Blog: 2021 Energy Code Progress Challenged: Climate and Affordability Stand to Lose Unless We Speak Up
This is the third supplement of three blog supplements. Read the full blog and other related resources.
Claimed Basis for Appeal: That some voters should not have been allowed to vote as they do not directly enforce codes.
- Leading Builders of America, Ken Gear, CEO: Appeal Results of the Online Governmental Consensus Vote regarding Proposed Changes to the 2021 IECC (Multiple code changes)
- Leading Builders of America, Ken Gear: Request for Evidence in Support of Appeal
- NAHB Appeal of the ICC 2019 Group B Code Cycle Final Action Results (Multiple code changes)
Analysis: The emphasis for rebuttal centers on the rules– that have been in place for many years. The oldest digitally available copy of the ICC Annual Report, includes bylaws that read:
“each of the designated voting representatives shall be an employee or a public official actively engaged either full or part time, in the administration, formulation or enforcement of laws, ordinances, rules or regulations relating to the public health, safety and welfare.”
The bylaws currently published on ICC’s website today read:
“each of the designated voting representatives shall be an employee or a public official actively engaged either full or part time, in the administration, formulation, implementation or enforcement of laws, ordinances, rules or regulations relating to the public health, safety and welfare.”
For 15 years, the only change has been the insertion of the word “implementation.” If the appellants were concerned about the membership definition, why wait until now to challenge it? In addition, this appeal was previously presented as a challenge and rejected by the Vaidation Committee Report. The current appeal would change the definition of a voting members and attempt to change the by-laws through an end-run process. See below for more details on the arguments.
Previously a challenge that was dismissed
This appeal has already been made in the form of a challenge. Challenges were filed by:
- Leading Builders of America
- National Association of Home Builders
- Home Builders Association of Michigan
Challenges were placed before the ICC Validation Committee. The validation committee is charged with certifying the results of the tabulation of in person votes from the PCH and online votes, as stated in Council Policy 28 – Code Development Section 10.1. The validation committee is additionally responsible for identifying potential voting irregularities, as stated under Section 10.2. The validation committee completed both tasks, and in the Report on the Code Development Process 2019 Group B Cycle published on April 8, 2020, reported the following on page 3:
“Code Council staff performed a comprehensive review of all GMs and GMVRs who participated in the 2019 Group B cycle and determined all GM and GMVR applications met the Code Council bylaws definitions, and that the overwhelming majority of applications and GMVR designations were submitted on time. Of note, during the voter validation process, individuals put forth by the GM that did not meet the bylaws definition were rejected. Of the 124 new GM applications for the 2019 Group B cycle, Code Council staff identified two GM applications that did not meet application deadlines. Staff determined that votes cast by these two were not material to the outcomes.”
Members are defined by the ICC
ICC defines a Governmental Member Voting Representatives (GMVRs) under Article II – Membership, Section 18.104.22.168 of the ICC Bylaws as “an employee or a public official actively engaged either full or part time in the administration, formulation, implementation of enforcement of laws, ordinances, rules or regulations relating the public health, safety and welfare”. When signing up as a GMVR, there are two questions they must respond to which ensure they satisfy the conditions for meeting the bylaws:
Question 1 (Q1): The applicant must:
- Administer the laws, ordinances, rules or regulations of this governmental member.
- Formulate the laws, ordinances, rules or regulations of this governmental member.
- Implement the laws, ordinances, rules or regulations of this governmental member.
- Enforce the laws, ordinances, rules or regulations of this governmental member.
Question 2 (Q2): The applicant must be a:
- Paid employee of the governmental member.
- Third-party contractor of the governmental member.
- Elected official of the governmental member.
A code official (plan reviewer, inspector, chief building official) does not meet all of these criteria, but they do meet at least one in each category, which is the threshold defined by ICC. Three examples:
- A building inspector: Q1) an inspector enforces the laws, but does always formulate or administer the laws; Q2) inspectors are either paid or a contractor, but are never elected.
- A chief sustainability officer (CSO): Q1) a chief sustainability officer administers and formulates laws, but likely is not a direct enforcer of the laws; Q2) a CSO is most likely a paid employee.
- A mayor (because even the U.S. Conference of Mayors urged their members to participate): Q1) a mayor administers and formulates laws, but really doesn’t enforce; Q2) a mayor is typically elected.
These three positions all meet the rules set out by the ICC. For the future of the energy code as a tool used by jurisdictions, the fact that this range of GMVRs might participate is critical. As an increasing number of cities and states set climate goals, addressing building energy use is a large factor in achieving carbon emissions reductions, with buildings accounting for 39% of total U.S. energy consumption in 2019. Employees engaged in rules and regulations around enacting these climate plans often include those outside the building departments, responsible for: protecting their citizens from the costly and devastating impacts of climate change; the viability of businesses in their local economies; and housing affordability.
This type of appeal also questions the qualifications of the GMVRs but does not outline how it would define “qualified” going forward. The ICC’s GMVR definition has built into it the qualification to vote. The inference that the voters were unqualified to participate is at best, misguided. At worst, its completely fabricated, and its circulation as truth is dangerous to the ICC process.
An end-run around process
For an appeal that asserts a process was violated, it is curious that this motion before the Appeals Board is not within the scope of the board to decide. This appeal seeks to change bylaws and council policies, which must be proposed and accepted under a different process. The request specifically states:
“revise the bylaws to make clear that only Governmental Members and GMVRs that work with enforcement and administration of building codes can become GMVRs and institute voter validation protocols to ensure that each new Governmental Member and new Voting Representative meet the bylaw requirements.”
This request is not an appeal, but an attempt to change the bylaws. The bylaws themselves state in Article XVIII – Amendments to Bylaws, that proposals to amend bylaws must be considered at an Annual Business Meeting. Given that the Annual Business Meeting for 2020 has been cancelled, no action should be taken on this request in 2020 without being in clear direct violation of the rules laid out by ICC.