Empire State Chapter of Associated Builders and Contractors, Inc. v. Smith

• Decision Date: 19 November 2010
• Parties: EMPIRE STATE CHAPTER OF ASSOCIATED BUILDERS AND CONTRACTORS, INC., et al., Plaintiffs, v. M. Patricia SMITH, in her official capacity as Commissioner, New York State Department of Labor, and Thomas P. Dinapoli in his official capacity as Comptroller, State of New York, Defendants.
• Court: New York Supreme Court

915 N.Y.S.2d 903

30 Misc.3d 455

EMPIRE STATE CHAPTER OF ASSOCIATED BUILDERS AND CONTRACTORS, INC., et al., Plaintiffs,

v.M. Patricia SMITH, in her official capacity as Commissioner, New York State Department of Labor, and Thomas P. Dinapoli in his official capacity as Comptroller, State of New York, Defendants.

Supreme Court, Erie County, New York.

Nov. 19, 2010.

Michael Powers for plaintiffs.

Andrew M. Cuomo, Attorney General (Michael Zimmerman of counsel), for defendants.

JOSEPH R. GLOWNIA, J.

In this action, Plaintiffs challenge the 2008 Amendments to certain statutes, collectively referred to as the "Wicks Law". In general terms, these statutes require that public entities undertaking public work projects prepare separate bid specifications and award separate contracts for four subdivisions of work if the projects cost over a threshold amount.

The Amendments at issue increased the previous $50,000 threshold to $500,000 in most of the State's counties. They raised the threshold to $1.5 million in the three counties of Nassau, Suffolk and Westchester, and to $3 million in the five counties of New York City. These Amendments also specified that, regardless of the project amount, subdivided awards were not required where a "project labor agreement" (PLA) existed, that is, a pre-negotiated collective bargaining agreement which all bidders for contracts were required to abide by. The Amendments also require that contractors dealing with projects over the above dollar thresholds and where a PLA was in place participate in apprenticeship programs approved by the New York State Department of Labor (DOL) for at least three years, have graduated at least one apprentice over that period of time, have at least one apprentice currently enrolled, and have made significant efforts to attract and retain minority apprentices as determined by DOL established affirmative action goals.

Plaintiffs' Complaint challenges the 2008 Amendments on numerous grounds, but does not challenge the Wicks Law itself.

The two main purported claims are that the different increased threshold amounts for eight counties under the 2008 Amendments make these Amendments a "special law" which under the New York State Constitution requires a "Home Rule" request from a local government, and that the apprenticeship provision discriminates against out of state, minority-owned, women-owned, non union and other contractors.

A brief review of the history of the Wicks Law statutes themselves (found in General Municipal Law §§ 101 and 103, State Finance Law §§ 135 and 144, Labor Law § 222(2)(e), and Public Housing Law § 151(a)) reveals that over the years since1912 an ever increasing threshold amount to both the subdivided and general competitive bidding categories has occurred.

In the Motion before this Court, the co-Defendants move to dismiss 21 causes of action asserted in a common Complaint by no less than nine Plaintiffs.

The first cause of action asserted in the Complaint alleges that the 2008 Amendments "were enacted unlawfully ....and are unconstitutional because their differential thresholds were not approved under the Home Rule Provision of the New York State Constitution."

The Home Rule Provision itself is found in Article 9 § 2(b) of the Constitution. It requires the State Legislature "to act in relation to the property, affairs or government of any local government only by general law, or by special law" enacted at the local government's request. Because no such request was submitted by any local government here, Plaintiffs contend that the broad application of the Home Rule Provision invalidates the Amendments at hand.

In response to this Home Rule claim of invalidity, Defendants argue, first, that Plaintiffs have no standing to complain and second, that the 2008 Amendments were enacted in furtherance of and bear a reasonable relationship to a substantial State-wide concern...