Civil Serv. Employees Assn., Inc. Local 1000, AFSCME, AFL-CIO v County of Onondaga |
2013 NY Slip Op 50813(U) [39 Misc 3d 1230(A)] |
Decided on May 22, 2013 |
Supreme Court, Onondaga County |
Greenwood, J. |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
This opinion is uncorrected and will not be published in the printed Official Reports. |
Civil Service
Employees Association, Inc. Local 1000, AFSCME, AFL-CIO, CHRISTOPHER W.
JAMISON, PETER W. NAGURNEY, JR. and MATTHEW S. O'CONNOR, Petitioners,
For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
against County of Onondaga, ONONDAGA COUNTY LEGISLATURE, J. RYAN McMAHON as Legislative Chairman, and JOANNE M. MAHONEY as County Executive, Respondents, - and - ONONDAGA CIVIC DEVELOPMENT CORPORATION, UPSTATE SERVICES GROUP, LLC, 5075 WEST SENECA, LLC and VDRNC, LLC, Necessary Parties. |
The Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (hereinafter CSEA), along with the individually named petitioners, bring this Article 78 petition seeking a determination that the respondents acted in violation of law and in an arbitrary and capricious manner by authorizing the sale of County owned Van Duyn Home and Hospital Facility (hereinafter Van Duyn) and that the respondents acted in bad faith by adopting a budget that zero-funded positions at Van Duyn. The petitioners seek an order and judgment invalidating the sale and nullifying the budgetary elimination ofthe positions.
According to the petition, Onondaga County has owned and operated Van
Duyn, a 513 bed long term care home and hospital facility since at least 1979. The CSEA
and the County previously negotiated a collective bargaining agreement (CBA) for the
period of January 1, 2008 through December 31, 2012, which governs the employment
of the 559 employees at Van Duyn. On October 9, 2012,the respondent County
Executive Joanne M. Mahoney proposed and the respondent County Legislature adopted
a budget for the 2013 calendar and fiscal year, which provided that effective November
30, 2013 at 11:59 p.m certain titles and positions were abolished upon adoption of the
2013 County budget without further action of the Legislature. The budget also provided
that any temporary positions in that administrative unit would be unfunded or otherwise
terminated on that date. Among the titles eliminated by the passage of the budget are all
CSEA represented positions at Van Duyn covering those employees, including
petitioners Nagurney and O'Connor. On November 9, 2012 the County Legislature
passed a resolution scheduling a public hearing to announce its proposal to sell Van
Duyn to the Onondaga Civic Development Corporation (OCDC), a private local
development corporation. The resolution stated that the County "considered the
advisability of ownership of [Van Duyn] by an entity otherthanthe County, and [Van
Duyn] ... not being required for use by the County", that the County was considering
transferring Van Duyn to OCDC "subject to a retained interest by the County, including
the right and obligation of the County to continue to operate [Van Duyn] until such time
as a new operator is in place." A public meeting took place on November 26, 2012 and
on December 17, 2012 the Legislature passed resolution No. 253 authorizing the sale of
Van Duyn to OCDC subject to a leaseback agreement by which the County would retain
responsibility for the continued operation of Van Duyn along with related costs until Van
Duyn could be re-sold by OCDC to a private buyer and until a new operator could be
secured.
The petition alleges that the County Legislature acted improperly by failing
to take any steps to amend the County Charter by local law to abolish the Department of
Long Term Care Services and that no public notice, hearing, debate or discussion has
been held with regard to the [*2]elimination of the
department or positions therein. In addition, petitioners contend that since the resolution
does not provide that the future purchaser or operator must offer employment to the
current County employees assigned to work at Van Duyn, all CSEA represented
employees will face layoffs and the loss of negotiated terms and conditions
ofemploymentsetforth in the CBA. Petitioners also assert that the elimination of CSEA
represented positions while the essential duties of those positions continue to exist and
must be performed, constituted bad faith abolition of the positions, and that insofar as the
respondents acted to sell the real property associated with Van Duyn while retaining the
operating assets and operating responsibility for it, such action was in excess of the
authority to act under the Not-For-Profit Corporations Law and was arbitrary and
capricious.
The respondents have interposed their answer and raised several objections in point
of law. One of the objections raised is that petitioners CSEA, Nagurney and O'Connor
lack standing to challenge the sale of the facility. The standing of a party to seek judicial
review of a claim or controversy is a threshold matter which must be resolved by this
Court before the merits of the application may be considered.See, Hospital for Joint Diseases v.
Travelers Property Casualty Insurance Co., 9 NY3d 312 (2007). The individual
petitioners are required to demonstrate "that the administrative action will in fact have a
harmful effect on [them] and that the interest asserted is arguably within the zone of
interest to be protected by the statute. " Legacy at Fairways, LLC v. McAdoo, 76
AD3d 786 (4th Dept. 2010), quoting, Matter of Dairylea Coop. v. Walkey, 38 NY2d
6 (1975). They must also show that the injury is one that "is in some way different from
that of the public at large" (Society of Plastics Indus. v. County of Suffolk, 77
NY2d 761 [1991]) and that they will suffer a particularized and concrete harm as a result
of the challenged action. See,
New York State Ass'n of Nurse Anesthetists v. Novello, 2 NY3d 207 (2004).
Petitioners Nagurney and O'Connor have established that they are County employees
who will be terminated from their employment as a result of the sale. Petitioner Jamison,
however, has no alleged injury that is different from the public at large, since he alleges
only that he is a County resident and taxpayer. Petitioner CSEA as a union has
established that it hasassociational standing to sue on behalf of its members, inasmuch as
it has first met the two pronged threshold of injury in fact and zone of interest, as well as
three additional requirements: 1) one or more members have standing to sue; 2) the
individual members' interest advanced are germane to the union's interest; and 3) the
participation of the individual member is not required to afford petitioner full relief.
See, Society of Plastics, supra; see also, Aeneas McDonald Police Benevolent
Association v. City of Geneva, 92 NY2d 326 (1998). CSEA has established its
organizational standing because keeping its member employed is germane to its purpose.
As such, the petition is dismissed only with respect to petitioner Jamison.
Respondents also contend that in their objections in
point of law that the petition fails to make any allegations whatsoever regarding
Mahoney, as County Executive, and J. Ryan McMahon, as Legislative Chairman. A
review of the petition demonstrates that the allegations concerning these two respondents
are bare conclusory statements that are unsupported by factual proof; thus, the petition
fails to state a proper cause of action against them. See, Matter of Gagnon v. Board of
Education of Manhasset Union Free School District, 119 AD2d 674 (2d Dept.
1986). As such, the petition is dismissed as against respondents Mahoney and McMahon.
[*3]
Necessary parties Upstate Services Group, LLC, 5075 West Seneca, LLC and VDRNC, LLC in their answer and objections in point of law seek dismissal on the grounds that the petition fails to set forth any allegations of facts sufficient to state a claim for relief as against them or sufficient to demonstrate that they are necessary parties. The CPLR requires that necessary parties "shall be made" petitioners or respondents. See, CPLR §§401 and 1001(a). These parties are correct that there no factual allegations against them in the petition and the designation of them as "necessary parties" fails. Therefore, the petition is dismissed against these three parties.
The Court now turns to the merits of the petition. The first claim in the petition alleges that the Department of Long Term Care Serviceswas created by the County Charter and that the elimination of that department, along with the positions employed within it, without passing an amendment to the Charter, was arbitrary, capricious, an abuse of discretion, violative of law and in excess of the respondents' jurisdiction. Petitioners contend that the Legislature lacked the authority to adopt a budget striking salary appropriations, thereby eliminating the operations of the department without affecting an amendment to the Charter. The petitioners rely upon the doctrine of legislative equivalency, also known as the legislative equal dignity rule. Legislative equivalency requires that a position created by a legislative act can only be abolished by a correlative legislative act. See, Torre v. County of Nassau, 86 NY2d 421 (1995). The Court of Appeals has summarized the principle by stating "to repeal or modify a statute requires a legislative act of equal dignity and import." Torre, supra, quoting, Matter of Moran v. Laguardia, 270 NY450 (1936 ). The petitioners' argument is both factually and legally flawed. Contrary to the petitioners' contention that the Legislature's actions constituted a de facto elimination of the department, the department was in fact expanded. The local law at issue specifically "provides for the expansion of the powers and duties of the Commissioner of Long Term Care Services requiring the addition of some new responsibilities and transferring some functions and duties from the Department of Social Services." Local Law No. 2-2013.
Moreover, it is a well founded legal principle that the preparation of a budget is a process which involves the exercise of the discretionary function of the Legislature in estimating revenues and expenses, and that in the absence of an express statutory authority to the contrary, courts do not have the power to review the exercise of those discretionary powers regarding the estimates of money which the municipality reasonable believes will be necessary to carry on the municipality's affairs. See, Orange County Legislature v. Diana, 2013 WL 1189211 (3/21/13), citing, Korn v. Gulotta, 72 NY2d 363 (1988). Therefore "the courts do not invade the budgetary process which is the exclusive domain of the executive and legislative branches." Id, citing, Korn, supra, also citing, Saxton v. Carey, 44 NY2d 545 (1978), also citing, Wein v. Carey, 41 NY2d 498 (1977). "Judicial restraint [on budgetary considerations] reflects a recognition that there are questions of broad legislative and administrative policy [that go] beyond the scope of judicial coercion." Jones v. Beame, 45 NY2d 402 (1978). That restraint also reflects the recognition that questions of judgment and discretion, as well allocation of resources and priority are inappropriate for resolution in the judicial arena and are better left to executive officials, administrative agencies and local legislative bodies. See, Matter of Abrams v. City of New York City Transit Authority, 39 NY2d 990 (1976).
The respondents have demonstrated that through the annual budget process established [*4]within the County Charter and Administrative Code, they declared their intent to be out of the nursing home business, and abolished a number of positions related to provisions of such services at Van Duyn, and determined that the facility should be sold.[FN1] This legislative act that carries with it a strong presumption of constitutionality, including a rebuttable presumption of the existence of necessary factual support for its provisions; if any state or facts known or to be assumed justified the law, the court's power of inquiry ends. See, Paterson v. University of State of New York, 14 NY2d 432 (1964).
The respondents have also demonstrated that the facts here justified the legislative decision to sell the facility while retaining operating rights, to enact a local law amending the Administrative Code to reorganize the Long Term Care Services Department and eliminate job titles effective November 30, 2013. When legislative and executive officials use their judgment to make determinations with respect to providing for staffing appropriations, resource allocation and prioritization of competing interests, such determinations are political questions and not justiciable. See, CSEA, Inc. v. County of Erie, 43 AD3d 1341 (4th Dept. 2007). Pursuant to the constitutional doctrine of separation of powers, courts are generally precluded from intruding upon the discretionary and policy making decisions which are reserved to the Legislative and Executive branches. See, Jones, supra. This Court may not use its discretion in place of policy determinations made by officials in the elective and legislative branches within the scope of such official's authority. See, Roberts v. Health and Hospitals Corp., 87 AD3d 311 (1st Dept. 2011). As such, this Court is precluded from granting the relief sought by petitioners in the first claim in the petition.
The second claim alleges that according to the budget, approximately 500 CSEA represented positions at Van Duyn will be effectively eliminated effective December 1, 2013, but that according to the resolutions of the County regarding the transfer of Van Duyn to respondent OCDC, the County will remain the operator of the facility until an uncertain date up to three years in the future, well beyond the date upon which the CSEA represented positions are scheduled to be eliminated. Petitioners further contend that according to the resolutions, even once operations at Van Duyn are transferred to a non-County operator, the facility will continue to provide residential long term care, and that the elimination of the CSEA represented positions, while the essential duties of those positions continue to exist and must be performed, constitutes a bad faith abolition of those positions. This Court is likewise without authority to review this claim.
Judicial review is not proper with respect to determinations concerning abolishing [*5]positions through the budget process in a manner consistent with provisions of a charter where that charter was adopted by a county pursuant to the Municipal Home Rule Law. See, Mohr v. Greenan, 10 Misc 3d 610 (Erie Co. 2005), aff'd, 37 AD3d 1094 (4th Dept. 2007). The County is authorized to enact legislation establishing its form of government, distributing responsibilities among government officials and generally regulating its affairs, provided that such legislation is consistent with state law. See, New York State Constitution Article IX, §§1 and 2; see also, New York State Municipal Home Rule Law §10. The Legislature is also empowered to establish and abolish positions of employment by resolution as part of the budget process. See, County Law §204; see also, Administrative Code §2.04(e). This Court may not substitute its judgment for that of the legislative branch because it is not its role to weigh the desirability of any action or to choose among alternatives. See, Akpan v. Koch, 75 NY2d 561 (1990). The budget resolution established the budget for 2013 and declaredthe County's policy with respect to discontinuing future provision of nursing home services and further provided for the abolition of roster positions, except for two positions within the Charter and Administrative Code. See, Resolution No. 160-2012.
Moreover, although petitioners contend that the elimination of union jobs here constitutes a bad faith abolition of the positions, municipal officials are vested with authority to create and abolish positions and to adopt a budget; they also have the power and the prerogative to determine that civil service positions may be abolished in good faith for reasons of efficiency and economy in the absence of fraud, corruption or bad faith. See, Matter of Linney v. Plattsburgh, 49 AD3d 1020 (3rd Dept. 2008), supra; see also, Turner v. Berle, 61 AD2d 712 (3rd Dept. 1978). The burden of showing fraud, corruption or bad faith rests with the petitioners. See, id. The petitioners have not alleged fraud or corruption. Nor have they demonstrated the respondents engaged in bad faith, other than the assertion that Van Duyn will continue to operate after December 1, 2013. In order to establish bad faith, petitioners are required to show that the positions were not eliminated for bona fide reasons, that savings were not accomplished or that replacement employees were hired. See, Lally v. Johnson City Central School District, 105 AD3d 1129 (3rd Dept. 2013); citing, Linney, supra. Petitioners have failed to do so. The Legislature addressed the economic basis for the decision in its "findings", which stated :
[C]urrently the County cannot provide residential skilled nursing
services in an economically feasible manner. Therefore the Legislature
finds that it is in the interest of the County to divest itself of...Van Duyn
...and cease participation in the business of providing such residential
skilled nursing services. Demographic trends point to an aging general
population. This fact coupled together with federal and state public
policy directed at maintaining frail and older adults in the community
and out of institutions causing this Legislature to further find that a need
exists to more effectively plan, coordinate and deliver community based
health, mental health and social services.
Local Law 2-2013.
The local law addresses the County's bona fide reasons for the elimination of the
positions as well as the savings issue and therefore petitioners cannot establish the first
two necessary elements of bad faith. In addition, petitioners have neither alleged nor
shown that [*6]replacement employees were hired.
See, Lally, supra; see also, Linney, supra. As such, this Court cannot grant the relief
sought by petitioners in their second claim.
Thethirdclaim in the petition alleges that the respondents' actions of
selling the real property associated with Van Duyn while retaining the operating assets
and operating responsibility for it was in excess of their authority to act pursuant to the
Not-For-Profit Corporation Law. The petitioners argue that as a municipal corporation
the County's authority is limited to those powers delegated to it by the state, and that the
Legislature has delegated to each county's governing body the authority to sell county
owned real property provided that the governing body determines that such property is
not required for use by the County, and therefore the County lacks authority to sell its
real property unless it first determines that such property is no longer necessary for
county use. Petitioners contend that the Legislature, in passing Resolution No. 253,
determined that the subject property "will no longer be needed by the County upon
termination of operations at Van Duyn..." but that the County will remain responsible for
Van Duyn's operations for an indeterminate period of time into the future since the
County will continue to be responsible for the operations of Van Duyn while OCDC
seeks a private purchaser and operator. Resolution No. 253-2012. However,
respondents' actions do not violate Not-For-Profit Corporation Law §1411, as
petitioners allege. The statute provides "an additional and alternate method of
incorporation or reincorporation of not-for-profit corporations for any purposes set forth
in this paragraph." NFPCL §1411(a). It further states that "[c]orporations
may be incorporated or reincorporated under this section as not-for-profit local
development corporations operated for the exclusively charitable or public purposes
of...promoting and providing for additional and maximum employment...and lessening
the burdens of government and acting in the public interest...and it is hereby found,
determined and declared that in carrying out said purposes and in exercising the powers
conferred by paragraph (b) such corporations will be performing an essential
governmental function." Id. The statute also provides that "notwithstanding the
provisions of any general, special or local law, charter or ordinance to the contrary, such
sale or lease may be made without appraisal, public notice (except as provided for in
subparagraph (4)) or public bidding for such price or rental and upon such terms as may
be agreed upon between the County...and said local development corporation..."
NFPCL §1411(d)(2).
Although petitioners also argue that the County lacks authority to sell County-owned
real property unless it first determines that the property is no longer necessary for County
use, the petitioners erroneously use the term "no longer necessary" instead of the
applicable standard "not required for use by such county." NFPCL
§1411(d)(1). The record shows that the County made its
determination that it was no longer going to be in the business of providing skilled
nursing care, and acted within its authority and within the confines of the state regulatory
process to decide upon a means of disposing of the assets associated with providing such
services, including the facility. See, Local Law 2-2013; see also, Resolution No.
253-2012. Therefore, the retention of operating rights in the sale of Van Duyn to
OCDC was the negotiated term agreed upon by the parties and within the scope of
section 1411. OCDC is a local development corporation formed by the Legislature in
2009 pursuant to section 1411 for the purposes of "lessening the burdens of
government." Resolution No. 192-2009. A municipality is given broad discretion
in negotiating a sale to a local development corporation and the state permits the County
and OCDC to [*7]negotiate terms to facilitate the
transaction. See, NFPCL §1411(d)(2). As part of its resolution, the
Legislature made the findings and determinations set forth therein, including that the
facility is "not required for use" by the County, as the County is divesting itself of the
skilled nursing facility and is getting out of the nursing home business. The respondents'
actions in selling Van Duyn to OCDC, enacting a local law amending the Administrative
Code to reorganize the Long Term Care Services Department; and eliminating job titles,
were in accordance with their established duties and responsibilities set forth in the
County Charter and Administrative Code and fall within the scope of authority provided
by Not-For-Profit Corporation Law. See, NFPCL §1411. Such policy
determinations were an appropriate execution of respondents' legislative and executive
powers and therefore outside the court's purview. See, Matter of CSEA, Inc.,
supra.
NOW, therefore, for the foregoing reasons, it is
ORDERED, that the portion of the petition concerning petitioner Jamison is dismissed for lack of standing, and it is further
ORDERED, that the petition is dismissed against respondents J. Ryan McMahon and Joanne M. Mahoney, and it is further
ORDERED, that the petition is dismissed as against necessary parties Upstate Services Group, LLC, 5075 West Seneca, LLC and VDRNC, LLC, and it is further
ORDERED, that the relief sought in the petition against the remaining
respondents and Onondaga Civic Development Corporation is denied.
ENTER
Dated: May 22, 2013
Syracuse, New York
DONALD A. GREENWOOD
Supreme Court Justice
Papers Considered:
1.Petitioners' Notice of Verified Petition and Verified Petition, dated
February 6, 2013, and attached exhibits;
2.Brief on Behalf of Petitioners, dated February 6, 2013;
3.Respondents' Answer and Objections In Point of Law, dated March 18,
2013, and [*8]attached exhibits.
4.Verified Answer and Objections In Point of Law of Onondaga Civic
Development
Corporation, dated March 19, 2013;
5.Affirmation of Timothy A. Frateschi, Esq., dated March 19, 2013, and
attached exhibits;
6.Verified Answer of necessary parties Upstate Service Group, LLC, 5075
West Seneca, LLC and VDRNC, LLC, dated March 19, 2013; and
7.Replay Affirmation of Leslie C. Perrin, Esq., dated March 20, 2013.