Review by the Board Authorized by the Enabling Act
The Auto Damage Appraiser Licensing Board (ADALB or Board) has adopted “Guidelines and Procedures for ADALB Application for Complaints and Formal Complaints” (Complaint Procedures) for reviewing applications for complaints filed against licensed motor vehicle damage appraisers (appraiser), in accordance with the enabling act establishing the ADALB. After an application for a complaint filed against an appraiser is received by the Board alleging an appraiser violated the ADALB’s enabling act M.G. L. c. 26, § 8G and/or regulation 212 CMR 2.00 et seq. as provided for in the ADALB’s “Application for Complaint”, it is assigned a serial number prefixed by the year the Board reviews the application for complaint for purposes of tracking the Complaint.
Basis of Complaints
Application for complaints filed against licensed appraisers must be based on misconduct stated in the Board’s enabling act M.G.L. c. 26, §8G, which is the following: [when] an appraiser pleads guilty to or is convicted of a fraudulent automobile damage report as a result of a court judgment and said license shall not be reinstated or renewed nor shall said person be relicensed. The board, after due notice and hearing, shall cancel for a period not exceeding one year, any license issued by it to, and cancel the registration of, any person who has been shown at such hearing to have been guilty of fraud, deceit, gross negligence, incompetence or misconduct or conflict of interest in the preparation or completion of any motor vehicle damage report, or that the holder of such license has permitted or suffered his official seal to be affixed to any auto damage report not prepared by him.
An Application for Complaint will contain all documentary evidence to support the complaint with all relevant documents including witness statements, if any, and any evidence corroborating the Complaint.
Review of Application for Complaints
To prevent the waste of valuable time and unnecessary expenses appraisers would be compelled to incur in responding to groundless application for complaints, the Board may conduct a preliminary review of a complaint. During the course of a review, at any time the Board may determine to dismiss an application for a complaint with or without prejudice due to lack of jurisdiction, based on frivolous allegations, lack of sufficient evidence, lack of legal merit or factual basis, finding of no violation, withdrawal of a an application for complaint, subsequent compliance with statutes and/or regulations, or other basis. An application for complaint is dismissed whenever the Board reviews an application for complaint, and a motion is made to dismiss, and the motion receives a majority vote of the Board to dismiss or whenever a motion does not receive a majority of votes to move a application for complaint forward to the next step, or a motion to dismiss does not receive a majority of votes (upon a tie vote of the Board an application for complaint is dismissed).
- (a)Preliminary Review and Screening of Application for Complaints. During a preliminary review of an application for complaint, to screen out applications for complaints that do not contain facts to establish a prima facie violation of the Board’s enabling act or regulation, the appraiser is not notified of the filing of the application for complaint and such review is conducted in the public session of the Board, wherein the Board does not identify the appraiser and/or their employer. The Board discusses the underlying facts, documents, or other evidence stated in the application for complaint and decides whether to dismiss or proceed to one of the next steps in the Board’s Complaint Procedures.
- (b) Next Steps in the Application for Complaint Procedures. If after conducting a preliminary review of an application for complaint the Board does not dismiss it, the Board moves to another step in the procedure. The Board can: (1) notify the person filing the application for complaint to provide additional information; (2) send a copy of an application for complaint to an appraiser and request a written response; and (3) notify the appraiser that he is required to appear at a following meeting of the Board.
- (c) Notification to Appraiser to Appear Before the Board. In the event the Board decides to require an appraiser to appear before the Board, the Board will notify the appraiser and allow the appraiser the option of appearing during an executive session of the Board or public session. During this phase of the Board’s review an appraiser is entitled to all the protections provided by M.G.L. c. 30A, §21(a)(1) that he/she has a right: whether to have the discussion of the matter heard during the public session of the Board meeting, or during the executive session of the Board meeting to which the public is not allowed to attend; to speak on his/her own behalf; to have an attorney or representative of his/her choosing attend the Board meeting to advise him/her at own expense but the attorney or representative will not be allowed to participate at the Board meeting; and to create an independent record by audio-recording or transcription of the executive session of the meeting at his/her expense. Aside from an individual’s right to participate in a discussion about that individual, participation of other people during an executive session is within the Board’s discretion. See the Office of Attorney General’s Decisions on the Open Meeting Law OML2013-141, OML 2019-159, and M.G.L. c. 30A, § 20(g). Thereafter, a copy of the notice to the appraiser and application for complaint is forwarded to the members of the Board and placed on the agenda for a following Board meeting.
- (d) Effect of Appraiser’s Failure to Appear. In the event the appraiser fails to appear at the Board meeting, the Board may notify the appraiser that he/she will be considered in default. An appraiser will be given an opportunity to establish a good reason for his/her failure to appear at the initial scheduled meeting on the application for complaint. If the appraiser does not provide a good reason for failing to appear, the Board may vote on issuing an Order to Show Cause pursuant to M.G.L. c. 30A against the appraiser.
Formal Complaint Filed Against Appraisers and Public Hearing
If the Board decides to conduct a public hearing, it will proceed with a notice to the appraiser informing the appraiser of the reason, date, time, and place of the hearing. After the Board decides to proceed, it may prepare an Order to Show Cause and forward it to the Office of the General Counsel for the Division of Insurance for assignment of an enforcement counsel who will prosecute the matter. The Board may forego sending an Order to Show to the Division of Insurance and notify the appraiser to appear at a hearing to answer the grounds filed against the appraiser with the reasons, time, and date of the hearing. The Board shall conduct the hearing in accordance with the State Administrative Procedures Act and the Standard Adjudicatory Rules of Practice and Procedure set forth in M.G.L. c. 30A and 801 CMR 1.00 et seq. The Board may conduct these proceedings by teleconference or video conference with written notice sent to the appraiser. The Board may hear the matter as a full body or appoint one member of the Board as Presiding Officer in accordance with the Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.00. If the full Board chooses to hear the Formal Complaint, the Chair of the Board, or in his/her absence the Board member with most seniority based on length of service as a member of the Board, will oversee the conduct of the hearing, administer oaths or affirmations to witnesses, declare final decisions about objections to evidence, resolve issues about procedure, and maintain the decorum of the hearing. Legal Counsel to the Board shall act as clerk of the administrative hearing, maintain exhibits and other documents filed during the hearing, provide counsel to the Board on any legal issues that arise during the course of the hearing, draft legal rulings and the final decision for the Board’s approval. After a hearing is held, if the Board rules in favor of an appraiser the complaint will be dismissed. If the Board rules against an appraiser the Board can discipline an appraiser, including, but not limited to, issuing a written reprimand, require an appraiser to retake the examination, suspend or revoke an appraiser’s license in accordance with the Board’s enabling act. If the Board decides to issue discipline, the Board will notify the Insurance Producer Section of the Division of Insurance, which will make a notation in the appraiser’s license file with the discipline imposed and reason for it.
Licensed Appraisers Convicted of a Fraudulent Appraisal or Final Judgment for Fraud
In the event an appraiser is convicted or pleads guilty to a fraudulent automobile damage report, or a final judgment is entered against an appraiser for a fraudulent appraisal or fraud during the course of an appraiser’s duties writing an appraisal, the Board may forego a preliminary review and send a copy of the court documents to the appraiser and hold a public hearing, which will include the reason for the hearing, date, time, and place of the hearing.
Administrative Penalties
The Board may impose penalties including administrative costs, revocation or suspension of license or both. All administrative costs assessed are subject to the discretion of the Board but may not be excessive. The administrative costs may be assessed against the appraiser, the appraiser's employer, the insurer, or the repair shop as provided for under M.G.L. c. 26, § 8G and 212 CMR 2.00 et seq.
Appeal of the Board’s Final Decision
A final decision rendered by the Board at the conclusion of any hearing may be appealed by an appraiser. If the Board imposes discipline, the appraiser may file an appeal in accordance with M.G.L. c. 30A, §14 by filing an appeal with the superior court within 30 days of receiving the decision of the Board.
Duty of Licensed Motor Vehicle Damage Appraisers
All licensed motor vehicle damage appraisers are required to read the Complaint Procedures, the Auto Damage Appraiser Licensing Board’s enabling act, M.G.L. c. 26 § 8G, the Board’s Regulation 212 CMR 2.00, and to be knowledgeable about all of the provisions contained therein.
Severability
If any section or provision of these Guidelines for Complaint Procedures or application of these sections or provisions are found to be contrary to law, the remaining sections, provisions, and the remaining applications of these sections and provisions will, nonetheless, continue in full force and effect as provided for by law.