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.
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.
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.
