Codes & standards: 2012 IECC appeals raise questions regarding voting eligibility

In the January/February 2011 issue of Glass Magazine's sister publication Window and Door, I summarized what were considered to be the finalized requirements for the 2012 International Energy Conservation Code, based on action taken during the 2010 ICC Group B-Final Action Hearings. The 2010 ICC Group B-Final Action Hearings dealt with the IECC and the International Residential Code, among others.

It turns out the decisions made during those final action hearings weren't so final, after all.

Three appeals were filed against the 2012 IECC results. The appeals argue that―in some instances― people who were not eligible to vote did so on certain, specific code change proposals and that the action taken on those proposals should be null and void.

The removal of the distinction between metal and nonmetal framed fenestration in commercial buildings―Public Comment 5 to EC165―was among the actions appealed. Those making the appeal wanted to retain the distinction between metal framed and nonmetal framed fenestration in the 2012 IECC. Before I tell you the results of those appeals, let's talk about the basis for them.

The argument that people voted who were not eligible to do so at the ICC final action hearings is based upon the fact that:

Some of the people who voted were not employed full time as active code officials at the time they voted.The cost of traveling to Charlotte, N.C., where the final hearings were held, was borne, to some extent, by industry groups that had special interests in the outcome of the hearings, and not by a governmental entity.

The ICC limits voting at the ICC final action hearings to governmental member representatives and honorary members.

According to the ICC bylaws, a governmental member is a governmental unit, department or agency that is "engaged in the administration, formulation or enforcement of laws, ordinances, rules or regulations relating to the public health, safety and welfare." The governmental member is given the right and responsibility to then appoint its voting representatives. The number of voting representatives the governmental member can appoint is based on the size of the jurisdiction served.

The bylaws further specify that voting representatives shall be employees or officials of the governmental member or "departments of the governmental member, provided that 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 ICC selects honorary members, usually based on their years of service to a governmental member, the ICC and an ICC chapter or legacy code agency.

The intent of limiting voting at the final action hearing to governmental member voting representatives and honorary members is to place the final determination of code provisions primarily "in the hands of public safety officials who hold a public trust, have no vested interest and can legitimately represent the public interest." A brochure posted on the ICC Web site, www.iccsafe.org, describes the code development process as follows: "The final action hearings are open, fair, objective and allow no proprietary interests to influence their outcomes." The ICC refers to this process as a "Governmental Consensus Process."

Now, one can respond to this policy with any number of questions: Is a person's personal integrity dictated by the circumstances of their employment? Is it reasonable to assume that all government employees will act in a manner that represents the public's best interest, simply by virtue of their employment status? Does world history, such as the history of Communism, support such a theory? If the assumption is made that all governmental employees possess high integrity, does that indicate that those who are not governmental employees do not possess high integrity?

My own view is that personal integrity is not dictated by employment. We are all human. Governmental employees and persons employed in other sectors can possess a high degree of personal integrity, be awful scoundrels, or land somewhere in between those two extremes.

Looking at the circumstances specific to the ICC final action hearings in question, did the ICC meet its intent to "allow no proprietary interest" to influence the outcome of the process, if some of the voters' expenses were paid by specific members of industry? My own view is no; the intent was not met.

Is this something that the ICC can control? And if so, what should the ICC have done before the 2010 final action hearings to prevent it? What, if anything, should it do going forward?

I think these two latter questions are more difficult to answer. Is it reasonable to expect the ICC to be able to control the integrity of the individuals who are given voting privileges? And if not, how is the integrity of their "Governmental Consensus Process" to be maintained?

As it turns out, the ICC Appeals Board recommended to the ICC Board of Directors that the results of the 2010 ICC Group B-Final Action Hearings be upheld. If the ICC Board of Directors accepts that recommendation, the results of these hearings will remain final. This includes removing the distinction between metal and nonmetal framing for fenestration in commercial buildings.

If the ICC had chosen to overturn these results, it would have risked not achieving the performance target that the U.S. Department of Energy set for the 2012 IECC. So, there appears to be little reason to think the ICC Board of Directors will not accept the recommendation of their Appeals Board.

The greater risk now is the integrity of the ICC process. I don't know how the ICC Board of Directors is going to address that issue. I wish them well.