Assembly Bill A3544

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

                                  3544

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 27, 2009
                               ___________

Introduced  by M. of A. PERRY -- read once and referred to the Committee
  on Judiciary

AN ACT to amend the judiciary law and the civil service law, in relation
  to judicial review of punishment for certain contempt citations

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Paragraph (a) of subdivision 2 of section 751 of the judi-
ciary law, as amended by chapter 254 of the laws of 1983, is amended  to
read as follows:
  (a)  Where an employee organization, as defined in section two hundred
one of the civil service law, wilfully disobeys a lawful  mandate  of  a
court  of  record, or wilfully offers resistance to such lawful mandate,
in a case involving or growing out of a strike in violation of  subdivi-
sion  one  of  section  two  hundred  ten  of the civil service law, the
punishment for each day that such contempt persists may  be  by  a  fine
fixed in the discretion of the court. In the case of a government exempt
from  certain  provisions  of article fourteen of the civil service law,
pursuant to section two hundred twelve of such law, the court may, as an
additional punishment for such contempt, order forfeiture of the  rights
granted  pursuant to the provisions of paragraph (b) of subdivision one,
and subdivision three of section two hundred eight of such law, for such
specified period of time[, as the  court  shall  determine  or,  in  the
discretion of the court, for an indefinite period of time] NOT TO EXCEED
THIRTY DAYS, subject to restoration upon application, with notice to all
interested parties, supported by proof of good faith compliance with the
requirements  of subdivision one of section two hundred ten of the civil
service law since the date of such violation, such proof to include, for
example, the successful negotiation, without a violation of  subdivision
one  of  section two hundred ten of the civil service law, of a contract
covering the employees in the unit affected by such violation; provided,
however, that where a fine imposed pursuant to this subdivision  remains

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02089-01-9
              

A. 3544                             2

wholly or partly unpaid, after the exhaustion of the cash and securities
of  the employee organization, such forfeiture shall be suspended to the
extent necessary for the unpaid portion of such fine to  be  accumulated
by  the  public  employer  and  transmitted  to the court. In fixing the
amount of the fine and/or duration of the forfeiture,  the  court  shall
consider  all  the  facts  and  circumstances  directly  related  to the
contempt, including, but not limited to: (i) the extent  of  the  wilful
defiance  of  or  a resistance to the court's mandate (ii) the impact of
the strike on the public health, safety, and welfare  of  the  community
and  (iii)  the  ability  of  the  employee organization to pay the fine
imposed; and the court may consider (i)  the  refusal  of  the  employee
organization  or  the appropriate public employer, as defined in section
two hundred one of the civil service law, or the representatives  there-
of,  to  submit to the mediation and fact-finding procedures provided in
section two hundred nine of the civil service law and (ii)  whether,  if
so  alleged by the employee organization AND WHEN VIEWED IN A LIGHT MOST
FAVORABLE TO SUCH EMPLOYEE ORGANIZATION, the appropriate public employer
or its representatives engaged in such acts of extreme provocation as to
detract from the responsibility of the  employee  organization  for  the
strike.  In  determining the ability of the employee organization to pay
the fine imposed, the court shall  consider  both  the  income  and  the
assets of such employee organization.
  S  2.  Paragraph  (f)  of  subdivision  3  of section 210 of the civil
service law, as amended by chapter 677 of the laws of 1977,  is  amended
to read as follows:
  (f) If the board determines that an employee organization has violated
the provisions of subdivision one of this section, the board shall order
forfeiture of the rights granted pursuant to the provisions of paragraph
(b)  of  subdivision  one,  and subdivision three of section two hundred
eight of this chapter, for such specified period of time [as  the  board
shall  determine,  or, in the discretion of the board, for an indefinite
period of time] NOT TO EXCEED THIRTY DAYS subject  to  restoration  upon
application,  with  notice to all interested parties, supported by proof
of good faith compliance with the requirements  of  subdivision  one  of
this  section  since  the date of such violation, such proof to include,
for example, the successful negotiation, without a violation of subdivi-
sion one of this section, of a contract covering the  employees  in  the
unit  affected  by  such violation; provided, however, that where a fine
imposed on an employee  organization  pursuant  to  subdivision  two  of
section  seven  hundred fifty-one of the judiciary law remains wholly or
partly unpaid, after the exhaustion of the cash and  securities  of  the
employee organization, the board shall direct that, notwithstanding such
forfeiture,  such  membership  dues  deduction shall be continued to the
extent necessary to pay such fine and such public employer shall  trans-
mit  such moneys to the court. In fixing the duration of the forfeiture,
the board shall consider  all  the  relevant  facts  and  circumstances,
including  but  not limited to: (i) the extent of any wilful defiance of
subdivision one of this section (ii) the impact of  the  strike  on  the
public health, safety, and welfare of the community and (iii) the finan-
cial  resources of the employee organization; and the board may consider
(i) the refusal of the employee organization or the  appropriate  public
employer  or  the representative thereof, to submit to the mediation and
fact-finding procedures provided in section two hundred  nine  and  (ii)
whether, if so alleged by the employee organization AND WHEN VIEWED IN A
LIGHT  MOST  FAVORABLE  TO  SUCH  EMPLOYEE ORGANIZATION, the appropriate
public employer or its representatives engaged in such acts  of  extreme

A. 3544                             3

provocation as to detract from the responsibility of the employee organ-
ization  for  the  strike. In determining the financial resources of the
employee organization, the board shall consider both the income and  the
assets  of  such employee organization. In the event membership dues are
collected by the public employer as provided in paragraph (b) of  subdi-
vision  one  of section two hundred eight of this chapter, the books and
records of such public employer shall be prima  facie  evidence  of  the
amount so collected.
  S 3. This act shall take effect immediately.