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 and a copy of the Open Meetings Act were available to the public on the counsel table in the meeting room, and that the procedures followed were in accordance with the Open Meetings Act. Chairperson Gale asked that guests sign the guest list.

The minutes of the Commission meeting held on March 6-7, 2008, were considered.

There was no receipts and expenditures report to be presented at the meeting.

Specialized Registrations

There were no specialized registrations to be presented at the meeting.

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.

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

Commissioner Poskochil indicated that the passing rate decreased significantly and thought the percentage had been lower than he had seen in years. Deputy Director Hoffman agreed the passing rates were low. Commissioner Leisey thought that smaller student to teacher ratio should have a more positive impact. Deputy Director Hoffman indicated that she would be visiting with the education instructors to get their perspective. Commissioner Dover asked if the low passing percentage was due to more correspondence and online classes. Deputy Director Hoffman indicated that ARELLO had been gathering and comparing course data from online providers and classroom providers. Deputy Director Hoffman indicated that at the fall ARELLO meeting, statistics had shown that distance education had been performing stronger than the classroom courses, in number of students passing licensing examinations. Commissioner Griess felt that when the quantity of applicants go down, so does the quality. Commissioner Grady indicated that recently an individual he knew had taken online pre-license courses and then took the test-prep course and that individual felt the combination had been helpful in passing the examination.

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

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

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

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

After review, a motion was made by Poskochil and seconded by Leisey to ratify the four reports. Motion carried with Dover, Grady, Griess, Leisey, Poskochil and Gale voting aye, with Bohrer 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 reported the decision made in Complaint 2007-005 was appealed.

No action was necessary on this report.

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

Deputy Director Mayrose presented a Stipulation and Consent Order in the matter of Complaint 2007-011, Kathryn Adkisson and Linda Vogt vs. Michael Ray Holroyd. A copy of said Order is attached to and made a part of these minutes.

Deputy Director Mayrose reviewed the circumstances involved and noted the provisions of the Order, which had been signed by Mr. Holroyd. The Order specified a two-year suspension, served on probation, plus twelve hours of additional continuing education, with three hours each in the areas of agency, contracts, license law and ethics, to be completed within 180 days of the date of the Order.

Deputy Director Mayrose presented a Stipulation and Consent Order in the matter of Complaint 2007-036, David L and Shelley M. Pokorny vs. James Wilbur Muller. A copy of said Order is attached to and made a part of these minutes.

Deputy Director Mayrose reviewed the circumstances involved and noted the provisions of the Order, which had been signed by Mr. Muller. The Order specified a censure for Mr. Muller plus six hours of additional continuing education, with three hours being in the area of agency, and three hours in the area of license law, to be completed within 180 days of the date of the Order.

A Hearing was held on April 3, at 9:30 a.m., in the matter of Complaint 2007-047, Commission vs. Gary Bert Stoneburg, Mark A. Nichols and Beverly Alice Nichols. Greg Barton, Special Assistant Attorney General and Counsel to the Commission, appeared for the Complainant. Respondents Gary Bert Stoneburg, Mark A. Nichols and Beverly Alice Nichols were present as were Counsel Mark Dickhute of Omaha representing Mr. Stoneburg and Counsel Doug Ruge of Omaha representing the Nichols.

Counsel Dickhute requested that the witnesses be sequestered. Chairperson Gale indicated that due to the facility restrictions and the lack of a bailiff that it would be impractical and denied Counsel Dickhute= s request.

After Opening Statements, Counsel Barton called Philip Holmquist as a witness. After cross-examination by Respondents= Counsels, it was agreed by Counsels that Mr. Holmquist could be excused from the remainder of the Hearing.

Counsel Barton offered six Exhibits and Counsels Ruge and Dickhute jointly offered twenty-three Exhibits, all of which were received by Chairperson Gale.

At 10:40 a.m., Chairperson Gale declared a brief recess, and reconvened the Hearing at 10:55 a.m.

Counsel Barton called Beverly Alice Nichols and Mark A. Nichols as witnesses.

At 12:20 a.m., Chairperson Gale declared a recess for lunch, and reconvened the hearing at 1:17 p.m.

Counsel Ruge conducted his direct examination along with the cross-examination of Mr. Nichols.

At 2:30 p.m., Chairperson Gale declared a brief recess, and reconvened the Hearing at 2:47 p.m.

Counsel Barton called Gary Bert Stoneburg as a witness.

At 3:30 p.m., Chairperson Gale declared a brief recess, and reconvened the Hearing at 3:33 p.m.

Counsel Dickhute called John S. Headlee as a witness. Chairperson Gale excused Mr. Headlee from the remainder of the Hearing with the consent of the Counsels.

After closing arguments had been presented, Chairperson Gale declared the Hearing concluded and gathered the original exhibits.

Prior to any motion the following occurred:

Chairperson Gale felt that the Commissioners needed to decide if the discussion should be separated by individual or as a group. Commissioner Leisey indicated that he would like to discuss Mr. Stoneburg first. Chairperson Gale concurred. Chairperson Gale indicated that there were interesting issues which involved Mr. Stoneburg and he was unsure what the obligations were for a second broker. Commissioner Leisey indicated that there were general practices to transfer to another broker. Commissioner Leisey did not think that it took most licensees a month and a half to transfer their license to a new broker. It usually takes a day or two. Commissioner Leisey indicated that common practice was the listing was between that broker and the seller. He indicated that in Omaha, most sellers felt they were listing with the agent and not the broker because of the relationship developed. He thought if the seller requested cancellation of the listing it would be cancelled. The common practice for referrals was to give the contact information for the new broker.

Commissioner Dover felt that designated brokers should be held to a higher standard and Mr. Stoneburg= s job was to question all of the paperwork that crossed his desk. He also thought that Mr. Stoneburg should not have signed the listing agreement if he did not know where it came from. He also felt that he should not have signed an agreement in which he was not involved. A referral and the commission received for that business was what brokers shared with their associates. He did not think the change in brokers had been handled properly.

Commissioner Poskochil did not think that Mr. Stoneburg received a valid referral, and if it had been a valid referral then there should have been an agreement between the brokers. He also felt that Mr. Stoneburg had knowledge of Mr. Nichols using his business forms. Commissioner Poskochil wondered if agency had been discussed with the client. He did not think Mr. Stoneburg took the proper steps to get the listing and did not think this was a recommended practice.

Commissioner Grady thought there were a lot of holes in Mr. Stoneburg= s story and a broker would not just receive anonymous listings. He thought it was Mr. Stoneburg= s responsibility to ask questions and find out where these anonymous listings came from.

Commissioner Griess felt designated brokers were responsible for others conducting business under the firm= s name and that licensees executing contracts needed to be affiliated with that company. She did not think that it was legal to deliver a contract to a broker to have it signed especially from a licensee who was not authorized to have that contract executed. She also noted that Mr. Stoneburg did not know the people who had signed the contract. He had no knowledge of who drafted the contract and no communication with the clients who had signed the contract. She did not believe the clients received an adequate agency explanation and did not think that in any way that this was a referral.

Chairperson Gale felt it was beneficial to listen to the other Commissioners in order to get a better perspective. Chairperson Gale felt the Nichols wanted to stay with the prior broker to receive their commissions and also wanted to get new clients under the new broker. He also indicated that the transfer process took the Nichols quite some time to complete and the new listings were just sitting there waiting for the Nichols. He felt that with deals pending Mr. Nichols wanted the best of both worlds and wanted to line up new listings with the new broker. He also noted that when someone puts listings under a door using your own stationary, questions should have been asked. The buck stops with the designated broker.

Commissioner Poskochil asked what the alleged violations were for Mr. Stoneburg since the paperwork had been confusing. The Commissioners and Counsels discussed what violations pertained to Mr. Stoneburg.

A motion was made by Poskochil that Mr. Stoneburg violated Title 299 Chapter 2-010, Neb. Rev. Stat. ' 81-885.24(26) and 81-885.24(29).

Commissioner Leisey indicated that Title 299 Chapter 2-010 had not been an issue and therefore he could not second this motion. He indicated that if the motion were for violation of Neb. Rev. Stat. ' 81-885.24(29) only, then he would be able to second the motion. Chairperson Gale felt that though the paperwork had been confusing, Neb. Rev. Stat. ' 81-885.24(29) would incorporate all three allegations.

Commissioner Poskochil withdrew his pending motion.

A motion was made by Poskochil and seconded by Leisey that Mr. Stoneburg violated Neb. Rev. Stat. ' 81-885.24(26) and ' 81-885.24(29).

Chairperson Gale indicated that he would like clarification from Counsels why during prehearing the attorneys had agreed to limit the violations to only Title 299 Chapter 2-010. Chairperson Gale indicated that it was the duty of the Nichols, but he did not read Title 299 Chaper 2-010 to include a duty to the broker. The duty was on the salesperson who was changing brokers. In the prehearing order it indicated that the Nichols failed to do their duty under Title 299 Chapter 2-010. Chairperson Gale did not want to commit an error by adopting violation that was not within the limitations of prehearing order. Counsel Barton indicated that was not the intent of the prehearing order and felt the allegation regarding Mr. Stoneburg was the violation of Neb. Rev. Stat. ' 81-885.24(29).

Commissioner Leisey indicated that he would be willing to make a motion based on the referral issue. However, he did not think that Mr. Stoneburg violated Title 299 Chapter 2-010.

Chairperson Gale asked for comments from Counsel Dickhute. Counsel Dickhute indicated that Title 299 Chapter 2-010 did not apply to Mr. Stoneburg since there was not a duty on him. However, the Commission would need to decide if he violated Nev. Rev. Stat. ' 81-885.24(29) due to negligence, incompetence or unworthiness. Chairperson Gale referred to the draftsmanship in the prehearing order and based upon the statutory references given by Staff and Counsel, it did not seem to limit the violations.

Commissioner Poskochil withdrew his pending motion. The second concurred.

A motion was made by Poskochil and seconded by Leisey that Mr. Stoneburg violated Neb. Rev. Stat. ' 81-885.24(29). Motion carried with Dover, Grady, Griess, Leisey, Poskochil and Gale voting aye, with Bohrer not participating or voting, being absent and excused.

Chairperson Gale opened the past disciplinary action envelope. It showed no prior disciplinary action against Mr. Stoneburg.

The Commissioners then discussed the penalty to be assessed.

Commissioner Leisey thought that Mr. Stoneburg made an error but did not think it had been intentional. He also felt that perhaps Mr. Stoneburg did not understand how to handle the situation and since all of the stories match up, he did not think that the penalty should be stiff. He thought a suitable penalty could be some suspension with probation. Chairperson Gale indicated that there appeared to be a lack of understanding among real estate licensees and it was important to make policies regarding these issues. He noted that due to Mr. Stoneburg having no previous disciplinary action and his years of experience, he would agree with Commissioner Leisey. Commissioner Grady did not think the procedures were handled appropriately by Mr. Stoneburg. Chairperson Gale thought that this was a major issue and did not want to degrade the importance of this issue. He felt Mr. Stoneburg= s office was sloppy and thought that they should be more attentive in the future. He also thought that public service and public interest had been neglected. However, did not think that it rose to the level of suspension. Commissioner Poskochil indicated that he did not want to take away Mr. Stoneburg= s livelyhood. However, he did think that the transfer process went on longer than normal. He also thought that Mr. Stoneburg was vague in his testimony and thought he was doing things incorrectly and looking the other way. He also thought that a broker could get business from clients fairly and did not think accepting anonymous contracts should be ignored. He did not think that Mr. Stoneburg made an honest mistake or was up-front with the Commission, since the listings were completed on his business forms. Therefore, he should get some discipline.

A motion was made by Grady that Mr. Stoneburg receive a 120-day suspension, all served on probation, plus twelve hours of additional continuing education as determined by Staff.

Chairperson Gale asked if the hours should be broken down by certain criteria. Director Tyrrell indicated that the Staff could break the hours down or it could included in the motion. Chairperson Gale asked for Director Tyrrell= s recommendation. Director Tyrrell indicated his recommendation would be three hours each in the areas of license law, agency, contracts and ethics.

A friendly amendment was made by Commissioner Grady to specify that the additional twelve hours of continuing education be three hours each in the areas of license law, agency, contracts and ethics.

The pending motion was seconded by Commissioner Dover.

Commissioner Leisey thought there had been too much continuing education given as a penalty for Mr. Stoneburg. Commissioner Poskochil indicated that there should be a longer probation period and less continuing education. However, the motion should include a completion time of the additional continuing education. Commissioner Grady felt that he should complete the additional continuing education during the period of suspension or 120 days. Chairperson Gale asked if there needed to be a specific number of days set out in the motion. Director Tyrrell suggested that the completion requirement be included in the motion. Commissioner Poskochil indicated that if Mr. Stoneburg had not completed the additional continuing education he would be able to request an extension which would be brought back to the Commission. Director Tyrrell indicated that if courses were not available during that period then he could request an extension. Commissioner Leisey thought four courses were excessive and that Mr. Stoneburg should be given 180 days to complete the additional continuing education courses.

Commissioner Poskochil thought that Mr. Stoneburg should receive a six-month suspension all served on probation. Commissioner Leisey was comfortable with that discipline. Chairperson Gale indicated that due to Mr. Stoneburg= s lack of any prior disciplinary actions that he would prefer the suspension of Mr. Stoneburg= s license be on the light side but include the additional continuing education requirement. Chairperson Gale indicated he was comfortable with the pending motion.

Motion carried with Dover, Grady, Griess, Leisey, Poskochil and Gale voting aye, with Bohrer not participating or voting, being absent and excused.

The discussion then turned to Mr. and Ms. Nichols. Commissioner Leisey felt that the Nichols should be discussed separately.

The discussion then focused on Ms. Nichols.

Commissioner Poskochil indicated that the allegations were the same for both Mr. and Ms. Nichols. Commissioner Grady felt that for purposes for moving through this agenda item, that he would be referring to Exhibit 11 which indicated seven allegations for both Mr. and Ms. Nichols. Commissioner Poskochil did not think that the Commissioners should refer to Exhibit 11. Chairperson Gale indicated that since he had not received briefs from the Counsels, he was struggling to act as both the Chairperson and a lawyer.

The allegations were reviewed by the Commissioners and Counsels, it was decided that discussion would resume regarding Ms. Nichols after a brief recess.

At 5:35 p.m., Chairperson Gale declared a brief recess, and reconvened the Hearing at 5:54 p.m.

Commissioner Poskochil thought that agency disclosure was definitely violated as stated in Neb. Rev. Stat. ' 76-2421(1) and Ms. Nichols had also violated Neb. Rev. Stat. ' 81-885.24(7). Commissioner Leisey concurred. Commissioner Poskochil did not think that Ms. Nichols was guilty of misrepresentation but perhaps negligence. Commissioner Leisey thought that Exhibit 11 spelled out all of Ms. Nichols violations. Commissioner Griess agreed that Ms. Nichols also violated Neb. Rev. Stat. ' 81-885.24(29).

Chairperson Gale asked if there was a difference in violations since Ms. Nichols was part of a team. Commissioner Leisey indicated that there was not much difference since Ms. Nichols knew she would be switching designated brokers and filled out the new broker= s business forms. Commissioner Grady felt that the violations should not be separated out for the Nichols. Chairperson Gale asked if there was a difference since the team was a husband and a wife. Chairperson Gale asked if a person should be responsible for everything his/her team member said and did. Commissioner Leisey felt that within a team there were different duties assigned and there would be some separation. He indicated that she was not involved in the transactions and should not be held to the same standard. However, she did have knowledge that she would be changing companies. Commissioner Grady indicated that he had a different perspective. He felt that since they were husband and wife they obviously had communications, although not on all issues, but they would not be doing business without knowing which broker they were working for. Commissioner Dover indicated that Ms. Nichols seemed to be following the instructions that her husband gave her. Chairperson Gale indicated that Ms. Nichols relied on her husband to know when they would be moving brokers. Chairperson Gale also noted that she may have only met with the clients once and perhaps felt that the business Mr. Nichols was conducting was good for her as well.

Commissioner Leisey thought that Ms. Nichols had violated Neb. Rev. Stat. ' 76-2421(1) and Neb. Rev. Stat. ' 81-885.24(7). Commissioner Dover thought that Ms. Nichols was also negligent. Commissioner Leisey did not agree. Commissioner Griess felt that Ms. Nichols was representing a broker other than her employing broker and that violations of all three statutes would be duplicative. However, she did think that Neb. Rev. Stat. ' 81-885.24(29) had been violated. Commissioner Leisey indicated that Neb. Rev. Stat. ' 81-885.24(29) was used as a A catch all@ if a violation could not be put under a specific statute. Chairperson Gale felt the discussion should be directed to Neb. Rev. Stat. ' 76-2421(1) and the timing of the agency disclosure being signed. Commissioner Dover noted that there were no agency disclosures signed. Commissioner Poskochil thought there should have been a signed agency disclosure. However, there had been some confusion on the broker being represented since the sellers thought they had hired the Nichols not the broker. Commissioner Poskochil thought that the Nichols showed negligence, incompetency and misrepresentation. Commissioner Leisey indicated that they were specifically speaking about Ms. Nichols and he did not think that she had misrepresented herself since her role was irrelevant. Commissioner Poskochil felt that the Nichols were a group - a team. They advertised as partners, and the sellers thought they were a team. He felt that with this situation she was there and could have given the correct information. Commissioner Leisey thought that there was neglect in this case but it was in the listing presentation which she had not attended.

A motion was made by Leisey and seconded by Poskochil that Ms. Nichols violated Neb. Rev. Stat. ' 81-885.24(7) and Neb. Rev. Stat. ' 76-2421(1). Motion carried with Dover, Grady, Griess, Leisey, Poskochil and Gale voting aye, with Bohrer not participating or voting, being absent and excused.

Chairperson Gale opened the past disciplinary action envelope. It showed no prior disciplinary action against Ms. Nichols.

The Commissioners then discussed the penalty to be assessed.

Commissioner Leisey indicated that the penalty phase would be difficult due to Ms. Nichols lack of involvement. Chairperson Gale felt that a suitable punishment might include a censure with additional continuing education courses. Commissioner Leisey concurred and thought that the continuing education courses should be in license law and agency.

A motion was made by Leisey and seconded by Gale that Ms. Nichols receive a license censure and an additional six hours of continuing education with three hours in license law and three hours in agency.

Commissioner Poskochil indicated that Ms. Nichols had filled out contracts for a broker for whom she was not working. Commissioner Dover indicated that if a contract was from a different company than you were working for then you do not fill it out. Commissioner Poskochil thought that a license suspension would be a more suitable punishment. Commissioner Poskochil believed the testimony was intended to place most, if not all, of the blame on Mr. Nichols so that one of the two would be able to continue active participation in the business. He also felt that Ms. Nichols had been careful about her involvement to keep transactions rolling. Commissioner Poskochil also thought she should not have filled in a document incorrectly. He noted that Ms. Nichols admitted to filling in the contract. Therefore, she should not just receive a censure. Commissioner Leisey disagreed with Commissioner Poskochil. He thought Ms. Nichols had knowledge of wrong doings, but her involvement was not great. He believed that she had been busy with her family involvement at the time of this incident. However, he could not believe Ms. Nichols did not know that she would be changing companies. Chairperson Gale indicated that Ms. Nichols had been in real estate a long time and was successful and attentive to her duties. He also felt since there had been some unusual things happening in her life, she had been dragged into trouble by her husband.

Commissioner Leisey thought most of the violations dealt with Mr. Nichols and not Ms. Nichols and that was what the testimony had been. Commissioner Dover indicated that Ms. Nichols had filled out the wrong company contract which she knew was incorrect. Chairperson Gale indicated that Mr. Nichols told Ms. Nichols that it was alright to fill the contract out that way. Commissioner Dover felt that the Nichols had equal responsibility under the law. She was independent, had her own license and knew she filled out the contract for another company. Commissioner Dover did not think this was a small issue. Commissioner Grady concurred and thought it was very clear that Ms. Nichols violated the license law.

Motion failed with Leisey and Gale voting aye, with Dover, Grady, Griess and Poskochil voting nay, and with Bohrer not participating or voting, being absent and excused.

A motion was made by Grady and seconded by Poskochil that Ms. Nichols receive a twelve-month suspension served on probation, and an additional six hours of continuing education with three hours in license law and three hours in agency.

Director Tyrrell requested that a clarification be added to the motion - the time frame in which the additional continuing education be completed.

A friendly amendment was made by the mover to include that the additional continuing education be completed within 180 days. The friendly amendment was accepted by the second.

The motion as amended carried with Dover, Grady, Griess, Leisey and Poskochil voting aye, with Gale voting nay, and with Bohrer not participating or voting, being absent and excused.

The discussion then focused on Mr. Nichols.

Chairperson Gale felt the Nichols had the same violations. Commissioner Dover felt that Mr. Nichols had been punished once already and did not wish to punish him again. Commissioner Grady felt these were unusual circumstances during the same time frame for which Mr. Nichols had already served a penalty. However, he did not think the punishment or continuing education had been effective. He felt that the Commission needed to get the message across to Mr. Nichols to stop his behavior. Commissioner Dover did not think that Mr. Nichols would do this again. However, he was concerned about the public interest. Chairperson Gale indicated that the issues were simultaneous and the events had not occurred after suspension. Commissioner Grady indicated that the events happened during the same time frame and he could be receiving another punishment years after the first punishment. Commissioner Grady felt that Mr. Nichols had the same mentality today as he previously had. He felt the Stipulation and Consent Order that had been entered into previously should have gotten the message across. Chairperson Gale indicated that Commissioner Grady would be able to discuss the punishment in the punishment stage. However, the discussion needed to be focused on the violations.

Commissioner Leisey indicated that Mr. Nichols admitted to violating some sections of the license law. He was struggling with the fact that the Commission was revisiting the same issues. Commissioner Griess thought that the penalty should be an actual ninety-day suspension. Commissioner Griess reviewed each of the violations. Commissioner Poskochil thought that Mr. Nichols violated Neb. Rev. Stat. ' 81-885.24(7) but was unsure about Neb. Rev. Stat. ' 81-885.24(16). Commissioner Griess thought that Neb. Rev. Stat. ' 81-885.24(16) appeared to be the same alleged violations Neb. Rev. Stat. ' 76-2425 and Neb. Rev. Stat. ' 76-2421(1). Commissioner Poskochil also felt Mr. Nichols violated Neb. Rev. Stat. ' 81-885.24(22). Commissioner Grady concurred. Commissioner Leisey thought that Neb. Rev. Stat. ' 81-885.(16) duplicated the agency violations. Chairperson Gale felt that if a licensee was in violation of a rule and a regulation, the law provides for an additional charge for those violations. Commissioner Poskochil did not think that Mr. Nichols violated Neb. Rev. Stat. ' 81-885.24(26) but had violated Neb. Rev. Stat. ' 81-885.24(29) and Neb. Rev. Stat. ' 76-2425. Commissioner Poskochil indicated that Mr. Nichols= testimony was that he had no agency disclosure signed by either seller in this matter.

A motion was made by Poskochil and seconded by Grady that Mr. Nichols violated Neb. Rev. Stat. ' 81-885.24(7), 81-885.24(22), 81-885.24(29), and 76-2421(1).

Chairperson Gale felt uncomfortable that there was a series of events which were similar to the other violations and the Commission had the right to file a new complaint on the same issues. He felt Mr. Nichols acted in good faith and had cooperated in admitting his mistakes and lack of knowledge of license law. He felt Mr. Nichols had already served his penalty and learned his lesson. However, there were violations which came to light when additional information had been received. Commissioner Leisey thought Mr. Nichols believed that these issues were bundled together and could imagine the surprise when Mr. Nichols learned that the same issues were being brought up again. Chairperson Gale felt the same way. However, by signing the Stipulation and Consent Order, the slate was not cleaned. He also thought that punishment could be accumulated but wondered if anything would be accomplished. He noted that the issues were similar but not identical.

Motion carried with Dover, Grady, Griess, Leisey and Poskochil voting aye, with Gale voting nay, and with Bohrer not participating or voting, being absent and excused.

Chairperson Gale opened the past disciplinary action envelope. It showed that in 2006, a Stipulation and Consent Order had been signed by Mr. Nichols which suspended his license for ninety days, and required completion of an additional twelve hours of continuing education for violating Neb. Rev. Stat. ' 81-885.24(7), 81-885.24(14), 81-885.24(26), 81-885.24(29) and Title 299, Chapter 2-010.

The Commissioners then discussed the penalty to be assessed.

Commissioner Poskochil felt that if, in 2006, there had been two separate complaints, the penalty may have been stiffer than what would be received today. Commissioner Poskochil also felt that Mr. Nichols thought the issues were over with, and had spent a lot of time and money. Although the issue could not be ignored, he wanted to be fair. Chairperson Gale thought that if this had been a part of the original case, the Commission would have dealt with it as one violation and one penalty. He felt that duplicating the punishment could send the wrong message and that was not the intention in this Complaint. Chairperson Gale also felt that Mr. Nichols= attitude was cavalier. He had a dangerous attitude which was concerning and felt that perhaps a license censure with additional continuing education would be a proper punishment. Commissioner Poskochil thought that the ninety-day suspension was a sufficient punishment for the first penalty received. However, he felt that Mr. Nichols should receive a twelve-month suspension served on probation with an additional six hours of continuing education. Commissioner Poskochil indicated that was the same penalty given to Ms. Nichols. He also explained that although Mr. Nichols thought these issues were over with, if the Commission had had all of the facts at the time of the Stipulation and Consent Order, the suspension could have been longer but that would be hard to gauge. Commissioner Griess agreed with Commissioner Poskochil and felt that the writing of a contract under a different company was much more devious than originally thought. Commissioner Griess felt that the ninety-day suspension served had been severe and did not feel that a straight suspension would do any good although there definitely were violations. Commissioner Poskochil felt that a license suspension served on probation would be a proper punishment since Mr. Nichols should be more remorseful after going through this twice. Commissioner Poskochil felt Mr. Nichols was upset about being back again and thought he was bitter although he knew he did wrong and had admitted to it.

Commissioner Grady thought that if, in 2006, the Commission had reviewed the charges in this Complaint, Mr. Nichols would have been out of business. Commissioner Grady felt there was a lack of effectiveness of the penalty and felt that a ninety-day suspension was severe. Commissioner Grady suggested a twelve-month suspension served on probation with additional continuing education courses.

A motion was made by Poskochil and seconded by Grady that Mr. Nichols receive a two-year license suspension, all served on probation.

Commissioner Poskochil indicated Mr. Nichols had already completed additional continuing education. Commissioner Leisey indicated that Mr. Nichols had repeatedly done the same things wrong and additional penalties would be nonproductive. Commissioner Leisey felt a two-year suspension was a long time but would send the message that this would not be tolerated. Commissioner Griess felt that the penalty needed to fit the crime. Commissioner Leisey felt Mr. Nichols had violated the license law but the punishment should have been stiffer up front. He was struggling with the penalty in light of the loss of time, energy and attorney fees which had now been duplicated. Chairperson Gale felt this issue truly undermines employee and broker relationships. He felt that until the Nichols transferred brokers the contracts were shoved under the table and Mr. Nichols displayed a pattern which was a breach of the relationship.

Commissioner Poskochil did not think there was a difference in one or two years of suspension all served on probation. Commissioner Poskochil felt only the time period Mr. Nichols would be under the microscope would be doubled. Commissioner Dover indicated that if Mr. Nichols was suspended and got into trouble again, he would have to appear before the Commission and the difference between one and two years would be the chances of reappearance were doubled.

After further discussion, the motion was withdrawn by the mover and the second.

A motion was made by Poskochil and seconded by Grady that Mr. Nichols receive a one-year license suspension, all served on probation.

Motion carried with Dover, Grady, Griess, Leisey, Poskochil, and Gale voting aye, with Bohrer not participating or voting, being absent and excused.

With the consent of the Respondents, Chairperson Gale directed Counsel Barton to prepare the Order.

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

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

The Hearing was adjourned at 6:55 p.m.

A discussion was held regarding the procedures used in conducting disciplinary hearings and prehearing activities. It was also suggested that an article be developed for the A Commission Comment@ newsletter regarding proper procedures for dealing with listings when transferring.

Deputy Director Hoffman presented an exhibit which included: correspondence regarding Mr. Sciscoe= s special appearance; a summary of Mr. Sciscoe= s situation; a copy of an Order issued by the District Court of Lancaster County; a copy of the Certification of Completion for the Court-Referral Community Service Program; letters of reference; a letter from the University of Nebraska recognizing him for being placed on the Dean= s List; an award certificate from Nebraska Engineering for outstanding achievement on the Full-Time Deans List; an invitation from the University of Nebraska to join an honor society; a copy of an honor society= s membership certificate; copies of scholarship certificates; a Dale Carnegie course completion certificate; an appreciation certificate from the University of Nebraska; Mr. Sciscoe= s criminal history report; and his salesperson application form. A copy of said exhibit is attached to and made a part of these minutes. Mr. Sciscoe was present.

Chairperson Gale reviewed the procedure for informal special appearances.

Mr. Sciscoe explained that he was twenty-eight years of age and was from Omaha. He indicated that he found interest in real estate through projects he had completed as a project manager. He also indicated that he would be graduating with a degree in construction engineering. He referred to his criminal background check which reflected a guilty conviction of possessing a stolen firearm. He explained that he was nineteen years old at the time, his parents had moved which left him alone to raise his brother and get him through school. He felt he had started associating with the wrong crowd. He noted that the day he was arrested was the best day of his life. He was able to turn his life around by moving in with his mother which allowed him to have a family environment and attend college.

Chairperson Gale noted that the exhibits presented showed Mr. Sciscoe had been placed on probation for five years which he had successfully completed and had been discharged. Mr. Sciscoe agreed. Commissioner Grady asked if Mr. Sciscoe had knowledge of the gun incident or if he had been duped into the arrest. Mr. Sciscoe indicated that he had not been associating with a good crowd and knew of the gun incident. While he had not been fully involved, he did get the gun and then gave it away. Chairperson Gale asked if he had any other offenses and when he would be graduating college. Mr. Sciscoe indicated that he had no other offenses on record and would graduate this year.

Director Tyrrell presented an exhibit containing e-mail correspondence with the Nebraska State Patrol, Criminal Identification Division and a letter from the U.S. Department of Justice, Federal Bureau of Investigation. A copy of said exhibit is attached to and made a part of these minutes.

Director Tyrrell reported that approximately one year ago, the Federal Bureau of Investigation (FBI) had conducted a review of how the State of Nebraska= s various agencies were handling criminal background information received from the FBI. When the results were communicated back to the agencies and the State Patrol, the State Patrol requested that the Commission not respond until the State Patrol had completed its discussion with the FBI. He referred the Commissioners to the Exhibit and reviewed the FBI= s comments. He pointed out that the FBI Report indicated Commission Staff submitted the fingerprints to the State Patrol which was not the case. The Report indicated that FBI Reports were maintained in unlocked file cabinets; that FBI Reports were transferred to an unauthorized agency, i.e. Secretary of State= s Records Management Division, for long-term storage; and the Commission did not have a secure fingerprint capture system. The Director then reviewed the Commission= s compliance confirmation which had been approved by the State Patrol. Staff had implemented procedures which assured that criminal background reports were maintained in a locked file cabinet while being processed. When the applicant was approved for licensure, Commission Staff would remove the FBI A rap sheet@ which would immediately be shredded. Licensee files currently maintained in the Commission office were being reviewed and all A rap sheets@ were being pulled and shredded. When the office files were completed, licensee files at Records Management would be recalled and the same processing would take place. These procedures would bring the Commission into compliance. The issue regarding the capturing or rolling of fingerprints was a general issue not just affecting the Commission. The State Patrol indicated our response to this issue as set forth in the e-mail was satisfactory and in concurrence with the State Patrol= s response to the FBI.

Chairperson Gale asked if Records Management needed to be reviewed. Director Tyrrell indicated that he did not believe a review needed to be done with Records Management due to Commission records since the Commission Staff would be pulling the A rap sheets@ out of the stored materials at Records Management and future transfers would not contain FBI reports.

No action was necessary on this report.

LB 386 - No new information presented.

LB 622 - No new information presented.

LB 715 - No new information presented.

LB 785 - No new information presented.

LB 824 - No new information presented.

LB 960 - Director Tyrrell reported that this bill had been passed by the Legislature and had been approved by the Governor. It contained the deficit appropriation for salary increases and health insurance premium increases.

LB 980 - No new information presented.

No action was necessary with regard to these matters.

Director Tyrrell reminded the Commissioners that the ARELLO meeting would be held April 24-26. He noted that four of the Commissioners had registered for the meeting. He had drafted a letter for each of the Commissioners attending the meeting which would serve as a government identification. This letter would allow them to get the government room rate at the hotel.

No action was necessary on this report.

May 5-6, 2008 - Settle Inn & Suites, Lincoln
June 26-27, 2008 - Settle Inn & Suites, Lincoln
August 28-29, 2008 - Staybridge Suites, Lincoln
September 26, 2008 - Staybridge Suites, Lincoln

Recesses and Adjournment

At 9:24 a.m. on April 3, Chairperson Gale declared a brief recess, and reconvened the meeting at 9:30 a.m.

At 10:40 a.m. on April 3, Chairperson Gale declared a brief recess, and reconvened the meeting at 10:55 a.m.

At 12:20 p.m. on April 3, Chairperson Gale declared a recess for lunch, and reconvened the meeting at 1:17 p.m.

At 2:30 p.m. on April 3, Chairperson Gale declared a brief recess, and reconvened the meeting at 2:47 p.m.

At 3:30 p.m. on April 3, Chairperson Gale declared a brief recess, and reconvened the meeting at 3:33 p.m.

At 5:35 p.m. on April 3, Chairperson Gale declared a brief recess, and reconvened the meeting at 5:54 p.m.

At 7:15 p.m. on April 3, Chairperson Gale recessed the meeting for the day.

At 9:32 a.m. on April 4, Chairperson Gale reconvened the meeting.

Commissioner Dover joined the meeting at 9:37 a.m.

At 10:20 a.m. on April 4, Chairperson Gale declared a brief recess, and reconvened the meeting at 10:32 a.m.

I, Les Tyrrell, Director of the Nebraska Real Estate Commission, do hereby certify that the foregoing minutes of the April 3-4, 2008, meeting of the Nebraska Real Estate Commission were available for inspection on April 17, 2008, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska.

Respectfully submitted,
Les Tyrrell
Director

Guests Signing the Guest List
Beth Lube, Re/Max Real Estate Group, Omaha
Lindsey Krenk, Omaha
John Davis, Woods Bros Realty, Lincoln
Denny Sciscoe, Omaha
Kristen Anderson, Nebraska REALTORS7 Association, Lincoln
Suzi Wolfe, Coldwell Banker Dover, Norfolk
Mark Dickhute, Omaha
Dixie TenEyck, Re/Max Real Estate Group, Lincoln
John Headlee, N.P. Dodge, Omaha
Doug Ruge, Omaha