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GOP fights bill allowing state employees to sue state

If passing legislation were a cat, then A.7121 would be on the last of its nine lives.

The legislation passed the Assembly earlier this week for the ninth time since the 2001-02 session, but it has never been passed in the state Senate. A similar fate is likely this year as companion legislation (S.1119) has yet to be moved from committee to the Senate floor for consideration.

So what is it that the Assembly backs so consistently but state Senators can’t support? At issue is allowing state employees to sue the state for damages due to violations of the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Fair Labor Standards Act (FLSA) and preserve their rights under the Family and Medical Leave Act (FMLA).

A.7121 was approved in the Assembly by a 110-37 vote earlier this week with both Assemblymen Andrew Goodell, R-Jamestown, and Joe Giglio, R-Gowanda, voting against the bill. Goodell said one problem with the bill is that key parts of its text haven’t been updated since it was introduced two decades ago.

“As the sponsor noted, this is legislation that has been brought forward for over two decades. It has never passed both houses. When it was first brought forward more than two decades ago it had an effective date for the year it was brought forward, which made perfect sense because what it’s saying is from here on forward you’ve got to comply with these standards,” Goodell said. “The problem is that the effective date of this legislation has never been changed in 21 years. So now what we’re saying to every single local government, every school district, every fire district, every local government is if you weren’t complying with a law that didn’t apply to you 21 years ago, you can be sued. Now think about that. What this bill says is even though you were in full compliance with a law that didn’t apply to you 20 years ago, you can be sued.”

Assemblywoman Dr. Anna Kelles, D-Ithaca, said the bill will allow the state to be sued in state or federal court for any violation of the rights of state employees under these federal statutes, including the ADA’s access and accommodation standards. In addition, she said it will insure the right of people with disabilities to bring a civil action against the state for failure to provide access for the disabled public to government services, programs and activities.

She said state employees should have the same right to sue as a private citizen, especially if they’re doing so on behalf of someone with disabilities.

“I’m having a difficult time with the fact that we’re debating that we would want to protect those who work for us, those who work for the state, who have dedicated their entire lives working for the betterment of our state, that we would not provide them the same protections that all local governments are required to provide them, that all private businesses are required to provide them,” Kelles said. “This bill is simply about parity. I would note we have received no letters of opposition to this bill and the fact specifically that we would be saying that its OK to discriminate against people simply for the sheer fact that we have not rectified a law since 2001 is, to me, repugnant.”

But Goodell, in his comments on the bill, noted opposition from the New York Conference of Mayors. That opposition is tied to one sentence in Kelles’ proposal — “The provisions of such acts shall apply to the state, and any instrumentality or political subdivision thereof” — that would place local governments at risk. That sentence was one of Goodell’s biggest sticking points and reasons for voting against the bill.

“When we talk about making a law retroactive for two decades and impose a liability on all of our local governments, this is the mother of all mandates,” Goodell said. “All of us here support and desire to make sure that all of our public buildings are accessible to the disabled and the handicapped. We all support that. I hope we all recognize the unfairness of imposing retroactive liability going back over two decades. I would be happy to support this legislation if the effective date was in the future rather than decades before many of us were actually here.”

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