Dowling v. Bangor Housing Authority

LEVY, J., with whom SILVER, J., joins,

concurring in part and dissenting in part.

[¶ 25] I join in the Court’s opinion except with respect to part D concerning the sanction that was imposed by the Authority against Dowling. The hearing officer recommended that the ultimate sanction— termination from Section 8 housing assistance — be imposed based largely on his finding that Dowling had initiated the fraudulent side agreement she had with her former landlord, Robert Wortman Sr. Because this finding is not supported by substantial evidence in the administrative record, the judgment should be vacated and the Authority required to reconsider the appropriate sanction.

A. The Decision to Terminate Dowling’s Section 8 Housing Assistance

[¶ 26] If a tenant violates any program obligations set forth in the federal regulations, a housing authority may, but is not required to, terminate the tenant’s Section 8 assistance. See 24 C.F.R. §§ 982.551, 982.552(c)(2)(i) (2006). The regulations provide that before imposing a sanction for a violation, a public housing authority may consider:

[A]ll relevant circumstances such as the seriousness of the case, the extent of participation or culpability of individual family members, mitigating circumstances related to the disability of a family member, and the effects of denial or termination of assistance on other family members who were not involved in the action or failure.

Id. § 982.552(c)(2)(i).

[¶ 27] In this case, the hearing officer’s decision acknowledged the discretion afforded by section 982.552(c)(2)(i), but he concluded that no mitigating circumstances existed, in part, because “her participation in this arrangement allowed her to live in a unit which she preferred to the original unit offered by Mr. Wortman.” This finding refers to the prior finding that Dowling had initiated the side agreement with Wortman “[i]n order to have the opportunity to move into a more favorable rental unit.”

[¶ 28] Dowling was the only witness at the administrative hearing. She admitted to participating in the side agreement with Wortman, explaining that Wortman had come to her house and proposed the side agreement, and that she only agreed to it because she feared that she and her young son would be evicted by Wortman and left homeless if she refused the arrangement.

[¶ 29] The only support in the administrative record for the hearing officer’s finding that Dowling initiated the side agreement was an entry in the handwritten notes of Sally McDonald, an employee of the Authority. The entry appears to be based on a telephone or in-person discussion McDonald had with Wortman’s son, Robert Wortman Jr.:

6/9/04 Spoke with Bob Wortman, Jr. He stated that [Dowling] had requested that his father Bob Sr. charge the $600 and she would pay the utilities directly to them. They were not going to let her have the unit because the Rent Reasonable was below fair market.

*386[¶ 30] Apart from Dowling’s testimony and McDonald’s handwritten note, there was no other evidence concerning whether Dowling initiated the side agreement to obtain a better unit, or whether Wortman initiated the side agreement and Dowling felt compelled to accept it because she feared becoming homeless if she refused. The question thus presented is whether the entry in McDonald’s handwritten notes is substantial evidence that supports the finding that Dowling initiated the side agreement.

B. Uncorroborated Hearsay Evidence and the Substantial Evidence Test

[¶ 31] Courts uphold administrative findings so long as they are supported by substantial evidence. See Phaiah v. Town of Fayette, 2005 ME 20, ¶ 8, 866 A.2d 863, 866. Administrative findings are reviewed to determine whether “a reasonable mind would rely on that evidence as sufficient support for a conclusion.” Forbes v. Town of Southwest Harbor, 2001 ME 9, ¶ 6, 763 A.2d 1183, 1186.

[¶ 32] We have previously had occasion to apply the substantial evidence standard in cases involving challenges to administrative findings based entirely on hearsay. In Keller v. Maine Unemployment Insurance Commission, 477 A.2d 1159, 1161 (Me.1984), we considered whether the plaintiffs double hearsay evidence of a telephone call between his friend and an unidentified Commission employee was admissible pursuant to the evidentiary standard of the Maine Administrative Procedures Act. We concluded that the double hearsay, although not inadmissible, did not satisfy the substantial evidence standard without additional corroborating evidence in the form of the employee’s or the friend’s testimony. Id.; see also Heal v. Me. Employment Sec. Comm’n, 447 A.2d 1223, 1225-26 (Me.1982).

[¶ 33] More recently, in State v. James, 2002 ME 86, 797 A.2d 732, we addressed the importance of assessing the reliability of hearsay evidence when determining the weight it should be given in probation revocation hearings.4 We noted in James that a variety of factors should be considered, including: (1) “whether the hearsay evidence is corroborated, in whole or part, by live testimony presented at the ... hearing or an admission”; (2) “the source of the hearsay, including the potential for bias or motive to fabricate”; and (3) “whether the hearsay evidence is sufficiently detailed.” Id. ¶ 15, 797 A.2d at 737. The James criteria comport with the approaches adopted by various courts that have grappled with the question of the role of hearsay when applying the substantial evidence standard in connection with administrative proceedings.5

*387[¶ 34] Our review of administrative findings based exclusively on hearsay evidence must recognize the need for informality in administrative proceedings, but also the imperative that agency proceedings should not degenerate to the point where critical findings are based exclusively on hearsay evidence that carries no indicia of reliability. The suggestion in the majority opinion that administrative proceedings are comparable to criminal sentencing hearings is, in my view, mistaken because criminal sentencing hearings are not subject to the substantial evidence standard. If we permit agency decisions to rest on nothing more than newspaper articles, a possibility suggested by the majority opinion, the substantial evidence test will be rendered meaningless.

[¶ 35] Accordingly, whether hearsay evidence is, standing alone, substantial evidence that can support administrative findings must be resolved on a case-by-case basis and in a manner that is consistent with the goal of promoting informal hearing processes that remain true to the overriding goal of fundamental fairness. The substantial evidence test is not an exacting standard and it does not impose an undue burden on administrative decision-makers. Yet the standard serves an important societal function by providing a modest degree of assurance that important decisions affecting the lives of individuals will be based on something more than unsubstantiated rumor or attenuated third-hand information.

C. The Uncorroborated Hearsay Evidence in This Case

[¶ 36] Applying the James criteria, the brief entry in Sally McDonald’s notes that *388characterizes Dowling as the initiator of a fraudulent side agreement does not rise to the level of substantial evidence.

[¶ 37] First, the multi-level hearsay evidence was neither sworn, nor corroborated by any testimony or other evidence. The statement attributed to Wortman appears to have been made to his son, who then reported it to McDonald, who then recorded it in her notes.

[¶ 38] Second, the source of the hearsay had a substantial potential for bias or motive to fabricate. Wortman had a motive to blame Dowling for the side agreement because his participation in the agreement was itself a violation of the rules and put his own interests as a Section 8 landlord at risk.6

[¶ 39] Third, the brief entry in McDonald’s notes provides no details with which to meaningfully assess the accuracy of the statement attributed to Wortman. In addition, the administrative record provides no basis for us to presume the reliability of the written records' of the Authority’s employees. See Richardson v. Perales, 402 U.S. 389, 403, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (treating written medical reports prepared by independent medical examiners in connection with a “vast” administrative process as having an indicia of reliability).

[¶ 40] The evidence supporting the finding that Dowling initiated the side agreement is decidedly insubstantial, and the hearing officer’s adoption of that evidence as a finding was in error. The Authority’s ultimate decision to terminate Dowling’s participation was undoubtedly influenced by the hearing officer’s rejection of her claim that she was coerced into accepting the side agreement and his finding that she had initiated the side agreement for her own benefit. Any error regarding this critical finding cannot be excused as harmless.

[¶ 41] The Authority should be required to reconsider the sanction in this case and, in particular, whether Dowling’s participation in the side agreement justifies the complete termination of her Section 8 benefits. In doing so, the Authority would have the opportunity to also consider other relevant information that the hearing officer failed to address pursuant to section 982.552(c)(2)(i),' including “the effects of ... termination of assistance” on Dowl-ing’s young son as a “family member[ ] ... not involved in the action or failure.” 24 C.F.R. § 982.552(c)(2)(i). The judgment should be vacated and this case remanded to the Authority.

. In State v. James, the defendant’s probation officer, who was away on vacation when the alleged probation violations occurred, testified about the results of an intoxilyzer test and conversations with another probation officer and the arresting police officer regarding conduct by the defendant. 2002 ME 86, ¶¶ 4-6 & n. 3, 797 A.2d 732, 733-34. The trial court overruled the defendant’s hearsay objections and found that James had violated his probation. Id. ¶¶ 7-8, 797 A.2d at 734. On appeal, we concluded that this evidence lacked sufficient indicia of reliability, and because this was the only evidence presented by the State, we vacated the judgment. Id. ¶¶ 16-19, 797 A.2d at 737-38.

. Most notably, in Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), the Supreme Court concluded that written reports by licensed physicians may constitute substantial evidence supporting a finding adverse to a claimant seeking Social Security disability benefits. The Court considered a range of factors in concluding that the hearsay was reliable and had probative value, including the following: (1) the identity of the physicians was known and, as independent examiners, they could not be ascribed an *387''interest on their part in the outcome of the administrative proceeding beyond the professional curiosity a dedicated medical man possesses,” id. at 403, 91 S.Ct. 1420; (2) the "vast workings of the social security administrative system make for reliability and impartiality in the consultant reports,” id.; (3) the reports were based on an actual examination of the claimant and accepted medical procedures, id. at 403-04, 91 S.Ct. 1420; (4) the reports addressed a comprehensive range of examinations to which the claimant was subjected, id. at 404, 91 S.Ct. 1420; (5) the reports were independent of one another, but were not inconsistent, id.; (6) the claimant could have subpoenaed the physicians if he had wished, id. at 404-05, 91 S.Ct. 1420; (7) medical reports have been admitted in judicial proceedings as an exception to the hearsay rule, id. at 405, 91 S.Ct. 1420; (8) courts have traditionally accepted the use of written medical reports in Social Security disability cases, id. at 405-06, 91 S.Ct. 1420; and (9) given the magnitude of disability claim hearings conducted each year, the cost of providing live testimony by examining physicians "would be a substantial drain on the trust fund and on the energy of physicians already in short supply,” id. at 406, 91 S.Ct. 1420.

The federal circuit courts have applied the indicia of reliability highlighted in Perales as multi-factor analyses. See R.P. Carbone Constr. Co. v. Occupational Safety & Health Review Comm’n, 166 F.3d 815, 819 (6th Cir.1998); Keller v. Sullivan, 928 F.2d 227, 230 (7th Cir.1991); Johnson v. United States, 628 F.2d 187, 190-91 (D.C.Cir.1980); Calhoun v. Bailar, 626 F.2d 145, 149-50 (9th Cir.1980); Sch. Bd. v. Dep’t of Health, Educ. & Welfare, 525 F.2d 900, 906 (5th Cir.1976). State courts have also adopted this general approach to determine under what circumstances uncorroborated hearsay can satisfy the requirement of substantial evidence. See Sch. Comm. v. Mass. Comm’n Against Discrimination, 423 Mass. 7, 666 N.E.2d 468, 474 (1996); Indus. Claims Appeals Office v. Flower Stop Mktg. Corp., 782 P.2d 13, 17-19 (Colo.1989); Unemployment Comp. Bd. of Review v. Ceja, 493 Pa. 588, 427 A.2d 631, 639-43 (1981). A number of states require that evidence satisfies even higher standards of reliability in administrative hearings than the standards articulated in Perales. See, e.g., Bean v. Mont. Bd. of Labor Appeals, 290 Mont. 496, 965 P.2d 256, 260 (1998); Gehin v. Wis. Group Ins. Bd., 278 Wis.2d 111, 692 N.W.2d 572, 590 (2005). Thus, standing alone, hearsay evidence may satisfy the substantial evidence test only if it carries with it some indi-cia of reliability.

. The record does not reflect whether Wort-man was sanctioned by the Authority for his participation in the agreement.