In re McConkey
| Docket Number | 56-2021 |
| Decision Date | 23 April 2024 |
| Parties | IN THE MATTER OF THE PETITION OF WILLIAM MCCONKEY |
| Court | Court of Special Appeals of Maryland |
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IN THE MATTER OF THE PETITION OF WILLIAM MCCONKEY
No. 56-2021
Court of Special Appeals of Maryland
April 23, 2024
UNREPORTED IN THE APPELLATE COURT OF MARYLAND [*]
Circuit Court for Baltimore City Case No.: 24-C-20-003617
Wells, C.J., Tang, Eyler, Deborah, S. (Senior Judge, Specially Assigned), JJ.
OPINION
Eyler, Deborah, S., J.
In this administrative appeal, William McConkey, the appellant, appeals from a decision of the Maryland Real Estate Commission ("the Commission"), the appellee, denying his application for a real estate salesperson license. That decision was affirmed on judicial review in the Circuit Court for Baltimore City.
Mr. McConkey presents two questions for our review,[1] which we have rephrased:
I. Did the Commission afford Mr. McConkey due process before a neutral tribunal
II. Was the Commission's decision denying the application legally correct and supported by substantial evidence in the record
For the following reasons, we answer "Yes" to those questions and affirm the decision of the Commission.
FACTS AND PROCEEDINGS
Licensing History
In 1984, the Commission issued Mr. McConkey a real estate salesperson license and, two years later, a broker's license. In 1993, the Commission reprimanded Mr. McConkey for failing to properly supervise an agent in his brokerage. In 1994, it fined him $500 for failing to respond to a complaint filed with the Commission and failing to follow Commission regulations. In 1995, he was fined $2,000 and his brokerage license was
"revoked for willful misrepresentation, failure to account for money, improper conduct[,] and violation of the [Commission's] Code of Ethics." Mr. McConkey appealed the revocation decision to the circuit court and this Court, both of which affirmed the revocation.
Also in 1995, Mr. McConkey, who had been admitted to the Maryland bar for five years, was disbarred by consent based on the same conduct.
At the end of 1998, Mr. McConkey reapplied for a broker's license. Following a hearing in early 1999, his application was denied because the Commission found that Mr. McConkey was "unwilling to accept responsibility for his past actions" and that it was not in the public interest to allow him to hold a broker's license.
In 2000, Mr. McConkey applied for and was granted a salesperson license.
2010 License Suspension &Guaranty Fund Awards
Between October 2007 and June 2008, three consumers - Teresa Milligan, Angela Powell, and Lauri Donovan - filed complaints against Mr. McConkey with the Commission alleging that he had engaged in a fraudulent foreclosure avoidance scheme. They simultaneously filed claims with the Commission's Guaranty Fund[2] for actual losses suffered because of alleged misconduct by Mr. McConkey.
The Commission investigated the complaints and, in December 2009 and January 2010, respectively, filed regulatory charges against Mr. McConkey in relation to the three complaints. The regulatory charges and claims against the Guaranty Fund were consolidated and transmitted to the Office of Administrative Hearings for a contested case hearing before an administrative law judge on October 25, 2010. At the outset of that hearing, Mr. McConkey and the Commission placed on the record an agreement settling the regulatory charges against him and waiving his right to participate in the hearing relative to the claims against the Guaranty Fund.
The terms of the agreement were incorporated in three consent orders entered on November 12, 2010 ("the Consent Orders"). Mr. McConkey and the Commission stipulated and agreed to the following pertinent facts. At all times, Mr. McConkey was licensed as a real estate salesperson with a license set to expire on July 19, 2012. He had "a practice whereby he would contact real property owners who were on the verge of having their property foreclosed upon and offer to help them save the property from foreclosure." Mses. Milligan, Powell, and Donovan each were on the verge of foreclosure when they met Mr. McConkey. Mr. McConkey contacted Ms. Donovan by letter on his brokerage letterhead offering to pay her mortgage and utilities while he searched for a buyer for her property. Ms. Powell contacted Mr. McConkey after seeing a television commercial in which he advertised himself as a licensed real estate agent who could save homeowners from foreclosure. Mr. McConkey contacted Ms. Milligan by knocking on her door and offering to help save her home from foreclosure. Mr. McConkey admitted that "by his acts and omissions related to [the properties owned by Mses. Milligan, Powell, and
Donovan], he knowingly and willfully violated the Protection of Homeowners in Foreclosure Act (PHIFA), Md. Code Ann., Real Property Art., Title 7, subtitle 3." Mr. McConkey consented to entry of an order by the Commission finding that by knowingly and willfully violating PHIFA, he also violated Md. Code, Bus. Occ. § 17-322(b)(25) by "engaging in conduct that demonstrates incompetency and improper dealings."
Paragraph 7 of the Consent Orders provided:
Based on his violation of [Bus. Occ.] § 17-322(b)(25), [Mr. McConkey] consents to the entry of an Order by the Commission suspending any and all real estate licenses issued to him by the Commission for a period of one (1) year commencing on the date the Commission executes this Consent Order. [Mr. McConkey] understands and agrees that at the conclusion of the one (1) year suspension period his license will not be automatically reinstated. To have his license reinstated, [Mr. McConkey] will be required to apply for the reinstatement of his license and to appear at an application hearing before the Commission or its[] designee. The burden of proof at the application hearing will be on [Mr. McConkey] to show why his license should be reinstated. There is no guarantee that the Commission or its[] designee will reinstate his license following the application hearing.
(Emphasis added.)
Mr. McConkey agreed not to oppose the claims against the Guaranty Fund made by Mses. Donovan, Powell, and Milligan and expressly waived his right to participate in the hearing on those claims. He likewise waived his right to appeal from the Consent Orders or any future order awarding the complainants money from the Guaranty Fund.
On January 20, 2011, the ALJ issued a proposed decision finding that Mr. McConkey, in his dealings with the three complainants, engaged in "fraud, misrepresentation, and false pretenses, as well as violations of the [Commission's] ethical standards[.]" The ALJ found that each complainant sustained actual damages exceeding
$25,000,[3] which then was the statutory maximum,[4] and awarded each that amount. Mr. McConkey was obligated to reimburse the Guaranty Fund for the payment of those penalties, plus interest, and was "ineligible for a license" until he had done so. The Commission affirmed and adopted that proposed decision by order entered on February 4, 2011 ("the 2011 Decision").
Reprimand by the House of Delegates
In 2002, Mr. McConkey was elected to the Maryland House of Delegates to represent District 33A in Anne Arundel County. He served in the General Assembly for four terms until he lost his 2018 reelection bid.
During the 2012 legislative session, the legislature engaged in a sunset review of the Commission and proposed legislation to make changes to the Guaranty Fund. As pertinent, the State Senate proposed, in SB 134, doubling the statutory cap to $50,000 per claim. A related bill introduced in the Maryland House of Delegates, HB 1073, proposed increasing the statutory cap to $35,000 per claim, reducing the interest payable on debt owed to the Guaranty Fund; requiring the Commission to allow a licensee to set up a payment plan for reimbursement of the Guaranty Fund; and authorizing reinstatement of a licensee's license upon establishment of a payment plan. Mr. McConkey was not a sponsor of either bill.
After SB 134 passed the Senate, however, Mr. McConkey sponsored three amendments to the bill in the House of Delegates that added the reduced interest rate, the payment plan, and the license reinstatement provisions of HB 1073 to SB 134. The House Economic Matters Committee voted favorably on the bill, as amended, and it was approved unanimously by the full House, including Mr. McConkey. That same day, The Washington Post published an article highlighting that Mr. McConkey was one of just a few licensees owing a large debt to the Guaranty Fund and noting that passage of SB 134, as amended, could result in a direct benefit to him. Thereafter, the Senate refused to concur in the House amendments and a conference committee was appointed. Ultimately, the amendments were removed from SB 134 and the bill passed both houses.
Days later, the Joint Committee on Legislative Ethics received a complaint from a state senator concerning Mr. McConkey's involvement in sponsoring the amendments and lobbying for passage of SB 134, as amended. It investigated the complaint and, in January 2013, adopted a written report finding that Mr. McConkey would have realized a direct financial benefit from the passage of the bill, as amended, "in the form of thousands of dollars in reduced interest charges, no administrative charges, and possible reinstatement of his real estate salesperson license." Given that Mr. McConkey was one of just seven persons owing a large debt to the Guaranty Fund, the Joint Committee concluded that Mr. McConkey had been obligated to recuse from participation in legislative action on the bill. The Joint Committee's report was adopted by the House of Delegates by a resolution and Mr. McConkey was reprimanded for his conduct.
2018 Application to the Commission
On December 14, 2018, Mr. McConkey filed his application to renew his real estate salesperson license with the Commission. He alleged that he would affiliate with...
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