NEBRASKA REAL ESTATE COMMISSIONAugust 20, 2001
Staybridge Suites Staybridge Room Lincoln, NE
Chairperson Gale convened a Meeting of the Nebraska Real Estate Commission at 9:05 a.m. on August 20, 2001, 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. Chairperson Gale also noted that the Commission consisted of six members for this Meeting, because there was one vacancy to be filled. Also present were Director Les Tyrrell, Deputy Director for Education Teresa Hoffman, Deputy Director for Enforcement Terry Mayrose, and Administrative Assistant Heidi Burklund. Rob Kinsey, Special Assistant Attorney General and Counsel to the Commission, was present for the Hearing and the policy 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 aAPublic 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 Items 4c and 17f had been added since the Tentative Agenda was mailed to the Commissioners, and that Title 301 information from the Nebraska Realtors7 Association was removed from Exhibit 15NRA due to its arrival after the three-day limit for changing the Agenda.
After review of the Final Agenda, a motion was made by Fletcher and seconded by Nigro to adopt the Final Agenda as presented. Motion carried with Fletcher, Johnson, Moline, Nigro, Wiebusch, and Gale voting aye.
Minutes of June 26-27, 2001
The Minutes of the Commission Meeting held on June 26-27, 2001, were considered.
After review, a motion was made by Nigro and seconded by
Wiebusch to approve the Minutes as presented. Motion carried with Fletcher,
Johnson, Moline, Nigro, Wiebusch, and Gale voting aye.
Director Tyrrell presented the Receipts and Expenditures Reports for June and July 2001. Copies of said Reports are attached to and made a part of these Minutes.
With regard to the June Report, Director Tyrrell noted the following: in Receipts, there was nothing unusual to report. In Expenditure Categories 4100, Personal Services, and 4419, Data Processing Contract Services, the $6000 expenditure in 4419 was actually the increase in the Personal Services Limit for Bob Arterburn=s retirement, which reduced the expenditure in 4100 from $33,000 to $27,000. This happened because of incorrect instructions from DAS Accounting, and could not be changed without an extremely complicated procedure, since it was not discovered until after the beginning of the new fiscal year. In Category 4212, Communications Expense, $476 of that amount should have been in Category 4215, Publications and Printing; and Category 4414, Education Services, showed only a $1200 expenditure for the instructor who conducted the Instructor Development Workshop, because the AMP bill was not received in June.
Director Tyrrell explained the budget encumbrance procedure, which allows prior year funds to be used for expenditures incurred but not yet billed in the prior fiscal year. The Commission encumbered $24,774.02, and was still well within the budget for this two-year cycle. Director Tyrrell said the Commission traditionally aims for a 3-6 month cash fund balance as of July 1, in case renewals fluctuate.
The Cash Fund Balance as of June 30, 2001, was $476,846.84, which compared to a Cash Fund Balance of $433,274.51 on June 30, 2000.
With regard to the July Report, Director Tyrrell noted the following: in Receipts, there was nothing unusual to report. Expenditure Category 4212 showed no expenditure because the communications bill was not received in July, so it will show on the August expenditures report; and Category 4311, Office Supplies, was over the budgeted monthly amount because toner for both the printer and fax machine were needed in the same month.
The Cash Fund Balance as of July 31, 2001, was $417,060.98, which compared to a Cash Fund Balance of $393,310.28 on July 31, 2000.
After discussion, a motion was made by Fletcher and seconded by Johnson to file the June and July Receipts and Expenditures Reports for audit. Motion carried with Fletcher, Johnson, Moline, Nigro, Wiebusch, and Gale voting aye.
Final Renewal Report
Director Tyrrell presented the Final Renewal Report as of June 30, 2001. A copy of said Report is attached to and made a part of these Minutes.
Director Tyrrell noted that the total renewal percentage was 93.2%, up slightly from last year. The renewal rate was well within expectations, and renewal season went well overall.
No action was necessary on this Report.
2001-2002 Monthly Budget Spread
Director Tyrrell presented the 2001-2002 Monthly Budget Spread Report. A copy of said Report is attached to and made a part of these Minutes.
Director Tyrrell noted that this document provided estimates of monthly expenditures for the previously-approved budget, and included the total encumbrance of $24,774.02.
No action was necessary on this Report.
Budget and Planning Subcommittee Appointments
Director Tyrrell announced that Commissioner Nigro, Commissioner Wiebusch, and Chairperson Gale were appointed to the Budget and Planning Subcommittee for this year.
No action was necessary on this Report.
There were no Specialized Registrations to report.
Non-Resident Licenses and Resident Licenses Issued to Persons Holding Licenses in Other States
This Report, a copy of which is attached to and made a part of these Minutes, was presented by Deputy Director Hoffman and reported to be in order.
After review, a motion was made by Moline and seconded by Fletcher to ratify issuance of the licenses as set forth in the Report. Motion carried with Fletcher, Johnson, Moline, Nigro, Wiebusch, and Gale voting aye.
Examination Reports - June and July
Deputy Director Hoffman presented Reports relating to the real estate examinations administered during June and July 2001. Copies of said Reports are attached to and made a part of these Minutes.
Commissioner Nigro asked how soon an applicant could retake the examination after failing. Deputy Director Hoffman said that, depending on timing, it was possible for an applicant to retake the examination within 3-4 days.
Chairperson Gale noted that, according to the Exhibit, June had the most applicants and the highest passing rate. Deputy Director Hoffman said it might be that schools focused more on pre-license education in the spring and summer, then focused more on continuing education in the fall. Deputy Director Hoffman noted that there was a higher number of applicants in January also, which might be explained by people wanting to wait and pay the license fee for an entire year, rather than just the end of the previous year.
After review, a motion was made by Moline and seconded by Nigro to ratify the June and July Reports for the purpose of issuing licenses. Motion carried with Fletcher, Johnson, Moline, Nigro, Wiebusch, and Gale voting aye.
Real Estate Education Matters
Continuing Education Activity Approval
Deputy Director Hoffman presented for ratification the Continuing Education Activity Approval Report, which listed approvals for eighteen continuing education activities. A copy of said Report is attached to and made a part of these Minutes.
After discussion, a motion was made by Fletcher and seconded by Nigro to ratify the Report. Motion carried with Fletcher, Johnson, Moline, Nigro, Wiebusch, and Gale voting aye.
Continuing Education Instructor Approval
Deputy Director Hoffman presented for ratification the Continuing Education Instructor Approval Report, which listed approvals for six continuing education instructors. A copy of said Report is attached to and made a part of these Minutes.
After discussion, a motion was made by Fletcher and seconded by Wiebusch to ratify the Report. Motion carried with Fletcher, Johnson, Moline, Nigro, Wiebusch, and Gale voting aye.
Continuing Education Activity Significant Change
Deputy Director Hoffman presented for ratification the Continuing Education Activity Significant Change Report, which listed approvals for two continuing education activities. A copy of said Report is attached to and made a part of these Minutes.
After discussion, a motion was made by Nigro and seconded by Wiebusch to ratify the Report. Motion carried with Fletcher, Johnson, Moline, Nigro, Wiebusch, and Gale voting aye.
Pending Sworn Complaints and Investigative Matters
Director Tyrrell presented a Summary Report of the pending complaints, which included a list of licensees presently under disciplinary action or on appeal. A copy of said Report is attached to and made a part of these Minutes. Director Tyrrell noted that the Merrigan listing had been corrected to indicate that his probation was completed.
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
There were no Stipulation and Consent Orders to present.
August 20, 9:30 a.m. - Complaint #2001-023,
A Hearing was held on August 20, at 9:37 a.m., in the matter of Complaint #2001-023. Rob Kinsey, Special Assistant Attorney General and Counsel to the Commission, appeared for the Complainant. Respondent Larry F. Zitek was present and represented by Counsel Carl J. Sjulin of Lincoln. Prior to discussion of this matter, Commissioner Moline recused himself, thereby nullifying any potential conflict of interest.
Opening Statements were waived. Counsel Kinsey and Counsel Sjulin presented a Joint Stipulation of Facts which included eight Exhibits, and one additional Exhibit, all of which were offered and received by Chairperson Gale. Counsel Kinsey also requested that the Commission take judicial notice of 81-885.24(18) and 81-885.24(29). Counsel Kinsey reviewed the Exhibits and the stipulated facts in the case.
Counsel Sjulin called the Respondent, Larry Zitek, as a witness.
After closing arguments had been presented, Chairperson Gale declared the Hearing concluded.
A motion was made by Nigro and seconded by Fletcher that Mr. Zitek=s license be censured. The motion was withdrawn by both because it was procedurally out of order.
A motion was made by Wiebusch and seconded by Johnson that Mr. Zitek be found guilty of the violations alleged in the Complaint. Motion carried with Fletcher, Johnson, Nigro, Wiebusch, and Gale voting aye, and with Moline not participating or voting, having recused himself, thereby nullifying any potential conflict of interest.
A motion was made by Nigro and seconded by Fletcher to censure Mr. Zitek=s license. Motion carried with Fletcher, Johnson, Nigro, Wiebusch, and Gale voting aye, and with Moline not participating or voting, having recused himself, thereby nullifying any potential conflict of interest
Chairperson Gale notified the Respondent that the costs incurred for the court reporter and any witness fees would be billed to the Respondent, as provided for in 305 NAC Chapter 4, and that the Respondent would have thirty days from the date of the Order to reimburse the Commission for said costs.
With the consent of the Respondent, Chairperson Gale directed Counsel Kinsey to prepare the Order.
Chairperson Gale announced that all Exhibits related to this Hearing would be retained in the Commission Office.
The Hearing was adjourned at 10:09 a.m.
August 21, 9:30 a.m. - Complaint #2001-025,
The Hearing regarding Complaint #2001-025, Jerry J. and Mary K. Owens vs Dale Martin Engel, was continued to the September Meeting at the request of the Respondent=s Counsel.
Informal Special Appearances
August 20, 1:30 p.m. - Christopher M. Payne, Potential Applicant
Director Tyrrell presented an Exhibit which included correspondence regarding Mr. Payne=s rescheduled Special Appearance, and correspondence and documentation regarding Mr. Payne=s criminal history. A copy of said Exhibit is attached to and made a part of these Minutes.
Mr. Payne said he would like to obtain a real estate license. He explained that he was convicted of distribution of a controlled substance in high school. A friend had asked Mr. Payne to give him whatever illegal substance he had, and Mr. Payne gave it to him. The friend was caught with the illegal substance, and told the police that Mr. Payne had sold it to him on school grounds, which was not true because he did not sell it to him. Mr. Payne said he was violated from parole for circumstances out of his control for not showing up for a meeting with his probation officer, who was out of town at the time of the meeting, and Mr. Payne did not know with whom he was supposed to meet. Another parole violation was for failing a urinalysis, which Mr. Payne attributed to his still being a kid at the time. Mr. Payne noted that he got caught and suffered the consequences.
Commissioner Moline noted that Mr. Payne had received a three-year sentence, and had been paroled after nine months. Mr. Payne noted that his parole was revoked again for another failed urinalysis, which he contested, because he was not using substances at that time. Mr. Payne had been told that the positive report on page 12 of the Exhibit was a relatively low count, which could have resulted from lab error. As a result of the report, he was sentenced for 90 days plus the remainder of his original sentence, and was released on July 16. Mr. Payne said he understood he made a mistake, and was punished, which took care of it. Mr. Payne asked that his criminal record be put in the past and that he be allowed to get on with his life. Mr. Payne said he thought real estate would be great career for him, because he liked to help people and loved houses.
Chairperson Gale asked Mr. Payne to tell the Commission about himself, his high school career, and any jobs he had held. Mr. Payne said he had been unable to complete high school due to the incident, but he got his GED and had completed one course at Randall School. Mr. Payne was working for a mortgage company, and had learned a lot. Mr. Payne said he is a very outgoing, goal-oriented person, and was good with people. Chairperson Gale asked what he did for the mortgage company. Mr. Payne said his current job title was receptionist, and that he was going through their training program to be a loan processor. He had worked there for three days prior to his last parole violation, and they were impressed enough with his performance that they re-employed him after his release.
Commissioner Fletcher noted that, in reference to page 12 of the Exhibit, Mr. Payne stated that the 100 versus 50 result was because of lab error, but the report stated the positive result was verified by repeat testing. Mr. Payne said they used the same sample for the re-test, and he had asked but was not allowed to give a different sample for the re-test.
Commissioner Wiebusch expressed concern about how recent his parole violations were, and asked Mr. Payne if he was doing any drugs at this time. Mr. Payne indicated he was not.
Commissioner Moline asked if he had been around others who were doing drugs. Mr. Payne said he had a few friends who use drugs, but Mr. Payne was not around while they were using. Mr. Payne said he had cut off all ties with them, and noted that he now had 3 children and a wife, and his focus was on his family. Mr. Payne also noted that he was now 21 years old.
Chairperson Gale asked if Mr. Payne had any prior encounters with law enforcement. Mr. Payne said that when he was 17, he had a possession charge. Chairperson Gale asked if Mr. Payne felt he was addicted to any drug. Mr. Payne said no, his usage was experimental and recreational. Chairperson Gale asked how Mr. Payne felt about drug use now. Mr. Payne said it had caused problems in his life, and he wanted to stay away from it. Mr. Payne was unable to watch his last daughter being born because of his parole violation, and drugs had kept him away from his family.
Chairperson Gale said his concern was Mr. Payne=s subsequent history, with two drug-related parole violations. Chairperson Gale said Mr. Payne showed a pattern of knowing the consequences, but continuing drug usage. Chairperson Gale asked how Mr. Payne explained the false test. Mr. Payne said he had no idea, and that he had tried to explain to the parole board that he was not using, but they would not re-test him. Mr. Payne said it might not have been his sample, or the lab accidentally mixed samples. Chairperson Gale asked if he was convinced there were no drugs in his system at the time. Mr. Payne said yes.
Commissioner Nigro asked if the sample was taken while Mr. Payne was out on parole. Mr. Payne said yes, he had been living with his wife in Bellevue. Commissioner Nigro asked if he was incarcerated as a result of the last test. Mr. Payne said he was taken into custody on March 15, and his parole was revoked at a hearing five days later. Mr. Payne was incarcerated for four months.
Chairperson Gale asked when Mr. Payne obtained his GED. Mr. Payne said he got it while in prison, through the Bellevue Adult Education Center, and also took Principles and Practices through Randall School. Mr. Payne said he scored well enough to pass the pre-license class. Mr. Payne said he had been interested in real estate since he was a kid, and that he liked looking at houses, had designed houses, and just loved houses.
Commissioner Fletcher noted that page 9 of the Exhibit indicated he had been fired for inappropriate conduct. Mr. Payne said he had been accused of selling rooms at the Quality Inn under the table, which was not true, but he believed they just did not like having a convicted felon on staff. They attempted to file charges against him because they wanted to get him in trouble, but they had no evidence. They fired him anyway. Commissioner Fletcher asked if his current employer knew about his criminal background. Mr. Payne said yes, they knew pretty much everything about this situation.
Commissioner Johnson asked if Mr. Payne had talked to potential employers. Mr. Payne said yes, that his current employer also had a real estate firm, and that he was friends with a broker for another company.
Chairperson Gale asked if Mr. Payne=s conviction was a felony. Mr. Payne said yes, because it happened in a school zone. The quantity was only 3 grams.
Commissioner Nigro asked if Mr. Payne would be subject to any more urinalysis. Mr. Payne said no, he was totally free after his last release from prison. Commissioner Johnson asked if that meant he no longer had a parole officer. Mr. Payne said that was correct.
Chairperson Gale asked what options the Commission had. Director Tyrrell said the Commission had discretion whether to have a license issued, under the statute. Chairperson Gale asked if an applicant can be denied a license for a felony conviction. Director Tyrrell said that would be sufficient grounds.
Commissioner Nigro said the Exhibit indicated that on February 23, Mr. Payne waived his right to a preliminary hearing. Mr. Payne said he did not believe the hearing was worth it, because they just would have reviewed the urinalysis process and the chain of evidence. Commissioner Nigro asked if that would have been the time to dispute the result. Mr. Payne said no, the parole hearing was his opportunity to dispute the report, and he did.
Chairperson Gale said it troubled him to issue Mr. Payne a license so soon after his felony conviction and having paid his dues. On the Parole Board, they usually expected a period of time to pass before considering a person rehabilitated. Chairperson Gale felt this was too short a period of time to show whether Mr. Payne had turned his life around. Chairperson Gale appreciated the fact that Mr. Payne was now a father and husband, but was still concerned because of the public trust placed in licensed persons. If Mr. Payne still had a dependence or addiction, it could cause trust fund violations or other problems. Mr. Payne said he had gone through several drug treatment programs, including Narcotics Anonymous (NA) and Alcoholics Anonymous, and had completed the NA 12-step program. Mr. Payne said he was also enrolled in a leadership class. Chairperson Gale asked if he had continued NA after his release. Mr. Payne said no, and that he felt his wife, kids, and family could provide him enough support.
Commissioner Johnson said he shared Chairperson Gale=s concerns, and he would like to wait to see if Mr. Payne could go six months without violations. Commissioner Johnson noted that Mr. Payne was learning about real estate through his current job, which would be beneficial to him. A motion was made by Johnson and seconded by Wiebusch to deny Mr. Payne the opportunity for examination at this time, and to reconsider his situation after another Special Appearance in six months. Motion carried with Fletcher, Johnson, Moline, Nigro, Wiebusch, and Gale voting aye.
Review Criteria for Applicants with Criminal Convictions and/or
Director Tyrrell presented an Exhibit which included policies from other jurisdictions regarding applicants with criminal convictions and/or disciplinary history in other jurisdictions. A copy of the Exhibit is attached to and made a part of these Minutes.
Director Tyrrell reported that, per the Commission=s request, he had contacted other state licensing agencies regarding their criteria for applicants with convictions. Director Tyrrell said other agencies had laws similar to the Commission=s, and that there were no set criteria, because applications were handled on an individual basis. Agencies handled applications pretty much the same way as the Commission, using the law and considering each on an individual basis.
Director Tyrrell also noted that the State Patrol had made available a database of sexual offenders, which were ranked by three levels of recidivism risk. Director Tyrrell asked if the Commissioners wanted staff to start comparing applicants and/or licensees against the State Patrol database, and reviewed methods currently available.
Chairperson Gale noted that the Commission was not doing credit checks or NCIC searches due to the associated costs. Chairperson Gale said the Commission would have to address whether the cost could be included in the application fee, if the Commission decided to do additional checks. Chairperson Gale asked if staff did a State Patrol check on applicants. Director Tyrrell said not on every applicant, just those indicating a criminal history. Commissioner Moline noted that the information previously provided on applicants required to make a Special Appearance showed that there were no real problems with the current system. Director Tyrrell agreed. Chairperson Gale noted that the current system relied entirely on self-disclosure. Director Tyrrell said yes, and that was how other agencies handled it too. If applicants failed to disclose convictions, they were brought before the Commission for filing false applications, which usually resulted in revocation of their licenses. Chairperson Gale asked if the Commission could also bring criminal charges for perjury or fraud. Director Tyrrell said he would have to check with legal counsel to see if that was possible, because the Commission had never preferred criminal charges for false applications.
Commissioner Moline asked how much sex offender checks would cost, and how much staff time they would take. Director Tyrrell said it would be expensive if the checks were done individually, but thought that it might be possible to compare databases. Commissioner Moline said he had looked at the public web site, and noted that it said one category of offenders were Alikely to re-offend.@ It gave Commissioner Moline a bad feeling that likely sex offenders could be licensed, and would be going out to meet with people one-on-one due to the nature of the business. Commissioner Moline said he would like to have checks done as part of the application process. Commissioner Wiebusch asked if that would require the Commission to have one staff person check each application against the website. Director Tyrrell said that was the method currently available, because the database could only be searched by zip code, so staff would have to enter every zip code on file. Director Tyrrell was exploring the option of comparing our list of applicants against their database, to provide a list of hits for staff to investigate further. Commissioner Moline said he would prefer it to be done that way. Director Tyrrell said the Commission may have been the first to ask for that capability, but he was sure other licensing agencies would want it eventually.
Chairperson Gale asked if staff had checked on the feasibility of adding NCIC checks to the application process. Chairperson Gale noted that people drift from state to state, so he felt that checking only within the state would not address all potential problems. Director Tyrrell said that staff looked at adding NCIC checks a number of years ago, but fingerprints were required, which could only be done in certain areas, so there would be an additional charge for that. There was also a $15 charge per check, plus the State Patrol charged $15 per background check. The fingerprints were sent to the FBI and processed. Director Tyrrell did not know the time lag on that, but guessed it was probably not top priority for the FBI. Director Tyrrell did not think the State Patrol required fingerprints, but there would be expenses involved in adding any background check. Chairperson Gale asked for a budget impact estimate. Director Tyrrell estimated approximately 800 applicants per year, x $15 or $30, so possibly $24,000 per year. Deputy Director Hoffman said it may be more than that per applicant for staff time, and noted that it would delay application processing.
Chairperson Gale said the Commission needed to decide whether it wanted to set exclusion guidelines for applicants, or continue to deal with applicants on a case-by-case basis. Director Tyrrell noted that, if the Commission decided to automatically exclude certain applicants, the only procedural change would be skipping the informal hearing. Excluded applicants would still be entitled to a formal hearing on the denial of license, because the Commission could not do it summarily.
Commissioner Moline said he was not sure the Commission could improve upon the current system, except by checking the sex offender registry. He had not seen any better system in any state. The only improvement would be working with the State Patrol to compare databases. Commissioner Moline felt it would create problems to add further delays in the application process. Chairperson Gale said problems may arise later if a licensee committed another offense. Director Tyrrell said that, when that happens, other people find out and call to see if the licensee disclosed it.
Chairperson Gale said that, according to the Exhibit, other states have guidelines, but it did not show how many have them. Director Tyrrell said about 15-20 states responded to his request for information. Commissioner Wiebusch asked about written standards. Director Tyrrell noted that some were very clear, like in Georgia where the license is denied if the applicant was convicted of a violent crime, but then a formal hearing would be held. Chairperson Gale asked if it would be better to have the hearing than just process applicants based on self disclosure. Director Tyrrell noted that Kentucky was the only state doing a background check, and they just started the program. Commissioner Wiebusch asked if background check costs could be added to the application fee. Director Tyrrell said he thought Kentucky applicants got the FBI check at their own cost, and included the report with the application. Deputy Director Hoffman said that New Jersey was considering a similar program.
Commissioner Moline asked if it was in Kentucky law to deny a license based on a background check. Director Tyrrell said there was no indication of why a license could be denied, and noted the new program had no history on how many non-disclosures were found.
Chairperson Gale asked the Commissioners how they wanted to proceed with this topic. Chairperson Gale outlined three possible courses of action: (1) to continue handling applications on a case-by-case basis, possibly with informal guidelines, which Chairperson Gale felt would mean reinventing standards each time; (2) to filter out applicants prior to a special appearance based on certain criteria, such as violent crime conviction, recidivist, or sexual offender, where applicants would automatically be denied, and would have to ask for an administrative hearing if they wanted a license; or (3) to require a criminal investigation or background check during the application process. Chairperson Gale said he wanted the Commissioners to be comfortable with the standards they set.
Commissioner Wiebusch asked if it was a potential problem to continue without minimum standards that are not written and known, when every decision was subjective. Chairperson Gale said there may be a constitution problem regarding equal opportunity. Director Tyrrell noted that the current standards which could be applied were specified in the law, which ranged from felony convictions to moral turpitude.
Commissioner Wiebusch also noted that if the system was not broken, maybe it should not be changed.
Chairperson Gale suggested that the Commission form a subcommittee to meet with Counsel Widger and Deputy Director Mayrose, to come up with weak and strong recommendations for the Commission=s consideration. It was the consensus of the Commission to form the subcommittee. Director Tyrrell said that if there were more than three Commissioners on the subcommittee, it would be subject to the Open Meetings Law. Commissioner Fletcher noted that the Commission might want to delay appointing the subcommittee until the new Commissioners were on board. Chairperson Gale said there was no deadline for a decision, just that the Commission wanted more clarity. Commissioner Moline, Commissioner Wiebusch, and Chairperson Gale volunteered to serve on the subcommittee.
Review Revisions to AUse of Unlicensed Persons by Licensees@ Policy
Director Tyrrell presented an Exhibit which included current Nebraska policy and policies from other jurisdictions regarding allowable and prohibited uses of unlicensed persons by licensees. A copy of said Exhibit is attached to and made a part of these Minutes.
Director Tyrrell reported that he had checked with Williams Underwriting Group (WUG) regarding Errors and Omissions coverage for activities of unlicensed persons. WUG responded that expanding allowable duties, as shown on the Exhibit, would impact Errors and Omissions coverage. An unlicensed assistant was covered while acting on behalf of a licensee, and the licensee was still ultimately responsible if mistakes were made. If a claim was filed only against an assistant, it would not be covered. Claims would have to be filed against both the licensee and the assistant.
Mr. Avery requested that the Commission not finalize a new policy before the September Meeting, because the Nebraska Realtors7 Association would have some recommendations at that time.
Commissioner Nigro proposed the Commission wait until September to discuss the policy. Commissioner Wiebusch asked if the Nebraska Realtors7 Association had a copy of the Exhibit. Director Tyrrell noted that the Nebraska Realtors7 Association received it in June. It was the consensus of the Commission to postpone discussion on this matter until the September Meeting.
Review Revisions to Title 299, Chapters 1, 2, 3, 5, & 7
The Nebraska Realtors7 Association presented an Exhibit which included proposed revisions to Title 299. A copy of said Exhibit is attached to and made a part of these Minutes, denoted at 15NRA. During the Meeting, Rita Griess distributed an additional Exhibit regarding Chapter 7. A copy of said Exhibit is attached to and made a part of these Minutes, denoted at 15NRA1.
Representatives of the Nebraska Realtors7 Association, including Al Avery, Jerry Ahlvers, Fred Hoppe, and Rita Griess, reviewed the changes they would like included in the Title 299 revisions.
Chairperson Gale requested that staff compile a document showing staff and Nebraska Realtors7 Association proposals. Mr. Avery and Mr. Ahlvers indicated willingness to work with staff to create a final document. Director Tyrrell noted that areas of agreement could be incorporated, and disputed areas denoted for Commission discussion.
Director Tyrrell presented an Exhibit which included proposed revisions to Title 299. A copy of said Exhibit is attached to and made a part of these Minutes, denoted as Exhibit 15.
Director Tyrrell noted that this document resolved most of the questions raised during discussion at the previous Meeting. Director Tyrrell reviewed the changes recommended by staff.
It was the consensus of the Commission to review a combined document at the September Meeting.
Director Tyrrell presented an Exhibit which consisted of resolutions commemorating service to the Commission by Scott Moore, Paul Landow, and Fred Fletcher. A copy of said Exhibit is attached to and made a part of these Minutes.
A motion was made by Nigro and seconded by Moline that the resolutions for Scott Moore and Paul Landow be adopted. Motion carried with Fletcher, Johnson, Moline, Nigro, Wiebusch, and Gale voting aye. A motion was made by Nigro and seconded by Moline that the resolution for Fred Fletcher be adopted. Motion carried with Johnson, Moline, Nigro, Wiebusch, and Gale voting aye, and with Fletcher abstaining.
REEA Meeting - Report of Attendee
Deputy Director Hoffman reported on the Real Estate Educators Association Meeting, which she attended on June 23-27 in Orlando, Florida.
Attendees received an update on ARELLO services and studies. Participants in the regulator session discussed the problem of licensees taking continuing education based on convenient scheduling, rather than choosing topics of interest or deficient knowledge. Alternatives to continuing education were discussed. To date, only Colorado has an option where licensee can pass the upper-level licensing examination every three years instead of taking continuing education activities, but no one in Colorado had exercised that option as of the Meeting. The Georgia Real Estate Commission is working with AMP to develop a simulation examination, which would route applicants to the next question based on their previous answers. This type of examination would test critical thinking and whether the applicant could correct their mistakes. Deputy Director Hoffman was not sure if the examination was being developed for licensing or as a continuing education diagnostic tool, but she will attend a meeting in October where it will be discussed.
Commissioner Moline asked if Deputy Director Hoffman had information regarding required classroom time, during which licensees might be reading the paper, versus required time with a test at the end. Deputy Director Hoffman said that some states currently required tests, but none of them were satisfied with classroom performance, because instructors taught to the test and indicated which items would be on the test. Most states have dropped test-based continuing education because it did not facilitate education.
Director Tyrrell said that a diagnostic, criterion-oriented examination might be able to tell licensees which courses to take to supplement their educational needs. If licensees could pass the examination, they would not be required to submit continuing education. Licensees could take the examination during the first quarter of the year, and would have the rest of the year to complete the continuing education required to address their deficiencies. It will be interesting to follow the Georgia program=s experiences. Perhaps 5-10 years from now, diagnostic continuing education examinations will be the way to go. All states have had experience with instructors teaching to the test, at least since the early 1980's. Deputy Director Hoffman said the next AMP Advisory Committee meeting was scheduled for October, and hoped they would be able to demonstrate Georgia=s program then. Deputy Director Hoffman noted that this was a partnership between Georgia and AMP, and that 5-6 years was a realistic timeline for this exciting development. Director Tyrrell said that AMP was the first examination company willing to try this method.
Commissioner Moline commented that at least licensees remembered the 12 things when the instructor coughed, as opposed to just sitting through the class reading a newspaper. Deputy Director Hoffman said most instructors were experienced enough to embarrass people into putting the paper away, if the need arose. Class size made a big difference. Commissioner Moline said the problem was engaging students, rather than just allowing them to show up and wait for the time to pass. He thought this would especially be a problem when licensees did not choose topics that interested them, but chose activities according to scheduling.
Regarding the REEA Meeting, Deputy Director Hoffman went on to say there were other interesting seminars at the conference. Nebraska instructors Susan Geschwender, Craig Larabee, and Marie Spodek were in attendance. Marie Spodek won the Outstanding Career Award.
No action was necessary on this Report.
ARELLO Central/Western District Meeting - Report of Attendees
Commissioner Nigro reported that she worked on a 3-year schedule for the Fair Housing Committee. Commissioner Nigro also announced upcoming meetings and nominations made by the District, and reported the District=s unanimous decision to support Deputy Director Hoffman for President-Elect.
Commissioner Johnson said he attended interesting sessions, but the most valuable information came from interaction with Commissioners from other jurisdictions. The size of Commissions varied greatly. The speaker from Alberta said their industry was self-regulated by volunteers, which seemed to work. There was diversity throughout the jurisdictions in how their regulatory agencies operated.
Deputy Director Hoffman noted that the combined districts offered a nice level of participation. The jurisdiction updates were done all in the same room, and there were very interesting, precedent-setting things happening in other jurisdictions. Alberta discussed their experience with self-regulation. Oregon had only one Commissioner, but similar needs for budget, staffing, etc. as Nebraska. Oregon is experimenting with limited autonomy being granted to targeted state agencies, and the Oregon Commission has asked to participate.
No action was necessary on this Report.
ARELLO Investigator Seminar - Report of Attendee
Deputy Director for Enforcement Mayrose reported on the ARELLO Investigator Seminar, which he attended July 17-18 in Austin, Texas. There were sessions on contract law, agency law, contracts/offers, and deception. Deputy Director Mayrose was a little disappointed that these were basically the same sessions as last year. The networking was, as usual, the best part of the entire seminar.
No action was necessary on this Report.
Trust Account Examination Evaluation Report - Second Quarter 2001
Director Tyrrell presented the Trust Account Examination Evaluation - Second Quarter 2001 Report. A copy of said Report is attached to and made a part of these Minutes.
Director Tyrrell reported that comments were again very positive. Only two of the examiners were reviewed on this report, because Ms. Stehly was still in training.
No action was necessary on this Report.
Service Satisfaction Survey - June 2001 Mailing Results
Director Tyrrell presented an Exhibit entitled AService Satisfaction Survey - June 2001 Mailing Results.@ A copy of said Exhibit is attached to and made a part of these Minutes.
The surveys were mailed during June 2001. The response rate was again low, but all comments received were positive.
Director Tyrrell reported that Amy Goodwin, the Transfer Secretary, was hired away. As a result, staff was currently two positions low. The remaining staff were doing an excellent job of picking up the slack.
No action was necessary on this Report.
ARELLO Annual Meeting - October 13-16, in Memphis, Tennessee
Director Tyrrell reported that the ARELLO Annual Meeting will be held October 13-16 in Memphis, Tennessee. Director Tyrrell recommended that Commissioners get their registrations in early.
No action was necessary on this Report.
Consider Reduction in Fee Charged for Copies
Director Tyrrell presented an Exhibit entitled ACopy Fee Recommendation,@ which included an Attorney General opinion regarding copy fees. A copy of said Exhibit is attached to and made a part of these Minutes.
Director Tyrrell noted that the recommendation was made in response to the Attorney General opinion on reasonable copy fees. Director Tyrrell made an administrative decision to lower the fee prior to the Meeting, for the period of August 8-20. Copies cost approximately 3.1 cents each, and Director Tyrrell estimated staff time cost 6.9 cents, for a total of 10 cents per copy. Director Tyrrell requested Commission approval of the fee change retroactive to August 8.
A motion was made by Fletcher and seconded by Johnson to adopt the ACopy Fee Recommendation.@ Motion carried with Fletcher, Johnson, Moline, Nigro, Wiebusch, and Gale voting aye.
2000-2001 Objectives - Final Report
Director Tyrrell presented an Exhibit regarding the Commission=s 2000-2001 Objectives. A copy of said Exhibit is attached to and made a part of these Minutes.
Director Tyrrell noted corrections to items 3 and 9, which should have indicated on-line credit card payments were made available on August 17, 2001.
No action was necessary on this Report.
Future Meeting Dates
September 26-27 - Holiday Inn Central, Omaha
Director Tyrrell noted that more meetings will be scheduled when the new appointees are on board. Director Tyrrell recommended that the Commission schedule the November and December Meetings during the first two weeks of each month, to avoid holiday conflicts.
Recesses and Adjournment
At 9:30 a.m. on August 20, Chairperson Gale declared a brief recess, and reconvened the Meeting at 9:37 a.m.
At 11:00 a.m. on August 20, Chairperson Gale declared a brief recess, and reconvened the Meeting at 11:14 a.m.
At 12:10 p.m. on August 20, Chairperson Gale declared a recess for lunch.
At 1:30 p.m. on August 20, Chairperson Gale reconvened the Meeting.
At 3:30 p.m. on August 20, Chairperson Gale declared a brief recess, and reconvened the Meeting at 3:47 p.m.
At 4:15 p.m. on August 20, there being no further business to come before the Commission, a motion was made by Fletcher and seconded by Nigro that the Meeting adjourn. Motion carried with Fletcher, Johnson, Moline, Nigro, Wiebusch, and Gale voting aye.
I, Les Tyrrell, Director of the Nebraska Real Estate Commission, do hereby certify that the foregoing Minutes of the August 20, 2001, Meeting of the Nebraska Real Estate Commission were available for inspection on August 31, 2001, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska.
Guests Signing the Guest List