Saturday, June 25, 2016

Oregon BCD Certifications: OAR 918-098

The following is a letter written by Royal Mortier of Mortier Engineering. Like me, Royal is a member of the Emerald Executive Association (EEA). He recently brought to the attention of EEA members the radical changes proposed by the State of Oregon’s Building Codes Division to the administrative rules regulating the certification of building inspectors, plans examiners, and building officials. 
The BCD’s proposed rules make changes to the certification process that it asserts will support the division’s focus on providing Oregon-focused training for building officials, inspectors, and plans examiners. Specifically, these rules relate to changes to the Oregon Inspector Certification (OIC) and creating a transition path from International Code Council certifications to equivalent Oregon certifications, as well as ostensibly clarifying the conflict of interest requirements for certification holders. However, as Royal points out, OAR 918-098 will likely have an adverse impact upon the quality of the permitting and inspection processes, drive away prospective new inspectors and plans examiners (just when they’re needed most), unfairly penalize private entities, and effectively (and ironically) generate new conflicts of interest. 
OAR 918-098 becomes effective on July 1, less than a week from now. The deadline for written public comment was yesterday (June 24). Royal penned his letter this past Tuesday, addressing it to every member of the Oregon Legislative Assembly, after also testifying in person at the BCD’s scheduled public hearing earlier that day. He is pushing for revocation of the new rules, a move I believe is warranted because the proposed changes do appear short-sighted and fundamentally flawed in their intent. Time will tell if the members of the legislature agree and take action.

My name is Royal Mortier and I serve as the Chief Operating Officer (COO) of Mortier Engineering, P.C., an employee-owned engineering and code consulting firm. A subsidiary of Mortier is The Building Department, LLC (TBD). TBD is a licensed Building Inspection & Plan Review Provider under ORS 455.457. TBD provides building department services to government entities that are too large for counties to provide adequate service to, too small to cover the expense of their own building department, or building departments that need staffing assistance.  We are currently contracted with approximately 30 jurisdictions in the state of Oregon to serve as inspectors, plans examiners, and/or building officials. Combined, we serve a population greater than Portland. I’m contacting you today because we have a nationwide shortage of building inspectors. How the State of Oregon Building Codes Division (BCD) is handling this issue is setting up our construction economy for failure. 
A significant need for qualified inspectors, plans examiners, and building officials currently exists because the average age within this workforce approaches sixty. This is an irrefutable fact, and something needs to be done to entice new inspectors, and retain or hire experienced personnel to properly train them. In decades past when a staffing crisis like this occurred, jurisdictions requiring certifications found ways to attract newer staff through bonuses, or turned to private industry for support. Unfortunately, the BCD has opted for a different path by pushing for, and getting passed, legislation that shuns out-of-state qualified people and private industry support. 
BCD was initially established to be a division of the state that assisted in the review and adoption of building codes. Over the years, BCD has added to and changed its roles many times. Beginning in the early 2000’s, BCD began taking over inspection and plan review duties from jurisdictions. It grew to a staff of over 110 employees with three offices across the state, per the BCD website. The BCD bankrolled these efforts using taxpayer dollars, a 12% surcharge on building permits, and taking 90-100% of permit fees from the jurisdictions that use them. 
In December of last year, BCD moved toward a rule change that requires inspectors to attain training and certifications performed and issued by BCD and ONLY recognized in Oregon, making Oregon the only state in the western U.S. to not require national certification. Prior to this rule change, most personnel came from the trades, and/or attended a two-year approved college program in preparation to take a national certification, which was then supplemented with additional training and certifications. Under the new rules from the BCD, incoming building inspectors will only be required to take a 4-hour per week, 14-week training (56-hours total) to become a certified residential structural and mechanical inspector. Additional changes eliminate the acceptance of past experience, nationally accepted certifications, and college degrees, essentially making the certification programs at Portland and Chemeketa Community Colleges obsolete. 
Oregon changed to a national inspector and plans examiner certification system in 2005 because BCD was unable to keep testing current, but still required the Oregon Inspector Certification (OIC) test to verify knowledge of statutes and administrative rules that apply to them. Being on a national testing program with state specific law testing is common for many professions (i.e. Engineering). The BCD is changing back to state testing without the benefit of input from existing code enforcers and professionals within Oregon, and without justifiable reasoning provided to professionals or noted in the legislation’s Statement of Need and Fiscal Impact
BCD’s changes to Building Official certifications are even worse. If you’re unfamiliar with the term, a Building Official is in charge of a jurisdiction’s building safety program and its employees, including the inspectors and plan examiners. BCD again has chosen to eliminate requirements for past experience or education in building codes or construction and replace it with a 2-day training, given by BCD, to earn a certification recognized only in Oregon. 
If you’re skeptical that BCD would put someone with so little experience in charge of the public’s safety, please see the attached meeting minutes from June 6 of this year with comments from Tom Phillips, BCD Government Affairs, regarding hiring a recent high school graduate to be an inspector and comments on the new 2-day building official program. These changes will flood the industry with inexperienced and poorly trained inspectors, plans examiners, and building officials that will hinder the system and tarnish a reputation that many in the industry have worked extremely hard to maintain. These are the personnel the community relies on to ensure what is being constructed is safe and accessible. The public deserves better. 

As a former construction superintendent and project manager, Oregon State graduate, and graduate of Chemeketa Community College’s two-year Building Inspection Technology program, I can say that nothing prepared me better for the career of inspection than the Chemeketa program. To consider 56-hours of online training as an acceptable alternative to past experience, college, and national testing is ludicrous. In addition, to issue code enforcement professionals an Oregon-only certification places an invisible leash on them. This will result in many qualified professionals leaving Oregon to explore opportunities in other states. In fact, Oregon currently has more government job openings for code professionals than California and Washington, combined. Code professionals and private industry do not want to come to Oregon because of the BCD. BCD’s regulation is not the solution—it’s the problem. 
With these changes, BCD has taken on the role of educator and certifier of all code professionals within the state of Oregon. Per ORS 455.117, BCD is the governing body for review and approval of code training programs, but per OAR 918-098, BCD’s training is now the only approved training. BCD is also an enforcer of the code and financially benefits from acquiring services from jurisdictions. So BCD is allowed to approve the training they provide, to issue the certifications that only they are allowed to issue, and are allowed to use these certifications to enforce the code for financial gain. This is not something that would be allowed in private industry, so why are we the public subject to this obvious conflict of interest? 
Researching how other states handle their adoption and oversite of building codes, I found no state that has anything comparable to the BCD. Our neighbor to the north, Washington, has the State Building Codes Council (SBCC). The SBCC staff provide assistance and information on building codes to the public, contractors, and jurisdictions—similar to what BCD’s initial intent was. For code development and review, the SBCC coordinates subject and code specific groups consisting of professionals from the respective areas to develop recommendations and implement local or state-wide building code changes. They perform these duties with a staff of 5, and rely on the professionals they serve for input (What a concept!!!). 
Over the past couple years, I’ve researched the cause for this surge by the BCD, and have been provided with the same reason by multiple building officials and state representatives. A prison that was being built with state funds in a remote area required a building permit. The governing jurisdiction’s building safety program was contracted with a private provider, as the jurisdiction historically did not produce enough annual permit fees to afford their own. Some in the state didn’t believe it was right for state funds to go to a private company to oversee a state-funded project. However, the state has engineers and architects on staff, but the design of the entire facility was contracted out to private engineering and architecture firms. The state owns heavy equipment and has workers, but the construction was contracted out to a private construction company. Yet the expense of a permit fee used to fund a private inspection company to review and provide oversight for a multi-year project could not be seen as justifiable. 
The prison project has been cited as a primary impetus for Senate Bill 421 (2005). SB 421 was expanded with the passing of SB 582 (2013) and both have resulted in the development of additional statutes, regulations, and administrative rules against private code providers. Note that when SB 421 & 582 were passed to allow BCD to assist remote jurisdictions, the BCD was not the certifying agency. 
The fallout from these legislative changes are having effects on many within the state. The first major change was slipped in under “definitions” in Oregon Revised Statute (ORS) 455:

ORS 455.715 (3): “Inspector” means:

(c): A specialized building inspector certified under ORS 455.723 who is employed by a municipality or by the Department of Consumer and Business Services.

Note how this verbiage specifically negates “company,” and this wasn’t by accident. If you view the Specialized Electrical or Plumbing Inspector Training Course application, it specifies on the cover page:

Those who currently work for a company that provides inspection and plan reviews for a city or county may take the course, but may not use the certification while employed by the company. Only city, county and state employees may use a specialized certificate . . .  

Since this legislation passed, it has paved the way for additional statutes, regulations, and rules to be passed directed solely at private providers. For example, as a continuation to the legislation noted above, specialized certifications held by personnel of a company will expire in 2017. 
In addition to changes to education and certifications, BCD has opted to not recognize its own conflict of interest, but instead is throwing down a rule change that would cite others for an assumed conflict. Under OAR 918-098-1470 a proposed rule change is as follows:

(j) Avoiding management or performance of work regulated by the state building code for a company engaged in construction or property development in Oregon when employed as an inspector, plans examiner, or building official by the division, a municipality, or registered business . . .  For the purposes of this section, property development includes, but is not limited to engineering, designing, testing, or auditing of buildings or other structures, devices and equipment regulated by the state building code.

Currently, seventy-nine jurisdictions in Oregon rely on private industry for support of their building safety programs. This support ranges from peer review by an engineer, inspection and plan review support, or management of the entire program. The change proposed under item (j) is a blatant attack on private industry and will result in a population greater than Portland, Salem, and Eugene combined losing the experienced and affordable support of building safety programs currently provided/accessible to them. The vagueness of this rule change could implicate any employee of a jurisdiction’s building safety program for doing any work within their jurisdiction, even if performed on their own home. In addition, this rule change exceeds the authority of DCBS and BCD as stated in ORS 455.720 and has been developed without justification. 

As members of the Oregon Building Officials Association and multiple Home Builders Associations, members of our team and I have attended multiple events where the current director of BCD, Mr. Mark Long, has spoken. We have been continually amazed at how Mr. Long arrives at these events to tell, rather than discuss with, the very professionals that BCD serves about the changes that are coming. We have not attended an event in recent years where our input was requested or taken, and our verbal and written comments from public hearings have been continually neglected. It appears that BCD has no interest in making programs better and attracting qualified individuals, but instead are being led by their own agenda and special interest groups (i.e. public employee unions). 

With the proposed changes noted above, BCD will establish themselves as the only building codes trainer and the certifying agency for all new inspectors and building officials in Oregon. For BCD to even attempt this is outlandish, and to implement these changes would be illegal.  Additionally, BCD is overstepping its authority with the proposed changes to OAR 918-098-1470(j) granted them by ORS 455.720 and its attempting to impose rules on professionals (e.g. engineers and architects) that the BCD does not regulate. 

The public hearing for the rule changes noted above took place on June 21. It was attended by engineering and architecture professionals, building officials, and private parties—all in opposition to the proposed changes. Past history has shown us our opposition will likely go unrecognized, which is why we turn to you, our state representatives. We request that you contact the BCD and push for revocation of all proposed rules that remove Oregon from national certification of building inspectors and plans examiners; help ensure education and experience be requirements for building officials; and eliminate rules aimed against private industry. 

Thank you for your time. 

Royal Mortier, PE, LEED AP
Mortier Engineering PC
O: (541) 484-9080 ; C: (541) 521-1276 ; F: (541) 484-6859

OR#82283PE, CA#81480, WA#53059


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