By Roger P. Durkin, Esq.
The Board of Registration of Real Estate Appraisers (Board) is the body that decides to charge an appraiser with violations of USPAP and or Regulations. Members of the Board have three roles to varying degrees. The roles include fact finder, regulator, and prosecutor. Should the Board decide to prosecute, it has a statutory duty to conduct a public hearing according to the Procedural Requirements of Mass. Gen. Laws. Ch. 30A § 11. The Board has a small army of investigators, prosecuting attorneys, and “review” appraisers to help prepare their case. Few appraisers have a small army of investigators, attorneys and review appraisers to help answer the charges or build a defense for any hearing. The Board has the authority to take disciplinary or other action against a licensed appraiser for statutory or regulatory infractions.
Defending yourself before the Board is a highly technical and fraught with traps for the unwary. Preparation is the key to success.
The Board is the petitioner, the party who initiates an adjudicatory proceeding. The appraiser is the respondent, the party who must answer. An Authorized Representative is an attorney authorized by you to represent you in the adjudicatory proceeding.
When the Board initiates a proceeding against you as an appraiser, the Board sends a Notice of Action or an Order to Show Cause. The Notice or Order states the reasons for the Board action specifying in numerical paragraphs the specific facts relied upon as the basis for the Board's action, the statute authorizing the Board to act, and your right to request an adjudicatory proceeding. The complaint notice will likely seek a copy of your workfile and other information.
You must file an answer within 21 days of receipt. The answer must contain full, direct, and specific answers, admissions, denials, or further explain or state that you (the respondent) have insufficient knowledge to answer with specificity the Board's allegations. An inability to admit or deny for lack of information is treated as a denial. Your answer must also contain all affirmative defenses. The prosecutor is not required to answer you.
The next step is likely a status conference between your attorney, the prosecutor, and the administrative magistrate. Here the prosecutor and your attorney attempt to negotiate a settlement or discuss the procedures leading up to the hearing date. The magistrate takes under advisement any negotiated settlement and or sets the hearing calendar. The Division of Administrative Law (DALA) is an independent agency operating under the umbrella of the Executive Office of Administration & Finance. Hearing Officers are Administrative Magistrates under DALA who are independent of the Board.
The burden of proof is a preponderance of the evidence. The complaint is supported or not supported, i.e. the prosecutor wins or loses, if the claim is supported by a preponderance of the evidence. If the totality of the evidence presented by the party with the burden of proof (prosecutor) supports the belief that what is sought to be proven is more likely than not, or more probable than not. Adjudicatory findings must be supported by substantial evidence, which is “such evidence as a reasonable mind might accept as adequate to support a conclusion.”