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 email@example.com