Authorizes the commissioner of corrections and community supervision to discipline certain employees for acts of serious misconduct; defines serious misconduct; establishes procedures for such disciplinary action; prohibits employees who have been removed for serious misconduct from being placed on the eligible list after such removal.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5355
SPONSOR: Tapia TITLE OF BILL:
An act to amend the correction law and the civil service law, in
relation to discipline of certain persons for serious misconduct
PURPOSE OR GENERAL IDEA OF BILL:
To establish a new and more accountable procedure for making determi-
nations regarding' allegations of serious misconduct on the part of NYS
Department of Corrections and Community Supervision ("DOCCS") employees.
SUMMARY OF PROVISIONS:
Section 1 adds a new section 12 to the correction law with the following
subsections:
Subsection 1 defines "serious misconduct" as:
-an act of excessive use of force;
-an act of false reporting regarding one or more acts of excessive use
of force;
-an intentional failure to report an act of excessive use of force;
-the introduction of a cellular device, a controlled substance, marijua-
na or any other significantly incapacitating substance to an institution
of DOCCS; or
-an inappropriate sexual relationship or contact with an incarcerated
person or a person under community supervision.
Subsection 2 provides that when a NYS DOCCS employee is alleged to have
committed an act of serious misconduct, the disciplinary procedure that
may be applied shall be the procedure established in this new section 12
of the correction law.
Subsection 3 establishes the categories of employees subject to the
procedure established in this section.
Subsection 4 establishes the disciplinary procedure to be followed When
a covered NYS DOCCS employee is alleged to have engaged in an act of
serious misconduct. Covered employees are afforded full due process
rights in this procedure, including a reasonable period of time to
obtain representation, to be provided with a copy of the charge or
charges, to answer the charge(s) in writing, to summon witnesses on
their behalf, to have a hearing before a hearing officer who shall make
a recommendation to the commissioner. who would ,then make the final
determination, and to receive a transcript of the hearing without
charge. The burden of proof in the hearing shall be on the department.
Subsection 5 states that an employee charged with serious misconduct may
be suspended without pay pending the hearing and determination. This
subsection also lists the range of permissible penalties if an employee
is found to have engaged in an act or acts of serious misconduct.
Subsection 6 provides a right to appeal a finding via the procedure set
forth in Article 78 of the NY Civil Procedure Laws and Rules.
Subsection 7 provides that the commissioner may terminate the employment
of an employee who is convicted of a crime whenever the commissioner
determines the continued employment of such person would not be in the
best interest of the department.
Section 2 adds a new paragraph (i) to civil service law section 50 (4)
adding a new category to the list of individuals whom the state civil
service department or a municipal civil service commission may refuse to
examine, or after examination refuse to certify, specifically, an indi-
vidual who has been disciplined for an act of serious misconduct pursu-
ant to correction law section 12.
Section 3 makes a conforming change to civil service law section 61 (1).
Section 4 amends correction law section 112 (1) to add that the commis-
sioner has authority to place reasonable limits or restrictions on items
an employee may bring into a correctional facility or community super-
vision office that could pose a threat or be used as a weapon.
Section 5 provides for the effective date.
JUSTIFICATION:
This bill places final decision-making authority regarding discipline of
DOCCS staff for acts of serious misconduct in the hands of the DOCCS
Commissioner. Currently, such authority rests with outside arbitrators.
Under the existing procedure, DOCCS has rarely been able to terminate a
correction officer DOCCS alleges to have used excessive and unjustified
physical force against an incarcerated person. That is, even when DOCCS
has concluded an employee has violated the law by, for example, using
excessive and unlawful force, they almost always fail to be able to
terminate such an employee. This is an untenable situation.
This bill was first introduced early in 2024. Since that time the neces-
sity of enacting the reforms contained in this bill has become even
clearer. In December 2024 a group of DOCCS staff members at Marcy
Correctional Facility killed Robert Brooks in a vicious beating within
an examination room in the prison infirmary, a beating caught-without
the knowledge of the staff members involved-on video. The widely shared
video shows multiple officers directly involved in physically attacking
Mr. Brooks, who was handcuffed behind his back and who appears at some
point in the process to be completely nonresponsive. The video also
depicts other staff members, uniformed officers or supervisors as well
as civilian medical personnel, standing by, observing the brutal beat-
ing, and not intervening to stop the attack or to assist Mr. Brooks. In
fact, it appears from the video that none of the DOCCS staff present -
more than a dozen individuals-appeared to think anything out of the
ordinary was occurring. That is, they appear to have believed they would
never be held accountable for their actions. Several of the officers who
appear to have been involved in beating Mr. Brooks were already facing
civil legal actions based on allegations of other incidents of excessive
force. This incident raised significant concerns as to how it could be
that state employees could engage in the conduct shown in the Brooks
videos and the incident brought to light the serious failures and inef-
fectiveness of the existing employee disciplinary procedures within
DOCCS. The need for change in regard to staff discipline in DOCCS is
plain and obvious.
This bill was drafted in response to an in-depth investigation by the
Marshall Project regarding the existing disciplinary system for NY's
prison staff. In a series of reports first published in the New York
Times in May 2023 (1), a stark picture emerged of a staff disciplinary
system that is essentially completely broken and ineffective. The Mars-
hall Project found, for example, that over a twelve-year period, DOCCS
"tried to fire officers or supervisors the agency accused of physically
abusing prisoners or covering up their misconduct in 290 cases. But in
only 10% of those cases did the officers get fired." (2)
The existing arbitrator system provides that the union representing an
accused officer essentially has veto power over the selection of the
arbitrator for the case. As shocking examples of the dysfunction of the
existing system, the Marshall Project reported:
An officer who broke his baton hitting a prisoner 35 times, even after
the man was handcuffed, was not fired. Neither were the guards who beat
a prisoner at Attica Correctional Facility so badly he needed 13 staples
to close gashes in his scalp. Nor were the officers who battered a
mentally ill man, injuring him from face to groin. The man hanged
himself the next day. (3)
The investigation also revealed numerous instances of significant
assaults by staff on incarcerated individuals where DOCCS did not even
charge any officers with misconduct.
This bill, by eliminating the arbitrator system in cases of allegations
of serious misconduct, directly addresses one of the reasons for the
extraordinarily low rate of successful disciplinary cases even when
DOCCS believes there was serious misconduct. This bill also addresses
the so-called a "blue wall" by which officers protect each other by
either providing false information or simply declining to report abuse
they have witnessed. This is accomplished by the definition in the bill
of "serious misconduct", which includes - in addition to acts of exces-
sive force - an act of false reporting regarding one or more acts of
excessive use of force and an intentional failure to report an act of
excessive use of force. The failure of the existing staff disciplinary
procedure to appropriately address acts of serious misconduct has far-
reaching and devastating consequences. First, people are injured by this
serious misconduct, some quite severely. Second, the ability of officers
to use violence with impunity has a ripple effect of encouraging more
violence from staff and violence from incarcerated individuals. Third,
the existing dysfunctional system costs New York State large sums of
money in settlements and court verdicts against DOCCS for excessive and
unlawful force by staff against incarcerated individuals.
Enactment of this bill would be an important step forward in holding
staff accountable if they engage in serious misconduct, in making NY's
prisons safer, in ensuring that the human rights of individuals who are
incarcerated in NY are safeguarded and protected, in helping individuals
engage in positive rehabilitation and transformation while incarcerated,
and in saving the state significant sums of money.
SOCIAL JUSTICE IMPACT
A prison system that is unable to hold staff members who engage in seri-
ous misconduct accountable - including those who use excessive force or
fail to report the use of excessive force - is a system that, at least
tacitly, views excessive and unjustified violence by state employees
against individuals who are incarcerated as acceptable. This has a far-
reaching impact, causing immediate harm to individuals, as well as
establishing an atmosphere of lawlessness withing prisons, and subject-
ing individuals and their families to extended trauma. As people of
color continue to be significantly disproportionately represented in the
prison system, this type of governmental official abuse and lack of
accountability hits Black and brown people and communities the hardest.
Enacting this bill would ensure a measure of justice and dignity for
incarcerated individuals and their loved ones.
LEGISLATIVE HISTORY:
SENATE:
2024: S8480 (Salazar) - referred to Crime Victims, Crime & Correction
ASSEMBLY: No Same as
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
Enactment of this bill will result in significant savings for the State
as the procedures established with this legislation will result in,NY's
prisons being safer and in a reduction in the number of successful and
expensive lawsuits against the State based on instances of excessive and
unjustified force by staff against incarcerated individuals.
EFFECTIVE DATE:
This act shall become effective on the thirtieth day after it shall
become law, provided, however, that section 1 of the act shall take
effect upon the expiration of the current collective bargaining agree-
ment that governs impacted employees of the department.
1 Santo, Neff, and Meagher, "In N.Y. Prisons, Guards Who Brutalize Pris-
oners Rarely. Get Fired",
https://www.nytimes.com/2023/05/19/nvregion/ny- prison-guards-brutality-
fired.html Neff, Santo, and Meagher, "How a 'Blue Wall' Inside N.Y.
State Prisons Protects Abusive Guards",
https://www.nytimes.com/2023/05/22/nyregion/ny- state-prison-guardsa-
buse.html Santo and Neff, "A 'Crazy System': How Arbitration Puts
Abusive Guards Back in New York Prisons",
https://nysfocus.com/2023/12/14/arbitration-prison-abuse- corrections-
officers Santo and Neff, "How We Investigated Abusive Prison Guards
Getting Their Jobs Back in New York",
httos://www.themarshallproject.2023/12/14/new-york-prison-guard- arbi-
tration-how-we-investigated 2 Santo and Neff, "We Spent Two Years Inves-
tigating Abuse by Prison Guards in New York. Here are Five Takeaways.",
https://www.themarshaliprojectorg/2023/05/22/new-york-prison- correc-
tions-officer-disciplinefindings 3 Santo, Neff, and Meagher, "In N.Y.
Prisons, Guards Who Brutalize Prisoners Rarely Get Fired",
https://www.nytimes.com/2023/05/19/nvregion/ny-Prison-guards- brutali-
ty-fired.html
STATE OF NEW YORK
________________________________________________________________________
5355
2025-2026 Regular Sessions
IN ASSEMBLY
February 13, 2025
___________
Introduced by M. of A. TAPIA -- read once and referred to the Committee
on Correction
AN ACT to amend the correction law and the civil service law, in
relation to discipline of certain persons for serious misconduct
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The correction law is amended by adding a new section 12 to
2 read as follows:
3 § 12. Discipline of certain serious misconduct. 1. Definition. For the
4 purposes of this section, the term "serious misconduct" shall mean: an
5 act of excessive use of force; an act of false reporting regarding one
6 or more acts of excessive use of force; an intentional failure to report
7 an act of excessive use of force; the introduction of a cellular device,
8 controlled substance, marihuana or other significantly incapacitating
9 substance to an institution of the department; or an inappropriate sexu-
10 al relationship or contact with an incarcerated person or person under
11 community supervision.
12 2. Acts of misconduct. Notwithstanding any other provision of law,
13 when an employee is alleged to have committed an act of serious miscon-
14 duct then the disciplinary process that may be applied to such employee
15 shall not be governed by any collective bargaining agreement or by
16 section seventy-five of the civil service law but shall be governed by
17 the provisions of this section.
18 3. Disciplinary action. A person holding a position as described in
19 paragraph (a), (b) or (c) of this subdivision shall not be removed from
20 their position or otherwise subjected to any disciplinary penalty
21 authorized pursuant to this section; provided, however, that such person
22 may be removed or otherwise subjected to a disciplinary penalty author-
23 ized pursuant to this section for serious misconduct after a hearing
24 upon stated charges pursuant to this section. This subdivision shall
25 apply to:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04463-01-5
A. 5355 2
1 (a) a person holding a position by permanent appointment in the
2 competitive class of the classified civil service; or
3 (b) a person holding a position by permanent appointment or employment
4 in the classified service of the state, who was honorably discharged or
5 released under honorable circumstances from the armed forces of the
6 United States, including (i) having a qualifying condition as defined in
7 section one of the veterans' services law, and receiving a discharge
8 other than bad conduct or dishonorable from such service, or (ii) being
9 a discharged LGBT veteran, as defined in section one of the veterans'
10 services law, and receiving a discharge other than bad conduct or
11 dishonorable from such service, having served therein as such member
12 in time of war as defined in section eighty-five of the civil service
13 law, or who is an exempt volunteer firefighter as defined in the general
14 municipal law, except when such person holds the position of private
15 secretary, cashier or deputy of any official or department; or
16 (c) an employee holding a position in the non-competitive class other
17 than a position designated in the rules of the state civil service
18 commission as confidential or requiring the performance of functions
19 influencing policy, who since such employee's last entry into service
20 has completed at least five years of continuous service in the non-com-
21 petitive class in a position or positions not so designated in the rules
22 as confidential or requiring the performance of functions influencing
23 policy.
24 4. Procedure. An employee holding a position as described in paragraph
25 (a), (b) or (c) of subdivision three of this section who at the time of
26 questioning appears to be a potential subject of disciplinary action for
27 an act or acts of serious misconduct shall have right to representation
28 by such employee's certified or recognized employee organization under
29 article fourteen of the civil service law and shall be notified in
30 advance, in writing, of such right. An employee holding a position as
31 described in paragraph (a), (b) or (c) of subdivision three of this
32 section who is designated managerial or confidential under article four-
33 teen of the civil service law, shall have, at the time of questioning,
34 where it appears that such employee is a potential subject of discipli-
35 nary action for an act of serious misconduct, a right to representation
36 and shall be notified in advance, in writing, of such right. If repre-
37 sentation is requested, a reasonable period of time shall be afforded to
38 obtain such representation. If the employee is unable to obtain repre-
39 sentation within a reasonable period of time, then the department may
40 proceed with questioning the employee. A hearing officer appointed for
41 the purposes of this section shall determine if a reasonable period of
42 time was or was not afforded. In the event the hearing officer finds
43 that a reasonable period of time was not afforded then any and all
44 statements obtained from such questioning, as well as any evidence or
45 information obtained as a result of such questioning shall be excluded.
46 A person against whom removal or other disciplinary action is proposed
47 shall be provided written notice and shall be furnished a copy of the
48 charge or charges proffered against such person and shall be allowed at
49 least eight days for answering such charges in writing. The hearing upon
50 such charges shall be held by a hearing officer, selected by the commis-
51 sioner or the commissioner's designee. The hearing officer shall be
52 vested with all the powers of the commissioner and shall make a record
53 of such hearing, which shall, along with such officer's recommendation,
54 be referred to the commissioner for review and final determination. The
55 hearing officer shall, upon the request of the employee against whom
56 charges are proffered, permit such employee to be represented by coun-
A. 5355 3
1 sel, or by a representative of a recognized or certified employee organ-
2 ization, and shall allow them to summon witnesses on their behalf. The
3 burden of proving serious misconduct shall be upon the department.
4 Compliance with technical rules of evidence shall not be required.
5 5. Suspension pending determination of charges; penalties. (a) Pending
6 the hearing and determination of charges of serious misconduct, the
7 employee against whom such charges have been proffered may be suspended
8 without pay. If the employee is found guilty of a charge or charges of
9 serious misconduct, the recommended penalty or punishment may consist of
10 any combination of the following:
11 (i) a letter of reprimand;
12 (ii) removal from work location and transfer;
13 (iii) a fine to be deducted from the salary or wages of such employee;
14 (iv) probation for a specified period, provided any further violation
15 can lead to termination;
16 (v) suspension without pay;
17 (vi) demotion in grade and title; or
18 (vii) dismissal from the service and loss of accumulated leave cred-
19 its.
20 (b) Provided, however, that the time during the pendency of the hear-
21 ing, in which an employee is suspended without pay, may be considered as
22 part of the penalty. The final determination of the commissioner on the
23 recommendation from the hearing officer shall be made within ten busi-
24 ness days of receipt of such recommendation. If the employee is acquit-
25 ted of all charges, such employee shall be restored to their position
26 with full pay for the period of suspension less the amount of any unem-
27 ployment insurance benefits that may have been received. If such employ-
28 ee is found guilty of one or more of the charges, a copy of the charges,
29 the employee's written answer, a transcript of the hearing, and the
30 final determination of the commissioner shall be filed in the bureau of
31 labor relations and the employee's personnel file. A copy of the tran-
32 script of the hearing shall, upon request of the affected employee, be
33 furnished to such employee without charge.
34 6. Appeal. When an employee believes they are aggrieved by a penalty
35 of fine, probation, suspension, demotion or dismissal from service
36 imposed pursuant to this section, such employee may make an application
37 to the appropriate court in accordance with the provisions of article
38 seventy-eight of the civil practice law and rules.
39 7. Termination. Notwithstanding any other provision of law, the
40 commissioner, in the commissioner's discretion, may terminate the
41 employment of any employee who is convicted of a crime whenever the
42 commissioner determines that the continued employment of such person
43 would not be in the best interest of the department. Notwithstanding the
44 foregoing, no employee shall be terminated pursuant to this section
45 unless such employee shall first have been furnished with a written
46 statement of the reasons for such determination and afforded an opportu-
47 nity by the commissioner, or the commissioner's designee, to make an
48 explanation and to submit facts in opposition thereto.
49 § 2. Paragraph (h) of subdivision 4 of section 50 of the civil service
50 law, as added by chapter 790 of the laws of 1958, is amended and a new
51 paragraph (i) is added to read as follows:
52 (h) who has been dismissed from private employments because of habitu-
53 ally poor performance[.]; or
54 (i) who has been disciplined for an act of serious misconduct as set
55 forth in subdivision one of section twelve of the correction law.
A. 5355 4
1 § 3. Subdivision 1 of section 61 of the civil service law, as added by
2 chapter 790 of the laws of 1958, is amended to read as follows:
3 1. Appointment or promotion from eligible lists. Appointment or
4 promotion from an eligible list to a position in the competitive class
5 shall be made by the selection of one of the three persons certified by
6 the appropriate civil service commission as standing highest on such
7 eligible list who are willing to accept such appointment or promotion;
8 provided, however, that the state or a municipal commission may provide,
9 by rule, that where it is necessary to break ties among eligibles having
10 the same final examination ratings in order to determine their respec-
11 tive standings on the eligible list, appointment or promotion may be
12 made by the selection of any eligible whose final examination rating is
13 equal to or higher than the final examination rating of the third high-
14 est standing eligible willing to accept such appointment or promotion;
15 provided further, however, that an individual's name shall be suspended
16 from the eligible list pending the outcome of the review of the appli-
17 cant's qualifications pursuant to subdivision four of section fifty of
18 this article. Appointments and promotions shall be made from the eligi-
19 ble list most nearly appropriate for the position to be filled.
20 § 4. Subdivision 1 of section 112 of the correction law, as amended by
21 chapter 322 of the laws of 2021, is amended to read as follows:
22 1. The commissioner [of corrections and community supervision] shall
23 have the superintendence, management and control of the correctional
24 facilities in the department and of the incarcerated individuals
25 confined therein, and of all matters relating to the government, disci-
26 pline, policing, contracts and fiscal concerns thereof. [He or she] The
27 commissioner shall have the power and it shall be [his or her] the
28 commissioner's duty to inquire into all matters connected with said
29 correctional facilities. [He or she] The commissioner shall make such
30 rules and regulations, not in conflict with the statutes of this state,
31 for the government of the officers and other employees of the department
32 assigned to said facilities, and in regard to the duties to be performed
33 by them, and for the government and discipline of each correctional
34 facility, as [he or she] the commissioner may deem proper, and shall
35 cause such rules and regulations to be recorded by the superintendent of
36 the facility, and a copy thereof to be furnished to each employee
37 assigned to the facility. [He or she] With due consideration for overall
38 safety and security, the commissioner shall also have the power to place
39 reasonable limits or restrictions on the items an employee may bring
40 into a correctional facility or community supervision office when
41 reporting for duty, that can pose a threat or be used as a weapon. The
42 commissioner shall also prescribe a system of accounts and records to be
43 kept at each correctional facility, which system shall be uniform at all
44 of said facilities, and [he or she] the commissioner shall also make
45 rules and regulations for a record of photographs and other means of
46 identifying each incarcerated individual received into said facilities.
47 [He or she] The commissioner shall appoint and remove, subject to the
48 civil service law, subordinate officers and other employees of the
49 department who are assigned to correctional facilities.
50 § 5. This act shall take effect on the thirtieth day after it shall
51 have become a law; provided, however, that section one of this act shall
52 take effect upon the expiration of the current collective bargaining
53 agreement that governs impacted employees of the department of
54 corrections and community supervision; provided further, however, that
55 the commissioner of corrections and community supervision shall notify
56 the legislative bill drafting commission upon the expiration of the
A. 5355 5
1 current collective bargaining agreement that governs impacted employees
2 of the department of corrections and community supervision in order that
3 the commission may maintain an accurate and timely effective data base
4 of the official text of the laws of the state of New York in furtherance
5 of effectuating the provisions of section 44 of the legislative law and
6 section 70-b of the public officers law; provided further, however, that
7 notwithstanding any other provision of law to the contrary, once these
8 provisions take effect they cannot be abrogated, amended, enhanced or
9 modified in any way by future collective bargaining.
