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`NYSCEF DOC. NO. 51
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`INDEX NO. 002431/2023
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`RECEIVED NYSCEF: 03/29/2024
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`STATE OF NEW YORK
`SUPREME COURT
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`In the Matter of the application of
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` COUNTY OF ONONDAGA
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`DONNA CHITTENDEN, individually, and WAYNE SPENCE, as the President of The New
`York State Public Employees Federation, AFL-CIO,
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`Petitioners,
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`For an Order Pursuant to CPLR Article 75,
`Vacating an Arbitration Award,
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`- against -
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`STATE UNIVERSITY OF NEW YORK; JOHN B. KING, JR. as Chancellor of the STATE
`UNIVERSITY OF NEW YORK; the BOARD OF TRUSTEES of the STATE UNIVERSITY OF
`NEW YORK; DR. MERRYL H. TISCH as chair of the BOARD OF TRUSTEES of the STATE
`UNIVERSITY OF NEW YORK; STATE UNIVERSITY OF NEW YORK UPSTATE MEDICAL
`UNIVERSITY; and MANTOSH DEWAN as President of STATE UNIVERSITY OF NEW YORK
`UPSTATE MEDICAL UNIVERSITY,
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`Respondents.
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`MEMORANDUM ON PUBLIC POLICY
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`Index No. 002431/2023
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`EDWARD J. GREENE, JR., ESQ.
`Attorney for Petitioners
`1168-70 Troy-Schenectady Road
`P. O. Box 12414
`Albany, New York 12212-2414
`(518) 785-1900, Extension 241
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`JENIFER M. WHARTON, ESQ.
`Of Counsel
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`DATED: March 29, 2024
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`FILED: ONONDAGA COUNTY CLERK 03/29/2024 03:17 PM
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`TABLE OF CONTENTS
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`PRELIMINARY STATEMENT .................................................................................................... 1
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`STATEMENT OF FACTS ............................................................................................................. 2
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`POINT ONE.................................................................................................................................... 4
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`PUBLIC POLICY IN NYS IS THAT THE LEGISLATIVE BRANCH, NOT THE
`EXECUTIVE BRANCH, PROMULGATES THE LAW. ......................................................... 4
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`CONCLUSION ............................................................................................................................. 11
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`FILED: ONONDAGA COUNTY CLERK 03/29/2024 03:17 PM
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`COUNTY OF ONONDAGA
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`Petitioners,
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`STA TE OF NEW YORK
`SUPREME COURT
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`In the Matter of the application of
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`individual, and WAYNE
`DONNA CHITTENDEN,
`SPENCE, as the President of The New York State Public
`Employees Federation, AFL-CIO,
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`
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`For an Order Pursuant to CPLR Article 75,
`Vacating an Arbitration Award,
`
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`STATE UNIVERSITY OF NEW YORK; JOHN B. KING,
`JR. as Chancellor of the STATE UNIVERSITY OF NEW
`YORK; the BOARD OF TRUSTEES of the STATE
`UNIVERSITY OF NEW YORK; DR. MERRYL H. TISCH
`as chair of the BOARD OF TRUSTEES of the STATE
`UNIVERSITY OF NEW YORK; STATE UNIVERSITY
`OF NEW YORK UPSTATE MEDICAL UNIVERSITY;
`and MANTOSH DEWAN as President of STATE
`UNIVERSITY OF NEW YORK UPSTATE MEDICAL
`UNIVERSITY,
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`Respondents.
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` -
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` against -
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`MEMORANDUM ON
`PUBLIC POLICY
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`Index No. 002431/2023
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`))))))
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`PRELIMINARY STATEMENT
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`This proceeding is brought pursuant to Civil Practice Law and Rules (“CPLR”) Article 75
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`in the nature of an application to vacate an arbitration award issued by Arbitrator Joel M. Douglas
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`(“Douglas”) on December 20, 2022 (“Award”) because it violates the public policy of the State of
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`New York and because the Award is totally irrational. This brief identifies the public policy
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`considerations invoked in this proceeding and otherwise supplements Petitioner’s previous
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`Memorandum of Law and Reply.
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`2
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`The Constitution of the United States codifies the belief that a non-tyrannical government
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`functions best under the separation of powers doctrine; that branches of the government are each
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`assigned authority to either legislate, execute or judicially review matters of law, and that each branch
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`should only operate within their designated powers lest any branch over-exercise their authority and
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`result in a loss of a state of equilibrium in governance. James Madison, The Federalist, No. 47 and
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`48 in The Federalist Papers, (1788). https://guides.loc.gov/federalist-papers/full-text. The State of
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`New York has adopted the separation of powers doctrine within its distribution of power allocated
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`among the legislative branch (Article III), the executive branch, (Article IV) and the Judiciary (Article
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`VI).
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`https://www.nysenate.gov/sites/default/files/admin/structure/media/manage/filefile/a/2024-
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`02/586_ny_state_constitution_-_generic_version2.pdf
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` In this matter, the Court is presented with an executive-branch vaccine mandate that was
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`never promulgated by the legislative branch; rather it was an exercise of unprecedented emergency
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`powers that the executive branch exercised during the COVID-19 pandemic, without legislative
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`approval and amidst shifting and evolving science. Only with the fullness of time, has judicial review
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`actually examined whether or not those exercises of power were valid, and the Supreme Court of New
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`York has answered strongly in the negative. Ms. Chittenden is a victim of that invalid executive
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`excess and her remedy lies within this proceeding.
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`STATEMENT OF FACTS
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`The facts are more fully set forth in the Petitioner’s Petition. To summarize, Petitioner Donna
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`Chittenden is a member of PEF, and beneficiary of a Collective Bargaining Agreement (“CBA)
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`existing between the State of New York and members of the PS &T Unit. She worked as a Nurse
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`2 with Respondent State University of New York – Upstate Medical University (“Upstate”). During
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`her time there, she had a spotless disciplinary history.
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`3
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`On or about November 24, 2021, Upstate issued a Notice of Discipline (“NOD”) to Ms.
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`Chittenden seeking Ms. Chittenden’s dismissal from service and the loss of any accrued annual
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`leave, alleging that Ms. Chittenden was noncompliant with State Department of Health Regulation
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`10 NYCRR Section 2.61 (the “Regulation”), as she did not receive the COVID-19 vaccine. Each
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`of the five charges in the NOD alleged that Ms. Chittenden was required by the Regulation to be
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`vaccinated. Each and every charge in the NOD was expressly based on non-compliance with the
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`DOH regulation; without the regulation, there would have been no charges.
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`Pursuant to the CBA, the AAA designated Arbitrator Joel M. Douglas (“Douglas”), from
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`the panel of arbitrators agreed upon by the State and PEF, to hear the case and render a final and
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`binding award determining whether she was guilty of the charges, and if so, what the appropriate
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`remedy would be, in addition to determining the appropriateness of Ms. Chittenden’s lengthy
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`suspension without pay. An arbitration hearing before Arbitrator Douglas was held on March 2,
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`2022. (See December 20, 2022, final and binding Opinion and Award) Ms. Chittenden was
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`ultimately found guilty of all charges, and Arbitrator Douglas then deliberated over a fair and
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`appropriate punishment. (Id.) Arbitrator Douglas held that the penalty of termination sought by
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`Upstate was appropriate. (Id.)
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`In January of 2023, the Supreme Court, Onondaga County, concluded that the Regulation
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`promulgated by the Department of health was “beyond the scope of Respondents’ authority ...”
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`Medical Professionals for Informed Consent, et al. v. Bassett, et al., Index No. 8575-2022 (State
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`Supreme Court, Onondaga Co. Jan. 13, 2023). The court expressly ordered “that the relief sought
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`by the Petition seeking a declaration that the Mandate, 10 NYCRR section 2.61, as being beyond
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`the scope of Respondents’ authority and is therefore null, void, and of no effect, so that the
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`Respondents, their agents, officers and employees are prohibited from implementing or enforcing
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`4
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`the Mandate is GRANTED ...” Id. Thereafter, an appeal was filed and a stay was obtained.
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` In May of 2023, the Department of Health announced it was no longer enforcing the
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`mandate
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`and
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`indicated
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`that
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`steps would be
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`taken
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`to
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`repeal
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`the mandate.
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`https://www.health.ny.gov/press/releases/2023/2023-05-24. In July of 2023, Judge Neri again ruled in
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`a separate case that the vaccine mandate was illegal, void against public policy and unenforceable.
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`Wayne Spence and Michelle Laframboise v. State University of New York, et al, Sup. Ct. Onondaga
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`County, July 18, 2023, (Index No. 00425-2023). In August of 2023, another Supreme Court judge
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`ruled that the mandate was illegal, void ab initio and against public policy. Wendy Cooper and
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`Wayne Spence v. Roswell Park Comprehensive Cancer Center et al, Sup. Ct. Erie County, August
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`17, 2023 (Index No. 805274-2023) (Note: there is an automatic stay in this matter). In October,
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`2023, the Appellate Division dismissed the appeal in Medical Professionals as moot and did not
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`reverse Judge Neri’s order or findings; however ironically in October of 2023, the Regulation was
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`officially repealed. Removal of the Covid-19 Vaccine Requirement for Personnel in Covered Entities,
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`New York State Register, October 4, 2023, Vol. XLV Issue 40.
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`The Regulation in the present case was implemented by August, 2021 and within two years,
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`would be struck down three times, abandoned, and then repealed.
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`POINT ONE
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`PUBLIC POLICY IN NYS IS THAT THE LEGISLATIVE
`BRANCH,
`NOT
`THE
`EXECUTIVE
`BRANCH,
`PROMULGATES THE LAW.
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`Judge Neri elucidated that the public policy of New York State, as embodied in Public
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`Health Law Section 206 explicitly forbids the Department of Health and its commissioner from
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`mandating vaccinations to adults and children except as provided by Sections 2164 and 2165 of
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`the Public Health Law. (Id.) He observed that nothing in Sections 2164, or 2165 of the Public
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`5
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`Health Law gave the Department of Health the authority to mandate vaccinations to anyone outside
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`of the context of; (1) attending public, private or parochial school in New York State grades 7-12
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`and (2) post-secondary education. Judge Neri identified a violation of the separation of powers,
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`considered the separation of power doctrine and issued a decision that protects the separation of
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`powers. The Regulation was an excess of executive power that for the betterment of society,
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`needed to be curtailed. This finding passed on the same excessive, illegal mandate that was the
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`sole basis for Petitioner Chittenden to face discipline and ultimately receive the industrial version
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`of a death sentence; she was terminated, thereafter losing her rights to compensation, benefits, and
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`seniority that she had earned.
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`The vaccine mandate was borne of an act of the Commissioner of Health for New York
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`State promulgating its existence under the Public Health Law. However, pursuant to the Public
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`Health Law, the Commissioner of Health for New York State has limits on their power; they can
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`recommend vaccines and they can recommend the implementation of adult-use mandates, but they
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`have no grant of power to mandate any new ones and COVID-19 was a new adult-use vaccine.
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`Indeed, the power to decide which vaccines to mandate, and what exemptions or other governing
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`terms apply, is reserved repeatedly and solely to the state Legislature, which in turn, serves as the
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`collective voice of the voting public. See, e.g., Public Health Law §§ 206(1)(l), 613, 2164, 216. In
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`fact, the Legislature stressed that “[n]othing in this subdivision shall authorize mandatory
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`immunization of adults or children except as provided in sections [2164] and [2165] of this chapter.”
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`However, this clear expression of legislative intent was disregarded and resulted in the creation of
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`a new mandatory adult-use vaccine for COVID-19, enacted executively, not legislatively. At no
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`time was the vaccine ever a product of the Legislative branch, not when it was implemented, nor
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`was it ever adopted by the legislative branch before it was abandoned in May of 2023, and later
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`repealed altogether in October of 2023.
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`That the Commissioner of Health for New York State does not have the authority to impose
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`an adult-use mandatory vaccine is not itself a novel proposition. In 2018 our Court of Appeals
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`issued a decision holding that the New York City Department of Health and Mental Hygiene
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`had been granted the power, by the New York State legislature, to oversee voluntary adult
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`immunization programs, including the mandatory vaccination of children. In so finding, however,
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`the Court of Appeals rejected the petitioners’ assertions that the Public Health Law prohibited the
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`City DOH from mandating vaccines. The Court noted that Public Health Law sections 206 and
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`613 only prohibited New York State DOH from mandating vaccines, “except as provided in
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`sections 2164 and 2165 of the Public Health Law. The Court expressly noted that the legislative
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`grant of authority to the New York City DOH did not extend a grant to the New York State
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`Department of Health to adopt unlegislated mandatory adult immunizations. Garcia v. New York
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`City Dep 't of Health & Mental Hygiene, 31 N.Y. 3d 601, 620 (2018) (citing Letter from Richard
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`N. Gottfried, supra).
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`Our New York State Constitution advances and protects the doctrine of Separation of
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`Powers: “The concept of the separation of powers is the bedrock of the system of government
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`adopted by this State in establishing three coordinate and coequal branches of government, each
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`charged with performing particular functions…This principle, implied by the separate grants of
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`power to each of the coordinate branches of government, requires that the Legislature make the
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`critical policy decisions, while the executive branch’s responsibility is to implement those
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`policies.” Garcia v. New York City Dep’t of Health & Mental Hygiene, 31 N.Y. 3d 601, 608
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`(2018). While Garcia did not address the COVID-19 vaccine mandate, Garcia pre-dated the
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`pandemic and set expectations and boundaries for the implantation of mandatory adult-use vaccine
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`mandates; expectations and boundaries that were ignored, disregarded, and squashed during a global
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`pandemic. Neither our federal nor our state constitution has been expanded to inure unusual or new
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`powers to the executive branch even in circumstances like a global pandemic.
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`It has been suggested that the pandemic was an unusual time meriting unusual measures:
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`a global health crisis that impacted all facets of life including interruptions to our most precious of
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`freedoms, including the right to travel, to shop, to associate and in some cases, to work. In those
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`months of uncertainty, actions were taken that heretofore had not been implemented: people were
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`ordered to stay home; shops and businesses closed; travel was restricted for months; and even our
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`personal home activities were restricted to avoid “mass-spreading” events. Masks were imposed
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`as a condition to be around others; and eventually there emerged a vaccine for adult use. In fairly
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`quick order, and without benefit of full debate, legislative vetting and analysis, and without the
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`power of the voice of the people (who speak through our Legislative branch) on whether they
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`would or would not agree to an adult-use vaccine, the New York State Department of Health
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`surged and adopted and began enforcing an adult use vaccine mandate. In the zeal to inoculate
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`away the disease, legislative processes were not sought; the separation of powers was not observed,
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`debate and free-speech on the subject matter were avoided and one was left with the impression
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`that the mandate was quickly and secretly created in the closed-door meetings for which no
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`invitation to the public was offered.
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`Unusual times however do not excuse or create legitimacy for government actions when
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`viewed with the fullness of time. In addition, what appears on its face to be a safety-promoting
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`exercise by the Department of Health, no matter how well-intentioned may none-the-less be
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`invalid if it involves overstepping on legislative authority to promulgate health and safety laws
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`and regulations. Even if one could argue these were unusual times implicating public safety thus
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`8
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`meriting actions by our executive branch, the existence of those unusual events, and even a public
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`safety concern, does not supplant the need for the executive branch to heed its own power
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`limitations. A conceptual framework was established in Boreali v. Axelrod, 71 N.Y.2d 1 (1987)
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`for the court to consider whether such unusual or extraordinary circumstances can legitimize the
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`executive branch engaging in law-making whereby the court established four prongs to consider.
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`Id. In Boreali, the action was increasing the areas and breadth of smoking prohibitions to include
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`schools, hospitals, and restaurants, though exceptions were made for smaller restaurants. Id.
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`Challenge was made to these prohibitions, promulgated by the executive branch, and in striking
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`down those prohibitions, the Court of Appeals articulated that the factors to consider in
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`adjudicating its lawfulness consist of a) Did a health-based regulation exempt certain entities from
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`complying based on economic and not health-based reasons? b) Was the action taken with
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`legislative guidance? c) Did the legislature previously fail to act on the subject matter, though it
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`attempted to? And d) Did the action arise from some special knowledge that was possessed solely
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`by the executive agency? Id. Ultimately the Court of Appeals struck down certain second-hand
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`smoke prohibitions enacted by the executive branch which sought to enhance the areas where
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`smoking would be forbidden to include schools and hospital, and which had imposed an obligation
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`on certain sized restaurants to establish a non-smoking areas. Id. Notwithstanding the significant
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`public appeal to restricting smoking and enhancing health, the Boreali court noted that “difficult
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`social problems should be legislated.” Id. Here, we are presented with an equally appealing-
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`sounding solution to the global pandemic; require all adults to be vaccinated. Yet, in enacting the
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`Regulation, the executive branch exceeded its authority by trespassing on a “difficult social issue.”
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`COVID-19 vaccinations most certainly presented difficult social issues including arguments
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`concerning bodily integrity, religious and spiritual conflicts as well as the newness, experimental
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`9
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`nature of the vaccine at the earliest stages of enforcement.
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`Judge Neri and his progeny did not even have to consider the four factors because “this is
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`not a case where DOH acted in some gray area,” but he further stated “[e]ven so, the Boreali factors
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`do not lay in favor of Respondents.” Likewise in this matter, we do not even have to get to the
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`Boreali factors, but even if we did, public policy supports that the executive exercise of
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`implementing the Regulation was outside of their authority.
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`First, there was no legislative grant of authority nor any legislative guidance. Second, there
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`was no previous failed attempt by the legislature to act. Third, the action did not arise because the
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`Department of Health had specialized knowledge. The Department of Health had the same access
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`to health information than any member of the Legislature may have had including access to CDC
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`statistics and notices, press releases and medical journals. In addition, it is worth noting that
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`implicated with a mandatory vaccine requirement are liberty, religious and spiritual considerations,
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`none of which are areas of specialized knowledge possessed by the Department of Health. Fourth,
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`the action of the executive branch did treat people differently. One blatant example is the manner
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`in which individuals who worked at a hospital were considered “covered parties” who had to
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`comply, but random visitors or non-employee contractors would not be subject to the same
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`requirements yet were free to wander in the halls of a hospital unvaccinated.
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`Ultimately, we circle back to the Separation of Powers doctrine, a scheme of government
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`sought to promote democracy and the power of the collective people to speak and be heard through
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`the legislative branch and to have the right to have debate, argument and negotiation over a
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`regulation that impacted our daily, commonplace activities in a large fashion. A mandated vaccine
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`is a step away from a mandated procedure and a step away from government-controlled health
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`decisions; an area that many view as dangerous, tyrannical, and antithetical to the protections our
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`Founding Fathers sought to preserve. The Court of Appeals has held that “[a]n agency that adopts
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`a regulation…that interferes with commonplace daily activities preferred by large numbers of
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`people must necessarily wrestle with complex value judgments concerning personal autonomy and
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`economics. That is policy-making, not rule-making.” Matter of Statewide Coalition, 23 N.Y.3d
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`at 699. Here, where tens of thousands of healthcare workers were forced out of their professions
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`because the Mandate tramples their right to religious accommodation, Appellants were clearly
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`engaged in policymaking, not rule-making.
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`11
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`CONCLUSION
`In this case, the Court is presented with a public policy consideration which in turn
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`undermines the integrity of the Arbitrator’s Decision. The strong and compelling doctrine of
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`Separation of Powers and the clear trampling of that doctrine in enacting the Regulation, which in
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`turn served as the sole foundation for Ms. Chittenden’s alleged misconduct, insubordination, and
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`dereliction of duty, cries out for this Court to redress. The Regulation was a short term (less than
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`two years) product of the Department of Health, taken at a time when the public was vulnerable to
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`and ultimately subjected to increasing limitations on their liberty based on a public health crisis.
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`Notwithstanding that crisis, our federal and state constitutions do no carve out exceptions that
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`would support the exercise of executive law-making under the guise of a public health crisis. There
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`was no unanimity about the need for the mandate, the mandate did not withstand judicial scrutiny,
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`and was ultimately abandoned, and then repealed. It is respectfully submitted that public policy
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`supports Ms. Chittenden’s reinstatement; to hold otherwise is to reinforce that temporary,
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`extraordinary actions, that never were valid to begin with, can undo the years of sacrifice and effort
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`Ms. Chittenden made as a nurse.
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`DATED: March 29, 2024
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`Albany, New York
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`Respectfully submitted,
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`EDWARD J. GREENE, JR., ESQ.
`Attorney for Petitioners
`Office and P.O. Address
`1168-70 Troy-Schenectady Road
`P.O. Box 12414
`Albany, New York 12212-2414
`(518) 785-1900, Extension 241
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`By: Jenifer M. Wharton
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`JENIFER M. WHARTON, ESQ.
`
`Of Counsel
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`13 of 13
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