Acting Chairperson Grady convened a meeting of the Nebraska Real Estate Commission at 9:02 a.m. on December 4, 2008, in the Staybridge Room of the Staybridge Suites, located at 2701 Fletcher Avenue in Lincoln, Nebraska. All of the members of the Real Estate Commission were present, with the exception of Chairperson Gale, who was absent and excused. Also present were Director Les Tyrrell, Deputy Director for Education and Licensing Teresa Hoffman, Deputy Director for Enforcement Terry Mayrose, and Administrative Assistant Monica Rut.

Director Tyrrell presented a public notice and proofs of publication thereof relating to this meeting, all of which are attached to and made a part of these minutes. Acting Chairperson Grady reported that all Commissioners had been notified of the meeting simultaneously, in writing, and that a proposed tentative agenda accompanied the notification.

Acting Chairperson Grady pointed out to those in attendance that a public copy of the materials being used during the meeting were available to the public on the counsel table in the meeting room; that a copy of the Open Meetings Act was posted on the easel located in the northwest corner of the meeting room by the west entrance; and that the procedures followed were in accordance with the Open Meetings Act. Acting Chairperson Grady asked that guests sign the guest list.

Director Tyrrell noted that under agenda item 4, Receipts and Expenditures Reports, the November Report, had been added since the tentative agenda was mailed to the Commissioners.

After review of the final agenda, a motion was made by Griess and seconded by Leisey to adopt the final agenda as presented. Motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

The minutes of the Commission meeting held on October 30, 2008, were considered.

After review, a motion was made by Griess and seconded by Leisey to approve the minutes as presented. Motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

Director Tyrrell presented the Receipts and Expenditures Reports for October and November. A copy of each report is attached to and made a part of these minutes. Director Tyrrell noted that an explanation page was included in each report.

The cash fund balance as of October 31, 2008, was $450,284.87, which compared to a cash fund balance of $582,823.55 on October 31, 2007.

The cash fund balance as of November 30, 2008, was $689,242.16, which compared to a cash fund balance of $729,857.33 on November 30, 2007.

After discussion, a motion was made by Leisey and seconded by Dover to file the October and November Receipts and Expenditures Reports for audit. Motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

Director Tyrrell presented the Renewal Report. A copy of said report is attached to and made a part of these minutes.

No action was necessary on this report.

Specialized Registrations

Director Tyrrell presented a specialized registrations report which included the registration of an amendment to the time-share registration for ClubWyndham Access Vacation Ownership Plan (Non-Specific Site). A copy of said report is attached to and made a part of these minutes.

After discussion, a motion was made by Leisey and seconded by Griess to approve the amendment to the registration as presented. Motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

Deputy Director Hoffman presented for ratification the Nonresident 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 Leisey and seconded by Bohrer to ratify issuance of the licenses as set forth in the report. Motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

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

After review, a motion was made by Bohrer and seconded by Leisey to ratify the October Examination Report for the purpose of issuing licenses. Motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

Deputy Director Hoffman presented for discussion, a letter from Applied Measurement Professionals (AMP) regarding the utilization of fingerprint scans at the examination sites, a copy of which is attached to and made a part of these minutes.

Deputy Director Hoffman indicated that AMP had offered to provide fingerprint scans at the examination sites. She explained that AMP had discussed this option at a meeting she had attended. She understood that the fingerprints would not be compared to any existing data bank, they would be collected and cataloged in AMP’s data base for internal use only. She further explained that fingerprint scans would not replace the background checks required by the Commission, it would only be for the use of AMP or if there had been an identity discrepancy concern. She indicated that eventually the fingerprints could be used to compare with previous scans of candidates taking the examination multiple times.

Commissioner Griess asked if the examinees would still be required to provide identification at the examination sites. Deputy Director Hoffman confirmed that they would and indicated that she was unaware of any changes to the current requirements of examinees. She noted that since her employment began at the Real Estate Commission, she was only aware of one security concern. Director Tyrrell felt the only benefit to the fingerprint scans would be if there had been a security breach, such as someone taking the examination for someone else. He explained that he had some concerns with the fingerprint scanning process and felt that if the fingerprint scans were not being used for identity verification, then the process was redundant for the applicants. Acting Chairperson Grady felt that AMP was making progress and felt that perhaps the Commission needed to be moving in the same direction unless there was a downside. Director Tyrrell reiterated that when the fingerprints were scanned by AMP, they were put into an electronic file, no checks were conducted and the fingerprints would not be verified against any data bank.

Commissioner Dover did not feel that the fingerprints were necessary. Deputy Director Hoffman indicated that the fingerprints would be used for AMP’s internal use only. Commissioner Griess asked if the examinees would still have their picture taken. Deputy Director Hoffman confirmed they would. Director Tyrrell indicated the process would need to be reviewed further if the Commissioners were inclined to utilize the option. Commissioner Rouch asked if the Commission could review the process at a later time. Deputy Director Hoffman indicated that this service would be made available by AMP should the Commission want to revisit the option. Commissioner Griess felt that it was nice to know that this service was available, but did not feel that the Commission was ready for this process. Director Tyrrell indicated that over the past thirty years, he had only been aware of two times there had been discrepancies with the examination in which the pictures did not appear to reflect the correct examinee and both had been resolved satisfactorily.

It was the consensus of the Commission to defer this issue for now.

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

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

After review, a motion was made by Leisey and seconded by Dover to ratify the two reports. Motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

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

Director Tyrrell indicated that the Boyer-Young Appeal had been denied by the District Court; there had been no stay on penalty; they had completed their discipline; and they had until December 10, 2008, to appeal the District Court’s decision. Deputy Director Mayrose indicated that he had received notification that Kevin Irish had requested his license be placed on inactive status and that he was not interested in renewing his real estate license for 2009. Deputy Director Mayrose had also conducted a background check and Mr. Irish had been arrested for another alcohol related issue. Director Tyrrell indicated that if Mr. Irish would attempt to renew his license for 2009, he would be required to appear before the Commission prior to his license being renewed.

No action was necessary on this report.

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

Item A Complaint 2008-003 – Nancy S & Alfred A Chacon vs. Vincent W. Leisey, Brady Kieth Bock, Jennifer Lynn Hellman, Tasha Koren Henninger-Moss, Todd Allan Moss, Marti A. McEvoy and Gloria Plumer Ross

Prior to discussion of this matter, Commissioner Leisey 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 Griess and seconded by Bohrer that the complaint be dismissed without prejudice.

After further discussion, a friendly amendment was made by the mover to send a letter of admonishment to the Respondents. It was accepted by the second.

After discussion, the motion as amended carried with Bohrer, Dover, Griess, Rouch and Grady voting aye, with Leisey not participating or voting, having recused himself, thereby nullifying any potential conflict of interest, and with Gale not participating or voting, being absent and excused.

 

Item B Complaint 2008-010 – Robert F Wray vs. Sharron Lee Brown-Zimmer

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 Dover and seconded by Leisey that the complaint be dismissed without prejudice. After further discussion, motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

Item C Complaint 2008-015

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 Leisey and seconded by Bohrer that this complaint be held in abeyance and a new complaint be filed against the respondent per the Staff recommendation. Motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

 

Item D Complaint 2008-016

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 Leisey and seconded by Bohrer that the complaint be dismissed without prejudice, a letter of admonishment be sent to the Respondent, and a new complaint be filed on Neb. Rev. Stat. §76-2421 (1). Motion failed with Bohrer and Leisey voting aye, with Dover, Griess, Rouch and Grady voting nay, and with Gale not participating or voting, being absent and excused.

After discussion, a motion was made by Griess and seconded by Dover that this complaint be held in abeyance and a new complaint be filed against the respondent on Neb. Rev. Stat. §76-2421 (1) and Neb. Rev. Stat. §81-885.24 (11). Motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

Item E Complaint 2008-030

Prior to discussion of this matter, Commissioner Leisey 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 Griess and seconded by Dover that the complaint be set for hearing as per staff recommendation. Motion carried with Bohrer, Dover, Griess, Rouch and Grady voting aye, with Leisey not participating or voting, having recused himself, thereby nullifying any potential conflict of interest, and with Gale not participating or voting, being absent and excused.

Deputy Director Mayrose presented a Stipulation and Consent Order in the matter of Complaint 2007-064, Commission vs. John Steven Headlee. A copy of said Order is attached to and made a part of these minutes.

During discussion, it was noted that the language indicating the required continuing education was to be "…in addition to…" did not appear in the Stipulation. Consensus was that the Stipulation needed to be amended to include said language.

After discussion, a motion was made by Leisey and seconded by Dover to enter into the Order with the "…in addition to…" language included and if Respondent agreed to the amendment, Acting Chairperson Grady could enter into the Agreement. Motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

The Hearing regarding Complaint 2007-064, Commission vs. John Steven Headlee was continued.

Director Tyrrell presented an exhibit which included: correspondence regarding Mr. Poor= s special appearance; a letter of explanation from Mr. Poor; and correspondence regarding the previous special appearance; and an excerpt from the October 30, 2008 Meeting Minutes. A copy of said exhibit is attached to and made a part of these minutes. Mr. Poor was not present.

A motion was made by Dover and seconded by Rouch to reaffirm that Mr. Poor not be allowed to sit for the salesperson examination at this time. Motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

Deputy Director Hoffman presented an exhibit regarding the estimated costs of Commissioners and staff participating in regularly-attended meetings in 2009. A copy of said exhibit is attached to and made a part of these minutes. (Note: It was discovered prior to the meeting that the Exhibit for this Agenda Item was incorrect. The calculation had been incorrect for the REEA meeting. The correct information was made available for discussion and the Exhibit was corrected for attachment to these minutes.)

After discussion, a motion was made by Leisey and seconded by Dover to approve the reimbursement of expenditures for Commissioners and staff who attend the meetings set forth in the exhibit. Motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

Director Tyrrell presented an exhibit of the proposed hourly rate schedule for the special assistant attorneys general to become effective January 1, 2009. A copy of said exhibit is attached to and made a part of these Minutes.

It was the consensus of the Commission, that Director Tyrrell negotiate the fees schedule with the special assistant attorneys general.

Director Tyrrell presented two drafts of the proposed legislation to institute fining authority for the Commission as exhibits 15a & 15a1. A copy of each exhibit is attached to and made a part of these Minutes. Tammy Brookhouser of the Nebraska Realtors Association was in attendance to speak to this matter.

Director Tyrrell explained that Exhibit 15a which was mailed to the Commissioners in the Meeting packet did not contain the $2,500.00 limit per complaint as agreed to in concept between the Commission and the Association at the September Commission Meeting. This draft proposed the $2,500.00 limit be per violation.

Director Tyrrell reviewed Exhibit 15a1 setting out the reason for each proposed amendment including the $2,500.00 limit per complaint no matter how many violations for which guilt was found. He also explained that fines were distributed to the school districts in the county in which the fines were levied or imposed. Acting Chairperson Grady asked if a Hearing was conducted in a county other than Lancaster County would any fine levied or imposed go to the school districts of that county rather than Lancaster. Director Tyrrell indicated, as he understood it, since the Commission office was located in Lincoln, the fine was levied or imposed from there and any fine monies received would go to the Lancaster County school districts. But, he indicated he would look into the issue and report back to the Commission

There was a general discussion regarding the collection of the fines.

After discussion a motion was made by Dover and seconded by Griess to support the legislation as it appeared in exhibit 15a1. Motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

Director Tyrrell presented the Trust Account Examination Evaluation Report - Third Quarter 2008. A copy of said report is attached to and made a part of these minutes.

Director Tyrrell reviewed some of the comments received and how the situations were handled.

No action was necessary on this report.

January 22-23, 2009 - Hampton Inn - Airport, Lincoln

February 19-20, 2009 - Staybridge Suites, Lincoln

March 19-20, 2009 - Staybridge Suites, Lincoln

May 21-22, 2009 - Staybridge Suites, Lincoln

At 10:12 a.m., Acting Chairperson Grady declared a brief recess, and reconvened the meeting at 10:19 a.m.

At 11:17 a.m., there being no further business to come before the Commission, a motion was made by Griess and seconded by Bohrer that the meeting adjourn. Motion carried with Bohrer, Dover, Griess, Leisey, Rouch and Grady voting aye, with Gale not participating or voting, being absent and excused.

I, Les Tyrrell, Director of the Nebraska Real Estate Commission, do hereby certify that the foregoing minutes of the December 4, 2008, meeting of the Nebraska Real Estate Commission were available for inspection on December 9, 2008, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska.

Respectfully submitted,
Les Tyrrell
Director

Mark Leaders, CBSHOME Real Estate, Omaha
Kristen Anderson, Nebraska REALTORS7 Association, Lincoln
Tammy Brookhouser, Nebraska REALTORS7 Association, Lincoln
Tyler Richardson, Nebraska REALTORS7 Association, Lincoln