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June 7, 1978

NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC., et al., and Patricia Parisi et al., Plaintiffs,
Hugh L. CAREY, Individually and as Governor of the State of New York, et al.,Defendants, United States of America, Amicus Curiae. Thomas A. COUGHLIN III, Individually and as Deputy Commissioner of the New iiiiiiiiYorkState Department of Mental Hygiene, Petitioner, v. The CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., and Ronnie A. Smith, appearing on behalf of himself and others similarly situated, Respondents

The opinion of the court was delivered by: BARTELS

This is an ancillary proceeding arising out of an original suit under 42 U.S.C. § 1983 by mentally retarded residents of Willowbrook Developmental Center *fn1" against officials of the State of New York and the Department of Mental Hygiene (Department). *fn2" The ancillary complaint was filed by officials of the Department against the Civil Service Employees Association, Inc. (union), which is not a party to the main action, for a declaratory judgment that certain actions taken by the Department to comply with a decree entered in the original suit do not violate the state civil service law or the union's contractual rights. The Department has moved for summary judgment on its complaint, and the union has moved for its dismissal.


 The underlying civil rights action was brought in 1972, and the major points of contention in the case were settled in April 1975 with the entry of a Consent Judgment providing for significant and detailed relief to the class. In November 1976 the plaintiffs made a motion to have the defendants (referred to herein collectively as the Department) held in contempt for failure to comply with the Consent Judgment, which was settled, however, by the entry of a Stipulation and Order on Consent on March 10, 1977.

 The genesis of the present controversy lies in paragraph 3 of the Stipulation and Order on Consent, which required the Department to negotiate a contract to turn over five (now seven) of the twenty-seven buildings at Willowbrook to a private agency, United Cerebral Palsy (UCP), for complete operation and control. *fn3" This requirement was not acceptable to the union at Willowbrook and accordingly it obtained a temporary restraining order in the New York State Supreme Court, Albany County, against implementation of this provision of the Order. *fn4" The state court did not, however, grant the union's motion for a preliminary injunction, and the UCP takeover, although temporarily disrupted by the restraining order, was eventually consummated in the fall of 1977. The state court action still pends. In order that this court might pass on the validity of its own decree attacked by the union, it ordered the union to be joined as a defendant to this case for the limited purpose of determining whether the UCP takeover infringed any rights of the union under state law or under the union's collective bargaining agreements. *fn5" See N.Y.S.A.R.C., Inc. v. Carey, 438 F. Supp. 440 (E.D.N.Y.1977).

 Specifically, the Department of Mental Hygiene seeks a declaration (a) that the UCP takeover does not violate either Article V § 6 of the New York Constitution, N.Y.Ment.Hyg.L. § 13.11(b) (McKinney App.Supp.1977-78), or N.Y.Civ.Serv.L. § 70 (McKinney 1973), and (b) that the takeover does not come within the "contracting out" provisions of the union's collective bargaining agreement. *fn6" The parties have submitted a large number of affidavits and exhibits on the Department's motion for summary judgment which reveal, despite the union's contention to the contrary, that there is no genuine dispute as to any material fact. *fn7" The court is thus in a position to present a fairly detailed picture of the nature and structure of the UCP takeover. Thereafter we shall address seriatim the applicability of the civil service laws to the takeover; the validity of the action under the Mental Hygiene Law; the contracting out issue; and, finally, some of the points raised in the union's motion to dismiss.

 Nature of UCP Takeover

 United Cerebral Palsy of New York State, Inc. is a nonprofit New York corporation with affiliates located throughout the state. It has been closely involved with the Willowbrook class for a considerable length of time, and in fact has been caring for fifty of the most disabled adult class members at its own Nina Eaton Center. It has also been providing training to Departmental employees at Willowbrook through "mini-teams" on location there. Impressed with the achievements of UCP in these areas and dissatisfied with the Department's failures, plaintiffs, during negotiations to settle the contempt proceedings mentioned above, proposed that UCP take over five buildings at Willowbrook with authority to use or not to use Willowbrook staff; that UCP become a party defendant to the main action; and, if the experiment was successful, that UCP would further expand its operations at Willowbrook. The essential elements of the plaintiffs' proposal were, as we have seen, acceded to by the Department and embodied in this court's supplemental decree. Pursuant thereto and in implementation thereof, the Department instituted intensive discussions with UCP which culminated in a Memorandum of Agreement between the Department and UCP, a Revocable Permit for UCP to enter and use specified buildings at Willowbrook, and a Certificate of Operation.


 The Memorandum of Agreement states that UCP will "establish and operate a privately licensed intermediate care facility for the mentally retarded (ICF/MR)," and that UCP will have "exclusive use, occupancy and control" of the relevant buildings, which constituted the "baby complex" at Willowbrook and are now known as UCP Unit VI. UCP agreed to "provide care and treatment to members of the Willowbrook class discharged from the Willowbrook Developmental Center" and to become a defendant in this case, and further agreed that

in the event this Department is faced with continuing legal obligations for discharged employees of the Willowbrook Developmental Center, United Cerebral Palsy will either agree to absorb such employees or agree to terminate this agreement at the election of this Department.

 The Permit, which continues indefinitely and is revocable only by order of this court, sets forth the conditions under which UCP is permitted to use state buildings at Willowbrook for its ICF/MR. It also recites that UCP had applied for permission to use certain portions of such property to provide "intermediate care services to approximately six hundred and fifty (650) mentally disabled former residents" of Willowbrook, and that such application was acceptable to the Department and authorized under (former) N.Y.Ment.Hyg.L. § 9.05(c). The Permit accordingly grants UCP permission "to enter upon and have exclusive use, occupancy and control" of the premises under certain enumerated conditions. Occupation and use of the premises were limited to the provision of intermediate care services to the residents thereof, and UCP agreed to apply for federal certification as an ICF/MR. The Department, which retained ownership and which has ultimate responsibility for the real property, also retained general responsibility for major and structural repairs, and agreed to assist UCP in meeting the ICF/MR construction standards. It also reserved the right to inspect the premises and to make reasonable recommendations on repairs necessary to restore the premises to their original condition.

 Under the Permit, UCP is responsible for ordinary maintenance, the cost of utilities, etc., transportation, food, health, and other services, as well as "all other conditions required under the Willowbrook Consent Decree." It is also obligated to provide all supplies necessary to operate its programs independently of the Department, although the equipment already in the buildings was inventoried and left for UCP's use during its occupation. UCP agreed in addition to "assume all responsibility in the operation and conduct of its intermediate care program," and to hold harmless the Department from any liability incurred therein.

 Of crucial importance to the resolution of this controversy is the status of the residents of UCP Unit VI. It appears to have been originally intended that the residents would remain on Willowbrook's rolls on "community status," and that the Department, by entering into an agreement with UCP, would be purchasing services for persons under its jurisdiction. However, when it was decided that UCP Unit VI would be an independent ICF/MR, the decision was made to release the residents from Willowbrook and to transfer them to UCP Unit VI pursuant to N.Y.Ment.Hyg.L. § 29.11 and 14 N.Y.C.R.R. Part 17. This release and transfer has had the effect of passing all custody and control over the residents of UCP Unit VI from the Department to UCP *fn8" except for such control over UCP Unit VI as the Department exercises in its regulatory capacity over all mental health facilities, public and private.

 State Regulations

 The Commissioner of Mental Retardation has general authority under N.Y.Ment.Hyg.L. § 31.04 to adopt regulations with respect to the standards of care for the mentally retarded in residential facilities, and has the power and duty to inspect such facilities. N.Y.Const. Art. 17 § 4; N.Y.Ment.Hyg.L. §§ 5.05, 31.07. *fn9" No provider of services to the mentally retarded, other than the State, may operate a residential facility without an operating certificate from the State. Id. § 31.02. UCP Unit VI received its Certificate on September 1, 1977. The Commissioner has promulgated certain regulations for the operation of schools for the mentally retarded in 14 N.Y.C.R.R. Part 81 which set out general standards for schools with respect to policy, organization, responsibility, and ...

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