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HomeMy WebLinkAbout82-013 CoyleWilliam F, Coyle, Esquire Suite 1430 Landtitle Building Philadelphia, PA 19110 Dear Messers Coyle & Eichert: I. Issue: II. Facts: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 December 23, 1982 OPINION OF THE COMMISSION 82 -013 Michael F. Eichert, Esquire Bloom, Ocks & Fisher 113 South 21 Street Philadelphia, PA 19103 RE: City of Philadelphia Police, Fire Fighting Officers, Financial Interest Statements You have requested a ruling as to the inclusion of certain persons employed by the Police and Fire Fighting Departments of the City of Philadelphia within the definition of "public employee" as set forth in the Ethics Act. By memorandum dated March 29, 1982, the City of Philadelphia issued a directive which specified, pursuant to 51 Pa. Code 4.10(e), those individuals that they had determined fell within the definition of "public employee" so as to be responsible for filing Financial Interest Statements in accordance with the Ethics Act. That directive which is incorporated as part of the record herein indicated that the following categories: all commissioners, deputies, unit chiefs and assistants, including police and fire; employees who perform inspections and their immediate and chief supervisors, including police and fire and Licenses and Inspections Departments; police and fire officers of the rank Lieutenant and above; code compliance officers and their immediate and chief supervisors would be required to file Financial Interest Statements as "public employees." The directive also excluded generally, from the definition of "public employee" and, therefore, from the filing requirement those persons in the categories of fire fighter and police officer, unless the duties of these persons routinely involve inspecting and licensing. By letters dated May 3, 1982 (Eichert, 82 -057) and April 27, 1982 (Coyle, 82 -253), you requested that the Ethics Commission review this directive of the City of Philadelphia and to finally determine whether the persons subject to this directive were indeed required to file Financial Interest Statements under the Ethics Act. The record reveals that you each represent different clients in this proceeding. Mr. Coyle indicated that he represents certain William F. Coyle, Esquire Michael F. Eichert, Esquire December 23, 1982 Page 2 lieutenants, captains and battalion and deputy chiefs in the Philadelphia Fire Department while Mr. Eichert indicates that he is attorney for Lodge No. 5, Fraternal Order of Police, which is the Philadelphia labor organization representing the Philadelphia Police Officers. You each provided us with job descriptions for the various categories of employees which you wished us to review. These job descriptions are incorporated herein by reference. You were present at the meeting of the State Ethics Commission held June 16, 1982, at which this matter was initially reviewed. You provided argument and the testimony of one witness, Chief Joseph F. Barron. You also introduced as Exhibits A and B, items entitled "Notice" of inspection of the Philadelphia Fire Department and a form entitled "Fire Inspection Referral" respectively. After receiving testimony and hearing argument, the Ethics Commission issued an interim order signed June 16, 1982, which indicated that until further study and review could be made and a final decision rendered, the following officers and personnel would be required to file Financial Interest Statements: unit commander (police); police captains; police staff inspector; police inspector; chief police inspector; fire lieutenant; fire captain; fire battalion chief; and fire deputy chief. After this first meeting, it was clear that the post of assistant fire chief was no longer at issue as that post had been abolished due to budgetary considerations. Also the record indicates that at the time of this hearing, that you conceded that persons within the following classifications should be considered "public employees ": fire officers in the research and planning areas who take or recommend decisions as to contracting or procurement process; fire officers in the fire marshall's office; the deputy chief who heads the fire marshall's office; police staff inspector; police inspector; and chief police inspector. These matters were confirmed with you by letter of our Counsel date June 18, 1982 and must be assumed to be undisputed. Notably, since that time you have not provided us, although requested to do so, with any further written documentation or information or arguments relative to this matter. We have been provided with, take notice of, and incorporate as part of this record Exhibits C and D, attached hereto entitled Forms Directives No. 76 -40 (March, 1972), Fire Inspection Referral and No. 76 -24 (rev. December, 1973), Fire Prevention Check. Given the above information, it appears to us that the remaining classifications subject to dispute and requiring our review are: persons - whether sergeants or lieutenants who serve as unit commanders in the police department; captains of the police department; fire lieutenants; fire captains; fire battalion chiefs; and persons serving as deputy fire chiefs (except those serving in the fire marshall's office.) In relation to the individual categories of persons which appear to be subject to dispute a synopsis of the job duties and responsibilities as set forth in their job descriptions appears below: William F. Coyle, Esquire Michael F. Eichert, Esquire December 23, 1982 Page 3 1. Fire battalion chief -- commands a number of fire companies on an assigned shift, has controlling responsibility for directing a batallion on an assigned shift and directs fire fighting and rescue operations by determining correct means of extinguishing a blaze. This individual also makes inspections of fire companies including inspection of fire apparatus, equipment and buildings. He directs inspection of businesses, schools, churches, public buildings, etc., to determine the presence or extent of fire safety hazards. This individual also participates as a member of one or more committees engaged in formulating proposals for new departmental procedures and passing upon request for commendations or disciplinary actions. 2. Fire lieutenant -- works on a rotating shift supervising fire fighters. Generally, he supervises a fire company station and is responsible for the fire sight until a supervisor arrives. This individual supervises inspections of multi- occupancy dwellings, commercial and industrial establishments, health care and educational facilities for violations of the Fire Code and for the purpose of obtaining fire - fighting operational information. 3. Fire captain -- is the rotating shift supervisor of fire fighters and is responsible for directing a fire company at fire sites as well as at the station house. He is in charge of requisitioning supplies as needed, preparing reports and records as required. As with the fire lieutenant, he supervises inspection of multi- family dwellings, commercial and industrial establishments, health care and educational facilities for ascertaining violations of the Fire Code and for obtaining fire - fighting operational information. 4. Fire - deputy chief -- supervises and commands a fire division composed with a number of batal 1 i ores and directs one half of the City's fire - fighting force on an assigned shift. One person within this class serves as the fire marshall with responsibilities for directing the city's fire investigation program. In the field a person within this position would command all operations at a fire sites until relieved. He would be responsible for touring division sights and forces to insure that fire operations are carried out properly. He is responsible for relaying and interpreting directives to the battalion and company officers. In addition, he reviews and forwards recommendations for awards and disciplinary action as well as reviewing fire reports and making recommendations to modify or improve fire - fighting procedures. These persons serve on one or more committees (accident prevention, saftey, William F. Coyle, Esquire Michael F. Eichert, Esquire December 23, 1982 Page 4 commendations, and water liason) set up to study and recommend adoption of new fire - fighting techniques and administration. This individual plans, assigns, and reviews investigative reports from suspicious fires. He handles requests for variances from Fire Code provisions, and is responsible for reviewing, approving or disapproving, plans and specifications to insure adherence to the Fire Code. 5. Police captain -- supervises or commands a police district or special police unit. He exercises wide discretion and has great latitude in exercising judgment to perform assigned tasks. He supervises enforcement of laws; including interviewing suspects, preparing cases and appearing in Court. 6. Unit commander -- It should be noted that no job description was provided for persons serving as unit commander. In relation to the "inspection" activities undertaken by the fire battalion chief and the fire lieutenants and captains, testimony was presented that indicates that these inspections are designed to acquaint the fire - fighting officers with the buildings and establishments within their jurisdiction and to provide an educational service to the owners of these establishments and facilities. Essentially, this inspection is performed as a service by the Fire Department as part of the Fire Prevention Education Program and is not intended to supplant inspections by the Department of Licenses and Inspections, hereinafter L & I. The reports are made following these inspections and forwarded to L & I for further enforcement or prosecution for Fire Code violations. L & I is ultimately responsible for sending out inspectors and performing the citation and prosecutorial functions. III. Applicable Law: The law to be applied to this question is 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: William F. Coyle, Esquire Michael F. Eichert, Esquire December 23, 1982 Page 5 "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. 51 Pa. Code §1.1: (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 - -- (i) The term includes any individual: (A) who is employed by the Commonwealth or a political subdivision and who is responsible for taking or recommending official action of a nonministerial nature with regard to: (I) contracting or procurement; (II) administering or monitoring grants or subsidies; (III) planning or zoning; (IV) inspecting, licensing, regulating, or auditing any person; or (V) any other activity where the official action has greater than a de minimis economic impact; and (B) who meets the criteria of either subclause (I) or (II) of this clause: (I) The individual is: ( -a -) a person who normally performs his responsibility in the field without on -site supervision; ( -b -) the immediate supervisor of a person who normally performs his responsibility in the field without on -site supervision; or William F. Coyle, Esquire Michael F. Eichert, Esquire December 23, 1982 Page 6 ( -c -) the supervisor of any highest level field office. (II) The individual is a person: ( -a -) who: ( -1 -) has the authority to make final decisions; ( -2 -) has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions; ( -3 -) prepares or supervises the preparation of final recommendations; or ( -4 -) makes the final technical recommendations; and ( -b -) whose recommendations or actions: ( -1 -) are an inherent and recurring part of his position; and ( -2 -) affect organizations other than his own organization. (ii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties,. (iii) Persons in the positions listed below are generally considered public employees. (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (8) Commonwealth bureau directors, division chiefs, or heads of equivalent organization elements; and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency, or other governmental bodies before the public. (D) Solicitors, engineers, managers, secretary- treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, housing and building inspectors, sewer enforcement officers, and zoning officers in all governmental bodies. William F. Coyle, Esquire Michael F. Eichert, Esquire December 23, 1982 Page 7 (E) Court administrators, assistants for fiscal affairs, and deputies for the minor judiciary. (F) School business managers and principals. (iv) Persons in the positions listed below are generally not considered public employees. (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, construction workers, detectives, equipment operators, and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards, and writ servers. (C) School teachers and clerks of the schools. IV. Discussion: As set forth above, those categories of workers about whom there is no dispute as set forth in II above need not be discussed further here. However, we should note that we agree with the decision made by the City of Philadelphia in regard to those individuals who fall within the categories of police staff inspector, police inspector, police chief inspector, fire officer serving in the fire marshall's office, and fire officers serving in the research and planning and fire marshall's office in general. These individuals will be required to file Financial Interest Statements as "public employees" because their duties and responsibilities are clearly within the purview of one or more of the categories of responsibility outlined in the statutory definition of "public employee." We will address the decision of police captian first as this appears to us to be equally clearly within the purview of the definition of "public employee." The job description of police captains indicates that they are generally in command of a police district or special police unit and are empowered to exercise much latitude, judgment and discretion in the performance of their responsibilities. This individual is clearly a supervisor of or a persons who has the final recommendary authority as to enforcement of laws. This individual interviews suspects, prepares cases, and is responsible for appearing in court to enforce the laws of the Commonwealth. Clearly, this is a non - ministerial task relating to "regulating" any person and this activity or official action has a greater than de minimus economic impact upon the persons subject to any enforcement proceeding. Persons within the category of police captain must he found to be "public employees" within the definition of that term as set forth in the Ethics Act. William F. Coyle, Esquire Michael F. Eichert, Esquire December 23, 1982 Page 8 We move next to consideration of the category of unit commanders, who in our understanding may either be police lieutenants or sergeants. First we note that directive of the City indicated that unit commanders would be required to file Financial Interest Statements. As we understand it, there is no generic job description for the post called unit commander. However, such a lieutenant or sergeant, when serving as a unit commander, is empowered to assign policemen to various posts and to review the work of the subordinate personnel who are responsible for enforcement of traffic ordinances or special details such as plain clothes operations, vice law investigations, and the like. In this capacity a unit commander, clearly, must have the authority to prepare and supervise preparation of final recommendations on actions, with the authority to stop or forward such recommendations or to make final recommendations or actions which effect entities other than his own unit. As such, we conclude that persons serving as police unit commanders, whether sergeants or liuetenants or otherwise fall within the definition of the term "public employee" as that is set forth in the regulations of the Commission. We also note that you have failed to provide us with any specific evidence or testimony which would warrant a conclusion contrary to that reached originally by the City of Philadelphia. In this context we will not overrule the City's determination as to Unit Commanders. Moving to the Fire Department, we address the question of fire battalion chief first. This individual is clearly in charge of a battalion with responsiblity for reviewing, interpreting, and applying departmental policy. This individual also is in charge of inspecting the fire companies themselves. We find it hard to believe that such an individual does not have the authority to make final decisions or at least to be in a position to prepare or supervise the preparation of final recommendations on actions relating to one or several of the categories set forth in the definition of "public employee" within the Ethics Act. Likewise, the ability of this individual to participate in committees engaged in formulating proposals designed to establish new departmental procedure and to pass upon requests for commendations and /or disciplinary actions clearly indicates that a person serving as a battalion chief has the autority to recommend official action of a non - ministerial nature with respect to inspecting or regulating the persons under his supervision, at least, and this authority has a substantial impact upon the persons so commended or disciplined. Fire battalion chiefs fall within the definition of "public employee." William F. Coyle, Esquire Michael F. Eichert, Esquire December 23, 1982 Page 9 We next review the category of persons designated as deputy fire chiefs. This individual is in charge of directing 50% of the City's fire - fighting force on any assigned shift. This person is responsible for insuring that fire operations are properly carried out and relaying and interpreting directives to battalion and company officers. Even more so than the battalion chief, this individual is responsible for relaying, reviewing, and making recommendations for awards or disciplinary action. He is also responsible for making recommendations to modify or improve fire - fighting procedures. He may serve on a committee(s) to develop and recommend adoption of new fire - fighting techniques and administration. As with the battalion chief, we find that these duties fall within one or more of the itemized categories within the definition of "public employee" as set forth in the Ethics Act and within the definition of "public employe" as contained in the Commission's regulations. This conclusion applies to persons in this classification serving in the fire marshall's office and the research and planning office as you concede and any other officers so long as the individual is empowered to or authorized to perform the duties set forth in a job description for this classification. Finally, we turn to the question of the inclusion of fire lieutenants and captains. The directive of the City apparently included only those persons designated as lieutenants and captains as "public employees" because they were routinely involved in inspecting and licensing. Under the facts presented, fire lieutenants and captains who supervise on -site inspections as part of the Fire Departments' Education Program must be considered "public employees" under the regulations of the State Ethics Commission, 51 Pa. Code 1.1, definition of "public employee" (B)(I)(a) and (b). Therefore, a liuetenant or captain or other officer in such a supervisory - inspection capacity should be considered a "public employee" because he participates as supervisor in the on -site program of inspections. Likewise, should any of the persons within these categories serve as the equivalent of a unit commander as described above relative to the Police Department, we would consider them "public employees" as with Police Unit Commanders. However, we have not been provided with information sufficient to determine whether any fire officers serve in such an equivalent capacity. V. Conclusion: Based on the above discussion and the review of items made part of this record, we conclude that the following categories of persons serving within the Police and Fire Departments of the City of Philadelphia are to be considered "public employees" and, therefore, required to file Financial Interest Statements as set forth in the Ethics Act: police staff inspectors; police inspectors; chief police inspectors; police captains; police unit commanders (who may be sergeants or lieutenants or above); fire battalion chiefs; deputy fire chiefs whether serving in the fire marshall's office, the research and planning division, or otherwise; and fire lieutenants and captains who may serve in the capacity equivalent to a police unit commander. William F. Coyle, Esquire Michael F. Eichert, Esquire December 23, 1982 Page 10 Otherwise, fire lieutenants and captains who serve as supervisors of the on -site inspection program described above are to be considered "public employees" and required to file Financial Interest Statements under the Ethics Act. No fire - fighters, even those who are supervised, as outlined above, while performing on -site inspections under this program are "public employees" or required to file Financial Interest Statements. Nothing in this ruling is intended to or should be construed to limit the authority of the City of Philadelphia to require filing or impose another code of conduct upon personnel as they decide pursuant to Section 11 of the Ethics Act or otherwise. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. By the Commission, SSC /rdp cc: Representatives Rocks Representative Francis Weston Tyler Wren, Esquire UPDATE: Refer to Opinion #83-002 for r