Military Families and Privatized Housing: Mold, Water and Other Hazards Not in the Service Member's Contract

MILITARY FAMILIES AND PRIVATIZED HOUSING:
MOLD, WATER AND OTHER HAZARDS NOT IN THE SERVICE MEMBER’S CONTRACT 
Linda Strite Murnane, Colonel, USAF, Ret.

In 1996, the U. S. Congress initiated the Military Housing Privatization Initiative (MHPI). [i]  This initiative was reported to be established “as a tool to help the military improve the quality of life for its service members by improving the condition of their housing.” [ii] The program was intended to attract private sector expertise, financing and innovations to ensure quality family housing for those military members and their families who chose to reside in housing provided through the military family housing program. The concept was implemented after President Clinton signed the National Defense Authorization Act for Fiscal Year 1996. [iii]

In 1999, while I was still serving on active duty, I saw a different side to what this initiative might lead to, and authored a juried paper titled “The Prickly Problem of Privatization, Legal Assistance Fraught with Peril.”  The paper, which was submitted to the American Bar Association’s Keithe E. Nelson writing competition was anonymously evaluated and took first place in the competition. The prize was supposed to include publication of the paper by the American Bar Association, which never occurred, but the cash prize was awarded, and after a review by the U.S. Air Force’s Ethics Office I was able to accept the award.

Unfortunately, the issues I highlighted in that paper have come to pass, as now the U.S. government finds itself and its contractors embroiled in litigation to address a wide variety of U.S. military family housing issues including raw sewage, toxic mold and pest infestations. [iv] Among the key issues raised in that 1999 paper were questions related to the rights of military servicemembers and their family members to receive legal advice through the military’s legal assistance program, while military attorneys might be advising on contracts issues related to those seeking to invest in privatized housing.

Does a military member who agrees to surrender all of their military basic allowance for housing to live in a privatized housing facility operated through the government’s MHPI program now have to incur the costs of hiring a private attorney for consultation? The suggestion that military members can get pro bono assistance through available channels in the community doesn’t respond to the volume of challenges faced with the inadequacies that have been at the center of the military family housing lawsuits that have now been filed.

Do servicemembers have to give up their right to live in reasonable accommodations because of their service obligation, and also have to incur the costs to litigate to make the facility livable, and what, if any, cause of action might lie against the government itself and can a servicemember or a member of his/her family successfully bring such a suit without fear of career repercussions?

The problems faced by military families are not limited to the MHPI privatized housing.  As of April, 2018, the military had identified at least 126 bases with contaminated water that could lead to cancer as well as birth defects. [v]  On September 30, 2019, the Department of Defense released a map of all of the base facilities in the U.S. conducting assessments for water contamination [vi] due to Per- and Polyfluoroalkyl Substances (PFAS), a chemical connected with the use of foam in fire-fighting foam, and in March 2020, the Department of Defense issued its report on issues related to this challenge to the health and well-being of those who live and work on military bases in the U.S. [vii]

The National Association of Women Judges has always taken the lead in informing and educating its members about health hazards and particularly those that may impact women and children.  While not much has been discussed within our member organizations of the daily hazards which women in the service, family members and veterans face in their own homes and in the U.S. this article will hopefully serve to inform and educate as well as to motivate NAWJ members to encourage their legislators to address these vital issues of health and safety at military installations in the U.S.

i See the Office of the Assistant Secretary of Defense for Sustainment at this link: https://www.acq.osd.mil/eie/FIM/Housing/Housing_index.html (Link checked on June 22, 2020).

ii Ibid.

iii See 110 Statutes at Large 219 found at this link: https://www.govinfo.gov/content/pkg/PLAW-104publ106/pdf/PLAW-104publ106.pdf

iv For examples of news reports regarding this now pervasive issue see The Military Times, October 29, 2019 at this link: https://www.militarytimes.com/pay-benefits/2019/10/29/cockroaches-mold-raw-sewage-8-military-families-sue-privatized-housing-company/; The New York Times, December 13, 2019 at this link:

https://www.nytimes.com/2019/12/13/us/military-base-housing-mold.html; The Washington Post, November 13, 2019 at this link: https://www.washingtonpost.com/business/2019/11/12/military-families-decry-outrageous-mold-infested-housing-fort-meade/

v See “DoD: At Least 126 bases report water contaminants linked to cancer, birth defects”, Military Times, April 26, 2018 at this link: https://www.militarytimes.com/news/your-military/2018/04/26/dod-126-bases-report-water-contaminants-harmful-to-infant-development-tied-to-cancers/

vi See the list at this link: https://media.defense.gov/2020/Mar/17/2002265608/-1/-1/1/MAP_OF_INSTALLATIONS_CONDUCTING_ASSESSMENTS_FOR_PFAS_USE_OR_POTENTIAL_RELEASE.PDF

vii The report can be found at this link: https://media.defense.gov/2020/Mar/13/2002264440/-1/-1/1/PFAS_Task_Force_Progress_Report_March_2020.pdf