A Strong Independent, Statewide Tenant Protective Service Ombuds Office for Elderly and Disabled Tenants in Public and Subsidized Housing
Senator Joan B. Lovely presented S985 An Act relative to bullying in public housing to establish a statewide tenant protective services ombuds program. We propose ways to strengthen and improve that bill to assure that it will be effective. S985 is an essential complement to the administrative remedies proposed under S984 An Act to prevent and respond to bullying of elderly and disabled residents. Both bills are based on the work and reports of the Commission to Study Ways to Prevent Bullying of Tenants in Public and Subsidized Multi-Family Housing, pursuant to Chapter 2 of the Resolves of 2016 (Commission on Bullying).
The need for the ombuds office
We seek to implement and enforce the principle stated by the Attorney General—it is unlawful to prevent others from enjoying their rights as citizens or as tenants, and for the landlord to fail to protect tenants from bullying and harassment.
Today, tenants have no effective way to be protected from bullying, mobbing, hostile environment harassment, and retaliation; or to enforce their legal rights. There is no accountability. There is no agency with the mandate and resources to act, save in narrowly defined circumstances. The pro bono and legal aid systems lack the resources to intervene. Tenants cannot afford the costs of civil action to protect their rights. The real danger of retaliation prevents many victims from seeking relief. Public and subsidized housing in Massachusetts includes 1,400 residential developments, with over 92,000 units for elderly and disabled persons. Almost half the respondents to the Statewide Survey on Bullying of Tenants in Public and Subsidized Multifamily Housing done by the Commission on Bullying reported being bullied in their residential setting, and about 30% also observed others being bullied.
The purpose of this legislative proposal is to reliably protect tenants from bullying, mobbing, and hostile environment harassment, and thereby assure their rights, including that of peaceful enjoyment. This legislation would assure protection from bullying and assure accountability for landlords.
The Attorney General asserts that Massachusetts law protects the rights of all persons, including tenants. In addition, state and federal law prohibit discrimination in housing.
“State law further prohibits any person from using threats, intimidation, or coercion to interfere with the secured rights of any other person. See M.G.L. c. 12, §§ 11H-J (Massachusetts Civil Rights Act). Secured rights include the right to quiet enjoyment of housing and the right to legal process. In addition, it is unlawful for landlords or other housing providers to allow harassment or intimidation by one tenant against another tenant....A failure by housing providers—including property owners [and] managers—to comply with these laws may result in significant legal liability.”---Office of the Attorney General Advisory: All Tenants Have a Right to Be Free from Harassment and Intimidation, April 11, 2018.
Under existing law (M.G.L. c. 12, §§ 11H-J), such legal liability depends on a civil suit brought by the aggrieved party or by the attorney general. Tenants in public or subsidized housing cannot afford such legal costs, and are thus without remedy.
Revisions to S985
To assure independence and avoid potential conflicts of interest, the ombuds should be in the Executive Office of Housing and Community Development, and report directly to the Secretary. Satellite offices should be situated to provide access to tenants in all parts of the Commonwealth. Funding adequate to the functions of the ombuds shall be allocated by a separate budget line. Agencies and contractors that are called on to support the work of the ombuds must have adequate, targeted funding and resources.
The director of the ombuds office should have a board of directors that includes a range of professional expertise and meaningful representation by tenants who live in covered residential settings, for example, 3 tenants out of 5 directors.
The ombuds should employ or contract with persons or agencies that are qualified and competent to investigate and attempt to resolve situations of bullying, mobbing, and hostile environment harassment. The ombuds shall call on local service agencies to provide needed medical, mental health, or other services that may help to resolve personal challenges, and conflicts that result in behavior similar to bullying.
Where the local service agency manages the residential facility, independent resources for investigation and intervention should be used to avoid a conflict of interest.
All tenants (and their visitors and providers of services) in public and subsidized housing for elderly and disabled persons should be protected. To ensure a bully-free community, the scope would cover and protect all persons working or living in the covered residential situations, i.e., landlord and their agents.
We are concerned with the rights of all tenants in multifamily housing and not limited to those in a protected status, and including the several administrative structures and categories of housing such as public, subsidized, as well as public housing tenants who become tenants of a private developer under a public-private partnership. Ideally, the scope will be extended to tenants living in private multifamily housing using federal or state vouchers such as Section 8.
3 REPORTING TO OMBUDS
The ombuds will receive complaints and reports from any person including victims and other tenants, landlords, managers and other housing staff. The ombuds will establish a list of mandated reporters required to report suspected bullying to the ombuds office. No person making a good faith report shall be liable for doing so, but those making reports in bad faith may be penalized.
The definitions and goals of the law must be aimed at preventing bullying of any tenant by other tenants or the management and staff. One part of the definition of bullying proposed in S985 is too vague and opens the door to draconian measures by a landlord; it states that bullying includes behavior that:
" or v) materially and substantially disrupts the orderly operation of a covered residential community."
"Orderly operation" seems more like a description of administration than of peaceful enjoyment. We seek to prevent bullying, mobbing, and hostile environment harassment which may have the potential to disrupt a residential community, but v) above would be redundant. The lease already provides the landlord with sufficient means to address disruptive behavior. When a landlord fails to maintain an orderly community, that is certainly disruptive, and such malfeasance by a landlord would be referred for the existence of a hostile environment to the attorney general under our proposed revision.
4 INVESTIGATE & EVALUATE
The ombuds office shall employ and/or contract for qualified investigators. Investigators face challenges that require sensitivity, knowledge of the law and rules, and great people skills. Is the complaint valid? Is the matter an individual conflict or is it a wider, community problem? They will need to distinguish issues of disability, mental health, dementia, disease, medication side effects, etc. and refer for appropriate care. Mobbing can make the victim appear to be guilty as Janice Harper, PhD has reported, and victims may be accused of being bullies. Investigators will need to make judgements and to act based on the facts in each situation.
5 PROTECT & INTERVENE
The ombuds shall act to protect victims, and refer victims to a rapid and effective source of relief and remedy. The ombuds shall protect victims and reporters from retaliation. There are no agencies with the mandate and resources to act save in narrowly defined circumstances, i.e., bullying a person with a disability because of that disability. Therefore, the legislature may need to consider expanding the mandates of some agencies, e.g., those now providing elder abuse services and disability protective services, and to add funding insofar as no agency today has the authority and resources to intervene.
The ombuds will provide information and guidance on best practices and on methods of dispute resolution and lease enforcement to the landlord and parties to the dispute.
6 ACCOUNTABILITY & LEGAL ACTION
“Hostile environment harassment refers to unwelcome conduct that is sufficiently severe or pervasive to interfere with a person's ability to...use and enjoy housing (including related facilities and services.” ---Office of the Attorney General Advisory: All Tenants Have a Right to Be Free from Harassment and Intimidation, April 11, 2018; Fair Housing Act: 24 CFR 100, p. 63075.
When the community shows extensive bullying, mobbing, or a hostile environment, then the ombuds office shall refer to the attorney general for civil action to hold the landlord accountable for providing peaceful enjoyment. Alternatively, to designate legal counsel with the mandate and resources to pursue civil remedies on behalf of victims.
7 SAFE HARBOR
The ombuds office or the attorney general may provide a “safe harbor” for landlords where there is evidence of a good faith effort to improve the administration of the housing complex, and negotiate for timely and closely supervised remedial progress before moving to court action.
8 MANDATED REPORTERS
The roster of mandated reporters should include professionals and staff of a variety of community-based services who are likely to learn about difficult situations in housing, much as is done for abuse, i.e., “Are you afraid in your home?” Mandated reporters may include: any landlord of a covered residential facility and all their agents including the executive director or manager. service coordinator, or social worker; the executive director at centers for independent living; the executive director of any Aging Services Access Point (ASAP); any physician, physician assistant, medical intern, dentist, nurse, family counselor, probation officer, social worker, policeman, firefighter, emergency medical technician, licensed psychologist, coroner, registered physical therapist, registered occupational therapist, osteopath, podiatrist, executive director of a council on aging, outreach worker employed by a council on aging, executive director of a licensed home health agency or executive director of a homemaker service agency.
9 RESEARCH & EDUCATION
A research capability is essential. The research director and staff should carry out a broad range of research, observations, and surveys that can provide the basis for policy recommendations and make regular reports to the directors and the Secretary.
The ombuds should cooperate with other agencies to educate and inform tenants, landlords, the public, professionals, and the courts about the issues of bullying and mobbing, encourage reporting of bullying, and about available resources and solutions.
We speak from the perspective of tenants and others who are familiar with the realities of bullying in multifamily housing, and based on extensive observation, research, and testimony. Bullying is extremely harmful to elderly and disabled persons living in multifamily housing. In law, the landlord is responsible for assuring peaceful enjoyment, but the tenant has no feasible way to be protected from bullying or to hold the landlord to account. Our proposed modifications of S985 will provide protection for victims and accountability for the landlord.
- Stop Bullying Coalition, http://stopbullyingcoalition.org/
- S985 An Act relative to bullying in public housing. https://malegislature.gov/Bills/191/S985 ; http://stopbullyingcoalition.org/ombudsS985
- S984 An Act to prevent and respond to bullying of elderly and disabled residents https://malegislature.gov/Bills/191/S984
- Jerry Halberstadt, To Stop Bullying: Legislative Remedies to Protect Elderly and Persons With Disabilities in Subsidized and Public Housing. A Report of the Stop Bullying Coalition, (Peabody: Togethering Press, 2018). Revised version of Halberstadt’s minority report to the General Court on his service on the Commission to Study Ways to Prevent Bullying of Tenants in Public and Subsidized Multi-Family Housing, pursuant to Chapter 2 of the Resolves of 2016.
- Jerry Halberstadt and Marvin So, Statewide Survey on Bullying of Tenants in Public and Subsidized Multifamily Housing, 2017.
- Janice Harper, PhD, “Bullying and Mobbing in Group Settings” http://stopbullyingcoalition.org/harper-mobbing
- Office of the Attorney General Advisory: All Tenants Have a Right to Be Free from Harassment and Intimidation, April 11, 2018. https://tinyurl.com/yyg5ax6r
- FR–5248–F–02 Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act, Final Rule published in the Federal Register on September 14, 2016, CFR Citation: 24 CFR 100, p. 63075.
- Jerry Halberstadt, Coordinator of the Stop Bullying Coalition. He was appointed Commissioner by Governor Charlie Baker in 2016 to serve on the Commission on Bullying representing the Stop Bullying Coalition.
- Bonny Zeh, co-founder of the Stop Bullying Coalition;
- Susan Bonner, Legislative Chair of the Mass Union of Public Housing Tenants;
- Mary Margaret Moore, past Executive Director of the Independent Living Center of the North Shore and Cape Ann;
- Pamela Goodwin, researcher and activist with the Stop Bullying Coalition;
- Lynn Costello, co-founder of the Lowell Anti-Bullying Coalition;
- Kenneth Tucker, tenant leader in Mansfield.