Two of Albany’s most-vetoed concepts are headed toward Governor Hochul’s desk, this time concealed as a “firefighter bill of rights.”
The bill (A9614/S8481) would require local governments outside New York City to hire an “independent hearing officer” any time officials want to discipline a firefighter. The cost would be divided evenly between the employer and the charged employee, though the officer would have discretion to assign a greater share of the cost to one side as a penalty for frivolous charges or bad-faith defenses.
Lawmakers approved the measure almost unanimously in June during the final hours of the legislative session (the lone “no” vote was Assemblyman Mike Fitzpatrick of Suffolk County).
Under current law, when municipal leaders want to fire, suspend, or otherwise discipline an employee, he or she is guaranteed due process through New York’s long-standing civil service rules. The employer, after serving notice on the employee, selects an individual to preside over a disciplinary hearing where evidence is presented and witnesses are examined. The hearing officer, who can be a department head working for the same employer, then decides whether to sustain the employer’s charges and, if so, the penalty. (This process is often modified under union contracts.)
That arrangement, bill sponsors argue, is a “conflict of interest” that is “inherently unfair to employees.” An “independent” hearing officer would presumably be less likely to favor the employer, who also acts as the prosecutor.
But the proposed change would arguably make for an “unfair” scenario both for employers and employees: employers would face a new cost that discourages them from taking disciplinary actions. The hearing officers envisioned in the bill typically charge at least $1,500 per day of preparation, hearings, and decision-writing, plus mileage, meals, and lodging.
The prospect of getting slammed with thousands of dollars for hearing costs, meanwhile, would make wrongfully accused employees more likely to accept settlements instead of exercising their due-process rights.
If Hochul vetoes the bill, variants of this idea will have been turned back by six consecutive New York governors. A broader version was rejected twice, in 1993 and 1994, by Governor Mario Cuomo, four times between 1997 and 2006 by Governor Pataki, by Governor Spitzer in 2007, by Governor Paterson in 2008 and by Governor Andrew Cuomo in 2017. That most recent proposal would have affected most school district and local government employees.
Narrowing the hearing-officer requirement down to only firefighters outside New York City appears to be an attempt to make it more politically palatable, both by focusing on a widely respected profession and by avoiding further opposition from foes such as school boards and New York City mayors.
But the second half of the “firefighter’s bill of rights” contains an interesting twist, one that would mean few firefighters would ultimately be affected by the first half. The legislation would require employers to negotiate with firefighter unions over how the disciplinary process works.
Most unionized public employees in New York have language in their contracts that controls the discipline process, which can range from outlining the procedure for how an employee is questioned to whether they must be paid when charges are pending to whether the final decision on terminations or suspensions is made by an elected official or by an unelected arbiter. This is to say that discipline matters are subject to negotiation under the Taylor Law, New York’s public-sector collective bargaining law.
But courts have recognized a narrow exemption to discipline under the Taylor Law, allowing certain municipalities with ordinances and charters predating the Taylor Law to preserve their discipline powers instead of being forced to negotiate them.
When public-sector unions are able to negotiate over discipline, they tend to demand that the process end not with a neutral hearing officer but rather with an arbiter who the union has a hand in selecting, mainly because arbiters recognize that being seen as “too tough” on labor makes them less likely to get hired.
In Syracuse, for instance, the arbitration process in recent years kept the city from firing firefighters who had been convicted of assault, disseminated photographs of their genitals, or concealed a fatal hit-and-run, among other things.
This new “firefighter bill of rights” would void language in local charters and ordinances that give local mayors and appointed commissioners the final say in disciplinary matters for local fire departments.
This is an interesting twist because the bulk of litigation over this subject has pertained to police officers, not firefighters. In Syracuse, both the police and firefighter unions have argued that disciplinary powers in the city charter should be pre-empted by the Taylor Law.
Voiding local discipline powers for firefighters, however narrowly, would fuel simmering efforts to do the same for police officers in the name of parity—something that police unions have pushed for repeatedly since 2006, when the Court of Appeals issued the first in a recent series of decisions that upheld the powers of the New York City police commissioner, town supervisors and certain mayors to ignore contractual discipline rules.
Governor Cuomo in late 2014 pocket-vetoed a measure that would have overruled any local provision vesting discipline powers in mayors or others. He became the fourth governor in a row to turn back such an effort since Governor Pataki in 2006 first vetoed similar legislation.
The “firefighters bill of rights” push reflects a common tactic by New York’s public-sector unions to insist that virtually all matters pertaining to employment should be settled by negotiation—while simultaneously getting friendly lawmakers to change state law and raise the floor for those negotiations. What’s remarkable about this case is that the unions are doing both in a single bill, while making instantly refutable claims that everything related to discipline should be negotiated.
The firefighter unions could make the case that the Legislature should make discipline rules subject to negotiation, and then—at the bargaining table—negotiate for the use of an independent hearing officer. Instead, they’re looking to use their influence in Albany to get both more bargaining power and a stronger position from which to bargain.
If Hochul signs this legislation, a chorus of public-sector unions will instantly demand equal treatment, with police clamoring to make discipline negotiable and other municipal employees looking to add “independent hearing officers” speedbumps to their disciplinary processes.
The bill should be rejected, if for no other reason, because it constitutes a cynical and dishonest push by public-sector unions to use raw political power to further tilt the bargaining tables in their favor. The fact that it would make it more difficult to remove bad actors from such important and trusted roles raises the question of what poor reasoning—or political calculations—led lawmakers to send it to Hochul’s desk in the first place.