NEBRASKA REAL ESTATE COMMISSION

December 10, 2003

Staybridge Suites                         Staybridge Room                         Lincoln, NE


Opening

Chairperson Gale convened a meeting of the Nebraska Real Estate Commission at 9:04 a.m. on December 10, 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, with the exception of Commissioner Strand, who was 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. Abbie Widger, Special Assistant Attorney General and Counsel to the Commission, was present for the policy discussion 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 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 10a 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, Wiebusch, and Gale voting aye, and with Strand not participating or voting, being absent and excused.

Minutes of November 12, 2003

The minutes of the Commission meeting held on November 12, 2003, were considered.

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

Receipts and Expenditures Report for November

Director Tyrrell presented the Receipts and Expenditures Report for November. 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. Expenditures Category 521100, Postage Expense, was over the budgeted amount for the month because of the late renewal mailing; Category 521200, Communication V/D Expense, will be on next month=s report; and Category 527100, Repair and Maintenance of Office Equipment, was for the maintenance contract for the 4 remaining typewriters. The net change to accounts payable was sizeable due to a few bugs still in the NIS system with regard to contracted services, but they were paid.

The cash fund balance as of November 30, 2003, was $737,270.80, which compared to a cash fund balance of $718,968.07 on November 30, 2002.

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

Renewal Report

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 this was the first renewal report of the year, due to the late mailing of renewals. The report was fairly comparable to last year at this time. There was nothing unusual in the report except that there were considerably more branch offices this year than last.

Chairperson Gale asked if the big dropoff in salesperson renewals was unusual. Director Tyrrell said no, about 85% is normal. Director Tyrrell noted that 360 more salesperson renewals were mailed this year than last, so salesperson renewals were actually 300 ahead of last year. Approximately 100 fewer broker renewals were mailed this year, which was about the same number as broker renewals were down.

No action was necessary on this report.

Specialized Registrations

There were no specialized registrations to report.

Non-Resident Licenses and Resident Licenses Issued to Persons Holding Licenses in Other Jurisdictions 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 Wiebusch to ratify issuance of the licenses as set forth in the report. Motion carried with Johnson, Moline, Poskochil, Shepard, Wiebusch, and Gale voting aye, and with Strand not participating or voting, being absent and excused.

November Examination Report

Deputy Director Hoffman presented for ratification the November Examination 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 the November Examination Report for the purpose of issuing licenses. Motion carried with Johnson, Moline, Poskochil, Shepard, Wiebusch, and Gale voting aye, and with Strand not participating or voting, being absent and excused.

Commissioner Poskochil asked about the additional AMP reports requested by the Commission. Deputy Director Hoffman said she was working with AMP to generate the reports as requested. AMP was not set up to do the reports right now. Deputy Director Hoffman did not know if a site breakout would be available, but AMP was looking at it now. Director Tyrrell said that, informally, staff could tell from where most of the complaints came. Deputy Director Hoffman said that, with the size of the room in Lincoln, she could investigate how often all the stations were utilized, and perhaps having fewer stations would give applicants more room. She would not want to cause a backlog of applicants waiting to take the examination.

Real Estate Education Matters

Continuing Education Activity Approval

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.

Continuing Education Instructor Approval

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

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.

No action was necessary on this report.

Counsel Widger noted that Commissioner Moline had asked about other costs which could be charged to respondents. The statute stated that only the costs of a formal hearing could be charged against a respondent. Informal hearings would include settlement agreements and stipulation and consent orders.

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

Item A Complaint #2003-033

Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. Deputy Director Mayrose noted that additional investigation had been done on this matter, regarding the other licensees involved in the transaction, as requested at the previous meeting.

After being advised of the results of the re-investigation and discussion, a motion was made by Wiebusch and seconded by Johnson that the Commission file a complaint against the respondent=s broker for dispersing the earnest money without authorization, and file a complaint against the limited buyer=s agent #2 for authorizing dispersing the earnest money when the agent knew there was a dispute.

After discussion, Commissioner Wiebusch questioned whether there should be separate motions on the separate proposed complaints. The pending motion was withdrawn by the mover and seconder.

A motion was made by Wiebusch and seconded by Johnson that the Commission file a complaint against the respondent=s broker for dispersing the earnest money to the limited buyer=s agent=s broker without written authorization, as set forth in the alleged violations on page 4 of the report. Motion carried with Johnson, Moline, Poskochil, Shepard, Wiebusch, and Gale voting aye, and with Strand not participating or voting, being absent and excused.

A motion was made by Moline and seconded by Wiebusch to dismiss the complaint against the original respondent. Motion carried with Moline, Poskochil, Shepard, Wiebusch, and Gale voting aye, with Johnson voting nay, and with Strand not participating or voting, being absent and excused.

A motion was made by Wiebusch and seconded by Johnson that the Commission file a complaint against limited buyer=s agent #2 and the agent=s broker for authorizing dispersal of the earnest money without written authorization, as set forth in the alleged violations on page 4 of the report. Commissioner Wiebusch clarified that the specific alleged violations were for '81-885.24(29) for the limited buyer=s agent #2, and '81-885.24(29) and (5) for the agent=s broker.

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

Item B Complaint #2003-041 - Richard W. & Judy K. Circo vs Edward Leonard Becker & Jesse A. Martinez

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

Item C Complaint #2003-044 - Gary Ardery vs George E. Murray

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

Commissioner Wiebusch asked if item 3 on page 3 should have stated that the property was offered without the complainant=s permission. Deputy Director Mayrose said yes, it should have.

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, Wiebusch, and Gale voting aye, and with Strand not participating or voting, being absent and excused.

Item D Complaint #2003-054 - John L. & Bette Baer Bohrer vs Donald Keith Sater & Charles Wing Concannon

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

Presentation of Stipulation and Consent Orders

Complaint #2003-058, Commission vs Suzanne Marie Morehead

Deputy Director Mayrose presented a stipulation and consent order in the matter of Complaint #2003-058, Commission vs Suzanne Marie Morehead. A copy of said order is attached to and made a part of these minutes. Ms. Morehead was not present.

Deputy Director Mayrose reviewed the circumstances involved and noted the provisions of the order, which had been signed by Ms. Morehead. The order specified a censure plus six hours of additional continuing education, consisting of 3 hours in agency law and 3 in license law, to be completed within ninety days.

After discussion, a motion was made by Moline and seconded by Johnson to enter into the order as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Wiebusch, and Gale voting aye, and with Strand not participating or voting, being absent and excused.

A motion was made by Moline and seconded by Johnson to dismiss Complaint #2003-037, which was held in abeyance pending the outcome of the Commission=s complaint. Motion carried with Johnson, Moline, Poskochil, Shepard, Wiebusch, and Gale voting aye, and with Strand not participating or voting, being absent and excused.

Hearings

There were no hearings scheduled for this meeting.

Informal Special Appearances

There were no hearings scheduled for this meeting.

Amendments to Guidelines for Original Applicants with History of Disciplinary Action in Another Regulatory Jurisdiction and Criminal Convictions

Director Tyrrell presented an exhibit which consisted of the Commission=s guidelines for applicants with criminal or disciplinary action history. A copy of said exhibit is attached to and made a part of these minutes.

Director Tyrrell noted that the guidelines had been modified as discussed at the previous Commission meeting, and according to previous actions taken by the Commission under the guidelines.

Chairperson Gale said he felt wedded to the existing guideline. He had an issue with the 10-year provision. Chairperson Gale said that anyone with a felony on their record who led a good life since could get a pardon, and therefore would not need to appear. If an applicant had not received a pardon, Chairperson Gale would like to know why, i.e. what in the person=s life or history was preventing that. Chairperson Gale said they owed the Commission an explanation of why they were still living with a conviction, which was a red flag. Receiving a pardon was a fairly standard matter, and easy to get. If an applicant was a salesperson who wanted to be a broker, it would be an opportunity to learn how to get pardon. The Pardons Board had just granted a pardon to a current broker who thought a pardon had been granted with the ending of his parole. The certificates that say a pardon was granted were worthless, because only the Parole Board could grant a pardon. The issue usually came up when a person applied for a gun permit. Chairperson Gale wanted anyone without a pardon to show up, because it was good for them to have that discussion.

Chairperson Gale said that, in terms of a pattern of other misdemeanor convictions, he was 50/50 on that. Chairperson Gale asked for clarification that the 10-year rule did not apply there. Director Tyrrell said that was the way he understood it. Commissioner Moline noted that, with the pattern language, Director Tyrrell could bring in convictions even if they were over 10 years ago. Director Tyrrell said that was correct, and noted that if it was a sex offender convicted 30 years ago, he would still bring it to the Commission. Chairperson Gale agreed that, for such a heinous thing, he would want the Commission to look at the applicant.

Chairperson Gale liked that a pattern would let misdemeanors come before the Commission, if they were significant. Chairperson Gale asked if a pattern was considered two or more convictions. Director Tyrrell said it would also depend on what the conviction was. Commissioner Moline noted that staff still review all applications, and decide whether that person was going to the Commission, even with the guidelines. Commissioner Moline was interested in making it so that applicants like Johnny Rodgers, whose record had been exemplary since his conviction, did not have to appear.

Commissioner Poskochil said he did not like the 10-year provision. Commissioner Moline said it should be taken out.

Commissioner Wiebusch said that numerous licensees were telling her that felons should never get a license, and the Commission should raise its standards. The licensees did not know the full situations involved, but lots were saying that.

Commissioner Moline said it had to be a decision made by people, and that there had to be some forgiveness in this world. The same people would say to get rid of low producers, which was self-serving in most cases.

Chairperson Gale said that, if a conviction was more than 10 years ago, people could get a pardon with no fee and no problems. If the Commission set the limit at 10 years, but an armed robbery was committed 12 years ago or an assault 15 years ago, the public would want the Commission to look at the applicant. The Pardons Board had a thick file of the full record before them, and really knew what they were doing. The Commission did not have anything like that. Commissioner Moline said it could not be easy to put together a thick file. Chairperson Gale noted that the Pardons Board staff did that, not the applicant.

Commissioner Poskochil said that an applicant might wait 10 years to avoid dredging up their record, and he did not want to get into that. It was the consensus of the Commission to strike the language regarding the 10-year provision.

Chairperson Gale noted that a lot of people were now asking for pardons for misdemeanors. Usually people with felonies applied so that their civil rights could be reinstated, but they were now having misdemeanors pardoned because they were not eligible for public safety jobs. The Pardons Board was a lot more lenient on that, and it only took 3 years of a clean record for a misdemeanor pardon. If a conviction was still on a person=s record, he would have to wonder why, with the other options to clean it up. It made some sense to have people come in for a pattern of convictions. Once could be a single traffic offense, but if a person had three DWIs which were all first offense misdemeanors through plea bargains, the Commission should take a look at it.

Commissioner Johnson asked why 10 years was selected. Director Tyrrell said it was only put in there because that seemed to be the Commission=s practice. At last month=s meeting, the Commission had no questions for the applicants, and the appearance was merely pro forma. Director Tyrrell noted that it was 10 years after the end of the sentence, not just since the conviction. Counsel Widger said she just picked it in order to open the discussion, based on last month=s discussion. Commissioner Johnson agreed it would typically be longer than 10 years since the conviction, if counting from the end of the sentence.

Commissioner Moline was absent and excused from 12:02 p.m. to 12:04 p.m.

Commissioner Johnson said he felt the gentleman whose record was exemplary for 40 years would not have needed to show up at all. Counsel Widger agreed. Commissioner Moline said that proved Chairperson Gale=s point, because he was retired from the same company after many years, and did not know he could have received a pardon.

Chairperson Gale said he wanted the person to just have to come look us in the eye and explain. The Commission was taking that responsibility off Director Tyrrell=s shoulders, and the Commission should decide who got in.

Director Tyrrell clarified the wording change to eliminate the 10-year provision. The Commission agreed by consensus.

Commissioner Moline asked if the Commission was comfortable with the pattern provision. It was the consensus of the Commission to keep the language. Chairperson Gale noted that one bad check was not a problem, but a pattern would call into question an applicant=s integrity and honesty.

Chairperson Gale noted that he wanted a provision to require some applicants to reappear when applying for a broker license. A broker had a whole new level of fiduciary responsibility. Certain offenses, such as financial scams, would cause him to make an applicant reappear as part of the Commission=s original decision. It was the consensus of the Commission to keep the language regarding reappearances.

A motion was made by Wiebusch and seconded by Moline to adopt the guidelines as amended during discussion. Motion carried with Johnson, Moline, Poskochil, Shepard, Wiebusch, and Gale voting aye, and with Strand not participating or voting, being absent and excused.

Discussion of Agency Relationships with Builders Prior to Listing Agreements

Director Tyrrell presented an exhibit which summarized agency statutes as they pertain to agency relationships with builders prior to listing agreements and current advice given licensees. A copy of said exhibit is attached to and made a part of these minutes.

Doug Ruge, attorney for CBSHOME in Omaha, distributed an exhibit which included a memorandum on custom homes and a CBSHOME new construction agency agreement form. A copy of said exhibit is attached to and made a part of these minutes, denoted as exhibit 14a. Mr. Ruge maintained that the law did not address builders of custom homes. The memo was an effort to comply with the law. Mr. Ruge said they could work under the scheme Director Tyrrell had set out in his exhibit with no problem, but Mr. Ruge did not think it technically complied with the law. The issue of unrepresented buyers and sellers also needed to be addressed, but the main item he wanted to address was agency agreements with custom home builders.

Director Tyrrell noted that the exhibit was not his scheme, but was based on the recommendation of Dick Nelson, the Commission=s legal counsel at the time the Agency Relationships statute was developed, passed, and implemented effective in July 1995. Mr. Ruge noted that Director Tyrrell was trying to work with them. Chairperson Gale asked if the exhibit was a rule or a guideline. Director Tyrrell said it was neither, but was a summary of what the Commission recommends to licensees working with builders. It was developed because of questions from licensees working with builders. At that time, Counsel Nelson determined that the law did not require a listing agreement, but an agency agreement was required. Most people turned that into a listing agreement. With a builder/seller who did not want to do a listing agreement, but wanted the licensee to represent the builder as a seller=s agent, a written agency agreement with terms of compensation, a fixed expiration date, and duties to be performed was required. Otherwise, a licensee was automatically a buyer=s agent under the law. If a listing agreement was needed at a later date, that can be done later. Counsel Widger reiterated that the exhibit was not a formal guideline, but was the advice given if someone called the Commission office.

Joe Valenti, broker for CBSHOME, asked how anyone would know that, and how it was communicated to brokers. Director Tyrrell said it was the advice given whenever someone telephoned with questions. Director Tyrrell assumed that if someone was having a problem with it, they would call the Commission office. Mr. Valenti said that if that interpretation of the law had been in place for eight years, he suggested that it be distributed as a communique or in the Commission Comment to let people know about it. Mr. Valenti said he represented a lot of builders, and someone had suggested to have a blank agency disclosure pamphlet with a builder. Director Tyrrell said the question had been asked in 1995, because brokers were calling to see if an agency acknowledgment page was needed on each property in a development. After checking with legal counsel, it was determined that licensees could have one acknowledgment page signed that applied to a development. If there was a gap in representation, the Commission would want another acknowledgment page signed. Otherwise, a copy of the original acknowledgment would be put in each transaction file. There had been several discussions at the time the law was implemented, including at the education sessions which were held statewide.

Chairperson Gale clarified that the exhibit did not rise to the level of a rule or guideline, but was the work product of a staff attorney. Mr. Valenti said that, for future reference, it would be good to distribute the information. He would have wanted to know the problem could have been solved another way. His agent was critical of CBSHOME, and questioned why Mr. Valenti did not tell him about this type of agreement. Mr. Valenti said he did not know it was available.

Mr. Ruge said there was no way to come up with an agreement until the terms of compensation were determined. The discussion was now passe, and CBSHOME would move forward, and comply with the law. Mr. Ruge agreed that, unless there was a seller=s agency agreement, licensees were buyer=s agents. He came up with the new construction language in his exhibit, but it did not really define terms of compensation. As a practical matter, builders would not agree to compensation terms until all the terms of the transaction were defined. If there was no way to have an agreement that fit the law until a compensation agreement was reached, licensees were buyer=s agents.

Mr. Valenti asked if item 7 on the CBSHOME new construction agency agreement was in compliance with agency law. Item 7 stated that compensation would be agreed upon at the listing agreement, which was drawn up at same time as the purchase agreement for a custom home. That was when compensation was determined.

Commissioner Moline noted that the statute said compensation had to be included in the agency agreement, and questioned whether item 7 met the statutory requirement. Counsel Widger said that compensation needed to be discussed. Terms of compensation had to be addressed, but the statute did not say it had to be a certain percentage.

Mr. Ruge noted that the 3rd statutory citation in his memo was the exact statute language. Counsel Widger said it was not possible to set out the precise terms of compensation in the builder situation. Commissioner Moline asked if that would be a judge=s interpretation. Counsel Widger said it depends. Director Tyrrell said the agency agreement could say compensation would be determined later, according to the Commission=s legal counsel. The statute did not require Afixed terms of compensation,@ as it specifically required a Afixed date of expiration,@ as it had been explained to Director Tyrrell. Without a written agreement, licensees were buyer=s agents. The parties could agree that the terms of compensation will be decided in the future, whether at the listing agreement or by signing a separate compensation agreement. Counsel Widger said that she had reviewed the old files from 1994-95, when the law was being developed. At one point in one draft, fixed terms of compensation was handwritten in, then taken out. The specific issue was discussed during drafting.

Mr. Ruge said that the fact that the interpretation was being respected by Commission gave him comfort. His concern was that licensees did not lose their licenses. Mr. Ruge said he respectfully disagreed with that interpretation. If the statute says to specify terms of compensation, the agreement needed to specify those terms, not just the mechanism used to specify those terms. Mr. Ruge suspected a court would read the plain language of the statute, which did not say you could agree later to compensation.

Mr. Valenti said he knew the statute was a lot of work, and asked if it could be modified in a housecleaning effort. Director Tyrrell asked how he would like it modified. Mr. Valenti asked if the Commission could change the rule. Counsel Widger noted that this was a statute. Mr. Valenti said he wanted it to be consistent. Director Tyrrell noted that not defining terms of compensation had never been an issue in any complaint filed on agency. Mr. Valenti said that, in the recent complaint, it could have been. Director Tyrrell disagreed, and said that if agency disclosure had been made when the licensee had a significant conversation with the complainants, there would not have been a complaint.

Mr. Valenti asked how an agent would know if a buyer was represented or unrepresented. Director Tyrrell said that, if a buyer=s agent was with them, the licensee would know. Otherwise, when people came in cold, the licensee could ask them if they were represented. Some builders have people write down their name and the buyer=s agent=s name, so they know who the split goes to. Director Tyrrell said the licensee should just ask, AAre you represented by anybody?@ If the answer was yes, no brochure was needed. If there was not a substantive conversation, no brochure was needed. The point of substantive contact was when the brochure was needed with an unrepresented person.

Mr. Valenti asked, if a licensee was meeting with a variety of customers and clients, when the brochure was needed. Commissioner Poskochil said that, if a licensee was representing a builder for years, the licensee needed to go over the brochure and explain agency, and needed to have a written agency agreement. Mr. Valenti asked if that was a pseudo listing agreement. Commissioner Poskochil said the licensee had to go over the disclosure at the time, but an agency agreement could go on for years, if it was included in all files needed. Disclosure was different than a listing agreement.

Mr. Ruge said there was no provision under the law that a listing agreement was required. The agency agreement could contain the terms of compensation. Counsel Widger agreed. If the general terms of compensation were acceptable, just a listing or compensation agreement was needed for each property.

Mr. Ruge said he would submit that 76-2422(2) was a listing agreement. Director Tyrrell disagreed. Director Tyrrell said he attended the Agency Task Force meetings when the law was developed, and it was specifically not done as a listing agreement, because parties can enter into an agency agreement without a listing agreement. Mr. Ruge said that was fair enough, but it was not understood when reading the law.

Commissioner Moline said that builders would not sign blanket listing agreements, because they want to leave whenever they want. Commissioner Moline said he could see that a builder might agree on compensation. With a fixed date of expiration, an agency agreement might look like a listing agreement. Commissioner Moline thought there were a lot of licensees that might not know about this, and were operating differently. The Commission needed to educate people in the state. The Commission needed something signed that protected everyone.

Commissioner Johnson noted the agency disclosure exemption for commercial real estate, and asked if the Commission considered developers as sophisticated as commercial buyers. Commissioner Moline said he might. Director Tyrrell noted that the only thing exempted was completing the brochure, not written agency agreements. This problem was with agency agreements. The current interpretation has been used for 8+ years without a complaint. Director Tyrrell talked to an attorney who called regarding the agenda item, and asked if the Commission was going to change the interpretation, and cited it. The attorney did not want the Commission to change it, and said it was working well with builders. There had been one situation, where two people got censured not because of an agency agreement, but because of the way they did or did not disclose their agency, and two people got confused.

Commissioner Moline said that agents would want to know how they get paid, but most represented sellers with no clue how they would get paid, because a builder would not sign anything. Chairperson Gale asked if compensation was defined at the purchase agreement. Director Tyrrell said some used a separate compensation agreement for a property, signed by the builder and the licensee.

Mr. Valenti maintained there was not even an agency agreement in those cases. Director Tyrrell, said that, in talking to people, they did enter into some kind of agency agreement, because the builder did not want a listing agreement. Some did a listing agreement later, and some just did a compensation agreement on each property. Director Tyrrell could not speak to all situations, but of the ones who had asked for advice, that was what they did.

Mr. Valenti asked if there was a blessing on the CBSHOME agency agreement. He would agree totally with Mr. Ruge, not to be argumentative, but he would have interpreted a requirement for a listing agreement. Mr. Valenti said the Commission needed to have this agreement communicated.

Commissioner Poskochil asked if the statute would allow a range of compensation. Director Tyrrell said he would not want to put a range in statute. Commissioner Poskochil said no, he meant in the interpretation, if an agreement could give a range of compensation. Counsel Widger said she had no problem with that, and it could even say depending on the lot and type of house.

Chairperson Gale noted that item 7 did not define compensation. To have no range or anything meant nothing as to what the parties may agree. Chairperson Gale speculated that maybe the statute did not anticipate how the market developed.

Director Tyrrell noted that Mr. Ruge could use any language he wanted in the agency agreement, because it was a CBSHOME document. Counsel Widger said that all the Commission had to decide was how licensees could meet the requirements of license law. The Commissioners could keep in the back of their minds whether a judge would find it enforceable, and what civil liability may be, but it had to decide what was sufficient for meeting the requirements of license law. The Commission needed a consensus on the interpretation of the statute so it worked with the industry, but kept people informed on representation.

Commissioner Moline said the Commission needed to look at it in terms of errors and omissions insurance. The Commission needed to keep an eye toward civil liability. Loopholes would be taken advantage of, and cost money.

Mr. Ruge said the final twist to this, from his law school days, was that if the statute applied to listing agreements, compensation could be any language we put in, if that was truly meant. When the property was identified and there was a listing agreement, they could put in 4-7% to be determined at closing, which would not sit well with the Commission. Under 76-2422, the Commission needed to be consistent in its interpretation. Counsel Widger said that Mr. Ruge was making the assumption that an agency agreement was a listing agreement. Commissioner Moline asked what was missing. Counsel Widger said an agency agreement did not need to include a specific property and specific terms of compensation. The Commission could redo the interpretation if desired. Director Tyrrell noted that the agreement could say it had to be a specified amount, if that was what Mr. Ruge was suggesting. Mr. Ruge said that was not what we were suggesting, he just wanted clarity. Commissioner Poskochil asked if compensation needed to be fixed at the time of the agency agreement. Mr. Ruge said that was how he interpreted it. He needed clarity in the statute, so it could be clearly interpreted. Specific language was needed for custom builders and agency agreements. Mr. Ruge said he could not do it under the law, and there was no practical way to comply with builders.

Chairperson Gale asked who was the potential complainant, or who would be hurt, with the statute and interpretation as is. If there was no listing agreement with a builder for a specific home, what was the public interest. Mr. Ruge said that what jumped out for him was the main victim was the agent. If there was a falling out with the builder, Abreach of fiduciary duty@ meant no compensation. That could be a complaint before the Commission. Chairperson Gale asked if Mr. Ruge meant that, at the closing, the builder would say there was no agency agreement, therefore he was not paying the agent. Mr. Ruge said that was possible. If a builder was trying to not pay a Commission, it would be a case for breach of fiduciary duty, and there was case law on that. Mr. Ruge had also had builders who had a falling out with an agent who did not make that argument, just refused to pay. Counsel Widger said it may go back to having nothing in writing. The law required a disclosure pamphlet and an agency agreement. An agent would be the victim, but only if they did not do what they were supposed to do.

Mr. Ruge said he was not attacking Director Tyrrell, because he was trying to work with them. If a person just read the law, it was not so clear. Counsel Widger said the agent should make very clear who they are representing, to both parties.

Commissioner Poskochil agreed that disclosure was the real key, and that a document like the agency agreement would help keep people out of trouble.

Mr. Valenti said he was OK with the Commission=s interpretation. He could work with that.

Chairperson Gale asked if an agent would sign with a builder. Mr. Valenti said the agent would already have the agreement signed. Mr. Ruge said CBSHOME was now training people to do agency agreements to cover all the properties of that builder.

Commissioner Johnson asked if Mr. Ruge had a proposal to change the statute. Mr. Ruge said the statute needed to be cleared up, and drafted in a way that accommodated new construction builders. Director Tyrrell asked if Mr. Ruge was willing to draft proposed language. Mr. Ruge said sure, then said he was willing to work with Counsel Widger on it.

Mr. Valenti thanked the Commission for discussing the issue with them.

Commissioner Moline asked if a Commission Comment article would be appropriate, and if it should include an agency agreement such as CBSHOME=s. Director Tyrrell said there was a big long article in 1995, right after the law was implemented, and he would see if this issue was addressed in it. Director Tyrrell did not take notes during the statewide sessions, but he will check to see if the information was disseminated at that point. Usually, counsel interpretations were brought to the Commission, then an article was written on them. Director Tyrrell could do another article, specifically on builders, for the March issue, based on exhibit 14. Commissioner Wiebusch said an article would be good to get a discussion going, without getting people in trouble. Director Tyrrell said that if something had come to the Commission on this, he imagined the Commission would not have taken action on it. Staff had made the point in the recent complaint that, without a written agreement, licensees are buyer=s agents. The complaint would not have come up if there had been an agency agreement. Mr. Ruge said that, based on the discussion today, he agreed, and he was not worried about the Commission=s interpretation. He was concerned that people out there would read the statute the way he did.

Counsel Widger asked the Commissioners if they were comfortable with what staff had been telling people. It was the consensus of the Commission that they were. Counsel Widger said the article would be reworded based on exhibit 14. Deputy Director Hoffman said it would also be a resource for educators, and she would discuss the topic with school administrators.

Commissioner Moline was absent and excused from 10:43 a.m. to 10:44 a.m.

Chairperson Gale said that it would be remiss not to have the interpretation, which tries to protect licensees from buyer complaints. Licensees were at risk without a compensation agreement. It was not a complaint possibility, just the licensee=s commission was in jeopardy. Counsel Widger said there was always a risk that the builder might not pay. The risk and the issue has been out there. More fallouts occurred over money than anything. Counsel Widger said that at least the agency agreement was something. She just needed to know if there was a problem with the interpretation.

Chairperson Gale asked if the Commission should formally adopt the interpretation. Commissioner Wiebusch said the Commission should wait on that. Staff should email Commissioners the proposed language, so that the Commissioners could let staff know if they had any problems or concerns with the article. Commissioner Poskochil asked that the Commission Comment article be very clear on the statutory requirements. Deputy Director Hoffman asked that all comments be sent to staff early. Commissioner Moline asked that staff give a Adrop dead@ date for comments when the article is emailed to them.

Legislative Matters

Director Tyrrell presented exhibits which were draft copies of the bills to be introduced into the legislature, regarding the errors and omissions insurance premium limit increase and the amendments to the Time-Share Act. Copies of said exhibits are attached to and made a part of these minutes.

Director Tyrrell noted that the Nebraska REALTORS7 Association Board of Directors supported the premium limit increase. He also reported that the two pieces of legislation will initially be introduced on the first day as a combined bill, since this will be a short session. If it is referred to the Banking, Commerce, and Insurance Committee, it will proceed in that fashion. If, because of the Time-Share Act amendments, the combined bill is referred to the Judiciary Committee, then the errors and omissions insurance premium limit amendment will be introduced as a separate bill, since License Act amendments go to the Banking, Commerce, and Insurance Committee. The reasoning for this is that the Judiciary Committee was usually overloaded with bills, and the combined bill may not be moved in time to be passed this session, if it was referred there.

Director Tyrrell noted that the Colorado errors and omissions insurance contract through Williams Underwriting Group was pulled by the new carrier, so Colorado will go with Rice. Director Tyrrell did not know if there would be a second bidder on our errors and omissions contract next year or not. Dick Williams called to let him know the situation with Colorado. Director Tyrrell did not know if Williams Underwriting was out of business or was looking for another carrier. Director Tyrrell speculated that, if there was only one carrier, it would impact pricing. Director Tyrrell said he understood the same policy as Nebraska=s was approximately $235.00 per year for Colorado licensees.

No action was necessary on this report.

Information Matters

Trust Account Examination Evaluation Report - Third Quarter 2003

Director Tyrrell presented the Trust Account Examination Evaluation Report - Third Quarter 2003. A copy of said report is attached to and made a part of these minutes.

Director Tyrrell reported that comments were again very positive. He reviewed some of the comments received, and how the situations were handled.

No action was necessary on this report.

VOW Letter to Brokers Postponed

Director Tyrrell noted that the letter to brokers regarding virtual offices was delayed because the National Association of REALTORS7 had postponed implementation until at least July 1, 2004. The Justice Department was looking at the opt-out provision. Director Tyrrell will keep the Commissioners apprised of the situation.

No action was necessary on this report.

Future Meeting Dates

January 21-22, 2004 - Staybridge Suites, Lincoln

March 3-4, 2004 - Days Hotel Carlisle, Omaha

Recesses and Adjournment

At 9:28 a.m., Chairperson Gale declared a brief recess, and reconvened the meeting at 9:39 a.m.

Commissioner Moline was absent and excused from 10:43 a.m. to 10:44 a.m.

At 10:47 a.m., Chairperson Gale declared a brief recess, and reconvened the meeting at 11:00 a.m.

Commissioner Moline was absent and excused from 12:02 p.m. to 12:04 p.m.

At 12:24 p.m. on December 10, there being no further business to come before the Commission, a motion was made by Moline and seconded by Wiebusch that the meeting adjourn. Motion carried with Johnson, Moline, Poskochil, Shepard, Wiebusch, and Gale voting aye, and with Strand 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 December 10, 2003, meeting of the Nebraska Real Estate Commission were available for inspection on December 19, 2003, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska.

Respectfully submitted,
Les Tyrrell
Director

Guests Signing the Guest List

Perre Neilan, Nebraska Realtors7 Association, Lincoln
Tammy Brookhouser, Nebraska Realtors Association, Lincoln
Jack McSweeney, Nebraska REALTORS
7 Association, Kearney
Harding Collis, NP Dodge, Omaha
Joe Valenti, CBSHOME, Omaha
Doug Ruge, CBSHOME, Omaha