[Federal Register Volume 60, Number 183 (Thursday, September 21, 1995)]
[Proposed Rules]
[Pages 48950-48951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23490]
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LEGAL SERVICES CORPORATION
45 CFR Part 1633
Restriction on Representation in Certain Eviction Proceedings
AGENCY: Legal Services Corporation.
ACTION: Proposed rule.
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SUMMARY: This proposed rule is intended to ensure that recipients
refrain from using Legal Services Corporation (``LSC'' or
``Corporation'') funds to provide representation in eviction
proceedings of persons engaged in certain illegal drug activity.
DATES: Comments must be submitted on or before October 23, 1995.
ADDRESSES: Comments should be submitted to the Office of the General
Counsel, Legal Services Corporation, 750 First Street, N.E., 11th
Floor, Washington, DC 20002-4250.
FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel, at
(202) 336-8810.
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 in certain eviction proceedings persons alleged to be
engaging in illegal drug activity. On September 9, 1995, the Board's
Operations and Regulations Committee (``Committee'') held public
hearings on proposed 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 LSC Act grants the Corporation both general and specific
rulemaking authority. Texas Rural Legal Aid v. LSC, 940 F.2d 685, 690-
91 (D.C. Cir. 1991); see e.g., 42 U.S.C. 2996e(a)(1)(A), (a)(1)(B), and
2996f(a)(3). In particular, section 1007(a)(3) of the LSC Act ``gives
[the Corporation] substantial power to regulate the `delivery of legal
assistance' by program recipients.'' TRLA, at 691. In addition, as a
private corporation granted the powers of a District of Columbia
nonprofit corporation, 42 U.S.C. 2996e(a), the Corporation has the
power to establish the terms under which it will make grants to
entities to provide legal assistance. Id. Congress intended the
exercise of ``considerable discretion'' by the Corporation in its
implementation of the LSC Act. Id. Finally, under section 1007(a)(2)(C)
of the LSC Act, 42 U.S.C. 2996f(a)(2)(C), the Corporation may provide
guidance to its recipients as to appropriate caseload matters by
establishing national goals, in conformance with which recipients are
to establish priorities for the acceptance of cases. Id. at 693.
A purpose of the legal services program is to assist in improving
opportunities for low income persons. 42 U.S.C. 2996(3). In addition,
in its grantmaking and oversight functions, the Corporation must ensure
that recipients provide legal assistance in the most economical and
effective manner. 42 U.S.C. 2996f(a)(3). Hence, a principal national
goal of the Corporation, based in the LSC Act, is to provide economical
and effective legal assistance in a manner that improves opportunities
for low income persons.
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 on-going concern in
Congress. For example, section 508(18) of H.R. 2076, an appropriations
measure currently before Congress, would prohibit recipients from
providing representation in certain drug-related eviction proceedings.
See H.R. 2076, 104th Cong., 1st Sess, section 504(18).
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 of those who engage
in such activity undermines the purposes of the LSC Act. Based on the
above, the Board directed staff to prepare a proposed regulation
addressing these concerns. Such regulation 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 to revise
their priorities and procedures in the area of representation in drug-
related eviction proceedings.
A section-by-section discussion of the proposed rule is provided
below.
Section 1633.1 Purpose
This section sets out the purpose of the proposed rule: to
implement the goal of the Corporation to provide economical and
effective legal assistance in a manner that improves opportunities for
low income persons and to provide specific guidance in the case of
drug-related eviction proceedings by prohibiting any recipient from
providing representation in certain proceedings to evict from public
housing projects persons convicted of or being prosecuted for certain
drug-related activity.
Section 1633.2 Definitions
This section defines ``controlled substance,'' ``public housing
project,'' and ``public housing agency'' in the manner those terms are
defined by federal statute. The term ``being prosecuted'' is defined to
make clear that the prohibition attaches only when a prosecution has
been instituted and is being pursued by a governmental authority, for
example, by indictment or information. It is not sufficient for an
affidavit to have been sworn by a private citizen or for an arrest to
have occurred if no prosecution has followed.
Section 1633.3 Prohibition
This section sets out the prohibition on the use of Corporation
funds. It is intended to preclude the provision of representation in a
proceeding to evict from a public housing project a person who has been
recently convicted of or is being prosecuted for illegal drug activity.
Such activity must be evidenced by a conviction or current prosecution
for the sale, distribution, use or manufacture of a controlled
substance. Under the prohibition if representation was commenced prior
to prosecution, the recipient should seek to end the representation if
a prosecution is thereafter commenced. The Corporation has concluded
that a formal charge of illegal drug activity against a client will
suffice to prohibit representation even though a conviction has not as
yet resulted. The Corporation, however, believes that the prohibition
should apply only when the charge of illegal drug activity has resulted
in formal prosecution proceedings.
In addition, the prohibition applies only if the allegation which
forms the
[[Page 48951]]
basis for the eviction proceeding is that the particular illegal drug
activity for which the person has been convicted or is being prosecuted
did or does now threaten the health or safety of others living in the
public housing project or working in the public housing agency. This
qualification is intended to make clear that, in order for the
prohibition to apply, the allegation which forms the basis for the
eviction must be that, at the time the illegal drug activity was
engaged in, it threatened the health or safety of others within the
public housing community or that the activity currently threatens such
health or safety. In other words, the threat must stem from the illegal
drug activity which resulted in prosecution/conviction.
Finally, the prohibition extends only to the individual who has
been convicted or is being prosecuted, and does not extend to other
members of the individual's household who may be facing eviction
because of the individual's illegal activity. For example, if a person
is facing eviction based on the fact that another person in the
household has been convicted of or is being prosecuted for the illegal
sale, distribution, use or manufacture of a controlled substance, then
the prohibition would not attach.
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 purposes.
List of Subjects in 45 CFR 1633
Legal services, Drugs, Public housing.
For reasons set forth in the preamble, LSC proposes to amend 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. 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 Corporation funds will not be
used to provide representation in certain 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); and
(c) A person is ``being prosecuted'' if a criminal proceeding has
been instituted against such person by a governmental authority with
jurisdiction to bring such prosecution.
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 recently convicted of or is being
prosecuted for the illegal sale, distribution, use or manufacture of a
controlled substance; and
(b) the eviction proceeding is brought by a public housing
authority on the basis that such illegal drug activity for which the
person has been convicted or for which the person is being prosecuted
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 should be maintained
in a manner consistent with the attorney-client privilege and the rules
of professional responsibility applicable in the local jurisdiction.
Dated: September 18, 1995.
Suzanne B. Glasow,
Senior Counsel for Operations & Regulations.
[FR Doc. 95-23490 Filed 9-20-95; 8:45 am]
BILLING CODE 7050-01-P
