CONSENSUS VS. CONSISTENCY
BY MARK CHUBB
Consistency is vastly overrated. Treating everyone alike has never been a principal tenet of our legal, social, economic, and political systems in America, yet we seem to be pursuing equality, consistency, and uniformity today as if they themselves were ends and not means. Nowhere is this more evident than in the codes and standards system, where quality, rationality, and reasonableness–significantly more important values–are threatened by the efforts of a few organizations and individuals within our profession to use the system to impose their beliefs on others.
The United States has developed a unique system for producing model safety regulations in the private sector for adoption by state and local governments. Notwithstanding the 10th Amendment to the U.S. Constitution and potential for interstate commerce and appropriations leverage, Congress and federal agencies alike have all but conceded, in light of the success of this system, the realms of building and fire safety regulation. We should be proud of this but must be careful not to take advantage of it.
For more than 100 years, the nation`s codes and standards organizations have employed and refined procedures designed to promote efficiency, effectiveness, equity, and economy in the development of safety codes and standards. To the extent that these processes produce regulatory uniformity or interpretive consistency, they are by-products–not precepts–of a well-crafted system.
In a nation with no federal police power governing health, safety, and welfare–that`s right, folks, federal safety regulations are intended to promote interstate commerce or are enacted to protect federal appropriations–try to imagine the chaos and inefficiency if all 50 states, 3,000 counties, 30,000 localities, and who knows how many special districts all devised and enforced their own unique safety regulations. Competing and conflicting regulations would only be the tip of the iceberg. How many communities have the expertise to develop all of the safety codes and standards they need? Even the most conceited regulator must concede that he does not know everything. Right?
Regulatory effectiveness depends on the ability of codes and standards to satisfy the needs of communities in ways consistent with their values. The fact that regulators are losing the support of the regulated should come as no surprise considering the apparent contempt with which the former seems to regard the latter. Concern that private interests could co-opt the codes and standards system has been used to justify competition among codes and standards organizations and coercive tactics by proponents in codes and standards proceedings.
The aim of the carefully crafted and balanced process of developing codes and standards has been to promote equity through consensus among all interested and affected parties concerning safety standards. Although not all codes and standards organizations employ an open consensus process, all provide opportunities for open debate, public review and comment, and full disclosure of the reasons for their actions. Undercutting or avoiding consensus yields nothing but conflict.
The cost of duplicative, conflicting, and competing regulations could be staggering. Complaints about the competitive disadvantages of overregulation already abound. Two recent and immensely popular books–The Death of Common Sense: How Law Is Suffocating America (Howard, Philip K., New York: Random House, 1995) and Meltdown on Main Street: How Government Is Obstructing Small Business in America (Lesher, Richard, New York: Plume, 1997)–argue for regulatory reform. Their calls are echoed by others such as David Osborne and Michael Barzelay, who advocate reinventing or reengineering our government institutions, including the way we regulate (Osborne, David and Peter Plastrik, Banishing Bureaucracy, New York: Addison-Wesley, 1997; Osborne, David and Ted Gaebler, Reinventing Government, New York: Addison-Wesley, 1992; and Barzelay, Michael, Breaking Through Bureaucracy, Berkeley, CA: University of California Press, 1992).
If you have not heard these arguments before, you are part of the problem. The message should be clear enough by now: The regulated don`t care for the regulators either. Mistrust of government and government officials has become a national epidemic, and the disease is now infecting the institutions that develop our codes and standards. Instead of treating citizens, including corporations, like customers, we must recognize that they are the owners. Rather than selling them what we produce, we should be producing what they want: codes and standards that reflect the values of safety, quality, credibility, reliability, and accountability as recognized and expressed by the consensus of the governed.
The late Howard Boyd, former Nashville, Tennessee, fire marshal, a past president of the Fire Marshals Association of North America, and an ordained minister in the United Church of Christ, commented in 1994 to a group of fire marshals discussing efforts to pursue a single code, “If one book (code) were the answer, then we wouldn`t have Baptists, Methodists, Episcopalians, Catholics ….” His argument was simple: Competence, not consistency, wins the day. We do not have to make everyone like us to make a difference. Besides, it would be a pretty boring world if we all agreed and acted alike.
God bless Howard for his insight. I know he is fighting fires in the hereafter just as fiercely as he did here. Now it`s time for us to fight the fires of dissent, conceit, and contempt and get about the business he worked so hard at for so long–promoting reasonable, responsible, and effective fire safety standards in our communities.
MARK CHUBB is fire code coordinator for the Southeastern Association of Fire Chiefs in Birmingham, Alabama. He is also a member of the Fire Engineering editorial advisory board.