§ 75 — Removal and other disciplinary action

New York § 75

• Jurisdiction: New York
• Law CVS: Civil Service
• Title B: Removal and Other Disciplinary Proceedings
• Art. 5: Personnel Changes

Text

§ 75. Removal and other disciplinary action. 1. Removal and other\ndisciplinary action. A person described in paragraph (a) or paragraph\n(b), or paragraph (c), or paragraph (d), or paragraph (e) of this\nsubdivision shall not be removed or otherwise subjected to any\ndisciplinary penalty provided in this section except for incompetency or\nmisconduct shown after a hearing upon stated charges pursuant to this\nsection.\n (a) A person holding a position by permanent appointment in the\ncompetitive class of the classified civil service, or\n (b) a person holding a position by permanent appointment or employment\nin the classified service of the state or in the several cities,\ncounties, towns, or villages thereof, or in any other political or civil\ndivision of the state or of a municipality, or in the public school\nservice, or in any public or special district, or in the service of any\nauthority, commission or board, or in any other branch of public\nservice, who was honorably discharged or released under honorable\ncircumstances from the armed forces of the United States including (i)\nhaving a qualifying condition as defined in section one of the veterans'\nservices law, and receiving a discharge other than bad conduct or\ndishonorable from such service, or (ii) being a discharged LGBT veteran,\nas defined in section one of the veterans' services law, and receiving a\ndischarge other than bad conduct or dishonorable from such service,\nhaving served therein as such member in time of war as defined in\nsection eighty-five of this chapter, or who is an exempt volunteer\nfirefighter as defined in the general municipal law, except when a\nperson described in this paragraph holds the position of private\nsecretary, cashier or deputy of any official or department, or\n (c) an employee holding a position in the non-competitive or labor\nclass other than a position designated in the rules of the state or\nmunicipal civil service commission as confidential or requiring the\nperformance of functions influencing policy, who since his or her last\nentry into service has completed at least five years of continuous\nservice in the non-competitive or labor class in a position or positions\nnot so designated in the rules as confidential or requiring the\nperformance of functions influencing policy, or\n (d) an employee in the service of the City of New York holding a\nposition as Homemaker or Home Aide in the non-competitive class, who\nsince his last entry into city service has completed at least three\nyears of continuous service in such position in the non-competitive\nclass, or\n (e) an employee in the service of a police department within the state\nof New York holding the position of detective for a period of three\ncontinuous years or more; provided, however, that a hearing shall not be\nrequired when reduction in rank from said position is based solely on\nreasons of the economy, consolidation or abolition of functions,\ncurtailment of activities or otherwise.\n 2. Procedure. An employee who at the time of questioning appears to be\na potential subject of disciplinary action shall have a right to\nrepresentation by his or her certified or recognized employee\norganization under article fourteen of this chapter and shall be\nnotified in advance, in writing, of such right. A state employee who is\ndesignated managerial or confidential under article fourteen of this\nchapter, shall, at the time of questioning, where it appears that such\nemployee is a potential subject of disciplinary action, have a right to\nrepresentation and shall be notified in advance, in writing, of such\nright. If representation is requested a reasonable period of time shall\nbe afforded to obtain such representation. If the employee is unable to\nobtain representation within a reasonable period of time the employer\nhas the right to then question the employee. A hearing officer under\nthis section shall have the power to find that a reasonable period of\ntime was or was not afforded. In the event the hearing officer finds\nthat a reasonable period of time was not afforded then any and all\nstatements obtained from said questioning as well as any evidence or\ninformation obtained as a result of said questioning shall be excluded,\nprovided, however, that this subdivision shall not modify or replace any\nwritten collective agreement between a public employer and employee\norganization negotiated pursuant to article fourteen of this chapter. A\nperson against whom removal or other disciplinary action is proposed\nshall have written notice thereof and of the reasons therefor, shall be\nfurnished a copy of the charges preferred against him and shall be\nallowed at least eight days for answering the same in writing. The\nhearing upon such charges shall be held by the officer or body having\nthe power to remove the person against whom such charges are preferred,\nor by a deputy or other person designated by such officer or body in\nwriting for that purpose. In case a deputy or other person is so\ndesignated, he shall, for the purpose of such hearing, be vested with\nall the powers of such officer or body and shall make a record of such\nhearing which shall, with his recommendations, be referred to such\nofficer or body for review and decision. The person or persons holding\nsuch hearing shall, upon the request of the person against whom charges\nare preferred, permit him to be represented by counsel, or by a\nrepresentative of a recognized or certified employee organization, and\nshall allow him to summon witnesses in his behalf. The burden of proving\nincompetency or misconduct shall be upon the person alleging the same.\nCompliance with technical rules of evidence shall not be required.\n 2-a. Independent hearing officer. (a) Notwithstanding any other\nprovision of law to the contrary, including but not limited to\nsubdivision four of section seventy-six of this title, any paid officer\nor member of an organized fire company or fire department of a city of\nless than one million population, or town, village or fire district who\nis represented by a certified or recognized employee organization\npursuant to article fourteen of this chapter shall not be subjected to\nthe penalty of dismissal from service or any other discipline if the\nhearing, upon such charge, has been conducted by someone other than an\nindependent hearing officer to be agreed to by the employer and the\nperson against whom disciplinary action is proposed. If the parties are\nunable to agree upon a hearing officer, the hearing officer shall be\nselected from a list of seven names to be provided by the public\nemployment relations board. The public employment relations board shall\nmaintain a list of independent hearing officers for this purpose. The\nparties shall select the hearing officer by alternately striking names\nfrom the list of seven. The hearing officer shall be vested with all\npowers of the appointing authority, shall conduct and make a record of\nthe hearing, and shall render a final decision. The cost incurred in\nobtaining such independent hearing officer shall be divided equally\nbetween the parties; provided that as may be determined upon the\ncircumstances of the case, the hearing officer shall be authorized to\nallocate such cost on the basis of the frivolous nature of any claim\nmade or any defense interposed. In order to find a claim or defense to\nbe frivolous, the hearing officer must find at least one of the\nfollowing:\n (i) the claim or defense was commenced, used or continued in bad\nfaith, solely to delay or prolong the resolution of the action or to\nharass or maliciously injure another; or\n (ii) the claim or defense was commenced or continued in bad faith\nwithout any reasonable basis in law or fact. If the claim or defense was\npromptly discontinued when the party learned or should have learned that\nthe claim or defense lacked such reasonable basis, the hearing officer\nmay find that the party did not act in bad faith. A person served with\ncharges may then, however, elect in writing to proceed with a hearing\npursuant to the procedures established in subdivision two of this\nsection in lieu of the procedures set forth in this subdivision.\n (b) The rights set forth in paragraph (a) of this subdivision shall be\nin addition to, and shall not supplant, modify or replace any rights\nprovided to an employee pursuant to agreements negotiated by a public\nemployer and an employee organization pursuant to article fourteen of\nthis chapter, or pursuant to any other provision of law, including but\nnot limited to other provisions of this section.\n 3. Suspension pending determination of charges; penalties. Pending the\nhearing and determination of charges of incompetency or misconduct, the\nofficer or employee against whom such charges have been preferred may be\nsuspended without pay for a period not exceeding thirty days. If such\nofficer or employee is found guilty of the charges, the penalty or\npunishment may consist of a reprimand, a fine not to exceed one hundred\ndollars to be deducted from the salary or wages of such officer or\nemployee, suspension without pay for a period not exceeding two months,\ndemotion in grade and title, or dismissal from the service; provided,\nhowever, that the time during which an officer or employee is suspended\nwithout pay may be considered as part of the penalty. If he is\nacquitted, he shall be restored to his position with full pay for the\nperiod of suspension less the amount of any unemployment insurance\nbenefits he may have received during such period. If such officer or\nemployee is found guilty, a copy of the charges, his written answer\nthereto, a transcript of the hearing, and the determination shall be\nfiled in the office of the department or agency in which he has been\nemployed, and a copy thereof shall be filed with the civil service\ncommission having jurisdiction over such position. A copy of the\ntranscript of the hearing shall, upon request of the officer or employee\naffected, be furnished to him without charge.\n 3-a. Suspension pending determination of charges and penalties\nrelating to police officers of the police department of the city of New\nYork. Pending the hearing and determination of charges of incompetency\nor misconduct, a police officer employed by the police department of the\ncity of New York may be suspended without pay for a period not exceeding\nthirty days. If such officer is found guilty of the charges, the police\ncommissioner of such department may punish the police officer pursuant\nto the provisions of sections 14-115 and 14-123 of the administrative\ncode of the city of New York.\n 4. Notwithstanding any other provision of law, no removal or\ndisciplinary proceeding shall be commenced more than eighteen months\nafter the occurrence of the alleged incompetency or misconduct\ncomplained of and described in the charges or, in the case of a state\nemployee who is designated managerial or confidential under article\nfourteen of this chapter, more than one year after the occurrence of the\nalleged incompetency or misconduct complained of and described in the\ncharges, provided, however, that such limitations shall not apply where\nthe incompetency or misconduct complained of and described in the\ncharges would, if proved in a court of appropriate jurisdiction,\nconstitute a crime.\n