Pokwa v. Dep't of Hous. & Cmty. Dev.

96 Mass.App.Ct. 1118

140 N.E.3d 944 (Table)

Martha POKWA

v.DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT.

19-P-92

Appeals Court of Massachusetts.

Entered: January 21, 2020

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Martha Pokwa² appeals from a Superior Court judge's ruling affirming the Department of Housing and Community Development's termination of her participation in its emergency assistance (EA) program. Pokwa's brief includes neither legal citations supporting her arguments nor citations to the record, and thus does not rise to the level of appellate argument cognizable by this court. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019); Commonwealth v. Tracy, 50 Mass. App. Ct. 435, 442 (2000). Her appeal could be dismissed on that ground alone. See Mass. R. A. P. 16 (a) (9) (A) (appellate court need not pass upon questions or issues not argued in the brief). Considering Pokwa's arguments to the extent that we can discern them, however, we affirm.

1. Background. We draw our summary of the facts from the administrative record, deferring to the department's findings and reserving certain facts for later discussion. See McGovern v. State Ethics Comm'n, 96 Mass. App. Ct. 221, 222 (2019) ; Zoning Bd. of Appeals of Canton v. Housing Appeals Comm., 76 Mass. App. Ct. 467, 473 (2010). Pokwa's participation in the department's EA program began in July 2015. Despite having agreed, as a condition of her enrollment, to follow all program rules, beginning in 2016, Pokwa failed to attend required meetings, failed to submit proof of cooperation with her rehousing plan, and, on one occasion, behaved in a threatening way to another shelter resident. As a result, and pursuant to its regulations, see 760 Code Mass. Regs. §§ 67.06(5), 67.09(1) (2015), the department served Pokwa first with notices of noncompliance on October 12 and 20, 2016, and later with some twelve additional notices of termination, including notices dated January 10, 2017, February 6, 2017, March 22, 2017, and March 24, 2017.

Pokwa appealed four of the notices of termination. The department granted her appeal, docketed as number 17-0042, as to the January 10, 2017 notice of termination, and dismissed that notice. While the decision on that appeal was pending, Pokwa filed appeals of the other three notices of termination at issue here.³ After fair hearings on May 9, 2017, the department affirmed each of the three notices of termination and the department's decision to terminate Pokwa's EA benefits.

Pokwa sought judicial review of the department's decisions pursuant to G. L. c. 30A, § 14. After consolidating the three appeals, a Superior Court judge allowed the department's motion for judgment on the pleadings and dismissed them. This appeal followed.

2. Discussion. a. Sufficiency of the evidence. We begin with Pokwa's challenge to the sufficiency of the evidence supporting the hearing examiner's determinations. Pokwa, as the appellant, has the burden of showing that the department's decisions were not supported by " ‘substantial evidence,’ that is ‘such evidence as a reasonable mind might accept as adequate to support’ " the department's decision. Zoning Bd. of Appeals of Canton, 76 Mass. App. Ct. at 472, quoting Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 376 (1973). In challenging the unappealed notices of noncompliance, a preponderance of the evidence standard applies. See 760 Code Mass. Regs. § 67.09(2)(a) (2015). We review the decision of an administrative agency considering the entire record, setting the agency's determination aside only under limited circumstances, including where it is based upon an error of law or is unsupported by substantial evidence.⁴ See G. L. c. 30A, § 14 (7). See also Tabroff v. Contributory Retirement Appeal Bd., 69 Mass. App. Ct. 131, 133-134 (2007). In doing so, we " ‘give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it’ by statute," and defer to the department's assessments of the weight and credibility of the evidence before it. Zoning Bd. of Appeals of Canton, 76 Mass. App. Ct. at 473, quoting G. L. c. 30A, § 14 (7).

i. Docket 17-0157. The February 6, 2017 notice of termination, based on the department's claim that Pokwa failed to attend a meeting on January 10, 2017, mandatory under the terms of the program, duplicated an earlier notice based on the same absence, docketed as 17-0042. Pokwa had prevailed on her appeal of the earlier notice of termination, 17-0042, and it had been dismissed after a fair hearing on the merits. Under the circumstances, we conclude that the department's dismissal of its earlier notice of termination precluded it from relying on the same conduct as a basis for a later notice of termination as part of 17-0157, and that Pokwa's appeal of the February 6, 2017 notice of termination should have been allowed. Because, however, as we discuss infra, the department's October 2016 notices of noncompliance and the March 2017 notices of termination were all valid, the judge did not err in granting judgment on the pleadings as to the consolidated actions; the requirements for the department's termination of Pokwa's participation in the EA program had been met. See 760 Code Mass. Regs. § 67.06(6)(a)(3) (2015).

Her challenges to the October 2016 notices of noncompliance included in this docket were properly denied. In support of the October 12, 2016 notice, the hearing examiner credited evidence, including the department's notice of infraction, detailing a September 15, 2016 incident in which Pokwa behaved in a threatening way to another shelter resident.⁵ Considering the October 20, 2016 notice, the hearing examiner credited the department's witness's testimony stating that, despite being told that her rehousing plan required her to take steps including submitting twenty housing applications per month, requesting forty housing applications per month, and keeping a log of these efforts, Pokwa failed to submit any of the required materials. To the extent that Pokwa argued that the shelter did not help her with these efforts, the hearing examiner did not credit her testimony. Pokwa failed to carry her burden of demonstrating by a preponderance of the evidence that the October 2016 notices of noncompliance should have been overturned. See 760 Code Mass. Regs. § 67.09(2)(a).

ii. Docket 17-0480. The basis of the March 22, 2017 notice of termination was Pokwa's failure to attend a mandatory meeting on February 21, 2017. The hearing officer credited the department's evidence that Pokwa was aware of her meeting schedule, and the fact that the scheduled meetings were mandatory, but failed to attend the February 21, 2017 meeting, and rejected Pokwa's explanations for her absence. In weighing the seriousness of this violation, the hearing examiner considered Pokwa's history of prior noncompliance with the program rules. These determinations were within the hearing examiner's discretion to make, see Tabroff, 69 Mass. App. Ct. at 134, and Pokwa has failed to show that this evidence supporting the hearing examiner's denial of her appeal was not "substantial." See G. L. c. 30A, §§ 1 (6), 14 (7). See also Lincoln Pharmacy of Milford, Inc. v. Commissioner of the Div. of Unemployment Assistance, 74 Mass. App. Ct. 428, 431 (2009) (standard of review is highly deferential to agency).

iii. Docket 17-0481. The department's evidence, credited by the hearing examiner, that Pokwa again failed, without good reason, to attend a mandatory meeting despite her knowledge that she was required to do so, was "substantial evidence" supporting the hearing examiner's denial of Pokwa's appeal of the March 24, 2017 notice of termination in this case.

b. Discovery. We are not persuaded by Pokwa's contention that the motion judge erred in denying her discovery of video recordings of the threatening conduct toward another resident of the shelter that gave rise...