Williams v. Integrated Community Services

• Decision Date: 24 May 2007
• Docket Number: No. 2006AP2795.,2006AP2795.
• Citation: 736 N.W.2d 226,2007 WI App 159
• Parties: Beverly A. WILLIAMS, Petitioner-Appellant, v. INTEGRATED COMMUNITY SERVICES, INC., Respondent-Respondent.
• Court: Wisconsin Court of Appeals

736 N.W.2d 226

2007 WI App 159

Beverly A. WILLIAMS, Petitioner-Appellant, v. INTEGRATED COMMUNITY SERVICES, INC., Respondent-Respondent.

No. 2006AP2795.

Court of Appeals of Wisconsin.

Submitted on Briefs April 16, 2007.

Opinion Filed May 24, 2007.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Korey C. Lundin, Gai A. Lorenzen, Jeffery R. Myer, and Mark A. Silverman of Legal Action of Wisconsin, Inc., Green Bay.

On behalf of the respondent-respondent, the cause was submitted on the brief of Randall L. Gast and Timothy M. Barber of Hanaway Ross, S.C., Green Bay.

Before LUNDSTEN, P.J., VERGERONT and HIGGINBOTHAM, JJ.

¶ 1 VERGERONT, J

The dispositive issue on this appeal is whether Integrated Community Services, Inc. (ICS) correctly construed 24 C.F.R. § 982.553(a)(2)(ii)(A) (2006)¹ in denying Beverly Williams' application for admission to the federal Section 8 Housing Voucher Program. ICS construed the regulation to permit it to deny admission to the program if a guest in Williams' home had engaged in illegal drug activity. The circuit court agreed with this construction and dismissed Williams' petition for certiorari review. We conclude that the conduct that may form a basis for denial of admission to the program under § 982.553(a)(2)(ii)(A) is only that of a household member and not that of a guest. We therefore reverse the circuit court's order and remand with instructions to reverse ICS's decision denying Williams' application.

BACKGROUND

¶ 2 The Section 8 Housing Voucher Program (officially called the Section 8 Tenant-Based Assistance Housing Choice Voucher Program) was created by Congress "for the purpose of aiding low-income families in obtaining a decent place to live." 42 U.S.C. § 1437f(a) (2000).² The United States Department of Housing and Urban Development (HUD) is authorized to enter into contracts with state public housing authorities (housing authority) and fund such agencies for the purpose of providing rent subsidies for eligible recipients. 42 U.S.C. § 1437f(b). HUD has a contract with the Brown County Housing Authority, which in turn contracts with ICS to administer the program in the Green Bay area.

¶ 3 HUD regulations, found at 24 C.F.R. pt. 982, govern the Section 8 program. Under these regulations, the housing authority takes applications for assistance and approves the applications according to financial and other eligibility criteria. See 24 C.F.R. § 982.201 and 24 C.F.R. § 982.553(a). The approved applicant is responsible for locating a suitable rental unit in the private sector and the housing authority must approve the tenancy according to applicable regulations, including approval of the unit, lease, rental rate, and owner. 24 C.F.R. §§ 982.302-306, 24 C.F.R. § 982.308, and 24 C.F.R. § 982.507. The housing authority then enters into a contract with the owner under which it agrees to make payments to the owner in a specified amount to subsidize the rent. 42 U.S.C. § 1437a(a); 24 C.F.R. § 982.311.

¶ 4 Williams applied to ICS for assistance under the Section 8 program. ICS determined that she was not eligible because she "or a member of [her] household [had] been involved in a drug related or criminal activity." Williams was informed that she could request an informal hearing, and she did so.

¶ 5 At the hearing, an ICS representative presented a police report regarding an arrest that had occurred at Williams' residence about four months earlier. The report stated that a person named Leroy Spinks was at the residence when police arrived seeking a different person. Police observed Spinks consuming marijuana in the house in the presence of several other people and arrested him. At the hearing, both Williams, who was represented by counsel, and the ICS representative assumed that Spinks was a guest rather than a tenant or a member of Williams' household. There was no evidence that Williams was a participant in the drug activity or was aware of it.

¶ 6 The hearing officer issued a written decision upholding the ICS decision to deny Williams' application. The decision stated that, while Spinks' arrest did not lead to a prosecution because of "procedural improprieties," nonetheless he was observed engaging in illegal acts. The officer concluded that it was irrelevant that Spinks was a guest rather than a household member because Williams was responsible for his conduct as a guest. The officer relied on HUD v. Rucker, 535 U.S. 125, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002), which, the officer concluded, "provides public housing authorities the right to evict households for drug related or other criminal activity committed by household members or household guests." (Emphasis in original.)

¶ 7 Williams filed a complaint in the circuit court seeking certiorari review of the ICS decision. The circuit court agreed with ICS's argument that it had the authority under the applicable regulations to deny Williams' admission to the program because a guest in her home had engaged in illegal drug activity.³

DISCUSSION

¶ 8 On appeal, Williams contends that ICS and the circuit court erred in their construction of 24 C.F.R. § 982.553(a)(2)(ii)(A) because the regulation plainly does not authorize denial of eligibility because of the conduct of a guest. Section 982.553(a)(2)(ii)(A) provides:

The PHA [(public housing agency)] may prohibit admission of a household to the program if the PHA determines that any household member is currently engaged in, or has engaged in during a reasonable time before the admission:

(1) Drug-related criminal activity;

(2) Violent criminal activity;

(3) Other criminal activity which may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents or persons residing in the immediate vicinity; or

(4) Other criminal activity which may threaten the health or safety of the owner, property management staff, or persons performing a contract administration function or responsibility on behalf of the PHA (including a PHA employee or a PHA contractor, subcontractor or agent).

(Emphasis in original.)

¶ 9 ICS responds that the permissible reasons for denying eligibility to household members also apply to guests by virtue of 24 C.F.R § 5.100, and in particular, the last sentence:

Guest, only for purposes of 24 CFR part 5, subparts A and I, and parts 882, 960, 966, and 982, means a person temporarily staying in the unit with the consent of a tenant or other member of the household who has express or implied authority to so consent on behalf of the tenant. The requirements of parts 966 and 982 apply to a guest as so defined.

(Emphasis added.) As noted above, part 982 governs the Section 8 program; part 966 governs "Public Housing Lease and Grievance Procedure."

¶ 10 ICS acknowledges on this appeal, as it did in the circuit court, that Rucker, 535 U.S. 125, 122 S.Ct. 1230, 152 L.Ed.2d 258, on which the hearing officer relied, does not address 24 C.F.R. § 982.553(a)(2)(ii)(A). Instead, in Rucker the Court addressed the statutory provision and implementing regulation that govern terms of the lease and termination of the tenancy. Id. at 127-28, 122 S.Ct. 1230. 42 U.S.C. § 1437d(l)(6) requires housing authorities to "utilize leases which . . . provide that . . . any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control shall be cause for termination of tenancy"; and 24 C.F.R. § 966.4(l)(5)(i)(B) substantially tracks this language. The Court concluded that this statute requires lease terms that allow eviction from public housing when a member of the tenant's household or a guest engages in drug-related criminal activity, "regardless of whether the tenant knew, or should have known, of the drug-related activity" and that this was a reasonable policy choice made by Congress. Rucker, 535 U.S. at 136, 122 S.Ct. 1230. ICS argues that, in spite of the different statute and regulation addressed in Rucker, the policy choice expressed in that statute supports its construction of the regulation at issue in this case.

¶ 11 On certiorari review we, like the circuit court, are limited to determining: (1) whether the agency stayed within its jurisdiction; (2) whether it acted according to law; (3) whether the action was arbitrary, oppressive, or unreasonable and represented the agency's will and not its judgment; and (4) whether the evidence was such that the agency might reasonably make the order or determination in question. Jackson v. Employe Trust Funds Bd., 230 Wis.2d 677, 682-83, 602 N.W.2d 543 (Ct.App.1999). Williams' challenge to ICS's construction of the federal regulations implicates the second basis for review.

¶ 12 The proper construction of an administrative regulation presents a question of law, which we review de novo. State v. Harenda Enter., Inc., 2006 WI App 230, ¶ 8, 297 Wis.2d 571, 724 N.W.2d 434 (citation omitted). Our purpose is to ascertain and give effect to the intent of the regulation. Bar-Av v. Psychology Examining Bd., 2007 WI App 21, ¶ 10, ___ Wis.2d ___, 728 N.W.2d 722 (citation omitted). When construing administrative regulations, we use the same rules of interpretation that we apply to statutes. Aslakson v. Gallagher Bassett Serv., Inc., 2007 WI 39, ¶ 25, ___ Wis.2d ___, 729 N.W.2d 712. Interpretation of an administrative regulation begins with the plain language of the regulation. Bar-Av, 2007 WI App 21, ¶ 10, 728 N.W.2d 722. We give the text its common, ordinary, and accepted meaning, except that we give technical or specially defined words their technical or special definitions. Id. As with statutory interpretation, we interpret the language of a regulation in the context in which it is used, "not in isolation but as part of a whole; in relation to the language of surrounding or closely-related [regulations]; and reasonably, [so as] to avoid absurd or...