NY State Senate Bill S1039A

Current Bill Status - In Senate Committee Finance Committee

Introduced
In Committee
On Floor Calendar
- Passed Senate
- Passed Assembly
Delivered to Governor
Signed/Vetoed by Governor

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Actions

view actions (4)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 23, 2023	print number 1039a
May 23, 2023	amend and recommit to finance
May 17, 2023	reported and committed to finance
Jan 09, 2023	referred to civil service and pensions

Votes

view votes

May 17, 2023 - Civil Service and Pensions committee Vote

S1039

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

Bill Amendments

Original

A (Active)

Original

A (Active)

Co-Sponsors

S1039 - Details

See Assembly Version of this Bill:: A3748
Current Committee:: Senate Finance
Law Section:: Civil Service Law
Laws Affected:: Amd §75, Civ Serv L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S5205, A7624
2021-2022: S2891, A4784

S1039 - Summary

Provides procedures to be followed in appointing a hearing officer for removal and disciplinary action against certain public employees not in the service of the city of New York, including the fees to be paid for such hearing officer; provides for suspension, with pay, pending the determination.

S1039 - Sponsor Memo

 
BILL NUMBER: S1039

SPONSOR: JACKSON
 
TITLE OF BILL:

An act to amend the civil service law, in relation to hearing procedures
for certain public employees

 
PURPOSE:

Provides for procedures to be followed in appointing a hearing officer
for removal and disciplinary action against certain public employees.

 
SUMMARY OF PROVISIONS:

Sections 1, 2, and 3 amend Section 75 of the Civil Service Law to
provide that disciplinary hearings against individual employees not in
the service of the City of New York shall be held by a hearing officer
who is a member of the American Arbitration Association, selected by the
mutual agreement of the parties involved. The decision of the hearing
officer will be required to be implemented by the employer. In addition,
this legislation provides that such employees may be suspended with pay

during such disciplinary action.  The bill maintains current discipli-
nary hearing procedures for individual employees in the service of the
City of New York.

Section 4 is the effective date.

 
JUSTIFICATION:

The purpose of this bill is to ensure an impartial and fair due process
hearing for permanent non-New York City government employees who are the
subject of disciplinary charges as outlined in Section 75 of the Civil
Service Law. The bill maintains existing disciplinary process for New
York City employees, however, due to the decades-long success that the
Trials Division of the New York City Office of Administrative Trials and
Hearings (OATH) has had in adjudicating these cases within its jurisdic-
tion and the corpus of case law it has established by its rulings.

Under the present provisions of Section 75 of the Civil Service Law,
individuals who have attained permanent appointment as employees under
the jurisdiction of the Civil Service Law may be removed from their
positions or have other disciplinary actions taken (i.e., suspension
without pay, demotion from grade and title) after a hearing held before
the officer or body who has brought the charges.  The employing officer
or body therefore becomes both the prosecutor and the judge of the
permanent employees actions.

This bill would provide a more fair procedure in which the hearing is
before an impartial arbitrator selected upon mutual agreement of the
parties, or if no agreement can be reached, then selected under the
rules of the American Arbitration Association. The hearing officer would
hear the case and determine the appropriate penalty, if any.  Such a
system would give both the employer and the employee a fair opportunity
to present their respective sides of the case and allow for impartial
adjudication.

In addition, by protecting civil service employees from being suspended
without pay during such procedures, this bill conforms to disciplinary
hearing procedures brought against tenured teachers pursuant to Section
3020-A of the Education Law, thus ensuring the same due process for
civil service employees.

 
LEGISLATIVE HISTORY:

2021-2022: S.2891-A - Referred to Civil Service and Pensions/A.4784-A
Referred to Governmental Employees

2020: S.5205-B - Amend and Recommit to Civil Service and
Pensions/A.7624-B - Amend and Recommit to Governmental Employees
referred to Civil Service and Pensions

2019: S.5205-A Passed the Senate/A.7624-A - Died in Assembly

2011-2012: A.5743 - Referred to Codes

2009-2010: A.9983 - Referred to Codes

2005-2006: S.1171 - Referred to Civil Service and Pensions/A.4369 -
Referred to Governmental Employees

2003-2004: S.5371 - Referred to Civil Service & Pensions/A.6957 -
Referred to Governmental Employees

 
STATE AND LOCAL FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.

S1039 - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1039
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 9, 2023
                                ___________
 
 Introduced  by  Sen. JACKSON -- read twice and ordered printed, and when
   printed to be committed to the Committee on Civil Service and Pensions
 
 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-b 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-
 vision  shall  not  modify  or  replace any written collective agreement
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03619-01-3

 S. 1039                             2
 
 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-B.  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-
 ING, BE VESTED WITH ALL THE POWERS OF SUCH OFFICER  OR  BODY  AND  SHALL
 S. 1039                             3
 
 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
 S. 1039                             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.

Co-Sponsors

S1039A (ACTIVE) - Details

See Assembly Version of this Bill:: A3748
Current Committee:: Senate Finance
Law Section:: Civil Service Law
Laws Affected:: Amd §75, Civ Serv L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S5205, A7624
2021-2022: S2891, A4784

S1039A (ACTIVE) - Summary

S1039A (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S1039A                   Revised 5/25/2023

SPONSOR: JACKSON
 
TITLE OF BILL:

An act to amend the civil service law, in relation to hearing procedures
for certain public employees

 
PURPOSE:

Provides for procedures to be followed in appointing a hearing officer
for removal and disciplinary action against certain public employees.

 
SUMMARY OF PROVISIONS:

Sections I, 2, and 3 amend Section 75 of the Civil Service Law to
provide that disciplinary hearings against individual employees not in
the service of the City of New York shall be held by a hearing officer
who is a member of the American Arbitration Association, selected by the
mutual agreement of the parties involved. The decision of the hearing
officer will be required to be implemented by the employer. In addition,
this legislation provides that such employees may be suspended with pay

during such disciplinary action.  The bill maintains current discipli-
nary hearing procedures for individual employees in the service of the
City of New York.

Section 4 is the effective date.

 
JUSTIFICATION:

The purpose of this bill is to ensure an impartial and fair due process
hearing for permanent non-New York City government employees who are the
subject of disciplinary charges as outlined in Section 75 of the Civil
Service Law. The bill maintains existing disciplinary process for New
York City employees, however, due to the decades-long success that the
Trials Division of the New York City Office of Administrative Trials and
Hearings (OATH) has had in adjudicating these cases within its jurisdic-
tion and the corpus of case law it has established by its rulings.

Under the present provisions of Section 75 of the Civil Service Law,
individuals who have attained permanent appointment as employees under
the jurisdiction of the Civil Service Law may be removed from their
positions or have other disciplinary actions taken (i.e., suspension
without pay, demotion from grade and title) after a hearing held before
the officer or body who has brought the charges.  The employing officer
or body therefore becomes both the prosecutor and the judge of the
permanent employees actions.

This bill would provide a more fair procedure in which the hearing is
before an impartial arbitrator selected upon mutual agreement of the
parties from a list maintained for this purpose by the public employment
relations board. The hearing officer would hear the case and determine
the appropriate penalty, if any. Such a system would give both the
employer and the employee a fair opportunity to present their respective
sides of the case and allow for impartial adjudication.

In addition, by protecting civil service employees from being suspended
without pay during such procedures, this bill conforms to disciplinary
hearing procedures brought against tenured teachers pursuant to Section
3020-A of the Education Law, thus ensuring the same due process for
civil service employees.

 
LEGISLATIVE HISTORY:

2021-2022: S.2891-A - Referred to Civil Service and Pensions/A.4784-A
Referred to Governmental Employees

2020: S.5205-B - Amend and Recommit to Civil Service and
Pensions/A.7624-B - Amend and Recommit to Governmental Employees
referred to Civil Service and Pensions

2019: S.5205-A Passed the Senate/A.7624-A - Died in Assembly

2011-2012: A.5743 - Referred to Codes

2009-2010: A.9983 - Referred to Codes

2005-2006: 5.1171 - Referred to Civil Service and Pensions/A.4369 -
Referred to Governmental Employees

2003-2004: S.5371 - Referred to Civil Service & Pensions/A.6957 -
Referred to Governmental Employees

 
STATE AND LOCAL FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.

S1039A (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  1039--A
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 9, 2023
                                ___________
 
 Introduced  by Sens. JACKSON, MANNION -- read twice and ordered printed,
   and when printed to be committed to the Committee on Civil Service and
   Pensions -- reported favorably from said committee  and  committed  to
   the  Committee  on  Finance  --  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  and  paragraph  (a) of subdivision 2-a of
 section 75 of the civil service law, subdivision 2 as amended by chapter
 226 of the laws of 1994 and paragraph (a) of subdivision 2-a as added by
 chapter 674 of the laws of 2022, are amended and a new  subdivision  2-b
 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03619-03-3

 S. 1039--A                          2
 
 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
 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.
   (a)  Notwithstanding  any  other  provision  of  law  to the contrary,
 including but not limited to subdivision 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 penalty of dismissal from service or any other
 discipline if the hearing, upon such charge, has been conducted by some-
 one 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, 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  AND  FOR  THE  PURPOSE  DESCRIBED  IN SUBDIVISION TWO-B OF THIS
 SECTION. 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 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
 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
 S. 1039--A                          3
 
 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.
   2-B.   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 SELECTED BY THE MUTUAL AGREEMENT OF THE PERSON AGAINST WHOM DISCIPLI-
 NARY ACTION IS PROPOSED AND OF THE EMPLOYING OFFICER OR  BODY.  IF  SUCH
 MUTUAL  AGREEMENT  CANNOT  BE REACHED, THEN THE HEARING OFFICER SHALL BE
 SELECTED FROM A LIST OF SEVEN NAMES TO BE PROVIDED BY THE PUBLIC EMPLOY-
 MENT RELATIONS BOARD PURSUANT TO SUBDIVISION TWO-A OF THIS SECTION.  THE
 PARTIES  SHALL  SELECT THE HEARING OFFICER BY ALTERNATELY STRIKING NAMES
 FROM THE LIST OF SEVEN. 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 IMPLE-
 MENTATION. 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 COST INCURRED IN
 OBTAINING THE INDEPENDENT  HEARING  OFFICER  SHALL  BE  DIVIDED  EQUALLY
 BETWEEN THE PARTIES; PROVIDED THAT AS MAY BE DETERMINED UPON THE CIRCUM-
 STANCES 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
 S. 1039--A                          4
 
 DEFENSE INTERPOSED IN THE MANNER PROVIDED FOR IN PARAGRAPH (A) OF SUBDI-
 VISION TWO-A OF THIS SECTION.  PROVIDED, HOWEVER, THAT THE PROVISIONS OF
 THIS SUBDIVISION SHALL NOT SUPERSEDE OR APPLY  TO  AN  EXISTING  HEARING
 OFFICER POLICY AND PROCEDURE THAT IS THE RESULT OF A COLLECTIVE BARGAIN-
 ING AGREEMENT BETWEEN AN EMPLOYER AND A RECOGNIZED OR CERTIFIED EMPLOYEE
 ORGANIZATION  OR  ANY  HEARING  OFFICER  POLICY  AND PROCEDURE CURRENTLY
 EXISTING FOR STATE EMPLOYEES DESIGNATED MANAGERIAL OR CONFIDENTIAL 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
 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.    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
 S. 1039--A                          5
 
 DEDUCTED  FROM  THE SALARY OR WAGES OF SUCH OFFICER OR EMPLOYEE, SUSPEN-
 SION WITHOUT PAY FOR A PERIOD NOT  EXCEEDING  TWO  MONTHS,  DEMOTION  IN
 GRADE AND TITLE, OR DISMISSAL FROM THE SERVICE.  IF HE OR SHE IS ACQUIT-
 TED, 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 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.
   § 4. This act shall take effect immediately.

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The New York State Senate

senate Bill S1039A

Sponsored By

Current Bill Status - In Senate Committee Finance Committee

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Votes

May 17, 2023 - Civil Service and Pensions committee Vote

Committee Vote: May 17, 2023

Bill Amendments

Co-Sponsors

S1039 - Details

S1039 - Summary

S1039 - Sponsor Memo

S1039 - Bill Text download pdf

Co-Sponsors

S1039A (ACTIVE) - Details

S1039A (ACTIVE) - Summary

S1039A (ACTIVE) - Sponsor Memo

S1039A (ACTIVE) - Bill Text download pdf

Comments

senate Bill S1039A

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Sponsored By

Robert Jackson

Current Bill Status - In Senate Committee Finance Committee

Your Voice

Actions

Votes

May 17, 2023 - Civil Service and Pensions committee Vote

Committee Vote: May 17, 2023

Bill Amendments

Co-Sponsors

John W. Mannion

S1039 - Details

S1039 - Summary

S1039 - Sponsor Memo

S1039 - Bill Text download pdf

Co-Sponsors

John W. Mannion

Zellnor Myrie

S1039A (ACTIVE) - Details

S1039A (ACTIVE) - Summary

S1039A (ACTIVE) - Sponsor Memo

S1039A (ACTIVE) - Bill Text download pdf

Comments