HomeMy WebLinkAbout82-013 EichertDear 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
William F, Coyle, Esquire Michael F. Eichert, Esquire
Suite 1430 Landtitle Building Bloom, Ocks & Fisher
Philadelphia, PA 19110 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 batalliors 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
(1) contracting or procurement;
(2) administering or monitoring grants or
subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing
any person; or
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.
(5)
51 Pa. Code §1.1:
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
(8) 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
without on -site supervision;
( -b -) the immediate supervisor of a person who normally
responsibility in the field without on -site supervision; or
in the field
performs his
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.
(B) 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 - information,
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.
is