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.
Hello:
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.
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
COO
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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