Assembly Bill A7712

2009-2010 Legislative Session

Prohibits certain adverse actions by public employers to be taken against public employees for the reporting of certain violations endangering children

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Archive: Last Bill Status - In Assembly 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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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 18, 2010	reported referred to codes
Jan 06, 2010	referred to governmental employees
Apr 22, 2009	referred to governmental employees

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2009-A7712 (ACTIVE) - Details

See Senate Version of this Bill:: S680
Current Committee:: Assembly Codes
Law Section:: Civil Service Law
Laws Affected:: Amd §75-b, Civ Serv L

2009-A7712 (ACTIVE) - Summary

Prohibits certain adverse actions by public employers to be taken against public employees and provides remedies for violations and increases the scope of protected employee activity; includes elimination of job title or classification within the meaning of personnel action; protects disclosure of a violation which could reasonably be expected to lead to endangering the welfare of a minor, including but not limited to physical, mental, or sexual misuse or abuse; authorizes an employee to proceed in a court of competent jurisdiction to prohibit a public employer from taking adverse personnel action.

2009-A7712 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A7712               Revised 04/05/10

TITLE OF BILL:  An act to amend the civil service law, in relation to
retaliatory actions by public employers taken against public employees

PURPOSE:  This bill expands the current whistle blower statute that
protects public employees who are the subject of adverse public employer
actions other than disciplinary actions that are covered under the law.

SUMMARY OF PROVISIONS:  Section 1: Amends Civil Service Law section 75-b
which protects "whistle blower" public employees that disclose informa-
tion regarding a violation of law by a public employer that presents a
substantial danger to the public health or safety. This bill:

- Expands protections to public employees who expose situations during
the course of their employment that could reasonably lead to endangering
the welfare of a minor, including, but not limited to physical, mental
or sexual misuse or abuse.

- Broadens the types of actions taken by public employers that punish or
impose retribution on "whistle blowing" public employees to include the
elimination of a job title or classification that uniquely fits and
singles out one individual. Under current law, public employees are only
protected when such employee becomes the subject of a disciplinary hear-
ing or other disciplinary action.

- The court may award attorney fees to public employees that prevail in
court when challenging public employer actions in which an employee
experienced retribution or other adverse actions due to the whistle
blowing conduct of a public employee. Further, when no disciplinary
action had been filed by the public employer, but an adverse action,
such as eliminating the public employee's job title, has occurred, under
current law, the public employee must hire their own lawyer at their own
expense to challenge the adverse action allegedly perpetrated by the
public employer. This bill will allow for the compensation of a public
employee of their legal costs that were incurred to fight a wrongful
termination.

A similar bill was Vetoed by governor Spitzer in 2007 because of certain
technical problems. This bill addresses those technical problems. First,
the bill clearly limits its provisions to individuals who targeted for
whistle blower activities. Second, the bill makes it abundantly clear
that the aggrieved employee has the burden to prove that he was targeted
for retribution. Third, the retroactive provision of the former bill was
removed.

EXISTING LAW: See above.

JUSTIFICATION:  In Orange County, a school employee had his job title
"eliminated" (hence his job) by a local school district. Coincidentally,
this is the same employee who provided information to the Orange County
District Attorney's office about the superintendent of school's possess-

ing pornography. The information supplied by this public employee to law
enforcement officials raised several red flags and was used by the DA's
office to help convict the superintendent of schools for molesting a
teenage male student and of possessing illegal sexual materials.

Under the current "whistle blower" statue, the elimination of a job
title by a school district is not covered under Civil Service Law
section 75-b. Further, since this termination is not covered by this
law, the public employee must obtain and pay for his own private attor-
ney to defend his job termination. This bill awards attorney fees for
public employees that successfully prevail against public employers for
their wrongful actions in court.

This bill should give public employees a level of confidence that "when
they supply important information to law enforcement officials about the
conduct of illegal activity that adversely affects the welfare of a
minor, including, but not limited to physical, mental or sexual misuse
or abuse, that their jobs will be protected.

LEGISLATIVE HISTORY:  2008 - A.10142 - Passed Assembly

FISCAL IMPLICATIONS: None.

LOCAL FISCAL IMPLICATIONS: None.

EFFECTIVE DATE:  This act shall take effect immediately.

2009-A7712 (ACTIVE) - Bill Text download pdf

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

                                  7712

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             April 22, 2009
                               ___________

Introduced  by  M.  of A. WEISENBERG, COLTON, GABRYSZAK, SPANO, LANCMAN,
  MILLMAN, ROSENTHAL, BROOK-KRASNY, MAISEL, BARRA, ALFANO, RAIA, MOLINA-
  RO, TOWNSEND, KELLNER, ESPAILLAT, EDDINGTON -- Multi-Sponsored  by  --
  M.  of A. BOYLAND, CALHOUN, CONTE, COOK, CROUCH, DUPREY, FINCH, GALEF,
  GIGLIO, GREENE, HYER-SPENCER, JOHN, KOON,  LATIMER,  MAYERSOHN,  McDO-
  NOUGH,  McENENY,  PHEFFER,  ROBINSON,  SALADINO,  SCHIMEL, SCOZZAFAVA,
  SWEENEY, THIELE, TOBACCO, WALKER -- read  once  and  referred  to  the
  Committee on Governmental Employees

AN  ACT  to  amend  the  civil  service  law, in relation to retaliatory
  actions by public employers taken against public employees

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

  Section  1. Section 75-b of the civil service law, as added by chapter
660 of the laws of 1984, paragraph (a) of subdivision 2  as  amended  by
chapter 899 of the laws of 1986, is amended to read as follows:
  S 75-b. Retaliatory action by public employers. 1. For the purposes of
this section the term:
  (a)  "Public  employer"  or "employer" shall mean (i) the state of New
York, (ii) a county, city, town, village, or any other political  subdi-
vision  or  civil  division of the state, (iii) a school district or any
governmental entity operating a public school,  college  or  university,
(iv)  a  public improvement or special district, (v) a public authority,
commission or public benefit  corporation,  or  (vi)  any  other  public
corporation,  agency,  instrumentality or unit of government which exer-
cises governmental power under the laws of the state.
  (b) "Public employee" or "employee" shall mean any  person  holding  a
position by appointment or employment in the service of a public employ-
er, except judges or justices of the unified court system and members of
the legislature.
  (c)  "Governmental  body" shall mean (i) an officer, employee, agency,
department, division, bureau, board, commission, council,  authority  or

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05303-01-9

A. 7712                             2

other  body of a public employer, (ii) employee, committee, member[,] or
commission of the legislative branch of government,  (iii)  a  represen-
tative,  member  or  employee  of  a legislative body of a county, town,
village,  or  any  other  political subdivision or civil division of the
state, (iv) a law enforcement agency or any member or employee of a  law
enforcement  agency, or (v) the judiciary or any employee of the judici-
ary.
  (d) "Personnel action" shall mean an  action  affecting  compensation,
appointment,  promotion,  transfer,  ELIMINATION OF JOB TITLE OR CLASSI-
FICATION,  assignment,  reassignment,  reinstatement  or  evaluation  of
performance.
  2.  (a) A public employer shall not dismiss or take other disciplinary
or other adverse personnel action against a  public  employee  regarding
the  employee's  employment  because the employee discloses to a govern-
mental body information: (i) regarding a violation of  a  law,  rule  or
regulation,  which  violation  creates  and  presents  a substantial and
specific danger to the public health or safety, OR WHICH  COULD  REASON-
ABLY  BE EXPECTED TO LEAD TO ENDANGERING THE WELFARE OF A MINOR, INCLUD-
ING BUT NOT LIMITED TO PHYSICAL, MENTAL OR SEXUAL MISUSE  OR  ABUSE;  or
(ii)  which  the  employee reasonably believes to be true and reasonably
believes constitutes an improper governmental action. "Improper  govern-
mental  action"  shall mean any action by a public employer or employee,
or an agent of such employer or employee, which  is  undertaken  in  the
performance  of such agent's official duties, whether or not such action
is within the scope of his OR HER employment, and which is in  violation
of any federal, state or local law, rule or regulation.
  (b)  Prior to disclosing information pursuant to paragraph (a) of this
subdivision, an employee shall have made a good faith effort to  provide
the  appointing  authority  or his or her designee the information to be
disclosed and shall [provide] HAVE PROVIDED the appointing authority  or
designee  a reasonable time to take appropriate action, unless (I) there
is imminent and serious danger to public health or safety, OR (II)  SUCH
VIOLATION  COULD  REASONABLY  BE EXPECTED TO RAPIDLY LEAD TO ENDANGERING
THE WELFARE OF A MINOR, INCLUDING BUT NOT LIMITED TO PHYSICAL, MENTAL OR
SEXUAL MISUSE OR ABUSE.   For  the  purposes  of  this  subdivision,  an
employee  who  acts  pursuant  to this paragraph shall be deemed to have
disclosed information to a governmental body under paragraph (a) of this
subdivision.
  3. (a) Where an employee is subject to dismissal or other disciplinary
action under a final and binding arbitration provision, or other  disci-
plinary  procedure  contained in a collectively negotiated agreement, or
under section seventy-five of this title or any other provision of state
or local law, OR THE ELIMINATION OF JOB  TITLE  OR  CLASSIFICATION  THAT
UNIQUELY  FITS AND SINGLES OUT SUCH EMPLOYEE and the employee reasonably
believes THAT SUCH dismissal [or], other  disciplinary  action,  OR  ANY
OTHER  ADVERSE  PERSONNEL  ACTION  would not have been taken but for the
conduct protected under subdivision two of this section, he or  she  may
assert  such  as  a  defense before the designated arbitrator or hearing
officer.  The merits of such defense shall be considered and  determined
as  part  of  the  arbitration  award or hearing officer decision of the
matter. If there is a finding that the dismissal [or],  other  discipli-
nary  action, OR OTHER PERSONNEL ACTION is based [solely] PRIMARILY on a
violation by the employer of such subdivision, the arbitrator or hearing
officer  shall  dismiss  or  recommend  dismissal  of  the  disciplinary
proceeding,  as appropriate, and, if appropriate, reinstate the employee
with back pay, and, in the case of an arbitration  procedure,  may  take

A. 7712                             3

other  appropriate action as is permitted in the collectively negotiated
agreement.
  (b)  Where  an employee is subject to a collectively negotiated agree-
ment which  contains  provisions  preventing  an  employer  from  taking
adverse  personnel  actions and which contains a final and binding arbi-
tration provision to resolve alleged violations of  such  provisions  of
the  agreement  and the employee reasonably believes that such personnel
action would not have been taken but for  the  conduct  protected  under
subdivision  two  of  this section, he or she may assert such as a claim
before the arbitrator. The arbitrator  shall  consider  such  claim  and
determine  its  merits  and  shall, if a determination is made that such
adverse personnel action is based on a violation by the employer of such
subdivision, take such action to remedy the violation as is permitted by
the collectively negotiated agreement.
  (B-1) WHERE AN EMPLOYEE IS THE SUBJECT OF AN ADVERSE PERSONNEL ACTION,
SUCH AS THE ELIMINATION OF A JOB TITLE OR CLASSIFICATION  THAT  UNIQUELY
FITS AND SINGLES OUT SUCH EMPLOYEE, AND ACTION IS NOT AN ADVERSE PERSON-
NEL  ACTION  THAT  IS  SUBJECT TO A HEARING, AND THE EMPLOYEE REASONABLY
BELIEVES THAT SUCH PERSONNEL ACTION WOULD NOT HAVE BEEN  TAKEN  BUT  FOR
THE  CONDUCT  PROTECTED  UNDER  SUBDIVISION  TWO  OF  THIS SECTION, SUCH
EMPLOYEE MAY BRING AN ACTION OR  PROCEEDING  IN  A  COURT  OF  COMPETENT
JURISDICTION  TO  PROHIBIT SUCH PUBLIC EMPLOYER FROM TAKING SUCH ACTION.
THE COURT SHALL CONSIDER SUCH CLAIM AND DETERMINE ITS MERITS;  PROVIDED,
THAT THE PUBLIC EMPLOYER MAY PRESENT EVIDENCE THAT THE ADVERSE PERSONNEL
ACTION  WAS  TAKEN  INDEPENDENTLY  OF THE EMPLOYEE'S CONDUCT PURSUANT TO
SUBDIVISION TWO OF THIS SECTION. A  CLAIM  OF  AN  INDEPENDENT,  ADVERSE
PERSONNEL  ACTION  BY  A  PUBLIC EMPLOYER MUST BE PROVEN BY THE AFFECTED
EMPLOYEE BY A PREPONDERANCE OF  THE  EVIDENCE.    THE  COURT  MAY  AWARD
REASONABLE  ATTORNEYS'  FEES,  COSTS,  AND DISBURSEMENTS TO A PREVAILING
PLAINTIFF EMPLOYEE.
  (c) Where an employee is not subject to any of the provisions of para-
graph (a) or (b) of this  subdivision,  the  employee  may  commence  an
action  in  a  court  of competent jurisdiction under the same terms and
conditions as set forth in article twenty-C of the labor law.
  4. Nothing in this section shall be deemed to diminish or  impair  the
rights of a public employee or employer under any law, rule, regulation,
or collectively negotiated agreement or to prohibit any personnel action
which  otherwise  would  have been taken regardless of any disclosure of
information.
  S 2. This act shall take effect immediately.

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Assembly Bill A7712

Sponsored By

Archive: Last Bill Status - In Assembly Committee

Actions

co-Sponsors

multi-Sponsors

2009-A7712 (ACTIVE) - Details

2009-A7712 (ACTIVE) - Summary

2009-A7712 (ACTIVE) - Sponsor Memo

2009-A7712 (ACTIVE) - Bill Text download pdf

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Assembly Bill A7712

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Sponsored By

WEISENBERG

Archive: Last Bill Status - In Assembly Committee

Actions

co-Sponsors

William Colton

Dennis H. Gabryszak

Mike Spano

Rory Lancman

multi-Sponsors

William Boyland

Nancy Calhoun

James Conte

Vivian Cook

2009-A7712 (ACTIVE) - Details

2009-A7712 (ACTIVE) - Summary

2009-A7712 (ACTIVE) - Sponsor Memo

2009-A7712 (ACTIVE) - Bill Text download pdf

Comments