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New developments in the Hildebrandt vs NCAB case

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Tom Hildebrandt

Thread Starter
Member
Joined
Jan 16, 2002
Professional Status
General Public
State
North Carolina
Here is the latest in this sorry saga. For those who thought this whole thing was not bizarre enough, read this post!

The NCAB notified me early last week, through my attorney, that the staff wants to take exception to the Administrative Law Judges (ALJ) ruling in this case. I guess they want a Superior Court judge to tell them how clueless they are. The NCAB wants written responses by the end of this month and oral arguments are currently scheduled for the October 14 board meeting in Raleigh. I encourage anyone with any interest in this profession to show up, this should be a real broohaha of a meeting.

The other news is that Charles Hinnant, GAA, the most recently appointed board member has recused himself from hearing this case. He cites two reasons. One that he has had a long term professional relationship with me as a co-founders of the North Carolina Appraisal Section. Second, and I think this is even more germaine, he has actually done appraisal work in another condemnation matter for attorney Philip Kirk. Mr. Kirk, as informed Forumites will recall, was my client, the attorney who represented Dr Sims, the owner of the land condemnation case which resulted in my appraisal work, the work product the NCAB says is atrocious. It turns out that prior to Mr. Hinnant being appointed to the board that had had some discussions relative to my work product or at least to issues surrounding the case. Of course I knew that I had known Charles for a long time, I supported his appointment to the NCAB, but I had no idea he had any specific knowledge of my case.

At any rate, I admire Mr. Hinnant for recusing himself. It certainly can be said that he would be biased in my favor, and although I would welcome having a friendly face on the board, I commend Mr. Hinnants integrity and he is to be admired for this.

Well you may ask, why bother the forum with this information? Seems prettty straightforward. Honesty, integrity and all that, after all is that not what the appraisal profession is all about?

If you will recall, the reason that my case was sent to the Administrative Law Judge (ALJ) was that because of my prior criticism of the board, several of the sitting board members had made public statements about my mental capacity and integrity (stupid, decietful, liar, stuff like that). In fact three members were forced to absent themselves from hearing the case. In return for getting the case before the ALJ, I agreed that the remaining sitting board members could hear the case. I will get back to "sitting board members" later, but first, the numbers game.

But our board has only seven members, 3 can not hear the case, Charles will not, that leaves only 3 to hear the case. This poses a sticky problem, no quorum. Woops, now what. Well, the NCAB has said that "the Rule of Neccesity" says that Charles must hear the case because without him, no quorum.

I am not certain about the necessity bit. If the board were willing to accept the ALJ decision, they can jsut do nothing and in due course of about 60 days, it would become final. So the only necessity is if they must overturn the decision. As another matter, my attorney and I are in the process of researching to see where this "rule of necessity" exists, so far no luck. I know it is not from USPAP, and my attorney says he does not know of any specific statute, but we are still looking. But if one of the legal beagles out there can give us a reference, that would be helpful. I suppose we could ask the NCAB for the legal reference, but my sense of this is that it is not cricket to ask the other team what their game plan might be, or at least which rule book they intend to use.


The NCAB's other suggested solution is that I allow one of the other members, one of the ones biased against me, back on the board so that Charles will not have to hear the case. Now one fine fellow that I know opined, this is like the NCAA applying sanctions against half of a basketball team (The Board) for unsportsman like conduct in that they threatended to deliberately maim the opponent. Now the Board team has an illness of one of the remaining five players, and they are saying to the opposing team, and the NCAA, we are in a real bind here, we can not play without a full team. Let us have one of these guys, and we promise, we will not let him try to hurt any of the players you put on the field.

You think that is a hoot. Read on.

Remember I agreed (they call it stipulation in legal parlance) that the remaining board members could hear the case. Seems pretty straight forward, 3 were recused by name in the stipulation. However, one board member, now the current chairman actually assisted the staff in the investigation. He was involved in preparing the probable cause summary and presenting the staff case to the board members. He recused himself from the case at that time. So, is he or is he not a sitting member? When I signed the stipulation, I assumed the board would not try to have this man reinstated as a sitting board member. Apparently the board position is so what if previously recused himself, now we want him to rule on his own work product and we can rely on him to say that it was bad.

My personal cut on this is that a person who participates in the investigation, who helped the NCAB develop evidence and who had previously recused himself from the matter would reasonably be expected to refrain from hearing the down the road. He certainly would have the appearance of bias, at least that is my cut. What do you guys (and gals) say?

For those who thought this would have to be the end, you are wrong.

Dr. Sims, the property owner in this case apparently got his dander up after hearing the judges verdict in this case. He actually called wanting a copy of the judges ruling. He has now submitted a complaint to the NCAB on all of the airport appraisers charging them with failure to correctly research the property history, and suggesting that having all four appraisers (three appraisers and one reviewer appraisers, not counting the one reviewer specifically hired to refute my appraisal) make the same mistake rises to a level of conspiracy to commit fraud against a member of the public. You see, these folks had a requirement under the airports guidelines to research the property history for five years, and all of them failed to identify even the prior sale of a piece of this land to their own client (the airport) which was under contract to a third party at the time of sale (at double the airports appraised value) and that their client (the airport) was a third party party to negotiations about the subject 47 acres tract of land at a price in the range of $60,000 P/A at the time the condemnation action was undertaken.

There is another intruging twist to this. In their letter back to Dr. Sims, the board stated they had opened complaints against two of the four. One appraiser, the prior chairman of the NCAI chapter, they said they could not find in their roster, and the other they said had already had had a complaint opened against regarding his appraisal and that it had been dismissed by the board.

Dr. Sims called me with this news, and I explained to him that I knew of no complaint against this man for his appraisal, but that I had submitted a complaint on him for his review product. You will recall that this guy said he did review my work for his client, and that review was the basis for his complaint against me but that this work product was never intended to be USPAP compliant. Well, I obtained a copy of the probable cause summary (pcs) and the board did dismiss the complaint, the most convulted bit of slick lawyering I ever saw. Their position is that since he and his client had an understanding that the work did not have to be Standard three compliant, he did not violate the boards standards of practice (USPAP) that says such work needed to be USPAP compliant. But buried within the pcs was the statement that the investigator had read the report and heard the appraiser testify. No comments about whether the appraisal work product was good or bad, just that he had heard it. This same investigator had to have heard this guys testimony in my trial that the property history was all news to him, he had undertaken no investigation in that regard. But yet the NCAB staff told Dr. Sims the appraisal had been the focus of a complaint and that it had been dismissed.

Perhaps I am missing the big picture here, but I think Dr. Sims is onto something in this conspiracy bit. It may be a bit early to say, but perhaps the NCAB is part of the conspiracy. Any bets on the results of the NCAB's thorough investigation into these fine airport appraisers?

Well, so much for this weeks events. I am keeping pretty busy with this board stuff, damn I wish I was sailing!

Regards to all

Tom Hildebrandt GAA
 
Joined
Jan 13, 2002
Professional Status
Retired Appraiser
State
Florida
Amazing that these clowns would open themselves up for additional ridicule and actual legal sanctions that will likely be forthcoming. They should have left you alone after the judges ruling. They could have kind of swept it under the carpet and pretended it didn't exist.

I'm getting a pretty good mental picture of them digging their own graves at this point.

I would be there in a second, but I really didn't believe they would do this and scheduled a vacation in Denver to visit my brother from Oct 9 - 16. If there is any way I can re-schedule this, I will.

ALL OF OUR FORUMITES NEED TO ATTEND THIS IF AT ALL POSSIBLE.

Please, do whatever it takes to be there.
 

Dale Smalley

Senior Member
Joined
Jan 15, 2002
Professional Status
Certified Residential Appraiser
State
Florida
Time to cut a deal Tom
You need your license and they need to save face. Sounds like these apointees can only get more and more embarrised as this goes on. There has to be some kind of slap you both can agree to. But if not keep on fighting while you have the momentum. If you can hammer the entire airport appraisal group before the next judge sees it that might have some influence.
 

Farm Gal

Elite Member
Joined
Jan 14, 2002
Professional Status
Licensed Appraiser
State
Nebraska
Tom:

See: http://www.state.ma.us/ethics/factsheet5.htm

while not neccesarily adopted in your state I sort of remembered this from 'somehwere in my murky parlimentary proceedures, past' and found this site as the first of a LONG list through a google search.... there may be a specific ruling in yoru state or local jurisdiction which they can find in a desperate search for reason.

I wish you fair winds and the time to enjoy them. Meantimes, sir I salute your fortitude!
Regards,
Lee Ann
 

Tom Hildebrandt

Thread Starter
Member
Joined
Jan 16, 2002
Professional Status
General Public
State
North Carolina
Dale

We (my attorney and I) initiated two overtures for settlement. The first before the hearing and the second after the judges ruling. We suggested both times to accept a dismisal with a letter of warning. The NCAB before the hearing would not agree to anything but an active suspension, implying it would be on the order of the other suspension provided to another appraiser in this matter, five active years. Following the judges ruling, an inactive suspension was suggested by the NCAB.

The NCAB wants to be of record as being right and for me to admit to having done something wrong. I categorically refuse to consider some sort of consent order that even implies I did something wrong.

I would have long ago agreed to have some settlement had someone, anyone, involved in this matter, said in a constructive manner what I did wrong and showed a better way to solve the appraisal problem or shown better data that I could reasonably have been expected to obtain to provide a better solution to the problem, ie, a solution that matched all the known facts. But until that individual comes forward, I say my analysis was as good as I could humanly make it, and the report was more than adequate for my clients purpose. My analysis certainly matches all the known facts better than anyone elses in this assignment, it is support by the market sales history of the property by actual market participants. No other appraiser who I have talked to talked has a solution to the appraisal problem that matches all the known facts. The NCAB (or anyone else) may not like my opinion of value, but no one can put forward a better solution.

This is my major issue with the NCAB is that they are arbitrary in their investigative and disciplinary process. It is so patently obvious if you read the transcript for this case, and read the other appraisals, that the airports appraisers do not understand condemnation blight, and that they ignored (or failed to obtain) an accurate history of the subject property. Yet their clearly inferior work product was suggested to be without blemish by the NCAB and that mine was worthy of up to a five year suspension. This arbitrary and capricious type of action is what is wrong in the process as accomplished by our board.

I will say to the Forum, if the board wants my license for five years, they can have it and I will sign a consent order. Two conditions must be met: One - the NCAB must get each of the other appraisers for the airport who did appraisals or reviews to admit they were just as wrong and accept a similar suspension. You see, I am not the one who ignored the proeprty history and did not considered blight, they did both requirements under standards. Two - The NCAB adopt a judicial process akin to Florida's. I of course realize this is what we call a hypothetical condition, we all know that this will never happen given the facts (the composition of the NCAB) as they are composed today.

Lee Ann

You are a wonderful person. This is exactly the kind of reference I was looking for.

Tom Hildebrandt GAA
 

Stephen J. Vertin MAI

Senior Member
Joined
Jan 17, 2002
Professional Status
Certified General Appraiser
State
Illinois
Tom:

Sorry to hear but I can not say I am surprised.


Steve Vertin
 

Tom Hildebrandt

Thread Starter
Member
Joined
Jan 16, 2002
Professional Status
General Public
State
North Carolina
Steve

I have a copy of the transcript if you still want it. 900 pages or so. this was not fun, the automatic feeder on my copier went out so the last 800 pages were done one at a time.

Regards

Tom Hildebrandt GAA
 

Tom Hildebrandt

Thread Starter
Member
Joined
Jan 16, 2002
Professional Status
General Public
State
North Carolina
Steve

If you say so; I'll put some of the other stuff in the file and send it on along. Maybe I can find an 18 wheeler running up empty and get a cheap rate.

Best Regards

Tom Hildebrandt GAA
 

Terrel L. Shields

Elite Member
Gold Supporting Member
Joined
May 2, 2002
Professional Status
Certified General Appraiser
State
Arkansas
Which only reinforces my belief that I would rather face a judge and educate them even if they don't know beans about appraisals, than to face my so-called "peers" on any board of review that contains people who think they know it all - and there will always be one that knows it all, one that wants no controversy and will vote for anything to get it off the table, and one that is indecisive and cannot make a decision.

Any board composed of more than 3 members is suspect. Three people can come to an agreement. When I served on the BOE, our 9 member board was split into 3 groups, each hearing cases separately and then ratifying everyones decisions each Friday. Once wound down, we collected into 9 again to hear the very large appeals (Wal-Mart, etc). Not one of the 9 member hearings went smoothly as two or three groups split on what to do....

ter
 
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