Andrew Wetzel's Musings

June 9, 2017

Filing an Ethics Complaint Explained! Part 3.

Filed under: Uncategorized — awetzel @ 5:42 PM

You got the news today.  Oh boy!  The Grievance Committee has moved your complaint forward to a full hearing and a hearing panel is being put together.  The date is set and you are scheduled to appear with or without witnesses or an attorney in front of five Realtors (plus an “alternate” in case someone has to leave) and the person against whom you filed the complaint.  They may or may not have witnesses or an attorney.

The panel Chairperson reads a statement describing the process, swears you in and then you start the process by presenting your case.  The testimony is recorded (sound only) in case there is a later question about the “process”.  The burden of proof is on you, the complainant, and the panel is told to evaluate the hearing using one simple standard:  did the complainant offer “clear, strong and convincing evidence” that a violation of the Code of Ethics occurred?  The other way to explain this is “preponderance of the evidence”.  The standard is NOT “guilty beyond a reasonable doubt”!

After the complainant speaks the respondent may either ask questions or make their statement.  If either side has one or more witnesses, they will be seated in a separate room until their testimony is needed and then they will be excused after testifying.  Each side gets to state their case and ask questions of the other party.  Civility is expected!  Direct testimony is expected, not “hearsay”, and, if mediation took place previously, what happened there is to be kept confidential and not brought into the hearing.

After both sides have concluded their statements and questions the panel members are allowed to ask questions.  Some prefer to remain quiet; I am typically the Chairperson and I let my panel members ask their questions before I ask mine.  The questions are meant to clarify testimony, not to lead the conversation into unspoken areas as we are not there to assist either side in making their case.

The process ends with the Chairperson reading another statement which includes asking the parties to affirm that the hearing allowed them the opportunity to make their case.  The parties are then advised that their part is over and that they will be advised of the panel’s decision once approved by the Board of Directors.  There is an appeal process which I will not discuss.

The panel members then discuss what they heard.  The 6th member/ alternate is not permitted to ask questions or to be involved in the discussion after the hearing concludes.  In some cases I have seen the alternate stay to observe; in others they have left.

As with the questioning, when I am the Chairperson, I let the panel members discuss their thoughts first and that starts with a vote to see where the group stands.  As with my experience on Grievance, most votes are 4 to 1 or 5 to 0.  Even when an initial vote appears conclusive, I like the panel members to convince each other that the vote should stand.  There are times where a member may change their opinion and that usually results from their hearing others say something they may have missed or not understood or because they viewed something differently than the rest of the group.  We do not need a unanimous decision but we do need to openly talk about what happened and what we think so that we can render the best possible decision.

Once a decision is reached, if we find that a violation of the Code of Ethics occurred, we need to consider the penalty/ sanction to be imposed on the respondent.  There is a format for doing that and the Board of Directors will decide whether the penalty is consistent with what happened.  Then we write a “findings of facts” to submit to the Board of Directors.  The purpose is to provide the relevant facts in logical detail to support our conclusion and the penalty assessed.  The “findings of facts” is the only reference the Board of Directors will have to accept or refute the outcome.

I would like to conclude with two specific points.  First, each case is decided on its own merits.  Unlike the American legal system, we do not use prior cases/ precedents to determine a decision:  the facts presented determine THE outcome.  What happened before is unknown to the panel and irrelevant with the exception of cases where a respondent has a history of being found to have conducted themselves unethically.  That will impact the severity of the penalty/ sanction imposed (there is “progressive discipline”).

Second, I personally feel that some people (agents and consumers) do not file complaints to avoid the process of facing another human being with whom they have a problem and to avoid having to testify in front of a panel.  Trust me when I tell you that NO ONE is comfortable sitting in a hearing as a complainant or a respondent.  I would add that their level of comfort is NOT a basis for any decision.

While I empathize with people who want to avoid any aspect of public speaking, I highly value the fact that we “police ourselves”.  I trust what we do far more than I could ever trust our having to do this in front of non-Realtors no matter how well versed they may be in the law.  Regardless, as long as people take action to “make things right”, whether they pursue our formal process or do it quietly, the important thing is that it get done.  I agree with others who believe that most performance issues are accidental and unintentional, more rooted in poor training and poor follow-through than a conscious effort to do wrong.  I am concerned about new agents left on their own or any agent who is poorly supervised!  Unless someone learns that what they did was wrong, especially if it were unethical, they are likely to continue to repeat the behavior and eventually someone will be harmed.

The reputation of the Realtor community is built on the collective experiences and interactions we have with our clients and customers and, while it is all too easy to offend someone, it is very difficult to regain their trust and respect.  Our process can minimize the problems if we do as we should.

There is so much more to this process.  Most agents and most consumers will never need to know more; some may seek answers just to increase their own awareness; others will be forced to learn when they become involved in a complaint.

Which best describes you?





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