Relates to provisional employees of certain public employers.
TITLE OF BILL: An act to amend the civil service law, in relation to provisional employees of certain public employers; to amend chapter 5 of the laws of 2008 amending the civil service law relating to provisional employees of certain public employers, in relation to extensions of certain negotiated agreements and extending the provisions of such chapter; and to amend part I of chapter 56 of the laws of 2008 amending the civil service law relating to excess provisional employees of a city having a population of one million or more, in relation to extending the provisions thereof
SUMMARY OF PROVISIONS:
Section 1 of the bill sets forth legislative findings, describing the need to amend subdivision 5 of Civil Service Law § 65, added by Chapter 5 of the Laws of 2008. Subdivision 5 provides for New York City (the "City") and the other governmental entities whose civil service appointments are managed by the city's Department of Citywide Administrative Services ("DCAS", and such entities are referred to as the "DCAS employers"), to develop a plan to substantially comply with the time periods permitted by subdivisions one through four of Civil Service Law § 65 regarding provisional appointments.
Section 2 of the bill would add a new paragraph (c-1) to Civil Service Law § 65(5) that would authorize the DCAS employers to submit to the State Civil Service Commission ("State Commission") a comprehensive revised plan, to be implemented by November 1, 2018 or within four years of its approval by the State Commission, whichever is later, to substantially comply with the time periods permitted by § 65(1)-(4). This plan could contain any of the components of the original plan and could also include other appropriate means of implementation. The State Commission would be required to approve or disapprove the plan within sixty days of its submission, and this approval process would otherwise conform to the procedures set forth in § 65(5)(c).
Section 3 of the bill would make conforming amendments to subdivisions (d), (f) and (g) of Civil Service Law § 65(5) in light of the proposed addition of a new paragraph (c-1). This would ensure that the plan modification procedures (including a potential additional year for implementing the revised plan), as well as the time limitation suspension and authorization of negotiated disciplinary procedures, would continue to apply.
Section 4 of the bill would make a conforming amendment to § 3 of Chapter 5 of the Laws of 2008 with respect to the negotiated agreements entered into as a result of the plan, reflecting the amendment to paragraph (g) of § 65(5) proposed by Section 3 of this bill. It would also amend the expiration date of Chapter 5 of the Laws of 2008, which authorized the original plan, and provide that this act would expire on December 31, 2020.
Section 5 of the bill would amend the expiration date of Part I of Chapter 56 of the Laws of 2008 (to December 31, 2020), which added subdivision 6 of § 65 authorizing the State Commission to charge the City for services and costs (up to $690,000 annually) associated with
approving and monitoring the plan submitted by the City and the DCAS employers.
Section 6 of the bill is a severability clause.
Section 7 of the bill provides that the act would take effect immediately.
REASONS FOR SUPPORT:
The City and the DCAS employers have made significant progress in reducing the number of their provisional employees, but aspects of the original plan developed by DCAS could not be fully implemented during the period of the plan's effective period. A comprehensive revision of such plan would now afford the City and the DCAS employers the opportunity to implement further actions necessary to complete the plan while preserving the quality and effectiveness of governmental operations.
The purpose of this bill, and the 2008 legislation it amends, is to address issues raised by the New York Court of Appeals in its decision in City of Long Beach v. Civil Service Employees Association, 8 N.Y.3d 465 (2007). In that case, the Court concluded that the terms of a collective bargaining agreement that afforded tenure rights to provisional employees of the City of Long Beach after one year of service were contrary to New York law. In light of this, the Court concluded that the dispute was not arbitrable because granting the relief sought by the provisional employees under the "tenure" provisions of the agreement would violate the Civil Service Law. The Court also emphasized the need for compliance with the time limitations imposed by Civil Service Law § 65 with respect to filling vacancies, holding examinations and removing provisional employees from positions in titles for which examinations should be held.
Having received approval in 2008 from the State Commission to implement an orderly and expeditious plan to reduce the number of provisional employees, the City and certain other related employers made substantial progress toward their goal through various means authorized by Chapter 5. As of May 1, 2014, the number of provisional employees on the payrolls of the DCAS employers is below 23,000, a substantial reduction of almost 15,000 from the number in May 2008. This bill would allow the City and such other employers to update and continue to implement the plan, with appropriate revisions to timeframes and plan strategies. The bill will ensure the continued quality and effectiveness of governmental operations while the revised plan is being developed and implemented. At the same time it will further the goals of maintaining continuity in the provision of essential public services and harmonious labor relations, particularly as it would allow limited negotiated protections regarding disciplinary procedures for provisional employees and the waiver of time limitations that would otherwise apply in relation to provisional employment. Such limited authorizations, only in the context of implementing the plan, are consistent with the "merit and fitness" policy of the State Constitution.
Immediately, with provisions
STATE OF NEW YORK ________________________________________________________________________ 7810 IN SENATE June 11, 2014 ___________Introduced by Sen. GOLDEN -- read twice and ordered printed, and when printed to be committed to the Committee on Civil Service and Pensions AN ACT to amend the civil service law, in relation to provisional employees of certain public employers; to amend chapter 5 of the laws of 2008 amending the civil service law relating to provisional employ- ees of certain public employers, in relation to extensions of certain negotiated agreements and extending the provisions of such chapter; and to amend part I of chapter 56 of the laws of 2008 amending the civil service law relating to excess provisional employees of a city having a population of one million or more, in relation to extending the provisions thereof THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Statement of legislative findings and intent. The legisla- ture hereby finds that the city of New York and other employers for which the New York city department of citywide administrative services ("DCAS") manages civil service appointments ("the DCAS employers") have made substantial progress in reducing the number of provisional appoint- ments. Aspects of the original plan developed by DCAS in accordance with chapter 5 of the laws of 2008 to reduce provisional appointments could not be fully implemented during the period of effectiveness of such plan, and a limited revision and extension are now necessary in order to implement further actions in an appropriate timeframe that preserves the quality and effectiveness of governmental operations. The legislature therefore additionally finds that the constitutional mandate of making appointments and promotions "according to merit and fitness" would be furthered by maintaining, for an additional defined period, the orderly planning and implementation process, including review by the state civil service commission, originally established by chapter 5 of the laws of 2008. The legislature further finds that during such period, limited waivers of selected applicable time limitations, as well as the authori- zation of certain negotiated disciplinary procedures for provisional employees, are also appropriate. These actions are authorized only inEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15510-01-4 S. 7810 2
the unique context of continuing to implement a remedy for the specific problem faced by the city and other DCAS employers. S 2. Subdivision 5 of section 65 of the civil service law is amended by adding a new paragraph (c-1) to read as follows: (C-1) REVISED PLAN FOR PROVISIONAL EMPLOYEES. WITHIN SIXTY DAYS AFTER THE EFFECTIVE DATE OF THIS PARAGRAPH, THE DCAS EMPLOYERS SHALL BE REQUIRED TO SUBMIT TO THE STATE COMMISSION FOR ITS APPROVAL A SINGLE COMPREHENSIVE REVISION OF THE PLAN PREPARED PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION, TO BE IMPLEMENTED BY NOVEMBER FIRST, TWO THOUSAND SIXTEEN, TO FURTHER REDUCE THE NUMBER OF PROVISIONAL APPOINTMENTS THAT HAVE CONTINUED BEYOND THE PERIODS PERMITTED BY SUBDIVISIONS ONE, TWO, THREE AND FOUR OF THIS SECTION. SUCH REVISED PLAN MAY CONTAIN ANY ELEMENTS OR MEANS OF IMPLEMENTATION AUTHORIZED BY PARAGRAPH (B) OF THIS SUBDIVISION. THE REVISED PLAN SHALL BE SUPPORTED BY APPROPRIATE DOCUMEN- TATION AND EXPLANATION, AND THE INFORMATION CONTAINED IN THE PLAN SHALL BE CONFIRMED BY THE COMMISSIONER OF DCAS AS ACCURATE TO THE BEST OF HIS OR HER KNOWLEDGE, BASED ON A REASONABLE INQUIRY BY DCAS INTO THE FACTS SET FORTH THEREIN. WITHIN SIXTY DAYS OF THE SUBMISSION OF SUCH PLAN, THE STATE COMMISSION SHALL APPROVE THE REVISED PLAN, WITH OR WITHOUT RECOM- MENDED CHANGES, OR DISAPPROVE IT. THE APPROVAL PROCESS SHALL OTHERWISE CONFORM TO THE TIMEFRAMES AND PROCEDURES SET FORTH IN PARAGRAPH (C) OF THIS SUBDIVISION. NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THIS SUBDIVISION, THIS SUBDIVISION SHALL NO LONGER BE IN FORCE AND EFFECT IF NO REVISED PLAN HAS BEEN APPROVED BY THE STATE COMMISSION WITHIN EIGH- TEEN MONTHS FROM THE EFFECTIVE DATE OF THIS PARAGRAPH. S 3. Paragraphs (d), (f) and (g) of subdivision 5 of section 65 of the civil service law, as added by chapter 5 of the laws of 2008, are amended to read as follows: (d) Modifications of the plan. During the course of implementing the plan developed
[and], approved AND REVISED in accordance with paragraphs (b) [and], (c) AND (C-1) of this subdivision, if the DCAS employers determine that there is a need to modify the plan, they shall submit a request for modification of the plan to the state commission. Such request shall detail the circumstances that have arisen necessitating the request, including but not limited to unforeseen demands upon resources, unforeseen projected impacts upon the provision of public services, or a finding that implementation of any part of the plan is impracticable, unduly burdensome or otherwise likely to prevent the successful implementation of the plan or any aspect thereof. The state commission shall act upon the request for modification within sixty days. The state commission may in its discretion approve the modifica- tion, approve the modification with recommended changes, or disapprove the modification; provided, however, that if the state commission takes no action within such period, it shall be deemed to have approved the modification, and provided further that if the changes recommended by the state commission are not accepted by the DCAS employers within thir- ty days, the modification shall be deemed disapproved. Notwithstanding any inconsistent provision of this paragraph, where a modification is insubstantial, and will not materially affect the ability of the DCAS employers to [achieve timely substantial compliance with the time peri- ods permitted by this section]REDUCE THE NUMBER OF PROVISIONAL APPOINT- MENTS IN ACCORDANCE WITH PARAGRAPH (C-1) OF THIS SUBDIVISION, DCAS may so certify and the modification may be implemented and shall be filed by DCAS with the state commission within five business days. In the event that a request for modification is disapproved, the plan previously in effect shall remain in effect, provided that the DCAS employers may atS. 7810 3
any time submit a new proposed modification.
[Any modification approved pursuant to this paragraph may extend the duration of a plan to a date no more than one year beyond the five-year period authorized by para- graph (b) of this subdivision.](f) Time limitation. Notwithstanding any inconsistent provision of this chapter or any other law or rule to the contrary, the provisions of subdivision two of this section shall not apply to DCAS employers upon the effective date of the chapter of the laws of two thousand seven which added this subdivision, and during the timely submission, approval and implementation of a plan in accordance with paragraphs (b), (c) and (e) of this subdivision, AND OF A REVISED PLAN IN ACCORDANCE WITH PARA- GRAPH (C-1) OF THIS SUBDIVISION. The provisions of subdivision two of this section shall be applicable to any provisional employee serving in a position for which an appropriate eligible list has been established pursuant to such plan OR REVISED PLAN, unless such list is not adequate to fill all positions then held on a provisional basis or is exhausted immediately following its establishment. (g) Agreements governing disciplinary procedures. Notwithstanding any inconsistent provision of this chapter or any other law or rule to the contrary, any DCAS employer and an employee organization, as such term is defined in article fourteen of this chapter, may enter into agree- ments to provide disciplinary procedures applicable to provisional appointees or categories thereof who have served for a period of twen- ty-four months or more in a position which is covered by such an agree- ment. No such provisional employee shall be deemed to be permanently appointed under such circumstances, nor may such disciplinary procedures be deemed to preclude removal of an employee as a result of the estab- lishment of and appointments from an appropriate eligible list or in accordance with any other provision of law. Any such agreement may apply upon the effective date of [the]chapter FIVE of the laws of two thou- sand [seven which added this subdivision]EIGHT, and during the timely submission, approval and implementation of a plan in accordance with paragraphs (b), (c) and (e) of this subdivision, AND OF A REVISED PLAN IN ACCORDANCE WITH PARAGRAPH (C-1) OF THIS SUBDIVISION, and shall not apply to any provisional employee serving in a position for which an appropriate eligible list has been established pursuant to a plan approved in accordance with this subdivision unless such list is not adequate to fill all positions then held on a provisional basis or is exhausted immediately following its establishment. S 4. Sections 3 and 5 of chapter 5 of the laws of 2008, amending the civil service law relating to provisional employees of certain public employers, is amended to read as follows: S 3. Any agreement OR EXTENSION THEREOF entered into pursuant to para- graph (g) of subdivision 5 of section 65 of the civil service law, as added by section two of this act, may include protections for provi- sional employees who were covered, prior to the effective date of this act, by agreements similar to those authorized by such paragraph. Any agreement OR EXTENSION THEREOF entered into pursuant to such paragraph may include, but shall not be limited to, the appropriate arbitration, adjudication or other disposition of disciplinary or other matters concerning provisional employees that were pending on the effective date of this act. S 5. This act shall take effect immediately, and shall expire December 31, 2016 when upon such date the provisions of this act shall be deemed repealed.S. 7810 4
S 5. Section 2 of part I of chapter 56 of the laws of 2008, amending the civil service law relating to excess provisional employees of a city having a population of one million or more, is amended to read as follows: S 2. This act shall take effect immediately and shall expire and be deemed repealed December 31,
2016. S 6. If any section, subdivision, paragraph, clause, sentence, phrase or other portion of this act is, for any reason, declared unconstitu- tional or invalid, in whole or in part, by any court of competent juris- diction, such portion shall be deemed severable, and such unconstitu- tionality or invalidity shall not affect the validity of the remaining portions of this act, which remaining portions shall continue in full force and effect. S 7. This act shall take effect immediately; provided that the amend- ments to subdivision 5 of section 65 of the civil service law made by sections two and three of this act shall not affect the repeal of such subdivision and shall be deemed repealed therewith; and provided further, that the amendments to section 3 of chapter 5 of the laws of 2008 made by section four of this act shall not affect the repeal of such section and shall be deemed repealed therewith.