New York StateDepartment of Civil ServiceCommitted to Innovation, Quality, and ExcellenceManual of Procedure inDisciplinary ActionsGeorge E. PatakiGovernorGeorge C. SinnottCommissioner

Copyright 2003 by the New York State Department of Civil Service

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Manual of Procedure in Disciplinary ActionsTABLE OF CONTENTSSectionPREFACEPageI1II2STATUTORY OVERVIEWIII3OFFICERS AND EMPLOYEES COVERED BY SECTION 75IV5PURPOSE OF MANUALGeneralTemporary, Provisional, Part-time or Per Diem EmployeesProbationPrivate Secretary, Cashier, DeputyIndependent OfficersNotice of Status as War Veteran or Exempt Volunteer FirefighterPROCEDURE BEFORE DISCIPLINARY ACTION IS TAKENV11Fair Play-Due ProcessGeneral PoliciesRecords Showing Incompetency or MisconductE-MailConferences and CounselingAssignment to Other Locations/DutiesInvestigationRepresentation During InvestigationCriminal Acts or OmissionsMedical ExaminationOFFENSES SUBJECT TO DISCIPLINARY ACTIONVI22VII26Time LimitationsOffense Must Be SubstantialEffect of Layoff“Outside” or “Off Duty” OffensesIndictment and Conviction on Criminal ChargesRetaliatory ActionPREPARATION OF CHARGESFormChargeSpecificationsRelated MattersSUSPENSIONVIII32

TRANSMITTAL OF NOTICE AND STATEMENT OF CHARGESIX34THE ANSWERX36XI38XII39XIII41XIV44XV45XVI50XVII51EFFECT OF RESIGNATIONDESIGNATION OF HEARING OFFICERSUBPOENASGeneralWho May Issue SubpoenasObtaining a SubpoenaServiceFeesCOUNSEL AND REPRESENTATIONHEARINGGeneralOpen or Closed HearingAdjournmentsRelationship Between Hearing Officer and EmployeeFailure or Refusal to AppealHearing Procedures/EvidenceStenographic Record/ExhibitsSETTLEMENTTHE DETERMINATIONGeneralEvaluation of the EvidenceReinstatement If Found Not GuiltyPenaltiesNotice of DeterminationOther Procedural RequirementsEffects of PenaltiesSuspension or Fine of Overtime Ineligible EmployeesAPPEALS TO CIVIL SERVICE COMMISSION OR PERSONNELOFFICERXVIII59XIX63Procedure on AppealDetermination on AppealCONCLUSIONSAPPENDIX

Section IPrefaceWhen public sector employees are incompetent at work or engage inmisconduct relating to the performance of their duties, employers may seek todiscipline those employees, either to correct their behavior or to remove themfrom the workforce. Employers, however, are bound by specific laws and courtdecisions that relate to the procedural and substantive requirements to effectdischarge or other disciplinary penalties.Although there is increased public and judicial scrutiny in this area, thenotion that public employees may be disciplined or separated from public serviceonly under the most extreme circumstances, and solely for the gravest offenses,is utterly untrue.The same reasons which are generally acceptable fordisciplining employees in private industry may be the basis for discipline in thepublic service – although in public service specific due process procedures mustbe followed and the employer’s actions are subject to broader review.We have prepared this manual to aid administrative officials in becomingmore familiar with the formalities required to meet current legislative and judicialstandards. Since the last revision of this manual in 1987, there have been manychanges and additions that are now reflected in this edition.We have also included some recommendations relating to personnelpractices that have a bearing on disciplinary procedures, and also somesuggestions on how to make the disciplinary process more fair, efficient andmanageable.This 2003 revised edition of the Manual of Procedure in DisciplinaryActions pursuant to the Civil Service Law was prepared by the Law Bureau of theDepartment of Civil Service.1

Section IIPURPOSE OF MANUALGenerally, disciplinary proceedings involving civil service employees aregoverned by the provisions of sections 75, 75-b, 76 and 77 of the Civil ServiceLaw and/or the negotiated agreements between the various bargaining units andeach public employer.Each statute and/or negotiated agreement provides for or relates to theprocedures to be followed during the various stages of a disciplinary proceeding.Though variance from some of these procedures may have little practical effecton the proceeding or may be easily remedied, other failures to follow establishedprocedures may profoundly affect the course and outcome of the action or mayeven be fatal to the charges at any stage of the proceeding, or upon appeal andreview. The importance of following proper procedures, therefore, cannot be overemphasized.This manual is designed primarily to serve as a guide to the proceduresthat should be followed in disciplinary actions and to illustrate such proceduresby appropriate examples. While the focus of the manual is on those proceduresset forth in the Civil Service Law, references will be made regarding theprocedures applicable to arbitration proceedings under the terms of negotiatedagreements. Inasmuch as disciplinary proceedings require the conduct of formalhearings and involve legal issues, the advice and guidance of appropriategovernment counsel may be necessary at any stage of the proceeding.Thismanual, which is intended to be a valuable resource, is not a substitute forsound legal advice from counsel.2

Section IIISTATUTORY OVERVIEWCivil Service Law section 75 provides that a covered employee may not beremoved or otherwise subjected to disciplinary penalty except for incompetencyor misconduct shown after a hearing on stated charges.Such employee isentitled to representation and to summon witnesses to testify on her or his behalfat the hearing. Upon service of the charges, the appointing officer or authoritymay suspend the employee without pay for a period of up to thirty days pendingthe hearing and determination of the disciplinary charges. The burden of provingthe facts upon which the charges are based and the appropriateness of theproposed penalty is on the employer.If the employee is acquitted of the charges, she or he is restored any salaryand benefits lost as a result of the employer bringing those charges.If theemployee is found guilty of any charges, she or he may receive a penalty rangingfrom a formal letter of reprimand to a fine, a temporary suspension, demotion ordismissal from service.Civil Service Law section 75-b, commonly known as the “whistleblowerlaw,” prohibits a public employer from taking disciplinary action against a publicemployee because that employee reveals information to a governmental bodyregarding a violation of a law, rule or regulation which presents a substantialand specific danger to public health and safety or reveals information which theemployer reasonably believes is true and constitutes an improper governmentalaction.When the employee reasonably believes that a disciplinary action wouldnot have been taken but for the protected activity, section 75-b may be raised asa defense in that proceeding. Once raised, the defense must be considered anddetermined as part of the hearing officer’s decision.3

The burden of proving the disciplinary action was retaliatory pursuant tosection 75-b is on the employee.If the employer shows a valid and independent reason for bringing thedisciplinary action, the defense will not succeed. If the defense is upheld, thehearing officer is required to dismiss or recommend dismissal of the proceeding.Civil Service Law section 76 permits an employee who is aggrieved by apenalty of demotion, dismissal from the service, suspension without pay, a fine,or an official reprimand (if coupled with an unremitted suspension without pay),to appeal from such determination either to the civil service commission orpersonnel officer having jurisdiction, or to the court.An appeal to thecommission or personnel officer must be filed within twenty days after theemployee receives written notice of the determination.The commission isrequired to review the record of the disciplinary proceeding and the transcript ofthe hearing, and to determine the appeal on the basis of such record andtranscript and such oral or written argument as it may deem appropriate. Thedetermination appealed may be affirmed, reversed or modified. The commissionmay, in its discretion, direct the reinstatement of the appellant, permit transferto another position or place her/his name on a preferred list.(Sections 75, 75-b, 76 and 77 of the Civil Service Law are set forth in fullin the Appendix of this manual.)4

Section IVOFFICERS AND EMPLOYEES COVERED BY SECTION 75GeneralEssentially, the protections and procedures afforded by section 75 onlyapply to public employees who have a property interest (tenure) in connectionwith their public employment position.Section 75 applies to:(1)a person holding a position by permanent appointment in thecompetitive class;(2)a person holding a position by permanent appointment in theexempt, non-competitive or labor class who is an honorablydischarged war veteran (as defined in Civil Service Law section 85)or an exempt volunteer firefighter (as defined in the GeneralMunicipal Law), except where such person holds the position ofprivate secretary, independent officer, cashier, or deputy of anyofficial or department;(3)a person holding a position by permanent appointment in edasconfidential or policy influencing, who since last entry into theservice has completed at least five years of continuous service inthat class.Time employed in a confidential or policy influencingposition cannot count towards the required five-year period;(4)persons holding certain Homemaker or Home Aide positions inNew York City; and(5)certain police detectives.5

Temporary, Provisional, Part-time or Per Diem EmployeesThe protections afforded by section 75 apply only to persons who holdtheir position by permanent appointment. Consequently, the protections of thestatute do not apply to temporary or provisional employees.Section 75 makes no distinction, however, between full time employeesand those who are part time or who are paid on an hourly or per diem basis.Since a property interest in a public position is unaffected by these factors, theapplicability of section 75 procedural rights are also tectionundersection75.Aprobationary term generally entails a fixed minimum and maximum period, asfixed by State or local rule, through which an employee must pass prior toattaining full tenure and property interest rights to the specific public position.During the minimum period of probation, which is typically eight weeks,section 75 affords full procedural and due process protection. Any discipline orremoval sought during this period must be on stated charges and after a fullhearing as the probationer has a protected right to serve the minimumprobationary period.Once the minimum probationary period has passed, however, and beforethe maximum probationary period elapses, the incumbent holds a permanentappointment but may be discharged without written charges or a hearing. Theemployer must still follow the proper procedures relating to probationaryevaluation, notification, and termination, but section 75 procedures do not apply.When the probation period has ended and the employee has gained a propertyright to the position, the employee also gains the full protection of the statute.6

It should be noted that an employee who is laid off when a position isabolished or whose appointment is revoked by the civil service commissionpursuant to Civil Service Law section 50(4), is not entitled to section 75procedures.Neither instance involves misconduct or incompetence in publicservice leading to disciplinary action.Private Secretary, Cashier, or DeputyAs noted earlier, section 75 explicitly provides that a person holding theposition of private secretary, cashier or deputy of any official or department, whowould otherwise be entitled to the protections of section 75 as a war veteran orexempt volunteer firefighter, may be discharged or disciplined without charges ora hearing.From a procedural standpoint, the crucial question is whichemployees fall into these categories.Though the position title may give someindication as to which, if any, category an individual might belong in, such titleis in no way determinative.Each category of position must be consideredindividually based upon the duties of the specific position held.The category which is most troublesome, and which has been the subjectof the most litigation, is that of a “deputy of any official or department.”Generally, the duties and responsibilities of the position determine whether itconstitutes a “deputy” position, and the courts have focused on whether thereexists statutory authority for the principal officer to delegate his or her duties orresponsibilities to a deputy. In some instances, the statute may directly conferauthority on the employee to perform duties vested in his or her principal officer.Since these questions are legal in nature, it is suggested that the advice ofcounsel be sought before any disciplinary measures are considered regarding anindividual who might be considered such a “deputy.”An appointing officer may not make a “deputy” out of any subordinate heor she chooses; the general rule is that the deputization must be effected directlyby a statute or pursuant to statutory provisions authorizing the delegation ofpowers and duties.7

It is not necessary that the deputy be authorized to act generally for andin place of his or her principal, as is required for exempt classification undersection 41 of the Civil Service Law. It is sufficient that he or she be authorized toexercise part of the