(1)
Existing Procedures to Remain in Effect until Amended or
Replaced. Upon April 21, 2017, the Grievance procedure then in
effect at an LHA shall remain in effect and shall continue in effect unless and
until EOHLC approves a new or amended Grievance procedure. After April 21,
2017, each LHA shall compare the provisions of its Grievance procedure(s) with
the provisions of
760
CMR 6.08(4) and shall
initiate measures in order to achieve material compliance with those
provisions.
(2)
The
Purpose of the Grievance Procedure. Each LHA shall have a
Grievance procedure, approved EOHLC, of which the purpose shall be the prompt
and reliable determination of Grievances. An LHA's Grievance procedure shall
produce such prompt and reliable determinations of Grievances. A Grievance
procedure, which in operation shall repeatedly fail to produce prompt and
reliable determinations, shall be deemed deficient and shall be amended or
replaced in the manner specified in
760
CMR 6.08.
(3)
Establishment, Replacement,
or Amendment of a Grievance Procedure.
(a)
Negotiation of Grievance
Procedures. If no Grievance procedure is in effect at an LHA or if
an LHA or affected Local Tenants' Organization (LTO) believes that changes to
or replacement of an existing Grievance procedure are necessary or appropriate,
proposals for establishment, replacement, or amendment of the Grievance
procedure may be made at any time by either the LHA or an affected Local
Tenants' Organization (LTO). Establishment of a new Grievance procedure or
amendments to an existing Grievance procedure shall be negotiated by the LHA
and any affected LTOs and shall become effective upon the written approval of
EOHLC.
(b)
Approval of
a Procedure Which Has Not Been Negotiated. In Instances:
1. where the operations of an existing
Grievance procedure have repeatedly failed to produce prompt and reliable
determinations;
2. where there is
no operative Grievance procedure and where the LHA and the LTO(s) have been
unable to negotiate a new or amended Grievance procedure; or
3. where an LTO shall have failed to take
necessary steps for the proper functioning of a Grievance procedure (such as
naming a panel member willing and able to serve), the LHA may request that
EOHLC permit it to implement the three person panel Grievance procedure
referred to in
760
CMR 6.01 and published on EOHLC's website at
https://www.mass.gov/orgs/executive-office-of-housing-and-livable-communities.
However, if it shall reasonably appear to the LHA that notwithstanding its own
good faith efforts, a three person panel would likely not be promptly chosen,
the LHA may request that EOHLC permit it to implement the Grievance procedure
which provides for a single Hearing Officer. As part of a request that EOHLC
permit the LHA to implement one of these two unnegotiated Grievance procedures,
the LHA shall specify the reason(s) for its request and shall describe its
prior unsuccessful negotiations with the affected LTO(s). The LHA shall also
specify the reason(s) why it believes that further efforts to negotiate a
procedure would likely be unsuccessful. The LHA shall provide the affected
LTO(s) with a copy of its request permission to implement one of the two
unnegotiated Grievance procedures.
Following receipt of the request, EOHLC shall give the LTO(s) a
reasonable opportunity to respond in writing. EOHLC may also discuss the
request with the LHA and the LTO(s). If EOHLC shall determine:
a. that the operations of the existing
Grievance procedure have repeatedly failed to produce prompt and reliable
determinations of Grievances or that there is no operative Grievance
procedure;
b. that the LHA is not
primarily responsible for this deficiency; and
c. that further negotiations between the LHA
and the affected LTO(s) appear to be unlikely to produce an agreement on a new
or amended Grievance procedure, EOHLC may give permission to the LHA to
implement the three person panel Grievance procedure referred to in
760
CMR 6.01 and published on EOHLC's website at:
https://www.mass.gov/orgs/executive-office-of-housing-and-livable-communities
or, if it shall appear to EOHLC that a three person panel would likely not be
promptly chosen notwithstanding good faith efforts by the LHA, EOHLC may give
permission to the LHA to implement the Grievance procedure which provides for a
single Hearing Officer.
(4)
Requirements for Grievance
Procedures. An LHA's Grievance procedure shall provide for the
following:
(a)
Initiation of a
Grievance. A Grievance regarding whether good cause exists for
terminating a lease shall be initiated by a Tenant in writing and shall be
mailed or delivered to the LHA at its main office within seven days after a
notice of lease termination has been given to Tenant by the LHA.
A Grievance regarding whether participation in the MRVP or AHVP
should be terminated shall be initiated by a Program Participant in writing and
shall be mailed or delivered to the LHA at its main office within seven days
after a notice of program termination has been given to the Program Participant
by the LHA.
A Grievance regarding some other matter shall be initiated by a
Grievant in writing and shall be mailed or delivered to the LHA at its main
office, or at a Development office, if so specified, no more than 14 days after
the date on which the Grievant first became aware or should have become aware
of the subject matter of the Grievance, provided that the LHA shall have
discretion to permit a Grievance to be initiated late.
The LHA shall permit additional time for initiation of a
Grievance if the LHA shall find that there was a good reason for late
initiation of the Grievance and that the late initiation would not cause
prejudice to the LHA.
(b)
Informal Settlement Conference. Promptly after the
initiation of a Grievance, unless otherwise provided, the LHA's executive
director or his or her designee shall give the Grievant the opportunity to
discuss the Grievance informally in an attempt to settle the Grievance without
the necessity of a Grievance hearing. The LHA shall give reasonable advance
notice to the Grievant and his or her representative (if any) of a time and
place for an informal settlement conference, unless such a conference shall
have taken place when the Grievance was delivered to the LHA. If a matter is
not resolved at the informal settlement conference, a Grievance hearing shall
be held. Failure to attend an informal settlement conference shall not affect a
Grievant's right to a Grievance hearing.
(c)
Hearing Date and Notice of
Hearing. A Grievance hearing regarding whether good cause exists
for terminating a lease shall be scheduled within 14 days or as soon as
reasonably practical after the date on which the LHA receives the Grievance. A
hearing of a Grievance regarding some other issue, shall be scheduled as soon
as reasonably convenient following receipt of the Grievance.
The LHA shall give reasonable advance written notice of the
time and place of the hearing to the Grievant and to his or her representative
(if any). The LHA, the Hearing Panel, or the Hearing Officer may reschedule a
hearing by agreement or upon a showing by Grievant or by the LHA that
rescheduling is reasonably necessary.
(d)
Pre-hearing Examination of
Relevant Documents. Prior to a Grievance hearing the LHA shall
give the Grievant or his or her representative a reasonable opportunity to
examine LHA documents which are directly relevant to the Grievance. Following a
timely request, the LHA shall provide copies of such documents to Grievant and,
for good cause (including financial hardship), may waive the charge for the
copies.
(e)
Persons
Entitled to Be Present. The Grievance hearing shall be private
unless the Grievant requests that it be open to the public. If the Grievant
requests an open hearing, the hearing shall be open to the public unless the
Hearing Panel or the Hearing Officer otherwise orders. The LHA and the Grievant
shall be entitled to specify a reasonable number of persons who may be present
at a private hearing. A challenge to the presence of any such person shall be
decided by the Hearing Panel or the Hearing Officer. At the hearing the LHA and
the Grievant may be represented by a lawyer or by a non lawyer. Each person
present at the hearing shall conduct himself or herself in an orderly manner or
he or she shall be excluded. If the Grievant misbehaves at the hearing, the
Hearing Panel or Hearing Officer may take other appropriate measures to deal
with the misbehavior, including dismissing the Grievance.
(f)
Procedure at Grievance
Hearings. The Hearing Panel or the Hearing Officer shall conduct
the Grievance hearing in a fair manner without undue delay. The Hearing Panel
or the Hearing Officer shall initially take appropriate steps to define the
issues. Thereafter, relevant information, including testimony of witnesses and
written material, shall be received regarding such issues. Both the Grievant
and the LHA shall be entitled to question each other's witnesses. Procedure at
the hearing shall be informal, and formal rules of evidence shall not apply.
The hearing shall be recorded. The members of the Hearing Panel or the Hearing
Officer may question witnesses and may take notice of matters of common
knowledge and applicable laws, regulations and LHA rules and policies. The
panel members or the Hearing Officer may request the LHA or the Grievant to
produce additional information which is relevant to the issues or which is
necessary for a decision to be made provided that the other party is provided
an opportunity to respond to such additional information.
(g)
Written Decision; Effect of
Decision. Within 14 days following the hearing or as soon
thereafter as reasonably possible the Hearing Panel or the Hearing Officer
shall provide the LHA with a written decision on the Grievance, describing the
factual situation and ordering whatever relief, if any, that shall be
appropriate under the circumstances and under applicable laws, regulations,
rules and/or policies. The decision shall be based on the evidence at the
Grievance hearing and such additional information as may have been requested by
the Hearing Panel members or the Hearing Officer. The LHA shall forthwith mail
or otherwise deliver a copy of the decision to the Grievant and his or her
representative. A copy of the decision (with names and personal identifiers
deleted) shall thereafter be maintained at the LHA and shall be open to public
inspection.
(h)
Review
by the LHA's Board. In cases where the decision concerns whether
good cause exists for terminating a lease, there shall be no review by the
LHA's Board. In other cases, in the event that the Grievant or the LHA believes
that:
1. the decision of the Hearing Panel or
Hearing Officer is not supported by the facts;
2. the decision does not correctly apply
applicable laws, regulations, rules and/or policies; or
3. the subject matter is not grievable,
within 14 days of mailing or other delivery of the decision, the Grievant or
the LHA may request review of the decision by the LHA's Board. The Board shall
promptly decide whether to uphold, set aside or modify the decision after
permitting the LHA and Grievant to make oral presentations and submit
documentation. The Board may also permit the Hearing Officer or Hearing Panel
to make a presentation. The decision of the Board shall be in writing and shall
explain its reasoning. If a written decision is not rendered within 45 days
from the date a review is requested, the decision of the Board, when rendered,
shall specify a reason showing that there has been no undue delay.
(i)
Review by
EOHLC. In the event that the LHA's Board shall make a material
change in a decision of the Hearing Panel or Hearing Officer, upon written
request of the Grievant made within 14 days of mailing or other delivery of the
decision, EOHLC shall review the decision of the Board and shall render a
written decision upholding, setting aside or modifying the decision of the
Board.
(j)
Effect of a
Decision on a Grievance. The decision on a Grievance shall be
binding between the LHA and the Grievant with respect to the particular
circumstances involved in the Grievance, provided that if a court has
jurisdiction to determine a matter which has been subject to decision on a
Grievance, the court's determination on the matter shall supersede the decision
on the Grievance. The fact that a person may have failed to grieve a matter
shall not affect any such jurisdiction by a court. As between the LHA and any
person who was not a Grievant, the decision on a Grievance shall have no
binding effect.
