Plumbing Board

A lawsuit filed by a group of local plumbers against the City of Batavia over an alleged lack of a qualified person in the plumbing inspector role and the make up of the plumbing board was dismissed Aug. 8 by county Judge Robert C. Noonan.

The decision was made public today.

Noonan ruled that the plaintiffs failed to present any facts that could be used at trial to support their claims and that the city had demonstrated it has made every effort to comply with New York's General City Law.

City Manager Jason Molino said the dismissal substantiates what officials have been saying all along.

"We're happy to see the court agreed that the city has made its best effort, done its due diligence, to do what's best for the taxpayers," Molino said.

The attorney for the plumbers, Brian Degnan, could not be reached for comment. We also tried contacting the plumber who has been most outspoken on the issue, Barbara Toal, and were unsuccessful.

Molino said the city's efforts to bring fairness and impartiality to the plumbing board and the exam process have been successful.

In the past year, the city has gained six new licensed plumbers, he noted.

One of the controversies that arose last year about the plumbers is that the licensing exam had some poorly constructed questions and the grading wasn't being applied fairly. Three people who had taken the test and given failing grades were re-graded by Assistant City Manager Sally Kuzon and all three passed (Correction: two of the three were passed by the plumbing board.)

As part of the lawsuit, the plumbers challenged Sally Kuzon's qualifications to grade the test and to sit on the plumbing board. In addition to being the assistant city manager, she is director of the Public Works Department.

The suit also challenged Code Enforcement Officer and Superintendent of Water/Wastewater Matt Worth's appointment under an emergency declaration as plumbing inspector to the plumbing board, and the qualifications of Bill Hays as a journeyman plumber to sit on the plumbing board.

Noonan ruled that all three people were qualified for their positions under the guidelines of state law and that the city had made every effort to find a qualified master plumber willing to give up his or her business in order to become a plumbing inspector.  

The ruling states that the plaintiffs failed to establish that the city had disregarded its statutory duties under General City Law.

The suit was brought by Mark Walton, Peter Dellapenna, Kenneth Toal, Ryan Toal, Henry H. Cook, Ryan Cook, Christopher Cook, Ronald Toal, Paul Salway, Larry Toal, Barbara Toal, Walter Szczesny and Carl McQuillen.

For previous coverage of plumbing board issues, click here.

Several reforms in the policies and procedures of the city's plumbing board will be implemented following the Batavia City Council meeting Monday, where no council members raised any major objection to the plan.

After the meeting, City Manager Jason Molino said the next step is for he and his staff to meet with the plumbing board -- which currently consists of one master plumber and two city staff members -- and work out a plan for implementing the reforms.

The reforms include ensuring state laws regarding open meetings and public records be followed, that better records be kept and filed on applicants for plumbing licenses, and that a third-party company be found to fairly and unbiasedly administer plumbing exams.

The city must also continue looking for a new part-time inspector of plumbing -- a job candidate who can also share code enforcement duties.

If no such candidate can be found, then the city will need to have one of its current code enforcement officers be certified to perform plumbing inspections.

Councilman Bob Bialkowski said that's the one part of the plan that makes him the most uncomfortable. He would much rather have an experienced plumber performing inspection duties.

Three plumbers and the city's former plumbing inspector, Barb Toal, spoke during the public comments portion of the meeting, well before the city manager's report came up for council discussion.

The plumbers made general statements about the importance of plumbing regulation with regard to public health. Toal spoke more to the point of the report, questioning its accuracy on meeting notices and minutes and how exams were administered.

Toal's speech was delivered rapidly and was somewhat disjointed. She seemed to blame the lack of minutes and the fact no tests were administered for some period of time on the fact that the board has not been able to operate as a full, five-member board.

The city has traditionally found it difficult to meet state requirements to have a journeyman plumber on the board.

"There has not been a full plumbing board for a full year, so therefore there have been no meetings, no minutes and no business conducted,” Toal said.

Later in the meeting, council members discussed the fact that the board only needs three members present to conduct business.

Toal also criticized the report for claiming that meetings were not advertised with proper public notice in accordance with state law.

"Planning board meetings for last four years are on the third Wednesday of every month," Toal said. "What a surprise? How is the meeting not legal? How does management not know what’s going on?"

As for not administering tests, Toal said applicants were told that without a full board, the board couldn't write a test for them to take. She said they all understood the situation.

One of the speakers wasn't a plumber, but a customer of plumbers.

City resident Paul Passamonte discussed his own difficulty in finding a locally licensed plumber at a reasonable cost. It's the same topic Passamonte covered in a letter to the city last week.

Passamonte wrote that after hiring a contractor from Buffalo for a room addition, the same contractor offered a bid for the plumbing work. He said it would cost $3,200, but the contractor wasn't licensed in Batavia.

After obtaining the list of 31 licensed plumbers for Batavia, Passamonte said a surprising number didn't even live in Genesee County, and the ones who did usually didn't return his calls. Only four ever acknowledged his calls and only two showed up and gave bid estimates -- one for $5,200 and the other for more than $12,000.

When the plumbing report came up on the council agenda for council discussion, Councilwoman Rosemary Christian had her hand up first.

She wanted to know why, if the board had been meeting for more than a decade without proper meeting notices and minutes, why that problem wasn't caught earlier.

City Manager Jason Molino said that part of the issue is that the board wasn't being required to file their documents with the city clerk's office. The board was only dealing with the plumbing office, so there wasn't any additional oversight.

"I can’t give you an answer for why this has gone on for a period of time, but we’ve identified it and now we need to correct it," Molino said.

Councilman Bill Cox suggested that when a person files an application to take a plumbing test, the application should be logged in the city clerk's office and the applicant should receive a formal letter of acknowledgment in a timely manner. The rest of the council concurred.

That was the one additional reform added to the city manager's proposal.

Council President Marianne Clattenburg praised the report as thorough, well documented and factual.

"It's not emotional," she said.

"I think we also have to keep in mind what the plumbing board is all about and how it benefits the city when we have a fully functional, fair plumbing board and a competent plumbing inspector," Clattenburg added. "It is ultimately about serving the citizens of the community. It really isn’t about serving one interest."

After the meeting, Molino said the reforms should make a big difference in how plumbing business is conducted in the city.

"The recommendations, I don’t think are monumental, but in terms of significant change, they’re important," Molino said.

Photos: Christian, Molino and Bialkowski.

For nearly 20 years, the Batavia Plumbing Board has conducted secret meetings, failed to keep proper minutes, not abided by its own regulations regarding plumbing examinations and administered tests seemingly designed to assure failure.

These are the accusations contained in a report issued by the City Manager's office on Thursday in advance of Monday's city council meeting.

"After researching the Plumbing Board and Plumbing Inspector actions over the past two decades, it has been discovered that there are numerous questionable actions with regard to the conduct of prior Plumbing Boards and the Plumbing Inspector," reads the report.

"Furthermore, when considering the severity of issues revolving around illegal meetings, refusal to review plumbing exam applications, lack of aptitude in creating the exams and answer keys, and blatant disregard for accurate record keeping, it would appear that the actions of the Plumbing Board and Plumbing Inspector have been collusive, self-serving, and not in the best interest of the residents of the City of Batavia.

"These actions further reveal a deliberate abuse of public trust and obvious pursuance of self interest for those involved."

The 18-page report contradicts most of the reporting of the Batavia Daily News on plumbing board issues. The Daily's stories have consistently protrayed city plumbers as protectors of public safety foiled in their public service efforts by an uncooperative City Hall.

In a July 22 article (City plumbers are united in protest), the Daily reports:

The board corrected the tests and all three applicants failed.

It is a difficult test, plumber Doug Diegelman said.

“It absolutely should be. It’s a definite public safety issue,” he said. “I want to try and get this resolved so that everyone is working on the same page. Each and every plumber had to have certain qualifications to pass that test.”

Of course, any test is difficult if the answer key doesn't match the questions. In each of the sets of questions given, the answer keys contained between 4 and 21 incorrect answers. In one case, the answer key contained "false" as the correct answer on a multiple choice question.

City Manager Jason Molino said in an interview with The Batavian on Friday that he isn't even sure the exams are up to date with current plumbing codes. And since the plumbing board has generally failed to keep proper meeting minutes, there is no record of the board adjusting the tests to keep pace with changes in code.

According to the plumbing board's own regulations, the board is required to offer examines three times a year, but until the three applicants were offered the exam in February, no potential plumber has been allowed to take the test since October 2006. 

The board received applications in November of 2004, 2006, 2008, March 2009 and June 2009. The plumbing board did not even respond to these applications until January, according to the report.

When the exam was given, as noted, all three applicants failed. One of the applicants has 32 years plumbing experience and is already licensed in six other jurisdictions.

Though issues with the plumbing board have existed for 20 or 30 years or longer, according to the report, much of the current controversy surrounding the board arises from a Jan. 20 meeting and the decision to deny a city employee, Jimmy Ficarella, an opportunity to take the test.

At a previous meeting -- with all five board members present -- Ficarella's application was approved unanimously.

At the Jan. 20 meeting, only three board members were present. Another board member and the chairman were not notified the meeting was taking place, according to Molino.

The next day, Chairman Ricky G. Hale resigned, writing in his resignation letter, "Such a job requires dedication to the trade, a commitment to the citizens of the community and an unprejudiced demeanor between the City and licensed plumbers thereof."

While neither Hale nor another board member knew about the meeting -- and there's no documentation for proper, legal meeting notice -- several local plumbers knew to attend the meeting.

They all signed a petition -- for what, Molino isn't entirely sure, because the writing was, to him, illegible -- that helps document their presence at the meeting.

According to the Daily's stories, the remaining plumbing board members justified their action by saying Ficarella had been practicing plumbing without a license, even though no such concern was raised when his application was approved in December.

In an interview by the Daily with City Attorney George Van Nest, Van Nest raises the same issue, and the Daily's story provides unqualified cover for the plumbing board.

In, Plumbing Board refusing to correct test taken by city DPW employee:

That's not exactly true, Ron Toal said. The board needed time to fully review Ficarella's supporting documentation. Once that was done, board members agreed his experience did not qualify him to go for master plumber.

Which begs the question -- unasked, apparently, by the Daily's reporter: Why didn't the board complete its review before approving Ficarella's application in December?

Board members have claimed that Ficarella was found to have practiced plumbing without a license and without the proper supervision of a master plumber, but Molino said no one has come forward with evidence to support the claim.

"The entire board approved the new application in December, so obviously there’s new information that came in (for the Jan. 20 meeting)," Molino said. "So, let’s see the new information? ‘Well, there is no new information.’ Well, let’s see the investigation? 'There is no investigation.’ There’s no information, no justification, no new information whatsoever (to disqualify Ficarella)."

Even if it were true that Ficarella was practicing plumbing without a license, there's nothing in New York's General Cities Law on plumbing that would prohibit him from qualifying to take the exam.

However, a plumber found guilty of a misdemeanor (like practicing plumbing without a license) would lose his license. There is no claim The Batavian has yet to uncover that Ficarella was ever been charged with a misdemeanor, let alone convicted, to potentially disqualify him from taking the exam.

For months, the board refused to grade Ficarella's test. When it did -- because Van Nest required it to protect the city from litigation -- Ficarella wasn't given a passing grade.

After two of the candidates filed Freedom of Information requests for their tests and the answer keys, they challenged the test's validity.

Matt Worth, superintendent of water and sewer, regraded the test, checking the answer keys against relevant state and city codes. Once the incorrect answers in the answer keys were corrected, the two applicants were found to have achieved passing scores.

In a July 29 story (Recorrected: 2 plumbers pass test), the Daily quotes Larry Toal saying he believes the city “manipulated the codes to fit the answers.”

Former Plumbing Inspector Barb Toal told the Daily that the city's Licensed Plumbers Association plans a legal challenge to the passing grades.

In the same story, the Daily's reporter writes of the meeting that the only master plumber on the board at the time, Al Rosemark, objected to the meeting taking place since there weren't two other plumbers to vote on the regrading process.

General municipal law for cities states that the board is to include two master plumbers, one journeyman plumber, a city engineer and a plumbing inspector.

Ron Toal doesn’t think that Water and Sewer Superintendent Worth should be on the board since he’s not a plumber or an engineer and there is already a city representative on it.

But that's not correct, according to the city's report.

Under Section 40-a of the GCL (General Cities Law) Article 4, the Plumbing Board is to consist of five members: two (2) master plumbers of whom shall be employed as master plumbers of not less than 10 years experience in the business of plumbing, one (1) journeyman plumber of like experience and two (2) city staff members.

As explained above, the GCL provides that "the other members of such board shall be the chief inspector of plumbing and drainage of such city, or officer performing the duties of such inspector, and the chief engineer having charge of sewers in such city, but in the event of there being no such officers in such city, then any two other officers having charge or supervision of the plumbing, drainage or sewerage" may be appointed to fill the Plumbing Board positions.

The Daily's stories have also repeatedly left the impression that the city must employ a person with the job title of "Plumbing Inspector," and that such a person must be a master plumber.

In a June 4 story (Code officer sent for plumbing work), the Daily reports:

Former inspector Barb Toal said that neither of the code officials, Ron Panek nor Doug Randall, has ever taken the city plumbing test to be a certified master plumber. Only certified master plumbers are to do plumbing jobs and inspections in the city.

That's simply not true, according to the city manager's report.

Article 4 of the GCL does not provide that cities shall employ a separate titled position of "Plumbing Inspector," but rather the person inspecting plumbing work shall have a Certificate of Competency issued from the Plumbing Board.

This has been misstated in recent media reports, giving the impression that a city must have a distinct Plumbing Inspector position.

However, the relevant section of the GCL also requires that the inspector be a "practical plumber," whatever that means; however, he or she cannot be engaged in the trade of plumbing while serving as a plumbing inspector.

The plumbing inspector must also be a qualified building-code officer, according to the report.

If no person can be found who meets the qualifications, the Attorney General has ruled that a city cannot be forced to follow the General Cities Law.

"In researching the situation, we learned that the cities of Corning, Geneva and Canandaigua do not have active Plumbing Boards, do not license plumbers and do not employ plumbing inspectors," the report reads. "All three cities employ code enforcement officials (or building inspectors) to issue plumbing permits and conduct plumbing inspections."

Molina's report concludes with nearly a dozen recommendations for restoring public trust and confidence in the plumbing board, including obeying New York's laws on public meetings (publishing agendas and keeping accurate minutes, for example).

It also recommends that objective criteria be established for determining whether a candidate is qualified to take the plumbers' exam, and if a candidate's application is rejected, that detailed records be kept on why the board did not find the candidate qualified.

As for the exam itself, the report recommends hiring a third-party firm to write, administer and grade the tests to ensure complete impartiality.

Recommendation number 11 deals with the plumbing inspector position itself.

The recommendation is twofold. Firstly, try to find a qualified candidate who would then be required to go through the necessary training, within a year of being hired, for the part-time position of code-enforcement officer.

This is required by law. The lack of sufficient plumbing inspection work means the inspector will be required to perform other duties.

Or, secondly, have the Batavia Plumbing Board allow either of the current code-enforcement officers (who are otherwise qualified under New York law to take the exam) to take the plumbing exam and achieve a Certificate of Competency."

The city council is expected to discuss the city manager's report and its recommendations when it meets at 7 p.m., Monday.

If you wish to read the entire report for yourself, The Batavian's news partner, WBTA, has posted the report here.