New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle K - New York State Police › Part 489 - Order To Report For Duty › Section 489.1 - Purpose and scope

Current through Register Vol. 46, No. 28, July 10, 2024
(a) If the
				superintendent or his designee determines that a member who has been absent
				from duty, because of any injury or disease, has become fit for full and
				strenuous duty, the superintendent or his designee shall order such member in
				writing to return to duty. This order shall be personally delivered or sent by
				first class mail, return receipt requested, to the member's last known
				address.
(b) If the member wishes
				to contest the superintendent's determination that he is fit for full and
				strenuous duty, the procedure set forth below shall be followed:
(1) The member must, on or before the date he
				is scheduled to report for duty, object in writing to the determination and
				request a hearing. The request shall be in writing and sent directly to the
				first deputy superintendent. In addition, the member shall immediately orally
				notify his troop or detail commander (or designee) of the intention to contest
				the determination. Failure to file a timely objection and request for a hearing
				shall constitute a waiver of the right to a hearing and subject the member to
				disciplinary action if the member fails to return to duty as ordered.
(2) Upon receipt of a written request for a
				hearing, the member shall be provided copies of any diagnoses, test results,
				recorded observations, or other records supporting the determination that the
				member is fit for full and strenuous duty. The member shall be afforded a
				hearing as soon as practicable. At least three days prior to the hearing, the
				member shall provide division counsel with copies of any diagnoses, test
				results, recorded observations, or other records supporting his contention that
				he is not fit for full and strenuous duty.
(3) The hearing shall be held at division
				headquarters before a State Police commissioned officer holding the rank of
				staff inspector or higher who will be chosen by the superintendent or his
				designee. In all cases, the hearing officer shall be of higher rank than the
				member requesting the hearing. The member may be represented at the hearing by
				counsel of his choice or a representative of a certified or recognized employee
				organization. A reasonable time shall be provided to obtain such
				representation. The member may present medical experts and other witnesses or
				evidence and shall be given an opportunity to cross-examine division witnesses.
				Witnesses unable to appear in person may testify telephonically. The division
				shall have the burden of proving fitness for duty by substantial evidence.
				Compliance with technical rules of evidence shall not be required. Testimony at
				the hearing shall be recorded. A transcript will be prepared only upon a
				member's written request for the purpose of judicial review of the
				superintendent's decision.
(4) The
				hearing officer shall make a written report of his findings and
				recommendations, which shall be submitted to the superintendent for final
				review and decision.
(5) The
				superintendent or his designee shall render a final written determination as
				soon as practicable after receipt of the hearing officer's report and shall
				provide the member and his representative, if any, with a copy of the
				determination. The superintendent may either uphold the original order to
				report for duty, rescind the order, or modify it.