UNDERSTANDING YOUR RIGHTS UNDER CIVIL SERVICE LAW SECTION 75
All disciplinary actions against New York City Civil Servants commence through Civil Service Law Section 75. If you are a permanent employee (not on entry level/disciplinary probation), you have the right to be served with disciplinary charges notifying you of the underlying allegations. You also have the right to obtain discovery of the evidence your employer intends to use against you at the disciplinary hearing. You have the right to call witnesses, and challenge the witnesses and evidence presented against you, at the disciplinary hearing.
The disciplinary hearing will be conducted by an Administrative Judge. He or she will issues a finding of fact and a recommendation that can range from dismissal of the disciplinary charges to termination. This is, however, a recommendation. Agencies can make a different finding of fact to support different conclusions based on the same evidence and testimony.
If you are not satisfied with the ultimate decision made by the Agency, you have the right to appeal that decision to the New York City Civil Service Commission within twenty (20) days of the final Agency decision. Said decisions may also be appealed to the New York Supreme Court within one hundred and twenty days (120) from the date of the decision.
FREQUENTLY ASKED QUESTIONS
What type of misconduct can I be charged with?
You can be charged with misconduct which allegedly occurred while on duty such as insubordination, failure to perform job duties etc. However, the Courts have held that an employee can also be charged with off duty misconduct such as possession of narcotics, assault, insurance fraud and theft of services to name a few examples.
How much time does the agency have to serve me with disciplinary charges?
The Agency has eighteen (18) months from the date of the alleged misconduct to serve you with the disciplinary charges. However, if the misconduct alleged would be a crime if proven in Criminal Court, then the eighteen month rule does not apply.
What should I do once I have been served with disciplinary charges?
The first thing you should do after being served with disciplinary charges is notify your Shop Steward or Business Agent. Do not speak to any co-workers or supervisors about the charges. Immediately begin to gather evidence that you think may be used in your defense.
What if the criminal charges against me are dismissed or I am found "not guilty"? Does that mean that the disciplinary charges are automatically dismissed as well?
No. The burden or proof in criminal court is "beyond a reasonable doubt", while in disciplinary hearings the burden of proof is "a preponderance of the credible evidence" which is a much easier standard to prove. Therefore, disciplinary charges are not automatically dismissed upon the dismissal of the criminal charges.
What happens at a disciplinary hearing?
At a disciplinary hearing, the burden of proof is on the agency to prove the charges by a preponderance of the credible evidence. Usually, the Agency will call witnesses to testify against the employee, and may also submit into evidence documentation to support the charges. Once, the Agency has finished its case, the employee can call witnesses and submit documentation in his/her defense and can testify on his/her own behalf. All witnesses are subject to cross-examination by the lawyers.
Is the decision of the Judge final?
No, the Administrative Law Judge (ALJ), reviews all the evidence in the case and writes a Report and Recommendation to the Agency head or Board. The recommendation submitted by the ALJ can be accepted or changed by the Agency head or Board.
What rights do I have if I lose my case?
If you are not satisfied with the outcome of your case, you have the right to file an appeal with the New York City Civil Service Commission. The appeal must be filed within twenty (20) calendar days from the date that the Agency head or Board votes on your case.
What happens at the Civil Service Commission Appeal?
The Commission reviews what happened at the disciplinary hearing and decides if the evidence was sufficient to uphold the finding of guilt. In addition, the Commission will review the penalty to see if it was appropriate given the nature of the charges.
Can I call new witnesses or introduce new evidence at the Civil Service Commission hearing?
No, the Commission cannot weigh new evidence that was not admitted during the disciplinary hearing.
Are there any other appeal options aside from the appeal to the Civil Service Commission?
Yes, an appeal can be taken to the Supreme Court via an Article 78 Petition. Such an appeal to the Supreme Court must be filed within one hundred and twenty (120) days from the final decision by the agency head or Board. However, due to the cost involved in preparing and filing an Article 78 petition, most employees proceed to the Civil Service Commission. |