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A09614 Summary:

BILL NOA09614
 
SAME ASSAME AS S08481
 
SPONSORAbbate
 
COSPNSRButtenschon, Lupardo, Otis, Pheffer Amato, Steck, DeStefano
 
MLTSPNSR
 
Amd §§75, 201 & 204-a, Civ Serv L
 
Requires that firefighters shall not be subjected to the penalty of dismissal from service or any other discipline if the hearing, upon such charge, has been conducted by someone other than an independent hearing officer.
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A09614 Actions:

BILL NOA09614
 
03/28/2022referred to governmental employees
06/02/2022reference changed to ways and means
06/02/2022reported referred to rules
06/03/2022reported
06/03/2022rules report cal.708
06/03/2022substituted by s8481
 S08481 AMEND= JACKSON
 03/04/2022REFERRED TO CIVIL SERVICE AND PENSIONS
 05/10/20221ST REPORT CAL.1256
 05/11/20222ND REPORT CAL.
 05/16/2022ADVANCED TO THIRD READING
 05/24/2022PASSED SENATE
 05/24/2022DELIVERED TO ASSEMBLY
 05/24/2022referred to governmental employees
 06/03/2022substituted for a9614
 06/03/2022ordered to third reading rules cal.708
 06/03/2022passed assembly
 06/03/2022returned to senate
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A09614 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A9614
 
SPONSOR: Abbate
  TITLE OF BILL: An act to amend the civil service law, in relation to independent hear- ing officers for certain disciplinary hearings   PURPOSE: The purpose of this bill is to create a firefighter bill of rights and require independent hearing officers when hearing claims against fire- fighters.   SUMMARY OF PROVISIONS: Section 1 is the short title called the "New York State Firefighter Bill of Rights Act." Section 2 adds a new subdivision 2-A of Section 75 of the Civil Service Law that requires an independent hearing officer to adjudicate claims against firefighters of a town, village, or fire district with less than one million people. If the parties are unable to agree upon a hearing officer, the hearing officer shall be selected among a list of 7 indi- viduals to be provided by the Public Employee Relations Board. In order to find a claim or defense frivolous, the hearing officer must find at least one of the following: (1) the claim or defense was commenced, used, or continued in bad faith, solely to delay or prolong the resol- ution of the action or to harass or maliciously injure another; or (2) the claim or defense was commenced to continue in bad faith without any reasonable basis in law or fact. Section 3 amends subdivision 4 of Section 201 of the Civil Service Law to add that the terms and conditions of firefighters' employment include alternative disciplinary procedures to any disciplinary system required by law, provided that a firefighter's rights will not be impaired to select coverage under a statutory disciplinary system or a disciplinary system established by collective negotiations unless the law authorizes exclusivity of a negotiated disciplinary system. Section 4 adds a new subdivision 4 to Section 204-A of the Civil Service Law that says the terms of any current or expired agreement or interest arbitration award between any public employer and any public employee organization representing firefighters relating to the discipline of any firefighters-shall be deemed valid and enforceable from the effective date of this subdivision. Section 5 is the effective date.   JUSTIFICATION: This legislation seeks to establish a "Firefighter Bill of Rights," which will help establish a fair and impartial process during discipli- nary proceedings as well as ensuring that firefighters have the ability to collectively negotiate disciplinary provisions and procedures. Under current law, the appointing authority both brings charges and renders decisions in disciplinary proceedings. This creates a conflict of interest and creates a situation inherently unfair to employees. This bill corrects this situation by providing for the appointment of an independent and neutral hearing officer who will hear charges and render a decision on behalf of the employer. This bill does not interfere with the collective bargaining process. In fact, in some instances it ensures a right to collectively bargain procedures crafted for a particular type of public employment. The fundamental purpose of the Taylor Law adopted in 1967 was to make all terms and conditions of employment in the public sector subject to collective bargaining. Early Taylor Law decisions established that disciplinary procedures were terms and conditions of employment subject to collective bargaining, and many collective bargaining agreements containing disciplinary provisions and procedures were adopted across the State, including those negotiated by fire labor, unions. However, as the Taylor Law did not repeal or modify any local law or charter provisions vesting control of discipline in local authorities, court decisions have noted that the several statutes contained provisions favoring the local control of police and fire discipline that would override the Taylor Law presumption of negotiability. This bill would declare it to be the public policy of the State of New York that for firefighters, disciplinary procedures are terms and conditions of employment subject to mandatory negotiation under the Taylor Law.   LEGISLATIVE HISTORY: New bill.   STATE AND LOCAL FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: This act shall take effect on the first of March next succeeding the date on which it shall have become a law and shall apply to proceedings commenced on or after such effective date; provided, however, that effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary, for the implementation of the provisions of this act on its effective date are authorized to be made and completed on or before such effective date.
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A09614 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          9614
 
                   IN ASSEMBLY
 
                                     March 28, 2022
                                       ___________
 
        Introduced by M. of A. ABBATE -- read once and referred to the Committee
          on Governmental Employees
 
        AN  ACT to amend the civil service law, in relation to independent hear-
          ing officers for certain disciplinary hearings
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Short  title. This act shall be known and may be cited as
     2  the "New York State firefighter bill of rights act".
     3    § 2. Section 75 of the civil service law is amended by  adding  a  new
     4  subdivision 2-a to read as follows:
     5    2-a.  Independent  hearing  officer.  (a)  Notwithstanding  any  other
     6  provision of law to the contrary, including but not limited to  subdivi-
     7  sion  four  of  section  seventy-six  of this title, any paid officer or
     8  member of an organized fire company or fire department of a city of less
     9  than one million population, or town, village or fire  district  who  is
    10  represented  by a certified or recognized employee organization pursuant
    11  to article fourteen of this chapter shall not be subjected to the penal-
    12  ty of dismissal from service or any other  discipline  if  the  hearing,
    13  upon  such charge, has been conducted by someone other than an independ-
    14  ent hearing officer to be agreed to  by  the  employer  and  the  person
    15  against  whom disciplinary action is proposed. If the parties are unable
    16  to agree upon a hearing officer, the hearing officer shall  be  selected
    17  from  a  list  of  seven  names  to be provided by the public employment
    18  relations board. The public employment relations board shall maintain  a
    19  list of independent hearing officers for this purpose. The parties shall
    20  select  the  hearing officer by alternately striking names from the list
    21  of seven. The hearing officer shall be vested with  all  powers  of  the
    22  appointing  authority,  shall  conduct and make a record of the hearing,
    23  and shall render a final decision. The cost incurred in  obtaining  such
    24  independent  hearing  officer  shall  be  divided  equally  between  the
    25  parties; provided that as may be determined upon  the  circumstances  of
    26  the  case, the hearing officer shall be authorized to allocate such cost
    27  on the basis of the frivolous nature of any claim made  or  any  defense
    28  interposed.  In  order  to  find a claim or defense to be frivolous, the
    29  hearing officer must find at least one of the following:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14590-02-2

        A. 9614                             2
 
     1    (i) the claim or defense was  commenced,  used  or  continued  in  bad
     2  faith,  solely  to  delay  or prolong the resolution of the action or to
     3  harass or maliciously injure another; or
     4    (ii)  the  claim  or  defense  was commenced or continued in bad faith
     5  without any reasonable basis in law or fact. If the claim or defense was
     6  promptly discontinued when the party learned or should have learned that
     7  the claim or defense lacked such reasonable basis, the  hearing  officer
     8  may  find  that the party did not act in bad faith. A person served with
     9  charges may then, however, elect in writing to proceed  with  a  hearing
    10  pursuant  to  the  procedures  established  in  subdivision  two of this
    11  section in lieu of the procedures set forth in this subdivision.
    12    (b) The rights set forth in paragraph (a) of this subdivision shall be
    13  in addition to, and shall not supplant, modify  or  replace  any  rights
    14  provided  to  an  employee pursuant to agreements negotiated by a public
    15  employer and an employee organization pursuant to  article  fourteen  of
    16  this  chapter,  or pursuant to any other provision of law, including but
    17  not limited to other provisions of this section.
    18    § 3. Subdivision 4 of section 201 of the civil service law, as amended
    19  by chapter 606 of the laws of 1992, is amended to read as follows:
    20    4.  The term "terms and conditions of employment" means:
    21    (a) salaries, wages, hours and other terms and conditions  of  employ-
    22  ment  provided,  however,  that such term shall not include any benefits
    23  provided by or to be provided by a public retirement system, or payments
    24  to a fund or insurer to provide an income for retirees,  or  payment  to
    25  retirees  or  their  beneficiaries. No such retirement benefits shall be
    26  negotiated pursuant to this article,  and  any  benefits  so  negotiated
    27  shall be void.
    28    (b) in addition, the terms and conditions of employment for firefight-
    29  ers  shall  include  discipline  and  disciplinary  procedures including
    30  alternatives to any statutory disciplinary  system,  provided,  however,
    31  that any right of firefighters under the terms of any state law to elect
    32  coverage  under either a statutory disciplinary system or a disciplinary
    33  system established by collective negotiations  shall  not  be  impaired,
    34  unless  any such state law authorizes exclusivity of a negotiated disci-
    35  plinary system and provided further that no provision contained  in  the
    36  town  law,  general city law, second class cities law, general municipal
    37  law, municipal home rule law, county law, or other state, local, special
    38  law or charter provision, or any special police act or other special act
    39  created by local law or charter or otherwise created,  or  this  chapter
    40  shall  prevent  or  impair  the  right  to  collective bargaining for or
    41  modification of disciplinary procedures.
    42    § 4. Section 204-a of the civil service law is amended by adding a new
    43  subdivision 4 to read as follows:
    44    4. The terms of any current or expired  agreement  or  interest  arbi-
    45  tration award between any public employer and any public employee organ-
    46  ization  representing  firefighters  relating  to  the discipline of any
    47  firefighters shall be deemed valid and enforceable  from  the  effective
    48  date of this subdivision.
    49    §  5. This act shall take effect on the first of March next succeeding
    50  the date on which it  shall  have  become  a  law  and  shall  apply  to
    51  proceedings  commenced  on or after such effective date. Effective imme-
    52  diately, the addition, amendment and/or repeal of any rule or regulation
    53  necessary for the implementation of the provisions of this  act  on  its
    54  effective date are authorized to be made and completed on or before such
    55  effective date.
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