Process/How to File a Complaint

 

NORTH CAROLINA APPRAISAL BOARD COMPLAINT HANDLING PROGRAM

OVERVIEW

Fairness and due process are fundamental concepts in the Complaint Handling Program.

All complaints must be in writing. No verbal complaints will be received or investigated. Anonymous complaints will not be opened. In addition, the Board may, on its own motion, decide to open a complaint. See Board Complaints Policy.

Once a complaint is received, it is given to the Board's attorney. A determination is made as to whether this is an appropriate disciplinary case (i.e., do we have jurisdiction, is it a request for advice, etc.). A letter is sent to the complainant acknowledging the complaint. The person filing the complaint is not considered to be a party to the complaint; he or she does not have any control over the course of the case. A letter of inquiry (and a copy of the complaint) is sent to the respondent requesting a response. Usually we ask for a copy of the appraisal and the file notes. Upon receipt of the response, the complaint is more thoroughly investigated.

What the Board investigates is determined by the type of complaint it receives. The Board takes each case as it is presented, but is aware of larger issues when conducting the investigation. The scope of the investigation can be broadened as more details are received about the case.

Where deemed appropriate by legal counsel, the investigator will conduct a comprehensive investigation of the Respondent’s other appraisal work. A comprehensive investigation can take place whenever warranted and when reasonable. Some indications for a comprehensive investigation may be when there is an allegation or indication of fraud or a pattern or practice of negligent or intentional violation of standards. This investigation is not considered part of or similar to the Board’s audit process. The detailed investigation audit might include some of the components of the audit process, when those components are related to the issues in the complaint, but will primarily consist of a more in depth study of appraisal practices and reports. During the investigation, documents are gathered, appraisals are looked at and witnesses are interviewed. The respondent and complainant will be personally contacted in each case. Often a trip is made to the area where the subject property is located in order to obtain tax cards, sales data and to view the property. The Deputy Director for audits and investigations, the investigator and legal counsel meet frequently on an informal basis to discuss each case before and during the investigation process. See Investigations Policy.

The results of the investigation are presented to the Board at a regularly scheduled meeting for a determination as to whether probable cause exists that the appraiser has violated the Appraiser Act. The Board's attorney prepares a summary of the facts, possible violations and a recommended decision that is presented to the full Board at a Probable Cause hearing. The facts are sanitized so that the names of the parties and area of the state involved are kept anonymous. If it appears that a Board member may have some knowledge or bias concerning the case, that Board member may be asked to recuse himself from the discussion and vote on the matter. Legal counsel may, in her discretion, ask the Chairman to appoint a Board member to assist in the determination of a recommendation to the full Board. At the Probable Cause stage, the Board can dismiss the case, dismiss with a letter of warning, dismiss with the condition that the Respondent take further education (see Conditional Dismissal Policy), ask the attorney to do more investigation or find probable cause and request a hearing. The appraiser and complainant are notified of the outcome.

If a hearing will be held, additional investigation takes place, records are subpoenaed and witnesses interviewed. Depositions may be taken. Board counsel attempts to settle each case, often meeting with respondent (and counsel). A Notice of Hearing, outlining the facts and charges, is sent to the respondent at least fifteen days before the hearing. The only issues that may be considered at the hearing are those listed in the Notice of Hearing. If a continuance is requested within a reasonable period of time, it is routinely granted if it is the first such request. The Executive Director has the authority to sign the first Notice of Continuance issued in a case. Only the Board can grant any further continuances.

If the matter is settled, the consent order is presented to the Board at its next meeting. The Board has the option of accepting or rejecting the consent order. Board members are given a summary of the case, and do not see any of the documents or evidence. Legal counsel may, in her discretion, ask the Chairman to appoint a Board member to assist with a particular case for purposes of determining an appropriate settlement. See Settlement Process Policy.

All final decisions which result in at least a reprimand are published in Appraisereport; those which involve suspension or revocation are also sent to newspapers, trade journals, and Superior Court. See Publication Policy.

If the respondent is not satisfied with the Board’s decision, an appeal may be made to the Superior Court of Wake County or in the county where the respondent resides.

There are other circumstances under which the Board will hear cases. An application may present a character issue. If that is the case, the Board has the option of accepting the applicant, deferring the application for a hearing in front of the full Board, or tabling the application for a Character Conference. See Character Conference Policy. Other cases might involve decisions of the Board such as not approving an application if the applicant does not appear to possess the requisite knowledge and competence for licensure or certification. In these cases, if the matter goes to a hearing before the Board, the applicant or appraiser has the right to due process.


BOARD COMPLAINTS

The North Carolina Appraisal Board has the statutory authority to investigate a complaint against an appraiser upon the receipt of a written complaint against the appraiser or upon its own motion (a Board complaint).

In some instances, staff may want to ask the Board to open a complaint on appraisal reports looked at during the routine course of business, or may obtain information regarding an appraiser that the staff believes warrants further investigation.

Some of those instances are:

1. When looking at a sample appraisal report as part of an application to upgrade or an audit, staff may see some issues in the report.

2. In investigating a complaint against an appraiser, staff may receive a copy of an appraisal report performed by another appraiser on the same or another property that shows some areas of concern.

3. Staff may receive information regarding the character of an appraiser, such as the loss of another occupational license or a criminal conviction.

Before staff brings appraisal reports to the Board for its consideration, staff will decide whether report shows evidence of significant wrongdoing. Some preliminary fact gathering may occur. If the issue is character, staff will obtain copies of court or agency documents, and may speak with individuals who have information regarding the appraiser.

Board counsel will screen all potential Board complaints. Counsel will make the investigation request to the Board in the form of a written document that will be presented at a Board meeting. Once the decision is made to open a case, it will be treated as any other case in which a signed complaint has been received.

In some instances staff may believe that the complainant in a complaint may have violated the Appraisers Act, rules or standards. In that case, a request for a Board investigation will not take place until the original complaint is closed absent special circumstances, such as imminent danger to the public interest.


INVESTIGATIONS POLICY

The North Carolina Appraisal Board employs investigators who are state-certified real property appraisers. It may be necessary, on a case-by-case basis, to solicit and use other individuals representing other disciplines if circumstances are discovered that require special investigative knowledge outside the scope of services for a real property appraiser. The Board’s investigators will concentrate their duties on matters of appraisal that pertain to the North Carolina Appraisers Act, Appraisal Board rules, the Uniform Standards of Professional Appraisal Practice (USPAP) and state law.

N.C.G.S. § 150B-41(d) states that "An agency may use its experience, technical, competence, and specialized knowledge in the evaluation of evidence presented to it." Investigators will obtain factual information and report that information in a format that can be used by the Appraisal Board in making a determination on the disciplinary matter before them. In their determination, the Appraisal Board decides if the development and reporting procedures are not complete, adequate, appropriate or reasonable or not developed in the context of the requirements applicable to the work under investigation. The investigators provide information that the Appraisal Board uses in forming its opinion of whether a violation has occurred.

The investigators employed by the Appraisal Board provide factual information, utilizing objective reporting procedures. Opinions given by the investigators, whether verbally or in writing, will only be those logically flowing from the factual data contained in the investigation file. Such opinions, which may be given in testimony or during discussion of probable cause or consent orders, are not considered to be appraisal reviews.

USPAP defines an appraisal review as "the act or process of developing and communicating an opinion about the quality of another appraiser's work that was performed as part of an appraisal, appraisal review, or appraisal consulting assignment." The beginning of Standard 3 of USPAP states "In developing an appraisal review assignment, as appraiser acting as a reviewer..." The investigators employed by the Appraisal Board do not develop opinions as to the quality of another appraiser's work. They are not given appraisal review assignements as part of their investigations, and they are not acting as reviewers. From the definition of appraisal review and from Standard 3, it is clear that the requirements of Standard 3 do not apply to appraisers who are employed by occupational licensing boards to investigate complaints against appraisers. Standard 3, therefore, is not considered applicable to investigative services and testimony by investigators employed by the Appraisal Board who are also state-certified real estate appraisers. The Appraisal Board is given the authority to prescribe the standards of practice for its licensees by G.S. 93E-1-10. Appraisal Board Rule 21 NCAC 57A .0501 adopts certain portions of USPAP as the Board’s standard of practice. This rule applies to Appraisal Board licensees only when they are performing the acts and services of a real estate appraiser. It does not apply to licensees who are providing investigation services for the Appraisal Board. The services of the Board’s investigators are therefore not subject to the provisions of Standard 3 of USPAP.


CONDITIONAL DISMISSAL

At Probable Cause, legal counsel currently makes a recommendation that the case be dismissed, dismissed with a letter of warning or should proceed to a hearing. Sometimes the decision is clear, but in others it is more borderline. There are those cases in which it appears that the trainee or appraiser did not do anything deliberately wrong, but acted out of ignorance. In some circumstances a letter of warning will suffice, but in others the respondent needs further education.

The North Carolina Appraisal Board does not have the statutory authority to force a respondent to take a continuing education class, but can enter into a consent agreement where the respondent agrees to further education. In order to enter into a consent agreement, the Board must first find probable cause. The Board has therefore adopted a disposition at Probable Cause known as conditional dismissal. Under this disposition, counsel recommends at Probable Cause that the case against the respondent be dismissed once the respondent successfully completes a specified continuing education or prelicensing class. The respondent is given a finite amount of time to complete the course; if the course is completed, the case is then dismissed with no further Board involvement. If the course is not completed, counsel brings the case back to Probable Cause for further consideration by the Board.


BOARD MEMBER PARTICIPATION AT PROBABLE CAUSE

If Legal Counsel deems it appropriate or necessary, the Board Chairman will assign one or two Board members to go over any or all of the probable cause summaries with staff before each Board meeting. The assigned Board member can look at the entire file and ask questions of the investigator. If the Board member is not satisfied with staff’s recommendation, he can ask staff to do further investigation and bring the case back in the future. If the Board member agrees with the staff recommendation, staff will do a cursory statement at the Board meeting, including a recommendation to the Board. Board members will rotate duties so that all Board members have an opportunity to assist with this process. The meeting with staff will take place at a time determined by the Board member.


SETTLEMENT PROCESS

Legal Counsel will attempt to settle every case, where appropriate. The disciplinary action to be taken will be determined by comparing the facts of the case and level of severity with prior cases of a similar nature. Aggravating and mitigating factors will be considered.

If Legal Counsel deems it appropriate or necessary, the Board Chairman will assign a Board member to act as a settlement officer for the complaint and will consult with staff when considering how to approach each case. The meeting with staff will take place at a time determined by the Board member. The assigned Board member can look at the entire file and ask questions of the investigator and Legal Counsel.

Counsel may make a recommendation for the Board member to consider. If the Board member is not satisfied with staff’s recommendation, he can ask staff to do further investigation and bring the case back in the future. If the Board member agrees with staff recommendation, staff will enter into a consent order with the Respondent and present the recommended settlement at a future Board meeting. The Board member who serves as settlement officer will not vote in the matter. If the order is not accepted, the Board member will recuse himself from the hearing.

Board members will rotate duties so that all Board members have an opportunity to assist with this process. Staff will keep track of which Board members participate in cases and will attempt to schedule hearings that involve the same recused Board members for the same day.


PUBLICATION OF DISCIPLINARY ACTIONS

All actions except dismissals and administrative warnings will be published in the Appraisereport. In addition, active suspensions, revocations and voluntary surrenders will be reported to the Better Business Bureau, local newspapers, and the Clerk of Superior Court.

When the Board accepts a consent order that allows the sanction to be reduced upon some action of the Respondent (e.g., suspension reduced to a reprimand if respondent completes a standards course), notification will be done according to the lesser sanction. If the respondent does not take the action necessary to reduce the sanction the remaining notification will take place at that time. For example, if respondent accepts a two month active suspension which will be reduced to a reprimand if he takes a standards course by September 1, publication of the disciplinary action will take place only in the Appraisereport. If respondent fails to complete the course by the deadline, the full sanction will be imposed and notification of the suspension will be sent to the press and court, as well as published in the Appraisereport.

The publication will contain the name of the respondent, the respondent’s city or town of residence, a brief summary of the facts and the disciplinary sanction imposed. No publication will take place until the time for appeal of the Board’s actions has passed. If the Board’s decision is appealed, publication will not take place until a final decision has been received.


CHARACTER CONFERENCE POLICY

Applications that involve an applicant's fitness for licensure may go before the Board for consideration. Character matters will appear on the agenda in a generic manner with the names of the individual applicants not shown.

At the first consideration by the Board, the Board may approve the application, table the application to offer the applicant a character conference, or defer the application and notify the applicant of his right to a hearing before the Board. If the applicant chooses not to request a hearing within 60 days, the application is considered denied.

Two Board members (scheduled on a rotating basis) and one or two staff members will meet with the applicant to discuss the application. Conferences will usually be no more than 30 minutes in length. They are informal in nature, with no court reporter and no witnesses. The applicant may have legal counsel and others with him, and may present written documents such as reference letters and court records. The panel will ask questions of the applicant for the purpose of assessing his credibility and fitness for licensure. After each conference, the panel will determine its recommended action on the applicant.

The panel will present a list of the applicants that they considered at a conference and the recommendation for each. The full Board will then vote whether to accept or reject the panel's recommendations.

After the Board meeting, candidates are notified of the Board's decision. If the matter does go to a hearing, the Board members who served on the conference panel may hear the case. The applicant, however, may elect to not have these Board members participate. Such an election must be made in writing and presented to legal counsel at least 5 calendar days prior to the hearing.


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