§ 105 — Subversive activities; disqualification

§ 105. Subversive activities; disqualification. 1. Ineligibility of\npersons advocating overthrow of government by force or unlawful means.\nNo person shall be appointed to any office or position in the service of\nthe state or of any civil division thereof, nor shall any person\nemployed in any such office or position be continued in such employment,\nnor shall any person be employed in the public service as\nsuperintendent, principal or teacher in a public school or academy or in\na state college or any other state educational institution who:\n (a) by word of mouth or writing wilfully and deliberately advocates,\nadvises or teaches the doctrine that the government of the United States\nor of any state or of any political subdivision thereof should be\noverthrown or overturned by force, violence or any unlawful means; or\n (b) prints, publishes, edits, issues or sells, any book, paper,\ndocument or written or printed matter in any form, containing or\nadvocating, advising or teaching the doctrine that the government of the\nUnited States or of any state or of any political subdivision thereof\nshould be overthrown by force, violence or any unlawful means, and who\nadvocates, advises, teaches, or embraces the duty, necessity or\npropriety of adopting the doctrine contained therein; or\n (c) organizes or helps to organize or becomes a member of any society\nor group of persons which teaches or advocates that the government of\nthe United States or of any state or of any political subdivision\nthereof shall be overthrown by force or violence, or by any unlawful\nmeans.\n For the purposes of this section, membership in the communist party of\nthe United States of America or the communist party of the state of New\nYork shall constitute prima facie evidence of disqualification for\nappointment to or retention in any office or position in the service of\nthe state or of any city or civil division thereof.\n 2. A person dismissed or declared ineligible pursuant to this section\nmay within four months of such dismissal or declaration of ineligibility\nbe entitled to petition for an order to show cause signed by a justice\nof the supreme court, why a hearing on such charges should not be had.\nUntil the final judgment on said hearing is entered, the order to show\ncause shall stay the effect of any order of dismissal or ineligibility\nbased on the provisions of this section; provided, however, that during\nsuch stay a person so dismissed shall be suspended without pay, and if\nthe final determination shall be in his favor he shall be restored to\nhis position with pay for the period of such suspension less the amount\nof compensation which he may have earned in any other employment or\noccupation and any unemployment insurance benefits he may have received\nduring such period. The hearing shall consist of the taking of testimony\nin open court with opportunity for cross examination. The burden of\nsustaining the validity of the order of dismissal or ineligibility by a\nfair preponderance of the credible evidence shall be upon the person\nmaking such dismissal or order of ineligibility.\n 3. Removal for treasonable or seditious acts or utterances. A person\nin the civil service of the state or of any civil division thereof shall\nbe removable therefrom for the utterance of any treasonable or seditious\nword or words or the doing of any treasonable or seditious act or acts\nwhile holding such position. For the purpose of this subdivision, a\ntreasonable word or act shall mean "treason", as defined in the penal\nlaw; a seditious word or act shall mean "criminal anarchy" as defined in\nthe penal law.\n