§ 3556 — Merit system; merit board

§ 3556. Merit system; merit board. 1. Policy and applicable law. (a)\nPositions in the employ of Roswell Park Cancer Institute corporation\nshall be subject to section six of article five of the Constitution of\nthe state of New York.\n (b) Except as provided by this title and rules issued pursuant\nthereto, the corporation and its employees shall be subject to the\nprovisions of the civil service law as the same shall be amended from\ntime-to-time and employees of the corporation shall be deemed to have\nthe rights of state employees for the purposes of such provisions of the\ncivil service law.\n 2. Definitions. When used in this section:\n (a) The term "classified service" means all positions in the\ncorporation which are not in the unclassified service.\n (b) The term "merit board" means the committee established by\ncorporation's board of directors established by this title, which shall\nact in the capacity and fulfill the role of the "commission", "civil\nservice commission" and "municipal civil service commission" for the\npurposes of applying the civil service law to positions in the\ncorporation.\n (c) The term "director of classification and compensation" or\n"director" means the director of classification and compensation of the\nRoswell Park Cancer Institute corporation.\n (d) The term "jurisdictional classification" means the assignment of\npositions in the classified service to the competitive, noncompetitive,\nexempt or labor classes.\n (e) The terms "position classification", "classification",\n"reclassification", and "classify" mean grouping together under common\nand descriptive titles positions that are substantially similar in the\nessential character and scope of their duties and responsibilities and\nrequired qualifications.\n 3. Roswell Park Cancer Institute merit board. (a) Three persons, other\nthan directors, officers, employees or the president of the corporation,\nshall be selected by majority vote of the board for three-year terms and\nshall constitute the Roswell Park Cancer Institute merit board. The\nterms of the members of the merit board shall be staggered so that the\nterm of one member expires each year. The members of the merit board\nshall annually elect one of the members chairperson.\n (b) The members of the merit board shall receive their necessary\ntravel and other expenses incurred in the performance of the duties of\nsuch office, and shall receive in addition such compensation for\nservices rendered as members of such merit board as shall be determined\nby the board of directors of the corporation by vote of a majority of\nthe directors.\n (c) The merit board shall prescribe and amend rules and regulations\nsubject to the applicable provisions of article fourteen of the civil\nservice law, for effecting the provisions of this title and of section\nsix of article five of the Constitution of the state of New York,\nincluding but not limited to (i) rules for the jurisdictional\nclassification of offices and positions in the classified service of the\ncorporation; (ii) rules for examinations, appointments, promotions,\ntransfers, leaves of absence, resignations and reinstatements; (iii)\nrules for sick leaves, vacations, time allowances and other conditions\nof employment in the classified service of the corporation; (iv) rules\nfor the hearing and determination of appeals; and (v) rules designating\npositions in the non-competitive class which are confidential or require\nthe performance of functions influencing policy.\n (d) The merit board shall hear and determine appeals instituted by any\nperson believing himself or herself aggrieved by any action or\ndetermination of the director of classification and compensation, acting\nas such; provided, however, that no appeal shall be allowed (i) if the\naction or determination involved relates solely to matters of internal\nmanagement of the office of the director of classification and\ncompensation, or (ii) if the action or determination involved was\nconsidered and approved in advance by the merit board. Any appeal\nauthorized by this subdivision shall be instituted by filing with the\nsecretary of the merit board a written notice of appeal stating the\naction or determination appealed from, the grounds for the appeal, and\nsigned by the person or persons appealing or their representative; no\nparticular form of appeal shall be required. Any such appeal shall be\nfiled within thirty days following the appellant's receipt from the\ndirector of classification and compensation of notice of the action or\ndetermination to be reviewed; the merit board for good cause shown may\nwaive such thirty-day limitation. The merit board may make such\ninvestigation or inquiry into the facts relative to the action or\ndetermination appealed from as may be deemed advisable, shall afford to\nthe appellant and his or her representative an opportunity to be heard\nin person or in writing and to present evidence and argument. The merit\nboard may affirm, modify or reverse such action or determination. The\nmerit board shall decide each appeal filed within thirty days following\nthe date on which the submission of facts, information and evidence is\ndeemed complete by the merit board. The person seeking review and his or\nher representative shall be furnished a copy of the merit board's\nwritten decision concurrently with its filing with the secretary of the\nmerit board. A decision of the merit board shall become final and\nbinding when filed with the secretary of the merit board. Review of any\nsuch final decision shall be by a proceeding authorized by article\nseventy-eight of the civil practice law and rules; any such proceeding\nmust be commenced within four months after the determination to be\nreviewed becomes final and binding.\n (e) Before adopting any rule the merit board shall publish notice of\nthe proposed rule no later than thirty days prior to the proposed\neffective date of such rule and shall afford an opportunity to any\ninterested person to comment on the proposed rule.\n (i) Publication of notice of proposed rule-making shall be\naccomplished by posting a copy on the main bulletin board of the\ncorporation, by serving a copy of the notice by certified mail return\nreceipt requested upon the designated representative of any employee\nunion recognized to represent employees of the corporation and by\nmailing the copy of the notice to the temporary president of the senate\nand the speaker of the assembly; publication shall be complete upon the\nposting and mailing. Notice made pursuant to this subparagraph shall be\ndeemed to be in compliance with the notice requirements prescribed in\nsection one hundred one-a of the executive law.\n (ii) A notice of proposed rule-making shall contain the complete text\nof the proposed rule, and the last date upon which the merit board will\nreceive comment upon the proposed rule; provided, however, that if the\ntext of the proposed rule exceeds two thousand words the notice shall\ncontain only a description of the subject, purpose and substance of such\nrule, and shall state from what person the complete text may be\nobtained.\n (iii) The last date for submission of comments upon a proposed rule\nshall be not less than twenty days following the publication of notice\nof proposed rule-making.\n (iv) The merit board may receive comments on a proposed rule in\nwriting or, in an appropriate case, may conduct a hearing upon the\nproposed rule.\n (v) Any rule adopted by the merit board shall take effect when signed\nby the chairperson of the merit board and filed with the secretary of\nthe corporation. Notice of adoption of a rule shall be published\nconcurrently with its adoption in the same manner as the notice of\nproposed rule-making.\n (vi) In the exercise of its rule-making authority the merit board\nshall not be subject to the provisions of the state administrative\nprocedure act.\n (f) The secretary of the corporation shall be the secretary to the\nmerit board and shall serve ex officio without vote. The secretary shall\nmaintain minutes of the meetings of the merit board and shall maintain\ncomplete copies of the rules adopted by the merit board. Such minutes\nand rules shall be open to public inspection and copying during all\nordinary business hours of the corporation in accordance with the\napplicable provisions of article six of the public officers law.\n (g) The merit board shall, subject to the provisions of article seven\nof the public officers law, meet annually at the offices of the\ncorporation, and shall hold such other meetings at such places within\nthe state as may be required. A majority of the members of the merit\nboard shall constitute a quorum.\n 4. Director of classification and compensation. (a) The director of\nclassification and compensation of the corporation shall be in the\ncompetitive class of the classified service appointed by the president\nof the corporation. The director of classification and compensation\nshall not be a part of the office of human resources of the corporation.\n (b) The director of classification and compensation shall be charged\nwith the duty and shall have the power, subject to appeal to the merit\nboard:\n (i) to classify and reclassify all positions in the classified service\nof the corporation; and\n (ii) to allocate and reallocate to an appropriate salary grade all\npositions in the competitive, noncompetitive and labor classes of the\nclassified service of the corporation including temporary and seasonal\npositions; provided that notwithstanding any inconsistent provisions of\nsection one hundred thirty of the civil service law, employees of the\ncorporation in the classified service of the corporation shall also be\ndeemed to be in the classified civil service of the state of New York\nfor purposes of section one hundred thirty of the civil service law.\n (c) The principle of fair and equal pay for similar work shall be\nfollowed in the classification and reclassification and the allocation\nand reallocation of positions pursuant to this section and all positions\nhaving the same title shall be allocated to the same salary grade.\n (d) The director of classification and compensation shall also have\nthe following powers and duties:\n (i) To ascertain and record the duties and responsibilities of all\npositions in the classified service of the corporation, establish\nadequate specifications showing the qualifications for and the nature\nand extent and scope of the duties and responsibilities of such\npositions, and assign uniform titles to positions that are so\nsubstantially similar in the essential character and scope of their\nduties and responsibilities and in the qualification requirements\nthereof that the same descriptive title may be used to designate them;\nthat the same qualifications for appointment thereto may be reasonably\nrequired; that the same tests of fitness may be established, and that\nthe same rate of compensation may be reasonably applied;\n (ii) To investigate all matters affecting the classification and\ncompensation of positions, to hear and determine all complaints and\ngrievances with respect to the classification and compensation of\npositions, and from time to time to review the duties, responsibilities,\nqualification requirements and compensation of positions and to make\nsuch revisions in the classification or compensation of positions as\nchanges in the service of the corporation may require;\n (iii) To afford to any person aggrieved by the classification or\nallocation of a position a reasonable opportunity to present facts in\nsupport of or in relation to such classification or allocation, at a\ntime and in such manner as may be specified by the director, and to\nrender and furnish to the person aggrieved a written decision thereon.\n (e) Any classification or reclassification of a position and any\nallocation or reallocation of a position to a salary grade made by the\ndirector pursuant to this section shall become effective on the date\napproved by the president of the corporation.\n 5. Authority to use services of New York state department of civil\nservice. The merit board or the director may request of the New York\nstate department of civil service technical advice and assistance in the\nadministration of the provisions of this title for consideration,\nincluding but not limited to the preparation and administration of\nexaminations, and in the absence of an eligible list of the corporation,\nmay request the New York state department of civil service to furnish it\nwith the names of persons on an appropriate eligible list. The merit\nboard or the director shall provide such department with any information\nnecessary to effectuate the provisions of this section.\n 6. Classes of position established. The classified service of the\ncorporation shall comprise all offices and positions not included in the\nunclassified service. The offices and positions in the classified\nservice of the corporation shall be divided into four classes designated\nas the exempt class, the non-competitive class, the competitive class,\nand the labor class.\n (a) The exempt class shall consist of such positions and offices which\nthe merit board shall determine to be impracticable to fill by\ncompetitive or non-competitive examination.\n (b) The non-competitive class shall include all positions that are not\nin the exempt class or labor class and for which it is found by the\nmerit board to be not practicable to ascertain the merit and fitness of\napplicants by competitive examination.\n (c) The labor class shall comprise all unskilled laborers in the\nservice of the corporation.\n (d) The competitive class shall include all positions for which it is\nfound by the merit board to be practicable to determine the merit and\nfitness of applicants by competitive examination, and shall include all\npositions in the classified service of the corporation except such\npositions as are in the exempt class, the non-competitive class or the\nlabor class.\n 7. Examinations. (a) The merit and fitness of applicants for positions\nwhich are classified in the competitive class shall be ascertained by\nsuch examinations as may be prescribed by the merit board. The merit\nboard shall issue an announcement of each competitive examination or\npromotional examination, setting forth the minimum qualifications\nrequired, the subjects of the examination, and such other information as\nthey may deem necessary, and shall advertise such examination in such\nmanner as the nature of the examination may require.\n (b) The merit board, acting by the director, shall require prospective\napplicants to file during a prescribed time a formal application in\nwhich the applicant shall state such information as may reasonably be\nrequired, touching upon the applicant's background, experience and\nqualifications for the position sought and his or her merit and fitness\nfor service. The application shall be subscribed by the applicant and\nshall contain an affirmation by the applicant that the statements\ntherein are true under the penalties of perjury. Application forms shall\nbe furnished without charge to all persons requesting them.\n 8. Abolition of positions; demotion. (a) Where, because of economy,\nconsolidation or abolition of functions, curtailment of activities or\notherwise, positions in the competitive class of service of the\ncorporation are abolished or reduced in rank or salary grade, suspension\nor demotion as the case may be among incumbents holding the same or\nsimilar positions within the same jurisdictional classification shall be\nmade in the inverse order of original appointment on a permanent basis\nin the grade or title; provided, however, that upon the abolition or\nreduction of positions in the competitive class of service of the\ncorporation incumbents holding the same or similar positions within the\nsame jurisdictional classification who have not completed their\nprobationary service shall be suspended or demoted as the case may be\nbefore any permanent incumbents, and among such probationary employees\nthe order of suspension or demotion shall be determined as if such\nemployees were permanent incumbents.\n (b) Where, because of economy, consolidation or abolition of\nfunctions, curtailment of activities or otherwise, positions in the\nnon-competitive class of service of the corporation are abolished or\nreduced in rank or salary grade, suspension or demotion as the case may\nbe among incumbents holding the same or similar positions within the\nsame jurisdictional classification shall be made in the inverse order of\noriginal appointment on a permanent basis in the grade or title;\nprovided, however, that upon the abolition or reduction of positions in\nthe non-competitive class of service of the corporation incumbents\nholding the same or similar positions within the same jurisdictional\nclassification who have not completed their probationary service shall\nbe suspended or demoted as the case may be before any permanent\nincumbents, and among such probationary employees the order of\nsuspension or demotion shall be determined as if such employees were\npermanent incumbents.\n (c) Upon the abolition or reduction of positions in the service of the\ncorporation, suspension or demotion shall be made from among employees\nholding the same or similar positions within the same jurisdictional\nclassification in the entirety of the corporation.\n (d) In any case where an employee of the corporation is suspended or\ndemoted because of economy, consolidation or abolition of functions,\ncurtailment of activities or otherwise, the director of classification\nand compensation shall, upon such suspension or demotion, furnish to the\nmerit board a statement showing the employee's name, title or position,\ndate of appointment and the date of and reason for suspension or\ndemotion. The merit board shall place the name of such employee upon a\npreferred list together with others who may have been suspended or\ndemoted from the same or similar positions in the same jurisdictional\nclass in the service of the corporation, and shall certify such list for\nfilling vacancies in the same jurisdictional class, first, in the same\nor similar position, second, in any position in a lower grade in line of\npromotion, and third, in any comparable position.\n (e) For purposes of the civil service law, the date of original\nappointment of employees of the corporation shall be the date of\noriginal appointment on a permanent basis in the classified service of\nthe corporation; except that for those employees who transfer from state\nservice to the service of the corporation pursuant to section\nthirty-five hundred fifty-seven of this title, the date of original\nappointment shall be the date of original appointment on a permanent\nbasis in the civil service of the state of New York.\n 9. Notwithstanding any inconsistent provision of section eighty-one of\nthe civil service law, employees of the state who transfer to the\ncorporation pursuant to subdivision one of section thirty-five hundred\nfifty-seven of this title shall be considered to be state employees\nunder the jurisdiction of the state civil service commission for\npurposes of placement on and employment from preferred lists established\nby the state civil service commission.\n 10. Notwithstanding any inconsistent provisions of sections\neighty-one-a and eighty-one-b of the civil service law, employees of the\nstate who transfer to the corporation pursuant to subdivision one of\nsection thirty-five hundred fifty-seven of this title shall be\nconsidered to be state employees for purposes of placement upon and\nemployment from reemployment rosters pursuant to section eighty-one-a of\nthe civil service law and for purposes of placement upon and employment\nfrom placement rosters pursuant to section eighty-one-b of the civil\nservice law.\n 11. Reemployment rosters within the corporation. (a) Where an employee\nis to be suspended or demoted in accordance with subdivision eight of\nthis section, the president of the corporation shall, upon such\nemployee's suspension or demotion place the name of such employee upon a\nreemployment roster for filling vacancies in any comparable position as\ndetermined by the director of classification and compensation, except\nthat employees suspended or demoted from positions in the\nnon-competitive and labor classes may not be certified to fill vacancies\nin the competitive class. Such reemployment roster shall be certified\nfor filling a vacancy in any such position before certification is made\nfrom any other list, including a promotion eligible list, but not prior\nto a preferred list. Eligibility for reinstatement of a person whose\nname appears on any such reemployment roster shall not continue for a\nperiod longer than four years from the date of suspension or demotion\nprovided, however, in no event shall eligibility for reinstatement from\na reemployment roster continue once the person is no longer eligible for\nreinstatement from a preferred list.\n (b) The names of persons on a reemployment roster shall be certified\ntherefrom with equal ranking for reinstatement.\n (c) All reinstatements from a reemployment roster shall require\ncompletion of a probationary term in accordance with rules promulgated\nby the merit board pursuant to subdivision two of section sixty-three of\nthe civil service law.\n (d) The merit board shall adopt rules providing for the relinquishment\nof eligibility for reinstatement upon reinstatement or upon failure or\nrefusal to accept reinstatement from a preferred list or a reemployment\nroster.\n (e) Notwithstanding any other provision of this title, the corporation\nmay disqualify for reinstatement and remove from a reemployment roster\nthe name of any otherwise eligible person who, by reason of physical or\nmental incapacity, is found to be unable to satisfactorily perform the\nduties of the position for which such roster has been established, or\nwho has engaged in such misconduct as would warrant their dismissal from\npublic employment, except that a person who is not completely physically\nincapacitated and who is suspended or demoted pursuant to section eighty\nof the civil service law because their position has been abolished or\nreduced, but who is certified for reinstatement to any position having\nthe same physical requirements as the position from which such person\nwas suspended or demoted, shall not be disqualified because of their\nincapacity, unless upon medical examination their incapacity has\nworsened to a degree that they would not be able to satisfactorily\nperform in such position. No person shall be disqualified pursuant to\nthis subdivision unless they are first given a written statement of the\nreasons therefor and an opportunity to be heard at a hearing at which\nsatisfactory proof of such reasons must be established by appropriate\nevidence, and at which such person may present independent evidence and\nbe entitled to representation by counsel. The corporation shall\ndesignate a person to hold such hearing and report thereon.\n (f) Notwithstanding any other provision of this title, any person may\nvoluntarily remove his or her name from a reemployment roster by\napplication to the corporation.\n 12. Placement rosters within the corporation. (a) Where an employee is\nto be suspended or demoted in accordance with subdivision eight of this\nsection, the president of the corporation shall, upon such employee's\nsuspension or demotion place the name of such employee upon a\nreemployment roster for filling vacancies in any comparable position as\ndetermined by the director of classification and compensation except\nthat employees suspended or demoted from position in the non-competitive\nand labor classes may not be certified to fill vacancies in the\ncompetitive class. Such placement roster shall be certified for filling\na vacancy in any such position before certification is made from any\nother list, including a promotion eligible list, but not prior to a\npreferred list or a reemployment roster. Eligibility for appointment of\nan employee whose name appears on any such placement roster shall\nterminate at such time as the employee is suspended or demoted in\naccordance with the provisions of subdivision eight of this section.\nUpon such employee's suspension or demotion, the corporation shall place\nthe name of such employee upon a preferred list, and a reemployment\nroster as appropriate, in accordance with the provisions of subdivision\neight of this section.\n (b) The names of employees on a placement roster shall be certified\ntherefrom with equal ranking for appointment.\n (c) All appointments from a placement roster shall require completion\nof a probationary term in accordance with rules promulgated by the civil\nservice commission pursuant to subdivision two of section sixty-three of\nthe civil service law.\n (d) The merit board shall adopt rules providing for the relinquishment\nof eligibility for appointment upon appointment or upon failure or\nrefusal to accept appointment from a placement roster.\n (e) Notwithstanding any other provision of this title, any employee\nmay voluntarily remove his or her name from a placement roster by\napplication to the corporation.\n 13. Establishment of redeployment lists in the corporation; general\nprovisions. (a) Notwithstanding any inconsistent provision of section\nseventy-nine of the civil service law, where, and to the extent that an\nagreement between the state and an employee organization entered into\npursuant to article fourteen of the civil service law so provides,\nemployees of the corporation shall be considered to be employees in\nstate service for purposes of primary and secondary redeployment\npursuant to section seventy-nine of the civil service law and the\napplicable collective bargaining agreement.\n (b) Where, an employee in the corporation is to be suspended or\ndemoted in accordance with the provisions of subdivision eight of this\nsection by reason of the corporation's exercise of its right to contract\nout for goods and services, and receipt of the information required\npursuant to subdivision eleven of this section for purposes of\nestablishing reemployment rosters, at least ninety days prior to the\nsuspension or demotion of an affected employee, the corporation shall\nplace the name of the employee upon a redeployment list. Such\nredeployment list shall be certified for filling positions in the same\ntitle or in any comparable title, as determined by the director of\nclassification and compensation, before certification is made from any\nother eligible list, placement roster, reemployment roster or preferred\nlist.\n (c) The names of persons on a redeployment list shall be certified\ntherefrom for appointment in the order of their original appointments,\nin accordance with the provisions of paragraph (e) of subdivision eight\nof this section.\n (d) A person appointed from a redeployment list shall receive at least\nthe same salary such person was receiving in the position from which he\nor she is to be or has been suspended or demoted.\n (e) Probationers who are appointed from a redeployment list to a\nposition in the same title will be required to complete their\nprobationary term. Employees who are appointed from a redeployment list\nto a position in a comparable title shall be required to complete a\nprobationary term in accordance with the rules promulgated by the merit\nboard pursuant to subdivision two of section sixty-three of the civil\nservice law.\n (f) Eligibility for appointment of an employee whose name appears on a\nredeployment list shall terminate at such time as the employee is\nredeployed pursuant to the provisions of this section to a position in\nthe same salary grade as the position from which they have been\nsuspended or demoted, or has exercised their reemployment rights\npursuant to the provisions of section eighty-one or eighty-one-a of the\ncivil service law, provided, however, that eligibility for appointment\nshall terminate no later than six months following the suspension or\ndemotion of such employee in accordance with the provisions of section\neighty of the civil service law. Upon such employee's suspension or\ndemotion, the corporation shall place the name of such employee upon a\npreferred list, and a reemployment roster, as appropriate, in accordance\nwith the provisions of subdivision eight of this section.\n (g) Notwithstanding any other provision of this chapter, any employee\nmay voluntarily remove his or her name from a redeployment list by\napplication to the corporation.\n (h) (1) In the event the corporation determines, in accordance with\nthe provisions of paragraph (b) of this subdivision, that there are no\npositions in the same title or any comparable title to which an employee\nto be suspended or demoted by reason of the state's exercise of its\nright to contract out for goods and services can be redeployed, the\ncorporation may place the name of such employee on a special\nreemployment roster, for filling positions in titles for which the\nemployee meets the essential tests and qualifications. Such special\nreemployment roster may be certified immediately upon the employee's\nplacement on the roster for filling a position before certification is\nmade from any other eligible list, including a promotion eligible list,\nbut not prior to a redeployment list or preferred list.\n (2) Eligibility for appointment of an employee whose name appears on a\nspecial reemployment roster shall not continue for a period longer than\nfour years from the date of suspension or demotion, provided, however,\nthat eligibility for appointment of an employee whose name appears on\nany such special reemployment roster shall terminate at such time as the\nemployee is redeployed pursuant to the provisions of this section and,\nin no event, shall eligibility for appointment from a special\nreemployment roster continue once the employee is no longer eligible for\nreinstatement from a preferred list.\n (3) Employees placed on a special reemployment roster in accordance\nwith the provisions of this section, shall have all the rights and\nprivileges provided employees placed on reemployment rosters in\naccordance with subdivision eleven of this section.\n (i) The merit board shall adopt rules for carrying into effect the\nprovisions of this section, including rules providing for the\nrelinquishment of eligibility for appointment upon appointment or upon\nfailure or refusal to accept appointment from a redeployment list.\nAdditionally, notwithstanding any inconsistent provision of law, rule,\nor regulation, an agreement between the corporation and an employee\norganization recognized or certified pursuant to article fourteen of the\ncivil service law can provide employment security rights and benefits\nwhere the state has exercised its right to contract out for goods and\nservices. The merit board upon receipt of a written request of the\ndirector of the corporation is authorized to implement provisions of\nsuch agreement consistent with the terms thereof and, to the extent\nnecessary, may adopt rules and regulations providing for the benefits to\nbe thereunder provided. The merit board, with the approval of the\npresident of the corporation, may extend such benefits in whole or in\npart, to corporation employees excluded from collective negotiating\nunits.\n