NEBRASKA REAL ESTATE COMMISSION

July 16, 2003

Staybridge Suites                         Staybridge Room                         Lincoln, NE


Opening

Chairperson Gale convened a meeting of the Nebraska Real Estate Commission at 9:08 a.m. on July 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. Also present were Director Les Tyrrell, Deputy Director for Education and Licensing 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.

Notice of Meeting (Adopt Agenda)

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 agenda item 10b had been added since the tentative agenda was mailed to the Commissioners.

After review of the final agenda, a motion was made by Wiebusch and seconded by Johnson to adopt the final agenda as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Minutes of May 28, 2003

The minutes of the Commission meeting held on May 28, 2003, were considered.

After review, a motion was made by Strand and seconded by Wiebusch to approve the minutes as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Receipts and Expenditures Reports for May and June

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

Regarding the May report, Director Tyrrell noted that there was nothing unusual to report in Receipts. In Expenditures Category 4253, Data Processing Software License, $5000 was for the annual software license from Iowa Foundation for Medical Care, and $650 will be moved to another category due to miscoding; Category 4272, Repair and Maintenance of Motor Vehicles, was for the deductible on an examiner=s state car, which was damaged in a parking lot; Category 4414, Education Services, included $2500 for the Instructor Development Workshop speaker; and Category 4491, Other Operating Expense, included bills for two months of records storage, plus putting the meeting minutes from last year on microfiche.

Chairperson Gale noted that Category 4711, Board and Lodging, was down by approximately 1/3 year-to-date, and asked if Commissioners were attending fewer meetings. Director Tyrrell said that, since Deputy Director Hoffman is President of ARELLO this year, ARELLO paid her travel expenses. With the timing of the report, this month=s expenditure probably just included examiner travel for May.

The Cash Fund Balance as of May 31, 2003, was $711,636.24, which compared to a Cash Fund Balance of $611,337.70 on May 31, 2002.

Regarding the June report, Director Tyrrell noted that it provided end-of-year figures. Receipts were up approximately $60,000 from last year. Expenditures Category 4215, Publication and Printing, was for application packet copies of the license law; Category 4253, Data Processing Software License, was a journal entry to correct the May miscode; Category 4311, Office Supplies, included two label machines, which were working well for staff; Category 4419, Data Processing Contract Services, reflected where last year=s excess was put for the second half of the biennial budget, and included a $650 charge to add applicants to the website database and $6250 for specialized registrations modifications; Category 4711, Board and Lodging, included the Little Rock meeting expenses; and Category 4721, Commercial Transportation, included Little Rock meeting tickets and the Investigator Workshop ticket.

The cash fund balance as of June 30, 2003, was $670,949.92, which compared to a cash fund balance of $578,321.86 on June 30, 2002. The balance would cover approximately 8 months of operating funds.

Commissioner Poskochil asked why Category 7522, Promotional Land Registrations, was so much higher than anticipated. Director Tyrrell said that income in that area had gone up considerably in the past few years. Time share registrants pay a fee partially based on the number of units at the initial registration, and pay the same amount for renewal every year, regardless of the number of units still available. Director Tyrrell was collecting data on the situation, and staff were considering proposing a cap for the renewal fee or making it apply only to those units still available. Director Tyrrell will bring the information to the Commission when it is available.

After discussion, a motion was made by Moline and seconded by Strand to file the May and June Receipts and Expenditures Reports for audit. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Final Renewal Report for 2003

Director Tyrrell presented a Final Renewal Report for 2003, which showed renewals as of June 30, 2003. A copy of said report is attached to and made a part of these minutes.

Director Tyrrell noted that a higher number of licensees renewed than last year.

No action was necessary on this report.

2003-2004 Fiscal Year Monthly Budget Spread

Director Tyrrell presented the 2003-2004 Fiscal Year Monthly Budget Spread. A copy of said report is attached to and made a part of these minutes.

Director Tyrrell noted that category code numbers had been changed to accommodate the NIS system, and were in a more logical order. Staff were anticipating $800,000 in receipts, and the actual budget as approved was $923,826. Health insurance costs may change, and were shown evenly distributed over the year, but the state did not know exactly what the January cost will be.

Commissioner Moline asked how much of the budget the Commission would actually spend. Director Tyrrell said it was hard to say with the unknown insurance cost, but it would probably be $900,000. This budget was probably about as on target as it was possible to be. The Commission had been without a staff member for a couple of months during the previous fiscal year, so there could be unanticipated savings like that. Chairperson Gale noted that receipts were less than expenditures, and asked if the Commission would be using some of the cash fund. Director Tyrrell said that, for budget purposes, staff tried to keep the receipts estimates conservative, so there would be no unexpected problems. The Commission would probably take in more than that, depending on the number of applicants. Commissioner Moline asked if the Commission would most likely break even. Director Tyrrell said that could be the case this year. Chairperson Gale asked if salary increases were figured in. Director Tyrrell said they were.

Chairperson Gale asked the Commission if they wanted to raise the $100 per diem paid to Commissioners for attending meetings. Discussion ensued on whether that was necessary, since the Commissioners were on the Commission to perform a public service, and whether it would be politically wise. Chairperson Gale noted that the industry Commissioners could make a lot more money in a day of conducting real estate business than the $100 per diem. Director Tyrrell said the per diem used to be $50, and was raised to $100 in the late 1970s or early 1980s. Chairperson Gale asked that staff research what other agencies and commission were paying per diem, and how inflation would have affected the Commission=s per diem since the last change and report back to the Commission.

No action was necessary on this report.

Specialized Registrations

There were no specialized registrations to report.

Non-Resident Licenses and Resident Licenses Issued to Persons Holding Licenses in Other Jurisdictions Report

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 Poskochil to ratify issuance of the licenses as set forth in the report. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

May and June Examination Reports

Deputy Director Hoffman presented for ratification the May and June Examination Reports, copies of which are attached to and made a part of these minutes.

After review, a motion was made by Moline and seconded by Strand to ratify the May and June Examination Reports for the purpose of issuing licenses. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Real Estate Education Matters

Continuing Education Activity Approval

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.

Continuing Education Instructor Approval

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.

After discussion, a motion was made by Moline and seconded by Wiebusch to ratify both reports. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Pending Sworn Complaints and Investigative Matters

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.

Director Tyrrell sought guidance regarding a stipulation and consent order on a pending complaint. Consensus of the Commission was that no less than a 5-year suspension of the license would be acceptable for the stipulation.

The following sworn complaints and investigative matters were presented to the Commission:

Item A Complaint #2003-014 - Michael T. & Dawn A. Koczur vs. Dwight A. Beaton

Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter.

After being advised of the results of the investigation and discussion, a motion was made by Moline and seconded by Strand that the complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Item B Complaint #2003-015 - Justin Hackstadt vs. Kelly Randall Brooks

Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter.

After being advised of the results of the investigation and discussion, a motion was made by Wiebusch and seconded by Moline that the complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

 

Item C Complaint #2003-016 - Linda E. Miller vs. Heidi Ann Todd

Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter.

After being advised of the results of the investigation and discussion, a motion was made by Wiebusch and seconded by Moline that the complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Item D Complaint #2003-018 - Lorena Gomez vs. Vincent W. Leisey

Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter.

After being advised of the results of the investigation and discussion, a motion was made by Moline and seconded by Shepard that the complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Item E Complaint #2003-021

Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter.

After being advised of the results of the investigation and discussion, a motion was made by Moline and seconded by Poskochil that the complaint be set for hearing. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Item F Complaint #2003-024 - Christopher J. & Kathleen S. Walter vs. David M. Clark

Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter.

After being advised of the results of the investigation and discussion, a motion was made by Poskochil and seconded by Wiebusch that the complaint be dismissed without prejudice. Motion carried with Moline, Poskochil, Shepard, and Strand voting aye, with Johnson and Gale voting nay, and with Wiebusch abstaining.

Item G Complaint #2003-025

Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter.

After being advised of the results of the investigation and discussion, a motion was made by Johnson and seconded by Moline that the complaint be set for hearing on the alleged violations of Neb. Rev. Stat. Sections 76-2417(1)(c) and 81-885.24(29). Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Item H Complaint #2003-026

Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter.

After being advised of the results of the investigation and discussion, a motion was made by Moline and seconded by Shepard that the complaint be set for hearing. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Item I Informational Matter - Mark Gordon Zeller Salesperson Application

Deputy Director Mayrose reported that staff found no felony convictions on Mr. Zeller=s record. Per the Commission=s instructions at the previous meeting, Chairperson Gale approved Mr. Zeller to sit for the salesperson examination.

Item J Complaint #2003-011 - Valorie J. Johnson & Mark S. & Lori A. Preston vs. Mary Catherine Larsen

Deputy Director Mayrose noted that Ms. Larsen had stipulated to revocation of her salesperson license on the Commission=s complaint, so the original complaint which had been held in abeyance pending the outcome of the Commission=s complaint should be dismissed without prejudice.

After discussion, a motion was made by Moline and seconded by Wiebusch that the complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Item K Complaint #2002-050 - Michael S. & Jennifer L. Fulton vs. Jackline M. Schanaman

Complaint #2002-051 - Lorena Gomez vs. Jeffrey James Gollobit

Deputy Director Mayrose noted that the respondents in these complaints had not renewed their licenses for 2003, and the renewal deadline had passed, so the Commission no longer had jurisdiction for the complaints.

After being advised of the results of the investigation and discussion, a motion was made by Strand and seconded by Poskochil that the complaints be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Presentation of Stipulation and Consent Orders

Complaint #2003-035, Commission vs. Mary Catherine Larsen

Deputy Director Mayrose presented a stipulation and consent order in the matter of Complaint #2003-035, Commission vs. Mary Catherine Larsen. A copy of said order is attached to and made a part of these minutes. Ms. Larsen was not present.

Counsel Widger reviewed the circumstances involved and noted the provisions of the order, which had been signed by Ms. Larsen. The order specified revocation of her salesperson license.

After discussion, a motion was made by Wiebusch and seconded by Johnson to enter into the order as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Complaint #2002-047, Nancy Jones, Heidi Todd, and Angela Rogers
vs. Linda Eileen Miller

Counsel Widger presented a stipulation and consent order in the matter of Linda Eileen Miller. A copy of said order is attached to and made a part of these minutes. Ms. Miller was not present.

Counsel Widger reviewed the circumstances involved and noted the provisions of the order, which had been signed by Ms. Miller. The order specified a two-year suspension of her broker license, served on probation, and nine hours of additional continuing education, with three of the hours in trust accounts, three in agency, and three in license law, to be completed within twelve months. Counsel Widger noted that Ms. Miller had made substantial changes in her business practices to address the issues raised in the complaint.

After discussion, a motion was made by Moline and seconded by Wiebusch to enter into the order as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Hearings

Complaint #2003-013, Linda E. Miller vs. Nancy Lennet Jones

A hearing was held on July 16, at 10:15 a.m., in the matter of Complaint #2003-013, Linda E. Miller vs. Nancy Lennet Jones. Abbie Widger, Special Assistant Attorney General and Counsel to the Commission, appeared for the Complainant. Respondent Nancy Lennet Jones was not present.

Counsel Widger presented 18 exhibits, 17 of which were offered and received by Chairperson Gale. Counsel Widger called Harlan Milder, Program Director for Diversion Services in Omaha;

Director Tyrrell; and Deputy Director Mayrose as witnesses.

Chairperson Gale declared the hearing concluded.

A motion was made by Moline and seconded by Wiebusch that Ms. Jones be found guilty of the violations alleged in paragraph 3 of the complaint. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Chairperson Gale then opened the disciplinary envelope. No prior disciplinary actions were on file.

A motion was made by Moline and seconded by Wiebusch to revoke Ms. Jones= license, effective immediately. After discussion, the motion was withdrawn by the mover and the seconder.

A motion was made by Moline and seconded by Wiebusch to revoke Ms. Jones= license immediately, upon the Chairperson entering the order, because continuation of her license would be a potential harm to the interest of public safety.

Commissioner Moline noted that Ms. Jones had twice been convicted of theft, and her handling earnest money was a threat to the public. Commissioner Poskochil was concerned that Ms. Jones may be driving members of the public around, even though her license was revoked due to DUIs. Chairperson Gale was concerned with her continuing pattern of a lack of veracity, her dishonesty on the applications, and her clear pattern of avoidance of responsibility and avoidance of consequences. Chairperson Gale felt Ms. Jones was lacking in integrity.

A roll call vote was taken on the motion. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Chairperson Gale announced that the costs incurred for the court reporter and any witness fees would be billed to the Respondent, as provided for in 305 NAC Chapter 4, and that the Respondent would have thirty days from the date of the order to reimburse the Commission for said costs.

Seeing no objections, Chairperson Gale directed Counsel Widger to prepare the order.

Chairperson Gale announced that all exhibits related to this hearing would be retained in the Commission office.

The hearing was adjourned at 12:04 p.m.

Informal Special Appearances

July 16, 9:30 a.m. - Lee Ann Carnes, Salesperson Applicant

Director Tyrrell presented an exhibit which included Ms. Carnes= salesperson application, information regarding revocation of Ms. Carnes= licensed practical nurse (LPN) license, letters of reference, and correspondence regarding Ms. Carnes= special appearance. A copy of said exhibit is attached to and made a part of these minutes. Ms. Carnes was present.

Chairperson Gale reviewed the procedure for informal special appearances.

Ms. Carnes distributed and read aloud a prepared statement. A copy of said exhibit is attached to and made a part of these minutes, denoted as exhibit 12a2.

Chairperson Gale asked about her probation status. Ms. Carnes said she was in the middle of her probation sentence, she had to check in every month with her probation officer, and she was required to work as part of her probation. Chairperson Gale asked if it was through Lancaster County. Ms. Carnes said it was District 6, and it was state probation, not county. Chairperson Gale asked if she checked in with the same person each month. Ms. Carnes said yes. Chairperson Gale asked if she was in good standing with her probation. Ms. Carnes said yes, so far. Chairperson Gale asked when her sentence would be completed. Ms. Carnes said it was for 18 months, so her earliest release date would be May 20 or 23 of 2004. Director Tyrrell asked her if 18 months would actually be November 2004. Ms. Carnes said that would be correct, and she had miscalculated it by using her court date, not the date of the probation order. Chairperson Gale asked what was being done to address the drug issue. Ms. Carnes said there was no substance abuse, because it was a prescription she had from her employer for a sleeping tablet. The drug was not abused, but there was a stigma because it was a controlled substance. She had a drug/alcohol evaluation, and was not a drug abuser, so she was not ordered to do treatment. Nothing further was required. Chairperson Gale asked if she had to attend Alcoholics Anonymous. Ms. Carnes said no.

Chairperson Gale asked Ms. Carnes to tell the Commission how the situation happened, and if she felt she was misjudged or unfairly convicted. Ms. Carnes said she had a written prescription for Klonopin from the doctor for whom she worked as a nurse and office manager. After the allowed refills were through, he told her she could call in more refills, like all the others she called in for the office. After six years, the pharmacy she was using was bought out, and the new pharmacy owners questioned the refills because they had lost the written original prescription. She tried to find a copy of it in the office, but could not find it. For some reason, the doctor denied that he had ever approved the prescription. It was her word against his. She had no other choice but a plea bargain.

Commissioner Strand noted that, on Ms. Carnes= criminal history, it appeared she was cited for a felony but pled to a misdemeanor. Ms. Carnes said the reduced charges were negotiated by her attorney, so that she would not be a felon. Director Tyrrell noted that there were two purposes for bringing Ms. Carnes before the Commission. She had a professional license which was revoked, and, in the past, the Commission had not allowed individuals on felony probation to sit for examination until their probation was over. The Commission had not yet set a precedent for those on misdemeanor probation. Commissioner Moline said that the major issue was the revoked professional license. Chairperson Gale noted that, for any applicant, Commission staff may request the applicant make a special appearance. Director Tyrrell said the only reason the criminal history was mentioned was because she was still on probation, and no precedent had been set.

Ms. Carnes said that she went down to Health and Human Services (HHS) and reported the incident, as required by statute for licensed practical nurses (LPNs). She also made a statement to a police officer, who arrested her at her home. Her attorney restricted her from talking to HHS due to the pending criminal charges, because her testimony before the licensing board would be held against her in court. In the HHS disciplinary action, one charge was for her failure to comply with the investigation, which was done on the advice of her attorney. Ms. Carnes was aware her license was in jeopardy, and her failure to cooperate was probably why the license was revoked. Even a license suspension makes a career tough. She had cooperated somewhat by filling out a mandatory form. Chairperson Gale asked if she attended the hearing. Ms. Carnes said her attorney would not let her attend or talk to them at all. The attorney was concerned about the criminal charges, and figured she was going to lose her license anyway, so she should just protect herself in court. Chairperson Gale asked if the license revocation decision was appealed. Ms. Carnes said no.

Commissioner Shepard noted that Ms. Carnes had addressed one drug, but not the other. Ms. Carnes said the other drug was not involved in the criminal case. The other medication was what a nurse practitioner in the office prescribed for her husband and herself. She denied prescribing the drug later. Ms. Carnes speculated that she denied it because she was not licensed at the time, all medications were written under the doctor=s signature, and she had prescribed it for reasons other than those for which it was usually prescribed. The drug was an anti-seizure medication, but it was prescribed to help with weight loss.

Commissioner Poskochil questioned the dates of the prescriptions, and asked how many tablets were in each prescription. Ms. Carnes said they were just a month=s supply, and they were filled every month. The Klonopin was only 1 or 2 milligrams at bedtime, which was a smaller dose than usual, actually a minute dose. Klonopin was an anti-anxiety drug, and was prescribed as a sleep aid. Topamax was an anti-seizure medication, and was also used to control mood swings. She and her husband were using it for weight loss. Those were the only medications involved. Commissioner Poskochil asked for clarification on the prescriptions. Ms. Carnes said there was an original prescription for Klonopin from the doctor, but only verbal approval for Topamax from the nurse practitioner.

Commissioner Poskochil noted that Ms. Carnes had her nursing license for a long time, but her not appearing before the regulatory board was a concern. Ms. Carnes said that, when you are facing a felony charge and your attorney says not to appear or he will not represent you, what do you do? The felony charge was much more of a threat than losing the nursing license. She would have had a more difficult future with a felony conviction.

Chairperson Gale summarized the Commission=s guidelines. Chairperson Gale said that one concern was that Ms. Carnes was still on probation. He noted that her disciplinary action was complete. Chairperson Gale asked about Ms. Carnes= involvement in obtaining the Klonopin, and that of her husband. Chairperson Gale asked if she or her husband were patients of the nurse practitioner. Ms. Carnes said she saw her once, to get the Topamax medication. Chairperson Gale asked if it was the same situation as the Klonopin, with a lost prescription. Ms. Carnes said no, it was not lost, because there never was a written prescription, just verbal approval by the nurse practitioner. The original prescription for Klonopin was written in 1996, and they could not find it.

Commissioner Poskochil asked if there was an amphetamine in Topamax. Ms. Carnes said no, there was no stimulant, but a lot of patients had observed weight loss.

Commissioner Poskochil asked if the licensing board investigator interviewed the doctor and the nurse practitioner. Ms. Carnes said yes. Commissioner Poskochil asked if they said Ms. Carnes ordered the prescriptions on her own. Ms. Carnes said yes. Commissioner Poskochil asked if she was denying that. Ms. Carnes said yes. Ms. Carnes said she did not know why the nurse practitioner denied authorizing the prescription, and she would not be here if she knew. Commissioner Poskochil asked how it came to light. Ms. Carnes said the pharmacy paid attention to prescriptions. The pharmacist checked because the same person calling in the prescription was using it. It was not an unusual amount, just the fact that it was a controlled substance and was called in by the user. Ms. Carnes did not know why the doctor denied prescribing it. She had 20 years of nursing experience, and it was hard to think about putting herself in that situation. Commissioner Poskochil asked if it was common to have a nurse call in, because maybe the doctor felt caught. Ms. Carnes said no, nurses call in all prescriptions from doctor=s offices. This was unusual because she was calling it in for herself. Commissioner Poskochil asked where written prescriptions go. Ms. Carnes said a prescription can be written or verbal. Normally, it would go in the patient=s chart, and documentation would be maintained. She was not a patient, so there was no chart to document the prescriptions. All authorizations were verbal for 7 years. She put herself in a bad situation by not getting it in writing. Since it was a controlled substance, the doctor needed to renew the prescription every 6 months.

Commissioner Shepard asked when Ms. Carnes= probation was over. Ms. Carnes said it was for 18 months, so it will be done in November 2004.

Chairperson Gale said that, as an attorney and on the Pardons Board, he saw a lot of convictions where the person convicted wanted changes in the convictions. Chairperson Gale said that, if the process was done, the Commission would not retry the case. Chairperson Gale was very sympathetic to Ms. Carnes= explanation, but HHS concluded that calling in prescriptions for herself without the doctor=s approval was a violation, as was not cooperating with the disciplinary process. This was the most serious action taken by a licensing board. Chairperson Gale was unwilling to vote to allow Ms. Carnes to sit for the examination until her probation was completed. His position was based on the revocation and the criminal conviction.

Commissioner Strand said he understood the HHS finding, but it was important to separate the issues. Commissioner Strand thought that denying an applicant for being on misdemeanor probation was a bad precedent. Commissioner Strand said he found that everything in Ms. Carnes= explanation was very plausible. A misdemeanor did not hold a lot of water with him. Commissioner Strand said he did not know how much a license revocation would affect the decision. Ms. Carnes had acted based on her attorney=s advice, regarding the doctor vs. nurse he said/she said situation. Commissioner Strand was inclined to allow her to sit for examination. Commissioner Strand did not know what the revocation affected, and a misdemeanor was not a basis to deny an applicant.

Commissioner Poskochil commented that he was not familiar with doctor=s office procedures. It bothered him that Ms. Carnes did not cooperate with the licensing board, whether or not she was following her attorney=s advice. That was why the Commission was here, and licensees had to follow the rules. Licensees had to be accountable, and Commissioner Poskochil would rather they appear than just not go to a disciplinary hearing.

A motion was made by Strand and seconded by Johnson to allow Ms. Carnes to sit for the salesperson examination, and to have a license issued upon passing.

Commissioner Johnson said he agreed with Chairperson Gale=s points, and he was concerned that most of her character references were from family members, but there was a recommendation letter from a respected friend which had bearing on his thoughts.

Commissioner Poskochil noted that requirements had been made in the past for applicants still on probation. Director Tyrrell reviewed the typical restrictions. Commissioner Poskochil offered a friendly amendment that Ms. Carnes be required to notify her employing broker of her criminal history and license revocation, that the employing broker verify that notification to the Commission in writing, and that Ms. Carnes immediately notify Commission staff if she had any additional criminal arrests or probation violations during her probationary period. The friendly amendment was accepted by the mover and the seconder.

Commissioner Wiebusch said she was struggling with the fact that Ms. Carnes= professional license had been revoked. Director Tyrrell said that, historically, applicants with suspended or revoked licenses in other jurisdictions had been licensed. Director Tyrrell cited recent examples of applicants who had a suspended funeral director=s license and a revoked contractor=s license.

Commissioner Poskochil asked if Ms. Carnes was stating that they were false allegations. Ms. Carnes said yes, but that she accepted responsibility for them by pleading no contest, and not having a trial. She accepted responsibility, but maintained her innocence.

A vote was taken on the pending motion. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, and Wiebusch voting aye, and with Gale voting nay.

By Exhibit - Joseph Lopez Wilson, Salesperson Applicant

Director Tyrrell presented an exhibit which included Mr. Wilson=s salesperson application, information regarding the suspension of Mr. Wilson=s license to practice law, and correspondence regarding Mr. Wilson=s special appearance. A copy of said exhibit is attached to and made a part of these minutes. Mr. Wilson was not present.

Chairperson Gale was temporarily excused from 2:02 p.m. to 2:20 p.m.

Director Tyrrell noted that Mr. Wilson=s law license will be suspended through September 28, 2003. Discussion ensued regarding the Commission=s options in addressing the application.

After discussion, a motion was made by Moline and seconded by Shepard to take no action until Mr. Wilson makes a special appearance, in person, before the Commission. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, and Wiebusch voting aye, and with Gale not participating or voting, being temporarily absent and excused.

Personnel Matters - Closed Session

At 2:26 p.m., a motion was made by Wiebusch and seconded by Johnson to go into closed session for discussion of personnel matters. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

At 2:46 p.m., a motion was made by Moline and seconded by Strand to go into open session. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

A motion was made by Poskochil and seconded by Wiebusch to increase Deputy Director Hoffman=s salary to $50,258.21 per year, effective July 1, 2003, through June 30, 2004. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Legislative Matters - Final Report

Director Tyrrell reported that nothing had changed since his previous report.

No action was necessary on this report.

Information Matters

ARELLO Southern/Central Joint District Meeting -
June 5-7, 2003 - Report of Attendees

Commissioner Wiebusch said that they had good sessions. Commissioner Johnson agreed that they were very good too, and the weather was not horrible. Commissioner Wiebusch said there were excellent speakers. Mike Pickens gave a good session on insurance, and said that the last time the insurance industry took in more money than it paid out was 1979. Stock market earnings had been used to make up the difference until recently. He also explained credit scoring, and said there was a 90% likelihood that someone with a low credit score would file a claim. Timothy Grooms had reported that Arkansas had a contingency for insurance as part of the purchase agreement, and that earnest money should be a substantial amount.

Director Tyrrell noted that Commissioner Wiebusch was nominated as a District Vice President for 2003-04. Elections would be held at the October meeting. Director Tyrrell said that the economist speaker was very good, and gave the impression of an absent-minded professor, but not as disheveled. His presentation was very interesting and humorous.

No action was necessary on this report.

Service Satisfaction Survey - June 2003 Mailing Results

Director Tyrrell presented an exhibit entitled AService Satisfaction Survey - June 2003 Mailing Results.@ A copy of said exhibit is attached to and made a part of these minutes.

The survey was included in every fourth piece of mail sent during June 2003. The response rate was low, but all comments received were positive.

No action was necessary on this report.

Future Meeting Dates

August 20, 2003 - Staybridge Suites, Lincoln
September 24-25, 2003 - Staybridge Suites, Lincoln
November 12-13, 2003 - Days Hotel Carlisle, Omaha
December 10-11, 2003 - Staybridge Suites, Lincoln
January 21-22, 2004 - Staybridge Suites, Lincoln

Recesses and Adjournment

At 10:28 a.m., Chairperson Gale declared a brief recess, and reconvened the meeting at 10:43 a.m.

At 12:04 p.m., Chairperson Gale declared a recess for lunch, and reconvened the meeting at 1:15 p.m.

Chairperson Gale was temporarily excused from 2:02 p.m. to 2:20 p.m.

At 2:26 p.m., a motion was made by Wiebusch and seconded by Johnson to go into closed session for discussion of personnel matters. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

At 2:46 p.m., a motion was made by Moline and seconded by Strand to go into open session. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

At 2:50 p.m., there being no further business to come before the Commission, a motion was made by Strand and seconded by Moline 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 July 16, 2003, meeting of the Nebraska Real Estate Commission were available for inspection on July 30, 2003, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska.

Respectfully submitted,
Les Tyrrell
Director

Guests Signing the Guest List

Perre Neilan, Nebraska Realtors7 Association, Lincoln
Jack McSweeney, Nebraska REALTORS
7 Association, Kearney