Friday, June 20, 2008

New hearing ordered for Section 8 benefits

Article 78 is a procedure under New York law allowing you to challenge a government decision as arbitrary and capricious. These actions are expedited but difficult to win, as the courts assume that administrators and government officials are acting in good faith. They are equally hard to win in the context challenging an adverse decision at an evidentiary hearing, where the hearing officer can weigh the evidence and assess credibility, judgments which are impossible to attack on appeal.

If you lose an administrative hearing, whether it involves the loss of government employment or benefits, you can appeal in two ways: lack of evidence or a technical legal basis, usually involving due process. Most lawyers will tell you that the evidentiary basis is truly an uphill battle. Any evidence is usually enough to sustain the adverse decision, even if your side produced convincing evidence, as well.

These cases usually win on legal grounds, if they win at all. That's what happened in Matter of Chavis v. City of Poughkeepsie Office of Social Development, decided on June 17. My office represented Chavis in this appeal, argued in February 2008. The City revoked Chavis's Section 8 housing benefits after accusing her of improperly allowing her estranged husband to live in the subsidized apartment. The hearing officer told Chavis's (non-lawyer) representative that she could not represent Chavis at the hearing because the representative wanted to testify about the dynamics of domestic violence and how that factored into the allegations. As it happend, the hearing officer then decided that he did not need that insight into domestic violence, after all. As Chavis is developmentally disabled, she had to represent herself at the hearing, never a good strategy in light of the potential consequences, i.e., the loss of these important housing benefits. The Appellate Division concluded:

The hearing officer abused his discretion in his rulings concerning the petitioner's advocate, Priscilla Taylor, among which was her exclusion from the proceeding in her capacity as the petitioner's advocate. Therefore, under the unique circumstances of this case, we annul the determination confirming the termination of the petitioner's participation in the Section 8 Housing Choice Voucher Program and remit the matter to the respondents for a new fair hearing at which the petitioner can be properly represented either by an assigned attorney or the advocate or advocates she sought to have represent her at the original hearing on this matter.

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