3:55 pm Jan. 20, 2012
This morning, a Manhattan Supreme Court judge subjected city lawyers to a skeptical interrogation about its recently proposed single-adult shelter-intake policy, and whether the way in which the city sought to implement it violated the city charter.
The judicial interview boiled down to a question of semantics: Does the city’s proposed procedure constitute a "rule" that necessitates public hearings under the City Charter, or is it something more akin to a policy framework under which city staff can exercise significant discretion?
The policy in question would require single homeless adults who are attempting to gain access to city shelters to prove that they have no other housing alternatives available to them.
When the Legal Aid Society and the Coalition for the Homeless were informed of the city’s intentions in November, they successfully filed for a court injunction while the legality of the procedure was sorted out in court.
City Council Speaker Christine Quinn, who has sought, selectively, to distance herself from the mayor in recent months as she prepares to run for mayor herself in 2013, joined the legal fray shortly thereafter, arguing with the plaintiffs that the Bloomberg administration violated the City Charter. She described the action as her first “independent suit” as Council speaker.
Manhattan Supreme Court Judge Judith Gische is hearing the two suits together, and has decided to deal with the charter question first, before delving into the issue of whether or not the city’s proposed policy violates a three-decade-old agreement, known as the Callahan consent decree, in which the city agreed to provide shelter to all single adults who need it.
The city's controversial new procedure would require that, "each applicant must clearly demonstrate that s/he is faced with an immediate need for [temporary housing assistance], has made reasonable efforts to secure housing and cannot access any other housing even on a temporary basis.”
The policy also says that applicants are "required to cooperate" with city procedure if they want city shelter. "Without a valid reason, failure to produce documentation constitutes a failure to cooperate."
The city, which has had a similar policy in place for homeless families since the 1990s, argues it's merely exploring all available options.
"We have a population that is coming into shelters that is largely people who are coming from other housed options, coming from either their own apartment or from living with friends or family," said Seth Diamond, the city's Department of Homeless Services commissioner, during an interview with Capital this afternoon.
Homeless advocates cast the new policy in a different light.
"That’s not really what it’s about," said Patrick Markee, of the Coalition for the Homeless, one of the plaintiffs in one of two suits challenging the city policy. "It’s about creating a set of bureaucratic tools that the city will use to deny people shelter."
Gische, the judge, didn't quite seem sure what to think, when the city's attorney, Abigail Goldenberg, said in court today that the new eligibility procedure “creates a framework for D.H.S. staff to make eligibility determinations based on the unique circumstances presented by every applicant.”
“Let me ask you a question,” said the judge. “Because I looked at the policy directive and it contains a lot of nice language like that. I got a little bogged down in the detail of the directive, which even though it said you can exercise your discretion, had a lot of things that were 'must's in them.”
“The 'must' here is you must cooperate. You, the applicant, must cooperate,” responded Goldenberg.
If the policy provides for generally applied rules, or "musts," as the judge put it, then it would, as a rule with "general applicability," seem to be subject to the charter rulemaking process. If, as the city argues, the policy is more of a framework under which city employees will exercise significant discretion on a case-by-case basis, then it would theoretically not be subject to the rulemaking process.
The judge also said,"Why would you necessarily need a medical record to determine eligibility?" And she said, "The directive that you have seems to indicate that if they failed to provide documents in addition to the written statement, that that could be deemed failure to cooperate, you're out."
The judge said a decision on the question of whether or not the city's rulemaking procedures apply will be forthcoming shortly.
Despite the judge's aggressive questions, Diamond remains confident that the city will prevail and the policy will be put into effect.
"We have every expectation that the judge is going to support our position," he said.
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