Senate Bill S7254

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7254
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               June 10, 2021
                                ___________
 
 Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN  ACT to amend the civil service law, in relation to independent hear-
   ing officers for certain 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,  ANY PAID OFFICER OR MEMBER OF AN
 ORGANIZED FIRE COMPANY OR FIRE DEPARTMENT OF A CITY  OF  LESS  THAN  ONE
 MILLION POPULATION, OR TOWN, VILLAGE OR FIRE DISTRICT WHO IS REPRESENTED
 BY  A  CERTIFIED OR RECOGNIZED EMPLOYEE ORGANIZATION PURSUANT TO ARTICLE
 FOURTEEN OF THIS CHAPTER SHALL  NOT  BE  SUBJECTED  TO  THE  PENALTY  OF
 DISMISSAL  FROM  SERVICE  IF  THE  HEARING,  UPON  SUCH CHARGE, HAS BEEN
 CONDUCTED BY SOMEONE OTHER THAN AN INDEPENDENT  HEARING  OFFICER  TO  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 EMPLOYMENT RELATIONS BOARD. THE PUBLIC EMPLOYMENT
 RELATIONS BOARD SHALL MAINTAIN A LIST OF  INDEPENDENT  HEARING  OFFICERS
 FOR THIS PURPOSE. THE PARTIES SHALL SELECT THE HEARING OFFICER BY ALTER-
 NATELY  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  DECISION.    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 AUTHOR-
 IZED  TO  ALLOCATE SUCH COST ON THE BASIS OF THE FRIVOLOUS NATURE OF ANY
 CLAIM MADE OR ANY DEFENSE INTERPOSED.  IN  ORDER  TO  FIND  A  CLAIM  OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11728-01-1
              

 S. 7254                             2
 
 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.
   §  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; provided, howev-
 er, that effective immediately, 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 are authorized and directed
 to be made and completed on or before such effective date.