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Branstad begging for a lawsuit on electrical inspections

by: desmoinesdem

Mon Jul 02, 2012 at 09:15:00 AM CDT


The Iowa Department of Public Safety announced last week that it is halting electrical inspections of farm buildings. The move is consistent with Governor Terry Branstad's opinion that the inspections are an unlawful bureaucratic overreach. One way or another, a court will probably decide whether the Electrical Examining Board or the Branstad administration violated state law.
desmoinesdem :: Branstad begging for a lawsuit on electrical inspections
During Governor Chet Culver's administration, the Iowa Electrical Examining Board used the normal rulemaking process to require state inspections for electrical work on farm buildings. The rule change wasn't on my radar until Branstad filed a formal objection to it in January of this year. He recalled hearing "horror stories" from farmers about the state-mandated inspections during his 2010 gubernatorial campaign. Branstad asserted then and repeated on June 29 that the Electrical Examining Board circumvented state law and legislators' intent. That claim doesn't look any more credible to me now than it did in January. Here is Section 103.22 (2) of the Iowa Code (pdf), which lists exemptions from electrical inspection requirements.

103.22 Chapter inapplicability.
The provisions of this chapter shall not:
[...]

2. Require employees of municipal utilities, electric membership or cooperative associations, investor-owned utilities, rural water associations or districts, railroads, telecommunications companies, franchised cable television operators, farms, or commercial or industrial companies performing manufacturing, installation, and repair work for such employer to hold licenses while acting within the scope of their employment. An employee of a farm does not include a person who is employed for the primary purpose of installing a new electrical installation.

I see nothing in that paragraph to suggest that legislators intended to exempt farmers from electrical inspections.  I see language exempting farm employees from having to hold electrical contractor licenses, and language that allows property owners to perform electrical work on farm buildings. Logically, farmers and their employees should be able to do their normal jobs without holding a contractor's license. The final sentence states that "an employee of a farm" is not a person who is employed for the sole purpose of installing a new electrical installation. I take that to mean legislators wanted to be certain that electrical contractors hired by farmers are licensed, just like other businesses would need to hire licensed contractors to install new wiring.

If that is the case, why would legislators want farmers to be exempt from the same inspection requirements as other commercial enterprises?

I believe Branstad is misinterpreting Iowa Code, and so does the chair of the electrical examining board, according to Lynn Campbell's report for IowaPolitics.com in January.

But Barb Mentzer, chairwoman of the Iowa Elecrical Examining Board, said the board was advised by the state attorney general's office that agriculture is covered by the requirement for state inspections for electrical work.

"All of the rules are written per the statute. There is no exemption in the code for farms specifically," Mentzer said. "As a board, we see our responsibility as being the protection of everyone in the state."

Mentzer said the board reaffirmed its rule last week, after three farmers in Carroll County asked for a full exemption from the rule. She said electrical work can be dangerous if not installed properly. Since inspections started under the rule in March 2009, the state has seen a 35 percent reduction in electrical fires, she said.

The attorney general's office will have a chance to weigh in on this matter again. According to this Iowa Senate press release of June 29, Iowa Senate President Jack Kibbie is asking Attorney General Tom Miller to evaluate what Branstad just did.

Des Moines -- On June 26, the Branstad Administration announced that, effective July 1, 2012, the law requiring electrical inspections would be "indefinitely suspended" when it comes to farm buildings.

Senate President Jack Kibbie has asked Attorney General Tom Miller if the Branstad action goes against existing state law.

"This is a safety issue and it is a state law," said Kibbie, who farms near Emmetsburg with his two sons.

In 2009, the Electrical Examining Board asked the Attorney General whether farm properties were exempt from electrical inspections.

In response, the Attorney General's office stated that
"...there is no support in the Iowa Code for the notion that farms and farm properties are generally excluded from the electrical installation inspection provisions of the Iowa Code chapter 103 (2009). Such an exclusion would run contrary to the public safety objective of the legislation."

Kibbie says there's no excuse for the Governor's actions.

"If Governor Branstad doesn't like a law, he needs to ask the Legislature to send him a bill changing the law.  It really doesn't get much more black and white than this," Kibbie said.

Attachments:
Department of Public Safety memos to state inspectors and to electrical contractors, utility companies and electricians, Kibbie letter to Attorney General; Electrical Inspections Brochure from Iowa Department of Public Safety.

Additional Information:

Evidence of this sudden reversal of existing policy can be found in a brochure titled "State Electrical Inspections: Frequently Asked Questions." The brochure, which was available through the Department of Public Safety's web site on June 28, 2012, contained the following information:

"Are electrical installations on farms exempt from inspections?  NO.  All new electrical installations on farms and other agricultural facilities are required to be inspected."

In addition, as of 9:00 AM on June 29, 2012, Iowans reviewing the frequently asked questions page at the Online State Permitting and Inspection System could read the following under item 26:

"Are farms exempt from electrical inspections?

"Answer: Farms will not be exempt from electrical inspections. Farms will be inspected per the 2008 National Electrical Code."

Senate File 478, approved by the Legislature during the 2009 session and signed by the Governor, specifically addressed this issue and the Branstad Administration had required inspections in compliance with the law.  But on June 26, 2012, the Iowa Department of Public Safety sent a message to "Electrical Contractors, Utility Companies and Electricians" which stated that:
"...we will be indefinitely suspending mandatory electrical inspections on a 'farm facility' while has been defined as a building or structure located on a farm other than a residential, industrial, or public-use building or facility"

I think we can guess how the attorney general will appraise this action. Branstad and Miller have a long history of not seeing eye-to-eye on the governor's power plays, which is one reason Branstad worked so hard to get Brenna Findley elected attorney general in 2010.

The governor already lost one lawsuit filed by Democratic state legislators over his expansive use of the line-item veto. He and other members of his administration are facing a pending lawsuit by Iowa Workers Compensation Commissioner Chris Godfrey. I will be surprised if Democratic legislators don't challenge the Iowa Department of Public Safety's directive in court.

I also foresee a massive civil lawsuit against state government if anyone is injured or killed in a future farm building electrical fire.

The Iowa Farm Bureau and Branstad have claimed the electrical inspections cost farmers $500. But Jason Clayworth reported for the Des Moines Register that

the fee is based on multiple factors such as the size and scope of electrical work that is inspected. Around 85 percent of the inspections cost under $150 and 95 percent are under $250, according to information from Pat Merrick, the state's chief electrical inspector.

The 2011 annual Iowa Public Safety report shows that there is a 35 percent reduction in electrical fires since the new permitting program began in 2009. In the latest fiscal year, the state completed 24,865 electrical inspections with 94 percent being completed within three days of a request, the report shows.

Even if these inspections cost some farmers $500, that expense hardly rises to the level of "horror story." It sounds like a fair price for reducing the risk of electrical fires.

Maybe the governor considers farmers a special class of business owners who shouldn't have to play by the same rules as everyone else, but as I explained above, Iowa Code Section 103.22 (2) does not exempt farmers from having the wiring in their commercial buildings inspected periodically. It merely states that farmers and their employees do not need to hold electrical contractor's licenses in order to go about their routine work.

Any relevant thoughts are welcome in this thread.

P.S. Mentzer is an electrical inspector and registered Democrat whose term on the Electrical Examining Board expires in April 2013. Guess who's not going to be reappointed?

UPDATE: Branstad's communications director Tim Albrecht responded to this post by saying, "The board regulated outside their authority." Albrecht pointed me to Chapter 103.22(7) of Iowa Code, which "excludes farm property" according to the Branstad administration's reading. I am not an attorney, but I disagree with that interpretation. Here is Chapter 103.22(7):

103.22 Chapter inapplicability.
The provisions of this chapter shall not: [...]

7. Prohibit an owner of property from performing work on the owner's principal residence, if such residence is an existing dwelling rather than new construction and is not an apartment that is attached to any other apartment or building, as those terms are defined in section 499B.2, and is not larger than a single-family dwelling, or farm property, excluding commercial or industrial installations or installations in public use buildings or facilities, or require such owner to be licensed under this chapter. In order to qualify for inapplicability pursuant to this subsection, a residence shall qualify for the homestead tax exemption.

This section of code says nothing about exempting farm buildings from inspections. It says that owners of farm property need not be licensed in order to perform electrical work on their own buildings. I don't see any clear intent to exempt owners of farm property from having their wiring inspected by a licensed professional.

SECOND UPDATE: Geoff Greenwood, the communications director for the Attorney General's office, told me on July 3 that he didn't know when Miller will release the opinion requested by Kibbie.  

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Ruling issued in electrical inspection case (4.00 / 1)
Judge William Ostlund issued a ruling today declaring that the Iowa Electrical Board exceeded its authority in attempting to regulate farm electrical inspections. Judge Ostlund declared the regulation in question "is invalid and unenforceable", but remanded the case to the Board and the Department of Public Safety for further proceedings.

Contrary to prior analysis on this site, the argument against the regulation was not that there was a specific statutory exemption for farms, but rather that the legislature only gave the Board authority over industrial, commercial, and residential electrical installations, and did not extend that authority to agricultural installations. The judge agreed with this argument, though he noted that certain farm installations may well be covered by the statutory definition of "industrial" if the farmer processes grain for a fee.  The lawsuit did not challenge, and the judge did not rule on, the Board's authority to regulate residential electrical installations on farms.  So it appears the ruling only applies to farm buildings and equipment, and farm residences are likely still subject to inspection under the Board's authority to inspect residences (which is clearly listed in the statute).

The judge also cited Gov. Branstad's objection to the Board's rule in several places in his opinion.  Look for more objections by the Governor to other rules in the near future.

Incidentally, prior posts on this issue quote Board chair Barb Metzler as declaring that the State Attorney General's office provided an opinion that the Board had authority to regulate farms. But the court file shows that the Assistant AG who advised the Board told the Board on several occasions that the statute was not clear and could be interpreted either way. Only after the Board adopted the rule to regulate farms did that same Assistant AG author an opinion memo for the Board declaring the rule to be "clearly" within the Board's authority. Looks like the court found the statute to be much less clear than the Board and its Assistant AG.

Will be interesting to see if the Board appeals the ruling, or goes back to the legislature for a revision to the governing statute.


interesting (0.00 / 0)
Do you have a link to the ruling?

Governor Branstad's communications director was very clear about the justification for the executive order: Chapter 103.22(7) of Iowa Code excluded farm property, in his interpretation.

It looks like the lawsuit filed by three Carroll County farmers claimed that agricultural installations are neither "industrial" nor "commercial," so not covered by the same provision.

Invite other Iowa political junkies to join us at Bleeding Heartland.


[ Parent ]
Electrical Board decision (0.00 / 0)
The decision is not online anywhere (at least not yet that I can find). I can email a .pdf to anyone interested, and will try to post a copy on Google docs later today.  The decision was in fact issued in the Carroll County case you linked to.

[ Parent ]
thanks in advance (0.00 / 0)
I'm at desmoinesdem AT yahoo.com. Will be interested to read it when I have a chance.

Invite other Iowa political junkies to join us at Bleeding Heartland.

[ Parent ]
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