National Housing Law Project Housing Law Bulletin

HUD’s recently proposed regulations/1/ implementing the Quality Housing and Work Responsibility Act of 1998 are a welcome advance for housing advocates. The Act establishes mandatory membership by at least one public housing resident or one section 8 recipient on the board of directors of each of the 3,400 Public Housing Authorities (PHAs) nationwide./2/ Championed by Representative Maxine Waters during the last Congress (the 104^th Congress), residents ultimately prevailed in this important effort which took on added significance as more and more control of housing authority management and operations was proposed for devolution to PHAs and local governments.

Under HUD’s proposed regulations, PHAs would be required to include not less than one resident member on their board of directors or similar governing body. The PHA plan may provide for the resident member to be elected by residents. Small PHAs managing less than 300 units may be exempt from the requirement if no resident applies to participate on the board. However, the PHA must first make efforts to include residents by providing "reasonable notice to the resident advisory board" of residents’ opportunity to serve on the board./3/ If "within a reasonable time" the PHA receives no notice that any resident wishes to participate on the board, it is relieved of the requirement to include a resident./4/ Although in most states there is no bar to resident membership, the statute also prevents PHAs from prohibiting public housing residents or recipients of Section 8 assistance from serving on the board due to their status.

The proposed rule also adds a new subpart E, "Resident Board Members," to the Tenant Participation and Tenant Opportunities provisions of the regulations. clarifying that it applies to both public housing residents and section 8 recipients even thought part 964 generally applies to public housing residents exclusively.

The proposed regulations clarify several implementing issues. PHAs that are not governed by a board of directors or a similar governing body would be granted an exemption and would not be required to have a resident on their boards, such as in a case in which a city council or county commission serves as the governing body for the housing authority. Additionally, the regulations assert full membership status, rights and privileges for the resident board member, and the resident board member’s lease cannot be asserted as a present or future conflict of interest that would permit the board to exclude that member from consideration of any matter before the board. The only exception would be if the question relates to the resident board member "only in a personal capacity."/5/

The proposed regulations specify how housing authorities are to implement the requirement. Appointed boards are to fill the first seat that becomes available on or after October 1, 1999 -- QHWRA’s implementation date –with an eligible resident. If board members are elected, the mayor or other chief executive officer must establish at least one additional board seat by December 31, 1999 to be filled with an eligible resident. For PHAs operating across jurisdictional lines, each affected local government would have joint responsibility for establishing and filling any additional seats. If a resident board member serves out his or her term or the seat otherwise becomes open, the replacement must be an eligible resident if necessary to continue to fulfill the requirement for a minimum of one resident on the board.

In response to HUD’s proposal, the National Association of Housing and Redevelopment Officials (NAHRO), a PHA trade association, has proposed language to expand the exemptions from the requirement. One new exemption would be for Alaska’s statewide housing authority, whose board is appointed by multiple officials, causing some administrative impracticalities such as who would appoint a resident board members, and whether or not a single resident could provide adequate representation. An additional exemption, already included in HUD’s proposed regulations, would cover PHAs with governing boards consisting exclusively of elected officials in which a city council or county commission serves as the housing authority board.

The NAHRO is seeking also to delay the effective date of the resident board member requirement until January 2002 in those states whose housing authority enabling laws don’t already require resident commissioners./6/ Through a technical amendment to the FY2000 appropriations bill, HUD would be authorized to grant waivers in such instances to extend the time for compliance. Ostensibly, the purpose of the delay is to provide time for any necessary amendments to state law to authorize resident board members, as the housing authorities are concerned that they will be penalized in those instances where they make a good faith effort to obtain necessary state law changes but fail. However, the breadth of the PHA proposal cannot be justified. Extensions should be considered--if at all--on a case by case basis.

Notes

1    Public Housing Agency Organization; Required Resident Membership on Board of Directors or Similar Governing Body, 64 Fed. Reg. 33,644 (proposed Jun. 23, 1999).

2    42 U.S.C. §1437(b) (West Supp. 1999) (as amended by Section 505 of the Quality Housing and Work Responsibility Act of 1998, Pub. L. No. 105-276, 112 Stat. 2461 (1998)).

3    Proposed §964.425(c)(1), note 1, p. 33,646.

4    Proposed §964.425(c)(2), note 1, p. 33,646.

5    Proposed §964.430(c), note 1, p. 33,646.

6    The House Appropriations Committee declined to adopt the public housing proposed technical amendment in its bill, H.R. 2684, Making Appropriations for the Departments of Veterans Affairs, Housing and Urban Development, and for sundry independent agencies, boards, commissions, corporations, and offices for the fiscal year ending September 30, 2000, and for other purposes," reported to the House on August 3, 1999. As this article goes to print, no bill number has yet been assigned to the FY2000 appropriations measure for VA, HUD and Independent Agencies. Technical amendments could be included by the Senate Appropriations Committee when it takes up its bill following the August recess.

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