Chairperson Gale convened a meeting of the Nebraska Real Estate Commission at 9:05 a.m. on January 21, 2004, in the Staybridge Room of the Staybridge Suites, located at 2701 Fletcher Avenue in Lincoln, Nebraska. All of the members of the Real Estate Commission were present, with the exception of Commissioners Johnson and Moline, who were absent and excused. Also present were Director Les Tyrrell, Deputy Director for Education Teresa Hoffman, Deputy Director for Enforcement Terry Mayrose, and Administrative Assistant Heidi Burklund. Jim Titus, Special Assistant Attorney General and Counsel to the Commission, was present for the rule 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 15f had been added since the tentative agenda was mailed to the Commissioners.

After review of the final agenda, a motion was made by Poskochil and seconded by Strand to adopt the final agenda as presented. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

The minutes of the Commission meeting held on December 10, 2003, were considered.

After review, a motion was made by Wiebusch and seconded by Shepard to approve the minutes as presented. Motion carried with Poskochil, Shepard, Wiebusch, and Gale voting aye, with Strand not participating or voting, not having been present at the meeting, and with Johnson and Moline not participating or voting, being absent and excused.

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

Director Tyrrell noted that there was nothing unusual to report in Receipts. Even with the late renewal mailing, receipts were caught up. Expenditures Category 521500, Publication & Printing, was considerably lower than expected, so there is probably a double bill coming; Category 527400, Repair and Maintenance of Data Processing Equipment, was for a printer repair; Category 556100, Insurance Expense, showed the actual expense for office insurance, because an error that had some other fund paying some of the insurance for all agencies was discovered; and Category 583300, Computer Hardware Equipment, was to replace the fax machine, which was purchased with savings on the laptops.

The cash fund balance as of December 31, 2003, was $991,160.88, which compared to a cash fund balance of $891,916.77 on December 31, 2002.

After discussion, a motion was made by Strand and seconded by Wiebusch to file the December Receipts and Expenditures Report for audit. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

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

Director Tyrrell noted that renewals were actually ahead of last year.

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 Wiebusch and seconded by Strand to ratify issuance of the licenses as set forth in the report. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

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

After review, a motion was made by Wiebusch and seconded by Strand to ratify the December Examination Report for the purpose of issuing licenses. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

Deputy Director Hoffman presented the 2003 Annual Report - Examination Facility Questionnaire Summary, a copy of which is attached to and made a part of these minutes.

Deputy Director Hoffman noted that the summary was organized by examination site, and said she thought the facilities did very well overall.

Commissioner Poskochil asked about the noise level at the Lincoln site. Deputy Director Hoffman noted that the Lincoln examinations were administered in an H&R Block office, which was a smaller building, so the sound carried more. There was a separate door, but it was a very short hallway to the rest of the office. Candidates have the option of using earplugs at all sites. Deputy Director Hoffman has asked Applied Measurement Professionals (AMP) to look at the sound problem. Commissioner Poskochil noted that the size was also marginal. Deputy Director Hoffman noted that 1 in 5 applicants had a problem with size. If 1 of the 3 stations was removed, it might resolve the size problem, but might sacrifice appointment times. Deputy Director Hoffman has asked AMP to study this matter as well. Deputy Director Hoffman was actually relieved by the responses, as there did not appear to be as many problems with the Lincoln site as had been implied.

Commissioner Wiebusch noted there was occasional noise in North Platte. Deputy Director Hoffman said she was surprised at that, because the office was in a big suite, and taxes were done in the other wing of the suite. There were just a few phones near the testing location, so she found that comment interesting. Some people were a lot more distracted by sound than others. Deputy Director Hoffman did not know how there could be a much better setup, except perhaps the Scottsbluff examination site, which was in a library.

Commissioner Poskochil noted that most of the scores were above average. Deputy Director Hoffman said she would report to the Commission what solutions AMP suggested for the Lincoln site.

No action was necessary on this report.

Deputy Director Hoffman presented the 2003 School Statistics Summary (Confidential Report). Due to the confidential nature of the report, a copy is not attached to and made a part of these minutes.

Deputy Director Hoffman said the report did not drastically change her impression of overall school performance. She also noted the report had some limitations. Students sometimes misreported schools, and there could be a considerable time lag between taking classes and taking the examination, as evidenced by the school listed on the report that had been closed for several years.

Commissioner Strand said people had mentioned that academic institutions, such as community colleges and universities, had a lower success rate. Deputy Director Hoffman noted that they had fewer applicants, which could skew the overall percentage, plus the potential time lag between classes and taking the examination. Commissioner Strand said he did not feel strongly on those, but was more interested in the performance of real estate schools. Deputy Director Hoffman noted that those schools were licensed by the Department of Education and reviewed every 5 years. The Commission has always been invited to participate in these reviews. Both the Department and the Commission look at success rates and that all guarantees offered were borne out. The real estate schools are doing a good job. Nebraska has a solid pass rate, which sets a high expectation, and the schools are meeting that. Schools often pay to send their instructors to the Instructor Workshops, and it is in their best interest to cull out bad instructors, which they do.

No action was necessary on this report.

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

Deputy Director Hoffman explained that the practice had been to seek attorneys to teach Real Estate Law classes. Central Community College had explained that they had been unable to find an attorney in the Columbus area who agreed to teach Real Estate Law. Mr. Ferguson taught both the Principles and Practices prelicense course and the Finance prelicense course, got consistently good evaluations from students, met the guidelines for prelicense instructors, and had extensive experience. Therefore, he was a good candidate for temporary approval. Deputy Director Hoffman will look at the evaluations and performance of students after this quarter, and will then consider permanent approval to teach Real Estate Law.

Commissioner Poskochil asked if Mr. Ferguson would only be teaching at one location. Deputy Director Hoffman said yes, a temporary approval was limited to one institution for a particular period of time. Commissioner Poskochil asked how many students would be in the class. Deputy Director Hoffman said it was typically a small amount, probably not more than 15, but she did not know the exact enrollment yet.

A motion was made by Strand and seconded by Poskochil to grant temporary approval for the first quarter of 2004, under the hardship provision as described. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

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.

After review, a motion was made by Strand and seconded by Wiebusch to ratify the report. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

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.

Commissioner Shepard asked about the courses and instructor for Creative Learning Concepts. Deputy Director Hoffman noted that these were national courses which had been previously approved from other providers utilizing other instructors. Deputy Director Hoffman routinely seeks affirmation that agency courses will be taught according to Nebraska law, to ensure no confusion arises. Deputy Director Hoffman has been assured this course would be taught correctly. Commissioner Poskochil asked how classes were monitored. Deputy Director Hoffman said this was a two-day class. She would attend part, and she would contact other attendees after the class. She also reviewed student evaluations. Agency was a very complex subject. Director Tyrrell said staff would somehow try to impress that Commissioners had expressed concerns regarding how the subject matter was presented, based on past experiences.

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

Commissioner Wiebusch asked if the disciplinary continuing education hours had been received from certain licensees currently under disciplinary action. Director Tyrrell said they had not been received as of the day before the meeting, but it was not unusual for those to come in during the last few days. Periodic reminders were sent to licensees, their employing brokers, and their attorneys. Commissioner Strand asked what happened if a licensee missed a deadline. Director Tyrrell said there would be a show-cause hearing, which had happened once or twice. Commissioner Poskochil asked if that would be noted on the report. Director Tyrrell said he would tell the Commissioners, and it would be scheduled in advance. Commissioner Wiebusch noted that one licensee on the report had completed the continuing education requirement. Director Tyrrell noted that each censure was different, and would come off the report when the requirements were completed. Licensees on probation were listed, with the continuing education requirements shown. Director Tyrrell also noted the hearing on the Pelshaw appeal was scheduled for February 12, 2004, in District Court. No briefs had been filed by Mr. Pelshaw, so no responses had been filed by the Commission attorney. Mr. Pelshaw had completed the education requirement, so he might just want the censure off his record.

No action was necessary on this report.

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

Item A Complaint #2003-039 - Janet M. Webb vs. Steven Lee Taylor

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 Strand and seconded by Shepard that the complaint be dismissed without prejudice. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

Item B Complaint #2003-045 - Amy Geren & Patrick Morrow vs. Walter Edward Peffer, Jr. & P.J. Morgan

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 Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

Item C Complaint #2003-048

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 Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

After further discussion, a motion was made by Wiebusch and seconded by Shepard that a complaint be filed against the complainant on the alleged violations noted in the conclusion of the report. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

Item D Complaint #2003-050

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 Shepard that the complaint be dismissed without prejudice against Respondent A. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

After further discussion, a motion was made by Shepard and seconded by Wiebusch that the Commission hold this complaint in abeyance against Respondent B, and file a new complaint on its own motion on the alleged violation of Neb. Rev. Stat. Section 81-885.24(29) for failure to inform the lender of the change in terms, i.e. the termite treatment not being done and the money in escrow for that purpose being given to the seller as additional proceeds. Motion carried with Poskochil, Shepard, Wiebusch, and Gale voting aye, with Strand voting nay, and with Johnson and Moline not participating or voting, being absent and excused.

Item E Complaint #2003-051

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 Strand that the complaint be set for hearing. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

Item F Complaint #2003-055 - Greg Poor vs. Charles Dale DeVetter, Jr.

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 Poskochil that the complaint be dismissed without prejudice. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

Item G Complaint #2003-056 - Robert R. Moline vs. Larry F. Zitek

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 Shepard and seconded by Wiebusch that the complaint be dismissed without prejudice. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

There were no stipulation and consent orders to be presented at the meeting.

Director Tyrrell reviewed the amendments and attachments set out in Title 300, Chapter 1. No comments had been received from the public or from registrants.

Chairperson Gale asked if there were any comments from the public. There were none.

A motion was made by Wiebusch and seconded by Strand that the Commission adopt Title 300, Chapter 1, as presented, and to direct staff complete the filing process for the proposed rule changes. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused. Consensus of the Commission was to authorize staff to make any non-substantive grammatical, spelling, or punctuation corrections needed.

Chairperson Gale declared the rule hearing concluded at 9:55 a.m.

Chairperson Gale reviewed the procedure for informal special appearances.

Mr. Bianco said there was no explanation for what he had done. At this time in his life, he was trying to move forward. He had put a lot of thought into it, and was at the point where he was ready to take action. Everything to this point had made him see that there was a way to stop things, that he was either in control or not in control. It took him quite a few years to grow up and realize that. He could not change his past, but he was trying to make his future better.

Commissioner Strand noted that the recommendation letters were addressed to the Pardons Board, and asked if they had received them yet. Mr. Bianco said no, he got the pardon application, but it took a while to put the materials together. He did not think he had enough of a good reason to ask for one, and thought they might deny it. He had the application since 1999, but thought more time between his conviction and pardon would help.

Commissioner Poskochil noted the Omaha Police Department memo, and asked if Mr. Bianco had any other run-ins with law enforcement. Mr. Bianco said he had a couple of speeding tickets in Minnesota, and learned that if he was on a route other than the Interstate, they strictly enforced the 55-mph speed limit. Mr. Bianco said he almost lost his license over it, and it cost a lot of money to have attorneys show up there for him, which made him keep his foot off the pedal. Mr. Bianco said he was more aware of the people around him and who he let into his home, which was just what Mom had told him about hanging around with the wrong people. Mr. Bianco said he did not intend to get into trouble again. He just had speeding tickets in Minnesota and Iowa, and maybe book violations. Commissioner Poskochil asked if he had any drinking violations. Mr. Bianco said no, there was no substance abuse. He occasionally drank beer, but did not drive if he had anything to drink. His CDL was very valuable to him, and he planned to keep it. Commissioner Poskochil said the Commission needed to make sure the people riding with him were safe. Commissioner Poskochil asked if Mr. Bianco was married. Mr. Bianco said yes. Commissioner Poskochil asked if he had any kids. Mr. Bianco said no. Commissioner Poskochil asked if Mr. Bianco was financially OK. Mr. Bianco said yes, his wife was a nurse, and they owned their home. If it was not for his wife and his mother, Mr. Bianco said he might still be in trouble. Commissioner Poskochil asked if he had difficulties when he was 16-18 years old. Mr. Bianco said he had a troubled childhood, and did not like to go to school, so he got into trouble early. They were just childhood things. Chairperson Gale asked if Mr. Bianco had his high school degree. Mr. Bianco said he got his GED in 1990.

Commissioner Strand asked where Mr. Bianco was in his real estate pursuit. Mr. Bianco said he was taking courses at a real estate school in Omaha, which brought him here. Mr. Bianco had been spinning his wheels with certain projects, and for the last year had nothing new going for himself, and he was trying to do it all alone as an investor. Mr. Bianco said he needed some experience, to do it for someone else for a period of years. He had educated himself with the laws of real estate, so he did not need to rely on an attorney or title company to do it. His instructor indicated she was interested in having him on their team, which was close to his home.

Chairperson Gale asked why Mr. Bianco had not completed the process for a pardon. Mr. Bianco said there was no reason. His wife had requested the application for him, but when he was driving, he let bills and paperwork slide. Procrastination was the main reason. Chairperson Gale asked if Mr. Bianco still had the paperwork. Mr. Bianco said yes, he was just waiting for recommendation letters. He wished he had done it with Clinton still in office. Chairperson Gale noted that would not have helped, because the pardon was granted at the state level.

A motion was made by Strand and seconded by Shepard to allow Mr. Bianco to sit for the salesperson examination after making proper application, and to have a license issued upon passing, whether or not he sought a pardon.

Commissioner Shepard noted that Mr. Bianco had spent almost half his life with a clean nose, and agreed with Commissioner Strand. Commissioner Poskochil concurred, and said a lot of kids made the same mistakes. Commissioner Poskochil thought Mr. Bianco was making a career change to better his family, and was not making those same mistakes today. Commissioner Poskochil emphasized that Mr. Bianco needed to protect the people who would work with him and ride with him, and had to make sure he was meeting those requirements.

Mr. Bianco assured the Commission that he will be applying for the pardon, probably right away. If he was not pardoned, he would not let that stop him. Chairperson Gale noted that quite a few got granted. Mr. Bianco said his conviction was the first thing he said at a job application, and some employers frowned but some accepted it. Chairperson Gale said it would be good for his life and career to have his conviction off the books, and that he thought Mr. Bianco had earned that. If the motion was approved, godspeed and the Commission wished him well. If the motion was not approved, Chairperson Gale expected to see Mr. Bianco back in a few months after his pardon.

A vote was taken on the pending motion. Motion carried with Poskochil, Shepard, Strand, and Wiebusch voting aye, with Gale voting nay, and with Johnson and Moline not participating or voting, being absent and excused.

Deputy Director Hoffman presented an exhibit regarding the estimated costs of sending Commissioners and staff to regularly-attended meetings in 2004. A copy of said exhibit is attached to and made a part of these minutes.

Director Tyrrell reviewed the Omaha Mid-Year Meeting timeline. Director Tyrrell said Commissioners could stay overnight, even for the Lincoln people, and they could attempt to get the government rate. Commissioner Wiebusch said that attending and observing the Board of Directors meeting would be very interesting, to see what transpires in ARELLO with restructuring and strategic planning. Deputy Director Hoffman noted that the Friday session at 3:30 p.m. would be a town hall meeting when the strategic planning work would be presented to the membership, and she encouraged Commissioners to attend. It is expected that there will be some significant changes proposed. Commissioner Wiebusch said the process will be interesting.

After discussion, a motion was made by Poskochil and seconded by Wiebusch to approve the expenditures for applicable Commissioners and staff to attend the 2004 meetings. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

After discussion, a motion was made by Shepard and seconded by Wiebusch to proceed under the current examination cycle. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

Director Tyrrell presented the draft copy of LB 845, which was introduced into the legislature by Sen. Byars, regarding the errors and omissions insurance premium limit increase and the amendments to the Time-Share Act. A copy of said exhibit is attached to and made a part of these minutes.

Director Tyrrell noted that the amendments were incorporated into a single bill, LB 845, which was assigned to the Banking, Commerce and Insurance Committee. Counsel Titus and Director Tyrrell will attend the hearing. Director Tyrrell also reviewed other bills of interest to the Commission. Director Tyrrell noted that items a-d were carried over from last year. Item f, the Deficit Appropriations Bill, included the health insurance appropriation decreases which would affect every agency. It was the consensus of the Commission that Director Tyrrell could testify on it by letter if necessary.

No action was necessary on this report.

Commissioner Wiebusch said the meeting was a big-time learning experience for her. Jean Frankel did a presentation on strategic planning in organizations such as ARELLO. Small tables discussed the presentation, then she guided the discussion. The next day, Commissioner Wiebusch had lunch with experienced Board of Director members and long-time ARELLO members. Commissioner Wiebusch noted they were changing the ARELLO schedule, to have a full-day Board of Directors meeting for strategic planning. The main expectation is that the function of committees and the Board would change, so that committees would do research and give reports with options to the Board, which the Board would then use to make decisions. It would be a working Board rather than a rubber stamp.

March 3-4, 2004 - Days Hotel Carlisle, Omaha
April 1, 2004 - Staybridge Suites, Lincoln
May 19-20, 2004 - TBA
June 14-15, 2004 - TBA
August 17-18, 2004 - Staybridge Suites, Lincoln

At 9:34 a.m., Chairperson Gale declared a brief recess, and reconvened the meeting at 9:43 a.m.

Chairperson Gale declared the rule hearing concluded at 9:55 a.m.

At 10:57 a.m., Chairperson Gale declared a brief recess, and reconvened the meeting at 11:08 a.m.

At 12:25 p.m., Chairperson Gale declared a brief recess, and reconvened the meeting at 12:28 p.m.

At 12:50 p.m. on January 21, there being no further business to come before the Commission, a motion was made by Strand and seconded by Poskochil that the meeting adjourn. Motion carried with Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Johnson and Moline not participating or voting, being absent and excused.

I, Les Tyrrell, Director of the Nebraska Real Estate Commission, do hereby certify that the foregoing minutes of the January 21, 2004, meeting of the Nebraska Real Estate Commission were available for inspection on February 4, 2004, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska.

Respectfully submitted,
Les Tyrrell
Director