June 26, 2022
Dear Senator Joan B. Lovely & Representative Tom Walsh:
In the remaining days of the session, I appeal to you to amend S900/H1407.
As it is written, it will not protect from bullying and mobbing because the procedures envisioned by the bills rely on the goodwill of landlords and of the various agencies with nominal oversight power. We tenants know that such goodwill does not exist everywhere. If passed in the current format, the bills will not provide immediate solutions and would tend to inhibit more robust approaches for years to come.
When I began to advocate on the issue of bullying back in 2012, the goal was to protect from bullying elderly and disabled tenants in public and subsidized housing. I have been honored to work with each of you and with many other legislators, tenants, and advocacy groups and to have served on the Commission on Bullying as a Commissioner appointed by the Governor.
All of my efforts have focused on the needs of others. And I have been motivated by the cries of those who have been subject to abuse, eviction and threats of eviction, homelessness, and ongoing trauma. I cannot rest until we have a realistic solution; S900 can be that solution only if we address the need for accountability of landlords and all housing agencies.
I recognize that landlords and agencies may be unwilling to see the needs of tenants given priority, just as the Commission on Bullying didn't want me to advocate for tenants. But elderly and disabled people cannot trust our legislative and administrative process until our needs are recognized and addressed.
I am attaching a letter from Rachel I. Branch which she has requested that I share with you. Mrs. Branch is a dedicated community leader, a writer, and has over 20 years of working in the legal field. She is also a former Fair Housing Commissioner and a North Adams former Housing Authority Commissioner.
I have attached a series of focused questions on the language of the bill with the hope that we might work to revise and amend the bill.
We have come a long way together, and have accomplished a great deal, now let us complete the task and help our elderly and disabled people in subsidized and public housing to live in tranquility.
Thank you for your consideration,
Coordinator, Stop Bullying Coalition
Co-founder, Stop Bullying Coalition
Former Board Member & Chair of the Legislative Committee, Mass Union of Public Housing Tenants
Former Chair and current member, Resident Advisory Board, Boston Housing Authority
(Mrs.) Rachel I. Branch
Former Fair Housing Commissioner & Former North Adams Housing Authority Commissioner
Kolya Lynne Smith
Tenant in subsidized housing, Boston
Tenant in Salem Public Housing, "Still living the nightmare."
Letter from (Mrs.) Rachel I. Branch
June 24, 2022
To Whom It May Concern:
On December 9, 2021, I filed a very comprehensive and extensive complaint with HUD with 33 supporting documents.
Most of what I am saying here is a reaction to what my own experience has been, especially being threatened with eviction, and I have not in any way been assisted with one iota of resolution in over a year and a half.
From my own experience, this proposed Senate Bill 900 is a totally unacceptable attempt to stop bullying of elderly and disabled residents.
There appear to be no teeth or specific directives in the proposed law: Where is the accountability?; Where does a resident go for assistance?; Where are the provisions for paid legal assistance for a victim?; Where are the substantive procedures and protections when a Federal or Commonwealth agency, charged with enforcing housing regulations, does not do its jobs and responds with real remedies for victims?; What courts or offices in the Attorney General's office (Consumer Protection or Civil Rights departments?) can be accessed to get real, timely assistance, and appropriate and timely remedies?
A law that is passed that does not aggressively offer support, real solutions, and especially funds to enforce its passage, is not even worth the paper it is written on. The last thing we seasoned and disabled citizens need is the appearance that there is real help available and that we are protected when we have a complaint.
The devastating effects on our elders in subsidized housing cause real and long-lasting trauma and emotional harm that causes the victim to be placed in the position of the perpetrator exerting unlawful control over the victim. It is egregious and there must be remedies to stop this bullying, mobbing, elder abuse and loss of civil rights, especially at this time in our lives.
There is a lot in this bill that kicks the can down the road before it is even enacted, which doesn't bring to the fore the reality of what is, and has been, happening across the Commonwealth all these years, and the residents who are living in abject fear.
(Mrs.) Rachel I. Branch
Queries on the text of S900
References to the text of S900 An Act to prevent and respond to bullying of elderly and disabled residents are to the line numbers, e.g.: #4 found in the PDF file.
In my reading of the text of S900/H1407 I have the following questions and concerns:
Is there an effective method for holding a landlord (owner/manager) accountable for mobbing, that is to condone, engage in, or fail to act effectively against bullying? The division, presumably DHCD, HUD, or MassHousing, has heretofore not intervened to protect the rights of tenants
Save the Attorney General, what other agency can step in to protect the rights of a tenant victim of mobbing?
When a case comes before a judge, is not the court required to determine if the facts of the case meet the definitions of the law, if the facts are proven; and can choose a punishment according to the type defined in the law. It seems that absent such clearly defined acts and procedures, there is no way for a court to act. Is this a correct conclusion, and if so, how will this law provide protection in the face of wrongdoing?
What is there in S900 which could in a court of law define and justify a judge to sanction an owner/manager for mobbing? What other effective and available protection exists?
Section 1: needs a definition of “the division”: is it the civil rights division in the office of the Attorney General? See #113-115 where it is AG and compare #123-124 where it is one of several undefined agencies, presumably DHCD, HUD, or MassHousing.
#4 typo? residents of employees-→or employees
#6-7 physical or emotional harm: hard to establish emotional harm, why not use the more commonly understood concept that bullying is an attempt to control another person by aggressive words or acts. Or state “inflicting emotional harm in an attempt to control another person by aggressive words or acts.”
#52 Bullying shall be prohibited. #63 Retaliation...prohibited. How and by whom is this to be enforced? This is covered under (2):
reporting; response, and investigation;
#103 (enforcement) employment sanctions or lease enforcement
#103-105 (enforcement) balance accountability with education
Is there any other sanction in law or lease other than lease enforcement? Given that in some courts it is often impossible to evict an elderly person, how then to have effective sanctions?
#114 “when civil and/or criminal charges may be pursued against the perpetrator” What law or statute establishes that bullying or mobbing is a criminal offense? Bullying or mobbing may be a civil offense under MGL c.12 Section c. 12, §§ 11H-J. Insofar as a tenant cannot afford a civil action, only the Attorney General could intervene, and this has rarely been done. To implement this law, either the AG must intervene; or if an individual pursues a civil action and wins, then there must be sufficient compensation to motivate an attorney.
#123-125 What regulation or law would guide or require action by the division when the alleged perpetrator is the landlord? Currently, malfeasance by landlords is rarely, if ever, accountable.
#162 Owner/manager is responsible for the plan and for implementing it. What sanctions if the owner/manager fails? How?
#170-173 What local law enforcement agency has the authority to pursue civil and/or criminal charges against a perpetrator?
Proposed draft amendment to S900
Add to Section 1, definitions:
hostile environment harassment: whether unwelcome conduct is sufficiently severe or pervasive as to interfere with protected rights and therefore constitute hostile environment harassment, is evaluated from the perspective of a reasonable person in the aggrieved person's position.
Add the following Section:
There shall be an independent ombuds office within and funded by the Office of the Attorney General. The ombuds shall accept reports of bullying, mobbing, and harassment; investigate; advise the landlord on appropriate interventions; and shall refer for civil action by the Attorney General to protect the rights of any tenants who have been prevented from enjoying their rights as citizens and tenants due in whole or part to the failure of the landlord to intervene and remedy the situation. The Attorney General shall consider and may undertake a civil action against the landlord and their agents when they have not provided effective protection from bullying, i.e., a mobbing situation, and may consider civil actions against the oversight agencies including DHCD, HUD, or MassHousing in situations where they have failed to address and remedy failure by the landlord where bullying has reached the level of mobbing and/or that creates a situation that makes it impossible for one or more tenants to have the quiet enjoyment of their tenancy or hostile environment harassment.
The ombuds shall develop and publish definitions of hostile environment harassment as a clear guide to enforcement.
The ombuds shall prepare a comprehensive annual report and submit it to the Governor, the Clerks of the House and Senate of the Legislature, and the Attorney General and shall publish it for the public.
[The Attorney General is empowered to act by law, including under the authority of MGL c.12 Section c. 12, §§ 11H-J and M.G.L. c. 151B, § 4(4A).2 .]
“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); M.G.L. c. 151B, § 4(4A).2 Secured rights include the right to quiet enjoyment of housing and the right to legal process.” Office of the Attorney General Advisory: All Tenants Have a Right to Be Free from Harassment and Intimidation, April 11, 2018.
The HUD Office of Fair Housing asserts that the landlord and their agents are responsible for protecting the peaceful enjoyment of all tenants. 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
i. Totality of the Circumstances: § 100.600(a)(2)(i)
Section 100.600(a)(2) defines what constitutes hostile environment harassment under the Act. In accordance with this provision, establishing a hostile environment harassment violation requires proving that: A person was subjected to unwelcome spoken, written, or physical conduct; the conduct was because of a protected characteristic; and the conduct was, considering the totality of the circumstances, sufficiently severe or pervasive as to interfere with or deprive the victim of his or her right to use and enjoy the housing or to exercise other rights protected by the Act. Whether a hostile environment harassment violation has occurred is a fact-specific inquiry, and the rule supplies a non-exhaustive list of factors that must be considered in making that determination. It would be impossible to quantify in the rule the amount of evidence necessary to make such a showing in every case involving a claim of hostile environment harassment. The additional instruction in the rule text, and not just the preamble, that the “totality of the circumstances” is to be evaluated from the perspective of a reasonable person in the aggrieved person's position will aid all parties in assessing whether a “hostile environment” has been created.