(b) Plan for provisional employees. Within sixty days after the
effective date of the chapter of the laws of two thousand seven which
added this subdivision, the DCAS employers shall be required to submit
to the state commission for its approval a single plan, to be
implemented within five years of its approval by the state commission,
to substantially comply with the time periods permitted by subdivisions
one, two, three and four of this section. For purposes of this
subdivision, "substantial compliance" shall mean that the total number
of competitive class positions of the DCAS employers filled by
provisional appointments that have continued beyond the periods
permitted by subdivisions one, two, three and four of this section shall
not exceed five percent. Such plan may include, but shall not be limited
to, a schedule for administration of examinations and establishment of
eligible lists, a determination of additional appropriate existing or
planned eligible lists that may be used, consolidation of titles through
appropriate reclassification, and any other lawful and appropriate means
of implementation. The plan shall be supported by appropriate
documentation 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.
(c) Approval by the state commission. Within one hundred twenty days
of submission of a plan by the DCAS employers, the state commission
shall approve the plan, approve the plan with recommended changes, or
disapprove the plan. If the state commission takes none of these actions
within such period, it shall be deemed to have approved the plan. At any
time when the state commission is considering a plan, the state
commission may request additional supporting documentation or
explanation. Pending the receipt of such supporting documentation or
explanation, the time period for state commission approval or
disapproval of the plan shall be tolled. The failure of the DCAS
employers to provide materially accurate information, or reasonably
available documentation or reasonable explanation upon request by the
state commission within sixty days, shall be grounds for disapproval of
the plan. If the changes recommended by the state commission are not
accepted by the DCAS employers within thirty days, the plan shall be
deemed disapproved. The state commission shall approve the plan if it
finds that, consistent with available resources and the need for
continuity in public services, such submitted plan provides a timely and
practicable implementation schedule in furtherance of the purposes of
this subdivision. In the event that a plan has been disapproved, a new
or modified plan shall be submitted to the state commission within sixty
days. The state commission shall within ninety days thereafter either
approve the new or modified plan, approve the plan with recommended
changes or disapprove the new or modified plan. If the changes to the
new or modified plan recommended by the state commission are not
accepted by the DCAS employers within thirty days, the plan shall be
deemed disapproved. If the state commission takes none of these actions
within such period, it shall be deemed to have approved the plan. At any
time when the state commission is considering a new or modified plan,
the state commission may request additional supporting documentation or
explanation. Pending receipt of such supporting documentation or
explanation, the time period for state commission approval or
disapproval of such new plan or modification shall be tolled. The
failure of the DCAS employers to provide reasonably available
documentation or reasonable explanation in relation to the new or
modified plan upon request by the state commission within thirty days
shall be grounds for disapproval of the new or modified plan.
Notwithstanding any inconsistent provision of this subdivision, this
subdivision shall no longer be in force and effect if no plan has been
approved by the state commission within eighteen months from the
effective date of the chapter of the laws of two thousand seven which
added this subdivision.
(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
documentation 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 recommended 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 eighteen months from the effective date of this
paragraph.
(c-2) Qualified incumbent examination.
(i) DCAS may administer a qualified incumbent examination ("QIE") for
appointment to any competitive title, consistent with subparagraph (ii)
of this paragraph, exclusively to current employees who, at the time of
application to take such examination, have served provisionally in such
title for two or more years. Provided that the employee taking such
examination shall meet the minimum educational and other specified
requirements set forth in the notice of examination for the title in
which he or she currently serves, as established by the DCAS employers,
an employee with two years of provisional service may be appointed from
the list resulting from such examination. Neither provisional service in
a title performed by an employee during a period of time in which there
existed an appropriate eligible list of candidates for the title, unless
such list was not adequate to fill all positions then held on a
provisional basis or was exhausted immediately following its
establishment, nor service in a temporary title established pending
proposed reclassification shall count toward such two years of
provisional service.
(ii) DCAS may administer a QIE only for those titles that are set
forth in section four of chapter four hundred sixty-seven of the laws of
two thousand sixteen, in section five of chapter four hundred nineteen
of the laws of two thousand eighteen, or in section five of the chapter
of the laws of two thousand twenty-one that amended this subparagraph;
provided, however, that DCAS shall not administer more than one QIE per
title.
(iii) DCAS shall not administer a QIE for any title for which (a) an
examination has been administered but an eligible list has not been
established, or (b) there exists an eligible list resulting from an open
competitive examination that contains three or more individuals.
(iv) A list resulting from a promotional examination for a title must
be exhausted before a list resulting from a QIE for that title may be
established.
(v) A list resulting from a QIE must be exhausted before an eligible
list resulting from an open competitive examination for that title may
be certified to any agency.
(vi) A person appointed from a list resulting from a QIE shall be
credited with the time he or she served provisionally in that title
toward the probationary period for that title up to a maximum of nine
months.
(c-3) 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
eighteen, to further reduce the number of provisional appointments that
have continued beyond the periods otherwise permitted by this section.
Such revised plan may additionally contain any elements or means of
implementation authorized by paragraph (b) of this subdivision. The
revised plan shall be supported by appropriate documentation 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
recommended 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 eighteen months from the effective date of this
paragraph.
(c-4) Additional plan revision 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 December thirty-first, two
thousand twenty-one, to further reduce the number of provisional
appointments that have continued beyond the periods otherwise permitted
by this section. Such revised plan may additionally contain any elements
or means of implementation authorized by paragraph (b) of this
subdivision. The revised plan shall be supported by appropriate
documentation 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 recommended 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 eighteen months from the effective date of this
paragraph.
(c-5) Additional plan revision for provisional employees. Within sixty
days after the effective date of the chapter of the laws of two thousand
twenty-one that added 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 December thirty-first, two
thousand twenty-three, to further reduce the number of provisional
appointments that have continued beyond the periods otherwise permitted
by this section, provided that the percentage goal for substantial
compliance otherwise specified in such paragraph shall be six and
one-half percent. Such revised plan may additionally contain any
elements or means of implementation authorized by paragraph (b) of this
subdivision. The revised plan shall be supported by appropriate
documentation 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 recommended 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 eighteen months from the effective date of this
paragraph.
(d) Modifications of the plan. During the course of implementing the
plan developed, approved and revised in accordance with paragraphs (b),
(c), (c-1), (c-3), (c-4) and (c-5) 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
modification, 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 thirty 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 reduce the number
of provisional appointments in accordance with paragraph (c-1), (c-3),
(c-4) or (c-5), as applicable, 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 at 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 two-year period authorized by paragraph (c-3)
of this subdivision.
(e) Plan implementation. Upon approval of a plan or any modification
thereof, such plan or modification shall be binding upon, and shall be
implemented by, the DCAS employers. If the state commission concludes
that the DCAS employers have failed to comply with their plan, the state
commission shall provide them with notice through DCAS of such finding,
including whether the failure is alleged to be persistent and material,
and thirty days to respond. If, upon review of such response, the state
commission concludes that the DCAS employers are still in
non-compliance, it shall so inform DCAS and may then in its discretion
take such measures as it deems necessary to bring about compliance,
including precluding one or more DCAS employers from making any
additional provisional appointments to positions directly related to the
finding of non-compliance, or taking such other measures, including
seeking equitable relief in a court action, as may be authorized by law.
In the event that the state commission has informed DCAS of a specific
finding of persistent and material non-compliance, then, in addition to
any other authorized measures, it may (i) preclude one or more DCAS
employers from making any additional provisional appointments to
positions directly related to the finding of persistent and material
non-compliance, or to positions in the particular city agencies, or
public entities other than the city, in which the persistent and
material non-compliance has been found, or (ii) revoke its approval of
the plan, or any part thereof. In the event of revocation of the plan,
this subdivision shall no longer have any force and effect. Where
applicable, enforcement remedies utilized by the state commission
pursuant to this paragraph shall be directed at the particular city
agency, or public entity other than the city, that the state commission
finds to have caused the finding of non-compliance.
(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 the DCAS employers
upon the effective date of chapter five of the laws of two thousand
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 revised plans in accordance with paragraphs (c-1),
(c-3), (c-4) and (c-5) 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 plans, 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
agreements to provide disciplinary procedures applicable to provisional
appointees or categories thereof who have served for a period of
twenty-four months or more in a position which is covered by such an
agreement. 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 establishment 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 chapter five of the laws
of two thousand 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 revised plans in accordance with paragraphs
(c-1), (c-3), (c-4) and (c-5) 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.
(h) (i) If the DCAS employers are not in substantial compliance with
the time periods permitted by subdivisions one, two, three and four of
this section by December thirty-first, two thousand twenty-three, as set
forth in the report submitted by DCAS pursuant to subparagraph (ii) of
this paragraph, then an advisory workgroup for provisional appointments
in the city of New York ("advisory workgroup") shall be established. The
advisory workgroup shall consist of six members, one of whom shall be
appointed by the governor, one of whom shall be appointed by the speaker
of the assembly, one of whom shall be appointed by the temporary
president of the senate, two of whom shall be appointed by the mayor of
the city of New York, including one recommended by the citywide
bargaining representative, and one of whom shall be appointed by the
commissioner of the New York city department of citywide administrative
services (DCAS). The advisory workgroup shall be chaired by a member
designated by the mayor. The advisory workgroup shall submit to the
governor, the state legislature and the mayor a single recommended plan
for the DCAS employers to substantially comply with the time periods
permitted by subdivisions one, two, three and four of this section, to
be adopted by or pursuant to state legislation. For the purposes of this
paragraph, "substantial compliance" shall have the same meaning as
provided in paragraph (b), as modified by paragraph (c-5) of this
subdivision. Such recommended plan may include, but shall not be limited
to, a schedule for administration of examinations and establishment of
eligible lists, a determination of additional appropriate existing or
planned eligible lists that may be used, consolidation of titles through
appropriate reclassification, and any other lawful and appropriate means
of implementation. The recommended plan shall to the extent practicable
be supported by appropriate documentation and explanation.
(ii) DCAS shall submit a progress report to the governor, speaker of
the assembly, temporary president of the senate and the mayor of the
city of New York no later than December thirty-first, two thousand
twenty-two. Such report shall contain numbers that are as current as
practicable and shall include the total number of provisional
appointments remaining, the number of provisional appointments that have
been reduced, the number of provisional appointments that still need to
be reduced in order to achieve substantial compliance as provided by
paragraph (b) of this subdivision, and a statement of whether DCAS
believes substantial compliance with the timeframes permitted by this
section as provided by paragraph (b) of this subdivision can be achieved
by December thirty-first, two thousand twenty-three.
* NB Repealed December 31, 2023
* 6. Costs. For purposes of this subdivision, the term "DCAS
employers" shall have the same meaning as that term is defined in
subdivision five of this section. The department is hereby authorized to
charge the city of New York for the services and costs associated with
approving and monitoring any plan submitted by the DCAS employers. No
later than December first, two thousand eight and each year thereafter,
the department shall estimate the amount necessary, for the entirety of
that state fiscal year, to reimburse the department's costs related to
the review of such plan, and shall submit the estimated costs to the
department of city administrative services not to exceed six hundred
thousand dollars. The city of New York shall pay such estimated costs to
the department by December fifteenth, two thousand eight and each year
thereafter. To the extent, in any year, actual costs for the state
fiscal year differ from those estimated by the department and paid by
the city of New York, the variance shall be reflected as an additional
charge or a credit within the estimated costs submitted by the
department in the following year, so long as the total amount payable to
the department for any year's cost does not exceed six hundred thousand
dollars. The city of New York may charge any DCAS employer that is not
an agency of the city of New York a share of the costs the department
charged to the city under this subdivision. The percentage of costs that
may be charged to any DCAS employer shall be determined based on that
employer's share of the total number of competitive class positions
filled by provisional appointments reflected in the most recent
department of city administrative services plan submitted under
subdivision five of this section. In the event the city of New York
shall not have made such required payments by December fifteenth, two
thousand eight and each year thereafter, the commissioner shall certify
the unpaid amount to the state comptroller, and the comptroller shall,
to the extent not otherwise prohibited by law, withhold such amount from
the next succeeding payment of per capita assistance to be apportioned
to the city of New York.
* NB Repealed December 31, 2023