Arizona REALTORS® General Counsel and Assistant CEO Scott Drucker recently spoke to SAAR members about new & amended policies that were approved by the National Association of REALTORS® Board of Directors on Nov. 13, 2020:
29. Applicability of the Code of Ethics
A REALTOR® shall be subject to disciplinary action under the Code of Ethics with respect to all of their activities.
New Standard of Practice 10-5:
REALTORS® must not use harassing speech, hate speech, epithets, or slurs based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.
Revisions to the definition of “Public Trust”:
The definition of “public trust” was expanded to include all discrimination against the protected classes under Article 10 of the Code of Ethics and all fraud, and to limit the reporting requirement to final ethics decisions involving real estate-related activities and transactions.
Drucker then answered the following member questions:
- Are private social media groups or private conversations subject to enforcement?
Yes, the reason behind the change to Policy 29 is to expand the applicability of the Code of Ethics to all of a REALTORS® activities — regardless of whether it’s in a public setting or a private setting. The best example I can think of is a Real Estate Agent Facebook forum. Those are private social media groups, yet if you were to engage in hate speech in that group someone could file a complaint and it would be actionable. - Are associations or brokers going to actively monitor agents’ social media?
No, absolutely not. AAR, Scottsdale Association…we’re not going out (and) actively seeking violations. We only know of these things if they’re brought to our attention. If someone files an ethics complaint, that’s how we learn about the potential violation. Similarly, brokers are not obligated to monitor their agents’ social media accounts to ensure that they’re not engaging in hate speech. - How will grievances be processed by the state association?
These get processed just like every complaint that comes into AAR. A REALTOR® or a member of the public has the right to file a complaint against a REALTOR®, if they think that REALTOR® has violated the Code of Ethics. Complaints filed with the state association will initially be reviewed by the Grievance Committee. The committee will make sure the filing was timely and (determine) if the complaint contains allegations which, if true, would constitute a violation of the Code of Ethics. - May any validated grievances impact my license and ability to do business?
Yes, the possibility exists if those statements that you make are done in conjunction with your real estate activity. The portion of the Code of Ethics and Arbitration Manual that applies says: “Enforcement of the Code of Ethics requires member boards (AAR) to share with the state real estate licensing authority (ADRE) final ethics decisions holding REALTORS® in violation of the Code of Ethics in instances where there is reason to believe the public trust may have been violated.”
If someone were to make this sort of defamatory, discriminatory statement and it’s deemed a public trust violation by a hearing panel and it’s connected to their real estate practice, we are required to forward a copy of the decision to the Arizona Department of Real Estate. - How will this impact members being able to express their personal religious beliefs or views in a social setting if they happen to be viewed as discriminating against a protected class? For example, a Christian who does not support LGBTQ.
The changes are not intended to prohibit members from expressing their religious beliefs or views. There is a new appendix that talks about how we are going to apply and enforce this new Standard of Practice 10-5. It says: “Standard of Practice 10-5 is not focused on types of speech that might subjectively be deemed offensive or discriminatory by one person and not another.” It goes on to say: “Only the use of harassing speech, hate speech, slurs or epithets based on the protected classes are prohibited.”
So, you can discuss LGBTQ within the context of religious beliefs, provided you’re not using speech that is intended to insult and not using disparaging words or phrases. - What about freedom of speech and limiting what a member can say?
The First Amendment provides that neither Congress nor any state may abridge the freedom of speech of American citizens. With limited exceptions, the First Amendment does not prohibit a private organization from restricting the speech of its members. And, of course, the National Association of REALTORS® is a private trade association.
Related:
NAR Diversity, Equity & Inclusion Resources
FAQs About the Policies Approved by the NAR Board of Directors