Relates to unlawful acts in respect to examinations.
BILL NUMBER:A9011 REVISED 6/22/09
TITLE OF BILL: An act to amend the civil service law, in relation to unlawful acts in respect to examinations and establishing a civil penalty for violations
Purpose: The purpose of the bill is to add provisions to the Civil Service Law ("CSL") that would prohibit the manipulation of civil service examinations and establish a civil penalty for violations.
Summary of provisions: Section 1 of the bill would amend CSL § 50(11) to confirm that it is unlawful for a State officer or employee to develop a profile for a position-specific civil service examination based on the qualifications of a particular person in order to be able to appoint that person: to submit a false certification, where such certification is required by the Civil Service Department ("CSD"); and to obtain or attempt to obtain by any manipulative or deceptive device an appointment or promotion for any person to which he or she is not entitled under the CSL.
Section 2 of the bill would add a new subdivision 12 to CSL § 50 to provide a civil penalty for certain violations of CSL § 50(11). Where the CSD finds such a violation by a State officer or employee, it may issue an order describing the nature of the violation and providing an opportunity to be heard, after which it may assess a civil penalty of not more than $5,000. The offending State officer or employee may file a petition with the State Civil Service Commission for a review of the order. If there is no further review pending, CSD would be authorized to file with the County Clerk of the county where the officer or employee resides the order of the department containing the amount of the civil penalty. The filing of such order would have the force and effect of a judgment duly docketed in the office of such clerk.
Section 3 of the bill would provide for an immediate effective date.
Existing law: CSL §50(41) addresses the disqualification of applicants or eligibles based on the misconduct of persons which includes illegality, irregularity or fraud of a substantial nature in an application, examination or appointment. In addition, CSL § 50(11) makes it unlawful to impersonate another in taking an examination, to have in one's possession questions or answers relating to any such examination, and to sell questions or answers, among other prohibited conduct. CSL § 106, in addition to other misconduct, makes it a misdemeanor for persons-to willfully. alone or in cooperation with other persons, to defeat. deceive or obstruct any person in respect of his or her right of examination, registration. certification. appointment. promotion or reinstatement
Prior legislative history: None.
Statement in support: In March 2009, the New York State Inspector General found that officials at the Department of Taxation and Finance
("DTF") had directed actions in 2006 to secure tenured civil service positions for certain individuals in violation of the CSL. Indeed, the Inspector General found that manipulation and abuse of the civil service system for hiring attorneys by DTF stretched back more than a decade. This legislation will provide a specific deterrent to future misconduct of this sort and ensure that position-specific examinations remain a credible method to determine the merit and fitness of applicants for positions in the competitive class of the civil service.
The bill would expand the current list of specified prohibited conduct with respect to examinations administered pursuant to the CSL. While many of these actions fall within the broad language of current law, the statute would provide specific and clear guidance as to the illegality of particular manipulative conduct. The bill would confirm that it is unlawful for State officials to manipulate the examination process in order to favor particular applicants they would like to appoint. These offenses, like the existing unlawful acts. would be punishable as Class A misdemeanors.
The bill, however, would also provide for the imposition of a civil penalty for misconduct relating to the testing process to provide an alternative to criminal prosecution. Given the nature of the offenses, it would be unusual for a District Attorney or the Attorney General to devote scarce resources to prosecuting individual cases under the CSL. Therefore, in order to provide a credible deterrent, the bill authorizes the CSD to assess a civil penalty for a violation of the provisions prohibiting the manipulation of the examination process.
In short, this bill would provide CSD with new tools and the appropriate flexibility to maintain the integrity of the civil service examination process.
Budget implications: None.
Effective date: The bill would become effective immediately.
STATE OF NEW YORK ________________________________________________________________________ 9011 2009-2010 Regular Sessions IN ASSEMBLY June 19, 2009 ___________Introduced by M. of A. ABBATE -- (at request of the Governor) -- read once and referred to the Committee on Governmental Employees AN ACT to amend the civil service law, in relation to unlawful acts in respect to examinations and establishing a civil penalty for violations THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 11 of section 50 of the civil service law, as added by chapter 445 of the laws of 1991, is amended to read as follows: 11. Unlawful acts in respect to examinations administered pursuant to this chapter. A person who shall: (a) Impersonate, or attempt to or offer to impersonate, another person in taking an examination held pursuant to this chapter; or (b) Take, or attempt to take or offer to take such an examination in the name of any other person; or (c) Procure or attempt to procure any other person to falsely imperso- nate him or her or to take, or attempt to take or offer to take, any such examination in his or her name; or (d) Have in his or her possession any questions or answers relating to any such examination, or copies of such questions or answers, unless such possession is duly authorized by the appropriate authorities; or (e) Sell or offer to sell questions or answers prepared for use in any such examination; or (f) Use in any such examination any questions or answers secured prior to the administration of the examination or secure the questions or secure or prepare the answers to the examination questions prior to the administration of the examination, unless duly authorized to do so by the appropriate authorities; or (g) Disclose or transmit to any person the questions or answers to such examination prior to its administration, or destroy, falsify or conceal the records or results of such examination from the appropriateEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD12068-03-9 A. 9011 2
authorities to whom such records are required to be transmitted in accordance with this chapter, unless duly authorized to do so by the appropriate authorities; OR (H) DEVELOP OR INDUCE OR ATTEMPT TO INDUCE ANY OTHER OFFICER OR EMPLOYEE TO DEVELOP A PROFILE FOR A POSITION-SPECIFIC EXAMINATION BASED SOLELY ON HIS OR HER EDUCATION OR EXPERIENCE OR THE EDUCATION AND EXPE- RIENCE OF ANY KNOWN CANDIDATE OR CANDIDATES; OR (I) SUBMIT A FALSE CERTIFICATION, WHERE SUCH CERTIFICATION IS REQUIRED BY THE DEPARTMENT; OR (J) OBTAIN OR ATTEMPT TO OBTAIN OR AID OR ABET BY ANY MANIPULATIVE OR DECEPTIVE DEVICE AN APPOINTMENT OR PROMOTION FOR ANY PERSON TO WHICH HE OR SHE IS NOT ENTITLED UNDER THIS CHAPTER; shall be guilty of a class A misdemeanor punishable by a sentence of imprisonment of six months or a fine of one thousand dollars, or both. Additionally, a person who is found by the state civil service depart- ment or municipal commission to have violated this section shall be disqualified from appointment to the position for which the examination is being held and may be disqualified from being a candidate for any civil service examination for a period of five years. S 2. Section 50 of the civil service law is amended by adding a new subdivision 12 to read as follows: 12. IN ADDITION TO THE PENALTY PRESCRIBED IN SUBDIVISION ELEVEN OF THIS SECTION: (A) WHERE THE DEPARTMENT FINDS THAT AN OFFICER OR EMPLOYEE HAS VIOLATED SUBDIVISION ELEVEN OF THIS SECTION, OR A RULE OR REGULATION PROMULGATED THEREUNDER, THE DEPARTMENT MAY BY AN ORDER WHICH SHALL DESCRIBE PARTICULARLY THE NATURE OF THE VIOLATION AND PROVIDE AN OPPOR- TUNITY TO BE HEARD THEREON, ASSESS THE OFFICER OR EMPLOYEE A CIVIL PENALTY OF NOT MORE THAN FIVE THOUSAND DOLLARS FOR SUCH VIOLATION. SUCH PENALTY SHALL BE PAID TO THE DEPARTMENT FOR DEPOSIT IN THE TREASURY OF THE STATE. IN ASSESSING THE AMOUNT OF THE PENALTY, THE DEPARTMENT SHALL GIVE DUE CONSIDERATION TO THE PARTICULAR CIRCUMSTANCES OF THE VIOLATION INCLUDING BUT NOT LIMITED TO WHETHER THE VIOLATION WAS KNOWING, INTEN- TIONAL AND/OR WILLFUL, WHETHER THE VIOLATION WAS DONE ALONE OR IN COOP- ERATION WITH OTHERS, THE HISTORY OF PREVIOUS VIOLATIONS, ANY ATTEMPT TO HIDE THE VIOLATION AND THE GRAVITY OF THE VIOLATION. (B) ANY ORDER ISSUED UNDER PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE DEEMED A FINAL ORDER OF THE DEPARTMENT AND NOT SUBJECT TO REVIEW BY ANY COURT OR AGENCY UNLESS THE OFFICER OR EMPLOYEE FILES A TIMELY PETITION WITH THE COMMISSION FOR A REVIEW OF THE ORDER, PURSUANT TO SUBDIVISION FIVE OF SECTION SIX OF THIS CHAPTER. (C) PROVIDED THAT NO PROCEEDING FOR ADMINISTRATIVE OR JUDICIAL REVIEW SHALL THEN BE PENDING AND THE TIME FOR INITIATION OF SUCH PROCEEDING SHALL HAVE EXPIRED, THE DEPARTMENT MAY FILE WITH THE COUNTY CLERK OF THE COUNTY WHERE THE OFFICER OR EMPLOYEE RESIDES THE ORDER OF THE DEPARTMENT CONTAINING THE AMOUNT OF THE CIVIL PENALTY. THE FILING OF SUCH ORDER SHALL HAVE THE FULL FORCE AND EFFECT OF A JUDGMENT DULY DOCKETED IN THE OFFICE OF SUCH CLERK. THE ORDER MAY BE ENFORCED BY AND IN THE NAME OF THE DEPARTMENT IN THE SAME MANNER, AND WITH LIKE EFFECT, AS THAT PRESCRIBED BY THE CIVIL PRACTICE LAW AND RULES FOR THE ENFORCEMENT OF A MONEY JUDGMENT. S 3. This act shall take effect immediately.