Wilson v. Housing Authority of City of Omaha, No. A-08-785 (Neb. App. 3/31/2009)
| Decision Date | 31 March 2009 |
| Docket Number | No. A-08-785.,A-08-785. |
| Parties | FRANCINA WILSON, APPELLANT, v. HOUSING AUTHORITY OF CITY OF OMAHA ET AL., APPELLEES. |
| Court | Court of Appeals of Nebraska |
Appeal from the District Court for Douglas County: JOHN D. HARTIGAN, JR., Judge. Affirmed.
Catherine Mahern and Elisabeth A. Cortese, Bradley E. Wolters, and Scott Mertz, Senior Certified Law Students, of Milton R. Abrahams Legal Clinic, for appellant.
George B. Achola for appellees.
Francina Wilson filed a petition in error in the district court for Douglas County, naming as defendants the Housing Authority of the City of Omaha, Nebraska (OHA); Stan Timm, in his capacity as executive director; Trudy Zimmerman, in her capacity as public housing coordinator; and Kerry Michael, in her capacity as hearing officer (collectively the Appellees). Wilson alleged that OHA had erred in its denial of Wilson's application for public housing benefits. The district court affirmed OHA's decision and dismissed Wilson's petition, and Wilson has appealed to this court. Because the record shows that Wilson was afforded procedural due process and that OHA's decision was supported by sufficient relevant evidence, the district court did not err in affirming OHA's denial of public housing benefits to Wilson. Accordingly, we affirm.
OHA is a public housing agency (PHA) responsible for administering federally subsidized public housing benefits in Omaha. OHA's responsibilities in administering benefits include screening applicants.
On March 19, 2007, Wilson submitted an application to OHA for public housing benefits.
On September 25, 2007, Zimmerman notified Wilson that Wilson was ineligible for benefits based on the results of a criminal background check performed by OHA. The denial letter informed Wilson that due to the confidential nature of criminal history checks, she should contact OHA's security department for further information. Zimmerman also cited "CFR 960.23" as a basis for denial, although the intended reference appears to have been 24 C.F.R. § 960.204 (2008).
At the time Wilson submitted her application, she had an open felony forgery charge against her dated March 2, 2007. OHA's background check also revealed a second felony forgery charge dated June 29, 2007. Under OHA's criminal background check policy, all felony offenses were assessed four points, giving Wilson a total of eight points and making her ineligible for assistance. Wilson was unaware of the charge against her at the time she submitted her application. Wilson did not plead guilty to nor has she been convicted of the two felony forgery charges. Wilson was placed in Douglas County's diversion program. In the event Wilson completed the program in approximately September 2008, the charges were to be dismissed.
Wilson requested an informal hearing to review the denial of benefits. The hearing was held on November 6, 2007, before Michael. At the hearing, Wilson was present and represented by counsel. Michael and Wilson discussed the results of Wilson's criminal background check as well as OHA's criminal background check policy; however, neither document was entered into the record as an exhibit. Certain exhibits were discussed during the course of the informal hearing and were made a part of the record on appeal to both the district court and this court, including a copy of a letter from the diversion program in which Wilson was enrolled, a copy of the September 25, 2007, denial letter, and a copy of 24 C.F.R. § 960.203 (2008) and a portion of 24 C.F.R. § 960.204.
On November 16, 2007, Michael upheld OHA's decision to deny housing benefits to Wilson. In the decision letter, Michael noted that she considered Wilson's score on the criminal background check as well as OHA's policies concerning criminal background checks.
On December 17, 2007, Wilson filed a petition in error in the district court. Wilson attached a copy of Michael's decision letter and a praecipe for the transcript from the informal hearing to her petition as exhibits.
The Appellees answered on January 8, 2008. The Appellees attached a copy of OHA's criminal background check procedure as an exhibit to their answer.
The district court heard the matter on March 17, 2008. The court received a copy of the November 16, 2007, decision letter and the bill of exceptions from the informal hearing with attached exhibits into evidence.
The district court entered an order on June 17, 2008, affirming OHA's decision and dismissing Wilson's petition in error. We have set forth the relevant portions of the district court's reasoning in the analysis section below. Wilson subsequently perfected her appeal to this court.
Wilson asserts, consolidated and restated, that (1) OHA did not provide her with adequate due process in denying her application for public housing benefits and (2) OHA's denial of benefits was not supported by sufficient evidence.
In reviewing an administrative agency decision on a petition in error, both the district court and the appellate court review the decision of the administrative agency to determine whether the agency acted within its jurisdiction and whether the decision of the agency is supported by sufficient relevant evidence. McKee v. City of Hemingford, 16 Neb. App. 837, 753 N.W.2d 854 (2008). The evidence is sufficient, as a matter of law, if an administrative tribunal could reasonably find the facts as it did based on the testimony and exhibits contained in the record before it. Id. Administrative action must not be arbitrary or capricious. Id. The reviewing court in an error proceeding is restricted to the record before the administrative agency and does not reweigh evidence or make independent findings of fact. Id.
The determination of whether the procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law. McKee v. City of Hemingford, supra. On a question of law, an appellate court is obligated to reach a conclusion independent of the court below. Id.
Due Process.
Wilson asserts that OHA did not provide her with adequate due process in denying her application for public housing benefits. Wilson argues that she was not provided with adequate notice of the allegations and that she was not provided with an impartial fact finder.
Procedural due process limits the ability of the government to deprive people of interests that constitute liberty or property interests within the meaning of the Due Process Clause. Parker v. State ex rel. Bruning, 276 Neb. 359, 753 N.W.2d 843 (2008). Procedural due process requires that the government provide parties deprived of liberty or property interests adequate notice and an opportunity for a hearing. Id. In proceedings before an administrative agency or tribunal, procedural due process requires notice, identification of the accuser, factual basis for the accusation, reasonable time and opportunity to present evidence concerning the accusation, and a hearing before an impartial board. Id.
For procedural due process, a notice must reasonably inform a person of the accusation levied and the forum where evidence upon such accusation can be presented. In re Appeal of Levos, 214 Neb. 507, 335 N.W.2d 262 (1983). Also, as provided in 24 C.F.R. § 960.208(a) (2008), "The PHA must promptly notify any applicant determined to be ineligible for admission to a project of the basis for such determination, and must provide the applicant upon request, within a reasonable time after the determination is made, with an opportunity for an informal hearing on such determination."
The September 25, 2007, denial letter sent to Wilson by Zimmerman provided as follows:
This letter is to inform you that your application for housing assistance placed with the [OHA] has been deemed INELIGIBLE due to the results of your completed form for your CRIMINAL BACKGROUND CHECK. The information is inconsistent with the questionnaire answered.
Since Criminal History checks are of the highest confidentiality, you need to contact the Security Department at [a specific telephone number] for further information.
If you feel the decision to withdraw your application is unfair, you have the right to request an informal review to appeal this decision. Such a request must be submitted in writing and sent to this office [at a specific address] within ten (10) days of the date of this letter. Failure to submit such a request will constitute a waiver of your right to said hearing.
The letter in this case informed Wilson that she had been deemed ineligible due to the results of her criminal background check and provided her with information about whom to contact in order to learn more about the results of that check. While a document with the results of the background check was not attached to the denial letter or introduced into evidence at the hearing, the record clearly shows that Wilson was shown a copy of the background check during the course of the hearing and that Wilson and her attorney discussed the results of the background check with Michael during the course of the hearing. Wilson does not contend in any way that she was surprised by the content of the discussion on the date of the hearing or that she contacted the number provided in the letter and was denied further information.
As noted by Wilson, the regulation "CFR 960.23" cited in the letter does...
To continue reading
Request your trial