The Case for the Inclusive, Elected Governance of Public Housing Authorities
Written by Daniel Passon, J.D., Georgetown University Law Center
In the hands of the public housing authority (“PHA”) executive director rests the power of the purse and the power of the sword. Executive directors oversee billions of dollars of government contracts, maintain personal and professional relationships with the developers whose livelihoods they hold in thrall, direct armies of housing security forces, and can evict, discipline, and control millions of the country’s most vulnerable citizens. While most renters have some say as to who will collect their rent, enter their home, and police a range of issues from noise complaints to medical marijuana use to the receipt of packages, 1.2 million American households do not. Their landlord is the agency. And the agency, in its daily operations, is the executive director.
Because of that concentration of power, tenants of voting age—whether receiving project-based, voucher-based, or other aid—should be able to vote for those who will lead their public housing agency. This includes not only executive directors but also the boards of commissioners contemplated by federal law. The governing law not only allows elections to be limited to a defined group of citizens with an interest in a particular office but for those who run for such offices to be subject to credentialing and other professional requirements. There is no reason why we cannot make the change from unaccountable administrative monarchy imposed from above to accountable public servants forced to go from door-to-door—where the people live—to make their case. The dignitary harm imposed by the forced relinquishment of the decision over who will control one’s home could be remedied by the same process through which we make most other meaningful decisions in a free society.
The Public Housing Reform Act, codified at 42 U.S.C. § 1437, contemplates the governance of public housing authorities by boards of commissioners or directors, at least one member of which is currently served by the PHA and “may, if provided for in the public housing agency plan, be elected by the residents directly assisted by the public housing agency.” In practice, board members are usually appointed by a local executive pursuant to policies established by state law. Boards then select executive directors to manage the day-to-day operations of local agencies.
For insight as to the nature of PHA authority, consider the District of Columbia Housing Authority (“DCHA”). DCHA provided housing to 50,000 tenants in 2014, controlling net assets of $560 million, in addition to $293 million in grant funds. It oversees 8,300 units across 52 of its own developments and is invested in 23 mixed-income properties. With its tenants capable of contributing an average of only $250 a month in rent, it exerts coercive authority over the poorest residents of the District, tenants without a meaningful say as to the identity of their landlord. The discretion of its leadership is likewise possessed by 3,300 officers overseeing a community of 1.2 million households across the country, but that power is often exercised with limited institutional oversight or accountability.
The Department of Housing and Urban Development (“HUD”) possesses extraordinary oversight powers over local PHAs, but it has neglected to use them. HUD’s Office of Public and Indian Housing (“PIH”) continuously measures the performance of PHAs, and if their metrics identify an agency as “troubled,” the PHA is given up to 2 years to cure, after which “the law and regulations require [PIH] to refer the PHA to the Assistant Secretary for Public and Indian Housing for action.” At that point, the Assistant Secretary must declare a large PHA in substantial default and petition for the implementation of an administrative receivership. And, “[u]nder administrative receivership, HUD takes possession of the PHA and appoints one or more HUD staff members or an outside contractor to serve as an administrative receiver. Once appointed, an administrative receiver works on-site at the PHA to manage and operate the PHA’s housing operations and affairs.”
PIH has completely circumvented this process. At the conclusion of investigative fieldwork, incident to a 2020 report on agency oversight, PIH had no processes by which their office could refer troubled PHAs to the Assistant Secretary. In fact, PIH “officials told [investigators] that they had never made a referral of any kind to the Assistant Secretary.” Even PHAs with “severe” fiscal management and housing conditions problems that “could not reasonably recover within the maximum 2-year recovery period” were given only informal “heightened monitoring” and “technical assistance,” and “a PHA could remain troubled for a period beyond the maximum 2-year period while conditions stagnate[d] or deteriorate[d].”
HUD has also undermined an additional layer of federal oversight, blinding Congress to the status of failing PHAs. 42 U.S.C. § 1437d(j)(5) requires PIH to submit an annual report to Congress identifying troubled PHAs, describing why and how they are troubled, and detailing the remedial action HUD has taken to prevent their failure. PIH has not done so in eleven years, and, in October 2018, “PIH decided to pause efforts to prepare this report because it wanted to eliminate the requirement. PIH was not able to provide [the] statutory grounds which allow[ed] it to not submit this annual report.”
What’s more, once PHAs receive federal dollars, that money loses its federal designation and any attendant federal oversight authority independently attached to those funds. The Senate Finance Committee associated this development with the payment of seven-figure severance packages, the arrangement of expensive PHA golf outings, and the allocation of funds toward salaries considered “excessive.”
Note also the interchangeability of “authority” and “agency” in “PHA.” Some PHAs operate as true public authorities. They have a legal existence distinct from local government and are authorized to adopt and administer their own policies and procedures. As in the case of DCHA, this may exempt them from jurisdictional procurement laws and their attendant layers of oversight. And, in one D.C. case, that lack of accountability allowed $82 million in contracts for park projects to be channeled through various District agencies before ending up at DCHA. Given that DCHA was exempt from District procurement law, “the [District of Columbia] Council had no opportunity to review who was contracted to perform the work on the [relevant] facilities.” Otherwise, any contract worth more than $1 million would have been subject to Council review.
In the absence of effective federal or local oversight, one low-cost means by which to impose accountability upon executive directors and boards of commissioners would be to provide for their direct election by tenants. No one is better suited to understand the condition of public housing units and the quality and responsiveness of management than tenants themselves. Additionally, the prevalence of tenants’ social connections to recipients of various kinds of housing benefits may make them even more informed voters than familiarity with their individual situations alone would afford.
Candidates for PHA leadership would not be permitted, under this model, to govern from above without meaningful engagement with residents outside of controlled environments. Currently, boards of commissioners and their executive directors are able to rest secure in their appointed positions, fully aware that they will only have to engage with tenants in the context of tightly regulated hearings far removed from the lived reality of concentrated poverty. Election, by contrast, would allow for the possibility of localized, movement-based candidate identification and selection, and it would at least require candidates to go door-to-door to get to familiarize themselves with the vast realm they hope to govern.
If they faced election and re-election, incumbents would be forced to account for their management style, policy decisions, awards of contracts, and discretionary fund allocations. They would be forced to educate all tenants —not merely the same dozen who go to every public hearing—on actions being taken to protect the safety and quality of their homes. This education, and the very participatory act of election itself, would provide PHA residents with the same choice that every private tenant enjoys: the choice of their landlord.
Public housing authorities function very much like large private management companies. Although responsible for many large holdings, each organization sets its own policies, instills its own culture, and, even if senior leadership is removed from a given building, makes the building management hiring and firing decisions so key to resident quality of life.
Apartment hunters can select their management company and do their research. They can opt out of entire chains of dozens of large buildings merely because of the reputation of the management company. Public housing tenants enjoy no such freedom to engage in the intimate decisions that inform the very heart of their private life. And denying them that decision imposes the depersonalizing, dignitary costs of exclusionary institutionalization. The recognition of agency, in this regard, not only has the potential to reinforce democratic norms and recognize the human dignity of each tenant, but also to accelerate community building, foster communal agency, and create a new basis for community engagement and movement formation. This would be the most local of all politics.
Additionally, although mere “merit” does not guarantee competence, it is possible to have both democratic accountability and professional qualification. States routinely impose educational or other professional qualifications on elected leaders, and the same could be done here. Executive directors, for example, could be required to have ten years of experience in housing management, public administration, or a related field, or five years plus a master’s degree, and similar qualifications could be imposed on board members other than those tenant representatives identified by local legislation.
Appointed PHA leadership is not immune from failure and corruption, and the exclusion of public housing tenants from participation in one of life’s most fundamental decisions—the question of who will control one’s home—has had no talismanic effect on the quality of public housing or the management of local agencies. In the absence of such an effect, there exists no good reason to continue to impose the dignitary harm of that exclusion. We should, rather, err on the side of the inclusion and participation of—and direct, searching oversight by—those most profoundly affected by PHA decisions.