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Failure to set timely hearing ends discipline effort

The Supreme Court of West Virginia, in a June 11 decision, ordered the state's real estate appraiser board to cease discipline actions against a former board member whom the board had moved to discipline, after the board failed to hold hearings in a timely manner

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(York v. West Virginia Real Estate Appraiser Licensing and Certification Board).

In 2001, Linda York, a licensed member of the state real estate appraiser licensing board, performed a review of an appraisal by Barbara McCracken, a licensee whose actions had come to the attention of the board. The review caused a complaint to be filed against McCracken, whose license was eventually suspended.

The discipline did not last. On appeal, a state circuit court reinstated McCracken’s license and, in 2008, she filed complaints against York and other appraisers who had reviewed her work.

The board dismissed the complaints, noting that appraisers usually kept records for only five years and that no evidence would exist for the case. An anonymous complaint concerning a 2003 appraisal by York was filed that December, but the board dismissed this complaint as well.

State law requires action on complaints within a one-year timeframe, and the board had failed to formally initiate proceedings within that time restriction.
In most cases, this would have been the end of the story. But, after a review of the board’s practices by another agency in 2011, it reopened the two 2008 complaints against York, eventually seeking to discipline her and offering her a consent agreement which would have resolved the two complaints, as well as a third, newer complaint.

York, unhappy, challenged the board’s ability to reopen the old complaints and requested a hearing to deal with the new one, but the board never formally initiated proceedings.

In July 2012, the board, based on a fourth complaint, again moved to discipline York. However, in doing so, the board failed to hold a hearing, and York objected, arguing that a hearing was required in order for the board to impose discipline.

York eventually filed an action seeking to prohibit the board from taking action, and the case went before the state supreme court.

The court ruled that state law imposed no time limitations for resolving a complaint, but they also held that neither did any statute exist which would allow the board to reopen cases it had previously dismissed. Because the board had previously dismissed the 2008 complaints, it had no authority to pursue them now.

The board’s failure to provide York a hearing also irked the court. “Despite the clear and stated procedure allowing for a hearing and other procedures for contesting a complaint, the board has failed to allow the petitioner to seek redress for these complaints.”

The court considered such inaction to resolve the complaints, and so issued a writ of prohibition preventing the board from proceeding with charges.

The justices also granted attorney fees and costs to York, ruling that the board’s delays had been particularly vexatious.