Judge to Rule if Referendum Required on Paid Fire Chief

by Judy Silberstein*

(November 20, 2007) Larchmont’s second lawsuit over the Village Board’s hiring of a paid chief and modifying the fire department’s governance is now before the judge. As of Wednesday, November 14, Westchester County Court Judge Gerald E. Loehr has all the filings from which to make a decision. These include: the complaints of a group comprised of three current or former volunteer firefighters and four other residents; replies from Larchmont Village; and rejoinders from the plaintiffs. (The documents may be viewed on a website maintained by one of the plaintiffs.)

The plaintiffs are asking the judge to require referenda on the two resolutions passed by the Village Board on May when they hired Richard Heine as chief, which the petitioners claim led to the abolition, in part, of the Larchmont Fire Department, an act subject to permissive referendum. (See: Second Suit Filed to Force Election on Hiring of Fire Chief.) The Village Board argues that this issue has already been resolved in a prior suit, Sweeney v. Feld, that held that the department had not been abolished and that a referendum would be illegal.

Is this New or a Rehash?

The Village attorneys, from the firm of McCullough, Goldberger & Staudt, argue that the issues raised in the new case “were conclusively decided in the related action,” (Sweeney v Feld) which was decided in favor of the Village by Judge Orazio R. Bellantoni on June 20. (See: Judge Rules Against Volunteer Firefighters.) As in that case, they argue that the Village Board is “specifically authorized” to place the department under leadership of a paid fireman, and that doing so does not constitute an “abolition of the Department, in whole or in part and, therefore, is not subject to a permissive referendum.” They further argue that requiring the Village Board to abide by results of a referendum would “illegally and improperly interfere with the Board’s legislative power.”

The plaintiffs position, presented by the firm of Silverberg and Zalantis, is that the current suit, unlike the first, asks only for the referenda requested by over 800 residents in two sets of petitions filed too late for Judge Bellantoni to consider. The first suit was seeking a preliminary injunction, which would have set aside the hiring of the paid chief and reinstalled the volunteer chief who had previously led the department.

The Village’s attorney point out that Judge Bellantoni denied the earlier claim, finding that the plaintiffs had “failed to meet their burden of demonstrating that the appointment of Chief Heine has or will cause the plaintiffs to suffer irreparable harm” and also failing to establish a likelihood of succeeding on the merits of the case. The judge also noted that the law “does not require a permissive referendum where a paid fireman is made Chief” but only “where the Fire Department is partially or wholly abolished by the Village Board, which was not the case here.”

In the new suit, the plaintiffs argue that the Village Board’s actions have potential impacts on their safety, by reducing the forces available to provide protection, and on their taxes, because of the “strong likelihood of the need to hire additional paid fire oighters.” By not scheduling the referenda, the board has deprived them “of the fundamental right to vote.”

How Strong a Department?

According to the filing, Chief Heine’s affidavit sets forth that the ”fire Department remains strong and the Village well protected,” despite the resignation of some volunteer firefighters, because “new volunteers are signing up,” “paid firefighters remain a constant” and there is continuing cooperation with the police and neighboring fire departments.

The Village Board further argues that the four volunteer firefighting companies remain in place along with the Fire Council, the department’s governing body comprised of volunteers, and even if the council were completely abolished and replaced by a board of fire commissioners, that would be allowed and would not constitute abolishment of the department in whole or in part. With no abolishment, the Village argues, the referenda are “impermissible as a matter of law.”

The plaintiffs concur that there is a Fire Council, but claim that the Village Board has stripped it of “its statutory grant of authority” so that it is now a mere figurehead. They further argue that it is the shifting of authority from the department to the chief that constitutes the partial abolition – whether the department is governed by a council or a board of commissioners.

Whether or not the Village Board believed they had a good rationale for the change is not relevant, argue the plaintiffs. That is a question that should be left to the voters in a referendum.

In an affidavit, Chief Heine lists 14 paid firefighters (plus himself) and 29 “participating volunteer members plus two applications” that are pending approval. “Simply put, the Village remains well protected and the safety of the Village need not be a concern of the Court,” he states.

The litigants see things differently. Although their attorneys believe that “operational issues are irrelevant” to whether an election should take place or not, they present data to indicate a “69% diminution” in the response rate of interior-qualified firefighters since the installation of the paid chief. The average response rate dropped from 7.5 per incident in the six weeks before May 17 to 2.3 in July, August and September, according to an analysis from Ned Benton, a plaintiff in both suits who is a former firefighter and a former Village trustee. He parses a September attendance list and finds 29 members, as noted by Chief Heine, but indicates that 6 are teenaged “explorers” and only 7 are “interior-qualified firefighter who actually responded to more than one alarm during September.” One of the seven is Mike Wiener, a former trustee, former fire chief and plaintiff in the current and former suits.

Mr. Benton also points out that the Village now has no deputy chiefs, since the two volunteers in those positions resigned and were not replaced.

What’s Next?

The judge will not be hearing oral arguments – so the documents stand on their own. It’s unclear when a decision will be handed down. In the meantime, Chief Heine remains in place.

*Judy Silberstein is married to Ned Benton, one of the plaintiffs.

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