Weakened Lead Law Advances

The Harp administration’s efforts to weaken a city lead law moved forward Tuesday night, but with enough resistance — and, in some cases, outright opposition — from alders, legal aid lawyers, and advisory task force members to suggest it’s not yet a done deal.

At Tuesday night’s Legislation Committee meeting in the Aldermanic Chambers on the second floor of City Hall, committee alders voted 4 – 1 in support of an amended version of proposed changes to the local lead paint ordinance.

That proposed ordinance amendment now moves to the full Board of Alders, which will likely take a final vote on the matter during its first board meeting in December.

The changes that earned a divided recommended approval Tuesday night represented a second take by the city’s Health Department at updating the local lead law. An initial amendment stalled in committee in September following hours of outraged public testimony about how the proposed changes would loosen protections for local lead poisoned children.

This second version (which can be read in full here), despite tweaks providing a new level of policy development oversight by the Board of Health Commissioners, retained the same core provision that sparked such upset in September.

If approved and enacted, the amendment would remove an existing requirement that the city’s Health Department conduct a full lead hazard inspection with XRF machines, dust wipes, soil samples, and water samples every time a child under 6 years old tests at or above the local lead poisoning threshold of 5 micrograms per deciliter (μg/dL).

That corresponds to the federal Centers for Disease Control’s (CDC) reference level for dangerously high elevated blood lead levels that can cause permanent cognitive and behavioral impairments.

Since its inception in the 1970s, the city’s lead law has always mandated full inspections and subsequent lead hazard abatements for properties housing children who test at or above the CDC’s lead poisoning threshold. Four different state judges in six different court cases have ruled against the city in recent years regarding the Health Department’s lax enforcement of local law, which is the strictest in Connecticut.

The proposed new version would grant the city’s Health Department director discretion to choose when to order a full lead hazard inspection for children who test above 5 μg/dL and below the state lead poisoning threshold of 20 μg/dL.

That discretion would be effected through a proposed change in the law’s language that reads that the director ​“is authorized” to, and no longer ​“shall,” order full inspections for children who test above a 5.

“‘Authorized’ does not mean we’re going to ignore or not do the work or use some sort of way to not protect children,” Assistant Corporation Counsel Catherine LaMarr said Tuesday. “‘Authorized’ means that the director of public health has the right to do everything necessary to protect these children.”

She and city Acting Health Director Roslyn Hamilton argued throughout the hearing that the city must have such inspection discretion in order to prioritize protecting the most seriously ill children. Keeping the current law in place would only ​“clog up” the state housing court docket with lawsuit after lawsuit filed by the city against uncooperative landlords who do not fully abate their properties, they said, and would place an undue burden on the limited resources of the city’s already stretched Health Department.

New Haven Legal Assistance Association (NHLAA) attorney Amy Marx, along with Westville Alder and Legislation Committee member Darryl Brackeen, Jr. (pictured), criticized the proposed changes over and over Tuesday night as potentially rolling back a pathbreaking city law that has suffered from a lack of enforcement, not from any core legal or public health flaws.

Two members of the city’s Lead Paint Advisory Committee, including Elm City Communities/Housing Authority of New Haven Executive Director Karen DuBois-Walton, also provided written testimony urging the committee to hold off on a vote until they’ve heard from more public health and housing experts on the potential consequences of such an amendment.

“The crisis that precipitated the Health Department’s desire to change this law was that the Health Department was using its discretion and not protecting these children,” said Marx, whose agency has filed a class-action lawsuit against the city for failure to enforce the law.

She warned that granting the Health Department greater discretion will only result in the same loosening of citywide lead hazard protections that the department — by the admission of its former health director in open court — has engaged in since last November.

“There is no reason why we need to be taking steps backward,” said Brackeen, who cast the lone dissenting vote Tuesday. ​“We have been leading the charge and are a light on subjects like this.” To pass this amendment on to the full board with a recommended approval, he continued, represented be an abdication of the city’s progressive legacy of protecting its most vulnerable child residents.

Legislation Committee Vice-Chair and Westville Alder Adam Marchand (pictured at right, with East Rock Alder Charles Decker), who ultimately voted in favor of the proposed amendment along with Decker, Dixwell Alder Jeannette Morrison, and Amity/Westville Alder and Majority Leader Richard Furlow, disagreed with Brackeen’s interpretation of the proposed changes.

“I’ve accepted the assertion from city staff that the discretion is needed,” Marchand said. ​“If I felt that we were taking a step back, I wouldn’t have supported this.”

He and Decker and Furlow all promised to stay in touch with Marx and discuss with their colleagues potential further amendments to the proposed amendment before the full board takes its final vote.

“A lot of what we have here is a good start,” Furlow said at the end of the three-hour hearing. But, he added, ​“I do look forward to changes.”

“The Sole Purpose: To Move Fast”

LeMarr and Hamilton (pictured) explained over the course of their hour-long testimony that the Health Department had made a handful of changes to the proposed amendment since it was shot down in September.

Those included adding language about how the updated law must be ​“not inconsistent with state statute” and about how landlords in violation of the lead hazard law can be subject to both fines and to civil penalties.

LeMarr, who penned the proposed amendment, said she also added a series of guidelines for what the Health Department director must consider when developing departmental policies and procedures regarding how best to enforce the law. Those policies must be ​“consistent with recommendations from the Centers for Disease Control and Prevention” and they must take into consideration ​“parent/guardian outreach, education and referral, owner outreach, education and referral,” and ​“coordination with primary care physicians, regional lead prevention resources, city departments, local housing authority and other stakeholders.”

The proposed amendment also states that all relevant departmental policies and procedures must be reviewed and signed off on by the city’s Board of Health Commissioners.

“The flexibility is there for the director of public health and the people that are actually implementing this,” LeMarr said, ​“but you have a level of review and approval coming from the Board of Health.”

Hamilton said that city staff consulted social workers and nurse practicioners at Yale New Haven Hospital’s regional lead treatment facility, as well as staff at Fair Haven Community Health Care, representatives from the city’s Lead Paint Advisory Committee, and a top state housing court prosecutor.

Hamilton said, in conversations with public health departments around the state, she has learned that ​“they’re all looking at New Haven” and the city’s many recent court losses around lead paint law enforcement. She said she keeps hearing over and over again, ​“We hope we’re never going to be like you.”

This law change, she said, would help realign the city’s legal requirements with the capacity of the department — which, she said, still has only three lead inspectors, even though the Board of Alders recently approved the hiring of a total of eight.

Brackeen asked Hamilton and LeMarr why — even after these years of court losses — the Health Department still hasn’t formally submitted the names of appointed Lead Paint Advisory Committee members to the alders so that that committee, charged with providing legal and policy recommendations to the city, can be officially constituted. Why hasn’t more data about the actual number of lead-poisoned children in this city been made public? And why rush this law through without formal testimony from experts as to the law’s merits? he asked.

“Initially, it was just speed,” LeMarr said. ​“The original desire [behind the Harp administration pushing this proposed law change] was to move more quickly. That was just the sole purpose: To move fast.”

After looking up the number on her phone, Hamilton said that the total number of lead-poisoned children in the city in 2016 was 300, and that the total number in 2018 was 280. She provided no context as to what blood lead level those children tested as having.

Soon after they finished testifying,Marx and NHLAA Director of Litigation Shelley White and Prospect Hill/Newhallville Alder Steve Winter took the mic to testify against the proposed changes. Hamilton and LeMarr left the hearing — a good hour and a half before the committee alders took their vote on whether or not to recommend approval of the changes.

“An Embarrassment To Hear Those Words”

Just as she did at September’s committee hearing on the very same topic, Marx lambasted the proposed amendment as eviscerating the last remaining legal recourse that lawyers like her and alders and the courts have to hold the city accountable to protecting children who test above the local lead poisoning threshold.

“The Health Department made a decision to stop protecting these children because it cost too much,” she said about the Health Department’s November 2018 decision to enforce lead laws at elevated blood lead levels of 20, and not at 5. ​“That’s what it chose in its discretion to do.”

She described Hamilton’s lament about other cities looking at New Haven with pity and concern as a true shame. ​“It’s an embarrassment to hear those words here tonight,” she said.

“New Haven has the strongest, best protections on the book,” she continued. ​“I hope that other cities look to us” as a model for how to protect vulnerable children.

Lead paint poisoning in this city predominantly affects black and brown children whose families rent in low-income neighborhoods and lack the economic resources to move out of dangerous apartments. The city must step in, she said, to make sure that those families and those children are not poisoned simply for being poor.

“There is no safe level here,” White (pictured) said about elevated blood lead levels in children. If the city declines to inspect for lead hazards at the home of a child who has tested at a 5, then that blood lead level will likely only mushroom to 10 and then to 15 and then to 20 and beyond, presenting greater and greater neurological damages for the affected child, she argued.

“How poisoned do the children have to be in order” for the city to deem them endangered enough to protect? she asked.

Winter called on his colleagues to ​“pause our deliberations on this ordinance to open up a larger public process.”

There’s no need to rush, he cautioned, when the stakes are so high, so little data has been made public, and the very committee charged with reviewing and recommending laws like that has not yet been implemented.

Although she did not testify in person Tuesday night, DuBois-Walton, a member of that committee, submitted a letter of written testimony that urged the alders to put on the brakes.

“Our Mayor Toni N. Harp has expressed her desire to make New Haven a lead-safe city and to lead in this regard,” DuBois-Walton wrote. ​“The opportunity to pass a new lead ordinance offers an opportunity to set the municipal standard. I encourage you to model your efforts after the HUD guidelines under which we currently frame our work.

“Rather than move forward tonight with such an important piece of legislation, I encourage you to continue to hear from experts, review meaningful data and pass a piece of legislation that will take affirmative steps to create a lead safe city.”

Another Lead Paint Advisory Committee member, Fair Haven Community Healthcare pediatrician Amanda DeCew, provided written testimony stating that she was not even aware that a new version of the ordinance amendment had been submitted by the Health Department to the alders.

“[T]o my knowledge,” she wrote, ​“this revision was not circulated to the committee, and no meeting was scheduled to review the new revisions prior to submission.

“Given the importance of this topic to the people of New Haven, I think transparencies in proceedings around any changes to the existing lead ordinance are important.”

A third letter of opposition was submitted by Alice Rosenthal, a senior staff attorney with the Center for Children’s Advocacy and a newly appointed member of Mayor-Elect Justin Elicker’s transition team.

Rosenthal wrote that she coordinates a medical-legal partnership at Yale New Haven Children’s Hospital, and that she works closely with pediatricians, children, and families on legal issues impacting children’s health.

“I am writing with extreme concern about any proposal aimed to weaken New Haven’s lead poisoning protections,” she wrote. ​“Our current protections have been critical to ensure children with blood poisoning starting at 5 receive attention. No level of lead exposure is safe for children. I am extremely concerned that changes to the law are being considered without any open and transparent discussion about either the nature and scope of the lead poisoning crisis or best practices for how the city can address lead poisoning in children.”

No members of the public testified in support of the proposed amendment.

Amendments To The Amendment

In an hour-and-15-minute deliberation and debate that took place among the alders after hearing out the last of the public testimony, Brackeen and, at first, Furlow, tried to convince their colleagues not to vote in support of the proposed amendment.

“To pass this forward would be a failure of our duty and there’s no way I could support this,” Brackeen said.

“There’s a lot in this that I would like to see changed, or maybe amended,” Furlow said. ​“I don’t feel this is quite ready to go to the full board. I’m wondering if we might be able to keep it [in committee] just a little longer” and then vote on whether or not to send it to the full board in December.

Many of Furlow’s concerns, along with those of Marchand, Decker, and, to a certain extent, Morrison, who was a vocal proponent of the proposed ordinance throughout the night, were visibly eased by a variety of amendments that the committee applied before voting to send it to the full board with an approval recommendation.

The committee reinstated the provision that the Board of Alders must sign off on Lead Paint Advisory Committee appointments before the group is officially constituted. The alders also put back in language requiring the committee to have not just public health experts, but representatives from ​“legal services” organizations like legal aid. They added an amendment that allows the advisory committee to select its own chair, rather than have its chair appointed by the mayor. And they changed the advisory committee’s official designation from a committee to a board, so that alders make appointments if the mayor fails to do so.

“This is good stuff,” Morrison said about the final version of the ordinance amendment that she, Marchand, Furlow, and Decker voted to support. ​“It’s going to give the experts the latitude they need to come up with strong policies to protect our children and families as a whole.”

Brackeen, until the very last vote, persisted in his opposition to the proposed law change.

“I’m very disappointed,” he said. ​“While it might be just a very few words in Section D” of the law that have been proposed to be changed from ​‘shall’ to ​‘is authorized,’ ​“that we are taking a step back from a platform that the city has set a precedent for.”

Previous lead coverage:
• City Still Fighting As Lead Case Drags On
• City Lands $5.6M In Federal Lead Grants
• 5 New Lead Inspector Positions Approved
• Outrage Stalls Weakened Lead Law
• Lead Paint Legal Tab Tops $118K
• City Plan Passes On Lead Law
• City Loses Again On Lead
• Judge Denies City’s Motion To Dismiss Lead Suit
• City, Legal Aid Clash In Court On Lead
• New Lead Proposal ​“Eviscerates” Mandate
• Lead Cleanup Pricetag: $91M?
• Lead Panel’s Advice Rejected
• Lead Paint Chief Retires
• Lead Paint Fight Rejoined
• Harp Switches Gears On Lead
• Motion Accuses City Of Contempt
• City Loses Again On Lead
• Briefs Debate ​“Lead Poisoning”
• New Haven: Another Flint?
• Harp Administration Admits Relaxing Lead Standard To Save $$
• Class-Action Suit Slams City On Lead
• City, Legal Aid Clash On Lead Paint
• Legal Aid To City: Get Moving On Lead Paint Law
• 100+ Tenants Caught In Lead Limbo
• 2 Agencies, 2 Tacks On Lead Paint
• Chapel Apartments Get 3rd Lead Order
• Lead Sends Family Packing
• Health Officials Grilled On Lead Plans
• Judge Threatens To Find City In Contempt
• Same Mandy House Cited Twice For Lead Paint
• Lead $ Search Advances
• 3 Landlords Hit With New Lead Orders
• Another Judge Rips City On Lead
• Judge To City: Get Moving On Lead
• Health Department Seeks Another $4.1M For Lead Abatement
• City-OK’d Lead Fixes Fail Independent Inspection
• Judge: City Dragged Feet On Lead
• 2nd Kid Poisoned After City Ordered Repairs
• Judge: City Must Pay
• City Sued Over Handling Of Lead Poisonings
• City’s Lead Inspection Goes On Trial
• Eviction Withdrawn On Technicality
• 2nd Child Poisoned; Where’s The City?
• Carpenter With Poisoned Kid Tries A Fix
• High Lead Levels Stall Eviction
• 460 Kids Poisoned By Lead In 2 Years
• Bid-Rigging Claimed In Lead Cleanup
• Judge Orders Total Lead Paint Clean-Up
• Legal Aid Takes City To Task On Lead