S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4784--A
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 8, 2021
                                ___________
 
 Introduced by M. of A. ABBATE -- read once and referred to the Committee
   on  Governmental  Employees  --  committee  discharged,  bill amended,
   ordered reprinted as amended and recommitted to said committee
 
 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 and a new  subdi-
 vision 2-a is added to read as follows:
   2.  Procedure;  NEW  YORK CITY EMPLOYEES. [An] FOR ANY EMPLOYEE IN THE
 SERVICE OF THE CITY OF NEW YORK DESCRIBED IN PARAGRAPH  (A),  (B),  (C),
 (D),  OR  (E) OF SUBDIVISION ONE OF THIS SECTION, IF SUCH employee [who]
 at the time of questioning appears to be a potential subject  of  disci-
 plinary action, HE OR SHE shall have a right to representation 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 question-
 ing, where it appears that such  employee  is  a  potential  subject  of
 disciplinary  action,  have a right to representation and shall be noti-
 fied 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-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06258-03-1

 A. 4784--A                          2
 
 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
 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  OR  SHE  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 recommendations, be referred to such officer or body for review  and
 decision.  The  person  or  persons 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 organization, 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.
   2-A.   PROCEDURE;  NON-NEW  YORK  CITY  EMPLOYEES.  FOR  ANY  EMPLOYEE
 DESCRIBED IN PARAGRAPH (A), (B), (C), OR (E) OF SUBDIVISION ONE OF  THIS
 SECTION NOT IN THE SERVICE OF THE CITY OF NEW YORK, THE FOLLOWING PROCE-
 DURE  SHALL APPLY: AN EMPLOYEE UNDER THIS SUBDIVISION WHO AT THE TIME OF
 QUESTIONING APPEARS TO BE A POTENTIAL  SUBJECT  OF  DISCIPLINARY  ACTION
 SHALL  HAVE  A RIGHT TO REPRESENTATION BY HIS OR HER CERTIFIED OR RECOG-
 NIZED EMPLOYEE ORGANIZATION UNDER ARTICLE FOURTEEN OF THIS  CHAPTER  AND
 SHALL BE NOTIFIED IN ADVANCE, IN WRITING, OF SUCH RIGHT. A STATE EMPLOY-
 EE  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 WITHIN A REASONABLE PERIOD OF TIME THE
 EMPLOYER HAS THE RIGHT TO THEN QUESTION 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  QUESTIONING AS WELL AS ANY EVIDENCE OR
 INFORMATION OBTAINED AS A RESULT OF SAID QUESTIONING SHALL BE  EXCLUDED,
 PROVIDED, HOWEVER, THAT THIS SUBDIVISION 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 AND OF THE REASONS THEREOF,  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 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  OFFICER  OR
 BODY. IF SUCH MUTUAL AGREEMENT CANNOT BE REACHED, THEN THE HEARING OFFI-
 CER  SHALL BE SELECTED PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION
 ASSOCIATION. SUCH HEARING OFFICER SHALL, FOR THE PURPOSE OF  SUCH  HEAR-

 A. 4784--A                          3
 
 ING,  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  RECOMMENDA-
 TIONS  AND DECISION, BE REFERRED TO SUCH OFFICER OR BODY FOR IMPLEMENTA-
 TION.  THE  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 ORGANIZATION, AND SHALL ALLOW HIM OR  HER  TO  SUMMON
 WITNESSES  ON  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  ARBITRATION  ASSOCIATION.  PROVIDED,  HOWEVER,  THAT  THE
 PROVISIONS OF THIS SUBDIVISION SHALL NOT SUPERSEDE OR APPLY TO AN EXIST-
 ING HEARING OFFICER POLICY AND PROCEDURE THAT IS THE RESULT OF A COLLEC-
 TIVE BARGAINING AGREEMENT BETWEEN AN EMPLOYER AND A RECOGNIZED OR CERTI-
 FIED  EMPLOYEE  ORGANIZATION OR ANY HEARING OFFICER POLICY AND PROCEDURE
 CURRENTLY EXISTING FOR STATE EMPLOYEES DESIGNATED MANAGERIAL  OR  CONFI-
 DENTIAL WHICH WAS IN EFFECT ON THE EFFECTIVE DATE OF THIS SUBDIVISION.
   §  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;  NEW  YORK
 CITY EMPLOYEES. [Pending] FOR ANY EMPLOYEE IN THE SERVICE OF THE CITY OF
 NEW  YORK DESCRIBED IN PARAGRAPH (A),  (B),  (C),  (D), OR (E) OF SUBDI-
 VISION ONE OF THIS SECTION, 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. If such officer or employee  is  found
 guilty of the charges, the penalty or punishment may consist of a repri-
 mand,  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 suspen-
 sion less the amount of any unemployment insurance benefits  he  OR  SHE
 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 determination 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.
   § 3. Subdivision 3-a of section 75 of the civil service law, as  added
 by chapter 753 of the laws of 1990, is amended and a new subdivision 3-b
 is added to read as follows:
   3-a.  Suspension pending determination of charges and penalties relat-
 ing to police officers of the police department of the city of New York.
 [Pending] NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION  THREE  OF  THIS
 SECTION, PENDING the hearing and determination of charges of incompeten-
 cy  or misconduct, a police officer employed by the police department of
 the city of New York may be suspended  without  pay  for  a  period  not
 exceeding  thirty  days. If such officer is found guilty of the charges,
 the police commissioner of such department may punish the police officer

 A. 4784--A                          4
 
 pursuant to the provisions of sections 14-115 and 14-123 of the adminis-
 trative code of the city of New York.
   3-B.  SUSPENSION  PENDING DETERMINATION OF CHARGES; PENALTIES; NON-NEW
 YORK CITY EMPLOYEES. FOR ANY EMPLOYEE DESCRIBED IN PARAGRAPH (A),   (B),
 (C),  OR    (E) OF SUBDIVISION ONE OF THIS SECTION NOT IN THE SERVICE OF
 THE CITY OF NEW YORK, 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 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. 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 DETERMINATION 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  JURIS-
 DICTION  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.
   § 4. This act shall take effect immediately.