Phil Querin Q&A: What access to documents and office do I have to provide to Oregon Housing and Community Services?

Want access to MHCO content?

For complete access to forms, conference presentations, community updates and MHCO columns, log in to your account or register.

September 30, 2013

Question: What records are we obligated to share with state government officials? Recently representatives of Oregon Housing and Community Services (“OHCS”) were at the community and stopped by the office. They started asking for documents, copies of forms, etc. What are my rights as a manager or community owner when it comes to these types of situations?

Answer: Normally, I don’t like to equivocate, but here, I’m going to have to do so. I suspect this answer might be quoted to the OHCS as a reason for declining to cooperate, so want to be careful how I answer. So rather than give a definitive “Yes” or “No” I’m going to give you some things to think about, before turning over documents to anyone other than a bona fide applicant who wants to rent a space. 1. Ask yourself: “How am I benefited by turning over my documents and forms?” From where I sit, I see no benefit. OHCS is not applying for tenancy. If they can explain to you what good comes to your park by turning over forms that you or MHCO paid to have developed, I might change my mind. 2. Ask yourself: “What can they do if I decline?” OHCS describes its services and functions as follows: “Oregon Housing and Community Services is Oregon's housing finance agency, providing financial and program support to create and preserve opportunities for quality, affordable housing for Oregonians of lower and moderate income. The current agency was created in 1991, when the legislature merged the Oregon Housing Agency with State Community Services. The coordination between housing and services creates a continuum of programs that can assist and empower lower-income individuals and families in their efforts to become self-reliant. OHCS administers federal and state antipoverty, homeless and energy assistance, and community service programs. OHCS also assists in the financing of single-family homes, the new construction or rehabilitation of multifamily affordable housing developments, as well as grants and tax credits to promote affordable housing.” These are all worthwhile and laudable goals. But I don’t see anything on their website [here] suggesting that they are an enforcement or regulatory agency. So, it appears that a polite refusal to share the forms and other documents you use to operate your community will not be met by any sanction. If they can explain to you what they will do if your refuse to cooperate, and it appears they could visit upon you and your community a parade of unpleasant horribles, I might change my mind. 3. Ask yourself: “Well, if they are not a regulatory or enforcement agency, can there be any harm in cooperating?” In looking at their website, it is clear that part of their mission is to: “…create and preserve opportunities for quality, affordable housing for Oregonians of lower and moderate income.” Oregon law protects against discrimination in the sale, leasing or renting of housing, bases upon “source of income.” [See, ORS 459A.421.] Today, there is a case pending before the United States Supreme Court, which will address whether discrimination arising from “disparate impact” is a violation of the Fair Housing laws. What is “disparate impact?” It means that you, as a landlord or manager, can be held to have discriminated against a member of a protected class – not because of any intent to do so – but merely because your rules, policies, or procedures in the application process, affect them more harshly than other people not in the class. It is clear from their website and stated mission, that fair housing is an important issue with the folks at OHCS. That’s a good thing. But my mission is to protect – through education – MHCO’s members with good risk management procedures. My experience has been that most alleged violations of fair housing laws are inadvertent, sometimes through the use of testers. That being the case, my concern in voluntarily turning over forms and documents used in managing your community, someone at OHCS might see a policy, rule, or screening criteria, that they interpret as a per se’ violation of state, federal, county or city housing laws. [To put a fine point on this, go to the Fair Housing Council of Oregon’s chart here, identifying the plethora of laws you are already expected to comply with, depending on the location of your community.] While I do not see that OHCS could do anything to you if they saw a potential violation, I certainly could see the documents, or information gleaned from them, being turned over to private or public entities that could do something, either through civil action or regulatory action. So, if OHCS can explain to you (a) why they need the information; (b) what they would do if they did see something they didn’t like; and (c) what assurances they can give you that they will not turn the documents or information over to a third party for some sort of enforcement action. It they can provide you with such assurances, I might change my mind. As I have said above, OHCS’s aspirational goals are laudable, and we should have no issue with them. If you want to assist in those goals, you should financially contribute to their cause. But you must also be prudent in your management decisions, balancing the risks versus the benefits, of cooperation. I see no benefits, but I do see great risks.

Location Tags: