2006 New York Code - 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  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 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 last entry into service has
  completed  at  least  five  years   of   continuous   service   in   the
  non-competitive  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.
    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.