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.