Owner's Complaints Against PHA Aren't Constitutionally Protected Speech

Facts: An owner participating in the Housing Choice Voucher (HCV) program sued the local housing authority for allegedly violating his first amendment rights by retaliating against him for opposing its improper conduct.

The owner began complaining to the housing authority about its Housing Quality Standards inspections conducted at his properties in 2009. At that time, he distributed handouts during the housing authority’s Board of Commissioners meeting. Included in those handouts were emails that the owner sent regarding re-inspections that two of his properties had to undergo after failing prior inspections. He also included a copy of an email that he sent on May 14, 2009, to a housing authority representative and one of its inspection contractors. It described at length his views that the inspectors “(1) were incompetent; (2) were negligent; (3) were improperly trained; (4) did not follow the proper inspection guidelines; (5) cited him for deficiencies that were the responsibility of the tenant; (6) cited him for violations that did not exist; (7) did not appear for inspection at the scheduled time; (8) improperly abated his properties; and (9) failed him for items that [he] had previously been told passed.”

Sometime between March and June of 2011, the owner attended another meeting to criticize the housing authority. And then in August 2011, he was given notice of intent to terminate an HCV resident at one of his sites. The owner had previously received an inspection results notice dated April 22, 2011, confirming that this unit had passed the housing authority’s initial inspection. He alleged that this reclassification of the passed inspection to a fail was retaliation for his criticisms of the housing authority.

The record shows that a housing authority contractor erroneously sent pass notices to approximately 1,000 unit owners whose sites had failed inspections. When the error was detected, the contractor took corrective action, including notifying owners of the affected units that they had failed their inspections.

Ruling: An Illinois district court granted a judgment without a trial in the housing authority’s favor.

Reasoning: The owner didn’t prove that he engaged in constitutionally protected speech. The court concluded that he spoke purely on matters of personal concern and, as such, this speech wasn’t constitutionally protected. The owner couldn’t recall any specific statements he made at the 2011 meeting. And a follow-up email he sent to the housing authority didn’t show it consisted of protected speech.

Speech is considered “a matter of public concern if it relates to any matter of political, social, or other concern to the community. Conversely, speech is not a matter of public concern if it involves a personal grievance of interest only to the [speaker].”

The owner argued that the First Amendment shields his statements because he was protesting government waste, which courts have recognized constitutes a topic of public concern. However, the court looked at the point of the speech in question: Was it the owner’s point to bring wrongdoing to light? Or to raise other issues of public concern, because they are of public concern? Or was the point to further some purely private interest? The court concluded the speech was of purely private interest. Looking at the email, the court stated that its purpose was to resolve issues affecting the owner’s own property and expected payments. He sought more favorable inspection results, faster responsiveness to his personal complaints, and a guarantee that his payments wouldn’t be abated. Because his email concerned matters purely of personal interest, his email fell outside the purview of the First Amendment.

• Schlessinger v. Chicago Housing Authority, September 2015