Rent Commission Application is Posted But Is Problematic for Tenants

The new City of Beverly Hills Rent Stabilization Commission has nine seats open and one third are designated for tenants. The application window closes May 24th. But before rushing to apply, Renters Alliance urges caution: the posted application includes erroneous information, ambiguous questions, and a question no tenant should have to answer on a public document: Have you been evicted? Let’s take a look at the posted Rent Commission application.

When the application appeared in a draft form last month, we suggested to City Council that the city strip-out a question about eviction. There was no reason to ask an applicant on the application if she has been evicted when the topic could be covered in the applicant interview. At the time we suggested including a companion question for landlords: Have you ever evicted a tenant for no-just-cause?

Councilmember Lili Bosse thought it only fair to ask landlords too, but the suggestion was more tongue-in-cheek than anything because the city kept no record of evictions so a landlord response could not be verified anyway. Yet we were surprised to see that same eviction question still on the final, posted application last weekend. And there was a second eviction question added too!

Q5: Have you ever been evicted from a residential real property?
Q6: Have you ever been evicted for just cause?

(Of course there was no companion question about eviction for the landlords. Nor should there be, for what could a simple checkbox on this kind of question suggest to an interviewer?)

Why Questioning Tenant Applicants about Eviction is Improper

The only reason to ask about eviction is that the response could be used a proxy for possible bias against landlords. If anti-landlord bias is the concern, then that is perhaps better addressed in the private setting of the interview. It need not be a question on an application that will be made available to the public!

But the real the issue isn’t actual bias (or worse an interviewer’s inferred bias in a candidate) but rather the applicant’s reasonableness. City Council has set up a dual-panel interview process so that at least four (of five) councilmembers can make that determination for themselves. And question #11 gets at the reasonableness issue more directly anyway: Would you find it difficult to vote against a friend?

Bias should not be the interviewer’s concern. Remember that there are two voting seats reserved for tenants, two for landlords, and two for ’neutral’ members. By definition neutral members should be bias-free; the tenant and landlord representative seats shouldn’t necessarily be bias-free. In any case, Councilmember Bosse helpfully reminded her colleagues at the March meeting that bias even among neutral members is unavoidable:

I DO know plenty of homeowners who have very strong opinions…Just to assume that because you are not a landlord or tenant, that you don’t have strong opinions on it, that is not fair…Our due diligence is to make sure that the people we put on this commission are fair and balanced and not extreme [in] that everything is black or white. — Councilmember Lili Bosse

Indeed the commission was created with designated seats because we all value the knowledge and experience of tenants and landlords. We can’t expect that their representatives will be bias-free; we can only hope they are reasonable. As we see it, City Council should restrict concern about bias to the neutral members who are intended to counterbalance bias among the other commission members.

A tenant’s eviction says absolutely nothing about the tenant. This seems to be a no-brainer. The city long allowed no-just-cause termination and so many tenants were evicted through no fault of their own. An affirmative response to question #5 communicates no useful information to the interviewers.

Tenants should not be compelled to recount in a public document having been evicted. Question #6 was added after the draft application was reviewed by City Council. This question — Have you ever been evicted for just cause? — appears to distinguish those evicted for any reason and those evicted because they violated the rental agreement. But if that is what our interviewers really need to know, then the preceding question is unnecessary.

The more important concern is that the application is a public document. An application to any commission is public. And so a local newspaper could, say, add an ‘eviction asterisk’ when listing tenant commission applicants. Why? Because the application itself provides that asterisk.

If necessary, the question about at-fault eviction should clearly distinguish between a voluntary departure under threat of eviction and an eviction pursuant to a court order. The court order (like the stipulated judgement) is the product of due process. But question #6 about for-cause eviction does not distinguish between a court proceeding and a voluntery departure in contemplation of that proceeding. In the latter there is no allegation substantiated. So no tenant who departed without due process should answer the eviction question affirmatively.

This is a particular concern because a landlord’s attorney may send his tenants an eviction letter that is clearly intended to intimidate. There are allegations, plus the landlord’s threat to contact credit agencies and even a promise to sue the tenant for additional damages if she contests the allegations in court. That is an effective cudgel but it is no substitute for a substantiated allegation (much less a court order).

No tenant should disclose a court-ordered eviction if the record was sealed. This is critical! Eviction records are sometimes sealed because a judge understands that it dis-serves the public to see a household unable to find replacement housing. A stipulated judgement and a sealed record allows the tenant to resolve the case without a blemished record. (It also relives the landlord of a lengthy proceeding.)

Answering an eviction question in the affirmative on a public document when the record was sealed clearly works at cross purposes to sealing the record in the first place. Signing under penalty of perjury allows a tenant blacklist service to lawfully flag the admission. Do not answer yes to question #6 if the record was sealed!

Another concern from the perspective of candidate consideration is that the ticked ‘yes’ box on an eviction question becomes a litmus test of sorts. Now, City Council has stated that an eviction would not disqualify a candidate. So then why have these yes/no questions at all?

The bottom line is that commission application was not ready for posting. It appears to be a draft that somehow made it through as final. Renters Alliance pointed out our concerns to city officials a week ago with the hope that the posted version would be revised. We pointed out our concern about the eviction question (again) yet it remains posted. We also pointed other issues. Here are some oversights that should not have made it to the final version.

Errata (with commentary)

The ‘important notice’ section at the bottom of the application cautions applicants not to contact councilmembers “or the members of the Rent Stabilization Commission” about the position. Of course there are no members to contact because it is a new commission.

The section notes “five Rent Stabilization Commission positions serving staggered, four-year terms.” Not to be picayune but “positions” don’t serve terms (members do). More important, City Council formed this commission with six voting members (not five).

It says a quorum of the commission is five commissioners. Council clearly established that a quorum is six members (not five) if any business is to be conducted.

And finally question #8 needs some correction too. The question informs applicants, “Rent Stabilization Commission meetings will be held in the afternoon” before going on to ask for a time commitment. However the commission will meet in the evening. Question #8 goes on to ask:

How much time would you be able to devote to the Rent Stabilization Commission? How often are you out of town? What other commitments may cause conflicts with your attendance at Commission meetings? (Average time anticipated is 10–15 hours per month.)

If question #8 had simply included details about the time commitment that are provided in the ‘important notice’ section, then the applicant could have been simply asked if she could commit to the time required. Then the interviewer could drill down on possible time conflicts. The application could skip the less significant questions.

Ambiguity Clouds Some Questions

Two other questions could have been better phrased too. This one seems to want to get at a philosophical issue that attends to rent control generally: property rights:

Question #10: How do you view the balance between the rights of property owners and tenants (both commercial and multi-family residential) and the balance between a tenant’s right to occupy a unit and a housing provider’s right to operate their business of one or more multi-family residential properties in the City of Beverly Hills?

That question could have simply asked, “How do you view the balance between the rights of property owners and tenants?” Then an additional prompt could have helped the applicant frame an answer. The question also injects some confusion by asking the applicant to contrast her rights related to her occupancy with a landlord’s business practices generally (“one or more multi-family residential properties).

Moreover, when it comes to “a housing provider’s right to operate their business.,” there is no such right. And finally this question adds an odd bit about commercial property tenancy even though commercial tenancy is a wholly different thing under the law than residential tenancy.

This question seems to hint at commissioner recusal but then muddies the water with an unrelated issue:

Question #11: How would you describe the appropriate relationship among the Commissioners and between the Commission and applicants? Would you find it difficult to vote against a friend? If yes, are you willing to advise staff and refrain from reviewing and voting on a particular application?

Recusal means excusing oneself from discussion and deliberation when a conflict of interest could possibly render the decision-maker something less than impartial. But the question includes no guideline for recusal to reflect on. That would be very helpful because the Rent Stabilization Commission is, by design, intending for neighbors to hear disputes brought by neighbors.

Perhaps a more productive way to frame question #11 would have been, “If a neighbor or acquaintance comes before this commission with a dispute, do you feel you could evaluate the neighbor’s claim impartially?”

Moreover, first part of #11 has no place in a question about conflict-of-interest. It reads, “How would you describe the appropriate relationship among the Commissioners and between the Commission and applicants?” How should an applicant think about that question? More constructive perhaps would have been to provide applicants with a link to the city’s actual Commission Handbook and make it an open-book question.

Another litmus-type question concerns employment:

Question #13: Are you a licensed attorney practicing landlord tenant law?

An earlier question already asks about employment. Maybe if the applicant answers ‘attorney’ to that question, then an interviewer could drill down on whether it concerns tenant-landlord practice. As phrased, this question reads like another litmus test.

The application posted for Rent Stabilization Commission was clearly not ready for posting. There are errors, ambiguities, and most important there are questions that ask about a sensitive issue like eviction. It should have been revised.

Renters Alliance is eager to build-out our tenant bench with residents interested and motivated to participate in this commission’s work. Indeed we don’t want to discourage applicants! However if this application is not revised then at a very minimum we would suggest to tenants not to answer the eviction questions. That would avoid the litmus test while obligating the interviewers to follow up on the non-response in a private setting where talk of eviction belongs.

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