Legal Affairs

by Jackson Maynard, General Counsel

The state’s two largest construction trade associations, BIAW and the Association of General Contractors of Washington (AGC) are taking aggressive action to block two appointments made recently by Gov. Jay Inslee to fill general contractor positions on the Washington State Building Code Council (SBCC).

State statute dictates who serves on the SBCC, which is responsible for creating and amending the Washington State Building Code. It’s also clear how they are to be appointed.

The law requires one of the two general contracting positions be reserved for residential construction and another for commercial construction. It also requires the governor to appoint only people who have been nominated by the industry. This ensures that groups impacted by the code have a role in changes made to the code and the timing of their implementation.

“The language in this statute was carefully negotiated during the 2018 legislative session to ensure that all impacted industries and parties had representation on the Building Code Council,” said BIAW Government Affairs Director Jan Himebaugh. “The governor’s office was a part of those discussions and he never disagreed with the result. This council does important work and the law is designed to protect the council from political manipulation in votes or process.”

Unfortunately, Gov. Inslee is attempting to manipulate the makeup of the SBCC to advance his climate change agenda. Earlier this year, the SBCC clashed with the governor over whether costly changes to the code authorized by the legislature in 2019 should be delayed due to the COVID pandemic. The council voted to delay implementation, but the governor overrode their vote and concerns. Shortly after the governor reversed the SBCC’s vote, his office contacted existing members of the Council to inform them they would not be reappointed. This included BIAW member and SBCC Chair Diane Glenn and AGC member Doug Orth.

The governor’s office said it was his policy to limit appointments to two terms. This conflicts with state law (RCW 19.27.070) which says members serve for terms of three years “or for so long as the member is qualified for office.” The statute contains no limit on the number of terms.

The governor then proceeded to violate another provision of the statute when appointing their replacements. The law (RCW 19.27.070(5) says “[t] he governor shall select appointees to represent private sector industries from a list of three nominations provided by the trade associations representing the industry, unless no names are put forth by the trade associations.” Even though BIAW submitted three names (including Diane’s for reappointment) and AGC requested the reappointment of Doug Orth and began to search for additional names, the governor’s office proceeded to make two new appointments.

The residential construction appointment was not on the list of three BIAW provided. The governor then appointed a member of the plumbers’ union to the commercial construction position. This appointment was not only unqualified as a representative of the industry, it also substantially expanded the existing union membership of the SBCC.

The governor is trying to stack the SBCC with only those he believes support his agenda—regardless of the intent of the law.

This fall, the SBCC is expected to consider code changes to restrict the use of natural gas in new construction. Because the policy was rejected last session by the legislature, the governor is now trying to engineer its adoption by the SBCC.

AGC and BIAW have joined forces to stop the governor’s blatant violation of the law and protect their members’ rights to be represented on the SBCC.

On Sept. 9, 2021, the two organizations filed a lawsuit, asking the court to declare the two members of the SBCC unqualified because the governor failed to follow the applicable statute governing their appointments. Also on Sept. 9, BIAW sent a letter to the SBCC asking them to cancel the Sept. 17 meeting or at least defer action on substantive items until the court can consider the lawsuit. The SBCC held its meeting anyway. "Gov. Inslee needs to follow the law,” said BIAW President Tracy Doriot. “It’s not only his duty— it’s also good policy to make sure that everyone impacted by the building code has a seat at the table.”

If you have any questions about the SBCC or the governor’s actions, please contact BIAW General Counsel Jackson Maynard at jacksonm@biaw.com or (360) 352-7800 ext. 108.