This was posted on TIJ.
May 10, 2008 - Seattle, WA
Recently, one of the ethics committee members of the International Association of Certified Home Inspectors (interNACHI) found himself in ethical hot water when he tried to discredit the National Home Inspector Exam (NHIE), owned by the Examining Board of Professional Home Inspectors (EBPHI).
James H. Bushart, proprietor of Home Inspection Services of Missouri, a St. Louis home inspection firm, initiated a post on the interNACHI public message board wherein he offered to provide to any requesting state legislator what he purported to be 980 actual questions and answers to the NHIE. The thread was entitled,
980 Questions/Answers to the NHIE....Free!. The post read in part,
"Are you dealing with a state legislature that might be seriously considering the NHIE as an entrance test for home inspectors? Have your favorite congressman email me and I will send him 980 questions and answers to the NHIE that was recently sent to me, as a free bonus, when I bought some practice questions for the ICC exam. I can prove to anyone who needs proof that the test has been compromised and that it....and its answers....are for sale on eBay."
Though, in the very next sentence Bushart said that he would not pass on the questions or answers directly to other inspectors due to ethical considerations, less than 15 posts later he agreed to send them to Frank Carrio, a New Hampshire inspector, who wanted to use them to discredit testimony made to New Hampshire legislators by Noel Zak, Executive Director of EBPHI.
The NHIE is used to ensure that home inspectors have basic competency at what they do by the majority of states that have some form of home inspector regulation. The questions and answers used in the NHIE are written by a committee of home inspectors from all parts of the continent and are reviewed independently by subject matter experts before they are used in the exam. To ensure security of the exam, inspectors taking the exam are not allowed to bring books, papers, or electronic devices of any sort into the exam room, are not permitted to copy questions or answers, and must agree not to divulge the questions or answers to anyone.
EBPHI takes a very dim view of home inspectors that claim to have the questions and answers to the NHIE and offer to distribute them to anyone. Consequently, on April 16th, Bushart posted to the same message board the contents of a demand letter sent to him by Barnes & Thornburg LLP, a Chicago law firm representing EBPHI. In that demand letter, Melissa A. Vallone, counsel for EBPHI, informed Bushart that his claim to have the questions and answers to the NHIE, and offer to distribute them, constituted "willful copyright infringement, as well as tortuous interference and unfair competition." Vallone demanded:
- A complete copy of the NHIE test questions which Bushart claimed to have;
- The immediate destruction of all copies of the NHIE test questions which Bushart claimed to have;
- The identifying information of the individuals who provided Bushart with the alleged copy of the NHIE test questions;
- An immediate post of the following message by Bushart to the interNACHI message board and any other place where Bushart had published that information:
“Copies of the NHIE test will not be distributed. The NHIE test is the property of the Examination Board of Professional Home Inspectors, Inc. (“EBPHI”) and is subject to copyright protection. I acknowledge that the NHIE test is not public domain material.”
Vallone warned that if Bushart did not agree in writing to those demands within five business days the firm would take
"all necessary steps to fully protect EBPHI’s intellectual property and enforce its right".
Bushart soon changed his tune, stating in a subsequent post,
"The testing material that I have does not actually say "NHIE" on it. It says "Questions and Answers from the ASHI NAHI Test". Perhaps ASHI and NAHI are using a different test these days, and I simply made an honest mistake in interpreting that as such."
It's clear that, despite his contention that he might have made an “honest mistake,” Bushart was knowingly being less than truthful when he’d offered to distribute the questions and omitted the true title of the documents; stating instead,
"I will send him 980 questions and answers to the NHIE" and "I can prove to anyone who needs proof that the test has been compromised and that it....and its answers....are for sale on eBay."
When TIJ contacted EBPHI on April 17th to find out more about this issue, Ms. Zak and Scott Patterson, President of the EBPHI Board of Directors, confirmed that action was ongoing but declined to comment about the specifics. On May 7th, EBPHI issued a news release stating that,
“the material has proven to be from sources OTHER THAN the NHIE’s question and answer item bank,” affirming that the security of their test questions and answers has not been compromised
(See the press release).
As of this writing, it’s not known what, if any, actions EBPHI is considering against Bushart, for attempting to discredit EBPHI and impugn the integrity of the NHIE through false allegations.