Law Court Upholds Consent Agreement in Professional Disciplinary Matter

The Law Court recently rejected the appeal of a real estate appraiser who was denied an opportunity to avoid a consent agreement, agreed to by him, and reopen his 2008 disciplinary matter before the Board of Real Estate Appraisers.

In Zumbach v. Board of Real Estate Appraisers, 2011 ME 31, the Law Court rejected Mr. Zumbach’s Rule 80C appeal of the Board of Real Estate Appraisers’ denial of Mr. Zumbach’s motion to reopen the disciplinary proceeding, which had been resolved by a consent decree in 2008. In 2008, Mr. Zumbach entered into a consent agreement admitting he violated 32 M.R.S. å¤ 14014(1)(B) (acts of “dishonesty, fraud or misrepresentation …”), (G), (I) (failure to exercise reasonable diligence), (J) (“demonstrates negligence or incompetence”). In the instant matter, Zumbach moved to reopen the 2008 disciplinary matter, arguing that the Board exceeded its statutory authority in agreeing to the consent agreement and that the Board could not sanction an appraiser for acts performed before applying for or obtaining a real estate appraisal license.

The Law Court reaffirmed the “[c]onsiderable deference” it gives to an agency’s interpretation of its own rules and statutes, citing Mulready v. Bd. of Real Estate Appraisers, 2009 ME 135, å¦13, 984 A.2d 1285, 1290.åÊ Given that discretion, the Law Court denied Zumbach’s appeal noting that (1) Zumbach had the advice of counsel before entering into the consent agreement; (2) the consent agreement was not appealable pursuant to its own terms; (3) a consent agreement is not appealable pursuant to 10 M.R.S. å¤ 8003(5-A)(C); (4) even if one could appeal a consent agreement, the time to do so expired in 2008; and (5) the Board had “neither inherent nor statutory authority to ‘reopen’ final decisions, including consent agreements.” 2011 Me 31, å¦å¦ 10-14 (quoting Clark v. State Emps. Appeals Bd., 363 A.2d 735, 736-39 (Me. 1976).

The lesson to be learned is clear: If a professional has been accused of misconduct, it would be a mistake to confess and then expect the Law Court to let you have a second bite at the apple.