Acting Chairperson Nigro convened a Meeting of the Nebraska Real Estate Commission at 9:00 a.m. on April 3, 2002, in the Staybridge Room of the Staybridge Suites, located at 2701 Fletcher Avenue in Lincoln, Nebraska. All of the members of the Real Estate Commission were present with the exception of Chairperson Gale, who was absent and excused. Also present were Director Les Tyrrell, Deputy Director for Education Teresa Hoffman, Deputy Director for Enforcement Terry Mayrose, and Administrative Assistant Heidi Burklund. Abbie Widger, Special Assistant Attorney General and Counsel to the Commission, was present for the Hearing, the Stipulation and Consent Orders, and the regulation and policy items. Peggy Isaacs, the recently-hired Applications and Licensing Secretary, was present for the Informal Special Appearances, and was introduced to the Commissioners.

Director Tyrrell presented a Public Notice and Proofs of Publication thereof relating to this Meeting, all of which are attached to and made a part of these Minutes. Acting Chairperson Nigro reported that all Commissioners had been notified of the Meeting simultaneously, in writing, and that a proposed Tentative Agenda accompanied the notification.

Director Tyrrell noted that Item 17c had been added since the Tentative Agenda was mailed to the Commissioners.

After review of the Final Agenda, a motion was made by Moline and seconded by Wiebusch to adopt the Final Agenda as presented. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

The Minutes of the Commission Meeting held on February 26, 2002, were considered.

After review, a motion was made by Moline and seconded by Strand to approve the Minutes as presented. Motion carried with Johnson, Moline, Shepard, Strand, and Wiebusch voting aye, with Nigro not voting, not having been present at the Meeting, and with Gale not participating or voting, being absent and excused.

Director Tyrrell presented the Receipts and Expenditures Reports for February and March. A copy of said Reports are attached to and made a part of these Minutes.

Director Tyrrell noted there was nothing unusual to report.

After discussion, a motion was made by Moline and seconded by Strand to file the February and March Receipts and Expenditures Reports for audit. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Director Tyrrell presented a Retirement Community Registration for Villa @ Flowing Springs. A copy of said Report is attached to and made a part of these Minutes.

Following discussion, a motion was made by Wiebusch and seconded by Shepard to approve the Villa @ Flowing Springs registration as presented. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Deputy Director Hoffman presented for ratification the Non-Resident Licenses and Resident Licenses Issued to Persons Holding Licenses in Other States Report, a copy of which is attached to and made a part of these Minutes.

After review, a motion was made by Moline and seconded by Strand to ratify issuance of the licenses as set forth in the Report. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Deputy Director Hoffman presented for ratification the Examination Report for February, a copy of which is attached to and made a part of these Minutes.

After review, a motion was made by Moline and seconded by Wiebusch to ratify the February Report for the purpose of issuing licenses. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Deputy Director Hoffman presented for ratification the Pre-License Education Instructor Approval Report, a copy of which is attached to and made a part of these Minutes.

After discussion, a motion was made by Moline and seconded by Strand to ratify the Report. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Deputy Director Hoffman presented for ratification the Continuing Education Activity Approval Report, a copy of which is attached to and made a part of these Minutes.

After discussion, a motion was made by Moline and seconded by Wiebusch to ratify the Report. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Deputy Director Hoffman presented the Continuing Education Activity Rejection Report, a copy of which is attached to and made a part of these Minutes.

No action was necessary on this Report.

Deputy Director Hoffman presented for ratification the 2001 Annual Report Summary, a copy of which is attached to and made a part of these Minutes.

After discussion, a motion was made by Moline and seconded by Strand to ratify the Report. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Deputy Director Hoffman presented for ratification the 2002 Continuing Education Renewal Report, a copy of which is attached to and made a part of these Minutes.

After discussion, a motion was made by Wiebusch and seconded by Johnson to ratify the Report. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Director Tyrrell presented a Summary Report of the pending complaints, which included a list of licensees presently under disciplinary action or on appeal. A copy of said Report is attached to and made a part of these Minutes.

No action was necessary on this Report.

The following Sworn Complaints and Investigative Matters were presented to the Commission:

Deputy Director Mayrose presented a Stipulation and Consent Order in the matter of Complaint #2002-003, Commission vs. Gary Lee Huber. A copy of said Order is attached to and made a part of these Minutes. Mr. Huber was not present.

Deputy Director Mayrose reviewed the circumstances involved and noted the provisions of the Order, which had been signed by Mr. Huber. The Order specified a thirty-day suspension to be served on probation, plus three hours of additional continuing education on agency to be completed within six months.

After discussion, a motion was made by Moline and seconded by Shepard to enter into the Order as presented. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

A motion was made by Moline and seconded by Johnson to dismiss Complaint #2001-049, which was held in abeyance pending disposition of Complaint #2002-003. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Prior to discussion of this matter, Commissioner Johnson recused himself, thereby nullifying any potential conflict of interest.

Counsel Widger presented a Stipulation and Consent Order in the matter of Complaint #2001-038, William J. & Cindy C. Sarraillon vs. Vincent Muniz, Jr. A copy of said Order is attached to and made a part of these Minutes. Mr. Muniz was not present.

Counsel Widger reviewed the circumstances involved and noted the provisions of the Order, which had been signed by Mr. Muniz. The Order specified a thirty-day suspension to be served on probation, plus six hours of additional continuing education, consisting of 3 hours in agency and 3 in license law, to be completed within six months.

After discussion, a motion was made by Wiebusch and seconded by Moline to enter into the Order as presented. Motion carried with Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, with Johnson not participating or voting, having recused himself, thereby nullifying any potential conflict of interest, and with Gale not participating or voting, being absent and excused.

A Hearing was held on April 3, at 9:30 a.m., in the matter of Complaint #2001-042. Abbie Widger, Special Assistant Attorney General and Counsel to the Commission, appeared for the Complainant. Respondents John E. Wiedel & Dwight A. Thimgan were present. Mr. Wiedel was represented by Counsels Ward F. Hoppe and Scott Vogt of Lincoln. Greg Lemon, Deputy Secretary of State, assisted Acting Chairperson Nigro in procedural matters for the Hearing.

Counsel Widger said that she would like the Commission to dismiss Mr. Thimgan from the Complaint, and said that no evidence would be presented against him due to findings during the investigation. Mr. Hoppe had no objection. Counsel Widger said the Commission could reserve making that decision until the end of the hearing, after all evidence had been presented, if desired. A motion was made by Johnson and seconded by Wiebusch to wait until the end of the Hearing to decide whether to dismiss Mr. Thimgan from the Complaint. Mr. Lemon said no motion was needed for that, and the motion and second were withdrawn.

After Opening Statements, Counsel Widger introduced several Exhibits and called David Hillman, Janna Pohlmann, and Jacqueline Hillman as witnesses.

Counsel Hoppe introduced several Exhibits and called John Wiedel, Dwight Thimgan, Naedo Henry, Elizabeth Lube, and Marcia Weddle as witnesses.

At 10:43 a.m. on April 3, Acting Chairperson Nigro declared a brief recess, and reconvened the Hearing at 10:54 a.m.

At 11:50 a.m. on April 3, Acting Chairperson Nigro declared a recess for lunch, and reconvened the Hearing at 12:30 p.m.

At 1:40 p.m. on April 3, Acting Chairperson Nigro declared a brief recess, and reconvened the Hearing at 1:50 p.m.

At 2:22 p.m. on April 3, Acting Chairperson Nigro declared a recess to continue with other agenda items, and reconvened the Hearing at 4:19 p.m.

After closing arguments had been presented, Acting Chairperson Nigro declared the Hearing concluded.

A motion was made by Moline and seconded by Shepard to dismiss the Complaint against Mr. Wiedel.

Commissioner Shepard said he totally agreed on exactly the same points. Commissioner Shepard said he could not see where there was a tremendous amount of pressure to sign the agreement, and the Hillmans had opportunity to say no or talk about it further.

Acting Chairperson Nigro said she would vote against the motion. She said the Hillmans came expecting to see houses, and were told that if they did not sign the agreement, they could not look at houses. They thought they could get out of the agreement if it was appropriate. Acting Chairperson Nigro thought they were coerced into signing the agreement.

A roll call vote was taken on the pending motion. Motion carried with Johnson, Moline, Shepard, Strand, and Wiebusch voting aye, with Nigro voting nay, and with Gale not participating or voting, being absent and excused.

A motion was made by Moline and seconded by Shepard that Mr. Thimgan be dismissed from the Complaint. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

With the consent of the Respondent, Acting Chairperson Nigro directed Counsel Widger to prepare the Order.

Acting Chairperson Nigro announced that all Exhibits related to this Hearing would be retained in the Commission Office.

The Hearing was adjourned at 6:16 p.m.

Ms. Shepard said she was convicted of a felony in 1985, and was told she had to appear regarding that felony, which was for manufacturing/distribution of a controlled substance. She served two days in prison, was let off probation early for doing well, and her civil rights had been restored as part of the order releasing her from probation. Ms. Shepard planned to stay with her current employer after licensing.

After discussion, a motion was made by Moline and seconded by Johnson to allow Ms. Shepard to sit for the salesperson examination after making proper application, and to have a license issued upon passing. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Mr. Krenisky said he had only bought and sold his own property, and had not used his license to conduct transactions for others. He only used the education in his own dealings. He had never subjected himself to liability, and only got the insurance to be on active status. Mr. Krenisky said the statement in the instructions was not very explanatory.

Director Tyrrell noted that Mr. Krenisky had not lost his license, or his entitlement to it. The only issue was that Mr. Krenisky had to take the examination in order to activate his license. No prelicense education was required. The only issue was that Mr. Krenisky did not want to take the examination, which was required by law because he was inactive over 3 years.

Commissioner Moline asked if this had happened in the past. Deputy Director Hoffman said that staff put notices in the instructions, Commission Comment, etc., to prevent problems. Staff also notified people every year of their inactive status and their activation deadline, but people often missed their three-year deadline. Director Tyrrell noted that the Commission had no way to waive the statute. Commissioner Moline asked for clarification that it was in statute. Director Tyrrell said yes.

Commissioner Wiebusch asked Mr. Krenisky what he did upon returning home and finding the letter. Mr. Krenisky said he assumed it was a misprint, and contacted Deputy Director Hoffman on January 2. His check had been cashed, so he thought he was OK. Mr. Krenisky asked why transfer instructions were not included, and why the process was secretive. Director Tyrrell noted that these were renewal instructions, and lots of unrelated instructions were not included, such as those for setting up a branch office or a corporation, and those for original applicants. These instructions were just specifically for license renewal. Mr. Krenisky could have gone active at any time prior to 1-1-02. Mr. Krenisky said he disagreed, because this was a renewal process, and he was renewing on active status. Director Tyrrell said no, that transferring a license to active status was a separate process.

Commissioner Shepard noted that Mr. Krenisky went through this exact situation in 1996, and must have known the process from that experience. Mr. Krenisky said that was at the start of his licensure, and was the first time. He thought the Commission had the information on file, and did not need it supplied again. Commissioner Shepard noted he had gone from inactive to active at that time, and had to go through the process, then went inactive again. Mr. Krenisky reiterated that he thought the Commission had it on file, and he did not think he had to go through those hoops again.

Commissioner Wiebusch noted the annual letters sent at renewal, which stated that he had to activate by 1-1-02 in order to avoid taking the examination, and questioned why Mr. Krenisky would assume it was a mistake and not call until 1-2-02. Mr. Krenisky said the Commission had 42 days of sitting on this, and was holding him to the fire for being one day late. He said he did not want to debate it, but it was an issue of fairness. Because he had not been notified between November 10 and December 21, he did not have time to respond, especially by mail. Commissioner Johnson said he could have responded by phone on the last day, instead of waiting until the deadline was past.

Motion carried with Johnson, Moline, Shepard, Strand, and Wiebusch voting aye, with Nigro abstaining, and with Gale not participating or voting, being absent and excused.

Commissioner Moline asked if her civil rights had been restored. Ms. Ferrell said she thought that all her rights were restored upon her release from prison. Director Tyrrell said it was probably everything except firearms. Ms. Ferrell said that was correct.

Commissioner Johnson asked if Ms. Ferrell had talked to brokers regarding employment. Ms. Ferrell said not yet, but she intended to do so. The assistance program with which she was working, which would pay for real estate school, had suggested that she find out first if she could get a license, and then talk to agencies to find out whether she could work in a real estate office to get a feel for it.

Acting Chairperson Nigro asked if Ms. Ferrell had family in the area. Ms. Ferrell said she had a sister in Chicago, and nieces in Las Vegas and California who wanted her to move there. She would not go, because she liked it here.

Commissioner Johnson asked if Ms. Ferrell had considered applying to real estate companies for a staff position, to get a feel for the industry before taking the examination. Ms. Ferrell said that had been suggested to her. She had thought about doing real estate for a lot of years, and thought that now would be the time to do it. She wanted to know if she could apply for a license before working at an agency. She had liked real estate before she went to prison, and got along fairly well with people, and she thought she would be good at it. She had never wanted to be a police officer, judge, or doctor, because that was not in her, but this would be something she could do.

Acting Chairperson Nigro asked for clarification that Ms. Ferrell was getting a GED. Ms. Ferrell said that was correct. Acting Chairperson Nigro asked if she had the chance to get her GED while in prison. Ms. Ferrell said she had to work while in prison, because only meals were provided, and inmates had to work to buy any extras themselves. She took a couple of college classes while in prison, like street law, but worked at minimum wage for the majority of the time.

Commissioner Wiebusch said she kept going back to the guidelines. She did not think the Commission had heard extraordinary circumstances, and she would have trouble allowing Ms. Ferrell to sit for the examination. Ms. Ferrell reiterated that it was very, very difficult to get employment because most applications asked about felony convictions, and she was never given an interview where she could explain. It was difficult to get employment with a felony hanging over her head.

Commissioner Strand said he had the same question, and wondered what would be considered extraordinary circumstances. He did not know what the Commission thought would be extraordinary when the guidelines were adopted, because he was not on the Commission at the time. Commissioner Strand said he thought there were things Ms. Ferrell would do well, and thought it would be good if someone would bear witness to her abilities. Commissioner Strand said he tried to see what would make it OK for Ms. Ferrell to take the examination in a year. Ms. Ferrell said her counselor thought it would be better to find out first if a license was possible.

Acting Chairperson Nigro said she would be more comfortable if Ms. Ferrell already had her GED, and had employment in the real estate field. Commissioner Strand said the Commission tried to treat people fairly, and he just had trouble defining extraordinary circumstances. Ms. Ferrell said she did not consider herself handicapped, it was just difficult to get employment.

Acting Chairperson Nigro asked how long it would take to get a GED. Ms. Ferrell said it would be approximately 6 months. Commissioner Strand asked how long real estate school would take. Ms. Ferrell said she understood it would take longer at a college than at a real estate school, but either way it would not take a long time.

Commissioner Johnson said that Ms. Ferrell may make a fine agent, but she should come back after she got her GED and got an idea of the real estate business. Commissioner Johnson said that the Commissioners knew a lot of people came into the real estate business and only a few succeeded. Maybe Ms. Ferrell could, but she needed to be able to fit into the extraordinary circumstances exception. Ms. Ferrell said she needed to find a job now.

A motion was made by Strand and seconded by Moline to not allow Ms. Ferrell to sit for the examination.

A vote was taken on the pending motion. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Director Tyrrell presented an Exhibit which included the results of an ARELLO survey, proposed language for the regulatory change, and comments received from licensees regarding requiring criminal background checks on applicants. A copy of said Exhibit is attached to and made a part of these Minutes.

Director Tyrrell noted that applicants could request checks from the State Patrol and pay the fee, then have the results sent directly to the Commission.

Commissioner Moline clarified that the current proposed rule was OK if the Commission did not require an FBI check. If the Commission wanted a one-stop check, it would need to have a state statute requiring it. Lieutenant Dishong said that was correct. Commissioner Moline noted that applicants would have to contact Kansas and Nebraska separately if they had lived in both states during the previous five years. Director Tyrrell said yes, that if they had lived in Kansas, they could come to the Nebraska State Patrol and get the Nebraska check, then contact Kansas for the Kansas check.

Commissioner Moline asked if applicants could order the checks by mail, or if it had to be done in person. Lieutenant Dishong said that, if the Commission wanted to set up a draw-down account, applicants could do it by fax. If applicants were responsible for payment, they needed to pay at the time the check was ordered. Commissioner Moline asked if applicants would need to drive to the nearest Nebraska State Patrol office. Lieutenant Dishong said they could either do it through the mail or drive to Lincoln, because that was the only location where checks were done.

Commissioner Moline asked how long it took via mail. Lieutenant Dishong said it was usually a 72-hour turnaround. Due to a peculiarity in the law, the Nebraska State Patrol could not release charge information without disposition if the charge was over a year old. The Nebraska State Patrol might have to find out the resolution on old charges, which could take a couple of weeks. Lieutenant Dishong estimated that on 90% of checks there were no criminal records at all, that most others would be completed within 72 hours, and a few would take a couple of weeks. Commissioner Moline asked if it would be on the report if an applicant was arrested today. Lieutenant Dishong said that, if the charge was less than a year old, it would be included on the report. Commissioner Wiebusch asked if there would be any information provided about other arrests. Lieutenant Dishong reiterated that, if the Nebraska State Patrol could not substantiate the disposition of old arrest information, they had to delete it before distributing the information for civil use, so old unresolved arrest information would get redacted from the report.

Commissioner Moline asked for clarification that the best bet for obtaining correct information was to use a fingerprint check. Lieutenant Dishong said that was correct. Commissioner Moline asked if applicants could to fingerprinting by themselves, or if it had to be done by a professional. Lieutenant Dishong said it would have to be done by a professional. Director Tyrrell said it could be done by local law enforcement. Lieutenant Dishong said it was done for free at State Patrol offices, and for a charge at some local police or sheriff offices. Lieutenant Dishong said it might be a problem if the applicant was not asked for identification when fingerprinted. Commissioner Moline thought that local law enforcement personnel would ask for ID. Lieutenant Dishong said he would hope so.

Commissioner Moline noted that applicants would have to get more than one set of fingerprints done, if checks were needed from more than one state. Lieutenant Dishong said that was correct.

Commissioner Wiebusch asked if the Commission would need to provide a contact list for other states. Director Tyrrell said staff would probably refer them to their local state police or state patrol. Lieutenant Dishong said they could contact the Nebraska State Patrol, and they would tell them the other addresses. Lieutenant Dishong noted that almost all state law enforcement agencies have web sites.

Commissioner Nigro asked if the cost was the same in other states. Lieutenant Dishong said he did not know the cost per state.

Commissioner Moline asked about the current proposed rule. Director Tyrrell said the Commission could hold the rule hearing, and begin requiring state checks once the rule was adopted and had completed the rule approval process. The Commission could then decide whether to start requiring FBI checks and draft legislation to that effect, and expand to that when the legislation passed. If the Commission decided in advance that it wanted to eventually require FBI checks, the rule change could include language that it was effective until FBI checks are required by statute.

Commissioner Wiebusch asked if the FBI checks cost $33. Lieutenant Dishong said yes. Commissioner Moline clarified that, if the proposed rule passed, applicants would have to get each state to send reports. If the legislation passed, applicants would only submit one report from the Nebraska State Patrol for a national background check.

Director Tyrrell presented an Exhibit which included online enrollment information from Williams Underwriting Group, Inc. (WUG). A copy of said Exhibit is attached to and made a part of these Minutes.

A motion was made by Moline and seconded by Shepard to put a link on the Commission website to the Williams Underwriting Group, Inc. website, to facilitate licensee enrollment in the state Errors and Omissions insurance program. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

A motion was made by Wiebusch and seconded by Moline to make the changes indicated, and to make the additional changes as discussed if LB 863 passed. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

No action was necessary on this Report.

No action was necessary on this Report.

No action was necessary on this Report.

The survey appeared in the Spring Commission Comment, which was mailed during March 2002. The response rate was low, but all comments received were positive.

No action was necessary on this Report.

May 21-22, 2002 - Staybridge Suites, Lincoln
June 12-13, 2002 - Staybridge Suites, Lincoln
August 21-22, 2002 - Staybridge Suites, Lincoln
September 25-26, 2002 - Staybridge Suites, Lincoln

At 9:25 a.m. on April 3, Acting Chairperson Nigro declared a brief recess, and reconvened the Meeting at 9:35 a.m. for the Hearing.

At 10:43 a.m. on April 3, Acting Chairperson Nigro declared a brief recess, and reconvened the Hearing at 10:54 a.m.

At 11:50 a.m. on April 3, Acting Chairperson Nigro declared a recess for lunch, and reconvened the Hearing at 12:30 p.m.

At 1:40 p.m. on April 3, Acting Chairperson Nigro declared a brief recess, and reconvened the Hearing at 1:50 p.m.

At 2:22 p.m. on April 3, Acting Chairperson Nigro recessed the Hearing until 4:15 p.m., declared a brief recess, and reconvened the Meeting at 2:25 p.m.

At 2:54 p.m. on April 3, Acting Chairperson Nigro declared a brief recess, and reconvened the Meeting at 3:00 p.m.

At 4:16 p.m., Acting Chairperson Nigro reconvened the Hearing.

At 6:16 p.m., Acting Chairperson Nigro declared the Hearing concluded and declared a brief recess, and reconvened the Meeting at 6:24 p.m.

At 6:38 p.m. on April 3, there being no further business to come before the Commission, a motion was made by Moline and seconded by Wiebusch that the Meeting adjourn. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

I, Les Tyrrell, Director of the Nebraska Real Estate Commission, do hereby certify that the foregoing Minutes of the April 3, 2002, Meeting of the Nebraska Real Estate Commission were available for inspection on April 17, 2002, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska.

Respectfully submitted,
Les Tyrrell
Director