Judge Weighs Case by Firefighters Against Village Board

by Judy Silberstein*

(May 31, 2007) Larchmont will have to wait at least another week to learn whether Westchester Supreme Court Justice Orazio Bellantoni will side with the Village Board or the volunteer firefighters in their legal dispute over the hiring of a paid fire chief. On Wednesday, May 30, attorneys for the board and the volunteers presented oral arguments before the judge, who concurred with the need for a quick decision. However, at the very end of the hearing, the judge acceded to a request from the board’s attorneys for more time to review and respond to lengthy affidavits and evidence presented by the plaintiffs this week.

The volunteers are suing the Village Board and their appointed chief, Rich Heine, asserting that the appointment amounted to a partial abolition of the fire department, an action subject to being voted on by the citizens. The board’s view is that hiring a chief is the same as hiring a fireman, and therefore within their authority and not subject to referendum.

On May 19, the volunteers failed in their first attempt to secure a temporary restraining order and preliminary injunction, which would have reversed the board's action and reinstated Chris MacDonald, the last elected volunteer chief approved by the board. However, they did receive permision for an expedited hearing before Judge Bellantoni. (See: VOL Volunteer Firefighters Sue Board Over Paid Chief.) Appearing in uniform at the May 30 hearing were 8 volunteers, including Mr. MacDonald, and most of the department leaders listed as plaintiffs in the suit.

Urgent Matter

“What was the urgency for change?” asked Judge Bellantoni, “And why now?”

"The Village Board felt the situation was no longer safe – people weren’t taking orders or responding in a proper way," explained Evan Eisland, one of four attorneys representing the board. The volunteers’ attorney, Steven Silverberg, said previous boards had stepped away from a similar measure 10 years ago, because they concluded that a permissive referendum would have been required.

Now, said Mr. Silverberg, there is a deteriorating situation in which the volunteers believe the village board has acted illegaly. They have lost heart and have stopped responding to fire calls. Out of 28 most active volunteers, 22 have announced they will resign.

It is “pretty dangerous for the residents of the village if you don’t have firefighters,” said the judge. But, it’s the paid staff who respond during the day, anyway, said Mr. Eisland. "Until there is a real fire – we’ve had that here, said Judge Bellantoni describing the numerous minor or false alarms where "one fellow shows up with with the truck, but last week we had a real one and thirty firemen and eight trucks appeared."

“There’s always mutual aid,” responded Mr. Eisland. The board has redoubled efforts to insure that fire departments from adjoining communities are responding, said Vincent Toomey, Larchmont’s labor attorney.

“Could the volunteers continue to participate until the matter is resolved rather than put the community at risk?" asked the judge.

The volunteers have given their resignations effective mid-June to allow time for the department to respond, replied Mr. Silverberg. But, he added, he has no control over the volunteers, and they will resign if they feel their safety is at risk.

“The paid staff is showing up,” said Mr. Toomey. "The trustees can’t be in a position of relying on volunteers who can threaten to resign.” He said Rich Heine was “fully functioning” in the capacity of chief and was providing help, long sought by the board, as they negotiate the latest labor agreement with the firefighters' union.

Reached later for comment, Rich Heine said he had not detected a difference in the response rates to fire calls. There has been no major incident since he was designated chief, and 10 or 11 volunteers responded on a mutual aid call in the Town of Mamaroneck Wednesday evening.

What Does the Law Say?

The core of the legal arguments presented to Judge Bellantoni centered on provisions of Village Law 10-1020.

Mr. Silverberg focused on the first sentence and the phrase: “abolition of the department, in whole or in part, is subject to permissive referendum.” He argued that the two resolutions passed by Larchmont’s board on May 16, in effect, partially abolished the department by first removing the volunteer Fire Council’s power to nominate a chief and then requiring the volunteers to negotiate with the paid chief over the future division of responsibilities between the chief and the council, subject to approval by the board. Therefore, the new chief should not have been installed until citizens had been given an opportunity to circulate petitions calling for a public vote.

Over the past weekend, the volunteers had already begun collecting signatures on petitions. According to Jim Sweeney, a former volunteer chief, 155 registered voters had signed the petitions and approximately 800 would be needed to bring the issue to a public vote.

Mr. Eisland drew the judge’s attention to the second sentence in the statute and specifically the conjunction “or.”

"Or, the board of trustees may, by resolution, determine that one or more firemen shall be employed to act with such voluntary department and ... that the voluntary department shall act under the orders of such paid fireman or firemen." The “or,” he argued, indicated that boards have an alternative to abolition and referendum. Larchmont has 15 paid firemen operating under this statute without requiring a permissive referendum, he said.

Mr. Silverberg insisted a paid fireman is not a paid chief. A similar statute for towns expressly allows for the hiring of a paid chief, whereas the village law does not. If the legislature had wanted to grant villages this authority, they would have written it into the village law, he argued.

The judge repeatedly asked whether there had been interpretations of the statute in other cases. Seeking a comptroller's opinion "would have been a wise way to proceed," he said. Later he asked, “You mean I'm going to make law in New York?”

Mr. Eisland replied, “There is no ambiguity.”

Apparently both sides in the dispute consider the law to be clear – clearly in their favor. Judge Bellantoni indicated he would allow another week for response from the defense and a few more days for a reply from the plaintiffs, after which he will render a decision as quickly as possible. after that.

“It's imperative that the decision be made as soon as possible, ” said the judge.

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