Role of the Commission Members
The Governor selects and appoints all members of the Real Estate Commission to serve five year terms. Each member serves that term and can continue to serve until the Governor names a successor. The law requires the Governor to appoint five persons who have significant experience as real estate licensees, and one person who has a recognized interest in consumer affairs and is not a real estate licensee.
Often, the public and the licensees mistakenly assume that the role of a Commission member is either to "represent the public" or to "represent the real estate industry." These assumptions lead both the public and licensees to misinterpret the purpose of the license law, and as a result, to seek inappropriate actions by Commission members. The purpose of the real estate license law, and thus the objective for the members of the Real Estate Commission, is twofold. First, it seeks to protect the public from intentional or unintentional harmful acts of persons acting as real estate licensees by assuring that licensees meet basic levels of competency. Second, it attempts to create a regulatory environment for the real estate industry that is reasonable and allows the licensee to attain economic success.
A member of the Commission devotes an average of two to three days per month to duties such as attending meetings, reading large volumes of preparatory material for these meetings, hearing presentations on a variety of regulatory and procedural issues, and evaluating and subsequently voting on those issues.
Commission members must be vigilant in identifying actions and requests that may compromise their judgments. They must guard against the unwarranted assumption that licensees and the public have the same level of knowledge and sophistication concerning real estate license law as Commission members do. They must guard against seemingly innocent, but improper, personal requests made to them. They must guard against personal biases that might improperly influence a decision.
Commission members must focus on five areas of responsibility--developing a spirit of cooperation and unity among Commission members, evaluating staff operations, establishing a fair qualifying process, establishing a fair and unbiased hearing process, and communicating with the industry and the public.
First, to be effective, a Commission member must work with his or her colleagues in a spirit of cooperation and with a sense of social responsibility. Members must actively and willingly participate in the activities of the Commission and the functions it must perform. Members must provide each other with the opportunity to debate issues to allow open discussion and dissent from the majority position. Members must realize that situations may arise in which matters of conscience require a member to abstain from discussing and voting on a specific issue. While members are expected to express views on all matters before the Commission, each member must remember that the Real Estate Commission is ultimately an administrative body rather than a deliberative body. Thus, members must constantly seek to take positions on policy matters that can lead to responsible action. If most or all members can agree on policy issues and on a course of action to carry out policies, then that policy is more effective.
Second, the license law requires that Commission members select and evaluate the activities of a full time staff. The Commission selects a Real Estate Commissioner to oversee the day-to-day activities of its staff. However, the Real Estate Commissioner and the other staff members can only take actions consistent with the policies established by the Commission. A Commission member must obtain sufficient information about how the staff discharges its daily duties in so the Commission member can make informed personnel and policy decisions.
Third, Commission members must see that the process of obtaining a license is reasonably available to all who wish to seek a license. At the same time they must assure that the process of acquiring a license is reasonably rigorous to eliminate those who do not possess sufficient knowledge. For this reason, the Commission approves schools, instructors, and course content which provide to licensees the knowledge necessary to protect the general public. The Commission also contracts with professionals in the field of testing to produce, administer, and grade its license examinations.
Fourth, in supervising and administering the disciplinary powers of the license law, a Commission member must always seek to assure that licensees and the public receive their due process rights. The Commission establishes precise guidelines for the staff to initiate and conduct necessary investigations. In addition, Commission members only act to discipline a licensee within the procedures set forth in the Administrative Procedure Act that governs all state agencies with regulatory authority. However, Commission members often go beyond the requirements of that act to assure fairness. For example, whenever Commission members review the results of investigative cases that may lead to a hearing, they do so without the names of the parties involved. They have instructed the staff not to use the names of the specific people involved. Staff members present only the facts of the situation so that the Commission members may vote solely on the issues in the case.
Assuring due process rights also requires that Commission members never exceed the limits of the law while striving to fulfill all requirements of the law. In the hearing process members may discover that a licensee or a member of the public committed what appears to be an improper act. However, unless the law expressly prohibits that act, the Commission may not use its authority to correct the error or to impose punishment.
Assuring due process rights also involves the orderly development of rules and regulations and recommendations for new legislation. The General Assembly has given the Real Estate Commission the authority to make rules. These rules have the force of law although the General Assembly does not pass them.
In proposing a rule, Commission members seek to determine whether a real need exists for the rule and what economic impact it may have. If the implementation of a new rule will result in higher costs of operating businesses, which licensees will in turn pass on to consumers, then the Commission does not seek to adopt such rules unless a compelling need for the rule exists. If a need exists and a rule is economically feasible, then the Commission member must ask two further questions. First, is the proposed rule reasonable? Second, is the rule within the limits of the legislative law? Any rule the Commission creates must meet both tests. Thus, if the Commission wishes to make a rule the content of which is reasonable, it may not do so if the rule exceeds the limits of the law. For example, if the law expressly required that licensees pay all renewal fees by a cashier's check or money order, the Commission could not make a rule that allowed persons who personally deliver their application to the Commission's office to pay that fee by personal check or cash.
Finally, Commission members actively communicate with licensees and the public. Proper communication requires informing licensees and the public of commission actions and changes in the law. Proper communication also provides opportunities for licensees and the public to discuss matters of interest with a Commission member. To meet this goal the Commission often holds open forums to provide opportunities for licensees and the public to ask questions and express opinions. In addition, the Commission encourages licensees and the public to see that the regulatory process works efficiently and fairly by communicating ideas and suggestions in writing to its offices.