Veto of 'Fair Housing' measure stands

Posted 1/6/21

By DANIEL KITTREDGE Allan Fung's veto of the "e;Fair Housing Practices"e; ordinance approved by the City Council in December - one of his last official acts as mayor - will stand. During a special meeting ahead of Monday's inaugural activities, the council

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Veto of 'Fair Housing' measure stands


Allan Fung’s veto of the “Fair Housing Practices” ordinance approved by the City Council in December – one of his last official acts as mayor – will stand.

During a special meeting ahead of Monday’s inaugural activities, the council failed to muster the two-thirds majority needed to override the veto.

Six votes from the nine-member body were required for the override to be successful. The final margin was 5-2 with Ward 4 Councilman Ed Brady abstaining, as he had done when the measure was approved on a 5-3 vote at the final regular meeting of the last council in December.

Also mirroring the December vote, Michael Farina, a Republican and the outgoing council president, joined his four Democratic colleagues – outgoing citywide councilman Steve Stycos, as well as Lammis Vargas of Ward 1, Aniece Germain of Ward 2 and John Donegan of Ward 3 – in the majority. Michael Favicchio, the outgoing Republican Ward 6 councilman, joined Chris Paplauskas of Ward 5 in opposition.

Ken Hopkins, an outgoing Republican citywide councilman who was sworn in as mayor just two hours after the start of Monday’s special session, did not participate in the meeting.

In short, the “Fair Housing Practices” ordinance sought to prohibit source of income discrimination on the part of renters. Its language included protections for tenants utilizing any “lawful source of income” – including Section 8 housing vouchers, Social Security, veterans benefits and other public assistance – when applying for rental housing.

Donegan, the lead sponsor of the proposal, has said it was based on a similar ordinance adopted in Barrington and was intended to bridge gaps that exist in state and federal housing discrimination laws.

In his veto message dated Dec. 30, Fung wrote that while “housing affordability and the right of people to obtain a safe place to live are important issues for me,” he harbored “concerns about the legality and constitutionality” of the ordinance based on discussions with legal advisers.

“This ordinance would conflict with the Rhode Island Fair Housing Practices Act, which is quite comprehensive as well as specifically lists all the forbidden practices and conduct currently actionable under state law,” Fung wrote. “Thus, it would be specifically preempted by this statute. Our Rhode Island Supreme Court has consistently held that only the state can legislate and pass laws on matters of statewide concern.”

Fung signed a companion measure the council unanimously approved in December, an ordinance that revives the city’s Affordable Housing Commission. In his veto message, he urged that panel, once seated, to “provide recommendations that should be passed on to the members of the General Assembly for improvements to the existing Fair Housing Practices Act.”

Solicitor John Verdecchia on Monday elaborated on his review of the measure, saying that based on his interpretation of the law, he believes the state made discrimination law its domain – rather than an area in which municipalities can act separately – through the formation of the Human Rights Commission.

“I am as convinced as I can be that in the area of discrimination, the state of Rhode Island has indicated its intent to occupy the field,” he said.

Verdecchia also expressed concerns over enforcement of the ordinance as proposed and the potential for an “illegal expansion” of the Municipal Court’s jurisdiction. He suggested adoption of the ordinance would likely result in a legal challenge.

He added during his remarks to the council: “This is not a political commentary on my part at all. This is a dry, cold, legal analysis … This one is about as close as I can get to being 100 percent certain that this is not legal, and it would not be enforceable.”

Supporters of the ordinance pushed back on Verdecchia’s arguments and Fung’s veto rationale.

Donegan, echoing sentiment expressed by Vargas and Germain, said the city should embrace a potential legal challenge to the ordinance.

“If the state wants to sue us because we’re tackling discrimination in our own city, let them do it,” he said. “The city’s been sued for far less noble causes than fighting discrimination.”

Stycos noted that Barrington’s ordinance has not yet drawn a legal challenge, and he cited the “incredible need in the city” for affordable housing.

“This is something we can do. This is simple. It’s the right thing to do, and it does help address an affordable housing crisis,” he said, adding: “I think we should take a stand … that we do not support discrimination based on income.”

Vargas was sharply critical of Fung, saying she was “surprised” and “ashamed” by the veto.

“I really thought he would leave on a better note,” she said, pledging to bring the issue back up in the council’s new term.

Farina, who ahead of the December vote shared a personal story of experiencing housing insecurity during his childhood, said he was “disappointed” both by Fung’s veto and Hopkins’s lack of attendance.

“Housing is a right,” he said.

In terms of opposition to the ordinance, Favicchio – who was been among its most vocal critics – held firm. He agreed with Verdecchia’s assessment and cited the potential cost to taxpayers if legal challenges ensued.

“I just think it’s the wrong way,” he said, also suggesting that pursuing the issue through the new Affordable Housing Commission is preferable.

Brady said he has “struggled with this beyond belief,” and called source of income discrimination an “important conversation.”

“I don’t want to go against our legal department,” he said. “At the same time, I don’t want to go against people I respect.”

Paplauskas called source of income discrimination “an important issue that needs to be addressed.” Citing his previous work with Donegan on the city’s forthcoming single-use plastic bag ban, he said he hopes the matter can be discussed further in the new term.

“Maybe the language isn’t that far off … I think we can get somewhere really soon where this works,” he said.

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