May 19, 2010
To The President and Members of
The Council of the City of Philadelphia:
For the following reasons, I am returning herewith to your Honorable Body as disapproved Bill No. 100214, which was passed by Council at its session on May 6, 2010.
Bill No. 100214 adds to the City's Fire Code a provision stating that the Fire Department official in charge at the scene of a fire has the authority to direct uniformed Fire Department personnel, including paramedics, to engage in fire rescue, fire abatement, and emergency medical services. Based on this description of their potential duties, the bill then purports to draw a legal conclusion as to the status of paramedics under the Pennsylvania Policemen and Firemen Collective Bargaining Act, Act of 1968, P.L. 237, No. 111, 43 P.S. §§ 217.1 to 217.10 ("Act 111").
Decisions about how to deploy Fire Department personnel are decisions committed to the highest levels of the chain of command of the Fire Department, both as a matter of policy and a matter of law. As a matter of policy, paramedics have not been authorized to engage in fire rescue and fire abatement work. Accordingly, contrary to the statement in the ordinance, the Fire Department official at the scene of a fire does not have the authority to direct paramedics to fight fires. Nor should such officials have such authority. Firefighting requires particularized training that is currently not required of our paramedics.
Moreover, it is clear, and I have been so advised by the City Solicitor, that our City Charter vests authority for making determinations regarding the role of Fire Department personnel exclusively with the Fire Department itself. Section 1-101(1) of the Home Rule Charter provides that "The executive and administrative power of the City . . . shall be exclusively vested in and exercised by a mayor and such other officers, departments, boards and commissions as are authorized in this charter." In general, Council does not have the power to legislate as to how the Executive and Administrative branch performs its duties under the Charter. Moreover, the Fire Department is one of the Executive and Administrative Departments designated by the Charter and it is
specifically directed to "train, equip, maintain, supervise and discipline an adequate number of firemen." Charter Section 5-400. Thus, authority to determine how Fire Department personnel
will be supervised is exclusively vested in the Executive and Administrative Branch - specifically, the Fire Commissioner, and Council does not have the power to authorize Fire Department personnel in charge of a fire scene to, in turn, authorize paramedics to fight the fire.
In addition to the clear direction of the Charter, we can all appreciate the wisdom of leaving the decision as to which personnel may be authorized to perform which duties at the scene of a fire to the highest level of command of the Fire Department, i.e., the Fire Commissioner.
Lastly, this bill entangles City Council in an ongoing dispute currently before the Pennsylvania Labor Relations Board, in which the City has sought a determination that its paramedics do not belong in the same collective bargaining unit as firefighters. The state law known as Act 111 gives special collective bargaining rights to firefighters. Because paramedics are not firefighters (as the paramedics have themselves established in a dispute regarding overtime pay; see Lawrence v. City of Philadelphia, 527 F.3d 299 (3d Cir. 2008), cert. denied, 129 S.Ct. 763 (2008)), the City has sought a determination making clear that they are not entitled to the special bargaining rights of firefighters. The PLRB has the exclusive authority under state law to determine which employees will be in which bargaining unit and what their bargaining rights will be. We expect that the PLRB will likely conclude that paramedics are not firefighters for purposes of Act 111. Whatever the outcome of the PLRB proceeding, the issue of whether the City's decision to seek to exclude paramedics from the Local 22 bargaining unit was correct must be decided by the PLRB, and not by Council through legislation such as Bill No. 100214. The City has no authority to make this determination of State law. Only the PLRB, subject to appeal to the State courts, has this authority.
Accordingly, because this bill would attempt to set policy regarding who has authority to direct the work of paramedics at the scene of a fire, which authority is already vested in the Fire Commissioner; because this attempt to set such policy exceeds Council's powers under the City's Home Rule Charter; and because Council entangles itself in an administrative dispute regarding the collective bargaining rights of the City's paramedics, I must oppose it going into law and therefore am returning it disapproved.
Michael A. Nutter,