Disciplinary Proceedings

CSL §

75
76.4
Those Subject to Provisions
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 §
CSR §
75.1(b)(c)
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. 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.
 

POL §

61
Investigations
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 insubordination. 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.
 

CSL§

75.2
75.4
Charges
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.
 

CSL §

75.2

Hearings
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 who is found guilty 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.
 


CSL §

76.1
Appeals
An employee who is dismissed, demoted, suspended without pay, fined or reprimanded, unaccompanied by a remittance of his/her prehearing 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 §
CSL §
30.1(e)
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.
 
Leave for Disability

CSL §
CSR §

71
5.9
Length of Leave
Any employee who is disabled due to an injury that is compensable under the Workers' Compensation Law is entitled to a cumulative leave of absence, while actually disabled, for a period of one year or, if disabled due to an assault on the job for a period of two years, unless the employee is found to be permanently disabled from performing the duties of the job. The employee may be separated upon expiration of the leave, or upon a finding of permanent inability to perform the job duties. However, the employee has a right to a hearing to challenge a refusal to permit return to duty, or a proposed discharge upon exhaustion of leave or finding of permanent disability. After separation, the employee may apply within one year of recovery, for reinstatement to his/her former job, or a similar job for which he/she is qualified. If he/she is found fit to perform the duties of his/her former position, but no appropriate vacancy shall exist, or if the workload does not warrant filling such vacancy, his/her name shall be placed upon a preferred list.
 

CSL §

72.1
72.5
Medical Examinations
An appointing officer may have reasonable grounds to believe that an employee is unable to perform the duties of his/her position due to a physical or mental disability resulting from circumstances other than occupational injury or disease. If so, the appointing officer may require a medical examination of the employee, after giving the employee written notice of the facts that led to this conclusion. Upon examination, if the medical officer certifies that the employee is not physically or mentally fit to perform the job duties, the appointing authority will notify the employee in writing. The employee has the right to request a hearing to appeal the determination. Except where the employee's continued presence on the job presents a potential danger or would severely interfere with operations--in which case the employee may be placed on leave immediately--an employee is kept on the job until a final determination is made after a hearing or the end of the appeal process, whichever is later. The employee who refuses to submit to an examination is considered insubordinate, and this can be the basis for disciplinary action.
 

CSL §

73
Termination/Reinstatement
An employee placed on leave pursuant to CSL Section 72 or who is voluntarily on leave by reason of a non-occupational injury or disease, may be terminated after a continuous absence of one year. An employee may, within one year of the termination of the disability, apply for reinstatement. If the person is found mentally and physically able to return to work, but an appropriate position is not available, the individual will be placed on a preferred list.
 
Veterans' Rights

CSL §

85.2
Additional Credits for Examination
The State Constitution requires that examinations for appointment or promotion in State service be competitive, so far as practicable. At the same time, it contains a significant exception to the strict rule of competition by giving additional credits in competitive examinations to war veterans. Disabled veterans receive 10 points additional credit on their examination scores in open-competitive examinations and five points in promotion examinations. Non-disabled veterans are granted five points in open-competitive examinations and two and one-half points in promotion examinations. In every case, however, the veteran must attain a passing mark on an examination before additional credits may be added to his/her score. The additional credits may not be applied to raise a failing grade to a passing one.
 

CSL §

85.1

Eligibility
Veterans eligible for the credits are those who:

  • were members of the Armed Forces of the United States;
  • served on active duty for other than training purposes in time of war;
  • were discharged honorably, released under honorable circumstances, or will be honorably discharged or released under honorable circumstances at the time of appointment; and
  • are residents of New York State at the time of application for appointment, promotion or retention, as the case may be.

A veteran who is disabled is defined as someone who meets the above service criteria and is certified by the United States Department of Veterans Affairs [formerly known as the Veterans Administration] as having a disability rated at ten percent of more which was incurred while serving in the United States Armed Forces in time of war. The disability must be in existence and the disabled veteran must be receiving payment from the Department of Veterans Affairs for such disability at the time of application for appointment or retention.

 

CSL §
38CFR §

85.1(c)
3.6(c)(2)(iii)
Time of War
Time of war means: for World War I, from April 6, 1917 to November 11, 1918; for World War II, from December 7, 1941 to December 31, 1946; for the Korean Conflict, from June 27, 1950 to January 31, 1955; for the Vietnam Conflict, from December 22, 1961 to May 7, 1975; and for hostilities in the Persian Gulf, from August 2, 1990 to the end of such hostilities. In addition, those who were awarded the armed forces, navy or marine corps expeditionary medal during the following periods will qualify: for hostilities in Lebanon, from June 1, 1983 to December 1, 1987; for hostilities in Grenada, from October 23, 1983 to November 21, 1983; and for hostilities in Panama, from December 20, 1989 to January 31, 1990. In addition, men and women qualify for veterans' credits if they were a member of the United States Public Health Service from July 29, 1945 to December 31, 1946, from June 27, 1950 to July 3, 1952, or if disabled while serving as a Merchant Seaman or while on transport service duty, between December 7, 1941 and August 15, 1945.

Further, a person qualifies for veterans' credits provided he/she became disabled while serving overseas as a United States civilian employed by the American Field Service under United States Armies and United States Army Groups during armed conflict from December 7, 1941 to May 8, 1945, and was honorably discharged or released. A person also qualifies for veterans' credits provided he/she became disabled while serving overseas as a United States Civilian Flight Crew and Aviation Ground Support Employee of Pan American World Airways or one of its subsidiaries or its affiliates as a result of Pan American's contract with Air Transport Command or Naval Air Transport Service during armed conflict from December 14, 1941 to August 14, 1945, and was honorably discharged or released.
 

CSL §

85.3
Use of Credits
It should be noted that additional credits are applied to a qualifying candidate's score only at the time the eligible list is established. An individual must apply for and prove eligibility for such credit before the eligible list is established, otherwise, it will be too late for him/her to receive credits on that list. By law a list cannot be established until two months after the last day allowed for filing applications for an examination. This assures veterans at least two months in which to apply and demonstrate eligibility for credits.
CSL § 85.4

A veteran may receive additional credits in any or all examinations in which he/she is a successful candidate, up to the time that the additional credits are actually used to obtain an appointment or promotion. That is, these credits are added to passing scores on any number of eligible lists; however, a veteran is only entitled to obtain one appointment resulting from these additional credits.

Credits are deemed to be used when a veteran receives a permanent appointment or promotion in the service of the State or a civil division from an eligible list on which he/she was allowed (and had not waived) additional credits, either as a disabled or a non-disabled veteran. The additional credits are not deemed to be used if:

  • the relative rank of the appointee on the eligible list or on the certification thereof from which the appointment or promotion is made has not been affected by the additional credits, or
  • the appointee resigns or is terminated at or before the end of his/her probationary term and thus does not acquire permanent status.
CSL § 85.5 A veteran may elect to waive or relinquish additional credits on any examination at any time before appointment or promotion, and accept the lower rank on the eligible list to which he/she is otherwise entitled. If the veteran does this, his/her credits cannot be restored on that list.
 

CSL §

85.7
Preference In Retention
Another important benefit granted to disabled and non-disabled veterans is the right of preference in retention in the event of a reduction in force in the competitive class. This preference has already been noted in the discussion on layoffs. The qualifications for eligibility for additional examination credits also apply to eligibility for preference in retention.
 

CSL §

86
War Veterans and Exempt Volunteer Firefighters
The Civil Service Law also contains provisions favoring war veterans and exempt volunteer firefighters who are laid off upon the abolition of positions in the non-competitive or labor jurisdictional class. The law provides that if the non-competitive or labor class position of a veteran or exempt volunteer firefighter is abolished, he/she shall be entitled to transfer to any similar position where a vacancy exists and receive the same compensation. He/she does not have a right to bump a non-veteran, nor does the law mean that a veteran or exempt volunteer firefighter must be given a vacant position even if there are no duties to perform in the position. In other words, it does not mandate the filling of a position that would otherwise stay vacant because of lack of work. However, it does give the laid off war veteran or exempt volunteer firefighter the right of preference to employment in similar positions over others who might otherwise be appointed to such positions. It is incumbent upon the veteran to seek and find such positions.
 
Military Service and Leaves of Absence
The rights and privileges of public employees who enter military service are provided for in the Military Law, principally in Sections 242 and 243. The former section deals with members of reserve forces who perform ordered military duty in the service of New York State or the United States. The latter deals with the rights of those inducted into, or whose National Guard units are activated into, the regular military forces of the United States.
38USC§ 4302 Additional rights are guaranteed by federal law. In addition, federal law provides that veterans shall be accorded the protections of federal or state law, whichever is more generous.
ML § 242.1
242.2
242.3
A civil service employee who is a member of the organized militia or any or the reserve forces of the Armed Forces of the United States shall be deemed to be on leave of absence while performing ordered military duty. Ordered military duty is defined as any duty performed pursuant to orders issued without the employee's consent; or even though such orders are issued with the consent of the employee, for periods not exceeding a total of 30 calendar days or 22 working days in one calendar year, or any continuour period of absense.
ML § 242.3
242.3-a
A civil service employee who is a member of a reserve component shall be deemed to be on leave of absence while attending any service school conducted by the Armed Forces, or while in full-time training or active duty for training, even though such orders are issued with the consent of the employee.
ML § 242.4 An employee's absence while performing ordered military leave shall not constitute an interruption of continuous employment nor shall there be any loss of vacation or holiday privilege.
ML § 242.5 A reservist shall be paid his/her salary for all periods of absence while performing military duty, not exceeding a total of 30 calendar days or 22 work days, whichever is greater, during any one calendar year of any continuous period of ordered military service. This period may be extended by rule in times of emergency.
ML §
38USC§
243.1
4302
An employee who enlists in the Armed Forces is entitled to a maximum four-year leave of absence, except during a period of war or national emergency declared by the President; or for one additional year, if service is extended for the convenience of the government.
ML § 243.1(c) In order to be eligible for reinstatement following military duty or for any of the rights and benefits granted to returning veterans under the Military Law, a veteran must be honorably discharged or released under honorable circumstances.
ML § 243.2 Military Law provides that any employee who enlists or is drafted into military duty shall be deemed to be on leave of absence and is entitled to reinstatement to his/her position if application is made up to 90 days after the termination of military duty as defined in such section. Even if reinstatement is not requested within the 90 day period, the employee remains eligible for reinstatement at the discretion of the appointing officer at any time within one year after the termination of military duty.
ML § 243.5 An employee on military leave may "not be subjected directly or indirectly to any loss of time, service, increment or any other right or privilege, or be prejudiced in any way with reference to promotion, transfer, reinstatement or continuance in office." Thus, upon reinstatement following termination of military duty, an employee is entitled to receive the same salary he/she would otherwise be receiving had he/she remained in his/her position, and full credit, for promotional purposes, for the period of absence.
 

ML §
ML §

243-c
243-b
Entitlement to Examinations
The Military Law provides certain rights pertaining to civil service examinations. A person serving on active duty in the armed forces of the United States during the filing period for a civil service examination, or a person who has been honorably discharged after an examination filing period shall be permitted to file an application for such examination no later than 10 business days prior to the scheduled examination date or the last date to file for such examination, whichever is later. If qualified, such person shall be allowed to compete in such examination. Further, any member of the Armed Forces of the United States who duly filed an application for a civil service examination but was deprived of an opportunity to compete because of active military duty shall be afforded a military make-up examination.
ML § 243.5 If a public employee is on regular military duty and a promotion examination is held for which the employee is entitled to take, the employee may take a comparable examination if a request is made within 60 days after restoration to his/her position. If the employee passes the comparable examination, his/her name is placed on the regular eligible list, provided it still exists. If the final rating is such that the employee would have been reached for certification for appointment between the date when he/she entered military duty and the date that he/she was officially notified of his/her rating, his/her name is placed on a special eligible list. The special list remains in existence for two years and is certified before any subsequent list, including a preferred list. If the employee is promoted from the special eligible list, he/she is entitled to retroactive seniority, for purposes of computing seniority, training and experience credit upon promotion to the earliest date on which any eligible who was ranked lower on the regular promotion list was promoted. The employee is not, however, entitled to have seniority backdated for salary purposes.
 

ML §

243.6
243.7

Appointment While on Military Duty
Military Law also provides that if a person's name is on an open-competitive or promotion eligible list when he/she enlists or is drafted into military duty, that person may, at the discretion of the appointing officer, be appointed from such list and then placed on military leave of absence until he/she returns from military duty. In such case, he/she earns seniority and salary credit from the date of appointment. A person on an eligible list who is not so appointed while on regular military duty may have his/her name placed on a special eligible list following return, provided the person has been reached for certification during military duty and the original eligible list is still in existance..

Such a special list will continue for a period of two years following termination of military duty and is certified before any subsequent eligible lists, including a preferred list. If an eligible is appointed from such a special list, he/she is entitled to retroactive seniority for the purposes of computing seniority, training and experience credit upon promotion, and seniority in the event of layoff, to the earliest date upon which any eligible who was lower on the original list was appointed.
 


ML §

243.9
Credit Toward Probationary Requirements
If a person enters military duty other than reserve or National Guard service while serving a probationary period, the time absent on military duty shall be credited as satisfactory probationary service. This does not, however, overcome unsatisfactory probationary service rendered before entering military duty nor may it guarantee the employee successful completion of the probationary term.
 

ML §

243.10-a
Age Requirements
Military Law also provides that if maximum age requirements are established for any position, the period of military duty served by a candidate shall not be included in computing age, up to a maximum of six years.
 

ML §

246
Leave for Education
Military Law provides an educational leave of absence for any employee who served during hostilities in World War II through the Viet Nam era and is eligible to receive educational benefits provided by the federal government on account of such service. Such employee shall be entitled to a leave of absence not exceeding four years while pursuing courses of studies under such federal benefits.
 
Political Activity

CSL §
CSR §

107
6.2
Rules of Conduct
Unlike federal employees, most people in the service of the State of New York are not prohibited from taking part in or contributing to partisan political campaigns in their off-duty hours. At the same time, they are protected by the Civil Service Law from having political influence imposed upon them in their jobs. This law provides that no employee shall be questioned concerning his/her political affiliations or compelled to contribute to any political fund, that no person shall be appointed or discharged on the basis of political opinions or affiliations and that no person shall use his/her official position or authority to compel political action or allegiance from subordinates.
 

Federally Funded State Agencies
State employees whose principal employment is in connection with an activity financed in whole or in part by federal loans or grants are subject to the Hatch Act, which is a federal law prohibiting them from engaging in certain political activities. Examples of prohibited activities are running as a partisan candidate for political office or using official authority for the purposes of interfering with or affecting the results of an election. Also prohibited is the coercion of public employees to make loans or contributions to a political party.

However, the law does not prohibit an employee from expressing opinions, making voluntary political contributions or displaying political badges or stickers in his/her private home or automobile. Any person who believes that he/she is covered by this Act should check its specific provisions before engaging in any political activities.
 

Strikes
Strikes by public employees against the State or any public authority or local governmental jurisdiction, including a school district, are prohibited by Article 14 of the Civil Service Law, also known as the Taylor Law.
CSL § 210 The statute presumes that an employee who fails to report for duty, is willfully absent from his/her position, stops work, or abstains in whole or in part from the full, faithful and proper performance of employment duties, has engaged in a strike. Under this broad definition, it would be possible to have a one-person strike, as concerted action by two or more employees is not necessary. The statute provides for the loss of two days' pay for each day the public employee is on strike.
 
The Ethics Law and Outside Activities

CSR §
4 NYCRR

6.3
6.3
Dual Employment
State employees holding positions in the classified service are prohibited from obtaining and holding any other paid State position, either on a full-time or part-time basis, without first obtaining the written consent of the head of their department or agency. This restriction on dual employment of classified service employees extends to second positions in all branches of State government (executive, legislative and judicial) and to the unclassified service.
POL § 73, 73-a, 74 In addition, outside activities of State officers and employees are regulated by provisions of the Public Officers Law relating to ethics.
 

POL §
19 NYCRR

73-a
932
Financial Disclosure
State officers and employees who are designated as "policymakers" by their appointing authority, or who earn in excess of the job rate of SG-24, as set forth in Section 130(1)(9) of the Civil Service Law, or above and are not otherwise exempted, must file an Annual Statement of Financial Disclosure with the State Ethics Commission. In addition, depending on the amount to be earned, such persons must obtain the permission of their appointing authority and, in certain cases, the State Ethics Commission before undertaking compensated outside activities.
 

POL §

73
Additional Agency Restrictions
Even if an individual is not required to obtain such permission, outside employment must not place an employee in a situation incompatible with his or her State position, such as presenting a conflict of interest. Employees who wish to undertake outside activities should check to see whether the agency they work for places additional specific restrictions or prohibitions on such activities. As a general matter, it is expected that outside employment will be restricted to off-duty hours and will not mentally or physically impair the employee in performing the duties of the State position.
19 NYCRR 930 State officers and employees are restricted from certain business and professional activities, e.g., contracting with a State agency except pursuant to competitive bidding or accepting gifts valued at $75 or more given to influence or reward official acts. The Ethics Commission has interpreted the Ethics Law as prohibiting the receipt of multiple gifts over a 12-month period that equal or exceed a value of $75, even though the gifts individually are worth less than $75. Also, former State officers and employees may not appear before their former State agency after termination of service for two years on any matter, or before any State agency at any time after termination on a matter with which they were directly concerned and personally participated in while still in State service. In addition, political activities, and the receipt of honoraria and travel reimbursement are regulated by the Ethics Commission, which also renders advisory opinions interpreting the Public Officers Law provisions addressing ethics and investigates violations.
 
Certification
CSL § 100 No payroll may be approved or paid by any State fiscal officer unless and until the Department of Civil Service certifies to such officer that the persons to be paid are holding their positions in accordance with Civil Service Laws and Rules. Payment of an employee by a fiscal officer after the refusal of the Department to certify his/her employment constitutes a misdemeanor. Certifications are issued by the Department of Civil Service on a biweekly basis covering new appointments and changes in employees' status. Civil Service Law also requires that the Civil Service Department examine the payrolls of all departments, agencies and authorities at least annually, and authorizes the Department to conduct such an examination at any time.
 


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