Chairperson Gale convened a meeting of the Nebraska Real Estate Commission at 9:08 a.m. on July 16, 2003, in the Staybridge Room of the Staybridge Suites, located at 2701 Fletcher Avenue in Lincoln, Nebraska. All of the members of the Real Estate Commission were present. Also present were Director Les Tyrrell, Deputy Director for Education and Licensing Teresa Hoffman, Deputy Director for Enforcement Terry Mayrose, and Administrative Assistant Heidi Burklund. Abbie Widger, Special Assistant Attorney General and Counsel to the Commission, was present for the hearing.

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

Chairperson Gale pointed out to those in attendance that a public copy of the materials being used during the meeting was available to the public on the counsel table in the meeting room, and that the procedures followed were in accordance with the Open Meetings Law. Chairperson Gale asked that guests sign the guest list.

Director Tyrrell noted that agenda item 10b had been added since the tentative agenda was mailed to the Commissioners.

After review of the final agenda, a motion was made by Wiebusch and seconded by Johnson to adopt the final agenda as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

The minutes of the Commission meeting held on May 28, 2003, were considered.

After review, a motion was made by Strand and seconded by Wiebusch to approve the minutes as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Director Tyrrell presented the Receipts and Expenditures Reports for May and June. Copies of the reports are attached to and made a part of these minutes.

The Cash Fund Balance as of May 31, 2003, was $711,636.24, which compared to a Cash Fund Balance of $611,337.70 on May 31, 2002.

The cash fund balance as of June 30, 2003, was $670,949.92, which compared to a cash fund balance of $578,321.86 on June 30, 2002. The balance would cover approximately 8 months of operating funds.

Commissioner Poskochil asked why Category 7522, Promotional Land Registrations, was so much higher than anticipated. Director Tyrrell said that income in that area had gone up considerably in the past few years. Time share registrants pay a fee partially based on the number of units at the initial registration, and pay the same amount for renewal every year, regardless of the number of units still available. Director Tyrrell was collecting data on the situation, and staff were considering proposing a cap for the renewal fee or making it apply only to those units still available. Director Tyrrell will bring the information to the Commission when it is available.

After discussion, a motion was made by Moline and seconded by Strand to file the May and June Receipts and Expenditures Reports for audit. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Director Tyrrell presented a Final Renewal Report for 2003, which showed renewals as of June 30, 2003. A copy of said report is attached to and made a part of these minutes.

Director Tyrrell noted that a higher number of licensees renewed than last year.

No action was necessary on this report.

Director Tyrrell presented the 2003-2004 Fiscal Year Monthly Budget Spread. A copy of said report is attached to and made a part of these minutes.

Director Tyrrell noted that category code numbers had been changed to accommodate the NIS system, and were in a more logical order. Staff were anticipating $800,000 in receipts, and the actual budget as approved was $923,826. Health insurance costs may change, and were shown evenly distributed over the year, but the state did not know exactly what the January cost will be.

Commissioner Moline asked how much of the budget the Commission would actually spend. Director Tyrrell said it was hard to say with the unknown insurance cost, but it would probably be $900,000. This budget was probably about as on target as it was possible to be. The Commission had been without a staff member for a couple of months during the previous fiscal year, so there could be unanticipated savings like that. Chairperson Gale noted that receipts were less than expenditures, and asked if the Commission would be using some of the cash fund. Director Tyrrell said that, for budget purposes, staff tried to keep the receipts estimates conservative, so there would be no unexpected problems. The Commission would probably take in more than that, depending on the number of applicants. Commissioner Moline asked if the Commission would most likely break even. Director Tyrrell said that could be the case this year. Chairperson Gale asked if salary increases were figured in. Director Tyrrell said they were.

No action was necessary on this report.

There were no specialized registrations to report.

Deputy Director Hoffman presented for ratification the Non-Resident Licenses and Resident Licenses Issued to Persons Holding Licenses in Other Jurisdictions Report, a copy of which is attached to and made a part of these minutes.

After review, a motion was made by Moline and seconded by Poskochil to ratify issuance of the licenses as set forth in the report. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Deputy Director Hoffman presented for ratification the May and June Examination Reports, copies of which are attached to and made a part of these minutes.

After review, a motion was made by Moline and seconded by Strand to ratify the May and June Examination Reports for the purpose of issuing licenses. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

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.

After discussion, a motion was made by Moline and seconded by Wiebusch to ratify both reports. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

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

No action was necessary on this report.

Director Tyrrell sought guidance regarding a stipulation and consent order on a pending complaint. Consensus of the Commission was that no less than a 5-year suspension of the license would be acceptable for the stipulation.

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

Item A Complaint #2003-014 - Michael T. & Dawn A. Koczur vs. Dwight A. Beaton

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 Moline and seconded by Strand that the complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Item B Complaint #2003-015 - Justin Hackstadt vs. Kelly Randall Brooks

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 Wiebusch and seconded by Moline that the complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

 

Item C Complaint #2003-016 - Linda E. Miller vs. Heidi Ann Todd

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 Wiebusch and seconded by Moline that the complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Item D Complaint #2003-018 - Lorena Gomez vs. Vincent W. Leisey

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 Moline and seconded by Shepard that the complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Item E Complaint #2003-021

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 Moline and seconded by Poskochil that the complaint be set for hearing. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Item F Complaint #2003-024 - Christopher J. & Kathleen S. Walter vs. David M. Clark

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 Poskochil and seconded by Wiebusch that the complaint be dismissed without prejudice. Motion carried with Moline, Poskochil, Shepard, and Strand voting aye, with Johnson and Gale voting nay, and with Wiebusch abstaining.

Item G Complaint #2003-025

Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter.

After being advised of the results of the investigation and discussion, a motion was made by Johnson and seconded by Moline that the complaint be set for hearing on the alleged violations of Neb. Rev. Stat. Sections 76-2417(1)(c) and 81-885.24(29). Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Item H Complaint #2003-026

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 Moline and seconded by Shepard that the complaint be set for hearing. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Item I Informational Matter - Mark Gordon Zeller Salesperson Application

Deputy Director Mayrose presented a stipulation and consent order in the matter of Complaint #2003-035, Commission vs. Mary Catherine Larsen. A copy of said order is attached to and made a part of these minutes. Ms. Larsen was not present.

Counsel Widger reviewed the circumstances involved and noted the provisions of the order, which had been signed by Ms. Larsen. The order specified revocation of her salesperson license.

After discussion, a motion was made by Wiebusch and seconded by Johnson to enter into the order as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Counsel Widger presented a stipulation and consent order in the matter of Linda Eileen Miller. A copy of said order is attached to and made a part of these minutes. Ms. Miller was not present.

Counsel Widger reviewed the circumstances involved and noted the provisions of the order, which had been signed by Ms. Miller. The order specified a two-year suspension of her broker license, served on probation, and nine hours of additional continuing education, with three of the hours in trust accounts, three in agency, and three in license law, to be completed within twelve months. Counsel Widger noted that Ms. Miller had made substantial changes in her business practices to address the issues raised in the complaint.

After discussion, a motion was made by Moline and seconded by Wiebusch to enter into the order as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

A hearing was held on July 16, at 10:15 a.m., in the matter of Complaint #2003-013, Linda E. Miller vs. Nancy Lennet Jones. Abbie Widger, Special Assistant Attorney General and Counsel to the Commission, appeared for the Complainant. Respondent Nancy Lennet Jones was not present.

Counsel Widger presented 18 exhibits, 17 of which were offered and received by Chairperson Gale. Counsel Widger called Harlan Milder, Program Director for Diversion Services in Omaha;

Director Tyrrell; and Deputy Director Mayrose as witnesses.

Chairperson Gale declared the hearing concluded.

A motion was made by Moline and seconded by Wiebusch that Ms. Jones be found guilty of the violations alleged in paragraph 3 of the complaint. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Chairperson Gale then opened the disciplinary envelope. No prior disciplinary actions were on file.

Commissioner Moline noted that Ms. Jones had twice been convicted of theft, and her handling earnest money was a threat to the public. Commissioner Poskochil was concerned that Ms. Jones may be driving members of the public around, even though her license was revoked due to DUIs. Chairperson Gale was concerned with her continuing pattern of a lack of veracity, her dishonesty on the applications, and her clear pattern of avoidance of responsibility and avoidance of consequences. Chairperson Gale felt Ms. Jones was lacking in integrity.

A roll call vote was taken on the motion. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Chairperson Gale announced 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.

Seeing no objections, Chairperson Gale directed Counsel Widger 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 12:04 p.m.

Chairperson Gale reviewed the procedure for informal special appearances.

Ms. Carnes distributed and read aloud a prepared statement. A copy of said exhibit is attached to and made a part of these minutes, denoted as exhibit 12a2.

Chairperson Gale asked about her probation status. Ms. Carnes said she was in the middle of her probation sentence, she had to check in every month with her probation officer, and she was required to work as part of her probation. Chairperson Gale asked if it was through Lancaster County. Ms. Carnes said it was District 6, and it was state probation, not county. Chairperson Gale asked if she checked in with the same person each month. Ms. Carnes said yes. Chairperson Gale asked if she was in good standing with her probation. Ms. Carnes said yes, so far. Chairperson Gale asked when her sentence would be completed. Ms. Carnes said it was for 18 months, so her earliest release date would be May 20 or 23 of 2004. Director Tyrrell asked her if 18 months would actually be November 2004. Ms. Carnes said that would be correct, and she had miscalculated it by using her court date, not the date of the probation order. Chairperson Gale asked what was being done to address the drug issue. Ms. Carnes said there was no substance abuse, because it was a prescription she had from her employer for a sleeping tablet. The drug was not abused, but there was a stigma because it was a controlled substance. She had a drug/alcohol evaluation, and was not a drug abuser, so she was not ordered to do treatment. Nothing further was required. Chairperson Gale asked if she had to attend Alcoholics Anonymous. Ms. Carnes said no.

Chairperson Gale asked Ms. Carnes to tell the Commission how the situation happened, and if she felt she was misjudged or unfairly convicted. Ms. Carnes said she had a written prescription for Klonopin from the doctor for whom she worked as a nurse and office manager. After the allowed refills were through, he told her she could call in more refills, like all the others she called in for the office. After six years, the pharmacy she was using was bought out, and the new pharmacy owners questioned the refills because they had lost the written original prescription. She tried to find a copy of it in the office, but could not find it. For some reason, the doctor denied that he had ever approved the prescription. It was her word against his. She had no other choice but a plea bargain.

Ms. Carnes said that she went down to Health and Human Services (HHS) and reported the incident, as required by statute for licensed practical nurses (LPNs). She also made a statement to a police officer, who arrested her at her home. Her attorney restricted her from talking to HHS due to the pending criminal charges, because her testimony before the licensing board would be held against her in court. In the HHS disciplinary action, one charge was for her failure to comply with the investigation, which was done on the advice of her attorney. Ms. Carnes was aware her license was in jeopardy, and her failure to cooperate was probably why the license was revoked. Even a license suspension makes a career tough. She had cooperated somewhat by filling out a mandatory form. Chairperson Gale asked if she attended the hearing. Ms. Carnes said her attorney would not let her attend or talk to them at all. The attorney was concerned about the criminal charges, and figured she was going to lose her license anyway, so she should just protect herself in court. Chairperson Gale asked if the license revocation decision was appealed. Ms. Carnes said no.

Commissioner Poskochil noted that Ms. Carnes had her nursing license for a long time, but her not appearing before the regulatory board was a concern. Ms. Carnes said that, when you are facing a felony charge and your attorney says not to appear or he will not represent you, what do you do? The felony charge was much more of a threat than losing the nursing license. She would have had a more difficult future with a felony conviction.

Commissioner Poskochil asked if there was an amphetamine in Topamax. Ms. Carnes said no, there was no stimulant, but a lot of patients had observed weight loss.

A motion was made by Strand and seconded by Johnson to allow Ms. Carnes to sit for the salesperson examination, and to have a license issued upon passing.

Commissioner Poskochil noted that requirements had been made in the past for applicants still on probation. Director Tyrrell reviewed the typical restrictions. Commissioner Poskochil offered a friendly amendment that Ms. Carnes be required to notify her employing broker of her criminal history and license revocation, that the employing broker verify that notification to the Commission in writing, and that Ms. Carnes immediately notify Commission staff if she had any additional criminal arrests or probation violations during her probationary period. The friendly amendment was accepted by the mover and the seconder.

Commissioner Poskochil asked if Ms. Carnes was stating that they were false allegations. Ms. Carnes said yes, but that she accepted responsibility for them by pleading no contest, and not having a trial. She accepted responsibility, but maintained her innocence.

A vote was taken on the pending motion. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, and Wiebusch voting aye, and with Gale voting nay.

Chairperson Gale was temporarily excused from 2:02 p.m. to 2:20 p.m.

After discussion, a motion was made by Moline and seconded by Shepard to take no action until Mr. Wilson makes a special appearance, in person, before the Commission. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, and Wiebusch voting aye, and with Gale not participating or voting, being temporarily absent and excused.

At 2:26 p.m., a motion was made by Wiebusch and seconded by Johnson to go into closed session for discussion of personnel matters. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

At 2:46 p.m., a motion was made by Moline and seconded by Strand to go into open session. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

Director Tyrrell reported that nothing had changed since his previous report.

No action was necessary on this report.

Commissioner Wiebusch said that they had good sessions. Commissioner Johnson agreed that they were very good too, and the weather was not horrible. Commissioner Wiebusch said there were excellent speakers. Mike Pickens gave a good session on insurance, and said that the last time the insurance industry took in more money than it paid out was 1979. Stock market earnings had been used to make up the difference until recently. He also explained credit scoring, and said there was a 90% likelihood that someone with a low credit score would file a claim. Timothy Grooms had reported that Arkansas had a contingency for insurance as part of the purchase agreement, and that earnest money should be a substantial amount.

Director Tyrrell noted that Commissioner Wiebusch was nominated as a District Vice President for 2003-04. Elections would be held at the October meeting. Director Tyrrell said that the economist speaker was very good, and gave the impression of an absent-minded professor, but not as disheveled. His presentation was very interesting and humorous.

No action was necessary on this report.

The survey was included in every fourth piece of mail sent during June 2003. The response rate was low, but all comments received were positive.

No action was necessary on this report.

August 20, 2003 - Staybridge Suites, Lincoln
September 24-25, 2003 - Staybridge Suites, Lincoln
November 12-13, 2003 - Days Hotel Carlisle, Omaha
December 10-11, 2003 - Staybridge Suites, Lincoln
January 21-22, 2004 - Staybridge Suites, Lincoln

At 10:28 a.m., Chairperson Gale declared a brief recess, and reconvened the meeting at 10:43 a.m.

At 12:04 p.m., Chairperson Gale declared a recess for lunch, and reconvened the meeting at 1:15 p.m.

Chairperson Gale was temporarily excused from 2:02 p.m. to 2:20 p.m.

At 2:26 p.m., a motion was made by Wiebusch and seconded by Johnson to go into closed session for discussion of personnel matters. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

At 2:46 p.m., a motion was made by Moline and seconded by Strand to go into open session. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

At 2:50 p.m., there being no further business to come before the Commission, a motion was made by Strand and seconded by Moline that the meeting adjourn. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.

I, Les Tyrrell, Director of the Nebraska Real Estate Commission, do hereby certify that the foregoing minutes of the July 16, 2003, meeting of the Nebraska Real Estate Commission were available for inspection on July 30, 2003, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska.

Respectfully submitted,
Les Tyrrell
Director