Part 4, Section 21 — Ethics Hearing
Part 4, Section 21 — Ethics Hearing
(a) After a complaint alleging a violation of membership duty (duties) has been referred to the Secretary by the Grievance Committee with instruction to arrange a hearing, the Secretary shall serve a copy of the complaint on each party complained of (hereafter called the respondent) and notify the respondent that the respondent may file a written reply (Forms #E-2, Notice to Respondent [Ethics], and #E-3, Reply [Ethics], Part Six) with the Secretary within fifteen (15) days of the request for response being transmitted. A Hearing Panel may accept late filing of the reply at its discretion. The Secretary may require the complainant to supply the necessary number of copies of the complaint and the respondent to supply the necessary number of copies of the reply, except that such requirement shall not be made of a complainant who is not a Board Member. (Revised 11/14)
The Secretary will inform the Professional Standards Committee Chair of the referral and the Chair shall select a hearing date no later than twenty (20) days after the Grievance Committee’s decision to forward for hearing is final. (Adopted 11/14)
(b) The Secretary shall provide a copy of the reply (if any) to the complainant within fifteen (15) days from receipt of the response. The Secretary shall also provide copies of the complaint and reply (if any) to the Board President and Chairperson of the Professional Standards Committee, or notify each that no reply has been filed (unless the President and/or Professional Standards Chairperson indicate that they do not wish to receive copies or be so informed). (Amended 11/14)
(c) The Secretary shall, concurrently with the notification that the ethics complaint has been referred for hearing, transmit to each of the parties a list of the names of members of the Professional Standards Committee (See Part One, Section 2, (a) through (f), Qualification for Tribunal, Part Six, Form #E-6, Notice of Right to Challenge Tribunal Members, and Form #E-7, Challenge to Qualification by Parties to Panel Members). If a party challenges one or more members, the challenge form must be returned to the Secretary no later than ten (10) days after the date the challenge forms were transmitted to the party. No later than five (5) days after the challenge forms are due, the Professional Standards Committee Chairperson shall appoint, from the names not successfully challenged by either party, three (3) or more members for a Hearing Panel, a majority of whom shall be REALTORS®. The Chairperson shall also select one of the panel members to serve as Chairperson of the Hearing Panel. Any Hearing Panel must have an odd number of members. If the complainant or respondent is a REALTOR-ASSOCIATE® or a REALTOR® other than a principal, at least one member of the Hearing Panel shall be a REALTOR-ASSOCIATE® or a REALTOR® other than a principal. It shall be a membership duty of anyone so appointed to serve on the Hearing Panel unless disqualified. A party will be deemed to have waived all objections to any person whose name is not challenged. If challenge to members of the Professional Standards Committee results in an insufficient number of members to constitute a panel, the President may appoint other qualified Board Members to serve as panel members. The Chairperson of the Professional Standards Committee (or the Hearing Panel itself) shall designate the time and place of the hearing, and the Secretary shall notify the complainant and the respondent (Form #E-8, Official Notice of Hearing, Part Six). minimally twenty-one (21) days before the hearing.* An appearance at a hearing without objection by a party will constitute a waiver of any defective notice of hearing. Parties' requests for continuances shall only be granted when all parties mutually agree to a subsequent specified date, or when the hearing panel chair determines that denying the request for continuance would deny the requestor a fair hearing. (Revised 11/14)
*Form #E-9, Outline of Procedure for Ethics Hearing, Part Six, should accompany the Official Notice of Hearing or be otherwise provided to the parties prior to the hearing.
(d) The Chairperson of the panel shall prescribe any procedure for the hearing not inconsistent with these provisions.**
**See Part Five, Conduct of an Ethics Hearing.
(e) Complainants may withdraw their complaints at any time prior to the start of an ethics hearing. If a complaint is withdrawn by the complainant after the Grievance Committee determines the complaint requires a hearing, it will be referred back to the Grievance Committee to determine whether a potential violation of the public trust (as defined in Article IV, Section 2 of the National Association’s Bylaws) may have occurred. Only where the Grievance Committee determines a potential violation of the public trust may have occurred may the Grievance Committee proceed as the complainant. A complaint so withdrawn shall not be deemed a final determination on the merits. (Amended 5/04)
The complaint, and response, if any, shall be provided to Hearing Panel members prior to the hearing. Such time period shall be ____________ (as determined by the Board of Directors) and shall be adhered to for all hearings.
(f) Amendment of complaint:
- At any time prior to the hearing of the complaint, the complainant may file an amended complaint with the Secretary (excluding amendments pertaining to an Article previously dismissed by the Grievance Committee relating to previously charged respondents). If an amended complaint is filed prior to the hearing, the respondent shall be notified, given a copy, and provided the opportunity to file an amended response. The Hearing Panel may disallow the amended complaint. At any time prior to the hearing of the complaint, the Hearing Panel may name the REALTOR® principal as a respondent. Complaints cannot be amended to add, or substitute, other individuals as complainants except as mutually agreed to by the parties. (Revised 5/13)
- At any time during the hearing, the complaint may be amended either by the complainant or upon motion of the Hearing Panel to add previously uncited Articles or additional respondents. Amendments to include Articles previously dismissed by the Grievance Committee may be made only on the motion of the Hearing Panel. In such event, the hearing, with the concurrence of the respondent, may proceed uninterrupted or be reconvened on a date certain, not less than fifteen (15) or more than thirty (30) days from the hearing date unless a “late” witness is allowed and then not less than five (5) days from the hearing date. If the respondent knowingly waives his right to the adjournment, the record should reflect the fact that the respondent was aware of the right to an adjournment but chose to proceed with the hearing without interruption on the basis of the amended complaint. If the hearing is adjourned to be reconvened at a later time, the amended complaint shall be filed in writing, signed by the complainant or by the Chairperson of the Hearing Panel, and shall be promptly served on the respondent as in all other cases provided herein. To prevent the appearance of bias, at no time during or after an ethics hearing may the Hearing Panel or any appellate body refer concerns regarding potentially unethical conduct to the Grievance Committee. This is based on the premise that the fundamental right and primary responsibility to bring potentially unethical conduct to the attention of the Grievance Committee rests with the parties and others with firsthand knowledge. This prohibition in no way limits or restricts the Hearing Panel from amending pending complaints as otherwise provided for in this section. However, in any instance where a Hearing Panel amends an ethics compliant pending before it, the respondent(s) shall be given the choice of proceeding before the same Hearing Panel (either without interruption or when reconvened pursuant to the procedures established elsewhere in this Section) or having the complaint considered in a new hearing before a different Hearing Panel. (Amended 11/14)
In the event that the complaint scheduled for a hearing is from a member of the public who refuses or is unable to attend the hearing and who has not requested a continuance in writing or who has not been granted a continuance, the complaint shall be referred back to the Grievance Committee. If the Grievance Committee determines that there is sufficient information for a Hearing Panel to consider (i.e., that there is clear, strong, and convincing proof), the complaint shall be amended to name the Grievance Committee as complainant and the hearing shall be continued to a new date. The respondent shall be provided with a copy of the amended complaint in such cases. (Revised 5/12)
If the Grievance Committee determines that there is insufficient information for a Hearing Panel to consider, the complaint shall be dismissed.
In the event the complaint scheduled for hearing is from a REALTOR® or REALTOR-ASSOCIATE® who has not requested a continuance in writing or who has not been granted a continuance, and who refuses or is unable to attend the hearing, the complainant shall be advised that refusal to participate in the hearing, absent a satisfactory reason, may result in a charge that the complainant has violated Article 14’s obligation to place all pertinent facts before an appropriate tribunal of the Board. (Revised 5/12)
If the REALTOR® or REALTOR-ASSOCIATE® complainant continues to refuse a duly noticed request to appear, or if the complainant is excused from appearing for reasons deemed valid by the Hearing Panel, the hearing shall not take place, but rather the complaint shall be referred back to the Grievance Committee. If the Grievance Committee determines that there is sufficient information for a Hearing Panel to consider (i.e., that there is clear, strong, and convincing proof), the complaint shall be amended to name the Grievance Committee as complainant and the hearing shall be continued to a new date. The respondent shall be provided with a copy of the amended complaint in such cases. (Revised 11/98)
(g) In the event that the respondent fails to appear at a duly noticed hearing without first obtaining a continuance or adjournment thereof, the Hearing Panel may proceed with the hearing in the respondent's absence and shall reach its decision based on the evidence made available at the hearing. Thereafter, all other procedures shall follow as hereinafter provided.
Where an ethics hearing takes place in a respondent’s absence, the respondent is still entitled to be represented by counsel. Counsel may make opening and closing statements; call witnesses; cross-examine witnesses called by other parties; and introduce affidavits, documents, and other admissible relevant evidence. Counsel may not testify to events and facts of which counsel has no first hand knowledge. Hearing Panels should be instructed by the Chair that counsel’s arguments do not constitute testimony. (Adopted 5/99)
(h) Upon notice by the Secretary, the parties shall with diligence present to the panelists in writing such statements and proof which they deem necessary to support their positions. Proof may be submitted in the form of affidavits or otherwise. The Hearing Panel may require that statements be verified by affidavits or that accuracy or authenticity of any documents or other papers submitted be verified by affidavit. At the hearing, the panelists shall receive any further written statements, documents, or other papers, shall hear oral testimony and determine what personal appearances shall be made by the parties, and shall regulate the holding of hearings.* The Hearing Panel may receive and consider any evidence it deems material and proper, including evidence of experts. Each party is responsible for the expenses of expert witnesses he calls. Parties to the ethics complaint shall be entitled to have counsel present at any hearing. Each party is responsible for the expenses of his respective counsel. (Adopted 11/96)
*Such hearings should be conducted according to Part Five, Conduct of an Ethics Hearing.