HomeMy WebLinkAbout83-559 TothErnest E. Toth, Chief
Allentown Fire Department
City of Allentown
425 Hamilton Street
Room 234
Allentown, PA 18101
RE: Financial Interest Filings, Allentown Fire Department Officers
Dear Chief Toth:
Mailing Address.
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
June 7, 1983
ADVICE OF COUNSEL
This responds to your letter of March 18, 1983, in which you requested
advice from the State Ethics Commission.
Issue: You request advice as to whether certain categories of persons serving
in the Allentown Fire Department must file Financial Interest Statements as
either "public employees" or "public officials."
Facts: As Chief of the Allentown Fire Department you present this request for
advice in relation to the following categories of persons who currently serve
within the Allentown Fire Department: fire Chief; assistant fire chief
- administration; assistant fire chief - line; deputy chief - fire prevention;
deputy chief - training officer; deputy chief - public information officer;
shift deputy - deputy chief; lieutenant; and fire inspector. Each of these
positions is briefly described as contained in the information you provided as
fol lows:
1. Fire chief -- the chief is the administrative head of the Fire
Department and has supervision over all activities of the Fire
Department. He performs such duties as may be required by law or
ordinance and issues orders governing the Department as he deems
necessary. He has the power and authority to issue orders and take
appropriate measures to put into effect the policies, rules and
regulations, practices and procedures necessary for the efficient
operation of the entire Fire Department. He is the chief enforcer
of several acts of the Legislature and ordinances of the City. He
has the authority to reprimand, suspend, or remove from service, for
just cause, any member or officer of the Department in such a manner
as shall be provided by State Law, City Ordinance, or rules and
regulations. In this capacity, he has the authority to suspend,
promote, discharge, reward, or discipline other employees of the
Fire Department.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
83 -559
Ernest E. Toth, Chief
June 7, 1983
Page 2
2. Assistant fire chief - administration -- this individual is directly
responsible to fire chief and assumes command when directed by the
fire chief of all Department operations. He exercises
administrative control over the office of Fire Chief and has a
responsibility for administrative control of the Bureau of Fire
Prevention and Fire safety, education, and training. He is
responsible for seeing that the rules and regulations of the Fire
Department are uniformly applied and carried out, including within
these responsibilities, the authority to transfer, suspend,
discharge, assign, reward or discipline other Fire Department
employees with the approval of the Fire Chief.
3. Assistant fire chief - line -- this individual is directly
responsible to the fire chief and assumes command when directed to
by the fire chief. He responds to multiple alarm fires and fires
which unusual hazards or circumstances are present. He is in direct
charge of specialty squads within the Fire Department. This
individual may assign and transfer personnel, consistent with
prevailing agreements, and he has the authority to recommend a
transfer, suspension, discharge, assignment, reward or discipline of
Fire Department employees subject to the approval of such
recommendations by the Fire Chief.
4. Deputy fire chief - fire prevention -- this individual is
responsible for the enforcement of all fire prevention laws and
ordinances whether promulgated by the State or the City. He is
responsible for overseeing all industrial, mercantile, and heavy
habitational or multi - person occupancies. He is responsible for
thoroughly investigating the cause of all fires and he assists in
the compilation of evidence and prosecution of persons charged with
violations of the fire prevention laws or ordinances. He is
responsible for making recommendations to the chief for the
elimination of special hazards and dangerous conditions which might
exist in the City. He maintains a complete record of inspections,
investigations, complaints and special or peculiar hazards. He has
overall supervisory responsibility for recording all fire
inspections including any enforcement necessary to secure compliance
with existing fire codes.
5. Deputy chief - training officer -- this individual is responsible
for training all fire fighting personnel in all aspects of fire
extinguishment. This includes keeping the personnel abreast of
latest techniques and involves some background in teaching and
communications. This individual organizes and documents training
manuals and maintains records regarding same.
Ernest E. Toth, Chief
June 7, 1983
Page 3
6. Deputy chief - public information officer -- this officer operates
under the general direction of the chief and assistant chief of the
Bureau. His primary function is to educate the general public by
demonstrations, lectures, seminars, etc., as to the importance of
fire prevention and the functions of the Fire Bureau with respect to
the protection of life and property.
7. Shift deputy - deputy chief - deputy chiefs -- designated as chief
deputies, and rank next below the revolving deputy chief of the
Department in authority. This individual is on duty at their
designated quarters and capable of and responsible for responding to
first alarm fires and other emergency situations. In such capacity
this individual assumes command of the fire scene until the arrival
of a senior officer. They are responsible fo' deploying apparatus
and personnel at the fire scene until relieved. They see to it that
the laws and ordinances, regulations and orders, and directives
issued for the government of the Bureau are promptly and effectively
enforced and obeyed. They are also responsible for reporting
transactions of same to the revolving deputy. They are responsible
for recommending the removal from use of any tool, piece of
equipment, appliance, etc., which in their estimation is unfit for
service. They are responsible for securing emergency or immediate
repairs or replacements to equipment as required. These individuals
are basically "working officers" who must, in the abscence of
sufficient fire fighters, be able to assist in carrying out fire
fighting responsibilities. However, they are responsible for
recommending transfers, suspensions, promotions, discharges,
assignments, and rewarding or discipline of other employees subject
to their review.
8. Lieutenants -- these individuals have command and control of the
apparatus to which they are assigned in a platoon. In the absence
of an immediate superior officer, they assume command of a fire
scene and are responsible for carrying out the orders, regulations,
and duties of the superior officer until relieved. In the absence
of sufficient fire fighters, they must, in addition to giving
orders, physically assist at the fire scene and are classified as
"working officers." They are responsible for securing or giving
proper and continuing instruction to the fire fighters under their
command as to the proper handling and operation of all fire tools
and equipment.
Ernest E. Toth, Chief
June 7, 1983
Page 4
9. Fire inspector -- this individual is assigned by the chief to
enforce all fire prevention codes adopted by the City as well as
those required by the State of Pennsylvania, Department of Labor and
Industry. He is, more importantly, responsible for inspecting of
all commercial, industrial, and private dwellings and structures.
He must submit reports and issue citations to those parties found
deficient in regard to meeting the standards of the fire prevention
codes of the City of Allentown or the Department of Labor and
Industry as mentioned above. The fire inspector accompanies housing
inspectors on their rounds (in connection with HUD inspections) and
assists in enforcement of applicable codes. The fire inspector is
also responsible, following the issuance of citations and abatement
orders, to insure that compliance is secured or prosecution
initiated if abatement of a problem is not secured within the time
prescribed by the fire inspector. This responsibility extends to
inspection of all flammable liquid installations within the City.
Upon request the fire inspector assists the fire marshall in
inspection of and recommendations regarding hazard and arson
investigations and he must be able to act as a prosecuting witness
in court cases involving violations of the City's codes or the
State's laws.
Discussion: The State Ethics Act and the financial reporting and disclosure
provisions thereunder are applicable to persons within the category of "public
employee." The definition of public employee as contained in the Ethics Act
includes persons as follows:
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a
nonministerial nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or
subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing
any person; or
(5) any other activity where the official action
has an economic impact of greater than a de
minimus nature on the interests of any person.
"Public employee" shall not include individuals who are
employed by the State or any political subdivision thereof
in teaching as distinguished from administrative duties.
65 P.S. 402.
Ernest E. Toth, Chief
June 7, 1983
Page 5
The regulations of the Commission are also pertinent and are incorporated
herein by reference with regard to the definition of "public employee." See
51 Pa. Code 1.1. Most signifigant within the definition of "public employee"
contained in the regulations of the Commission is that provision which relates
to inclusion within that definition of a person who "normally performs his
responsibility in the field without on -site supervision" or is the "immediate
supervisor of a person who normally performs his responsibility in the field
without on -site supervision" and the "supervision of any highest level field
office."
With these definitions in mind we turn to a review of and application of
these definitions to the particular factual situations outlined above. Each
of these categories of personnel will be reviewed separately below.
1. Fire chief. There can be no doubt that the fire chief, who is
responsible for the overall supevision of all activities within the
Fire Department, including issuance of orders and implementation of
city ordinances and state laws has a role in taking or recommending
official action of a non - ministerial nature with respect to
contracting or procurement; inspecting, licensing, regulating ...;
or any other activity where the official action has a greater than a
de minimus economic impact upon persons. As such, the fire chief
falls within the definition of "public employee" and, therefore,
must comply with the financial reporting and disclosure provisions
of the Ethics Act.
2. Assistant fire chief - administration. It is clear that this
individual is in the direct line of command under the fire chief and
exercises administrative control pertaining to personnel, supplies
and equipment purchases, budgeting, and all other office procedures.
In this regard, although the job description which you have provided
does not necessarily indicate a specific responsibility for
purchasing and contracting, we can only assume that such an
individual with these responsibilities would have the authority to
take or recommend official action with regard to contracting or
procurement. It is interesting to note that in the opinion most
analogous to the situation presented here, Co le, 82 -013, that those
individuals within the Research and Planning ffice in the City of
Philadelphia's Fire Department were conceeded to be "public
employees" because of their association with the contracting and
procurement process. Similarly, we believe that the assistant fire
chief - administration position as outlined in the material you have
provided, warrants the inclusion of this individual wihin the
category of "public employee" who would, therefore, be subject to
the financial reporting and disclosure requirements of the Ethics
Act.
Ernest E. Toth, Chief
June 7, 1983
Page 6
3. Assistant fire chief - line. This individual, because of his
authority to recommend or to actually transfer, suspend, discharge,
assign, reward or discipline other Fire Department employees subject
to the approval of the Fire Chief must be said to have the authority
to take or recommend official action with regard to an activity that
has a greater than de minimus economic impact upon the persons
subject to such action. This ruling is consistent with our
conclusions in relation to the fire batallion chief within the City
of Philadelphia's Fire Department. See Coyle, supra. In this same
regard, this individual must be responsible for recommending the
disposition or assignment of apparatus and equipment and in this
regard we can only assume that this responsibility extends to
recommending the replacement or purchasing of new equipment which is
also covered by the concept of recommending official action with
relation to "contracting or procurement. We note, no data was
provided as to "specialty squads" which persons within this category
might command, so we do not address inclusions as a "public
employee" based upon such specific tasks.
4. Deputy chief - fire prevention. This individual, because of his
responsibility in enforcing all fire prevention laws and ordinances
and his ability to oversee and review industrial mercantile, etc.,
occupancies and investigation of all fires must be considered to be
a "public employee" subject to the financial reporting and
disclosure requirements of the Ethics Act. Similarly, this
individual's ability to recommend elimination of special hazards of
dangerous conditions, to investigate complaints and to supervise and
record all fire inspections, including enforcement actions necessary
to achieve compliance with the existing fire codes, compels the
conclusion that this individual must be considered, within the
purview of the Ethics Act, in relation to these inspecting,
activities.
5. Deputy chief - training officer. This individual's primary
responsibilities appear to be internal in nature and specifically
related to a training function. We do not see in his job
description nor can we assume from other logical implications that
he has responsibility for taking or recommending official action of
any nature that might be subject to the five categories set forth in
the definition of "public employee" as outlined above. Accordingly,
we conclude that this individual is neither a "public employee" nor
is he subject to the financial reporting and disclosure requirements
of the State Ethics Act.
Ernest E. Toth, Chief
June 7, 1983
Page 7
6. Deputy chief - public information officer. This informational
officer is basically, according to the information you have
provided, a liaison or a public relations conduit. He does not
appear to have any function other than to inform and educate. He
does not appear to have the authority to take or recommend official
action of a non - ministerial nature with regard to any of the five
categories set forth in the definition of "public employee" as
contained in the Ethics Act. Accordingly, we conclude that this
person is neither a "public employee" within the definition of the
Ethics Act nor is he subject to the financial reporting and
disclosure requirements of the Ethic Act.
7. Shift deputy - deputy chief. This individual appears to be
primarily a "line officer" with little or no responsibility other
than to maintain control of the fire scene until relieved. Nothing
in the job description, which you have provided, indicates that this
individual has responsibility for investigations, inspections, or
on -site supervision of same. While these individuals do appear to
have some responsibility in reporting deficiencies or transactions
in relation to the personnel under their jurisdiction, their
authority to recommend official action in relation to such personnel
appears to be limited. In this regard the "revolving deputy" would
appear to have the authority to recommend or t� forward or stop
recommendations from being sent to the person or body with the
authority to make final decisions. Because you have not provided us
with a description of the duties of a "revolving deputy ", it is
difficult to conclude that the shift deputy, who apparently is a
subordinate to the revolving deputy, should be deemed to be a
"public employee." Accordingly, based upon the description which
you have provided, we must conclude that the shift deputy - deputy
chief, is not a "public employee" subject to the financial reporting
and disclosure provisions of the Ethics Act.
8. Lieutenants. These individuals, although they have command and
control of an apparatus of the fire scene in relation to their
respective platoons, do not appear to have the authority to take or
recommend official action in relation to any of the five categories
outlined in the definition of "public employee." In addition,
unlike the situation of the lieutenants which we reviewed in Coyle,
where there were some fire lieutenants who served as supervisors on
on -site inspections, in the description which you provide, there is
no indication that lieutenants in the City of Allentown undertake
similar duties or are assigned responsibilites similar to the
inspections undertaken in the City of Philadelphia and reviewed in
Coyle. Accordingly, based upon the facts presented as to the duties
and responsibilities of lieutenants within the City of Allentown, we
concluded they should not be considered "public employees" subject
to the provisions of the Ethics Act.
Ernest E. Toth, Chief
June 7, 1983
Page 8
9. Fire inspector. This individual is responsible for enforcement of
an administration of inspection programs of a signifigant nature.
There is no question that he has the responsibility to take or
recommend official action in relation to such programs. In
addition, he is responsible for issuing citations and prosecution of
violations of the city ordinances and the state statutes relating to
fire safety and prevention. Again, interestingly enough, in the
most analogous opinion issued on this subject, Coyle, it was
conceded that individuals within the fire marshalls office, which we
deemed to be substantially similar to the office of the fire
inspector in the City of Allentown, were "public employees" under
the definition of that term as contained in the Ethics Act. Given
our review of the duties and responsibilities of the fire inspector
himself, there can be little doubt that he is a "public employee"
subject to the financial reporting and disclosure provisions of the
Ethics Act.
Conclusion: The following individuals should be considered public employees
subject to the financial reporting and disclosure provisions of the Ethics Act
and should immediately take the steps necessary to comply, if they have not
already done so, with those requirements of the Ethics Act: Fire chief;
assistant fire chief - administration; assistant fire chief - line; deputy
chief - fire prevention; fire inspector.
The following individuals, about whom you have provided information, are
not to be considered "public employees" and are not subject to the financial
reporting and disclosure requirements of the Ethics Act: Deputy chief
- training officer; deputy chief - public information officer; shift deputy
- deputy chief; and lieutenants (who are not extensively involved in
supervising on -site inspections or performing same without on -site supervision
similar to those present in the Coyle Opinion issued by this Commission).
Filing required as a result of this Advice should be made within 15 days
of issuance of this Advice. Should your personnel have any questions
regarding the execution of the required forms, please feel free to contact our
staff. If you do not have a supply of Financial Interest Statements, please
let us know and same will be provided.
Pursuant to Section 7(9)(ii), this Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, providing the requestor has
disclosed truthfully all the material facts and committed the acts complained
of in reliance on the Advice given.
Ernest E. Toth, Chief
June 7, 1983
Page 9
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any reason to
challenge same, you may request that the full Commission review this Advice. A
personal appearance before the Commission will be scheduled and a formal
Opinion from the Commission will be issued. Any such appeal must be made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
SSC /rdp
cc: Joseph Rosenfeld, Esq.
Bill Gernerd
Kathryn Wohlsen Mayer, Esq. -
Mike Grim
Charles Deruarics
Si n erely,
wI
Sandra S. Chris ,/
ianson
General Counse