S T A T E O F N E W Y O R K
________________________________________________________________________
3748--A
2023-2024 Regular Sessions
I N A S S E M B L Y
February 7, 2023
___________
Introduced by M. of A. PHEFFER AMATO, BRONSON, GUNTHER -- read once and
referred to the Committee on Governmental Employees -- 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.
In the event the hearing officer finds that a reasonable period of time
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03619-02-3
A. 3748--A 2
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
promptly discontinued when the party learned or should have learned that
A. 3748--A 3
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
DEFENSE INTERPOSED IN THE MANNER PROVIDED FOR IN PARAGRAPH (A) OF SUBDI-
A. 3748--A 4
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
DEDUCTED FROM THE SALARY OR WAGES OF SUCH OFFICER OR EMPLOYEE, SUSPEN-
A. 3748--A 5
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.