|
COURTSIDE
REPORTS
FORMS
THE STANDARDS THAT
APPLY
N.A.R. Code of Ethics
Association Governing Documents
Duty to Arbitrate
Discipline Proceedings
Non-REALTORŪ Members
N.A.R. Code Of Ethics
THE PROCEDURES FOR ENFORCEMENT
Due Process
Professional Standards Committee
Grievance Committee
Hearings
Arbitration
Discipline
Mediation
|
|
Due
Process
The due process rights of participants guaranteed in the professional standards
process include notice of a complaint and response, time to prepare
a defense, continuance for good cause, opportunity to challenge members
of hearing panel, right to attorney or non-attorney representation (upon
notice), right to call and question witnesses, right to testify in own behalf,
and notification of the decision.
Professional
Standards Committee
- The Association has a standing Professional Standards Committee
whose function is conducting arbitration hearings and other disciplinary
hearings.
- The majority of the committee members are licensed real estate
brokers. There is a minimum of nine committee members, who hold staggered
three year terms.
Grievance
Committee
- The Association has a standing Grievance Committee whose function
is to do a "paper review" of disciplinary complaints to screen out
frivolous complaints to prevent abuse and harassment and to assure
complaints are properly framed. It does not screen arbitration requests.
Grievance Committee "paper review" is the first step in the Disciplinary
Hearing process; there is no fact finding, interviews or hearings;
the complaint is either dismissed or referred for a Disciplinary
Hearing.
- The majority of the committee members are licensed real estate
brokers. There is a minimum of five committee members, who hold staggered
three year terms. The Grievance Committee does not hold hearings
or make decisions regarding violations.
Hearings
- A hearing tribunal is comprised of an odd number of members (usually
3). Members may be from either the Professional Standards Committee
or the Grievance Committee, depending on whether it is an arbitration
or a disciplinary hearing, or selected from a panel shared with other
associations pursuant to an agreement, or from panelists selected
by C.A.R.. A majority of tribunal members must be licensed real estate
brokers. One tribunal member must be a salesperson if the respondent
is a salesperson. A non- REALTORŪ MLS participant or subscriber
may request a non- REALTORŪ be on the tribunal, subject
to the requesting party paying the associated costs. Upon receipt
of list of potential members, challenges for cause may be made.
- Before the hearing, each tribunal member certifies in writing there
is no reason for disqualification, such as being a party, related
to a party, employed by, or a business associate of a party to the
dispute.
- The Association makes an official tape recording of the hearing
and maintains it for 21 days. Deliberations are not taped.
- All participants must keep the proceedings and the decisions confidential, subject
to limited exceptions.
Arbitration
- Arbitration is used to resolve monetary disputes arising out of
the real estate business. Disciplinary sanctions are not imposed
in arbitration hearings. If there is a related disciplinary complaint,
arbitration is first held, then a disciplinary complaint is filed.
Arbitration is a form of Alternative Dispute Resolution ("ADR") that
is recognized and encouraged by the State Legislature and Courts.
Members of the Association agree, as a condition of membership, to
submit disputes to arbitration.
- Arbitration is initiated by a written request (Complaint) to the
Chief Executive Officer of the Association within 180 calendar days
of the close of escrow or after facts could have, in the exercise
of reasonable diligence, been known. N.A.R. and C.A.R. printed forms
are available http://www.car.org/ or http://nar.realtor.com/
- The filing fee for an arbitration complaint is $500.00.
- The Chief Executive Officer upon receipt of the complaint may advise
the parties that mediation is available.
- The Grievance Committee reviews the complaint and advises the parties
if the matter is arbitrable and that mediation procedures are available.
- The Broker at the time the money was owed must be included as a
party.
- Notice of the request to arbitrate is mailed to the respondent;
a written response is not required, but respondent is obligated to
arbitrate with or without a response
- Respondent may file a counter claim ; a counter claim is required
for respondent to receive a monetary award for money other than the
subject of the original complaint; costs are recoverable by prevailing
party without a counter claim
- Hearing is scheduled.
- Parties voluntarily exchange evidence; if dispute exceeds $50,000
a list of all witnesses and evidence must be exchanged prior to the
hearing.
- Parties may request Chief Executive Officer to issue subpoenas
for witnesses which party is responsible for serving.
- Hearing is conducted; strict evidence rules do not apply.
- Complaining party must appear to conduct a hearing; hearing must
be conducted to render an award.
- Responding party's failure to appear does not prevent hearing from proceeding
and an award being rendered.
- N.A.R. and C.A.R. printed forms are available.
Discipline
- Discipline proceedings are used to impose sanctions for alleged
violations of or failures to conform to the specific professional
standards of the N.A.R. Code of Ethics, the Association's Bylaws,
Constitution, or Rules and Regulations, or the MLS rules.
- Discipline complaints go through a 3 tier process.
Tier One -- Discipline proceedings are initiated by a Member, nonmember, or
the Grievance Committee, by filing a complaint with the Grievance Committee.
Time to file is 180 days after the facts could have, with reasonable
diligence, been known. The parties are the complainant and the respondent
and may also include the REALTORŪ principal, respondent's MLS participant
at the subject time. N.A.R. and C.A.R. printed forms are available http://www.car.org/ or http://nar.realtor.com/.
There is no fee for filing a discipline complaint.
A "paper review" is conducted -- there are no fact finding, interviews
of parties, or due process hearing.
The Grievance Committee may:
Dismiss the complaint if
the alleged facts do not support the claim,
Refer the complaint for
a disciplinary hearing, or
Refer the complaint for
an arbitration hearing if the matter involves a monetary
dispute
Tier Two -- Disciplinary hearing is held.
Grievance Committee may become the complainant if the complainant
fails to appear. Responding party's failure to appear does not prevent
hearing from proceeding. Evidence is presented; subpoenas are not
available. Recommendation made, based on findings of facts, for either:
No violation, or Discipline, which can be:
a letter of warning
a letter of reprimand
a fine
required attendance at an ethics, MLS,
or other appropriate course
probation
suspension of membership in Association
expulsion of member from Association
referral to the Department of Real
Estate
administrative processing fee if violation
found.
Tier Three - Director review of the hearing results
Ratification by Directors is required before the decision or sanction becomes
final. Review of findings of fact and recommendations may be requested
within 20 days based on misapplication or misinterpretation of the
Code of Ethics due process or procedural deficiency unwarranted discipline.
Following review, the recommendations can be adopted or modified,
the matter dismissed, or the matter referred for a rehearing.
Mediation
- Mediation is an entirely voluntary alternative dispute resolution
method that is available to parties to an arbitration dispute. Mediation
provides an opportunity for the parties to come together in an informal
setting to resolve their differences amicably without the time and
expense of a formal arbitration proceeding. It is not required and
is not intended as a substitute for arbitration.
- The Chief Executive Officer may ask the parties to consider mediation when
the complaint is received
- The Grievance Committee, upon its review of the complaint, may
advise the parties that mediation procedures are available.
- The complainant submits a request for mediation http://www.car.org/ or http://nar.realtor.com/
- Upon agreement by the parties, a mutually agreeable date, time
and place will be arranged for mediation before an experienced qualified
and impartial mediation officer
- A party may withdraw from the mediation process at any time
- If the mediation successfully reaches a resolution of the dispute,
a mediation resolution agreement will be prepared and signed by the
parties binding them to the resolution set forth and waiving all
future right to submit the dispute to arbitration
- If the mediation is unsuccessful, the mediation officer may recommend
a resolution at the conclusion of the mediation; if a party rejects
the suggestion, or if no response to the recommendation is received,
the mediation officer will advise the Board that the mediation has
terminated without a resolution
- Following unsuccessful mediation, the request for arbitration will
proceed to hearing.
|
