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HomeMy WebLinkAbout03-03-21 Public Comment - B. Risk - Ethics Committee Memo RedactedFrom: Bob Risk To: Agenda; Melissa Frost; Sara Rushing; Carson Taylor Subject: Ethics Committee Memo Date: Wednesday, March 3, 2021 2:25:09 PM Attachments: Ethics Committee Memo - March 3 2021.pdf Please review the attached memo. Bob Risk Chief Building Official BOZEMAN MT PO Box 1230 Bozeman, MT 59771 406-582-2377 Page 1 of 6 City of Bozeman Board of Ethics C/O Office of the City Clerk 121 North Rouse P.O. Box 1230 Bozeman, MT 59771-1230 Tel: (406) 582-2320 agenda@bozeman.net March 3, 2021 To Members of the City of Bozeman Ethics Committee- The purpose of this letter is to advise you of an issue that should have been brought to you a long time ago. I did not bring it up sooner because I could not afford to lose my job… now that I plan to retire after 12 years of service, I feel obligated to bring it to your attention. In the past, Building Division Funds have been used to supplement the City General Fund by purchasing computer hardware and monitors for the Planning Department, conference room AV equipment, Code 3 equipped fire vehicles, fire utility vehicles and fire department office remodels. In addition, Building Division Funds are being currently being used to pay for fire personnel who are inspecting existing buildings by conducting vacation rental, business license and existing business annual inspections throughout the city… this use of the Building Division Revenue Funds is expressly prohibited by State Law. Please note that all of these inspections types are unrelated to the codes the Building Division is required to enforce and according to State Law, should not be funded by Building Division Revenues. I did bring this issue up a number of times with the Assistant City Manager, Chuck Winn because he is the one responsible for authorizing the illegal use of the Building Division Revenue Funds. However, the last time we discussed the matter, Chuck Winn gave me the attached memo (Exhibit A) and told me in front of my immediate supervisor, Marty Matsen, that I would be immediately fired if I ever brought the subject up again on company time. Considering that I have been the subject of retaliation and retribution by Chuck Winn several times in the past, I took him seriously and dropped the matter until now. According to ARM Chapter 24.301, Subchapter I, the codes referenced below in the Bozeman Municipal Code are the only codes the Building Division is authorized to enforce. BMC Chapter 10 specifically adopts the following codes for Building Division enforcement. 10.02.030 – International Building Code 10.02.040 – International Residential Code 10.02.050 – International Existing Building Code 10.02.060 – International Fuel Gas Code 10.02.070 – International Mechanical Code 10.02.080 – International Energy Conservation Code 10.02.090 – Uniform Plumbing Code 10.02.250 – National Electric Code As you can see, the International Fire Code is specifically not adopted for use or enforcement by the Building Division. BMC Chapter 18 Fire Prevention and Protection, adopts the fire code in Section 18.02.010 (A) which states; Adoption by reference of the International Fire Code. Page 2 of 6 1. The current edition of the International Fire Code together with any supplements, adopted by the Fire Prevention and Investigation Bureau of the Montana Department of Justice (or its successor), as set out in the Administrative Rules of Montana, and as amended from time to time by the Bureau, are adopted by reference and incorporated in this article as if set forth in full, with the additions, amendments, and deletions enumerated within the Administrative Rules, except as may be noted in this article, by future administrative order, or by any regulations not applicable to local government jurisdictions. BMC Chapter 18 verifies that the Bureau of Labor and Industry does not adopt the fire code which means that the Building Division may not enforce the fire code in any way. In the Exhibit A Memo, Mr. Winn references MCA 50.60.302 but this section does not authorize a jurisdiction to adopt codes for the Building Division that are not specified by the Montana State Department of Labor and Industry for the Building Division in the Administrative Rules of Montana. Further, it specifies the certification requirements for the building codes, the inspectors and the jurisdiction itself. This section in no way supports his argument. The Exhibit A memo references the Independent Accounts Report that is performed annually according to ARM 24.301.208 and states that the fund usage has never been questioned by the Bureau of Labor and Industry. The reason for that is that the expenditures in question are hidden from the auditor and they have been unaware of the issue. At this time, the Bureau is aware of the issue. Mr. Winn’s memo also refers to the Montana ARM Section 24.301.203. This section states; “(2) Permit fees must only be used for those costs related to building code enforcement activities, except for the building codes education fund as provided in 50-60-116, MCA, with building codes being only those codes adopted by the department in subchapters 1, 3, 4, and 15 of ARM Title 24, chapter 301. It is not intended that permit fees be used to support fire departments, planning, zoning, or other activities, except to the extent that employees in those programs provide direct plan review, inspection, or other building code enforcement services for the city, county, or town's building code enforcement programs. Permit fees shall not be used to support the inspection of existing buildings for maintenance or for abatement of dangerous buildings.” In his memo, Mr. Winn states that he believes that the building code enforcement program requires a “broader application”… but that’s not his call. It’s not up to Mr. Winn to modify and amend State Law and our Municipal Code simply because he wants to. Mr. Winn’s memo references the International Mechanical Code as a necessary code to ensure building safety. I agree, but the mechanical code was adopted for enforcement by the Building Division and may not be enforced by the Fire Department. A commercial hood must be inspected and approved by the Building Inspector according the Mechanical Code… the Fire Inspector approves the hood fire suppression system. In reality, the requirements for when a fire sprinkler and alarm system are required comes from the building code. How it’s designed and constructed is regulated by the Fire Code so it is the responsibility of the Fire Inspector to monitor and inspect the installation of new fire protection systems. Mr. Winn also references a building being used to store hazardous materials and he further states that a Fire Inspector certification is required to inspect the Haz Mat storage. Again, he is incorrect. The Haz Mat storage requirements come from the Building Code. It’s up to the Building Inspector to inspect that building for code compliance. The Fire Inspector takes over code compliance for a building after the building has been approved for occupancy by the Building Inspector and a Certificate of Occupancy has been issued. At that time it becomes an “existing building” and the Building Inspector has no more authority over it. But the Fire Department does have authority at that point because they can and do inspect existing buildings where the Building Division cannot. Page 3 of 6 Much of Mr. Winn’s justification for his actions appears to stem from his inexperience in reading and interpreting the State MCA, ARM and our Model Technical Codes. Like many code reading novices, he is guilty of the common practice of reading a code to a point where it appears to support your position and going no further… he has yet to learn that you have to read the complete code that’s applicable in order to get an accurate and reasonable interpretation. He should know that it’s extremely important to consider all of the codes involved and the actual language they contain. I asked Tim Lloyd, Building Codes Bureau Chief of the Montana Department of Labor and Industry for his interpretation on this question. His email response is attached as Exhibit B. In his response, Tim Lloyd agrees that “building permit revenues should not be used to fund the inspections of existing buildings.” Mr. Winn knew of the State response to the question, but chose to ignore it. From the Montana Code Annotated, Justice Department, Fire Safety Rule 23.12.402 ENFORCEMENT OF FIRE PREVENTION AND INVESTIGATION SECTION RULES (1) The FPIS shall administer and enforce in every area of the state of Montana all the provisions of the fire code and rules adopted pursuant thereto. The chief fire officials of each municipality, fire service area, or organized fire district shall have responsibility for enforcement of applicable fire codes within the limits of their jurisdiction, and shall assist the FPIS in the enforcement of laws and rules pertaining to fire safety in public buildings. (2) Each local authority responsible for fire prevention inspections shall maintain reports of inspections performed. Fire prevention inspection reports shall be accessible to and provided to the FPIS when deemed necessary by the state fire marshal. (3) Each official responsible for investigating fires shall file with the state fire marshal a fire incident report on each and every fire occurring within the official's jurisdiction. Fire incident reports must be submitted on forms downloaded, or filled out online, from the National Fire Incident Reporting System (NFIRS) at www.nfirs.fema.gov. The state fire marshal may notify a fire department of incomplete or invalid reports for resubmission with complete information. Please know that we agree that it’s reasonable, necessary and appropriate for the Building Division and the Fire Department to work together as a team and according to our workload, we do need to have one Fire Inspector FTE working as a Building Division Fire Inspector. The new construction fire sprinkler and alarm workload and new commercial construction workload does justify paying one Fire Inspector from the building division revenue fund. Due to the short staffing of the Building Division inspection staff, fire inspectors have been performing some building inspections to help the building division with their workload until adequate staff can be hired. Please note that during this time, the fire inspectors were never given an inspection load that exceeded the average daily workload for one building inspector. In no case was it ever justified for the Building Division to pay the daily wage for more than one fire inspector. TYPICAL BUILDING AND FIRE INSPECTION STATISTICS: BUILDING INSPECTIONS DAILY AVERAGE FOR 4TH QUARTER FY 2020: Average Daily Inspections - Current Standard is 15 Per Day Per Inspector April 19.46 May 23.73 June 32.63 Average inspections per day per building Inspector 25.27 Page 4 of 6 FIRE INSPECTIONS DAILY AVERAGE FOR 4TH QUARTER FY 2020: Average Daily Inspections - Current Standard is 15 Per Day Per Inspector April 4.71 May 4.39 June 2.59 Average inspections per day per fire Inspector 1.63 BUILDING INSPECTIONS DAILY AVERAGE FOR 1st QUARTER 2021: Average Daily Inspections - Current Standard is 15 Per Day Per Inspector July 24.79 August 22.53 September 31.50 Average inspections per day per Inspector 26.27 FIRE INSPECTIONS DAILY AVERAGE FOR 1ST QUARTER FY 2021: Average Daily Inspections - Current Standard is 15 Per Day Per Inspector July 2.11 August 2.81 September 3.62 Average inspections per day per Inspector 2.84 BUILDING INSPECTIONS DAILY AVERAGE FOR 2ND QUARTER FY 2021 Average Daily Inspections - Current Standard is 15 Per Day Per Inspector October 20.49 November 29.21 December 31.50 Average inspections per day per Inspector 26.27 Page 5 of 6 FIRE INSPECTIONS DAILY AVERAGE FOR 2ND QUARTER FY 2021: Average Daily Inspections - Current Standard is 15 Per Day Per Inspector October 1.74 November 2.32 December 3.33 Average inspections per day per Inspector 1.76 FIRE INSPECTIONS WITH ADDED BUILIDNG INSPECTIONS COMBINED DAILY AVERAGE Average Daily Inspections - Current Standard is 15 Per Day Per Inspector October 3.29 November 4.10 December 6.50 Average inspections per day per Inspector 4.63 BUILDING INSPECTION YEARLY TOTALS FY 2020 Quarter Total Inspections Yearly Totals 1st QTR 6895 6895 2nd QTR 6438 13,333 3rd QTR 6422 19,755 4th QTR 6948 26,703 FIRE INSPECTION YEARLY TOTALS FY 2020 Quarter Total Inspections Yearly Totals 1st QTR 447 447 2nd QTR 248 695 3rd QTR 230 925 4th QTR 363 1288 Please note that the fact that we are supplementing the general fund by paying the wages for two extra fire inspectors and the Fire Marshal while the building division has not been supported by Mr. Winn in its many attempts to hire qualified building inspectors has not gone unnoticed by the building division customers… but that’s an entirely different subject. As an expert in code analysis and code interpretation, I did offer Mr. Winn the benefit of my extensive expert experience with the codes by providing a detailed code analysis for him to review… but he chose to ignore it. Page 6 of 6 From the COB Ethics Handbook; The rules of the State and City Codes of Ethics are meaningless unless they can be enforced in a way that ensures the public trusts city officials and employees to serve city government. All employees and officials must understand that a violation of the City or State Code of Ethics could lead to disciplinary action including termination, removal from office, or even criminal sanctions. While there are provisions in state code for violations of state law (2-2-144, MCA), a violation of the City Code of Ethics, in addition to termination or removal from office, could be prosecuted as a misdemeanor under the Bozeman Municipal Code’s general penalty provision (see 1.01.210, BMC). From the COB Employee Handbook; Disciplinary action may be taken in cases of employee misconduct. Employee misconduct means, but is not limited to, violation of City policies or procedures, willful neglect of an employee’s duty, insubordination, disruptive behavior, and any conduct on the job not in keeping with generally accepted professional and personal standards of behavior associated with employment, as well as other activities that might adversely affect the confidence of the public, and violations of federal and/or state law. Whether or not the misappropriated funds should be reimbursed to the Building Division Reserve fund is up to the City Manager… but certainly the practice of paying Fire Inspectors to inspect existing buildings or performing any other unrelated duties from the Building Division Reserve Fund should be immediately discontinued and Chuck Winn should face disciplinary action up to and including discharge for his intentional violations of State Law, the BMC Municipal Code and his failure to live up to the City of Bozeman Core Values. Thank you for your attention to this matter. Bob Risk - “Retired!” PO Box Bozeman, MT 59771 .com CC: Ethics Board Committee Members Melissa Frost mfrost@bozeman.net Sara Rushing mfrost@bozeman.net Carson Taylor ctaylor@bozeman.net Attachments: Exhibit A – Memo from Chuck Winn Exhibit B - Email from Timothy Lloyd, Department of Labor and Industry, Bureau Chief Attachment 1 – Email from David Cook, Department of Labor and Industry, Bureau Chief Note: This email is regarding a different code that the building division does not enforce… but the statements from Mr. Cook are applicable. Attachment 2 – 24.301.203 Building Division Funding Attachment 3 – MCA 50.60.302 Certification of Town and Codes Attachment 4 – MCA 50.60.106 Powers and Duties of Counties, Cities and Towns. Attachment 5 – ARM 23.12.402 Fire Code Enforcement Attachment 6 – Rule Chapter 24.301 Adopted Building Codes