The final vote of the Washington State Building Code Council (SBCC) on the controversial new commercial building codes exemplified much of the process: a rushed, legally questionable decision that lacked public comment. — File photo

Patrick Hanks of the Washington Policy Center raises concerns of the final vote of the Washington State Building Code Council on the new commercial building codes

Patrick Hanks
Washington Policy Center

The final vote of the Washington State Building Code Council (SBCC) on the controversial new commercial building codes exemplified much of the process: a rushed, legally questionable decision that lacked public comment, which even supporters admitted looked “terrible” to the public.

At a November 28 special meeting they adopted amendments to the commercial energy code 9-4. However, RCW 19.27A.025 states that amendments to the commercial code adopted without a two-thirds majority of all members, are classified as disputed provisions, and must be approved by the legislature before going into effect. For the SBCC, a two-thirds majority of voting members is 10.

So, on December 12 the SBCC held another special meeting. Urgency was paramount as the deadline to make changes to the commercial energy code was a few days away on December 15. What followed was almost three hours of discussion about parliamentary procedure and how to legally re-vote on the amended commercial code. Reasons cited by members for calling the meeting included:

Being unaware of RCW 19.27A.025 at the November 28 meeting.
Wanting to learn more about the issue.
Wanting to give council member Pete Rieke, who was absent from the November meeting, a chance to vote.
To avoid requiring legislature approval for adopting the amended code.

If the council took no action, then the legislature would need to approve the amended commercial code before it takes effect in March.

Sen. Lynda Wilson (R-17th LD), a non-voting member of the SBCC, surmised the amended code would have to be introduced as a bill or resolution, and then go through committees and be voted on like any other measure. Wilson promised the council that she would ensure the legislature addresses the matter.

Rep. Alex Ramel (D-40th LD), another non-voting member of the SBCC, argued that no one could guarantee what the legislature would do. He went on to say that while there has been a great deal of scheduling and planning for the short session, the commercial energy code, “has not been on the radar.”

The amendments to the 2021 energy codes were proposed and adopted to reduce the risk of litigation in the aftermath of the Ninth Circuit ruling on a ban on natural gas hookups in California. The recently adopted amendment theoretically allows commercial buildings to use natural gas appliances for space and water heating. Empasis on theoretically because industry experts testified during public hearings that it would be nearly impossible to achieve compliance with fossil fuel appliances or would substantially increase the cost of the building.

If the council had taken no action at the December 12 meeting and the legislature failed to approve the amendments, then the original 2021 commercial energy code would go into effect in 2024. The original 2021 code only allowed heat pumps and posed a greater chance of violating federal law. Some members felt this would increase the risk of litigation.

The council consulted with their representative from the Attorney General’s office on the best pathway forward on re-voting. They were advised that the cleanest option was to rescind their November vote on the commercial code and then readopt it. However, it soon became clear that not enough council members supported rescinding and readoption. Chair Tony Doan ruled readoption would require additional public hearings, something they didn’t have time for with the December 15 deadline only days away. The second option was to “amend something previously adopted”, as allowed in Roberts Rules §35 (SBCC Bylaws state that the 11th edition Robert’s Rules of Order governs their parliamentary procedure). If not worded correctly, the SBCC could still run afoul of RCW 19.27A.025.

Thus, the solution was to amend the November 28 commercial energy code motion to insert some additional language and reinsert the entire code language from the November 28 motion. Councilmember Kjell Anderson claimed that the additional language was necessary because the council forgot to include it in November. Councilmember Micah Parsons disagreed that additional language is necessary. The councilmembers reinserted the prior motion as an attempt to comply with RCW 19.27A.025. The motion passed with a two-thirds majority at 10-3.

It’s worth noting the following:

Other than the member who made the final motion, no members spoke in favor of the additional code language. Nor was it cited as a reason for holding the special meeting. The added language merely served as pretext for re-voting on the commercial energy code.
No public comment was allowed during the meeting.
While the focus of the meeting was on correctly following parliamentary procedure, the final motion was not properly seconded before debate and voting as required by Roberts Rules. Although this is unlikely to invalidate the action.

Multiple members, including the Chair, admitted that the optics of this special meeting were “terrible.” The 2021 energy code cycle has been incredibly controversial as the council has sought to effectively ban natural gas water and space heating, despite cost-benefit analyses showing this will not be cost effective for consumers. We have previously discussed the issues with their cost-benefit analysis and noncompliance with the Regulatory Fairness Act.

For public officials to maintain public trust it’s not enough to only follow the letter of the law. While the SBCC has apparently succeeded in finding a parliamentary work around for their mistake, they failed to show that they prioritize transparency and truthfulness. Legislative oversight and approval are an appropiate and necessary part of the democratic process. There is no good reason for avoiding it.

This report was first published by The Washington Policy Center.