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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