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Ethics complaint filed against the NCAB

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North Carolina
Finally recieved the transcripts of the recusal hearings in my case this week. Based on the transcripts, I have filed the following complaint with the NC Board of Ethics.

15 January 2003

North Carolina Board of Ethics
Room 2009-Q
116 W. Jones Street
1324 Mail Service Center
Raleigh, NC 27699-1324

RE: Ethics problems with North Carolina Appraisal Board (NCAB)


Dear Chairman Bason:

This letter forwards my complaint regarding the unethical conduct of the current chairman of the NCAB, Mr. Bart Bryson, and the staff legal counsel Ms. Roberta Oullette. These individuals deliberately and knowingly withheld the fact that Mr. Bryson had ex parte communication with the prosecutorial staff in three disciplinary cases before the board. This action served to mislead the respondents and the other board members in two of the cases. I am also of the opinion that this deception was supported, if not deliberately, at least passively, by Ms. Oullette's supervisor in the NC Attorney Generals office, Mr. Thomas R. Miller, and by Mr. Mel Black, the Executive Director of the NCAB.

As noted in the NC Board of Ethics Advisory Opinion -99-014, legal bias, as an impermissible conflict of interest, would include "an undisclosed ex parte communication"; and in Advisory Opinion-01-001, board members must be"extremely sensitive to following the letter but also the spirit of the conflict of interest and appearance of conflict."

Mr. Bryson participated in the investigation of three related cases. Subsequently, he appropriately recused himself from hearing the case at the probable cause hearing. By virtue of his prior recusal, Mr. Bryson was therefore free to participate without disclosure to the opposing parties in these cases, in prosecutorial planning sessions after the notices of hearings were filed in all three cases. Mr. Bryson subsequently recused himself from hearing the first case but participated in adjudicating the second case without ever disclosing his efforts on behalf of the prosecution. Ms. Oullette also failed to disclose at any time that Mr. Bryson had participated in the prosecutorial effort. In stark contrast to Mr. Brysons lack of regard for a fair and impartial adjudication of this case, another board member, Mr. Charles Bass, recused himself for merely knowing the respondent.

After the notice of hearing in the third case, issues of bias regarding three members (not including Mr. Bryson) were brought before the board. It was known by the respondent and respondent's counsel that Mr. Bryson had participated in the investigation and had recused himself from hearing the case at the probable cause hearing. Although Ms. Oullette and Mr. Miller argued that Mr. Bryson was available to sit as a board , neither Mr. Bryson, Ms. Oullette or Mr. Miller at any time arguments disclosed the material fact that Mr. Bryson had participated in the ex parte prosecutorial planning sessions. As a result of these proceedings, a stipulation was entered in which the three named members (not including Mr. Bryson) acknowledged bias and were not to hear the case. The stipulation further provided that the case would be heard by an Administrative Law Judge (ALJ) and that "the remaining sitting board members" would have the right to make the final agency decision following the ALJ's recommended decision. The stipulation did not specifically name Mr. Bryson as a sitting board member, and it did not specify a minimum number of board members who could make the agency decision.

The merits of the case were heard in due course , and the ALJ recommended dismissal of all charges. When the staff announced their intentions to challenge the ALJ ruling, a newly appointed board member, Mr. Charles Hinnant, announced his intention to recuse himself for bias due to long term association with the respondent as a member of a professional trade organization. At that time, the respondent became aware that Mr. Bryson had reversed his decision to recuse himself. The respondent, through counsel, challenged the right of Mr. Bryson to hear the case as one of "the remaining sitting board members" arguing that Mr. Bryson had, by virtue of his recusal at the time of his probable cause, removed himself from the capacity as a sitting board member.

Ms. Oullette argued that neither Mr. Bryson or Mr. Hinnant had been shown to have any actual bias, that there was no known evidence of record of ex parte communication, and regardless of any merits of bias as charged, any such issues had already been waived by the respondent in the stipulation. Ms. Oullette and Mr. Miller also argued that without the participation of both members a quorum could not be obtained and that the terms of the stipulation could not be met. Mr. Bryson and Mr Hinnant participated in the closed deliberations and the board ruled to deny the recussals without providing any rational for the denial. As of this date, the board has heard exceptions, stating that it intends to take disciplinary action. However, the NCAB has not yet formally filed an order in the case.

In support of these allegations, I have provided copies of relevant transcripts in this matter.

Although I am the respondent in the third case, I am not suggesting that the Board of Ethics intervene in my case. My case will be resolved in due process by the judicial system, and I am confident that an impartial review of my case will concur with the ALJ decision. Any issues of legal bias or conflicts of interests in my case will also be adjudicated in due course.

However, the actual facts point to a larger problem in the adjudication of disciplinary cases by this board. Although I understand that in a contested case, the prosecution is an advocate for the state and that aggressive prosecution is acceptable practice for attorneys, the actions of the legal staff, and the board members who acted upon their advice and with their consent, extend far beyond reasonable levels of professional advocacy.

The facts are clear. Had Mr. Bryson intended to recuse himself from adjudicating any of these cases, he need not disclose his participation. This is exactly what occurred in the first case. However, with the full knowledge and consent of Ms. Oulette, he chose to reinsert himself into adjudication of the remaining two cases. Both he and Ms. Oullette failed to provide any notification that he had participated in ex parte matters in these two cases. Even though the exparte communication was revealed as a matter of fact in the third case, Ms. Oulette and Mr. Miller attempted to deliberately mislead the board members about the legal ramifications of this matter by arguing that it is perfectly acceptable practice to mislead licentiates by not disclosing relevant facts so long as the respondents can be deceived into signing stipulations.

I believe that the facts speak to an almost conspiratorial effort on behalf of board members, the board staff, and the attorney general counsel to ignore due process in favor of the prosecution of disciplinary cases.

One final issue needs to be addressed relative to the ethics involved in the management of these cases . I am of the opinion that the actions of the NCAB in these cases indicate a lack of leadership by the Executive Director in directing the actions of the staff and the board. All three of these cases were high visibility cases within the appraisal community, particularly the third disciplinary case. Mr. Black, the Executive Director of the NCAB, is a law school graduate even though he has never joined the NC Bar. As a knowledgeable individual in matters of the law, and as a function of his duties as Executive Director, he has the ethical responsibility to provide adequate supervision to the staff to ensure that the staff is not abusing their authority. Therefore, Mr. Black should also be considered as a member whose actions in this matter are suspect.

I wish to thank the Board of Ethics for their consideration of the merits of this complaint.

Sincerely,

Thomas G. Hildebrandt, Jr. GAA


As a matter of information for those who read this post, ex parte communication is legal term where only one party in a contested case meets and discusses relevant issues with an individual who is going to hear the case. Put this in a criminal context and the reason why you can not have "undisclosed ex parte communication". The prosecutor can not talk to the judge about the merits of a case unless the opposing side has an opportunity to be heard.

The reason for the rule to not allow "undisclosed exparte communication" is clear, it gives one side a huge advantage in the prosecution of their case and thus it would inhibit a fair and impartial hearing of the case a fundemantal precept of law.

Also quoted below is the NC Board of Ethics advisory opinion which specifically discusses various issues of conflict of interest and bias. The references to CRC are to the Coastal Resource Commission but the AO applies equally to all boards and commissions in NC. I have highlighted the most germaine section.

AO-99-014 (July 7, 1999): Appointees to State boards and commissions are often selected to "represent" the perspective of different, even opposing, interests. Thus, the potential for "bias" in the sense of a general preference or inclination is intentionally built into the organizational structure. Traditionally, this is an acceptable part of the legislative/quasi-legislative process, like most rulemaking. Courts will generally not concern themselves with the underlying motives or rationale for legislative/quasi-legislative decisions, particularly if such motivations are non-financial. Partisan interests are superseded, however, by basic considerations of fairness and due process in judicial/quasi-judicial situations, such as contested cases, where an unbiased, impartial decision-maker is deemed essential. Most Coastal Resources Commission members are required to have certain backgrounds or fields of expertise, including one member "who at the time of appointment [is] actively associated with a State or national conservation organization." Two CRC members were members of conservation and/or environmental advocacy groups that appear regularly before the CRC.

The Board noted that an appearance of conflict exists when a reasonable person would conclude from the circumstances that the Public Officials ability to protect the public interest, or perform public duties, is compromised by personal interests. The "personal interests" that can give rise to an impermissible appearance of conflict are broader than strictly financial or familial interests and include a significant relationship or involvement with outside advocacy organizations. An example would be one serving in a policy-making position (an officer or director) in an organization or group. Mere membership in an advocacy group would normally not constitute the requisite "personal relationship" A "participant" in a proceeding (like rulemaking) includes an organization or group which has petitioned for rulemaking or has some specific, unique, and substantial interest, financial or otherwise, in the rulemaking.

The Board concluded that CRC members may participate fully in quasi-legislative matters absent a personal financial interest (this would include the financial interest of the particular advocacy group on whose board the CRC member sits) in the matter or a personal relationship with a participant in the matter which would cause a reasonable person to question the member's impartiality. They may not participate in quasi-legislative matters involving their own specific, substantial, and readily identifiable financial interests, except where the financial interest is shared equally by others. Nor may they participate in rulemaking when the advocacy group of which they are a board member is the petitioner for a rule. The fact that the member's advocacy group has merely commented on a rule does not, in and of itself, disqualify the member from participation.

In quasi-judicial proceedings, legal impartiality is required, and the member must avoid both conflict of interest and bias. According to the North Carolina Supreme Court, legal bias may include preconceptions about facts, policy, or law; a person, group, or object; or a personal interest in the outcome of some determination. Likewise, a fixed opinion that is not susceptible to change, an undisclosed ex parte communication, or a close familial or business relationship with an applicant may constitute impermissible bias. These determinations will need to be made on a fact-specific, case-by-case basis. Consequently, members in policy-making positions (like board members) of advocacy groups may not participate in contested cases involving their advocacy group or where their impartiality might reasonably be questioned as a result of their association with such group.

The fact that a CRC member occupies the seat required to be filled by someone actively associated with a State or national conservation organization does not make a difference in either quasi-judicial or quasi-legislative situations. Moreover, the fact that an advocacy group is legally recognized under state and/or federal law as a nonprofit, public interest corporation does not eliminate conflict of interest or appearance of conflict of interest issues for members of the group who serve on State boards and commissions. The same guidelines discussed above would apply

Regards

Tom Hildebrandt GAA
 

Terrel L. Shields

Elite Member
Gold Supporting Member
Joined
May 2, 2002
Professional Status
Certified General Appraiser
State
Arkansas
The issue of ex-parte communications came up in Arkansas. I recall a blurb in our state Newsletter, but do not recall the circumstance but did involve a hearing before the AALCB. I would think that is has been at least 5 years since that time.

ter
 
Joined
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Professional Status
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North Carolina
Terrel

Often ex parte communicationoccurs in an incedental or unintended manner. What makes this stink is that the NCAB intentionally failed to disclose the actions.


Regards

Tom Hildebrandt GAA
 

Austin

Elite Member
Joined
Jan 16, 2002
Professional Status
Certified General Appraiser
State
Virginia
I wonder how many innocent people have lost their legal rights to practice their profession because they did not have the knowledge, money, and or legal knowledge and advice to aid in their own defense. In this case as I see it, we have the NCAB, legal staff plus attorney general's office, staff investigators, unlimited funds, unlimited time, and the state of North Carolina on one side and Tom Hilderbrandt on the other. At issue is a document, USPAP, that no one apparently understands which exists for the sole purpose of enforcing a set of practices and methods that are not legally recognized as a body of knowledge. Not to mention that the entire NCAB was prejudiced against Tom from the beginning. If this is equality before the law then I hope I never live to see inequality. The case makes a mockery of justice in my view and the only remedy is the complete abolition of the entire system. Anybody else would have signed any document put before them just to get the monkey off their back, as I am sure many have. This case is as transparent as any I have ever witnessed, a vendetta to get Tom Hilderbrandt by beating him over the head with the process. In other words, if Tom wins in court, the NCAB shall have excised their pound of flesh. When due process becomes the weapon of choice, then the system of justice has been transformed into a weapon with which to impose injustice. The Declaration of Independence suggest an excellent remedy for situations such of this.
 

Fred

Elite Member
Joined
Jan 15, 2002
Professional Status
Retired Appraiser
State
Virgin Islands
At issue is a document, USPAP, that no one apparently understands which exists for the sole purpose of enforcing a set of practices and methods that are not legally recognized as a body of knowledge

There is more to Tom's case than I can read and comment on intelligently without a retainer, but from what I have read on the forum, the base issue recognizing condemnation blight. Also, if Tom's posts are accurate, he is embroiled with a group that does not adhere to "legally recognized" anyway.
 
Joined
Jan 16, 2002
Professional Status
General Public
State
North Carolina
Just yesterday I recieved a letter from the Board of Ethics who have opened a "informal review" on Bryson, Oullete, Miller and Black.

Just for comparisons I note the following differences in the process presented by the NCAB and the Board of Ethics(BOE).

Both boards give the respondent a copy of the complaint as filed. Both boards ask the respondent to make comments regarding the complaint. The NCAB requires the response in 10 days, the BOE says 30 days, but then goes on at some length to say that failing to make a response does not mean that the respondents lose their right to make comments at any time during the "informal period".

The BOE spells out in the letter what specific issues their informal review will address; the NCAB say merely that the staff will just consider the merits of the complaint. Issues to be addressed by the BOE in this initial review are whether the complaint provides a concise statement of charges, whether the individual alledged to have acted unethically is a "public official" as defined by the Governors Executive Order, whether to dismiss the charge as frivolous or brought in bad faith, or whether another agency should or is investigating the matter.

I expect the attorneys will not be considered public members but would expect Mr. Bryson to fall within this category. However, there is nothing to prevent the BOE from referring the complaint against the attorneys to another appropriate agency, say the NC Bar for action.

Regards

Tom Hildebrandt GAA
 

xmrdfghap

Senior Member
Joined
Jan 15, 2002
Professional Status
General Public
State
Florida
Tom, your perseverence in this is amazing. Keep going, and you, as an individual will alter the course of appraisal regulation in NC.

On a lighter note, I don't know if you should get the nobel prize for integrity or the Don Quiote award for dogged determination..........
 
Joined
Jan 16, 2002
Professional Status
General Public
State
North Carolina
Interesting comment about the nobel prize.

I just watched Sunday Morning on CBS, they did a bit about a wartime (WWII) cartoonist whoe recently passed away. One of the cartoons was two men in prison with leg irons and iron balls. One says to the other, I am in for winning the nobel prize for literature, why are you here? That is exactly how I feel in this whole sordid affair.

What absolutely galls me is our board promotes itself as being the industry leader in regulatory affairs.

Regards

Tom Hildebrandt GAA
 
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