Christоpher Ruel, a licensed real estate appraiser, appeals an order of the Superior Court (McNamara, J.) remanding his case to the New Hampshire Real Estate Appraiser Board (Board) for a new disciplinary hearing. We affirm.
The pertinent facts, as established by the record, are as follows. In the spring of 2007, Kenneth Frederick hired Ruel to appraise his property in Kingston. The New Hampshire Department of Transportation (DOT) sought to tаke Frederick’s property by eminent domain and Frederick used Ruel’s appraisal in negotiating a settlement with DOT. DOT performed its own appraisal and valued the property at
On November 16,2007, the Board voted to investigate the grievance and assigned the case to an investigator, Peggy Gallus. Later, it was assigned to Barry Shea for a second investigation. Ruel received notice of the allegations in an April 25, 2008 letter from the Board. Shea submitted his report to the Board on October 30, 2008, noting Ruel’s “substantial” noncompliance with the professional rules. On December 2,2008, Ruel failed to appear for a scheduled meeting with Gallus, the grievance officer in charge of his matter, but the two had several phone calls discussing possible sanctions. Later, pursuant to Board procedure, the Board sent Ruel a proposed settlement. In April 2009, the Board granted Ruel’s request to extend the deadline to respond to the settlement offer.
After Ruel rejected the settlement offer, the Board voted to schedule a hearing for November 13, 2009. Ruel received notice of this hearing in a letter dated August 27, 2009. The Board continued the hearing until December 18, 2009, so that its investigator, Shea, would be present to testify. At the hearing, both Shea and Ruel testified; however, during Ruel’s testimony, one Board member left the hearing and did not participate in deciding his case. Ruel submitted requests for findings of fact and rulings of law, which were ruled on at a public hearing on February 12, 2010. In April 2010, four members of the Board voted to order Ruel to pay a $500 fine and attend two appraisal courses.
Ruel sought certiorаri review in the superior court, alleging several errors in the Board’s procedures. The superior court rejected most of Ruel’s arguments, but remanded the case to the Board for another hearing because the Board conducted a portion of the disciplinary hearing and issued its final order without a quorum of its membership participating. This appeal followed.
On appeal, Ruel argues that the superior court should have dismissed thе Board proceedings against him because: (1) LeMay lacked standing to file the initial grievance and, therefore, the case should never have been heard; (2) the Board violated its governing statute by taking more than two years to dispose of his case; (3) the Board’s delay materially prejudiced him; and (4) the Board’s determination to continue with the hearing and render a final decision without a quorum violated his due process rights. In addition, Ruel contends that the superior court erred in not reviewing Shea’s qualifications and competency to testify as a witness. Finally, he asks us to award attorney’s fees.
I
Before considering Ruel’s arguments, we first review generally the regulatory scheme for real estate appraisers established by RSA chapter 310-B. This is the first occasion we have had to address this statute. Enacted in 1991 to bring New Hampshire into compliance with Title XI of the federal Financial Institutions Rеform, Recovery, and Enforcement Act of 1989, 12 U.S.C. §§ 3310, 3331 (Supp. 2011), RSA chapter 310-B establishes a comprehensive system for the regulation of individuals who perform real estate appraisals in connection with “federally-related transactions”;
To decide the issues raised in this аppeal, we must first determine the interplay between grievances and complaints under the statutory scheme. RSA 310-B:17-a (2005) and RSA 310-B:17-b (2005) provide as follows:
310-B:17-a Grievances.
I. All grievances shall be in writing and objectively received and reviewed by the board.
II. If the board determines that a grievance requires further investigation, it shall be acted upon within 90 days.
III. Disposition of all grievances shall be voted on by the board.
IV. The board, on its own motion and in accordance with the provisions of this chapter, shall commence a disciplinary proceeding.
310-B:17-b Complaints.
I. Complaints shall not be accepted for filing with the board unless the grievance procedures in RSA 310-B:17-a have been concluded. The aggrieved party may proceed with the complaint process if the aggrieved party does not agree with the decision of the board.
II. To be accepted for filing, complaints shall be filed on a form provided by the bоard.
III. Properly filed complaints shall be reviewed by the board to determine compliance with this section.
IV. Upon confirmation that a complaint complies with the provisions of this section, the board shall schedule a disciplinary proceeding on the complaint in accordance with the provisions of RSA 541-A.
In its April 2009 proposed settlement, the Board stated that, if Ruel did not accept its proposed settlement, the “grievance [would] be elevated to a complaint.” Despite this representation, the Board now argues that the matter involving Ruel remained a grievance throughout the proceedings before the Board. The Board contends that, after the settlement was rejected, it merely exercised its authority to convene a “grievance hearing” under RSA 310-B:17-a, IV and never elevated this matter to a complaint. We disagree.
Although there is no statutory definition of the terms “grievance” and “complaint,” the board’s regulations supply such definitions. “ ‘Grievance’ means an allegation in writing and submitted to the board that an appraiser has committed misconduct.” N.H. CODE ADMIN. R., Rab 202.06 (2007). “ ‘Complaint’ means a written and signed statement delivered or mailed to the offices of the board which complies with Rab 205.03.” N.H. Code Admin.
Rather, the more reasonable construction of the statute is that once the Board has abandoned its efforts to resolve a grievance informally through settlement and has determined to initiate a formal disciplinary hearing, such action has the effect of converting the grievance into a complaint. Both RSA 310-B:17-a, IV and Rab 205.02(b)(9) specifically contemplate that, in response to a grievance, the Board may commence an adversarial disciplinary proceeding on its own motion. RSA 310-B:19 states: “The board shall take no disciplinary action without a hearing,” and further provides, “At least 14 days prior to hearing, all parties to a disciplinary hearing shall be served, either personally or by certified mail, return receipt requested, with a written copy of the complaint filed and notice of the time and place for hearing.” (Emphasis added.) See also N.H. CODE Admin. R., Rab 208.02(b). When read in the context of the entire statutory scheme, it becomes clear that once the Board commences an adjudicative disciplinary hearing, the grievance procedures described in RSA 310-B:17-a and the corresponding regulations have come to an end and from that point forward the procedures governing complaints apply. See RSA 310-B:17-b. Once that complaint has been finally adjudicated by the Board, the matter is concluded, subject to judicial review, and a grievant has no ability to force the Board to engage in a “do-over” by filing a new complaint based on the same alleged misconduct.
II
We turn now to Ruel’s first argument. Ruel contends that LeMay lacked standing to file a griеvance and, as a result, the Board should never have heard this case. He argues that, because the Board’s governing statute does not specify who has standing to file a grievance, the rule governing who can appeal an administrative decision should also apply to who can initiate an investigation by submitting a grievance. See Nautilus of Exeter v. Town of Exeter,
Ruel’s position, however, is contrary to the language of the statute and accepted principles of administrative law. The Board’s governing statute and administrative
The principles underlying the agency’s intervention practices ... are entirely different from the principles that apply [to seeking review of agency decisions]. The [аgency] is free to permit third parties to participate in proceedings before it, for such assistance as those parties may offer, without creating a right in those parties to review a negative decision that the [agency] may ultimately make.
Consolidated Edison Co. of New York v. O’Leary,
Ill
Ruel next argues that the Board failed to comply with two separate ninety-day time limits in the statute, and that suсh failure deprived the Board of jurisdiction to hear his ease. We disagree.
Ruel argues that once the Board determined that LeMay’s grievance required further investigation, the Board was required to “act[] upon [the grievance]” within ninety days. RSA 310-B:17-a, II. Further, he argues that, under RSA 310-B:19, once the Board decided to initiate formal disciplinary action, it was required to hold a hearing on his matter within ninety days after he received notice of the allegations. We assume, -without deciding, that the Board failed to meet these two statutory time requirements; however, we conclude that this delay did not deprive the Board of its power to proceed with its disciplinary process.
The time limits imposed by RSA 310-B:17-a, II and RSA 310-B:19 are mandatory, as both statutes provide that the Board “shall” act within a ninety-day period. See McCarthy v. Wheeler,
“Where the legislature has not provided how its mandatory time limits are to be enforced, we must determine the appropriate mode of enforcement.” In re Cierra L.,
In Fournier, we determined that, where civil commitment of violent sexual predators was at stake, see RSA 135-E:7, I, :9 (Supp. 2010), mandatory time limits for commitment hearings “were intendеd to protect the person’s substantial liberty interests,” and the violation of those time limits “is itself prejudicial to the due process rights of a person subject to involuntary commitment under [the] statute.” Fournier,
There is no indication, either express or implied, that the mandatory time limits аt issue in this case were enacted to protect against an “unnecessary infringement on a person’s liberty.” Id. at 447. In fact, the time limits in RSA 310-B:17-a, II and RSA 310-B:19 are nearly identical to those we considered in Smith. In that case, we rejected the view that the Board of Examiners of Psychologists lacked authority to initiate disciplinary hearings despite its failure to comply with a statute requiring a hearing within three months of notice of a complaint. Smith,
The time limits in this case implicate the same interests as those addressed in Smith; they do not implicate a liberty interest. Therefore, the Board retained authority to initiate and carry out disciplinary proceedings against Ruel despite its failure to comply with the time limits imposed by RSA 310-B:17-a and :19.
TV
Since we conclude that the Board’s failure to act within the statutory time frames did not remove its jurisdiction to hear the complaint, we may only reverse the superior court’s decision if we find that the delay materially prejudiced Ruel. He argues that the Board’s delay of over two years in issuing a final disposition in his case materially prejudiced him by dulling the memory of witnesses (including himself), making it impossible to recreate real estate market conditions, causing him to lose present and future business opportunities, generating higher insurance premiums and attorney’s fees, and creating stress in his life.
The judiciary’s certiorari jurisdiction is limited and gives a court “no authority to provide de novo relitigation of the original issues or to substitute its judicial discretion for the administrative judgment below.” Citizens of E. Derry Fire Precinct v. Town of Derry,
Administrative boards must follow their own rules. Attitash Mt. Service Co. v. Schuck,
The relevant dates are the periоd from September 2007, when the grievance was filed, until December 2009, when the Board reached its final decision. Although
V
Ruel argues that the Board violated his due process rights by holding a hearing after a lengthy delay and without a five-member quorum. He contends that this alleged violation required the superior court to dismiss his case, rather than remand it to the Board for a new hearing. Above, we have rejected Ruel’s contention that he was materially prejudiced by the delay. See Appeal of Omega Entm’t,
VI
Finally, Ruel argues that the superior court erred by failing to rule that the Board should not have allowed Shea to testify. Ruel argues that Shea was nоt qualified as an expert because he did not conduct a thorough investigation by viewing the appraised property or meeting with him. Again, we disagree.
An administrative agency is given broad discretion in determining the admissibility of evidence. See, e.g., McLaughlin v. Fisher Eng’g,
The record shows that Shea was a certified Uniform Standards of Professional Appraisal Practice instructor who, like Ruel, performed professional appraisals. Further, Shea investigated this case over the course of several months. We cannot say that the Board acted arbitrarily or capriciously in admitting his testimony and report. Town of Derry,
VII
Because we reject Ruel’s arguments on appeal, we also deny his request for аttorney’s fees.
Affirmed.
Notes
A “federally-related transaction” means “any transaction which: (a) A federal financial institution’s regulatory agency or the Resolution Trust Corporation engages in, contracts for, or regulates; and (b) Requires the services of an appraiser.” RSA 310-B:2, IX (Supp. 2011).
Characterizing mandatory time limits as “jurisdictional,” though frequently done by courts, may often be more misleading than illuminating. The United States Supreme Court, discussing time limits similar to the ones at issue here, noted that:
Jurisdiction ... is a word of many, too many meanings. This Court, no less than other courts, has sometimes been profligate in its use of the term. For example, this Court and others have occasionally described a nonextendable time limit as “mandatory and jurisdictional.’ ” But in recent decisions, we have clarified that time prescriptions, however emphatic, ‘are not properly typed jurisdictional.’ ”
Arbaugh v. Y&H Corp.,