NEBRASKA REAL ESTATE COMMISSION
August 17, 2004
Staybridge Suites Staybridge Room Lincoln, NE
Chairperson Gale convened a meeting of the Nebraska Real Estate Commission at 9:05 a.m. on August 17, 2004, 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 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 errors and omissions insurance contract award protest. Chairperson Gale introduced Wesley W. Grady of North Platte, who was appointed by the Governor to replace Commissioner Wiebusch when her term expires at the end of the month.
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 items 12c, 16f, 16g, and 17 had been added since the tentative agenda was mailed to the Commissioners.
After review of the final agenda, a motion was made by Poskochil and seconded by Wiebusch to adopt the final agenda as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
Minutes of June 14, 2004
The minutes of the Commission meeting held on June 14, 2004, 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, Strand, Wiebusch, and Gale voting aye, with Shepard not participating or voting, not having been present at the meeting.
Receipts and Expenditures Reports
Director Tyrrell presented the Receipts and Expenditures Reports for June and July. Copies of said reports are attached to and made a part of these minutes.
Regarding the June report, Director Tyrrell noted that this was the final report for fiscal year 03-04. There was nothing unusual to report in Receipts, except that the actual year-to-date total was up by $188,000.00. In Expenditures Category 521200, Communication Voice/Data Expense, staff assumed telephone headsets would be coded in this category, but Accounting said they should be coded as office equipment, so it affected both the June and July reports; in Category 522100, Dues and Subscriptions, ARELLO billed us a month late, but the year-to-date total was fine; in Categories 541500 and 541700, Legal Services Expense and Legal Related Expense, the Martin case expenditures were debited twice by the NIS system, but the actual payments were $5626.50 and $480.26, and the correction will show in the July report; and Category 559100, Other Operating Expense, was for microfilming last year=s minutes.
The cash fund balance as of June 30, 2004, was $797,334.13, which compared to a cash fund balance of $670,949.92 on June 30, 2003.
Regarding the July report, Director Tyrrell noted that Receipts Category 484500, Reimbursement from Non-Government Source, showed that Mr. Cutler paid his disciplinary hearing expenses. In addition to the items noted for correction regarding the June report, Expenditures Categories 571100, Board and Lodging, and 572100, Commercial Transportation, showed expenses for the ARELLO District Meeting in South Carolina.
The cash fund balance as of July 31, 2004, was $757,958.03, which compared to a cash fund balance of $631,139.81 on July 31, 2003.
After discussion, a motion was made by Moline and seconded by Strand to file the June and July Receipts and Expenditures Reports for audit. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
Final Renewal Report for 2004
Director Tyrrell presented a Renewal Report, which showed renewals as of June 30, 2004. A copy of said report is attached to and made a part of these minutes.
No action was necessary on this report.
Monthly Budget Spread - FY 2004-2005
Director Tyrrell presented the Monthly Budget Spread for FY 2004-2005. A copy of said report is attached to and made a part of these minutes.
Director Tyrrell reviewed the budget spread, which included last year=s leftover budgeted amount and this year=s appropriated amount. Last year=s money was put in a category for information technology consulting.
No action was necessary on this report.
Biennium Budget for 2005-2007
Director Tyrrell presented the 2005-2007 Biennium Budget Proposal. A copy of said proposal is attached to and made a part of these minutes.
Commissioner Moline said it was an interesting document, and that he felt it was an appropriate amount to request.
Commissioner Moline, as Chairperson of the Budget and Planning Subcommittee, described the budgeting process. Commissioner Moline and Commissioner Wiebusch, who had reviewed the budget documents at length during the Budget and Planning Subcommittee meeting, recommended a $10.00 decrease for the 2005 license fees, and recommended that the Commission not raise examination fees when the expense increases next summer. There were some potential additional expenses coming in this year, with several hearings set which could take multiple days, and if more Commissioners chose to attend ARELLO meetings. Commissioner Moline said that he and Commissioner Wiebusch thought the $10.00 license fee reduction could be maintained for several years. The budgetary low water mark was usually in September or October, depending on when renewals went out. The Subcommittee estimated the low point for the cash fund balance this year would be $643,000.00, and the target was $500,000.00. A $10.00 license fee reduction should be possible to maintain for 4-5 years without increasing fees, and would bring the cash fund balance into the target range.
Commissioner Strand said that, compared to last year at this time, there was an increase of approximately $126,000.00 in the cash fund balance, and asked if other employee expenses were going up. Director Tyrrell said that, at the time the budget was being prepared, expenses such as health insurance and salary increases were being negotiated. The state budget instructions said to use the 2004 calendar year and fiscal year 04-05 expenditures, respectively, for budgeting purposes, and the Legislature=s Appropriations Committee and the Governor would recommend increases after the negotiations were finalized. Commissioner Strand asked for a ballpark figure of how much expenses had increased from year to year. Director Tyrrell showed in Exhibit 4c where the amounts were shown for the last 3 years, and noted the figures did not include salary or health insurance increases.
Commissioner Moline said the Commission did not want to drastically change fees every year. Director Tyrrell noted that, if the anticipated reduction in the number of licensees did not occur, the Commission could lower fees again next year. Commissioner Strand said Director Tyrrell could say the Commission was systematically reducing fees, if the Legislature asked. Director Tyrrell said they sometimes ask such questions during the budget approval process.
Chairperson Gale said the Secretary of State=s office carried balances, and tried to project the cash fund balance to allow for new technology and other large requirements in its divisions. They tried to hold fees steady, and finally had to raise fees after 20 years. Under any circumstances, they tried to keep 6 months= worth of projections. Their cash fund balance declined because their on-line fees were lower. The Commission=s cash fund kept going up, and he thought a $20.00 reduction should be made instead of $10.00, even though the Commission was benefiting from good times in the industry right now. The Commission should do reductions during good times, because it could not afford it during bad times. Chairperson Gale thought the proposal to lower fees was appropriate, but that the Commission could afford to double that, which would be an approximate $130,000.00 reduction.
Commissioner Wiebusch said the size of the cash fund balance was a good part of the Subcommittee=s discussion. Commissioner Moline gave a good summation as to why a $10.00 license fee reduction was recommended. It could be sustained without increasing fees for several years, and multiple-day hearings would reduce the cash fund significantly. Chairperson Gale said staff had estimated high for expenditures, so that was already built in. It was wise to budget in high estimated expenditures. If higher expenditures happened, based on the projections, they would not be added in again, and would still not affect the cash fund balance.
Commissioner Moline said the debate centered on how much should be held in reserve. If interest rates rose, and the real estate market slowed, the Commission could lose licensees. If the Commission was willing to raise fees dramatically if that happened, that was fine. The Commission should look at the license fee each year, and set the fee each year. If the Commission did not mind having peaks and valleys in license fees, it could reduce it more. The Subcommittee thought it was preferable to keep fees relatively level, which was why they recommended a $10.00 reduction. Chairperson Gale asked if renewal fees were received all year. Director Tyrrell said no, approximately 95% of renewal fees came in from mid-October to January 1. Chairperson Gale said that, if a recession happened in January, the Commission=s license fees were already paid. Commissioner Moline said licensee dropoffs happened when Nebraska REALTORS7 Association dues were due, in the fall. The decision depended on whether the Commission wanted to maintain a stable fee amount, or not. It was a difference of changing the fee every year, or not for 5-7 years. Chairperson Gale said the beauty of this Commission was that it could change fees on its own, without going through the Legislature. Commissioner Moline said the Commission must consider that fees were collected only once per year.
Director Tyrrell suggested that the new fee be effective for renewals for 2005, and that the Commission make the reduction of license issuance fees effective 1-1-05. That would be fair to all licensees, regardless of the amount of the reduction.
Commissioner Moline said the amount depended on how dramatic a change the Commission could tolerate. Commissioner Poskochil said that Commissioner Moline gave an excellent analysis. In the late 1980s, the industry lost 30% of its licensees. The Commission could not increase fees when licensees were not making it. Commissioner Poskochil was in favor of a gradual reduction, and see how it went. There would be a day of reckoning in the real estate industry, and Commissioner Poskochil did not want to increase fees when the market was slow.
A motion was made by Strand and seconded by Moline that renewal fees be reduced by $10.00 for 2005 licenses; that new license fees be reduced by $10.00 effective 1-1-05; and that the Commission leave examination fees at the same level during 2005.
Chairperson Gale asked Perre Neilan, representing the Nebraska REALTORS7 Association, if he had comments to make on behalf of the Association. Mr. Neilan distributed an exhibit, which is attached to and made a part of these minutes, denoted as Exhibit 4e. Mr. Neilan said the Association did not discuss new license fees. By the Commission=s own numbers and estimates, the Commission was $300,000 over its estimate from September 2004. Mr. Neilan noted that the Commission and staff had done an outstanding job of absorbing additional licensees with its current staff. There would be an impact of $137,700 if license renewal fees were reduced by $25.00. Mr. Neilan said he appreciated Commissioner Moline=s explanation, but the $10.00 proposed fees reduction would have an impact of only $66,120.00, which would still leave $600,000.00 in the cash fund balance. The Association did not think that would be a significant change, and would still be much above the reserve. The Nebraska REALTORS7 Association respectfully requested a $25.00 reduction in renewal fees.
Commissioner Moline asked, since the Nebraska REALTORS7 Association would like a $25 reduction, if that led to lower balances, would the Association be willing to absorb greater increases later, creating zig zags in fees. Mr. Neilan said the Commission reached a million-dollar high water mark in January. Commissioner Moline noted that the low water mark was only $500,000.00.
Director Tyrrell said there would be a $165,300.00 impact on new license fees with a $25.00 reduction. Mr. Neilan said his charge was only to discuss renewal fees, because past licensees had already contributed to the cash fund balance.
Chairperson Gale said that, as he understood the regulatory budget process, the Commission=s budget still had to be approved and regulated by the Legislature. Staff prepared estimates of receipts and expenditures, and estimated high on expenditures to cover contingencies. The Commission could spend up to that amount, which was from cash funds, since there were no general funds in the budget. The Commission would eat up all of its anticipated budget, and all of its unanticipated emergency appropriation, before it got to the level of a need for authorization for more money. The Legislature had never had a problem with supplemental appropriations from cash funds, which were deficit appropriations. Mr. Neilan said that was done in off years. Director Tyrrell clarified that it could be done every year.
Chairperson Gale said that if he was getting this right, and he was struggling with it, when the Commission got its appropriation from the Legislature, that covered the entire amount of estimated expenditures. The Commission had the cash fund balance on top of that, which was unallocated and unappropriated. If the Commission needed to use that, staff would go to the Legislature for deficit appropriation of that money. Director Tyrrell said it would only be for deficit expenditure purposes, and for that, it would not matter if the number of licensees would drop. The Commission did not have to go to the Legislature to raise fees, because the Legislature only appropriated expenditures. Chairperson Gale said maybe the Commission had more authority here, and could use the deficit budget process for additional expenditures. Chairperson Gale noted the Commission would have to exceed its high estimates to need deficit appropriations.
Director Tyrrell said staff usually had to make its deficit appropriation request by the first part of October, since the budget year started in July. The Commission looked at how expenditures were going, and if it looked like it would go over the budgeted amount, the Commission could request a specific line item deficit expenditure. If there was a real emergency, a request could possibly be made as late as December, if the agency=s budget analyst and fiscal analyst went along with it. The Legislature would increase the appropriation. Chairperson Gale said that would be true with whatever developed, such as unanticipated hearings. Director Tyrrell said that was correct. For example, educational expenditures were currently running $8500/month, and were only budgeted for $76,000, which would be $30,000 over the budgeted amount. Since the Commission was in the second year of the biennium, and had excess funds from the first year, the Commission could use that without a deficit appropriation. If the Commission was in the first year, the Commission would want a deficit appropriation. It worked the same as when a retirement was coming up.
Commissioner Moline said that, for a couple of years, he had thought the Commission was taking in too much money, and needed to get to equal expenditures and receipts. It came down to getting there dramatically or not, and either way worked. Chairperson Gale said the money was coming from individual business people, and the question was how much right the Commission had to keep that money from their pockets.
Commissioner Johnson proposed an amendment to the motion, to reduce fees by $20.00 for active licensees only. Director Tyrrell asked for clarification that the motion was to just reduce renewal fees for 2005 by $20.00. Commissioner Johnson said that was correct, as the Association had requested.
Commissioner Strand said that next year was another year. As long as the cash fund balance was not growing, that was what was important. Commissioner Strand did not want the Commission to find themselves in a position of not managing. It was imprudent to make it an erratic fee schedule and overshoot the mark. Commissioner Strand did not feel the amendment was acceptable.
Chairperson Gale said the motion to amend failed for lack of a second. Seeing no further discussion of the original motion, Chairperson Gale called the question.
A vote was taken on the pending motion. Motion carried with Moline, Poskochil, Shepard, Strand, and Wiebusch voting aye, and with Johnson and Gale voting nay.
Chairperson Gale noted for the record that he was not voting against a reduction in fees, he just felt it was not enough of a reduction. Commissioner Johnson said that was why he voted against the motion as well.
Director Tyrrell noted that pages 7 and 8, the funds analysis of the budget proposal, could be amended with a notation that the Commission was anticipating lowering fees effective as noted in Exhibit 4d to make it accurate. Commissioner Strand said he would not change the numbers any, which had been conservative. Director Tyrrell said he would indicate that the Commission will be lowering fees per the motion.
Chairperson Gale asked how Director Tyrrell arrived at a 2.5% reduction in licensees. Director Tyrrell said he had used a 2.5% reduction, because he thought the numbers of licensees will start decreasing. It was not an exorbitant number, just enough to cover if there was a decline. If the Commission had a situation like the late 1980s, with a 30% reduction, that would be another story. 2.5% seemed reasonable. Commissioner Strand said the $10.00 fee reduction resulted in approximately that number.
On behalf of the Subcommittee, a motion was made by Moline and seconded by Wiebusch to approve and submit the budget proposal as presented; to authorize staff to make any appropriate grammatical or similar changes; to add the notation of the impending fees decrease; and to give Director Tyrrell leeway to adjust the budget if rent increases were significant.
Director Tyrrell noted that the Commission=s lease was currently under negotiation.
After discussion, motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
Consider Proposed Fee Adjustments
Director Tyrrell presented an exhibit regarding proposed fee adjustments. A copy of said exhibit is attached to and made a part of these minutes. This agenda item was addressed during discussion of agenda item 4b.
There were no specialized registrations to be presented at the meeting.
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 Strand 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.
Examination Reports - June and July
Deputy Director Hoffman presented for ratification the June and July 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 Wiebusch to ratify the June and July 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
Prelicense Education Instructor Approval
Deputy Director Hoffman presented for ratification the Prelicense Education Instructor Approval Report, a copy of which is attached to and made a part of these minutes.
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 review, a motion was made by Wiebusch and seconded by Johnson to ratify the reports. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
Continuing Education Activity Significant Change
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 review, a motion was made by Strand and seconded by Shepard to ratify the report. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
Continuing Education Activity Rejection
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.
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.
The following sworn complaints and investigative matters were presented to the Commission:
Complaint #2004-017 - Woods Bros Real Estate Group, Inc. vs. Forrest J. Pollard, Marion Dean Larsen, & Coad Jay Miller
Prior to discussion of this matter, Commissioner Moline recused himself, thereby nullifying any potential conflict of interest. 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 Strand and seconded by Wiebusch that the complaint be set for hearing on alleged violations 4, 6, and 11 as made against Respondent A in the original report, and dismissed without prejudice against Respondents B and C. Motion carried with Johnson, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Moline not participating or voting, having recused himself, thereby nullifying any potential conflict of interest.
Item B Complaint #2004-024 - Jason & Stacey Sudbeck vs. Nancy Johnson Faulhaber
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 Shepard that the complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
=s instructions. Motion carried with Johnson, Moline, Shepard, Strand, Wiebusch, and Gale voting aye, and with Poskochil voting nay. Commissioner Poskochil noted for the record that he was in favor of the dismissal, but against sending a letter of instruction to the broker.
Item E Complaint #2004-032 - Jerome M. Meyer vs. Bonnie Lou Nemecek
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 on alleged violations 4 and 6 as stated in the report. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
Item F Complaint #2004-033 - Guy Huddleston vs. Vicki K. Huddleston
After being advised of the results of the investigation and discussion, a motion was made by Moline and seconded by Wiebusch that the complaint be set for hearing on the alleged violation as stated in the report, for filing a false application. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
Item G Complaint #2004-034 - Denise Reed vs. Kenneth Winston Coats
After being advised of the results of the investigation and discussion, a motion was made by Strand and seconded by Moline that the complaint be dismissed without prejudice. Motion failed with Moline and Strand voting aye, and with Johnson, Shepard, Poskochil, Wiebusch, and Gale voting nay. A motion was made by Moline and seconded by Shepard that the complaint be set for hearing on all violations alleged in the report. Motion failed with Shepard, Wiebusch, and Gale voting aye, and with Johnson, Moline, Poskochil, and Strand voting nay. A motion was made by Moline and seconded by Poskochil that the complaint be dismissed without prejudice, and that Director Tyrrell send a letter of admonition to the Respondent. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
Item H Complaint #2004-036 - Steven M. & Nancy A. Anderson vs. Steven Wesley Heironymus
Prior to discussion of this matter, Commissioner Moline recused himself, thereby nullifying any potential conflict of interest. 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 Shepard and seconded by Wiebusch that the complaint be dismissed without prejudice. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, with Johnson voting nay, and with Moline not participating or voting, having recused himself, thereby nullifying any potential conflict of interest.
Item I Complaint #2004-037 - Robert & Lorraine Parker vs. Patricia Lynn Johnson
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 J Complaint #2004-021 - Kenneth Gordman vs. Bill Joe Hipsher, Jr.
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 dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
Item K Steven M. Abboud Matter
After being advised of the results of the investigation and discussion, a motion was made by Strand and seconded by Wiebusch that a complaint be filed and set for hearing on the Commission=s own motion, on the violations alleged in the report. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
Item L Thomas Jacobs Matter
After being advised of the results of the investigation and discussion, a motion was made by Wiebusch and seconded by Moline that Mr. Jacobs be required to make an informal special appearance. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
Item M Complaint #2004-023 - Matthew Musich vs. Justin Jon Rose
Deputy Director Mayrose presented a verbal report to the Commission and, when necessary, answered questions on this matter.
After being advised that Mr. Rose had not renewed his license for 2004, and therefore the Commission no longer had jurisdiction, a motion was made by Johnson and seconded by Wiebusch that the complaint be dismissed without prejudice against Mr. Rose. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
Presentation of Stipulation and Consent Orders
There were no stipulation and consent orders to be presented at the meeting.
The hearing scheduled for the meeting was continued.
Informal Special Appearances
Gary Lind Hardt, Potential Applicant - Reappearance
Director Tyrrell presented an exhibit which included correspondence regarding Mr. Hardt=s special appearance, Mr. Hardt=s salesperson application, reference letters, information regarding Mr. Hardt=s criminal history and civil cases, and a minutes excerpt and copy of the exhibit from Mr. Hardt=s previous special appearance. A copy of said exhibit is attached to and made a part of these minutes. Mr. Hardt was present.
Chairperson Gale reviewed the procedure for informal special appearances.
Mr. Hardt said he wanted to address Commissioner Poskochil=s concern regarding his vote last time. Commissioner Poskochil had questioned Mr. Hardt=s integrity, and said that real estate people handled consumer money. Mr. Hardt wanted to put a foundation on how his financial problems started 13-14 years ago. He had worked for other business, running stores, and did not do the finances of the businesses. He had a certified public accountant (CPA) giving him guidance on finances, and the CPA said it was common practice to transfer money among accounts, and to anticipate business while doing that, because there was a lag time before checks got where they were going. His conviction 12 years ago, except the O Street Carpet situation, were all from anticipating business, not for stealing or scamming. He was moving money and came up short. The checks would have usually cleared if they had been redeposited. Problems arose when his business slowed down, not from scams or stealing.
Mr. Hardt said his references were firsthand experiences of people for whom he had worked. The Bisignano reference was from 3 years at Cellular One. Mr. Hardt handled all of the business deposits for all locations. Mr. Bisignano=s letter would attest to his professionalism, and that there were no missing deposits or stolen money. Everything since Mr. Hardt=s convictions was good.
The Blair letter was a double reference, because he was the general manager when Mr. Hardt was a retail sales manager. Mr. Blair had pushed Mr. Hardt out of the nest to do his own business. His letter explained that Cellular One was withholding commissions. Mr. Blair=s reference was also for Mr. Hardt as an independent dealer, and mentioned Mr. Hardt=s 2 years as a dealer, his multiple location expansion, that Cellular One fronted him a half-million dollars in inventory, and he paid it back in 6 months. A service agreement was like a purchase agreement, where the agreement was everything, and he had to write all the terms on it. He often had to take deposits, and handled hundreds of dollars in deposits every day, with 1000 new subscribers per month. There was never a question on them - the deposit was never shorted, and always got to where it needed to be. There was nothing shady or questionable, and there was never any question of Mr. Hardt=s ethics.
The Fabian letter was in reference to his current job at Best Western. Mr. Hardt handled all deposits for Best Western, and all of the hotel=s money. There was no question of ethics or honesty anywhere there. All his references gave their phone numbers. In the past, there would be reason to question his paperwork, but that was why he got the testimony of other people who could vouch for his professionalism, work ethic, and honesty.
The Carper letter explained the O Street Carpet situation. Mr. Hardt had assumed he would be billed, which was a miscommunication. Mr. Hardt wrote the check on the spot, and when it did not clear, he took care of it. Mr. Carper did not want to prosecute, but the Lincoln Police Department (LPD) prosecuted him anyway. LPD just wanted to violate him on what was going on at the time. Mr. Carper was not being cheated. Mr. Hardt just should have told them to keep the carpet, and not written the check. Mr. Carper has no problem with Mr. Hardt.
Mr. Hardt said his problems were not scams, or stealing people=s money, it was just moving money from one bank account to another. Mr. Hardt got bad advice in the beginning. 90% of the time, there was no problem, and it worked as the CPA said it would. Problems happened just when the buffer zone did not work. The banks overreacted, and pushed for prosecution, even though the checks would have been covered if presented a second time. LPD explained to Mr. Hardt that it did not make any difference if a check was good later, it was a crime if it did not clear.
Mr. Hardt said he is an honest person, and had 8 years of references. He has a good work ethic, and tried to do the right thing.
Chairperson Gale thanked Mr. Hardt for his comments. Chairperson Gale said he would not vote for Mr. Hardt to be licensed. After Mr. Hardt=s criminal background check, the Commission found his representations were wrong. He had a more recent release from prison, and disclosed only one of 4 charges. The three others the Commission would not have known about without a criminal background check. Mr. Hardt had a felony; then another one while on probation, which was extended; a charge for driving while intoxicated; then a conviction for operating a vehicle while on suspension. That was unacceptable to Chairperson Gale, and showed a complete disregard for the law. Mr. Hardt had 7 charges for bad checks or forgery, which, even if dismissed, showed a record of regular brushes with the law. Chairperson Gale said he could not find that Mr. Hardt had honesty, veracity, or integrity, and Chairperson Gale would not vote for Mr. Hardt. Chairperson Gale said he could not address the other Commissioners= views, and asked for their comments.
Commissioner Shepard said he was not in attendance last month at Mr. Hardt=s previous special appearance, but he read the comments several times. Commissioner Shepard asked for clarification on the theft by deception which was dismissed. Mr. Hardt said that was on March 1, 2003, not October 2002, so that was a misprint. Mr. Hardt was arrested when commission checks were shorted. His bank was used to a certain amount of money coming in. He had signed a 90-day note, with automatic deposit. When they saw problems, they stopped cashing his checks, even though there was money in his account. LPD arrested Mr. Hardt before any investigation was done. There was no check-kiting scheme. Mr. Hardt=s attorney met with the prosecutor, and showed the prosecutor the balances when the checks were written out. The prosecutor subpoenaed his bank records, and saw it was the bank causing the problem, but it took the prosecutor 6 months to investigate. Out of 65 employees, only 2 employees turned their checks over to the county attorney=s office in their area, and those charges were dismissed when Mr. Hardt showed the bank records. One employee tried to collect on a check twice. When the checks hit the bank, the funds were in the account. Mr. Hardt said he had a lot of mud thrown at him. He supplied records to show the charge was not valid. The other two counties also dropped their prosecution, after Mr. Hardt supplied the bank records, because there was no crime.
Commissioner Moline said he was a CPA, and had also been a banker. He found it interesting that a CPA would advise Mr. Hardt to anticipate income. In banking, the bank always tried to take care of its customers with bad checks. In all of these problems, Mr. Hardt said he was a victim of circumstance, which was too much for Commissioner Moline to buy. Commissioner Moline said he would also vote no.
A motion was made by Moline and seconded by Poskochil to not allow Mr. Hardt to sit for the examination. Motion passed with Johnson, Moline, Poskochil, Shepard, Wiebusch, and Gale voting aye, and with Strand voting nay.
Michael L. Seckinger, Potential Applicant
Director Tyrrell presented an exhibit which included correspondence regarding Mr. Seckinger=s special appearance, information regarding Mr. Seckinger=s criminal history, and reference letters. A copy of said exhibit is attached to and made a part of these minutes. Mr. Seckinger was present.
Chairperson Gale reviewed the procedure for informal special appearances.
Mr. Seckinger said he grew up in Gering and lived there with his parents until he was 18. He got in trouble with the law for possession of stolen property and burglary tools. He was sentenced to 6-10 years in prison when he was 19, and served it in community corrections. He was currently working full time at Valentino=s, taking classes at Southeast Community College, and trying to decide on a career.
Chairperson Gale asked if Mr. Seckinger was working on an associate=s degree. Mr. Seckinger said yes. He took classes to be a microcomputer technician, and found out he was not interested in that, then took several business classes. Mr. Seckinger was interested in pursuing real estate, and was not taking classes right now. He wanted to find out if he was OK to sit for the examination before taking real estate classes. He was currently working as a delivery driver for Valentino=s, and helped customers.
Chairperson Gale noted that Mr. Seckinger=s felonies were all from the same incident in 1999, and it was quite a cluster of charges. Chairperson Gale asked if Mr. Seckinger had been represented by counsel. Mr. Seckinger said yes. Chairperson Gale asked if there was a plea bargain. Mr. Seckinger said yes, and that it did not work out the way he wanted it to. Mr. Seckinger found out later he should have done things differently with that, but he had the stuff. A couple of those items he had for 5 years prior to his arrest. A friend brought them over and left them with him, like the breathalyzer and the laser. It was spread out over years, but the police found out he had it all at once. Chairperson Gale asked if others brought it to Mr. Seckinger, and he stored it for them. Mr. Seckinger said no, he bought some of it, and they gave him some of it. They did not say it was stolen, but he knew it might be. They were just neat items. Chairperson Gale asked if Mr. Seckinger had made use of them. Mr. Seckinger said they were just toys to have, or odds and ends. The laser was a scientific thing, and he did not have an actual use for it. He just had the items.
Chairperson Gale asked how Mr. Seckinger was apprehended. Mr. Seckinger said the others got into trouble, and they told the police he had the stuff to get a lesser sentence. Chairperson Gale asked if Mr. Seckinger was acquainted with the others involved. Mr. Seckinger said yes, they were not good friends, but knew each other.
Commissioner Strand asked about Mr. Seckinger=s probation. Mr. Seckinger said he was sentenced to 6-10 years in prison, but with good time it was actually 3-5 years. He was eligible for parole after 3 years of incarceration. He was released after serving 3 years and one month. Mr. Seckinger finished out 5 years on parole, which was completed in May. Commissioner Strand asked if the slate was clean now. Mr. Seckinger said yes.
Chairperson Gale noted that Mr. Seckinger would be held to a high fiduciary standard as a licensee. High integrity was needed, and to treat others fairly and decently. The public was not to get involved in a situation to their detriment, so their money did not just disappear. Mr. Seckinger could do a lot of other jobs, but for a real estate license, he had to meet a high test. Mr. Seckinger=s situation was not just a simple single item or misfortune. It seemed he was consciously and deliberately accumulating items under suspicious circumstances, and did not separate himself from questionable people. Mr. Seckinger had not shown good judgment, a sense of right or wrong, or that he was aware of the implications to himself or others. Mr. Seckinger had a very juvenile sense of morality. Chairperson Gale was not convinced that his behavior had been tempered with good judgment yet. Mr. Seckinger was on the path, and might get there yet, but Chairperson Gale was not yet convinced the maturity was there for him to be a licensee for the State of Nebraska.
Commissioner Poskochil said the sentence seemed fairly stiff for his age at the time, and asked if Mr. Seckinger had previous problems with the law. Mr. Seckinger said he had a couple of run-ins, for joyriding golf carts and such. Mr. Seckinger did not know why he got such a stiff sentence, because everyone else in the case did not. Commissioner Poskochil asked if Mr. Seckinger=s parents were helping him through the legal process. Mr. Seckinger said yes, he just did not know better, because he did not know the system and what to do. That may have worked against him. Commissioner Poskochil asked if the items were expensive, and if they were from a school. Mr. Seckinger said there was a big screen TV, some jewelry from a pawnshop someone had broken into, and a laser from a junior high school class. Commissioner Poskochil asked if the police thought Mr. Seckinger was involved in the break-ins, since he had burglary tools. Mr. Seckinger said he had bought the tools, and would unlock doors for people for $10. He had thought about getting into the locksmithing business, but could not now. Commissioner Poskochil asked if someone gave him the big screen TV. Mr. Seckinger said he bought that from them, but not at retail. Commissioner Poskochil asked if Mr. Seckinger knew it was stolen. Mr. Seckinger said they did not say it was stolen, but he knew it could be, and that he paid about $800 for it. Commissioner Poskochil asked if Mr. Seckinger had legal problems since then. Mr. Seckinger said no.
Commissioner Strand noted the recommendation letter from Brad Schilz, and asked what Mr. Seckinger=s relationship was to him. Mr. Seckinger said he was a friend of the family from Gering who lives in Lincoln now, and is his uncle=s best friend. Mr. Schilz had known him for his whole life, and they were now pretty good friends who helped each other with projects on each other=s houses. Mr. Seckinger said Mr. Schilz knew him pretty good.
Commissioner Johnson asked if Mr. Seckinger owned a house in Lincoln. Mr. Seckinger said yes. Commissioner Johnson asked about the recommendation letter from Pat Wismer. Mr. Seckinger said Pat was the manager of Valentino's, and had been there 5 years. Commissioner Johnson asked if Mr. Seckinger had been working two jobs, at Valentino=s and McDonald=s, to buy the house. Mr. Seckinger said yes, but now he just worked at Valentino=s. Commissioner Johnson said it appeared Mr. Seckinger was headed in the right direction, but he had the same concerns as the other Commissioners. Maybe in 12 months or so, if Mr. Seckinger was still progressing in the right direction, Commissioner Johnson may support his application then. Commissioner Johnson said that hopefully Mr. Seckinger had gotten himself turned around.
Commissioner Strand said he was inclined to support Mr. Seckinger=s application. He noted that Mr. Seckinger had no background in sales, but appreciated his coming to see if there was a chance before paying for schooling. Commissioner Strand said Mr. Seckinger had a lot to learn, and was young. However the vote came out, Mr. Seckinger should find a job in a career path that interested him. Mr. Seckinger should consider a job as a runner for a real estate company, or some other office-oriented business. Commissioner Strand was impressed by Mr. Seckinger=s Valentino=s experience and recommendations, and Mr. Seckinger had been doing right for 2 years.
Commissioner Shepard said that Mr. Seckinger took responsibility for his actions, and did not shift the blame. Mr. Seckinger made juvenile mistakes, and had 3 years to think about it. Mr. Seckinger had a great attitude, and Commissioner Shepard thought he should have more time to make sure he was headed in the right direction before licensure. Commissioner Shepard agreed with Commissioner Strand=s advice, and thought Mr. Seckinger should possibly get into something sales-oriented or with a real estate background. The real estate business was a little different. Mr. Seckinger should talk with people involved in it, and perhaps find a mentor.
Chairperson Gale said Mr. Seckinger had shown progress, but was just off parole, and had not been on his own for long without supervision. Chairperson Gale said maybe Mr. Seckinger should complete his SCC degree, and maybe get involved in the community, to show public spirit. Licensure was a very significant public trust, and Mr. Seckinger was not quite there yet.
Commissioner Strand asked if Mr. Seckinger was eligible to apply for a pardon. Mr. Seckinger said he thought that was after 7-10 years, from the end of his sentence last May. Chairperson Gale said it depended. If the person was in the community and managing his own life, it could count. If someone was incarcerated, he was not managing his own life. Commissioner Strand encouraged Mr. Seckinger to keep track of the dates, so he could get a pardon and get his civil rights restored. That carried a lot of weight with the Commission.
A motion was made by Poskochil and seconded by Shepard to not allow Mr. Seckinger to sit for the examination. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
Chairperson Gale said Mr. Seckinger made a good impression, and could come back in the future. He was headed in the right direction, but would need more time between being off probation and applying.
Darold Voss, Salesperson Applicant
Director Tyrrell presented an exhibit which included correspondence regarding Mr. Voss=s special appearance, Mr. Voss=s salesperson application, information regarding Mr. Voss=s criminal history, reference letters, and a newspaper article. A copy of said exhibit is attached to and made a part of these minutes. Mr. Voss was present.
Chairperson Gale reviewed the procedure for informal special appearances.
Mr. Voss said that, for the last 8 years, he had built homes and duplexes and started a laundromat. He also rehabbed repossessed homes. He had keys to hundreds of HUD houses, because he installed new locks, did maintenance on them, and got them ready to resell. He had done that with his uncle for the last 3 years, from Lincoln to Sioux Falls. He had built and sold homes, and had up to 12 rental properties at a time. He went to real estate school to enter the workforce on a professional level, because he was getting too old for manual labor, and was fascinated by real estate. He had a job lined up in Columbus if he could get a sales license. Mr. Voss said he did well in the real estate courses, which he took January-April. He also helped his brother, who flunked the test. He hoped he would not. Mr. Voss tried everything he could to make money, because he was an entrepreneur. The laundromat did not make it.
Mr. Voss said he had no stability before he was on probation. His parents were both alcoholics. Mr. Voss had never held a job, and had no place to live. Now he had structure, was reformed, and liked who he had become. Mr. Voss wanted a chance at the life he could have had. His daughter just came back into his life. He had not known about her, because he and his girlfriend had broken up, and she did not tell him about his daughter. The daughter was now 18, and had been in contact for the last 3 years. Mr. Voss said what he did was hideous, and he was not the same person. Mr. Voss also has a son he had not found yet. He had put his son up for private adoption, and the son will soon be 15. At the time, before he was in treatment, he chose drinking and running around over his son. That was hard to face up to. He made mistakes, and hoped he had corrected them.
Chairperson Gale asked about Mr. Voss=s treatment program. Mr. Voss said he was in the Hastings treatment facility, then a halfway house, then a year-long program, and got off probation 9 months early. Mr. Voss completed his probation well, so his sentence got reduced. There would be no shame for a broker if he was hired. Mr. Voss went to school, and was ready to take the test if he was allowed. Real estate intrigued him. Chairperson Gale said it sounded like he knew it from the ground up. Mr. Voss said he knew sales, and had sold cars. He had several job offers if he took and passed the test.
Chairperson Gale asked when Mr. Voss completed probation. Mr. Voss said it was in 2000, with his 9-month early release. Chairperson Gale asked when the nullification happened. Mr. Voss said that was in 2001, after he had been off probation for 12 years. After Mr. Voss realized he liked real estate, he talked to his lawyer, and the nullification was requested. It was the second one ever done. Chairperson Gale said that caught his attention, as a member of the Pardons Board. Chairperson Gale said he will look at the statute. Mr. Voss said his attorney, Mark Sipple, argued it at the Supreme Court. Mr. Sipple could explain it to Chairperson Gale.
Chairperson Gale asked if Mr. Voss was a high school graduate. Mr. Voss said yes, and he also took auto mechanics, accounting, and other courses. He did not have an associate=s degree, but had lots of hours built up in different areas.
Commissioner Strand asked about the nullification, and noted that his sex offender registry had a 2010 expiration. Mr. Voss said he was at the lowest level of classification. Only the sheriff knew about him, because Mr. Voss had to register with him. Nobody could find out about it, because he took that precaution.
Commissioner Johnson noted that Mr. Voss had a good business with his uncle, and did pretty well. Commissioner Johnson asked if Mr. Voss just wanted out of the physical side of the business. Mr. Voss said yes, he wanted to enter into the professional side. Rehabbing was hard work, because they were old houses, and some were really nasty. Mr. Voss wanted to leave the past behind. Driving trucks hurt his back, and caused headaches and stress. Commissioner Johnson asked if Mr. Voss would work in Columbus. Mr. Voss said yes.
Commissioner Wiebusch asked for clarification of Commissioner Strand=s question, and whether Mr. Voss was still listed on the sex offender registry. Mr. Voss said he could get off the registry, due to the nullification, but he would have to go to court, which would cause publicity. Nobody knew about it now. It was a stupid thing in his past. If he went to court so he would not have to register for 5 years, it would be in the newspapers again, and everybody would know. It was horrible, and he would have to live with it for the rest of his life. He had agreed to the classification so he could just complete probation and get his nullification. Mr. Voss agreed to do all notifications, so that nobody could find out about him. That way it was not in the paper. The Nebraska State Patrol head for sex offender classification said he would be Class 1 for the next 5 years, and had to send in an annual report.
Commissioner Wiebusch asked how long it had been since Mr. Voss had a drink. Mr. Voss said it had been 5 years. Commissioner Wiebusch said Mr. Voss had previously indicated 7 years. Mr. Voss said he was in a halfway house, was accused of using drugs, passed the urine test, but was still kicked out. He drank a few times when that happened, then served 45 days in jail. He had not had a drink since then. He went back to his past life briefly when he was violated for parole and kicked out of the halfway house, and was on probation for 42 months. He passed all tests and has been straight since.
Chairperson Gale asked how old Mr. Voss was at the time of his crime. Mr. Voss said he was 30 at the time. The girl was living with his brother and her mom, and she stopped by. She was looking more for a father figure. He should not have done it. He had been drinking all night, and went to treatment right after that happened.
Commissioner Strand said the Commission did background checks, which included an FBI check. Commissioner Strand asked if Mr. Voss would be on the sex offender registry until 2010. Mr. Voss said yes, and it would show up if he gave permission for a background check. Commissioner Strand said that the nature of the job was showing homes and driving the public around. He did not know, since he was in possession of the knowledge that Mr. Voss was on the registry, how to answer someone who asked how he could have approved someone who was on the sexual offender registry. Mr. Voss said it will always be on his record, he just will not have to register anymore after 2010. Commissioner Strand asked if it would show up on a background check. Mr. Voss said yes, for the rest of his life. He could not get it off his record, because it was a permanent record type of thing. Commissioner Strand asked what would happen if he was pardoned. Director Tyrrell said the conviction might be pardoned, but would not be removed from the record.
Commissioner Strand asked for clarification that eventually Mr. Voss would not have to register. Mr. Voss said yes. He could get the requirement removed, but he did not want the publicity, so he just registered. Mr. Voss noted that he had turned himself in, and there had been no warrant for his arrest. He confessed on his own, when he realized what he did was stupid.
Chairperson Gale said Mr. Voss made a good presentation, seemed sincere, and had a good background in understanding real estate transactions. Mr. Voss had made an incredible improvement in his lifestyle. It came down to a matter of trust, even with the circumstances and the victim=s statement. People saw the sex offender registry, and it was a fearsome thing. Clients who might find out about it would not have all the facts. The nullification had just been in place for a couple of years now. Mr. Voss said it had been since 2001. Chairperson Gale said the paperwork indicated it was only since August 30, 2002. Mr. Voss was certainly on the right track and was doing well, and Chairperson Gale could see why he wanted to move from the physical side to the management side.
Mr. Voss said he still had a master key to every repossessed house he had ever worked on. Chairperson Gale said he did not think Mr. Voss=s honesty, background, or even drinking were at issue. Mr. Voss seemed to have done a good job of overcoming his obstacles. The hard issue was public trust. It may seem irrational, unfair, or discriminatory if all other aspects of Mr. Voss=s life were under control, but it was one issue that created public discomfort. A license said the Commission trusted him to treat the public well. Without more time intervening, Chairperson Gale did not feel that Mr. Voss had proven that he had really moved on.
A motion was made by Wiebusch and seconded by Strand to not allow Mr. Voss to sit for the examination. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline voting nay.
Chairperson Gale noted that the vote was to deny Mr. Voss=s request to sit at this time. With the vote and discussion, the Commission was not comfortable quite yet to allow Mr. Voss to sit. Mr. Voss should keep doing what he was doing, and could reappear before the Commission in the future.
Protest of the Errors and Omissions Insurance Plan Contract Award for Calendar Year 2005
Director Tyrrell presented an exhibit regarding the Rice Insurance Services Company LLC (RISC) protest of the errors and omissions insurance plan contract award. A copy of said exhibit is attached to and made a part of these minutes. Ms. Cindy Rice Grissom and her attorney, Loel P. Brooks, were present and representing RISC.
Ms. Rice Grissom presented an exhibit, a copy of which is attached to and made a part of these minutes, denoted as exhibit 13c. Ms. Rice Grissom said the reason they were here was that they were really surprised when they saw the results of the request for proposals (RFP). Ms. Rice Grissom said the RISC price proposal was significantly lower than its competitor=s proposal. Ms. Rice Grissom reviewed the price differences and points stated in her exhibit. Ms. Rice Grissom said she understood that it was difficult to understand and to compare different policies, even with legal training. She thought there was an error made, and submitted that the RISC proposal was the better proposal. Ms. Rice Grissom asked that the Commission reconsider its decision to award the contract to Williams Underwriting Group Inc. (WUGI).
Chairperson Gale said Ms. Rice Grissom did an excellent job representing her company and her issues. Chairperson Gale appreciated her coming here today. Under Nebraska law, this was the procedure to be followed if a bidder took exception to a contract award. The protest permitted a complainant to take an administrative step, without seeking judicial relief or an injunction. Ms. Rice Grissom presented her thoughts. This was not a negotiating session or an opportunity to hear an explanation from the Commission, it was just her opportunity to impress upon the Commission the points she felt were not adequately considered.
Chairperson Gale asked Director Tyrrell if a new RFP would be required if the Commission decided to change vendors. Director Tyrrell said it was his understanding that the Commission could change the award or re-bid. The Materiel Division would urge a re-bid, to open the field to everybody. Chairperson Gale asked if the Commission should schedule an executive session to adopt a response. Director Tyrrell asked Counsel Widger if the Commission could go into closed session, or if the discussion had to be in open session. Counsel Widger indicated she would review the statute, but if the Commission could go into closed session, it could only discuss the situation in closed session. It could not take a position. Chairperson Gale asked if the Commission could discuss it at its next meeting, or if the timing required that it be addressed at this meeting. Director Tyrrell noted that the next meeting was scheduled for September 15, which was after renewals were usually mailed. The Commission could do an emergency meeting, with an emergency meeting notice, prior to the September meeting. Director Tyrrell noted that renewals were mailed on the last day of October last year. The Commission had time, it was just a matter of what the Commission wanted to do.
Chairperson Gale asked if the Commission was required to respond to a written protest. Director Tyrrell said yes, it should be a written response. Chairperson Gale said that if the Commission decided to uphold its previous decision, it would respond to RISC in writing. If the Commission decided to change the awarding of the contract, that would open the Commission up to a protest from WUGI. Chairperson Gale said it would be difficult to have a new bid. Director Tyrrell said staff would issue the same RFP, then give proposers a month or so to submit their proposals, then the Commission could hold a special meeting to handle review and award of the new bids. Director Tyrrell said he only knew of two proposers, but the Commission could still mail to all 5 potential providers who had asked to be included, and could ask those who submitted bids to do it within 3 weeks or so. Director Tyrrell said he would talk with Don Medinger at the Materiel Division to make sure it was not too short a time for proposals. Chairperson Gale asked if the current coverage expired on 12-31-04. Director Tyrrell said yes. Director Tyrrell had not yet signed the contract with WUGI, because he was waiting for the outcome of this meeting. Currently, the Commission did not have a contract, but had awarded the contract. Director Tyrrell agreed that changing the award could propel the Commission into another protest.
Commissioner Wiebusch asked if the Commission could go into closed session today. Commissioner Strand asked what was the purpose of a closed session. Chairperson Gale said the Commission received a lot of information today, and it would be an opportunity to discuss it off the record. Chairperson Gale said the Commission could also discuss it on the record today. Commissioner Strand asked if the Commission did the initial review in closed session. Director Tyrrell said no.
Commissioner Poskochil asked if it would be appropriate to ask Ms. Rice Grissom a question. Chairperson Gale said he did not know, and asked Counsel Widger. Counsel Widger said she had asked Don Medinger from Material for guidance. The protest was for a provider to provide information and clarify the issues. It was not a negotiating session. If a question got into negotiation, the Commission needed to ask the same questions of WUGI. The Commission was not prohibited from asking questions, but had to be very careful to keep the playing field level. Questions were discouraged, to not approach the verge of negotiation. Commissioner Poskochil said his question was on optional coverages, and that the material previously provided was actually what was understood. His question was regarding savings provided by endorsements. Chairperson Gale said that should be discussed by the Commission. Commissioner Poskochil said he just wanted to ask if those were the coverages.
Mr. Brooks said part of RISC=s concern was the determination of risk management of the clarification versus a new proposal. He took exception that some clarifications were being considered new proposals. Nothing provided previously constituted negotiation, they were just clarifying their original proposal and the terms of the policy, to clarify significant misapprehensions or misinterpretations. RISC objected that not all of the information was shared, so the Commission could make a balanced and reasonable judgment. He would be delighted to clarify the RISC policy submission. It was not negotiation, just clarifying misunderstood portions, which was consistent with Nebraska law. Chairperson Gale said the response was supposed to clarify and represent the bid. The Commission was in a new phase, which was the protest phase. If there was open questioning, even for clarification, that was a new realm of information not contained in the protest or the information previously provided. That might poison the well, and cause the Commission to have to re-bid.
Counsel Widger said the purpose of the RFP was to inform providers of the services requested. The bid was self-contained. The Commission could not ask additional clarifying questions, because clarifying questions were already asked of both. The more clarifying questions asked of one provider, the more the other provider needed the opportunity to clarify as well. She agreed with Materiel that the more questions were asked, the more the Commission would be going outside of the bounds of the proposals as submitted. She was not sure where to start drawing the line of where to stop and where to ask WUGI. Counsel Widger was concerned with the integrity of the proposal process when a discussion was held with one provider and not the other.
Chairperson Gale said he was a country lawyer, and the Commission was like a jury. They had the information, and now a question was raised. The jury could not take new evidence, but could send a clarifying question to the judge. The Commission needed to keep a firewall between them and new information which might taint the whole process. The Commission might want to stand by the information already received, as a public body following the public bid process. The Commission could discuss whether to have clarification questions submitted to both RISC and WUGI, but they should be submitted in writing and on the record. It was not the same if one question was asked here in conversation, and there were other written questions. Chairperson Gale noted the Commission could meet the following day, if needed.
Counsel Widger noted that if the Commission intended to ask clarification questions in writing, it was not necessary for Ms. Rice Grissom to stay until tomorrow. Ms. Rice Grissom noted she had a scheduling conflict, and her flight would leave soon. Mr. Brooks could represent RISC in her absence. Mr. Brooks said they appreciated and supported the opportunity to further clarify their position. He felt it was certainly in the public interest for the Commission to have the information. Mr. Brooks felt the Commission did not have adequate information when it made the decision. Mr. Brooks said he felt fairness must be maintained at all costs, and heartily endorsed asking the same questions of the other bidder.
Chairperson Gale said the choices were a motion to take up the discussion in executive session tomorrow, a motion to deny the protest, or a motion to re-bid. A response was ultimately required. Director Tyrrell said yes, a response was required, but he was unsure if the discussion could be held in closed session. Counsel Widger said that, at this point, the Commission did not need to make decision, and could address the 11:40 agenda item. Director Tyrrell said the Commission could discuss the issue and make a determination now, or do the 11:40 agenda item now and discuss the protest later today or tomorrow.
Chairperson Gale said it was prudent to allow Counsel Widger time to consider the Open Meetings Law. The Commission could review the materials submitted and discuss it later. Director Tyrrell suggested the Commission recess this item, and take it up later. Chairperson Gale said it was prudent to not be impulsive about this matter. Chairperson Gale said he was sorry Ms. Rice Grissom=s plane was leaving so soon. The Commission would move on with the 11:40 agenda item, and would come back to this after lunch, at 1:30 p.m.
The discussion resumed after lunch. Chairperson Gale said that, after consulting with Counsel Widger and Director Tyrrell, they decided the Open Meetings Law would probably not permit the Commission to go into closed session for discussion. Chairperson Gale asked Director Tyrrell to review the Commission=s procedures to date. Mr. Brooks was present for the remainder of the discussion.
Director Tyrrell said the Commission had used the State Materiel Division=s procedures for the RFP. They got advice and used the forms from Materiel, even though the contract was exempt. This was the same process as was used for all but the very first errors and omissions insurance RFP. The RFP was sent to 5 entities, and the Commission received 2 proposals, from RISC and WUGI. The proposals were reviewed, and staff got clarifications from both providers. After the verbal clarification with RISC, Ms. Rice Grissom sent an email which said what she had said verbally, but also had two items which appeared to be changes to their proposal. One offered to add a $7 per-licensee premium cost, instead of having the $200 appraisal endorsement, if desired. The other was that the policy had indicated that earnest money and security deposits would not be covered by the policy, but that they would amend their proposal so that it would cover those monies. Those two things were not said in the telephone conversation. Director Tyrrell called Laura Peterson, the State Risk Manager, who said the options were either a total re-bid, or to not tell the Commissioners about the additional changes. The clarifications were included in the summary for Commissioner review. The changes changed the original proposal, so if the Commissioners were told about them, the Commission would have to go out for re-bid. When the Budget and Planning Subcommittee met, Director Tyrrell told them about the situation, and the Subcommittee went forward with their review without knowledge of the changes. Staff then told the Commission, and they also went forward without knowledge of the changes, and awarded the contract. Director Tyrrell then let both proposers know the outcome, and began working on the contract. He received the protest, forwarded it to legal counsel, and consulted with Don Medinger, who said staff and the Commission acted correctly. Counsel Widger drafted a response to the protest, which was sent to Mr. Brooks with relevant attachments, and copies were sent to the Commissioners. Ms. Rice Grissom requested today=s appearance, which was scheduled, and brought us to today.
Chairperson Gale noted that he and Commissioners Wiebusch and Moline served on the Budget and Planning Subcommittee, and had reviewed the proposals with staff. They had the staff analysis along with their own. Chairperson Gale said he was still comfortable with the analysis, which noted price and coverage issues. The Subcommittee was unanimous to not consider the changes to the RISC proposal, and to not re-bid. Commissioner Moline had done a thorough review of the premium differences, including the points raised today.
Commissioner Moline said he was out getting errors and omissions insurance for HomeServices of Nebraska, and could negotiate with each provider and pick the best deal. RISC provided service for the Commission last year on short notice, which was appreciated. State procurement procedures required that the Commission just use the proposals received. The policies were in legalese, and were deciphered with staff, Counsel Widger, and procurement input. Commissioner Moline felt the decision was still correct. Commissioner Moline had followed the presentation today, and had time to think about it. The Commission ultimately decided on WUGI because the policy was simpler and better for the licensees out there. A big issue was that, with the RISC policy, licensees lost the ability to sell their own home. They got the coverage back in, but with a home warranty required. The Subcommittee went through the proposals as fairly as they possibly could, as they applied to Nebraska, and came up with the best recommendation. Commissioner Moline said his recommendation today was to either re-bid the whole thing, or stay with the same decision. A change would cause more problems down the road. The Subcommittee had listed everything out in the policies, and followed the instructions for the procurement process.
Commissioner Wiebusch said that Commissioner Moline stated it very well. Each Subcommittee member had notes at the subcommittee meeting, and they did a side-by-side comparison. There was discussion and a decision to not use the changes to the RISC proposal, so the Commission did not have to re-bid. The Subcommittee used the bids as submitted. Commissioner Wiebusch said the additional upper limit option was also a discussion topic for the Subcommittee. Commissioner Wiebusch concurred with Commissioner Moline that the Commission should either re-bid or stay with the original decision.
Chairperson Gale said that Commissioner Moline mentioned RISC stepping in to fill the need left by WUGI=s inability to find coverage last year. The Commission had coverage with them, and their experience and qualification was a plus. Chairperson Gale gave them a very high mental rating for that and for their service, but WUGI had the same good experience with the Commission for a number of years. If WUGI was a total stranger, RISC may have had a better experience level. That did not ultimately carry a lot of weight, because both providers appeared to be equal in service, qualification, and experience. Loyalty was not a criteria. That did not mean the Commission did not appreciate RISC=s coverage under very exigent circumstances. The comparison did not leave a whole lot of doubt, from his notes and recollection. It was a pretty clear choice.
Commissioner Strand said he was trying to give weight to the incumbent for bailing the Commission out, but was persuaded by the Subcommittee that the WUGI policy had enough benefits to outweigh that.
Chairperson Gale said a re-bid was not a small matter, but was not impossible, if the Commission felt those two new items would ultimately have made a difference if they were treated as clarifications rather than changes to the bid. The Commission needed to reflect on whether there was a good reason to re-bid, if that information could be allowed in.
Commissioner Strand said he had some experience as a contractor of the State, and was comfortable withAyou got your best shot@ in the RFP process. Decision-makers had to deliberate on what was in front of them. To do otherwise really clouded the process, and made it look like they were negotiating with one proposer against the other. That was done all the time in private business, but not in the state procurement process. The issue came up with some frequency. Commissioner Strand did not see a reason to re-bid.
Chairperson Gale said that was the cruel reality of bidding - you gave it your best shot. If somebody made a mistake, they were not able to be a finalist in the bidding. A bidder was not allowed to change a mistake, to keep the process on a level playing field. Chairperson Gale said he was not saying this was a mistake, and noted it was called a clarification, but the reality was that you could not introduce more evidence later.
Commissioner Strand said the way RISC had unbundled services, it made it less apples and oranges, and made for a differently priced product.
Commissioner Shepard said he was not at the Subcommittee meeting or the Commission meeting last month, but he read the information many times. Commissioner Shepard said he did not think he would have made any different decision. If the RFP was re-bid, providers might choose not to bid again. Both providers might walk. Since the Commission was here to protect the public, Commissioner Shepard was not willing to take that chance. There were some semantical differences, but the right decision was made. Commissioner Shepard did not want to put it back out for bid.
Chairperson Gale asked if it was an annual RFP. Director Tyrrell said there was the original RFP plus 5 renewals, but the Commission could put out an RFP any time they chose.
Commissioner Johnson asked if Colorado went back to WUGI. Director Tyrrell said he did not know if they went back out for bid this year, and did not know about New Mexico either. The Commission was unable to do more than a one-year contract last year. Colorado=s renewal period was a month later, and Director Tyrrell did not know their RFP process.
Commissioner Johnson said that one of the factors, that RISC had 13 of 13 state-mandated programs, indicated their price and service was pretty good. Chairperson Gale said he did not think there was any question that RISC was a competitive, quality company. It was not just a matter of coverage and price. Other significant considerations included the deductible, requirements for coverage, trust account coverage, the ability to take credit cards, licensees having a choice of attorney, and being able to purchase a group plan in the company name. They were not all directly dollar amount issues, but substantive coverage issues. Many of the issues weighed in favor of WUGI. Some dollar issues may have been raised, but there would have to be a new RFP. The issues would pretty much remain the same, and were of importance to the Commission. Chairperson Gale said he did not see that the Commission had reached the bar to justify re-bidding.
A motion was made by Moline and seconded by Wiebusch to reaffirm the previous vote to award the errors and omissions insurance plan contract to Williams Underwriting Group Inc. for calendar year 2005. Commissioner Moline offered a friendly amendment to inform RISC and WUGI of the decision, and the amendment was accepted by the seconder. Motion carried with Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson voting nay.
2004 Agency Comprehensive Information Technology Plan
Director Tyrrell presented an exhibit which consisted of the Commission=s 2004 Agency Comprehensive Information Technology Plan. A copy of said exhibit is attached to and made a part of these minutes.
After discussion, a motion was made by Wiebusch and seconded by Poskochil to adopt the plan as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.
2003-2004 Objectives - Final Report
Director Tyrrell presented an exhibit which consisted of the Commission=s 2003-2004 objectives, and how those objectives were met. A copy of said exhibit is attached to and made a part of these minutes.
Chairperson Gale asked if the Commission website had a frequently asked questions (FAQ) section. Commissioner Moline noted the Consumer Guide was there. Director Tyrrell noted there were also links to the Better Business Bureau, Nebraska counties, etc. Chairperson Gale asked about links for businesses starting up. Director Tyrrell said that, if a broker was starting up a business, the Commission had a link to a page of instructions with links for the forms needed. Chairperson Gale said the Commission should continue to focus on accessibility and consumer- friendly information. Chairperson Gale noted the state=s website had an FAQ section and portal links. Chairperson Gale said his comments were not necessarily for the Commission=s objectives. Chairperson Gale also noted his staff had been doing the Secretary of State=s website internally, and had now gone to Nebrask@ On-Line to redesign and upgrade it. Director Tyrrell said the Commission had a webmaster, and she was constantly working with Nebrask@ On-Line. The Commission=s website had won an ARELLO award, and was submitted to rating services to get feedback.
No action was necessary on the report.
ARELLO Joint District Meeting held June 24-27, 2004 - Report of Attendees
Director Tyrrell noted that the ARELLO Mid-Year Meeting was held on June 24-27, 2004.
Commissioner Wiebusch said it was nice to meet with the Southern District. Our district met and voted to try to do a joint district meeting every time. The Southern District had invited our district to their meeting in Nashville next July, and Commissioner Wiebusch encouraged the Commissioners to attend. The conferences were better and more substantial if districts did it together, and it built camaraderie between districts. Commissioner Wiebusch encouraged holding combined district meetings in the future. This was a good meeting. Commissioner Wiebusch talked with other ARELLO members about putting together written guidelines for district vice presidents to use for guidance regarding their responsibilities.
Commissioner Johnson said that ARELLO meetings were great. Staff had gone for years, which provided continuity. They knew what was expected of participants. Commissioners passed through in just a few years. The Commission should be proud of Commissioner Wiebusch, who was very active as District Vice President, and spent a lot of time on strategic planning. Commissioner Wiebusch had quite a bit of input, but now that she has learned the ropes, her time was up. That was how it worked. This meeting had excellent outside speakers, and roundtables so that attendees could talk to other jurisdictions. Time limitations prevented doing more. There was value in networking outside the structured meetings. Commissioner Johnson said Nebraska appreciated what Commissioner Wiebusch had done in a short period of time.
Deputy Director Hoffman said people learned more with the districts holding meetings together. The strength was that the meetings were small enough to get acquainted, learn different ways to accomplish goals, and share mistakes and successes. Commissioner Wiebusch had been in charge of the meetings, and handled her responsibilities beautifully without much guidance.
Director Tyrrell echoed the other attendees= sentiments. Commissioner Wiebusch handled a difficult situation this year, when the district meeting was abruptly not hosted by North Dakota. Commissioner Wiebusch did a great job lining up the joint district meeting with Richard Strader. Director Tyrrell said the district meeting was probably the most important of the year, to pick up on what was going on in other jurisdictions.
Commissioner Johnson said he found the law committee review very valuable. Tom Miller was very good at that, and he always looked forward to it.
No action was necessary on this report.
ARELLO Annual Meeting - Registration Deadline August 27
Director Tyrrell noted that the ARELLO Annual Meeting registration deadline is August 27, 2004. Director Tyrrell urged the Commissioners to contact Monica regarding registration and make their hotel reservations as soon as possible. Commissioners Johnson, Poskochil, and Shepard, and future Commissioner Grady, were planning to attend.
No action was necessary on this report.
REEA Meeting - Report of Attendee
Deputy Director Hoffman attended the Real Estate Educators Association (REEA) meeting, which was held prior to the district meeting. The Association included college professors, publishers, instructors, and regulators. It was a wide and diverse group with a common interest in real estate education. The jurisdictions gave updates on their education programs. 2 or 3 jurisdictions were beefing up post-license education, which was required during the first year after licensure. Approximately the same number were phasing out post-license education, and concentrating on pre-license. It was harder to enforce post-license education, which involved revoking an issued license, than pre-license. People could argue both sides. The issue of having more diverse classrooms was also addressed, with licensees having a wide range of abilities and backgrounds. There was a legal review of recent cases which brought current cases to the classroom. There was also a talent parade, which gave workshop providers 20 minutes to encapsulate their programs, and helped regulators to decide who to book for future instructor development workshops. It was time well spent, and it was nice to be back.
Commissioner Poskochil asked if there were geographic trends among jurisdictions regarding pre-license and post-license education. Deputy Director Hoffman said no, she did not see geographic patterns. People were looking to make education more valuable in both cases, by adding hours and making subjects more substantial, and taking out peripheral subject matter. How jurisdictions were doing it was inconsistent.
No action was necessary on this report.
Errors and Omissions Insurance Loss Report - Second Quarter 2004
Director Tyrrell presented the Errors and Omissions Insurance Loss Report - Second Quarter 2004. A copy of said report is attached to and made a part of these minutes.
Director Tyrrell noted that there was nothing unusual in the report. Some were 2004 claims, and others were under the equivalent policies from previous years.
Chairperson Gale noted that most claims were in the $2000 range, except for two, and asked if they were both settled. Director Tyrrell said yes. Commissioner Wiebusch asked about the question marks. Director Tyrrell said that meant they were unsure of the allegations. Ms. Rice Grissom clarified that question marks indicated that, at the time of the report, the person adjusting the claim did not have enough information or was not far into the allegations.
No action was necessary on this report.
Amendments to Title 299, Chapter 8, Errors and Omissions
Director Tyrrell reported that the amendments to Title 299, Chapter 8, Errors and Omissions Insurance, were approved by the Governor on August 2, 2004, and were effective August 7, 2004.
Chairperson Gale asked about approval timing. Director Tyrrell noted that each level of approval had 45 days, but it was not a drop-dead deadline.
No action was necessary on this report.
Trust Account Examination Evaluation Report - Second Quarter 2004
Director Tyrrell presented the Trust Account Examination Evaluation Report - Second Quarter 2004. A copy of said report is attached to and made a part of these minutes.
Director Tyrrell reported that comments were again very positive. Chairperson Gale asked that Director Tyrrell give the examiners the Commission=s compliments for doing a good job. Director Tyrrell said he always did.
No action was necessary on this report.
ARELLO Investigator Workshop - Report of Attendee
Deputy Director Mayrose said the ARELLO Investigator Workshop was held in Denver last weekend, and was well-attended. Content included statement analysis, appraisals, and a legal update. The interaction with counterparts from other jurisdictions was valuable. The presenters were good and made the content interesting.
No action was necessary on this report.
Director Tyrrell presented the Special Resolution honoring Commissioner Wiebusch for her service to the Commission. A copy of said resolution is attached to and made a part of these minutes.
A motion was made by Moline and seconded by Johnson to ratify the resolution, and to give great thanks to Commissioner Wiebusch for her service to the Commission. The Commission adopted the resolution by acclamation, then decided a roll call vote was required. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, and Gale voting aye, and with Wiebusch abstaining.
Chairperson Gale expressed his appreciation for Commissioner Wiebusch, who could always be counted on as a Commissioner and as Acting Chairperson.
Future Meeting Dates
Recesses and Adjournment
At 11:48 a.m., Chairperson Gale declared a brief recess, and reconvened the meeting at 12:03 p.m.
At 12:45 p.m., Chairperson Gale declared a recess for lunch, and reconvened the meeting at 1:35 p.m.
At 3:15 p.m., Chairperson Gale declared a brief recess, and reconvened the meeting at 3:28 p.m.
At 5:10 p.m. on August 17, there being no further business to come before the Commission, a motion was made by Wiebusch 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 August 17, 2004, meeting of the Nebraska Real Estate Commission were available for inspection on August 31, 2004, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska.
Guests Signing the Guest List
Janet Palmtag, Nebraska REALTORS7 Association, Nebraska City
Henry Kammandel, Nebraska REALTORS7 Association, Omaha
Thomas Dover, Nebraska REALTORS7 Association, Norfolk
Wes Grady, Gateway Realty, North Platte
Joe Valenti, CBSHOME, Omaha
Cindy Rice Grissom, Rice Insurance Services Company LLC, Louisville, KY
Loel P. Brooks, Rice Insurance Services Company LLC, Lincoln