Chairperson Gale convened a meeting of the Nebraska Real Estate Commission at 9:05 a.m. on April 16, 2003, 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 except Commissioner Strand, who was excused until his arrival. 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 an investigative matter.

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. Chairperson Gale reported that all Commissioners had been notified of the meeting simultaneously, in writing, and that a proposed Tentative Agenda accompanied the notification.

Chairperson Gale pointed out to those in attendance that a Public Copy of the materials being used during the meeting was available to the public on the counsel table in the meeting room, and that the procedures followed were in accordance with the Open Meetings Law. Chairperson Gale asked that guests sign the guest list.

Director Tyrrell noted that no Agenda Items had been added since the Tentative Agenda was mailed to the Commissioners.

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

The minutes of the Commission meeting held on March 5, 2003, were considered.

After review, a motion was made by Moline and seconded by Wiebusch to approve the minutes as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, and Wiebusch, with Strand not participating or voting, being temporarily absent and excused, and with Gale not participating or voting, not having been present for the meeting.

Director Tyrrell presented the Receipts and Expenditures Reports for February and March. Copies of said reports are attached to and made a part of these minutes.

The Cash Fund Balance as of February 28, 2003, was $822,104.09, which compared to a Cash Fund Balance of $706,326.61 on February 28, 2002.

Regarding the March Report, Director Tyrrell noted that Receipts Category 8111, Investment Interest, did not show the interest paid because of a flaw in the NIS software, but the funds were gaining interest. Expenditures Category 4212, Communication Expense, reflected a two-month billing; and Category 4242, Rent - Buildings, only showed the meeting room rental because of the 2-month payment in February.

There was a new line on the report, due to NIS. Accounts Payable will show checks being held to be paid at the end of the 30-day payment deadline. This is an accounting mechanism implemented because the NIS system will issue payments just prior to the due date, rather than the current practice of paying bills immediately as they are presented.

The Cash Fund Balance as of March 31, 2003, was $799,343.92, which compared to a Cash Fund Balance of $685,532.28 on March 31, 2002.

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

Following discussion, a motion was made by Wiebusch and seconded by Shepard to approve the registrations as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Wiebusch, and Gale voting aye, and with Strand not participating or voting, being temporarily absent and excused.

Deputy Director Hoffman presented for ratification the Non-Resident Licenses and Resident Licenses Issued to Persons Holding Licenses in Other Jurisdictions 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 Wiebusch to ratify issuance of the licenses as set forth in the report. Motion carried with Johnson, Moline, Poskochil, Shepard, Wiebusch, and Gale voting aye, and with Strand not participating or voting, being temporarily absent and excused.

Deputy Director Hoffman presented for ratification the March Examination 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 Wiebusch to ratify the March Examination Report for the purpose of issuing licenses. Motion carried with Johnson, Moline, Poskochil, Shepard, Wiebusch, and Gale voting aye, and with Strand not participating or voting, being temporarily absent and excused.

Commissioner Shepard asked if it would be possible for Commissioners to sit for the examination. He and Commissioner Wiebusch wanted to review the questions and see what the experience was like for applicants. Commissioner Shepard said the process had changed considerably since he was licensed. Director Tyrrell noted that the Commission reviewed the examination question bank when the contract was sent out for bid, and that a sample examination was available on paper or diskette. Deputy Director Hoffman indicated that arrangements could be made for the Commissioners to take an examination at a test site, and that they should contact her if they were interested. Deputy Director Hoffman also noted that the candidate handbook had an excellent overview of the examination, and was available on the website and from the office.

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.

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.

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

Deputy Director Hoffman presented for ratification the Continuing Education Activity Significant Change 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 reports. Motion carried with Johnson, Moline, Poskochil, Shepard, Wiebusch, and Gale voting aye, and with Strand not participating or voting, being temporarily absent and excused.

Deputy Director Hoffman presented the 2002 Annual Report Summary, 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 2003 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 Moline and seconded by Johnson to ratify the report. Motion carried with Johnson, Moline, Poskochil, Shepard, Wiebusch, and Gale voting aye, and with Strand not participating or voting, being temporarily absent and excused.

Deputy Director Hoffman reported that Diane Simpson had been hired to conduct the 2003 Instructor Development Workshop scheduled for April 30. Larabee School in Lincoln donated their facility at no cost, and 37 participants were registered. Deputy Director Hoffman conducted a survey for location preference during registration, and the overall preference was Lincoln. Traveling to Lincoln was not a deterrent for non-registrants. All registrants voted for a one-day seminar, and for the subject matters being presented. The Commissioners were invited to attend.

No action was necessary on this report.

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:

There were no stipulation and consent orders scheduled for this meeting.

There were no hearings scheduled for this meeting.

Mr. Rodgers stated that he had previously held real estate licenses in California and Nebraska. He had re-applied last year, but he let that application expire, and was renewing his application when this came up. Mr. Rodgers said his record is public. He has run several successful businesses and won numerous awards, including Entrepreneur of the Year and Husker Player of the Century. This conviction was quite a ways behind him. Mr. Rodgers has had challenges, and has done the best he could. He never took steps to have his criminal record expunged because it was so public, and it had never hindered him in his endeavors. Mr. Rodgers said he was quite community conscious, and had raised hundreds of thousands of dollars for charities. Mr. Rodgers had done a few things wrong along the way, and he was not making excuses, but he tried to do better as he grew.

Mr. Rodgers said he had been able to raise 5 kids, who ranged from college graduates and students to a 5-year-old. He tried to be a good role model and keep them on the straight and narrow. Mr. Rodgers knew that additional scrutiny came with his status, and that he was far from perfect, but consciously tried to do the best he could.

Chairperson Gale asked why Mr. Rodgers let his previous license lapse. Mr. Rodgers said he had used it, but was primarily doing motivational speaking trying to get others to finish their degrees, and decided it would set a better example to complete his own degrees in advertising and broadcasting. He had also opened another company, so he let his license expire. He had been interested in real estate for the past 20 years. Mr. Rodgers said there were three things he had seen people get rich with - wheels, real estate, and advertising. In addition to his other ventures, he was currently a representative for Suzuki, a corporate sponsor for the Heisman, so he was pursuing all three.

Chairperson Gale asked Mr. Rodgers if his sentence was fully completed, with no further convictions. Mr. Rodgers said that was correct.

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

Ms. Hernandez presented an exhibit which consisted of a letter from her and one from her potential employing broker. A copy of said exhibit is attached to and made a part of these minutes, denoted as Exhibit 12b1.

Ms. Hernandez thanked the Commission for allowing her to explain her situation. She said her rap sheet did not represent her actual character. She regretted getting into trouble, and said she was in with the wrong people at the time. She had purchased a car for parts from a friend, and did not realize it was stolen. Another friend let her store the car in his garage, and when the police searched his house on a drug warrant, they found the car. Since she previously owned the house, the search warrant was in her name. The friend was renting the house from her mother, who owned it at the time. She was charged with manufacturing marijuana and the felony, theft by receiving stolen property, since it had been her house and it was her car. She pled guilty to the felony to get other charges dropped. She had pulled up to the house to drop off her friend just as the cops were raiding it, and the friend stuffed drugs under her car seat and did not own up to it being his.

Chairperson Gale said there were two things of concern in her situation. First, unless extraordinary circumstances were present, the application would be denied unless the felony sentence was completed. Chairperson Gale said there may have been extenuating circumstances, but the Commission needed to accept the judicial proceedings. Ms. Hernandez had pled guilty and had not even been sentenced yet. Ms. Hernandez would have to wait until her sentence was completely served before obtaining her real estate license. The other thing was that her records showed sufficient misdemeanors to require a special appearance, even without the felony conviction. It seemed premature to go through a special appearance on her misdemeanors, since she had not yet been sentenced for the felony conviction.

Commissioner Wiebusch had the same concerns. Ms. Hernandez needed to get sentenced and complete the sentence, then come back for a special appearance after completion.

Commissioner Johnson asked for clarification that Ms. Hernandez planned to work for the potential employing broker who wrote the letter if she got her license. Ms. Hernandez said yes.

It was the consensus of the Commission that Ms. Hernandez had to complete the felony conviction sentence before the Commission would consider her application.

Commissioner Moline told Ms. Hernandez that it was important what happened between today and her reappearance. It would serve her well if the list had no more entries on it.

Chairperson Gale asked if Mr. Olson had any further run-ins with the law. Mr. Olson said he was drug-free, and did not associate with those people any more. He had learned that, if you want to excel, you have to separate yourself from people still going down. He had all new friends who were very professional and owned their own businesses.

Chairperson Gale asked what was motivating Mr. Olson to move from a successful business to real estate. He had seen successful people in real estate, and decided it was another field he wanted to be in.

Chairperson Gale asked if he had talked to brokers about employment. Mr. Olson said he had interviews with several brokers, and was probably set on a broker. It seemed like a good opportunity, and the broker provided ongoing education. Chairperson Gale asked if he planned to sell both commercial and residential real estate. Mr. Olson said both, because he wanted to set no limitations on himself.

Chairperson Gale noted that Mr. Olson was charged in 1989, and that more than 10 years had gone by since then. Mr. Olson said he was discharged from prison in 1997, and discharged from the halfway house in 1998. He had also been released early from parole. His parole officer was impressed with his sales, and was very proud of him. Mr. Olson had offered to help him make money, but the parole officer said that would be illegal.

Chairperson Gale asked if Mr. Olson got his GED in prison. Mr. Olson said yes.

Chairperson Gale asked if Mr. Olson had applied for any other licenses. Mr. Olson said he had a construction license through the State of Nebraska, which had never been suspended or revoked. His company will be listed with the Better Business Bureau in August. Commissioner Moline asked if his company any complaints filed with the Better Business Bureau. Mr. Olson said no, because he always strives for excellence. He does things the way he would want it done if it were his building.

Chairperson Gale asked if Mr. Olson had completed the treatment program in prison. Mr. Olson said yes. Chairperson Gale asked if Mr. Olson belonged to any support groups. Mr. Olson said no. Mr. Olson said everybody in those groups were cigarette smokers, and he was very allergic to cigarette smoke. They were cigarette smokers and coffee drinkers, and he was neither. He did have a girlfriend.

Commissioner Poskochil noted that Mr. Olson had been self-employed since 1997. Mr. Olson said he was in the cell phone business, then operated a courier service, and had done roofing for the last year. Commissioner Poskochil asked if he had employees. Mr. Olson said he was a sole proprietor with independent contractors.

Chairperson Gale noted that, under the guidelines, Mr. Olson was approvable. Chairperson Gale asked if he had a letter from his probation officer. Mr. Olson said yes, but not with him. He could fax it to the Commission. It was decided that was unnecessary.

After discussion, a motion was made by Shepard and seconded by Strand to allow Mr. Olson to sit for the salesperson examination after making proper application and to have a license issued upon passing, with the conditions that Mr. Olson notify his employing broker of his criminal history, that the employing broker verify that notification to the Commission in writing prior to placement of the license with the broker, and that, for his first year of licensure, Mr. Olson immediately notify Commission staff if he had any further contact with the law which could result in jail time.

Commissioner Shepard said he did not want to include a requirement to provide the letter from the probation officer. Mr. Olson had served his time, and had learned from his mistakes.

Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Commissioner Strand noted that buying a house was the biggest transaction of their lives for the people involved, and it was not a cell phone. Commissioner Strand cautioned Mr. Olson that he needed a good paper trail of ethical actions, and that he should not come back to the Commission for discipline. He would be responsible for people, not just chasing money. Mr. Olson said he wanted people to be happy and excited about their transactions, and he would work to make them happy.

Mr. McClure presented an exhibit which consisted of three letters of recommendation. A copy of said exhibit is attached to and made a part of these minutes, denoted as Exhibit 12d1.

Mr. McClure said he had done volunteer work recently, and helped people. Approximately 10 years ago, he was involved with people who broke into vehicles and stole from them. Mr. McClure served his probation and community service, paid off the restitution, and proceeded on with life. When he was going through a divorce, he also had a back injury and was down with life, so he used a little meth. Mr. McClure was pulled over for speeding, and the law officer searched his vehicle and found what was left. As part of a treatment program, he found a church, and had excelled there. He was currently a member of the clergy at his church. Mr. McClure took care of rental property on the side, doing minor maintenance, and also installed floor covering. Mr. McClure used to do irrigation maintenance, but his health was not good enough to do outdoor service work in the summer. Mr. McClure had worked for an irrigation company in Cairo, at a furniture store as a carpet installer and furniture delivery person, and as a rental property maintenance person. That led to talking to people who worked in real estate, and he found a desire to be a real estate agent.

Chairperson Gale asked if Mr. McClure currently belonged to a support group for drug users. Mr. McClure said he did not specifically attend a drug support group, but his church provided support, and strength came from Scriptures and following the rules. Mr. McClure had gotten married again, after his divorce. Chairperson Gale asked if they had children. Mr. McClure said his wife had children from a previous marriage.

Chairperson Gale asked if Mr. McClure was currently serving on his town board. Mr. McClure said yes. Commissioner Strand asked if it was an elected position. Mr. McClure said yes, he had won as a write-in candidate.

Chairperson Gale asked if Mr. McClure had talked to brokers about employment. Mr. McClure noted that he had, and that his potential employing broker had agreed to stand behind him and counsel him, and had come to the Commission meeting to support him.

Commissioner Strand noted that Mr. McClure got probation only for the methamphetamine charge, and asked if it was a felony or a misdemeanor. Mr. McClure said it was a felony, but was pled to a misdemeanor.

Commissioner Poskochil said he felt Mr. McClure had been open, honest, and sincere about his past, and he appreciated that.

After discussion, a motion was made by Strand and seconded by Poskochil to allow Mr. McClure to sit for the salesperson examination after making proper application and to have a license issued upon passing, with the conditions that Mr. McClure notify his employing broker of his criminal history, that the employing broker verify that notification to the Commission in writing prior to placement of the license with the broker, and that, for his first year of licensure, Mr. McClure immediately notify Commission staff if he had any further contact with the law which could result in jail time.

Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

At 12:28 p.m., a motion was made by Moline and seconded by Wiebusch to go into closed session for discussion of personnel matters. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

At 12:28 p.m., Chairperson Gale declared a brief recess, and reconvened the closed session at 12:35 p.m.

At 1:20 p.m., a motion was made by Moline and seconded by Wiebusch to go back into public session. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Director Tyrrell presented a copy of the proposed software license agreement for the IFMC License Tracking System. A copy of said agreement is attached to and made a part of these minutes.

Director Tyrrell noted that the contract had been approved by state government officials as needed, and asked the Commission for permission to enter into the agreement.

After discussion, a motion was made by Moline and seconded by Wiebusch to have Director Tyrrell enter into the agreement on behalf of the Commission. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Director Tyrrell reported that LB 60, which would require criminal history record checks, and LB 61, which would revise the Retirement Communities and Subdivisions statutes, were passed by the Legislature and signed by the Governor. They will probably go in effect on or near September 1. Staff was working with the Nebraska State Patrol to acquire fingerprint cards, which will be included in application packets starting in June, with instructions that any applications received on or after the effective date will have to include the criminal history record check. No rule changes were required to implement the new law.

Director Tyrrell also reviewed other bills of interest to the Commission.

Chairperson Gale noted that he and his staff had worked closely with the home inspection industry to impose reasonable standards for regulation and licensing via LB 767. Members of the industry had helped develop the legislation, then testified against it, which effectively killed it. Chairperson Gale said he thought the bill would be reintroduced next year.

No action was necessary on this report.

Director Tyrrell noted that he was asked to comment on the proposed policy. He did not see it as a major thing for the Commission to address, because it was already covered under the advertising rules. Director Tyrrell thought it would be helpful to licensees and regulators, especially regarding agency disclosure, and would solve a lot of problems regarding substantial contact via the Internet. His concerns were noted in his email to Mr. Jones. Director Tyrrell also noted that Commissioner Wiebusch sat on the Board of Directors for the first time during this meeting. Commissioner Wiebusch indicated she had made her first motion, which was to grant former Commissioner Joan Nigro Emeritus status, and the motion passed.

Commissioner Wiebusch said she still had some concerns regarding how to tell whether a website was operated by a licensed entity. She thought the ARELLO database would be very important because people could check for licensure. Commissioner Poskochil noted that people had to be licensed to get access to the Multiple Listing Service (MLS). Director Tyrrell noted that if staff found websites that were advertising properties illegally, it was handled the same way as ads in the newspaper, i.e. with a cease and desist letter. There was no difference because it was all unlicensed advertising. With ads, the person was usually licensed elsewhere, and usually resolved the situation by obtaining a nonresident Nebraska license.

Commissioner Johnson was concerned about people whose business would be running the website for referrals, not selling property. Commissioner Poskochil said that referrals were probably the biggest issue, because the public would not know a referral was being generated, and transferees using relocation companies could lose benefits. Director Tyrrell noted that referral programs were virtually not allowed to participate in the VOW program, even if it was operated by a member of a board.

Commissioner Shepard asked if ARELLO was involved in this because of the agency situation, because registering was the same as sitting down with the client in an office. Director Tyrrell said it could be, and would be handled in the same manner. An Internet contact could be substantial, or it could be like a contact at an open house.

Chairperson Gale asked if the Commission should schedule a discussion of this subject at some future point, and noted that he had no knowledge of this subject. Commissioner Strand said it would be good to have some information on it, without placing an undue burden on staff, just something reasonably easy to understand for the layman. Director Tyrrell noted that the policy was just a proposal now, and that staff could wait and see if any action was taken, which would then need to be brought to the Commission. Chairperson Gale said it would be good to let the situation evolve, and see what consumer reaction and complaints were. It was the consensus of the Commission to put it on the back burner, and be aware of the issue.

No action was necessary on this report.

Director Tyrrell presented an exhibit which included information on the upcoming ARELLO Southern/Central Joint District Meeting. Director Tyrrell asked that Commissioners get their registration information to Monica by the end of next week if they planned to attend.

No action was necessary on this report.

The survey appeared in the Spring Commission Comment, which was mailed during March 2003. The response rate was better than usual, with 29, and almost all comments received were positive. Comments requiring follow-up were addressed with the respondents at the time of receipt.

No action was necessary on this report.

Future Meeting Dates

May 28-29, 2003 - Staybridge Suites, Lincoln

July 16-17, 2003 - Staybridge Suites, Lincoln

August 20, 2003 - Staybridge Suites, Lincoln

September 24-25, 2003 - Staybridge Suites, Lincoln

Commissioner Strand was absent and excused until his arrival at 9:45 a.m.

At 10:29 a.m. on April 16, Chairperson Gale declared a brief recess, and reconvened the meeting at 10:43 a.m.

Chairperson Gale was briefly excused from the meeting at 11:38 a.m., and passed the gavel to Acting Chairperson Wiebusch. Chairperson Gale rejoined the meeting at 11:41 a.m.

At 12:28 p.m., a motion was made by Moline and seconded by Wiebusch to go into closed session.

At 12:28 p.m., Chairperson Gale declared a brief recess, and reconvened the closed session at 12:35 p.m.

At 1:20 p.m., a motion was made by Moline and seconded by Wiebusch to go back into public session.

At 1:22 p.m. on April 16, 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, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

I, Les Tyrrell, Director of the Nebraska Real Estate Commission, do hereby certify that the foregoing minutes of the April 16, 2003, meeting of the Nebraska Real Estate Commission were available for inspection on April 22, 2003, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska.

Respectfully submitted,
Les Tyrrell
Director