S T A T E O F N E W Y O R K
________________________________________________________________________
5205--B
2019-2020 Regular Sessions
I N S E N A T E
April 16, 2019
___________
Introduced by Sens. GOUNARDES, GAUGHRAN, SKOUFIS -- read twice and
ordered printed, and when printed to be committed to the Committee on
Civil Service and Pensions -- reported favorably from said committee,
ordered to first and second report, ordered to a third reading,
amended and ordered reprinted, retaining its place in the order of
third reading -- recommitted to the Committee on Civil Service and
Pensions in accordance with Senate Rule 6, sec. 8 -- 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-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11197-04-0
S. 5205--B 2
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
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
S. 5205--B 3
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
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 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
S. 5205--B 4
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, 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.
