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14-P-1551                                               Appeals Court

            TINA SEALES    vs.   BOSTON HOUSING AUTHORITY.


                            No. 14-P-1551.

       Suffolk.       October 6, 2015. - November 16, 2015.

                Present:   Cohen, Meade, & Agnes, JJ.


Boston Housing Authority. Housing Authority. Municipal
     Corporations, Housing authority. Practice, Civil, Action
     in nature of certiorari. Administrative Law, Hearing,
     Substantial evidence, Judicial review. Evidence, Hearsay.
     Controlled Substances.


     Civil action commenced in the Boston Division of the
Housing Court Department on January 23, 2014.

     The case was heard by Jeffrey M. Winik, J., on a motion for
judgment on the pleadings.


    Angela Marcolina for the defendant.
    Alex Mitchell-Munevar for the plaintiff.


    MEADE, J.     Tina Seales is a participant in the United

States Department of Housing and Urban Development (HUD) Housing

Choice Voucher Program, commonly referred to as "Section 8."

The program is administered by the Boston Housing Authority

(BHA) pursuant to 42 U.S.C. § 1437f (2012), and related HUD
                                                                     2


regulations.   In August of 2013, Seales received notice that the

BHA proposed to terminate her participation in the program due

to serious or repeated violation of her lease.   Seales appealed

the proposed termination.   Following an informal hearing, a

hearing officer, by a decision dated January 2, 2014, upheld the

termination of Seales's Section 8 housing subsidy.   Thereafter,

Seales successfully sought relief in the nature of certiorari

under G. L. c. 249, § 4, in the Housing Court.   On appeal from

that judgment, the BHA claims that the judge erred in

determining that the hearing officer improperly found that

criminal or illegal activity occurred on the rental premises

that constituted a serious violation of Seales's Section 8

lease.   We reverse.

    Background.    Seales resided at 25 Drayton Avenue in the

Dorchester section of Boston.   She was a participant in the

BHA's Section 8 program and had been receiving Section 8 housing

benefits for approximately fifteen years.   Seales lived with her

three children, then ages sixteen, seventeen, and nineteen.     In

August of 2013, Seales received notice that the BHA proposed to

terminate her participation in the program due to a family

member having engaged in drug-related activity and serious or
                                                                     3


repeated violation of her lease.1   The BHA based its allegations

on a Boston police incident report, a leased housing

recertification questionnaire, family obligations, and the lease

itself.

     1.   The incident report.   According to the Boston police

incident report, on July 9, 2013, police Officers Femino,

McGrath, and Bernier saw an individual leave 25 Drayton Avenue

wearing a black hooded sweatshirt and dark colored jeans and

carrying a white T-shirt.    The individual was later identified

as Gavin Compass.    As soon as Compass noticed the officers in

their unmarked cruiser, he "clutched at his waist," turned, and

sprinted back into the front door and into the common hallway of

25 Drayton Avenue.    Based on "key indicators" of Compass's

behavior, and their training and experience,2 the officers

believed that Compass was in possession of a firearm.

     After Compass turned and sprinted up the stairs of the

building, Officers Femino and Bernier got out of the unmarked

cruiser and pursued Compass into the building.    Once inside, the

officers saw a discarded white T-shirt and a black firearm on

the stairs of the common hallway.    The firearm was a Ruger LCP


     1
       Section 10(a) of the lease required that Seales and her
household members "refrain from engaging in any criminal or
illegal activity in the rental Premises."
     2
       The officers were trained in the Bureau of Alcohol,
Tobacco, and Firearms characteristics of an armed gunman.
                                                                      4


loaded with three rounds of ammunition.     The officers spoke with

the residents of the other two apartments in the building,

received their permission to search their apartments, and

determined that Compass was not in those apartments.     The

officers went to Seales's apartment, where a nearby witness told

them that Compass had indeed run inside Seales's apartment.        The

officers announced themselves to those inside, received no

response, and made a forced entry.   Inside they discovered a

shirtless Compass; Seales's nineteen year old daughter,

Shurlynn; and another person, Keonte Campbell.     One of Seales's

minor sons was also in the apartment.     The black hooded

sweatshirt was located in a rear bedroom.     Compass was arrested.

    During a protective sweep of the residence, Sergeant Teahan

located "5 individual [plastic bags] of off white rock like

substance believed to be crack cocaine and 2 [plastic bags] of

green leafy substance believed to be marijuana."     As a result,

police arrested Shurlynn and charged her with possession with

intent to distribute class B and class D controlled substances

in violation of G. L. c. 94C, §§ 32A and 32C.     The drugs were

brought to the Boston police area B2 drug safe, where they were

logged and recorded.

    The BHA's proposed termination of Seales's Section 8

housing assistance was due to the events described above.      The

BHA cited two violations of her lease and Section 8 housing
                                                                   5


agreement, notifying Seales that her assistance would be

terminated because (1) "[a] family member [Shurlynn] [had]

engaged in drug related activity," and (2) Seales had committed

"[s]erious or repeated violations of the lease."   The police

incident report, detailed above, served as evidence for both

violations.

    2.   Administrative hearing.   Seales administratively

appealed the BHA's termination in September of 2013.   At the

informal hearing before a BHA hearing officer, she was afforded

the opportunity to comment on the police report, and she

explained that she was not home during the incident and that

neither she nor her children knew Compass.

    Seales claimed that her daughter did not open the door for

the police because she was "afraid of retaliation" from "the

local kids," and stated that her daughter "just opened the door"

for Compass because there were "police everywhere" and he "just

came in the house."   Seales further recounted that her daughter

informed her that Compass entered their home, took his shirt

off, and "was just walking back and forth" when the police

knocked and kicked in the door.

    With regard to the narcotics recovered from her apartment,

Seales explained that "the stuff was in [her] unit, but it was

on [Compass]."   Furthermore, as police observed the drugs in

plain view in a closet, she asserted that it was Compass who had
                                                                     6


left them behind:    "[H]e must have taken the drugs or the guns

or whatever . . . and put the drugs where the police found them

in [the] closet."

    After reviewing the police report and testimony from both

Seales and the BHA leased housing division, the hearing officer

determined that (1) "Shurlynn . . . did not engage in drug

related activity" but that (2) "the Tenant [Seales] committed

serious and repeated violations of provision 10(a) of her

7/25/2012 lease because the police found in her unit:    5

individuals [sic] plastic bags of off white rock like substance

believed to be crack cocaine; 2 plastic bags of green leafy

substance believed to be marijuana and [a] replica M14 shotgun

BB Gun."

    The hearing officer relied on the police report in

evaluating the circumstances and determined that the report met

the "substantial indicia of reliability" requirement for the

admission of hearsay evidence in an administrative proceeding

under Costa v. Fall River Hous. Authy., 453 Mass. 614, 627

(2009).    In finding the police report sufficiently reliable, the

hearing officer explained that (1) the officer who made the

report was not anonymous and made statements based on his first-

hand observations, (2) Seales confirmed the presence of illegal

drugs in her apartment through her failure to deny that the

substances were drugs, and (3) she did not contradict the police
                                                                   7


report with any statement or other evidence that the hearing

officer found credible.   Specifically finding her statements

inconsistent and unreliable, the hearing officer did not credit

Seales's testimony.3   As a result, and in consideration of the

police report and Seales's implicit admission to the drugs in

her apartment, the hearing officer determined that illegal drugs

were present in the subsidized unit.

     The hearing officer then considered a number of mitigating

circumstances supporting continuation of Seales's Section 8

benefits,4 but nevertheless concluded that the seriousness of the

criminal activity at issue warranted her termination from the

program.   Although the hearing officer found the facts

sufficient for the purpose of finding a serious or repeated

     3
       The hearing officer explained that "the Tenant did not
submit evidence to corroborate her testimony and there [are] no
facts in the police report that sustain her argument [that
Compass left the drugs in her apartment]." She did not credit
Seales's testimony, citing its inconsistencies, including the
children's knowledge of Compass's movements and whereabouts once
he entered the building (which they would not have known had
they not spoken with him or fabricated the information),
conflicting accounts of whether the daughter observed Compass in
the apartment or had been napping until the police knocked on
the door, or why the children would have let Compass, an
apparent stranger, in the apartment if the neighborhood was as
unsafe as Seales suggested.
     4
       Mitigating circumstances included (1) terminating housing
assistance would be "a nightmare" for Seales because she has two
disabled children collecting Social Security benefits, (2) she
was living with her three children, (3) Seales was seeking
"mother's work hours" so she could supervise her children, and
(4) this is the first incident Seales has encountered in the
fifteen years she had participated into the Section 8 program.
                                                                    8


violation of the lease, the hearing officer also determined that

the police report was not sufficient to show that Shurlynn was

engaged in drug-related activity.

     3.   Housing Court.   In Housing Court, Seales sought relief

in the nature of certiorari pursuant to G. L. c. 249, § 4, to

challenge the hearing officer's decision to terminate her

Section 8 benefits.   In her complaint, Seales explained the

circumstances surrounding her termination, but did not make a

legal argument in support her petition for relief.5

     In his decision vacating the hearing officer's termination

of benefits, the judge held that the hearing officer "committed

three distinct but related legal errors" that "adversely

affected Seales'[s] material rights as a participant in the

Section 8 program."   First, the judge concluded that the hearing

officer erred in finding that the substances found in a bedroom

closet were "crack" cocaine and marijuana based on the hearsay

statements contained in the police report that reflected what

the sergeant "believed" the substances to be.    The judge

     5
       Seales stated as follows in her complaint: "Section 8 has
made a decision to terminate my voucher due to the facts, an
individual ran into my apartment . . . whom I did not know and
was arrested in my apartment. My son who is disabled heard the
commotion outside [and] heard someone knock on the door. He
thought it was the police knocking on the door, but it was the
suspect. They arrested the suspect inside my home and charged
my daughter with the crime. After going to court the magistrate
[sic] my daughter not guilty and in fact dismissed the case. I
would like the judge to order them not to take my section 8 away
from me."
                                                                    9


concluded that while the factual observations in the report were

reliable, accurate, and admissible under Costa v. Fall River

Hous. Authy., 453 Mass. at 627, there was not sufficient

reliable evidence to support a finding that the substances were

in fact illegal drugs.    Without a "detailed factual account" in

the police report, or corroborating evidence such as a certified

chemical analysis or a police witness or affidavit, the judge

determined:   "It was legal error for the hearing officer to rely

on what Sergeant Teahan thought the substances might be --

standing alone and without any competent additional evidence --

to support a finding that the substances found in Seales'[s]

apartment were in fact crack cocaine and marijuana."

    Second, the judge also determined that it was error for the

hearing officer to find that Seales's failure to deny that the

substances were drugs functioned as a tacit admission that they

were in fact narcotics.   The judge concluded that this finding

was not supported by the record.   He reasoned that Seales's

testimony was "direct and consistent" and that a "plain reading

of the transcript" did not provide for any admission by silence.

According to the judge, the hearing officer then improperly used

this "tacit admission" to bolster the reliability of the

statements identifying the substances as drugs in the police

report.
                                                                     10


     Third, the judge determined that the hearing officer erred

in relying on these erroneous factual findings to determine that

Seales "had engaged in criminal or illegal activity that

constituted a serious violation of her Section 8 lease"

warranting termination from the program.     The judge found that

there was no evidence in the record to support the hearing

officer's finding that the police found crack cocaine and

marijuana in the apartment.     Thus, there was insufficient

evidence to warrant termination from Section 8 housing, and the

judge reversed the hearing officer's decision to terminate

Seales from the Section 8 program.    The BHA then filed this

timely appeal.

     4.   Standard of review.   Decisions of the BHA are properly

subject to review under G. L. c. 249, § 4.     See Figgs v. Boston

Hous. Authy., 469 Mass. 354, 361 & n.13 (2014).     A civil action

in the nature of certiorari under G. L. c. 249, § 4, is "to

relieve aggrieved parties from the injustice arising from errors

of law committed in proceedings affecting their justiciable

rights when no other means of relief are open."6    Id. at 361,


     6
       General Laws c. 249, § 4, as amended through St. 2002,
c. 393, § 20, provides that "[a] civil action in the nature of
certiorari . . . may be brought in the supreme judicial or
superior court or, if the matter involves any right, title or
interest in land, . . . in the land court." Under G. L.
c. 185C, § 3, the Boston Division of the Housing Court
Department has concurrent jurisdiction with the Superior Court
Department regarding housing matters arising in the city of
                                                                    11


quoting from Swan v. Justices of the Superior Court, 222 Mass.

542, 544 (1916).    Certiorari review of an administrative

decision requires "(1) a judicial or quasi judicial proceeding,

(2) from which there is no other reasonably adequate remedy, and

(3) a substantial injury or injustice arising from the

proceeding under review."    Ibid., quoting from Indeck v.

Clients' Sec. Bd., 450 Mass. 379, 385 & n.12 (2008).

     "The scope of judicial review for an action in the nature

of certiorari under G. L. c. 249, § 4, is limited."    Retirement

Bd. of Somerville v. Buonomo, 467 Mass. 662, 668 (2014).     The

judge's role on certiorari review is to "correct substantial

errors of law apparent on the record adversely affecting

material rights."    Doucette v. Massachusetts Parole Bd., 86

Mass. App. Ct. 531, 540-541 (2014), quoting from Firearms

Records Bureau v. Simkin, 466 Mass. 168, 180 (2013).     "In the

absence of substantial legal error, we review the record to

determine whether that decision was supported by substantial

evidence."   Durbin v. Selectmen of Kingston, 62 Mass. App. Ct.

1, 5 (2004).7   In reviewing an appeal of a decision in a



Boston. Therefore, the Housing Court has concurrent
jurisdiction under G. L. c. 249, § 4, with the Superior Court to
review public housing authority decisions regarding housing
matters in the city.
     7
       Substantial evidence is defined as "such evidence as a
reasonable mind might accept as adequate to support a
conclusion." Durbin v. Selectmen of Kingston, supra at 6,
                                                                       12


certiorari proceeding, the reviewing court may not make de novo

determinations or draw different inferences from the facts, make

different judgments as to witness credibility, or disturb a

choice made between conflicting inferences or views of the

facts, "even if it might justifiably make a different choice

were the case before it de novo."       Id. at 6.

     We therefore review the administrative record provided by

the parties to determine whether the "judge correctly ruled that

the hearing officer committed legal errors . . . adversely

affect[ing] [Seales's] material rights."       Figgs v. Boston Hous.

Authy., 469 Mass. at 362.       To do so, we examine the record to

determine whether substantial evidence supported the hearing

officer's findings.8    Ibid.

     5.   Discussion.   Through the Section 8 program, Congress

authorized the Secretary of HUD to develop a program for

assistance payments to aid "low-income families in obtaining a

decent place to live and [to promote] economically mixed

housing."   42 U.S.C. § 1437f(a) (2012).      HUD provides funds to

public housing agencies, including the BHA, who then administer


quoting from New Boston Garden Corp. v. Assessors of Boston, 383
Mass. 456, 466 (1981).
     8
       The hearing officer's factual findings "shall be based on
a preponderance of the evidence presented at the hearing." 24
C.F.R. § 982.555(e)(6) (2015). A preponderance standard
requires that the trier of fact find that "what is sought to be
proved is more probably true than not true." Figgs v. Boston
Hous. Authy., supra at 362 n.15.
                                                                    13


Section 8 benefits.   See 24 C.F.R. § 982.1(a)(1) (2015); Figgs

v. Boston Hous. Authy., supra at 363.     Under the BHA

administrative plan for Section 8 programs, the BHA has

discretion to terminate a housing subsidy where a participant

violates "any Family obligation under the program by action or

failure to act as listed in section 13.5.2 or as set forth in 24

C.F.R. § 982.5851."   BHA administrative plan § 13.3.9.      Section

13.5.2 of the BHA administrative plan contains the Section 8

"Family obligations" and provides that "[v]iolation of the

Family obligations by an act or a failure to act may result in

termination of assistance."   More specifically, "[t]he Family

may not commit any serious or repeated violation of the Lease."

BHA administrative plan § 13.5.2(d).    Paragraph 10(a) of

Seales's lease, signed on July 25, 2012, demonstrates her

understanding of this requirement and her agreement "to refrain

from engaging in and to cause Household member(s), guest(s), or

any person under any Household member's control to refrain from

engaging in any criminal or illegal activity in the rental

Premises."

    On appeal, the BHA claims that the judge erred when he

failed to credit the police report relied upon by the hearing

officer.   More specifically, the BHA claims the hearing officer

properly credited the report that contained detailed firsthand

observations as sufficient to support a finding of illegal
                                                                  14


activity constituting a serious lease violation in order to

uphold termination of Seales's Section 8 benefits.   We agree.

     In Costa v. Fall River Hous. Authy., 453 Mass. at 627, the

Supreme Judicial Court held that hearsay evidence, such as a

police report, "may form the basis of a [housing authority's]

decision to terminate Section 8 assistance so long as that

evidence contains substantial indicia of reliability."9    Not all

hearsay is admissible, however.   In fact, the court cautioned

against relying on "anonymous, uncorroborated, or contradicted"

hearsay.   Id. at 626.

     Here, the hearing officer found the police incident report

to be admissible hearsay not subject to any of the concerns

raised in Costa.   In her findings, the hearing officer indicated

that the statements in the police report contained "substantial

indicia of reliability" because the report was "not anonymous."

The report consisted of "first hand observations of the

Reporting Officer," and the statements made in the report were

based on those observations.   See id. at 627.   The report

contained both a comprehensive and detailed factual account of

the encounter between the police, Compass, and Seales's

children, as well as detailed statements identifying the

     9
       In Costa, supra, the Supreme Judicial Court held that the
police report in that case was admissible because it "offered a
detailed factual account based on the personal observations of
the detective, and it is a crime for a police officer to file a
false report."
                                                                   15


substances found in Seales's apartment as five plastic bags of

an "off white rock like substance believed to be cocaine" as

well as two bags of a "green leafy substance believed to be

marijuana."   The hearing officer relied on this thorough account

to support a finding that police had, in fact, observed illegal

drugs in Seales's apartment.

     Despite meeting the "substantial indicia of reliability"

standard of Costa, the judge nevertheless ruled that the hearing

officer's reliance on the report amounted to legal error.     While

the judge conceded that the facts contained in the police report

were sufficiently reliable, he ruled that the police officer's

"belief" that the substances were crack cocaine and marijuana

was not sufficiently reliable to support a finding that the

substances actually were illegal drugs absent corroborating

testimony, affidavits, or laboratory reports.10   In focusing on


     10
       In reaching this conclusion, the judge relied on
Commonwealth v. Dawson, 399 Mass. 465, 467 (1987), for the
proposition that proof that a substance is a particular drug may
be proven by circumstantial evidence, but not by testimony or a
police report alone. The judge's reliance was misplaced.
Dawson was a criminal prosecution with the identity of cocaine
missing from an evidence control room at issue. The court held
that a substance can be identified as cocaine through the
testimony of experienced police officers rather than through
laboratory analysis or testimony by a qualified chemist. Id. at
466-467. Despite that, the court also remarked (a remark the
judge here relied on), "We suspect it would be a rare case in
which a witness's statement that a particular substance looked
like a controlled substance would alone be sufficient to support
a conviction." Id. at 467. The problem with the judge's
reliance on this dicta is that Dawson involved a criminal case
                                                                  16


what the police officer believed but did not conclusively state,

the judge improperly discounted both the reliability inherent in

a detailed police incident report, as well as the hearing

officer's permissible inferences regarding the details in the

report.   The police report here, combined with a commonsense

understanding that this police sergeant would have the training

and experience to identify illegal drugs, was sufficient to

support an inference and finding that the substances in Seales's

apartment were correctly identified as crack cocaine and

marijuana.11   See Figgs v. Boston Hous. Authy., 469 Mass. at 355,




where any conviction must be based on proof beyond a reasonable
doubt. Here, in this civil administrative proceeding, the
burden was a preponderance of the evidence. While the court in
Dawson expressed doubt that a statement alone could support a
conviction beyond a reasonable doubt, nothing in Dawson
precluded a finding by a preponderance of the evidence that a
reliable, detailed police statement is sufficient to identify a
substance as an illegal drug.
     11
       The hearing officer also found the police report
sufficiently reliable because Seales did not contradict any of
the statements contained in the report or deny that there were
drugs in her apartment. She considered Seales's failure to deny
that the police had found drugs to be a tacit admission of their
presence. Although she considered the police report and tacit
admission together in finding that the police report was
reliable, we need not consider this aspect of the hearing
officer's reasoning because the police report itself was
sufficiently reliable to support her finding that the substances
in Seales's apartment were illegal drugs. See Costa v. Fall
River Hous. Authy., 453 Mass. at 627 (holding police report with
"detailed factual account based on the personal observations of
the detective" sufficiently reliable); Figgs v. Boston Hous.
Authy., 469 Mass. at 357, 364-365 (hearing officer could
properly find unlawful possession by preponderance of evidence
                                                                  17


364-365 (holding police report identifying "two bags of a leafy

green substance believed to be marijuana," plastic bags, $653 in

cash, and a firearm allowed inference of possession and intent

to distribute or sell [emphasis added]).   We add that here, as

in Costa, the reliability of the report is further bolstered by

the fact that it is a crime to file a false police report.     See

Costa v. Fall River Hous. Authy., 453 Mass. at 627; G. L.

c. 268, § 6A.

    Therefore, there was substantial evidence to permit the

hearing officer to find that illegal drugs were found in

Seales's apartment.   The judge improperly disturbed this finding

and exceeded his authority on certiorari review by drawing his

own inference on the reliability of the sergeant's belief.     See

Durbin v. Selectmen of Kingston, supra at 6 (reviewing court

cannot "draw different inferences from the facts; it cannot

disturb a choice made below between two fairly conflicting

inferences or views of the facts").

    Because the hearing officer could properly find that there

were illegal drugs in Seales's apartment, it was also properly

within her discretion to conclude that Seales violated her lease

because a person under her control engaged in criminal or

illegal activity in the rental premises.   Whether the activity



based on police incident report and confidential informant
hearsay statements).
                                                                   18


constituted a serious or repeated violation of section 10(a) of

the lease, and whether Seales's Section 8 benefits should be

terminated based on this violation, fell squarely within the

hearing officer's discretion.     See Costa v. Fall River Hous.

Authy., supra at 630-631.     The BHA claims that the hearing

officer's decision to terminate Seales's Section 8 benefits was

not an abuse of discretion.    We agree.

     To determine if the hearing officer abused her discretion

in reaching these conclusions requires that that we "look for

decisions based on 'whimsy, caprice, or arbitrary or

idiosyncratic notions.'"    Figgs v. Boston Hous. Authy., supra at

368, quoting from Cruz v. Commonwealth, 461 Mass, 644, 670

(2012).   We do not substitute our judgment or disturb a decision

because we may have decided differently.     Ibid.

     We are satisfied that the hearing officer considered and

weighed the evidence before her, including the police report,

hearing testimony, and any potentially mitigating factors in

Seales's favor before determining that termination was indeed

appropriate.12   Contrast Carter v. Lynn Hous. Authy., 450 Mass.

626, 636-637 (2008).   We conclude that there was substantial

     12
       Although not challenged on appeal, the hearing officer's
decision at times reported testimony without indicating whether
the testimony was credible. At other times, explicit
credibility determinations were made. A clear statement of what
testimony was found credible assists in meaningful appellate
review. See, e.g., Friedman v. Board of Registration in Med.,
408 Mass. 474, 476 (1990), cert. denied, 498 U.S. 1107 (1991).
                                                                   19


evidence to support the hearing officer's finding that illegal

drugs were in Seales's apartment, which constituted a serious

violation of her lease.   Therefore, the hearing officer did not

abuse her discretion in finding that Seales's conduct warranted

terminating her participation in the Section 8 program.

                                    Judgment reversed.
