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

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          1039

                               2023-2024 Regular Sessions

                    IN SENATE

                                     January 9, 2023
                                       ___________

        Introduced  by  Sen. JACKSON -- read twice and ordered printed, and when
          printed to be committed to the Committee on Civil Service and Pensions

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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03619-01-3
        S. 1039                             2

     1  between a public employer and employee organization negotiated  pursuant
     2  to  article  fourteen  of this chapter. A person against whom removal or
     3  other disciplinary action is proposed shall have written notice  thereof
     4  and  of  the  reasons therefor, shall be furnished a copy of the charges
     5  preferred against him or her and shall be allowed at  least  eight  days
     6  for  answering  the same in writing. The hearing upon such charges shall
     7  be held by the officer or body having the power  to  remove  the  person
     8  against  whom such charges are preferred, or by a deputy or other person
     9  designated by such officer or body in writing for that purpose. In  case
    10  a  deputy  or  other  person  is so designated, he or she shall, for the
    11  purpose of such hearing, be vested with all the powers of  such  officer
    12  or body and shall make a record of such hearing which shall, with his or
    13  her  recommendations, be referred to such officer or body for review and
    14  decision. The person or persons holding such  hearing  shall,  upon  the
    15  request  of the person against whom charges are preferred, permit him or
    16  her to be represented by counsel, or by a representative of a recognized
    17  or certified employee organization, and shall allow him or her to summon
    18  witnesses in his or her behalf. The burden of  proving  incompetency  or
    19  misconduct  shall be upon the person alleging the same.  Compliance with
    20  technical rules of evidence shall not be required.
    21    2-b.  Procedure;  non-New  York  city  employees.  For  any   employee
    22  described  in paragraph (a), (b), (c), or (e) of subdivision one of this
    23  section not in the service of the city of New York, the following proce-
    24  dure shall apply: An employee under this subdivision who at the time  of
    25  questioning  appears  to  be  a potential subject of disciplinary action
    26  shall have a right to representation by his or her certified  or  recog-
    27  nized  employee  organization under article fourteen of this chapter and
    28  shall be notified in advance, in writing, of such right. A state employ-
    29  ee who is designated managerial or confidential under  article  fourteen
    30  of  this  chapter,  shall,  at the time of questioning, where it appears
    31  that such employee is a potential subject of disciplinary action, have a
    32  right to representation and shall be notified in advance, in writing, of
    33  such right. If representation is requested a reasonable period  of  time
    34  shall  be  afforded  to  obtain  such representation. If the employee is
    35  unable to obtain representation within a reasonable period of  time  the
    36  employer  has the right to then question the employee. A hearing officer
    37  under this section shall have the power to find that a reasonable period
    38  of time was or was not afforded. In the event the hearing officer  finds
    39  that  a  reasonable  period  of  time  was not afforded then any and all
    40  statements obtained from said questioning as well  as  any  evidence  or
    41  information  obtained as a result of said questioning shall be excluded,
    42  provided, however, that this subdivision shall not modify or replace any
    43  written collective agreement between  a  public  employer  and  employee
    44  organization  negotiated pursuant to article fourteen of this chapter. A
    45  person against whom removal or other  disciplinary  action  is  proposed
    46  shall  have  written notice thereof and of the reasons thereof, shall be
    47  furnished a copy of the charges preferred against him or her  and  shall
    48  be  allowed  at  least eight days for answering the same in writing. The
    49  hearing upon such charges shall be held by a hearing officer  who  shall
    50  be  a  member  of the American Arbitration Association, and such hearing
    51  officer shall be selected by the mutual agreement of the person  against
    52  whom  disciplinary  action  is  proposed and of the employing officer or
    53  body. If such mutual agreement cannot be reached, then the hearing offi-
    54  cer shall be selected pursuant to the rules of the American  Arbitration
    55  Association.  Such  hearing officer shall, for the purpose of such hear-
    56  ing, be vested with all the powers of such officer  or  body  and  shall
        S. 1039                             3

     1  make  a  record of such hearing which shall, with his or her recommenda-
     2  tions and decision, be referred to such officer or body for  implementa-
     3  tion.  The  hearing officer holding such hearing shall, upon the request
     4  of  the  person against whom charges are preferred, permit him or her to
     5  be represented by counsel, or by a representative  of  a  recognized  or
     6  certified  employee  organization,  and shall allow him or her to summon
     7  witnesses on his or her behalf. The burden of  proving  incompetency  or
     8  misconduct  shall  be upon the person alleging the same. Compliance with
     9  technical rules of evidence shall not be required. The  hearing  officer
    10  shall  be paid a fee which is equivalent to the normal and customary fee
    11  paid to him or her for services as an arbitrator under the  auspices  of
    12  the  American  Arbitration  Association.  Provided,  however,  that  the
    13  provisions of this subdivision shall not supersede or apply to an exist-
    14  ing hearing officer policy and procedure that is the result of a collec-
    15  tive bargaining agreement between an employer and a recognized or certi-
    16  fied employee organization or any hearing officer policy  and  procedure
    17  currently  existing  for state employees designated managerial or confi-
    18  dential which was in effect on the effective date of this subdivision.
    19    § 2. Subdivision 3 of section 75 of the civil service law, as  amended
    20  by chapter 710 of the laws of 1984, is amended to read as follows:
    21    3.  Suspension  pending  determination of charges; penalties; New York
    22  city employees. [Pending] For any employee in the service of the city of
    23  New York described in paragraph (a),  (b),  (c),  (d), or (e) of  subdi-
    24  vision  one  of  this  section, pending the hearing and determination of
    25  charges of incompetency or misconduct, the officer or  employee  against
    26  whom such charges have been preferred may be suspended without pay for a
    27  period  not  exceeding thirty days. If such officer or employee is found
    28  guilty of the charges, the penalty or punishment may consist of a repri-
    29  mand, a fine not to exceed one hundred dollars to be deducted  from  the
    30  salary  or wages of such officer or employee, suspension without pay for
    31  a period not exceeding two months,  demotion  in  grade  and  title,  or
    32  dismissal  from  the  service;  provided,  however, that the time during
    33  which an officer or employee is suspended without pay may be  considered
    34  as  part  of  the penalty. If he or she is acquitted, he or she shall be
    35  restored to his or her position with full pay for the period of  suspen-
    36  sion  less  the  amount of any unemployment insurance benefits he or she
    37  may have received during such period. If such  officer  or  employee  is
    38  found  guilty, a copy of the charges, his or her written answer thereto,
    39  a transcript of the hearing, and the determination shall be filed in the
    40  office of the department or agency in which he or she has been employed,
    41  and a copy thereof shall be filed  with  the  civil  service  commission
    42  having  jurisdiction over such position. A copy of the transcript of the
    43  hearing shall, upon request of the  officer  or  employee  affected,  be
    44  furnished to him or her without charge.
    45    §  3. Subdivision 3-a of section 75 of the civil service law, as added
    46  by chapter 753 of the laws of 1990, is amended and a new subdivision 3-b
    47  is added to read as follows:
    48    3-a. Suspension pending determination of charges and penalties  relat-
    49  ing to police officers of the police department of the city of New York.
    50  [Pending]  Notwithstanding  the  provisions of subdivision three of this
    51  section, pending the hearing and determination of charges of incompeten-
    52  cy or misconduct, a police officer employed by the police department  of
    53  the  city  of  New  York  may  be suspended without pay for a period not
    54  exceeding thirty days. If such officer is found guilty of  the  charges,
    55  the police commissioner of such department may punish the police officer
        S. 1039                             4

     1  pursuant to the provisions of sections 14-115 and 14-123 of the adminis-
     2  trative code of the city of New York.
     3    3-b.  Suspension  pending determination of charges; penalties; non-New
     4  York city employees. For any employee described in paragraph (a),   (b),
     5  (c),  or    (e) of subdivision one of this section not in the service of
     6  the city of New York, pending the hearing and determination  of  charges
     7  of incompetency or misconduct, the officer or employee against whom such
     8  charges  have been preferred may be suspended for a period not exceeding
     9  thirty days. The suspension shall be with pay, except the  employee  may
    10  be suspended without pay if the employee has entered a guilty plea to or
    11  has  been  convicted  of  a felony crime concerning the criminal sale or
    12  possession of a controlled substance or  a  precursor  of  a  controlled
    13  substance.  If  such officer or employee is found guilty of the charges,
    14  the penalty or punishment may consist of a  reprimand,  a  fine  not  to
    15  exceed  one  hundred  dollars to be deducted from the salary or wages of
    16  such officer or employee,  suspension  without  pay  for  a  period  not
    17  exceeding two months, demotion in grade and title, or dismissal from the
    18  service;  provided,  however,  that  the time during which an officer or
    19  employee is suspended without pay may  be  considered  as  part  of  the
    20  penalty.  If  he or she is acquitted, he or she shall be restored to his
    21  or her position. If such officer or employee is found guilty, a copy  of
    22  the  charges,  his  or  her  written answer thereto, a transcript of the
    23  hearing, and the determination shall be  filed  in  the  office  of  the
    24  department  or  agency  in which he or she has been employed, and a copy
    25  thereof shall be filed with the civil service commission  having  juris-
    26  diction  over  such  position.  A  copy of the transcript of the hearing
    27  shall, upon request of the officer or employee affected, be furnished to
    28  him or her without charge.
    29    § 4. This act shall take effect immediately.