OFFICIAL OPINION No. 16

OFFICIAL OPINION No. 16 Alie11s-L ice11ces-Builer La11• 1. Regulation prohibiting otherwise qualified aliens from becoming licensed inspec- tors under the Boiler Law. 35 P.S. 1301 et set/. is to be treated as violative of the Fourteenth Amendment and is not to be enforced. 2. There is no essential governmental interest to be served by requiring all boiler in- spectors to be United States citizens. 3. Regulations on reciprocal certificates are unlawful in that they conflict with the clear terms of the Boiler Law by placing qualifications on the granting of such cer- tificates not authorized nor contemplated by the Act. Honorable Paul J. Smith Secretary of Labor and Industry Harrisburg, Pennsylvania Dear Secretary Smith: Harrisburg, Pa. March 25, 1974 You have requested a formal opinion concerning Section 5 of the Boiler Law, 35 P.S. §1301 et seq. Specifically, you asked whether Items 4 and 7 of Part II, Administration of the Regulations for Boilers and Unfired Pressure Vessels, promulgated pursuant to the above-cited Act, are lawful. This answer will deal with Items 4 and 7 separately. I. Item 4 of Part II, Adm in istrat1:on of the Regulations, promulgated pursuant to the Boiler Law, reads in part as follows: "An applicant for examination shall be a citizen of the United States." It need hardly be stated. of course. that o_nce the amount of compensation has been agreed upon in a duly executed collective bargaining agreement. such amount may not be later increased retroactively. 56 OPINIONS OF THE ATTORNEY GENERAL It is our opinion, and you are so advised, that this req~irement is ~o be considered unconstitutional and unenforceable, msofar as 1t prohibits otherwise qu~lifi~d resident. _aliens from becoming ~pplicant~ for the Examinati?n for C~rtifica;t~ of Competency and Commisswn as Inspector of Boilers. This prov1s10n should be treated administratively as violative of the Equal Protection Clause of the Fourteenth Amendment of the Constitution, as explained infra., and not be enforced. In the case of Graham v. Richardson, 403 U. S. 365 (1971), the Supreme Court held that the Fourteenth Amendment forbids a statutory classification based on alienage unless the discrimination can be justified as necessary to achieve an essential governmental interest. Cases that have followed Graham and further explained its holding have consistently upheld this basic premise. Additionally, previous opinions of the Attorney General (Nos. 92, 113, 114, 116 of 1972 and No. 4 of 1973) have interpreted similar provisions oflaw to be violative of the Fourteenth Amendment and therefore unenforceable. One of the cases to follow Graham is Sugarman v. Dougall, 413 U. S. 634 (1973). In Sugarman, the Supreme Court found a New York Civil Service statute prohibiting all aliens from holding a perma- nent position in the competitive class of the state civil service a viola- tion of the Fourteenth Amendment. The Court acknowledged that a state has a substantial interest in having an employee of undivided loyalty in a position involving the formulation and execution of im- portant state policy. However, the restriction, as it applied to clerical and office workers as examples of non policy positions, was not supported by a substantial state interest and fell before the Equal Protection requirements of the Constitution as an un- warranted discrimination based on alienage. We can see no substantial governmental interest to be protected by requiring applicants for the examination to be United States citizens. Boiler inspection is not a policy-making position and does not require that degree of loyalty and detailed familiarity with American culture which would justify the requirement of citizenship for all applicants. Moreover, there is no similar requirement of citizenship in either the Boiler Law or the regulations for those inspectors who receive reciprocal certification when qualified by a test in another state. This additional unequal treatment, a type also present in Sugar- man, mandates that the regulations be altered. You are therefore advised to consider the citizenship requirement of Item 4 of Part II of the Regulations as unconstitutional and to see that it is no longer enforced. OPINIONS OF THE ATTORNEY GENERAL 57 II. Section .5 of the Boper .Law, 35 P.S. §1305 requires inspectors to pass a written exammat10n, except that: '.' ... reciprocal certificates of competency may be issued to ms:pect?rs qualified in other states, administering ex- ammat10ns of equal standards ... under such conditions as may be set forth in rules and regulations of the depart- ment." You have asked whether I tern 7 of the Regulations cited above is commensurate with the qualifications and restrictions of Section 5. I tern 7 reads as follows: A reciprocal commission may be granted by the Industrial Board to a duly qualified boiler inspector in the employ of any state or an insurance company licensed to insure boilers and unfired pressure vessels in the Commonwealth, provided such inspector has passed a written examination in a state administering examinations which, in the opinion of the Industrial Board, are of equal standards, both procedurally and substantively. It is our opinion, and you are so advised, that Item 7 does not con- form to the clear terms of Section 5, conflicts directly with the con- ditions for reciprocal certification, and should no longer be applied. The law empowers the department to grant reciprocal cer- tificates to a well-defined group of qualified inspectors. However, the regulations purport to add the additional restrictions of employ- ment by a sister state or by a locally-licensed insurance company. Neither of these conditions is consistent with the terms of the statute. Moreover, neither of them is related to the intent of the Act, which is to have qualified inspectors, as determined by the Act, con- duct inspections in Pennsylvania. There is no inherent guarantee of competence merely because an otherwise qualified inspector works for a state government or for an insurance company licensed in Pennsylvama. The additional conditions which the Department may, by regula- tion, promulgate, are for the purpose of filling ~3;PS in or explaining the legislation and are not meai:it to create cond1t~ons unrelated to or inconsistent with the express mtent of the Legislature. Lancaster Transportation Company v. Pennsylvania Public Utility Commis- sion., 169 Pa. S~perior Ct. 284 (1951). 58 OPINIONS OF THE ATTORNEY GENERAL Therefore, as indicated above, these restrictions are not ?-uthoriz- ed by Section 5 of the Boiler Law and are not to be applied. Very truly yours, Larry B. Selkowitz Deputy Attorney General Israel Packel Attorney General