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New York Civil Service Law Sections 75 and 76 Proceedings
New York Civil Servants have varying degrees of protections in the disciplinary context. For instance, when an employer wants to punish a permanent Civil Servant for misconduct or incompetence, the employee may have the right to challenge the allegations through a Section 75 Proceeding. In a proceeding of this nature, permanent Civil Servants are entitled to be served with charges notifying them of the underlying allegations, discovery of evidence, and the ability to call their own witnesses, and challenge the witnesses and evidence put forth by the employer.
After the administrative law judge has presided over a Section 75 Proceeding, he or she 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.
On that note, permanent Civil Servants may challenge any penalties ultimately imposed by the employer either through a Civil Service Law Section 76 Proceeding or a CPLR Article 78 Special Proceeding.
Civil Service Law Section 72 and 73 Proceedings
The Civil Service Law provides that New York governmental entities may not move to terminate permanent civil servants, believed by the agency to be so medically unfit that they cannot their official duties, without first providing minimum due process protections. In practice, this means that when an employer moves to terminate in this context, it must provide notice, by personal service where possible, informing the civil servant that it is seeking to terminate him/her and the reasons for its actions. Additionally, permanent civil servants enjoy the right to challenge the employer’s efforts at termination through a Section 72 or 73 Proceeding.
At such proceedings, the employer has the burden of proof, and permanent civil servants have the right to introduce their own evidence, including medical experts, to show that they are capable of performing the job functions at issue. The employer’s case is heard by an administrative law judge that issues a finding. This finding may be appealed by the civil servant.
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