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IN RE APPEAL OF BRUCE WILEY

Appeal of Bruce Wiley.
Case No. 2011-0649.

Supreme Court of New Hampshire.

June 25, 2012.

Order

The appellant, Bruce Wiley, appeals an order of the New Hampshire Real Estate Appraiser Board (board) finding that he had violated certain uniform standards of professional practice (USPAP) and imposing a $4000 fine. He argues that: (1) the board erred in finding that he had violated USPAP standards without giving him notice that it was considering such violations; (2) the board failed to adequately explain the basis for its decision; (3) the decision was tainted by conflict of interest; (4) the board's order should be vacated and the matter remanded because a board member provided the board with additional information after the close of the evidence; and (5) the board's ruling went against the weight of the evidence. We vacate and remand.

Wiley has cited no provision of RSA chapter 310-B that provides for judicial review of the board's decision under RSA chapter 541; accordingly, we treat this case as a petition for a writ of certiorari. See Appeal of Mays, 161 N.H. 470, 472 (2011). Our standard of review is whether the board acted illegally with respect to jurisdiction, authority or observance of the law, whereby it arrived at a conclusion which cannot legally or reasonably be made, or abused its discretion or acted arbitrarily, unreasonably or capriciously. Id. at 472-73.

We briefly address Wiley's first claim of error. Although he argues that he received no notice that the board would consider whether he had violated USPAP Standards 1-4, the record belies his assertion. The board's hearing notice advised him that the hearing was to be held to determine, inter alia, whether the allegations in an attached investigative report were true and "[i]f true, whether or not the alleged reporting inadequacies are in violation of the requirements set forth in USPAP, specifically but not limited to, Standards Rules: 2-2(b)vii, viii, and ix." The attached report and addendum specifically cited lack of compliance with USPAP standards 1-4. Accordingly, we find no merit in Wiley's first claim of error.

Wiley next argues that "the Board's decision does not adequately describe the basis for its decision." We agree. RSA 541-A:35 (2007) provides that the final decision in a contested case "shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings."

In this case, the only findings in the board's order are: "There was no analysis or statements explaining the reconciliation or the reasoning in preparing the report. There was no support for the figures reported. There was a lack of summarization in this summary format report." The board's decision contains no discussion of the specific errors in the allegedly deficient report prepared by Wiley. It also does not explain how the report violated the cited USPAP standards. The official grievance form filed with the board includes three questions concerning acceptable practice in preparing appraisals. The board's decision does not address those questions, which would seem to require discussion in order to resolve the complaint. Absent basic findings of fact and some explanation of its ultimate conclusion, the board has failed to provide us with an adequate basis upon which to review its decision, and has therefore failed to satisfy the requirements of RSA 541-A:35. See, e.g., Petition of Support Enforcement Officers, 147 N.H. 1, 9-11 (2001); Appeal of Savage, 144 N.H. 107, 110 (1999). Accordingly, we vacate the decision of the board and remand for additional proceedings consistent with this order.

Because the same issue may arise upon remand, we address Wiley's argument that the board's decision was tainted by conflict of interest. Specifically, he contends that because the underlying complaint against him was filed by a New Hampshire Banking Department examiner, the board member sitting as the designee of the Banking Commissioner, see RSA 310-B:4, I (c), should not have participated.

We have previously observed that administrative officials who must serve in an adjudicatory capacity are presumed to be of conscience and capable of reaching a just and fair result. Appeal of Maddox a/k/a Cookish, 133 N.H. 180, 182 (1990). The burden is on the party alleging bias to present sufficient evidence to rebut this presumption. Id. Wiley has failed to meet his burden. In support of his claim of bias, Wiley cites a question asked by the Banking Commissioner's designee about the intended user of the appraisal report and her observation that the user was regulated by the Banking Department. This observation of overlapping agency regulation is insufficient to establish bias. See id.

Wiley also argues that the board's order should be vacated and the matter remanded because a board member provided the board with additional information after the close of the evidence. The record before us includes the board's order addressing Wiley's "motion for rehearing, reconsideration and stay of decision" in which it found that it "did not improperly rely on information provided by member Kevin Fritschy as a result of his personal investigation." It is unclear from this finding whether the board found that it did not rely on the information or that it relied on it but concluded that it did so properly. If the board relied upon the information, then upon remand it must give Wiley an opportunity to contest the material pursuant to RSA 541-A:33, VI (2007).

Based upon the foregoing, we vacate and remand the decision and order giving rise to this appeal to the board for such further proceedings as it deems necessary to comply with this order.

Vacated and remanded.

DALIANIS, C.J., and HICKS and LYNN, JJ., concurred.