In the Matter of M.G.M. Insulation, Inc., et al., Appellants,v.Colleen C. Gardner,, Respondent.BriefN.Y.January 2, 2013Case No. 510657 Submitted Without Oral Argument Court of Appeals of the State of New York In the Matter of M.G.M. INSULATION, INC., JOSEPH O. WESLEY, KENNEDY MECHANICAL PLUMBING AND HEATING, INC., DIANE SHUTTER, LEHMANN CONSTRUCTION CONSULTANT, INC., FINGER LAKES SERVICE GROUP, INC., KENNETH R. HATHAWAY, RMS CONTRACTORS, LLC, BALTZ CONCRETE CONSTRUCTION, INC., THOMAS F. BALTZ, GOFORTH ELECTRIC, INC., LAWRENCE C. GOFORTH, J&S PROTECTION SYSTEMS, INC., DAVID JENNINGS, FINGER LAKES PAINTING AND WALLCOVERING, LLC, RICHARD MILHAM, CUTAIA TILE, INC., ANGELO CUTAIA, ARK GLASS AND GLAZING CORP., RICHARD W. KOZYRA, W.R. DRAKE & SONS, INC., WILLIAM R. DRAKE, McCLAIN ASSOCIATES, INC., NICK McCLAIN, RAYDO, INC., RAYMOND L. DOYLE, BILLONE MECHANICAL CONTRACTORS, INC., THOMAS J. BILLONE, PROVVIDENZA CONTRACTING, INC., VINCENT PROVVIDENZA, JR., R-J TAYLOR GENERAL CONTRACTORS, INC., and JAMES D. TAYLOR, Petitioners-Appellants, – against – COLLEEN C. GARDNER as Commissioner of Labor, State of New York, Respondent-Respondent. BRIEF OF AMICUS PARTY THE FIREMEN’S ASSOCIATION OF NEW YORK ON BEHALF OF APPELLANT March 14, 2012 HURWITZ LAW, P.C. Jayme Hurwitz, Esq. Attorneys for The Firemen’s Association of the State of New York 28 East Main Street, Suite 600 Rochester, New York 14614 Tel.: (585) 750-9888 Fax: (585) 219-5299 -i- TABLE OF CONTENTS Table of Authorities ..................................... ii Questions Presented ....................................... 1 Preliminary Statement ..................................... 2 Argument .................................................. 5 POINT I THE DEPARTMENT OF LABOR MAY NOT BRING FIRE CORPORATIONS WITHIN THE REACH OF LABOR LAW §220 WHEN THE LEGISLATURE HAS DECLINED TO DO SO ...... 5 POINT II STANDARD SERVICE AGREEMENTS MADE BETWEEN A VILLAGE AND A VOLUNTEER FIRE CORPORATION ARE NOT AGREEMENTS “WHICH MAY INVOLVE THE EMPLOYMENT OF LABORERS, WORKERS OR MECHANICS” UNDER LABOR LAW §220 ............................................ 13 Conclusion ............................................... 18 -ii- TABLE OF AUTHORITIES Cases Bright Homes v. Wright, 8 NY2d 157, 162 (1960) ............................ 12 Eaton v. New York City Conciliation & Appeals Bd., 56 NY2d 340, 345-346 (1982) .......................................................................... 12 Helman v. County of Warren, 114 AD2d 573 (3d Dept. 1985) ...... 9 Matter of Alonzo M. v. New York City Dept. of Probation, 72 NY2d 662, 665-666 (1988) .......................................................................... 12 Matter of New York Charter School Assn. v. Smith, 15 NY3d 403 (2010) ............................................................................................... 15 Moch Co. v. Rensselaer Water Co., 247 NY 160 (1928) ................ 10 Pajak v. Pajak, 56 NY2d 394, 397 (1982) ............................................. 11 Patrolmen’s Benevolent Assc. v. City of New York, 41 NY2d 205, 208-209 (1976) .......................................................................... 12 People v. Tychanski, 78 NY2d 909, 911-912 (1991) ....................... 11 Roberts v. Community School Bd. of Community Dist. No. 6, 66 NY2d 652, 654 (1985) ................................................................................... 12 Steitz v. City of Beacon, 295 NY 51 (1945) ...................................... 10 Town of Riverhead v. New York State Bd. of Real Property Services, 5 NY3d, 36, 43 (2005)........................................... 12 Walker v. Town of Hempstead, 84 NY2d 360, 367 (1994) .............. 12 Statutes 42 USC §1983 .............................................................................................................. 10 General Construction Law §§65, 66 ............................................................. 5 General Municipal Law §205-B ......................................................................... 9 General Municipal Law §209-d ....................................................................... 14 GML Article 11-A ...................................................................................................... 9 Labor Law §220 ........................................................................................................... 1 Labor Law §27-A......................................................................................................... 9 McKinney’s Statutes §74 ................................................................................... 11 McKinney’s Statutes §240 ................................................................................. 12 Not-For-Profit Corporation Law §1402 ...................................................... 5 N-F-P L §1402(d), (e) and (f) ....................................................................... 7 Town Law §170 ............................................................................................................. 5 Town Law §209-d....................................................................................................... 14 Village Law §10-1008............................................................................................. 8 Village Law §4-412(9) .......................................................................................... 1 Village Law Article 10 ........................................................................................ 8 Village Law §17-1720............................................................................................. 5 Village Law of 1897, ch. 414 ......................................................................... 8 Village Law of 1909 §203 ................................................................................... 8 Other Authorities L. 1847, ch. 426 ...................................................................................................... 8 L. 1870, ch. 291 ...................................................................................................... 8 L. 1870, ch. 385, §2........................................................................................... 10 -iii- L. 1873, ch. 397 ...................................................................................................... 7 L. 1909, ch. 29......................................................................................................... 9 L. 1909, ch. 64....................................................................................................... 15 L. 1909, ch. 292 .................................................................................................... 10 L. 1916, ch. 595 ...................................................................................................... 8 L. 1935, ch. 684 .................................................................................................... 10 L. 1937, ch. 819 ...................................................................................................... 9 L. 1956, ch. 696 ...................................................................................................... 9 L. 1969, ch. 1066 .................................................................................................... 8 L. 1980, ch. 729 ...................................................................................................... 9 L. 1988, ch. 775 ...................................................................................................... 9 L. 2007, ch. 678 ...................................................................................................... 6 McKinney’s Cons Laws of New York, Vol 63B, pp. xxix, Potter, “Historical Development of the Volunteer Firefighters’ Benefits Law” ......................................................................................................... 9 -1- QUESTIONS PRESENTED 1. May the Commissioner of Labor extend the Prevailing Wage Law to volunteer fire corporations when the Legislature has declined to do so? 2. Is a contract by a fire corporation to provide fire protective and related services to a municipality, made pursuant to Village Law §4-412(9), an agreement “which may involve the employment of laborers, workers or mechanics” under Labor Law §220? -2- PRELIMINARY STATEMENT The Firemen’s Association of the State of New York (“FASNY”) is a New York not-for-profit corporation created in 1873 by Special Act of the New York State Legislature, in order to “protect the interests of Firemen of this State.” It was conceived in 1872 at a firefighters parade in Auburn, New York and created a year later at the request of six upstate “hose” companies and one “hook and ladder” company. Today, FASNY’s membership is composed entirely of volunteer firefighters and firefighting organizations throughout the state. It has approximately 42,500 members, including public fire departments and independent private volunteer fire companies, as well as many of the individual firefighters who serve those units. At present, FASNY estimates there approximately 650 separately incorporated not-for-profit fire corporations serving municipalities across New York State, many of which are FASNY members. The Court need only go to the website of the New York Department of State 1 to obtain information about 500 such entities. Most of those listed were incorporated in the 1940s and 1950s, but several go back to the early 1900s, and some were incorporated in the 1800s. Many of these corporations, like The Bath Volunteer Fire Department Inc. (the “BVFD”), evolved from previous unincorporated associations. www.dos.state.ny.us. Go to the link for “Corporations, State Records and Uniform Commercial Code,” and search the phrase “volunteer fire” (revising search criteria to “Search Type: Contains”). -3- The financial structure of the BVFD, as disclosed by the record in this case, is fairly typical of other not-for- profit fire corporations across New York State. Contracts to provide firefighting and other emergency services to local municipalities, augmented by fundraising activities, donations and grants, fund the emergency services these volunteer fire companies provide to the community. The operations of some such companies are housed in publicly owned buildings, but many fire companies own their own land and build and maintain their own firehouses. It is the latter group -- those that own their own firehouses -- that are most threatened by the New York State Department of Labor (the “DOL”) determination that is challenged in this case. The distinction between a publicly owned firehouse and one owned and constructed by a fire company itself is one that the DOL used to honor. In 1998, the Commissioner’s Office of Counsel issued a memo addressing “a number of inquiries regarding the applicability of [Labor Law] Article 8 to construction projects entered into by volunteer fire departments that are not-for-profit corporations.” The author observed that, “[t]ypically, these fire departments own the land and the buildings (i.e., the firehouse) and are either contracting for a new firehouse or for an addition to an existing firehouse.” The memo further observed that, up until 1992, the DOL had recognized that the Prevailing Wage Law had no application to such projects, but that in 1992 -4- and 1993 Counsel’s office had issued contrary opinions due to the “hybrid” nature of fire corporations. The memo concluded, however, that those latter opinions had been wrong and that “the Department cannot apply Article 8 to construction projects entered into by not-for-profit volunteer fire department corporations so long as they own land and the buildings where such work is being performed.” That memo is appended to this brief. FASNY submits this brief because it is concerned about the impact that the Commissioner of Labor’s determination below, confirmed by the Third Department, will have on its membership across this State. FASNY is particularly concerned because the Third Department, in confirming the DOL’s authority to extend prevailing wage requirements under Labor Law §220 to “functional equivalents” of the public entities listed in the statute, has confirmed the DOL’s determination that independent volunteer fire corporations are, by their very nature, the functional equivalents of municipal departments. Since the “evidentiary” findings made by the DOL in extending prevailing wage requirements to contracts entered into by the BVFD are common to all volunteer fire corporations, the determination below effectively renders every not-for-profit corporation a “functional equivalent” of the municipality it serves, automatically subjecting their firehouse construction projects to prevailing wage requirements, regardless of the particular facts and -5- circumstances of the case. At the very least, there is a grave danger that the DOL’s enforcement officers will interpret and utilize the Decision below in this manner. ARGUMENT POINT I THE DEPARTMENT OF LABOR MAY NOT BRING FIRE CORPORATIONS WITHIN THE REACH OF LABOR LAW §220 WHEN THE LEGISLATURE HAS DECLINED TO DO SO The Bath Volunteer Fire Department, Inc. (“BVFD”) is a special type of private corporation, designated a “fire corporation,” under New York Not-For-Profit Corporation Law §1402. It is not unique. As already noted, there are approximately 650 such corporations that are active throughout New York State. These not-for-profit fire corporations are not agencies of the State, nor are they “municipal corporations” 2 or “public benefit corporations” (General Construction Law §§65, 66). They are not “commissions appointed pursuant to law”. (Labor Law § 220). Thus, fire corporations are not among the entities whose construction contracts are expressly made subject to the prevailing wage requirements of Labor Law §220. By its terms, the Prevailing Wage Law applies to: [e]ach contract to which the state or a public benefit corporation or a municipal corporation or a commission appointed pursuant to law is a party, and any contract for public work entered into by a third party acting in place A not-for-profit fire corporation is distinguishable from a municipal fire district. See Village Law §17-1720 and Town Law §170. -6- of, on behalf of and for the benefit of such public entity pursuant to any lease, permit or other agreement between such third party and the public entity, and which may involve the employment of laborers, workers or mechanics… . In the case now before the Court, the Commissioner of Labor held, and the Third Department confirmed, that a BVFD construction contract was subject to §220’s prevailing wage requirements because the fire corporation was the “functional equivalent of a Village department.” 3 However, in justifying her conclusion, the Commissioner relied strictly upon attributes of the BVFD that are common to every volunteer fire corporation in the State. In particular (and in the words of her hearing officer, whose report she confirmed) the Commissioner said the following: Since the immunity from liability principles for negligence in extinguishing fires applicable to district and municipal fire corporations are “equally applicable” to volunteer fire corporations (see, Helman v. County of Warren, 114 AD2d 573[3d Dept. 1985]); since their members enjoy many of the benefits of public service employees (Volunteer Firefighter’s Benefits Law §§5,6[workers’ compensation] 7-11, 15,16[death and disability benefits and reimbursement for treatment costs and care for injuries]; General Municipal Law Article 11-A [pension service credits]; Labor Law §27-A[Public Employee Safety and Health Act Coverage]) and enjoy immunity from liability for negligence in the performance of their duties (General Municipal Law §205-b); that in providing fire protection services, volunteer fire The Commissioner did not consider whether BVFD had acted “in place of, on behalf of and for the benefit of” the Village of Bath because Labor Law §220 was only amended to reach such agency situations after BVFD had entered into its contract to build a new fire house. L. 2007, ch. 678. -7- departments are performing an essential governmental function (Janusaitis v. Middlebury Fire Department, 607 F.2d 17, 22 [2d Cir. 1979]; Harland Enters. v. Commander Oil Corp., 64 NY2d 708, 709[1984]; Helman v. County of Warren, 114 AD2d 573 [3d Dept. 1985]); and since Volunteer Fire Corporations are statutorily under the supervision of the municipality they serve (Not-for-Profit Corporation Law §1402[e]), it appears that volunteer fire corporations are the functional equivalent of municipal department. As such, particularly when considering that Article 8 is to be liberally construed in order to effectuate its beneficial purposes (Matter of Telnap Constr. Corp. v. Roberts, 141 AD2d 81, 84[2d Dept. 1988]), private membership volunteer fire corporations satisfy the “public agency” test. Bayvile Filre Co. No. 1 v. New York Sate DOL, Id. [Footnote omitted.] One need only look to the Commissioner’s own citations to see that the factors she focused upon in finding the BVFD to be the “functional equivalent of [a] municipal department” are, by law, common to all volunteer fire corporations. In fact, most of those factors have been common to volunteer fire corporations for more than 100 years. To begin with, N-F-P L §1402(d), (e) and (f) -- which respectively require municipal approval for incorporation, place a fire corporation “under the control of the [local] city, village, fire district or town,” and require fire corporations to file annual reports with the County Clerk -- have been in effect since at least 1873, when the Legislature passed “an act for the incorporation of fire, hose and hook and ladder companies.” L. 1873, ch 397. In -8- particular, §1 of that act permitted incorporation of a fire company only upon formal approval of the village, city or town “in which said company is situate;” and further provided: That in taking part in the prevention and extinguishment of fires in cities and villages, said corporations shall be under the control and subject to the orders of the city or village authorities or officers, who by law have or may have control over the prevention or extinguishment of fires in incorporated cities or villages in which said corporations shall conduct their business. The same requirements were carried over into the Membership Corporations Law in 1916 (L. 1916, ch 595), and there they resided until being transferred to the Not-For-Profit Corporation Law in 1969 (L. 1969, ch. 1066). In like manner, provisions now in Village Law Article 10, concerning village regulation of fire companies, have their genesis in statutes first adopted by the Legislature in the 19th century. See: L. 1847, ch. 426; L. 1870, ch. 291; Village Law of 1897, ch. 414. In particular, the declaration in Village Law §10-1008 that the term “fire department of a village” refers to any “fire, hose, protective and hook and ladder companies of a village” has been on the books since 1909. Village Law of 1909, §203. Not quite as old, but still comparatively ancient, the provisions of the Volunteer Firefighter’s Benefits Law, which provide benefits for worker’s compensation, death, disability and medical care, were adopted in substantially -9- their present form in 1956. L. 1956, ch 696. These were based upon a series of similar provisions that had previously been located, since 1909, in the General Municipal Law and the Workmen’s Compensation Law. L. 1909, ch. 29; see generally, McKinney’s Cons Laws of New York, Vol 63B, pp. xxix; Potter, “Historical Development of the Volunteer Firefighters’ Benefits Law”. 4 General Municipal Law §205-B, providing volunteer firefighters certain relief from ordinary negligence, was enacted in 1934. Labor Law §27-A, requiring the Commissioner to adopt safety standards for public work, including the work of volunteer firefighters, was adopted in 1980 (L. 1980, ch. 729) but was based upon predecessor legislation in affect since 1937 (L. 1937, ch. 819). GML Article 11-A, concerning service awards in the nature of a pension, which is also of relatively recent vintage, has still been on the books for more than 30 years. L. 1988, ch. 775. As for common law rules that the Commissioner relied upon in holding fire companies to be “functionally equivalent” to a municipal corporation, the principle that a citizen may not sue a private fire company for failure to provide adequate fire protection, as articulated in Helman v. County of Warren, 114 AD2d 573 (3d Dept. 1985), has been As the Legislature explained Section 2 of the Volunteer Firefighter’s Benefit Law: “One of the finest traditions of American community life is the service which people render to others without remuneration. Volunteer firemen have long been in the forefront of this group. In recognition of the unselfish service by these volunteers, government has undertaken to provide for them and their families some measure of protection against loss from death or injuries in the line of duty.” -10- the law in New York since at least the 1945 Decision of the Court of Appeals in Steitz v. City of Beacon, 295 NY 51 (1945), and further is easily traceable to 1928, when the Court of Appeals decided Moch Co. v. Rensselaer Water Co., 247 NY 160 (1928). Additionally, the federal cases, cited for the proposition that “volunteer fire departments are performing in an essential governmental function,” hold only that the provision of fire protection services constitutes “state action” for purposes of liability under the Federal Civil Rights Statute, 42 USC §1983. One more historic recital is important, as related to the prevailing wage provisions of Labor Law §220 itself. That statute was originally formulated in 1870, and at that time it applied only to contracts with the State or a municipal corporation. L. 1870, ch. 385, §2. In 1909 the legislature amended the law to make it apply also to any “commission appointed pursuant to law.” L. 1909, ch. 292. Subsequenbtly, in 1935, the law was again amended to extend to the contracts of public benefit corporations. L. 1935, ch. 684. The Legislature did not further amend the reach of the prevailing wage statute until 2007 (after the present case arose) when it extended the statute’s reach not only to the contracts of the four types of public entities expressly identified but also to the contracts of anyone acting “in place of, on behalf of and for the benefit of such public entity.” L. 2007, ch. 678, supra. -11- The point of these historic recitations is that, since originally formulating the prevailing wage law in 1870, the Legislature has only chosen to enlarge the list of entities whose contracts are governed by the statute on three occasions: Once in 1909, again in 1935, and finally in 2007. Throughout that entire history, volunteer fire corporations remained distinct legal entities -- private not-for-profit corporations -- yet maintained all the “quasi-public” characteristics they have today. Not-for-profit volunteer fire companies are not some new creation dreamed up to help municipal corporations and their contractors avoid their prevailing wage obligations. Instead they are part of an ancient and honored private- public partnership – one which has served New York and its citizens very well for more than 150 years. To the extent that the “hybrid” nature of volunteer fire companies is a “loophole” in the Commissioner’s prevailing wage law enforcement process, it is a very old loophole indeed. So old, in fact, that if it were truly a “problem” it is one that the Legislature has nonetheless had ample time to address. Yet the Legislature has clearly chosen not to do so. “A court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit; and the failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was -12- intended.” McKinney’s Statutes §74; accord, People v. Tychanski, 78 NY2d 909, 911-912 (1991); Pajak v. Pajak, 56 NY2d 394, 397 (1982). “Where a statute describes the particular situations in which it is to apply and no qualifying exception is added, ‘an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded’.” Matter of Alonzo M. v. New York City Dept. of Probation, 72 NY2d 662, 665-666 (1988), citing Patrolmen’s Benevolent Assc. v. City of New York, 41 NY2d 205, 208-209 (1976). Similarly, “where a law expressly describes a particular act, thing, or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded.” McKinney’s Statutes §240; accord: Town of Riverhead v. New York State Bd. of Real Property Services, 5 NY3d, 36, 43 (2005); Walker v. Town of Hempstead, 84 NY2d 360, 367 (1994); Roberts v. Community School Bd. of Community Dist. No. 6, 66 NY2d 652, 654 (1985); Patrolmen’s Benevolent Assn of City of NY v. City of New York, 41 NY2d, supra. Courts may not legislate under the guise of statutory interpretation. Bright Homes v. Wright, 8 NY2d 157, 162 (1960). So much the less may an administrative agency do so. See, Eaton v. New York City Conciliation & Appeals Bd., 56 NY2d 340, 345-346 (1982). Yet in this case that is precisely what the Commissioner of Labor has done, now with the sanction of the Third Department. They have, quite -13- effectively, added not-for-profit fire corporations to the list of entities whose construction contracts are subject to the prevailing wage requirements of Labor Law §220, but without any legislative sanction. Having usurped -- even trumped -- the Legislature’s prerogatives, the Commissioner’s determination in this case should be vacated. POINT II STANDARD SERVICE AGREEMENTS MADE BETWEEN A VILLAGE AND A VOLUNTEER FIRE CORPORATION ARE NOT AGREEMENTS “WHICH MAY INVOLVE THE EMPLOYMENT OF LABORERS, WORKERS OR MECHANICS” UNDER LABOR LAW §220 Although DOL did not raise the issue in its brief below, the Commissioner determined that even if the BVFD was not subject to the Prevailing Wage Law as “functionally equivalent” to a municipality, its periodic service agreements with the Village of Bath were, in any event, agreements “which may involve the employment of laborers, workers or mechanics” that brought the BVFD firehouse construction project within Labor Law §220. What the Commissioner referred to were contracts for emergency services entered into by and between the BVFD and the Village of Bath, pursuant to Village Law §4-412(9). That provision, titled “Fire protection and ambulance service,” empowers a village to contract with the local fire corporation “for the furnishing of fire protection within the village.” As provided in the statute: The contract may also provide for the furnishing of emergency service in case of accidents, calamities or other -14- emergencies in connection with which the services of firemen would be required, as well as in case of alarms of fire. The contract also may provide for the furnishing of general ambulance service subject, however, to the provisions of Section Two Hundred Nine-b of the general municipal law. As specified in subdivision (b) of the statute, the BVFD’s service contracts with the Village of Bath specified “a definite sum to be paid each year for such service.” In this case, as the Commissioner noted, the Village of Bath also contracted with the neighboring towns of Bath and Wheeler to provide fire protective services to those communities through its relationship with the BVFD. Those contracts, too, were made with express statutory authority, pursuant to Town Law §209-d. All the aforementioned service contracts are in the record, and none of them go beyond the authorization for such service contracts established under Village Law §4- 412(9) and General Municipal Law §209-d. Nothing is said in any of these service contracts regarding the provision of funds for the construction of a new firehouse, or for capital projects in general. Moreover, none of these agreements say anything about the “employment of laborers, workers or mechanics.” In their relevant respects, there is nothing in these contracts that differs materially from the similar service agreements in place across New York State between numerous volunteer fire corporations and their local municipalities. -15- Like many aspects of the public-private partnership between municipalities on the one hand and local fire companies on the other, the practice of providing fire protection and other emergency services by and through service agreements is well more than 100 years old. The same Village Law of 1909, ch. 64, that subjected fire companies to municipal control a century ago also anticipated that the costs incurred by volunteer fire companies in providing protective services to the community would be funded substantially through service contracts with those municipalities. And it was true 100 years ago, just as it is today, that in many cases the costs necessarily incurred by fire companies providing protective services included the cost of maintaining a firehouse and fire fighting equipment, to the extent those capital items were not provided by the municipality itself. In this regard, a fire company’s agreement with a local municipality is no different than the “charter agreement” between a charter school and the State or a school district, which may not be deemed to “involve the employment of laborers, workers or mechanics” simply because the charter school requires a building in which to conduct its activities. Matter of New York Charter School Assn. v. Smith, 15 NY3d 403 (2010). In rejecting the DOL’s argument that a charter agreement necessarily contemplates the hiring of workers because the charter school needs a building in which to operate, this Court has said (id., at 409): -16- Labor Law §220(2), by its terms, requires that the contract be particular to the “work contemplated” by the parties. In other words, construction or renovation work must be involved (see e.g., Matter of 60 Mkt. St. Assoc. v. Hartnett, 153 AD2d 205 [3d Dept. 1990] [lease agreement between county and limited partnership providing financing for the construction project]; Matter of National RR Passenger Corp. v. Hartnett, 169 AD2d 127 [3d Dept. 1991] [financing and implementation agreements for the construction]). A charter agreement is not such a document. … Although the charter agreement must contain certain information, such as the location of the proposed charter school (see Education Law §2851[2][j]), it is not a contract for public work involving the hiring of laborers, workers or mechanics within the meaning of section 220. In the New York Charter School Assn. case, supra, it was simply not enough that the charter agreement in issue anticipated that a building would be necessary to house the subject charter school’s activities. As this Court observed (id., at 411): A charter school must secure and maintain, on its own, the facilities where it conducts its educational mission -- whether by raising private funds to build a school, renting existing facilities, arranging to have a donor provide facilities or other appropriate means. When an education corporation enters into a facilities contract for a charter school, it typically does so on its own behalf, in its own name, and at its own risk. The same may be said of the service agreement between a volunteer fire corporation and its local municipality. Of course, the fire corporation must “secure and maintain on its own, the facilities where it conducts its … mission,” -17- whether it does so by raising private funds, renting an existing facility or arranging to have a donor (perhaps the municipality itself) provide the facilities. But that does not convert the periodic service contract to an agreement involving “the employment of laborers, workers or mechanics,” even if the fire company uses some portion of the service fee to pay its occupancy costs. As stressed above, the kinds of service agreements present in this case between the BVFD and the Village of Bath are not anything new. To the contrary, volunteer fire corporations have been substantially reliant upon the revenues of such contracts to pay their bills, including any costs associated with occupying their firehouses, for more than 100 years. The Legislature, which authorized those very service contracts, has never seen fit to make them subject to the prevailing wage requirements of Labor Law §220. Indeed, for many years the DOL apparently agreed with this posture. See the October 5, 1998 Memorandum appended to this brief. Absent language in a service contract that specifically anticipates “the employment of laborers, workers or mechanics” on a construction project, such agreements between fire companies and municipalities do not trigger prevailing wage liability under Labor Law §220, and the contrary determinations below should accordingly be reversed. CONCLUSION Both Labor Law §220 and the statutory law relating to volunteer fire companies have lengthy histories, and both have been modified over the years as the Legislature has deemed necessary . Yet the Legislature has never listed not-for - profit corporations generally, or fire companies in particular, as entities whose contracts are subject to the prevailing wage requirements of Labor Law §220. And except for a brief period between 1992 and 1998, and then very recently, the DOL has itself recognized that volunteer fire companies are not subject to prevailing wage requirements. The determination below ignores all this, and instead attempts to enforce Labor Law §220 in circumstances under which it plainly does not apply. The order below should be reversed and the Commissioner's determination should be vacated . March 14, 2012 -18- Jayme Hurwitz, Esq. Hurwitz Law , P.C . Attorneys for The Firemen's Association of the State of New York 28 East Main Street Suite 600 Rochester, New York 14614 585-750-9888 Addendum ·\ Jerome Tracy Counsel ~,~:i:~U ",.'·,,,,,,,,,_P'" TO: Chet FROM: Jerome SUBJECT: ALS~f~~ Octabel' 5; 98 unteer Corporations We have received a of regarding the cability of Article 8 to, construction eets entered by volunteer departments that are not-for-profit corporations. departments and . e.; the firehouse) and are house or for an to an to 1.992, entered into by so property the property was owned to the not& , the COl1.struction was considered publio Construction projects entered into, .a (i • eO, a have been the of Article 8. 1993. Cou.nsel's noted departments present situation. We: that: these instrumentality fire protect.ion, clearly 1;1 public fore sttbject t.o Art.icle 8. f 1991, we provided an 0pl.n~on GlenS Volunteer Company which had tract for the and mCIa.€~rlu:z:ae:10n - - · - 2 One on Luzerne Road in the Town of Queensbury. We determined that the construction project was' public work subject to the provisions of Article 8. Subsequently, the Department issued subpoenas to the prime contractor and seve~l ,s:ubcontract6rs _for payroll records. In March,. 1-998, we were served witb an Order to Show Cause on a motion to quash these subpoenas in which the . contractors alleged that the Department lacked jm:.isdiction in this matter as the construction project was private work outside the purview of Article 8. On April 16, 1998, the Warren County Supreme Court -ruled that this project is a "privat~,' rather than ,a ·public" work and that, therefore, the Depa;f"tment of Labor has- no jurisdiction pursuant to section 220 of the Labor Law. The Judge reasoned _that the fire company entered into a contrac't for service~ to the Town of Queensbury; it is not- an agency of the Town of Queens- bury, nor has the Town of Queensbury any control over'its opera- tion other than within the context of a contract for fire protection services; there was no financial assistanaegiven to the fire company to construct the alt.eration and addition to its_ b~ilding; the fire company could not take ~dvantage or the Town financing rates, nor was any "public fund" .utilized for the con- struction of the alteration/addition; and the projec~ was fi- nanced with a mortgage obtained by the fire company through a local bank. After the filing of a motion to renew', Judge Dier again ruled that the contractor had entered into a contract with a volunteer fire company Which had no municipal stat~s and that the project inquestiol') was IIprivate," rather than IIpublic. n Based upon these rulings and a review of the statute7 we now adopt the position that. the Department cannot apply Article 8 to construction projects entered into by not-for-profit ~olunteet fire department; corporations so long as they _own the land. and the buildin.gs wher. such work is being performed. ~leas. note that. I if the property is owned by a municipality and leased to the not-for-profit, the construction project continues to constitute a public work project. Also, construction proj,ects entered into by a fire district (Le., a municipal corporation) continue to be subj ect to the provisions of Artiole 8., Please advise your staff of this opinion. JAT:JAC:z-jb cc: Connie Varcasia ~__ ~ll At~orneys _.u.
