Bill Text: NY S05205 | 2019-2020 | General Assembly | Amended

Bill Title: Provides procedures to be followed in appointing a hearing officer for removal and disciplinary action against certain public employees, including the use of a member of the American Arbitration Association as the hearing officer and the fees to be paid therefor; provides for suspension, with pay, pending the determination except where the employee has entered a guilty plea to a felony crime involving criminal sale or possession of a controlled substance.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Engrossed) 2019-06-20 - ordered to third reading rules cal.673 [S05205 Detail]

Download: New_York-2019-S05205-Amended.html

                STATE OF NEW YORK

            Cal. No. 924

                               2019-2020 Regular Sessions

                    IN SENATE

                                     April 16, 2019

        Introduced  by  Sens.  GOUNARDES, FUNKE, GAUGHRAN, SKOUFIS -- read twice
          and ordered printed, and when printed to be committed to the Committee
          on Civil Service and Pensions -- reported favorably from said  commit-
          tee,  ordered  to first and second report, ordered to a third reading,
          amended and ordered reprinted, retaining its place  in  the  order  of
          third reading

        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 to read as
     3  follows:
     4    2. Procedure. An employee who at the time of questioning appears to be
     5  a potential subject of disciplinary action shall have a right to  repre-
     6  sentation  by  his  or her certified or recognized employee organization
     7  under article fourteen of this chapter and shall be notified in advance,
     8  in writing, of such right. A state employee who is designated managerial
     9  or confidential under article fourteen of this chapter,  shall,  at  the
    10  time  of questioning, where it appears that such employee is a potential
    11  subject of disciplinary action, have a right to representation and shall
    12  be notified in advance, in writing, of such right. If representation  is
    13  requested  a  reasonable period of time shall be afforded to obtain such
    14  representation. If the employee is unable to obtain representation with-
    15  in a reasonable period of time the employer has the right to then  ques-
    16  tion  the  employee. A hearing officer under this section shall have the
    17  power to find that a reasonable period of time was or was not  afforded.
    18  In  the event the hearing officer finds that a reasonable period of time
    19  was not afforded then any and all statements obtained  from  said  ques-
    20  tioning  as  well as any evidence or information obtained as a result of
    21  said questioning shall be excluded, provided, however, that this  subdi-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 5205--A                          2

     1  vision  shall  not  modify  or  replace any written collective agreement
     2  between a public employer and employee organization negotiated  pursuant
     3  to  article  fourteen of this chapter.  A person against whom removal or
     4  other  disciplinary action is proposed shall have written notice thereof
     5  and of the reasons therefor, shall be furnished a copy  of  the  charges
     6  preferred  against  him  or her and shall be allowed at least eight days
     7  for answering the same in writing. The hearing upon such  charges  shall
     8  be  held  by  [the officer or body having the power to remove the person
     9  against whom such charges are preferred, or by a deputy or other  person
    10  designated  by such officer or body in writing for that purpose. In case
    11  a deputy or other person is so designated, he]  a  hearing  officer  who
    12  shall  be  a  member  of  the American Arbitration Association, and such
    13  hearing officer shall be selected by the mutual agreement of the  person
    14  against  whom disciplinary action is proposed and of the employing offi-
    15  cer or body. If such mutual agreement cannot be reached, then the  hear-
    16  ing  officer  shall  be  selected  pursuant to the rules of the American
    17  Arbitration Association. Such hearing officer shall, for the purpose  of
    18  such  hearing, be vested with all the powers of such officer or body and
    19  shall make a record of such hearing which shall, with his or her  recom-
    20  mendations and decision, be referred to such officer or body for [review
    21  and  decision]  implementation.  The [person or persons] hearing officer
    22  holding such hearing shall, upon the request of the person against  whom
    23  charges  are  preferred, permit him or her to be represented by counsel,
    24  or by a representative of a recognized or certified  employee  organiza-
    25  tion,  and  shall  allow  him  or  her to summon witnesses in his or her
    26  behalf. The burden of proving incompetency or misconduct shall  be  upon
    27  the  person  alleging  the  same.    Compliance  with technical rules of
    28  evidence shall not be required.  The hearing officer shall be paid a fee
    29  which is equivalent to the normal and customary fee paid to him  or  her
    30  for  services  as an arbitrator under the auspices of the American Arbi-
    31  tration Association.   Provided, however, that the  amendments  to  this
    32  subdivision  as  made  by a chapter of the laws of two thousand nineteen
    33  shall not supersede or apply to an existing hearing officer  policy  and
    34  procedure  that  is  the  result  of  a  collective bargaining agreement
    35  between an employer and a recognized or certified employee organization.
    36    § 2. Subdivision 3 of section 75 of the civil service law, as  amended
    37  by chapter 710 of the laws of 1984, is amended to read as follows:
    38    3.  Suspension  pending  determination of charges; penalties.  Pending
    39  the hearing and determination of charges of incompetency or  misconduct,
    40  the  officer  or  employee against whom such charges have been preferred
    41  may be suspended [without pay] for a period not exceeding  thirty  days.
    42  The  suspension  shall be with pay, except the employee may be suspended
    43  without pay if the employee has entered a guilty plea  to  or  has  been
    44  convicted  of  a felony crime concerning the criminal sale or possession
    45  of a controlled substance or a precursor of a controlled  substance.  If
    46  such  officer or employee is found guilty of the charges, the penalty or
    47  punishment may consist of a reprimand, a fine not to exceed one  hundred
    48  dollars  to  be  deducted  from  the  salary or wages of such officer or
    49  employee, suspension without pay for a period not exceeding two  months,
    50  demotion  in  grade  and title, or dismissal from the service; provided,
    51  however, that the time during which an officer or employee is  suspended
    52  without  pay  may  be considered as part of the penalty. If he or she is
    53  acquitted, he or she shall be restored to his or her position [with full
    54  pay for the period of suspension less the  amount  of  any  unemployment
    55  insurance  benefits  he  may  have received during such period]. If such
    56  officer or employee is found guilty, a copy of the charges, his  or  her

        S. 5205--A                          3

     1  written  answer  thereto,  a transcript of the hearing, and the determi-
     2  nation shall be filed in the office of the department or agency in which
     3  he or she has been employed, and a copy thereof shall be filed with  the
     4  civil  service commission having jurisdiction over such position. A copy
     5  of the transcript of the hearing shall, upon request of the  officer  or
     6  employee affected, be furnished to him or her without charge.
     7    § 3. This act shall take effect immediately.