Cracking the Code
The Symington administration cleared out more than a year ago. Like a bad enchilada from yesterday's lunch, however, a favor the Symingtonians laid on a friend as they left office is making a lot of government officials queasy.
The dyspepsia-inducing culprit? A proposed statewide Uniform Plumbing Code.
This little tempest in a toilet bowl has alarmed the leaders of almost every city and county in Arizona, Department of Environmental Quality officials and Governor Jane Dee Hull's office over the impact it would have on every new bathroom and kitchen in the state.
The Symington Legacy will be remembered as a wholesale rollover to business interests, usually in the form of tax cuts and relaxed regulations. But in the creation of a statewide uniform plumbing code, Symington's staff went even further, handing the reins of government over to the plumbing lobby, PIPE (Piping Industry Progress and Education Trust Fund), saying, in effect, "Here you go, plumbers. You write the code."
Some background: In 1997, PIPE floated a bill at the Arizona Legislature to create a commission charged with writing a statewide plumbing code, a popular idea that has succeeded in other states.
It's easy to see how it would simplify business for the plumbing industry. Cities, counties and DEQ all have different rules in place, designed to fit the needs of individual communities. Maricopa County, for example, is a plumber's nightmare with 15 different municipalities and 15 different sets of rules. Arizona has, by one count, 131 different municipalities with 131 different plumbing codes.
But the Arizona League of Cities and Towns and others opposed the bill, in part because they didn't believe the Legislature had the power to tell their municipalities what to do.
Stuart Goodman, then a lobbyist for the City of Glendale, was against it because the proposed commission's makeup, which included only four municipal representatives out of a total of 16 appointed members, didn't adequately represent city and county interests. In addition to the four municipal plumbing inspectors, the commission was to include four plumbing contractors, two mechanical engineers, one architect, three members of the general public, one representative of utility and sewer workers and one representative of PIPE.
Goodman was also concerned that the legislation allowed the governor to make all appointments.
He was quoted as saying the "politics of persuasion" might come into play on the commission. What he meant was that the political fix may have been in.
Goodman could get work as a psychic.
The bill creating the Uniform Plumbing Code Commission passed the Legislature, despite such opposition, and went on to the governor.
As he sometimes did when a bill was particularly controversial, Symington invited some interested parties up to the Ninth Floor to debate the merits of the legislation. Lobbyist Mike Williams was there, on behalf of PIPE. Williams had been working this legislation all along. He's slick and well-connected, and credited with getting the bill through the Legislature. But, for this meeting, PIPE's number one representative was Chuck Coughlin. Coughlin had worked for Symington as his campaign manager in 1994, then as deputy chief of staff from 1995 to 1996. He'd left the governor's office to start his own consulting firm, later joined by another former Fifeman, Wes Gullett. PIPE had contracted with Coughlin to represent it on this matter. His ties to Symington remained strong.
Those who were at the meeting recall that Coughlin blustered about in a loud, take-no-prisoners fashion, uneducated on the topic at hand, clearly there to sell the bill to Symington who, in the end, signed it.
But Coughlin's--and PIPE's--influence didn't stop there. The next step was the appointment of the Uniform Plumbing Code Commission. A review of the governor's files reveals that while appointments secretary Bettina Celaya had signed off on the appointments, PIPE was running the show. Every single board appointee had been recommended by PIPE; each application bears PIPE's mark--either the applicant's resume was faxed to Celaya from PIPE's office or from Mike Williams, or the applicant's address is the PIPE address. The file also includes a letter from PIPE executive director Carl Triphahn, with a partial list of people to appoint, all of whom made the final cut.
Tom Simplot, a lobbyist with the Home Builders Association of Central Arizona, got a call from Williams asking him if he wanted to be on the commission as one of the representatives of the public.
Simplot says he was told "that was part of the agreement they [PIPE] had with the governor's office"--that they got to choose the membership.
The home builders were against the plumbing code legislation; Simplot figures he was the token opposition.
That is not the full extent of PIPE's involvement. The legislation Symington signed created the commission, but did not fund it. Nor did it provide for funds to commission the economic impact statement (EIS) that would be required before it could become a law. Even commissions with far less daunting tasks get money for an economist and a rule writer.
Nonetheless, the rules were written and the EIS was commissioned. Who wrote the rules and paid for the EIS?
PIPE's Carl Triphahn says he doesn't understand why everyone's so upset with the way the code-writing process went, pointing out that the meetings were open to the public.
Barely. Many say the commission meetings were designed to keep outside input to a minimum.
The meetings were held in a hot, cramped room at the Industrial Commission in downtown Phoenix. David Mann, building code administrator for the city of Tucson, who was not on the commission but attended meetings, complains that instead of meeting at length once a month, the commission met more briefly once a week--a move he felt was designed to thwart comments from people outside Maricopa County, who are among the biggest naysayers.
Mann and others also say the meeting process was unfair. Agendas were so long and all-inclusive that it was almost impossible to know what would come up at a meeting. And public discussion before the commission took place at the very end of the meeting, after the issue at hand had been voted on.
The home builders' Tom Simplot, who wound up being the commission's vice chair, echoes Mann's sentiments.
"They [commission non-members] had no input at all. Of course we'd have a call to the public at the very end of the meeting and they'd say, 'I don't like what you voted on at the very beginning of the meeting.' But of course at the end of the meeting at a call to the public, we can't respond anyway."
Even more disturbing is Simplot's assertion that the rules were already written before the commission met, a possible violation of the open-meetings law.
"All the decisions were made beforehand. No doubt about it," he says.
"They were talking about detailed plumbing issues that you or I, we'd just get lost on," Simplot, a lawyer, says. "So for a majority of the things, it's like, 'I don't even know what you're talking about. But I know this: If people are this upset about it, something's wrong.' That much I knew as a layperson."
The expected outcome of a code written by the plumbers' lobbyists would be that it looks out for plumbers' interests. Does the proposed code reflect a bias?
Depends upon whom you ask.
PIPE's Triphahn says the draft code is fair.
"Here is an opportunity to put into place some minimum standards for product and installation which will enhance public safety and health, make it better for the end user and actually produce some value for dollar spent on the part of the homeowner, and we have a bunch of public employees trying to derail it. It just amazes me," he says.
Meanwhile, those public employees are amazed that anyone could call the proposed code consumer-friendly.
The City of Tucson has complaints about the outlawing of "air admittance valves," which prevent stinky sewer gas. The plumbers say they don't like the valves because they're mechanical, and thus subject to failure. But David Mann points out that the code allows for mechanical devices in other instances. He says the plumbers don't like the valves because they require only a third of the pipe otherwise needed to complete a job--which reduces plumbers' income.
The Department of Environmental Quality and many counties are opposed to the code because of provisions regarding septic tanks. Currently, the counties regulate septic tanks.
Under the proposed uniform plumbing code, some septic tank systems would no longer be allowed. That includes a high-tech system that many argue is the only kind that works in really bad soil. So if that's the only system that works, and it's illegal, that means if you own a nice piece of rural property with bad soil, you're, well, shit outta luck. It's hard to see how plumbers would profit from such regulation, but it's clear that at least some consumers would suffer from it.
Also, the code, as proposed, requires that anyone with a septic tank get a plumber's approval, which could cost up to $100,000, Mann estimates.
The city of Chandler is another opponent of the code, as written. The city's chief concern involves plastic pipes. The code requires the use of PEX, a new type of plastic pipe. Chandler prohibits the use of plastic pipe because of widespread burst pipe problems in Chandler homes built in the mid-'80s, using polybutylene, another kind of plastic pipe.
Judy Skousen, Chandler assistant city attorney, says, "A city needs to be able to say: Because of our climate, because of our soil or our water type, we need to be able to make an exception here, here and here. They didn't grant that authority here, and that's different from almost any other state that has done a uniform code."
Patrice Kraus, Chandler's intergovernment liaison, says she knows why: "The people on the commission mostly represent the plumbing industry, not the citizens of Chandler or any other city."
The uniform plumbing code has a final stop before becoming law: approval by the Governor's Regulatory Review Council (GRRC), scheduled to consider the draft code December 1.
Typically, GRRC doesn't approve controversial rules, and these are likely to get kicked back to the commission.
If the rules are passed, they'll almost certainly be challenged in the courts, racking up enormous, unnecessary public legal bills. If they're sent back to the commission, there's hope for creating, albeit in the eleventh hour, a more democratic, fairly managed approach to the plumbing code.
Someone--the commission, DEQ, the cities and counties--needs to ask the Legislature for money to fund staff for the commission and an independent economic impact study. PIPE's membership has an economic interest in the final product here, and it's not appropriate for them to fund the study.
And Governor Hull needs to show some leadership. Her only power in this case is in appointments. Six commission positions expire in January, and Hull has the opportunity to make some wise choices in naming replacements without aid from PIPE.
Ironically, the appointments will likely be made by Stuart Goodman, the former Glendale lobbyist who predicted that Symington would stack the Uniform Plumbing Code Commission with PIPE picks. Now Goodman handles regulatory issues for Hull.
Although Hull's hands are tied until January 19, when she can name her six members, Goodman has been involved behind the scenes. When the attorney general recently opined that the PIPE-funded economic impact statement isn't illegal, Goodman fired off a letter to PIPE's attorney:
". . . Given your client's dominant influence on the Commission, the Governor remains concerned that the Commission's decision to adopt the economic impact statement will be vulnerable to allegations of predetermined decision-making, as well as the pursuit of economic self-interest made on behalf of the plumbing industry."
Looks as though the Hull administration could plug up PIPE's works.
Contact Amy Silverman at her online address: firstname.lastname@example.org
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