NY State Assembly Bill 2009-A10220

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 18, 2010	referred to rules
Jun 17, 2010	delivered to senate passed assembly
May 06, 2010	advanced to third reading cal.844
May 03, 2010	reported
Apr 22, 2010	print number 10220a
Apr 22, 2010	amend and recommit to codes
Apr 20, 2010	reported referred to codes
Mar 11, 2010	referred to governmental employees

Bill Amendments

Original

A (Active)

co-Sponsors

2009-A10220 - Details

Current Committee:: Senate Rules
Law Section:: Civil Service Law
Laws Affected:: Amd §75, Civ Serv L
Versions Introduced in 2011-2012 Legislative Session:: A1378

2009-A10220 - Summary

Relates to independent hearing officers for disciplinary hearings.

2009-A10220 - Sponsor Memo

                                BILL NUMBER:A10220

TITLE  OF  BILL:   An act to amend the civil service law, in relation to
independent hearing officers for disciplinary hearings

PURPOSE: This legislation would require independent hearing officers  to
preside  over, disciplinary hearings when the employer is seeking termi-
nation.

SUMMARY OF PROVISIONS:  Amends section 75 of the Civil Service  Law,  by
adding  a  new  sub-division  2-a  in  which  notwithstanding  any other
provision of law to the contrary, a person represented by a certified or
recognized collective bargaining organization pursuant to article 14  of
this  chapter  shall  be  entitled  to a hearing upon such charges to be
conducted by an independent hearing officer  to  be  agreed  to  by  the
employer and the person against whom disciplinary action is proposed.

If  the  parties  are  unable to agree upon a hearing officer, he or she
shall be selected from a list of seven  names  to  be  provided  by  the
Public  Employee  Relations  Board.  The Public Employee Relations Board
shall select the hearing officer by alternately striking names from  the
list  of  seven.  The hearing officer shall be vested with all powers of
the appointing authority, shall conduct and make a record of.a  hearing;
and shall render a final decision.

JUSTIFICATION:  Under  current law, the appointing authority both brings

charges and renders decisions in disciplinary proceedings. This obvious-
ly creates a conflict of interest and  creates  a  situation  inherently
unfair  to employees. This bill corrects this situation by providing for
the appointment of an independent and neutral hearing officer  who  will
hear charges and render a decision on behalf of the employer.

The bill provides that the light of public opinion will shine upon those
instances  where  the accusation of wrongdoing against a public employee
rises to the level of termination of employment. An  impartial  arbitra-
tor,  professional and experienced will render a determination free from
the internal bruises that cloud the public's perception of public agency
action.

To those who complained that the bill would interfere with  the  collec-
tive  bargaining  process,  the  bill is amended to provide that no such
interference occurs. In fact, in some instances it ensures  a  right  to
collectively  bargain procedures crafted for a particular type of public
employment. In any event, the largest public employee union in the  City
of  New  York, District Council 7, already has a more extensive right by
contract to mandatory binding arbitration of  disciplinary  matters  and
nothing  draconian has occurred in the many years that the provision has
been in existence. The rest of the public employees of the State  should
enjoy this same protection.

Finally, the bill has a safety mechanism to prevent its unwarranted use.
For  an  employee  to request binding arbitration under the provision of

this bill, he or she must split half the cost of  the  arbitration  with
the municipality.

Further,  if  certain behavior of either party is found to be frivolous,
the arbitrator may assign costs to the other  party.  This  is  a  solid
monetary discouragement to prevent abuse of this provision.

LEGISLATIVE  HISTORY:  2007  A.6649  veto  33 2006 A.10082 veto 285 2005
A.6343 Veto 12 2003-04 A8099 veto 13 of 2004  2002:  S.2137-Referred  to
Rules/A.5657-Referred  to Rules 2001: S.2137-Referred to Rules/A.  5657-
Referred to Government Employees.

FISCAL IMPLICATIONS: The cost incurred  in  obtaining  such  independent
hearing  officer  shall be divided equally between the parties; provided
that the hearing officer is authorized to allocate circumstances of  the
case,  the  hearing  officer  is authorized to allocate such cost on the
basis of the frivolous nature of any claim made or  any  defense  inter-
posed.

EFFECTIVE  DATE:  First  of  March  next succeeding the date on which it
shall have become a law and shall apply to proceeding  commenced  on  or
after  such effective date; provided, however, that effective immediate-
ly, the addition, amendment and/or repeal  of  any  rule  or  regulation
necessary for implementation of the provisions of this act on its effec-
tive  date  are  authorized  and directed to be made and completed on or
before such effective date.

2009-A10220 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  10220

                          I N  A S S E M B L Y

                             March 11, 2010
                               ___________

Introduced by M. of A. LENTOL -- 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:

  Section  1. Section 75 of the civil service law is amended by adding a
new subdivision 2-a to read as follows:
  2-A.  INDEPENDENT  HEARING  OFFICER.  (A)  NOTWITHSTANDING  ANY  OTHER
PROVISION OF LAW TO THE CONTRARY, A PERSON WHO IS DESCRIBED IN PARAGRAPH
(A),  (B), (C), (D) OR (E) OF SUBDIVISION ONE OF THIS SECTION AND WHO IS
REPRESENTED BY A CERTIFIED OR RECOGNIZED EMPLOYEE ORGANIZATION  PURSUANT
TO ARTICLE FOURTEEN OF THIS CHAPTER SHALL NOT BE SUBJECTED TO THE PENAL-
TY  OF DISMISSAL FROM SERVICE IF THE HEARING, UPON SUCH CHARGE, HAS BEEN
CONDUCTED BY SOMEONE OTHER THAN AN INDEPENDENT  HEARING  OFFICER  TO  BE
AGREED  TO  BY  THE  EMPLOYER  AND  THE PERSON AGAINST WHOM DISCIPLINARY
ACTION IS PROPOSED. IF THE PARTIES ARE UNABLE TO AGREE  UPON  A  HEARING
OFFICER,  HE  OR  SHE SHALL BE SELECTED FROM A LIST OF SEVEN NAMES TO BE
PROVIDED BY THE PUBLIC EMPLOYMENT RELATIONS BOARD. THE PUBLIC EMPLOYMENT
RELATIONS BOARD SHALL MAINTAIN A LIST OF  INDEPENDENT  HEARING  OFFICERS
FOR THIS PURPOSE. THE PARTIES SHALL SELECT THE HEARING OFFICER BY ALTER-
NATELY  STRIKING NAMES FROM THE LIST OF SEVEN. THE HEARING OFFICER SHALL
BE VESTED WITH ALL POWERS OF THE APPOINTING AUTHORITY, SHALL CONDUCT AND
MAKE A RECORD OF THE HEARING, AND SHALL RENDER  A  FINAL  DECISION.  THE
COST  INCURRED  IN  OBTAINING  SUCH INDEPENDENT HEARING OFFICER SHALL BE
DIVIDED EQUALLY BETWEEN THE PARTIES; PROVIDED THAT AS MAY BE  DETERMINED
UPON THE CIRCUMSTANCES OF THE CASE, THE HEARING OFFICER SHALL BE AUTHOR-
IZED  TO  ALLOCATE SUCH COST ON THE BASIS OF THE FRIVOLOUS NATURE OF ANY
CLAIM MADE OR ANY DEFENSE INTERPOSED.  IN  ORDER  TO  FIND  A  CLAIM  OR
DEFENSE  TO  BE FRIVOLOUS, THE HEARING OFFICER MUST FIND AT LEAST ONE OF
THE FOLLOWING:
  (I) THE CLAIM OR DEFENSE WAS  COMMENCED,  USED  OR  CONTINUED  IN  BAD
FAITH,  SOLELY  TO  DELAY  OR PROLONG THE RESOLUTION OF THE ACTION OR TO
HARASS OR MALICIOUSLY INJURE ANOTHER; OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD16131-01-0

A. 10220                            2

  (II) THE CLAIM OR DEFENSE WAS COMMENCED  OR  CONTINUED  IN  BAD  FAITH
WITHOUT ANY REASONABLE BASIS IN LAW OR FACT. IF THE CLAIM OR DEFENSE WAS
PROMPTLY DISCONTINUED WHEN THE PARTY LEARNED OR SHOULD HAVE LEARNED THAT
THE  CLAIM  OR DEFENSE LACKED SUCH REASONABLE BASIS, THE HEARING OFFICER
MAY  FIND  THAT THE PARTY DID NOT ACT IN BAD FAITH. A PERSON SERVED WITH
CHARGES MAY, HOWEVER, ELECT IN WRITING TO PROCEED WITH A HEARING  PURSU-
ANT  TO THE PROCEDURES ESTABLISHED IN SUBDIVISION TWO OF THIS SECTION IN
LIEU OF THE PROCEDURES SET FORTH IN THIS SUBDIVISION.
  (B) THE RIGHTS SET FORTH IN PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE
IN ADDITION TO, AND SHALL NOT SUPPLANT, MODIFY  OR  REPLACE  ANY  RIGHTS
PROVIDED  TO  AN  EMPLOYEE PURSUANT TO AGREEMENTS NEGOTIATED BY A PUBLIC
EMPLOYER AND AN EMPLOYEE ORGANIZATION PURSUANT TO  ARTICLE  FOURTEEN  OF
THIS CHAPTER.
  S  2. This act shall take effect on the first of March next succeeding
the date on which it  shall  have  become  a  law  and  shall  apply  to
proceedings  commenced  on or after such effective date. Effective imme-
diately, the addition, amendment and/or repeal of any rule or regulation
necessary for the implementation of the provisions of this  act  on  its
effective  date  is  authorized  to  be made on or before such effective
date.

co-Sponsors

2009-A10220A (ACTIVE) - Details

Current Committee:: Senate Rules
Law Section:: Civil Service Law
Laws Affected:: Amd §75, Civ Serv L
Versions Introduced in 2011-2012 Legislative Session:: A1378

2009-A10220A (ACTIVE) - Summary

Relates to independent hearing officers for disciplinary hearings.

2009-A10220A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A10220A

TITLE  OF  BILL:   An act to amend the civil service law, in relation to
independent hearing officers for disciplinary hearings

PURPOSE: This legislation would require independent hearing officers  to
preside  over, disciplinary hearings when the employer is seeking termi-
nation.

SUMMARY OF PROVISIONS:  Amends section 75 of the Civil Service  Law,  by
adding  a  new  sub-division  2-a  in  which  notwithstanding  any other
provision of law to the contrary, a person represented by a certified or
recognized collective bargaining organization pursuant to article 14  of
this  chapter  shall  be  entitled  to a hearing upon such charges to be
conducted by an independent hearing officer  to  be  agreed  to  by  the
employer and the person against whom disciplinary action is proposed.

If  the  parties  are  unable to agree upon a hearing officer, he or she
shall he selected from a list of seven  names  to  be  provided  by  the
Public  Employee  Relations  Board.  The Public Employee Relations Board
shall select the hearing officer by alternately striking names from  the
list  of  seven.  The hearing officer shall be vested with ail powers of
the appointing authority, shall conduct and make a record of a  hearing;
and shall render a final decision.

JUSTIFICATION:  Under  current law, the appointing authority both brings

charges and renders decisions in disciplinary proceedings. This obvious-
ly creates a conflict of interest and  creates  a  situation  inherently
unfair  to employees. This bill corrects this situation by providing for
the appointment of an independent and neutral hearing officer  who  will
hear charges and render a decision on behalf of the employer.

The bill provides that the light of public opinion will shine upon those
instances  where  the accusation of wrongdoing against a public employee
rises to the level of termination of employment. An  impartial  arbitra-
tor,  professional and experienced will render a determination free from
the internal bruises that cloud the public's perception of public agency
action.

To those who complained that the bill would interfere with  the  collec-
tive  bargaining  process,  the  bill is amended to provide that no such
interference occurs. In fact, in some instances it ensures  a  right  to
collectively  bargain procedures crafted for a particular type of public
employment. In any event, the largest public employee union in the  City
of  New  York, District Council 7, already has a more extensive right by
contract to mandatory binding arbitration of  disciplinary  matters  and
nothing  draconian has occurred in the many years that the provision has
been in existence. The rest of the public employees of the State  should
enjoy this same protection.

Finally, the bill has a safety mechanism to prevent its unwarranted use.
For  an  employee  to request binding arbitration under the provision of

this bill, he or she must split half the cost of  the  arbitration  with
the municipality.

Further,  if  certain behavior of either party is found to be frivolous,
the arbitrator may assign costs to the other  party.  This  is  a  solid
monetary discouragement to prevent abuse of this provision.

LEGISLATIVE  HISTORY:  2007  A.6649  veto  33 2006 A.10082 veto 285 2005
A.6343 Veto 12 2003-04 A8099 veto 13 of 2004  2002:  S.2137-Referred  to
Rules/A.5657-Referred  to Rules 2001: S.2137-Referred to Rules/A.  5657-
Referred to Government Employees.

FISCAL IMPLICATIONS: The cost incurred  in  obtaining  such  independent
hearing  officer  shall be divided equally between the parties; provided
that the hearing officer is authorized to allocate circumstances of  the
case,  the  hearing  officer  is authorized to allocate such cost on the
basis of the frivolous nature of any claim made or  any  defense  inter-
posed.

EFFECTIVE  DATE:  First  of  March  next succeeding the date on which it
shall have become a law and shall apply to proceeding  commenced  on  or
after  such effective date; provided, however, that effective immediate-
ly, the addition, amendment and/or repeal  of  any  rule  or  regulation
necessary for implementation of the provisions of this act on its effec-
tive  date  are  authorized  and directed to be made and completed on or
before such effective date.

2009-A10220A (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                10220--A

                          I N  A S S E M B L Y

                             March 11, 2010
                               ___________

Introduced  by  M. of A. LENTOL, COLTON -- read once and referred to the
  Committee on Governmental Employees -- reported and  referred  to  the
  Committee  on  Codes  --  committee  discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee

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:

  Section 1. Section 75 of the civil service law is amended by adding  a
new subdivision 2-a to read as follows:
  2-A.  INDEPENDENT  HEARING  OFFICER.  (A)  NOTWITHSTANDING  ANY  OTHER
PROVISION OF LAW TO THE CONTRARY, A PERSON WHO IS DESCRIBED IN PARAGRAPH
(A), (B), (C), (D) OR (E) OF SUBDIVISION ONE OF THIS SECTION AND WHO  IS
REPRESENTED  BY A CERTIFIED OR RECOGNIZED EMPLOYEE ORGANIZATION PURSUANT
TO ARTICLE FOURTEEN OF THIS CHAPTER SHALL NOT BE SUBJECTED TO THE PENAL-
TY OF DISMISSAL FROM SERVICE IF THE HEARING, UPON SUCH CHARGE, HAS  BEEN
CONDUCTED  BY  SOMEONE  OTHER THAN AN INDEPENDENT HEARING OFFICER.  SUCH
INDEPENDENT HEARING OFFICER SHALL BE A MEMBER  OF  THE  PUBLIC  EMPLOYEE
RELATIONS  BOARD'S  PANEL OF ARBITRATORS ESTABLISHED PURSUANT TO SECTION
TWO HUNDRED SEVEN OF TITLE FOUR OF THE NEW YORK CODES, RULES  AND  REGU-
LATIONS  AND  SUCH INDEPENDENT HEARING OFFICER SHALL BE AGREED TO BY THE
EMPLOYER AND THE PERSON AGAINST WHOM DISCIPLINARY ACTION IS PROPOSED. IF
THE PARTIES ARE UNABLE TO AGREE UPON A HEARING OFFICER, HE OR SHE  SHALL
BE  SELECTED  FROM  A  LIST  OF SEVEN NAMES TO BE PROVIDED BY THE PUBLIC
EMPLOYMENT RELATIONS BOARD. THE PARTIES SHALL SELECT THE HEARING OFFICER
BY ALTERNATELY STRIKING NAMES FROM THE LIST OF SEVEN. THE HEARING  OFFI-
CER  SHALL  BE VESTED WITH ALL POWERS OF THE APPOINTING AUTHORITY, SHALL
CONDUCT AND MAKE A RECORD OF THE HEARING, AND SHALL RENDER A FINAL DECI-
SION. THE COST INCURRED IN OBTAINING SUCH  INDEPENDENT  HEARING  OFFICER
SHALL  BE  DIVIDED  EQUALLY BETWEEN THE PARTIES; PROVIDED THAT AS MAY BE
DETERMINED UPON THE CIRCUMSTANCES OF THE CASE, THE HEARING OFFICER SHALL
BE AUTHORIZED TO ALLOCATE SUCH COST ON THE BASIS OF THE FRIVOLOUS NATURE
OF ANY CLAIM MADE OR ANY DEFENSE INTERPOSED. IN ORDER TO FIND A CLAIM OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD16131-02-0

A. 10220--A                         2

DEFENSE TO BE FRIVOLOUS, THE HEARING OFFICER MUST FIND AT LEAST  ONE  OF
THE FOLLOWING:
  (I)  THE  CLAIM  OR  DEFENSE  WAS  COMMENCED, USED OR CONTINUED IN BAD
FAITH, SOLELY TO DELAY OR PROLONG THE RESOLUTION OF  THE  ACTION  OR  TO
HARASS OR MALICIOUSLY INJURE ANOTHER; OR
  (II)  THE  CLAIM  OR  DEFENSE  WAS COMMENCED OR CONTINUED IN BAD FAITH
WITHOUT ANY REASONABLE BASIS IN LAW OR FACT. IF THE CLAIM OR DEFENSE WAS
PROMPTLY DISCONTINUED WHEN THE PARTY LEARNED OR SHOULD HAVE LEARNED THAT
THE CLAIM OR DEFENSE LACKED SUCH REASONABLE BASIS, THE  HEARING  OFFICER
MAY  FIND  THAT THE PARTY DID NOT ACT IN BAD FAITH. A PERSON SERVED WITH
CHARGES MAY, HOWEVER, ELECT IN WRITING TO PROCEED WITH A HEARING  PURSU-
ANT  TO THE PROCEDURES ESTABLISHED IN SUBDIVISION TWO OF THIS SECTION IN
LIEU OF THE PROCEDURES SET FORTH IN THIS SUBDIVISION.
  (B) THE RIGHTS SET FORTH IN PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE
IN ADDITION TO, AND SHALL NOT SUPPLANT, MODIFY  OR  REPLACE  ANY  RIGHTS
PROVIDED  TO  AN  EMPLOYEE PURSUANT TO AGREEMENTS NEGOTIATED BY A PUBLIC
EMPLOYER AND AN EMPLOYEE ORGANIZATION PURSUANT TO  ARTICLE  FOURTEEN  OF
THIS CHAPTER.
  S  2. This act shall take effect on the first of March next succeeding
the date on which it  shall  have  become  a  law  and  shall  apply  to
proceedings  commenced  on or after such effective date. Effective imme-
diately, the addition, amendment and/or repeal of any rule or regulation
necessary for the implementation of the provisions of this  act  on  its
effective  date is authorized to be made and completed on or before such
effective date.

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Assembly Bill A10220

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

Actions

Bill Amendments

co-Sponsors

2009-A10220 - Details

2009-A10220 - Summary

2009-A10220 - Sponsor Memo

2009-A10220 - Bill Text download pdf

co-Sponsors

2009-A10220A (ACTIVE) - Details

2009-A10220A (ACTIVE) - Summary

2009-A10220A (ACTIVE) - Sponsor Memo

2009-A10220A (ACTIVE) - Bill Text download pdf

Comments

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Assembly Bill A10220

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Sponsored By

LENTOL

Archive: Last Bill Status - In Senate Committee Rules Committee

Actions

Bill Amendments

co-Sponsors

William Colton

2009-A10220 - Details

2009-A10220 - Summary

2009-A10220 - Sponsor Memo

2009-A10220 - Bill Text download pdf

co-Sponsors

William Colton

2009-A10220A (ACTIVE) - Details

2009-A10220A (ACTIVE) - Summary

2009-A10220A (ACTIVE) - Sponsor Memo

2009-A10220A (ACTIVE) - Bill Text download pdf

Comments