§ 75. Removal and other disciplinary action. 1. Removal and other
disciplinary action. A person described in paragraph (a) or paragraph
(b), or paragraph (c), or paragraph (d), or paragraph (e) of this
subdivision shall not be removed or otherwise subjected to any
disciplinary penalty provided in this section except for incompetency or
misconduct shown after a hearing upon stated charges pursuant to this
section.

(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 or in the several cities,
counties, towns, or villages thereof, or in any other political or civil
division of the state or of a municipality, or in the public school
service, or in any public or special district, or in the service of any
authority, commission or board, or in any other branch of public
service, 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 this chapter, or who is an exempt volunteer
firefighter as defined in the general municipal law, except when a
person described in this paragraph 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 or labor
class other than a position designated in the rules of the state or
municipal civil service commission as confidential or requiring the
performance of functions influencing policy, who since his or her last
entry into service has completed at least five years of continuous
service in the non-competitive or labor class in a position or positions
not so designated in the rules as confidential or requiring the
performance of functions influencing policy, or

(d) an employee in the service of the City of New York holding a
position as Homemaker or Home Aide in the non-competitive class, who
since his last entry into city service has completed at least three
years of continuous service in such position in the non-competitive
class, or

(e) an employee in the service of a police department within the state
of New York holding the position of detective for a period of three
continuous years or more; provided, however, that a hearing shall not be
required when reduction in rank from said position is based solely on
reasons of the economy, consolidation or abolition of functions,
curtailment of activities or otherwise.

2. Procedure. An employee 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 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 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 therefor, shall be
furnished a copy of the charges preferred against him 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 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 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 to be represented by counsel, or by a
representative of a recognized or certified employee organization, and
shall allow him to summon witnesses in his 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. Independent hearing officer. (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 someone 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. 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 authorized 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.

(b) The rights set forth in paragraph (a) of this subdivision shall be
in addition to, and shall not supplant, modify or replace any rights
provided to an employee pursuant to agreements negotiated by a public
employer and an employee organization pursuant to article fourteen of
this chapter, or pursuant to any other provision of law, including but
not limited to other provisions of this section.

3. Suspension pending determination of charges; penalties. 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 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 is
acquitted, he shall be restored to his position with full pay for the
period of suspension less the amount of any unemployment insurance
benefits he may have received during such period. If such officer or
employee is found guilty, a copy of the charges, his 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 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 without charge.

3-a. Suspension pending determination of charges and penalties
relating to police officers of the police department of the city of New
York. Pending the hearing and determination of charges of incompetency
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 administrative
code of the city of New York.

4. Notwithstanding any other provision of law, no removal or
disciplinary proceeding shall be commenced more than eighteen months
after the occurrence of the alleged incompetency or misconduct
complained of and described in the charges or, in the case of a state
employee who is designated managerial or confidential under article
fourteen of this chapter, more than one year after the occurrence of the
alleged incompetency or misconduct complained of and described in the
charges, provided, however, that such limitations shall not apply where
the incompetency or misconduct complained of and described in the
charges would, if proved in a court of appropriate jurisdiction,
constitute a crime.