By Anne Cockayne
September 19, 2016 — A closing is supposed to be a celebratory occasion for both buyer and seller. But what happens when the keys are about to be exchanged and one sales associate makes derogatory remarks about the other, accusing her of sloppy business practices and rookie mistakes?
The Realtor who makes the accusation could be in violation of Article 15 of the Code of Ethics, which states Realtors shall not knowingly or recklessly make false or misleading statements about other real estate professionals, their businesses or their business practices.
However, before the problem escalates to a formal ethics complaint, there may be a simple way to diffuse the situation. The answer is the ombudsman program that every state and local Realtor association are required to offer to Realtor association members, clients and consumers.
An ombudsman is a Realtor member or a local association staff member who can help mediate a matter while keeping the two sides at a distance.
The National Association of Realtors (NAR) says the role of the ombudsman “is primarily one of communication and conciliation, not adjudication. Ombudsmen do not determine whether ethics violations have occurred or who is entitled to the money. Rather, they anticipate, identify and resolve misunderstandings and disagreements before matters ripen into disputes and possible charges of unethical conduct.”
Rick Fioretti, 2016 president of the Naples Area Board, calls the ombudsman program valuable. “The ombudsman opens the door to a more casual way to gently remind our members that ethics and professional behavior is monitored, appreciated and trainable,” he says. “Members appreciate the interactions and feel comfortable with the personal touch the ombudsman provides outside of a more formal complaint process.
“Clearly, the ombudsman is the preferred method of identifying and correcting mistakes,” Fioretti continues. “From the public’s perspective, ombudsman service is quick, easy and professional. Our feedback has been all positive.”
An ombudsman can handle complaints related to Code of Ethics issues and misunderstandings over transactions. However, issues about alleged violations of the public trust are outside the purview. A violation of public trust is defined as a misappropriation of client or customer funds or property, willful discrimination or fraud resulting in substantial economic harm.
When someone calls to file a complaint, the association staff offers the opportunity to participate in the ombudsman program. If the complainant turns it down, the formal complaint process continues.
Using the scenario above, the complainant might tell the ombudsman she will drop her ethics complaint if the respondent agrees to draft a letter of apology retracting her comments and send it to the complainant, buyer, seller, the owner of the title company, and both her broker and the other Realtor’s broker.
The ombudsman would then take that offer to the respondent, who might agree to retract her comments in an email by the end of the week, but adamantly refuse to copy in her broker and the title company owner. The ombudsman would then convey this to the complainant and, if the complainant and respondent agree to the compromise, the matter would be resolved. However, if the respondent were to fail to fulfill the terms, the complainant could resume her ethics complaint with the board.
To date, the ombudsman program is receiving rave reviews from Florida Realtors and consumers alike. “We implemented our ombudsman program nearly a year ago, and what a difference it has made,” says Kathy Roberts, CAE, CEO of the Realtor® Association of Sarasota and Manatee. “Fewer complaints are filed, true, but that was not our objective. With this program, we are often able to provide helpful information, or confirm a common practice, sometimes even resolve an issue.
“But even if that does not happen, the caller feels like we listened to them and tried to help them. So much different than having a complaint filed only to have it dismissed by the Grievance Committee because the behavior did not rise to the level of an ethics violation.”
If you are interested in taking advantage of this valuable service, call your local association.
Anne Cockayne is Director of Policy Services for Florida Realtors
© 2016 Florida Realtors®