Hartnett v. Village of Ballston Spa

• Decision Date: 09 November 1989
• Parties: , 14 O.S.H. Cas. (BNA) 1331, 1990 O.S.H.D. (CCH) P 28,832 In the Matter of Thomas F. HARTNETT, as Commissioner of Labor of the State of New York, Appellant, v. VILLAGE OF BALLSTON SPA, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 902

547 N.Y.S.2d 902

152 A.D.2d 83, 14 O.S.H. Cas. (BNA) 1331,

1990 O.S.H.D. (CCH) P 28,832

In the Matter of Thomas F. HARTNETT, as Commissioner of Labor of the State of New York, Appellant, v. VILLAGE OF BALLSTON SPA, Respondent.

Supreme Court, Appellate Division Third Department.

Nov. 9, 1989.

Robert Abrams, Atty. Gen. (Richard Corenthal, of counsel), New York City, for appellant.

Harry W. Seibert, Jr., Ballston Spa, for respondent.

Lombardi, Reinhard, Walsh & Harrison (Richard P. Walsh, Jr. and Thomas J. Jordan, of counsel), Albany, for New York State Professional Fire Fighters Ass'n, Inc., amicus curiae.

Edward M. Cooke, Monticello, for Firemen's Ass'n of the State of N.Y., amicus curiae.

Before KANE, J.P. and MIKOLL, YESAWICH, MERCURE and HARVEY, JJ.

MERCURE, Justice.

The facts are not in dispute. Respondent maintains an all-volunteer fire department which is composed of two separate fire companies, Eagle Matt Lee Fire Company and the Union Fire Company. In 1986, an inspector from the Department of Labor conducted an inspection of respondent's fire department. Petitioner issued a notice of violation and order to comply which listed six violations of the Public Employee Safety and Health Act (hereinafter PESH Act) (see, Labor Law § 27-a). Follow-up investigations were conducted which revealed that the Union Fire Company had corrected only two of the six violations. Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to enforce its order to comply. Supreme Court, ruling that volunteer firefighters do not receive compensation in exchange for work and thus are not employees under the PESH Act, dismissed the petition 140 Misc.2d 1030, 532 N.Y.S.2d 340. ¹ Petitioner now appeals.

We are faced with the narrow question of whether volunteer firefighters are included within the PESH Act's definition of "employees" as "persons permitted to work by an employer" (Labor Law § 27-a[1][b]. Petitioner argues that this is a broad definition and that, contrary to respondent's assertion, an exchange of services for wages is not required. Petitioner contends that the intent of the act was to protect all employees who were not covered by the Federal Occupational Safety and Health Act (hereinafter OSHA) (see, 29 U.S.C. § 651 et seq.) and that volunteer firefighters were not excepted from coverage of the PESH Act. We agree and, accordingly, reverse that part of the judgment which dismissed the petition.

It is well settled that the construction given a statute by the agency responsible for its administration, if not irrational or unreasonable, should be upheld (see, Matter of Howard v. Wyman, 28 N.Y.2d 434, 438, 322 N.Y.S.2d 683, 271 N.E.2d 528). As the Court of Appeals held in Matter of Mounting & Finishing Co. v. McGoldrick, 294 N.Y. 104, 108, 60 N.E.2d 825, "statutory construction is the function of the courts 'but where the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court's function is limited' (Board v. Hearst Publications, 322 U.S. 111, 131 [64 S.Ct. 851, 860-61, 88 L.Ed. 1170]". When it is determined that there is a rational basis for the administrative agency's interpretation, the judicial function is exhausted (see, Matter of Howard v. Wyman, supra, 28 N.Y.2d at 438, 322 N.Y.S.2d 683, 271 N.E.2d 528). Here, the Department of Labor, the agency authorized to administer the PESH Act, has interpreted the act to cover volunteer firefighters. In light of the PESH Act's broad definition of "employees" and the fact that volunteer firefighters are defined as employees under other State laws (see, e.g., Volunteer Firefighters' Benefit Law § 2), we conclude that the Department's interpretation is reasonable and consistent with the remedial purpose of the PESH Act to assure safe and healthful workplaces for the State's public employees.

If we considered this a matter of pure statutory construction, dependent only on accurate apprehension of legislative intent, and did not rely on the special expertise of the agency (see, Matter of Yong-Myun Rho v. Ambach, 74 N.Y.2d 318, 546 N.Y.S.2d 1005, 546 N.E.2d 188; Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459, 426 N.Y.S.2d 454, 403 N.E.2d 159), the result would be no different since our interpretation of the PESH Act is consistent with that of petitioner. OSHA was enacted to assure safe and healthful working conditions for private-sector employees (see, 29 U.S.C. § 651[b]; § 652[5]. The PESH Act implemented the State's plan covering public employees and adopted all OSHA standards (Labor Law § 27-a[4], including the Federal fire brigade standard which requires, inter alia, that firefighters be provided with annual training, equipment in proper working condition and proper protective equipment, including positive pressure breathing apparatus (29 CFR 1910.156). We reject respondent's argument that if the Legislature intended to cover volunteer firefighters under the PESH Act, it would have expressly done so. This argument is contrary to the rule of statutory construction that "[t]he fact that an act contains no exception or saving clause creates a strong presumption that the Legislature intended none" (McKinney's Cons.Laws of N.Y., Book 1, Statutes §...