Suit Seeks to Stop Lockport Fire From Resuming EMS Transport

The City of Lockport, New York has been sued by a group of four people seeking to block the resumption of ambulance transport service by the Lockport Fire Department. The suit was brought by a current alderman, Kathryn Fogle, two former aldermen, Gina Pasceri and Joseph Kibler, and a city resident Blake Lemoi.

The suit was filed in Supreme Court for Niagara County as an Article 78 action under New York law. The complaint alleges violations of the state’s open meetings law as well as ethical violations by certain elected officials during the voting to reinstate the ambulances.

Quoting from the complaint:

  • The Mayor held an illegal executive session meeting on December 19, 2022, under the guise of a “personnel meeting” to vote on a highly controversial matter that would have a profound financial impact on the city for future generations.
  • On December 19, 2022, the Common Council and Mayor illegally voted on a Resolution 121922.2 regarding the resumption of ambulance service by the City of Lockport Fire Department.
  • Upon information and belief, the vote on the Resolution No. 121922.2 was the product of a Personnel Meeting improperly held in executive session for several hours.
  • The Fire Union President had no business attending a confidential executive session.
  • Upon information and belief, at the conclusion of the December 19, 2022, Personnel Meeting that was held in executive session Mayor Michelle Roman, Council President Paul Beakman and Corporation Counsel immediately convened a Common Council meeting to vote on Resolution 121922.2.
  • The resolution voted on established that the Lockport Fire Department will take steps to resume ambulance services, make operational two ambulances in its possession; and that the City of Lockport will apply for a Certificate of Need for Ambulance Service and negotiate for reimbursement from insurance companies.
  • Upon information and belief, the vote on Resolution No. 121922.2 was as follows: Alderman Paul Beakman, Mark DeVine and Luke Cantor voted in favor. Alderpersons Christin Barnard and Gina Pasceri vote against the resolution and Alderperson Kathryn Fogle abstained. The Mayor stated that she was going to break the tie and voted in favor of the resolution.
  • Upon information and belief, the New York Conference of Mayors Handbook states that abstentions and absences are neither positive nor negative votes.
  • Therefore, no tie existed pursuant to City of Lockport Charter §53 for the Mayor to cast a tie breaking vote.
  • Upon information and belief, §18-7 of the City of Lockport Charter prohibits a municipal officer from participating in any decision or taking any action with respect to any matter requiring the exercise of discretion including discussing the matter and voting on it when, he knows or has reason to know that the action could confer a direct or indirect financial or material benefit on a relative.
  • Upon information and belief, Alderman Mark Devine is a duly elected municipal officer and his son is a member of the City of Lockport Fire Department that would benefit both financially and materially with the adoption of Resolution 121922.2.

The suit seeks to reverse the decisionmaking on December 19, 2022, and nullify the authorization for the fire department to resume EMS transports.

There are several hotbeds of fire service litigation around the country, and Lockport, New York is one of them. I would love to better understand what causes folks in places like Lockport to have to resort to litigation to resolve their differences. We will probably never know who is to blame for this, but there are two points left unanswered in my mind by this suit:

  1. If there was no tie in the vote (ie the Plaintiffs’ suggest the vote was 3 to 2 making the mayor’s vote was null and void), but one of the yes votes should be nullified due to a conflict of interest, doesn’t that mean there was in fact a tie? And if there was in fact a tie due to the conflict of interest of one of the aldermen, then didn’t the Mayor’s vote actually break the tie?
  2. How does providing ambulance service for which fees are charged become a benefit to an individual firefighter? If that were the case, requiring police officers to write traffic tickets for newly enacted offenses would benefit individual police officers; increasing the late fee on overdue books at the library would benefit librarians; and adding a new sport at the high school that charges for admission for games would somehow benefit teachers.

At any rate, here is the complaint:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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