N.Y. Public Authorities Law § 3556: Merit system; merit board

§ 3556. Merit system; merit board. 1. Policy and applicable law. (a)

Positions in the employ of Roswell Park Cancer Institute corporation

shall be subject to section six of article five of the Constitution of

the state of New York.

(b) Except as provided by this title and rules issued pursuant

thereto, the corporation and its employees shall be subject to the

provisions of the civil service law as the same shall be amended from

time-to-time and employees of the corporation shall be deemed to have

the rights of state employees for the purposes of such provisions of the

civil service law.

2. Definitions. When used in this section:

(a) The term "classified service" means all positions in the

corporation which are not in the unclassified service.

(b) The term "merit board" means the committee established by

corporation's board of directors established by this title, which shall

act in the capacity and fulfill the role of the "commission", "civil

service commission" and "municipal civil service commission" for the

purposes of applying the civil service law to positions in the

corporation.

(c) The term "director of classification and compensation" or

"director" means the director of classification and compensation of the

Roswell Park Cancer Institute corporation.

(d) The term "jurisdictional classification" means the assignment of

positions in the classified service to the competitive, noncompetitive,

exempt or labor classes.

(e) The terms "position classification", "classification",

"reclassification", and "classify" mean grouping together under common

and descriptive titles positions that are substantially similar in the

essential character and scope of their duties and responsibilities and

required qualifications.

3. Roswell Park Cancer Institute merit board. (a) Three persons, other

than directors, officers, employees or the president of the corporation,

shall be selected by majority vote of the board for three-year terms and

shall constitute the Roswell Park Cancer Institute merit board. The

terms of the members of the merit board shall be staggered so that the

term of one member expires each year. The members of the merit board

shall annually elect one of the members chairperson.

(b) The members of the merit board shall receive their necessary

travel and other expenses incurred in the performance of the duties of

such office, and shall receive in addition such compensation for

services rendered as members of such merit board as shall be determined

by the board of directors of the corporation by vote of a majority of

the directors.

(c) The merit board shall prescribe and amend rules and regulations

subject to the applicable provisions of article fourteen of the civil

service law, for effecting the provisions of this title and of section

six of article five of the Constitution of the state of New York,

including but not limited to (i) rules for the jurisdictional

classification of offices and positions in the classified service of the

corporation; (ii) rules for examinations, appointments, promotions,

transfers, leaves of absence, resignations and reinstatements; (iii)

rules for sick leaves, vacations, time allowances and other conditions

of employment in the classified service of the corporation; (iv) rules

for the hearing and determination of appeals; and (v) rules designating

positions in the non-competitive class which are confidential or require

the performance of functions influencing policy.

(d) The merit board shall hear and determine appeals instituted by any

person believing himself or herself aggrieved by any action or

determination of the director of classification and compensation, acting

as such; provided, however, that no appeal shall be allowed (i) if the

action or determination involved relates solely to matters of internal

management of the office of the director of classification and

compensation, or (ii) if the action or determination involved was

considered and approved in advance by the merit board. Any appeal

authorized by this subdivision shall be instituted by filing with the

secretary of the merit board a written notice of appeal stating the

action or determination appealed from, the grounds for the appeal, and

signed by the person or persons appealing or their representative; no

particular form of appeal shall be required. Any such appeal shall be

filed within thirty days following the appellant's receipt from the

director of classification and compensation of notice of the action or

determination to be reviewed; the merit board for good cause shown may

waive such thirty-day limitation. The merit board may make such

investigation or inquiry into the facts relative to the action or

determination appealed from as may be deemed advisable, shall afford to

the appellant and his or her representative an opportunity to be heard

in person or in writing and to present evidence and argument. The merit

board may affirm, modify or reverse such action or determination. The

merit board shall decide each appeal filed within thirty days following

the date on which the submission of facts, information and evidence is

deemed complete by the merit board. The person seeking review and his or

her representative shall be furnished a copy of the merit board's

written decision concurrently with its filing with the secretary of the

merit board. A decision of the merit board shall become final and

binding when filed with the secretary of the merit board. Review of any

such final decision shall be by a proceeding authorized by article

seventy-eight of the civil practice law and rules; any such proceeding

must be commenced within four months after the determination to be

reviewed becomes final and binding.

(e) Before adopting any rule the merit board shall publish notice of

the proposed rule no later than thirty days prior to the proposed

effective date of such rule and shall afford an opportunity to any

interested person to comment on the proposed rule.

(i) Publication of notice of proposed rule-making shall be

accomplished by posting a copy on the main bulletin board of the

corporation, by serving a copy of the notice by certified mail return

receipt requested upon the designated representative of any employee

union recognized to represent employees of the corporation and by

mailing the copy of the notice to the temporary president of the senate

and the speaker of the assembly; publication shall be complete upon the

posting and mailing. Notice made pursuant to this subparagraph shall be

deemed to be in compliance with the notice requirements prescribed in

section one hundred one-a of the executive law.

(ii) A notice of proposed rule-making shall contain the complete text

of the proposed rule, and the last date upon which the merit board will

receive comment upon the proposed rule; provided, however, that if the

text of the proposed rule exceeds two thousand words the notice shall

contain only a description of the subject, purpose and substance of such

rule, and shall state from what person the complete text may be

obtained.

(iii) The last date for submission of comments upon a proposed rule

shall be not less than twenty days following the publication of notice

of proposed rule-making.

(iv) The merit board may receive comments on a proposed rule in

writing or, in an appropriate case, may conduct a hearing upon the

proposed rule.

(v) Any rule adopted by the merit board shall take effect when signed

by the chairperson of the merit board and filed with the secretary of

the corporation. Notice of adoption of a rule shall be published

concurrently with its adoption in the same manner as the notice of

proposed rule-making.

(vi) In the exercise of its rule-making authority the merit board

shall not be subject to the provisions of the state administrative

procedure act.

(f) The secretary of the corporation shall be the secretary to the

merit board and shall serve ex officio without vote. The secretary shall

maintain minutes of the meetings of the merit board and shall maintain

complete copies of the rules adopted by the merit board. Such minutes

and rules shall be open to public inspection and copying during all

ordinary business hours of the corporation in accordance with the

applicable provisions of article six of the public officers law.

(g) The merit board shall, subject to the provisions of article seven

of the public officers law, meet annually at the offices of the

corporation, and shall hold such other meetings at such places within

the state as may be required. A majority of the members of the merit

board shall constitute a quorum.

4. Director of classification and compensation. (a) The director of

classification and compensation of the corporation shall be in the

competitive class of the classified service appointed by the president

of the corporation. The director of classification and compensation

shall not be a part of the office of human resources of the corporation.

(b) The director of classification and compensation shall be charged

with the duty and shall have the power, subject to appeal to the merit

board:

(i) to classify and reclassify all positions in the classified service

of the corporation; and

(ii) to allocate and reallocate to an appropriate salary grade all

positions in the competitive, noncompetitive and labor classes of the

classified service of the corporation including temporary and seasonal

positions; provided that notwithstanding any inconsistent provisions of

section one hundred thirty of the civil service law, employees of the

corporation in the classified service of the corporation shall also be

deemed to be in the classified civil service of the state of New York

for purposes of section one hundred thirty of the civil service law.

(c) The principle of fair and equal pay for similar work shall be

followed in the classification and reclassification and the allocation

and reallocation of positions pursuant to this section and all positions

having the same title shall be allocated to the same salary grade.

(d) The director of classification and compensation shall also have

the following powers and duties:

(i) To ascertain and record the duties and responsibilities of all

positions in the classified service of the corporation, establish

adequate specifications showing the qualifications for and the nature

and extent and scope of the duties and responsibilities of such

positions, and assign uniform titles to positions that are so

substantially similar in the essential character and scope of their

duties and responsibilities and in the qualification requirements

thereof that the same descriptive title may be used to designate them;

that the same qualifications for appointment thereto may be reasonably

required; that the same tests of fitness may be established, and that

the same rate of compensation may be reasonably applied;

(ii) To investigate all matters affecting the classification and

compensation of positions, to hear and determine all complaints and

grievances with respect to the classification and compensation of

positions, and from time to time to review the duties, responsibilities,

qualification requirements and compensation of positions and to make

such revisions in the classification or compensation of positions as

changes in the service of the corporation may require;

(iii) To afford to any person aggrieved by the classification or

allocation of a position a reasonable opportunity to present facts in

support of or in relation to such classification or allocation, at a

time and in such manner as may be specified by the director, and to

render and furnish to the person aggrieved a written decision thereon.

(e) Any classification or reclassification of a position and any

allocation or reallocation of a position to a salary grade made by the

director pursuant to this section shall become effective on the date

approved by the president of the corporation.

5. Authority to use services of New York state department of civil

service. The merit board or the director may request of the New York

state department of civil service technical advice and assistance in the

administration of the provisions of this title for consideration,

including but not limited to the preparation and administration of

examinations, and in the absence of an eligible list of the corporation,

may request the New York state department of civil service to furnish it

with the names of persons on an appropriate eligible list. The merit

board or the director shall provide such department with any information

necessary to effectuate the provisions of this section.

6. Classes of position established. The classified service of the

corporation shall comprise all offices and positions not included in the

unclassified service. The offices and positions in the classified

service of the corporation shall be divided into four classes designated

as the exempt class, the non-competitive class, the competitive class,

and the labor class.

(a) The exempt class shall consist of such positions and offices which

the merit board shall determine to be impracticable to fill by

competitive or non-competitive examination.

(b) The non-competitive class shall include all positions that are not

in the exempt class or labor class and for which it is found by the

merit board to be not practicable to ascertain the merit and fitness of

applicants by competitive examination.

(c) The labor class shall comprise all unskilled laborers in the

service of the corporation.

(d) The competitive class shall include all positions for which it is

found by the merit board to be practicable to determine the merit and

fitness of applicants by competitive examination, and shall include all

positions in the classified service of the corporation except such

positions as are in the exempt class, the non-competitive class or the

labor class.

7. Examinations. (a) The merit and fitness of applicants for positions

which are classified in the competitive class shall be ascertained by

such examinations as may be prescribed by the merit board. The merit

board shall issue an announcement of each competitive examination or

promotional examination, setting forth the minimum qualifications

required, the subjects of the examination, and such other information as

they may deem necessary, and shall advertise such examination in such

manner as the nature of the examination may require.

(b) The merit board, acting by the director, shall require prospective

applicants to file during a prescribed time a formal application in

which the applicant shall state such information as may reasonably be

required, touching upon the applicant's background, experience and

qualifications for the position sought and his or her merit and fitness

for service. The application shall be subscribed by the applicant and

shall contain an affirmation by the applicant that the statements

therein are true under the penalties of perjury. Application forms shall

be furnished without charge to all persons requesting them.

8. Abolition of positions; demotion. (a) Where, because of economy,

consolidation or abolition of functions, curtailment of activities or

otherwise, positions in the competitive class of service of the

corporation are abolished or reduced in rank or salary grade, suspension

or demotion as the case may be among incumbents holding the same or

similar positions within the same jurisdictional classification shall be

made in the inverse order of original appointment on a permanent basis

in the grade or title; provided, however, that upon the abolition or

reduction of positions in the competitive class of service of the

corporation incumbents holding the same or similar positions within the

same jurisdictional classification who have not completed their

probationary service shall be suspended or demoted as the case may be

before any permanent incumbents, and among such probationary employees

the order of suspension or demotion shall be determined as if such

employees were permanent incumbents.

(b) Where, because of economy, consolidation or abolition of

functions, curtailment of activities or otherwise, positions in the

non-competitive class of service of the corporation are abolished or

reduced in rank or salary grade, suspension or demotion as the case may

be among incumbents holding the same or similar positions within the

same jurisdictional classification shall be made in the inverse order of

original appointment on a permanent basis in the grade or title;

provided, however, that upon the abolition or reduction of positions in

the non-competitive class of service of the corporation incumbents

holding the same or similar positions within the same jurisdictional

classification who have not completed their probationary service shall

be suspended or demoted as the case may be before any permanent

incumbents, and among such probationary employees the order of

suspension or demotion shall be determined as if such employees were

permanent incumbents.

(c) Upon the abolition or reduction of positions in the service of the

corporation, suspension or demotion shall be made from among employees

holding the same or similar positions within the same jurisdictional

classification in the entirety of the corporation.

(d) In any case where an employee of the corporation is suspended or

demoted because of economy, consolidation or abolition of functions,

curtailment of activities or otherwise, the director of classification

and compensation shall, upon such suspension or demotion, furnish to the

merit board a statement showing the employee's name, title or position,

date of appointment and the date of and reason for suspension or

demotion. The merit board shall place the name of such employee upon a

preferred list together with others who may have been suspended or

demoted from the same or similar positions in the same jurisdictional

class in the service of the corporation, and shall certify such list for

filling vacancies in the same jurisdictional class, first, in the same

or similar position, second, in any position in a lower grade in line of

promotion, and third, in any comparable position.

(e) For purposes of the civil service law, the date of original

appointment of employees of the corporation shall be the date of

original appointment on a permanent basis in the classified service of

the corporation; except that for those employees who transfer from state

service to the service of the corporation pursuant to section

thirty-five hundred fifty-seven of this title, the date of original

appointment shall be the date of original appointment on a permanent

basis in the civil service of the state of New York.

9. Notwithstanding any inconsistent provision of section eighty-one of

the civil service law, employees of the state who transfer to the

corporation pursuant to subdivision one of section thirty-five hundred

fifty-seven of this title shall be considered to be state employees

under the jurisdiction of the state civil service commission for

purposes of placement on and employment from preferred lists established

by the state civil service commission.

10. Notwithstanding any inconsistent provisions of sections

eighty-one-a and eighty-one-b of the civil service law, employees of the

state who transfer to the corporation pursuant to subdivision one of

section thirty-five hundred fifty-seven of this title shall be

considered to be state employees for purposes of placement upon and

employment from reemployment rosters pursuant to section eighty-one-a of

the civil service law and for purposes of placement upon and employment

from placement rosters pursuant to section eighty-one-b of the civil

service law.

11. Reemployment rosters within the corporation. (a) Where an employee

is to be suspended or demoted in accordance with subdivision eight of

this section, the president of the corporation shall, upon such

employee's suspension or demotion place the name of such employee upon a

reemployment roster for filling vacancies in any comparable position as

determined by the director of classification and compensation, except

that employees suspended or demoted from positions in the

non-competitive and labor classes may not be certified to fill vacancies

in the competitive class. Such reemployment roster shall be certified

for filling a vacancy in any such position before certification is made

from any other list, including a promotion eligible list, but not prior

to a preferred list. Eligibility for reinstatement of a person whose

name appears on any such reemployment roster shall not continue for a

period longer than four years from the date of suspension or demotion

provided, however, in no event shall eligibility for reinstatement from

a reemployment roster continue once the person is no longer eligible for

reinstatement from a preferred list.

(b) The names of persons on a reemployment roster shall be certified

therefrom with equal ranking for reinstatement.

(c) All reinstatements from a reemployment roster shall require

completion of a probationary term in accordance with rules promulgated

by the merit board pursuant to subdivision two of section sixty-three of

the civil service law.

(d) The merit board shall adopt rules providing for the relinquishment

of eligibility for reinstatement upon reinstatement or upon failure or

refusal to accept reinstatement from a preferred list or a reemployment

roster.

(e) Notwithstanding any other provision of this title, the corporation

may disqualify for reinstatement and remove from a reemployment roster

the name of any otherwise eligible person who, by reason of physical or

mental incapacity, is found to be unable to satisfactorily perform the

duties of the position for which such roster has been established, or

who has engaged in such misconduct as would warrant their dismissal from

public employment, except that a person who is not completely physically

incapacitated and who is suspended or demoted pursuant to section eighty

of the civil service law because their position has been abolished or

reduced, but who is certified for reinstatement to any position having

the same physical requirements as the position from which such person

was suspended or demoted, shall not be disqualified because of their

incapacity, unless upon medical examination their incapacity has

worsened to a degree that they would not be able to satisfactorily

perform in such position. No person shall be disqualified pursuant to

this subdivision unless they are first given a written statement of the

reasons therefor and an opportunity to be heard at a hearing at which

satisfactory proof of such reasons must be established by appropriate

evidence, and at which such person may present independent evidence and

be entitled to representation by counsel. The corporation shall

designate a person to hold such hearing and report thereon.

(f) Notwithstanding any other provision of this title, any person may

voluntarily remove his or her name from a reemployment roster by

application to the corporation.

12. Placement rosters within the corporation. (a) Where an employee is

to be suspended or demoted in accordance with subdivision eight of this

section, the president of the corporation shall, upon such employee's

suspension or demotion place the name of such employee upon a

reemployment roster for filling vacancies in any comparable position as

determined by the director of classification and compensation except

that employees suspended or demoted from position in the non-competitive

and labor classes may not be certified to fill vacancies in the

competitive class. Such placement roster shall be certified for filling

a vacancy in any such position before certification is made from any

other list, including a promotion eligible list, but not prior to a

preferred list or a reemployment roster. Eligibility for appointment of

an employee whose name appears on any such placement roster shall

terminate at such time as the employee is suspended or demoted in

accordance with the provisions of subdivision eight of this section.

Upon such employee's suspension or demotion, the corporation shall place

the name of such employee upon a preferred list, and a reemployment

roster as appropriate, in accordance with the provisions of subdivision

eight of this section.

(b) The names of employees on a placement roster shall be certified

therefrom with equal ranking for appointment.

(c) All appointments from a placement roster shall require completion

of a probationary term in accordance with rules promulgated by the civil

service commission pursuant to subdivision two of section sixty-three of

the civil service law.

(d) The merit board shall adopt rules providing for the relinquishment

of eligibility for appointment upon appointment or upon failure or

refusal to accept appointment from a placement roster.

(e) Notwithstanding any other provision of this title, any employee

may voluntarily remove his or her name from a placement roster by

application to the corporation.

13. Establishment of redeployment lists in the corporation; general

provisions. (a) Notwithstanding any inconsistent provision of section

seventy-nine of the civil service law, where, and to the extent that an

agreement between the state and an employee organization entered into

pursuant to article fourteen of the civil service law so provides,

employees of the corporation shall be considered to be employees in

state service for purposes of primary and secondary redeployment

pursuant to section seventy-nine of the civil service law and the

applicable collective bargaining agreement.

(b) Where, an employee in the corporation is to be suspended or

demoted in accordance with the provisions of subdivision eight of this

section by reason of the corporation's exercise of its right to contract

out for goods and services, and receipt of the information required

pursuant to subdivision eleven of this section for purposes of

establishing reemployment rosters, at least ninety days prior to the

suspension or demotion of an affected employee, the corporation shall

place the name of the employee upon a redeployment list. Such

redeployment list shall be certified for filling positions in the same

title or in any comparable title, as determined by the director of

classification and compensation, before certification is made from any

other eligible list, placement roster, reemployment roster or preferred

list.

(c) The names of persons on a redeployment list shall be certified

therefrom for appointment in the order of their original appointments,

in accordance with the provisions of paragraph (e) of subdivision eight

of this section.

(d) A person appointed from a redeployment list shall receive at least

the same salary such person was receiving in the position from which he

or she is to be or has been suspended or demoted.

(e) Probationers who are appointed from a redeployment list to a

position in the same title will be required to complete their

probationary term. Employees who are appointed from a redeployment list

to a position in a comparable title shall be required to complete a

probationary term in accordance with the rules promulgated by the merit

board pursuant to subdivision two of section sixty-three of the civil

service law.

(f) Eligibility for appointment of an employee whose name appears on a

redeployment list shall terminate at such time as the employee is

redeployed pursuant to the provisions of this section to a position in

the same salary grade as the position from which they have been

suspended or demoted, or has exercised their reemployment rights

pursuant to the provisions of section eighty-one or eighty-one-a of the

civil service law, provided, however, that eligibility for appointment

shall terminate no later than six months following the suspension or

demotion of such employee in accordance with the provisions of section

eighty of the civil service law. Upon such employee's suspension or

demotion, the corporation shall place the name of such employee upon a

preferred list, and a reemployment roster, as appropriate, in accordance

with the provisions of subdivision eight of this section.

(g) Notwithstanding any other provision of this chapter, any employee

may voluntarily remove his or her name from a redeployment list by

application to the corporation.

(h) (1) In the event the corporation determines, in accordance with

the provisions of paragraph (b) of this subdivision, that there are no

positions in the same title or any comparable title to which an employee

to be suspended or demoted by reason of the state's exercise of its

right to contract out for goods and services can be redeployed, the

corporation may place the name of such employee on a special

reemployment roster, for filling positions in titles for which the

employee meets the essential tests and qualifications. Such special

reemployment roster may be certified immediately upon the employee's

placement on the roster for filling a position before certification is

made from any other eligible list, including a promotion eligible list,

but not prior to a redeployment list or preferred list.

(2) Eligibility for appointment of an employee whose name appears on a

special reemployment roster shall not continue for a period longer than

four years from the date of suspension or demotion, provided, however,

that eligibility for appointment of an employee whose name appears on

any such special reemployment roster shall terminate at such time as the

employee is redeployed pursuant to the provisions of this section and,

in no event, shall eligibility for appointment from a special

reemployment roster continue once the employee is no longer eligible for

reinstatement from a preferred list.

(3) Employees placed on a special reemployment roster in accordance

with the provisions of this section, shall have all the rights and

privileges provided employees placed on reemployment rosters in

accordance with subdivision eleven of this section.

(i) The merit board shall adopt rules for carrying into effect the

provisions of this section, including rules providing for the

relinquishment of eligibility for appointment upon appointment or upon

failure or refusal to accept appointment from a redeployment list.

Additionally, notwithstanding any inconsistent provision of law, rule,

or regulation, an agreement between the corporation and an employee

organization recognized or certified pursuant to article fourteen of the

civil service law can provide employment security rights and benefits

where the state has exercised its right to contract out for goods and

services. The merit board upon receipt of a written request of the

director of the corporation is authorized to implement provisions of

such agreement consistent with the terms thereof and, to the extent

necessary, may adopt rules and regulations providing for the benefits to

be thereunder provided. The merit board, with the approval of the

president of the corporation, may extend such benefits in whole or in

part, to corporation employees excluded from collective negotiating

units.