protect the health, safety and welfare of the public as well as public and private property by assuring the competence of those who perform electrical work through licensure by the state fire marshal of the state fire commission.

The Legislative Auditor found that the State Fire Marshal does not provide oversight of the licensed electricians, and that much of the $540,000 annual revenues derived from electrician licensure activities is used for other functions of the Fire Marshal's office.

ISSUE AREA The State Fire Marshal's Office does not Investigate Complaints or Conduct Oversight of Licensed Electricians, and Uses Fees from Electrical Licenses to Perform Other Functions

Inherent in the supervision of electricians is the responsibility to license new electricians and renew the licenses of already licensed electricians. According to the West Virginia Code, a license is a "valid and current certificate of competency issued by the state fire marshal." Another responsibility inherent in the supervision of electricians is oversight of licensed electricians. Article 3b [ § 29-3B-1 et seq.], chapter twenty-nine of the West Virginia Code states that

The state fire marshal may, upon complaint or his own inquiry, after notice and hearing as provided by article five [ § 29A-5-1 et seq.], chapter twenty-nine-a of this code, suspend or revoke the license of any person who holds a license if: 1) the license was granted upon an application or documents supporting such application which materially misstated the terms of the applicant's qualifications or experience; 2) such person subscribed or vouched for such misstatement by an applicant; 3) such person incompetently or unsafely performs electrical work; 4) such person violated any statute of the state of West Virginia or any ordinance of any municipality or county of the state of West Virginia which protects the consumer or public against unfair, unsafe, unlawful or improper business practices; or 5) such person fails to comply with any rule of the state fire marshal promulgated to fulfill his responsibilities under this article.

As was stated above, Article 3b [ § 29-3B-1 et seq.], chapter twenty-nine of the West Virginia Code gives the Fire Marshal's Office the authority to investigate and conduct hearings, suspend and revoke licenses for such a person who incompetently or unsafely performs electrical work to protect the consumer or public against unfair, unsafe, unlawful or improper business practices. The statute gives the Fire Marshal authority for oversight of licensed electricians, which is a charge of the State Fire Marshal distinct from enforcement of the State Fire Code.

According to the State Fire Marshal, only five complaints have been filed with the State Fire Marshal's Office between April 8, 1989 and November 21, 1997. The complaints and their dispositions are shown in TABLE 1 below.

According to State Fire Marshal's Office staff, they usually recommend that the citizens hire attorneys and pursue their grievances in civil litigation when they file a complaint. On a few occasions, complaints were made regarding licensed electricians and the Fire Marshal's Office dispatched an investigator to get a signed statement from the electrician confirming that the electrician follows all applicable standards and treats consumers fairly. Furthermore, the State Fire Marshal's Office has never conducted a hearing, suspended or revoked any electrician's license, despite the comparatively large number of electricians, which has risen from 9,058 in 1994 to 10,535 in 1996 (see TABLE 2 below).
TABLE 2

There are many threats resulting from the lack of oversight of licensed electricians. These include potential loss of life, health, property and public confidence. Nationally, there were 40,000 fires caused by problems with home electrical wiring. As a leading cause of fires, electrical problems result in many deaths and injuries each year. Fires are a reality. Families lose their homes, furnishings and unreplaceable family treasures to fires every day. It is critical that public confidence in the licensure of occupations and professions be maintained by providing a channel for complaints regarding performance or questions of competence. As long as the potential loss of life and property exits due to the conduct of electricians, oversight should be a condition of licensure, as is the case with architects, professional engineers, land surveyors, psychologists, social workers, physicians, and electricians in other states.

Based on the probability of complaints occurring in the field of electrical work as compared to selected other licensed occupations and professions, one would expect some complaints, if a process was made available to the public. TABLE 3 shows complaints filed and disciplinary actions taken by the boards governing the licensing of architects, licensed practical nurses, land surveyors and professional engineers.

Other states have taken very strong positions on oversight of licensed professions. Utah and New York not only take oversight of licensed professionals seriously, each have Internet sites dedicated to providing consumers information about licensed professionals. At a click of a mouse one can learn what persons are licensed to practice a given profession and also determine whether specific individuals have had disciplinary actions taken against them. The New York site even provides descriptions of incidents resulting in disciplinary action.

Continuing education is an integral part of occupational and professional licensure. Boards of licensure establish requirements for keeping up with changes in their fields. The lack of oversight of electricians leaves to chance that licensees know the relevant changes in electrical codes or safety procedures when working in hazardous situations. In 1996, there were about 200 significant changes in the National Electrical Code. There are no requirements by the State Fire Marshal to obtain continuing education to renew licenses.

An additional effect of not conducting oversight of electricians is that the funds for such purpose, i.e., $50 for annual renewal of licenses, is used for other purposes of the State Fire Marshal. TABLE 5 shows revenue generated from issuing and renewing licenses for electricians for FY97.

CAUSAL FACTORS

Perceived lack of resources and authority

One reason that the Fire Marshal's Office is not fulfilling its responsibility for the oversight of licensed electricians is a perceived lack of resources and authority. In a letter dated October 27, 1997 the Deputy Fire Marshal stated that "we do not have the resources or authority to do electrical wiring inspections in dwellings." The Fire Marshal's Office asserts that when the Legislature added this responsibility to the office (April 8, 1989) it cut general funding and dedicated licensure revenues to subsidize existing programs and fund the supervision of electricians. It is true that the Fire Commission's general funds (account No. 6170) decreased from $876,340 in 1989 to $756,666 in 1990. However, beginning in Fiscal Year 1990 the Fire Commission had an additional fund from licensure revenues (account 8017), denoted as Fire Marshal Fees, which provided added funding of $438,648 to the Fire Commission. These two funds combine for a total of $1,195,314 representing a 36% increase in funding from the previous year (see TABLE 6).

The Fire Marshal's Office claims that it has no authority to inspect electrical wiring in dwellings because of an exemption clause in the Fire Code which states that "this State Fire Code has no application to personal care homes caring for three or less patients or buildings used wholly as dwelling houses for no more than two families and has no application to farm structures." However, the purpose of this exemption is to protect the privacy of the average citizen living in one or two family structures from routine or random fire code inspections. The average citizen, living in a single or double family dwelling, with a complaint against a licensed electrician would, in most cases, be willing to allow the Fire Marshal access to their home.

A legal opinion obtained by the Legislative Auditor disagrees with the lack of authority on the part of the fire Marshal. It states in relevant part as follows:

I agree that enforcement of chapter twenty-nine, article three-b (Supervision of Electricians) is independent of, and not directly related to, the state fire code. The provisions of the state fire code do not encumber the enforcement of the electricians' law. It would be logical to infer that if the state fire marshal has the power to suspend or revoke an electrician's license if that person incompetently or unsafely performs electrical work, the fire marshal may perform those steps necessary to make this determination. That would, of course, include inspection of any work performed by the electrician. The fire marshal could provide the details of this task under his or her rule making authority found under §29-3B-5. Of course, this inspection authority also could be set forth in whatever detail desired by an addition of specific language to article three-b. The inspection can be done under present statutory authority in any case.

The Fire Marshal's Office also asserts that "unless the Fire Marshal's Office witnesses the act or has video graphic evidence, the Fire Marshal's Office cannot take disciplinary action. The alleged perpetrator will usually deny performance of the work. It is one person's word against another's." As with any disciplinary proceeding, there will be questions of fact in almost any case. The State Fire Marshal has the responsibility to investigate complaints about licenced electricians. If an investigation fails to produce compelling evidence, then perhaps a hearing should not be held. However, if evidence is produced, such as a processed check showing payment for work, the complainant's testimonial or other exhibits, certain questions of fact can be determined in an administrative hearing. Stopping an investigation with a simple denial by the licensee is an abdication of oversight responsibilities.

CONCLUSION

With the responsibilities of electrician licensure placed upon the State Fire Marshal in 1989, is the duty of oversight. Electricians pay an initial $10-$25 testing fee, depending upon the type of electrician's license, and $50 each year to activate and renew licenses. The license purchased by these fees represents a certificate of competency. It shows the consumer that the electrician is qualified to perform electrical work. Not fulfilling the oversight responsibilities for licensure of electricians causes harm to honest and competent licensed electricians who are competing with electricians using inferior materials and workmanship. The collection of licensure fees without fulfilment of this responsibility represents a form of "taxation without representation", since the $50 fee is only covering processing of license renewal and protection from encroachment by unlicensed electricians. Most importantly, this lack of an oversight function could result in the loss of life, health or property of the citizens of West Virginia.

RECOMMENDATIONS

Recommendation 1

The Legislature should consider establishing a separate division within the Board of Registration for Professional Engineers to assume all electrician licensure responsibilities, using existing resources as collected by the State Fire Marshal.

OR

Recommendation 2

The State Fire Marshal should investigate complaints against licensed electricians or persons illegally practicing the occupation of electrician, hold hearings, suspend or revoke such licenses as appropriate, and keep records regarding those proceedings, and report such information to the Legislature annually.