Rent Commission Application is Problematic for Tenants

City Council created a new Rent Stabilization Commission in April and applications are now being accepted. There are nine seats total and one third of them are designated for tenants including two voting members and an alternate member. The application window closes May 24th. Let’s look at some problems with application for the Rent Stabilization Commission application as posted on the website.

Factual Errors and Typos

There are a number of problems with the posted application that suggests it isn’t ready for prime time. There are errors of fact and problematic phrasing in questions and, worst of all, two questions about prior evictions that do not belong in a sworn public document.

The most obvious misstep is a reference to afternoon meetings. Question #8 informs applicants, “Rent Stabilization Commission meetings will be held in the afternoon.” However after reviewing the draft application, Council decided that the commission will meet evenings to better avoid work conflicts for commissioners and members of the public.

The application’s ‘important notice’ section includes language which would not apply to a new commission. For example, applicants are cautioned not to contact City Council or “members of the Rent Stabilization Commission.” As a new commission and there are no members to contact. (A proofreader should have caught that; it seems lifted from the standard commission application not one for a de novo commission.)

The number of commission seats is misstated. The same section describes “five Rent Stabilization Commission positions serving staggered, four-year terms.” That is also lifted from the standard application. Clumsy phrasing aside (“positions” don’t serve terms, appointees do), the Rent Stabilization Commission is different than other commissions in that there are six voting members (not five).

The number needed for a quorum is misstated. Likewise the application indicates that a quorum of the commission will be five commissioners (like a regular commission) but again Council established that a quorum is six members for the purpose of conducting business. That’s no small point: given the unusual nature of the commission — evenly balanced between tenants, landlords and ‘neutral’ members — Council decreed that all seats must be filled for a vote so a quorum of six is needed (two members from each category inclusive of alternates).

Ambiguity in the Questions

Question #10 seems to get at a philosophical issue central to the rent control debate: property rights.

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?

The question could ask the applicant more directly, “How do you view the balance between the rights of property owners and tenants?” An additional prompt could help the applicant frame an answer. But conflating a tenant’s occupancy with a landlord’s business, especially one involving multiple properties, simply makes no sense.

The same question refers to a right that does not exist in law because there is no right to operate a business. That is true anywhere and in Beverly Hills too, where all apartment lessors must have a license without which they can’t do business.

Lastly, that question adds an unnecessary bit about commercial leasing. It has no place in this application because the remit of the Rent Stabilization Commission is limited to residential rental property. In sum, this question goes out of its way to confuse the key issue, which is really how to balance property rights against tenancy rights.

Question #11 seems to hint at circumstances for commissioner recusal but then muddies the water.

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?

The question could have simply asked, “If a neighbor or acquaintance comes before this commission with a dispute, do you feel you could evaluate the neighbor’s claim impartially?”

Instead the question suggests recusal but offers no specific example of when recusal may be required. Nor does the question suggest how to think about the implication of recusal when hearing a neighbor’s issue in a small town where all of us are ultimately neighbors.

Lastly there is the first part of that question: “the appropriate relationship” among commissioners. How should the applicant think about that? Are they colleagues, or constructive partners perhaps? It would have been more useful to provide applicants with the city’s Commission Handbook that does describe what the relationship should be. Then make it an open-book question!

Question #13 seems to be a litmus-type question too.

Are you a licensed attorney practicing landlord tenant law?

An earlier question had already asked about employment so why not ask the applicant to elaborate in that answer if this information is necessary. But is even necessary? If Council wants specific legal expertise on the commission, then fine enough. But it seems more like this is a checkbox litmus test that would potentially keep a tenants-landlord law practitioner off the commission. It is another example of a question better asked in an applicant interview.

Asking About Eviction is a Litmus Test!

Questions 5 and 6 put the tenant-applicant on record, under penalty of perjury, as to whether she has ever been evicted.

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

There are many problems with asking about eviction. First, a past eviction says absolutely nothing about the character of the applicant. The city allowed no-just-cause termination and many tenants were evicted for no fault. An affirmative response to question #5 provides no useful information.

Second, the application is a sworn document. And it is a publicly-available document; anyone can request to have it. Does an applicant want an attestation to eviction in the public domain? With that bit of information an applicant could be tagged with the ‘eviction asterisk.’ Would that commission candidate be suitable for a designated tenant seat? We don’t need a means for profiling an applicant and we certainly don’t need a litmus test.

Third, asking about a for-cause eviction is especially problematic if the court record was sealed. Judges understand that it an eviction on record makes it difficult for a family to find subsequent rental housing. So parties often agree to seal the record. Why in the world would a tenant with a sealed stipulation to vacate ever put that on a sworn, public document?

And fourth, question #6 does not distinguish between leaving the apartment voluntarily in contemplation of eviction and an actual court-ordered eviction. The difference is important: the court order is the product of due process where landlord allegations are substantiated; a voluntary departure in contemplation of legal action can be a tenant simply folding in the face of the landlord’s legal threats. To read an attorney’s intimidating correspondence to a tenant is to feel the difference.

Where is the guidance for the applicant on these fine points? Renters Alliance suggests tenants leave these questions unanswered and later explain any actual eviction proceeding in the interview (and only if the record is not sealed).

Our broader concern is that litmus-type questions will dissuade a tenant from applying. We want the biggest pool of qualified deliberative applicants so we should simply strike questions #5 and #6.

Fishing for Bias?

The sole purpose for adding any litmus question is to cast a net for potential bias. Will the applicant carry into commission deliberations some preconceived, prejudicial position or notion?

However bias should not be a consideration when it comes to six of the nine commission members (including alternates). Those members are tenants and landlords and, by definition, as designated seats they cannot be expected to be taken by bias-free commissioners. Nor would we want them to be: those commission members are expected to bring their experience and, yes, perhaps some bias to commission proceedings. We can only hope that they are reasonable people.

Bias should be a consideration, though, for the three ‘neutral’ commission members. As residents who are appointed for being neither tenants nor landlords we can expect then to serve without bias. That’s what the term ‘neutral’ means in this context.

But finding bias-free commissioners is no easy task, as Councilmember Bosse helpfully reminded her colleagues at the March Council meeting:

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

City Council should restrict bias-fishing in this application to only the neutral members who are there explicitly to counterbalance the bias we expect other commission members to bring.

So, why is this application still posted? Three days after it was posted we suggested to Rent Stabilization Program staff that the eviction questions should not be in the application at all. And we advised staff that there were factual inaccuracies (and other issues) with the application that recommend a revision. However the original online commission application remains posted today.

Nevertheless, we don’t want that to discourage any interested tenant from submitting an application. But she should keep in mind the issues that we’ve raised here.

The application window closes May 24th. City Council has set up an unusual dual-panel interview process so that four of the five councilmembers can speak with applicants themselves (rather than review a report from an interview panel). Good luck!