HomeMy WebLinkAbout20190917_LtrToFPPC_Pease_Reach CodeCity of San Luis Obispo, City Attorney’s Office, 990 Palm Street, San Luis Obispo, CA, 93401-3249, 805.781.7140, slocity.org
September 20, 2019
Fair Political Practices Commission
1102 Q Street, Suite 3000
Sacramento, CA 95811
Via Email to: Advice@fppc.ca.gov
RE: Request for Formal Advice: City Councilmember Andrea (Andy) Pease
Dear FPPC:
I am the City Attorney for the City of San Luis Obispo, California and I have been
authorized by City Councilmember Andrea (Andy) Pease to write to you seeking formal
advice regarding the application of the FPPC statutes, rules and regulations to Councilmember
Pease’s participation in the City’s adoption of a Citywide “Clean Energy Policy” (by
resolution), which establishes City policy in favor of all electric energy for new buildings built
after January 2020; as well as: 1) a Citywide ordinance adopting Part 6 (Energy) of the 2019
California State Building Code, with local amendments codified in Chapter 15.04 of the City’s
Municipal Code (the “Energy Reach Code,” which must be approved by the California Energy
Commission prior to implementation); and 2) a Citywide ordinance adopting a carbon offset
requirement for mixed fuel buildings, including an in-lieu fee option.
Combined, the clean energy policy resolution and the ordinances would apply to all new, non-
exempt commercial and residential buildings (specifically excluding additions and alterations)
in the City and would constitute part of the regulatory framework and building requirements
under which all proposed buildings in the City would be reviewed for building code
compliance, beginning in 2020. In October 2019, the City is also scheduled, to consider
adoption of other updates to the remaining California State Building and Fire Codes, and local
amendments to those state codes, which are routinely brought forward for adoption on a
triennial basis and together with the Energy Code, will constitute the regulatory framework
for all building and construction subject to permitting by the City Community Development
Department’s Building Division. Every City/County in CA with regulatory authority over the
built environment is required to adopt the triennial standard code updates and many choose to
include local amendments based on required findings in the building code.
The Energy Code adoption and amendments were scheduled to be considered by the Council
earlier than the other standard code adoptions because any local amendments to the State
Energy Code provisions are subject to review and approval by the California Energy
Commission prior to implementation. The Energy Reach Code was brought forward earlier
than the other standard code updates in an effort to afford sufficient time for the CEC’s
anticipated 60-day review period and also coordinate the concurrent implementation of the
Energy Reach Code amendments with the other standard code amendments (which do not
require state review). The objective of concurrent implementation is to provide clarity and
consistency, and uniform standards to applicants for building permits regarding the current
codes applicable to projects in the City as of 2020. The staff report setting forth the complete
staff recommendations and program details can be found on the City’s website at
http://opengov.slocity.org/weblink/1/doc/96415/Page1.aspx.
Councilmember Pease participated in the introduction of the ordinances and related actions of
the Council on September 3, 2019. The motion to introduce the ordinances and adopt the
Clean Energy Policy passed on a 4-1 vote, with Councilmember Pease voting in the majority
for adoption (see action update, item 18 at
http://opengov.slocity.org/weblink/1/edoc/97444/09-03-2019%20Action%20Update.pdf.)
Councilmember Pease also worked with staff in the review of the proposed ordin ances prior
to the Council’s action.
Councilmember Pease did not believe that she had any potential financial conflict of interest
and, therefore, did not seek any conflict advice. The matter was scheduled for second reading
and final adoption on September 17, 2019 but was pulled from the agenda by staff and the
Council did not move forward with consideration of final adoption. On September 13, 2019 ,
after Council’s initial action to introduce the ordinances, the Council received a letter from a
law firm representing opponents of the policy and ordinances, the Utility Workers Union of
America, Local 132. The letter alleges that Councilmember Pease has a conflict of interest
that should have caused her to recuse herself from participation in this matter, that she cannot
participate in subsequent actions, and that her past participation precludes future action by the
remaining Council majority who voted in favor of introduction of the ordinances and related
program adoption actions. The letter is available on the City’s website here:
http://opengov.slocity.org/weblink/1,1,1/doc/97349/Page1.aspx. Staff pulled the scheduled
second reading and adoption of the referenced ordinances in order to seek FPPC advice and
guidance.
Councilmember Pease has provided the following additional facts that she believes are
pertinent to the Commission’s consideration in evaluating her allowable participation in the
City’s adoption of the Energy Reach Code and related program component adoption actions:
• Councilmember Pease is a LEED accredited architect and a partner in her
firm, which provides green building consulting throughout California.
Services include LEED certification, water use analysis, CAL Green
consulting, daylight analysis, commissioning and energy modeling services,
including compliance with the Title 24, State Building Energy Standards see
http://www.inbalancegreen.com/about.
• Title 24 is state law and establishes statewide standards applicable to building
projects, both within the city and throughout the state.
• All covered projects are required to submit documentation to show
compliance with Title 24, Part 6, Building Energy Efficiency Standards
(commonly called "Title 24 Report"); evaluation of compliance with relevant
local amendments would be within the scope of the Title 24 report regularly
produced by project teams.
• Jurisdictions throughout the state are permitted to make amendments to the
uniform state codes, based on findings of specified local conditions. Any
local amendments apply uniformly to all covered construction projects within
a local jurisdiction, and the amendments at issue here do not impose any
requirements directly on architects or other design professionals; they do
establish standards with which professionals would regularly design and
evaluate projects for compliance.
• The City ’s new Clean Energy Choice Policy is implemented in new
buildings only, by two ordinances: a Reach Code; and a Carbon Offset
Requirement. All-electric buildings are exempt from the Reach Code and
Carbon Offset Requirement with the exception that all new commercial
buildings are required to install solar panels in the “solar zone,” which is an
area that must be established for all new buildings under the 2019 California
Energy Code.
• The Building Reach Code Ordinance would require improved performance
for new construction projects that elect to incorporate natural gas and project
teams would need to specify additional measures to achieve improved
performance for new, mixed-fuel projects that elect to incorporate natural
gas.
• Professional services for all related trades on a project team will be within the
typical scope of work normally performed by project teams on any project,
regardless of the Energy Reach Code or other local code amendments from
jurisdiction to jurisdiction, including services provided by architectural firms.
For example:
➢ Architects routinely specify the quantity of insulation. To comply
with enhanced performance standards, they may need to specify a
higher thickness of insulation. Specifying 4” of insulation for a
project to achieve increased energy efficiency, instead of 2” of
insulation, is the same amount of work for the design professional.
➢ Mechanical engineers routinely specify HVAC equipment and system
efficiency. To achieve performance requirements, they may choose to
specify a higher efficiency system.
➢ Electrical engineers design power infrastructure. They may need to
specify renewable energy and/or battery back-up systems.
➢ Energy consultants and mechanical engineers provide Title 24 energy
reports. As part of that report, they may need to advise design teams
on additional measures that should be incorporated into projects to
achieve compliance with Title 24 and local amendments.
Councilmember Pease understands that the Commission staff will not provide advice as to
past conduct, and she is not requesting advice as to her past participation. However,
Councilmember Pease does request answers to the following questions related to the
scheduled future Council action to finally adopt the above-referenced ordinances and
anticipated subsequent actions:
1. Can Councilmember Pease participate in the second reading and final adoption of the
Energy Reach Code ordinance and/or the Carbon Offset Program ordinance? Alternatively,
can Councilmember Pease participate in consideration and final adoption of the Carbon Offset
Program ordinance, even if the Commission determines there is a disqualifying interest with
respect to the Reach Code ordinance, or vice versa?
2. Can Councilmember Pease participate in subsequent actions to adopt in-lieu fees
related to the Carbon Offset Program) and implementing regulations related to the program.
3. If the Commission determines that Councilmember Pease does have a potentially
disqualifying financial interest with respect to any of the above, anticipated actions, is
Councilmember Pease likewise prohibited from participating in the anticipated standard
Building and Fire Code adoption and local amendments, which will also revise the building
requirements for all projects within San Luis Obispo? If so, how are these distinguishable
from adopting local zoning ordinance amendments, which also impose city wide standards
that must also be considered by any design professional?
4. If the Commission determines that Councilmember Pease does have a potentially
disqualifying financial interest with respect to any of the above anticipated actions, can any
potential conflict of interest be eliminated if Councilmember Pease’s firm commits not to
provide services on projects within the City that intend to introduce new natural gas into their
buildings and, thus, become subject to the Reach Code and Carbon Offset Program ordinance?
Councilmember Pease has committed that, in the event the FPPC determines that she would
have a disqualifying interest by virtue of the adoption of the revised building standards
associated with mixed fuel buildings, her firm will not provide services related to evaluation
and implementation of the Reach Code and Carbon Offset Ordinance compliance.
Separate and in addition to the above questions related to Councilmember Pease, I am seeking
formal advice on behalf of the majority of the City Council regarding their anticipated future
actions:
1. In the event it is determined that Councilmember Pease has a disqualifying financial
interest in any of the actions above, is there any provision of the Political Reform Act or
conflict regulations that would preclude the remaining Council majority from proceeding with
final adoption of the referenced ordinances or related actions without Councilmember Pease’s
participation?
2. In the event it is determined that Councilmember Pease has a disqualifying financial
interest in any of the anticipated actions above, would the Political Reform Act or regulations
require the Council to rescind any actions in which Councilmember Pease participated and
reintroduce any anticipated actions without Councilmember Pease’s participation in order to
move forward with its legislative and policy adoption actions?
The Council wishes to proceed with its legislative and policy actions as soon as possible and
would like to proceed in a timeframe that would permit concurrent implementation of all
standard code revisions in January, following CEC Energy Reach Code 60-day review.
Achieving that objective and avoiding the confusion for project applicants associated with
disjunctive code adoption would obviously require the Council to take action in the October
or early November timeframe. The City and Councilmember Pease will make every effort to
expedite the provision of any additional documents, information or explanation th at would
assist in the evaluation of this matter and we appreciate the Commission’s guidance.
Respectfully,
Christine Dietrick
City Attorney
City of San Luis Obispo