NEBRASKA REAL ESTATE COMMISSIONMarch 17, 2005
Goldenrod Room Ramada Limited South Lincoln, Nebraska
Chairperson Gale convened a meeting of the Nebraska Real Estate Commission at 9:10 a.m. on March 17, 2005, in the Goldenrod Room of the Ramada Limited South, located at 1511 Center Park Road in Lincoln, Nebraska. All of the members of the Real Estate Commission were present, with the exception of Commissioner Strand, who was absent and excused. Also present were Director Les Tyrrell, Deputy Director for Education Teresa Hoffman, Deputy Director for Enforcement Terry Mayrose, and Administrative Assistant Heidi Burklund. Abbie Widger, Special Assistant Attorney General and Counsel to the Commission, was present for the discussion items.
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 12b and 12c 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 Johnson to adopt the final agenda as presented. Motion carried with Grady, Johnson, Poskochil, Shepard, Moline, and Gale voting aye, and with Strand not participating or voting, being absent and excused.
Minutes of February 15-16, 2005
The minutes of the Commission meeting held on February 15-16, 2005, were considered.
Chairperson Gale said that the preparation of the minutes varied a lot on other boards on which he served. Chairperson Gale felt that the Commission=s minutes had gotten to the point of being a transcript, particularly on the informal special appearances, which Chairperson Gale felt were not required to be as detailed. On the other hand, minutes were too thin if they just said there was discussion and a motion. Ms. Burklund did a very thorough job, which was great, but Chairperson Gale did not know if it all was needed in the minutes. Director Tyrrell noted that content had ebbed and flowed through the years, and staff could prepare the minutes any way the Commissioners wanted.
Commissioner Johnson said he liked the minutes as they were, and that he liked to refresh his memory from the minutes. Commissioner Poskochil agreed, and said he did not know where one would draw the line. Ms. Burklund noted that there was not much in the minutes regarding the routine reports. She included more detail in policy discussions and special appearances, when the Commission was making or interpreting policy.
Commissioner Moline said that sometimes he did not remember making statements attributed to him, and that sometimes the intent was lost in the detail.
Chairperson Gale said minutes were usually for recording the voting, not the discussion. The Commission had some minutes that were 25-30 pages long, and the Commissioners had to read every line to make sure it was an accurate reflection of what was said. Commissioners did not have a transcript to compare it against, they just remembered the general discussion. Chairperson Gale said staff needed to do more editing, and that informal special appearances did not need as much detail.
Commissioner Shepard said he agreed with Commissioner Poskochil. He liked to look back at the minutes, and it would be tough making decisions whether to put something in or not. Commissioner Shepard did not think every word needed to be put down, but that the context was needed. Commissioner Shepard did not know if the Commission could get that without every word. Commissioner Shepard did not want to see the minutes with just the final result of a discussion. Commissioner Shepard said he had faith in Ms. Burklund that she could cut it back a bit if the Commission wanted.
Chairperson Gale said he wanted Director Tyrrell to review the minutes, and that he wanted to have general content but not every statement. Ms. Burklund=s job was to provide extensive documentation, and maybe Director Tyrrell could edit the minutes more.
After review, a motion was made by Poskochil and seconded by Shepard to approve the minutes as presented. Motion carried with Johnson, Poskochil, Shepard, and Moline voting aye, with Gale not voting, having been absent and excused for part of the meeting, with Grady not participating or voting, having being absent and excused for the meeting, and with Strand not participating or voting, being absent and excused.
Receipts and Expenditures Report
Director Tyrrell presented the Receipts and Expenditures Report for February. A copy of said report is attached to and made a part of these minutes.
Director Tyrrell noted that there was nothing unusual to report in Receipts The list of expenditures which were carried over to this month was attached, as requested at the previous meeting. Commissioner Moline said he liked having the list, because Commissioners did not have to look for exceptions in the report.
Director Tyrrell reported that Expenditures Category 554900, Other Contract Services, was over for the month due to website credit card fees and court reporters at hearings; and Category 583000, Furniture and Office Equipment, was over because staff bought a paper shredder to dispose of bank statements.
The cash fund balance as of February 28, 2005, was $1,037,661.82, which compared to a cash fund balance of $944,335.49 on February 29, 2004.
After discussion, a motion was made by Moline and seconded by Shepard to file the February Receipts and Expenditures Report for audit. Motion carried with Grady, Johnson, Poskochil, Shepard, Moline, and Gale voting aye, and with Strand not participating or voting, being absent and excused.
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 Poskochil to ratify issuance of the licenses as set forth in the report. Motion carried with Grady, Johnson, Poskochil, Shepard, Moline, and Gale voting aye, and with Strand not participating or voting, being absent and excused.
Examination Report - February
Deputy Director Hoffman presented for ratification the February Examination Report, a copy of which is attached to and made a part of these minutes.
After review, a motion was made by Moline and seconded by Shepard to ratify the February Examination Report for the purpose of issuing licenses. Motion carried with Grady, Johnson, Poskochil, Shepard, Moline, and Gale voting aye, and with Strand not participating or voting, being absent and excused.
Real Estate Education Matters
Pre-License Education Instructor Approval
Deputy Director Hoffman presented for ratification the Pre-License Education Instructor Approval Report, a copy of which is attached to and made a part of these minutes.
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 Moline and seconded by Johnson to ratify the reports. Motion carried with Grady, Johnson, Poskochil, Shepard, Moline, and Gale voting aye, and with Strand not participating or voting, being absent and excused.
Consultation on a Continuing Education Activity Application
Deputy Director Hoffman presented an exhibit regarding a continuing education activity application, a copy of which is attached to and made a part of these minutes.
Deputy Director Hoffman said she sought the Commission=s guidance regarding the activity. Deputy Director Hoffman felt the subject matter concerning self-directed individual retirement accounts (IRAs) was very sophisticated, and might cause a licensee to give financial advice.
Commissioner Poskochil said the Commission should not appear to endorse licensees trying to act as financial advisors, and should not approve the course.
Commissioner Johnson said the goal should be to get licensees knowledgeable enough to know when they are not knowledgeable enough, and let them know when they need expert input, so they would let the client know that was an option. If the course content could be tempered to let licensees know what resources were available for clients, that might be approvable. Commissioner Johnson did not think licensees themselves had enough knowledge to address this subject without the appropriate license.
Deputy Director Hoffman said that marketing products should happen outside the classroom. Commissioner Johnson asked if the course was approved in other jurisdictions. Deputy Director Hoffman said that Colorado was the only jurisdiction referenced. Commissioner Grady said the material stated there were a lot of them. Deputy Director Hoffman agreed, but the only specific one mentioned was Colorado.
Commissioner Moline noted that the provider could run the course without credit, but they were seeking continuing education approval to get more people to come. Deputy Director Hoffman said she had discussions with the provider regarding marketing contained in the course, and that they had removed most product promotion. Commissioner Poskochil said the Commission did not want to give credit for self-promotion.
A motion was made by Poskochil and seconded by Johnson to reject the activity. Motion carried with Grady, Johnson, Poskochil, Shepard, Moline, and Gale voting aye, and with Strand not participating or voting, being absent and excused.
Instructor Development Workshop
Deputy Director Hoffman presented an exhibit regarding the instructor development workshop, a copy of which is attached to and made a part of these minutes.
Commissioner Moline noted that instructor development workshops were very good. Deputy Director Hoffman noted that this one would be half a day longer than usual, because a representative from Williams Underwriting Group Inc. would be there to discuss risk management. The costs were estimated on the high end. Commissioner Moline asked if staff would market it extensively. Deputy Director Hoffman said that mailings would be sent to all pre-license instructors and continuing education providers, and that providers were encouraged to bring potential instructors as well. Rod Faubion from Great Plains School of Real Estate had offered the Commission the use of his newly-remodeled facility at no charge, and Deputy Director Hoffman appreciated his support.
A motion was made by Moline and seconded by Shepard to approve the expenditures for the instructor development workshop. Motion carried with Grady, Johnson, Poskochil, Shepard, Moline, and Gale voting aye, and with Strand not participating or voting, being absent and excused.
Emphasizing Risk Management Report
Deputy Director Hoffman noted that the Commission had discussed emphasizing risk management for licensees a few months ago. Deputy Director Hoffman had researched the topic on the Internet, and found that courses most often focused on financial fraud and protecting databases and records. For our industry, areas of focus included agency, Seller Property Condition Disclosure Statements, handling trust funds, fair housing compliance, and adhering to ethical practices. Deputy Director Hoffman noted that the Commission was already emphasizing these areas by designating them as R courses. She suggested that the next step was to give the instructors training in making risk reduction a part of each of their courses. That was why she had invited Richard Williams to the instructor development workshop to address how to reduce risk and how to incorporate it into both pre-license and continuing education courses.
Deputy Director Hoffman said the Commission had also discussed putting articles in the Commission Comment regarding risk reduction. In trying to develop a series of articles, she contacted REEA member authors, but had not yet been successful. Some articles that were available will need editing to be specific to Nebraska. Richard Williams will be doing an article on basic office skills regarding documentation, responsiveness, and paperwork.
Commissioner Moline thanked Deputy Director Hoffman for addressing one of his highest priority issues. Commissioner Moline said there were articles in the paper regarding responsibility and liability for protecting identity-related information, and he did not know if it was covered under errors and omissions insurance. Chairperson Gale said that most information was being entered into databases, which seemed more vulnerable than if it was in a file. Counsel Widger asked if the Commission wanted an article on these concerns. Commissioner Moline said yes, and that it should encourage licensees to talk to their legal counsel. Director Tyrrell said that staff was preparing a newsletter, and will include such an article.
Chairperson Gale asked about the security of the Commission=s information. Ms. Burklund noted that the state tested agencies periodically, and the Commission had good results. The database information on the website was limited to public information which was scraped and posted to the website. The majority of the Commission=s database never left the office.
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.
Deputy Director Mayrose asked for the Commission=s comments on the investigative reports. Chairperson Gale said that probable cause findings should not be as much a burden on the Commission as finding fact on the matter. If there was too much information, it seemed like the Commission was passing judgment. When Chairperson Gale was involved with a grand jury, only summarized findings were presented. Deputy Director Mayrose=s work was to summarize the findings so that the Commission could make a preliminary finding of probable cause, but not give all the details. The reports were moving in right direction. There were two potential impacts of providing too much detail. If all the facts were presented in every detail, that may eliminate the need for hearings, which would be a benefit. At the same time, that was a whole lot of burden on the investigator and the board to weigh in on the facts without having the documents.
Counsel Widger said that it cut down on attorney fees to have the investigator do preliminary work during an expansive investigation, such as contacting witnesses and getting documents. It was helpful from her perspective.
Commissioner Moline asked that the investigative reports be kept as short as possible.
Director Tyrrell asked the Commission to contact staff at any time if they had a comment or idea on the investigative reports. Staff were willing to make them the way the Commission wanted.
Commissioner Moline noted that Deputy Director Mayrose had a difficult job, and he appreciated that. Chairperson Gale said he did not mean to diminish what Deputy Director Mayrose provided. Deputy Director Mayrose did an outstanding job and that the Commission was fortunate to have a person of his investigative ability. Chairperson Gale just did not know whether the Commission needed to know every detail. It was difficult to get through the investigative reports. The Commission relied on Deputy Director Mayrose=s judgment anyway, having done a full investigation preparatory to the hearing. The Commission was just doing probable cause, and needed just enough to decide whether to go to hearing. Some Commissioners liked to have all the facts, and some did not.
Commissioner Grady said he appreciated the investigative reports, and how they summarized the information gathered. Commissioner Grady thought they were concise and extremely good.
Regarding the summary sheet, Director Tyrrell noted that the Voss appeal had been dismissed due to a procedural error, i.e., it being filed in the wrong office. The issue had not been adjudicated. There would be a hearing on the Zitek appeal on April 26.
No action was necessary on this report.
The following sworn complaints and investigative matters were presented to the Commission:
Presentation of Stipulation and Consent Orders
Complaint #2004-051, Timothy E. Kuchta vs. Donald Christopher Miller
Deputy Director Mayrose presented a stipulation and consent order in the matter of Complaint #2004-051, Timothy E. Kuchta vs. Donald Christopher Miller. A copy of said order is attached to and made a part of these minutes. Mr. Miller was not present.
Deputy Director Mayrose reviewed the circumstances involved and noted the provisions of the order, which had been signed by Mr. Miller. The order specified a censure plus three hours of additional continuing education in ethics, to be completed within 90 days.
After discussion, a motion was made by Moline and seconded by Johnson to enter into the order as presented. Motion carried with Grady, Johnson, Poskochil, Shepard, Moline, and Gale voting aye, and with Strand not participating or voting, being absent and excused.
March 17, 10:00 a.m. - Complaint #2004-051,
The hearing scheduled for Complaint #2004-051, Timothy E. Kuchta vs. Donald Christopher Miller, was continued pending presentation of a stipulation and consent order.
March 18, 9:30 a.m. - Complaint #2004-061,
The hearing scheduled for Complaint #2004-061, Commission vs. Stuart B. Mills, was continued to May 16, 2005, at 10:00 a.m.
Informal Special Appearances
Patrick Chase, Potential Applicant - Reappearance
Director Tyrrell presented exhibits which included correspondence regarding Mr. Chase=s special appearance, Mr. Chase=s previous special appearance exhibit, and additional information which the Commission had requested. A copy of said exhibits are attached to and made a part of these minutes. Mr. Chase was present.
Chairperson Gale reviewed the procedure for informal special appearances.
Mr. Chase said he thought he got all the documentation requested of him. There was one reference he had not yet received, but he had submitted three other reference letters, court documents showing that the charges all stemmed from same date, a statement from his parole officer, and an affidavit from his ex-fiancee.
Chairperson Gale said that the fact Mr. Chase was lacking one letter did not impact his sense that Mr. Chase provided what the Commission asked for in good faith. Chairperson Gale asked Mr. Chase what in his situation met the Commission=s guidelines requiring extraordinary circumstances to overcome a felony violent crime.
Mr. Chase said the board could see that the crime was an isolated incident. He had no criminal background to speak of, just charges for disturbing the peace and minor in possession when he was younger. Since completing his sentence, he had moved up quickly in the mortgage management company, and strove to improve his career. This charge had very much hindered that, which it should. Mr. Chase was not trying to minimize the crime he had committed, but it was an isolated incident, and there was no way it would every happen again, or a crime of any other nature. A real estate license was required for companies with whom he wanted to pursue his career. Mr. Chase said he understood the guidelines were in place for good reason. He had provided the board everything they had required. Mr. Chase did not know if his situation was extraordinary, but something like that would never happen again. He hoped the board would help him get over this hurdle, and get on with his life.
Chairperson Gale said he was impressed that Mr. Chase=s parole officer and ex-fiancee were both supportive, and that his partner said he had good business sense.
After discussion, a motion was made by Shepard and seconded by Johnson to allow Mr. Chase to sit for the salesperson examination after making proper application and to have a license issued upon passing.
Chairperson Gale asked the mover and seconder to consider imposing the conditions that Mr. Chase must notify his initial employing broker of his criminal conviction(s) and the circumstances of the conviction(s); the employing broker must confirm said notification in writing to the Commission prior to issuance of the license; and that Mr. Chase must immediately notify Commission staff of any criminal charge which could result in jail time during his first two years of licensure. Both the mover and seconder accepted the amendment.
Commissioner Grady said he recently made a presentation to his peers, and one concern was how the Commission allowed some applicants with problem histories to sit for the examination. They were very emphatic for the level of standards set for someone to enter the real estate industry. Chairperson Gale said he agreed with them, and had a pretty strong view of past history indicating future performance. Commissioner Grady said he brought that concern from his peers, and himself.
Commissioner Shepard said he heard the same things all the time, from his office and other offices. His answer was that there was a very capable group sitting on our board, with a great deal of information on the situation. When others saw it, it was two lines in the Nebraska REALTORS7 Association newsletter, and they did not have the full picture. Commissioner Shepard said he had discussed this problem with Perre Neilan. Commissioner Shepard thought the Commission did a good job.
Chairperson Gale said the Commission struggled with it, and spent an awful lot of time on special appearances. The Commission had set the guidelines. Applicants could no longer get away with providing false information on the application, due to the fingerprint-based criminal history search. Some applicants with criminal histories have not been allowed to be licensed, and some have. At an informal special appearance, the Commission was almost sitting as a judge and jury, assessing the character, values, and honesty of applicants by how they addressed their convictions. Some applicants blamed others or the system, which did not pass muster. There must be sincere remorse for the crime committed, clear evidence that they have rehabilitated their lives, and good conduct toward their family, career, and community. The Commissioners weighed those factors pretty closely, and were aware of the potential negative impact on the industry. Chairperson Gale had run into this perception on the Pardons Board as well. The purpose was to have a mechanism for equity and to allow a person a new beginning, as well as the duty to maintain a high standard in the industry.
Commissioner Johnson said the Commission typically asked folks to not let them down. Commissioner Johnson asked that of Mr. Chase, too. Commissioner Johnson agreed that, as Commissioner Grady had said, Commissioners got questions from their peers about approving people, and it really helped if they did not let us down.
Motion carried with Johnson, Poskochil, Shepard, Moline, and Gale voting aye, with Grady voting nay, and with Strand not participating or voting, being absent and excused.
William C. Short, Potential Applicant
Director Tyrrell presented an exhibit which included correspondence regarding Mr. Short=s special appearance and information regarding Mr. Short=s criminal history. A copy of said exhibit is attached to and made a part of these minutes. Mr. Short was present.
Chairperson Gale reviewed the procedure for informal special appearances.
Mr. Short distributed letters from his probation officer and a real estate broker. A copy of said exhibit is attached to and made a part of these minutes, denoted as exhibit 12b1.
Mr. Short said he had been a life and health insurance agent for some years. On Memorial Day 2003, a former employee asked him to visit him in the hospital, because he had a stroke. The former employee said he had been turned down twice for benefits by Health and Human Services. Mr. Short looked into it, and found out the former employee had told them he owned property which he had not yet inherited. Mr. Short appealed it for him, and he was approved. The former employee asked Mr. Short to be his power of attorney and handle his affairs, which Mr. Short did. Due to financial problems, Mr. Short asked the former employee if he could use some of his funds to put some Afires@ out, and he said OK. Mr. Short was concerned that there was nothing on paper regarding the loan, so after about 6 months, Mr. Short asked him to sign a statement regarding the loan. Health and Human Services got involved, they got the police involved, and Mr. Short was arrested for abuse of a disabled adult. It looked like it was never going to go away, so Mr. Short pled guilty to a misdemeanor of attempted abuse of a vulnerable adult. Mr. Short was currently repaying the money, and it would not take long to pay off the $800 still owed. Mr. Short noted his character reference from a real estate broker. Mr. Short said he thought he could do a good job in real estate, and would like the opportunity to do so. In 28 years, he had only 2 complaints filed with the Department of Insurance. Chairperson Gale asked if Mr. Short=s insurance license was ever suspended or revoked. Mr. Short said no, and the complaints were from people who felt their policies should have performed better than they did. The complaints went nowhere, but people had a right to complain.
Chairperson Gale asked if Mr. Short sold insurance in Omaha. Mr. Short said he originally sold insurance in Newport News, VA. He did well, and when his manager started a corporation in Omaha, he moved here with his family in 1978, and it was home now. Chairperson Gale asked if the insurance business had supported him. Mr. Short said yes, he had been a member of the Million Dollar Round Table for 5 years in a row, and was Agent of the Year once.
Commissioner Poskochil asked how old the former employee was when he got sick and asked Mr. Short to be his power of attorney. Mr. Short said he had a stroke in his mid-forties. Commissioner Poskochil asked what circumstances had brought the situation to the attention of Health and Human Services. Mr. Short said the former employee was approved for welfare benefits, and was going into a nursing home. They were going to pay for the nursing home, and went looking for money. Commissioner Poskochil asked how they started investigating Mr. Short. Mr. Short said they interviewed him as the power of attorney, and asked why the money did not balance. Mr. Short told them and showed them the written permission, which had been a gentlemen=s agreement for a while until he put it in writing. Health and Human Services went to the police. Commissioner Poskochil asked if it was a fluctuating amount. Mr. Short said it did not exceed the total amount, and he had paid some back by the time it went to trial.
Commissioner Moline verified that there was never an original note. Mr. Short said no, it was a gentlemen=s agreement. Mr. Short thought he should have something in writing in case the former employee had another stroke, so he had him sign a statement.
Chairperson Gale said the guidelines stated that, unless there were extraordinary circumstances, a license will be denied if the sentence, probation, and restitution were not completed. It appeared that Mr. Short was still on probation, but near the end. Mr. Short said that was true.
Director Tyrrell noted that the Commission had previously allowed an applicant who was still on probation for a misdemeanor sit for the examination. Applicants still on probation for felonies had not been allowed to sit.
Commissioner Moline noted that the guidelines specified a felony violent crime or financial crime, and asked if felony only applied to violent crime. Chairperson Gale said his recollection was that felony applied to both, but other Commissioners may have a different recollection.
Commissioner Grady asked if Health and Human Services claimed 100% of the inheritance, and came after him because of that, or if they would only have been entitled to a portion of it. Mr. Short said that anything over $5000 would be considered theirs, as he understood it.
Chairperson Gale said the way he read the original paragraph, anyone with a felony or a pattern of convictions must come before the Commission, and others were at the discretion of staff. Chairperson Gale asked if Director Tyrrell recommended that Mr. Short appear. Director Tyrrell said he asked Mr. Short to appear because it was a financial matter. If it was not financial, he would probably not have appeared.
Chairperson Gale asked Director Tyrrell if felony apply to both violent and financial crimes. Director Tyrrell said he was not involved in the subcommittee discussions as the guidelines were developed. Counsel Widger said she did not remember that felony applied to financial crimes. She thought it was either a felony violent crime or a financial crime. The Commission=s concern was financial matters. Director Tyrrell said that was his interpretation. Commissioner Moline said that was his recollection as well.
Commissioner Poskochil asked if Mr. Short pled guilty. Mr. Short said he pled guilty to a lesser charge to put the matter behind him. The charge was abuse, and he pled guilty to attempted abuse.
Commissioner Grady noted that Mr. Short was well aware when the former employee received the money that Health and Human Services was entitled to it. Mr. Short said yes. Mr. Short said that he currently paid the court, and the court paid the former employee. If any amount was over the asset limit, Health and Human Services seized it. Commissioner Grady asked if Mr. Short was aware of that at the time. Mr. Short said yes, and that he had paid back $1600 by putting it in his social services account. Health and Human Services was obligated to pay the nursing home for rest of his life, and he was a fairly young man. Commissioner Grady asked if Mr. Short knew it should not have been borrowable, and that it should have been paid to social services. Mr. Short said yes and no. He thought it was OK because the former employee signed a note. Mr. Short did not think he was breaking the law at the time.
Commissioner Poskochil asked Mr. Short why he became the power of attorney for his former employee, and asked if he served as power of attorney for others. Mr. Short said the former employee had no family, and that he did not have a power of attorney for anyone else. Commissioner Poskochil asked if Mr. Short was aware of the scrutiny power of attorneys received. Mr. Short said he now knew the fiduciary responsibility.
A motion was made by Grady and seconded by Johnson that Mr. Short not be allowed to sit at this time, and he could reappear before the Commission after his probation and restitution were completed.
Commissioner Moline noted that, when Mr. Short comes back, he will be off the Commission. Commissioner Moline was big on financial crimes. Mr. Short may have done this totally innocently, but to be the power of attorney and not have a note did not wash with him. Commissioner Moline said he will vote with the motion to deny. Commissioner Poskochil agreed.
Commissioner Shepard asked if Mr. Short would have to come back if his request was denied today. Director Tyrrell said Mr. Short would contact staff whenever he wished to reappear. If he requested a reappearance or filed an application, he would reappear. If he did not, the Commission would not see him again.
A vote was taken on the pending motion. Motion carried with Grady, Johnson, Poskochil, Shepard, Moline, and Gale voting aye, and with Strand not participating or voting, being absent and excused.
Christina R. (Gillespie) Wilcox, Potential Applicant
Director Tyrrell presented an exhibit which included correspondence regarding Ms. Wilcox=s special appearance and information regarding Ms. Wilcox=s criminal history. A copy of said exhibit is attached to and made a part of these minutes. Ms. Wilcox was present.
Chairperson Gale reviewed the procedure for informal special appearances.
Ms. Wilcox said she was here because she would like to continue her schooling and become a real estate agent. She had a felony record. In 1998, when she was about 19, she made some bad choices in her life. She and a friend had taken money from an acquaintance, who pressed charges against them, which led to her felony conviction. Ms. Wilcox was sentenced to a year of incarceration in York. She served a month in York, then was on work release in Omaha for about three months, then was released on parole. Ms. Wilcox had not been in trouble with the law otherwise, and had nothing else on her record. Ms. Wilcox said it was really hard getting a job because of the conviction. She wanted to choose a career that was not like her past jobs, so she chose real estate. She liked working with people, and this would be a lifelong career at which she would be really good.
Chairperson Gale noted that Ms. Wilcox had four children, and that she must be pretty busy with them. Ms. Wilcox said she was. Chairperson Gale said he was surprised at the severity of the punishment, to be convicted of a felony and incarcerated on the first offense. Ms. Wilcox said her accomplice only received a year of probation. Chairperson Gale asked if Ms. Wilcox denied guilt and went to trial. Ms. Wilcox said no, she had accepted responsibility for her actions, and complied with everything they wanted. Her lawyer had said she had a good chance of getting probation. The judge said he wanted to make an example of her. She never questioned the sentence, she just served her time and went on with her life. Chairperson Gale noted that the institution must have had confidence in her, since they paroled her quickly. Chairperson Gale asked if she had any other episodes since. Ms. Wilcox said she had not. Chairperson Gale asked how much money was involved. Ms. Wilcox said she did not remember exactly, but it was around $600.
Commissioner Grady said that, given that she was 19 at the time, many people could look back and say they had not made the wisest decisions at that age. Commissioner Grady asked what was her mindset that she thought she could abscond with another person=s paycheck and not get in trouble. Ms. Wilcox said she did not understand the question. Commissioner Grady said she had cashed the paycheck for him, then kept the money, and had no intention to give it to him. Commissioner Grady was asking how she could have not known there would be consequences. Ms. Wilcox said did not know. She noted that she did not cash the paycheck, but they gave the victim a ride when he went to cash the check. Ms. Wilcox said she may have given him reason to believe they would pay it back, but they knew they were not going to. She was not sure what they were thinking at that time. Commissioner Grady asked if alcohol or drugs were involved. Ms. Wilcox said no, she was probably just too lazy and immature to get a job at that time, and take responsibility for her life. She did not have an answer to that.
Commissioner Poskochil asked if the people involved were all friends. Ms. Wilcox said the victim was older, in his late 20s. They were friends, but the victim was more of a friend of her accomplice, who was the same age as her. Commissioner Poskochil asked whose idea it was to take the money. Ms. Wilcox said she did not know, but it was probably both of them. Commissioner Poskochil asked how they decided to do it, and if it was planned in advance. Ms. Wilcox said it was not a sudden thing. She did not know how far in advance they had talked about it. She had tried to move on with her life, and did not remember that detail. Commissioner Poskochil noted that her accomplice got probation, and asked if Ms. Wilcox thought his testimony was that it was her idea. Ms. Wilcox said it could have been. Commissioner Poskochil said he wanted to find out whose idea it was. Ms. Wilcox said she did not think just one of them thought of it, but that both of them did.
Commissioner Moline said that, if the Commission allowed her to sit, there were certain responsibilities that went with that. Licensees had to keep track of earnest money. Commissioner Moline asked if anything else was going to show up on her criminal history background check. Ms. Wilcox said no. Commissioner Moline asked if she had any other contacts with law enforcement. Ms. Wilcox said no, she never had a ticket or anything.
Commissioner Johnson asked where Ms. Wilcox currently lived. Ms. Wilcox said Norfolk. Commissioner Johnson asked if she had talked to any brokers. Ms. Wilcox said she was currently taking classes and was involved in a study group at a real estate company. She planned to work for them. Director Tyrrell noted that it was a satellite study group for correspondence courses.
Commissioner Shepard asked if the company knew she was here today, and if she had been open and honest with them. Ms. Wilcox said yes. Commissioner Shepard asked if she had any other job history besides raising her kids. Ms. Wilcox said she had been a photographer, and her supervisor would write her a letter of recommendation. She had also worked in a nursing home. Commissioner Shepard asked her to verify that there was nothing else on her record. Ms. Wilcox said there was not.
Chairperson Gale asked if Ms. Wilcox had paid her full restitution. Ms. Wilcox said yes. Chairperson Gale asked if it had been split between her and her accomplice. Ms. Wilcox said she thought it was supposed to be split, but she had paid two payments of $310. Chairperson Gale asked if she had paid it all, plus court costs. Ms. Wilcox said yes.
Chairperson Gale asked if Ms. Wilcox had regular employment as a photographer. Ms. Wilcox said she had done that for 2 out of the 6 years, and otherwise had stayed home with the kids.
Commissioner Poskochil asked if Ms. Wilcox was soon to be married. Ms. Wilcox said yes. Commissioner Poskochil asked if her fiancee was employed. Ms. Wilcox said yes, he was a farmer. Commissioner Poskochil asked if they had any financial problems, a bankruptcy, or anything that would cause her to take earnest money funds. Ms. Wilcox said no.
Chairperson Gale recommended that, no matter what the Commission decided, Ms. Wilcox should consider applying for a pardon since it was close to 10 years since her conviction. It sounded like Ms. Wilcox was on a good path, and could probably be pardoned without much difficulty. Ms. Wilcox said she would keep it in mind.
After discussion, a motion was made by Moline and seconded by Shepard to allow Ms. Wilcox to sit for the salesperson examination after making proper application and to have a license issued upon passing, with the conditions that Ms. Wilcox must notify her initial employing broker of her criminal conviction(s) and the circumstances of the conviction(s); the employing broker must confirm said notification in writing to the Commission prior to issuance of the license; and that Ms. Wilcox must immediately notify Commission staff of any criminal charge which could result in jail time during her two years of licensure.
Commissioner Moline said he was death on financial crimes, but he could chalk it up to her being 19 and not too bright at that time. Commissioner Moline told her not to squander her second opportunity.
Motion carried with Moline, Poskochil, Shepard, and Gale voting aye, with Grady and Johnson voting nay, and with Strand not participating or voting, being absent and excused.
Chairperson Gale said the industry had high standards for truthfulness and honesty. The Commission expected the best from Ms. Wilcox, and asked that she be a role model and be successful in her career. The Commission put themselves on the line whenever they approved someone with criminal convictions, but the majority of those convinced the Commission that they were on the right path, could be a successful licensee, and could maintain high ethical standards. Chairperson Gale asked that Ms. Wilcox not let them down. Ms. Wilcox said she would not.
Proposed Amendments to Title 299, Chapter 2 - Advertise and Do Business in Multiple Trade Names
Director Tyrrell noted that this agenda item had been postponed from the previous Commission meeting, so that more than four Commissioners could participate in the discussion of the proposed amendments. Director Tyrrell presented an exhibit which included discussion points and enabling language changes to allow a business entity to have more than one trade name. A copy of said exhibit is attached to and made a part of these minutes.
Director Tyrrell reported that the issue had arisen from companies being threatened by other companies for advertising in names slightly different than the names registered with the Secretary of State=s office. Director Tyrrell gave the examples of companies that left Athe@ off the trade name in an advertisement, and using A.com@ after the trade name. Director Tyrrell thought these were minor issues, and saw no harm in filing as many related trade names as the companies desired. Chairperson Gale asked if the names were substantially related. Director Tyrrell said yes, they were all related.
Counsel Widger reviewed the first two discussion points, and Deputy Director Hoffman reviewed the database-related discussion points.
Commissioner Moline asked Counsel Widger what legal concerns she had. Counsel Widger said she did not know if there were legal issues, because the Commission could revise its regulations to read as desired. Commissioner Moline asked Counsel Widger if she had concerns regarding protection of the public with this change. Counsel Widger noted that she did not take the calls at the Commission office. From a prosecution standpoint, she did not have a problem. She did not know if it would cause confusion in the office.
Commissioner Moline noted that, with branch offices, staff did not know which employees worked at which branches until the end of the year, when the branch license was renewed. Commissioner Moline did not think policy should be set because of database capabilities. Commissioner Moline recalled the discussion about allowing a branch manager to manage more than one office. It was Commissioner Moline=s opinion that branch offices were managed better since the change, because the designated broker was not just looking for a placeholder with a broker license to manage the branch. Commissioner Moline said he thought this regulation change would not result in changes for the public. All the offices would have a trained manager at the office. Commissioner Moline had not yet heard of any damage to the public for allowing this change. The designated broker would still be held responsible.
Counsel Widger said that the issue with the public was confusion regarding whether a licensee worked for Home or Woods Bros. Commissioner Moline said the public would know that from the licensee=s business card, just like they do now.
Chairperson Gale said he was concerned about developing special legislation to benefit one company. He had not heard of support or interest in this issue from other companies or the Nebraska REALTORS7 Association.
Commissioner Moline asked the Commissioners to show him the harm, and suggested that maybe the Commission should ask other industry people about it. Chairperson Gale asked if the Commission was discussing allowing unrelated names just to benefit one company. Commissioner Moline said he did not know if any other company had ever asked. Chairperson Gale asked if it was requested by the Nebraska REALTORS7 Association. Counsel Widger said she had not been in communication with the Nebraska REALTORS7 Association regarding this issue, and they had not contacted the office. Director Tyrrell said that staff occasionally had contact with a broker wanting to have two companies, but that was not this issue. He had not received a lot of those calls, but has had some. The way the law was written, references were singular for a company. Currently, a designated broker could only be the broker for one company. The company could have various branch offices, but it was one legal entity. This change would still only allow a broker to have one company, but the company could have two or more trade names that were completely different.
Commissioner Shepard said that, if he wanted to buy Coldwell Banker, he could not be the designated broker for that company and Don Peterson Associates. Counsel Widger said that was correct. Commissioner Shepard could not operate as two different companies. This rule change did not change that. This rule change just allowed one company to have more than one trade name.
Commissioner Moline said therein lies the rub. If the entities were all within the same company, the designated broker could be the broker for both and have control of both. Otherwise, the designated broker would have to find a placeholder, and not be directly responsible for it. In the public=s mind, they could do business with either entity.
Director Tyrrell said the issue was basically that the public could be confused as to who owns the company, and who is the broker, if they were totally different trade names. Commissioner Moline asked what was the issue with that. Director Tyrrell said he did not know if it was an issue, but people had issues with everything. Commissioner Moline said he did not see a hue and cry to tell the Commissioners not to do this.
Chairperson Gale said that, with this rule change, there could be different trade names designated with the same broker, if they were owned by one company but had both trade names. A buyer might want an independent agent, and think that a licensee under the other trade name was an independent agent. Commissioner Moline said that buyers could currently get a separate buyer=s agent from within the same company. Chairperson Gale said that a member of the public who wanted an independent agent would think they had one if it was a company with a different name. Consumers went by the name on the door, not by the legal entity.
Commissioner Shepard that was already the case, and asked that the Commission talk about what they were talking about. In this case, Home Services owned both Home and Woods Bros. Commissioner Moline noted that 30% of all agents in the state essentially worked for the same entity. Commissioner Johnson agreed, but said the general public did not know that. Commissioner Moline said they did in Lincoln.
Chairperson Gale noted that Commissioner Strand was not in attendance, but he was the public member of the board. Chairperson Gale said he tried to act in that capacity also. If there was a potential of public harm, the Commission would need to decide.
Commissioner Moline suggested that the Commission hold a public hearing on the rule change and see who showed up.
Deputy Director Hoffman explained that if the Commission was considering allowing multiple trade names, they should know that licensees were tied to the broker in the database. The database does not have the capacity to further tie licensees to a trade name. Therefore, information beyond a licensee=s affiliation with a broker would not be readily available. This was not an easy fix, unless a transfer-type process would be required to move from broker/trade name 1 to broker/trade name 2. Commissioner Moline said he was willing to concede that, and pay the fee.
Director Tyrrell said he would have to look at the statute, because he did not think a transfer fee for moving within the same company was allowed. Even though one company was willing to do it, others would say they would not do it. Right now, transfers were done only between designated brokers. Deputy Director Hoffman said staff would not be able to tell at which trade name an employee worked. Director Tyrrell said staff could use the Aother@ address in the database. Commissioner Moline said that staff do that now with multiple branch offices.
Commissioner Poskochil asked Commissioner Moline to tell him why this change would benefit HomeServices. Commissioner Moline said his company=s structure required them to send paperwork to Washington DC any time there was a change. It was a nightmare of paperwork. The simplest way to do it was with this rule change.
At 12:50 p.m., Chairperson Gale was excused, and passed the gavel to Acting Chairperson Johnson since Commissioner Moline was the proponent of this issue.
Commissioner Poskochil asked if using multiple unrelated trade names was allowed in other states. Director Tyrrell said that other states allowed ownership of multiple companies, but they licensed the companies. Nebraska used to license companies in the 1970s, but it was discontinued because Nebraska licensees felt they were being double-taxed for the broker license and the company license. There were probably a number of jurisdictions that allow brokers to be designated brokers for multiple companies, and probably tracked licensees by tying them to the companies.
Commissioner Grady noted that, two meetings ago, Commissioner Moline said he would figure out a way to proceed if this change was not made. Commissioner Moline said he had indicated that his company would just have to live with the current situation. In Lincoln, it was always in the paper that both Home Real Estate and Woods Bros. were owned by Berkshire Hathaway. Marketing research showed that people chose agents, not companies. Commissioner Moline said he did not know how the public would get hurt by allowing this change. His company just got through rolling Home Real Estate into HomeServices, and wanted to move Woods Bros. in and keep doing business as is. Commissioner Moline did not know the cost of changing the database. Director Tyrrell estimated that it would be $40,000. Commissioner Moline noted that staff currently ask that companies tell the Commission when agents move offices, so mail was sent to the correct branch address. Commissioner Moline looked at this change as allowing flexibility to company structure. The Commission would still hold the agent and the branch manager responsible.
Commissioner Shepard asked if Commissioner Moline was against holding a public hearing on the issue. Commissioner Moline said no. Commissioner Shepard asked what was the procedure for a rule hearing. Director Tyrrell said staff tried to make sure the Commission agreed on the proposed change, so that the change would not get voted down after going to the expense of a hearing. Ordinarily, staff developed proposed language for Commission approval. When it was approved, the Commission instructed staff to set up a rule hearing, which had to be noticed under the Administrative Procedures Act and the Commission=s rules. Then the public hearing was held, so that anyone could come and discuss the change or submit written comments ahead of time. The Commission could then adopt the change as presented, amend the rule change based on the comments or testimony, or decide against making the change. Director Tyrrell said the rule hearing could be held during the May, June, or August meetings. It would be done in whatever way the Commission decided to proceed.
Commissioner Poskochil said he preferred that Commissioners Strand and Gale be in attendance for a decision. Commissioner Moline noted that full attendance was not always possible. Commissioner Moline asked that the Commission set it for a rule hearing if they thought it was reasonable. At the rule hearing, the Nebraska REALTORS7 Association could weigh in, and hopefully Commissioners Strand and Gale would be at the rule hearing to hear testimony on the issue.
Director Tyrrell asked Commissioners if they wanted to limit the number of trade names, and noted that the current proposed language did not limit the number. Acting Chairperson Johnson said he thought there should be some limit, just to be reasonable. Commissioner Grady said that, if the Commission allowed it, he did not know if numbers have anything to do with it. Either it was a good thing or not a good thing. There may be some software headaches, but there was nothing software people could not figure out, depending on the Commission=s appetite for spending money.
Commissioner Moline said he did not want to make policy decisions based on money. He did not want to spend it foolishly, but the expenditure would not break the Commission. Director Tyrrell said that, without a statutory change, the Commission needed to tie licensees to the designated broker. He was pretty sure that, statutorily, licensees could not transfer within one company. Director Tyrrell noted that changing the database would cost the same whether 2 or 10 trade names were allowed.
Commissioner Poskochil asked if there would be a reason for 100 different shops. Commissioner Moline said common sense would limit the number of trade names. He did not think there was a difference between allowing related or non-related trade names. It came back to the designated broker being held responsible.
Acting Chairperson Johnson asked if people would want trade names based on the office location. Commissioner Moline said no, because they could not market all those names. The key to marketing was a brand name, and you wanted the public to know who you were. Companies would not want to divide up into all these little names. Acting Chairperson Johnson said he was just talking about limiting competition.
Commissioner Shepard noted that HomeServices could do business as it wanted to now, they just could not have the same broker for both companies. It was not an issue of ownership, it was an issue of the designated broker. Under the current rule, there could be 10 companies owned by the same guy. Commissioner Moline noted that the owner would need 10 separate placeholders as the broker at each company. Commissioner Shepard noted that brokers could have branch offices, with managing brokers for each branch. Commissioner Moline said that, with cell phones and electronic advances, supervision had changed. Commissioner Moline asked if staff had any problems with more than one branch having the same manager. Director Tyrrell said no, but there were not that many.
Commissioner Moline asked, if the Commissioners could support the change, that the Commission decide on the language and set the rule hearing today. Then the Commission could invite the public to come and tell them what was good or bad about this rule change.
Counsel Widger reviewed the specific wording changes noted in the exhibit.
Commissioner Moline asked if staff had a laundry list of little fixes to be made. Counsel Widger said no, the rule hearing was only opening up this chapter. Ms. Burklund noted that the Commission usually stated in the motion that staff could make grammatical and punctuation changes if needed.
Acting Chairperson Johnson said he did not know for sure how many companies would be operating this way.
A motion was made by Poskochil and seconded by Grady to approve the language changes as presented and set a rule hearing, and to give staff permission to fix punctuation and grammatical errors. Motion carried with Grady, Moline, Poskochil, Shepard, and Johnson voting aye, and with Strand and Gale not participating or voting, being absent and excused.
Approval of Travel to ARELLO Advanced Investigator Workshop - August 18-20 in Louisville, KY
Director Tyrrell presented information regarding the costs of sending Deputy Director for Enforcement Mayrose to the ARELLO Advanced Investigator Workshop in Louisville, KY, on August 18-20, 2005. A copy of said exhibit is attached to and made a part of these minutes. Total cost was expected to be approximately $1209.00.
After discussion, a motion was made by Moline and seconded by Shepard to approve the expenditures as presented. Motion carried with Grady, Johnson, Poskochil, Shepard, Moline, and Gale voting aye, and with Strand not participating or voting, being absent and excused.
Proposed Response Letter to HearthStone Homes Inc. Regarding AOne Time Close Program@
Director Tyrrell presented an exhibit regarding HearthStone Homes Inc.=s AOne Time Close Program.@ A copy of said exhibit is attached to and made a part of these minutes.
Counsel Widger noted that this was a proposed response to the HearthStone Homes Inc. letter presented at the previous meeting. The Commission had directed staff to prepare a letter interpreting the policy. Currently, HearthStone Homes Inc. was the only company doing this program, and the Commission had not wanted to develop a policy based on one company. Counsel Widger drafted this letter instead of a formal policy interpretation.
Consensus of the Commission was that the proposed response should be sent to HearthStone Homes Inc., with the date corrected.
Director Tyrrell reviewed legislation of interest to the Commission.
LB 88 was approved by the Governor, and would be effective approximately September 1. During the Appropriations Committee hearing, senators quizzed Director Tyrrell about the increase in attorney fees. Commissioner Moline asked if the Commission had signed a contract with its new counsel. Director Tyrrell said they had worked out an agreement, but could not do a contract until the appointment letters were received. The Commission would operate as before, with its current attorneys, until the appointment letters were received.
No action was necessary on this report.
ARELLO Mid-Year Meeting - March 31-April 2 in Monterey, CA
Director Tyrrell noted that Commissioners Grady, Johnson, Poskochil, and Shepard were planning to attend the Mid-Year Meeting.
No action was necessary on this report.
Acting Chairperson Johnson asked if the remaining former Commissioners were generally notified when a former Commissioner passed away. Director Tyrrell apologized, and said it was his fault that former Commissioners were not notified of former Commissioner Schleich=s death. At the time, Director Tyrrell was out of the office, and he forgot to tell Deputy Director Hoffman to make the calls to former Commissioners. He normally called the Commissioners with whom the person had served on the Commission. Acting Chairperson Johnson noted that it was covered in both newspapers, and the Nebraska REALTORS7 Association did a good job of notifying people.
Future Meeting Dates
May 16-17, 2005 - Staybridge Suites, Lincoln
June 13-14, 2005 - Ramada Limited South, Lincoln
August 24-25, 2005 - Staybridge Suites, Lincoln
September 22-23, 2005 - Staybridge Suites, Lincoln
Recesses and Adjournment
At 10:05 a.m. on March 17, Chairperson Gale declared a brief recess, and reconvened the meeting at 10:25 a.m.
At 12:15 p.m. on March 17, Chairperson Gale declared a brief recess, and reconvened the meeting at 12:21 p.m.
At 1:28 p.m. on March 17, there being no further business to come before the Commission, a motion was made by Shepard and seconded by Moline that the meeting adjourn. Motion carried with Grady, Poskochil, Shepard, Moline, and Johnson voting aye, and with Strand and Gale not participating or voting, being absent and excused.
I, Les Tyrrell, Director of the Nebraska Real Estate Commission, do hereby certify that the foregoing minutes of the March 17, 2005, meeting of the Nebraska Real Estate Commission were available for inspection on March 29, 2005, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska.
Guests Signing the Guest List
Perre Neilan, Nebraska REALTORS7 Association, Lincoln
Ernest Faubion, NP Dodge/Great Plains, Omaha
Mark Wehner, CBSHOME Real Estate, Omaha
Janet Palmtag, Nebraska REALTORS7 Association/JJ Palmtag, Nebraska City
Beth Lube, Re/Max Real Estate Group, Omaha
Pat Hoppe, Re/Max Real Estate Group, Omaha