Bill Text: NY A03748 | 2023-2024 | General Assembly | Amended
Bill Title: 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 fees to be paid for such hearing officer; provides for suspension, with pay, pending the determination.
Spectrum: Slight Partisan Bill (Democrat 5-2)
Status: (Introduced) 2023-06-10 - substituted by s1039a [A03748 Detail]
Download: New_York-2023-A03748-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 3748--A 2023-2024 Regular Sessions IN ASSEMBLY February 7, 2023 ___________ Introduced by M. of A. PHEFFER AMATO, BRONSON, GUNTHER -- read once and referred to the Committee on Governmental Employees -- 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 and paragraph (a) of subdivision 2-a of 2 section 75 of the civil service law, subdivision 2 as amended by chapter 3 226 of the laws of 1994 and paragraph (a) of subdivision 2-a as added by 4 chapter 674 of the laws of 2022, are amended and a new subdivision 2-b 5 is added to read as follows: 6 2. Procedure; New York city employees. [An] For any employee in the 7 service of the city of New York described in paragraph (a), (b), (c), 8 (d), or (e) of subdivision one of this section, if such employee [who] 9 at the time of questioning appears to be a potential subject of disci- 10 plinary action, he or she shall have a right to representation by his or 11 her certified or recognized employee organization under article fourteen 12 of this chapter and shall be notified in advance, in writing, of such 13 right. [A state employee who is designated managerial or confidential14under article fourteen of this chapter, shall, at the time of question-15ing, where it appears that such employee is a potential subject of16disciplinary action, have a right to representation and shall be noti-17fied in advance, in writing, of such right.] If representation is 18 requested a reasonable period of time shall be afforded to obtain such 19 representation. If the employee is unable to obtain representation with- 20 in a reasonable period of time the employer has the right to then ques- 21 tion the employee. A hearing officer under this section shall have the 22 power to find that a reasonable period of time was or was not afforded. 23 In the event the hearing officer finds that a reasonable period of time EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03619-02-3A. 3748--A 2 1 was not afforded then any and all statements obtained from said ques- 2 tioning as well as any evidence or information obtained as a result of 3 said questioning shall be excluded, provided, however, that this subdi- 4 vision shall not modify or replace any written collective agreement 5 between a public employer and employee organization negotiated pursuant 6 to article fourteen of this chapter. A person against whom removal or 7 other disciplinary action is proposed shall have written notice thereof 8 and of the reasons therefor, shall be furnished a copy of the charges 9 preferred against him or her and shall be allowed at least eight days 10 for answering the same in writing. The hearing upon such charges shall 11 be held by the officer or body having the power to remove the person 12 against whom such charges are preferred, or by a deputy or other person 13 designated by such officer or body in writing for that purpose. In case 14 a deputy or other person is so designated, he or she shall, for the 15 purpose of such hearing, be vested with all the powers of such officer 16 or body and shall make a record of such hearing which shall, with his or 17 her recommendations, be referred to such officer or body for review and 18 decision. The person or persons holding such hearing shall, upon the 19 request of the person against whom charges are preferred, permit him or 20 her to be represented by counsel, or by a representative of a recognized 21 or certified employee organization, and shall allow him or her to summon 22 witnesses in his or her behalf. The burden of proving incompetency or 23 misconduct shall be upon the person alleging the same. Compliance with 24 technical rules of evidence shall not be required. 25 (a) Notwithstanding any other provision of law to the contrary, 26 including but not limited to subdivision four of section seventy-six of 27 this title, any paid officer or member of an organized fire company or 28 fire department of a city of less than one million population, or town, 29 village or fire district who is represented by a certified or recognized 30 employee organization pursuant to article fourteen of this chapter shall 31 not be subjected to the penalty of dismissal from service or any other 32 discipline if the hearing, upon such charge, has been conducted by some- 33 one other than an independent hearing officer to be agreed to by the 34 employer and the person against whom disciplinary action is proposed. If 35 the parties are unable to agree upon a hearing officer, the hearing 36 officer shall be selected from a list of seven names to be provided by 37 the public employment relations board. The public employment relations 38 board shall maintain a list of independent hearing officers for this 39 purpose and for the purpose described in subdivision two-b of this 40 section. The parties shall select the hearing officer by alternately 41 striking names from the list of seven. The hearing officer shall be 42 vested with all powers of the appointing authority, shall conduct and 43 make a record of the hearing, and shall render a final decision. The 44 cost incurred in obtaining such independent hearing officer shall be 45 divided equally between the parties; provided that as may be determined 46 upon the circumstances of the case, the hearing officer shall be author- 47 ized to allocate such cost on the basis of the frivolous nature of any 48 claim made or any defense interposed. In order to find a claim or 49 defense to be frivolous, the hearing officer must find at least one of 50 the following: 51 (i) the claim or defense was commenced, used or continued in bad 52 faith, solely to delay or prolong the resolution of the action or to 53 harass or maliciously injure another; or 54 (ii) the claim or defense was commenced or continued in bad faith 55 without any reasonable basis in law or fact. If the claim or defense was 56 promptly discontinued when the party learned or should have learned thatA. 3748--A 3 1 the claim or defense lacked such reasonable basis, the hearing officer 2 may find that the party did not act in bad faith. A person served with 3 charges may then, however, elect in writing to proceed with a hearing 4 pursuant to the procedures established in subdivision two of this 5 section in lieu of the procedures set forth in this subdivision. 6 2-b. Procedure; non-New York city employees. For any employee 7 described in paragraph (a), (b), (c), or (e) of subdivision one of this 8 section not in the service of the city of New York, the following proce- 9 dure shall apply: An employee under this subdivision who at the time of 10 questioning appears to be a potential subject of disciplinary action 11 shall have a right to representation by his or her certified or recog- 12 nized employee organization under article fourteen of this chapter and 13 shall be notified in advance, in writing, of such right. A state employ- 14 ee who is designated managerial or confidential under article fourteen 15 of this chapter, shall, at the time of questioning, where it appears 16 that such employee is a potential subject of disciplinary action, have a 17 right to representation and shall be notified in advance, in writing, of 18 such right. If representation is requested a reasonable period of time 19 shall be afforded to obtain such representation. If the employee is 20 unable to obtain representation within a reasonable period of time the 21 employer has the right to then question the employee. A hearing officer 22 under this section shall have the power to find that a reasonable period 23 of time was or was not afforded. In the event the hearing officer finds 24 that a reasonable period of time was not afforded then any and all 25 statements obtained from said questioning as well as any evidence or 26 information obtained as a result of said questioning shall be excluded, 27 provided, however, that this subdivision shall not modify or replace any 28 written collective agreement between a public employer and employee 29 organization negotiated pursuant to article fourteen of this chapter. A 30 person against whom removal or other disciplinary action is proposed 31 shall have written notice thereof and of the reasons thereof, shall be 32 furnished a copy of the charges preferred against him or her and shall 33 be allowed at least eight days for answering the same in writing. The 34 hearing upon such charges shall be held by a hearing officer who shall 35 be selected by the mutual agreement of the person against whom discipli- 36 nary action is proposed and of the employing officer or body. If such 37 mutual agreement cannot be reached, then the hearing officer shall be 38 selected from a list of seven names to be provided by the public employ- 39 ment relations board pursuant to subdivision two-a of this section. The 40 parties shall select the hearing officer by alternately striking names 41 from the list of seven. Such hearing officer shall, for the purpose of 42 such hearing, be vested with all the powers of such officer or body and 43 shall make a record of such hearing which shall, with his or her recom- 44 mendations and decision, be referred to such officer or body for imple- 45 mentation. The hearing officer holding such hearing shall, upon the 46 request of the person against whom charges are preferred, permit him or 47 her to be represented by counsel, or by a representative of a recognized 48 or certified employee organization, and shall allow him or her to summon 49 witnesses on his or her behalf. The burden of proving incompetency or 50 misconduct shall be upon the person alleging the same. Compliance with 51 technical rules of evidence shall not be required. The cost incurred in 52 obtaining the independent hearing officer shall be divided equally 53 between the parties; provided that as may be determined upon the circum- 54 stances of the case, the hearing officer shall be authorized to allocate 55 such cost on the basis of the frivolous nature of any claim made or any 56 defense interposed in the manner provided for in paragraph (a) of subdi-A. 3748--A 4 1 vision two-a of this section. Provided, however, that the provisions of 2 this subdivision shall not supersede or apply to an existing hearing 3 officer policy and procedure that is the result of a collective bargain- 4 ing agreement between an employer and a recognized or certified employee 5 organization or any hearing officer policy and procedure currently 6 existing for state employees designated managerial or confidential which 7 was in effect on the effective date of this subdivision. 8 § 2. Subdivision 3 of section 75 of the civil service law, as amended 9 by chapter 710 of the laws of 1984, is amended to read as follows: 10 3. Suspension pending determination of charges; penalties; New York 11 city employees. [Pending] For any employee in the service of the city of 12 New York described in paragraph (a), (b), (c), (d), or (e) of subdi- 13 vision one of this section, pending the hearing and determination of 14 charges of incompetency or misconduct, the officer or employee against 15 whom such charges have been preferred may be suspended without pay for a 16 period not exceeding thirty days. If such officer or employee is found 17 guilty of the charges, the penalty or punishment may consist of a repri- 18 mand, a fine not to exceed one hundred dollars to be deducted from the 19 salary or wages of such officer or employee, suspension without pay for 20 a period not exceeding two months, demotion in grade and title, or 21 dismissal from the service; provided, however, that the time during 22 which an officer or employee is suspended without pay may be considered 23 as part of the penalty. If he or she is acquitted, he or she shall be 24 restored to his or her position with full pay for the period of suspen- 25 sion less the amount of any unemployment insurance benefits he or she 26 may have received during such period. If such officer or employee is 27 found guilty, a copy of the charges, his or her written answer thereto, 28 a transcript of the hearing, and the determination shall be filed in the 29 office of the department or agency in which he or she has been employed, 30 and a copy thereof shall be filed with the civil service commission 31 having jurisdiction over such position. A copy of the transcript of the 32 hearing shall, upon request of the officer or employee affected, be 33 furnished to him or her without charge. 34 § 3. Subdivision 3-a of section 75 of the civil service law, as added 35 by chapter 753 of the laws of 1990, is amended and a new subdivision 3-b 36 is added to read as follows: 37 3-a. Suspension pending determination of charges and penalties relat- 38 ing to police officers of the police department of the city of New York. 39 [Pending] Notwithstanding the provisions of subdivision three of this 40 section, pending the hearing and determination of charges of incompeten- 41 cy or misconduct, a police officer employed by the police department of 42 the city of New York may be suspended without pay for a period not 43 exceeding thirty days. If such officer is found guilty of the charges, 44 the police commissioner of such department may punish the police officer 45 pursuant to the provisions of sections 14-115 and 14-123 of the adminis- 46 trative code of the city of New York. 47 3-b. Suspension pending determination of charges; penalties; non-New 48 York city employees. For any employee described in paragraph (a), (b), 49 (c), or (e) of subdivision one of this section not in the service of 50 the city of New York, pending the hearing and determination of charges 51 of incompetency or misconduct, the officer or employee against whom such 52 charges have been preferred may be suspended for a period not exceeding 53 thirty days. The suspension shall be with pay. If such officer or 54 employee is found guilty of the charges, the penalty or punishment may 55 consist of a reprimand, a fine not to exceed one hundred dollars to be 56 deducted from the salary or wages of such officer or employee, suspen-A. 3748--A 5 1 sion without pay for a period not exceeding two months, demotion in 2 grade and title, or dismissal from the service. If he or she is acquit- 3 ted, he or she shall be restored to his or her position. If such officer 4 or employee is found guilty, a copy of the charges, his or her written 5 answer thereto, a transcript of the hearing, and the determination shall 6 be filed in the office of the department or agency in which he or she 7 has been employed, and a copy thereof shall be filed with the civil 8 service commission having jurisdiction over such position. A copy of the 9 transcript of the hearing shall, upon request of the officer or employee 10 affected, be furnished to him or her without charge. 11 § 4. This act shall take effect immediately.
