Section R4-46-301. Complaints; Investigations; Informal Proceed- ings; Summary Suspensions; Refusal to Appear

A.      Complaints

1.        The Board shall investigate a written complaint, includ- ing an anonymous complaint or a complaint made on the Board’s own motion, alleging violations of A.R.S. Title 32, Chapter 36, or this Chapter, if the complaint provides information that meets the minimum criteria. Minimum criteria for a complaint include but are not limited to:

a.         The name of the respondent against whom allega- tions are being made;

b.        The action that is the basis of the complaint;

c.         The time-frame in which the action occurred;

d.        Each violation alleged to have been committed by the respondent; and

e.         A copy of the report, if the complaint includes alle- gations concerning an appraisal, consulting assign- ment, or property tax appeal.

2.        Upon receipt of a complaint:

a.         Board staff shall review the complaint and deter- mine, in consultation with Board counsel if neces- sary, whether the complaint meets jurisdictional criteria and if so, which edition of USPAP is applica- ble.

b.        Within 14 days after receipt of a complaint the Board shall notify the respondent, as prescribed in

A.R.S. § 41-1092.04, of the complaint and the requirement that the respondent file a written response within 30 days from the date on the notice. The Board shall provide a copy of the complaint with the notice and request that the respondent address the issues in the complaint. In the notice, the Board shall require that the respondent additionally provide all of the following to the Board: the appraisal report, appraisal review, consulting assign- ment, or property tax appeal at issue; and the work- file.

c.         If the respondent requests more time to respond, the Board shall grant a single extension of time that does not exceed 30 days.

B.       Initial Review and Investigation

1.        Within 75 days after receipt of a response or expiration of the time for response, the Board shall conduct an initial review of the matter to determine whether further investi- gation is necessary. If the Board determines further inves- tigation is necessary, the Board may employ an investigator or investigators and shall notify the respon- dent of the pending investigation.

2.        If a respondent’s name is placed on a public meeting agenda, the Board shall mail a letter to the respondent not less than seven days before the scheduled meeting, pro- viding the respondent with a copy of the posted notice of the public meeting.

3.        If the respondent is present at the initial review, the Board may request that the respondent participate in an informa- tional interview. A respondent may refuse to participate in an informational interview. The Board may use any information presented at the informational interview in other proceedings related to the complaint.

4.        At the initial review, the Board shall consider the com- plaint; any response; the appraisal report, appraisal review, consulting assignment, or property tax appeal; and the workfile. The Board may dismiss the matter, request or subpoena additional information, order a lim-

ited or full investigation, or invite the respondent to an informal hearing, based on the information reviewed.

5.        Board staff shall assign each investigator according to the investigator’s experience, expertise, contract terms, and availability. Board staff shall select an investigator who does not have a business or familial relationship with the respondent. Each investigative report shall contain the signed certification specified in subsection (B)(6). An investigator’s draft report is considered work product and is, therefore, confidential. The Board may ask for clarifi- cation or additional information after review of a draft report. Upon acceptance by the Board, an investigative report is considered final. The Board may adopt any or all of the findings in the final report at a public meeting and may consider any additional, relevant information that is discovered before the matter is resolved. The investiga- tive report becomes nonconfidential upon resolution of the complaint involved.

6.        The following certification shall be included in every investigative report prepared for the Board and signed by the investigator; I certify that, to the best of my knowl- edge and belief:

a.         The statements of fact contained in this report are true and correct.

b.        The reported analyses, opinions, and conclusions are limited only by the reported assumptions and limit- ing conditions, and they are my personal, impartial and unbiased professional analyses, opinions, con- clusions, and recommendations.

c.         I have no present or prospective interest in the prop- erty that is the subject of this investigation, and I have no personal interest with respect to the parties involved in this investigation.

d.        I have no bias with respect to any property that is the subject of this investigation or to the parties involved in this investigation.

e.         My engagement for this investigation was not con- tingent upon developing or reporting any predeter- mined result or outcome.

f.         My compensation for this investigation is not con- tingent upon developing or reporting any predeter- mined result or outcome, nor have I been instructed as to any predetermined result or outcome by the Board, the Board staff, or other parties.

g.        I have (or have not) made a personal inspection of the property that is the subject of this investigation.

C.       Settlement. Any time after a complaint has been filed against a respondent, the matter may be resolved by a settlement in which the respondent agrees to accept disciplinary or remedial action by consent. If the Board determines that the proposed settlement will adequately protect the public, the Board may enter into a consent agreement with the respondent. A state- ment made for the purpose of settlement is not admissible in a formal hearing.

D.       Informal Hearing; Disciplinary Action

1.        If, based on the initial review or its review of the investi- gative report, the Board determines that the respondent is or may be in violation of the Board’s statutes or rules, the Board may request a voluntary informal hearing with the respondent. The Board shall provide the respondent with a copy of any final investigative report in the matter, any supporting documentation, and notice of the date, time, and location of the informal hearing, as prescribed in

A.R.S. § 41-1092.04, at least 30 days before the informal hearing. The notice of informal hearing shall include all of the following:

a.         A  statement   of  the  matters  asserted  and  issues involved;

b.        Any request for additional information needed by the Board to prepare for the hearing;

c.         An explanation of the respondent’s right to appear voluntarily with or without legal counsel; and

d.        An explanation of the respondent’s right to a formal hearing under R4-46-302.

2.        The Board shall provide a copy  of the informational material “Introduction to Informal Hearing,” which explains the rights and responsibilities of the Board and respondent during the informal hearing. (A copy is also available at the Board office).

3.        The respondent may request and the Board may grant a continuance upon a showing of good cause. During the informal hearing the Board shall swear witnesses, ques- tion the respondent and witnesses, and deliberate. The respondent may respond to the Board’s questions, present witnesses, and ask questions of the Board and all wit- nesses regarding the matter before it.

4.        If the Board finds a violation of the statutes or rules, but the violation is not of sufficient seriousness to merit sus- pension or revocation, it may take one or more of the fol- lowing actions:

a.         Issue a letter of concern;

b.        Issue a letter of remedial action;

c.         Offer a letter of due diligence, which may or may not include remedial action;

d.        Offer a consent agreement including an order of dis- cipline that sets a time period and terms of probation sufficient to protect the public welfare and safety and educate the respondent. The Board may require one or more of the following as terms of probation:

i.         Training or education;

ii.        Supervision or mentor review;

iii.      Restriction  on  the  nature   and  scope  of  the respondent’s practice; or

iv.       Other reasonable measures designed to protect the public and educate the respondent.

5.        For any Board action other than a letter of concern or a letter of remedial action, the Board shall request that the respondent sign a consent agreement, which may include findings of fact and conclusions of law, depending on the severity of the violation, but shall identify and explain each violation found. If the respondent is aggrieved by the Board’s decision to issue a letter of concern or letter of remedial action, the respondent may request a formal hearing in writing, within 30 days from the date the writ- ten notice of  the  outcome  of  the informal hearing  is received.

6.        In resolving a complaint, the Board shall consider miti- gating and aggravating circumstances, including but not limited to:

a.         Whether a violation is intentional;

b.        Whether the respondent has a prior disciplinary his- tory;

c.         The time that has elapsed since the violation, and any prior violation;

d.        Whether any prior violation is similar to the present violation;

e.         The complexity of the assignment;

f.         Whether  the  assignment  was  outside  the  respon- dent’s competence; and

g.        Whether the respondent has taken courses after a violation to prevent future violations.

E.       Summary Suspension. If the Board finds that the public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, the Board may order a summary suspension pending proceedings for revoca- tion or other action. If an order of summary suspension is issued, the Board shall serve the respondent with a written notice of summary suspension and formal hearing, listing the charges against the respondent and setting the date for the for- mal hearing as soon as is reasonably possible, but in no event more than 60 days from service of the written notice.

F.        Refusal to Appear.  A respondent  may refuse  a request to appear at an informal hearing. If the respondent refuses to appear or does not appear, the Board may schedule the matter for a formal hearing.

G.       12-Month Review. If a matter is not resolved within 12 months from receipt of the response, the Board shall schedule the mat- ter for review at each regularly scheduled Board meeting to determine whether good cause exists to continue the investiga- tion. If, after completing its investigation, the Board finds that further action against the respondent is not warranted, the Board shall dismiss the matter.

Historical Note

the Secretary of State September 10, 1998 (Supp. 98-3). Amended by final rulemaking at 11 A.A.R. 2018, effective July 2, 2005 (Supp. 05-2). Amended by final rulemaking at 13 A.A.R. 1388, effective June 2, 2007 (Supp. 07-2). A. Any party in a contested case or appealable agency action   before the Board may file a motion for rehearing or review   within 30 days after service of the final administrative deci-   sion. Service is complete upon personal service or five days   after the date the decision is mailed by certified mail to the   party’s last known address of record. The party shall attach a R4-46-302.     Formal Hearing Procedures   full supporting memorandum specifying the grounds for the A.   The Board shall issue a notice of hearing and formal complaint   motion. for formal disciplinary proceedings if: B. The opposing party may file a response within 15 days after 1.     After an informal hearing, the Board determines that sus-   service of the motion for rehearing or review, or by a date pension or revocation may be warranted;   ordered by the Board, whichever is later. The party shall sup- 2.     After an informal hearing, the respondent refuses to sign   port the response with a memorandum discussing legal and a letter of due diligence or consent agreement offered by   factual issues. the Board; C. Either party may request or the Board may order oral argu- 3.     The respondent is aggrieved by the Board’s decision in an   ment. informal hearing; or D. The Board may grant rehearing or review for any of the fol- 4.     After completing its investigation, the Board finds that   lowing causes materially affecting a party’s rights: suspension or revocation may be warranted.   1.     Irregularity  in  the  administrative  proceedings  of  the B.    Except as provided in R4-46-301(E), the Board shall provide   Board or any other abuse of discretion which deprived the notice of a formal hearing to a respondent at least 30 days   moving party of a fair hearing; before the date set for the hearing. The Board shall notify the   2.     Misconduct of the Board or any party; respondent by certified mail or personal service at the respon-   3.     Accident or surprise which could not have been pre- dent’s last known address of record. Unless otherwise speci-   vented by ordinary prudence; fied, any notice provided for in these rules is complete upon   4.     Newly  discovered  material  evidence  which  could  not deposit in the U.S. mail or by service as permitted under   with reasonable diligence have been discovered and pro- A.R.S. § 41-1092.04.   duced at the original hearing; C.   On its own motion or the motion of a party, the Board may   5.     Excessive or insufficient sanction; hear a case or have the case heard by an administrative law   6.     Error in the admission or rejection of evidence or other judge. The Board may accept, reject, or modify the administra-   errors of law at the administrative hearing or during the tive  law  judge’s  recommended  decision  as  prescribed  by   progress of the proceedings or; A.R.S. § 41-1092.08, and shall issue a final order.   7.     Unjustified decision based upon the evidence, or a deci- D.   Board Hearings   sion that is contrary to law. 1.     The Board may conduct a hearing without adherence to E. The Board  may  affirm  or  modify  the  decision  or  grant  a the  rules  of  evidence  used  in  civil  proceedings.  The   rehearing to any party on all or part of the issues for any of the Board shall include the respondent’s application and dis-   reasons set forth in subsection (D). An order modifying a deci- ciplinary records as evidence in the hearing record.   sion or granting a rehearing shall specify with particularity the 2.     In all hearings required or permitted by statute, order of   grounds for the order. The rehearing, if granted, shall be lim- the Board, or these rules, the party seeking relief has the   ited to matters specified by the Board. burden of proof and will present evidence first. F. Not later than 30 days after a decision is rendered, the Board 3.     The Board shall conduct each formal hearing according   may order a rehearing or review on its own initiative, for any to A.R.S. Title 41, Chapter 6, Article 10.   reason which it might have granted relief on motion of a party.

Adopted effective December 29, 1995 (Supp. 95-4). Amended effective October 1, 1998; filed in the Office of

E.       If a party fails to appear for a formal hearing without good cause, the Board shall act upon the evidence without further notice.

F.        The Board shall make and keep a record of the hearing and, in the case of disciplinary hearings or if requested by a party or ordered by the Board, a transcript shall be prepared and filed with the Board. If the transcript is prepared at the request of a party, the party making the request shall pay for the cost of the transcript, unless the Board, for good cause shown waives assessment of this cost.

G.       A party may request and the Board may grant a continuance of a hearing date or any other deadline imposed by R4-46-302 upon a showing of good cause.

Historical Note

Adopted effective December 29, 1995 (Supp. 95-4). R4- 46-302 repealed; new Section R4-46-302 renumbered from R4-46-303 and amended effective October 1, 1998; filed in the Office of the Secretary of State September 10, 1998 (Supp. 98-3). Amended by final rulemaking at 11

A.A.R. 2018, effective July 2, 2005 (Supp. 05-2). Amended by final rulemaking at 13 A.A.R. 1388, effec-

tive June 2, 2007 (Supp. 07-2).