Bill Text: NY S01039 | 2023-2024 | General Assembly | Amended

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Bill Title: Provides procedures to be followed in appointing a hearing officer for removal and disciplinary action against certain public employees not in the service of the city of New York, including the fees to be paid for such hearing officer; provides for suspension, with pay, pending the determination.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Vetoed) 2023-12-22 - VETOED MEMO.129 [S01039 Detail]

Download: New_York-2023-S01039-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         1039--A

                               2023-2024 Regular Sessions

                    IN SENATE

                                     January 9, 2023
                                       ___________

        Introduced  by Sens. JACKSON, MANNION -- read twice and ordered printed,
          and when printed to be committed to the Committee on Civil Service and
          Pensions -- reported favorably from said committee  and  committed  to
          the  Committee  on  Finance  --  committee  discharged,  bill amended,
          ordered reprinted as amended and recommitted to said committee

        AN ACT to amend the civil service law, in relation to hearing procedures
          for certain public employees

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Subdivision  2  and  paragraph  (a) of subdivision 2-a of
     2  section 75 of the civil service law, subdivision 2 as amended by chapter
     3  226 of the laws of 1994 and paragraph (a) of subdivision 2-a as added by
     4  chapter 674 of the laws of 2022, are amended and a new  subdivision  2-b
     5  is added to read as follows:
     6    2.  Procedure;  New  York city employees. [An] For any employee in the
     7  service of the city of New York described in paragraph  (a),  (b),  (c),
     8  (d),  or  (e) of subdivision one of this section, if such employee [who]
     9  at the time of questioning appears to be a potential subject  of  disci-
    10  plinary action, he or she shall have a right to representation by his or
    11  her certified or recognized employee organization under article fourteen
    12  of  this  chapter  and shall be notified in advance, in writing, of such
    13  right. [A state employee who is designated  managerial  or  confidential
    14  under  article fourteen of this chapter, shall, at the time of question-
    15  ing, where it appears that such  employee  is  a  potential  subject  of
    16  disciplinary  action,  have a right to representation and shall be noti-
    17  fied in advance, in  writing,  of  such  right.]  If  representation  is
    18  requested  a  reasonable period of time shall be afforded to obtain such
    19  representation. If the employee is unable to obtain representation with-
    20  in a reasonable period of time the employer has the right to then  ques-
    21  tion  the  employee. A hearing officer under this section shall have the
    22  power to find that a reasonable period of time was or was not  afforded.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03619-03-3
        S. 1039--A                          2

     1  In  the event the hearing officer finds that a reasonable period of time
     2  was not afforded then any and all statements obtained  from  said  ques-
     3  tioning  as  well as any evidence or information obtained as a result of
     4  said  questioning shall be excluded, provided, however, that this subdi-
     5  vision shall not modify or  replace  any  written  collective  agreement
     6  between  a public employer and employee organization negotiated pursuant
     7  to article fourteen of this chapter. A person against  whom  removal  or
     8  other  disciplinary action is proposed shall have written notice thereof
     9  and of the reasons therefor, shall be furnished a copy  of  the  charges
    10  preferred  against  him  or her and shall be allowed at least eight days
    11  for answering the same in writing. The hearing upon such  charges  shall
    12  be  held  by  the  officer or body having the power to remove the person
    13  against whom such charges are preferred, or by a deputy or other  person
    14  designated  by such officer or body in writing for that purpose. In case
    15  a deputy or other person is so designated, he  or  she  shall,  for  the
    16  purpose  of  such hearing, be vested with all the powers of such officer
    17  or body and shall make a record of such hearing which shall, with his or
    18  her recommendations, be referred to such officer or body for review  and
    19  decision.  The  person  or  persons holding such hearing shall, upon the
    20  request of the person against whom charges are preferred, permit him  or
    21  her to be represented by counsel, or by a representative of a recognized
    22  or certified employee organization, and shall allow him or her to summon
    23  witnesses  in  his  or her behalf. The burden of proving incompetency or
    24  misconduct shall be upon the person alleging the same.  Compliance  with
    25  technical rules of evidence shall not be required.
    26    (a)  Notwithstanding  any  other  provision  of  law  to the contrary,
    27  including but not limited to subdivision four of section seventy-six  of
    28  this  title,  any paid officer or member of an organized fire company or
    29  fire department of a city of less than one million population, or  town,
    30  village or fire district who is represented by a certified or recognized
    31  employee organization pursuant to article fourteen of this chapter shall
    32  not  be  subjected to the penalty of dismissal from service or any other
    33  discipline if the hearing, upon such charge, has been conducted by some-
    34  one other than an independent hearing officer to be  agreed  to  by  the
    35  employer and the person against whom disciplinary action is proposed. If
    36  the  parties  are  unable  to  agree upon a hearing officer, the hearing
    37  officer shall be selected from a list of seven names to be  provided  by
    38  the  public  employment relations board. The public employment relations
    39  board shall maintain a list of independent  hearing  officers  for  this
    40  purpose  and  for  the  purpose  described  in subdivision two-b of this
    41  section. The parties shall select the  hearing  officer  by  alternately
    42  striking  names  from  the  list  of seven. The hearing officer shall be
    43  vested with all powers of the appointing authority,  shall  conduct  and
    44  make  a  record  of  the hearing, and shall render a final decision. The
    45  cost incurred in obtaining such independent  hearing  officer  shall  be
    46  divided  equally between the parties; provided that as may be determined
    47  upon the circumstances of the case, the hearing officer shall be author-
    48  ized to allocate such cost on the basis of the frivolous nature  of  any
    49  claim  made  or  any  defense  interposed.  In  order to find a claim or
    50  defense to be frivolous, the hearing officer must find at least  one  of
    51  the following:
    52    (i)  the  claim  or  defense  was  commenced, used or continued in bad
    53  faith, solely to delay or prolong the resolution of  the  action  or  to
    54  harass or maliciously injure another; or
    55    (ii)  the  claim  or  defense  was commenced or continued in bad faith
    56  without any reasonable basis in law or fact. If the claim or defense was
        S. 1039--A                          3

     1  promptly discontinued when the party learned or should have learned that
     2  the claim or defense lacked such reasonable basis, the  hearing  officer
     3  may  find  that the party did not act in bad faith. A person served with
     4  charges  may  then,  however, elect in writing to proceed with a hearing
     5  pursuant to the  procedures  established  in  subdivision  two  of  this
     6  section in lieu of the procedures set forth in this subdivision.
     7    2-b.   Procedure;  non-New  York  city  employees.  For  any  employee
     8  described in paragraph (a), (b), (c), or (e) of subdivision one of  this
     9  section not in the service of the city of New York, the following proce-
    10  dure  shall apply: An employee under this subdivision who at the time of
    11  questioning appears to be a potential  subject  of  disciplinary  action
    12  shall  have  a right to representation by his or her certified or recog-
    13  nized employee organization under article fourteen of this  chapter  and
    14  shall be notified in advance, in writing, of such right. A state employ-
    15  ee  who  is designated managerial or confidential under article fourteen
    16  of this chapter, shall, at the time of  questioning,  where  it  appears
    17  that such employee is a potential subject of disciplinary action, have a
    18  right to representation and shall be notified in advance, in writing, of
    19  such  right.  If representation is requested a reasonable period of time
    20  shall be afforded to obtain such  representation.  If  the  employee  is
    21  unable  to  obtain representation within a reasonable period of time the
    22  employer has the right to then question the employee. A hearing  officer
    23  under this section shall have the power to find that a reasonable period
    24  of  time was or was not afforded. In the event the hearing officer finds
    25  that a reasonable period of time was  not  afforded  then  any  and  all
    26  statements  obtained  from  said  questioning as well as any evidence or
    27  information obtained as a result of said questioning shall be  excluded,
    28  provided, however, that this subdivision shall not modify or replace any
    29  written  collective  agreement  between  a  public employer and employee
    30  organization negotiated pursuant to article fourteen of this chapter.  A
    31  person  against  whom  removal  or other disciplinary action is proposed
    32  shall have written notice thereof and of the reasons thereof,  shall  be
    33  furnished  a  copy of the charges preferred against him or her and shall
    34  be allowed at least eight days for answering the same  in  writing.  The
    35  hearing  upon  such charges shall be held by a hearing officer who shall
    36  be selected by the mutual agreement of the person against whom discipli-
    37  nary action is proposed and of the employing officer or  body.  If  such
    38  mutual  agreement  cannot  be reached, then the hearing officer shall be
    39  selected from a list of seven names to be provided by the public employ-
    40  ment relations board pursuant to subdivision two-a of this section.  The
    41  parties  shall  select the hearing officer by alternately striking names
    42  from the list of seven. Such hearing officer shall, for the  purpose  of
    43  such  hearing, be vested with all the powers of such officer or body and
    44  shall make a record of such hearing which shall, with his or her  recom-
    45  mendations  and decision, be referred to such officer or body for imple-
    46  mentation. The hearing officer holding  such  hearing  shall,  upon  the
    47  request  of the person against whom charges are preferred, permit him or
    48  her to be represented by counsel, or by a representative of a recognized
    49  or certified employee organization, and shall allow him or her to summon
    50  witnesses on his or her behalf. The burden of  proving  incompetency  or
    51  misconduct  shall  be upon the person alleging the same. Compliance with
    52  technical rules of evidence shall not be required.  The cost incurred in
    53  obtaining the independent  hearing  officer  shall  be  divided  equally
    54  between the parties; provided that as may be determined upon the circum-
    55  stances of the case, the hearing officer shall be authorized to allocate
    56  such  cost on the basis of the frivolous nature of any claim made or any
        S. 1039--A                          4

     1  defense interposed in the manner provided for in paragraph (a) of subdi-
     2  vision two-a of this section.  Provided, however, that the provisions of
     3  this subdivision shall not supersede or apply  to  an  existing  hearing
     4  officer policy and procedure that is the result of a collective bargain-
     5  ing agreement between an employer and a recognized or certified employee
     6  organization  or  any  hearing  officer  policy  and procedure currently
     7  existing for state employees designated managerial or confidential which
     8  was in effect on the effective date of this subdivision.
     9    § 2. Subdivision 3 of section 75 of the civil service law, as  amended
    10  by chapter 710 of the laws of 1984, is amended to read as follows:
    11    3.  Suspension  pending  determination of charges; penalties; New York
    12  city employees. [Pending] For any employee in the service of the city of
    13  New York described in paragraph (a),  (b),  (c),  (d), or (e) of  subdi-
    14  vision  one  of  this  section, pending the hearing and determination of
    15  charges of incompetency or misconduct, the officer or  employee  against
    16  whom such charges have been preferred may be suspended without pay for a
    17  period  not  exceeding thirty days. If such officer or employee is found
    18  guilty of the charges, the penalty or punishment may consist of a repri-
    19  mand, a fine not to exceed one hundred dollars to be deducted  from  the
    20  salary  or wages of such officer or employee, suspension without pay for
    21  a period not exceeding two months,  demotion  in  grade  and  title,  or
    22  dismissal  from  the  service;  provided,  however, that the time during
    23  which an officer or employee is suspended without pay may be  considered
    24  as  part  of  the penalty. If he or she is acquitted, he or she shall be
    25  restored to his or her position with full pay for the period of  suspen-
    26  sion  less  the  amount of any unemployment insurance benefits he or she
    27  may have received during such period. If such  officer  or  employee  is
    28  found  guilty, a copy of the charges, his or her written answer thereto,
    29  a transcript of the hearing, and the determination shall be filed in the
    30  office of the department or agency in which he or she has been employed,
    31  and a copy thereof shall be filed  with  the  civil  service  commission
    32  having  jurisdiction over such position. A copy of the transcript of the
    33  hearing shall, upon request of the  officer  or  employee  affected,  be
    34  furnished to him or her without charge.
    35    §  3. Subdivision 3-a of section 75 of the civil service law, as added
    36  by chapter 753 of the laws of 1990, is amended and a new subdivision 3-b
    37  is added to read as follows:
    38    3-a. Suspension pending determination of charges and penalties  relat-
    39  ing to police officers of the police department of the city of New York.
    40  [Pending]  Notwithstanding  the  provisions of subdivision three of this
    41  section, pending the hearing and determination of charges of incompeten-
    42  cy or misconduct, a police officer employed by the police department  of
    43  the  city  of  New  York  may  be suspended without pay for a period not
    44  exceeding thirty days. If such officer is found guilty of  the  charges,
    45  the police commissioner of such department may punish the police officer
    46  pursuant to the provisions of sections 14-115 and 14-123 of the adminis-
    47  trative code of the city of New York.
    48    3-b.  Suspension  pending determination of charges; penalties; non-New
    49  York city employees. For any employee described in paragraph (a),   (b),
    50  (c),  or    (e) of subdivision one of this section not in the service of
    51  the city of New York, pending the hearing and determination  of  charges
    52  of incompetency or misconduct, the officer or employee against whom such
    53  charges  have been preferred may be suspended for a period not exceeding
    54  thirty days. The suspension shall be with  pay.    If  such  officer  or
    55  employee  is  found guilty of the charges, the penalty or punishment may
    56  consist of a reprimand, a fine not to exceed one hundred dollars  to  be
        S. 1039--A                          5

     1  deducted  from  the salary or wages of such officer or employee, suspen-
     2  sion without pay for a period not  exceeding  two  months,  demotion  in
     3  grade and title, or dismissal from the service.  If he or she is acquit-
     4  ted, he or she shall be restored to his or her position. If such officer
     5  or  employee  is found guilty, a copy of the charges, his or her written
     6  answer thereto, a transcript of the hearing, and the determination shall
     7  be filed in the office of the department or agency in which  he  or  she
     8  has  been  employed,  and  a  copy thereof shall be filed with the civil
     9  service commission having jurisdiction over such position. A copy of the
    10  transcript of the hearing shall, upon request of the officer or employee
    11  affected, be furnished to him or her without charge.
    12    § 4. This act shall take effect immediately.