A state Senate committee on Wednesday approved legislation weakening the ability of local government and school officials to discipline workers by extending tenure-style privileges to virtually every public employee outside New York City.
Under the generations-old civil service law, a typical employee facing discipline is guaranteed written notice of charges and a hearing before someone to whom he or she does not directly report. Evidence is presented, witnesses are questioned and cross-examined, and hearing officers make a recommendation to the manager, who has the final say on whether and how to discipline the employee.
All seven members of the Civil Service and Pensions committee voted (three by proxy) without debate to advance S1039, which was sponsored by committee chair Sen. Robert Jackson of Manhattan and would place major hurdles—and two big costs—between officials and that decision.
It would require agencies and municipalities to hire an arbitrator any time they want to discipline an employee, and requires them to pay a “normal and customary” fee. Given the time needed to prepare for a hearing, oversee proceedings, and write a decision, it means even the smallest village or town would be looking at thousands of dollars in arbitration costs any time it needed to discipline (but not terminate) an employee. The sponsor memo, meanwhile, falsely says the bill would have no fiscal impact on local governments.
The legislation would also make employers keep people on paid leave unless they have plead guilty or been convicted of drug-related crimes. When an employee is suspended, municipalities generally incur overtime or other added costs to cover that individual’s shifts or duties. This bill would essentially make them pay double, if not more, for the duration of the suspension, which the law would limit to 30 days, at which point employers would have to let them return to work regardless of the seriousness of the charges. The hired arbitrator could also throw out evidence if an undefined “reasonable period” isn’t allowed between the notice of discipline and the hearing.
Like Tenure, Only Worse
The changes imagined by S1039 would make the employee discipline process like New York’s notorious teacher-tenure rules that make it difficult and expensive to discipline school professionals. And backers don’t make any bones about this push for “conformity”: the sponsor’s memo says the legislation is designed to “ensure the same due process” for other public employees.
Teacher tenure doesn’t take effect until at least three years on the job and a recommendation from an administrator. S1039, on the other hand, would kick in as soon as employees were no longer “provisional”—which can happen after a matter of weeks.
Even teacher-tenure rules let administrators bypass the process in cases involving physical abuse of a minor. Under this proposal, a school bus driver caught on tape molesting an elementary school student could continue getting a paycheck until a hearing officer could be selected, a hearing could be convened, and a decision handed down.
In serious cases, S1039 would create incentives for local officials to negotiate settlements behind closed doors, letting wrong-doers move on to another school or municipality without the public knowing what happened. A 2018 survey by the New York State School Boards Association found a third of school leaders declined to pursue discipline charges because of the cost and difficulty of dealing with the similar § 3020-a system for educators.
The bill would also deter officials from bringing charges altogether in less serious cases, grinding away management’s ability to police behaviors like tardiness or sleeping at work that make government service delivery less efficient. New York’s civil service system already stands apart from private-sector norms: requiring every department head to go through an arbitration process in order to issue a letter of reprimand would make New York government offices unrecognizable.
Similar proposals have floated around Albany since 2004, and a version of the bill passed the Senate in 2019. The measure is a priority for public employee unions under pressure to deliver results for the tens of thousands of local government and school district employees, who the unions can no longer force to pay them.
State lawmakers intent on doing the union’s bidding here will need to be especially creative to concoct any semblance of an upside for taxpayers—and to recognize in advance that the downsides will be quite grisly.