Bill Text: NY S08480 | 2023-2024 | General Assembly | Introduced
Bill Title: Authorizes the commissioner of corrections and community supervision to discipline certain employees for acts of serious misconduct; defines serious misconduct; establishes procedures for such disciplinary action; prohibits employees who have been removed for serious misconduct from being placed on the eligible list after such removal.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2024-02-05 - REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION [S08480 Detail]
Download: New_York-2023-S08480-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8480 IN SENATE February 5, 2024 ___________ Introduced by Sen. SALAZAR -- read twice and ordered printed, and when printed to be committed to the Committee on Crime Victims, Crime and Correction AN ACT to amend the correction law and the civil service law, in relation to discipline of certain persons for serious misconduct The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The correction law is amended by adding a new section 12 to 2 read as follows: 3 § 12. Discipline of certain serious misconduct. 1. Definition. For the 4 purposes of this section, the term "serious misconduct" shall mean: an 5 act of excessive use of force; an act of false reporting regarding one 6 or more acts of excessive use of force; an intentional failure to report 7 an act of excessive use of force; the introduction of a cellular device, 8 controlled substance, marihuana or other significantly incapacitating 9 substance to an institution of the department; or an inappropriate sexu- 10 al relationship or contact with an incarcerated person or person under 11 community supervision. 12 2. Acts of misconduct. Notwithstanding any other provision of law, 13 when an employee is alleged to have committed an act of serious miscon- 14 duct then the disciplinary process that may be applied to such employee 15 shall not be governed by any collective bargaining agreement or by 16 section seventy-five of the civil service law but shall be governed by 17 the provisions of this section. 18 3. Disciplinary action. A person holding a position as described in 19 paragraph (a), (b) or (c) of this subdivision shall not be removed from 20 their position or otherwise subjected to any disciplinary penalty 21 authorized pursuant to this section; provided, however, that such person 22 may be removed or otherwise subjected to a disciplinary penalty author- 23 ized pursuant to this section for serious misconduct after a hearing 24 upon stated charges pursuant to this section. This subdivision shall 25 apply to: 26 (a) a person holding a position by permanent appointment in the 27 competitive class of the classified civil service; or EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14330-02-4S. 8480 2 1 (b) a person holding a position by permanent appointment or employment 2 in the classified service of the state, who was honorably discharged or 3 released under honorable circumstances from the armed forces of the 4 United States, including (i) having a qualifying condition as defined in 5 section one of the veterans' services law, and receiving a discharge 6 other than bad conduct or dishonorable from such service, or (ii) being 7 a discharged LGBT veteran, as defined in section one of the veterans' 8 services law, and receiving a discharge other than bad conduct or 9 dishonorable from such service, having served therein as such member 10 in time of war as defined in section eighty-five of the civil service 11 law, or who is an exempt volunteer firefighter as defined in the general 12 municipal law, except when such person holds the position of private 13 secretary, cashier or deputy of any official or department; or 14 (c) an employee holding a position in the non-competitive class other 15 than a position designated in the rules of the state civil service 16 commission as confidential or requiring the performance of functions 17 influencing policy, who since his or her last entry into service has 18 completed at least five years of continuous service in the non-competi- 19 tive class in a position or positions not so designated in the rules as 20 confidential or requiring the performance of functions influencing poli- 21 cy. 22 4. Procedure. An employee holding a position as described in paragraph 23 (a), (b) or (c) of subdivision three of this section who at the time of 24 questioning appears to be a potential subject of disciplinary action for 25 an act or acts of serious misconduct shall have right to representation 26 by his or her certified or recognized employee organization under arti- 27 cle fourteen of the civil service law and shall be notified in advance, 28 in writing, of such right. An employee holding a position as described 29 in paragraph (a), (b) or (c) of subdivision three of this section who is 30 designated managerial or confidential under article fourteen of the 31 civil service law, shall have, at the time of questioning, where it 32 appears that such employee is a potential subject of disciplinary action 33 for an act of serious misconduct, a right to representation and shall be 34 notified in advance, in writing, of such right. If representation is 35 requested, a reasonable period of time shall be afforded to obtain such 36 representation. If the employee is unable to obtain representation with- 37 in a reasonable period of time, then the department may proceed with 38 questioning the employee. A hearing officer appointed for the purposes 39 of this section shall determine if a reasonable period of time was or 40 was not afforded. In the event the hearing officer finds that a reason- 41 able period of time was not afforded then any and all statements 42 obtained from such questioning, as well as any evidence or information 43 obtained as a result of such questioning shall be excluded. A person 44 against whom removal or other disciplinary action is proposed shall be 45 provided written notice and shall be furnished a copy of the charge or 46 charges proffered against him or her and shall be allowed at least eight 47 days for answering such charges in writing. The hearing upon such charg- 48 es shall be held by a hearing officer, selected by the commissioner or 49 his or her designee. The hearing officer shall be vested with all the 50 powers of the commissioner and shall make a record of such hearing, 51 which shall, along with his or her recommendation, be referred to the 52 commissioner for review and final determination. The hearing officer 53 shall, upon the request of the employee against whom charges are prof- 54 fered, permit such employee to be represented by counsel, or by a repre- 55 sentative of a recognized or certified employee organization, and shall 56 allow him or her to summon witnesses on his or her behalf. The burden ofS. 8480 3 1 proving serious misconduct shall be upon the department. Compliance with 2 technical rules of evidence shall not be required. 3 5. Suspension pending determination of charges; penalties. (a) Pending 4 the hearing and determination of charges of serious misconduct, the 5 employee against whom such charges have been proffered may be suspended 6 without pay. If the employee is found guilty of a charge or charges of 7 serious misconduct, the recommended penalty or punishment may consist of 8 any combination of the following: 9 (i) a letter of reprimand; 10 (ii) removal from work location and transfer; 11 (iii) a fine to be deducted from the salary or wages of such employee; 12 (iv) probation for a specified period, provided any further violation 13 can lead to termination; 14 (v) suspension without pay; 15 (vi) demotion in grade and title; or 16 (vii) dismissal from the service and loss of accumulated leave cred- 17 its. 18 (b) Provided, however, that the time during the pendency of the hear- 19 ing, in which an employee is suspended without pay, may be considered as 20 part of the penalty. The final determination of the commissioner on the 21 recommendation from the hearing officer shall be made within ten busi- 22 ness days of receipt of such recommendation. If the employee is acquit- 23 ted of all charges, he or she shall be restored to his or her position 24 with full pay for the period of suspension less the amount of any unem- 25 ployment insurance benefits that may have been received. If such employ- 26 ee is found guilty of one or more of the charges, a copy of the charges, 27 his or her written answer, a transcript of the hearing, and the final 28 determination of the commissioner shall be filed in the bureau of labor 29 relations and the employee's personnel file. A copy of the transcript of 30 the hearing shall, upon request of the affected employee, be furnished 31 to him or her without charge. 32 6. Appeal. When an employee believes he or she is aggrieved by a 33 penalty of fine, probation, suspension, demotion or dismissal from 34 service imposed pursuant to this section, he or she may make an applica- 35 tion to the appropriate court in accordance with the provisions of arti- 36 cle seventy-eight of the civil practice law and rules. 37 7. Termination. Notwithstanding any other provision of law, the 38 commissioner, in his or her discretion, may terminate the employment of 39 any employee who is convicted of a crime whenever the commissioner 40 determines that the continued employment of such person would not be in 41 the best interest of the department. Notwithstanding the foregoing, no 42 employee shall be terminated pursuant to this section unless he or she 43 shall first have been furnished with a written statement of the reasons 44 for such determination and afforded an opportunity by the commissioner, 45 or his or her designee, to make an explanation and to submit facts in 46 opposition thereto. 47 § 2. Paragraph (h) of subdivision 4 of section 50 of the civil service 48 law, as added by chapter 790 of the laws of 1958, is amended and a new 49 paragraph (i) is added to read as follows: 50 (h) who has been dismissed from private employments because of habitu- 51 ally poor performance[.]; or 52 (i) who has been disciplined for an act of serious misconduct as set 53 forth in subdivision one of section twelve of the correction law. 54 § 3. Subdivision 1 of section 61 of the civil service law, as added by 55 chapter 790 of the laws of 1958, is amended to read as follows:S. 8480 4 1 1. Appointment or promotion from eligible lists. Appointment or 2 promotion from an eligible list to a position in the competitive class 3 shall be made by the selection of one of the three persons certified by 4 the appropriate civil service commission as standing highest on such 5 eligible list who are willing to accept such appointment or promotion; 6 provided, however, that the state or a municipal commission may provide, 7 by rule, that where it is necessary to break ties among eligibles having 8 the same final examination ratings in order to determine their respec- 9 tive standings on the eligible list, appointment or promotion may be 10 made by the selection of any eligible whose final examination rating is 11 equal to or higher than the final examination rating of the third high- 12 est standing eligible willing to accept such appointment or promotion; 13 provided further, however, that an individual's name shall be suspended 14 from the eligible list pending the outcome of the review of the appli- 15 cant's qualifications pursuant to subdivision four of section fifty of 16 this article. Appointments and promotions shall be made from the eligi- 17 ble list most nearly appropriate for the position to be filled. 18 § 4. Subdivision 1 of section 112 of the correction law, as amended by 19 chapter 322 of the laws of 2021, is amended to read as follows: 20 1. The commissioner [of corrections and community supervision] shall 21 have the superintendence, management and control of the correctional 22 facilities in the department and of the incarcerated individuals 23 confined therein, and of all matters relating to the government, disci- 24 pline, policing, contracts and fiscal concerns thereof. He or she shall 25 have the power and it shall be his or her duty to inquire into all 26 matters connected with said correctional facilities. He or she shall 27 make such rules and regulations, not in conflict with the statutes of 28 this state, for the government of the officers and other employees of 29 the department assigned to said facilities, and in regard to the duties 30 to be performed by them, and for the government and discipline of each 31 correctional facility, as he or she may deem proper, and shall cause 32 such rules and regulations to be recorded by the superintendent of the 33 facility, and a copy thereof to be furnished to each employee assigned 34 to the facility. With due consideration for overall safety and securi- 35 ty, he or she shall also have the power to place reasonable limits or 36 restrictions on the items an employee may bring into a correctional 37 facility or community supervision office when reporting for duty, that 38 can pose a threat or be used as a weapon. He or she shall also prescribe 39 a system of accounts and records to be kept at each correctional facili- 40 ty, which system shall be uniform at all of said facilities, and he or 41 she shall also make rules and regulations for a record of photographs 42 and other means of identifying each incarcerated individual received 43 into said facilities. He or she shall appoint and remove, subject to the 44 civil service law, subordinate officers and other employees of the 45 department who are assigned to correctional facilities. 46 § 5. This act shall take effect on the thirtieth day after it shall 47 have become a law; provided, however, that section one of this act shall 48 take effect upon the expiration of the current collective bargaining 49 agreement that governs impacted employees of the department of 50 corrections and community supervision; provided further, however, that 51 the commissioner of corrections and community supervision shall notify 52 the legislative bill drafting commission upon the expiration of the 53 current collective bargaining agreement that governs impacted employees 54 of the department of corrections and community supervision in order that 55 the commission may maintain an accurate and timely effective data base 56 of the official text of the laws of the state of New York in furtheranceS. 8480 5 1 of effectuating the provisions of section 44 of the legislative law and 2 section 70-b of the public officers law; provided further, however, that 3 notwithstanding any other provision of law to the contrary, once these 4 provisions take effect they cannot be abrogated, amended, enhanced or 5 modified in any way by future collective bargaining.
