S T A T E O F N E W Y O R K
________________________________________________________________________
1378
2011-2012 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 5, 2011
___________
Introduced by M. of A. LENTOL, COLTON -- 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. SUCH
INDEPENDENT HEARING OFFICER SHALL BE A MEMBER OF THE PUBLIC EMPLOYEE
RELATIONS BOARD'S PANEL OF ARBITRATORS ESTABLISHED PURSUANT TO PART TWO
HUNDRED SEVEN OF TITLE FOUR OF THE NEW YORK CODES, RULES AND REGULATIONS
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 EMPLOY-
MENT RELATIONS BOARD. THE PARTIES 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 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03859-01-1
A. 1378 2
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
(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.