Part 2, Section 13: Power to Take Disciplinary Action
Part 2, Section 13: Power to Take Disciplinary Action
After a hearing before the Professional Standards Committee as provided hereinafter, the Directors may take disciplinary action against any member:
(a) For violation by the member of any duty of membership.
(b) On a member being convicted, adjudged, or otherwise recorded as guilty by a final judgment of any court of competent jurisdiction of a felony or a crime involving moral turpitude; on a member being determined by a court of competent jurisdiction, or official of the State of ________________ (state) authorized to make the determination, as having violated a provision of the ________________ (state) real estate law or a regulation of the ________________ (state) real estate licensing authority; or on a final judgment or determination by a court of competent jurisdiction or by an authorized federal, state, or local official that a member has violated the federal, state, or local fair housing law. (Revised 11/01)
(c) For any act of any persons who are not themselves REALTORS® but are employed by or affiliated with a REALTOR®, and who provide real estate-related services within the scope of their or another’s license. Lack of knowledge by the REALTOR® of such person’s conduct shall go only to mitigation of discipline imposed. (Revised 4/95)
*While most states recognize the enforceability of a prior agreement to arbitrate disputes, a few states prohibit an agreement to arbitrate until after the dispute has arisen and in a few instances such arbitration is not recognized at all (or at least is unenforceable by the court). Where such prohibition exists, Board (state) legal counsel should be consulted and the Manual modified accordingly. Arbitration conducted by Member Boards shall in all respects conform to the requirements of state law applicable to arbitration. If a member refuses to abide by an award in arbitration, enforcement of the award shall be accomplished only in the manner set forth in Part Four, Section 24 and Part Ten, Section 56 of this Manual.
(d) For any act of another who is also a member, but is employed by or affiliated with the member as an independent contractor. In such an instance, the REALTOR® principal may be joined as a respondent by action of the complainant, by review of the Grievance Committee, or by determination of the Hearing Panel prior to commencement of the hearing based upon the facts of the complaint. If, however, the complaint is amended after the hearing has commenced, pursuant to Part Four, Section 21(f)(2), the REALTOR® principal who has been added to the complaint has the right to have the hearing reheard from the beginning by the same Hearing Panel or may waive this right. The finding of the Hearing Panel with respect to any violation of the REALTOR® principal and the other member employed by or affiliated with the REALTOR® principal as an independent contractor may be the same or different; and in the event both are found in violation, the sanctions, if any, may be the same or different.
In any proceeding where the REALTOR® principal is not joined in the complaint as a respondent, the REALTOR® principal nonetheless retains the right to be present during the proceeding or may be required by the Hearing Panel to attend the hearing. At the request of the respondent, the REALTOR® principal may consult with or testify on behalf of the respondent. In all instances, the REALTOR® principal shall receive copies of the complaint and response, be provided with notice of the hearing, may be called by the parties or the Hearing Panel as a witness, and shall receive copies of the Hearing Panel’s decision and recommendation for sanction, if any. If an appeal is required, the REALTOR® principal shall receive copies of the request(s), be provided with notice of the hearing, have the opportunity to be present, and receive a copy of the final action by the Directors. Such rights shall accrue to both the former REALTOR® principal and the current REALTOR® principal if the respondent REALTOR® or REALTOR-ASSOCIATE® changes his firm affiliation either before or after a complaint is filed but before the Hearing Panel reaches its decision. (Revised 11/14)
NOTE: A Member Board cannot establish or maintain procedures whereby the REALTOR® principal would automatically be joined as a respondent in any ethics complaint filed against another REALTOR® nonprincipal or REALTOR-ASSOCIATE® licensed with the REALTOR® principal. (Amended 4/95)
(e) In the event the respondent named in any complaint alleging a violation of the Code of Ethics is involved in any criminal litigation arising out of the same facts and circumstances giving rise to the complaint alleging unethical conduct, the complaint shall not proceed to a hearing before the Professional Standards Committee but rather shall be held in abeyance until the pending criminal proceedings have been concluded.
In the event the respondent named in any complaint alleging a violation of the Code of Ethics is involved in civil litigation or in any proceeding before the state real estate licensing authority or any other state or federal regulatory or administrative agency in a matter arising out of the same facts and circumstances giving rise to the complaint alleging unethical conduct, the complaint may, at the discretion of the Grievance Committee, or on appeal, at the discretion of the Board of Directors, proceed to a hearing before a Hearing Panel of the Board’s Professional Standards Committee. Board legal counsel should be consulted and the following factors shall be taken into consideration in determining whether the matter should proceed to a hearing or should be held in abeyance pending the conclusion of civil litigation or a proceeding before the state real estate licensing authority or any other state or federal regulatory or administrative agency:
- the degree of similarity of factors giving rise to the pending litigation or regulatory or administrative proceeding and the ethics complaint
- the degree to which resolution of the civil litigation or regulatory or administrative proceeding may make consideration of the ethics complaint unnecessary
- the degree to which pending civil litigation or regulatory or administrative proceeding would delay prompt disposition of the ethics complaint
- the nature of the alleged violation and the extent to which it impacts on cooperation with other Board Members
- the assurance of Board legal counsel that consideration of the ethics complaint will not deprive the respondent of essential due process
If after review of an ethics complaint by the Grievance Committee and referral of the complaint for hearing, it is subsequently discovered that civil litigation or regulatory or administrative proceedings related to the same transaction or event are pending, the Hearing Panel Chair, in consultation with association legal counsel, will determine whether the hearing will proceed or, alternatively, whether the complaint will be held in abeyance pending resolution of the litigation or regulatory or administrative proceedings. If after review of an ethics complaint by the Grievance Committee and referral of the complaint for hearing it is discovered that criminal proceedings related to the same transaction or event are pending, the complaint will be held in abeyance pending conclusion of the criminal proceedings. (Adopted 5/11)