HB 1626-FN – AS INTRODUCED
2010 SESSION
08/10
HOUSE BILL 1626-FN
AN ACT requiring the licensing of building energy auditors.
SPONSORS: Rep. Borden, Rock 18; Rep. R. Read, Rock 16; Sen. Cilley, Dist 6
COMMITTEE: Executive Departments and Administration
This bill:
I. Establishes a code of ethics for building energy auditors.
II. Establishes a board of energy auditors.
III. Establishes a licensing process for energy auditors.
IV. Establishes an appeals process for energy auditors through the state building code review board.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
10-2313
08/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT requiring the licensing of building energy auditors.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Energy Auditors. Amend RSA 310-A by inserting after section 201 the following new subdivision:
310-A:202 Purpose; Scope of Practice.
I. The purpose of this subdivision is to assure that an energy auditor performs professional services only when the energy auditor is qualified by education and training in the specific technical areas involved.
II. The scope of practice of energy auditors shall consist of knowledge and skill in the following areas of residential construction: heating systems, cooling systems, plumbing systems, electrical systems, structural components, foundations, roofs, exterior and interior components, and site aspects as they affect buildings.
310-A:203 Definitions. In this subdivision:
I. “Auxiliary services” means any fee paid services provided by the energy auditor to the client in addition to an energy audit.
II. “Board” means the board of energy auditors as established in RSA 310-A:206.
III. “Client” means an individual who signs an energy audit agreement in order to have an energy audit performed.
IV. “Code of ethics” means the code of ethics followed by energy auditors who are licensed as energy auditors by the board as established in RSA 310-A:205.
V. “Energy audit” means the process by which an energy auditor visually examines the readily accessible systems and components of a home and which describes those systems and components in accordance with the board-approved standards of practice and code of ethics.
VI. “Energy auditor” means a person who, by reason of professional education or practical experience, or both, is qualified to engage in the practice of energy audits as attested by licensing as a energy auditor.
310-A:204 Standards Of Practice. The board shall adopt, under RSA 541-A, minimum and uniform standards of practice which shall apply to New Hampshire energy auditors and be enforced by the board.
310-A:205 Code of Ethics for New Hampshire Energy Auditors.
I. The code of ethics details the core guidelines of energy audit professionalism and energy audit ethics, covering crucial issues such as conflicts of interest, good faith, and public perception. Integrity, honesty, and objectivity are fundamental principles embodied by this code, which sets forth obligations of ethical conduct for the energy audit profession.
II. Auditors shall comply with this code, avoid association with any enterprise whose practices violate this code, and strive to uphold, maintain, and improve the integrity, reputation, and practice of the energy audit profession.
III. Auditors shall avoid conflicts of interest or activities that compromise, or appear to compromise, professional independence, objectivity, or audit integrity. Auditors shall not:
(a) Audit properties for compensation in which they have, or expect to have, a financial interest.
(b) Audit properties under contingent arrangements whereby any compensation or future referrals are dependent on reported findings or on the sale of a property.
(c) Directly or indirectly compensate realty agents, or other parties having a financial interest in closing or settlement of real estate transactions, for the referral of audits or for inclusion on a list of recommended auditors, preferred providers, or similar arrangements.
(d) Receive compensation for an audit from more than one party unless agreed to by the client.
(e) Accept compensation, directly or indirectly, for recommending contractors, services, or products to audit clients or other parties having an interest in audited properties.
(f) Repair, replace, or upgrade, for compensation, systems or components covered by the standards of practice, for one year after the audit.
IV. Auditors shall act in good faith toward each client and other interested parties.
V. Auditors shall perform services and express opinions based on genuine conviction and only within their areas of education, training, or experience.
VI. Auditors shall be objective in their reporting and not knowingly understate or overstate the significance of reported conditions.
VII. Auditors shall not disclose audit results or client information without client approval. Auditors, at their discretion, may disclose observed immediate safety hazards to occupants exposed to such hazards, when feasible.
VIII. Auditors shall avoid activities that may harm the public, discredit themselves, or reduce public confidence in the profession.
IX. Advertising, marketing, and promotion of auditors’ services or qualifications shall not be fraudulent, false, deceptive, or misleading.
X. Auditors shall report substantive and willful violations of this code to the board.
310-A:206 Board of Energy Auditors.
I. A board of energy auditors is established to administer the provisions of this subdivision. The board shall consist of 7 persons as follows:
(a) Five members shall be energy auditors, appointed by the governor and council. Each energy auditor member shall hold a current and valid New Hampshire energy auditor license under RSA 310-A:209 and shall have actively practiced energy audits for a minimum of 5 years as a means of his or her livelihood prior to appointment.
(b) Two shall be public members, each to be appointed by the governor and council. Each public member of the board shall be a person who is not, and never was, an energy auditor or the spouse of any such person, and who does not have, and never has had, a material financial interest in either the provision of energy auditor services or an activity directly related to the energy audit trade. In addition, the public members shall not have held a real estate broker or salesperson license or represented the board or the trade for a fee at any time during the 5 years preceding appointment.
II. Initial energy auditor appointees to the board shall not be required to hold a current and valid New Hampshire energy auditor’s license, but shall have been actively practicing energy audits for a minimum of 5 years as a means of his or her livelihood prior to appointment.
III. Each member of the board shall be a citizen of the United States and a resident of this state.
IV. Members shall be appointed for 5-year terms. Appointments for terms of less than 5 years may be made in order to stagger the appointments. No appointed member shall be eligible to serve more than 2 full consecutive terms, provided that for this purpose only a period actually served which exceeds ½ of the 5-year term shall be deemed a full term. Upon expiration of a member’s term, the member shall serve until a successor is qualified and appointed. Vacancies occurring prior to the expiration of a specific term shall be filled by appointment for the unexpired term. A board member may be removed for cause by the governor and council under RSA 4:1.
V. Members of the board shall receive $25 for each day actually engaged in the duties of their office and shall be reimbursed for all actual travel, incidental, and clerical expenses necessarily incurred in carrying out the provisions of this subdivision.
VI. The board shall hold at least 3 regular meetings each year and special meetings at such times as it may deem necessary. Notice of all meetings shall be given in such a manner as rules adopted by the board may provide. The board shall biennially elect or appoint a chairperson, vice-chairperson, and secretary. Four members shall constitute a quorum.
VII.(a) The board shall keep a record of its proceedings and a register of all applications for licensure, which shall show:
(1) The name, age, and residence of each applicant.
(2) The date of application.
(3) The place of business of such applicant.
(4) The applicant’s educational and other qualifications.
(5) Proof of passing energy audit exam.
(6) Whether the applicant was rejected and the reasons for such rejection.
(7) Whether a license was granted.
(8) The date of the action of the board.
(9) Such other information as may be deemed necessary by the board.
(b) The records of the board shall be prima facie evidence of the proceedings of the board, and a transcript of such records certified by the secretary of the board under seal shall be admissible in evidence with the same force and effect as if the original were produced biennially, as of December 31, the board shall submit to the governor a report of the transactions of the preceding biennium, and a complete statement of the receipts and expenditures of the board.
VIII. The secretary of the board shall publish a roster listing the names and addresses of all energy auditors licensed under this subdivision by the board during February of each even-numbered year. Copies of this roster shall be sent to each person so licensed, placed on file with the secretary of state, and furnished to the public upon request at a fee to be established by the board. The board may include in such roster any other information it deems appropriate.
IX. The board, its members, and its agents shall be immune from personal liability for actions taken in good faith in the discharge of the board’s responsibilities, and the state shall hold the board, its members, and its agents harmless from all costs, damages, and attorneys’ fees arising from claims and suits against them with respect to matters to which such immunity applies.
310-A:207 Rulemaking Authority.
I. The board shall adopt rules, pursuant to RSA 541-A, relative to:
(a) The application procedure for a license to practice under this subdivision.
(b) The qualifications of applicants in addition to requirements of this subdivision, and including the qualifications for satisfactory evidence of good professional character.
(c) Procedures for auditing applicants and licensees.
(d) How a license to practice under this subdivision shall be renewed or reinstated, including late fees and any requirements for continuing education.
(e) The establishment of all fees required under this subdivision.
(f) Disciplinary actions by the board that shall be implemented for violations of the standards of practice, code of ethics, and rules adopted by the board.
(g) Procedures for the conduct of hearings consistent with the requirements of due process.
(h) Procedures for approving education courses for eligibility for licensure and for a continuing education program
(i) How an applicant shall be examined, including the time, place, type, and form of the examination.
(j) The design of an official seal.
(k) The establishment of administrative fines which may be levied in the administration of this subdivision.
II. The board shall adopt one eligibility examination required for licensure that is an independent nationally recognized proctored examination.
III. At least 40 days prior to any hearing to be held pursuant to RSA 541-A:11, the board shall furnish a copy of any proposed rules of or amendments thereto, to all affected professionals licensed by the board.
310-A:208 Fees. The board shall adopt rules, under RSA 541-A, which shall establish fees required under this subdivision, which shall be sufficient to produce estimated revenues equal to 125 percent of the direct operating expenses of the board, including the following:
I. Application for licensure.
II. Renewal for licensed energy auditors.
III. Late fees for a late renewal of license.
IV. Replacement of a lost or mutilated license.
V. Transcribing and transferring records and other services.
VI. Reinstatement fees.
VII. Other fees or fines deemed necessary by the board.
310-A:209 License Required. Beginning January 1, 2011, no person shall practice as an energy auditor or conduct energy audits in this state without an energy auditor’s license issued by the board under this subdivision.
310-A:210 Eligibility Requirements for Licensure as a Energy Auditor.
I. Each applicant for licensure as an energy auditor shall meet the following minimum requirements:
(a) Completion of no less than 80 hours of board-approved education covering all of the following core components of a residential building of 4 units or less:
(1) Heating system.
(2) Cooling system.
(3) Plumbing system.
(4) Electrical system.
(5) Structural components.
(6) Foundation.
(7) Roof covering.
(8) Exterior and interior components.
(9) Site aspects as they affect the building.
(b) Have successfully completed high school or its equivalent.
(c) Proof of passing the board adopted examination required for licensure.
(d) Be at least 18 years of age.
(e) Submit to the board a notarized criminal history records release form as provided by the New Hampshire state police, which authorizes the release of the applicant’s criminal records, if any. The applicant shall bear the cost of the criminal records check.
II. A person who was actively engaged in the business of energy audits in this state as a means of his or her livelihood for at least 12 months preceding the effective date of this subdivision shall be eligible for licensure by the board without completion of the requirements of subparagraph (a). An applicant under this paragraph shall be issued a license by providing evidence satisfactory to the board of the knowledge and experience equivalent to the requirements of subparagraph (a). All applicants shall meet the requirements of subparagraphs (b) through (e), pay an initial fee, and fulfill all other license application requirements.
III. The board shall approve all education programs under subparagraph (a) of organizations or education institutions providing acceptable education and training.
IV. The board shall have the discretion to reject an applicant who is not of good professional character, as evidenced by:
(a) Conviction for commission of a felony;
(b) Misstatement of facts by the applicant in connection with the application;
(c) Violation of any of the standards of practice or code of ethics as they are set forth in this subdivision or in rules adopted by the board; or
(d) Practicing energy audits without being licensed in violation of laws of the jurisdiction in which the practice took place.
310-A:211 License Applications.
I. Applications for licensure shall be on forms prescribed and furnished by the board.
II. Applicants shall include the following:
(a) Proof of required education.
(b) Proof of passing the eligibility testing requirements.
(c) Payment of applicable fees.
(d) Proof of liability insurance.
(e) Any other attachments as required by the board.
III. If the board denies the issuance of a license to any applicant, any fee paid shall be retained as an application fee.
310-A:212 Continuing Education. Evidence satisfactory to the board of the completion in each 2-year renewal period of a minimum of 20 hours of continuing education shall be required for license renewal, provided that one hour of the 20 required hours shall be from a board-approved course on appropriate building regulations including any recent revisions to regulations. The board shall approve educational courses and activities that would further the professional competence of licensees. The continuing education credits shall be determined on the basis of one credit for each contact hour of course instruction or professional development activity actually attended by a licensee.
310-A:213 Issuance of Licenses. The board shall issue a license upon payment of the license fee established by the board, to any applicant who, in the opinion of the board, has satisfactorily met all the requirements of this subdivision. Licenses shall show the full name of the licensee, have a serial number, and be signed by the chairperson or the secretary of the board. The issuance of a license by the board shall be prima facie evidence that the person named in the license is entitled to all the rights and privileges of a licensed energy auditor while the license remains valid. It shall be a class B misdemeanor for the licensee to perform energy audits after the license of the licensee has expired or has been revoked, unless such license shall have been renewed, reinstated, or reissued.
310-A:214 Reciprocity. If, in the determination of the board, another state grants reciprocity to residents of this state and is deemed to have state licensure requirements equal to or exceeding those of this state, the board may enter into a reciprocity agreement allowing applicants who are licensed under the laws of such other state to obtain a license as a energy auditor in this state upon such terms and conditions as may be determined by the board.
310-A:215 Expiration and Renewals.
I. The board shall send, by mail or otherwise, notification of the impending license expiration to each licensee at least one month prior to the expiration of the license, along with a request for payment of a renewal fee. Licensees in good standing may renew their licenses by paying the renewal fee prior to the expiration date of the license, and by presenting evidence satisfactory to the board of completion of the continuing education requirements. If properly renewed, a license shall remain in effect continuously from the date of issuance, unless suspended or revoked by the board for just cause.
II. All licenses issued by the board shall expire on the last day of the licensee’s month of birth in the second year following the year of issuance, or upon such other biennial date as the board may adopt. If the renewal fee is not submitted within 12 months after the expiration date, the licensee’s name shall be removed from current status, and application for reinstatement shall be required to return to current status. The board shall charge a 20 percent late fee for each month or fraction of a month the renewal is late, up to 12 months, in addition to the renewal fee. Any renewal application received 12 months after the expiration date shall be rejected, unless accompanied by proof of successful completion of the examination required by the board. A licensed energy auditor shall complete at least 20 hours of board-approved continuing education during each license period in order to maintain his or her license. If a licensee fails to renew such license within the 12 months after the date of expiration, it shall become null and void and the licensee shall be required to reapply and to be re-examined for licensure.
III. Licensees who have been activated by the military shall be exempt from any penalties or fees for renewal or reinstatement due to their absence, as approved by the board.
310-A:216 Disciplinary Action.
I. The board may undertake disciplinary proceedings:
(a) Upon its own initiative; or
(b) Upon written complaint of any person which charges that a person licensed by the board has committed misconduct under paragraph II and which specifies the grounds therefore.
II. Misconduct sufficient to support disciplinary proceedings under this section shall include:
(a) The practice of fraud or deceit in procuring or attempting to procure a license to practice under this subdivision.
(b) Conviction of a felony or any offense involving moral turpitude.
(c) Any unprofessional conduct, or dishonorable conduct unworthy of, and affecting the practice of, the profession.
(d) Unfitness or incompetence by reason of negligence or other causes; or negligent or willful acts performed in a manner inconsistent with the interests of persons relying on the expertise of the licensee.
(e) Addiction to the use of alcohol or other habit-forming drugs to a degree which renders the licensee unfit to practice under this subdivision.
(f) Mental or physical incompetence to practice under this subdivision.
(g) Willful or repeated violation of the provisions of this subdivision.
(h) Suspension or revocation of a license, similar to one issued under this subdivision, in another jurisdiction and not reinstated.
(i) Violations of the code of ethics for energy auditors, or any other rule adopted by the board.
(j) Providing false testimony before the board.
(k) Failure to provide, within 30 calendar days of receipt of notice by certified mail, return receipt requested, information requested by the board as a result of any formal complaint to the board alleging a violation of this subdivision.
(l) Knowingly making or signing any false statement, certificate, or affidavit in connection with the practice of energy audits.
310-A:217 Hearings.
I. The board shall take no disciplinary action without a hearing. At least 14 days prior to hearing, both parties to a disciplinary proceeding shall be served, either personally or by certified mail, return receipt requested, with a written copy of the complaint filed and notice of the time and place for hearing. All complaints shall be objectively received and appropriately pursued by the board. Written complaints received by the board shall be acknowledged within 3 months of the date of notice to the board. Written notice of all disciplinary decisions made by the board shall be given to both parties to the proceeding upon their issuance.
II.(a) The board shall have the power to administer oaths or affirmations, preserve testimony, subpoena witnesses, and to compel, by subpoena duces tecum, the production of all books, records, files and documents, whether originals, copies, or in electronic or other form, and other materials, relevant to its investigation of any grievance, complaint, or disciplinary proceeding before the board.
(b) The board may issue subpoenas with the approval of the office of the attorney general.
(c) A minimum of 10 business days’ notice shall be given for compliance with a subpoena under this subdivision.
III. At any hearing, the named person or licensee shall have the right to:
(a) Appear in person, by counsel, or both.
(b) Produce evidence and witnesses.
(c) Cross-examine witnesses.
IV. If the named person fails or refuses to appear, the board may proceed to hear and determine the validity of the charges.
V. The board, upon making an affirmative finding under RSA 310-A:216, II, may take disciplinary action in any one or more of the following ways:
(a) By written reprimand.
(b) By suspension, refusal to renew, limitation or restriction of a license, or probation for a period of time determined to be reasonable by the board.
(c) By revocation of a license.
(d) By requiring the person to participate in a program of continuing education in the area or areas in which the person has been found deficient.
(e) By requiring the person to practice under the direct supervision of a licensed energy auditor for a period of time specified by the board.
(f) By assessing civil penalties, after notification and due process, in amounts established by the board which shall not exceed $2,000 per offense or, in the case of continuing offenses, $200 for each day the violation continues, whichever is greater.
(g) By requiring the energy auditor to obtain insurance against loss, expense, and liability resulting from errors and omissions or neglect in the performance of services as an energy auditor.
VI. Any person affected by a final decision of the board may appeal such final decision to the state building code review board, pursuant to RSA 155-A:11-a.
VII. In addition to any other action, the board may assess all reasonable costs incurred in connection with any disciplinary proceeding, including investigations, stenographers, and attorneys’ fees, as a condition of probation or reinstatement.
VIII. Any disciplinary action by the board shall be published in the report of the board and shall be a public record in accordance with RSA 91-A.
310-A:218 Reissuance of Licenses. The board, for reasons it may deem sufficient, may reissue a license to any person whose license has been suspended or revoked, provided 3 or more members of the board vote in favor of such reissuance. A new license may be issued, subject to the rules of the board, and a fee shall be charged for such issuance.
310-A:219 Violations; Penalty. It shall be a class B misdemeanor for any natural person or a felony for any business organization to:
I. Present or attempt to use the license of another as one’s own;
II. Give any false or forged evidence of any kind to the board or to any board member in obtaining a license;
III. Falsely impersonate any other licensee of like or different name;
IV. Attempt to use an expired or revoked license;
V. Beginning January 1, 2011, practice energy audits or to offer, advertise, or hold oneself out to the public as being in the practice of energy audit in this state without a license ; or
VI. Violate any of the provisions of this subdivision.
310-A:220 Restraint Of Violations. The superior court shall have jurisdiction in equity to restrain violations of RSA 310-A:219 on proceedings brought by the attorney general, the board, or any society of licensed energy auditors duly incorporated under the laws of this state.
310-A:221 Exemptions. Nothing in this subdivision shall be construed to prevent or affect:
I. A person who is employed by a governmental entity from auditing residential buildings if the audit is within official duties and responsibilities.
II. A person from performing an energy audit if the audit will be used solely by a bank, savings and loan association, or credit union to monitor progress on the construction of a residential structure.
III. A person who is employed as a property manager for a residential structure and whose official duties and responsibilities include auditing the residential structure from performing an audit on the structure if the person does not receive separate compensation for the audit work.
IV. A person who is regulated in another profession from acting within the scope of that person’s license, registration, or certification.
2 Appeals Process. Amend RSA 155-A:11-a to read as follows:
155-A:11-a Appeal of Decisions of the Electricians’ Board, [and] the State Board for the Licensing and Regulation of Plumbers, the Board of Home inspectors, and the Board of Energy Auditors.
I. The board shall hear appeals of final decisions of the board established under RSA 319-C:4, the board established under RSA 329-A:3, [and] the board established under RSA 310-A:186, and the board established under RSA 310-A:206.
II. The board shall hold a hearing within 40 days of the receipt of an appeal, unless at extension of time has been granted by the board at the written request of one of the parties and shall render a decision within 30 days of the conclusion of the hearing.
3 Joint Board; Energy Auditors Added. Amend RSA 310-A:1 to read as follows:
310-A:1 Joint Board Established. There shall be a joint board of licensure and certification for professional engineers, architects, land surveyors, foresters, professional geologists, natural scientists, landscape architects, court reporters, [and] home inspectors, and energy auditors consisting of each of the members of the board of professional engineers, board of architects, state board of licensure for land surveyors, foresters’ board, board of professional geologists, the board of natural scientists, the board of landscape architects, the board of court reporters, [and] the board of home inspectors, and the board of energy auditors. The joint board shall meet at least quarterly to carry out its duties established under this chapter.
4 Effective Date. This act shall take effect July 1, 2010.
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HB 1626-FN - FISCAL NOTE
AN ACT requiring the licensing of building energy auditors.
FISCAL IMPACT:
The Judicial Branch, the Department of Justice, the New Hampshire Association of Counties, and the New Hampshire Joint Board of Licensure and Certification state this bill will increase state and county expenditures by an indeterminable amount in FY 2010 and each year thereafter. The New Hampshire Joint Board of Licensure and Certification states this bill will also increase state revenue by an indeterminable amount in FY 2011 and each year thereafter. There will be no fiscal impact on county and local revenue or on local expenditures.
METHODOLOGY:
The Judicial Branch states the proposed bill would add RSA 310-A:202 through 221 to establish a board of energy auditors and its code of ethics and to institute a process for the licensing and regulation of building energy auditors. Numerous sections of the proposed bill could have a fiscal impact on the Branch. Proposed RSA 310-A:213 and 219 establish class B misdemeanors for violations of the subdivision if done by a natural person. Proposed RSA 310-A:219 provides for a felony level offense if done by a business organization. Proposed RSA 310-A:217, VI allows decisions of the board of energy auditors to be appealed to the state building code review board pursuant to RSA 155-A:11-a. Decisions of that board in turn may be appealed to the superior court pursuant to RSA 155-A:12. Finally, proposed RSA 310-A:220 provides for injunction actions in the superior court which may be brought by the attorney general, the board of energy auditors, or any society of licensed energy auditors. The possible impacts to the Branch run the gamut from civil actions to class B misdemeanors, to felonies, and to supreme court appeals. The Branch states the cost of a class B misdemeanor case is $36.89, a routine felony is $335.98, a routine civil case is $303.93, and a complex civil case is $559.43 in FY 2011 and each year thereafter. The Branch cannot estimate the number or types of cases that could occur as a result of the proposed bill, however it states the fiscal impact will likely exceed the $10,000 fiscal impact threshold.
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The Department of Justice states services of an assistant attorney general in its civil bureau will be required to draft rules and develop a statewide training program if the proposed bill were to become law. The Department states this cost could be absorbed in its current budget and estimates approximately 500 hours of that attorney’s time would be spent on these two tasks, meaning some of that attorney’s current duties may be postponed or suspended. The Department states the increase in potential administrative violations created by this bill may increase the number of investigations and prosecutions conducted by its administrative prosecutions unit, specifically the services of an assistant attorney general, an investigator, and a paralegal, so it estimates that state expenditures related to these activities may increase. Also, if any of the actions taken under the proposed bill result in appeals, the Department may see its expenditures rise further. However, the Department cannot estimate the number of cases that would be generated or the number of appeals to be filed, so it cannot project the specific increases in time and money spent as a result of the proposed bill.
The New Hampshire Association of Counties states to the extent individuals are prosecuted for a misdemeanor under the proposed bill, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be prosecuted as a result of this bill.
The New Hampshire Joint Board of Licensure and Certification states it currently has adequate staff to handle the addition of the board of energy auditors, however it states costs for postage, supplies, and per diem and mileage payments for board members would all increase. The Board also states the board must collect revenues equal to 125% of administrative costs, so state revenues will also increase. The Board states the number of energy auditors seeking licensure, the number of board meetings, and the distance board members must travel, are included in the variables driving the increases in revenue and expenditures, however it cannot estimate these or any other variables in calculating a specific amount for the increases.