S T A T E O F N E W Y O R K
________________________________________________________________________
5743
2011-2012 Regular Sessions
I N A S S E M B L Y
February 28, 2011
___________
Introduced by M. of A. ABBATE -- read once and referred to the Committee
on Governmental Employees
AN ACT to amend the civil service law, in relation to hearing procedures
for certain public employees
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 2 of section 75 of the civil service law, as
amended by chapter 226 of the laws of 1994, is amended to read as
follows:
2. Procedure. An employee who at the time of questioning appears to be
a potential subject of disciplinary action shall have a right to repre-
sentation by his or her certified or recognized employee organization
under article fourteen of this chapter and shall be notified in advance,
in writing, of such right. A state employee who is designated managerial
or confidential under article fourteen of this chapter, shall, at the
time of questioning, where it appears that such employee is a potential
subject of disciplinary action, have a right to representation and shall
be notified in advance, in writing, of such right. If representation is
requested a reasonable period of time shall be afforded to obtain such
representation. If the employee is unable to obtain representation with-
in a reasonable period of time the employer has the right to then ques-
tion the employee. A hearing officer under this section shall have the
power to find that a reasonable period of time was or was not afforded.
In the event the hearing officer finds that a reasonable period of time
was not afforded then any and all statements obtained from said ques-
tioning as well as any evidence or information obtained as a result of
said questioning shall be excluded, provided, however, that this subdi-
vision shall not modify or replace any written collective agreement
between a public employer and employee organization negotiated pursuant
to article fourteen of this chapter. A person against whom removal or
other disciplinary action is proposed shall have written notice thereof
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09075-01-1
A. 5743 2
and of the reasons therefor, shall be furnished a copy of the charges
preferred against him OR HER and shall be allowed at least eight days
for answering the same in writing. The hearing upon such charges shall
be held by [the officer or body having the power to remove the person
against whom such charges are preferred, or by a deputy or other person
designated by such officer or body in writing for that purpose. In case
a deputy or other person is so designated, he] A HEARING OFFICER WHO
SHALL BE A MEMBER OF THE AMERICAN ARBITRATION ASSOCIATION, AND SUCH
HEARING OFFICER SHALL BE SELECTED BY THE MUTUAL AGREEMENT OF THE PERSON
AGAINST WHOM DISCIPLINARY ACTION IS PROPOSED AND OF THE EMPLOYING OFFI-
CER OR BODY. IF SUCH MUTUAL AGREEMENT CANNOT BE REACHED, THEN THE HEAR-
ING OFFICER SHALL BE SELECTED PURSUANT TO THE RULES OF THE AMERICAN
ARBITRATION ASSOCIATION. SUCH HEARING OFFICER shall, for the purpose of
such hearing, be vested with all the powers of such officer or body and
shall make a record of such hearing which shall, with his OR HER recom-
mendations AND DECISION, be referred to such officer or body for [review
and decision] IMPLEMENTATION. The [person or persons] HEARING OFFICER
holding such hearing shall, upon the request of the person against whom
charges are preferred, permit him OR HER to be represented by counsel,
or by a representative of a recognized or certified employee organiza-
tion, and shall allow him OR HER to summon witnesses in his OR HER
behalf. The burden of proving incompetency or misconduct shall be upon
the person alleging the same. Compliance with technical rules of
evidence shall not be required. THE HEARING OFFICER SHALL BE PAID A FEE
WHICH IS EQUIVALENT TO THE NORMAL AND CUSTOMARY FEE PAID TO HIM OR HER
FOR SERVICES AS AN ARBITRATOR UNDER THE AUSPICES OF THE AMERICAN ARBI-
TRATION ASSOCIATION.
S 2. Subdivision 3 of section 75 of the civil service law, as amended
by chapter 710 of the laws of 1984, is amended to read as follows:
3. Suspension pending determination of charges; penalties. Pending
the hearing and determination of charges of incompetency or misconduct,
the officer or employee against whom such charges have been preferred
may be suspended [without pay] for a period not exceeding thirty days.
THE SUSPENSION SHALL BE WITH PAY, EXCEPT THE EMPLOYEE MAY BE SUSPENDED
WITHOUT PAY IF THE EMPLOYEE HAS ENTERED A GUILTY PLEA TO OR HAS BEEN
CONVICTED OF A FELONY CRIME CONCERNING THE CRIMINAL SALE OR POSSESSION
OF A CONTROLLED SUBSTANCE OR A PRECURSOR OF A CONTROLLED SUBSTANCE. If
such officer or employee is found guilty of the charges, the penalty or
punishment may consist of a reprimand, a fine not to exceed one hundred
dollars to be deducted from the salary or wages of such officer or
employee, suspension without pay for a period not exceeding two months,
demotion in grade and title, or dismissal from the service; provided,
however, that the time during which an officer or employee is suspended
without pay may be considered as part of the penalty. If he OR SHE is
acquitted, he OR SHE shall be restored to his OR HER position [with full
pay for the period of suspension less the amount of any unemployment
insurance benefits he may have received during such period]. If such
officer or employee is found guilty, a copy of the charges, his OR HER
written answer thereto, a transcript of the hearing, and the determi-
nation shall be filed in the office of the department or agency in which
he OR SHE has been employed, and a copy thereof shall be filed with the
civil service commission having jurisdiction over such position. A copy
of the transcript of the hearing shall, upon request of the officer or
employee affected, be furnished to him OR HER without charge.
S 3. This act shall take effect immediately.