1. Grievance Committee

2. Grievance Committee...
initial review of and screens complaints and requests
grand jury

3. Grievance Committee does not
conduct hearings
determine violation or award
mediate or arbitrate business disputes

4. Grievance Committee appointed by president
confirmed by board of directors
balanced representation of membership
mature, experienced, knowledgeable person

5. Arbitration requests acceptable form necessary parties named
Important questions
acceptable form
necessary parties named
timely filed
parties have standing
litigation pending
impartial panel

6. Arbitration requests basis for an award mandatory or voluntary
Important questions
basis for an award
mandatory or voluntary
amount too large or too small
matter too legally complex
knowledgeable arbitrators available

7. Arbitration requests forward for a hearing dismiss request
Options for action
forward for a hearing
dismiss request

8. Arbitration requests may be appealed by either party
Dismissal by grievance committee
may be appealed by either party
parties not attend

9. Ethics complaints complaint acceptable form necessary parties named
Important questions
complaint acceptable form
necessary parties named
timely filed
respondent a member or MLS participant of board

10. Ethics complaints litigation pending impartial hearing panel
Important questions
litigation pending
impartial hearing panel
amend complaint
if complaint were true, could it violate Code

11. Ethics complaints amend complaint and forward for hearing
Options for action
amend complaint and forward for hearing
forward complaint as submitted by complainant for a hearing
dismiss complaint

12. Ethics complaints dismissal appealable parties do not attend appeal
Amendments/dismissals
dismissal appealable
parties do not attend appeal

13. Grievance
Committee
Ethics
Hearing
Procedures
Arbitration
Hearing
Procedures
Rehearings
&
Ethics
Appeals
Procedural
Review
Arbitration
Procuring
Cause

14. Ethics Hearing Procedures

15. Hearing panel
three, preferably five
odd number

16. Hearing panel
if REALTOR-ASSOCIATE® or REALTOR® other than principal is a party, at least one panel member should also be a nonprincipal
panel chair named by chair of professional standards committee

17. Rights of parties counsel present evidence witnesses
cross-examine witnesses
make closing statement

18. Amending a complaint
prior to hearing: complainant may file. Hearing panel may disallow
during hearing: complainant or hearing panel

19. Witnesses... present only during testimony
the REALTOR® principal may remain throughout hearing

20. Hearing panel’s decision
in writing
findings of fact
discipline

21. Discipline letter of warning letter of reprimand education
fine not to exceed $5,000
probation for one year or less

22. Discipline
suspension from board membership for not less than 30 days nor more than one year, or a fine of $5,000 in lieu of suspension
expulsion from board membership for one to three years
suspension or termination of MLS privileges

23. Grievance
Committee
Ethics
Hearing
Procedures
Arbitration
Hearing
Procedures
Rehearings
&
Ethics
Appeals
Procedural
Review
Arbitration
Procuring
Cause

24. Arbitration Hearing Procedures

25. Arbitration Hearing Procedures
policy matters
submission to arbitration
arbitration hearing
arbitrators’ decision -- executive session

26. Policy Matters
timing
fees
consistency with state law
prior litigation

27. Policy matters within 180 days after closing
Timing
within 180 days after closing
within 180 days after facts could have been known with reasonable diligence
whichever is later

28. Policy Matters
Fees
not to exceed $500

29. Policy matters Consistency with state law state law prevails
Uniform Arbitration Act
consult with board counsel

30. Policy matters Variations from state to state include:
Consistency with state law
Variations from state to state include:
advance agreements to arbitrate future disputes
agreements to binding arbitration after dispute occurs/arises
law does not recognize agreements to arbitrate before or after

31. Policy matters matter previously litigated cannot be arbitrated
Prior Litigation
matter previously litigated cannot be arbitrated
neither party to litigation may charge the other with failure or refusal to arbitrate

32. Submission to arbitration One of three options:
signed agreements and deposits before hearing held
if no agreement/deposit, proceed if respondent participates in hearing
if no agreement/deposit/attendance, proceed if state law allows

33. Arbitration hearing the panel witnesses
rights of parties during hearing

34. Arbitration hearing The panel three, preferably five, members
odd number

35. Arbitration hearing majority of REALTORS®
The panel
majority of REALTORS®
if REALTOR-ASSOCIATE® or REALTOR® nonprincipal is involved, at least one panel member should be a nonprincipal
chair of panel named by chair of professional standards committee

36. Arbitration hearing challenges for good and sufficient cause
The panel
challenges for good and sufficient cause
additional state law requirements for arbitrators may apply

37. Arbitration hearing present only during testimony
Witnesses
present only during testimony
a REALTOR-ASSOCIATE® or REALTOR® nonprincipal on whose behalf action was brought is not considered a party; such nonprincipal may be a witness and is allowed to remain throughout hearing if affiliated with party

38. Arbitration hearing counsel (attorney at law) evidence witnesses
Rights of parties during hearing
counsel (attorney at law)
evidence
witnesses

39. Arbitration hearing cross-examine witnesses make closing statement
Rights of parties during hearing
cross-examine witnesses
make closing statement
Note: state law - subpoena power

40. Arbitrators’ decision
executive session
the award

41. Arbitrators’ decision
Executive session
parties dismissed; panel makes award
board counsel may be present to provide procedural guidance and answer legal questions
no predetermined rules

42. Arbitrators’ decision
The award
Standard of proof
preponderance of the evidence
(the 51 percent rule)
ethics - clear, strong, and convincing

43. Arbitrators’ decision
The award
Form of award
only amount
no findings of fact or rationale
not greater than amount requested
signed by arbitrators (or majority)

44. Arbitrators’ decision
The award
Form of award
no dissenting opinion
no discussions with parties
in ethics can dissent

45. Grievance
Committee
Ethics
Hearing
Procedures
Arbitration
Hearing
Procedures
Rehearings
&
Ethics
Appeals
Procedural
Review
Arbitration
Procuring
Cause

46. Rehearings & Ethics Appeals

47. Rehearings & Ethics Appeals
appeal hearings
directors’ decision about appeal
directors’ action if no appeal filed

48. Rehearings complainant and respondent have right to rehearing
newly discovered evidence

49. Rehearings same hearing panel
petitioner given opportunity to present new evidence
scope of rehearing limited to new evidence

50. Appeal hearings deposit maximum $250 in writing
Formalities
deposit maximum $250
in writing
clearly state bases for challenge

51. Appeal hearings misapplication of Articles of Code
Respondent’s bases for appeal limited to:
misapplication of Articles of Code
misinterpretation of Articles of Code
procedural deficiency
lack of procedural due process
nature/extent of discipline imposed

52. Appeal hearings alleged procedural deficiency
Complainant’s bases limited to:
alleged procedural deficiency
other lack of due process which may have deprived complainant of opportunity for fair hearing

53. Appeal hearings president or delegate reviews appeal
Initial administrative review
president or delegate reviews appeal
determine if any legitimate basis
if not, problem explained to appellant and additional detail requested

54. Appeal hearings board of directors, or panel of board of directors, or
Review by:
board of directors, or
panel of board of directors, or
executive committee

55. Appeal hearings
The hearing
petitioner limited to bases set forth in written appeal request
hearing panel chair summarizes case

56. Appeal hearings each party may offer corrections to summary
The hearing
each party may offer corrections to summary
each party may present arguments

57. Appeal hearings
The hearing
no new evidence allowed, except as it bears upon claim of deprivation of due process
arguments limited to issues raised in written appeal

58. Directors’ decision - appeal
directors may adopt hearing panel’s decision and recommendation for discipline
directors may modify hearing panel’s decision and/or recommendation for discipline

59. Directors’ decision - appeal
directors may dismiss matter if findings of fact not supported
if procedural deficiency, directors may
refer case back for new hearing before different panel

60. Directors’ decision - appeal
Modification of discipline
directors may reduce discipline
directors cannot increase discipline. Directors can refer back to original hearing panel with their written statement of concerns

61. Directors’ action - no appeal
if procedural deficiency, directors may refer back for new hearing before a different hearing panel
directors may reduce discipline

62. Directors’ action - no appeal
directors cannot increase discipline
if concerned with discipline, directors can refer back to original hearing panel with written concerns

63. Directors’ action - no appeal
in the absence of an appeal or one of the other actions stated previously, the directors must adopt the hearing panel’s decision

64. Grievance
Committee
Ethics
Hearing
Procedures
Arbitration
Hearing
Procedures
Rehearings
&
Ethics
Appeals
Procedural
Review
Arbitration
Procuring
Cause

65. Procedural Review - Arbitration

66. Procedural Review - Arbitration
appeal versus review in arbitration hearing
request for procedural review

67. Arbitration hearing no right to appeal award
Appeal versus review
no right to appeal award
right to limited procedural review based solely on assuring that due process rights were observed
process provides “safety valve” so no litigation

68. Request for procedural review
Limited right of review based solely on:
failure of due process
board failed to follow established arbitration procedures
Note: If not filed in 20 days from receipt of award, award final

69. Request for procedural review
Request for review
board of directors, or
a panel of the board of directors, or
executive committee

70. Request for procedural review
Request should clearly set forth all bases for challenge
use form A-13 in CEAM
cannot say, “I appeal”

71. Request for procedural review
Initial administrative review
president or delegate reviews request
purpose - to determine if request states legitimate basis
if not, problem should be explained to party and additional information requested

72. Request for procedural review
Directors’ executive session
decision is final and binding
only issue is whether proper procedures followed for due process
if directors find hearing defective, award is invalidated. Case sent back for new hearing by different panel

73. Request for procedural review
Directors’ executive session
Parties can be released from obligation to arbitrate

74. Request for procedural review
Review hearing
arguments limited
chair clarifies that award itself is not reviewed
no new evidence except as it bears upon claim of deprivation of due process

75. Request for procedural review
Review hearing
standard rights to challenge
hearing panel chair can respond to appellant’s allegation
other parties to arbitration can support original decision

76. Grievance
Committee
Ethics
Hearing
Procedures
Arbitration
Hearing
Procedures
Rehearings
&
Ethics
Appeals
Procedural
Review
Arbitration
Procuring
Cause

77. Procuring Cause

78. Procuring cause - an overview
basis for award
facts to be considered

79. Basis for award No predetermined rule to determine entitlement
no “contract” rule
no “threshold” rule
Determination based on all facts and circumstances related to particular transaction

80. Basis for award Black’s Law Dictionary, Fifth Edition,
defines procuring cause as:
A broker will be regarded as the “procuring cause” of a sale if his efforts are the foundation on which the negotiations resulting in a sale are begun

81. Basis for award
Black’s Law Dictionary, Fifth Edition, further defines procuring cause as:
A cause originating a series of events which, without a break in their continuity, result in accomplishment of prime objective of the employment of the broker who is producing a purchaser ready, willing, and able to buy real estate on the owner’s terms

82. Factors to be considered
Factor 1: No predetermined rule of entitlement
“rules of thumb,” and prior decisions disregarded
agency relationships not determinative of entitlement to compensation

83. Factors to be considered
Factor 2: Arbitrability and
appropriate parties
questions of arbitrability and appropriate parties named can be considered by panel

84. Factors to be considered
Factor 3: Relevance and admissibility
generally, state law controls
any relevant evidence is admissible

85. Factors to be considered
Factor 3: Relevance and admissibility
generally, state law controls
any relevant evidence is admissible

86. Factors to be considered
Factor 3: Relevance and admissibility
Possible ethics violations in arbitration hearings
can be considered part of evidence
cannot be used to withhold an otherwise substantiated award
should be considered only as one of the many potentially relevant factors in decision

87. Factors to be considered
Factor 3: Relevance and admissibility
Note: hearing panel shall not make referrals of ethical concerns that arise during a hearing

88. Factors to be considered
Factor 4: Communication and contact -abandonment and estrangement
Abandonment: whether the broker’s inactivity, or perceived activity, may have caused the purchaser to reasonably conclude that the broker had lost interest in or disengaged from the transaction.
(CEAM, Appendix II to Part Ten)

89. Factors to be considered
Factor 4: Communication and contact -abandonment and estrangement
Estrangement: whether the broker engaged in conduct or failed to act which caused the purchaser to terminate the relationship. This can be caused, among other things, by words or actions.
(CEAM, Appendix II to Part Ten)

90. Factors to be considered
Factor 5: conformity with state law
Factor 6: consideration of the entire course of events -- the list