Punishing those involved in the Capitol riots falls on the courts, the state departments of licensing and individual brokers, should they choose to — not NAR. Here’s why.

Jay Thompson is a former brokerage owner who spent over six years working for Zillow Group. He retired in August 2018 but can’t seem to leave the real estate industry behind. His weekly Inman column publishes every Wednesday.

Jan. 6, 2021. No matter what side of the political aisle you stand on, that day will go down in history.

Whether you consider the activities of Jan. 6 a patriotic act of protest or an insurrection, it’s undeniable that participants broke laws and pushed ethical boundaries beyond the limit. Committing a crime has consequences; breaching the norms of ethics has implications. 

As expected in this day and age, those crimes and ethical violations are being tried in the court of public opinion. Some “convictions” have already been meted out, and real estate agents and brokers are already “serving sentences.” 

Libby Andrews, an @properties agent in Chicago, was fired. Jenna Ryan, broker at Jenna Ryan Realty in Frisco, Texas, who has been all over the media, claimed on Twitter two days ago that she shut down her brokerage due to death threats. One does have to question that claim given that 12 hours ago, she was promoting her brokerage on the very platform she used to announce its closure. 

The real estate social space is ablaze with commentary. There is praise for agents who participated in the activities of Jan. 6, and there are calls for them to lose their license. Some agents are demanding the National Association of Realtors (NAR) take action against participants; others are pointing out those agents’ constitutional rights to protest. 

NAR did issue a statement, with NAR President Charlie Oppler saying in part, “America’s largest trade association stands with our democracy and our nation’s centuries-old observance of peaceful protests and the peaceful transfer of power. What happened today at the U.S. Capitol was an assault on both.”

Yesterday, Inman reporter Andrea Brambila reported that the “NAR won’t rule out penalties for Realtors who ‘stormed the Capitol.

What should NAR do? 

The NAR recently adopted a new provision for the Realtor Code of Ethics, standard of practice 10-5, which states:

While this was — and continues to be — the subject of much discussion and controversy, SOP 10-5 is now a part of the code of ethics. Given that, questions have arisen as to its applicability to the events of Jan. 6.

It’s my opinion that 10-5 does not apply here. I can assure you someone just read that sentence and is now in the throes of a deep eye roll. Yes, there were likely shouts during the riot that crossed over to “hate speech.” But, importantly, 10-5 applies to hate speech directed at protected classes. Political affiliation is not a protected class — as defined by NAR and SOP 10-5. I fully realize political affiliation is a protected class in some jurisdictions, but it is not a protected class under the Realtor Code of Ethics. 

Ryan now infamously said, “We just stormed the Capital (sic). It was one of the best days of my life.”

Those words are not hate speech directed at a protected class. 10-5 does not apply.

Is saying you “stormed the Capitol” a crime? I don’t know; I’m not an attorney. Ryan claimed she never entered the Capitol, a claim later debunked when her own video livestream showed her inside the Capitol. Is actually “storming the Capitol” a crime? Many are saying it is. I don’t know; I’m not an attorney.

Editor’s note: It is, in fact, illegal to have unlawfully entered the Capitol with the mob on Jan. 6. Here’s more on why and what crimes were committed.

It’s not my job to determine if Ryan or Andrews, or anyone else present at the Capitol on Jan. 6 is guilty of a crime. Nor is it your job or NAR’s. We are not attorneys, judges or juries.

There has always been a great deal of misunderstanding about what the code of ethics says, does and enforces. Wade into any of countless discussions of agent behavior, and it’s not uncommon to see cries of “unethical!” bantered about endlessly.   

Your personal “code of ethics” quite likely considers committing a crime to be “unethical.” The Realtor Code of Ethics doesn’t approach the subject of crime. 

In fact, the word “crime” is only used twice throughout the code. Standard of Practice 1-9 states,

“REALTORS shall not knowingly, during or following the termination of professional relationships with their clients … use confidential information of clients for the REALTOR’s advantage or the advantage of third parties unless … it is the intention of a client to commit a crime and the information is necessary to prevent the crime … “ (My emphasis on crime.)

That’s the extent of crime being a code of ethics violation. Nowhere does the code say, “A Realtor shall not commit murder” or “No protesting!” or “You can’t storm the Capitol.” 

Not everything an agent does that is ethically, morally or criminally questionable is a violation of the code of ethics. The vast majority of those sorts of actions aren’t even mentioned in the code.

Nor should they be.

Whose job is it then?

If it’s not the NAR’s job to police agent behavior, whose job is it? In this country, that falls to the courts. As far as I know, neither Ryan and Andrews or any other Realtors or agents have been arrested for their actions on Jan. 6.

Will they be? I don’t know; I’m not a lawyer. Andrews already has a job with another brokerage. Ryan is saying that she had to shut down her brokerage, but she’s also saying she and her agents will take great care of you. Not my job, nor NAR’s, to determine which, if any, of her statements are true or false. 

Law enforcement, presumably in conjunction with district and federal attorneys, will decide who to arrest and what charges to file. The courts will then determine their guilt or innocence.

What happens after that is up to the various departments of real estate or licensing to determine. I think (but am not positive) that every state licensing authority has the requirement that an agent convicted of a crime has to report that conviction in a timely manner. That licensing authority — not the NAR — then determines the fate of the license status.  

Can a broker fire an agent for what they did on Jan. 6? Technically an independent contractor cannot be “fired.” But brokers absolutely have the right to separate an agent from their brokerage. And they can do that for whatever reason they see fit.

Ideally, crimes and activities that could result in separation are spelled out in the independent contractor agreement. My understanding, based on what my attorney told me when I was creating independent contractor agreements, is that they don’t have to be specified. (Brokers, now would be a good time to review your IC agreements with an attorney.) 

If you are separated from your brokerage and don’t believe that it was legally acceptable, don’t vent about it on Facebook. Pick up the phone and contact an attorney. 

This sordid mess

Personally, I find what happened on Jan. 6 abhorrent. You might feel it was the ultimate act of patriotism. We’re all entitled to our opinions. You might applaud the NAR for stepping in; you may find their involvement abhorrent. We’re all entitled to our views. 

I don’t think it’s the NAR’s job to mete out punishment for anyone that was at or in the Capitol on Jan. 6. That duty falls to the courts and the state departments of licensing. Whether a broker chooses to separate an agent is up to them. If it were me, I’d be making that decision in consultation with my attorney, but that’s just me. 

No matter how you slice it, our country is more divided than it’s ever been, with the possible exceptions of the Civil War and the civil rights movement. We are deep into very trying times. This isn’t the first time this industry has faced difficult discussions of race, equality, hate and politics. And, sadly, it won’t be the last time. 

Jay Thompson is a real estate veteran and retiree living in the Texas Coastal Bend, as well as the one spinning the wheels at Now Pondering. Follow him on FacebookInstagram and Twitter. He holds an active Arizona broker’s license with eXp Realty. “Retired but not dead,” Jay speaks around the world on many things real estate.

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