Judge reinstates 4 NY vol. FFs who had been ousted for not responding to enough calls

The judge said the Orchard Park Fire District "disparately applied the rules" related to its 10% threshold for responding to fire calls

Patrick Lakamp
The Buffalo News, N.Y.

BUFFALO, N.Y. — A State Supreme Court justice today reinstated four volunteer firefighters who had been ousted from the Orchard Park Fire Co. for not responding to enough fire calls.

Justice Frank Sedita III found that the Orchard Park Fire District did not follow its rules in removing them. He also said the district "disparately applied the rules" because at least one other volunteer who did not make the district's 10% threshold for responding to fire calls was not removed.

"You guys got some rules, don't you?" Sedita asked the fire district's lawyer in a virtual court hearing before citing how the district failed to follow them.

Violet Newell, one of the four volunteers, said in a court affidavit that her ouster was in retaliation for her announcing her candidacy on Facebook for a seat on the district's Board of Fire Commissioners. She lost by 16 votes when she ran for a seat on the board in 2017.

Sedita said he did not need to address her constitutional claim related to that issue since he found the district didn't follow the rules in removing her.

The Board of Fire Commissioners removed them as firefighters from the Orchard Park Fire Company, effective Sept. 1, even though the fire company had encouraged them to stay on as members and to try to respond to more calls.

Michael F. Chelus, who represents the Orchard Park Fire District and the Board of Fire Commissioners, told the judge the district adhered to a simple and straightforward test in deciding whether to remove the four, no matter their experience.

"You either make the calls and make the training, or you don't," Chelus said. "If a person doesn't show up, that experience doesn't mean anything."

The four did not meet the 10% requirement, he said, and the district exercised its power to remove them, he said.

"There is no inherent right to be a firefighter," Chelus said.

The four sued the fire district in State Supreme Court to be reinstated. Sedita's ruling covers Newell, an employee of the Erie County Department of Social Services and also a real estate agent; Russell Perez, a corrections officer at Wende Correctional Facility in Alden; Jeffrey Szalay, a Buffalo Fire Department firefighter with 29 years of fire service; and Juliet Marczak, a nurse practitioner at Erie County Medical Center.

Newell disputed the calculation that she didn't meet the 10% threshold, and the others offered what they consider reasonable explanations – a demanding work schedule, starting a new family and a broken wrist among them – that they expected the fire district board to take into account.

Attorney Craig R. Bucki, who represents the four, told the court that the case boiled down to following the rules.

"This is a case about following the rules," Bucki said. "The rules need to be followed. They weren't followed."

Three of the four appeared fewer than two times before their fire company's hardship committee to explain their response rates, and none of the four was ever placed on probation, steps that the district's rules and bylaws require before removal. Also, there were no actions to credibly evaluate the likelihood that the four would respond to at least 10% of the company's fire calls in 2020, Bucki said.

What's more, their terminations were arbitrary and capricious because eight other individuals lacked good standing with the district in two consecutive years or more than three times since 2014, and district rules categorically mandate them to be immediately removed from the district, he said.

"Eight delinquent firefighters get to stay, yet these four are cherry picked for removal," Bucki told the judge at the hearing.

Bucki said his clients were pleased with the ruling.

"All of them are looking forward to being reinstated. That's what they asked for in their petition," Bucki said.

The district is governed by a five-member Board of Fire Commissioners elected by Orchard Park voters. The district issues bonds and levies taxes on property owners in the Town of Orchard Park for the operations of three volunteer fire companies: the Orchard Park Fire Company, Windom Volunteer Fire Co. and Hillcrest Volunteer Fire Company.


©2020 The Buffalo News (Buffalo, N.Y.)

McClatchy-Tribune News Service

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