S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5355
 
                        2025-2026 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 13, 2025
                                ___________
 
 Introduced  by M. of A. TAPIA -- read once and referred to the Committee
   on Correction
 
 AN ACT to amend the  correction  law  and  the  civil  service  law,  in
   relation to discipline of certain persons for serious misconduct
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The correction law is amended by adding a new section 12 to
 read as follows:
   § 12. DISCIPLINE OF CERTAIN SERIOUS MISCONDUCT. 1. DEFINITION. FOR THE
 PURPOSES OF THIS SECTION, THE TERM "SERIOUS MISCONDUCT" SHALL  MEAN:  AN
 ACT  OF  EXCESSIVE USE OF FORCE; AN ACT OF FALSE REPORTING REGARDING ONE
 OR MORE ACTS OF EXCESSIVE USE OF FORCE; AN INTENTIONAL FAILURE TO REPORT
 AN ACT OF EXCESSIVE USE OF FORCE; THE INTRODUCTION OF A CELLULAR DEVICE,
 CONTROLLED SUBSTANCE, MARIHUANA OR  OTHER  SIGNIFICANTLY  INCAPACITATING
 SUBSTANCE TO AN INSTITUTION OF THE DEPARTMENT; OR AN INAPPROPRIATE SEXU-
 AL  RELATIONSHIP  OR CONTACT WITH AN INCARCERATED PERSON OR PERSON UNDER
 COMMUNITY SUPERVISION.
   2. ACTS OF MISCONDUCT. NOTWITHSTANDING ANY  OTHER  PROVISION  OF  LAW,
 WHEN  AN EMPLOYEE IS ALLEGED TO HAVE COMMITTED AN ACT OF SERIOUS MISCON-
 DUCT THEN THE DISCIPLINARY PROCESS THAT MAY BE APPLIED TO SUCH  EMPLOYEE
 SHALL  NOT  BE  GOVERNED  BY  ANY  COLLECTIVE BARGAINING AGREEMENT OR BY
 SECTION SEVENTY-FIVE OF THE CIVIL SERVICE LAW BUT SHALL BE  GOVERNED  BY
 THE PROVISIONS OF THIS SECTION.
   3.  DISCIPLINARY  ACTION.  A PERSON HOLDING A POSITION AS DESCRIBED IN
 PARAGRAPH (A), (B) OR (C) OF THIS SUBDIVISION SHALL NOT BE REMOVED  FROM
 THEIR  POSITION  OR  OTHERWISE  SUBJECTED  TO  ANY  DISCIPLINARY PENALTY
 AUTHORIZED PURSUANT TO THIS SECTION; PROVIDED, HOWEVER, THAT SUCH PERSON
 MAY BE REMOVED OR OTHERWISE SUBJECTED TO A DISCIPLINARY PENALTY  AUTHOR-
 IZED  PURSUANT  TO  THIS  SECTION FOR SERIOUS MISCONDUCT AFTER A HEARING
 UPON STATED CHARGES PURSUANT TO THIS  SECTION.  THIS  SUBDIVISION  SHALL
 APPLY TO:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04463-01-5
              

 A. 5355                             2
 
   (A)  A  PERSON  HOLDING  A  POSITION  BY  PERMANENT APPOINTMENT IN THE
 COMPETITIVE CLASS OF THE CLASSIFIED CIVIL SERVICE; OR
   (B) A PERSON HOLDING A POSITION BY PERMANENT APPOINTMENT OR EMPLOYMENT
 IN  THE CLASSIFIED SERVICE OF THE STATE, WHO WAS HONORABLY DISCHARGED OR
 RELEASED UNDER HONORABLE CIRCUMSTANCES FROM  THE  ARMED  FORCES  OF  THE
 UNITED STATES, INCLUDING (I) HAVING A QUALIFYING CONDITION AS DEFINED IN
 SECTION  ONE  OF  THE  VETERANS' SERVICES LAW, AND RECEIVING A DISCHARGE
 OTHER THAN BAD CONDUCT OR DISHONORABLE FROM SUCH SERVICE, OR (II)  BEING
 A  DISCHARGED  LGBT  VETERAN, AS DEFINED IN SECTION ONE OF THE VETERANS'
 SERVICES LAW, AND RECEIVING A DISCHARGE  OTHER  THAN  BAD  CONDUCT    OR
 DISHONORABLE    FROM SUCH  SERVICE, HAVING SERVED THEREIN AS SUCH MEMBER
 IN TIME OF WAR AS DEFINED IN SECTION EIGHTY-FIVE OF  THE  CIVIL  SERVICE
 LAW, OR WHO IS AN EXEMPT VOLUNTEER FIREFIGHTER AS DEFINED IN THE GENERAL
 MUNICIPAL  LAW,  EXCEPT  WHEN  SUCH PERSON HOLDS THE POSITION OF PRIVATE
 SECRETARY, CASHIER OR DEPUTY OF ANY OFFICIAL OR DEPARTMENT; OR
   (C) AN EMPLOYEE HOLDING A POSITION IN THE NON-COMPETITIVE CLASS  OTHER
 THAN  A  POSITION  DESIGNATED  IN  THE  RULES OF THE STATE CIVIL SERVICE
 COMMISSION AS CONFIDENTIAL OR REQUIRING  THE  PERFORMANCE  OF  FUNCTIONS
 INFLUENCING  POLICY,  WHO  SINCE SUCH EMPLOYEE'S LAST ENTRY INTO SERVICE
 HAS COMPLETED AT LEAST FIVE YEARS OF CONTINUOUS SERVICE IN THE  NON-COM-
 PETITIVE CLASS IN A POSITION OR POSITIONS NOT SO DESIGNATED IN THE RULES
 AS  CONFIDENTIAL  OR  REQUIRING THE PERFORMANCE OF FUNCTIONS INFLUENCING
 POLICY.
   4. PROCEDURE. AN EMPLOYEE HOLDING A POSITION AS DESCRIBED IN PARAGRAPH
 (A), (B) OR (C) OF SUBDIVISION THREE OF THIS SECTION WHO AT THE TIME  OF
 QUESTIONING APPEARS TO BE A POTENTIAL SUBJECT OF DISCIPLINARY ACTION FOR
 AN  ACT OR ACTS OF SERIOUS MISCONDUCT SHALL HAVE RIGHT TO REPRESENTATION
 BY SUCH EMPLOYEE'S CERTIFIED OR RECOGNIZED EMPLOYEE  ORGANIZATION  UNDER
 ARTICLE  FOURTEEN  OF  THE  CIVIL  SERVICE  LAW AND SHALL BE NOTIFIED IN
 ADVANCE, IN WRITING, OF SUCH RIGHT. AN EMPLOYEE HOLDING  A  POSITION  AS
 DESCRIBED  IN  PARAGRAPH  (A),  (B)  OR (C) OF SUBDIVISION THREE OF THIS
 SECTION WHO IS DESIGNATED MANAGERIAL OR CONFIDENTIAL UNDER ARTICLE FOUR-
 TEEN OF THE CIVIL SERVICE LAW, SHALL HAVE, AT THE TIME  OF  QUESTIONING,
 WHERE  IT APPEARS THAT SUCH EMPLOYEE IS A POTENTIAL SUBJECT OF DISCIPLI-
 NARY ACTION FOR AN ACT OF SERIOUS MISCONDUCT, A RIGHT TO  REPRESENTATION
 AND  SHALL  BE NOTIFIED IN ADVANCE, IN WRITING, OF SUCH RIGHT. IF REPRE-
 SENTATION IS REQUESTED, A REASONABLE PERIOD OF TIME SHALL BE AFFORDED TO
 OBTAIN SUCH REPRESENTATION. IF THE EMPLOYEE IS UNABLE TO  OBTAIN  REPRE-
 SENTATION  WITHIN  A  REASONABLE PERIOD OF TIME, THEN THE DEPARTMENT MAY
 PROCEED WITH QUESTIONING THE EMPLOYEE. A HEARING OFFICER  APPOINTED  FOR
 THE  PURPOSES  OF THIS SECTION SHALL DETERMINE IF 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 SUCH QUESTIONING, AS WELL AS  ANY  EVIDENCE  OR
 INFORMATION  OBTAINED AS A RESULT OF SUCH QUESTIONING SHALL BE EXCLUDED.
 A PERSON AGAINST WHOM REMOVAL OR OTHER DISCIPLINARY ACTION  IS  PROPOSED
 SHALL  BE  PROVIDED  WRITTEN NOTICE AND SHALL BE FURNISHED A COPY OF THE
 CHARGE OR CHARGES PROFFERED AGAINST SUCH PERSON AND SHALL BE ALLOWED  AT
 LEAST EIGHT DAYS FOR ANSWERING SUCH CHARGES IN WRITING. THE HEARING UPON
 SUCH CHARGES SHALL BE HELD BY A HEARING OFFICER, SELECTED BY THE COMMIS-
 SIONER  OR  THE  COMMISSIONER'S  DESIGNEE.  THE HEARING OFFICER SHALL BE
 VESTED WITH ALL THE POWERS OF THE COMMISSIONER AND SHALL MAKE  A  RECORD
 OF  SUCH HEARING, WHICH SHALL, ALONG WITH SUCH OFFICER'S RECOMMENDATION,
 BE REFERRED TO THE COMMISSIONER FOR REVIEW AND FINAL DETERMINATION.  THE
 HEARING  OFFICER  SHALL,  UPON  THE REQUEST OF THE EMPLOYEE AGAINST WHOM
 CHARGES ARE PROFFERED, PERMIT SUCH EMPLOYEE TO BE REPRESENTED  BY  COUN-
 A. 5355                             3
 
 SEL, OR BY A REPRESENTATIVE OF A RECOGNIZED OR CERTIFIED EMPLOYEE ORGAN-
 IZATION,  AND  SHALL ALLOW THEM TO SUMMON WITNESSES ON THEIR BEHALF. THE
 BURDEN OF PROVING SERIOUS  MISCONDUCT  SHALL  BE  UPON  THE  DEPARTMENT.
 COMPLIANCE WITH TECHNICAL RULES OF EVIDENCE SHALL NOT BE REQUIRED.
   5. SUSPENSION PENDING DETERMINATION OF CHARGES; PENALTIES. (A) PENDING
 THE  HEARING  AND  DETERMINATION  OF  CHARGES OF SERIOUS MISCONDUCT, THE
 EMPLOYEE AGAINST WHOM SUCH CHARGES HAVE BEEN PROFFERED MAY BE  SUSPENDED
 WITHOUT  PAY.  IF THE EMPLOYEE IS FOUND GUILTY OF A CHARGE OR CHARGES OF
 SERIOUS MISCONDUCT, THE RECOMMENDED PENALTY OR PUNISHMENT MAY CONSIST OF
 ANY COMBINATION OF THE FOLLOWING:
   (I) A LETTER OF REPRIMAND;
   (II) REMOVAL FROM WORK LOCATION AND TRANSFER;
   (III) A FINE TO BE DEDUCTED FROM THE SALARY OR WAGES OF SUCH EMPLOYEE;
   (IV) PROBATION FOR A SPECIFIED PERIOD, PROVIDED ANY FURTHER  VIOLATION
 CAN LEAD TO TERMINATION;
   (V) SUSPENSION WITHOUT PAY;
   (VI) DEMOTION IN GRADE AND TITLE; OR
   (VII)  DISMISSAL  FROM THE SERVICE AND LOSS OF ACCUMULATED LEAVE CRED-
 ITS.
   (B) PROVIDED, HOWEVER, THAT THE TIME DURING THE PENDENCY OF THE  HEAR-
 ING, IN WHICH AN EMPLOYEE IS SUSPENDED WITHOUT PAY, MAY BE CONSIDERED AS
 PART OF THE PENALTY.  THE FINAL DETERMINATION OF THE COMMISSIONER ON THE
 RECOMMENDATION  FROM  THE HEARING OFFICER SHALL BE MADE WITHIN TEN BUSI-
 NESS DAYS OF RECEIPT OF SUCH RECOMMENDATION. IF THE EMPLOYEE IS  ACQUIT-
 TED  OF  ALL  CHARGES, SUCH EMPLOYEE SHALL BE RESTORED TO THEIR POSITION
 WITH FULL PAY FOR THE PERIOD OF SUSPENSION LESS THE AMOUNT OF ANY  UNEM-
 PLOYMENT INSURANCE BENEFITS THAT MAY HAVE BEEN RECEIVED. IF SUCH EMPLOY-
 EE IS FOUND GUILTY OF ONE OR MORE OF THE CHARGES, A COPY OF THE CHARGES,
 THE  EMPLOYEE'S  WRITTEN  ANSWER,  A  TRANSCRIPT OF THE HEARING, AND THE
 FINAL DETERMINATION OF THE COMMISSIONER SHALL BE FILED IN THE BUREAU  OF
 LABOR  RELATIONS  AND THE EMPLOYEE'S PERSONNEL FILE. A COPY OF THE TRAN-
 SCRIPT OF THE HEARING SHALL, UPON REQUEST OF THE AFFECTED  EMPLOYEE,  BE
 FURNISHED TO SUCH EMPLOYEE WITHOUT CHARGE.
   6.  APPEAL.  WHEN AN EMPLOYEE BELIEVES THEY ARE AGGRIEVED BY A PENALTY
 OF FINE, PROBATION,  SUSPENSION,  DEMOTION  OR  DISMISSAL  FROM  SERVICE
 IMPOSED  PURSUANT TO THIS SECTION, SUCH EMPLOYEE MAY MAKE AN APPLICATION
 TO THE APPROPRIATE COURT IN ACCORDANCE WITH THE  PROVISIONS  OF  ARTICLE
 SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
   7.  TERMINATION.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW, THE
 COMMISSIONER,  IN  THE  COMMISSIONER'S  DISCRETION,  MAY  TERMINATE  THE
 EMPLOYMENT  OF  ANY  EMPLOYEE  WHO  IS CONVICTED OF A CRIME WHENEVER THE
 COMMISSIONER DETERMINES THAT THE CONTINUED  EMPLOYMENT  OF  SUCH  PERSON
 WOULD NOT BE IN THE BEST INTEREST OF THE DEPARTMENT. NOTWITHSTANDING THE
 FOREGOING,  NO  EMPLOYEE  SHALL  BE  TERMINATED PURSUANT TO THIS SECTION
 UNLESS SUCH EMPLOYEE SHALL FIRST HAVE  BEEN  FURNISHED  WITH  A  WRITTEN
 STATEMENT OF THE REASONS FOR SUCH DETERMINATION AND AFFORDED AN OPPORTU-
 NITY  BY  THE  COMMISSIONER,  OR THE COMMISSIONER'S DESIGNEE, TO MAKE AN
 EXPLANATION AND TO SUBMIT FACTS IN OPPOSITION THERETO.
   § 2. Paragraph (h) of subdivision 4 of section 50 of the civil service
 law, as added by chapter 790 of the laws of 1958, is amended and  a  new
 paragraph (i) is added to read as follows:
   (h) who has been dismissed from private employments because of habitu-
 ally poor performance[.]; OR
   (I)  WHO  HAS BEEN DISCIPLINED FOR AN ACT OF SERIOUS MISCONDUCT AS SET
 FORTH IN SUBDIVISION ONE OF SECTION TWELVE OF THE CORRECTION LAW.
 A. 5355                             4
 
   § 3. Subdivision 1 of section 61 of the civil service law, as added by
 chapter 790 of the laws of 1958, is amended to read as follows:
   1. Appointment  or  promotion  from  eligible  lists.  Appointment  or
 promotion from an eligible list to a position in the  competitive  class
 shall  be made by the selection of one of the three persons certified by
 the appropriate civil service commission as  standing  highest  on  such
 eligible  list  who are willing to accept such appointment or promotion;
 provided, however, that the state or a municipal commission may provide,
 by rule, that where it is necessary to break ties among eligibles having
 the same final examination ratings in order to determine  their  respec-
 tive  standings  on  the  eligible list, appointment or promotion may be
 made by the selection of any eligible whose final examination rating  is
 equal  to or higher than the final examination rating of the third high-
 est standing eligible willing to accept such appointment  or  promotion;
 PROVIDED  FURTHER, HOWEVER, THAT AN INDIVIDUAL'S NAME SHALL BE SUSPENDED
 FROM THE ELIGIBLE LIST PENDING THE OUTCOME OF THE REVIEW OF  THE  APPLI-
 CANT'S  QUALIFICATIONS  PURSUANT TO SUBDIVISION FOUR OF SECTION FIFTY OF
 THIS ARTICLE. Appointments and promotions shall be made from the  eligi-
 ble list most nearly appropriate for the position to be filled.
   § 4. Subdivision 1 of section 112 of the correction law, as amended by
 chapter 322 of the laws of 2021, is amended to read as follows:
   1.  The  commissioner [of corrections and community supervision] shall
 have the superintendence, management and  control  of  the  correctional
 facilities  in  the  department  and  of  the  incarcerated  individuals
 confined therein, and of all matters relating to the government,  disci-
 pline,  policing, contracts and fiscal concerns thereof. [He or she] THE
 COMMISSIONER shall have the power and it  shall  be  [his  or  her]  THE
 COMMISSIONER'S  duty  to  inquire  into  all matters connected with said
 correctional facilities.  [He or she] THE COMMISSIONER shall  make  such
 rules  and regulations, not in conflict with the statutes of this state,
 for the government of the officers and other employees of the department
 assigned to said facilities, and in regard to the duties to be performed
 by them, and for the government  and  discipline  of  each  correctional
 facility,  as  [he  or  she] THE COMMISSIONER may deem proper, and shall
 cause such rules and regulations to be recorded by the superintendent of
 the facility, and a copy  thereof  to  be  furnished  to  each  employee
 assigned to the facility. [He or she] WITH DUE CONSIDERATION FOR OVERALL
 SAFETY AND SECURITY, THE COMMISSIONER SHALL ALSO HAVE THE POWER TO PLACE
 REASONABLE  LIMITS  OR  RESTRICTIONS  ON THE ITEMS AN EMPLOYEE MAY BRING
 INTO A  CORRECTIONAL  FACILITY  OR  COMMUNITY  SUPERVISION  OFFICE  WHEN
 REPORTING  FOR  DUTY, THAT CAN POSE A THREAT OR BE USED AS A WEAPON. THE
 COMMISSIONER shall also prescribe a system of accounts and records to be
 kept at each correctional facility, which system shall be uniform at all
 of said facilities, and [he or she] THE  COMMISSIONER  shall  also  make
 rules  and  regulations  for  a record of photographs and other means of
 identifying each incarcerated individual received into said  facilities.
 [He  or  she]  THE COMMISSIONER shall appoint and remove, subject to the
 civil service law, subordinate  officers  and  other  employees  of  the
 department who are assigned to correctional facilities.
   §  5.  This  act shall take effect on the thirtieth day after it shall
 have become a law; provided, however, that section one of this act shall
 take effect upon the expiration of  the  current  collective  bargaining
 agreement   that   governs  impacted  employees  of  the  department  of
 corrections and community supervision; provided further,  however,  that
 the  commissioner  of corrections and community supervision shall notify
 the legislative bill drafting commission  upon  the  expiration  of  the
 A. 5355                             5
 
 current  collective bargaining agreement that governs impacted employees
 of the department of corrections and community supervision in order that
 the commission may maintain an accurate and timely effective  data  base
 of the official text of the laws of the state of New York in furtherance
 of  effectuating the provisions of section 44 of the legislative law and
 section 70-b of the public officers law; provided further, however, that
 notwithstanding any other provision of law to the contrary,  once  these
 provisions  take  effect  they cannot be abrogated, amended, enhanced or
 modified in any way by future collective bargaining.