S T A T E O F N E W Y O R K
________________________________________________________________________
1378
2011-2012 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 5, 2011
___________
Introduced by M. of A. LENTOL, COLTON -- 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 disciplinary hearings
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 75 of the civil service law is amended by adding a
2 new subdivision 2-a to read as follows:
3 2-A. INDEPENDENT HEARING OFFICER. (A) NOTWITHSTANDING ANY OTHER
4 PROVISION OF LAW TO THE CONTRARY, A PERSON WHO IS DESCRIBED IN PARAGRAPH
5 (A), (B), (C), (D) OR (E) OF SUBDIVISION ONE OF THIS SECTION AND WHO IS
6 REPRESENTED BY A CERTIFIED OR RECOGNIZED EMPLOYEE ORGANIZATION PURSUANT
7 TO ARTICLE FOURTEEN OF THIS CHAPTER SHALL NOT BE SUBJECTED TO THE PENAL-
8 TY OF DISMISSAL FROM SERVICE IF THE HEARING, UPON SUCH CHARGE, HAS BEEN
9 CONDUCTED BY SOMEONE OTHER THAN AN INDEPENDENT HEARING OFFICER. SUCH
10 INDEPENDENT HEARING OFFICER SHALL BE A MEMBER OF THE PUBLIC EMPLOYEE
11 RELATIONS BOARD'S PANEL OF ARBITRATORS ESTABLISHED PURSUANT TO PART TWO
12 HUNDRED SEVEN OF TITLE FOUR OF THE NEW YORK CODES, RULES AND REGULATIONS
13 AND SUCH INDEPENDENT HEARING OFFICER SHALL BE AGREED TO BY THE EMPLOYER
14 AND THE PERSON AGAINST WHOM DISCIPLINARY ACTION IS PROPOSED. IF THE
15 PARTIES ARE UNABLE TO AGREE UPON A HEARING OFFICER, HE OR SHE SHALL BE
16 SELECTED FROM A LIST OF SEVEN NAMES TO BE PROVIDED BY THE PUBLIC EMPLOY-
17 MENT RELATIONS BOARD. THE PARTIES SHALL SELECT THE HEARING OFFICER BY
18 ALTERNATELY STRIKING NAMES FROM THE LIST OF SEVEN. THE HEARING OFFICER
19 SHALL BE VESTED WITH ALL POWERS OF THE APPOINTING AUTHORITY, SHALL
20 CONDUCT AND MAKE A RECORD OF THE HEARING, AND SHALL RENDER A FINAL DECI-
21 SION. THE COST INCURRED IN OBTAINING SUCH INDEPENDENT HEARING OFFICER
22 SHALL BE DIVIDED EQUALLY BETWEEN THE PARTIES; PROVIDED THAT AS MAY BE
23 DETERMINED UPON THE CIRCUMSTANCES OF THE CASE, THE HEARING OFFICER SHALL
24 BE AUTHORIZED TO ALLOCATE SUCH COST ON THE BASIS OF THE FRIVOLOUS NATURE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03859-01-1
A. 1378 2
1 OF ANY CLAIM MADE OR ANY DEFENSE INTERPOSED. IN ORDER TO FIND A CLAIM OR
2 DEFENSE TO BE FRIVOLOUS, THE HEARING OFFICER MUST FIND AT LEAST ONE OF
3 THE FOLLOWING:
4 (I) THE CLAIM OR DEFENSE WAS COMMENCED, USED OR CONTINUED IN BAD
5 FAITH, SOLELY TO DELAY OR PROLONG THE RESOLUTION OF THE ACTION OR TO
6 HARASS OR MALICIOUSLY INJURE ANOTHER; OR
7 (II) THE CLAIM OR DEFENSE WAS COMMENCED OR CONTINUED IN BAD FAITH
8 WITHOUT ANY REASONABLE BASIS IN LAW OR FACT. IF THE CLAIM OR DEFENSE WAS
9 PROMPTLY DISCONTINUED WHEN THE PARTY LEARNED OR SHOULD HAVE LEARNED THAT
10 THE CLAIM OR DEFENSE LACKED SUCH REASONABLE BASIS, THE HEARING OFFICER
11 MAY FIND THAT THE PARTY DID NOT ACT IN BAD FAITH. A PERSON SERVED WITH
12 CHARGES MAY, HOWEVER, ELECT IN WRITING TO PROCEED WITH A HEARING PURSU-
13 ANT TO THE PROCEDURES ESTABLISHED IN SUBDIVISION TWO OF THIS SECTION IN
14 LIEU OF THE PROCEDURES SET FORTH IN THIS SUBDIVISION.
15 (B) THE RIGHTS SET FORTH IN PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE
16 IN ADDITION TO, AND SHALL NOT SUPPLANT, MODIFY OR REPLACE ANY RIGHTS
17 PROVIDED TO AN EMPLOYEE PURSUANT TO AGREEMENTS NEGOTIATED BY A PUBLIC
18 EMPLOYER AND AN EMPLOYEE ORGANIZATION PURSUANT TO ARTICLE FOURTEEN OF
19 THIS CHAPTER.
20 S 2. This act shall take effect on the first of March next succeeding
21 the date on which it shall have become a law and shall apply to
22 proceedings commenced on or after such effective date. Effective imme-
23 diately, the addition, amendment and/or repeal of any rule or regulation
24 necessary for the implementation of the provisions of this act on its
25 effective date is authorized to be made and completed on or before such
26 effective date.