HomeMy WebLinkAbout04-568 DomzalskiJohn F. Domzalski
Health Commissioner
City of Philadelphia
Department of Public jjealth
1101 Market Street, 8"' Floor
Philadelphia, PA 19107
Dear Mr. Domzalski:
Re: Public Employee; FIS; Air Pollution Control Inspector I, II, and Supervisor;
Department of Public Health; Air Management Division; City of Philadelphia.
Dear Mr. Domzalski:
ADVICE OF COUNSEL
June 25, 2004
04 -568
This responds to your letter dated May 25, 2004, by which you requested advice
from the State Ethics Commission.
Issue: Whether employees in the capacities of Air Pollution Control Inspector I,
i�ollution Control Inspector II and Air Pollution Control Inspector Supervisor with the
Department of Public Health Air Management Division for the City of Philadelphia,
hereinafter City, are considered "public employees" subject to the Public Official and
Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations
of the State Ethics Commission, and particularly, the requirements for filing Statements
of Financial Interests.
Facts: You, as the appointing authority, seek a determination as to whether,
WED oyees in the capacities of Air Pollution Control Inspector I, Air Pollution Control
Inspector II and Air Pollution Control Inspector Supervisor with the City, within the
Department of Public Health, Air Management Division, are "public employees" subject
to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S.
§1102; 51 Pa. Code §11.1. You specifically question whether they are required to file
Statements of Financial Interests.
The Health Department Air Management Division is the air pollution control
agency for the City and is responsible for the prevention, abatement and control of air
pollution and air pollution nuisances. The agency is also responsible for the control of
airborne asbestos from building renovation and demolition projects, and for the
abatement of community noise and vibration nuisances. Within the City, the Air
Pollution Inspection series job titles exist only in the Department of Public Health.
Domzalski, 04 -568
June 25, 2004
Page 2
For the past few years, some employees in the above positions have not
completed the Statement of Financial Interests form. The union representing them,
AFSCME, District Council #33, Local 488, has questioned whether the employees who
hold these positions are within the purview of the State Ethics Act. The union further
objected to informing the employees of the requirement to file disclosure forms.
Neither the employees nor the union have taken any steps to request an opinion
from the State Ethics Commission on whether they are among those employees
required to file. Therefore, on behalf of the City, you request an advisory on the
obligations of the employees in these positions. Once the ruling is received from the
State Ethics Commission, you expect that the City, the employees, and the union will
act in good faith on that ruling.
Copies of three job descriptions have been supplied and are incorporated herein
by reference. The duties and responsibilities are quoted in part as follows:
Air Pollution Control Inspector I
This is a technical field work at the training level inspecting air pollution sources or
asbestos abatement project sites for a municipal air pollution control program.
Employees in this class receive training in the laws, ordinances, regulations, practices
and procedures relevant to a municipal air pollution control program. Work includes
conducting field inspections to evaluate asbestos air monitoring, removal and disposal
activities and other sources of air and noise pollution for compliance with prescribed
permit conditions and applicable federal, state and municipal codes, regulations and
standards. Work is performed under the close supervision of a technical superior and
involves some disagreeable working conditions.
• Receives training and performs a variety of field activities of increasing difficulty
related to a municipal air pollution control program as follows:
• Patrols assigned district to find pollution sources; interviews complainants; tours
industrial facilities with plant managers and operating personnel; locates source and
cause of air pollutants and noise and vibration nuisances; recommends
modifications to operating and maintenance procedures; recommends installation of
pollution control equipment.
• Inspects and evaluates sources of air pollution by observing process operations and
parameters, visually and by instrument, to determine compliance with prescribed
permit conditions.
• Responds to complaints of excessive noise and vibration; utilizes sound and
vibrations measuring devices; interviews plant managers and operating personnel,
or community residents and informs them about noise and vibration regulations;
recommends measures to alleviate such problems.
• Inspects new fuel burning installations; makes annual boiler and incinerator re-
inspections; takes fuel samples and makes delivery to the laboratory for sulfur
content analysis; accompanies engineering staff on scheduled major source
inspections.
• Conducts diesel emission surveys at bus depots and on the street; accompanies
police highway patrols in inspection of vehicle emissions; collects and analyzes
gasoline and oil samples for lead and sulfur content; inspects service stations and
fuel distributors for proper use and maintenance of vapor recovery systems.
• Inspects chemical plants and new fuel burning installations; makes annual boiler and
incinerator re- inspections; collects fuel samples and delivers to laboratory for sulfur
content analysis.
• Receives instruction in the interpretation and application of city, state and federal
laws and regulations applicable to asbestos; explains provisions of applicable
asbestos laws and regulations and advises plant managers, building managers, and
building maintenance personnel on asbestos related operational and maintenance
procedures.
Domzalski, 04 -568
June 25, 2004
Page 3
• Attends job conferences with contractors and consultants to discuss asbestos
abatement project design and regulation requirements.
• Observes asbestos abatement contractors, certified asbestos project inspectors, and
asbestos workers on asbestos abatement projects to ensure that work is performed
in accordance with pertinent city, state, and federal regulations and codes; reviews
job records and logs to ensure that work is performed as reported in the project
permit and /or notification; wears protective clothing and respirators to enter
containment areas when required to verify compliance with regulations; may issue
stop work orders after conferring with superiors, if necessary.
• Enters asbestos contaminated areas that may or may not have been known to be
contaminated prior to entry; inspects sites suspected of having asbestos
contamination including dumpsters, vacant buildings and demolition sites; evaluates
asbestos contamination conditions, orders evacuation of specific areas or buildings
after conferring with superiors, if necessary.
• Inspects intended shipments to ensure the proper disposal of asbestos material;
performs follow -up inspections to ensure that appropriate manifest records are
received.
• Responds to complaints concerning improper asbestos removal and /or disposal;
interviews complainants and inspects site; makes emergency containment of short
dumped asbestos to prevent exposure to the general public.
• Performs unannounced inspections of renovation sites where notifications or permits
for asbestos removal have not been received, checks licenses and certifications of
asbestos workers, supervisors, contractors, inspectors, laboratories, and
investigators to ensure validity.
• Reviews asbestos inspection reports submitted with L & I building and demolition
permits and visits selected sites; obtains samples, e.g., air, dust, soil, soot,
asbestos, from selected locations and delivers to laboratory for analysis.
• Issues violation notices and recommends additional enforcement steps; interacts
with other city, state and federal agencies involved in the prosecution of violators;
testifies in court.
• Prepares detailed reports and activity sheets; enters work activity data into
computer, takes pictures as required for civil cases; ensures that personal protective
equipment is in working condition.
• Attends an approved smoke reading training program on a semiannual schedule;
visually evaluates smoke opacity using approved departmental methods.
• Performs related work as required.
Air Pollution Control Inspector II
This is technical field work at the full performance level inspecting air pollution sources
or asbestos abatement project sites for a municipal air pollution control program.
Employees in this class evaluate asbestos air monitoring, removal and disposal
activities and other sources of air and noise pollution for compliance with prescribed
permit conditions and applicable federal, state and municipal codes, regulations and
standards. Contact with contractors, project inspectors, building owners and regulatory
agency representatives is a significant aspect of the work. work in this class differs from
the next lower level by the greater degree of independent action exercised by
employees in completing assignments. Work is performed under the general
supervision of a technical superior, and involves some disagreeable working conditions.
The following job duties are in addition to or differ from the duties listed for Air Pollution
Control Inspector I:
• Participates with other departmental technical staff in monitoring emergency
situations such as chemical spills and fires involving hazardous material; tests for
potential hazards using standard issue air sampling equipment.
Domzalski, 04 -568
June 25, 2004
Page 4
• Interprets and explains provisions of city, state and federal laws and regulations
applicable to asbestos and advises plant managers, building managers, and building
maintenance personnel on asbestos related operational and maintenance
procedures.
• Observes asbestos abatement contractors, certified asbestos project inspectors, and
asbestos workers on asbestos abatement projects to ensure that work is performed
in accordance with pertinent city, state, and federal regulations and codes reviews
job records and togs to ensure that work is performed as reported in the project
permit and /or notification; wears protective clothing and respirators to enter
containment areas when required to verify compliance with regulations; may issue
stop work orders if necessary.
• Enters asbestos contaminated areas that may or may not have been known to be
contaminated prior to entry; inspects sites suspected of having asbestos
contamination including dumpsters, vacant buildings and demolition sites; evaluates
asbestos contamination conditions; orders evacuation of specific areas or buildings if
necessary.
Air Pollution Control Inspection Supervisor
This is a supervisory and technical work in the inspection of air pollution sources or
asbestos abatement project sites for a municipal air pollution control program.
Employees in this class supervise staff engaged in evaluating asbestos air monitoring,
removal and disposal activities or other sources of air and noise pollution for compliance
with prescribed permit conditions and applicable federal, state and municipal codes and
regulations. Employees in this class also participate in the investigation of cases which
involve technically complex and sensitive elements. Contacts with officials of violating
firms to secure the changes required for compliance with municipal codes and
regulations are significant aspects of the work. Work is performed under the general
supervision of a technical superior and involves exposure to some disagreeable working
conditions.
Both Specialties
• Assigns and reviews the work of staff engaged in performing technical field
inspections; determines priority of assignments; observes and checks the work of
subordinates in the field; reviews reports of completed inspections; isolates serious
and or recurring problems with contractors, project inspectors, and building owners;
recommends enforcement actions such as stop work orders, re- inspections,
conferences, hearings or legal action if required.
• Participates in special investigations of technically complex and sensitive cases in
concert with other city and federal and state agencies involved in the civil and /or
criminal prosecution of violators; testifies in court.
• Confers with complainants, civic and other groups on issues related to the assigned
area of specialization; evaluates complaints and resolves problems; contacts
violators to secure actions necessary to correct violations.
• Prepares reports concerning the activities of the unit and supervises the
maintenance of records.
Air Compliance Specialty
• Supervises staff engaged in patrolling assigned districts to find pollution sources,
touring industrial facilities to locate sources and causes of pollutants, and
recommending modifications to operating and maintenance procedures and the
installation of pollution control equipment to correct or prevent violations.
• Directs staff engaged in responding to complaints of excessive noise, inspecting
new fuel burning installations, re- inspecting boiler and incinerators on an annual
Domzalski, 04 -568
June 25, 2004
Page 5
basis, conducting diesel emission surveys and inspecting service stations and fuel
distributors.
• Coordinates with incident commander to provide support to the monitoring and
evaluation of hazardous conditions at emergency sites consistent with the city's
established emergency response polities and procedures.
Asbestos Specialty
• Supervises staff engaged in inspecting and investigating the removal, air monitoring,
and project permit and /or notification of asbestos abatement projects to ensure that
contractors and asbestos project inspectors comply with city, state and federal
regulations, acceptable trade practices and prescribed permit conditions.
• Enters asbestos contaminated areas that may or may not have been known to be
contaminated prior to entry; inspects sites suspected of having asbestos
contamination including dumpsters, vacant buildings and demolition sites; evaluates
asbestos contamination conditions orders evacuation of contaminated areas.
• Ensures that personal and subordinate staffs protective equipment is in working
condition.
• Performs related work as required.
Discussion: The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"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 minimis nature
on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102.
The Regulations of the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe ":
(A) The individual normally performs his responsibility
in the field without onsite supervision.
Domzalski, 04 -568
June 25, 2004
Page 6
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(I) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) 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.
(iv) Persons in the following positions are generally
considered public employes:
(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.
(D) Engineers, managers and secretary - treasurers
acting as managers, police chiefs, chief clerks, chief purchasing
agents, grant and contract managers, administrative officers,
housing and building inspectors, investigators, auditors, sewer
enforcement officers and zoning officers in all governmental
bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
Domzalski, 04 -568
June 25, 2004
Page 7
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers, construction
workers, 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.
51 Pa. Code § 11.1.
Status as a "public employee" subject to the Ethics Act is determined by applying
the above definition and criteria to the position held. The focus is necessarily upon the
position itself, and not upon the individual incumbent in the position, the variable
functions of the position, or the manner in which a particular individual occupying the
position may carry out those functions. See, Phillips v. State Ethics Commission, 470
A.2d 659 (Pa. Commw. Ct. 1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D.
Pa. 1982). Furthermore, the Commonwealth Court of Pennsylvania has directed that
coverage under the Ethics Act be construed broadly and that exclusions under the
Ethics Act be construed narrowly. See, Phillips, supra.
Based upon the above judicial directives, the rovisions of the Ethics Act, the State
Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light
of the delineated duties and responsibilities, the necessary conclusion is that the
employees in the Air Pollution Control Inspector I, Air Pollution Control Inspector II and Air
Pollution Control Inspector Supervisor positions are "public employees' subject to the
financial reporting and disclosure requirements of the Ethics Act.
It is clear that employees in the capacities of Air Pollution Control Inspector I, Air
Pollution Control Inspector II, and Air Pollution Control Inspection Supervisor, have the
ability to take or recommend official action with respect to subparagraphs 4 and 5 within
the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. 1102.
They have the power to inspect and such actions will have economic impacts that are
greater than a de minimis nature on the interests of any person. In addition, employees
in the Air Pollution Control Inspection Supervisor position may participate in investigations.
These activities would also meet the criteria for determining your status as a public
employee under the Regulations of the State Ethics Commission, at 51 Pa. Code
11.1, "public employee." Therefore, individuals holding the positions of Air Pollution Contrcil
Inspector I, Air Pollution Control Inspector II or Air Pollution Control Inspector
Supervisor are "public employees" subject to the Ethics Act and the filing of Statements
of Financial Interests pursuant to the Ethics Act.
Conclusion: In the capacities as Air Pollution Control Inspector I, Air Pollution
Control Inspector II and Air Pollution Control Inspector Supervisor with the Department
of Public Health Air Management Division for the City of Philadelphia, these employees
are "public employees" subject to the Public Official and Employee Ethics Act and the
Regulations of the State Ethics Commission. Accordingly, they must file a Statement of
Financial Interests each year in which they hold the aforesaid positions and the year
following termination of such service.
Domzalski, 04 -568
June 25, 2004
Page 8
If the employees have not already done so, a Statement of Financial Interests
must be filed within 30 days of this Advice.
Pursuant to Section 1107(11), an 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, provided the requestor has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
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 appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717-787-0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Vincent J. Dopko
Chief Counsel