Disciplinary Proceedings

Those Subject to Provisions
CSL § 75
76.4
The disciplinary procedures described below are those set forth in statute. The contracts negotiated between State employee unions and the Governor's Office of Employee Relations have substituted "Contract Disciplinary Procedures" for these provisions. Thus, the following information applies mainly to Managerial/ Confidential employees and persons not in a negotiating unit or subject to the Taylor Law.
CSL § 75.1 Employees who are subject to the provisions of Section 75 may not be removed or otherwise subjected to disciplinary penalty except for incompetency or misconduct established after a hearing on stated charges.
CSL § 75.1(b)(c)
CSR § 4.5
4.5(b)(5)(i)
4.5(b)(5)(ii)
The provisions of the Civil Service Law dealing with removal for incompetency or misconduct apply to permanent competitive class employees, and, except as noted below, honorably discharged war veterans and exempt volunteer firefighters holding a position by permanent appointment in the classified service. State and local employees holding non-competitive class position by permanent appointment for at least five years are likewise covered. In addition, a probationer who has not completed eight weeks of service is entitled to notice and hearing pursuant to Section 75 if he/she is to be removed from the position for misconduct or incompetence before the end of the minimum probationary period. However, such individuals may be terminated without recourse to Section 75 after eight weeks and up to the end of the maximum period of their probationary term.
CSL § 75.1
75.1(c)
A war veteran and an exempt volunteer firefighter serving in the exempt, non-competitive or labor class, is not covered by Section 75 if he/she holds the position of private secretary, cashier or deputy of any official or department, or is an independent officer. In addition, if the Civil Service Commission designates a non-competitive class position as confidential or policy influencing, the incumbent is not protected by the provisions of Section 75.
CSL § 75-b Under certain circumstances, public employees are protected against retaliatory disciplinary action resulting from their disclosure of information that relates to what the employee reasonably believes to be a violation of law, rule or regulation.
Investigations
POL § 61 Frequently, charges are preceded by an investigation by the appointing authority. It is well established that an appointing officer has the right to question an employee with respect to matters involving or affecting job performance and that an employee is obligated to answer such questions. Refusal to answer constitutes insub- ordination. The appointing officer may question the employee under oath, and have the questions and answers recorded. Any employee, including managerial/ confidential, who appears to be a potential subject of disciplinary action, has, at the time of questioning, a right to representation and shall be notified in advance, in writing, of this right.
Charges
CSL § 75.2
75.4
Charges of misconduct or incompetency, under Section 75, must be brought within 18 months of the act or omission unless the charge would constitute a crime if proved in a court of competent jurisdiction. For managerial/confidential employees or those employees covered by a collective bargaining agreement, the period is reduced to one year. The charges must be in writing and sufficiently specific to apprise the employee of what he/she is being charged with to enable him/her to defend him/herself. The charges may be served on the employee personally or by mail. The individual is then entitled to at least eight days in which to answer the charges in writing.
Hearings
CSL §75.2 The hearing must be conducted by the officer or body having the power to remove the person or by a deputy or other person designated, in writing, by that officer or body. The burden of proving the charges rests on the official or supervisor making the charges.

The employee is entitled to be represented by counsel or a union official, to summon witnesses to testify on his/her behalf at the hearing, and to confront and cross-examine those testifying against him/her.
CSL § 75.3 Case law requires that the hearing be open to the public; however, it may be closed if the employee so requests. A transcript of the hearing is required, and the determination of the appointing officer must be in writing and supported by substantial evidence in the record.
If found guilty of some or all of the charge(s), an employee's entire work history may be considered in setting the penalty to be imposed.
Suspension/Dismissal
  If the employee is suspended pending the hearing and determination of charges and is subsequently found not guilty, he/she is entitled to reinstatement with back pay, less any unemployment benefits. If found guilty, he/she may be:
- dismissed or demoted,
- suspended without pay for a period not exceeding two months,
- fined an amount not exceeding $100 to be deducted from his/her salary, or
- reprimanded.
The statute permits the appointing officer to suspend an employee without pay for up to 30 days pending a hearing and determination of disciplinary charges. Such a suspension is procedural only and not a penalty. Thus, if an employee is found guilty and receives a reprimand, he/she is not entitled to back pay for the period of suspension. However, the statute permits an appointing officer, in his/her discretion, to consider the suspension as part of the penalty. The appointing authority should be prepared to defend at the hearing a determination to impose a suspension without pay. Prior to initiating a suspension without pay, an employee must be provided with a notice of the charge lodged or to be lodged, an explanation of the evidence and an opportunity to present reasons not to impose the suspension.
An employee is entitled, upon request, to be furnished a copy of the transcript of the hearing without charge. Also, when an employee is found guilty, a copy of the charges, the written answer, the transcript of the hearing and the determination must be placed on file in the office of the department or agency in which he/she has been employed. Copies must be filed with the State Civil Service Commission.
Appeals
§ 76.1 An employee who is dismissed, demoted, suspended without pay, fined or reprimanded, without a remittance of his/her pre-hearing suspension without pay, may appeal either to the State Civil Service Commission or to the courts. If he/she elects to appeal to the Commission, the appeal must be filed in writing within 20 days after receipt of the written notice of the determination.
CSL § 76.2 The Commission reviews the record of the disciplinary proceeding and the transcript of the hearing, and makes a determination on the basis of such record and transcript and such oral or written argument as it may deem necessary. No new evidence may be presented before the State Civil Service Commission or its designated representative. The record is reviewed to determine whether the decision of the appointing officer is based on substantial evidence, whether procedural rights and safeguards have been observed, and whether the penalty imposed is reasonable in light of all the circumstances.
CSL § 76.3 The Commission may affirm, reverse or modify the determination appealed. It may, in its discretion, direct the reinstatement of the employee or permit transfer to a vacancy in a similar position in another division or department, or direct that the employee's name be placed on a preferred list. In appropriate circumstances the Commission may arrange a transfer of the employee, in order to avoid the difficult and unproductive work situation that might ensue were he/she returned to his/her former job. The employee is entitled to back pay for the period of his/her removal less unemployment insurance benefits. No adjustment is made for other earnings during that time.
CSL § 50.4
66.4(d)
If a person is disqualified after having received appointment, the appointment is, in effect, declared void and the person is not entitled to the protection of Section 75. However, such people do have certain due process rights pursuant to Section 50.4.
POL § 30.1(e)
CSL § 75
In addition, a public officer who is convicted of a felony or a crime involving a violation of his/her oath of office, vacates his/her position without recourse to Section 75.

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