IN THE SUPREME COURT OF OHIO
DAN R. SINGER,
CASENO. 11-1718
Appellant,
On Appeal from Fairfield County
Court of Appeals, Fifth Appellate District
Case No. 10-CA-55
V.
KELLY DAVIDS', SUPERINTENDENT, :
OHIO DIVISION OF REAL ESTATE AND:
PROFESSIONAL LICENSING,
Appellee.
MEMORANDUM IN OPPOSITION TO JURISDICTION OF APPELLEE
KELLY DAVIDS, SUPERINTENDENT, OHIO
DIVISION OF REAL ESTATE AND PROFESSIONAL LICENSING
MICHAEL DeWINE (0009181)
Ohio Attorrtey General
RAY R. MICHALSKI (0015793)
222SouthBroad Street
Lancaster, Ohio 43130
(740) 687-2889
(740) 681-1234 - Fax
[email protected]
CHERYL R. HAWKINSON (0055429)
Assistant Attorney General
Executive Agencies
30 East Broad Street, 26`h Floor
Columbus, Ohio 43215
(614) 466-2980
(866) 347-2547 - Fax
[email protected]
Counsel for Appellant
Dan R. Singer
sel for Appellee
Department of Commerce, Division of
Estate and Professional Licensing
' Anne M. Petit is the current Superintendent of the Division of Real Estate and Professional Licensing.
TABLE OF CONTENTS
PAGE(S)
REASONS WHY THIS IS NOT A CASE OF PUBLIC OR GREAT GENERAL
INTEREST .................................................................................................................................1
ARGUMENT ................................................................................................................................... 2
CONCLUSION ...............................................................................................................................4
CERTIFICATE OF SERVICE ........................................................................................................5
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REASONS WHY THIS IS NOT A CASE OF PUBLIC
OR GREAT GENERAL INTEREST
This case is about whether Appellant Dan R. Singer's (Singer) conduct in copying large
portions of another appraiser's report (the Daugherty Appraisal) and not disclosing the use of
that report in his appraisal report constitutes plagiarism and a misleading appraisal under R.C.
Chapter 4763 and the 2006 Uniform Standards of Professional Appraisal Practice (USPAP). The
simple answer is yes. And that narrow question raises no questions of public or great general
interest. At best, it does nothing more than challenge the well-settled principle that a reviewing
court must defer to an agency's interpretation of its own statutes and rules. State ex rel. Clark v.
Great Lake Constr. Co. (2003), 99 Ohio St.3d 32, 2003-Ohio-3802 (an agency's interpretation of
its statutes will not be overtumed unless its interpretation is unreasonable)
Every appraiser registered, licensed or certified2 by the Division of Real Estate and
Professional Licensing (Division) is required to perform appraisals in compliance with USPAP.
Section 4763.13(A) of the Ohio Revised Code adopts USPAP. USPAP mandates that in
developing a real property appraisal, an appraiser must be aware of, understand, and correctly
employ those recognized methods and techniques that are necessary to produce a credible
appraisal and not use or connnunicate a misleading appraisal. Plagiarism is not a recognized
method and technique under USPAP. The Appraisal Foundation, which publishes USPAP, has
interpreted USPAP to treat plagiarism as unethical.
Singer states in his proposition of law that the Appraiser Board created a new standard of
care that is inconsistent with the common practice of appraisers. Singer's proposition
2 Singer is a certified appraiser.
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misconstrues USPAP. The agency here interpreted its laws, rules, and USPAP reasonably and
applied those standards to Singer's conduct. Therefore this Court should decline jurisdiction.
ARGUMENT
The Appraiser Board correctly interpreted relevant statutes and 2006 USPAP standards
when it found that Singer's failure to disclose that he used large portions of the Daughtery
appraisal without citing it as a source was plagiarism and created a misleading appraisal. The
Appraiser Board did not create a new standard of care but instead merely reiterated that
appraisers are required to follow USPAP and shall not use or communicate a niisleading
appraisal.
USPAP's regulation of appraisals arises from federal law passed in response to the
savings and loan crisis of the 1980s. Congress enacted the Financial Institutions Reform,
Recovery and Enforcement Act ("FIRREA") in 1989 to protect the federal bank system in the
wake of that crisis. Pub. L. No. 101-73, 103 Stat. 183 (1989) 12 U.S.C. 3331. Title XI of
FIRREA was intended "to provide that Federal financial and public policy interests in real estate
related transactions will be protected by requiring that real estate appraisals utilized in
connection with federally related transactions are performed in writing, in accordance with
uniform standards (USPAP), by individuals whose competency has been demonstrated and
whose professional conduct will be subject to effective supervision." 12 U.S.C. 3331.
Striving to deflect the USPAP regulations that governed his conduct, Singer argues that it
is common practice among appraisers to borrow descriptive and explanatory language from other
appraisers. This contention is wrong for several reasons. First, there was no evidence presented
at the administrative hearing to support Singer's contention. Second, USPAP Ethics Rule,
Conduct Section mandates that if ar. appraiser relies on another appraiser's report, the appraiser
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must disclose in his appraisal his reliance on another appraiser's work or appraisal. Third,
USPAP Ethics Rule, Conduct Section and Standard 2-1 mandates that an appraiser must perform
assigmnents ethically and competently in accordance with USPSP and an appraiser shall not
communicate a misleading appraisal. The 2006 USPAP, Ethics Rule, Conduct Section states in
pertinent part that an appraiser must not use or communicate assignment results (i.e., the
appraisal) in a misleading of fraudulent manner. The 2006 USPAP Frequently Asked Questions
(FAQ), interpreting the Ethic Rule, Conduct Section, states: "Plagiarism is unethical. The
Conduct Section of the Ethics Rule states that an appraiser must not use or communicate a
misleading or fraudulent appraisal report. Presenting an appraisal report as yours when all or part
is the work of someone else is clearly misleading."
Singer used large portions of the Daugherty appraisal in his appraisal for Peoples Bank.
But Singer did not disclose in his appraisal that he used large portions of the Daugherty appraisal
verbatim or only changed a number. USPAP mandates that Singer must disclose in his appraisal
his reliance on the Daugherty appraisal. If not, it is plagiarism.
Singer also argues that that the 2006 USPAP did not include the FAQs about plagiarism.
The FAQ is published by the Appraisal Foundation; which also publishes USPAP. The FAQ
elaborates on the specific language in USPAP. The specific question regarding plagiarism in the
2006 USPAP FAQ was available to Singer. The fact that the 2006 FAQ was not included in the
2006 USPAP book, does not mean that it was not available to Singer. The FAQ introduced at
the adniinistrative hearing and was available to Singer prior to his September 7, 2007 appraisal
for Peoples Bank
Singer further argues that he could not have violated USPAP because USPAP does not
require an appraiser to attribute the use of another appraiser's descriptive or explanatory
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language. USPAP Ethics Rule, Conduct Section and Standard 2-1 mandates that an appraiser not
communicate a misleading appraisal. USPAP Standard 2-1 requires the appraiser to clearly and
accurately set forth the appraisal in a manner that will not be misleading and contain sufficient
infonnation to enable the intended user of the appraisal report to understand how the appraiser
arrived at his value conclusion. Further, USPAP Standard 2-2 requires the appraiser to describe
the information analyzed, the appraisal methods and techniques and reasoning that supports the
analysis, opinions and conclusions, and not communicate the appraisal in a misleading manner.
By plagiarizing Daugherty appraisal, Singer did not comply with USPAP Standard 2-2. USPAP
Ethics Rule, Conduct Section. Singer violated USPAP by taking the analysis, opinion, and
conclusions of the Daugherty appraisal and putting it in his appraisal without stating that he used
and relied on the Daugherty appraisal.
The 2006 FAQ to USPAP states that presenting an appraisal report as one's own when all
or part of the appraisal report is from another's appraisal is clearly misleading. The purpose of an
appraisal is for the intended user to understand how the appraiser arrived at the value conclusion.
Further USPAP mandates that appraisers perform appraisals impartially, objectively, and
independently. 2006 USPAP Ethics Rule, Conduct Section. If appraisers are allowed to borrow
other appraisers' appraisals without disclosure, then the requirement of USPAP that appraisers
perform appraisals impartially, objectively, and independently will have no force. Because
appraisers are required to perform appraisals in compliance with USPAP, the Appraiser Board
did not create a new standard of care when it evaluated Singer's conduct against various USPAP
requirements.
CONCLUSION
For all of these reasons, this Court should decline to review this appeal.
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Respectfully submitted,
MICHAEL DeWINE (0009181)
Dhio Attorney General
CHEIjX'L R. HXWKINSON (055429)
Assistant Attorney General
Executive Agencies
30 East Broad Street, 26h Floor
Columbus, Ohio 43215-3428
(614) 466-2980
(886) 347-2547 Fax
[email protected]
Counsel for Appellee
Ohio Department of Commerce,
Division of Real Estate and Professional Licensing
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Memorandum in Opposition to Jurisdiction
has been served, via regular U.S. Mail, postage prepaid, thisday of November 2011, upon
the following:
Ray R. Michalski
222 South Broad Street
Lancaster, Ohio 43130
Counsel for Appellant
Dan R. Singer
CHER--- R. HAWKINSON
Assistant Attorney General
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