# Rivas v. Chelsea Housing Authority

> Massachusetts Appeals Court · August 31, 2011 · 80 Mass. App. Ct. 294

URL: https://www.frixlaw.com/law-library/cases/6464097

## Case

- **Full name:** Elizabeth Rivas v. Chelsea Housing Authority
- **Court:** Massachusetts Appeals Court
- **Decided:** August 31, 2011
- **Citations:** 80 Mass. App. Ct. 294; 952 N.E.2d 941; 2011 Mass. App. LEXIS 1150
- **Precedential status:** Published
- **Opinion:** Dissent by Mills
- **Judges:** Green, Mills
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

Mills, J.
(dissenting). By regulation, 760 Code Mass. Regs. § 6.08(4)(b) (1998), the Chelsea Housing Authority (authority) was required to notify Rivas of her right to an informal settlement conference and to conduct such a conference prior to formal grievance proceedings. Because, in the absence of such a conference, the authority’s decision was made upon unlawful procedure, and because I conclude that this unlawful procedure prejudiced her substantial rights, I would reverse the judgment and remand for further proceedings. Accordingly, I respectfully dissent.
1. Unlawful procedure, a. Waiver. The majority first dismisses Rivas’s claim to a right to the notice and process of an informal settlement conference on the grounds of waiver. Of course, the well-established typical rule is that “[a] party is not entitled to raise arguments on appeal that he could have raised, but did not *303 raise, before the administrative agency.” Foxboro Harness, Inc. v. State Racing Commn., 42 Mass. App. Ct. 82, 85 (1997), quoting from Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493 (1983).
But waiver is, itself, waivable. Niles v. Boston Rent Control Administrator, 6 Mass. App. Ct. 135, 151-152 (1978). Where a party seeks to argue that an opponent’s claim is waived because it was not presented to the administrative agency, it must preserve its waiver argument by raising it in Superior Court on G. L. c. 30A review. Gordon v. State Bldg. Code Appeals Bd., 70 Mass. App. Ct. 12, 16-17 (2007).
Here, the authority defended Rivas’s G. L. c. 30A complaint in Superior Court on the merits. The authority did not raise a waiver defense to Rivas’s claim that the agency proceedings were defective without the informal settlement conference and that this defect warranted reversal. The authority also did not raise waiver before this court. The authority has therefore waived any waiver defense it might assert on appeal. 1
b. Merits. I conclude that the applicable regulations mandate that the authority both notify grievants of their right to an informal settlement conference and conduct such a conference. Because the regulations afford the authority no discretion in this matter, the absence of notice and of the conference itself made the authority’s procedure here unlawful.
Preliminarily, I respectfully do not share the majority’s view that Rivas only cast her argument on this point in due process terms. By pointing to the regulations’ nondiscretionary requirements of the informal settlement conference, she has sufficiently raised the issue of the lawfulness of a procedure that lacks compliance with the regulations. The Administrative Procedure Act (APA), codified in G. L. c. 30A, and any applicable specific regulations, such as those found in 760 Code Mass. Regs. § 6.08(4)(b), set forth more expansive procedural protections than those required by the due process clauses of the Constitu *304 tions of Massachusetts and the United States. A procedural violation of the APA or 760 Code Mass. Regs. § 6.08(4)(b) is unlawful just the same as a constitutional due process violation.
Specifically, rules and procedures mandated by regulation have the force of law. Royce v. Commissioner of Correction, 390 Mass. 425, 427 (1983). “And whereas [such rules] may be properly revoked or amended, they may not be arbitrarily disregarded.” DaLomba’s Case, 352 Mass. 598, 603 (1967). It follows that a court may set aside an agency decision, pursuant to G. L. c. 30A, § 14(7)(d), if the agency, in reaching the decision, failed to comply with procedures mandated by regulation. See id. at 603-604; Martorano v. Department of Pub. Utils., 401 Mass. 257, 262 (1987); RicMer Properties, Inc. v. Board of Health of Revere, 59 Mass. App. Ct. 173, 177 (2003).
It is undisputed that the applicable regulations require an opportunity for, and advance notice of, an informal settlement conference as part of the authority’s grievance procedure. 2 760 Code Mass. Regs. § 6.08(4)(b). The authority may not arbitrarily disregard this procedural requirement. 3 See DaLomba’s Case, 352 Mass. at 603 . Because it did so here, the grievance procedure followed by the authority in Rivas’s adjudication was unlawful. See G. L. c. 30A, § 14(7)(<7).
c. Prejudice. The majority finally disposes of Rivas’s claim on the grounds that she suffered no prejudice. I agree that “[t]here must be some showing of prejudice before an agency’s disregard of its rules may constitute reversible error.” Martorano, 401 Mass. at 262 . I believe such a showing has been made here.
First, in light of the “well-established public policy favoring *305 the private settlement of disputes,” Cabot Corp. v. AVX Corp., 448 Mass. 629, 638 (2007), and in light of my own experience with the invaluable nature of informal settlement proceedings, it seems clear to me that an informal settlement conference would have been of great value in these proceedings. At bottom line, arbitration, mediation, and pretrial conferences (in both civil and criminal cases) are an integral part of functioning conflict resolution systems. All are settlement conferences with varying degrees of formality. It does not require speculation to conclude that the absence of such opportunities for discussion and compromise prejudices substantial rights. I therefore conclude that this unlawful procedure prejudiced Rivas’s rights.
Second, although perhaps accurate to note that the result may not change on remand due to the authority’s unwillingness to compromise, the regulations prohibit such intransigence. Cf. Boston Hous. Authy. v. Bridgewaters, 452 Mass. 833, 843-844 (2009) (“[The authority] cannot satisfy its requirement ... by summarily concluding, . . . ‘[F]rankly your Honor we’re not interested in preserving this tenancy.’ The [applicable] regulations . . . and the [authority’s] own policies demand a more stringent inquiry”). Where agencies like the authority are required to make a good faith effort to discuss grievances in an attempt to settle them before commencing formal proceedings, it demonstrates, to me, a clear intent to require at least a good faith attempt to compromise. Because the authority does not appear to have honored this intent in its termination of Rivas’s voucher, I would conclude that it has prejudiced Rivas’s rights by not following the mandated procedure.
I therefore conclude that the result of the proceedings before the authority should not stand and that the matter should be remanded for further proceedings, beginning with the good faith, informal settlement conference mandated by the regulations.
2. Ex parte communication. I agree with the majority’s conclusion that the ex parte communication between members of the board and representatives of the authority does not independently warrant Rivas’s requested relief. I add this additional comment to note that the authority’s decision to present ex parte argument, and the board’s decision to accept it, merits this court’s criticism.
Ex parte communication of this type, when taking place in *306 the context of an agency responsible both for enforcement and for adjudication, most often does not offend constitutional due process. See, e.g., Kippenberger v. Board of Registration in Veterinary Med., 448 Mass. 1035, 1036 (2007), and cases cited. Nor does the APA expressly bar such contact. See G. L. c. 30A, §§ 10-11, 14(7). I am therefore constrained to concur with the majority in denying relief on this basis.
But despite its constitutional and statutory permissibility, I regard the practice followed by the authority and the board here to be antithetical to the appearance of impartiality that citizens must demand from their public agencies and officers. Ex parte communication, however innocuous or, strictly speaking, legal in nature, gives the impression of prejudgment and bias. This concern grows when the communication is oral, leaving no record, denying the aggrieved party an opportunity to respond, see Duro v. Duro, 392 Mass. 574, 580 (1984), and frustrating any attempt to determine prejudicial effect. Compare Boston Edison Co. v. Boston Redev. Authy., 376 Mass. 151, 154-155 (1978). This concern becomes critical when the adjudication involves access to public housing for a family of limited means “who may have nowhere else to turn.” Spence v. Gormley, 387 Mass. 258, 275 (1982). In this context, I believe that a closed-door meeting where agency enforcement personnel present unrecorded, unrebutted argument to a decision-making body cannot give a newly homeless ex-tenant confidence that she has received a fair shake.
In formal litigation, ex parte communication, intending that the judge rely on the information relayed, is “unacceptable .... It is contrary to the basic rules of fairness governing litigation under our adversary system, and it is not to be countenanced regardless of any rule of court on the subject.” Olsson v. Waite, 373 Mass. 517, 533 (1977). An administrative hearing is not formal litigation, and I agree that the ex parte communication here violates neither the constitutions nor the APA. But, “looking only to practicalities, the board [would be] well advised” not to permit this sort of lapse. Yerardi’s Moody Street Restaurant & Lounge, Inc. v. Board of Selectmen of Randolph, 19 Mass. App. Ct. 296, 302 (1985).
Even absent the authority’s waiver of a potential waiver defense, I would still hold that Rivas could, for the first time in the G. L. c. 30A proceedings, raise her claim based on the absence of the informal settlement conference. Because Rivas never received notice of her right to such a conference, I would not conclude that she could fairly be held to have waived this right.
By regulation, housing authorities participating in the Massachusetts Rental Voucher Program (MRVP) must create, and communicate to those receiving MRVP benefits, a grievance procedure. See 760 Code Mass. Regs. § 6.02(2) (2003); 760 Code Mass. Regs. § 6.08(3) (1998). This procedure must materially comply with the grievance procedure envisioned by 760 Code Mass. Regs. § 6.08(4).
Of course, if the authority wishes to eliminate the informal settlement conference from its grievance procedure, the regulations permit it to do so. See 760 Code Mass. Regs. § 6.08(4) (“unless otherwise provided, [the authority’s] executive director or his or her designee shall [hold an informal settlement conference]”) (emphasis added). I would require the authority to follow this procedure instead of eliminating the informal settlement conference from its grievance procedure unilaterally and off the record.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6464097. Public record. Not legal advice.