Fight with NY Firefighters Costing City About $800K

WATERTOWN — The attorney representing the city has some doubts that the state’s highest court will take an arbitration case against the firefighters’ union, a continuation of a dispute that has already cost taxpayers nearly $800,000 in legal bills.

Terry O’Neil, the Long Island labor attorney representing the city in the nearly five-year contract dispute with the firefighters’ union, acknowledged it will be difficult to convince the Court of Appeals to hear the case. The state’s highest court only accepts about 7 percent of the requested cases.

But, if the city’s “file for leave to appeal” is successful, Mr. O’Neil predicts the state’s highest court will overturn an appellate court decision that reversed a 2018 ruling by state Supreme Court Judge James P. McClusky allowing the city to block arbitration in the contract dispute.

“If we can get the court to grant our request, we should win,” he said following a hearing on Tuesday before Judge McClusky about another matter regarding the firefighters’ union.

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Last Friday, the state Appellate Division, Fourth Department, in Rochester, unanimously reversed Judge McClusky’s decision that would allow an arbitrator to determine if a “minimum manning” clause can continue in the firefighters’ labor contract.

The minimum manning clause has been the main sticking point during the city’s nearly five-year contract stalemate with the firefighters’ union.

City Council members on Monday night informally agreed to appeal that decision and take it to the Court of Appeals.

It will probably be about 30 days before the city is notified whether the appeal can proceed.

“It’s a big issue with statewide implications,” Mr. O’Neil said.

Mr. O’Neil’s hopes come from two appellate courts in other parts of state that ruled in favor of similar cases involving court battles with firefighters’s unions.

City Council’s decision has caused controversy because it was not a formal vote and it was conducted behind closed doors. Three council members won’t comment about the decision.

In his first public statement on the matter, Councilman Cody J. Horbacz still wouldn’t say whether he supported the appeal.

“This dispute predates most of council. While I’m not happy that we’ve been dealing with this issue my entire tenure, a move to appeal is part of the process,” he said in a text message. “I’m hoping for a swift decision that will close the door on this issue once and for all.”

Only Councilwoman Lisa A. Ruggiero expressed her views in public, saying she opposed pursuing the appeal.

Commenting on Thursday, Syracuse attorney Nathaniel G. Lambright, who’s representing the firefighters’ union, said legal bills will continue to go up as the result of the appeal.

But Mr. O’Neil said the city won’t be charged for the legal work on the appeal because he reached “a cap in litigation” on any issues pertaining to minimum manning.

The city set the cap at $40,000, which began with Judge McClusky’s ruling last January, continues with the appellate court decision and now proceeds with the state’s highest court, City Comptroller James E. Mills confirmed.

As of Jan. 13, Mr. O’Neil’s firm of law firm of Bond, Schoeneck & King, PLLC has billed the city $797,670 since the firm was hired in 2014. That is up from $739,248 last August. The budgeted amount for the 2018-19 fiscal year is $70,000.

City Councilman Ryan Henry-Wilkinson said Thursday he was aware that the legal fees were nearing $800,000. He also knew that Mr. O’Neil reached the $40,000 cap.

The thinking is: Pursue the varied legal arguments, Councilman Henry-Wilkinson said, because the city would end up saving money in salaries in the long term if the minimum manning clause is eliminated.

Mr. O’Neil was back in court again Thursday, this time going before Judge McClusky on an arbitration ruling that ordered the city to pay firefighters who worked out-of-title as captains.

He argued that the firefighters’ union didn’t follow proper procedures in filing a grievance regarding out-of-title pay.

The union failed to communicate its complaint regarding the grievance, so the city entered arbitration unable to defend itself and could not call any witnesses, he told Judge McClusky. The city also did not know the union was seeking out-of-title pay for all firefighters, not just eight captains who were demoted in July 2015, he said.

As the result, the arbitrator did not hear a fair case, Mr. O’Neil said. The arbitrator, Richard Curreri, also seemed to have punished the city for demoting eight captains, he argued.

When the city demoted the eight fire department captains, it left firefighters to cover those duties. The move also caused the dispute to become more contentious.

Mr. Lambright disagreed with Mr. O’Neil’s arguments, contending Mr. Curreri made the right decision. If the city loses, the city will have to pay about $75,000 in back pay and continue to pay firefighters for work as captains going forward.

He doubts that the judge will overrule the arbitrator.

Mr. Lambright also warned that Thursday’s court appearance before Judge McClusky will just add to the legal bills.

“It’s not easy,” Mr. O’Neil said, adding he predicts that the judge will vacate the arbitrator’s decision.

The city contends the minimum manning stipulation causes the department to be overstaffed, while the union maintains that changing it would be unsafe.

The 68-member union has been without a contract since July 2014.

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