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Minutes

Committee Hearing, May 14, 1998

Philadelphia City Council Committee HearingsMay 14, 1998

People mentioned

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Organizations mentioned

Councilman Kenney

And that's on 2, bottom, right, of the marked-up bill?

Mr. Campbell

And at the top of the pink bill, but at the bottom of the marked-up bill. And that now currently reads, "Proof that applicant possesses insurance in such type and amount as the Department shall, by regulation, require covering claims made by the agent's clients for errors and omissions in the course and scope of the agent's work on behalf of such client and. . . " And we added the words -- and then I'll read it as it should now read: 60 RULES COMMITTEE - RESOLUTION NO. 970713 "Proof that the applicant possesses insurance in such type and amount as the Department, after consultation with the Office of Risk Management. . ." And they are the new words added to that section. And they are the amendment changes that we are recommending to the bill.

Councilman Kenney

Hold on one sec. Are there any members of the committee have any questions relative to the amendments offered by Mr. Campbell? (No questions.)

Councilman Kenney

Do either of you have anything else to add relative tower testimony on this bill or the proposed amendments? COMMISSIONER EGAN: Just thank you for your time.

Councilman Kenney

Thank you. Could you remain? Because what I'd like to do is, in the event -- I know that there are questions that are going to be questions raised about the propriety of this bill and about some of its specific requirements. And I would like to have those, for the record, immediately 61 RULES COMMITTEE - RESOLUTION NO. 970713 responded to. COMMISSIONER EGAN: I'll be happy to stay.

Councilman Kenney

Thank you very much. Mr. Pollack, are you testifying today? (Mr. Pollack comes forward.)

Councilman Kenney

Hold on one second. Good afternoon. Please identify yourself for the record.

Mr. Pollack

Good afternoon, Councilman Kenney and Councilwoman Verna. Steven Pollack. I am appearing here on behalf of -- wearing two hats today. One hat, which I will present testimony on at this point is that I have with me today a resolution which was adopted by the Board of Governors of the Philadelphia Bar Association on February 26, 1998. And I have about -- I have 15 copies. I didn't know how many people would be here from the committee, and I have two or three or four, whatever you want me to hand out --

Councilman Kenney

The 62 RULES COMMITTEE - RESOLUTION NO. 970713 Sergeant-at-Arms will bring them, we'll get them.

Mr. Pollack

And Councilman Kenney, if you want me to read this into the record, we would read it into the record. Or if not --

Councilman Kenney

How long is it?

Mr. Pollack

It's a page and like a quarter.

Councilman Kenney

Does that represent the crux of your testimony?

Mr. Pollack

The crux of the testimony with regard to this matter is that when this resolution was passed, the bill stood without amendment. And we attached to the resolution 15 there the amendments that the Bar Association wanted included with regard to this bill. This bill was not something that -- and it's been put that this is a Steve Pollack bill 19 and that Steve Pollack wrote this bill and I am the major proponent of this bill. And I would just point for the record that Steve Pollack wouldn't have written a bill 23 where I would have to come back in front of the City Council and say lawyers should be exempt from discipline by L&I. 63 RULES COMMITTEE - RESOLUTION NO. 970713 Also, we are -- so therefore, the resolution was that we are opposed to this as it stood, but if the two resolutions -- the two amendments were included which are in 9-1902(1), that there was a definition now that says (reading) provided that no person who is not an attorney currently licensed to practice law in Pennsylvania shall represent another person at a hearing before a review board or otherwise engage in the practice of law. We were asking for that. That is based on -- and I have copies and I would also ask the Sergeant-at-Arms, sorry, to come to pick up some copies of this case. There's a case that goes back to 1961 Letag (ph.) verse somebody named Dilworth, Richardson -- Mayor Dilworth. And this case clearly holds that appearing before the Philadelphia Zoning Board is the practice of law. If the Bar Association is guilty of seeking to try and protect the rights of land owner to use his property, then the Bar Association is guilty. If the Bar Association is guilty of trying to protect the land owner's Constitutional 64 RULES COMMITTEE - RESOLUTION NO. 970713 right to use property, then we're guilty. And if we're guilty of trying to protect the guilty, then we're guilty, also. This --

Councilman Kenney

So I understand your testimony, the two issues that the Bar is discerned about was, number one, that we do not try to impose any additional discipline on the legal profession that is already imposed by the Supreme Court of Pennsylvania.

Mr. Pollack

That's correct.

Councilman Kenney

And that we, in some way, eliminate the opportunity for people other than lawyers to practice before or to represent individuals before these boards.

Mr. Pollack

That is correct.

Councilman Kenney

Okay. And on one count, you're happy; on the other count, so far, you're not. Is that --

Mr. Pollack

Well, no, the amendments -- we believe the amendments, as proposed, would take care of that.

Councilman Kenney

Okay.

Mr. Pollack

This Letag case -- the 65 RULES COMMITTEE - RESOLUTION NO. 970713 old law used to be that no person could -- a person could appear by himself or with an agent or through an attorney. After that, if you look at the Philadelphia zoning code right now, it provides that you can either represent yourself by yourself or by an attorney. So that the battle was fought in 1961 to say that practicing in front of the Zoning Board and Boards of Record is the unauthorized practice of law. And I will probably -- I'll try and have more testimony when I come up possibly later, if you will let me come up later as an individual. I am testifying now -- unless you want me to now where another -- wear another hat.

Councilman Kenney

You can testify to all you have to testify to now.

Mr. Pollack

Okay. I am attorney, who, everybody knows that's sitting in this room, uses an expediter because I don't think that we should deprive anybody of their right to earn a living. I think expediters are an integral part of the practice as it exists in Philadelphia. 66 RULES COMMITTEE - RESOLUTION NO. 970713 I think that without them, you know, the system would break down. I think that everybody has to be aware that they do play that role. And I am not here to put anybody out of business. What we are concerned about -- and, you know, part of the reason I think that they exist is lawyers are like every other layman; we'd much rather spend our time doing some other things than have to put up with all the things that the expediters put up with to get their job done, because they put up with a lot of things to get their job done. But I guess we are also concerned that -- we are in the business of protecting the consumer, and we feel that the consumer is not being protected, and the rights of people are not being protected if you are going to go in front of a Board of Record on an issue that affects your ability of you to use your property. And Letag case says it much more eloquently than I'm ever going to be able to say it as to what the role of a lawyer is, what the role of anybody is with regard to appearing in 67 RULES COMMITTEE - RESOLUTION NO. 970713 front of a board. This case gives the method to be pursued, the form to be selected, and the practice to be followed for the enforcements of such rights as it's engaged in the practice of law. And it has Constitutional founding. And this court even said it here (reading). " Here we are 37 years later. ) We are aware of the fact that non-lawyers appeared for many years before the Zoning Board, and we are mindful that this particular plaintiff, Mr. Letag, has, for years, earned his livelihood at such practice. We do not pretend to know precisely when it should have been recognized that the presentation of zoning problems involved the practice of law. It may well be, as the Assistant Solicitor so well suggested in his oral argument -- and that was Leonard Wolfe, some of you may remember Leonard Wolfe -- that what started out as a relatively informal forum imperceptive evolved 68 RULES COMMITTEE - RESOLUTION NO. 970713 into a tribunal adjudicating very substantial rights and requiring skill, judgment, and artistry. And in the leading Supreme Court case that established zoning and allowed this Council and all councils and municipalities throughout this land to start regulating land use through zoning, in the Village of Euclid case, the Supreme Court recognized the evolutionary aspect of zoning problems. It said (reading) until recent years, urban life was comparatively simple. But with the great increase of concentration of population, problems have developed, and constantly are developing, which require and will continue to require additional restrictions in respect of the use and occupation of private lands in urban communities. And then the Supreme Court of Pennsylvania recognized that there are functions that the lawyers perform. They instruct and advise clients with regard to the law so that they can be properly informed of their rights and obligations and their Constitutional rights they 69 RULES COMMITTEE - RESOLUTION NO. 970713 prepare clients' documents, requiring familiarity with legal principles; and they appear for clients at tribunals; and they're committed to the function of determining the rights of life, liberty and property according to the law of the land in order that he may assist the deciding official in the proper interpretation and enforcement of the law. It says that in order to determine such rights, it's necessary first to establish the pertinent facts which are frequently uncertain, controverted, and, at best, unascertainable, as experience has demonstrated, by the application of the rules of evidence tested by centuries of usage.

Mr. Pollack

A lawyer, being technically fitted for the purposes, examines and cross-examines witnesses and presents arguments to jurymen to guide them. As an ancillary, he participates in trials and legal argumentation. Where the application of legal knowledge and technique is required, the activity constitutes such practice, even if it's conducted before such administrative board or commission is the character of the act and not the place where 70 RULES COMMITTEE - RESOLUTION NO. 970713 it is performed, which is the decisive factor. In modern times -- and these are not Pollack's word, these are the words of the Common Pleas Court of Philadelphia in 1961. In the modern times, the affairs of people requiring the services of a lawyer become more intricate and complex, demanding a corresponding increase in the standards of the profession through preliminary education and a lengthened and more diverse course of study. In addition to the rigid educational requirements, the applicant must possess a good moral character. These prerequisites are not for the purpose of creating a monopoly for the legal profession, nor is it for its protection; but are for the better security of the people, the people, against incompetency and dishonesty. And these are not Pollack's words again. These are the case's words. This is the court. And the court goes on to say --

Councilman Kenney

Mr. Pollack, I need your to sum up. We have copies of the case, and we can -- 71 RULES COMMITTEE - RESOLUTION NO. 970713

Councilman Kenney

We'll read it at our leisure.

Mr. Pollack

So that's why we are here, to say that, I think Boards of Record are where we are trying to protect. I think that the ordinance may go a little too far in terms of when an expediter might appear in front of certain boards. I think that the Accessibility Advisory Board is not that board. It's an advisory board so I think that in going that far, it overreaches. I think that probably the L&I Review Board and the Zoning Board, since you're appeal -- when we say "Board of Record," your appeal from those two boards are right up to Common Pleas Court. And the rule is that unless you raise the issue, you don't get another shot at presenting testimony in the Common Pleas Court. So whatever is going to be presented has to be presented in front of the L&I review board and especially the Zoning Board. People's rights and their right's to use the property -- I had a recent case where I 72 RULES COMMITTEE - RESOLUTION NO. 970713 represented neighborhood group. I was opposed by an expediter. I can tell you, I know the legal doctrine. There's a case I brought, and I with me. It's the Logan Square case. That wasn't used to the best advantage, I feel, by the expediter 'cause he doesn't know the case, doesn't really know how to -- what evidence to present. So there's an individual now who, I feel, doesn't -- has a property that he's bought, and has had his rights limited to how he's going to use that property because we have to leave the practice of law to those people who know the practice of law, who've gone through, have special training and expertise, and have done that. I also feel that if L&I feels that it needs to regulate the role of the expediter to have some handle on it because we are subject to disciplinary rules, my ticket, my livelihood can be suspended, can be taken away from by me by the Disciplinary Board of Supreme Court of Pennsylvania. If L&I feels they need some sort of regulations, I feel personally -- this is not as the Bar Association. I feel permanently that L&I 73 RULES COMMITTEE - RESOLUTION NO. 970713 should have that right and has an obligation to the consumer public to regulate that industry. And I believe that would be the sum of my testimony.

Councilman Kenney

Thank you very much. One nuance, though, as it relates to the L&I Review Board and as it relates to the Zoning Board. I mean there have been times -- and I am not an attorney, but there have been more times than I wanted to be before that Board, representing, along with Councilmember Verna and members of her staff, Councilman Cohen -- I mean every Councilperson and Councilmember staff who are not necessarily attorneys have been there to represent the community group or constituency that are normally opposing a particular -- sometimes in favor of, but normally opposing a particular project or proposal. I know that there are certain procedural changes that happen when a person like myself who is not an attorney goes before that board, and that is that the Chairman does not permit direct questioning of witnesses, and all 74 RULES COMMITTEE - RESOLUTION NO. 970713 information --

Mr. Pollack

Cross-examination.

Councilman Kenney

-- is discussed through the Chair. So it's not exactly a courtroom, although it is a procedure of record which is appealable to a court in Pennsylvania, but, it does kind of -- it's a horse of a different color sometimes.

Mr. Pollack

Not if you read --

Councilman Kenney

I understand.

Mr. Pollack

Not if you read Letag.

Councilman Kenney

Yeah.

Mr. Pollack

Letag will tell you that these administrative boards, they are quasi-judicial boards; it's not a horse of a different color. The cases come out of the PUC, which is the utility commission, but it's a State regulatory agency. Cases come out of the Workman's Compensation area where you are dedicated to being in front of like referees -- they're now called "judges." It is the practice of law before a tribunal that affects your rights, and the 75 RULES COMMITTEE - RESOLUTION NO. 970713 consumer should be protected by somebody.

Councilman Kenney

Okay. Councilman Cohen.

Councilman Cohen

As a lawyer, I understand how -- I know it's a very unfair question to ask you as lawyer to lawyer, but could you summarize your position, just summarize it without quoting from anything.

Councilman Cohen

What is your position with respect to this bill? And that is the Board of Governors position, I guess.

Mr. Pollack

The Board of Governors' position, Councilman Cohen, was that, as originally drafted, we were opposed to it, with two amendments. We endorse two amendments. The two amendments are to 1902(1), which would change it so that it provided no 20 person who is not an attorney currently licensed to do practice law in Pennsylvania shall represent another person at a hearing before a review board or otherwise engage in the practice of law. That is one. The other one is to 19-1902-A, which 76 RULES COMMITTEE - RESOLUTION NO. 970713 exempted lawyers totally from getting the license and being subject to discipline by L&I. We feel that, one, we are licensed to practice law in Pennsylvania. We have --

Councilman Cohen

So that, basically, your position is that expediters should not be permitted to practice before the Board of Review.

Mr. Pollack

Yes. Expediters, knock yourself out downstairs, do what you have to do to represent people, help them with their paperwork, help them move the process along in getting permits, building permits, licenses. But when you step from downstairs on the concourse and you go in front of that tribunal, that administrative agency representing and making arguments, you are making legal arguments, you are representing somebody, and that that is the practice of law.

Councilman Cohen

Well, just to get your position, what was your position with respect to the appearance of an expediter at the Zoning Board itself? Not the Board of Review, the Zoning Board itself.

Mr. Pollack

Clearly, we are -- we say 77 RULES COMMITTEE - RESOLUTION NO. 970713 that if they appear at representing somebody or, in the Letag case the case -- in the Letag case, the case finally went on because --

Councilman Cohen

No. 6

Mr. Pollack

All right.

Councilman Cohen

Please, I'm asking you precisely, is the Board of Governors --

Councilman Kenney

He's a lawyer. He can't give a -- he can't give a short answer.

Mr. Pollack

Councilman Cohen --

Councilman Cohen

That's the reason I said it's (unintelligible) pinning down another lawyer.

Mr. Pollack

Councilman Cohen, I'm even on my own clock. I'm not billing anybody.

Councilman Cohen

But are you saying that it's the Board of Governors' position that the expediter should or should not be able to appear before the Zoning Board?

Mr. Pollack

They cannot appear and represent people before the Zoning Board; they are engaged in the practice law.

Councilman Cohen

So it's not just the Boards of Review. You would limit the expediter 78 RULES COMMITTEE - RESOLUTION NO. 970713 to --

Mr. Pollack

I said --

Councilman Cohen

Not appear before any board that has any authority to render a decision. It means the Zoning Board or any of the or appellate boards?

Mr. Pollack

Well --

Councilman Cohen

Any hearing of record where a record is maintained.

Mr. Pollack

Right. Then I testified personally that I thought the Accessibility Advisory Board, probably the Board of Fires, Safety and Prevention, and the Board of Building Standards might not be boards of record so, therefore, this ordinance may overreach a little bit with that respect. But as far as the boards of record, where there's a record kept and you can only appeal that to Common Pleas Court, then I think you're affecting people's Constitutional rights to use their property. And every --

Councilman Cohen

I didn't want -- heard all the arguments. I just wanted to be clear as to what your position was. 79 RULES COMMITTEE - RESOLUTION NO. 970713 And you're speaking on behalf of the Board of Governors.

Mr. Pollack

Right. I have the authority to speak on behalf of the Board of Governors.

Councilman Cohen

Right.

Mr. Pollack

Today the Pennsylvania Bar Association, unfortunately, has its annual meeting, and Chancellor Aronchik, Chancellor-Elect Chacker (ph.) and Vice Chancellor Doreen Davis were all unable to make it today.

Councilman Cohen

And you're in their place.

Mr. Pollack

And I'm Vice Chair -- and I am Vice Chair of the Real Properties section.

Councilman Cohen

Well, since you said that, I have to state that I have a son who's a member of the Board of Governors and --

Mr. Pollack

He his and --

Councilman Cohen

Whether or not he's present at that meeting or participating, I don't know.

Mr. Pollack

I can tell you he was and that he voted in favor or this resolution. 80 RULES COMMITTEE - RESOLUTION NO. 970713

Councilman Cohen

But he knows it never binds the father.

Councilman Kenney

Thank you very much. Thank you for your testimony. I have a list here of witnesses who are requesting, I think, to appear -- to testify in opposition to the bill. But in fairness to what I believe is a relatively newly-formed organization, is there a spokesperson for that, and is that the people -- if you could just nod your head that that individual is. Okay. Everyone will get an opportunity to speak, but if there is someone who can be concise about the specific opposition to the bill prior to each individual testimony, I'd like to give him an opportunity first, so -- (Unidentified man responds inaudibly off mike.)

Councilman Kenney

Sir? (Unidentified man responds inaudibly off mike.)

Councilman Kenney

Okay, let's get 81 RULES COMMITTEE - RESOLUTION NO. 970713 someone from the other side first, and we'll go a little bit back and forth. And let's just go off the record for a moment. (Brief conferring off record.) (Hearing resumes.)

Councilman Kenney

This is additional testimony relative to Bill No. 970778, which was an ordinance to amend the zoning maps for an area -- within Snyder Avenue, Broad Street, Oregon Avenue, and 18th Street. The Chair recognizes Mr. Furey.

Mr. Furey

Thank you, Mr. Chairman. After having had a chance to discuss the matter of changing C2 to C1 with the City Planning Department, we support this bill as it is. Thank you.

Councilman Kenney

Thank you very much. Let's go back now to the bill in question. And could you please come forward, identify yourself for the record, and proceed with your testimony.

Mr. Morley

Good afternoon, members of the committee. My name is John H. Morley, Junior, 82 RULES COMMITTEE - RESOLUTION NO. 970713 M-O-R-L-E-Y. I represent a fledging association, the License and Permit Agents Association. I first would like to comment on Commissioner Egan's testimony. With all due respect, I interpreted Commissioner Egan's testimony to be a personal attack on one or two individuals, and I don't believe that that justifies legislation. In their own testimony -- and "they're" being Mr. Campbell and Commissioner Egan -- they stated that there were 10 to 15 agents. That, in my opinion, doesn't justify legislation of this nature. Commissioner Egan stated no need for expediters. She clearly, clearly wants to terminate a trade. I object to that.

Councilman Cohen

No, I understood her differently from what you did. I heard her say -- at least this was my interpretation of what she was saying. She hoped that someday the Department would be able to function in such a way that there would be no need for anybody outside the Department to offer these services. She also indicated clearly that she 83 RULES COMMITTEE - RESOLUTION NO. 970713 thought, at the present time. That expediters were in fact needed. And I did not interpret it in any way any personal attacks on anyone. I'm sorry if you got that interpretation, but I didn't feel there were any personal attacks intended or even made.

Mr. Morley

Okay, well --

Councilman Kenney

Thank you, Councilman. Please proceed with our testimony.

Mr. Morley

Commissioner Egan also stated that most trades carry insurance. And in response to that testimony, this legislated insurance would be redundant. Mr. Campbell --

Councilman Kenney

I don't want to interrupt you again, but I want to make sure -- it was a response to my question.

Councilman Kenney

I asked her whether or not, of all the professions that have any interaction with L&I, are there any other professions, with the exception of the agent, the permit agent that you're representing, that does not have errors and omissions insurance and other 84 RULES COMMITTEE - RESOLUTION NO. 970713 types of -- she did said no, she was not aware of any of those professions other than expediter, a/k/a permit agent. So I just -- there's -- it's not clear -- and I mean the only reason I interrupted you is 'cause that was in response to my question, and I think the record's clear that the only profession that has interaction with L&I that doesn't have this type of insurance is yours.

Councilman Kenney

Okay. I'm sorry to interrupt.

Mr. Morley

Our association would request a continuance of this hearing and a vote by the committee so that we could have the opportunity to work with Council and the Department of L&I regarding the contents of this legislation. Our ethical consideration of the Pennsylvania Statute is -- I'm quoting from the statute. The essence of professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client and, thus, the public 85 RULES COMMITTEE - RESOLUTION NO. 970713 interest will be better served if only lawyers are permitted to act in matters involving professional judgment. Where this professional judgment is not involved, non-lawyers, such as court clerks, police officer, abstractors, and many governmental employees may engage in occupations that require a specific knowledge of law in certain areas. This is not a 1961 case, this is not my words -- these are not my words; this is a current statute. We believe the professional judgment required before review boards is not of a legal nature but, rather, a technical nature that falls into professional judgments of architects and engineers who work with building codes and at times a logistical nature that falls into the judgment of agents who have experience with and an understanding of the Philadelphia codes. The public's L&I matters somebody disposed of said chosen agent, be that an architect, engineer, attorney, expediter or any other person. Agents are not design professionals. Therefore, errors and omission 86 RULES COMMITTEE - RESOLUTION NO. 970713 insurance is inappropriate and arbitrarily escalates the cost of services to the public. The City should not deny the freedom of employment because of a criminal past. As written, the bill does not provide consideration to the public in exchange for the fee, tax, the considering of separate lines, clerks, phone lines, fax lines, etc. for agents, and discounts on the purchase of City codes for agents should be included in the bill for a tangible benefit to the public. In accordance with Resolution 1, Section 5, order of business, paragraph 4, reading of communications, I am asking that you read the transcript of my testimony to Council at the appropriate meeting. I reiterate our request for the opportunity to work with Council and L&I. If said opportunity cannot be given, we must oppose the bill as presently written, and we request the Rules Committee to reject and vote against this bill. I have petitions with hundreds of -- in my experience, these are my friends, and I believe 87 RULES COMMITTEE - RESOLUTION NO. 970713 that these are the friends of our association. There are hundreds of people here I'd like to give to the committee.

Councilman Kenney

The sergeant Sergeant-at-Arms will receive them.

Mr. Morley

All right. I request -- we request that rules be enforced. The following statement is not the opinion of the License and Permit Agents Association; it is my personal opinion. In order for this bill to truly protect the public, an examination for competency must be included. This bill, as written, does not include enough language regarding the disciplinary procedure. And, finally, in my experience as a contractor, when I first got into business, error and omission insurance was 10 percent of my revenue. It is now, after seven years in business, been lowered to 2 percent of my revenue.

Councilman Kenney

Excuse me. You have errors and omissions insurance now?

Mr. Morley

I have errors and omissions insurance for a business. 88 RULES COMMITTEE - RESOLUTION NO. 970713

Councilman Kenney

For your agent business -- for your expediting business?

Mr. Morley

No, sir, for a contracting business.

Councilman Kenney

Okay, fine, thank you. I'm sorry wanted to make sure it was clear.

Mr. Morley

Okay. That's the end of my statement. Thank you.

Councilman Kenney

Let me ask you a question. You had indicated in your testimony that agents -- expediters or agents, whatever term you prefer, are not design experts, do not engage in the practice of the law. Could you tell me what it is, what service you actually perform? What do you do for a client? Give me a typical client that you would move through the process, and what is it that you provide to them?

Mr. Morley

All right. We take information that is composed by property owners or, in short, interested parties. Sometimes we also receive information from architects and engineers. We take information that someone else 89 RULES COMMITTEE - RESOLUTION NO. 970713 composed and go through the logistical process of permit application and variance requests to the Board of Building Standards or appeals to the Board of L&I Review, or any other review board. We're taking information that someone else composed. That's why E&O insurance is not appropriate.

Councilman Kenney

I don't mean to diminish the practice; I'm trying to understand. Is it more of a type of courier service? I mean, is it more of a type of courier service where you take paperwork to a particular office, receive back what it is you need, receipts, other things, move to another area? I mean, to kind of walk it through and then deliver the paperwork back to the either the architect, the resident the homeowner, property owner?

Mr. Morley

In regard to permit applications --

Councilman Kenney

I don't mean to be -- just want to understand what the job is. What do you do?

Mr. Morley

In regards to applying for permits, it is -- can I yield to Mr. Tayoun, 90 RULES COMMITTEE - RESOLUTION NO. 970713 please?

Councilman Kenney

If Mr. Tayoun could enlighten us to what the exact -- what the job is.

Mr. Tayoun

There are several levels of --

Councilman Kenney

I shouldn't have to tell you that, but please identify yourself.

Mr. Tayoun

My name's James Tayoun, T-A-Y-O-U-N.

Councilman Kenney

Thank you. Please proceed.

Mr. Tayoun

There are several levels of expediters, or agents, underneath the one label "agent." There are those who fit the category, like I would normally, and several others who are simply couriers. Some of them represent chains that do a great deal of business within the City of Philadelphia. If Council, for instance, decides there's something wrong with the signage code and decides to make an amendment someplace because it's been called to their attention and it passes, all of a sudden, L&I goes out and reminds all these chain stores that their signage no longer is 91 RULES COMMITTEE - RESOLUTION NO. 970713 legal, they've got to do something to bring it in compliance. These companies with then notify an expediter, go put all this stuff together and get these various stores that have been cited on line. So he comes down and he makes the applications, he then goes to the proper agency. If he cannot convince the planner, or whoever examines the plans, that this is only a minor change, it should be adjudicated right here then and now, and it's not now because, for some reason, they're not given that kind of power anymore. He then goes to a Zoning Board or a board of review or a board of standards, and what happens is, he follows it through. This saves that syndication group, that chain group, that business conglomerate a lot of needless headache and work for a minimum fee. They're happy with the services, they continue to use the services. And then there are other people like myself who will get a call from someone who's an immigrant or someone who doesn't understand the 92 RULES COMMITTEE - RESOLUTION NO. 970713 law so much and started up a little corner grocery store and has found out that since, even though it been a corner grocery store years ago, it no 5 longer can be again because the zoning was changed 6 by City plannings through the work of the Council, 7 and he has to go in for a zoning appearance. 8 So the man takes and files the 9 application, returns down -- takes him to the 10 Zoning Board and says, Here's the situation. 11 Mr. Pollack indicated there was a case 12 that he represented in the community and the 13 expediter was ignorant of the Logan case. Well, I 14 was that expediter. And if I had known about the 15 Logan case, I still don't think I would have 16 (unintelligible) because I had the City Councilman 17 and the State Senators, the State Representatives, 18 Congressman and 60 people against me. 19 And this poor guy. So I knew he 20 couldn't win because nobody would weigh logical evidence in a situation like that. They normally go with what the neighborhood wants. So there are precedences and traditions that have developed in the 30-odd years since he's cited the case that he mentioned that state it 93 RULES COMMITTEE - RESOLUTION NO. 970713 should be simple for couriers to really carry information to the -- and make applications for permits to be able to follow them through. If we screw up, it's our fault. If the client realizes he's making a mistake by going through us, he's been told this is a very difficult case by us, I can't handle this, I think you're going to need an attorney, there's too much solved. Then he makes that judgment and decides whether or not he wants to spend more money for an attorney or not. Most of these people do not want to hire an attorney because the do not have the money. And the tradition that we're seeing over the years before the Zoning Board and the other boards has been one where they've listened to someone who's able to put into words more clearly -- and that is an expediter or an agent -- then the consumer himself who has made the application. Then they're very happy to have us before them because we can articulate well what the problem is and what the need is for that place. And that's basically what that is. 94 RULES COMMITTEE - RESOLUTION NO. 970713

Councilman Kenney

Thank you for answering the question.

Mr. Tayoun

Thank you.

Mr. Morley

May I -- may I --

Councilman Kenney

Yes, sure.

Mr. Morley

-- complete my answer? In regards to the administrative agencies, they have different jurisdictions. The Board of Building Standards will listen to an appeal to do something that is contrary to a building code. I'm trying to be general just to explain the point. If you wanted to do use a different size structural member on a building, you would ask an engineer to design that structural member if it was in violation of building code. If you were to ask the City to use something less than National Fire Protection Association codes, you would take a fire protection designer, you would hire them to explain why you're changing the pipe size or head locations so that they still meet the intent of the code. These are the engineers. When you go before the Board of L&I Review, in most cases, a Department of L&I 95 RULES COMMITTEE - RESOLUTION NO. 970713 employee has interpreted the codes, and you would make your argument and your interpretation in regards to the handicapped board. The City has flat standards for accessibility, and BOCA allows exceptions to accessibility. You would have the opportunity to speak before the Accessory Board, and you would be given the opportunity to state what that nationwide exception is. So I hope, Mr. Chairman, I've explained that. That's in general the nature.

Councilman Kenney

Thank you. Councilman, any questions?

Councilman Cohen

Is there any disagreement with the Commissioner's estimate that 10 to 15 active expediters that are involved at L&I?

Mr. Morley

I have no opinion on that, sir. I don't know, I don't know how many there are.

Councilman Cohen

How many are there in your association as of now. And I understand you're a fledgling association.

Mr. Morley

That's correct, sir. 96 RULES COMMITTEE - RESOLUTION NO. 970713 We've had to people attend our association meetings. Not all have been agents. There are several architects, there are several engineers. Recently, there's been people in the construction industry. The attendance at our meetings has ranged from people to 18. 8

Councilman Kenney

Thank you. Thank 9 you very much. 10

Mr. Morley

Thank you. 11

Councilman Kenney

Mr. Schlosser. 12 (Neil Schlosser comes forward.) 13

Mr. Schlosser

Good afternoon. I -- 14

Councilman Kenney

I'm sorry. Please 15 identify yourself for the record. 16

Mr. Schlosser

My name is Neil 17 Schlosser. And that's spelled N-E-I-L, 18 S-C-H-L-O-S-S-E-R.

Councilman Kenney

Please proceed.

Mr. Schlosser

Okay. I'm a registered architect. I've been registered in the state of Pennsylvania since 1972. I've had businesses, both architecture and related businesses before that time and continue to have a practice. I'm part of a practice that I own in Philadelphia. 97 RULES COMMITTEE - RESOLUTION NO. 970713 We've been active all those years. We have a wide range clientele, ranging from community groups to the School District of Philadelphia to private clients. I'm also a member in good standing with the American Institute of Architects Philadelphia Chapter. And I'm here -- I've been asked by the Executive Director to appear at these hearings to express their views on this bill. The opinion is that the bill, as originally presented -- I believe it was in November -- was unacceptable to the American Institute of Architects. The bill as amended -- which, frankly, has not -- they feel as though they haven't had the proper time to review it in detail -- may be acceptable. Although my recent -- and I'm talking about as recently as today and yesterday -- examination of it and discussion of it with other people indicate they still have some problems with it. And for that reason, we'd like to -- I don't know what the term is -- extend these hearings or allow some time for the AIA to submit a more -- 98 RULES COMMITTEE - RESOLUTION NO. 970713

Councilman Kenney

Could you give me an idea --

Mr. Schlosser

-- formal opinion.

Councilman Kenney

Could you tell me what the specific areas of concern that still exist are so we know what they are.

Mr. Schlosser

Yes. We'd like to take exception to Steve Pollack's opinion that architects are not qualified to appear, or it's illegal to appear before these various regulatory boards. If you took that same argument, I imagine the (unintelligible) commission would mean the same thing, even though that's not part of L&I. The Art Commission, it would mean the same thing. Architects have always historically on a regular basis appeared before these boards. For instance, the Zoning Board is one -- is not always an adversarial relationship but it's one where the architect is much better qualified to talk about the impact, the quality of life, what the built environment's going to be. And to limit that in any way, we think, is inappropriate. 99 RULES COMMITTEE - RESOLUTION NO. 970713 The same thing is true of zoning and the L&I Review Board. In a sense, architects are lawyers. We deal with codes which are law. That is, in fact, our responsibility and the way we're licensed by the state to perform. I was talking to our insurance -- my insurance carrier. My firm is about seven people total, so it's not a large firm but it's been a steady player in the Philadelphia architectural scene. We pay $20,000 a year for professional liability for errors and omissions. I spoke to my carrier today, and he has a problem just with the word characterizing the activities in here as an "agent." Apparently in the insurance word, an agent -- that word is one of the so-called bad words. That we are really independent consultants, you know, to owners and, you know -- but routinely are authorized to perform these activities.

Councilman Kenney

But do you read that to apply to architects after the amendment?

Mr. Schlosser

Yes, yes.

Councilman Kenney

I'm sorry. Mr. 100 RULES COMMITTEE - RESOLUTION NO. 970713 Campbell and/or Commissioner Egan, could you or, whoever else the Law Department wants to talk about this, I just want you to be ready to go after the testimony. Have heard Mr. Schlosser's testimony on those two specific issues? (Inaudible response -- off mike.)

Councilman Kenney

Okay, please proceed. We'll have their response. Please proceed.

Mr. Schlosser

You're asking me to proceed, okay. There was a big question as to whether our existing errors and omissions would even cover the actions of what's characterized as an agent here, that this new requirement of the law would necessitate yet another layer of insurance, another layer of cost, which, of course, has to be passed on to our consumer clients. I'd like to add some of my personal opinion. I won't say this represents AIA's, but when I read this bill, it has a presumption of guilt, I think, of the people, that the requirements for criminal background checks, the 101 RULES COMMITTEE - RESOLUTION NO. 970713 -- it just seems to -- if fraud and bribery are being committed, if that's what this bill is really about, there certainly are mechanisms in place for that. I don't think another layer here is necessary in a bill of this kind. I have -- do a lot of my own permit work, particularly when it requires appearances between L&I boards. I do use expediters. I have never been asked or expected nor have I ever received any special favors as a result of hiring an expediter as far as I know. And I really don't think that is what happens. So, again, when I do use an expediter, I see all these additional costs -- the insurance, the background checks, and others as something that just is ratcheting up the cost of doing business in Philadelphia. I don't think that the consumer's going to be additionally protected, I don't think this bill will do it. And I think the existing mechanisms already in place now are, you know. . . Indictments were turned out by a systems that's in place now apparently this 102 RULES COMMITTEE - RESOLUTION NO. 970713 morning. I don't know much about it yet. I just heard what I heard today. So the AIA position now is that this bill needs further work, and we would certainly like to offer our offices to do that. We would like to hire an attorney in light of Mr. Pollack's testimony today to examine that issue. We've had heard two conflicting legal opinions right here in this room here today. I'm not going to answer any of those, although I know that I have, according to Mr. Pollack, been criminally appearing before all of these boards for the last -- since 1972. I don't think I'm a criminal, and certainly I think AIA and all the architects of that organization would like to examine that particular issue in much more detail.

Councilman Kenney

Thank you. Commissioner and Mr. Campbell and Mr. Schlosser, if you could you just remain. I may be -- maybe we're reading the bill differently. I suspected that the amendments that we were offered today eliminated the professional architect from the provisions of this bill. Am I 103 RULES COMMITTEE - RESOLUTION NO. 970713 reading it wrong? COMMISSIONER EGAN: What it does, Councilman, is it eliminates them from the provision of having to apply for a license of expediter.

Councilman Kenney

Right. COMMISSIONER EGAN: But it doesn't eliminate them from not -- not being able to -- in other words, they would not be able to represent. They can present before the boards, the Zoning Board and other boards, but they would not be able to represent a client before the Zoning Board.

Councilman Kenney

Do you read this legislation as having any impact on architects whatsoever, on their insurance requirements? COMMISSIONER EGAN: On architects' insurance requirements?

Councilman Kenney

Yeah. COMMISSIONER EGAN: No. 21

Councilman Kenney

And, Mr. Schlosser, you had indicated that you were concerned about an increase on cost of your insurance based on this bill.

Mr. Schlosser

No, what I'm saying is 104 RULES COMMITTEE - RESOLUTION NO. 970713 that in my discussion with my agent today --

Councilman Kenney

Oh, an expediter.

Mr. Schlosser

-- who is a professional liability agent. No, not an expediter.

Councilman Kenney

Oh, sorry, sorry.

Mr. Schlosser

That's what I'm saying. "Agent" is a funny word.

Councilman Kenney

All right.

Mr. Schlosser

We have some problems with the use of the word "agent."

Councilman Kenney

So your insurance agent --

Mr. Schlosser

My insurance agent.

Councilman Kenney

-- believes that you would have an increase -- a potential increase in your cost of errors and omissions insurance based on the passage of this bill which would regulate expediters?

Mr. Schlosser

He's my -- what he's saying is the insurance I have in place now, errors and omissions professional liability that architects carry such as mine, which was one of the major ones in the field, would not cover our 105 RULES COMMITTEE - RESOLUTION NO. 970713 activities when we're construed as an agent as is described under this bill.

Councilman Kenney

See, that's what I -- what I need to know from the Law Department, Mr. Campbell, Commissioner, are architects exempted from the provisions of this bill or not? COMMISSIONER EGAN: Yes, they are.

Mr. Schlosser

I respectfully disagree with that. I mean, it says we can apply for permits and stuff, but we cannot, unless we are an agent, appear before the boards.

Councilman Kenney

No, unless you're a lawyer. COMMISSIONER EGAN: Unless you're a lawyer, you cannot represent a client before a board.

Councilman Kenney

That's two issues. The first issue is, you are correct in your belief that this bill would eliminate your ability to, quote/unquote, represent someone before a board of record.

Mr. Schlosser

That's correct.

Councilman Kenney

Correct?

Mr. Schlosser

Yes. 106 RULES COMMITTEE - RESOLUTION NO. 970713

Councilman Kenney

But your contention also is that somehow this bill would potentially increase your errors and omissions insurance, and I think you're exempted from the provisions of this bill as it relates to that issue.

Mr. Schlosser

I don't think that's clear whether we're exempt from that in this bill.

Councilwoman Verna

Did you see the comments that were --

Mr. Schlosser

If I'm representing, quote, as it's described here "an agent" --

Councilman Kenney

Have you seen copies of the amendments?

Councilwoman Verna

Have you seen copies of the amendments?

Mr. Schlosser

I have seen a copy that was sent to me by John Campbell about a week ago, I guess it was, which, I think, includes amendments and 2.

Councilman Cohen

Well, I don't -- Mr. Chairman, I don't see -- I agree with the architect testifying. I believe he has to be licensed in order to represent --

Mr. Schlosser

But we're limited under 107 RULES COMMITTEE - RESOLUTION NO. 970713 this bill to applying for permits. Our service is traditionally of going way beyond that.

Councilman Kenney

Two issues we're discussing right now.

Councilman Kenney

Your effort in obtaining permits or any of the activities, I guess, in the concourse of the Municipal Services Building, you would be exempted from the provisions of this bill, okay?

Mr. Schlosser

That is correct. (Unintelligible -- parties speaking over each other at the same time.)

Councilman Kenney

And Mr. Pollack has described the appeal board issue --

Mr. Schlosser

We're not exempted from that.

Councilman Kenney

You're not exempted from that.

Mr. Schlosser

We're not exempted from that.

Councilman Kenney

But you're not prohibited from appearing as an expert witness and offering testimony. 108 RULES COMMITTEE - RESOLUTION NO. 970713

Councilman Cohen

That's right.

Councilman Kenney

You're not exempted from that. So that if an individual represented by an attorney wanted to hire you to present expert testimony to the Zoning Board, you would be permitted to do that.

Councilman Cohen

Right.

Councilman Kenney

But you wouldn't be permitted to go to the Zoning Board without a lawyer.

Mr. Schlosser

Let me tell you about my last case. We do work for School District of Philadelphia. As you know, almost any large project requires some kind of variances and appearances before all these boards. I asked the School Board, do you want to have an attorney, you know, represented here, you know? And the answer came back no, we think you're fully competent to answer for us in all of these questions.

Councilman Kenney

But the converse of that example would be --

Mr. Schlosser

I mean, I wasn't a 109 RULES COMMITTEE - RESOLUTION NO. 970713 witness; I presented the case.

Councilman Kenney

But the converse of that example would be that if the School District was required to send an attorney, they would have sent a staff attorney with you, you would have still testified to the ability of the expertise, and been a -- they would have still been your client.

Mr. Schlosser

That's correct.

Councilman Kenney

Okay. So it wouldn't have caught you any more money to have a lawyer from the School District to accompany you to the Zoning Board.

Mr. Schlosser

It's one more cost, you know, that the School District would have to bear.

Councilman Cohen

He can't be --

Councilman Kenney

He can't be there by himself.

Councilman Cohen

Yeah, as I understand it --

Mr. Schlosser

I was there by myself.

Councilman Kenney

Under this bill, you can't be there by yourself.

Councilman Cohen

Yeah. 110 RULES COMMITTEE - RESOLUTION NO. 970713

Councilman Kenney

Under this proposed ordinance, you wouldn't be able to be there by yours.

Mr. Schlosser

That's right. That's the way I read this.

Councilman Kenney

Is that agreed, Commissioner? UNIDENTIFIED SPEAKER: Councilman, if I could.

Councilman Kenney

Please.

Mr. Auerbach

I'm Eric Auerbach, Senior Attorney, with the Law Department. I think your reading of the bill is correct. The bill states that no one other than a licensed attorney may represent a person before the boards or otherwise engage in the practice of law. The intent of that provision was simply to restate the provision of state law -- that's a criminal statute -- that says that no person other than a licensed attorney may engage in the practice of law. The definition of practice of law is not always entirely clear, but representing a 111 RULES COMMITTEE - RESOLUTION NO. 970713 client before a court or before an administrative agency, such as the L&I Review Board, the Zoning Board, is within the core of practice of law.