Real_Estate_Ethics

“Real Estate Brokers, Representation, and the Role of Interdisciplinary Topics from Accounting, Cultural, Historical Studies in Business Ethics” Chapter One: Introduction While appalling scandals have taken a toll on public perception in honesty and ethics ratings for many professions, ratings for real estate professionals have been largely unaffected, this might reflect home price uncertainty more than improved representation or higher ethical standards (e.g., Jones, 2002; Saad, 2008). Despite an overhaul of real estate licensing, education, and disclosure requirements, effective July 1, 2002 in Oregon, for example, consumers continued to liberally negotiate with limited representation even after disclosure. Limited agency allowed a single agent, designated as a “broker” under the new law, to represent sellers and multiple buyers in single transactions, presumably offering consumers better alternatives for representation in the residential real estate market by replacing seller sub-agency (Oregon Legislative Assembly Administration Committee Services, 2001, p. 3). Perhaps consumers rely upon real estate agents less for representation and more for information. However, as internet technology has increasingly provided data directly to consumers, and intensified controversy over public, private, and proprietary information in the process, more buyers and sellers might choose, in the future, to rely on fewer brokers for both information and representation (Evans, 2000). This senior paper discusses interdisciplinary topics from accounting, cultural and historical studies in college-level business ethics education and suggests improved ethics education might play a role in raising ethical standards of real estate agents. In order to effectively respond to consumer, economic, and technological changes, real estate professionals might need more rigorous licensing and continuing education courses, beyond current legal requirements, as well as a possible shift in practice away from limited agency and towards exclusive representation for buyers or sellers. Chapter Two: Review of literature Real estate licensing and agency relationships In 2001, Oregon Legislative Assembly Senate Bill 446 (SB 446) considered the need for reform in real estate licensing and agency relationship disclosure, which derived from confusion about changing agency relationships between buyers, sellers, and agents in the marketplace. The summary of major legislation reported, “Oregon now recognizes the buyer-agency relationship, wherein the sales associate works directly as the agent for the buyer and owes the buyer fiduciary duties just as an agent owes fiduciary duties to a seller”; in addition, former “sub-agents of the broker with no fiduciary responsibilities to the buyer” would be required “to upgrade their licenses to broker, which would give buyers clearer representation and eliminate the often confusing sub-agency relationship” (Oregon Legislative Assembly Administration Committee Services, 2001, p. 3). SB 446 provisions, codified in 2001 Chapter 300 Oregon law, did not address formal education level for broker licensing, but the state administered examination and criminal background check followed new pre-license real estate education requirements approved by the state real estate commissioner, i.e., “college-level instruction” on both state and national real estate topics, including law, contracts, financing, practices, and agency (Portland Community College, 2002, p. 136) Additionally, Oregon Administrative Rules (OAR) revised continuing education guidelines, i.e., 30 clock-hours of instruction every two years (Oregon Administrative Rules, Real Estate Agency, 2002, OAR 863.014.0055) and disclosure requirements (Oregon Administrative Rules, Real Estate Agency, 2002, OAR863.015.0215) in order to encourage real estate agents to incorporate additional ethics training into practice. While the Oregon Legislative Assembly intended SB 446 to improve representation by raising education requirements and more formally recognizing buyer agency relationships, legislative minutes from a senate rules committee public hearing on SB 446 indicated, Oregon Association of Realtors “worked strongly and proactively in developing SB 446 in conjunction with the real estate commissioner” (Senate Committee on Rules and Redistricting, 2001). In Chapter 300, 2001 Oregon Real Estate Agency law substantially changed Oregon Revised Statute 696 to adopt a transaction brokerage model (hereafter, references to Oregon Real Estate Agency, 2001 will include either the relevant statutory or administrative rule designation in short form, e.g.., ORS696 or OAR863). SB 446 provisions repealed the requirements for potential buyers and sellers to acknowledge their (non-binding) relationship in writing with an agent at “first substantive contact”, and replaced the signed agency acknowledgement with a requirement to provide potential buyers and sellers with a disclosed limited agency “pamphlet” at “first contact with each represented party to a real property transaction” (Oregon Real Estate Agency, 2001, ORS696.820). The legislative minutes from a house rules committee public hearing on SB 446 included an Oregon Association of Realtors representative’s comment regarding the agency disclosure, which indicated, “often the consumer does not want to use the forms because it looks like a contract”, and Oregon Real Estate Commissioner’s assessment, “it is difficult to enforce filling out the form” (House Committee on Rules and Redistricting, 2001). In addition, SB 446 allowed a third category of representation, i.e., “disclosed limited agency”, a relationship which would actually allow a broker to supervise affiliated licensees, who represent a given seller, buyer or multiple buyers and to become the “designated broker” in a transaction to represent both buyer and seller. In the limited agency relationship, the designated broker would be the disclosed limited agent, serving as a limited fiduciary to both buyer and seller during negotiation in a transaction, i.e., the broker would only disclose price, terms, and confidential information with written permission of the respective buyer or seller and limit broker liability in the process (Oregon Real Estate Agency, 2001, pp. ORS696.805, 810, and 815). In the transaction brokerage model, a real estate trade magazine columnist pointed out, “the listing broker can remain neutral in the transaction while designating agents from within the company to serve as advocates” (Evans, 2000). Disclosed limited agency, Oregon’s Real Estate Commissioner explained, requires both prior written company policy and consent from all parties and “only happens when (1) there is a transaction written, (2) where the buyer and seller are both represented by the same firm, or the firm represents two or more buyers offering on the same property” (Taylor, 2003, p. 2). Commenting on an apparent transaction brokerage model limitation, a real estate trade magazine columnist wrote, “The conceit here is that although the broker reduces liability by reducing advocacy, the agents of the broker, the listing agent and buyer's agent must also reduce their advocacy in order to protect the broker and themselves” (Evans, 2000). Although the transaction brokerage model has generated few complaints from consumers and brokers since 2002, according to the Commissioner, disclosed limited agency has affected the agent’s fiduciary position by allowing the agent to represent both seller and buyer or multiple buyers in a single transaction, and “the law places the burden on a company to decide by policy how it conducts its business within broader parameters” (Taylor, 2003, p. 2). Evans (2000) described a broad range of “non-agency” services a real estate company might offer to buyers and sellers under the transaction brokerage model, which has been “adopted by most states, as long as the consumer is adequately disclosed as to the nature of agency and non-agency relationships”. Discount brokers have recently proliferated in the residential real estate market and have provided non-agency services, which include posting a seller's home in multiple listing service databases “for $500 or less” and offering a menu of other low-cost services because “transactional brokerage allowed for third-party intermediation to slip through the barricades into the real estate transaction”. Moreover, the column continued, “listing brokers no longer performed as fiduciaries and no longer could command a fiduciary's fee for exceptional service, especially since they retained the right to represent both sides of transactions” (Evans, 2000). Unlike a seller who might sign a listing contract with a broker, establishing a fiduciary relationship based on loyalty, honesty and accountability, until either the property has sold, the listing agreement has expired, or the terms have been breached. A buyer, on the other hand, would rarely sign a legally binding service agreement with a broker (e.g., Oregon Real Estate Forms, LLC, 2002). The agency relationship would be established more by actions by either the broker or the buyer, often before an appealing property had been identified, and the buyer would remain a free-agent. Apparently satisfied with disclosure at first contact in the transaction, a majority of buyers have negotiated without exclusive buyer representation under both seller sub-agent and transaction brokerage models, yet a recent real estate trade magazine suggested, “a counter trend is beginning to show signs of growth - buyer's brokerages which only represent buyers are gaining strength and starting to expand across the country” (Evans, 2000). SB 446 also directed the Oregon Real Estate Agency to “provide for the advancement of education and research in connection with the educational requirements securing licenses for real estate licensees”, eliminating the “salespersons” designation on the one hand, and creating the “real estate broker” and “principal broker” designations on the other (Oregon Real Estate Agency, 2001, ORS696.445, ORS696.010). In an article written to clarify agency disclosure a year after SB 446 became operational, Oregon’s Real Estate Commissioner commented, “principal brokers must now give more thought to how they wish their business to operate”, and “affiliated real estate licensees must now become better educated in how their company chooses to do business and operate according to the company’s agency policy” (Taylor, 2003, p. 2). College-level business ethics education Looking at two empirical studies—one based on self-completed questionnaires, and the other based on short essay answers to specific ethical dilemmas—for insight into whether or not real estate agent behavior indicated that fiduciary responsibility was more than a marketing claim, Brinkmann (2000) suggested, real estate agents "tend to analyze and resolve professional life situations without clear moral reference" and "could benefit from a basic training in professional ethics and moral conflict management" (p. 171). Thoughtfully arguing that business ethics could and should be taught, Sims (2002) suggested, business school faculty would need to reach consensus on teaching goals and integrate designs to ensure that ethics would be considered a vital component of the curriculum by focusing on six areas: goals, relevancy, experiential pedagogy, classroom climate, debriefing and outcomes assessment. Shaw (2002), for example, provided a college-level ethics text, written primarily for business students with a basic awareness-level of morality, beginning with a survey of normative models, i.e., moral ideologies and justification theories relating to standards of conduct and practices. The text also presented economic distribution models, including capitalist and socialist approaches to ethical decision making, as well numerous examples for analysis, covering an array of historical and contemporary ethical issues. Richards (1999) acknowledged immediate positive effects from ethics modules already taught in management courses, but he suggested, business ethics lessons might be taught more effectively either through stand-alone required courses or through pervasive integration in classes throughout the business curriculum since his data indicated, student ethical standards decline after four-weeks following a limited ethics instruction via an ethics model incorporated into a management course. Incorporating ethics training through interdisciplinary inquiry Smith (1997) noted, contemporary social scientists have specialized to respond to modern social life, actively engaging in both empirical and experimental research either independently or cooperatively, to learn from ethical issues that face specific populations, including conflicts of interest in economic life. Since Social Science disciplines, including Accounting, Cultural, and Historical Studies all tend to examine both socio-economic phenomena and ethics through qualitative and quantitative research, often sharing analytical and reporting models, the growing body of scholarly literature indicated that interdisciplinary voices already pursue answers for ethical questions. Brinkmann (2001) noted, as an academic field, Business ethics should not only teach business students the right and wrong involving economic decisions but also be self-critical, avoiding ideology and pedagogy, which prescribe morality in dysfunctional ways. The author suggested both qualitative and quantitative empirical research, covering moralizing topics in business ethics issues. Accounting and business ethics Accounting, a business sub-specialty, Badaracco (1992) pointed out, regularly looks to management and economic disciplines for scholarly analysis and research models, often considering the individual as an economic agent and the corporation as an economic entity, much like an individual with ethical rights and duties to a company’s stockholders on the one hand, and the individual as a member of a larger “family” with additional moral obligations to “a company’s stakeholders”, involving choices between “right versus right” (p. 68). Donaldson and Preston (1995) examined the diverse literature justifying empirical, instrumental, and normative stakeholder conceptions, which described the “corporation as a constellation of cooperative and competing interests” (p. 66). Management scholars also argued justification for a complementary stakeholder view of individuals, cooperatively accomplishing economic measures of success through ethical managerial policies and practices with “simultaneous attention” paid to the “legitimate interests of all appropriate stakeholders” (Donaldson & Preston, 1995, p. 67). Bowie (2001) articulated a skeptical vision about the role of interdisciplinary topics, including stakeholder concepts in business ethics, which derived from U.S. adversarial business attitudes, compliance-based ethics (influenced by the 1991 Federal Sentencing Guidelines, which presumably influenced subsequent real estate related Oregon legislation), business ethics commercialization, and ambivalence towards ethics integration into college business departments. However, Bowie (2001) also suggested further research and teaching alliances between business and stakeholders to support “the vitality of the conversations” among stakeholders, including business professionals, governments, non-governmental organizations and scholars (p. 288). Suggesting possible opportunities for experimental research, longitudinal empirical study, and pedagogy, for example, Hawthorne (2001) made a case for integrating classroom discussions, reflections, and reactions to selections from primary and secondary moral philosophy texts, including ethics case narratives, into a group-written classroom specific code of ethics, which might also influence future cognitive, normative, and systemic ethical decision-making. Codes of professional conduct Real estate professionals, as do accountants, follow codes of professional conduct and often become fiduciaries for clients in the stakeholder framework. The National Association of Realtors (NAR), for example, which first published a code of ethics in 1913, subsequently amended articles and added standards of practice to respond to contemporary disclosure issues, including provisions to disclose dual limited representation in 1999 (National Association of Realtors, 2002, Article 1, SP1-12, 13). The seller sub-agency model in Oregon before SB 446 also included a written code of professional conduct with affirmative obligations including honesty, loyalty, diligence, and accounting derived from common law, cultural, and economic traditions—and consumers were required to acknowledge disclosure in writing at “first substantive contact” (Oregon Real Estate Agency, 2001, ORS696.805, 810, and 815). Under the transaction brokerage model, a statutory code of professional conduct was also included in the “initial agency disclosure pamphlet”, but disclosure would be “informational only” and not “construed to be evidence of intent to create an agency relationship” (Oregon Real Estate Agency, 2001, ORS696.820). In contrast to agency disclosure provisions written in both the NAR and Oregon codes of conduct, duties to the public, i.e., non-client consumers and all other stakeholders, have been narrowly constructed to comply with existing law (e.g., National Association of Realtors, 2002, Article 10, SP10-1, 2; Oregon Real Estate Agency, 2001, ORS659.430). Comparing 15 professional codes of ethics, including codes from accounting and real estate professions, Gaumnitz and Lere (2002) identified common ethical issues faced by business professionals, as well as common values, including honesty, legal compliance, and social obligations. Although the study made no value judgments either on provisions or between professions, most codes, including NAR’s, recognized the importance of conflict of interest disclosure but limited obligations to stakeholders, i.e., policies and practices written to avoid legal sanctions (Gaumnitz & Lere, 2002; National Association of Realtors, 2002, Article 10). Acknowledging the broad range of findings and diversity of opinions expressed in the sales and management literature, management scholars suggested professional codes of ethical conduct warrant further study in order to determine an impact on business ethics (McClaren, 2000). Codes of professional conduct generally reflected normative standards, but stakeholder models attempted to expand corporate conduct to incorporate interests beyond profit, which Evans (2000) suggested might become the central problem of transactional brokerage, because real estate professionals have found it difficult to “give up both sides of the transaction” (p. 2). Acknowledging the profit motive problem, Donaldson and Preston (1995) conceded, “There is as yet no compelling empirical evidence that the optimal strategy for maximizing a firm's conventional financial and market performance is stakeholder management” (p. 78). Cultural studies and business ethics Smith (1997) pointed out, Cultural Studies, on the other hand, has been grounded in critical theory to study and influence cultural phenomena in various societies, including consumer trends by combining sociology, communication, political economy, sociology, cultural anthropology, philosophy, film studies, literary and media theory, etc.. Sardar (1998) argued, “Cultural studies aims to examine its subject matter in terms of cultural practices” and complexities, constantly exposing “power relationships”, in order to “understand and change the structures of dominance everywhere, but in industrial capitalist societies in particular” (p. 9). In the wake of recent corporate, political, religious scandals, and general public distrust towards business professions, social criticism from consumer perspectives might help justify additional reforms in real estate, too. Cultural studies researchers often borrow methodologies from other academic disciplines to examine phenomena and relationships to ideology, ethnicity, nationality social class, and/or gender. Izzo (2000), for example, pointed to a decade of organizational research, which approached the study of ethics, “using a cognitive theoretical framework” (p. 119) and investigated real estate practitioners in terms of ethical reasoning, using a self-reporting qualitative survey and Kohlberg's cognitive moral development (CMD) model (prominent in psychological and sociological literature), and indicated real estate agents compare favorably with other professional and societal groups. The CMD approach was considered neutral to decision-maker philosophical orientations, and abundant empirical data within the organizational disciplines provided a literature rich in comparative norms and research procedures" (p. 138). Smith (1997) also pointed out, contemporary social scientists have specialized to respond to modern social life, actively engaging in both empirical and experimental research either independently or cooperatively, to learn from ethical issues that face specific populations, including conflicts of interest in economic life. Developing a scale for measuring consumer perceptions, Ramsey and Sohi (1997) determined that listening behavior demonstrated by salespeople correlated with trust and satisfaction, noting that, “one who listens to us respects us and, in turn, a mutual exchange process begins. Clearly, there are many positive and beneficial outcomes from this exchange, but of primary importance in the buyer seller interaction are the results that promote long-term relationships” (p. 129). In contrast to promoting long-term relationships, the transaction brokerage model has diminished the client-agent bond. Consumers have migrated to the internet, for example, and Evans (2000) described a power shift away from brokers towards buyers and sellers who have become empowered to self-advocate. Consumers have begun to seek opportunities to further limit representation, either by directly negotiating with each other, e.g., “for-sale-by-owner” or by indirectly negotiating through a discount or listing broker (Taylor, 2003, p. 2). Evans (2000) also commented, “Brokers who want to survive and thrive in real estate e-commerce must regroup and create new approaches to service delivery that not only works for the consumer, but also makes good business sense for themselves” (p. 1). Historical studies and business ethics History seeks to examine primary sources, when available, as well as secondary sources of information about actual events; historians interpret and report findings largely in narrative form, and revise tentative conclusions with new evidence and perspectives. Gula (1989), for example, emphasized the development of “moral imagination” primarily by setting various teleological (goal-driven) and deontological (rule-driven) normative models in opposition to each other, which revealed both congruencies and tensions, in order to inform reason, i.e., ethical decision-making (p. 137). Gula (1989) also examined moral dilemmas both throughout history and still commonly found in personal, interpersonal, metaphysical, and theological relationships, but moral theology does presuppose either acceptance or open-mindedness towards faith or spirituality as sources of reason. Business professionals and scholars, on the other hand, reasonably tend to look to the future, and Smith (1997) noted, during the late-nineteenth/early-twentieth century, significant societal and technological change influenced scholarship and spurred interdisciplinary dialogue, especially surrounding moral implications for biology, economics, education, psychology, and sociology in response to human behavior, nature, and innovation. Reviewing Patricia Werhane’s book Moral Imagination and Management Decision Making, Mahoney and Litz (2000), for example, cited World War II’s Oskar Schindler to expand Werhane’s thesis, i.e., business decision makers “need to deliberately and proactively expand their consciousness and, from this enlarged awareness, imagine and enact novel ethical responses” (p. 256). Schindler’s transformation included not only a vivid moral imagination but also paradigm shift away from “self interest, underdeveloped moral consciousness, a split between ethicality and legality, and an inappropriate reliance on role responsibility” (p. 256). Like other academic disciplines, history has increasingly considered interdisciplinary dialogue to clarify historical interpretations. Lavine (1984), for example, surveyed Western philosophers for new insight, combining excerpts from primary texts and interpretations into a cogent chronological overview of “Plato, Descartes, Hume, Hegel, Marx and Sartre” (p. 5), encouraging the reader to work through time in non-linear fashion by considering the conversation between great thinkers, in order to critically evaluate disparate views, to develop an appreciation for both everyday and singular applications of ethics, and to become informed through reflection and practice. Integrating disparate ethics models Describing the interdisciplinary character of ethics, Craig (1998) pointed out the importance of understanding, ethics is not an independent discipline and the central task of ethics, i.e., meta-ethics, which articulates disparate models beyond normative theories for ethical decision-making, should look to disciplines outside philosophy for guidance: art, economics, law, psychology, sociology, and myriad others. Conflicting ethical presuppositions and theories, including capitalist economic models, which resist ethics beyond duty to stockholders, for example, might also criticize socialist models, which emphasize duty to the public or stakeholders over profits; additionally, some historical interpretations have become controversial because either new evidence or new perspective have influenced narratives (Johnson, 1999). Business ethics researchers, Paolillo and Vitell (2002), conducted an empirical study investigating moral intensity of individuals in organizations and reported significant variances, which indicated a strong link between moral intensity and ethical decision making in business contexts and suggested future research and support for an argument to strengthen business school ethics emphasis across all discipline sub-specialties, including economics, which especially seemed to resist moral intensity. While other studies indicated negligible long-term impact on students, others pointed to possible improved long-term outcomes through more complementary teaching approaches, which resisted dogma and emphasized relevance to ethical decision making outside the classroom (Paolillo & Vitell, 2002). In order to further enhance the business curriculum, Rossouw (2002) argued that three disparate business ethics models, often situated in rival camps, actually shared similar objectives: cognitive competence, normative competence, and managerial competence, which are all required for ethical decision-making outside the classroom, and recommended a complementary business ethics teaching approach by examining model specific presuppositions beyond current interdisciplinary rigor. Moreover, Fairweather, Dixon & Trezise (1998) reviewed on-line business ethics education bulletin boards and websites, for example, and several resources cited in the article remained viable to address up-to-date business ethics issues, providing forums for on-going dialogue and helpful links to other references in the literature. References Badaracco, J. (1992, spring). Business ethics: Four spheres of executive responsibility. California management review , 34 (3), pp. 64-79. Bowie, N. (2001). 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