The Worst of Times, The Best of Times

KBHI 2009

KBHI's OUTLAW CHAIR:

One More Law the Board Won't Follow

     "Each year the board shall elect a member as chairperson and a member as vice chairperson," Kentucky law says.

     That's KRS 198B.704(10).  It's one of only 20 short laws that govern home inspecting in Kentucky.  They're not rocket science.  All 20 aren't even as long as a Classics Illustrated comic book.

     Yet, plain as it is, there was no new chair or vice chair elected this year.

     It was the first time the required annual election ever has been skipped by the KBHI.

     The last time the board elected a chairperson and a vice chairperson was Sept. 9, 2008.

     KBHI elections of officers always are September of each year.  That Sept. 9, 2008 meeting was when Linda Swearingen "nominated" Green and Patton as chair and vice chair, and the two were elected.  The vote might have been different if anyone knew it was for more than a year.

     But a funny thing happened when the annual election came up this year, on Sept. 8.  The story in the board's approved meeting Minutes (online at www.bhi.ky.gov), quoting every word, goes like this:

     "An election of officers was held.  Mr. Bone made a motion to leave Mr. Green and Mr. Patton as the two board officers.  The motion, seconded by Mr. Patton, carried unanimously.  Some additional discussion took place, after which Mr. Bone withdrew his previous motion."

     In other words, there was no "election" of chair or vice chair.  Bone's motion to "leave" Green as chair and Patton as vice-chair got passed - and then pulled.  After all that, nothing happened.  Except for recording an embarrassingly blatant, feeble attempt to break another law. 

      No one knows what Bone thought moving to "leave" the chair and vice chair meant.  But one thing is plain as day.  He definitely did not "nominate" them for "election" to second terms - and the Board rushed not to "elect" them for a second term.

     So what was so wrong with simply doing what the law says - "elect" a chair each year?

     Is there any part of "Each year the board shall elect a member as chairperson and a member as vice chairperson" that is too hard to get?  PLIs Law Course teaches how to read those words.  "Shall" is mandatory.  It means "must." 

     The answer was simple.  In case you had not guessed, the board did not want to follow the law.  Again.

      Sigh.

     Here's why they got tangled dancing around the law.  The "chairperson and vice chairperson shall serve in their respective capacities for no more than one (1) year consecutively and until a successor is elected."  KRS 198B.704(11).

     The rule is simple.  A KBHI chair or vice chair is prohibited from "serving" two one-year terms in a row, "consecutively."

     But guess who is "serving" today, 15 months later.  The same two now "serving" as the board's only officers since Sept. 9, 2008 - one year and going on 16 months already, way past the limit.

     "Ah, but," the story goes, but, but, the law also says "and until a successor is elected."  Does anyone seriously believe that means they can serve forever?  Or even one more year?  Of course not.  

     Not whenever the board feels like it.  Each year.  Period.  If the Board obeys the first law by electing new officers each year, the second one only kicks in for a few days or weeks.  Simple rule, right?

     So why didn't the election happen?

     Bone's motion to "leave" Green and Patton as chair and vice chair basically tried to use the second law's last six words - "and until a successor is elected" - to excuse breaking the first  law, mandating elections of officers "each year."  But that just did not cut it. 

      Now, remember "some additional discussion took place, after which Mr. Bone withdrew his original motion" (from the Board's minutes)?

     Interested in exactly what "some additional discussion" actually was?  We were there (and, right, no other law instructor was ). 

     The board's attorney had a simple opinion of Bone's motion.  "It concerns me to have any one individual serving for another year," the board attorney told the Board, politely soft pedaling. 

   Green claimed there were "no willing nominees," as he'd prearranged.  The Board's attorney was not impressed.

     "I don't think it comports with the statute to say you're going to serve another year," said the attorney.  The Board can't say it wasn't told.

     Board member Mark Schmidt, the Home Builders rep, tried to salvage by saying it would be OK since "that way we've got a chairman for the year."   The Board attorney did not salute.

     "I don't think that's the intent of the statute," the Board attorney said flatly.  Now they've definitely been told.

     Then Bone's motion was withdrawn.

     So, why no election?  The short answer is:  this year's annual election of officer's did not happen to ... avoid breaking the second law, against an officer serving "no more than one year" ... by breaking the first law, requiring an election "each year," instead.  Got it?

                      "Acknowledging" Is Not "Electing."   

     Once it was obvious the board would break the law requiring an election, Board member Mike Powell (DHBC Commissioner Moloney's delegate on the KBHI) tried a Band-Aid.  He moved to "acknowledge" Green as chair and Patton as vice chair, whatever that means.  The statute calls for electing, not "acknowledging."  Presumably, the idea is that if the two pretend to be chair and vice-chair, the board will pretend too.  You'd have to call that a clearly blurry idea.  The Board approved.

     You'd think the rest of the board would have spoken up.  Home Builders, for example, have a real interest in the Board following the law.  Same for the Realtors, though their Board seat was empty then, and now (there are an unbelievable 4 vacancies, plus one member sitting on an expired term).

     No one even fully knows the ramifications of the mess they've made.  Since the chairperson, not a law, has to "establish" the Board's meeting, a pseudo chair presumably could only establish a pseudo meeting, just for starters.  It's probably like skirting on manufactured homes -- faux brick does not faux the public or inspectors.

     Of course, if the meeting is not "duly constituted" according to law, it could not take "official action" under KRS 198B.704(17).  If could not take "official action," then it could not act on new regulations or approve providers, courses or credits.  Exactly where a court  would rule that it ends is nearly unpredictable.

     This hardly is a small, minor detail.  The Board is rewriting all four home inspector regs.  The important one, the Home inspector Standards of Conduct at 815 KAR 6:040, is in the works and the Board is winging it.

                                 Special Meeting

     The pseudo chairman scheduled a pseudo special meeting for Wednesday, January 6 at 9 am at the Division of Occupations and Professions, 911 Leawood Drive, Frankfort.

      They plan to rewrite the Standards of Conduct, on the fly, all by their lonesome, short-handed, parked in an echo chamber, hatches battened, determined not to let the public talk at public meetings.  By all means go, if you can; just don't expect your Board to listen.

     For the first time, at the December meeting, the Board suddenly refused to make draft regulations public anymore.

    "In the past, we have provided copies of our packets to our guests," proto chair Green recited at the December, in another obviously  prearranged move (never mind board members are supposed to meet and decide only in public, unless they vote in public to do otherwise for a legal reason).  "The agenda packet is not public record," the board's new attorney chimed in on cue, reeling him back on script.  (In case you're interested, the agenda packet is a public "record" in Kentucky law, unless some narrow exemption applies, which is the exception, not the rule.)

     So, in the spirit of openness (which is Kentucky policy), and  helping people follow discussion of changes (like "on page 3, line 10, change 'yes' to 'no'"), the board scurried to hide those papers.   "Keep it from the public until after the board meeting and if they want the contents then submit an open records request," they said.  That's the spirit!

     The board has hit on a time-tested formula for brewing trouble.  It never posted a draft regulation on its website.  It never asked for comments.  It never held a hearing or used a survey to get feedback from inspectors or the public.  It has done zero research.  It has no clue what other states have, what worked, what was litigated, what the cases are, or even what crashed and burned.  It has not one memo from any professional checking out the regs it's revising  for no particular reason, or comparing changes to other states.  No memo addresses any proposed change either.   Truth is, they'll probably pull the changes out of thin air, on the spot, in a few hours at  that one  Jan. 6 meeting. and expect everyone to take that kind of work and care seriously.  Seriously.  Only mere mortals have to research, review, study, listen to the public, or revise.  For this KBHI, it's like Moses.  All the changes will come down, zap! like lightening, on their concealed tablets, live, all at one meeting.   If you don't believe it, you haven't been paying attention to this board.

     Since it vaporized $100,000 of your money without a trace,  you'd think it might take a flyer buying something of value -- like a little research and feedback -- instead of just spending on itself.  What's to lose?  Maybe pride, but some folks are proud they do good research and careful work.  Especially with four vacancies (two inspectors, one Realtor, and the perpetually MIA public member), it could dawn on someone that the statute's 10 heads are better than six.  But what better time could there be for an illegal chair and vice chair to monkey with the rules?  In the end, the overall goal is flatline simple: if they can't stop breaking the law, how about changing  the regs to buy some excuses.  Quick.  Before the four missing members show up, and a new (legal) chair and vice chair get elected.

     Alternatively, there's always musical chairs.  Natch.

                            The Bigger Picture  

     At the end of the year, it's not just about obeying the law.  OK, this "holier than thou" KBHI uses its imaginary disciplinary "rules" to act as though lowly inspectors can't read the same laws the Board breaks.  Sure, they made a hash of this year.   But, jeepers, it's Christmas.   They deserve some compassion.  Powers knows the law, and is starting to speak up.  Welty asks the tough questions; he just won't walk the plank, even with his term expired.  Schmidt has no need to go down with the pseudo-chair's ship.  The three of them could get this back on track with a little encouragement.  And Bone might just help.  He knows he got sucked into someone else's fight the first day he sat down there.  And three of them could turn it around.  So could some filled vacancies.  

     Obeying laws is important, for sure, but  it's pretty basic, elementary stuff.  Progress, public service, the spirit of the law, a pinch of good sense and judgment, all are way more important overall.  

                               What A Special Year!

                            A Short List of 2009 "Firsts"

                                    A Sub-Zero Sum Game

     It's been a stinging year at the Board.  It's been the worst of times, and the best of times.  These officers presided over it all.

     2009 was the year the Board 'fessed up to the fatally flawed "Advisory Bulletins" and then flushed them.  It was the best news of the year.  2009 also was a year of serial law-breaking and embarrassments unequaled in the board's history.  The Board knows it too, as does practically every inspector.  The public is getting wind.

     This year's parade of Board "firsts" is Exhibit A.  The Board got its first ruling from the Attorney General - ruling the Board broke about a dozen Open Meeting laws.  The Board had to backpedal on home inspector discipline, like its first FedPac "reprimand." It was found illegal too.  Underneath it, they still don't have anything close to their first lawful disciplinary system.  They got fingered breaking their own Code of Ethics for the first time this year, so they voted for the first time to ditch their Code of Ethics too.  Ethics are sooo inconvenient.   It voted for the first time to ask the Governor to OK end-running its ethics issues,  in December.  (The Board denied an Open Records law request for a copy of that letter, hoping the Governor would hear only the Board's story!)  They issued their first request for bids, so clumsily rigged that no provider in the country would touch it with a 10-foot pole.  When was the last time you heard of a state board that offered money and no one, nationwide, would take it? That's got to be a "first!"  The Board also voted its first retroactive "ratification" in history - reapproving an illegal KREIA course they broke their own regulations to approve in January.

     The Board flat lost $100,000 of inspectors' money this year,  basically cluelessly.  No board vote.  Poof!  Gone.  Another first!  They have a story a month about what happened there but the real story is simple - the Board never spent the first $150,000 it took from inspectors.  The 100 Gs just sat there -- as inspectors coughed up $250 a year for nothing, year after year, while other licenses renew for $35 (yes, "thirty-five" bucks).  The KBHI still does not even have it's first budget.

     But the Board did figure out how to put money in its own pockets.  First, it voted itself a pay raise.  Then its General Counsel said that was probably illegal.  So it unvoted that pay raise.  Then the Board circled back and voted for the first time to put its pay, and a raise, in a regulation.  They may not being taking care of inspectors' money, but they put a lot of effort into taking care of Number One.

     Meanwhile, they utterly failed to take even the first unlicensed home

inspector to court.  Now that's a special year!  Bring those leaders back for an encore!

     Undoubtedly, the board's officers will blame somebody else for all their problems.  That's not a first.  Every blunder was the board's own, under the same officers.  They just got caught.

       In their hearts, the Board knows it.  Sigh.

                                 So Then, 

         the KBHI Hides in the Crypt, Fearing Daylight

     That's why they just voted to run and hide.  First they tried asking for help, but then they realized that would mean obeying the law and ethics rules.  So they backed out of that deal and headed for the bushes.

     They tried not talking so much, but that left them unhappy.

     So the Board voted Dec. 8 to stop recording their meetings - hoping to keep what they say under wraps, afraid they'll get caught, live on tape, breaking the law again.  Never before has a Kentucky Board of Home Inspectors been too embarrassed to record their own meetings.  Ever.  Another "first."  Every other board at the entire Department of Housing, Buildings and Constructions (electricians, HVAC, plumbers, etc.) records their own meetings.  (The Board is part of DHBC by statute.) 

     It's like pictures in home inspection reports.  Top inspectors take pics to improve reporting and help document inspections.  They can afford the software and digital cameras because they get plenty of work from people who value a first-rate professional product.  The dark side is inspectors who won't take pictures, worried they'll show something they fouled up.

     That was the message Board member Mike Powers, DHBC Commissioner Moloney's delegate on the board, tried to give them when Green called for a prearranged motion to stop recording meetings - for the first time since the Board first met.  "Housing, Buildings and Construction records all board meetings," Powers said.  Recordings are "used to defend litigation. We feel very strongly things should be recorded."  He did not let go.  The new, young board attorney, Angela Davis, recommended it  not record.  She skipped Powers' comment. 

     So Powers spoke up again. "We have used recordings more times to avoid litigation," he emphasized.  The Board did not get it.  Pseudo-chairman Green, faux vice-chair Patton, Bone, Schmidt, and expired term-member Welty voted in favor.   Powers voted no.  The tape recorder has left the building, Elvis fans.  "The guilty fleeth when no man pursueth," as the Bible says.  As if to prove Powers' point, later in the same meeting the Board needed to double-check what it thought was an error in the Minutes of the previous meeting.  They had the meeting tape to be sure.  So much for the DOP Executive Director's advice to the Board, moments earlier, that recording meeting provided "no benefit to staff for minutes."  

     That led to an Open Records request for a copy of the recording of the meeting up until whenever the tape was stopped, presumably after the meeting.  "No recording was made of the December meeting," came back the written response from none less than the Executive Director of DOP.  It was dated the same day she and Steve had chatted in her office.  So he requested copies of the board meeting minutes and vote to stop recording that must have been before the public meeting, or, in the event the Board destroyed the tape, minutes of the meeting when that decision was voted.  DOP's contract requires it to tape board meetings.  We'll let you know how that mini-thriller comes out.

     Meanwhile, everyone knows the kind of public official eager to make sure there's no  record of what he said or did at a public meeting.  The best part is, you'd think they'd also know by now, they always get caught at it - even if it's a President of the United States.  Ask Rosemary Woods or John Dean.

     At the end of the year, it was one more textbook example of a board operating off the cuff and not doing research, then wasting time fixing what it could have done right the first time.  It might not hurt to elect officers to lead in doing things right.  2010 would be a better year.

     Here's wishing the KBHI a productive, law-abiding year of service to someone other than themselves in 2010 - one where they would be proud to conduct, and record, business in public; humble enough to listen; and wise enough to learn.

                   That could be the Best of Years.