S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7935
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               June 1, 2021
                                ___________
 
 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 provisional
   employees of certain public employers; to amend chapter 5 of the  laws
   of 2008 amending the civil service law relating to provisional employ-
   ees  of certain public employers, in relation to extensions of certain
   negotiated agreements and extending the provisions  of  such  chapter;
   and  to  amend  part  I of chapter 56 of the laws of 2008 amending the
   civil service law relating to excess provisional employees of  a  city
   having  a  population of one million or more, in relation to extending
   the provisions thereof
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Statement of legislative findings and intent. The legisla-
 ture hereby finds that the city of New  York  and  other  employers  for
 which  the  New York city department of citywide administrative services
 ("DCAS") manages civil service appointments ("the DCAS employers")  have
 made substantial progress in reducing the number of provisional appoint-
 ments  since  the inception of the planning process created by chapter 5
 of the laws of 2008. Through its implementation of automated systems for
 processing civil service examinations and by  increasing  its  staff  of
 professional  examiners,  DCAS  has  enhanced its capacity to administer
 competitive examinations.  These  technological  advancements,  together
 with  DCAS's  judicious  administration  of qualified incumbent examina-
 tions, as authorized by previous enactments, and the reclassification of
 titles, as approved by the New York state civil service commission, have
 led to a steady reduction in the total number of provisional  appointees
 in  the  New  York  city government work force, and to a decrease in the
 number of those appointees who continue in provisional status beyond the
 time limits set forth in section 65 of the civil service law.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11739-01-1
              

 A. 7935                             2
 
   By December 31, 2019, the DCAS employers had reduced  the  provisional
 headcount  to  15,134,  a  dramatic  decrease  from  37,797  provisional
 appointees in 2008, and the pace of provisional reduction was accelerat-
 ing. By  increasing  capacity  to  administer  competitive  examinations
 through  the  use of automated examination development systems and other
 measures during 2019, the DCAS employers achieved significant  progress,
 reducing  the number of provisional appointees by 10% over the course of
 2019. The DCAS employers were steadily approaching and  likely  to  meet
 the  legislative  goal of substantial compliance as defined by paragraph
 (b) of subdivision 5 of section 65 by the end of 2021.
   Since March 2020, the city's ability to  make  more  progress  in  the
 reduction  of provisional appointments has been severely impaired by the
 COVID-19 state of emergency. Due to  COVID-19  related  restrictions  on
 gathering,  the  city  has been unable to administer in-person tests for
 competitive class titles. At the same time, a  hiring  freeze  resulting
 from  fiscal  impacts  of the pandemic has required agencies to continue
 provisional appointments past the nine-month statutory limit  to  ensure
 the delivery of essential services.
   In  light  of  these  circumstances,  the  legislature  finds that the
 constitutional mandate of making appointments and promotions  "according
 to  merit and fitness to be ascertained, as far as practicable, by exam-
 ination which, as far as practicable, shall be  competitive,"  would  be
 furthered  by maintaining, for an additional defined period, the orderly
 planning and implementation process, including review by the state civil
 service commission, originally established by chapter 5 of the  laws  of
 2008  and later extended by the legislature. The difficulties created by
 the large number of affected titles and  employees,  and  the  potential
 operational  and  budgetary  dislocation  that  would be caused by rapid
 turnover in the many remaining titles, require  that  DCAS  continue  to
 further  the  constitutional  mandate  by the means authorized by recent
 enactments. In  particular,  thousands  of  provisional  employees  have
 crucial  experience  in  implementing and directing key initiatives that
 benefit the public. Therefore, in addition to the substantial regimen of
 competitive testing that was contained in previous  plans,  as  well  as
 proposed  reclassification  of titles where appropriate, DCAS is author-
 ized to continue to administer  examinations  to  provisional  employees
 with  specified  qualifications and experience.   These examinations, in
 the context of the present plan, will facilitate lawful  appointment  of
 these  employees  to  permanent competitive class positions, and thereby
 accelerate the transition of the DCAS employers to a  system  that  does
 not require substantial use of provisional appointments.
   The  legislature  further  finds  that it is appropriate to adjust the
 statutory goal for the reduction of provisional  appointments  exceeding
 statutory  limits  in  light of the shrinking municipal workforce in New
 York city and  the  challenges  presented  by  recent  developments,  as
 described in these findings.
   §  2. Subparagraph (ii) of paragraph (c-2) of subdivision 5 of section
 65 of the civil service law, as amended by chapter 419 of  the  laws  of
 2018, is amended to read as follows:
   (ii)  DCAS  may  administer  a  QIE only for those titles that are set
 forth in section four of chapter four hundred sixty-seven of the laws of
 two thousand sixteen, [or] in section five of [the] chapter FOUR HUNDRED
 NINETEEN of the laws of two thousand eighteen, OR IN SECTION FIVE OF THE
 CHAPTER OF THE LAWS OF TWO THOUSAND TWENTY-ONE that amended this subpar-
 agraph; PROVIDED, HOWEVER, THAT DCAS SHALL NOT ADMINISTER MORE THAN  ONE
 QIE PER TITLE.

 A. 7935                             3

   §  3.  Subdivision 5 of section 65 of the civil service law is amended
 by adding a new paragraph (c-5) to read as follows:
   (C-5)  ADDITIONAL  PLAN  REVISION  FOR PROVISIONAL EMPLOYEES.   WITHIN
 SIXTY DAYS AFTER THE EFFECTIVE DATE OF THE CHAPTER OF THE  LAWS  OF  TWO
 THOUSAND  TWENTY-ONE THAT ADDED THIS PARAGRAPH, THE DCAS EMPLOYERS SHALL
 BE REQUIRED TO SUBMIT TO THE STATE COMMISSION FOR ITS APPROVAL A  SINGLE
 COMPREHENSIVE REVISION OF THE PLAN PREPARED PURSUANT TO PARAGRAPH (B) OF
 THIS  SUBDIVISION, TO BE IMPLEMENTED BY DECEMBER THIRTY-FIRST, TWO THOU-
 SAND TWENTY-THREE, TO FURTHER REDUCE THE NUMBER OF PROVISIONAL  APPOINT-
 MENTS THAT HAVE CONTINUED BEYOND THE PERIODS OTHERWISE PERMITTED BY THIS
 SECTION,  PROVIDED  THAT  THE PERCENTAGE GOAL FOR SUBSTANTIAL COMPLIANCE
 OTHERWISE SPECIFIED IN SUCH PARAGRAPH SHALL BE SIX AND ONE-HALF PERCENT.
 SUCH REVISED PLAN MAY ADDITIONALLY CONTAIN  ANY  ELEMENTS  OR  MEANS  OF
 IMPLEMENTATION  AUTHORIZED  BY  PARAGRAPH  (B)  OF THIS SUBDIVISION. THE
 REVISED PLAN SHALL BE SUPPORTED BY APPROPRIATE DOCUMENTATION AND  EXPLA-
 NATION,  AND THE INFORMATION CONTAINED IN THE PLAN SHALL BE CONFIRMED BY
 THE COMMISSIONER OF DCAS AS ACCURATE TO THE BEST OF  HIS  OR  HER  KNOW-
 LEDGE,  BASED  ON  A REASONABLE INQUIRY BY DCAS INTO THE FACTS SET FORTH
 THEREIN. WITHIN SIXTY DAYS OF THE SUBMISSION OF  SUCH  PLAN,  THE  STATE
 COMMISSION  SHALL  APPROVE THE REVISED PLAN, WITH OR WITHOUT RECOMMENDED
 CHANGES, OR DISAPPROVE IT. THE APPROVAL PROCESS SHALL OTHERWISE  CONFORM
 TO  THE  TIMEFRAMES  AND  PROCEDURES  SET FORTH IN PARAGRAPH (C) OF THIS
 SUBDIVISION. NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THIS SUBDIVI-
 SION, THIS SUBDIVISION SHALL NO LONGER BE IN  FORCE  AND  EFFECT  IF  NO
 REVISED  PLAN  HAS BEEN APPROVED BY THE STATE COMMISSION WITHIN EIGHTEEN
 MONTHS FROM THE EFFECTIVE DATE OF THIS PARAGRAPH.
   § 4. Paragraphs (d), (f), (g) and (h) of subdivision 5 of  section  65
 of  the  civil  service  law, paragraphs (d), (f) and (g) as amended and
 paragraph (h) as added by chapter 419 of the laws of 2018,  are  amended
 to read as follows:
   (d)  Modifications  of the plan. During the course of implementing the
 plan developed, approved and revised in accordance with paragraphs  (b),
 (c),  (c-1),  (c-3)  [and],  (c-4) AND (C-5) of this subdivision, if the
 DCAS employers determine that there is a need to modify the  plan,  they
 shall submit a request for modification of the plan to the state commis-
 sion.  Such  request  shall  detail  the  circumstances that have arisen
 necessitating the request,  including  but  not  limited  to  unforeseen
 demands  upon resources, unforeseen projected impacts upon the provision
 of public services, or a finding that implementation of any part of  the
 plan  is impracticable, unduly burdensome or otherwise likely to prevent
 the successful implementation of the plan or  any  aspect  thereof.  The
 state  commission  shall  act  upon  the request for modification within
 sixty days. The state commission  may  in  its  discretion  approve  the
 modification,  approve  the  modification  with  recommended changes, or
 disapprove the  modification;  provided,  however,  that  if  the  state
 commission  takes  no  action  within such period, it shall be deemed to
 have approved the modification, and provided further that if the changes
 recommended by the state commission are not accepted by the DCAS employ-
 ers within thirty days, the modification shall  be  deemed  disapproved.
 Notwithstanding  any  inconsistent  provision of this paragraph, where a
 modification is insubstantial, and will not materially affect the abili-
 ty of the DCAS employers to reduce the number  of  provisional  appoint-
 ments in accordance with paragraph (c-1), (c-3) [or], (c-4) OR (C-5), as
 applicable,  of  this subdivision, DCAS may so certify and the modifica-
 tion may be implemented and shall  be  filed  by  DCAS  with  the  state
 commission  within  five  business days. In the event that a request for

 A. 7935                             4
 
 modification is disapproved, the plan previously in effect shall  remain
 in effect, provided that the DCAS employers may at any time submit a new
 proposed  modification. Any modification approved pursuant to this para-
 graph  may extend the duration of a plan to a date no more than one year
 beyond the two-year period authorized by paragraph (c-3) of this  subdi-
 vision.
   (f)  Time  limitation.  Notwithstanding  any inconsistent provision of
 this chapter or any other law or rule to the contrary, the provisions of
 subdivision two of this section shall not apply to  THE  DCAS  employers
 upon  the  effective  date  of  chapter five of the laws of two thousand
 eight, and during the timely submission, approval and implementation  of
 a  plan  in accordance with paragraphs (b), (c) and (e) of this subdivi-
 sion, and of revised plans in accordance with  paragraphs  (c-1),  (c-3)
 [and],  (c-4)  AND (C-5) of this subdivision. The provisions of subdivi-
 sion two of this section shall be applicable to any provisional employee
 serving in a position for which an appropriate eligible  list  has  been
 established  pursuant to such plan or revised plans, unless such list is
 not adequate to fill all positions then held on a provisional  basis  or
 is exhausted immediately following its establishment.
   (g)  Agreements governing disciplinary procedures. Notwithstanding any
 inconsistent provision of this chapter or any other law or rule  to  the
 contrary,  any  DCAS employer and an employee organization, as such term
 is defined in article fourteen of this chapter, may  enter  into  agree-
 ments  to  provide  disciplinary  procedures  applicable  to provisional
 appointees or categories thereof who have served for a period  of  twen-
 ty-four  months or more in a position which is covered by such an agree-
 ment. No such provisional employee shall be  deemed  to  be  permanently
 appointed under such circumstances, nor may such disciplinary procedures
 be  deemed  to preclude removal of an employee as a result of the estab-
 lishment of and appointments from an appropriate  eligible  list  or  in
 accordance with any other provision of law. Any such agreement may apply
 upon  the  effective  date  of  chapter five of the laws of two thousand
 eight, and during the timely submission, approval and implementation  of
 a  plan  in accordance with paragraphs (b), (c) and (e) of this subdivi-
 sion, and of revised plans in accordance with  paragraphs  (c-1),  (c-3)
 [and],  (c-4)  AND (C-5) of this subdivision, and shall not apply to any
 provisional employee serving in a  position  for  which  an  appropriate
 eligible  list  has  been  established  pursuant  to  a plan approved in
 accordance with this subdivision unless such list  is  not  adequate  to
 fill  all  positions  then  held  on a provisional basis or is exhausted
 immediately following its establishment.
   (h) (i) If the DCAS employers are not in substantial  compliance  with
 the  time  periods permitted by subdivisions one, two, three and four of
 this section by December thirty-first, two thousand  [twenty-one]  TWEN-
 TY-THREE,  as  set  forth  in  the  report submitted by DCAS pursuant to
 subparagraph (ii) of this paragraph,  then  an  advisory  workgroup  for
 provisional  appointments in the city of New York ("advisory workgroup")
 shall be established.  The  advisory  workgroup  shall  consist  of  six
 members,  one  of  whom  shall be appointed by the governor, one of whom
 shall be appointed by the speaker of the assembly, one of whom shall  be
 appointed by the temporary president of the senate, two of whom shall be
 appointed  by  the  mayor  of the city of New York, including one recom-
 mended by the citywide bargaining representative, and one of whom  shall
 be  appointed  by  the  commissioner  of the New York city department of
 citywide administrative services (DCAS). The advisory workgroup shall be
 chaired by a member designated by  the  mayor.  The  advisory  workgroup

 A. 7935                             5
 
 shall  submit  to  the  governor,  the state legislature and the mayor a
 single recommended plan for the DCAS employers to  substantially  comply
 with the time periods permitted by subdivisions one, two, three and four
 of  this section, to be adopted by or pursuant to state legislation. For
 the purposes of this paragraph, "substantial compliance" shall have  the
 same  meaning  as  provided  in  paragraph (b), AS MODIFIED BY PARAGRAPH
 (C-5) of this subdivision. Such recommended plan may include, but  shall
 not  be  limited  to,  a schedule for administration of examinations and
 establishment of eligible lists, a determination of additional appropri-
 ate existing or planned eligible lists that may be  used,  consolidation
 of titles through appropriate reclassification, and any other lawful and
 appropriate  means  of implementation. The recommended plan shall to the
 extent practicable be supported by appropriate documentation and  expla-
 nation.
   (ii)  DCAS  shall submit a progress report to the governor, speaker of
 the assembly, temporary president of the senate and  the  mayor  of  the
 city  of  New  York  no  later  than December thirty-first, two thousand
 [twenty] TWENTY-TWO. Such report  shall  contain  numbers  that  are  as
 current as practicable and shall include the total number of provisional
 appointments remaining, the number of provisional appointments that have
 been  reduced, the number of provisional appointments that still need to
 be reduced in order to achieve substantial  compliance  as  provided  by
 paragraph  (b)  of  this  subdivision,  and  a statement of whether DCAS
 believes substantial compliance with the timeframes  permitted  by  this
 section as provided by paragraph (b) of this subdivision can be achieved
 by December thirty-first, two thousand [twenty-one] TWENTY-THREE.
   § 5. The New York city department of citywide administrative services,
 acting pursuant to paragraph (c-2) of subdivision 5 of section 65 of the
 civil service law, as amended by section two of this act, may administer
 qualified incumbent examinations, in addition to examinations authorized
 to be administered pursuant to chapter 467 of the laws of 2016 and chap-
 ter  419  of  the  laws  of  2018, in connection with appointment to the
 following titles:
   10045 ADMINISTRATIVE SUPERVISOR OF SKILLED TRADES (HA)
   21205 ARCHITECTURAL INTERN
   31313 ASBESTOS HANDLER
   90621 ASSISTANT MEDIA SERVICES TECHNICIAN
   40491 ASSISTANT RETIREMENT BENEFITS EXAMINER
   21822 ASSOCIATE CHEMIST
   60816 ASSOCIATE PUBLIC INFORMATION SPECIALIST
   92310 BRIDGE REPAIRER AND RIVETER
   90706 CARRIAGE UPHOLSTERER
   51018 CONSULTANT PUBLIC HEALTH NURSE (REHABILITATION)
   30825 COUNTY DETECTIVE
   13633 CYBER SECURITY ANALYST
   60210 DEPARTMENT LIBRARIAN
   80710 HOUSEKEEPER
   80202 HOUSING ASSISTANT (BILINGUAL)
   31620 INSPECTOR (BOILERS)
   91000 INSTRUMENTATION SPECIALIST TRAINEE
   40238 INSURANCE ADVISER (HOUSING AUTHORITY)
   21512 LABORATORY ASSOCIATE
   10229 LEGAL SECRETARIAL ASSISTANT
   91548 MARINE OILER (DC)
   91547 MARINE OILER (FERRY OPERATIONS)
   91501 MARINER

 A. 7935                             6
 
   22425 PROJECT MANAGER INTERN
   51181 PUBLIC HEALTH EPIDEMIOLOGIST
   34171 QUALITY ASSURANCE SPECIALIST
   34173 QUALITY ASSURANCE SPECIALIST (BUILDING REPAIRS)
   30827 SENIOR DETECTIVE INVESTIGATOR
   33765 SERVICE INSPECTOR (DOT)
   52315 SUPERVISOR OF CHILD CARER
   92073 SUPERVISOR SHIP CARPENTER
   20247 TELECOMMUNICATIONS ASSOCIATE (VOICE)
   40482 WORKERS' COMPENSATION BENEFITS EXAMINER
   §  6.  Sections 3 and 5 of chapter 5 of the laws of 2008, amending the
 civil service law relating to provisional employees  of  certain  public
 employers, as amended by chapter 419 of the laws of 2018, are amended to
 read as follows:
   § 3. Any agreement or extension thereof entered into pursuant to para-
 graph  (g)  of  subdivision 5 of section 65 of the civil service law, as
 added by section two of this act and subsequently amended in 2014,  2016
 [and],  2018 AND 2021, may include protections for provisional employees
 who were covered, prior to the effective date of this act, by agreements
 similar to those authorized by such paragraph. Any agreement  or  exten-
 sion  thereof  entered  into pursuant to such paragraph may include, but
 shall not be limited to, the appropriate  arbitration,  adjudication  or
 other  disposition  of  disciplinary  or other matters concerning provi-
 sional employees that were pending on the effective date of this act.
   § 5. This act shall take effect immediately, and shall expire December
 31, [2021] 2023 when upon such date the provisions of this act shall  be
 deemed repealed.
   §  7.  Section 2 of part I of chapter 56 of the laws of 2008, amending
 the civil service law relating to excess provisional employees of a city
 having a population of one million or more, as amended by chapter 419 of
 the laws of 2018, is amended to read as follows:
   § 2. This act shall take effect immediately and shall  expire  and  be
 deemed repealed December 31, [2021] 2023.
   §  8. If any section, subdivision, paragraph, clause, sentence, phrase
 or other portion of this act is, for any  reason,  declared  unconstitu-
 tional or invalid, in whole or in part, by any court of competent juris-
 diction,  such  portion  shall be deemed severable, and such unconstitu-
 tionality or invalidity shall not affect the validity of  the  remaining
 portions  of  this  act, which remaining portions shall continue in full
 force and effect.
   § 9. This act shall take effect immediately; provided  that:  (i)  the
 amendments  to subdivision 5 of section 65 of the civil service law made
 by sections two, three and four of this act shall not affect the  repeal
 of  such  subdivision  and  shall be deemed repealed therewith; (ii) the
 amendments to section 3 of chapter 5 of the laws of 2008 made by section
 six of this act shall not affect the repeal of such section and shall be
 deemed repealed therewith; and (iii)  eligible  lists  and  appointments
 resulting  from the qualified incumbent examinations administered pursu-
 ant to paragraph (c-2) of subdivision 5  of  section  65  of  the  civil
 service  law,  as  amended  by  section  two  of  this act, shall not be
 affected by the expiration of such provisions.