----- Original Message -----
From: RESINSPECT@aol.com
To: gromicko@msn.com
Sent: Thursday, September 11, 2008 9:27 PM
Subject: Kansas bill response
[size=3][FONT=Calibri]Nick, wow what a fun thread. Fun in the fact that I think you took more hits than I did. If you listen to some of these guys it seems that I’m going to have to have my hats altered so I can fit them over my horns. The funny thing is that of the gentlemen making the posts I only think I have met one of them, the others are just making things up or “expounding” on comments made by others which are wrong. I remember playing that game in grade school. Tell someone in the room a story and each person passes it to the next and by the time if gets back around it’s a completely different story. I thought I would take a moment to respond to some of the posts and I’m sure you will post this so I have written it to your members as well. I will start with Dan Bowers’ post number #242 because this will cover a lot of other ground. Dan starts out the post listing the key players in the KC area for InterNACHI, NAHI, and KARCI, which is great because it helps tell the whole story, by the way KARCI was not active when this process started. Lets start at the beginning.
· HB2100 was written and introduced in the 2002-2003 legislative session by Rep. Doug Patterson, a trial lawyer. The bill basically stated that it was against public policy to limit the scope of the inspection and to limit your liability. So not only were we responsible for issues inside a wall or under a slab floor, but we had no way to limit our liability either. This bill was slipped through the House before anyone found out about it, but when we did inspectors from all over jumped into the battle and we were able to get it killed before it got out of the Senate committee.
· We knew this bill would come back the next year so we attempted to discuss the bill with Paterson and he told us he would be glad to speak with us, but he was not interested in making changes because he could get the bill passed any time he wanted and any way he wanted. Needless to say the fight was on.
· We learned several things during our few trips to the capital; the realtor associations and trial attorneys were hell bent on seeing us regulated and they had the deep pockets and the muscle to do it; legislators were even willing to buy off on bad legislation if it had little opposition and legislators get very cranky and quit listening when badgered by many voices.
· We took what we leaned and started the Kansas Association of Real Estate Inspectors (KAREI), the “fake” association you keep hearing about so that we would have one unified voice. The association was started by four inspectors in the Wichita area because of the infighting amongst the different inspector groups in the KC area. We hoped that if it was started by a neutral group we could get support from all sides and we were right.
· As a unified voice in opposition of HB2100 we were able to defeat the bill easily during the 2003-04 session because we were able to spend the time needed to visit with legislators and explain just how ugly the bill was. Many of the legislators told us however that as soon as something that looked good crossed their desk they would vote it through. This is not what we wanted to hear.
· In March of 2004 we sent out 250 invitations to inspectors across the state. This is one of the items that Dan seems to take issue with. I still have all of the original mailing lists from InterNACHI and NAHI. After a delay on my request to your staff for the InterNACHI list I called your office and was told that it had to be approved by Dan before it was sent out, since your guys did not know who we were. I then took time to visit with you about what was going on in the state and you offered to pay the KAREI membership dues for every inspector in the state. Due to concerns regarding the appearance of impropriety I declined. On the mailing lists were names like Michael Greenwalt, Dan Bowers, Paul Sabados and Pat Carter all names listed in Dan’s post that he says did not know what was going on. Stacey Van Houtan, John Kurtz, Mike Prichett, David Moriconi and Buck Hartley were not on the lists provided by InterNACHI or NAHI. I can’t tell you why, they may have been ASHI members at the time. I did not keep the ASHI list as we could get it any time. Dan’s post is right in one aspect the meetings were not well attended which is very sad. The invitations went out telling inspectors that this was a meeting to determine how we would fight legislation and how to proceed. Dan mentioned in his post that I “forgot to tell you” about the poor attendance, I did not forget, but it should be kind of embarrassing for those complaining now, that did not show up then. KAREI is a democratic association, majority rules. Those that showed up made the rules. Dan indicated that 24 to 26 attended and 19 were ASHI members, his numbers are a little off but close, but that tells me that perhaps those that chose to attend were more interested in the direction of the industry than those that did not show up. We were very disappointed in the fact that so many were willing to ride on the coat tails of those who were willing to stand up.
· At this first meeting the consensus was to keep fighting the bill, but to start working on language we could use as a back up or for an amendment if we needed it. Guess who made these decisions. The guys that showed up. At the time we had 69 InterNACHI guys on the mailing list and 20 NAHI guys. According to Dan’s numbers only 5 or 6 out of 89 available InterNACHI and NAHI guys bothered to come, and that’s if none of the 5 or 6 were non-affiliated inspectors who were also invited.
· The next legislative season 2004-05 the bill language came back under HB2269, HB2807S and SB334 and when all these failed it was tried again at the end of the season in an omnibus bill. These all had the same language from HB2100 so we had already done a lot of leg work and were able to make sure legislators understood how bad the bill was. During this season we were also able to convince the governmental affairs director for the Kansas Association of Realtors how bad a bill it was and even though he did not withdraw his support is did not speak in favor of it and stopped his lobbying efforts for the bill. The tide was changing because of the strong voice we were projecting. The problem is that the strong voice we were projecting was only a whisper compared to the big wind blowing from KAR and the trial lawyers. We were told during this session by the chair of the Senate Judiciary committee that we had better sit down with the other players in this issues and work something out, because we would never win this war. They were too strong and had way too much money to spread around. This was not the first time we had heard this. In fact we heard it from many legislators and lobbyist.
· We entered into discussions with KAR to find common ground and that was no small task. They had the power and they knew it. Over time we worked on language, but never came close to workable language.
· In October of 2005 we had our second state wide KAREI meeting and again sent out invitations to the same mailing lists we used the last time and again the crowd was small. Again it was very disappointing that so many inspectors were willing to sit on the sidelines. At this meeting we had prepared language for all to review and discuss. I know for a fact that several InterNACHI guys were in attendance because we had a lengthy debate regarding competency testing involving on line –v- proctored exams. I can’t tell you which InterNACHI guys were in attendance because I don’t know many of them by face, but I know Dan very well and I can tell you that this was the second state wide meeting that he had to miss due to a conflicting schedule. Again at this meeting the attendees voted on what coarse to take and they decided to continue fighting all legislation, but to continue working on our own language we could use if we were forced in a corner. One thing you need to understand is that when things start moving in the state house stupid decisions by legislators can change things in a blink of an eye. An amendment can be added to any bill at any time to turn something like an agritourism bill into a home inspector bill. This was tried once and because we had a presence in the state house it was stopped. Without KAREI’s presence we would all be under the provisions of SB334 right now and the industry would be dead. This is why taking a proactive stance rather than continuing to be reactive was so important.
· During the 2005-06 legislative season the bill was brought back again, but our old buddy Patterson was no longer in the legislature, this time it was brought up by Rep. Paul Davis. He thought regulating inspectors seemed like a fun thing to do so he picked up the ball. Rep. Davis was much easier to deal with and we were able to get him to pull the bill after we explained just how bad it was and that we were in discussions with KAR.
· In November of 2006 we had our third annual KAREI meeting. At this meeting Dan and Mike Greenwalt were present and I think John Kurtz was present as well. At this meeting we discussed where we were within the process and continued working on the language. By this time what was happening in the state house was well known across the state so why the room had so few inspectors who opposed the direction the association was moving in was beyond me. Again the association was moving in the direction of the majority rule association. It should be stated here that NONE of the inspectors at the meetings wanted to be regulated. But they understood that regulation was going to happen and they would rather be a part of it rather than just let it happen to them. Apparently those who did to show up did not care what happened. I had one guy call me to say that he would not show up because he did not like the direction we were heading. I explained that if he felt that way he needed to come and bring 20 of his buddies. This is how you effect change, you don’t take the weekend and go fishing. Guess what, he did not show up. By the way, Dan, Mike and John all contributed ideas and language to the bill. I will say, however that when the vote was taken on how to proceed Mike and John voted to fight only and drop working on bill language and Dan had left and did not return until the meeting was nearly over and the vote was taken.
· Over this summer the seasoned KAR rep we were working with left and Luke Bell took over. Before we could start meaningful discussions with him Rep. Tom Sloan started talking to him about a home inspection bill he wanted to work on. The interesting thing about his bill is that it was our bill. The language he had was the language we had discussed at our last state meeting. Where he got it from we don’t know, and at that point it did not matter, what did matter was at least language we were somewhat agreeable to was on the table. Our discussions with Luke were rough at first, until we were able to spend enough time with him to make sure he understood who we were and what we stood for. That is not to say that he was on our side, but at least he understood what bad legislation would not only do to us but to his members as well. Kerry Parham and I spent time visiting with KAR’s entire legislative committee explaining our position. During these discussions were able to soften their position and explain the benefits of the language we brought to the table, I mean the language Tom Sloan, brought to the table.
· We were working to keep these discussions on going and out of play, when Rep. Sloan snuck in and introduced the bill. It was a mad scramble at that point to kill the bill because it was still not acceptable. Since we had deve= loped good relationships with many legislators including Rep. Steve Brunk the chair of the committee hearing the bill and we had a strong lobbyist working for us we were able to get the bill pulled so that we could work on it more.
· Over the summer we worked with many of the legislators to explain what was acceptable and what was not and were able to come to an understanding with KAR in what we expected in the bill and from the bill. This all sounds great, but at the capital you never know what might happen.
· During this last legislative season 2007-08, although not perfect, we were able to hammer out acceptable language and fight off the ever present trial lawyers assn. During this process we had the opportunity to visit with their lobbyist many times and were able to develop a good working relationship. This is not to say that we trust them, only that we had a mutual understanding of where each was coming from. We were able to get the bill though the house without much trouble because the committee chair mentioned above was a realtor we knew and a friend to our industry with less loyalties to his own. On February 20, 2008 the bill passed the house with a vote of 80 to 38. Now its on to the senate to start the process all over. We ran into problems in the senate due to issues with the chair of the committee the bill was referred to. Her main issue was not wanting to create a new layer of government by developing the Home Inspection Registration Board. She tried to put us under the Board of Technical Professionals which is governed mostly by Engineers and Architects. As you can guess, we fought this vigorously as did the lobbyist for the Engineers and Architects. They didn’t want us any more than we wanted to be governed by them. Since that did not work, she then tried to put us under the control of the Secretary of State. The main problem with this is that to be under this office many of the benefits we gain in the bill would have to be stripped. She went ahead and sent the bill to the floor of the senate to debate the bill and it passed on April 3 on a vote of 37 to 2. On April 4th I was in Topeka from 8:30 a.m. until adjournment at 9:30 p.m. attending meetings with the Secretary of States office and conference meetings in the state house which were intended to try to get the legislators to come to a meeting of the minds regarding the two versions of the bill (house and senate). During these meetings Rep. Brunk, the chair of the house committee that passed the bill, was fully aware that we were very much opposed to the senate version and did not want the bill to go forward without the required inspector protections. He told me that he would support whatever position we took and if the senate would not come around and accept the house version he would let it die. He is the only person in this mix that I trusted what he told me. At our last meeting which ended at 9:30 p.m. it was decided that we would try again to meet when the legislature reconvened after the recess.
· During the process on the senate side I had the opportunity to visit with Senator Brownlee the chair of the commerce committee. She confided in me that she and the committee had been inundated with e-mail and phone calls from a few inspectors in her district, one of which was a neighbor and she was finding that no matter what she did they weren’t happy. She also indicated that much of what they were saying was in contrast to what she was hearing from us and other supporters. I explained the dynamic of the two sides of the issue and told her to simply do her own research. Compare the information presented by us and the other side to the actual language in the bill and see what makes since. I explained that we don’t want to be regulated any more than the other group, but we understood that we had the opportunity to effect the direction of our industry rather than have it forced on us and their goal was simply to stop any legislation. Based on her comments she was obviously becoming perturbed at the hostile, inflammatory and misleading tone in many of the e-mails she was receiving. I need to mention at this point that the other group I am talking about is the KARCI group out of the KC area. A small but very vocal opposition group to the bill. These are the guys, for the most part that kept sitting on the sidelines and not coming to the meetings when we were asking for their input. I will also mention that at the conclusion of the first senate hearing Kerry Parham and I had discussions with Dan and Mike Greenwalt and were told that they to understood that we would be regulated , but the purpose for their battle was to put it off as long as they could. Mike told me that he wanted to sit down with us and work out some language they could live with and I told him, and Kerry told Dan in two separate conversations to bring us the language and we would be happy to discuss it. We never saw anything from them. I can fully understand their plan of trying to put it off and I don’t have a problem with it, the problem is that these battles are very costly and we did not have the revenue to pay for it. Our lobbyist is very expensive and we are getting a very large discount. Our inspector members budgets are small and we had ask all we could of them. This money issues is especially troubling when so many inspectors are so willing to sit back and watch rather than support the fight. Not counting the first years costs, to this point this battle has cost well over $20,000. To keep fighting without additional funding was not an option. A good battle cry makes a good bumper sticker, but the reality is that money talks.
· Over the recess I sent informational updates to senators Barone and Brownlee answering questions they had and providing additional detail about the benefits of the bill which had been stripped out. The hope was that they would take the information and determine that the cost of stripping the bill was greater than then any benefit they thought they would gain from holding out for eliminating our stand alone board.
· After the recess a conference committee meeting was held on May 1st. That morning I had discussions with, our lobbyist, Luke Bell and Rep. Brunk solidifying our position and desire to hold our ground. We were all expecting to end the day with a dead bill. What happened however, was a surprise. Senator Brownlee started the meeting by explaining that she had taken the opportunity over the recess to do her own research and not trust the information from either side as I had recommended. What she found after reviewing current legislation from 29 different states was that the bill we had put together was very comprehensive, well thought-out and provided exactly what we said it did. Her careful and thoughtful review of the bill also brought to light the many inaccurate and misleading comments published by those opposed to the bill. This was reinforced during her presentation of the conference notes on the floor of the Senate, to the senate body Saturday May 3rd when she apologized to the entire body for the barrage of e-mail from a few constituents from her district. Long story short, with only a few minor changes the senate agreed to the house version and the final language passed the senate with a vote of 36 to 0 and the house with a vote of 98 to 22. The inaccurate and misleading comments they were receiving were the same ones posted on these message boards. Sadly many of your readers are receiving this information and rather than doing the research are believing the one sided dialogue of those who opposed the bill.
· Dan also said the following in his post: “Once it was over – who sent out invitations to apply for the Home Inspections Commission?? The Secretary of State; the Governor’s Office; the Recorder?? Nope – the invitations to apply came from Jeff Barnes so I’m told. The home inspectors that didn’t belong to ASHI or KAREI say they didn’t even know it was going on” . Dan is absolutely right. The state agencies listed never send out notice, not for this board or for any board its up to the individuals seeking the positions to inquire about the positions. I did send out the note to our members informing them of the opportunity. Now for the funny part. Dan is a member of KAREI and a member of ASHI so he got the information just like all the rest o four members. We do not have contact information for InterNACHI or NAHI or KARCI members and Dan knows this, we made sure he received the notice so he could pass the information on. If he wanted them to get this information he had the ability to forward it. Now for the funnier part. The Governor’s office received many applications from these groups and I saw many posts regarding this issue on this web site so if someone did not know what was going on they must have had their head in the sand. Dan knew all of this so I’m not sure why he made the statements he did in his post.
· This should be a lesson for all of your members. If you support or oppose a bill and you have a forum to state your case or vote on the direction your group is taking SHOW UP. Once the toothpaste is out of the tube you can’t put it back, but you sure can help decide what flavor it is.
Nick I know this was long winded, but this was a long process and a response was needed. One of Dan’s complaints and James Bushart also, although I don’t understand why he is several hundred miles away and has nothing to do with this bill, is that information was not forthcoming. Let me answer that as well. The second meeting where we sent out all of the invitations, which apparently got tossed by guys with better things to do, was the last meeting where we sent out the mass mailings. For any future meetings we sent notices only to the KAREI members. Our state wide meetings were always open to everyone and each meeting always had non members show up just for the information. Dan and Kerry Parham had and continue to have frequent and open discussions regarding the bill and what is happening with KAREI. We all know Dan is a pipe line of information to InterNACHI, NAHI and KARCI members and many, many times things told to Dan were relayed to his membership. If his members did not have current information they can look at two reasons, either they were not a member of KAREI or Dan did not pass it on. I have known Dan for many years and know him to be one of the most knowledgeable and credentialed inspectors in the country. He is bright and articulate and I have nothing bad to say about Dan personally, however the campaign he has led against me personally and the bill was very disappointing as over and over again the information he was presenting was purposefully inaccurate, misleading or outright wrong to say the least. Despite Dan’s denials to the contrary he we had more up to date information than most of the KAREI Board members had due to his relationship to Kerry Parham. His actions were well below the professionalism he is known for.
Lets continue on, shell we. A few other comments need to be addressed. These are not in any particular order but were all in this thread.
· I sent out a “Request for Input” through the communication channels we knew about to request inspectors in the state to provide assistance in writing the rules and regulations for the inspection Board. James Bushart has posted a copy in post #244. His comment was that ASHI members received it first and InterNACHI got it third hand. Lets see what really happened. I wrote the letter on 9-1, sent it to Kerry Parham for his review. He sent a copy to Dan on the evening of 9-2 and shortly after 9.am the next morning I received an e-mail from David Moericoni discussing the note and why we did not send it to all KARCI and InterNACHI members(I’m paraphrasing). I explained that we don’t have everyone’s contact info and we don’t want it. We don’t have the capacity to manage the data base and the reason for sending it to Dan was that he could send it to the people it needed to go to for proper distribution. On 9-3 I sent the information to Great Plains ASHI and Midwest Pro ASHI. The e-mail came back from Great plains due to my fat fingers miss typing the address so they did not get the letter until 9-4. Due to a problem with the KAREI distribution link the KAREI members did not get the letter until 9-9, which can be corroborated by Don Bowman who received it on 9-9 and complained that the information in the letter was inaccurate. He was right because a few days after we wrote the letter and sent it out changes were made in the Board appointments. This not only verifies when he received the KAREI distribution, but verifies that he received it earlier from other channels. It is important to note that Mike Prichett sent me a nice note indicating he was the Pres. of the local NAHI chapter and future info should be sent directly to him. I told him we would be glad to and explained the reason for the rout the letter took. So you see James, the InterNACHI and NAHI guys got the letter first. I hope this answers your questions. I think the letter clearly demonstrated that there is no association bias from us, its just a perceived bias from those who need someone to point a finger at.
· The next issue has received a lot of attention and frankly I don’t understand why. The argument is that the $10,000 limit of liability for E&O means nothing because you can still be sued for breach of contract and negligence. The thought was that we were better off before. Let’s think about this for a second. With the new law we can limit our liability to the statutory limit of $10,000. No attorney or judge can change that based on his opinion or the pleadings of the poor “victim”. If the limit is to be changed it must be done through legislation. Our discussions with many attorneys found that they typically limit their recover to 50% or less. On rare occasions it may be more, but this would be unusual. The time it would take to take a case to trial would typically exceed 100 hours. At even a scant $100.00 per hour which most attorneys are well above this, they would have over the $10,000 maximum claim amount wrapped up in the case for a possible return of only $5,000. Every attorney we talked to said it was a large deterrent to taking the case. Now as for the breach of contract or negligence claims. The bill only discusses E&O, any other claim can still be limited to whatever you want. Try this language on for size:
In the event that the COMPANY is found to be liable to CLIENT for any acts, errors or omissions which are related to the home inspection or the home inspection report, then the liability of the COMPANY is limited so that the total aggregate liability to CLIENT shall not exceed $10,000.00, as set forth in the Kansas Home Inspectors Professional Competence and Financial Responsibility Act (“the Act”). In the event that the COMPANY is found to be liable to **CLIENT **from any other cause or causes of action not covered by the Act, (including, but not limited to, breach of contract or warranty, violations of the Kansas Consumer Protection Act, or any other common law theory or statutory violation or claim alleged or found not to be covered by the statutory limitation set forth above), then the liability of the COMPANY is limited to a sum equal to the inspection fee paid by CLIENT. If requested by CLIENT, COMPANY will assume a greater liability, but only for an additional charge to be agreed upon by CLIENT and COMPANY. If COMPANY and CLIENT so agree, it will be defined in a separate document.
Sounds like a win-win to me.
· New topic, Mr. Bushart has mentioned several times in this thread how business has died in Kansas due to the passage of the bill. I’m sure I don’t need to remind anyone out there that the real estate industry as a whole has had a bad year and sales are down across the board nationwide. This slide started before the bill was passed and the bill doesn’t take effect until 7-1-09 so how could it possibly have had an effect on business. Sure makes a good story though. What we might also think about is that a few inspectors were running around KC telling every realtor who would listen how tough they were going to have to be on inspections now that their liability has increased and “good luck selling anything after I get done with it”. They did this as a “take that” for supporting regulation, What these few inspectors really did however, is cut their own throats and the throats of every other inspector in the KC area. You wonder why some agencies are recommending inspections by others outside of our industry, this is why. A little professional behavior goes a long way when running your own business. Why not spend you time explaining the truth of the bill, or better yet discuss with them the information found in the great letter provided by the InterNACHI legal council which discusses the liability issues as it pertains to the $10,000 limit.
Nick, this is all I have time for and I’m sure I’m missing many, many other fun topics I could discusses here which have been ridiculously misstated. I’m sure there will be plenty of comments about how I’m lying, but between me and Kerry Parham we still have all of the documents to back up the timelines listed here, and Dan has ALWAYS had all the information he needed directly from the KAREI distributions and the Kerry Parham conversations, so if information did not get out to his guys, he can only blame himself. I make a good target, but enough is enough. One last thought. InterNACHI members have always marketed against InterNAHI and ASHI members, NAHI members have always marketed against interNACHI and ASHI members and ASHI members have always marketed against InterNACHI and NAHI members just like Coke markets against Pepsi. This will never change and that’s Okay. But at the end of the day we are all still Inspectors just like Coke and Pepsi are both caramel colored carbonated beverages.
Jeff Barnes
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