CREATING VALUE. REDUCING RISK.
WHERE DESIGN AND CONSTRUCTION MEET.

The primary requirement written into architectural practice acts for most U.S. states is that architects are licensed only for the purpose of protecting the public health, safety, and welfare (HSW).  In Illinois where I am a licensed architect, these terms are defined within the statute as follows:

  • “Public health” as related to the practice of architecture means the state of the well-being of the body or mind of the building user.
  • “Public safety” as related to the practice of architecture means the state of being reasonably free from risk of danger, damage, or injury.
  • “Public welfare” as related to the practice of architecture means the well-being of the building user resulting from the state of a physical environment that accommodates human activity.

“Public safety” is straightforward – buildings must be structurally sound and inherently mitigate common risks, especially offering occupants protection from fires.  “Public Welfare” and “Public Health,” on the other hand, appear open to interpretation, and may be used to justify architects’ good intentions on behalf of the public at large or the planet as a whole.

The question is: are architects permitted to interpret these requirements any way they like?

As a baseline, HSW defines a building official’s police power granted by the state to enforce building codes.  Buildings that comply with the applicable codes are protecting HSW of the public by definition, as HSW is a statutory requirement as interpreted by authors of building codes.  Design solutions that fall short of code compliance are assumed to also fall short of protecting HSW and are denied permission to proceed into construction until the shortfalls are corrected.  The authority having jurisdiction’s power to protect HSW lies strictly in that one truncheon – the opportunity to deny a building permit or a certificate of occupancy.  Codes themselves may be interpreted in their implementation but the intention of the code gives almost no room for architects to interpret the definitions of HSW.

Legally, the code is the minimum acceptable standard for the construction of a building.  There’s a saying that if you’re meeting code, you’re just doing the minimum to protect HSW.  Since nobody wants to be thought of as ‘doing the minimum’, the saying also goes, architects should look for ways to do be better than code to make buildings safer, healthier, and provide better pubic welfare.

As good as this sounds, this is usually not a rational position, especially under a regime in which architects owe their clients a fiduciary duty.

The fiduciary duty at its core requires architects to protect the interests of the owner and obtain the owner’s informed consent for every material decision.  Protecting the owner’s interests includes meeting code to ensure the building can be constructed, legally.  Beyond that, an architect must explain why they recommend being ‘better than code’ in every instance, because those design decisions materially impact the owner’s interest in the project more than strictly code-compliant decisions will. Those decisions impact initial construction cost as well as in other ways: there are trade-offs with every design decision, and an attempt to be ‘better than code’ in one area likely has consequences and can make a building worse in another.  Are architects able to understand these tradeoffs and explain all their attendant costs and benefits so that the owner can make an informed decision?  That is the true test, not whether a building is materially better from an HSW standpoint.

Code-writing bodies judge HSW by outcomes.  Codes aren’t perfect and the industry is constantly learning from past mistakes.  Did some number of buildings fail to protect HSW in a measurable way that relates to a shortcoming in a 20-year-old edition of the code?  If so, that’s real data relating to measurable outcomes.  The code authors will analyze that data and adjust the code to prevent that failure from happening again.  There is a great deal of knowledge accumulated around the topic of failures in code-compliant buildings that is applied to every code revision cycle.

The best way architects can ensure they are protecting their clients’ interests and HSW at the same time is to simply design their projects to comply with code.  That way they are in compliance with the statute governing their licensure and at the same time meeting their fiduciary duties to their clients.  Once a project meets code, architects may have conversations with their clients in which if the client directs them to investigate ways to exceed code in some specific ways, they may proceed to make suggestions.  The risk in this is that architects may actually take this as license to advocate for their own interpretation of improved HSW, and by doing so, they are violating the fiduciary duty.

There’s a narrow window to legitimately interpret HSW, and it always starts with meeting code and then following the preferences of the client, not those of the architect.