FairFAR.org

About a week before the 18 May 2010 council meeting, I sat down at the computer to review the proposed SmartRegs regulations.  Because the city had communicated that the SmartRegs only affected rental property landlords, I thought it was more a matter of curiosity about what energy efficiency standards the city might eventually require for all homeowners than anything that would need immediate action on FairFAR.org’s part as a homeowners’ group.  However, as a FairFAR.org founder, I thought it important to at least read the proposed legislation.

I was shocked to discover two things:

1. Part of the SmartRegs will affect ALL residential property owners.  In one of the three proposed ordinances, the City is proposing adopting the 2009 International Property Maintenance Code (IPMC), and at the outset of that ordinance it clearly states that this part of the SmartRegs proposal will apply to ALL of the city’s homeowners.  (See the 1 June 2010 Council Agenda Attachment A, section 10-2-2, IPMC section 101.2–the wording specifically states “all existing residential” properties.)
2. When I went to try to read what the new parts of the ordinance would say about the new property maintenance regulations that every homeowner would have, I couldn’t find the exact words of the proposed law online at the city’s website.  This struck me as odd, because our existing city housing code was available online, and past proposals to change our land use code had been placed online.  Google provided me with a bit more insight: the proposed law was a privately owned, copyrighted model code, and the only way to obtain an online copy of what was actually being proposed as law was to pay money to the corporation that wrote the model code.

The first point came as a shock because in every public outreach communication from the city about the SmartRegs, the city indicated that the SmartRegs would apply only to rental residential properties.  For example, on the city’s SmartRegs webpage it states that 16,000 postcards were sent out to rental property owners.  Or, as another example consider this text quoted from the “Proposed Housing Code and Rental Licensing Changes” pdf written for their community Open Houses:

“The Housing and Rental License Codes are the base documents for the residential rental licensing program. The SmartRegs proposal would integrate pertinent sections of the Housing Code into the 2009 International Property Maintenance Code (IPMC) published by the International Code Council (ICC), and then adopt the amended document. The Rental License Code, a separate document, is also being updated with amendments as part of the SmartRegs Update.”

Would any reasonable person reading the first sentence of that quote think that the city intended to make changes to the Boulder Housing Code that affected all residential properties?  Though no one from the FairFar.org steering committee attended the open house–as we were misled by communications like these into believing that the SmartRegs were not an issue of general interest for homeowners but only for landlords, we did follow the SmartRegs process online.  In fact it is a testament to the good faith effort the city made to reach out to landlords that there exists such a widespread public misperception that the SmartRegs only affect landlords, when in fact parts of it affect all residential property owners.

As it if it wasn’t absurd enough that the city was proposing to enact into law standards of property maintenance that it could not make freely available online to the general public, it is with reference to the second surprise that the story starts to get really weird. I quickly checked the Boulder Public Library online records, and sure enough, it wasn’t listed as available there.  That didn’t surprise me–knowing that the City deposits its public documents at the main branch of the Boulder Public Library, I figured I might encounter a printed copy behind the reference desk.  As I ordinarily go to the library about twice a week after work, and I decided I would stop by the next day to look for it.  But I really couldn’t believe I couldn’t find it on Google–because I knew that the full text of the law is in the public domain, and unless no other municipality had adopted the IPMC it should be too.  With considerable effort I eventually unearthed a pdf copy of the sections of the 2006 International Property Maintenance Code that the City of Olympia, Washington had adopted–not the 2009 version Boulder was proposing as law, but close enough for me to see that there might be serious substantive problems with some sections of the proposed law.  In the process, I also discovered why the IPMC wasn’t freely and publicly available online: the building codes’ author, the International Code Council, Inc. (ICC) and the predecessor organizations to the ICC, had been quite litigious in their attempts to keep their privately owned, copyrighted model code from being disseminated publicly and/or online, even after it was adopted into local law–suing not just a company that had republished the Massachusetts codes but even a private citizen who had the audacity to put the full text of his local law online.  It seemed that, by the simple act of trying to read the proposed city law online, I had rather quickly blundered into an arcane and highly complex legal debate.

Remember however, that I expected the Boulder Public Library would have a print copy of the proposed law.  I looked for a print copy of the IPMC there on three separate occasions–on May 16th, shortly before the first reading of and public hearing on the ordinance on the 18th, again on the 19th of May (the day after the first reading) and on June 2nd, the day after the ordinance was passed on first reading by the Council.  Each time, I enlisted the help of the reference desk librarians to find the document.  All three times we all failed to find the IPMC at the library. It wasn’t there in time for anyone to read it prior to the Council Public Hearing on the 18th (or apparently for the Public Hearing for the Planning Board back in April), nor was it there after the hearing, nor was it there after the ordinance was passed on June 1st.  How is a citizen, or a citizens’ organization, supposed to know what is being proposed or passed as law?

After the first trip to the library I contacted the city and tried to reach someone who knew something about the IPMC, as well as bringing the rest of the FairFAR.org steering committee up to date and starting us on an independent review of the proposed law.  After several rounds of baffled and bemused front desk referrals to part-time city staff who didn’t answer their phones or seem to return calls, I eventually called, about 8 am one morning, the manager who had signed the SmartRegs memo given to the Planning Board.  He couldn’t answer my substantive questions, but promised to have the planner in charge of adopting the IPMC call me back.  Later that day I received the callback, and we had a long conversation about the code and the shortcomings I had spotted in it that was made much more difficult because I had only been able to obtain a partial copy of the 2006 IPMC prior to that occasion.  Nonetheless, I communicated both my and other FairFAR.org members’ initial substantive objections and our general concern about adopting into law privately owned, copyrighted code that we citizens weren’t free to read, reproduce and criticize online and in their full form.  I pointed out that the property maintenance code affected all homeowners mundane and routine activities, and not just electrical, plumbing or other work for which one would reasonably be expected to contract a licensed professional. I also asked for a list of the members of the Community Working Groups and their affiliations because I was concerned that the representation on those groups might not have represented all stakeholders in the SmartRegs process–a verbal request that was denied, ostensibly due to the claim that it would take too much time of the staff member with whom I was speaking.  A bit later I followed up the request in an email, but to date I have not received the information nor a written reply.

Since that conversation ended on a rather unsatisfactory note, I also contacted two council members privately with my concerns about the barriers posed by the copyright to free and public access to the full text of the proposed law both online and at the library, and they each raised the issue to staff during the 18 May meeting.  As the wheels of government turn slowly sometimes, I thought it was reasonable to wait and see if the IPMC would eventually show up at the library reference desk, even when I didn’t find it there on the 19th of May.  But when it wasn’t there on June 2nd, I decided to get a bit angry.  I wrote both the council at large and the city manager complaining about the lack of access to the proposed law at the library, and, by showing them the memo where the city manager had said that they were supposed to have the IPMC, I made the kind reference librarians upset enough to call the city at the same time.  The city finally made the IPMC available at all three branches of the library, and they were cataloged and available to the public within about a week.

For my trouble, the city PDS office gave me my own copy for free, apologized profusely for the screw-up, and promised that any citizen could now order a copy of the IPMC for free as well at PDS.  But my copy was different from the ones I had seen council refer to, however, in that mine came still in the shrink wrap.  Now normally, that wouldn’t be too important, but the shrinkwrap also bore a large white sticker informing me that opening the package constituted my “acknowledgment that this is a copyrighted work owned by the ICC, Inc.” The license, which should be legible in the photograph accompanying this post, is the sort of thing one ordinarily sees on commercial software, not on a book.  Of course, since I had been slowly digesting the legal arguments over whether the law could ever be copyrighted, I had no intention of acknowledging that my local law could be copyrighted–and so I decided against opening the shrink wrap.  I would just have to make do with reading the library’s copy.

I was still concerned that the city manager and other high-level staff were considering these complaints to be a mere access problem and not seeing it as symptomatic of a larger problem with adopting privately-owned, copyrighted works as law, so I called the city manager’s office and attempted to schedule an appointment with her.  After several rounds of phone calls, I eventually reached a staff member of the city manager’s office on June 4th, and she assured me the physical access problem was being fixed and there were now copies at the library, though she also made the dubious claim that one had been already sent to the library a long time ago.  I pointed out that library access was only one part of the problem with adopting privately owned and copyrighted works into law, and reiterated that we were losing online access to our city code.  Immediately afterward, and on my way to the gym late on a Friday afternoon, I checked with the government documents and reference desk librarians to make sure the IPMC hadn’t arrived earlier and gotten lost in the catalog process or somewhere, and they assured me they had never seen the IPMC book before and it had been not been sent.

My curiosity piqued, I engaged in a little more detective work that same day–I decided to see if the IPMC was actually available for public review at all four of the locations that the city’s manager’s memo setting the agenda for the 1 June meeting had said it was. Of course, I had already received a copy at PDS and I had already straightened matters out with the library, so that left just the Office of the City Manager and Central Records.  The kind folks in the Office of the City Manager could produce it, but the equally nice folks in Central Records couldn’t–and didn’t recall having received it. After a short chat with the Central Records office, a possible reason emerged–Central Records receives its agenda unbound because it microfiches them.  But the copy of the IPMC I had seen in the city manager’s office, and the ones council received, were in three-ring binders–and the IPMC was neatly tucked into the binder’s inside pocket.  I walked back over to the library to double check my memory, and sure enough, the agenda at the library had a comb binding–with no pockets.  I took a photo or two to jog my memory of it and decided to go back to the city manager’s office to take a photo of that copy of the agenda so I could post the differences here.  Ironically, I may have encountered the city manager at the front desk and not recognized her–I was just the odd guy in biking clothes obsessively taking photos of an agenda volume, not a founder of a relatively largish citizens’ organization.  And I’m sure that did wonders for my request to meet with her about homeowners’ concerns re adopting the IPMC into law, a meeting request which was eventually denied a week later.

I took advantage of that denial, however, to bring up FairFAR.org’s concerns about copyright again with the city manager’s office. In another somewhat contentious conservation, the city manager’s assistant defended the city’s commitment to open government and mentioned that the city had placed its codes online whenever it could, excepting only the other copyrighted codes–such as the plumbing, electrical and mechanical/structural engineering codes–that were adopted by reference and (from the city’s perspective) can’t be published on its web site.  I replied that there were two important differences between those codes and the IPMC.  First, because it concerns property maintenance, the IPMC regulates the sort of mundane and routine maintenance obligations most ordinary homeowners would do for themselves, and not the sort of work for which a homeowner would ordinarily expect to hire a licensed professional who already owns and is trained in those codes.  Curiously, she seemed confused by the fact that I was not talking about rental properties but instead about ordinary homeowners, and I had to backtrack to point out that the proposed law applied to all homeowners, though I didn’t have the citation at my fingertips–and I mentioned that I wasn’t even sure that council as a whole was aware of the difference in scope between this part of the SmartRegs law and the rest of it, especially given their comments concerning the IPMC’s effect on rental properties.  Second, and with respect to the legal principle of the promulgation of the law, the two types of code differ in that one is proposed law and the others are already enacted laws. I mentioned that the ICC and its predecessors had sued a private Texas citizen named Pete Veeck when he placed his local building codes online, and though the ICC had eventually lost the case on its second round of appeals before the Fifth Circuit Court, the grounds on which they lost were narrow and applied to enacted and not necessarily to proposed law.  I pointed out that FairFAR.org had considered putting the missing text of the IPMC up on its website, but after consulting briefly with a IP attorney we concluded it would expose us to a lawsuit if we were put the full text of the proposed law up onto the web in order to foster a discussion of the law–i.e., we would not be able to take refuge under the Veeck decision if we published the proposed law (the IPMC), as we would be able to if we were to republish the other codes the city had already adopted by reference.  This, I pointed out, is not open and transparent government practice; instead, doing business with a corporation that engages in litigious behavior toward private citizens who disseminate the law, posts warning labels on printed books, and otherwise obstructs the public’s right to know, read, reproduce and criticize the law itself–whether enacted or proposed–is not just un-open or not-transparent government practice, it’s the very definition of what it means for the abuse of copyright law to have a “chilling effect” on democratic government.[*] Citizens deserve a chance to criticize the exact words of the law, because the exact words of the law are what govern them.

At the time, I thought our arguments had once again gone unheard, but a few days after that, and rather unexpectedly, I did at least receive a nice call from the Chief Building Official and I was finally able to convey FairFAR.org’s initial concerns to someone senior in the city management.  We discussed the copyright litigation issues, our initial substantive issues, and the differences between a law governing ordinary property maintenance and one governing the work of licensed contractors.  We also discussed at length the problems that the City of Arvada has experienced with its adoption of the 2006 IPMC, and its recent emergency efforts to repeal and modify the IPMC code it adopted.  I can honestly say that I think the city staff is at least aware of the seriousness of the copyright issue now, and I hope that the issue of whether the City of Boulder should do business with a corporation that is being unreasonable about giving online public access to its privately-owned, copyrighted work so that the citizens may freely reproduce, discuss, and criticize our proposed laws will be considered by Council.[*] I also hope that Council will also voice an understanding that this part of the SmartRegs will affect both owner-occupied and rental residential properties, and consider the related issue of whether the city has actually done any meaningful outreach to ordinary homeowners concerning the vast change to the housing code it is now proposing.  It may be that the city is hoping to rein in only landlords with this code revision, but the net is cast wide enough to cause unintended consequences for all homeowners in the city.

(The author would like to thank the other members of the steering committee and membership at large who contributed to the analyses and insights raised in this post.)

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[*] FairFAR.org note: As the result of our critiques and the hard work of others, the IPMC and other ICC building codes are now publicly accessible online for free.