Guam – Island business leader Peter Sgro submitted the following testimony during Senator Tom Ada’s hearing Wednesday night on the implementation of the new International Business Code.
Revised Testimony in Opposition to Any Efforts to Effectuate IBC, IFC or Any Sections Without First Complying With Existing Guam Law & Support of Repeal
Senator Tom Ada; Chairman August 18, 2010
Committee on Utilities, Transportation, Public works
173 Aspinall Avene, Suite 207
Agana, Guam 96910
Dear Senator Ada:
Please accept the this email message as my revised personal testimony which I request be part of the record for a hearing I understand you are holding tonight at 6pm at the Legislature or any other hearing which your Committee may hold relative to this matter. I had previously sent this morning testimony by email addressed to you, and respectfully request that the testimony I sent this morning, be substituted for this revised testimony. It has become apparent after further consideration that further testimony and modifications were warranted since unlike most public hearings, this the hearing tonight focuses on laws that have already been enacted with only the date of implementation delayed. Furthermore, there is no basis in law or fact to modify either the IBC or IBF which were enacted into law in their entirety, since any such amendments to a law done in contravention of existing law is null and void.
I only became aware of this hearing after you briefly spoke about Guam adopting provisions of the International Building Code (“IBC”) and International Fire Code (“IFC”) on K57 this morning. I want to state for the record that it is my continued position that the manner in which the IBC and IFC were initially introduced to the members of the Legislature, continues to be in violation of laws of Guam that existed prior to the IBC and IBF becoming law. Although I have provided your office with reasonable and justified positions supported by law and facts to repeal the enactment of the IBC and IFC, it appears based on your responses to my concerns this morning, that legally enacted and recognized laws of Guam continue to be ignored. Even if one was to assume the broad and unconditional statement that all states adopted the IBC or IBF or any portion of such model codes, the manner in which it was done in this case also violates almost all state statutes relative to the rule making process, many such state laws virtually mirroring Guam law.
It seems disingenuous that our own Government demands transparency and more specific details associated with the military build-up, yet in adopting the IBC and IFC which will have financial impacts to all the people of Guam, similar impact studies and requisite public discussions we expect from others have been ignored.
Our own legislature intended and required BEFORE any changes be made to our building and fire codes that the financial impact to all residents of Guam first be determined and that significant public involvement occur. During your interview on K-57 this morning, you indicated that you have been holding round tables on this serious issue yet despite this issue affecting all residents of Guam, it appears that only a few were invited to these roundtables despite knowledge there were others that opposed the positions being taken. Would it not have fostered public discussion and transparency as the Legislature intended when it adopted amendments to the Administrative Adjudication Act to extend invitations to not just those that fall within given professions but to include all residents of Guam? Would it have not fostered public discussion and transparency as the Legislature intended if invitations were also extended to those that raised rationale and reasonable concerns of why the IBC and IBF should have been repealed?
Attached is the entire Administrative Adjudication Law of Guam. Note the definition of “Rule” under section 9107 which clearly indicates legislative intent that the term be broad to insure the applicability of all other sections of the same law. When read together with especially sections 9300 to 9303, the entire rule making process was never intended by the Legislature to be a unilateral process, but one that mandates public involvement. There appears to have been no public involvement at all in this entire process as intended by the Legislature. In fact, it is my position that the round table discussions that you have been having are all moot since the fact remains that the IBC and IBF were originally adopted in contravention of the Administrative Adjudication Laws of Guam.
Notwithstanding attempts to delay the implementation of the IBC and IBF, this entire process reminds me of a basic principle of criminal law referred to as the “Fruit of the Poisonous Tree.” If the initial adoption of the IBC and IBF were adopted into law in contravention of laws that existed prior to the date of adoption, then such adoption is null and void. It is impossible to rationalize that the passage of any law can be done while violating another, especially when there were no amendments made to the Administrative Adjudication Law of Guam in the Public Law that adopted the IBC and IBF, nor where there any amendments in the attempts to delay their implementation.
Sections 9300 to 9303 are the key provisions that clearly outline the requirement of……”adequate opportunity for the public to participate in the formulation of proposed rules. Where any of our Mayors or Vice-Mayors engaged in this process? Where any public forums held in our villages? What public forums really occurred as the Legislature intended since merely holding round tables and having one hearing tonight does not meet the threshold? The Legislative intent of the rulemaking process is not only supported by the history of our own rule making laws, but is further supported by almost all states rule making process. In summary, changes in building codes do have a financial impact on all residents and your comments of the experts you described that you consulted are not the experts that are in a position to objectively determine the financial and economic impact to the people of Guam.
You will also not that under Sections 9301 (d) and (e), no rule can ever be considered by the Legislature under this Act without an Economic Impact Statement. During your interview, you totally ignored my concerns relative to the economic and financial impact and deferred the need to change our codes on the positions of a few and not all stakeholders as our laws require. Therefore, with the absence of any public participation in this entire process (note: a public hearing on the Bill that later became this law is not what the legislature intended) and the absence of any Economic Impact Statement provided to the Legislature prior to voting on this new law, supports both the IBC and IBF being repealed until all procedures mandated by law are complied with.
Instead of over-burdening already shorthanded agencies with more things to do, to allocate more time to learn an entire new set of codes containing hundreds of pages with no funding for enforcement, what is the rush? Why is the attached Title 5 Chapter 9 being ignored? Why are assumptions being made on the financial impact to the people of Guam and not advocating for the objective study which outlines the all the financial impacts? During your remarks this morning that Guam needs new codes, it was clear that no financial impact studies as mandated by Guam law was ever done since there was no discussion on how much implementing any parts of these codes would have on the people of Guam. I cannot accept the basic principle that the rulemaking process results in increased costs to all the people of Guam, yet rely only on assumptions and conjecture and just ignore what the true financial impact will be.
This is a serious issue which seems to have taken a fast track approach with no apparent review of any of the implications, especially the economic and financial implications. All States do in fact adopt sections of the Code and a simple Google search and calls to appropriate state agencies have shown that changes in codes have involved a deliberate, involved and years of public discussion to insure all positions are heard and not the positions of a handful. If I was to agree with the justification provided on the radio this morning, it would be analogous to having only Directors of Government agencies being invited to round table meetings relative to legislation that amends provisions of law related to the Public Auditor.
The statement that all states adopt these codes are not accurate and cannot be considered without further discussion on how and why various states changed their codes from Uniform Building Codes or other pre-existing codes, to adopting the IBC or the IFC, without incorporating all provisions in these international codes. This morning you encouraged me to read both the IBC and IFC and submit my own comments of what I felt should be changed. That is not the point or real issue involved here. Again, PRIOR TO the enactment of the IBC and IFC, various individuals had a fiduciary duty to the taxpayers of Guam to independently determine the financial and economic impact to the people of Guam and that was not done. There was a fiduciary duty to include the public in the rule making process and that was not done in accordance with the Legislature’s intent which is supported by the Legislative intent of state law making bodies.
I spoke today with Bob Barger, Fire Marshall for the State of Arizona. The Governor of the State of Arizona has ordered a moratorium on all rulemaking since the State budget cannot afford to discourage economic activity from occurring in Arizona. Because of the adverse financial position of the State Government and recognizing that almost all rulemaking results in increased fees or costs, the Governor of Arizona implemented this rulemaking Moratorium since she was and remains concerned that increasing the cost of doing business in Arizona which increases the cost to consumers, will ultimately drive businesses out of the State. This rulemaking moratorium is still in effect today.
If the unconditional blanket statement that all States have adopted these codes justifies Guam adopting the same codes, does our current government budget and current state of the economy also justify a moratorium on rulemaking? When the State of Arizona did go through the process of shifting from a Uniform Building Code and Uniform Fire Code to adopting the IBC and IFC, with amendments, according to the State Fire Marshall, the process took nearly two years. In the same manner that the Administrative Adjudication Laws of Guam require public involvement and an Economic Impact Statement prior to any rules becoming law, the laws of Arizona required the same. Agencies had to prepare an Economic Impact Statement to actually have a basis to determine the financial and economic impact of these codes rather than merely assume there would be no financial or economic impact.
Because of budget cuts to agencies in the State of Arizona, it is a concern for instance when you only have 8 fire inspectors yet the lFC sections that were adopted require……”Regularly Scheduled Inspections.” With the island facing a serious issues when our fire department only has a handful of ambulances to service all of 175,000 people and faces shortage of personnel to respond to current demand for fire suppression and health care needs of our community, it is difficult to understand why the IBC and IFC is taking a route other than the need to repeal it or why it has not been considered implicitly repealed by the fact it was enacted without compliance with the same set of rulemaking processes almost all States require. As the Arizona Fire Chief stated, “the public comment period is important so that amendments can be made to the code that fit the needs of Arizona.
California is one of the nation’s most progressive, if not the most progressive State. I also spoke today with one of the State representatives of the California Building Standards Commission. The entire process to adopt provisions of the IBC took 2 years. The State also did not adopt all provisions contained in the IBC and excluded a chapter and the appendices. California’s rulemaking process requires a “399 Document” or what is a “Financial Impact Statement.” This is basically the same as Arizona and Guam law requires in terms of an Economic Impact Statement.
Note that in the rulemaking process in California, not only is the Financial Impact Statement reviewed by the California Building Standards Commission, it is mandated that also the California Department of Finance review the same report. It literally took various states years to enact sections of the IBC and IFC tailored towards their own specific needs. What is the rush? I believe all residents of Guam should be just as informed of any public forums relative to this matter since the implementation of the IBC and IFC will in fact have financial and economic consequences to our community and the people have a right to know.
Senator Ada, I close by saying that this entire process must, based on applicable laws and our own Legislature’s intent and the intent of many state legislatures, not only stop, but the IBC and IBF be immediately repealed. Absent compliance with existing laws, there are no other options but to start all over again, but this time, in a manner that fosters serious island wide public discussion and the financial impacts to all our people be determined first.
Thank you very much
Peter R. Sgro, Jr.
Resident and Tax Payer of Guam