U. S. Department of Housing and Urban Development
Washington, D.C. 20410-2000
January 24, 1994
MEMORANDUM FOR: All Regional Directors, Office of Fair Housing and Equal Opportunity
FROM: Roberta Achtenberg, Assistant Secretary for Fair Housing and Equal Opportunity, E
SUBJECT: Title VIII Intake Procedures
The purpose of this memorandum is to communicate some policy decisions that I have made as a result of our discussions in Boston concerning the procedures for identifying, accepting, and initially processing complaints under the Fair Housing Act. I am requesting that each of you begin now to implement the policies described below. You should let me know of any obstacles to your implementation of the policies that need to be addressed on a national level by my staff.
Headquarters staff are drafting a chapter on "Complaint Intake" to be included in the compliance manual. That chapter will contain more detailed guidance concerning the intake process. This draft chapter will be forwarded to you for comment in the near future. We also will be supplying you with additional information concerning the intake function and the functions of the field offices as soon as the reorganization plans are finalized.
1. Each Regional Office should establish an intake unit that is staffed with and supervised by knowledgeable and experienced personnel. The screening and initial processing of complaints are two of the most critical functions performed in the enforcement of Title VIII complaints. The personnel responsible for intake must be able to recognize potential violations of the Fair Housing Act, and the other civil rights statutes the Department enforces; ensure that the complaint accurately reflects all complainants and all respondents, insofar as these issues can be adequately addressed during intake; counsel and refer persons with non-housing or BUD program discrimination concerns to other sources of help; begin the special investigative process for complaints demanding the department's immediate attention; capture and accurately record the necessary information concerning a discrimination complaint; and ensure that the statutory and regulatory requirements of referral, service, and notification are effected. Intake staff should also attempt to ascertain the address and telephone number of a person who will always know how to reach the complainant.
The intake staff should be consumer-oriented in their dealings with potential complainants. In most instances, for example, the intake staff should reduce the allegations and related information received by telephone to a BUD Form 903, or"translate" a letter from a potential complainant to a EUD Form 903, and send the completed form to the complainant for signature rather than send the complainant a blank form to fill out. Additionally, the intake staff should ensure that the potential complainant thoroughly understands what conduct our statutes cover and how our administrative process works.
2. All Regional Offices should use uniform criteria for establishing the date that a Fair Housing Act complaint is considered to have been filed with the Department. Under the regulations, a complaint is "filed" when it is received by the department, or a certified, substantially equivalent agency; is in writing or is reduced to writing; and reasonably contains the following four elements: a) the name and address of the complainant(s); b) the name and address of the respondent(s); c)a description and address of the property, where appropriate; and d) a concise statement of the facts and pertinent dates of violation. In addition, a filed complaint also must be signed; however since the regulations allow for a complaint to be signed at any time during an investigation, a complaint can be accepted for filing even if it is not immediately signed at the point of receipt.
The interpretation of the fourth element has caused some confusion. For our purposes, the fourth element should be considered to be satisfied when the correspondence describes the basis, conduct, approximate dates, and subject matter of the complaint. In evaluating whether the fourth element is met, the intake staff should consider whether the correspondence sufficiently puts the Department and the respondent on notice of what general allegations must be investigated and defended. The staff also should consider whether the correspondence contains extensive commentary that could potentially detract from or confuse the issues of discrimination that need to be addressed.
If correspondence is deemed not to meet the four elements of a complaint, the author must be so notified immediately and told what information must be supplied to constitute a complaint. The author should be informed, both personally and in writing if possible, that unless the required information is received, the correspondence will not be treated or filed as a complaint and we will not be able to be of assistance in the matter. Unless the required information is received, the correspondence should be treated only as an inquiry. No further action need be taken.
When written correspondence is received that meets the four elements of a complaint, but which is not on a BUD 903, the intake staff should convert the information to the form, in consultation with the complainant if possible. The form should then be mailed to the complainant for review and signature. Because the filing date is the date that the initial written correspondence was received, however, if the complainant has not returned the HUD 903 within ten days of filing, the intake staff should serve the initial correspondence on the respondents.
The overriding concern to be considered in interpreting the filing requirements is whether the complaint is timely filed. Complaints that are reduced to writing at intake as a result of a telephone conversation with a complainant, therefore, can satisfy the requirement of being in writing. However, because as a practical matter the Department wants to be assured that a HUD 903 filled out by the intake staff accurately reflects the allegations that the complainant wants to make, the filing date of a telephone complaint usually should be the date that a signed HUD 903 is returned by the complainant. The primary exception will be if the statute of limitations is about to run, in which case a record of the telephone conversation may be treated as a complaint and filed.
3. As much information should be collected during intake as possible. and only complaints that are ready for the commencement of investigation should be transferred from the intake function. Determining that an inquiry contains the elements of a complaint is only one part of establishing whether the Department's enforcement processes should be commenced with respect to the allegations of discrimination. The other determination that must be made is whether the Department has jurisdiction to investigate the complaint. The four elements for jurisdiction that must be satisfied are: a) the complainant(s) has standing; b) the respondent(s) and dwelling are covered by the Act; c) the subject matter and basis of the alleged violation are covered by the Act; and d) the alleged discrimination occurred or terminated within one year of the filing date.
Our case reviews suggest that there may be some confusion about the requirement for subject matter jurisdiction. This requirement means that the allegations concern housing, and one of the transactions or events listed in the Act, and that the complainant indicates a connection between race, color, religion, national origin, sex, familial status, or disability and the event in question. From a law enforcement perspective, the department wants to interpret our subject matter jurisdiction as broadly as possible without misleading the complainant into believing that the Department can remedy a situation if we cannot do so. Complaints that are believed to be frivolous or without merit should not be dismissed for lack of subject matter jurisdiction or administratively closed if the information indicated above is provided.
Usually, information related to elements (a), (c), and (d)can be determined from the face of the complaint, information available from the complainant, or other readily available sources. In Boston, we discussed various methods of determining during intake whether there is jurisdiction over the respondent and property. Headquarters staff are following up on the national availability of some of the data sources that we redescribed by some Regional Offices. Also, they are working on establishing better inter-Regional information networks.
Note that the Department does not need to determine jurisdiction in order to commence an investigation. If it appears from the complaint, and the information independently available, that jurisdiction is present, then conciliation and investigation can commence. The respondent may then come forward with any defenses based on lack of jurisdiction.
When at all possible, jurisdiction should be established prior to notification to the parties of receipt of the complaint. It should be accomplished, therefore, within nine days of the filing date of the complaint so that the ten-day service requirement can be met. If jurisdiction has not been established within nine days of receipt of the complaint, then the service and notification letters should be sent to the parties, and the investigation inquiries concerning jurisdiction should continue.
4. All intake activity should be well documented. When adequate guidance is given to prospective complainants, and when thorough screening of potential complaints is conducted, many inquiries will not be reflected in the computerized database, since no complaint results from the inquiry. Headquarters staff are working on the possibility of incorporating pre-complaint activity in the database. However, it is imperative that each office also establish manual record keeping systems that reflect all pre-complaint activity.
These records will serve several functions. The most important function is to provide documentation that can be reviewed routinely by supervisors and managers for quality control purposes. Additionally, the records can be used in the event that a question is raised subsequently about how an inquiry was handled. It also is important to document the time and resources devoted to the intake function for staffing and budgetary planning.
Your implementation of this guidance will substantially improve the quality and uniformity of our intake process. If you have any questions about these procedures, please call Sara Pratt, Director, Office of Investigations, at (202) 708-0836, Extension 222.