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.