N.Y. Comp. Codes R. & Regs. tit. 22 § 25.29

Current through Register Vol. 46, No. 45, November 2, 2024

Section 25.29 - Removal or disciplinary action

(a) An employee described in paragraph (1), (2) or (3) 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, unless such employee is granted the option and elects to follow the alternative disciplinary procedure set forth in subdivision (h) of this section:

(1) an employee holding a position by permanent appointment in the competitive class of the classified service;

(2) an employee holding a position by permanent appointment or employment in the classified service, who is an honorably discharged member of the Armed Forces of the United States having served therein as such member in time of war as defined in this Part or who is an exempt volunteer fireman as defined in the General Municipal Law, except when an employee described in this paragraph holds a position designated by the Chief Administrator of the Courts as confidential or requiring the performance of functions influencing policy; or

(3) an employee holding a position in the noncompetitive class other than a position designated by the Chief Administrator of the Courts as confidential or requiring the performance of functions influencing policy, who since such employee's last entry into the service of the Unified Court System has completed at least five years of continuous service in the noncompetitive class in a position or positions not designated as confidential or requiring the performance of functions influencing policy.

(b) Procedure.

(1) An employee who at the time of questioning appears to be a potential subject of disciplinary action shall have a right to representation. 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 employee may be questioned without representation.

(2) An employee 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 or her by the designating authority as set forth in this subdivision and shall be allowed at least eight days for answering the same in writing. The hearings upon such charges shall be held as follows:

(i) In the instance of an employee of the Court of Appeals, the hearing shall be held by a person designated by the clerk of the Court of Appeals for that purpose.

(ii) In the instance of an employee of an appellate division, the hearing shall be held by a person designated by the presiding justice of that appellate division for that purpose.

(iii) In the instance of an employee of the administrative office for the courts, the hearing shall be held by a person designated by the deputy chief administrator for management support for that purpose.

(iv) In any other instance, the hearing shall be held by a person designated for that purpose by the Deputy Chief Administrator of the Courts having administrative jurisdiction over the court or court-related agency in which the employee is employed.

(3) The person designated shall, for the purpose of such hearing, be vested with all the powers of the designating authority and shall make a record of such hearing which shall, with recommendations, be referred to such designating authority for review and decision. The person or persons holding such hearing shall, upon the request of the employee against whom charges are preferred, permit him or her to be represented by counsel, or by a representative of an employee organization which represents the employee, and shall allow him or her to summon witnesses in his or her 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. The employee against whom charges are preferred shall, upon request, be entitled to a copy of the recommendations of the person designated to conduct the hearing, and shall be allowed three days to comment upon them, in writing, to the designating authority. The person alleging incompetency or misconduct shall be allowed three days to respond to such comments.

(c) Suspension pending determination of charges. Pending the hearing and determination of charges of incompetency or misconduct, the employee against whom such charges have been preferred may be suspended without pay for a period not exceeding 30 days.

(d) Penalties.

(1) If the employee is found guilty of the charges, the penalty or punishment may consist of a reprimand, a fine not to exceed $200 to be deducted from the salary or wages of such officer or employee, suspension without pay for a period not exceeding three months, a combination of a fine not to exceed $200 and a suspension without pay for a period of up to three months, demotion in salary and title, restitution, probation for up to six months, or dismissal from the service; provided, however, that the time during which an employee is suspended without pay may be considered as part of the penalty. If he or she is acquitted, he or she shall be restored to his or her position with full pay for the period of suspension, less the amount of compensation which he or she may have earned in any other employment or occupation and any unemployment insurance benefits he or she may have received during such period. If employee is found guilty, a copy of the charges, his or her written answer thereto, a transcript of the hearing, and the determination shall be filed in the office of the Chief Administrator. A copy of the transcript of the hearing shall, upon request of the employee affected, be furnished to him or her without charge.

(2) During a period of suspension without pay pursuant to this section, an employee shall be entitled to continue health insurance, provided the employee pays his or her share of the premium, and shall be eligible to receive welfare fund benefits and have welfare fund payments made on his or her behalf.

(e) Time for removal or disciplinary proceeding. Notwithstanding any other provisions of this Part, and except as provided in section 25.13(d)(3), no removal or disciplinary proceeding shall be commenced more than 18 months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges; provided, however, that such limitation 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.

(f) Review of penalty or punishment. Any employee believing himself aggrieved by a penalty or punishment of demotion in or dismissal from the service, or suspension without pay, or a fine or an official reprimand without the remittance of any prehearing suspension without pay, imposed pursuant to the provisions of this section, may appeal from such determination by an application to the Chief Administrator of the Courts or seek relief by an application to the court in accordance with the provisions of article 78 of the Civil Practice Law and Rules.

(1) Procedure on appeal. If such employee elects to appeal to the Chief Administrator, such appeal shall be filed in writing within 20 days after service of written notice of the determination to be reviewed, such written notice to be delivered personally or by registered or certified mail to the last known address of such employee, and when notice is given by registered or certified mail, such employee shall be allowed an additional three days in which to file an appeal. The Chief Administrator shall review the record of the disciplinary proceeding and the transcript of the hearing, and shall determine such appeal on the basis of such record and transcript and such oral or written argument as he or she may determine. The Chief Administrator may designate a representative to hear the appeal who shall report thereon with recommendations to the Chief Administrator. Upon such appeal, the Chief Administrator shall permit the employee to be represented by counsel or by a representative of a employee organization which represents the employee.

(2) Determination on appeal. The determination appealed from may be affirmed, reversed or modified, and the Chief Administrator may, in his or her discretion, direct the reinstatement of the appellant or permit the transfer or reassignment of such appellant to a vacancy in a similar position in another court or court agency or direct that such employee's name be placed upon a preferred list pursuant to this Part. In the event that a transfer or reassignment is not effected, the Chief Administrator may direct the reinstatement of such employee. An employee reinstated pursuant to this subdivision shall receive the salary or compensation he or she would have been entitled by law to have received in the position for the period of removal, including any prior period of suspension without pay, less the amount of any unemployment insurance benefits which may have been received during such period. The decision of the Chief Administrator shall be final and conclusive, and not subject to further review in any court.

(g) Compensation of employees reinstated by court order. Any employee who is removed from a position in the service of the Unified Court System in violation of the provisions of this section, and who thereafter is restored to such position by order of the Supreme Court, shall be entitled to receive and shall receive the salary or compensation which he or she would have been entitled by law to have received in such position but for such unlawful removal, from the date of such unlawful removal to the date of such restoration, less the amount of compensation which may have been earned in any other employment or occupation and any unemployment insurance benefits which may have been received during such period. Such officer or employee shall be entitled to a court order to enforce the payment of such salary or compensation. Such salary or compensation shall be subject to the provisions of sections 474 and 475 of the Judiciary Law for services rendered, but otherwise shall be paid only directly to such employee or his or her legal representatives.

(h) Alternative disciplinary procedure. The Chief Administrator or his or her designee may establish rules and procedures implementing an alternative disciplinary procedure permitting an employee to elect, at the option of the designating authority, to accept a penalty to be selected in the sole discretion of the designating authority without the initiation of formal disciplinary charges or the holding of a formal hearing pursuant to subdivision (b) of this section. The penalties under this procedure may be a written reprimand, restitution, probation for up to six months, and the forfeiture of up to 10 days of annual leave or compensatory time or the loss of up to 10 days' pay. The determination of the designating authority shall be final, binding and not reviewable in any forum. For purposes of this subdivision only, an eligible employee shall include all employees otherwise not covered by subdivision (a) of this section who are not personal appointees of a judge.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 25.29