Pick the Most Idiotic Board Move

It’s Oscar Awards season in Hollywood and our athletes are giving their max to bring home Olympic gold.

Naturally, that brings to mind the inspiration all home inspectors and home buying stakeholders get from the Board of Home Inspectors (BHI) in Frankfort.

So, as Olympic sweepers follow curling stones over there, it follows that this New Year was the time for some medals here in Frankfort.

You might think of this as the new Board of Home Inspectors (BHI) first year review.  Only you get to award the prizes.

There was no obvious gold medal contender.   But it was a crowded race for last place.

We’ve tried to make it simple by keeping it down to just six contenders.  This is not the Kentucky Derby.  Contestants were limited to actual actions by the Board.  All the things the BHI did not do (no online renewals, no group E&O, no reciprocity, for example) did not count, and were cut.

You be the judge.  Vote now to award the First Annual Lead Turkey Medal for the BHI’s first year.

Here’s the line-up.  The Contestants Are:

#1 – The Board plays chicken – waiting to see if it’s cash gets “swept” away – again.

#2 – Board Says Prior Regulations Don’t “Make Sense.”  Imagine its Cure.

#3 – What the World Needs Now is a Brian O’Rear “Morals Clause” in Home Inspector Regulations.

#4.  The Little Home Inspector Locator That Never Could.

#5 — Six Home Inspectors Walk Into a BHI Meeting and….

#6:  Now the BHI Says It Can Tell You What to Say.

Contestant #1 – The Board plays chicken – waiting to see if it’s cash gets “swept” – again.

The Board’s cash has been swept three times before.  Why not four?

What does it take for a wake-up call?  The only thing that’s truly crazy, the old saying goes, is doing the same thing over and over and expecting a different result.

Would you believe the Board of Home Inspectors (BHI) sat on $120,000 cash all year?

Why not put the cash to work, or cut license fees if you can’t – instead of gambling on having any of it next year?  Ask the Board.  We have no idea.

There is only one way cash can get swept from the Board of Home Inspectors (BHI).  The money simply was not spent.  It’s just sitting there.  You can’t sweep money that’s been spent.

A disgraceful $300,000.00 was swept from cash the BHI left sitting around, since 2008.

It’s like déjà vu all over again.  Over $100,000 in cash – and often much more – has been left unspent by the BHI all year.  Nobody even made a motion to spend that tempting dough on anything worthwhile.

The biggest expense?  A totally unaudited five-digit swipe taken by the Kentucky Real Estate Authority (KREA).  KREA’s last bite was $55,200.00.  (“Printing” expense was extra.  No Amazon Prime with this bunch.)  BHI members are clueless about what it’s supposedly for.  (All they know is that KREA boards pay a “percentage” of KREA costs.)

What the BHI actually gets, on the other hand, for all that money is pretty clear.  It’s less than what it got when it paid less to the old Office of Occupations & Profession.  For that huge payout, the Board succeeded in acquiring meeting room that’s a little larger than your kitchen (and much smaller than its last 2) – 12 days a year – plus a part-time attorney with no background in real estate and a part-time secretary aka administrator.  It also kicks in to pay the wages of a new KREA Executive Director.

You may be wondering:  How much did our Board spend educating the public about the importance of home inspecting?

Zero.  Nada.  Zip.

How much did the Board spend making sure Kentuckians learn about lives, and property, saved from home fires because of home inspections?

Nada.  Zero.  Zip.  Is that a coincidence?

“Are they gonna come sweep us?” – and grab that $100,000+ — Board Chairman Welford “Bud” Wenk asked those well-funded KREA hot dogs at the February 13 Board meeting, just days ago.  (The Board already had roundly $300,000 in cash it was sitting on “swept” in prior budgets.)

“I have no idea,” came the reply from Executive Director Mike Elmore.

That’s the Board keeping your eye on the ball.  And our license money.

Of course, no one would have to ask, or even wonder about it, if the cash was not sitting there all year in the first place.

This is cash that came straight out of home inspectors’ pockets.  No tax dollars support the BHI.

Instead of playing chicken, or rolling the dice to see if its cash gets grabbed again, there is an obvious alternative.  The Board could spend it on something worthwhile.  Like public education, using radio and TV Public Service Announcement (PSAs).  Or sending brochures to agents and mortgage brokers explaining the importance of keep Kentuckians safe and out of money pits.

If this uber Inspired Board cannot figure out a single way to put its cash to work as it was intended to do, then it should cut license fees – and leave the cash in home inspectors pockets.

Contestant #2 – Board Says Prior Regulations Don’t Make “Sense.”  Imagine its Cure…

All those other boards must have been rim shot idiots, to listen to this Board.

What’s the cure for their regulations, that don’t make sense?

How about more regulations?

BHI Minutes rarely report what actually was said.  But one quote from the Board Minutes gives you a feel for their idea.  And we quote:

“Regulations are in the process of being reduced/combined to make them read better as well as making more sense…” January 9, 2018 Board Minutes.

All those dummies before couldn’t even “make sense” when they wrote the regulations!  Now they tell us!

Never mind that the regulations worked just fine – without a single complaint from any inspector, real estate agent, or inspection client – from 2006; when the original Board regulations took effect.  Prior Boards then amended those regulations in 2009, 2012, twice in 2015; and in 2016.

Obviously, those boards were just …The Gang That Couldn’t Shoot Straight.

This Board – this Board alone among all Boards – sees The Light.  Truly Visionary.

So now the Board naturally decided to just keep all that stuff (that makes no sense) and pile on some more.  (See Contestant #3 next.)  They’ve been calling this “Red Tape Reduction” in Frankfort, with Bevin appointees wearing round red lapel pins with gold scissors.

Want to know what they talked about piling on?  Lotsa luck.  All the Board’s Visionary Ideas are listed in the BHI October, 2017 Minutes – which are indecipherable.  http://bhi.ky.gov/Meeting%20Minutes/Meeting%20Minutes,%20October%2010,%202017.pdf.

It’s almost like they DO NOT want anyone to know.  Those October Minutes refer to pages,  numbers and documents that are not posted with the Minutes – instead of sections of the regulations that anyone could look up.  They could make it easier, like maybe using brail online.

Curious about the data and research driving all these changes?  Forget that.  There isn’t any.  The BHI has not asked for a single research report, or basic data, or legal memo about what works, and what has not, in the other 36 licensing states.  The first board, back in 2005-08, had counsel and other experts prepare careful written memos about options, cases, and the history of other regulations.

Not this new BI.  The new BHI also never surveyed home inspectors or other stakeholders to learn what they know.  They just launched into yet another round of tinkering with regulations, without a word to home inspectors or stakeholders.  Even though this was the deliberately blind leading the blind, you know why already.  It’s that 800 number to Divine Inspiration.  That needs no research, information, data, science, or history.  They know it all.

So, who – exactly – is writing these new Inspired Regulations?

Anthony Cotto.  Never heard of Anthony Cotto, The Inspired Board’s Inspired One?  He holds the title of General Counsel for Regulatory Affairs for the Public Protection Cabinet (PPC).  Not a home inspector.  Now you know everything the Board of Home Inspectors knows.  Cotto used to be with the Lexington office of a large, connected (Louisville) law firm called Frost, Brown, Todd (Full disclosure:  Steve used to be with the same firm, when it was Brown, Todd & Heyburn, years ago.  But Steve’s been inspecting homes longer than there’s been licensing here.).  Cotto’s background includes time served with a Senate Committee in Washington, D.C.

Cotto is being assisted by Board of Home Inspectors General Counsel Ryan Morrison.  (He’s also General Counsel to the Board of Auctioneers, also in Kentucky Real Estate Authority (KREA).)  Morrison came out of Dinsmore & Shohl, another large connected (Lexington) law firm.  Most of his work there was in product liability and environmental cases.  He graduated from UK Law School in 2004 and says he’s “only had one home inspection in my entire life.”

 

In January, the Board Minutes said “Ryan and Tony are working together on the changes that were worked through in the October meeting.”  You read that right:  October.

Uh, this is February, next year.

Is there some reason this Inspired Board cannot write?

Contestant #3 — Would the Board actually adopt a Brian O’Rear Memorial “morals clause” in our regulations?

Just guess what the Board voted.

Gotta have it.

There aren’t enough goofy regulations already.  We’ve got a whole, long Standards of Conduct regulation, adopted – sometimes word for word – from SOP Code of Ethics.  That’s not enough.  No sireee.

Now, the Board wants to save you from yourself.  Just for starters.

It voted to add a new regulation that would let it punish home inspectors for “engaging in activities that may discredit themselves.”

In October, when the Board was busying itself rewriting regulations yet again (all those prior boards were such dummies, right?), it voted to add a new item of forbidden conduct to the Standards of Conduct regulation, 815 KAR 6:030.

The new reg, in full, would prohibit:

“Engaging in activities that may harm the public, discredit themselves, or reduce public confidence in the profession.”

For that, you could get your license yanked – even if you have no idea what it’s talking about.  (Neither does the Board.  Keep reading.)

Where do you start with a lamebrain idea like this?

Is it even worth asking “Does any statute give the Board any authority to protect me from ‘discrediting’ myself?”  Or, “is this the Board’s idea of protecting home inspectors?”  Really?  From themselves?

Or, you might ask, “name an example of conduct that would violate that rule?” as Steve did at the October Board meeting.

“I guess we’ll wait and see,” was the answer from Brian O’Rear, the Board member who dreamed up the new rule.  That sure cleared that up.  (That’s not the only reason it’s called the Brian O’Rear Memorial Moral Clause.  O’Rear confirmed he sold his home inspection business at the end of last year.  So he won’t have to live with this.  He’ll be getting a degree instead.)

“What would violate this rule that is not prohibited by a Standards of Conduct in the regulations now?” Steve asked, pressing the point.

No one on the Board had any example.

“You don’t have any idea?” Steve inquired.

Dead silence.  Not a word from O’Rear.  Or the BHI.  (You won’t see that in the Board’s cleansed October, 2017 Minutes but PLI tapes all Board meetings, as you know, and the quotes are from the tape.  Don’t even get us started on what the Board is afraid of that moves it to avoid taping its meetings to have an accurate record.  Every other licensing board under KRS 198B tapes meetings.)

The problem here is the most basic, foundation rule around.  (That’s not counting the idea that no statute authorizes the Board to adopt such a rule.  The Board cannot adopt a rule requiring inspectors to go to church and cleanse their souls either, for example.  Duh.)

That basic foundation rule is called “fair notice.”

Who knows exactly what would violate a goofball rule like this?

The government has to say exactly what is against the law before it can come down on anyone for “breaking” the law.  If a government agency is going to punish people for breaking the law, it is essential that people know what is against the law.  You can’t just make it up as you go along.  If you can’ tell when you’d break it, what’s the point?

Worse still, vague junky language like “discrediting” or “reducing” the confidence fairy are not measurable, objective standards.  They are shifting, ambiguous targets – often in the eye of the beholder.  Do ugly Internet posts make the grade?  Is it a “discredit” or something that “reduces public confidence” for an inspector to go through bankruptcy?  Or be “blacklisted” by local realtors – as Board Chair Welford “Bud” Wenk said he has been?  Wenk might think it’s a badge of honor, but this rule does not ask what is good or true, it just asks what the “public” thinks and what “discredit” means.  Does that qualify?  Why not (or why)?  Is it a “discredit” or does it “reduce public confidence” for an inspector to be sued for negligent, or fraudulent, work – as several Board members have been?

If no one knows what the rule forbids, how can anyone make sure they are doing what they are supposed to be doing?  Highway signs must say “Speed Limit 65” – not, “We’ll arrest you if we think you’re going too fast for his taste.”

Otherwise, this is just a hunting license.  The truth is:  “morals clauses” are not rules.  They’re tools – to “get” people.

In fact, that is exactly what “morals clauses” always have been in American history.  In case you’re wondering where rules like these were invented, look no further than Hollywood.

They were born in 1921 as a “morals clause” in Hollywood contracts.  (It’s one thing to put it in a contract between consenting adults.  It’s entirely different to have an unelected government board impose it.  This Board has no idea of the history or source of this “morals clause” rule – or how it was used and abused.  Unlike the first Board, which had its lawyer write careful memos on regulations in the other 38 licensing states, this Board has never had its attorney research any regulations or changes.  It has that Divine Inspiration going on, you know.  Who needs data or facts or history?)

It’s no secret how well Hollywood’s morals clauses panned out.  Thanks to Hollywood’s morals clauses, today everyone looks up to the pristine standards of behavior, angelic character, and exemplary morals that fill the tabloids from those Hollywood folks – straight down to Harvey Weinstein in today’s papers.

 

The new regulation is close to the original, landmark morals clause in famed actor “Fatty” Arbuckle’s 1921 contract with Universal Studios.  That clause said Fatty “agrees to conduct himself (herself) with due regard to public conventions and morals and agrees that he (she) will not do or commit anything tending \ to degrade him (her) in society or bring him (her) into public hatred, contempt, scorn or ridicule, or tending to shock, insult or offend the community or outrage public morals or decency, or tending to the prejudice of the Universal Film Manufacturing Company or the motion picture industry.”

Sound familiar?  Here’s how that played out:

Arbuckle was one of the highest paid Hollywood stars in silent films.  He discovered Bob Hope and Buster Keaton, and mentored Charlie Chaplin.  That counted for nothing when he was accused of rape and murder in two trials that a publicity hungry District Attorney (running for Governor) took to a jury, twice getting a hung jury, and then a third time, which acquitted Fatty – and, extraordinarily, gave him a formal written apology from the jury.

But it was too late.  It was a 1920s style #MeToo moment.  Fatty’s career was ruined.  The newspaper had a field day running with scandalous accusations at his expense.  The (largely missing) stories when he was found innocent were too little too late.

In general, “morals clauses” mainly kicked in to destroy often innocent targets.  The target may not have broken any laws, so the attack of last resort what that he was a “discredit” and “disgrace.”  Morals clauses were open season in one generation after the next.

What we really need is a new regulation for a new way for the Board to beat up home inspectors.

As a matter of fact, let’s think this through.  If anything “may harm the public, discredit themselves, or reduce public confidence in the profession” – as the proposed regulation puts it — you might just vote for the Board to be charged first.  For years, the Board failed repeatedly to get unlicensed home inspectors off the streets.  For years, it has exposed the public to “harm” and “reduced public confidence in the profession” by failing to assure the public is informed about the important protections home inspector deliver.  For years, it has exposed the public to “harm” and “reduced public confidence in the profession” by failing to set up a Client Protection Fund, like those at the Real Estate Board and the lawyers’ Bar Association.  For years, the Board has exposed the public to “harm” and “reduced public confidence in the profession” by failing to make affordable group E&O coverage available for all home inspectors.  (Check out the Oct., 2017 Minutes, for example)  From day one, the Board has withheld location info that would help Kentuckians get the home inspection help they need in time.

And that’s just for starters.  “Discredit”?  “Disgraceful?”  You vote.

Contestant #4.  The Little Home Inspector Locator That Never Could.  Or, Would They Really Launch an Online “Inspector Locator” that Hides Phone numbers, Addresses, and Email?

Oh, yeah.

For over 15 years, inspectors have been waiting for the Board to help Kentuckians find nearby home inspectors with an online search tool.  You hear Board members spouting sanctimonious Pablum all the time about how their job is to “protect the public.”  Maybe they just do not get it – that the primary way the Board protects the public is by making sure Kentuckians can get their homes inspected, on time.

It is not like it takes a Steve Jobs to build a search tool to locate 475 home inspectors by zip code, or county.  All that data has been sitting in Board files for over a decade.

So, you just plain have got to love this over-the-top BHI-DPL joint screw-up.

They actually put an “Inspector Locator” tool on the BHI web site.  At last!

The new “Statewide Search Function” appeared on the BHI website, back in December, 2016 – January, 2017 — right after the old Ky. Bd. of Home Inspectors was abolished and the new Board of Home Inspectors (BHI) was created by a Dec. 1 Executive Order.

No one told home inspectors.  As usual.

So, what happened next?  The bureaucrats behind it started whining that home inspectors did not sign up.  But why should they have to “sign up” in the first place?

That, of course, is entirely ass backwards.  The whole point of a online search tool on the BHI website is to make it easy and quick for consumers to find the nearest home inspectors.  After all, all that license information is public record.  KRS 61.871 (the “basic policy” of Kentucky “is that free and open examination of public records is in the public interest.”)  It helps protect the public from fire traps and money pits to get them the inspectors they need and want.

Even if anyone found the “Statewide Search” on the BHI website, when they searched, all they got was a name – no way to contact the inspector.  Contact info was set up in columns, and all of them were marked “not public.”  Dumb.  Not just contrary to Kentucky’s “basic policy” but dumb too.

Why set up a “Statewide Search” if no one can contact the inspector they find?  Because inspectors did not click a switch to make their contact info “public.”  When no other bothered to tell them how.  Dumber.

Today, no one can find it, or what’s left of it.  And even if they do, it’s still “not public.”  Unless an inspector goes in and changes it to public.  Which no one has mentioned to home inspectors since the “Statewide Search” blew up in January, 2017.

This is, of course, not just dumb as a stump, but it flies in the face of Kentucky’s “open records” policy and laws.  Since when is basic license information “not public”?  Anyone who thinks this is “protecting the public” needs to get a grip.

If inspectors wanted to go in and change their “e account” to “public,” that is an ordeal in itself.  With no online help, inspectors first have to find Department of Professional Licensing (DPL) “online services.”  (new account registration is at:  https://oop.ky.gov/Eservices/MyAccount/Newuser.aspx.)  Weirdly, there apparently is no Ky Real Estate Authority (KREA) web site.  (And the path to license verification still is http://oop.ky.gov/lic_search.aspx, at a web home page that says Public Protection Cabinet Office of Occupations and Professions, even though OOP was abolished Dec. 1, 2016.  The BHI home page used to have a rundown wood shack.  Now it has the kind of house no Kentuckian lives in – or any licensee inspected.  It’s not a home; it’s a state government building — the Kentucky Governor’s Mansion.  Seriously.  Typical consumer, typical home inspection, right?)

 

Then inspectors have to set up a bogus account.  All you have to do to jump that hurdle is enter your “OPID” – whatever that is – or, worse yet, your SSN.  (Social Security Number on a public state government website?  Seriously?)  Have you given up yet?  Every home inspector except a handful have.  And that includes all the BHI members.

This bizarre architecture turns into dumb erected on dumber when Kentucky consumers try to find a home inspector on the BHI website.  Basically, it’s impossible.

Has the BHI gotten to work making sure Kentuckians can find a nearby home inspector and get in touch in time to get the inspection done?

Probably, you already know the answer.

There is not even a tab or a menu on today’s Board website to help consumer locate a home inspector.

Dumbest.

Now that is “protecting the public.”

Contestant #5 — Six Home Inspectors Walk Into a BHI Meeting and …

Back in July, 2017, roughly a dozen home inspectors showed up at the BHI monthly meeting.

That was record-setting attendance.

Inspectors at the meeting included:  Larry Crawford (Crawford Home Inspection, Inc.); Erby Crofutt (B4U Close Home Inspections); Allan Davis (Elite Home Inspections); Ben Hendricks (ABI Home Services); Steve Keeney, Esq. (PLI); Ken Osborne (Home Inspections, Inc.) MaryAnne Tonini (Home Inspections of Kentuckiana); and G. Steven Underwood (Signature One Properties).  Also at the meeting were Helen Daugherty (an agent from Remax Associates) and Cathy Miller (CBM), the first agents who showed up at a Board meeting in a decade.

Instead of the customary courtesy of hearing what guests came to say at the beginning, the BHI kept everybody waiting until the end of the meeting.  All the Minutes recorded about it is at the end, starting on page 4.  (Studies show that rudeness spreads quickly, like the common cold.  As researcher Dan Wallace wrote:  “Once infected, we are more aggressive, less creative, and worse at our jobs.  People must have the guts to call it out.”)

The inspectors came to complain about inspectors being “blackballed” by listing agents.  The fundamental problem is selling agents trying to tell buyers that they will not be allowed to use certain home inspectors.

The agents were there to complain about an obnoxious posting on the KREIA (the CE vendor, not KREA) web site   But you would barely guess that from the Minutes.  “I just met you today Mr. Osborne.  You talked about where agents are influencing the seller.  I guess we all know how this all started,” said ReMax’s Helen Daughtery.

“I don’t believe this started with one individual,” Chairman Wenk interrupted.  You might think this meant the Board had some research and data behind its claim.  Think again.  It didn’t even listen to her.

“We need to have one committee where we can all sit down,” Ms Daughtery added.  “Some of the agents talked with attorneys here in town.”  (You might say she got her wish, in name only.)

“There’s so much lack of communication.  When you have home inspectors putting on social media that he’s gonna have a new game called the kill the agent…,” she was continuing.

“We’re not going down that road,” Wenk interrupted again. (You will never find those exchanges in the Minutes; their from PLI’s meeting tape.  All the July Minutes said about Ms. Daughtery’s comments here was the she “spoke from the floor and said that home inspectors and real estate agents need to sit down together to address this issue.”)

The Board could have said more.

The comments started with Osborne saying “there’s been a lot of restrictions, realtors are not allowing home inspectors in the property, there a lot of home inspectors who want to go after this legally.”

“We as the Board understand why this is on the agenda.. It happens in every market.  What we’re going to do is set up a Committee and come up with a way to approach this to figure out a way this happens,” Board Chair Wenk replied.  (That’s from the PLI tape recording, not the Minutes.)

“Chair Wenk said that a committee will be set up and they will come up with some recommendations,” the Minutes said instead.  http://bhi.ky.gov/Meeting%20Minutes/Meeting%20Minutes,%20July%2018,%202017.pdf.)

Brian O’Rear was named the “committee.”  (He’s the only BHI member working on a doctoral degree.)

Well, it’s about 8 months later.  O’Rear says he’s resigning from the Board since he sold his home inspection business in December.  (It’s not clear what he’s waiting for.)

So where are the “recommendations”?

We’re guessing you already know the answer:  What recommendations?

This listing agent “blackballing” problem has been festering for quite a while.

Steve urged the Board to hold a hearing and try to learn exactly what’s going on, all over the state.  But, of course, the Board never did.  It knows all, see all, and never needs a scintilla of actual data.

Ken Warden, a Realtor®, MAI appraiser, and advocate of the first home inspector licensing law, was KREA Executive Director (ED) back in July.  https://homeinspectionschool.info/2016/12/warden-takes-helm-will-lead-new-ky-real-estate-authority/.  (He was fired just before the Sept., 2017 meeting, less than a year after being appointed.  The new ED, Michael Elmore, replaced him for the October meeting.  So much for an ED from the KREA professions.)  Warden knew the problem is bigger than it seemed – or the Board realized.

The July Minutes report that “Executive Director Ken Warden said that the same problem exists in Louisville with appraisers. He said real estate agents were saying that the appraisers were low-balling. He said that, likewise, the real estate agents do not understand what the home inspector is supposed to do. He said that there is a lot of misinformation and that it is important that agents know what you are there to inspect; what the inspector can say and not say.”

“MaryAnne Tonini, of Home Inspections of Kentuckiana, said the reality is that it is not about what the home inspector can and cannot do, but it is about allowing the purchaser to hire who he/she wants to hire, because the property will ultimately be their house,” the Minutes added.

She and Ken were right.

They put a fine point on the problem.  It’s a growing problem across the region. (Tonini, a talented home inspector with years of experience, comes across the river from Indiana.  It’s going on at the Tennessee borderline too.  Wenk said he had been “blacklisted” down there too.  He’s not the only one.  “All three of us [BHI members] know exactly what you’re saying.  We have had it happen to us,” Wenk told the crowd.)

So what action do you think the Board took since then to cure the problem?

Uh, well, …it has never come up again at a BHI meeting.

O’Rear wasted his time going to a Real Estate Board meeting or two, but he had no authority, or direction, from the Board about what to do.  (If you do not have a target, you’re really likely to miss.  He also mixed apple and oranges, asking to speak at the August 17, 2017 Real Estate Board meeting about an “ethical” issue – sellers listening to what inspectors tell their buyer clients.  That makes you double likely to miss.  Guess what happened…)

Uh, well, it has never come up again at a BHI meeting.

Good thing the Board hopped right on that one!

Contestant #6:  Now the BHI Says It Can Tell You What to Say.

First Amendment?  What First Amendment?

They don’t print the U.S. Constitution (or the Kentucky Constitution) in the little printout of Laws & Regulations that the BHI uses.

Maybe they should.

A well-meaning, but seriously insecure, home inspector sent an inquiry to the Board that it took up at its December, 2017 meeting.

“Discussed an inquiry made by a HI regarding the offering of a pre-listing walk through for clients,” the Dec. 12, 2017 Minutes reported.

http://bhi.ky.gov/Meeting%20Minutes/Meeting%20Minutes,%20Dec.%2012,%202017.pdf.

That left out two important facts from the inspector’s letter:

First, the inspector wrote that his flyer marketing the “walk-through” said it was a “one 1 hour on site walk” with the client around the home.  He said it was different from a prelisting home inspection because it’s just a walk-through – there was no written report.

Second, it said the fee for the walk-through was $150.  That got a reaction from Board members.  They thought he was just undercutting prices, or maybe trying to “avoid liability.”

Neither of which – even if true – is any of the Board’s business, incidentally.  Just try to name a statute that gives the Board any jurisdiction or authority to consider prices, or steps a professional takes to manage liability.  (In fact, the inspector probably is open to greater risk.  He’ll end up in a “he said-she said” pissing match, with no written report to document his findings and professional opinions.)

That did not stop the Board.  And neither did the Board’s lawyer.

“It was determined that this is not an authorized practice for a home inspector to perform, especially if he/she are advertising it as a service but no report is written/provided,” as the Minutes put it.

Stop the music.

Since when is there any “unauthorized practice” by a licensed home inspector?  That’s is a contradiction eating its tail.

Certainly, there is “unauthorized practice” — which is inspecting, or claiming to, without a license.  But that’s a whole different kettle of fish.  The BHI has not taken one of them off the streets.

That’s not all.

Remember the Constitution – the one they left out of the Board’s little Law & Regs booklet?

It has something to say about this – known as the First Amendment.  (It’s just “Section 1” in the Kentucky Constitution, echoing the First Amendment.  Ky. Const. Sec. 1 says “All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:… Fourth: The right of freely communicating their thoughts and opinions.”)

Memo to Board:  That trumps any of these regulations, and all state laws, not to mention Board members spur of the moment opinions.  Period.  The end.

Every Kentuckian has every right to speak freely, and say what he wants.  He also has every right to charge money for it (unless, of course, it violates some law, like giving a speech revealing atomic secrets to North Koreans).

A Board that never bothers to gather the facts and the law is doomed to this kind of law breaking or unlawful action.  That’s particularly true when they start meddling in prices.

The Board’s take on the inspector’s inquiry was simple.  “I’m just trying to find a legal way to tell the guy not to do it,” as Chair Wenk put it on the meeting tape.

News flash:  That is illegal.

The Board will not, of course, send out a notice to all home inspectors that it ruled it was “unauthorized practice” for a licensed home inspector to do an economical oral inspection report, during a “walk through,” for a budget price like $150.  Heck, it only put half that in the Minutes!

Besides, the Board never has told inspectors when it makes decisions, including industrywide ones like this.  (Remember, this is a Board that does not even know its own precedents.  Even though the KBHI voted to have its lawyer summarize and publish its decision, that only lasted two months.  The Board has never published, much less indexed, any of its decisions – unlike, say, the Real Estate Board.  You could not look up a BHI case if you wanted to.  Neither can the Board, or its lawyer.  “I have people calling in all the time asking me about a case and the answer is I don’t know because I have no data base,” Board counsel Ryan Morrison told the BHI at its Feb., 2018 meeting

Even though the BHI is certain it knows all and sees all, Visionary & Illuminated as it is, it may not realize that more than a few home inspectors already do exactly the kind of cheap verbal reports that this inspector made the mistake of asking the Board about.

If the Board put out word of an unconstitutional decision like this, it might actually get the kind of useful feedback the Board constantly avoids – and desperately needs.  It might even get the adult supervision required by the North Carolina Dental Licensure Board Supreme Court decision, and Ky. Executive Order under it, that created this board.

Where is the board of home inspectors in Frankfort?

 

 

 

 

 

*****

Editors Note:  The opinions expressed are those of the author, and not necessarily PLI or any of its affiliates, officers, or members.

              The author also wishes to be clear:  Not one word of this is about any individual.  It’s not personal.  It’s all about policy.  This is a government agency.  It’s behavior in its first year gives every indication it needs home inspector input – and adult supervision – in the year ahead.

              For years, we’ve known and liked all three home inspectors on the BHI individually.  But there’s something in the water in Frankfort.  Take a reasonably competent home inspector, drop him into the Frankfort swamp and – suddenly, almost over night – they start behaving like bureaucrats.

              Generally, the prime cause is that they are in over their heads.  State government is like an alternative universe.  They’d be smart to study up and learn how it works.  But they don’t.  Typically, they don’t even really study the laws involved.

              They forget the long term, drop the important policy initiatives, and start spending their time shuffling paper.

              Every neighboring state has had online license renewals for years.  Not the BHI.  Board members here keep saying they do a better job than computers.  But the science and the data are beyond doubt.  That is not true.  Computers are faster, more consistent, and more accurate – hands down, by a wide margin.  Tennessee and Indiana inspectors file license renewals online and routinely get their licenses in a matter of days.  No waiting for a monthly vote, or an unpredictable personal review by a BHI member who often is a competitor.  Not Kentucky’s BHI.  Everybody gets to wait and the BHI, every month, spends the majority of its meeting looking over stacks of paper license renewal forms.  Board’s did that last century.  The BHI is years behind the times — and the neighboring states.  Oh, sure, BHI members complain from time to time.  They’re still complaining, years after the Indiana and Tennessee boards (just for example) actually got it done.

              We could go on.  Every inspector has favorite examples.  For years, inspectors on the borders have pushed for the BHI to actually get license reciprocity up and running.  But they never do.  Larry Brown, the new Commish of the new Department of Professional Licensing (DPL), told the Board a year ago that he was all on it, and pulling together a meeting with officials from neighboring states to get it done.  You know the result.  Nada.  Zip.  Zero.  Your license dollars at work.

              It’s a new year, with a new BHI.  They just had their first annual election of new officers. 

              It’s time to make it work – as a matter of public protection policy.