N.Y. Comp. Codes R. & Regs. tit. 9 § 489.1

Current through Register Vol. 46, No. 53, December 31, 2024

Section 489.1 - Purpose and scope

(a) If the superintendent or his designee determines that a member who has been absent from duty, because of any injury or disease, has become fit for full and strenuous duty, the superintendent or his designee shall order such member in writing to return to duty. This order shall be personally delivered or sent by first class mail, return receipt requested, to the member's last known address.

(b) If the member wishes to contest the superintendent's determination that he is fit for full and strenuous duty, the procedure set forth below shall be followed:

(1) The member must, on or before the date he is scheduled to report for duty, object in writing to the determination and request a hearing. The request shall be in writing and sent directly to the first deputy superintendent. In addition, the member shall immediately orally notify his troop or detail commander (or designee) of the intention to contest the determination. Failure to file a timely objection and request for a hearing shall constitute a waiver of the right to a hearing and subject the member to disciplinary action if the member fails to return to duty as ordered.

(2) Upon receipt of a written request for a hearing, the member shall be provided copies of any diagnoses, test results, recorded observations, or other records supporting the determination that the member is fit for full and strenuous duty. The member shall be afforded a hearing as soon as practicable. At least three days prior to the hearing, the member shall provide division counsel with copies of any diagnoses, test results, recorded observations, or other records supporting his contention that he is not fit for full and strenuous duty.

(3) The hearing shall be held at division headquarters before a State Police commissioned officer holding the rank of staff inspector or higher who will be chosen by the superintendent or his designee. In all cases, the hearing officer shall be of higher rank than the member requesting the hearing. The member may be represented at the hearing by counsel of his choice or a representative of a certified or recognized employee organization. A reasonable time shall be provided to obtain such representation. The member may present medical experts and other witnesses or evidence and shall be given an opportunity to cross-examine division witnesses. Witnesses unable to appear in person may testify telephonically. The division shall have the burden of proving fitness for duty by substantial evidence. Compliance with technical rules of evidence shall not be required. Testimony at the hearing shall be recorded. A transcript will be prepared only upon a member's written request for the purpose of judicial review of the superintendent's decision.

(4) The hearing officer shall make a written report of his findings and recommendations, which shall be submitted to the superintendent for final review and decision.

(5) The superintendent or his designee shall render a final written determination as soon as practicable after receipt of the hearing officer's report and shall provide the member and his representative, if any, with a copy of the determination. The superintendent may either uphold the original order to report for duty, rescind the order, or modify it.

(c) A member ordered to report for duty shall not be entitled to leave under regulation 5.12 of the New York State Police Rules and Regulations or applicable collective bargaining agreements pending a final determination, but shall be entitled to draw upon any accumulated annual, personal or sick leave credits.

(d) If the superintendent or his designee finally determines that the member is fit for full and strenuous duty, the order to report for duty shall be enforced. If a member has drawn upon accumulated sick leave during the period from the date of the initial order, the member must either charge that time to accumulated annual or personal leave or, return any salary compensation received for the period. A member who refuses to comply with the order shall have his salary immediately suspended, be considered absent from work without authorization, and subject to disciplinary action pursuant to rule 3.

(e) If the superintendent or his designee determines that the member is not fit for full and strenuous duty, the order shall be withdrawn. A member entitled to leave under regulation 5.12 of the New York State Police Rules and Regulations shall have any sick leave credits or salary actually lost because of the order restored.

(f) This rule does not prevent a member from reporting for duty while disputing the superintendent's order pursuant to the above procedure.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 489.1