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This paper explores the role of ethics within the world of building officialdom. Building officialdom is taken to mean building inspectors, building surveyors, accredited certifiers, building officials or code compliance officials depending upon the jurisdiction. The paper contends that building officials perform a very unique role within the building professional and practitioner fraternity and the uniqueness of that role is underscored by a set of challenges that are bespoke to their vocation.

Ethics definitions?

An ethical disposition is characterised by an ability to discern right from wrong and when there is an ethical challenge to respond automatically with a sound moral response.

When disciplinary decision makers adjudicate over whether a professional has been ethical in the discharge of their professional responsibilities, they often have regard to the standards of peers of good repute.

The peer of good repute test is prevalent in many good practice jurisdictions in setting the benchmarks of ethical decorum as a judgement that is based upon the peer test is a judgment that is informed by one`s peers understanding of the professional nature, mores, ethical conundrums and real-life scenarios that may well be unique to that vocation. This is particularly the case with formulating an ethical creed for building officials; in light of the uniqueness of their vocation and there being so much that is consequential upon their decisions, as their approval often provides a statutory imprimatur for safe occupation.

There are many good definitions of ethics in the public and professional domain and the definitions are consistent with what a typical law-abiding citizen would understand to be an ethical construct or creed.

The below definition captures many of the elements of these truisms:

“At its simplest, ethics is a system of moral principles. They affect how people make decisions and lead their lives.

Ethics is concerned with what is good for individuals and society and described as moral philosophy. 

The term is derived from the Greek word ethos which can mean custom, habit, character or disposition. 

Ethics covers the following dilemmas: – 

• How to lead a good life;
• Our rights and responsibilities;
• The language of right and wrong; and
• Moral decisions – what is good and bad”.[1]

An extrapolation of some of the key elements from the definition of ethics and the statutory building surveyor’s (oath referred to below) provides some guidance on the attributes of the type of ethical disposition that sits comfortably with that which is expected of building officials:-

• impartiality;
• without fear, favour or affection;
• diligence and vigilance;
• ensuring that building regulations are strictly observed;
• custom and habit and disposition;
• the language of right and wrong; and
• being able to divine the good from the bad, the right from the wrong.

The Victorian Building Surveyors Code of Conduct in its principles of conduct identifies eight core competencies for the building surveyors three of which relate to ethics namely to:

1. act in accordance with the law and public interest;
2. act with integrity, honesty, objectivity and impartiality; and
3. avoid conflicts of interest.[2]

The WABO (Washington Association of Building Officials) code of ethics identifies similar elements. Some of these core elements are to:-

• Place the public`s welfare above all other interests…
• Demonstrate integrity, honesty, humility and fairness in all transactions and constantly strive for excellence in all matters of ethical conduct.
• Accept responsibility for actions taken and remain accountable to those we serve
• Act within the limits of our authority
• Accept no personal favours for public services rendered and conscientiously avid circumstances that could compromise or appear to compromise professional integrity
• Recognise the continuing need for developing improved safety standards for the protection of life, health, and property….”[3]

The Alberta Officials Association also has its own code of ethics.

Some of the key tenets are:-

• “I will, as a building official, regard myself as a member of an important and honourable association
• I will conduct both my personal and official life so as to inspire the confidence of the public
• I will not use my profession and my position of trust for personal advantage or profit
• I will avoid alliances with those whose goals are inconsistent with an honest and unbiased performance of my official duties
• I will bear in mind that I am a professional and that to protect and serve the public is my ultimate goal”.[4]

Why is a sound building official ethical disposition so very important to the viability of a sound building control ecology?

Regardless of whether professional regimes exist for the licencing and accreditation of key construction actors such as engineers, builders and architects (‘key actors’) the role of the building official demands special and unique attention.

Unique because the building official is primarily tasked with determining whether that which is passed, complies with the law in so far as it relates to the approval of key construction stages and ultimately issue of an occupancy permit.

Building officials are ‘central casting’, if you will, in terms of being one of the key elements that make for good practice regulatory ecology, where the central foundation stone is to keep the lives of those that use the built environment in tact.

It is noteworthy why that the Alberta Code states that a building official is member of an important and honourable profession. This should not come as a surprise, for what can be a more noble and honourable vocational raison d`etre than to protect the lives of others.

Strong, well-resourced building inspectorial regimes absolutely save lives.  The Latvian supermarket roof collapse that claimed the lives of 51 people occurred in circumstances where there had been a disbanding of the country`s inspectorate capability on account of post GFC austerity measures. Once the building controls loosened up the inspectorial checks and balances designed to minimise compromised construction outcomes were weakened. As a result, many lives were lost.

The Japanese in post-earthquake forensic and diagnostic analyses found that where buildings have been subjected to earthquakes, the buildings that experienced a lower incidence of structural failure were those that have encountered a high incidence of inspection. It is for this reason that they expanded the inspectorate work force to include private actors as inspectors to strengthen the Japanese building controls, to generate a critical mass. These private certifiers are called ‘regulation conformity inspectors’, aptly named because the job title states precisely what the inspectors` job description is i.e., to ensure that, that which is built complies with the law and that it is the uniqueness of the job and that makes for its indispensability.

The building inspector is a servant of the public regardless of whether the inspector is employed in the public or private sector

The building official is very much a ‘public servant’, regardless of whether the official, the official is an inspector, building surveyor or accredited certifier.

Other building practitioners such as builders, engineers and architects in the main are not, as they work for the private sector and tend to be private client focussed. Even where in some jurisdictions like Australia and Japan where private building certification exists and building certifiers are not on the public service payroll, and are not ‘public servants’ in the ‘main street’ sense of the term, the courts will always deem building officials to be ‘servants of the public’ and will judge them accordingly.

In the Australian state of New South Wales this reality was born out and given legislative voice by their Independent Commission Against Corruption Act 1988 (NSW) (‘ICAC Act’),[5] which was amended to include private building certifiers when private certification was introduced in that state in the late nineties as part of the definition of public servant. This was designed to give the ICAC jurisdiction over the private sector profession, in recognition that private certifiers were performing a public service function. This Act is typically corralled to civil servants in terms of its jurisdictional reach but in light of the uniqueness of the private certifiers role, included this profession in its fold.

There is no play on words here, it is the reality, the inspectors` client is the public and the inspector in a court of law both in terms of the discharge of their professional and ethical duties will always be judged according to their adherence to the public safety imperative.

There has been some criticism in certain quarters of the private certification system in Australia where private building surveyors and inspectors can be retained directly by private actors to issue building permits, carry out inspections and issue occupancy permits. The criticisms are based upon a perception that some of the fraternity have put the private clients interests ahead of those of the public.

When private certification was established in Australia in the early nineties the benefit of hindsight suggests that insufficient regard was given to designing regulation that would better deal with the management of the ‘private client’ vis a vis the ‘public client’. There was an assumption that qualified, registered and experienced private building surveyors would in all instances understand how to navigate client relationship dynamics in a manner not at odds with the expectations of the legislature. It has not in all instances played out this way.

It submitted that aspiring building inspectors must before venturing into the field of building officialdom know who their statutory client is. If they do not embrace the unique public safety imperative from outset then they will not find it easy to  discharge the critical and overriding ethical obligations that are wedded to their statutory remit. But they can only do so if before venturing into this profession they understand the uniquely challenging and paradoxical nature of their job which is to put the more abstract public client ahead of the non-abstract, real and tangible physical, in person manifestation of the private client.

The public interest imperative

The public interest is the paramount  consideration.

This imperative is born out in the Victorian Building Surveyor Code of Conduct in Australia, a code that prescribes that which is expected of a building surveyor in the professional discharge of ones duties provides a very useful and poignant definition of defines public interest:

“Includes, in the context of building work and buildings, public confidence in the built environment, occupant health, safety and amenity, and economic benefits associated with innovative, compliant and safe buildings. Acting in the public interest requires putting the public interest ahead of private interests and the interests of the client, colleagues and other practitioners”.[6]

The word vigilance is used in the BBC definition, it is an important word, because the building official has to maintain a constant and permanent vigil and some may find that this is not an easy one.

It is the discipline of unrelenting and sustainable public servitude that can be challenging because the inspectors ‘boots on the ground’ interactions are not with the more intangible or abstract actor the ‘public’. The interactions are physical and terrestrial interactions where on a day in day out basis the official deals with builders, property owners, building practitioners, whom are often not averse to interested in the getting of an expedited construction outcome.

Part and parcel of these interactions will be frequent tensions and competing headwinds where on the one part the constructors will be very much concerned with profit maximisation, on the other part, property owners will be motivated by 3 key considerations, cost effectiveness, time effectiveness and good build quality outcomes. The building official will in many instances need to navigate the tensions whilst always remembering overriding public servitude is the top-of-mind consideration. This means that in harking back to the definition of ethics the correct response whilst the inspector is navigating the on-site tensions and conflicting headwinds, will always be the ‘moral response’.

This public servitude is often expressed in good practice jurisdictions as being the building official`s statutory responsibility i.e., to use very best endeavours to ensure that the public, the national citizen as it were, collectively, severally or individually is protected from harm that can be visited upon the citizen(s) as a result of compromised construction outcomes.  That is the seminal uniqueness of the building officials` ‘job description’ and in good practice regulation, regardless of whether the demographic of the country is high income or low income, that responsibility is best enshrined in statute.

An example of a statutory mechanism that goes a long way to achieving this, is the below draft oath which is a modification of the oath that was sworn by building surveyors in Melbourne Building Act 1849 prior to the assumption of their office.

“I being, a building inspector, after having sworn this oath will be a licenced building inspector having satisfied the licensing requirements of the Building Act, on this # day of …now hereby swear and declare that I will: – 

At all times diligently, faithfully and impartially perform the duties on my office as statutory building inspector 

By applying my utmost power, skill and, ability and vigilance 

Without fear, favour, affection or prejudice to any person whomsoever, cause the building regulations this Act to be strictly observed.”

The oath encapsulates the perennial probity and ‘on point’ moral obligation, not the least of which being the virtues of impartiality, skill and vigilance.[7]

The Victorian Code of Conduct for Building Surveyors is also instructive in terms of its encapsulation of the key virtues that define the ethical disposition of the good building inspector.

Act with integrity, honesty, connectivity, impartiality in all professional and business relationships and activities:

To meet this principle, you must: –

• Be open, fair and acting appropriately and professional in the course of providing building surveyor services; and 
• Avoid situations that a reasonable person may conclude has or could compromise your impartiality or professional judgment.

This includes: 

• Ensuring you are free from bias and without prejudice or favour due to an affiliation disposition or any material interest; and 
• That being influence or controlled by other in matters of opinion or conduct other than where you act on the expert opinion of suitably qualified building practitioners.

The duty of Impartiality, does it sit well with building official ethics?

A common attribute of good practice building officialdom is the ability to discharge one`s statutory responsibilities impartially. This is encapsulated in the above building surveyor’s oath of 1849 in the statement ‘without fear, favour affection or prejudice’ …. diligently, faithfully and impartially.  Even though this public official oath was required to be sworn more than 150 years ago it is still equally poignant today with respect to defining that which makes for the professional discharge of the building surveyors’ duties.

The writer however questions whether the word impartial is ideally suited to the context of building inspectorial ethics. Impartially tends to connote neutrality, the affording of no favour. Question whether for the building official to discharge his or her primary obligations to the public the building inspector can be impartial in his or her dealings with private sector actors because the building official must at all times put the interests of the public above those of the private client? Does it not follow that the inspector will not be impartial, rather the official`s compass will be partial or partisan and in a sense be required to afford favor to the interests of the public?

It is submitted that impartiality in its purest form is best illustrated in a sporting context where the umpire or referee affords no fear, bias or favour to either one of the sporting teams. Within this context the competing teams must be judged neutrally to safeguard the concept of the level playing field. An architect too, when administering a contract must be impartial but in the case of building inspectorial adjudication or decision making the terrestrial actor the builder and the more abstract actor the public, are not on a level playing field as the public imperative overrides the interests of private actors as a building official must always put the safety of the public first and to this extent remain vigilant in enforcing what essentially is a necessary public safety bias.

In light of the above when reforming jurisdictions are developing codes of ethical or professional conduct, they may wish to consider whether the use of the word impartial is ideally suited to that which is considered to be one of the key ingredients of a building officials’ ethical disposition. Moreover, if building officials are governed by codes of conduct that require them to act impartially it would be wise for them to consider carefully whether the duty of impartiality sits well is within this context.

The disciplinary consequences of ethical breach

The below passage is instructive in terms of delineating serious professional transgression vs a vs less egregious conduct.

“If one looks at conduct that culminates in serious censure (i.e.  professional misconduct) vis a vis conduct that culminates in lower end disciplinary censure (i.e., unsatisfactory professional conduct) the sorts of threshold ingredients that the tribunal and Courts and in some instances acts of parliament seem to have come up with include: – 

• A high degree of objective seriousness conducive to significant harm to the public;
• Conduct that is considered to be disgraceful by practitioners of good repute and competency;
• Conduct that is heinous and dishonourable;
• Conduct that is wilful or reckless; 
• Conduct that is of a sufficiently serious nature to justify suspension; and 
• Conduct that is of a differently serious nature to justify suspension grave conduct that poses significant harm to the community”.[8]

It is submitted that conduct that is heinous, dishonourable, wilful and disgraceful is indicative of ethical compromise and when such conduct is accompanied by incompetence that occasions harm a respondent is likely to forfeit their ability to practice, regardless of the jurisdiction. Whereas if the conduct is ‘cauterised’ to pure incompetence, absent any ethical blemish then it may not in all instances constitute professional misconduct and the more severe sanctions that go with  such conduct unbecoming.

Conflict of interest and ethics 

Building officials in some settings can find themselves subjected to tremendous pressures to bend to the whims of private actors. Private actors likewise, be they builders, developers are subjected to a great deal of on-site pressure at given stages, pressures to come in on budget and on time. As the building industry can be a ‘boom bust’ industry and is heavily indexed with the health of an economy the pressures are exacerbated during down times and in such times, some building officials will be encouraged to expedite outcomes, be they approving given stages without sufficiently thorough inspections or issuing permits in circumstances where insufficient regard has been had to verifying design compatibility with building regulatory instruments.

Although such pressures are not as pronounced when building officials are employed by local government, they still exist.  This is particularly the case in some underdeveloped settings where officials may be affiliated or connected with private actors through family interactions. Further in some very economically challenged paradigms remuneration may be insufficient to cater for living expenses and dependants. Where such circumstances exist alternative ways of income supplement may be entertained by those whom lack robust ethical fortitude hence a susceptibility to not only inducements but the turning of a blind eye.

The below conflict of interest provisions,[9] in footnote number eight are derived from the Victorian Building Act 1993 and although they are bespoke to private building surveyors, they are instructive in terms of providing a very comprehensive matrix of possible conflict of interest scenarios and these would be scenarios that also could occur in a non-private building official setting.

It is to be noted in particular that the provisions place a statutory embargo upon the official or a related person has: –

• been involved in the preparation of design;
• in the recent past engaged by an actor that prepared the design; and
• a direct or indirect pecuniary interest in the design entity and or the building work.

As stated at the beginning of this paper the writer has sought to highlight the paramount role of ethics in respect to the discharge of building officialdom. The writer has also put forward a case that in light of the fact that building officials are a creature of statute, a vocation that is born of statute to provide a pivotal role in safe and sound construction outcomes that the ethical disposition of this vocation differs somewhat to that of some other professions. The duty of impartiality possibly  being case on point, universally decision makers that balance the role of different often conflicting parties is a paramount duty, but whether it is ideally suited in a context where the official must always put one of the parties first that is the public brings into question whether it is a duty that should be carved into statutory stone.

By Professor Kim Lovegrove MSE RML, Senior Lawyer  Lovegrove & Cotton – Construction & Planning Lawyers is a construction of 35 years standing and has been deployed as a high-level building law expert to advise on best practice building regulation in Japan, other Asia Pacific countries such as China and Africa.

He has had carriage of projects such as the National Model Building Act in Australia where he has been heavily involved in the design of building legislation from ground up. He has also presided as a chair of a state jurisdiction that oversaw licencing, registration and probity controls.

Kim has been a senior law reform consultant to the World Bank for a number of years and is the Chairman of the International Building Quality Centre and has received honours for humanitarian services to Ethiopia and is a past Ethiopian Honorary Consul to Victoria. This paper reflects his own views and is not written on behalf of any organisation that he represents or is involved with or has been involved with.

[1]  ‘Ethics guide’, BBC (Web Page) <https://www.bbc.co.uk/ethics/introduction/intro_1.shtml>.

[2] ‘Code of Conduct for Building Surveyors in Victoria’, VBA (Web Page, June 2020) <https://www.vba.vic.gov.au/__data/assets/pdf_file/0015/114351/VBA-Code-of-Conduct-for-Building-Surveyors.pdf>.

[3] ‘Code of Ethics – Washington Association of Building Officials’ (Web Page) <www.wabo.org>.

[4] ‘Code of Ethics – Alberta Building Officials Association (Web Page) <https:aboa.ab.ca>.

[5] Independent Commission Against Corruption Act 1988 (NSW).

[6] Code of Conduct for Building Surveyors in Victoria (n 2).

[7] ‘Good Practice Guidelines and Principles for the Development of Building Regulations in Low Income Countries’, IBQC (Web Page, April 2021) <http://www.ibqc.org.au/wp-content/uploads/2021/05/IBQC-Good-Practice-Guidelines-for-Low-Income-Countries-2021.pdf>.

[8] K Lovegrove and S Korica, ‘Disciplinary Hearings and Advocacy’, National Library of Australia (Hybrid, 1st ed, 2009).

[9] Building Act 1993 (Vic) s 79.