COURT OF APPEALS OF VIRGINIA

Present: Judg es Annunziata, Agee and Senior Judge Coleman

GORDON N. DEMPSEY MEMORANDUM OPINION * v. Record No. 25 92-01-3 PER CURIAM APRIL 2, 2002 REAL ESTATE AP PRAISER BOARD OF THE COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ROANOKE COUNTY Richard C. Patt isall, Judge (Sam Garrison, on brief), for appellant. (Randolph A. Beales , Attorney General; Richard B. Zorn, Senior Assistant Attorney General; John B. Purc ell, Jr., Assistant Attorney General, on brief), for appellee.

Gordon N. Dempsey (Dempsey) appeals a decision of the circuit court affirming the revocation of his real estate appraiser's license by the Virginia Real Estate Appraiser Board (Board). Dempsey contends the trial court erred by refusing to reverse the Board's decision or remand his case to the Board because (1) the Board lost a letter making it unavailable for consideration by the Board at its October 17, 2000 meeting; (2) the Board allowed the testimony of a licensed real estate appraiser who was not a party to the proceedings; and (3) the Board did not record and transcribe the October 17, 2000

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.proceedings. Upon reviewing the record and briefs of the parties, we conclude that this appeal is with out merit. Ac cordingly, we summarily affi rm the decision of the trial court. See Rule 5A:27. On appeal, we view the evidence and all reasonable inferences in the light most favorable to appellee as the party prevailing below. See McGuire v. McGuire , 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990). Procedural Background In its August 28, 2001 fi nal order, the circuit court affirmed the Board's October 17, 20 00 monetary sanctions and license revoca tion against Dempsey. Dempsey superv ised Evie Kinsey, wh o was not a licensed appraiser, from 1997 until March 1999. During th is time, Kinsey signed numerous appr aisal reports as "Appraiser " and Dempsey signed them as "Super visory Appraiser." Following co mplaints involving Dempsey's appraisa ls, the Board conducted info rmal fact finding confer ences on February 24, 2000 and Septembe r 27, 2000, pursuant to Code § 9-6.14:11. The Board en tered its Final Opinions and Orders on December 24, 2000. The Board de termined Dempsey violat ed a number of pr ovisions of the Uniform St andards of Professional Apprai sal Practice, wh ich has been ad opted by the Board, relating to th e preparation of appraisal re ports. The violations included al lowing Kinsey to sign the reports as an appraiser, using fals ified comparab le sales data , failing to report accurately the properties, and failing to make use of tax

- 2 -records and sales within the subject's de velopment to obtain a more accurate esti mated value. Dempsey claims the Board or its staff lost or misplaced a letter from Joseph St raub, Kinsey's former employer, be fore the October 17, 2000 Board hearing. The letter, a recrea tion of which was presented to the trial court, positively recomm ended Kinsey. During the Board's Octo ber 17, 2000 meeting, John M. Foster and Pat E. Turner, lice nsed real estate appraise rs and compla inants in two of the cases, addr essed the Board. Foster had reappraised one of the properties appr aised by Dempsey. Th e Board did not record the meeting. Analysis "It is well established that agency action is presumed valid on review, and the burden rests upon the party complaining to overcome this presumption. Code § 9-6.14:17." EDF v. State Water Control Bd. , 15 Va. App. 271, 277, 422 S.E.2d 608, 611 (1992).

I. Dempsey argues that by misplacing the letter recommending Kinsey, the Board denied him his right to present evid ence upon relevant factual issues. See Code § 9-6.14:12. The Straub letter was discussed at the February 24, 2000 and Septembe r 27, 2000 conferences. Th e transcripts from these conference s reference the letter and note that it is missing. The parties di sagree as to whether Dempsey introduced the letter during the February

- 3 -conference. It is evident from the transc ripts that the presiding conference officer, Da vid N. Castle, was fami liar with the letter and its contents and duly considered it when he made his recommendations to the Board. References in the February conference transcript substantiate the li mited conten t of the letter. The circuit co urt assumed the letter had been made part of the record by Demp sey at the February co nference, an d did not err in holding that an y error by the Board in not preserving the document was harmless. "No reversible error will be found . . . unless there is a clear showing of prejudice . . . ." Johnston-Willis v. Kenley , 6 Va. App. 231, 258, 369 S.E.2d 1, 16 (1988). The conferences investigated complaints made on appraisa ls signed by Dempsey. By signing the apprai sals, Dempsey vo uched for the ac curacy of the appraisals and complian ce with all statutes and regula tions. Although the letter ma y have relayed Kinsey's qualificat ions, it did not excuse Dempse y's obligation to properly supervise her work. Castle and the Board were aware of the contents of the missing letter. The Board made its decision based upon the entire record, includ ing the testimony regarding the reco mmendation of Kinsey and repeated re ferences to th e letter contained in the transcripts. Th e letter's unavailability as part of the record did not affect the Bo ard's decision. Dempsey argues Foster's comments were inflammatory, inappropriate and potentially prejudicial. However, he also

- 4 -concedes that it is impossible to determine what effect, if any, the remarks had on the Board's decision. [T]he rules of evidence are relaxed in an administrative proceeding and . . . "[n]o reversible error will be found . . . unless there is a clear showing of prejudice arising from the admission of [improper] evidence, or unless it is plain that the agency's conclusions were determined by the improper evidence, and that a contrary result would have been reached in its absence." Id. at 258, 369 S.E.2d at 16 (citations omitted). We assume without deciding that Foster's remarks were improper. Dempsey has failed to demonstrate actual prejudice as a result of the remarks. Additionally, the evidence that Dempsey violated Board rules is admitted or overwhelming in each of the seven cases against him. Therefore, even if it was error to consider the remarks, the error is harmless.

II. Dempsey next argues the trial court erred by finding no violation of his due process rights when the Board permitted Foster, a licensed real estate appraiser, to testify before it at its October 17, 2000 meeting. Code § 9-6.14:11(C) permits "persons who participated in the prior [conference] . . . an opportunity to respond at the board . . . meeting to any summaries of the prior proceeding prepared by or for the board." As a complainant who testified at the conference against Dempsey, Foster was a "participant" authorized to respond. Foster's comments at the October 17, 2000 meeting were

- 5 -consistent with Code § 9-6.14:11(C) and did not exceed the bounds of the statute. He highlighted the nature and facts of his complaint and specifically responded to the summary.

III. Finally, Dempsey contends the Board was obligated to record and transcribe the October 17, 2000 proceedings. Code § 2.1-343, governing public meetings, only requires that the "[m]inutes shall be recorded at all open meetings." Code § 2.1-343(I). The Board duly recorded the minutes of the October 17, 2000 proceedings. Furthermore, pursuant to Code § 2.1-343(H), Dempsey was permitted to "record or otherwise reproduce any portion of a meeting required to be open." He chose not to do so. Dempsey stated no error of law. "The burden shall be upon the party complaining of agency action to designate and demonstrate an error of law subject to review by the court." Code § 9-6.14:17. Accordingly, we su mmarily affirm the de cision of the trial

court. See Rule 5A:27. Affirmed.

- 6 -