S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8915
 
                           I N  A S S E M B L Y
 
                             January 26, 2024
                                ___________
 
 Introduced  by  M.  of A. PHEFFER AMATO -- read once and referred to the
   Committee on Governmental Employees
 
 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
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03619-04-4
 A. 8915                             2
 
 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
 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.
 A. 8915                             3
 
   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-
 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
 A. 8915                             4
 
 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-
 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
 A. 8915                             5
 
 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.