2019-2020 Regular Sessions
                    IN SENATE
                                     April 16, 2019
        Introduced by Sen. GOUNARDES -- 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 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-
    22  vision  shall  not  modify  or  replace any written collective agreement
    23  between a public employer and employee organization negotiated  pursuant
    24  to  article  fourteen of this chapter.  A person against whom removal or
    25  other disciplinary action is proposed shall have written notice  thereof
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 5205                             2
     1  and  of  the  reasons therefor, shall be furnished a copy of the charges
     2  preferred against him or her and shall be allowed at  least  eight  days
     3  for  answering  the same in writing. The hearing upon such charges shall
     4  be  held  by  [the officer or body having the power to remove the person
     5  against whom such charges are preferred, or by a deputy or other  person
     6  designated  by such officer or body in writing for that purpose. In case
     7  a deputy or other person is so designated, he]  a  hearing  officer  who
     8  shall  be  a  member  of  the American Arbitration Association, and such
     9  hearing officer shall be selected by the mutual agreement of the  person
    10  against  whom disciplinary action is proposed and of the employing offi-
    11  cer or body. If such mutual agreement cannot be reached, then the  hear-
    12  ing  officer  shall  be  selected  pursuant to the rules of the American
    13  Arbitration Association. Such hearing officer shall, for the purpose  of
    14  such  hearing, be vested with all the powers of such officer or body and
    15  shall make a record of such hearing which shall, with his or her  recom-
    16  mendations and decision, be referred to such officer or body for [review
    17  and  decision]  implementation.  The [person or persons] hearing officer
    18  holding such hearing shall, upon the request of the person against  whom
    19  charges  are  preferred, permit him or her to be represented by counsel,
    20  or by a representative of a recognized or certified  employee  organiza-
    21  tion,  and  shall  allow  him  or  her to summon witnesses in his or her
    22  behalf. The burden of proving incompetency or misconduct shall  be  upon
    23  the  person  alleging  the  same.    Compliance  with technical rules of
    24  evidence shall not be required.  The hearing officer shall be paid a fee
    25  which is equivalent to the normal and customary fee paid to him  or  her
    26  for  services  as an arbitrator under the auspices of the American Arbi-
    27  tration Association.
    28    § 2. Subdivision 3 of section 75 of the civil service law, as  amended
    29  by chapter 710 of the laws of 1984, is amended to read as follows:
    30    3.  Suspension  pending  determination of charges; penalties.  Pending
    31  the hearing and determination of charges of incompetency or  misconduct,
    32  the  officer  or  employee against whom such charges have been preferred
    33  may be suspended [without pay] for a period not exceeding  thirty  days.
    34  The  suspension  shall be with pay, except the employee may be suspended
    35  without pay if the employee has entered a guilty plea  to  or  has  been
    36  convicted  of  a felony crime concerning the criminal sale or possession
    37  of a controlled substance or a precursor of a controlled  substance.  If
    38  such  officer or employee is found guilty of the charges, the penalty or
    39  punishment may consist of a reprimand, a fine not to exceed one  hundred
    40  dollars  to  be  deducted  from  the  salary or wages of such officer or
    41  employee, suspension without pay for a period not exceeding two  months,
    42  demotion  in  grade  and title, or dismissal from the service; provided,
    43  however, that the time during which an officer or employee is  suspended
    44  without  pay  may  be considered as part of the penalty. If he or she is
    45  acquitted, he or she shall be restored to his or her position [with full
    46  pay for the period of suspension less the  amount  of  any  unemployment
    47  insurance  benefits  he  may  have received during such period]. If such
    48  officer or employee is found guilty, a copy of the charges, his  or  her
    49  written  answer  thereto,  a transcript of the hearing, and the determi-
    50  nation shall be filed in the office of the department or agency in which
    51  he or she has been employed, and a copy thereof shall be filed with  the
    52  civil  service commission having jurisdiction over such position. A copy
    53  of the transcript of the hearing shall, upon request of the  officer  or
    54  employee affected, be furnished to him or her without charge.
    55    § 3. This act shall take effect immediately.