STATE OF NEW YORK
________________________________________________________________________
5205--A
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.
LBD11197-03-9
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.