[Federal Register Volume 61, Number 63 (Monday, April 1, 1996)]
[Rules and Regulations]
[Pages 14250-14252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7823]
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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 rule is intended to proscribe the use of Legal Services
Corporation (``LSC'' or ``Corporation'') funds to provide
representation in eviction proceedings of persons engaged in certain
illegal drug activity. Should it become a statutory requirement, the
rule will be amended to also proscribe the use of non-LSC funds for
this purpose.
EFFECTIVE DATE: May 1, 1996.
FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel,
Legal Services Corporation, 750 First Street NE., 11th Floor,
Washington, DC 20002-4250. (202) 336-8800.
SUPPLEMENTARY INFORMATION: On June 25, 1995, the Corporation Board of
Directors (``Board'') adopted a resolution requiring Corporation staff
to prepare a regulation prohibiting the use of Corporation funds to
represent persons alleged to be engaging in illegal drug activity in
certain eviction proceedings. On September 9, 1995, the Board's
Operations and Regulations Committee (``Committee'') held public
hearings on a proposed rule, to be designated 45 CFR part 1633. After
adopting several changes to the staff draft of the regulation, the
Committee voted to publish the proposed rule in the Federal Register
for notice and comment.
The proposed rule was published in the Federal Register on
September 21, 1995 (60 FR 48950). Thirteen comments were submitted
during the allotted time and seven arrived after the deadline, but all
twenty were fully considered. The Committee met on December 17, 1995,
and February 23, 1996, to consider the written and oral comments to the
proposed rule. Based on the comments, the Committee revised the
proposed rule. On February 24, 1996, the Board voted to adopt the rule
as recommended by the Committee as a final rule.
Corporation's Authority To Promulgate the Rule
One comment questioned LSC's authority to promulgate the rule.
Under the LSC Act, the Corporation has been granted both general and
specific rulemaking authority. The Corporation's rulemaking authority
includes the authority to promulgate this rule in the absence of
legislation intended to restrict the Corporation's discretion to
regulate the matter which is the subject of the rule. See Texas Rural
Legal Aid v. LSC, 940 F.2d 685, 690-91 (D.C. Cir. 1991), citing to
provisions of the LSC Act, including 42 U.S.C. 2996e(a) and 2996f(a).
As noted below, promulgation of this rule is consistent with provisions
in H.R. 2076, the appropriations bill which included funds for LSC for
Fiscal Year (``FY'') 1996. (H.R. 2076 was passed by Congress but vetoed
by the President; however, the Corporation anticipates passage of
legislation containing substantially similar language in the near
future.)
The drug problem has had a devastating effect on the poor in our
country, especially those living in public housing. This situation is
of grave concern to the Board, and has been an ongoing concern of the
Congress, as evidenced by H.R. 2076, section 504(18) of the House bill,
section 14(a)(18) of the Senate version, and section 504(a)(17) of the
House-Senate Conference version, and of the U.S. Department of Housing
and Urban Development (``HUD''). Since tenants of public housing
projects who engage in illegal drug activity may be viewed as a
destructive force within public housing communities, acting to the
detriment of low income persons, it is the Corporation's considered
view that representation in eviction proceedings of those formally
charged with or convicted of such activities is not consistent with the
purposes of the LSC Act. This rule will implement the Corporation's
goal of providing economical and effective legal assistance in a manner
that improves opportunities for low income persons and will provide
specific guidance to recipients for revising their priorities and
procedures in the area of representation in drug-related eviction
proceedings.
The remainder of this commentary provides a section-by-section
analysis of the rule, discusses the major issues raised by comments,
and notes the changes made in the final regulation.
Section 1633.1 Purpose
This rule is intended to preclude recipients' use of Corporation
funds to defend, in certain evictions proceedings, persons who have
been charged with or convicted of illegal drug activities.
Section 1633.2 Definitions
This section defines key terms used in the regulation. Several
comments advocated changing the definition of ``being prosecuted''
which was included in the proposed rule. This is unnecessary, as the
final rule no longer contains a definition of ``being prosecuted.'' The
Corporation has revised the Prohibition section of the rule to be
consistent with the apparent intent of Congress, as expressed in H.R.
2076. Section 504(a)(17) of that bill prohibited a recipient from using
funds to defend a person in a proceeding to evict that person from a
public housing project, if ``that person has been charged with the
illegal sale or distribution of a controlled substance.'' Therefore, in
the final rule, recipients are prohibited from providing representation
in eviction
[[Page 14251]]
proceedings to persons who have been charged with or convicted of
illegal drug activities. At the same time, the Corporation emphasizes
that 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 and is pending against a person, or
there has been a conviction. Thus, the prohibition on representation of
a person will be lifted if and when such a charge has been dismissed,
that person has been acquitted of the charged illegal drug activity, or
one year has elapsed since that person's conviction.
Section 1633.3 Prohibition
This section sets out the prohibition on the use of Corporation
funds. It is intended to preclude a recipient from defending a person
who has been charged with or, within the previous year, convicted of
certain illegal drug activity in a proceeding to evict that person from
a public housing project.
The prohibition set forth in the final rule, as in the proposed
rule, only restricts recipients' use of Corporation funds. The
Corporation notes, however, that the House-Senate Conference bill,
section 504(a)(17), which was passed by Congress and vetoed by the
President, would have prohibited LSC from funding any recipient that
engages in representation in the eviction proceedings which are the
subject of this rule, regardless of whether the recipient uses LSC or
some other funds to support the representation. Thus, should it become
a statutory requirement, the rule will be amended to also proscribe the
use of non-LSC funds for this purpose.
Not surprisingly, most comments addressed this section of the rule.
In general, the comments ranged from generally supportive to generally
opposed, and from advocating expansion of the rule (for example, to
cover all illegal activity) to advocating limiting the rule (for
example, by permitting discretion on the part of attorneys). After
considering all of the comments, the Corporation has concluded that the
rule should reflect the apparent intent of Congress as declared in H.R.
2076. In response to the comments, however, some modifications have
been made to clarify the intent of the rule. These changes are
discussed below, as are some of the specific comments.
Recent Conviction
Several comments pointed out that the term ``recent'' as used in
the proposed rule is vague and subject to inconsistent interpretation.
In response, the final rule has been modified to specify a time period
of one year. Thus, under the rule, a recipient may not represent, in
eviction proceedings, a person who, within one year of applying for
legal services, has been convicted of illegal drug activities which
threatened the health or safety of tenants or employees of the public
housing project.
Illegal Drug Activities
Although the Corporation does not want to encourage recipients to
provide legal assistance to persons who use, manufacture, or possess
illegal controlled substances, in the final rule, LSC has decided to
restrict the prohibition on recipients' provision of representation to
persons who have been charged with or convicted of the illegal sale or
distribution of controlled substances. Such a restriction is consistent
with H.R. 2076, section 504(a)(17), which, if signed into law, would
have precluded the Corporation from providing funds to any person or
entity that defends in eviction proceedings a person who has been
charged with the illegal sale or distribution of a controlled
substance. Since, in H.R. 2076, Congress did not include possession,
use, or manufacture of controlled substances as proscribed drug-related
activities, the Corporation has decided not to extend the prohibition
on representation to such activities. However, sound judgment should be
exercised by recipients on this issue.
Constitutional Objections
Two comments expressed concern that the prohibition impinges upon
the due process rights of those tenants denied representation under the
rule. One of these comments argues that the rule contradicts the notion
of constitutional due process. The apparent concern is that the rule
penalizes those merely alleged to have engaged in criminal behavior.
The Corporation is aware of the likelihood that some tenants who
are eventually acquitted or against whom charges are eventually
dismissed will be denied representation in their eviction proceeding.
While mindful of the burden on those denied representation under the
rule, the Corporation continues to be of the view that the rule should
be consistent with the apparent intent of Congress, as indicated in
H.R. 2076. Under the final rule, the prohibition applies when a formal
charge of illegal drug activity has been made against a person, for
example, by indictment or information. Statements of witnesses or even
an arrest will not suffice. Finally, although the rule denies certain
individuals access to a legal services attorney to represent them in
eviction proceedings, it does not deny such individuals the opportunity
to participate in the eviction procedures provided under HUD
regulations. See, generally, 24 CFR part 966.
Health and Safety
In the comments, an issue arose concerning the prohibition's
qualification that the drug activity threaten the health and safety of
those residing in the public housing project or working in the public
housing agency. It was suggested that, for the prohibition to apply, a
threat to health or safety should not have to be alleged. While true
that under the HUD regulations governing lease terminations, illegal
drug activity provides grounds for such termination without reference
to health or safety, the Corporation has decided to adopt the
congressional view and to restrict representation when the basis for
the eviction procedure is a threat to health or safety. See H.R. 2076,
section 504(18) of the House bill, section 14(a)(18) of the Senate
version, and section 504(a)(17) of the House-Senate Conference version.
Other Members of Household
Several comments suggested expanding the rule to prohibit
representation in eviction proceedings of those being evicted because
other members of the household engaged in illegal drug activity. Upon
reflection, the Corporation has decided to limit the prohibition on
representation to the person charged with or convicted of the illegal
drug activity, which is consistent with the apparent intent of
Congress. Thus, representation of household members in eviction
proceedings is not prohibited under the final rule.
Section 1633.4 Recordkeeping
This section requires recipients to maintain documentation
regarding representation declined under this part. Such recordkeeping
will assist the Corporation in its compliance monitoring efforts and
will provide empirical data for informational and policy development
purposes. This section has been modified to indicate that, in addition
to the Corporation and its agents and representatives, records will be
available to those entitled to access by statute.
The proposed rule included language advising recipients that the
records should be maintained in a manner consistent with the attorney-
client privilege and all applicable rules of professional
responsibility. Since all actions of recipients must be consistent
[[Page 14252]]
with the attorney-client privilege and rules of professional
responsibility, upon consideration, the Corporation has determined that
inclusion of specific language in the rule is not necessary. In
implementing the requirement, recipients should remain aware of the
access provision and mindful of the ethical precepts governing client
confidentiality.
List of Subjects in 45 CFR 1633
Legal services, Drugs, Public housing.
For the reasons set forth in the preamble, LSC amends 45 CFR
chapter XVI by adding part 1633 as follows:
PART 1633--RESTRICTION ON REPRESENTATION IN CERTAIN EVICTION
PROCEEDINGS
Sec.
1633.1 Purpose.
1633.2 Definitions.
1633.3 Prohibition.
1633.4 Recordkeeping.
Authority: 42 U.S.C. Secs. 2996e(a), (b)(1)(A), 2996f(a)(2)(C),
2996f(a)(3), 2996g(e).
Sec. 1633.1 Purpose.
This Part is designed to ensure that recipients do not use
Corporation funds to provide representation in certain public housing
eviction proceedings to 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) A person has been ``charged with'' engaging in illegal drug
activities if a criminal proceeding has been instituted against such
person by a governmental entity with authority to initiate such
proceeding and such proceeding is pending.
Sec. 1633.3 Prohibition.
Corporation funds shall not be used to defend any person in a
proceeding to evict that person from a public housing project if:
(a) The person has been charged with or, within one year of the
date when services are requested from a legal services provider, has
been convicted of the illegal sale or distribution of a controlled
substance; and
(b) The eviction proceeding is brought by a public housing agency
on the basis that such illegal drug activity for which the person has
been charged or for which the person has been convicted did or does now
threaten the health or safety of other tenants residing in the public
housing project or employees of the public housing agency.
Sec. 1633.4 Recordkeeping.
Recipients shall maintain a record of all instances in which
representation is declined under this part. Records required by this
section shall be available to the Corporation and to any other person
or entity statutorily entitled to access to such records.
Dated: March 26, 1996.
Victor M. Fortuno,
General Counsel.
[FR Doc. 96-7823 Filed 3-29-96; 8:45 am]
BILLING CODE 7050-01-P
