Feazelle v Kasprzak

[*1] Feazelle v Kasprzak 2012 NY Slip Op 51915(U) Decided on September 21, 2012 Supreme Court, Clinton County Muller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 21, 2012
Supreme Court, Clinton County

Terry M. Feazelle, as President of the Plattsburgh Permanent Firemen's Association, Local 2421, IAFF, Petitioner,

against

Donald Kasprzak, as Mayor of the City of Plattsburgh, CITY OF PLATTSBURGH, ALAN GIBSON, as Personnel Director, Clinton County Department of Personnel and CLINTON COUNTY, Respondents.



2012-305



Satter & Andrews, LLP, Syracuse (Mimi C. Satter of counsel), for petitioner.

Goldberger & Kremer, Albany (Brian S. Kremer of counsel), for respondents Donald Kasprzak and City of Plattsburgh.

Lemire Johnson, LLC, Malta (April J. Laws of counsel), for respondents Alan Gibson and Clinton County.

Robert J. Muller, J.

Petitioner is the President of the Plattsburgh Permanent Firemen's Association (hereinafter the PPFA), the collective bargaining representative for all uniformed members of the Plattsburgh Fire Department. On October 24, 2011, respondent Alan Gibson, the Personnel Director of the Department of Personnel for respondent Clinton County, announced that an open competitive examination would be given on January 7, 2012 for the position of Fire Chief of the Plattsburgh Fire Department. The announcement required applications for the exam to be submitted on or before November 23, 2011, together with a $12.50 filing fee. The announcement further included "the minimum qualifications at time of examination," stating in pertinent part: "Completion of at least eight (8) certified courses through Department of Defense and/or National Fire [Protection] Association in Fire Science or related fire or emergency services field and twelve (12) years of paid experience in firefighting and fire prevention in a fire department, four (4) years of which must have been as a Fire Lieutenant, Fire Captain, or higher-level position."[*2]

At least three members of the PPFA applied to take the exam, but their applications were denied because they had completed certified courses through the New York State Office of Fire Prevention and Control (hereinafter OFPC), as opposed to the Department of Defense (hereinafter DOD) or the National Fire Protection Association (hereinafter NFPA). Only three candidates ultimately sat for the exam.

Petitioner commenced this CPLR article 78 proceeding on February 22, 2012, contending that the decision to exclude courses certified through the OFPC and, further, to offer the examination as open competitive, as opposed to promotional, was arbitrary and capricious and/or an abuse of discretion. Petitioner requests an Order (1) mandating respondents to issue new, minimum qualifications for the examination, which include OFPC certified courses; (2) mandating respondents to give a new exam, consistent with the expanded qualifications; and (3) mandating respondents to disregard the results of the previous examination. On March 9, 2012, petitioner moved by Order to Show Cause for a preliminary injunction barring respondents from releasing the results of the exam, certifying an eligible list for the position of Fire Chief and appointing anyone to the position of Fire Chief pending the return date of the petition. The parties thereafter appeared for oral argument on March 30, 2012, at which time petitioner's motion was granted from the bench. Presently before the Court is the pre-answer motion to dismiss of the County and Gibson (hereinafter collectively referred to as the County).[FN1]

The County first contends that the petition must be dismissed because petitioner has failed to exhaust his administrative remedies. Specifically, the County contends that petitioner has failed to file an appeal with the State Civil Service Commission, as required under Civil Service Law § 6 (5). This section provides, in pertinent part: "The [S]tate [C]ivil [S]ervice [C]ommission shall [h]ear and determine appeals instituted by any person believing himself aggrieved by any action or determination of the [P]resident of the [C]ommission acting as the head of the [D]epartment [of Civil Service], made under the authority conferred upon such [P]resident or [D]epartment under the provisions of this chapter . . . ."

By its terms, Civil Service Law § 6 (5) applies to appeals from determinations of the State Department of Civil Service, as opposed to appeals from determinations of the personnel officer in a local civil service administration (see Civil Service Law § 15). The provisions of Civil Service Law § 6 (5) are therefore inapplicable under the circumstances herein.

The County further contends that petitioner failed to exhaust his administrative remedies because he did not request a promotional examination in writing, which contention is also unavailing. Pursuant to Civil Service Law § 51 (1), "[u]pon the written request of the appointing officer stating his reasons therefor, or on its own initiative, the . . . appropriate municipal commission may determine to conduct an open competitive examination for filling a vacancy or vacancies instead of a promotion examination." Civil Service Law § 51 (2) then provides, in pertinent part: [*3] "[A] notice of intention to conduct such open competitive examination or a copy of the appointing officer's request for open competitive examination, as the case may be, shall be publicly and conspicuously posted in the offices of both the appointing officer and the . . . appropriate municipal commission and such request shall not be acted upon until said notice has been posted . . . for a period of not less than fifteen days."

Upon seeing this notice, "[a]ny employee who believes that a promotion examination should be held for filling such vacancy may submit to the . . . appropriate municipal commission his request, in writing, for a promotion examination rather than an open competitive examination, stating the reasons why he believes it to be practicable and in the public interest to fill the vacancy by promotion examination" (Civil Service Law § 51 [3]).

Here, the County admittedly failed to post a notice of intention to conduct an open competitive examination for the position of Fire Chief, instead posting the October 24, 2011 announcement that the open competitive examination would be given on January 7, 2012. While the County contends that this announcement was sufficient to constitute a notice of intention, the Court is not persuaded. Civil Service Law § 51 (2) expressly states that the written request of the appointing officer to conduct an open competitive examination "shall not be acted upon" until a notice of intent has been posted for at least 15 days. Obviously, announcing the date of the open competitive examination is acting upon the written request of the appointing officer — not posting a notice of intention to do so. Recognizing that the exhaustion rule is not inflexible, the Court finds that, under these circumstances, the petition should not be dismissed (see Matter of Dombroski v Bloom, 170 AD2d 805, 808 [1991]; Commissioner of Labor of State of NY v Hinman, 103 AD2d 886, 886 [1984], appeal dismissed 64 NY2d 756 [1984]). It must also be noted that, insofar as the open competitive examination has already been given, it would be futile for petitioner to now request a promotional examination in writing (see Matter of Fahey v Perales, 141 AD2d 934, 935 [1988]).

The County next contends that the petition must be dismissed because it is premature. Specifically, the County contends that "no final resolution has been made (i.e., the results of the examination [have] not been released[,] a certified eligible list has not been acquired by [the City and] a permanent Fire Chief has not been appointed)." This contention, however, is also without merit. A proceeding is " premature and as a matter of law may not be maintained if the issue presented for adjudication involves a future event beyond control of the parties which may never occur'" (Matter of New York Blue Line Council, Inc. v Adirondack Park Agency, 86 AD3d 756, 760 [2011], appeal dismissed 17 NY3d 947 [2011], lv denied 18 NY3d 806 [2012], quoting American Ins. Assn. v Chu, 64 NY2d 379, 385 [1985], appeal dismissed, cert. denied 474 US 803 [1985]; see Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL—CIO v Cuomo, 64 NY2d 233, 240 [1984]).

Here, the future event — namely, the appointment of a permanent Fire Chief — is fully within respondents' control and, further, is certain to occur upon release of the examination results and certification of an eligible list. Based upon this, the Court declines to dismiss the petition as premature.

Moving now to the County's third contention that the petition fails to state a cause of [*4]action, "on a motion to dismiss for failure to state a cause of action, [the Court] must afford the pleadings a liberal construction, accept the facts alleged therein as true, accord the [petitioner] the benefit of every possible inference and determine whether the facts alleged fit within any cognizable legal theory'" (Nelson v Capital Cardiology Assoc., P.C., 97 AD3d 1072, 1073 [2012], quoting Matter of Upstate Land & Props., LLC v Town of Bethel, 74 AD3d 1450, 1452 [2010]).

Here, petitioner first claims that the decision to offer the examination as open competitive was arbitrary and capricious and/or an abuse of discretion, alleging that"[f]or the last 20 years, the Fire Chief examination has been offered as a promotional examination and not an open competitive examination." Petitioner further alleges that, "[b]y offering an open competitive examination, respondents have expanded the universe of potential candidates, [thus] reducing the likelihood that a current member of the Fire Department will be promoted to Chief." Neither of these allegations, however, "show[] that [respondents'] determination was corrupt, arbitrary or illegal" (Matter of Martin v Conway, 199 Misc 451, 453 [Sup Ct, Albany County 1951]). Expanding the universe of potential candidates is in fact a relevant consideration in determining whether to conduct an open competitive or promotional examination (cf. Matter of Fitzgerald v Conway, 275 App Div 205, 201 [1949]. With no further allegations to support this claim,[FN2] the Court finds that petitioner has failed to state a cause of action. The County's motion is therefore granted to the extent that petitioner's claim that the decision to offer the examination as open competitive was arbitrary and capricious and/or an abuse of discretion is dismissed in its entirety as against all respondents.

Petitioner next claims that the decision to exclude courses certified through the OFPC was arbitrary and capricious and/or an abuse of discretion. The OFPC, an agency within the New York State Division of Homeland Security and Emergency Service, is responsible for training both paid and volunteer firefighters. As set forth by petitioner, it "is recognized by fire departments through[out] New York State as the gold standard' for fire training" and its courses "are essentially identical to or superior to those offered by the DOD and/or NFPA." Petitioner further states as follows: "Upon information and belief, the most recently retired Fire Chief, Paul Williams, wanted to be replaced by Daniel Collins. Mr. Collins is a former Air Force firefighter and thus has completed courses in firefighting and fire science through the DOD, but not the OFPC."Ironically, since approximately 2007 Mr. Collins has served as an instructor for OFPC certified courses offered by the [Plattsburgh] Fire Department. . . . "The action of respondents in requiring DOD and/or NFPA certified courses, while excluding OFPC certified courses, was an effort to render Daniel Collins eligible, while eliminating from eligibility active members of the [Plattsburgh] Fire Department."[*5]

While "courts have accorded considerable deference to [an] agency's ability to assess to what extent, and in what manner, merit and fitness should be measured" (Matter of Gallagher v City of New York, 307 AD2d 76, 81 [2003], lv denied 1 NY3d 503 [2003]; see McGowan v Burstein, 71 NY2d 729, 733 [1988]), if in fact respondents excluded courses certified through the OFPC solely to increase the likelihood of Collins' appointment, such conduct would not be entitled to deference. The Court therefore finds that petitioner has succeeded in stating a cause of action relative to his claim that respondents' decision to exclude courses certified through the OFPC was arbitrary and capricious and/or an abuse of discretion.

Finally, insofar as the County contends that petitioner failed to demonstrate that it acted in an arbitrary and capricious manner and/or abused its discretion when deciding to exclude courses certified through the OFPC, the Court finds such contention to be without merit. While the County contends — in a noticeably conclusory fashion — that "the minimum qualifications were relevant and appropriate for the position of Fire Chief," nowhere does it explain why these minimum qualifications excluded courses certified by the OFPC. To the extent that the City of Plattsburgh Fire Department offers only OFPC certified courses to its members, the decision to exclude such courses deserved an explanation — especially in view of petitioner's contentions regarding Collins.

Based upon the foregoing, the County's motion to dismiss is granted to the extent that petitioner's claim that the decision to offer the examination as open competitive was arbitrary and capricious and/or an abuse of discretion is dismissed in its entirety as against all respondents and the motion is otherwise denied. The County is hereby directed to serve its answer to the remaining claims in the petition upon petitioner within thirty (30) days of the date of this Decision and Order and petitioner shall then have fifteen (15) days from receipt of this answer to serve his reply. Following receipt of these papers, the Court will proceed to determine whether petitioner is entitled to an Order (1) mandating respondents to issue new, minimum qualifications for the open competitive examination, which include OFPC certified courses; (2) mandating respondents to give a new open competitive exam, consistent with the expanded qualifications; and (3) mandating respondents to disregard the results of the previous examination. In the event the Court deems a hearing necessary, the parties will be advised.

Therefore, having considered the Petition with exhibits attached thereto, verified February 17, 2012; Affirmation of April J. Laws, Esq. with exhibit attached thereto, dated April 16, 2012, submitted in support of the motion; Affidavit of Alan Gibson, sworn to April 11, 2012, submitted in support of the motion; Reply Affidavit of Terry Feazelle with exhibits attached thereto, sworn to April 18, 2012, submitted in opposition to the motion; Reply Memorandum of Law of Mimi C. Satter, Esq. with exhibits attached thereto, dated April 18, 2012, submitted in opposition to the motion; Affidavit of Michael Washington, sworn to May 1, 2012. submitted in opposition to the motion; Affidavit of Joel Bogensberger with exhibits attached thereto, sworn to May 1, 2012, submitted in opposition to the motion; and Reply Affirmation of April J. Laws, Esq. with exhibits attached thereto, dated May 15, 2012, it is hereby

ORDERED that the motion to dismiss of respondents Alan Gibson and Clinton County is is granted to the extent that petitioner's claim that the decision to offer the examination as open competitive was arbitrary and capricious and/or an abuse of discretion is dismissed in its entirety [*6]as against all respondents and the motion is otherwise denied; and it is further

ORDERED that respondents Alan Gibson and Clinton County shall serve their answer to the remaining claims in the petition upon petitioner within thirty (30) days of the date of this Decision and Order; and it is further

ORDERED that petitioner shall then have fifteen (15) days from receipt of this answer to serve his reply upon said respondents.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order is returned to counsel for respondents Alan Gibson and Clinton County for filing and service with notice of entry. The Notice of Motion dated April 16, 2012 has been filed by the Court together with the above-referenced submissions.[FN3]

Dated:September 21, 2012

Lake George, New York

____________________________________

ROBERT J. MULLER, J.S.C.

ENTER: Footnotes

Footnote 1: While respondents City of Plattsburgh and Donald Kasprzak, as Mayor of the City of Plattsburgh (hereinafter collectively referred to as the City), do not join in this motion, they have appeared and filed an answer with certain affirmative defenses.

Footnote 2: The petition makes no allegation relative to respondents' failure to post a notice of intention in accordance with Civil Service Law § 51 (2).

Footnote 3: The Petition, as well as the Reply Affidavit of Terry Feazelle, Reply Memorandum of Law of Mimi C. Satter, Esq., Affidavit of Michael Washington and Affidavit of Joel Bogensberger — which were submitted both in opposition to the County's motion and in response to the City's answer — have not been filed. Rather, these documents will be retained by the Court pending resolution of petitioner's remaining claims.