Provides procedures to be followed in appointing a hearing officer for removal and disciplinary action against certain public employees not in the service of the city of New York, including the use of a member of the American Arbitration Association as the hearing officer and the fees to be paid therefor; provides for suspension, with pay, pending the determination except where the employee has entered a guilty plea to a felony crime involving criminal sale or possession of a controlled substance.
STATE OF NEW YORK
________________________________________________________________________
5205--B
2019-2020 Regular Sessions
IN SENATE
April 16, 2019
___________
Introduced by Sens. GOUNARDES, 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 committee,
ordered to first and second report, ordered to a third reading,
amended and ordered reprinted, retaining its place in the order of
third reading -- recommitted to the Committee on Civil Service and
Pensions in accordance with Senate Rule 6, sec. 8 -- 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 of section 75 of the civil service law, as
2 amended by chapter 226 of the laws of 1994, is amended and a new subdi-
3 vision 2-a is added to read as follows:
4 2. Procedure; New York city employees. [An] For any employee in the
5 service of the city of New York described in paragraph (a), (b), (c),
6 (d), or (e) of subdivision one of this section, if such employee [who]
7 at the time of questioning appears to be a potential subject of disci-
8 plinary action, he or she shall have a right to representation by his or
9 her certified or recognized employee organization under article fourteen
10 of this chapter and shall be notified in advance, in writing, of such
11 right. [A state employee who is designated managerial or confidential
12 under article fourteen of this chapter, shall, at the time of question-
13 ing, where it appears that such employee is a potential subject of
14 disciplinary action, have a right to representation and shall be noti-
15 fied in advance, in writing, of such right.] If representation is
16 requested a reasonable period of time shall be afforded to obtain such
17 representation. If the employee is unable to obtain representation with-
18 in a reasonable period of time the employer has the right to then ques-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11197-04-0
S. 5205--B 2
1 tion the employee. A hearing officer under this section shall have the
2 power to find that a reasonable period of time was or was not afforded.
3 In the event the hearing officer finds that a reasonable period of time
4 was not afforded then any and all statements obtained from said ques-
5 tioning as well as any evidence or information obtained as a result of
6 said questioning shall be excluded, provided, however, that this subdi-
7 vision shall not modify or replace any written collective agreement
8 between a public employer and employee organization negotiated pursuant
9 to article fourteen of this chapter. A person against whom removal or
10 other disciplinary action is proposed shall have written notice thereof
11 and of the reasons therefor, shall be furnished a copy of the charges
12 preferred against him or her and shall be allowed at least eight days
13 for answering the same in writing. The hearing upon such charges shall
14 be held by the officer or body having the power to remove the person
15 against whom such charges are preferred, or by a deputy or other person
16 designated by such officer or body in writing for that purpose. In case
17 a deputy or other person is so designated, he or she shall, for the
18 purpose of such hearing, be vested with all the powers of such officer
19 or body and shall make a record of such hearing which shall, with his or
20 her recommendations, be referred to such officer or body for review and
21 decision. The person or persons holding such hearing shall, upon the
22 request of the person against whom charges are preferred, permit him or
23 her to be represented by counsel, or by a representative of a recognized
24 or certified employee organization, and shall allow him or her to summon
25 witnesses in his or her behalf. The burden of proving incompetency or
26 misconduct shall be upon the person alleging the same. Compliance with
27 technical rules of evidence shall not be required.
28 2-a. Procedure; non-New York city employees. For any employee
29 described in paragraph (a), (b), (c), or (e) of subdivision one of this
30 section not in the service of the city of New York, the following proce-
31 dure shall apply: An employee under this subdivision who at the time of
32 questioning appears to be a potential subject of disciplinary action
33 shall have a right to representation by his or her certified or recog-
34 nized employee organization under article fourteen of this chapter and
35 shall be notified in advance, in writing, of such right. A state employ-
36 ee who is designated managerial or confidential under article fourteen
37 of this chapter, shall, at the time of questioning, where it appears
38 that such employee is a potential subject of disciplinary action, have a
39 right to representation and shall be notified in advance, in writing, of
40 such right. If representation is requested a reasonable period of time
41 shall be afforded to obtain such representation. If the employee is
42 unable to obtain representation within a reasonable period of time the
43 employer has the right to then question the employee. A hearing officer
44 under this section shall have the power to find that a reasonable period
45 of time was or was not afforded. In the event the hearing officer finds
46 that a reasonable period of time was not afforded then any and all
47 statements obtained from said questioning as well as any evidence or
48 information obtained as a result of said questioning shall be excluded,
49 provided, however, that this subdivision shall not modify or replace any
50 written collective agreement between a public employer and employee
51 organization negotiated pursuant to article fourteen of this chapter. A
52 person against whom removal or other disciplinary action is proposed
53 shall have written notice thereof and of the reasons thereof, shall be
54 furnished a copy of the charges preferred against him or her and shall
55 be allowed at least eight days for answering the same in writing. The
56 hearing upon such charges shall be held by a hearing officer who shall
S. 5205--B 3
1 be a member of the American Arbitration Association, and such hearing
2 officer shall be selected by the mutual agreement of the person against
3 whom disciplinary action is proposed and of the employing officer or
4 body. If such mutual agreement cannot be reached, then the hearing offi-
5 cer shall be selected pursuant to the rules of the American Arbitration
6 Association. Such hearing officer shall, for the purpose of such hear-
7 ing, be vested with all the powers of such officer or body and shall
8 make a record of such hearing which shall, with his or her recommenda-
9 tions and decision, be referred to such officer or body for implementa-
10 tion. The hearing officer holding such hearing shall, upon the request
11 of the person against whom charges are preferred, permit him or her to
12 be represented by counsel, or by a representative of a recognized or
13 certified employee organization, and shall allow him or her to summon
14 witnesses on his or her behalf. The burden of proving incompetency or
15 misconduct shall be upon the person alleging the same. Compliance with
16 technical rules of evidence shall not be required. The hearing officer
17 shall be paid a fee which is equivalent to the normal and customary fee
18 paid to him or her for services as an arbitrator under the auspices of
19 the American Arbitration Association. Provided, however, that the
20 provisions of this subdivision shall not supersede or apply to an exist-
21 ing hearing officer policy and procedure that is the result of a collec-
22 tive bargaining agreement between an employer and a recognized or certi-
23 fied employee organization which was in effect on the effective date of
24 this subdivision.
25 § 2. Subdivision 3 of section 75 of the civil service law, as amended
26 by chapter 710 of the laws of 1984, is amended to read as follows:
27 3. Suspension pending determination of charges; penalties; New York
28 city employees. [Pending] For any employee in the service of the city of
29 New York described in paragraph (a), (b), (c), (d), or (e) of subdi-
30 vision one of this section, pending the hearing and determination of
31 charges of incompetency or misconduct, the officer or employee against
32 whom such charges have been preferred may be suspended without pay for a
33 period not exceeding thirty days. If such officer or employee is found
34 guilty of the charges, the penalty or punishment may consist of a repri-
35 mand, a fine not to exceed one hundred dollars to be deducted from the
36 salary or wages of such officer or employee, suspension without pay for
37 a period not exceeding two months, demotion in grade and title, or
38 dismissal from the service; provided, however, that the time during
39 which an officer or employee is suspended without pay may be considered
40 as part of the penalty. If he or she is acquitted, he or she shall be
41 restored to his or her position with full pay for the period of suspen-
42 sion less the amount of any unemployment insurance benefits he or she
43 may have received during such period. If such officer or employee is
44 found guilty, a copy of the charges, his or her written answer thereto,
45 a transcript of the hearing, and the determination shall be filed in the
46 office of the department or agency in which he or she has been employed,
47 and a copy thereof shall be filed with the civil service commission
48 having jurisdiction over such position. A copy of the transcript of the
49 hearing shall, upon request of the officer or employee affected, be
50 furnished to him or her without charge.
51 § 3. Subdivision 3-a of section 75 of the civil service law, as added
52 by chapter 753 of the laws of 1990, is amended and a new subdivision 3-b
53 is added to read as follows:
54 3-a. Suspension pending determination of charges and penalties relat-
55 ing to police officers of the police department of the city of New York.
56 [Pending] Notwithstanding the provisions of subdivision three of this
S. 5205--B 4
1 section, pending the hearing and determination of charges of incompeten-
2 cy or misconduct, a police officer employed by the police department of
3 the city of New York may be suspended without pay for a period not
4 exceeding thirty days. If such officer is found guilty of the charges,
5 the police commissioner of such department may punish the police officer
6 pursuant to the provisions of sections 14-115 and 14-123 of the adminis-
7 trative code of the city of New York.
8 3-b. Suspension pending determination of charges; penalties; non-New
9 York city employees. For any employee described in paragraph (a), (b),
10 (c), or (e) of subdivision one of this section not in the service of
11 the city of New York, pending the hearing and determination of charges
12 of incompetency or misconduct, the officer or employee against whom such
13 charges have been preferred may be suspended for a period not exceeding
14 thirty days. The suspension shall be with pay, except the employee may
15 be suspended without pay if the employee has entered a guilty plea to or
16 has been convicted of a felony crime concerning the criminal sale or
17 possession of a controlled substance or a precursor of a controlled
18 substance. If such officer or employee is found guilty of the charges,
19 the penalty or punishment may consist of a reprimand, a fine not to
20 exceed one hundred dollars to be deducted from the salary or wages of
21 such officer or employee, suspension without pay for a period not
22 exceeding two months, demotion in grade and title, or dismissal from the
23 service; provided, however, that the time during which an officer or
24 employee is suspended without pay may be considered as part of the
25 penalty. If he or she is acquitted, he or she shall be restored to his
26 or her position. If such officer or employee is found guilty, a copy of
27 the charges, his or her written answer thereto, a transcript of the
28 hearing, and the determination shall be filed in the office of the
29 department or agency in which he or she has been employed, and a copy
30 thereof shall be filed with the civil service commission having juris-
31 diction over such position. A copy of the transcript of the hearing
32 shall, upon request of the officer or employee affected, be furnished to
33 him or her without charge.
34 § 4. This act shall take effect immediately.
