NY State Senate Bill 2009-S680

Senate Bill S680

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 Senate Committee Civil Service And Pensions 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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to civil service and pensions
Jan 12, 2009	referred to civil service and pensions

co-Sponsors

2009-S680 (ACTIVE) - Details

See Assembly Version of this Bill:: A7712
Current Committee:: Senate Civil Service And Pensions
Law Section:: Civil Service Law
Laws Affected:: Amd §75-b, Civ Serv L

2009-S680 (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-S680 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S680

 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 information 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 hearing 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
possessing 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
attorney 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 :
S.1582 of 2007, S.6983 of 2008

 FISCAL IMPLICATIONS :
None.

 LOCAL FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
Effective Immediately.

2009-S680 (ACTIVE) - Bill Text download pdf

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

                                   680

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 12, 2009
                               ___________

Introduced  by  Sens.  LARKIN, GOLDEN, GRIFFO, LEIBELL -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Civil Service and Pensions

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
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

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

S. 680                              2

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
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-

S. 680                              3

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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Senate Bill S680

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Sponsored By

William Larkin