Definitions.
1633.3 Prohibition.
1633.4 Recipient policies, procedures and recordkeeping.
Authority: 42 U.S.C. 2996e(a), 2996e(b)(1)(A), 2996f(a)(2)(C),
2996f(a)(3), 2996g(e); 110 Stat. 3009; 110 Stat. 1321 (1996).
Sec. 1633.1 Purpose.
This part is designed to ensure that in certain public housing
eviction proceedings recipients refrain from defending persons charged
with or convicted of illegal drug activities.
Sec. 1633.2 Definitions.
(a) Controlled substance has the meaning given that term in section
102 of the Controlled Substances Act (21 U.S.C. 802);
(b) Public housing project and public housing agency have the
meanings given those terms in section 3 of the United States Housing
Act of 1937 (42 U.S.C. 1437a);
(c) Charged with means that a person is subject to a pending
criminal proceeding instituted by a governmental entity with authority
to initiate such proceeding against that person for engaging in illegal
drug activity.
Sec. 1633.3 Prohibition.
Recipients are prohibited from defending any person in a proceeding
to evict that person from a public housing project if:
(a) The person has been charged with or has been convicted of the
illegal sale, distribution, or manufacture of a controlled substance,
or possession of a controlled substance with the intent to sell or
distribute; and
(b) The eviction proceeding is brought by a public housing agency
on the basis that the illegal drug activity for which the person has
been charged or for which the person has been convicted threatens the
health or safety of other tenants residing in the public housing
project or employees of the public housing agency.
Sec. 1633.4 Recipient policies, procedures and recordkeeping.
Each recipient shall adopt written policies and procedures to guide
its staff in complying with this part and shall maintain records
sufficient to document the recipient's compliance with this part.
Dated: November 26, 1996.
Victor M. Fortuno,
General Counsel.
[FR Doc. 96-30622 Filed 11-29-96; 8:45 am]
BILLING CODE 7050-01-P
