N.Y. Civil Service Law § 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.