2013 IAR PROFESSIONAL STANDARDS WORKSHOP HEARING PANEL CHAIRS

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1 2013 IAR PROFESSIONAL STANDARDS WORKSHOP HEARING PANEL CHAIRS Concept of Due Process: Fundamental to the Professional Standards Procedure and Relevancy The Hearing Panel Chair oversees and controls! an appeal know complaint in advance Time to prepare an adequate defense Appropriate Sanctions Due Process call witnesses impartial peer panel To present evidence & testimony legal counsel crossexamine CHAIR PREPARATION FOR A HEARING 1. Confirm you have no personal conflicts 2. Review the hearing materials as soon as you receive a. Verify proper timing b. Are the appropriate parties named c. If Ethics: review the relevant Code Articles, Standards of Practice and Case interpretations 3. Identify any possible issues that might need to be addressed: a. Witnesses b. Attorneys and/or REALTOR Counsel CR Strategies LLC Page 1

2 c. Additional Ethics violations that might arise d. Questions and/or issues within complaint or response 4. Do your homework! a. Review the CEAM (Code of Ethics Arbitration Manual): mark pages that might be necessary to reference b. Consult with staff with questions c. If Ethics may want to start a draft for the Findings of Fact 5. Prehearing Chairman decisions: a. Remote testimony request b. Postponement if requested c. Witnesses and/or evidence not timely filed d. Panel may choose to name REALTOR Principal as a Respondent in ethics hearing e. Pre Hearing Meeting? i. Previous to day of hearing? ii. At the outset of the hearing, prior to testimony? 6. Review materials again prior to hearing DAY OF HEARING Dress Business appropriate and no company name badges Arrive early to review your script, verify set up and appropriate forms for the executive session Verify correct pronunciation of all names Make sure all parties are kept out of the hearing room until the start. Keep the door closed Discussion with panel members o Review any questions or concerns o Set the stage for question protocol o Do NOT allow panel members to start discussion on the case itself CHAIR ETIQUETTE It is OK to smile, be relaxed, professional and courteous at all times Make sure all cell phones are off (not just on vibrate) Keep surfaces clear of clutter, food and drinks Make sure door remains closed before, during and after the hearing Obtain permission to call everyone by first name if so desired. Important to be consistent with all parties CR Strategies LLC Page 2

3 Read the opening statement with appropriate expression; it s the first time many have heard it Chair takes charge from start to finish: calmly and professionally explaining rulings Be flexible as needed; especially with witnesses that may be late or desire to leave early Ask witnesses to leave the room after sworn in and after presenting testimony. Consider permission to leave after testimony if appropriate Tone of voice must be neutral never judgmental Strive to keep discussions focused and relevant Watch your body language. Sit straight and be a good listener Avoid movements such as head shaking, rolling eyes, raising eyebrows Questions need to be asked by all in a positive and open ended manner Do NOT allow ethics issues in an arbitration Do NOT allow teaching speeches Questions should NOT be aimed at assisting either party Do not allow questions that are judgmental such as do you mean to tell me Correct panel members privately Any antitrust issues need to be stopped immediately Recess if unsure of procedure and/or rules or if emotions are high If a recess is taken make sure panel members and parties do not have private time anywhere Chair typically is the last one to ask questions The Code must be applied with continuing and conscientious concern for procedural due process. The Path of Due Process must be followed versus the line of least resistance. William D. North, former NAR Ex VP and General Counsel, 1978 AT THE DISCRETION OF THE CHAIR Remote testimony (Statements of policy # 56) Postpone or recess hearing to later date (Part V) Recess hearing is believed to be unacceptable safety risks (Statements of policy: #54) Decision as to member obligation to appear as a witness. The question of relevancy of such testimony or evidence rests with the party seeking to compel a witness s appearance. (Section 3 and 28) Chair s decision to bring a charge against a member/witness failing to comply with Article 14 Chairperson of panel shall prescribe any procedure for the hearing not inconsistent with provision in the CEAM (Section 21) Chair may exclude any question deemed irrelevant or argumentative (Part V) CR Strategies LLC Page 3

4 AT THE DISCRETION OF THE PANEL (chair led) Panel may accept a late filing of an Ethics Response (Section 21) Panel may name REALTOR principal as a Respondent prior to hearing (Section 21) During an ethics hearing the panel may amend the ethics complaint and add Articles not previously cited. The Respondent must agree to proceed or request adjournment 15 days minimum, 30 days maximum. Admissibility of evidence (Section 21) Hearing panel may allow witnesses not properly noticed if the panel feels the testimony is essential to due process. The other party must agree to proceed or request hearing to be recessed for a minimum of 5 days CLOSING AFFIRMATIONS of Fairness and Opportunity to Testify Let the records show that all parties answered in the affirmative Any no s: must address before adjourning the hearing EXECUTIVE SESSION Make sure recording is off and door is closed Only tribunal, staff and/or board counsel permitted in the room Staff and/or board counsel are not part of the decision making process Determine the facts based on the evidence brought forth through testimony and written documents Encourage panelists to discuss and debate any dissenting opinions in a professional and productive manner. Personal or derogatory comments about any party, witness, or counsel should be avoided Chair should allow panel members to voice their opinions prior to interjecting personal views The goal is to make the best decision considering the evidence presented The matter stands as presented and the panel may not request further clarification or documentation. Ethical concerns may NOT be referred to the grievance committee After finding a respondent in violation, ask for professional standards record for progressive discipline purposes Write findings of fact under the assumption that the reader knows absolutely nothing about the case. If discipline is included, be specific about exactly when the discipline must be fulfilled and outline the specific penalties if a party does not comply with such discipline If the Arbitration Worksheet is used: intended to supplement Factor #6 of CEAM not to replace. Nor is it intended to be used as a score sheet and is not mandatory to be part of the executive session. Dissenting opinions may be submitted for Ethics only. Arbitration awards are to be signed by the panel members or a majority of the panel members. CR Strategies LLC Page 4

5 RIGHT OF COUNSEL For ethics hearing: either party may be represented by legal counsel or REALTOR of their choosing or both. For arbitration hearing: either party may be represented by legal counsel. 15 day notice required Does not testify as a witness (unless panel determines essential to due process) and does not need to be sworn in May make opening and closing statements on behalf of party May examine and cross examine witnesses, introduce affidavits documents, other evidence Panel may require direct testimony from party Parties are responsible for counsel actions Decision to exclude counsel requires majority vote of the hearing panel. Hearing must then be postponed 15 days minimum, 30 days maximum unless: determined goal was to postpone or party waives the right to postpone. Grounds for exclusion: any effort by counsel to harass, intimidate, coerce or confuse panel members or parties, or any actions viewed as disruptive REALTOR PRINCIPAL Broker Owner, Managing Broker or a high level individual with a firm Retains the right to be present during an ethics proceeding of sponsored licensee Receives copies of complaint, response, notices and decision If Respondent has changed firms: rights accrue to current and former REALTOR Principal Ethics Complaint: REALTOR Principal may be joined as a Respondent by Complainant, Grievance or Hearing Panel prior to hearing. When Principal is part of the complaint, decisions on violation(s) and discipline are to be treated separately REALTOR Principal of a complainant, not named as a co complainant does NOT have the right to be present during the hearing unless acting as REALTOR Counsel Arbitration complaints may be filed by REALTOR Principals only Awards may only be made to or from the party named on the complaint. KNOW THE VOCABULARY Standard of proof for Ethics: Clear, Strong and Convincing Standard of proof for Arbitration: Preponderance of the Evidence Burden of proof: lays with the Complainant Prevailing party vs Non prevailing party No predetermined rules of entitlement ORIGINAL CHAIR ROLE IN APPEAL Do everything you can to avoid Save your notes in the event there is an appeal Review the hearing and prepare summary for the appeal panel Be specific and factual when presenting reasons why the panel s decision should be upheld CR Strategies LLC Page 5

6 TIME FRAMES IMPACTING HEARING PANEL CHAIRS Ethics Arbitration SITUATION TIME TABLE X To File an Ethics Complaint Within 180 days of offense X To File an Arbitration 180 days from closing or when facts known (*1) X X Respondent provides response 15 days from request to respond X X Response copy to Complainant Within 15 days X X Challenge name of tribunal Within 10 days mailed X X Appeal Grievance Dismissal to Directors 20 days X X Notice of hearing 21 days X X Notice of legal counsel 15 days prior to hearing X NA Notice of REALTOR counsel 15 days prior to hearing X X Notice of witnesses 15 days prior to hearing X X Witness not noticed properly If panel permits/right to recess not <5 days (*2) X X Complainant does not show up Document attempts to reach, wait appropriate time; Dismiss X X Postponment Date certain not less than 5 days X X Adjourned Hearing Not less than 15 days; no more than 30 days X NA Panels amends complaint during hearing May request adjournment > 15 and < 30 X X Decision to exclude counsel "Possible" postponement > 15 and < 30 (*3) X Ethics decision to be filed Within 10 days of decision X NA Dissenting opinions to be filed With filing of decision (*4) X X Notice to parties of decision W/I 5 business days of decision filed with staff NA X Non prevailing party to pay 10 days pay or deposit w/board X X Appeal procedural review 20 days X Board of Directors to Ratify After 20 days if no petition for rehearing filed X Award becomes binding After 20 days with no request for procedural review *1 When facts known in exercise of reasonable diligence *2 Panel to determine if witness testimony would be relevant and essential to due process *3 Postponement may be waived if panel believes action of counsel was intended to obtain a postponement *4 Dissenting opinion to be provided to parties CR Strategies LLC Page 6