Discussion in 'Arkansas' started by USPAP Compliant, Jun 24, 2010.
"The Board's findings of fact are inconsequential because they do not correlate to the Board's conclusions of law relating to the professional Standards it found that Quast had violated. Where there is no apparent correlation, a synthesis of fact and law cannot occur, and we are left without the means to conduct a review of the evidence to weigh whether the evidence is sufficiently substantial to support the Board's determination. Simply put, because the Board's conclusions of law are without adequate corresponding factual support, they lack substantial evidence and are arbitrary and capricious. As such, the Board's findings are not conclusive and require reversal. See Ark. Midland R.R. v. Director, 87 Ark. App. 311, 191 S.W.3d 544 (2004)."
Board reversed; circuit court affirmed.
HART and GRUBER, JJ., agree.
1. Appellee attempts to argue an issue in his reply brief regarding the Board's amendment of the charges against him after all the evidence was presented. However, we can not address his argument because he did not cross appeal from the circuit court's order.
Our board lacks proper legal advise from the Attorney General and the former investigator, Ms. Brainerd was well known for her "agressive" style of investigation. There are lots of instances where people are getting what they deserve, but I think that there are way too many instances where the worst sin of the appraiser is the fact that the property and the assignment is not a "cookie cutter" assignment.
It is one thing to babble a lot of crap about a "misleading" report, and another to prove that the USER of the report was, in fact, misled...
It speaks also about the uselessness of USPAP in court. The nitpicking complaints often result in the serious errors being dumbed down to the petty. Investigators should focus on clear evidence of incompetence and / or fraud. Inconsistency and equivocation is the result of limited and inaccurate facts. I wonder if the new investigator (Brainerd has retired) will 'lighten up' so to speak, or perhaps be more agressive. I know one former forumite who dropped his license rather than fight after that investigator had ripped him up one side and down the other. He quit rather than go to the initial board hearing. He had successfully defended a report previously to Brainerd and was surprised over the critical assessment.
Another thing that bothers me is the apparent bias where the CGs and the older CRs appear to suffer harsher sentences than less experienced appraisers over similar complaints...even though it is usually their first complaint.
This same board was overturned last year when they revoked a long time appraiser's license on his first offense. The court ruled that they could not do this and reduced the sanction to probation. Rumor has that they are seeking additional reports in hopes of putting him out of business. I hope rumor is wrong because it points to a single board member with whom this appraiser has had competitive run ins before. He apparently did not recuse himself in the previous hearing.
Overall, the current board is still much feared and little respected. Too many of us know of total incompetents that continue to work and I can think of only one who is "gone" by board action. I also can think of 5 who have suffered sanction whose work I have seen and saw nothing out of the ordinary...that is, I cannot see why I personally would not suffer the same fate as they on virtually any report. The system is flawed and could work better.
I am never surprised when the board is overturned. I am always surprised when told of instances where the board members take such so personally and seek ways to work around it. Being a board member is not about playing "Gotcha" and discreetly or actively seeking additional evidence to put someone out of business seems unfair.
It makes me wonder what would have happened if I would have moved forward in my revocation matter in North Dakota? I fought the fight long and hard, proved the board violated the law and the code, proved bias beyond a shadow of a doubt, but had an ALJ with little backbone to stand up to the board. His decision did in fact find violations of the law and the code by the board, but he left it up to the board to rewrite his opinion, as is allowable by law.
I spent well over $10,000 out of pocket as well as still owing more than $10,000 to a wonderful attorney who beat the living daylights out of the board. The sad fact was that I had no money to go to the next level in the legal system. There was and is no way the board will ever be corrected in my case.
Unfortunate but true. What you have written is so very true. Good appraisers who somehow step on the wrong toes or speak in an unfavorable manner are put on a short list for punishment by those that can. It speaks badly of our profession....
Appraiser Licensing and Certification Board
I just wanted to say, that from my own experience, making the decision to take time away from earning a living to serve in the capacity of a Board member is one of the most humbling experiences one will ever encounter. All of us as Appraisers recognize that the human element is present in every assignment we undertake and subject to flaws. Yet, USPAP is a part of our State statutes, and our Board is charged with the weighty and sobering responsibility of upholding each one of these laws to the very best of their ability. Board members don’t have the luxury of cringing away from this responsibility because they theorize they might make the same mistakes under the same circumstances.
It makes me very sad when I read that “overall, the current board is still much feared and little respected”. I have yet to meet a past or present Board member in whose character I perceive a sadistic propensity to relish the complaint process. Certainly, frivolous complaints are filed, often by our very own neighbors, clients, cohorts and constituents. Should there be short-cut process for those appraisers who are highly respected, and another for those not so well known or supported?
Of course not; the process must be (and is)the same for each and every appraiser, each and every time. The Appraisal Board’s records and processes and outcomes are meticulously reviewed every single year by the Appraisal Subcommittee. All procedures and proceedings are scrutinized for inconsistencies or irregularities; even our Board answers to a policing agency.
Yes, the system is flawed- Yes, sometimes things are brought to the attention of the Board that shouldn’t- and Yes, sometimes the bad apples are still in the barrel. But really, somebody once said “If you’re not part of the solution, you’re part of the problem.” If there is a productive suggestion of how the process might work better, let’s bring it forward and talk about it on these forums, maybe we could implement a solution.
Are there really many of us who know of total incompetents that continue to do work? Where is our individual responsibility to do all that is possible to protect, not only the public, but the reputation of our profession? If we really believe that our Board is playing “Gotcha”, why not help them in their quest of actively seeking additional evidence and put those appraisers out of business?
I wonder what fate was suffered by the 5 mentioned as being sanctioned for nothing out of the ordinary. Was additional education recommended, or perhaps an appraisal log submitted for a period of time so that suggestions could be made and future issues avoided for that appraiser? The reality is that the overwhelming majority of all complaints culminate in some variation of these two things, after having a simple face to face dialog between the appraiser and the Board. Sadly, these types of resolutions, along with probable cause dismissals, do not tend to make the appraiser forums.
Please consider that, if I were an appraiser under review (and I have been, by the way), I might tend to be critical of the experience, take it as a personal attack and/or present my position of the work I performed in a favorable light…who wouldn’t? Then consider that aside from having a personal face to face discussion with a Board member about the specific details of another appraiser’s personal proceedings, what is heard and processed is second, third or even fourth-hand information. But finally, Holy Cow, if there are those us who find ourselves having a conversation with a Board member about the specific details of another appraiser’s personal proceedings, then, #1) shame on us for participating, and #2) we should get to a courthouse and petition the State for the immediate removal of that member!
Thanks for hearing me out. This is all just food for thought; you know “this and a quarter will get you a cup of coffee” type of thing. Personalities aside, it would great to see us putting energy behind building ourselves up by focusing on the positive attributes of our Board and our other dedicated professional appraisers, of which there are MANY.
1) No appraiser is forced to "serve" on any appraisal board. Some seek prestige, some public recognition and others are camera chasers and publicity seekers.
2) Appraisers are appointed to appraisal boards because they have made a conscious choice to seek out an appointment and done what they have to do to get appointed. In NC that means writing a check to a state Representative, Senator or the Governor. It also means being a registered Democrat.
3) Take a poll. My experience is that most appraisers I know or correspond with are in in fear of their appraisal board and have little or no respect for the board or individual members. How can you respect someone willing to buy their way on to the board?
4) Nearly every appraisal board in the country sat on their collective butts and failed to revoke the licenses of criminals posing as appraisers. Check the ASC records. Arkansas
has revoked on SEVEN appraisers in 20 years....and only TWO in this decade.
5) Pull out the budget and see where the money goes....not to investigations and hearings.
Not true. The ASC is on a two year review schedule and has ZERO power to require any sate boards to do anything.
7) Arkansas has a pretty poor record with the ASC. Years of non-compliance until 2009.
Out to lunch appraisal boards are responsible to the decline and fall of the appraisal profession. Too much official business is carried out in hotel rooms, bars and closed sessions.
Appraisal boards in general were asleep from 1989 until 2007. Oblivious to the fraud and incompetence under their noses....and since then making up for lost time.
There have been more revocation 1n the last 12 months than in the previous 19 years COMBINED. That is a fact...add up the numbers from the ASC,
Nc, Usap Kompliant,
I Believe You.
But Thats Not The Situation In Arkansas.
Most Usually Potential Members Are Urged To Serve By Their Peers In A Location.
At Great Cost In Lost Revenue, But A Great Education.
We Do Have Problems Here. I Am Debating Whether To Outline Them Or At 76 Years Old Just Cop Out.
1) Do "peers" make the appointments...or politicians. Are the members FORCED to serve on the board...or is it a choice. I get a little sick of appointed and elected officials crying about their sacfifice...when they made the decision.
2) Explain the "great cost" in lost revenue. How often does the Arkansas board meet? How many hours a month do you figure are spent by a board member in open, public meetings? Are they compensated at all. I don't think it is a money making oportunity.....except for the lenders or clients that might gravitate toward state appraisal board members.
The NCAB only meets 8 times a year (mostly for 1 day) and all expenses (food, travel, lodging) and a per day payment of $100.00. Yes..there are some lost wages.....but not much. They also spend a truck load of money on senseless travel.
No comment on 4,5,6 & 7 above?
I am sure that some appraisers have great admiration and respect for their appraisal board members......I expect they are in the minority.
Among the alleged violations by the appraiser, according to the Board, was the accusation of insufficient data in the appraiser's work file. It's kind of ironic that the Court stated in their ruling the Board lacked "sufficient data in their work file" (my words), in part, to prove their cas.
O2, I know several past and two current board members quite well. I am not saying any of them deliberately try to hurt people. But from personal experience I know that an investigator can be too aggressive, and truth be truth, the board members must rely upon the judgment of the investigator. I've heard comments also to the effect that where there is smoke there must be fire, and that influences all our personal judgments. One board member was turned into the state and serves on that board today. I believe he actively campaigned for the job because of his outrage over the procedure itself. I am confident from the tone of your comment and your post (#1) that you are quite close to the board or a board member. Am I wrong?
I have seen the work of one ex-forumite only months before the new investigator pillared him. He was so shaken by the experience he dropped his license. The board might have been more sympathic, who knows. Greg was already slow and had appraised a sale below the contract price. The Realtor turned him in. After seeing what a lawyer would cost, he realized it wasn't worth it. Under Mary Lou, he had successfully defended a different appraisal. So did he get stupid or was our new investigator aggressive? BTW, he got a job with HP in Conway and is much happier now, better paid, and does not have to worry about being branded a fraud by some state board.
A few years ago I had to attend a meeting with Mary Lou. The object of her affection was another appraiser, one who thought she was doing a better job than she was and was very defensive...too defensive. The lawyer who represented both of us asked me to go into the adjacent room where I could not be seen and to listen in on the conversation. I did. They went at it like two cats. It was unbecoming of both of them. Eventually, it was my turn to meet Mary Lou and she was mad as a wet hen. But I responded as meekly as possible. Within a few minutes Mary Lou calmed down and the meeting went quickly. She "put it to sleep" and nothing more came of it. Later a second complaint against the the other appraiser resulted in a revocation. She appealed to court and eventually surrendered her license. I certainly will not say she didn't deserve to lose her license. But the entire process was not pretty and I doubt any board member lost sleep worrying about how a 60 year old woman would feed her family the following week either.
But Ed and I both know two area appraisers who lost their licenses and had to go to court. I feel neither one warranted revocation. And a judge agreed that revocation of a license on a first offense is inappropriate. Again, there is the uncomfortable question of was a sitting board member adjudicating some of his oldest competitors. That question remains opaque.
There is an Administrative law that overrules the board. And most instances where the board has been overturned by court it is because they have violated the administrative law. That is where the state AG has failed to provide good guidance to the board. The case above clearly demonstates that. A good AG rep would have nipped this in the bud.
Perhaps therein lies the rub. USPAP is not Administrative law. The Board must uphold administrative law not ASC babbling...lest we forget how the ASC wanted those mass appraisers to resubmit their experience logs 15 years after they had obtained licenses? How stupid can ASC be? AALCB is created under STATE law not under USPAP.
And those administrative laws clearly state the board has the right to issue reprimands. They are not limited to monitoring someone or simply taking their livlihood away... Face it, limiting someone's practice is an economic death sentence in the current economic climate. Boards ought to be cautious about same.
Also, no matter how honorable may be the intentions of a board member, they also have to have some common sense in the absence of adequate counseling from the Atty General's office. When is the last time that the AALCB has issued a letter of reprimand? Never?? Most boards, issue them routinely for first offenses. To go all the way to revocation of a license suggests someone is a clear fraud. Obviously enough cases exist to suggest that they were not fraud.
In the case above, a letter of warning saying they disagreed with the way in which the report was prepared would have been an adequate punishment. it would have saved the recipitent a five figure law bill and the board an embaressing defeat. The board and investigator involved ought to take up a collection among themselves and reimburse the fellow. By appealing a ruling against the board, they also double or triple the cost to the victim of bad judgment... perhaps board members should lose their licenses for bad judgment as well, eh???
They were wrong, not him. But I would bet a dollar to a donut that if you asked each member individually, they would argue the state courts made the mistake, not them. They are in denial. And I say that knowing that one of my best friends and a man whom I respect much serves that board. Anyway you slice it, the board's actions hurt a person very badly...far worse than the supposed infraction hurt the client...who obviously had no problem with the report.
Complaints are rarely over garden variety appraisals. Virtually all appraisals are opinions and the report writing is not an easy task nor does much of our so called education help us write reports for all specific assignments. Nor is it always possible to find the ideal supporting information. So does everyone run away when no one has done an identical assignment?
Frankly, an appraisal board made up of our peers is inferior to a real court. Not only legally but in a practical manner. I am convinced that too many appraisers on state boards cannot see the forest for the trees. They are appraisers and competitors of the accused. They also carry the baggage of their own biases and their own interpretation of "doing it right". And those biases color the interpretation of law and USPAP-a badly flawed document. Perhaps outside eyes can see clearer.
I have served on a board of equalization. I know what it is like to sacrifice paying jobs to work 5 days a week for two solid months at minimum wage. It is a hair shirt job. Serving a board has to be equally bad. But no one holds a gun to the head of board members. They don't have to serve. They are not drafted. And they are our peers, not our superiors. In fact, it was a couple of years ago that one appraiser resigned the board over a complaint and surrendered his own license.
On my desk is part of a report. The report is bad, real bad but I don't know how bad because the bank will not surrender the URAR and comment pages to the borrower, only a certification page and cover sheet. But the value is well under the property value, the bank knows it, and they sent a second appraiser to re-appraise the property at their own expense. I could ask the board to investigate. I could raise a stink. But will it really help? What if it was just a bad day? Do I put someone out of business who is incompetent, or simply made a mistake. Appraising is the only profession I know where you are expected to be perfect by your peers and clients, yet assumed to be a crook by both. I made myself a promise. If a serious complaint is filed, I will not fight it. I will surrender my license and keep on with my geological practice. It is not worth the fight especially when your own board makes the kinds of mistakes that the lawsuit above suggests they are capable of. As for serving such a board, I would find it hard to see a way to honorably serve in the face of overwhelming evidence that the board can make such awful mistakes no matter how sincere and honest its individual members be.
USPAP, the issue here is usually resolved by the person under review simply drops their license rather than go further. This happens more frequently here than in Oklahoma for instance, which is a bigger state. Those do not show up in the ASC records. The non-compliance issue, in the board's defense, really related to them going back years after the fact and asking the state to revoke the licenses of all appraisers who provided mass appraisal experience logs. The ASC wanted specific lists of the properties appraised. Surely you see the problem with an appraiser licensed in 1992 who had been a mass appraiser in the 1980s going back and trying to reconstruct such a log, and of the legal ability of the board to revoke that license if they did not. In fact, had they revoked a license, the courts would have overturned them. It was a horrible stupid issue created by the ASC.