The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9614
 
                           I N  A S S E M B L Y
 
                              March 28, 2022
                                ___________
 
 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 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.  Short  title. This act shall be known and may be cited as
 the "New York State firefighter bill of rights act".
   § 2. 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, INCLUDING BUT NOT LIMITED TO  SUBDIVI-
 SION  FOUR  OF  SECTION  SEVENTY-SIX  OF THIS TITLE, 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 PENAL-
 TY OF DISMISSAL FROM SERVICE OR ANY OTHER  DISCIPLINE  IF  THE  HEARING,
 UPON  SUCH CHARGE, HAS BEEN CONDUCTED BY SOMEONE OTHER THAN AN INDEPEND-
 ENT 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, THE HEARING OFFICER 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 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 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 AUTHORIZED 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 DEFENSE TO BE FRIVOLOUS, THE
 HEARING OFFICER MUST FIND AT LEAST ONE OF THE FOLLOWING:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD14590-02-2
 A. 9614                             2
 
   (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 THEN, HOWEVER, ELECT IN WRITING TO PROCEED  WITH  A  HEARING
 PURSUANT  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,  OR PURSUANT TO ANY OTHER PROVISION OF LAW, INCLUDING BUT
 NOT LIMITED TO OTHER PROVISIONS OF THIS SECTION.
   § 3. Subdivision 4 of section 201 of the civil service law, as amended
 by chapter 606 of the laws of 1992, is amended to read as follows:
   4.  The term "terms and conditions of employment" means:
   (A) salaries, wages, hours and other terms and conditions  of  employ-
 ment  provided,  however,  that such term shall not include any benefits
 provided by or to be provided by a public retirement system, or payments
 to a fund or insurer to provide an income for retirees,  or  payment  to
 retirees  or  their  beneficiaries. No such retirement benefits shall be
 negotiated pursuant to this article,  and  any  benefits  so  negotiated
 shall be void.
   (B) IN ADDITION, THE TERMS AND CONDITIONS OF EMPLOYMENT FOR FIREFIGHT-
 ERS  SHALL  INCLUDE  DISCIPLINE  AND  DISCIPLINARY  PROCEDURES INCLUDING
 ALTERNATIVES TO ANY STATUTORY DISCIPLINARY  SYSTEM,  PROVIDED,  HOWEVER,
 THAT ANY RIGHT OF FIREFIGHTERS UNDER THE TERMS OF ANY STATE LAW TO ELECT
 COVERAGE  UNDER EITHER A STATUTORY DISCIPLINARY SYSTEM OR A DISCIPLINARY
 SYSTEM ESTABLISHED BY COLLECTIVE NEGOTIATIONS  SHALL  NOT  BE  IMPAIRED,
 UNLESS  ANY SUCH STATE LAW AUTHORIZES EXCLUSIVITY OF A NEGOTIATED DISCI-
 PLINARY SYSTEM AND PROVIDED FURTHER THAT NO PROVISION CONTAINED  IN  THE
 TOWN  LAW,  GENERAL CITY LAW, SECOND CLASS CITIES LAW, GENERAL MUNICIPAL
 LAW, MUNICIPAL HOME RULE LAW, COUNTY LAW, OR OTHER STATE, LOCAL, SPECIAL
 LAW OR CHARTER PROVISION, OR ANY SPECIAL POLICE ACT OR OTHER SPECIAL ACT
 CREATED BY LOCAL LAW OR CHARTER OR OTHERWISE CREATED,  OR  THIS  CHAPTER
 SHALL  PREVENT  OR  IMPAIR  THE  RIGHT  TO  COLLECTIVE BARGAINING FOR OR
 MODIFICATION OF DISCIPLINARY PROCEDURES.
   § 4. Section 204-a of the civil service law is amended by adding a new
 subdivision 4 to read as follows:
   4. THE TERMS OF ANY CURRENT OR EXPIRED  AGREEMENT  OR  INTEREST  ARBI-
 TRATION AWARD BETWEEN ANY PUBLIC EMPLOYER AND ANY PUBLIC EMPLOYEE ORGAN-
 IZATION  REPRESENTING  FIREFIGHTERS  RELATING  TO  THE DISCIPLINE OF ANY
 FIREFIGHTERS SHALL BE DEEMED VALID AND ENFORCEABLE  FROM  THE  EFFECTIVE
 DATE OF THIS SUBDIVISION.
   §  5. 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 are authorized to be made and completed on or before such
 effective date.