“The basic purpose of FOIA [Freedom of Information Act] is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed,” see, National Labor Relations Board v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
Yesterday afternoon, the Manufactured Housing Association for Regulatory Reform (MHARR) revealed it had appealed a decision by the U.S. Department of Housing and Urban Development (HUD) over a Freedom of Information Act (FOIA) request first filed in 2016.
MHProNews will provide MHARR’s media release in full below, along with an attachment that accompanied their statement. That will be followed by some related MHProNews commentary and analysis.
MHARR Appeals HUD Stonewalling On MHCC FOIA
Washington, D.C., January 2, 2020 – The Manufactured Housing Association for Regulatory Reform (MHARR) has appealed (copy attached) a HUD decision refusing to disclose information related to the selection of members to serve on the vitally important Manufactured Housing Consensus Committee (MHCC).
In a Freedom of Information Act (FOIA) request filed in January 2016, MHARR sought the disclosure of all applications for appointment to the statutory MHCC – regardless of whether the applicant was actually appointed by HUD – submitted to the Department since January 2008. The purpose of MHARR’s request was to: (1) determine whether all MHCC appointees had been selected by HUD in accordance with all applicable requirements and criteria of the Manufactured Housing Improvement Act of 2000; and (2) to determine whether there is evidence of past or present discrimination by HUD, or potential HUD bias, against any individual(s), group, class, or interest in the selection (or non-selection) of MHCC members. This information and related assessment is of crucial importance given the central role of the MHCC in the HUD regulatory process and is entirely consistent with the policies of President Trump regarding potential abuses of federal regulatory power and related processes.
HUD, in its September 20, 2019 response to this request, disclosed the nomination applications submitted by individuals previously appointed to the MHCC, but refused to produce applications submitted by persons who have not been appointed to MHCC membership, citing FOIA Exemption 6, which is designed to protect personal privacy interests.
In its administrative appeal, MHARR asserts that non-appointed nominees have no reasonable expectation of privacy in their nomination forms that is legitimately distinguishable from those who have been appointed to the MHCC, and that all such applications must be disclosed in order to determine if HUD, in the MHCC selection process, is excluding certain parties and/or interests from full representation, or is discriminating or otherwise playing favorites in its selection process. The significance and relevance of this inquiry has only grown in light of recent actions by HUD to unduly and improperly restrict the participation rights of non-MHCC members in MHCC debates and in the MHCC’s consideration of proposals that are of vital interest to both the industry and consumers. Such increasing efforts to silence participation by interested parties is reminiscent of similar activity by the Department in connection with the failed and bankrupt “Manufactured Housing Advisory Council,” which Congress, in the 2000 reform law, terminated in favor of a fully-functional and fully-accountable MHCC. Any step backward in that direction is wholly unacceptable to MHARR and will be targeted for appropriate action.
In the event that its administrative appeal is denied, MHARR has the option to take this matter to federal court in order to seek full disclosure of the requested documents, at which time it could – and would — seek depositions and related discovery of HUD program regulators and other HUD officials connected with the withholding of such information.
The Manufactured Housing Association for Regulatory Reform is a Washington, D.C.-based national trade association representing the views and interests of independent producers of federally-regulated manufactured housing.
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MHProNews Analysis and Commentary
In no particular order of importance, MHProNews notes the following possible takeaways:
- The FOIA requested by MHARR was filed during the final year of the Obama Administration, but obviously has carried over into the Trump Administration.
- The request is straight forward and logical. In order to determine if there is discrimination in the MHCC selection process, one must know about both those accepted and those declined. As an analogy, imagine if for purposes of determining possible racial or religious bias, only information about those hired were used. Without knowing the same information about those declined, there would be no reasonable way to determine if bias was in operation or not.
- MHProNews has previously noted that while HUD Secretary Ben Carson has made significant strides in promoting the use of manufactured housing that demonstrably dwarf others who held his role in the 21st century. Nevertheless, there is clear evidence that forces within HUD – for whatever reasons or motivations – have stonewalled the full and proper implementation of various aspects of the Manufactured Housing Improvement Act (MHIA) of 2000.
- That concern has been raised by those formerly with HUD, who on and off the record have told MHProNews and/or our MHLivingNews sister site that the Office of General Counsel has failed to implement the “enhanced preemption” provisions of the MHIA. See quotes and links below as examples.
- While MHProNews tends to focus on the importance of “enhanced preemption,” given the numerous battles over zoning and placement that are limiting manufactured housing, that in no way should be construed as diminishing other aspects of the MHIA reform law. Nor should it be understood as diminishing the lack of proper implementation of other aspects of federal law that falls under HUD’s jurisdiction.
- While all of it is part of the HUD Secretary’s ultimate responsibility, several of these fall into the immediate jurisdiction of Brian Montgomery, J.D., who is currently Brian the “Assistant Secretary of Housing and Urban Development for Housing, also known as the commissioner of the Federal Housing Administration,” per Wikipedia. The National Low Income Housing Coalition (NLIHC) noted on Oct 11, 2019 that “President Donald Trump has nominated Brian D. Montgomery to serve as HUD deputy secretary, the second most senior official at HUD. In this role, Mr. Montgomery would manage the day-to-day operations of HUD and assist the HUD secretary.”
- Sources currently and previously with HUD have told MHProNews that the chain of command there puts several of the issues involving FHA lending, other relevant HUD programs and the Office of Manufactured Housing Programs (OMHP) under Montgomery’s aegis.
- While it is too much to say that the HUD Secretary is a ceremonial role, it is fair to say that the HUD Secretary leans on whoever sits in Montgomery’s HUDdeputy secretary duties, especially when it comes to manufactured housing. Dr. Carson isn’t an attorney, but Brian Montgomery is. Secretary Carson can have a big picture vision in keeping with the Trump Administration’s guidance, but that requires the support of others at HUD in order to properly carry out those plans. Put differently, while the buck stops with Carson at HUD, Montgomery is a possible choke point. Both should be questioned by Congress to grasp why key aspects of the MHIA law are still not properly enforced.
- This FOIA denial logically reflects some form of coverup. That coverup is not only about who was or wasn’t appointed to the MHCC. It extends to why key aspects of the MHIA have been diverted, has that been done in collusion with outside parties, and if so, who are those parties?
- One might wonder why the Manufactured Housing Institute (MHI) hasn’t pressed this same issue? Don’t they claim in their website, in messages and to the IRS to represent all segments of manufactured homes and/or factory-built housing? Do they not care about the MHCC? They are engaged with it, so obviously they do. Which begs the question, do they then not want this FOIA information revealed? If not, why not?
For a variety of reasons, that the above begins to skim the surface of, there is clear evidence from sources such as former OMHP Administrator William ‘Bill’ Matchneer, J.D., that the Office of General Counsel has failed to enforce key aspects of the MHIA.
That comment came on the heels of a more detailed one from Mark Weiss to MHProNews that said as follows.
This begs several questions, which comes down to why public officials are failing to do what their duties require them to do, in this case, at HUD.
While much of mainstream headlines are often going to issues related to FISA courts, impeachment and the like what those similarly point to are forces withing the federal government that are willing to act contrary to the sitting president’s policies. Presidents are duly elected by a process that makes him or her ultimately responsible to voters. Are public officials in administrative roles allowed to thwart the will of the voters when a president has acted within their authority? Clearly, not according to the U.S. Constitution.
Those mainstream headlines often come with allegations of a “deep state” at the FBI, DOJ, State Department, CIA and other agencies. That matters to manufactured housing professionals, investors and advocates too. But of more specific and specialized interest to readers of this site is how that so-called “deep state” may be impacting our industry at HUD, or for that matter, the Federal Housing Finance Agency (FHFA).
- It is for reasons such as outlined and linked from herein that MHProNews opposes the nomination of Montgomery for the role that President Trump has nominated him.
- Furthermore, MHProNews believes that Congress in its oversight role must open investigations into others at HUD, including Teresa Payne, the current and prior General Counsels at HUD, and possibly others.
- To draw this report to a close, MHProNews believes that several people at HUD, and one or more at the FHFA, should be suspended from their current duties pending an investigation, others put in their place that will enforce the laws as written with respect to manufactured housing.
- MHProNews is on record as having made a similar call to action against Pam Danner, J.D., who was removed from her role at HUD and was ultimately separated from HUD, for allegations other reports have documented.
The attachment to MHARR’s FOIA request is linked here as a download or can be accessed from the MHARR website. The top reference is from that document, which is worthy of serious industry professionals reading it to understand the gravity of the issues involved.
As a final note, MHARR’s periodic looks at issues like HUD’s contractors or this on the MHCC is a positive reflection on them, and by extension, calls into question MHI for not doing something similar with their far greater resources.
MHARR and their leadership should be commended for acting in such a watchdog capacity. It is sadly but evidently needed.
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There is always more information and insights ahead, but that’s a wrap for this installment of manufactured housing “Industry News, Tips and Views Pros Can Use“ © – MHVille’s runaway #1 news source, where “We Provide, You Decide.” © (News, fact-checks, analysis, and commentary.) Notice: all third party images or content are provided under fair use guidelines for media.
Submitted by Soheyla Kovach for MHProNews.com.Soheyla is a co-founder and managing member of LifeStyle Factory Homes, LLC, the parent company to MHProNews, and MHLivingNews.com. Connect with us on LinkedIn here and here.
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