2023 New York Laws › CVS - Civil Service › Article 5 - Personnel Changes › Title B - Removal and Other Disciplinary Proceedings › 75 - Removal and Other Disciplinary Action.

§ 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.