Opinion
100623/11.
May 11, 2011.
DECISION and ORDER
Petitioner Joseph Colangelo is the President of Petitioner Local Union No. 246, S.E.I.U. ("Local 246" or the "Union"). Local 246 is the exclusive bargaining representative for Machinists, Sheet Metal Workers, and Supervisor Sheet Metal Workers (collectively "Workers") employed by various public employers, including Respondents. Petitioner Richard Ramirez was employed by Respondent Health and Hospitals Corporation ("HHC") as a permanent Sheet Metal Worker at Metropolitan Hospital until he was laid off on September 17, 2010. He was employed by HHC for 13 years prior to being laid off. Petitioner Daniel Rivera is a Sheet Metal Worker employed by HHC at Harlem Hospital.
Prior to September 17, 2010 there were 22 Workers who remained on staff at Harlem, Kings County, Lincoln, Metropolitan, and Woodhull hospitals. On September 17, 2010, HHC laid off 11 of these Workers (including Petitioner Ramirez), leaving only 11 Workers (including Petitioner Rivera) remaining on staff throughout these five locations.
Petitioners have commenced this CPLR Article 78 proceeding challenging HHC's decision to lay off the 11 Workers on September 17, 2010. Petitioners submit a verified petition and a memorandum of law in support of their petition. Petitioners annex official job descriptions of the Workers' positions. Sheet Metal Workers "fabricate, erect and repair sheet metal structures such as ducts, metal ceilings, tanks, storm louvres, roofs, etc.; lay out, cut, shape, form, rivet, spot weld, solder and sweat tin, copper, brass and all forms of sheet metal; set and erect sheet metal structures such as ducts, louvres, canvas connections, ceilings, dampers, etc.; develop patterns and templates in fabricating complex shapes and forms; repair metal ceilings, roofs, leaders, gutters, etc . . ." Sheet Metal Supervisors "supervise[], direct[], and inspect[] the work of sheet metal workers." A Machinist "inspects overhauls and repairs all types of main and auxiliary stationary power plant, marine propulsion, water and disposal works equipment."
Petitioners claim that "[t]he tasks performed by these tradespersons are essential and ensure that fire prevention and infectious control mechanisms and devices are functional and will work even, and especially, in a crisis period." Petitioners further state that the Workers perform other critical safety tasks such as "inspection, maintenance, and adjustment and/or repair of the ventilation systems in the facilities." Maintaining proper ventilation is essential, Petitioners state, in order to prevent patients from being exposed to airborne diseases or pathogens. Petitioners claim that the layoffs have left the Workers understaffed and overextended, thereby threatening the safety and well-being of HHC patients and the public. Petitioners further allege that HHC's replacement of Workers with outside contractors "has drastically reduced the services performed by these titles at HHC facilities."
The petition asserts four causes of action. For their first cause of action, Petitioners allege that the layoffs constitute a violation of HHC's obligations as set forth under Unconsolidated Laws §§ 7382 7385(7), in that HHC will be unable to fulfill its responsibility to properly repair and maintain HHC facilities. Petitioners' second cause of action alleges that the layoffs violate 10 NYCRR § 702.1 in that HHC will be unable to fulfill its duty to properly install and maintain ventilation, heating, air conditional and air changing systems. Petitioners' third cause of action alleges that Respondents' decision to lay off 11 of the Workers prevents HHC from fulfilling its duty, pursuant to 10 NYCRR § 405.24(a), to maintain HHC facilities in such a manner as to ensure the safety of patients. Lastly, Petitioners' fourth cause of action alleges that Respondents' decision to lay off 11 Workers violates the merit and fitness clause of the New York State Constitution (Art. V, § 6), in that the layoffs were effectuated for the purpose of hiring private contractors. Based upon the foregoing, Petitioners seek an order and judgment declaring that Respondents' decision to lay off the Workers was arbitrary and capricious; and ordering that the laid off Workers be reinstated with full back-pay and benefits.
Respondents cross-move for an order dismissing the petition; or alternatively, staying this proceeding pending resolution of an appeal of a judgment in a proceeding titled Roberts v. Health and Hospitals Corp., Index No. 112247/10 (Schlesinger, J.). First Respondents argue that Petitioners' Health Law claims must be dismissed for lack of standing because (a) they have not suffered an injury in fact; and (b) in any event, they do not fall within the zone of interests protected by the statutes invoked. Respondents further argue that the petition should be dismissed as nonjusticiable because judicial review of HHC's decision to impose layoffs would improperly embroil the court in the management of a public agency. Third, Respondents argue that Petitioners' merit and fitness claim under the State Constitution fails to state a cause of action.
Petitioners submit a memorandum of law in opposition to Respondents' cross-motion. Respondents submit a reply memorandum in further support.
HHC was established to "provide the needed health and medical services and health facilities" to the public ( see Unconsolidated Laws ("UL") § 7382). U.L. § 7385(7) confers upon HHC the power to "operate, manage, superintend, and control any health facility under its jurisdiction and to repair, maintain and otherwise keep up any such health facility . . ." 10 NYCRR § 702.1 provides, inter alia, that
(d) Ventilation, heating, air conditioning, and air changing systems shall:
(1) be maintained in good repair and shall be operated in a manner which will prevent the spread of infection and provide for patient or resident health and comfort;
(2) be maintained and operated in such manner that air shall not be circulated from operating rooms, patient isolation rooms, laboratories in which work is done in pathology, virology, or bacteriology, autopsy rooms, kitchen and dishwashing areas, toilet and bathrooms, janitors' closets, and soiled linen rooms to any other part of the facility;
(3) be provided, as needed, with acceptable air filtration equipment that is cleaned and serviced at adequate intervals; and
(4) assure that the relative humidity is maintained at a minimum of 50 percent in those areas where conductive floors are required.
10 NYCRR § 405.24 provides, in pertinent part, that
The hospital shall be operated and maintained to ensure the safety of patients.
(a) Building and grounds. Facility grounds and physical plant shall be maintained in a manner to assure a safe and suitable environment for patients.
(1) Grounds and buildings shall be maintained in functional condition and to meet design intent, free of safety hazards, excessive noise, odors and environmental pollutants as may adversely affect the health or welfare of patients.
(2) There shall be facilities for emergency provision of adequate fuel and water supplies during any period in which the supply of fuel and/or water from usual sources temporarily becomes disrupted.
Petitioners allege that the challenged layoffs result in violations of the foregoing statutes and regulations, and "place[] the remaining Sheet Metal Workers in grave danger and exposed to a variety of safety risks." They claim that HHC fails to meet its statutory and regulatory duty to maintain safe premises by reducing the Workers' numbers to a point where "it is impossible . . . to meet and perform the tasks demanded of them by emergency order and preventative maintenance schedules."
It is well settled that "each department of government should be free from interference, in the lawful discharge of duties expressly conferred, by other of the other branches" ( New York State Inspection, Security and Law Enforcement Employees v. Cuomo, 64 N.Y.2d 233, 239) (hereinafter " NYS Inspection"). While courts are both empowered and obligated to resolve disputes involving statutes and provisions of the Constitution, "questions of judgment, discretion, allocation of resources and priorities" are "inappropriate for resolution in the judicial arena" ( James v. Bd. of Educ. of the City of New York, 42 N.Y.2d 357, 368) ( citing Abrams v. New York City Transit Auth., 39 N.Y.2d 990, 992).
NYS Inspection, cited above, involved a challenge by state correctional officers and staff to the closing of the Long Island Correctional Facility ("LICF"). The petitioners were comprised of two classes of correctional employees: correctional officers and civilians employed at LICF; and correctional officers and civilians employed at other state correctional facilities. They challenged the closure of LICF on the grounds that their statutory right to a safe workplace under the Labor Law would be violated by the closure of the facility. In affirming the Appellate Division's dismissal on the grounds of nonjusticiability, the Court of Appeals found that "[b]y seeking to vindicate their legally protected interest in a safe workplace, petitioners call for a remedy which would embroil the judiciary in the management and operation of the State correction system" ( NYS Inspection at 239). "While it is within the power of the judiciary to declare the vested rights of a specifically protected class of individuals, in a fashion recognized by statute," the Court continued, "the manner by which the State addressed complex societal and governmental issues is a subject left to the discretion of the political branches of government" ( id. at 239-40).
Such is the case in the petition before the court. Petitioners point to statutes and regulations which, in essence, provide that HHC is to operate, manage and maintain its facilities in a safe manner. However, this court is in no position to dictate or otherwise second-guess how HHC is to properly allocate finite resources in a manner which best comports with this purpose; to do so would only entangle the court in functions which are exclusively within the province of an executive agency pursuant to statutory authority.
The cases cited by Petitioners in support of the argument that the petition raises a justiciable controversy are inapposite. Jiggets v. Grinker, ( 75 N.Y.2d 411), for example, involved a clear statutory and constitutional mandate to provide assistance payments to qualifying families which were adequate to avoid homelessness. To the extent that allowances were insufficient for recipient families to pay rent and remain in their homes, there was a clear violation by an executive agency of a legislative directive, redressable in the courts, which could compel compliance ( id. at 415). Thus, there was a justiciable controversy.
In the petition currently before the court, it is undisputed that HHC is required to operate and maintain safe facilities. However, without statutory guidance as to what satisfies the requirement of a "safe" facility, such a determination properly remains within HHC's discretion. As noted by the Court of Appeals in the NYS Inspection case; and by the Fourth Department in Civil Service Employees Association, Inc. v. County of Erie, (2007 NY Slip Op 7145 [4th Dept. 2007]) (in response to a petition challenging the layoffs of correction officers), "The statutory right to a safe workplace may not be enforced by means of a remedy at law which would require the judiciary to preempt the exercise of discretion by another branch of government."
Accordingly, even if the court were to find that Petitioners have standing to challenge the layoffs on the statutory and regulatory grounds advanced, consistent with the Court's decision in Roberts, currently on appeal, this Court, nevertheless, finds that HHC's determination constitutes a nonjusticiable political question.
Petitioners further allege that the layoffs violate the merit and fitness clause of the New York State Constitution because Respondents seek to lay off the Workers and, "upon information and belief, assign the duties and responsibilities of such duly examined and appointed positions by use of unexamined private contractors." Article V, § 6 of the State Constitution provides that "Appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive."
However, as stated by the Second Department in Coxen v. Meyer, and subsequently adopted by the Court of Appeals, "there is no constitutional mandate that all services furnished or labor performed for a governmental agency must be supplied by persons directly employed by the governmental agency" ( 130 A.D.2d 72, 74 [2nd Dept. 1987], aff'd 72 N.Y.2d 986). Courts will uphold a contract where there is a bona fide reason for entering into the contract, such as significant cost savings; and where the private entity's employees remain independent and are not controlled by the government ( id., citing Nassau Educ. Chapter of CSEA v. Great Neck Union Free Sch. Dist., 57 N.Y.2d 658, 660-61 [1982]).
The petition herein does not allege any facts which, if true, would render the hiring of independent contractors violative of the merit and fitness clause. Accordingly, Petitioners fail to state a cause of action thereunder.
Wherefore, it is hereby
ADJUDGED that the Petition is denied and the proceeding is dismissed.
This constitutes the decision and order of the court. All other relief requested is denied.