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Part 4, Section 23 — Action of the Board of Directors

Part 4, Section 23 — Action of the Board of Directors

(a) Within twenty (20) days after the Hearing Panel’s final decision has been rendered if no petition for rehearing has been filed, or within twenty (20) days after the Hearing Panel’s final decision subsequent to the rehearing, or within ten (10) days after denial of a petition for rehearing, the complainant or the respondent may file an appeal with the President.* (Revised 11/98)

*Appeal is provided only from decisions rendered in hearings of alleged unethical conduct, and not from the decision of an arbitration panel. However, the Board of Directors reserves the right to review procedures of any ethics or arbitration hearing to ensure compliance with the governing documents of the Board and to rule thereon; and in arbitration hearings, a limited form of appeal is provided only in respect of alleged irregularities related to the arbitration as are alleged to have deprived the party of due process.

(b) If no appeal is filed, the Directors will adopt the Hearing Panel’s recommendation and issue its order accordingly, unless:

  1. the Directors, if concerned with a possible procedural deficiency, may refer the decision back to the Professional Standards Committee for a new hearing and recommendation by a different Hearing Panel; or
  2. the Directors are concerned with the appropriateness of the recommendation of sanction, the Directors may impose alternative discipline that does not exceed that recommended by the Hearing Panel, or may refer the decision back to the original Hearing Panel for further consideration and recommendation accompanied by the Directors’ concerns regarding the proposed discipline; or
  3. if the Directors conclude the findings of fact do not support a violation of the Code of Ethics, the complaint will be dismissed.

In such matters, advice of Board legal counsel should be requested and considered. (Revised 5/11)

(c) All appeals must be in writing and must be accompanied by a deposit with the President in the sum of $________ (not to exceed $500). In cases where a single appeal is filed jointly by more than one party, only one filing fee may be assessed. The appeal should clearly indicate the bases on which the Hearing Panel’s decision and/or recommendation for discipline is being challenged—(1) misapplication or misinterpretation of an Article(s) of the Code of Ethics; (2) procedural deficiency or any lack of procedural due process; (3) the discipline recommended by the Hearing Panel—and set forth in reasonable detail the facts and evidence to support the bases cited. The complainant may appeal based only on alleged procedural deficiencies or other lack of procedural due process that may have deprived him of the opportunity for a full and fair hearing. The written request for appeal shall be reviewed by the Board President or the President’s designee only for the purpose of determining whether the appeal states any legitimate basis for consideration by the Board of Directors. If determined to be insufficient, it shall be returned to the appellant accompanied by an explanation and a request for additional detail to be received by the Board within ten (10) days. This initial administrative review is not a decision on the merits of the appeal request but is only intended to ensure compliance with the requirement that an appeal clearly set forth all bases that will be presented to the Board of Directors for their consideration. All requests for appeals received by the Board must be considered by the Board of Directors, and only those bases and issues raised in the written request for appeal may be raised by the appellant in any hearing before the Board of Directors. (Amended 11/12)

(d) When a request for appeal (as originally filed if in proper form, or as originally filed if no amendment is submitted, or as amended even if still deemed to be lacking) is received, the Secretary shall immediately send a copy to the other party, notify all parties at least ten (10) days in advance of the time and place of hearing by the Directors (including challenge Forms #E-6 and #E-7, Part Six of this Manual), and bring the matter before the Directors for hearing at their next regular meeting or at a special meeting called by the Secretary for the purpose. The Secretary shall provide to the Directors in advance of the hearing, copies of the complaint, response, the Hearing Panel’s findings of fact and recommendation of discipline, if any, the President's correspondence, if any, and the appeal request or amended appeal request, if any. The Directors shall be advised that the information is confidential and not to be discussed with others at any time. (Revised 11/91)

(e) At the hearing before the Directors, the Chairperson of the Hearing Panel (or the Chairperson's designee) shall present a transcript of the case or, if there is no transcript, shall summarize the case. Either party shall be entitled to offer corrections to the summary. Either party may present to the Directors reasons why the Hearing Panel’s recommendation should be followed or not, but no new evidence shall be received (except such new evidence as may bear upon a claim of deprivation of due process), and the appeal shall be determined on the transcript or summary. (Amended 5/09)

(f) The Directors shall render their decision promptly. Their decision may be to adopt or modify the recommendation of the Hearing Panel, including the discipline proposed, or the Directors will dismiss the matter if they conclude the findings of fact do not support the Hearing Panel’s conclusion as to unethical conduct. The Directors, if concerned with a substantial procedural deficiency, may refer the decision back to the Professional Standards Committee for a new hearing and recommendation by a different Hearing Panel. If, however, the Directors are concerned with the appropriateness of the recommendation of sanction, they may impose alternative discipline that does not exceed that recommended by the Hearing Panel, or may refer the decision back to the original Hearing Panel for further consideration and recommendation accompanied by the Directors’ concerns regarding the proposed discipline. In such matters, the advice of Board legal counsel should be requested and considered. (Amended 11/05)

(g) If the recommendation of the Hearing Panel is adopted, the money deposited by the appellant shall pass into the general treasury of the Board. If the recommendation is rejected, the deposit shall be returned to the party who made the deposit. If the recommendation is modified, the Directors shall determine the disposition of the deposit.

(h) If the recommendation of the Hearing Panel is modified, or if the charge is dismissed, the Directors shall state their reasons in writing, but failure to do so shall not invalidate the decision of the Directors. Any Director not concurring with the decision of the other Directors shall be entitled to file a dissenting opinion which will be provided to the parties and to the Hearing Panel. Under no circumstances may the discipline exceed that recommended by the Hearing Panel. (Revised 11/98)

(i) The decision of the Directors is final, and each member, by becoming and remaining a member, agrees not to seek review in any court of law in the absence of willful or wanton misconduct.

(j) Upon final action by the Directors, the President shall disseminate to the complainant, the respondent, the Board of Directors, the Chairperson and members of the Hearing Panel, Board legal counsel, the President of any other Board in which the respondent holds membership, and any governmental agency as directed by the Board of Directors such notice of the action as the President deems appropriate under the circumstances provided, however, that the nature, form, content, and extent of the notice shall be specifically approved by Board legal counsel prior to dissemination. Board Members, other than those specified, shall be notified only in respect to suspension or expulsion of membership of the Board Member unless the optional procedures established at the end of this Section have been adopted locally or unless notification is required to ensure compliance with the Board’s bylaws (e.g., where a petition for removal of an officer or director must state the reason(s) an officer or director is deemed disqualified from further service. (Revised 5/09)

Final ethics decisions holding Realtors® in violation of the Code of Ethics must be forwarded to the state real estate licensing authority in instances where there is reason to believe that the public trust may have been violated. The “public trust,” as used in this context, refers to demonstrated misappropriation of client or customer funds or property, willful discrimination, or fraud resulting in substantial economic harm. (Adopted 11/99)

NOTE: Boards are encouraged to publish periodic Code Enforcement Activity Reports specifying the number of complaints filed for the given period, the Articles of the Code of Ethics charged, the number of complaints dismissed by the Grievance Committee, the number of violations of particular Articles, the number of cases resulting in violations or, conversely, no violations, the number of cases in which sanctions were imposed, the range of sanctions imposed, and other appropriate information. (See Form #E-17, Ethics Activity Report).

With respect to arbitration, such report could include the number of arbitration requests received, the number of arbitration requests dismissed without hearing, the number of mediations conducted, the number of arbitration hearings held, and other relevant information, provided that no Code Enforcement Activity Report shall include the names of individuals or firms. (See Form #A-18, Arbitration Activity Report). (Revised 11/00)

(k) Any discipline imposed that requires an action on the part of the disciplined member should also indicate any additional penalties that may be automatically invoked for failure to comply by the date specified. In the absence of such a provision, failure to comply with the discipline imposed should not be considered grounds for an additional ethics hearing, but rather should constitute the basis for consideration by the Board of Directors with regard to any additional action required to ensure compliance with the original discipline imposed. In the event that additional penalties are contemplated, the party failing to comply with the discipline originally imposed should have the opportunity to appear before the Board of Directors to explain the failure to comply. Absent an explanation acceptable to the Directors, additional discipline, including possible suspension or expulsion from membership, may be imposed in a manner consistent with the procedures established in the Code of Ethics and Arbitration Manual of the Board, and the notice of the Directors should include a date by which any proposed discipline will be imposed or by which implementation of sanction shall automatically occur.

(l) If the respondent is currently on probation as the result of an earlier proceeding, the Directors, upon reviewing the findings of fact and recommendation for discipline resulting from the subsequent hearing, shall also determine whether to impose the discipline that was held in abeyance during the probationary period. The Directors shall consider whether the subsequent ethics violation occurring during the probationary period was minor, inadvertent, or otherwise unrelated to the original violation in making their determination. (Adopted 5/87)

(m) Appeals to the Board of Directors may be heard by a panel of Directors appointed by the President for that purpose (or, alternatively, by the Board’s Executive Committee). Five (5) Directors or a quorum of the Board of Directors, whichever is less, shall constitute such an appeal panel, which shall act on behalf of the Board of Directors. The decision of the appeal panel (or Executive Committee) shall be final and binding and shall not be subject to further review by the Board of Directors. (Revised 11/91)

NOTE: Adoption of the following optional procedures to permit publication of the names of Code of Ethics violators after a second violation occurs within a three (3) year period is at the discretion of each Member Board. These procedures may not be utilized unless the Member Board has adopted them.

(n) If the respondent is found in violation of the Code of Ethics a second time within three (3) years, the respondent’s name, the fact that the respondent has been found in violation of the Code of Ethics, the Article(s) violated, and the discipline imposed will be published in the official communication vehicle of the Board. Such publication shall not include the name of the firm the respondent is (or was) licensed or affiliated with. In cases where the violator’s name is similar to another member’s name, the violator’s license number or office address (or both) may also be published. (Amended 11/99)