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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8915
SPONSOR: Pheffer Amato TITLE OF BILL:
An act to amend the civil service law, in relation to hearing procedures
for certain public employees
PURPOSE:
Provides for procedures to be followed in appointing a hearing officer
for removal and disciplinary action against certain public employees.
SUMMARY OF PROVISIONS:
Sections 1, 2, and 3 amend Section 75 of the Civil Service Law to
provide that disciplinary hearings against individual employees not in
the service of the City of New York shall be held by an independent
hearing officer from a list maintained by the Public Employment
Relations Board, selected by the mutual agreement of the parties
involved. The decision of the hearing officer will be required to be
implemented by the employer. In addition, this legislation provides that
such employees may be suspended with pay during such disciplinary
action. The bill maintains current disciplinary hearing procedures for
individual employees in the service of the City of New York.
Section 4 is the effective date.
JUSTIFICATION:
The purpose of this bill is to ensure an impartial and fair due process
hearing for permanent non-New York City government employees who are the
subject of disciplinary charges as outlined in Section 75 of the Civil
Service Law. The bill maintains existing disciplinary process for New
York City employees, however, due to the decades-long success that the
Trials Division of the New York City Office of Administrative Trials and
Hearings (OATH) has had in adjudicating these cases within its jurisdic-
tion and the corpus of case law it has established by its rulings.
Under the present provisions of Section 75 of the Civil Service Law,
individuals who have attained permanent appointment as employees under
the jurisdiction of the Civil Service Law may be removed from their
positions or have other disciplinary actions taken (i.e., suspension
without pay, demotion from grade and title) after a hearing held before
the officer or body who has brought the charges. The employing officer
or body therefore becomes both the prosecutor and the judge of the
permanent employees actions.
This bill would provide a more fair procedure in which the hearing is
before an impartial arbitrator selected upon mutual agreement of the
parties from a list maintained for this purpose by the public employment
relations board. The hearing officer would hear the case and determine
the appropriate penalty, if any. Such a system would give both the
employer and the employee a fair opportunity to present their respective
sides of the case and allow for impartial adjudication.
In addition, by protecting civil service employees from being suspended
without pay during such procedures, this bill conforms to disciplinary
hearing procedures brought against tenured teachers pursuant to Section
3020-A of the Education Law, thus ensuring the same due process for
civil service employees.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
8915
IN ASSEMBLY
January 26, 2024
___________
Introduced by M. of A. PHEFFER AMATO -- read once and referred to the
Committee on Governmental Employees
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 confidential
14 under article fourteen of this chapter, shall, at the time of question-
15 ing, where it appears that such employee is a potential subject of
16 disciplinary action, have a right to representation and shall be noti-
17 fied 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
24 was not afforded then any and all statements obtained from said ques-
25 tioning as well as any evidence or information obtained as a result of
26 said questioning shall be excluded, provided, however, that this subdi-
27 vision shall not modify or replace any written collective agreement
28 between a public employer and employee organization negotiated pursuant
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03619-04-4
A. 8915 2
1 to article fourteen of this chapter. A person against whom removal or
2 other disciplinary action is proposed shall have written notice thereof
3 and of the reasons therefor, shall be furnished a copy of the charges
4 preferred against him or her and shall be allowed at least eight days
5 for answering the same in writing. The hearing upon such charges shall
6 be held by the officer or body having the power to remove the person
7 against whom such charges are preferred, or by a deputy or other person
8 designated by such officer or body in writing for that purpose. In case
9 a deputy or other person is so designated, he or she shall, for the
10 purpose of such hearing, be vested with all the powers of such officer
11 or body and shall make a record of such hearing which shall, with his or
12 her recommendations, be referred to such officer or body for review and
13 decision. The person or persons holding such hearing shall, upon the
14 request of the person against whom charges are preferred, permit him or
15 her to be represented by counsel, or by a representative of a recognized
16 or certified employee organization, and shall allow him or her to summon
17 witnesses in his or her behalf. The burden of proving incompetency or
18 misconduct shall be upon the person alleging the same. Compliance with
19 technical rules of evidence shall not be required.
20 (a) Notwithstanding any other provision of law to the contrary,
21 including but not limited to subdivision four of section seventy-six of
22 this title, any paid officer or member of an organized fire company or
23 fire department of a city of less than one million population, or town,
24 village or fire district who is represented by a certified or recognized
25 employee organization pursuant to article fourteen of this chapter shall
26 not be subjected to the penalty of dismissal from service or any other
27 discipline if the hearing, upon such charge, has been conducted by some-
28 one other than an independent hearing officer to be agreed to by the
29 employer and the person against whom disciplinary action is proposed. If
30 the parties are unable to agree upon a hearing officer, the hearing
31 officer shall be selected from a list of seven names to be provided by
32 the public employment relations board. The public employment relations
33 board shall maintain a list of independent hearing officers for this
34 purpose and for the purpose described in subdivision two-b of this
35 section. The parties shall select the hearing officer by alternately
36 striking names from the list of seven. The hearing officer shall be
37 vested with all powers of the appointing authority, shall conduct and
38 make a record of the hearing, and shall render a final decision. The
39 cost incurred in obtaining such independent hearing officer shall be
40 divided equally between the parties; provided that as may be determined
41 upon the circumstances of the case, the hearing officer shall be author-
42 ized to allocate such cost on the basis of the frivolous nature of any
43 claim made or any defense interposed. In order to find a claim or
44 defense to be frivolous, the hearing officer must find at least one of
45 the following:
46 (i) the claim or defense was commenced, used or continued in bad
47 faith, solely to delay or prolong the resolution of the action or to
48 harass or maliciously injure another; or
49 (ii) the claim or defense was commenced or continued in bad faith
50 without any reasonable basis in law or fact. If the claim or defense was
51 promptly discontinued when the party learned or should have learned that
52 the claim or defense lacked such reasonable basis, the hearing officer
53 may find that the party did not act in bad faith. A person served with
54 charges may then, however, elect in writing to proceed with a hearing
55 pursuant to the procedures established in subdivision two of this
56 section in lieu of the procedures set forth in this subdivision.
A. 8915 3
1 2-b. Procedure; non-New York city employees. For any employee
2 described in paragraph (a), (b), (c), or (e) of subdivision one of this
3 section not in the service of the city of New York, the following proce-
4 dure shall apply: An employee under this subdivision who at the time of
5 questioning appears to be a potential subject of disciplinary action
6 shall have a right to representation by his or her certified or recog-
7 nized employee organization under article fourteen of this chapter and
8 shall be notified in advance, in writing, of such right. A state employ-
9 ee who is designated managerial or confidential under article fourteen
10 of this chapter, shall, at the time of questioning, where it appears
11 that such employee is a potential subject of disciplinary action, have a
12 right to representation and shall be notified in advance, in writing, of
13 such right. If representation is requested a reasonable period of time
14 shall be afforded to obtain such representation. If the employee is
15 unable to obtain representation within a reasonable period of time the
16 employer has the right to then question the employee. A hearing officer
17 under this section shall have the power to find that a reasonable period
18 of time was or was not afforded. In the event the hearing officer finds
19 that a reasonable period of time was not afforded then any and all
20 statements obtained from said questioning as well as any evidence or
21 information obtained as a result of said questioning shall be excluded,
22 provided, however, that this subdivision shall not modify or replace any
23 written collective agreement between a public employer and employee
24 organization negotiated pursuant to article fourteen of this chapter. A
25 person against whom removal or other disciplinary action is proposed
26 shall have written notice thereof and of the reasons thereof, shall be
27 furnished a copy of the charges preferred against him or her and shall
28 be allowed at least eight days for answering the same in writing. The
29 hearing upon such charges shall be held by a hearing officer who shall
30 be selected by the mutual agreement of the person against whom discipli-
31 nary action is proposed and of the employing officer or body. If such
32 mutual agreement cannot be reached, then the hearing officer shall be
33 selected from a list of seven names to be provided by the public employ-
34 ment relations board pursuant to subdivision two-a of this section. The
35 parties shall select the hearing officer by alternately striking names
36 from the list of seven. Such hearing officer shall, for the purpose of
37 such hearing, be vested with all the powers of such officer or body and
38 shall make a record of such hearing which shall, with his or her recom-
39 mendations and decision, be referred to such officer or body for imple-
40 mentation. The hearing officer holding such hearing shall, upon the
41 request of the person against whom charges are preferred, permit him or
42 her to be represented by counsel, or by a representative of a recognized
43 or certified employee organization, and shall allow him or her to summon
44 witnesses on his or her behalf. The burden of proving incompetency or
45 misconduct shall be upon the person alleging the same. Compliance with
46 technical rules of evidence shall not be required. The cost incurred in
47 obtaining the independent hearing officer shall be divided equally
48 between the parties; provided that as may be determined upon the circum-
49 stances of the case, the hearing officer shall be authorized to allocate
50 such cost on the basis of the frivolous nature of any claim made or any
51 defense interposed in the manner provided for in paragraph (a) of subdi-
52 vision two-a of this section. Provided, however, that the provisions of
53 this subdivision shall not supersede or apply to an existing hearing
54 officer policy and procedure that is the result of a collective bargain-
55 ing agreement between an employer and a recognized or certified employee
56 organization or any hearing officer policy and procedure currently
A. 8915 4
1 existing for state employees designated managerial or confidential which
2 was in effect on the effective date of this subdivision.
3 § 2. Subdivision 3 of section 75 of the civil service law, as amended
4 by chapter 710 of the laws of 1984, is amended to read as follows:
5 3. Suspension pending determination of charges; penalties; New York
6 city employees. [Pending] For any employee in the service of the city of
7 New York described in paragraph (a), (b), (c), (d), or (e) of subdi-
8 vision one of this section, pending the hearing and determination of
9 charges of incompetency or misconduct, the officer or employee against
10 whom such charges have been preferred may be suspended without pay for a
11 period not exceeding thirty days. If such officer or employee is found
12 guilty of the charges, the penalty or punishment may consist of a repri-
13 mand, a fine not to exceed one hundred dollars to be deducted from the
14 salary or wages of such officer or employee, suspension without pay for
15 a period not exceeding two months, demotion in grade and title, or
16 dismissal from the service; provided, however, that the time during
17 which an officer or employee is suspended without pay may be considered
18 as part of the penalty. If he or she is acquitted, he or she shall be
19 restored to his or her position with full pay for the period of suspen-
20 sion less the amount of any unemployment insurance benefits he or she
21 may have received during such period. If such officer or employee is
22 found guilty, a copy of the charges, his or her written answer thereto,
23 a transcript of the hearing, and the determination shall be filed in the
24 office of the department or agency in which he or she has been employed,
25 and a copy thereof shall be filed with the civil service commission
26 having jurisdiction over such position. A copy of the transcript of the
27 hearing shall, upon request of the officer or employee affected, be
28 furnished to him or her without charge.
29 § 3. Subdivision 3-a of section 75 of the civil service law, as added
30 by chapter 753 of the laws of 1990, is amended and a new subdivision 3-b
31 is added to read as follows:
32 3-a. Suspension pending determination of charges and penalties relat-
33 ing to police officers of the police department of the city of New York.
34 [Pending] Notwithstanding the provisions of subdivision three of this
35 section, pending the hearing and determination of charges of incompeten-
36 cy or misconduct, a police officer employed by the police department of
37 the city of New York may be suspended without pay for a period not
38 exceeding thirty days. If such officer is found guilty of the charges,
39 the police commissioner of such department may punish the police officer
40 pursuant to the provisions of sections 14-115 and 14-123 of the adminis-
41 trative code of the city of New York.
42 3-b. Suspension pending determination of charges; penalties; non-New
43 York city employees. For any employee described in paragraph (a), (b),
44 (c), or (e) of subdivision one of this section not in the service of
45 the city of New York, pending the hearing and determination of charges
46 of incompetency or misconduct, the officer or employee against whom such
47 charges have been preferred may be suspended for a period not exceeding
48 thirty days. The suspension shall be with pay. If such officer or
49 employee is found guilty of the charges, the penalty or punishment may
50 consist of a reprimand, a fine not to exceed one hundred dollars to be
51 deducted from the salary or wages of such officer or employee, suspen-
52 sion without pay for a period not exceeding two months, demotion in
53 grade and title, or dismissal from the service. If he or she is acquit-
54 ted, he or she shall be restored to his or her position. If such officer
55 or employee is found guilty, a copy of the charges, his or her written
56 answer thereto, a transcript of the hearing, and the determination shall
A. 8915 5
1 be filed in the office of the department or agency in which he or she
2 has been employed, and a copy thereof shall be filed with the civil
3 service commission having jurisdiction over such position. A copy of the
4 transcript of the hearing shall, upon request of the officer or employee
5 affected, be furnished to him or her without charge.
6 § 4. This act shall take effect immediately.
