[Federal Register Volume 61, Number 232 (Monday, December 2, 1996)]
[Rules and Regulations]
[Pages 63756-63758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30622]


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LEGAL SERVICES CORPORATION
45 CFR Part 1633


Restriction on Representation in Certain Eviction Proceedings

AGENCY: Legal Services Corporation.

ACTION: Final rule.

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SUMMARY: This final rule revises the Legal Services Corporation's 
(``LSC'' or ``Corporation'') interim regulation that prohibits the 
representation of persons in public housing eviction proceedings when 
such persons have been charged with or convicted of engaging in certain 
illegal drug activity. The prohibition in the prior rule applied only 
to LSC funds. This rule is revised to implement new legislation that 
extends the prohibition to a recipient's non-LSC funds. Revisions are 
also made to respond to comments received by the Corporation.

DATES: This final rule is effective on January 1, 1997.

FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel, at 
(202) 336-8910.

SUPPLEMENTARY INFORMATION: The Legal Services Corporation's regulation, 
45 CFR Part 1633, prohibits recipients from representing persons in 
public housing eviction proceedings when such persons have been charged 
with or convicted of engaging in certain illegal drug activity. The 
prior rule applied the prohibition only to a recipient's LSC funds. The 
interim rule extended the prohibition to a recipient's non-LSC funds as 
required by Sec. 504(a)(17) of the Corporation's Fiscal Year (``FY'') 
1996 appropriations act, Pub. L. 104-134, 110 Stat. 1321 (1996). The 
Corporation's FY 1997 appropriations act, Pub. L. 104-208, 110 Stat. 
3009 (1996), retains the restriction by incorporating Section 504 of 
the FY 1996 appropriations act by reference.

[[Page 63757]]

Background

    In order to implement the new statutory restriction in its FY 1996 
appropriations act, on May 19, 1996, the Operations and Regulations 
Committee (``Committee'') of the LSC Board of Directors (``Board'') 
requested LSC staff to prepare an interim rule. The Committee held 
hearings on staff proposals on July 9 and 19, and the Board adopted an 
interim rule on July 20 for publication in the Federal Register. 
However, the Corporation also solicited public comment on the interim 
rule for review and consideration by the Committee and Board.
    Nine comments were received by the Corporation, and the Committee 
held public hearings on Sept. 29, 1996, to review the comments and 
consider revisions to the interim rule. The Committee made several 
recommendations to the Board for revisions to the rule based largely on 
the comments. The Board adopted the Committee's recommendations as a 
final rule on September 30, 1996.
    Generally, the revisions to this final rule, as did the interim 
rule, implement Sec. 504(a)(17) of Public Law 104-134, which prohibits 
the Corporation from providing funds to recipients that defend persons 
in public housing eviction proceedings who have been charged with 
certain illegal drug activities, regardless of the source of the funds 
used to pay for the representation. In addition, revisions have been 
made in response to comments requested by the Corporation on policy 
guidelines announced by the United States Department of Housing and 
Urban Development (``HUD'') in March 1996, after the LSC Board 
initially adopted part 1633 on February 24, 1996.
    A section-by-section discussion is provided below.

Section 1633.1  Purpose

    This section is revised to reflect new law that applies the 
prohibition in this rule to all of a recipient's funds. The final rule 
retains the language of the interim rule.

Section 1633.2  Definitions

    The definition of ``charged with'' has been revised to better 
conform with the intent of the rule. While the interim rule left the 
language of this section unchanged from the prior rule, the Board 
revised the definition of ``charged with'' in this final rule to better 
conform with the overall intent of the rule. The revised definition 
clarifies that a person must be charged by a governmental entity having 
the authority to make such charges. The prohibition on representation 
applies only when a formal charge of illegal drug activity, whether by 
information or indictment or their equivalent, has been made by the 
appropriate authority and is pending against a person, or when there 
has been a conviction. Thus, the prohibition on representation of a 
person does not apply when a charge has been dismissed or the person 
has been acquitted of the illegal drug activity. See 63 FR 14250-14251 
(April 1, 1996).

Section 1633.3  Prohibition

    Except for the change which extended the prohibition in this 
section to a recipient's non-LSC funds, the interim rule did not alter 
the prior rule. In this final rule, however, the Board has made further 
changes in response to the comments received as a result of the 
Corporation's request for comments on conforming the rule to the new 
HUD policy guidelines on public housing evictions.
    The Corporation received 8 comments opposed to extending the rule's 
prohibition to incorporate the HUD policies. On the other hand, the 
Corporation also received one comment from the Public Housing 
Authorities Directors Association (``Housing Association''), which 
represents approximately 1700 public housing authorities, suggesting 
several changes to conform to the HUD policy.
    One element of the HUD policy requires housing authorities to 
include in each tenant's lease a provision holding the leaseholder 
responsible for the actions of all members of the household and guests. 
The Housing Association suggested that, because housing authorities are 
now required by law to initiate eviction proceedings against a 
household ``even if the illegal activity was not undertaken by the head 
of the household,'' the Corporation should adopt this policy in part 
1633. Comments opposing the inclusion of this policy in part 1633 
stated that innocent tenants should not be denied representation in 
eviction proceedings because of the alleged actions of another family 
member. These comments explained that most of these innocent tenants 
are poor and legal services programs may be their only source of 
representation. According to one comment, the innocent family members 
often need legal protection from the drug abuser and to single them out 
for denial of legal assistance would ``stand justice on its head.''
    The LSC Board agreed that the prohibition should not be extended to 
family members. Section 504(a)(17), which expressly limits the 
prohibition to the person who has been charged with certain drug 
activities, does not require the Corporation to adopt the HUD policy. 
While the HUD policy may require housing authorities to begin eviction 
proceedings based on the activity of other family members in the drug 
abuser's household, no legislation prohibits legal services attorneys 
from representing such family members regarding their eviction.
    The Housing Authority also commented that the underlying 
legislation for this rule is deficient in that it does not apply the 
restriction on representation to a person who has been charged with the 
manufacture and use of a controlled substance. The prohibition in the 
interim rule tracked the statutory language and only prohibited 
representation of persons who have been charged with the illegal sale 
or distribution of a controlled substance.
    The Board agreed to revise the final rule to add other drug 
activities that would pose a danger to the people in the housing 
communities. The Board determined the changes to be consistent with the 
Congressional intent to address the evil of drug dealing in public 
housing projects. Thus, the rule now prohibits a recipient from 
defending any person in an eviction proceeding if that person ``has 
been charged with or has been convicted of the illegal sale, 
distribution or manufacture of a controlled substance, or possession of 
a controlled substance with the intent to sell or distribute.''
    Another issue raised by the Housing Association was whether part 
1633 is intended to give legal services programs the authority to 
determine whether, in a particular case, the drug activity constitutes 
a threat to the health and safety of the housing project's tenants. The 
Board agreed that the rule already clearly assumes that such authority 
lies with the Housing Authorities. Recipients are prohibited from 
representing a client when a Housing Authority has brought an eviction 
proceeding on the basis that the drug activity threatens the health and 
safety of the other tenants. Since it is the Housing Authority that 
brings the eviction proceeding and the proceeding must be based on the 
health and safety factor, then it is the decision of the Housing 
Authority that is operative for the purposes of this rule. Accordingly, 
no changes were made in the final rule to address this concern.
    The Housing Association also recommended that more specific 
language be used in the rule stating that eviction proceedings 
contemplated by this rule may be initiated even when the illegal drug 
activity takes place outside

[[Page 63758]]

of the housing premises. The Board determined that there is no need to 
address this issue in the rule. There is nothing in the rule that 
limits the prohibition to drug activity on the housing premises. It is 
the decision of the Housing Authority whether to allege that illegal 
drug activity threatens the health or safety of other tenants, 
regardless of where it has taken place. When an eviction proceeding is 
initiated alleging such a threat and the other terms of the rule are 
met, legal services programs may not provide representation to the 
persons charged with the violations.
    Finally, the Housing Association opposed the provision in the 
interim rule that representation is prohibited if ``the person has been 
charged with or, within one year, prior to the date when services are 
requested from a recipient, has been convicted of the illegal sale or 
distribution of a controlled substance.'' [emphasis added]. According 
to the Housing Association, this one-year provision exceeds statutory 
authority and ``does not adequately address the wide variety of 
circumstances that are associated with illegal drug activities.'' The 
Board agreed to delete the one-year provision on the grounds that it is 
unnecessary, because a Housing Authority must allege and presumably 
demonstrate in court that drug related activities are a current threat 
to the health and safety of the other tenants. The Board did make a 
revision to Sec. 1633.3(b) of the final rule, however, to clarify that 
the illegal drug activity for which the person has been charged 
currently threatens the health and safety of other tenants.

List of Subjects in 45 CFR Part 1633

    Grant programs-law, Legal services.

    For reasons set forth in the preamble, 45 CFR part 1633 is revised 
to read as follows:

PART 1633--RESTRICTION ON REPRESENTATION IN CERTAIN EVICTION 
PROCEEDINGS

Sec.
1633.1  Purpose.
1633.2  Definitions.
1633.3  Prohibition.
1633.4  Recipient policies, procedures and recordkeeping.

    Authority: 42 U.S.C. 2996e(a), 2996e(b)(1)(A), 2996f(a)(2)(C), 
2996f(a)(3), 2996g(e); 110 Stat. 3009; 110 Stat. 1321 (1996).


Sec. 1633.1  Purpose.

    This part is designed to ensure that in certain public housing 
eviction proceedings recipients refrain from defending persons charged 
with or convicted of illegal drug activities.


Sec. 1633.2  Definitions.

    (a) Controlled substance has the meaning given that term in section 
102 of the Controlled Substances Act (21 U.S.C. 802);
    (b) Public housing project and public housing agency have the 
meanings given those terms in section 3 of the United States Housing 
Act of 1937 (42 U.S.C. 1437a);
    (c) Charged with means that a person is subject to a pending 
criminal proceeding instituted by a governmental entity with authority 
to initiate such proceeding against that person for engaging in illegal 
drug activity.


Sec. 1633.3  Prohibition.

    Recipients are prohibited from defending any person in a proceeding 
to evict that person from a public housing project if:
    (a) The person has been charged with or has been convicted of the 
illegal sale, distribution, or manufacture of a controlled substance, 
or possession of a controlled substance with the intent to sell or 
distribute; and
    (b) The eviction proceeding is brought by a public housing agency 
on the basis that the illegal drug activity for which the person has 
been charged or for which the person has been convicted threatens the 
health or safety of other tenants residing in the public housing 
project or employees of the public housing agency.


Sec. 1633.4  Recipient policies, procedures and recordkeeping.

    Each recipient shall adopt written policies and procedures to guide 
its staff in complying with this part and shall maintain records 
sufficient to document the recipient's compliance with this part.

    Dated: November 26, 1996.
Victor M. Fortuno,
General Counsel.
[FR Doc. 96-30622 Filed 11-29-96; 8:45 am]
BILLING CODE 7050-01-P