News Release: Governor’s Office admits misrepresenting facts in building code council lawsuit
November 22, 2021
OLYMPIA…Gov. Jay Inslee’s attempt to circumvent the legal requirement to give the residential construction industry its lawful seat on the Washington State Building Code Council (SBCC) has reached a new low.
The Building Industry Association of Washington (BIAW) filed a motion for sanctions today against Inslee. The motion follows a shocking revelation last week that the governor’s office deceived the court in case filings.
Misstatement of fact
The Attorney General’s Office admitted a member of the governor’s staff had made a “misstatement of fact” in a sworn affidavit—or declaration of facts—in the case. The staffer stated the office had received a nomination for the governor’s appointee for the residential construction seat on the state building code council, when in fact no such nomination existed. The Attorney General’s Office filed notice with the court last week to remove and revise the statement.
But not until after the governor’s office sought and received a formal nomination from the Northwest EcoBuilding Guild on Oct. 29 in an attempt to cure the original, flawed appointment. And after the governor’s office arranged to have the lieutenant governor approve the nomination while the governor was out of the country.
In September, the BIAW, along with the Associated General Contractors of Washington (AGC), lost a motion for a temporary restraining order preventing the Governor’s two appointees for the construction seats on the SBCC from voting on council business, due primarily, to that important misrepresentation.
“We are disturbed by this damning admission,” said Jackson Maynard, General Counsel for BIAW. “Unfortunately, this fits a pattern of deception, misdirection, and lack of transparency regarding the Governor’s efforts to politicize the building code council by removing those who raise any concerns about his agenda.
“Gov. Inslee and the Attorney General’s Office owe an explanation for why they did not reveal the false affidavit immediately when they knew it had occurred, but instead waited until they had taken steps to “cure” the invalid appointment and to cover up the legal effect of their mistake,” Maynard said. “This is inexcusable.”
In the original lawsuit, the BIAW and other parties allege Inslee illegally appointed two individuals to fill vacancies on the council specifically reserved for nominees provided by trade associations for the residential and commercial construction industries.
“BIAW carefully negotiated changes to this law with the governor’s office and they agreed that those changes require the governor to appoint people nominated by BIAW, the residential construction industry’s trade association,” said BIAW’s Executive Vice President Greg Lane. “The state building code council makes critical decisions that affect not only our industries but hundreds of thousands of homeowners and businesses. The law was designed to ensure industries directly affected by the code have a voice in changes made and the timing of their implementation for the good of those we serve.”
The lawsuit also challenges the governor’s decision not to reappoint BIAW’s previous representative and chair of the SBCC.
The lawsuit, filed Sept. 9 in Thurston County Superior Court, asks the court, among other things, to require Inslee to appoint two new members to the SBCC from the list of nominees provided by the two trade associations earlier this year as required under the law.
The law reserves one of the two general contracting positions for residential construction and another for commercial construction. It also requires the governor to appoint only people who have been nominated by “trade associations representing the industry, unless no names are put forth by the trade associations.” This requirement ensures that groups affected by the code have a role in changes made to the code and the timing of their implementation.
As required under the law, both BIAW and AGC, the recognized trade associations for residential and commercial construction, submitted nominees to fill the vacancies. The governor appointed a King County builder who was not on the list of three BIAW supplied to fill the residential construction appointment. He 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 was not the nominee provided by AGC.
BIAW seeks thousands of dollars in attorney’s fees, costs, and other sanctions in the motion, and also seeks to enjoin the appointee from taking part in the SBCC until the court can evaluate the effect of the misrepresentation and decide sanctions.
“The governor should apologize to the court and parties, pay for sanctions for dishonesty, and stop playing hide the ball and political games on these appointments,” Maynard said. “The SBCC’s decisions affect Washington homeowners and businesses. It’s unwise and irresponsible to deny the state’s largest trade association for residential construction its legal seat at the table.”
On Nov. 2, BIAW filed a separate public records lawsuit against the Governor for failure to provide requested documents related to the appointments. That lawsuit is also pending.