Kansas Inspectors Barred From Rights Against Self-Incrimination.

[Nick Gromicko]

Kansas Inspectors Barred From Rights Against Self-Incrimination:
ESOPs Position Statement
by Joe Farsetta

The InterNACHI Code of Ethics is the foundation by which all InterNACHI members and inspectors are expected to conduct themselves in business. Within the COE is a specific requirement to comply with the law. In Kansas, a home inspection law was passed, and within that law the HI Registration Board (HIRB) is empowered to set certain operating portions of the law, by which licensed home inspectors are mandated to comply. Within the most recent rounds of rule making, I believe the Kansas Home Inspection Licensing Board has mandated a ruling that not only runs contrary to anything that remotely resembles legitimate tools of fact-finding, but which I believe, runs afoul of our rights as citizens of this great country.

Herein lies the reason behind the extraordinary exception that I, as Chairman of ESOP, have decided to implement in this most narrow of interpretations, and where our rights against self-incrimination, as guaranteed to each and every American Citizen as guaranteed by our Fifth Amendment, are being trounced upon in the state of Kansas.

It is not enough that the Kansas HIRB has the right to examine the report of an inspector who has been alleged to have violated some provision of the law; the fact that the Kansas HIRB has granted itself the power to demand ALL records of the home inspector, whether germane to an investigation or not, is what is objectionable.

The Kansas HIRB has no authority to subpoena any records. Therefore, without oversight or legal authority, it has placed the unsuspecting inspector into a Catch 22 situation; fail to comply and have your license revoked, or comply and turn over every business record you have to a quasi-governmental authority. The former is a lose-lose situation, whereas the later is Draconian and without justification, in my opinion as a Citizen and Home Inspector. In essence, once one turns over all records, who knows where it may ultimately lead?

This measure shakes the very foundation of the concept of protection against self-incrimination. Further, without the knowledge, analysis, and eventual consent of the Kansas State Attorney General’s Office, I believe this rule has no enforceable effect. The records in question are not being given voluntarily; the surrender of virtually anything and everything being requisition by the HIRB is a mandate.

Therefore, until such time as this practice is deemed to be legal, justifiable, and most importantly sustainable under the United States Constitution, InterNACHI will not punish members who refuse to abide by this ruling. If my interpretation of this law is somehow incorrect, I invite any member of the Kansas HIRB to correct me. I may be reached at jjf10965@yahoo.com

[Gary Farnsworth]

Thanks, Joe. I feel like my own personal efforts against these "Kansas Home Inspection laws, rules, regulations" are finally paying off.

[Gary Farnsworth]

It is amazing that over 140 inspectors have read this post, with only me responding. Goes to show what is really going on here in Kansas; either they are afraid to respond, or there is not anyone left in this state that are home inspectors. There will simply not be enough money to run this "registration" effort, and enforcement will be vertually impossible. The board will then concentrate on inspectors who are NOT ASHI members, and perform their own duties, created by themseleves, to get us out, all to control the home inspection industry in Kansas.

[Joe Farsetta]

This may be the first time that a professional organization has taken an official stance, in allowing its members to make a personal decision to ignore a provision of a law in an effort to fight it, and remain within the bouhdaries of the COE.

Kansas NACHI Inspectors should sit up and take notice. We have done this for you, and no one else. The scope of this exception is quite narrow, and only lasts until the motion/rule is deemed sustainable by the Kansas Attorney General.

[James E. Braun, CMI]

I believe the reason why there was no responses is most inspectors would not allow their records open to a board to begin with, only the one record that a complaint was filed on. Other than that it would just be a witch hunt. Thanks to Joe for making the exception and Gary for pressing the issue.
Kansas has a screwed up law, if it cannot be stopped then we need to figure out a way to deal with it. It will definitely hurt most inspectors and consumers.

[James H. Bushart]

Originally Posted by gfarnsworth

It is amazing that over 140 inspectors have read this post, with only me responding. Goes to show what is really going on here in Kansas; either they are afraid to respond, or there is not anyone left in this state that are home inspectors. There will simply not be enough money to run this "registration" effort, and enforcement will be vertually impossible. The board will then concentrate on inspectors who are NOT ASHI members, and perform their own duties, created by themseleves, to get us out, all to control the home inspection industry in Kansas.

Responses on this message board is not what really matters, anyway, Gary.

The response of your Attorney General is the only significant one that can change anything by overruling the committee and throwing out the rules that violate your rights.

Until then, even though NACHI empowers you to retain your membership while refusing to comply, your licensing board (should you choose to have one) can take your license for refusing to submit to their requests for your files.

I will say that my observation of the reception that your licensing board received at the ASHI training seminar I attended in Kansas City last weekend was....at best.....luke warm. In fairness, I think that the majority of the 150 guys in attendance were from Missouri but at one point Mr. Barnes or one of his reps (I never met the guy) solicited applause for something that he pushed to have included in the Kansas SOP and got a silent response.

Keep up the fight, Gary. Others are fighting in their own ways....some are trying to "fight" while keeping their options open should they find a way to make a buck with the law, but we still need them on our side, too.

[Gary Farnsworth]

If inspections are voluntary to the home buyer, and are no longer suggested by any agent in Kansas, why do we need to be licensed for something that is not required? We need to be licensed for termite, even when that also is not required in any real estate transaction? If you need a new roof, due to a negotiation factor in the real estate transaction, does the roofers need to be licensed? No. Does the plumbing need work, because it was demanded by the home buyer, and will the plumber be licensed? No.

Just because you have a license of any kind, does not make you good at doing what you were hired to do. Licensing is basic only in any concept, and will favor only the agents, who want the basics, so we do not kill their deals. If we are to be licensed, everyone else in the real estate transaction should be also. All states should license all of these repair persons, contractors, radon and termite inspectors, infra-red, anything that has to do with a real estate transaction. Tracking of any corruption, wrong doing, or un-lawful act will then be easy. Documentation is critical in any real estate transaction. If Uncle Joe fixes the toilet, is there proof it was fixed properly? Joe should then be licensed.

[James H. Bushart]

Originally Posted by gfarnsworth

If inspections are voluntary to the home buyer, and are no longer suggested by any agent in Kansas, why do we need to be licensed for something that is not required? We need to be licensed for termite, even when that also is not required in any real estate transaction? If you need a new roof, due to a negotiation factor in the real estate transaction, does the roofers need to be licensed? No. Does the plumbing need work, because it was demanded by the home buyer, and will the plumber be licensed? No.

Just because you have a license of any kind, does not make you good at doing what you were hired to do. Licensing is basic only in any concept, and will favor only the agents, who want the basics, so we do not kill their deals. If we are to be licensed, everyone else in the real estate transaction should be also. All states should license all of these repair persons, contractors, radon and termite inspectors, infra-red, anything that has to do with a real estate transaction. Tracking of any corruption, wrong doing, or un-lawful act will then be easy. Documentation is critical in any real estate transaction. If Uncle Joe fixes the toilet, is there proof it was fixed properly? Joe should then be licensed.

Moot point. Good point, but moot.

[Gary Farnsworth]

My neighbor had a dog named Moot. Must have been related to Molly.

[Brian C. Hoagland]

Originally Posted by gfarnsworth

My neighbor had a dog named Moot. Must have been related to Molly.

I hope he was quiet.

[James H. Bushart]

Originally Posted by bhoagland

I hope he was quiet.

Yes.

Moot was mostly a mute mut.

[Bruce M. Graham, III]

was it a malamute by any chance?

[Gary Farnsworth]

The ethics committee is investigating allegations of misconduct and ethics rules violations by several members, most of which are democrats, of the US Congress. Just so everyone knows, realize that the "former governor of Kansas" signed the home inspection laws just hours before resigning and moving to Washington DC, to be head of Health and Human Services under the current President. She is a democrat. The bill she signed here in Kansas in April of 2009, that affects home inspectors, contained a provision that affects our fifth ammendment rights as American citizens. Perhaps she needs to be on the ethics committee list also.

Bump.