CJS-52-15-00018-A Basic Course for Correction Officers

4/6/16 N.Y. St. Reg. CJS-52-15-00018-A

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 14

April 06, 2016

RULE MAKING ACTIVITIES

DIVISION OF CRIMINAL JUSTICE SERVICES

NOTICE OF ADOPTION

 

I.D No. CJS-52-15-00018-A

Filing No. 341

Filing Date. Mar. 22, 2016

Effective Date. Apr. 06, 2016

Basic Course for Correction Officers

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of sections 6018.3, 6018.6, 6018.7 and 6018.9 of Title 9 NYCRR.

Statutory authority:

Executive Law, sections 837-a(9) and 840(2-a)

Subject:

Basic Course for Correction Officers.

Purpose:

Set forth minimum standards/clear and specific requirements of a basic course for correction officers.

Text or summary was published

in the December 30, 2015 issue of the Register, I.D. No. CJS-52-15-00018-P.

Final rule as compared with last published rule:

No changes.

Text of rule and any required statements and analyses may be obtained from:

Natasha M. Harvin, Esq., NYS Division of Criminal Justice Services, Alfred E. Smith Building, 80 South Swan Street, Albany, New York 12210, [phone], email: [e-mail]

Initial Review of Rule

As a rule that does not require a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2021, which is no later than the 5th year after the year in which this rule is being adopted.

Assessment of Public Comment

After consultation with the State Commission of Correction (SCOC) pursuant to Executive Law § 837-a(9), the Division of Criminal Justice Services (DCJS) formally proposed amendments of 9 NYCRR § § 6018.3, 6018.6, 6018.7 and 6018.9. A Notice of Proposed Rule Making was published in Issue 52 of the State Register on December 30, 2015 under I.D. No. CJS-52-15-00018-P. DCJS accepted public comments through February 15, 2016. There was one issue raised.

Purpose: Chapter 491 of the Laws of 2010 amended Criminal Procedure Law (CPL) 2.30 to eliminate mandated initial firearms training for peace officers, including correction officers, who are not permitted by their employer to carry or use a firearm on-duty. The proposed rule would conform to CPL 2.30. In addition, the proposal would allow an employer to request a one-year extension for completion of the Basic Course for Correction Officers based on exigent circumstances. This amendment would also be consistent with the language in 9 NYCRR Parts 6020, Basic Course for Police Officers; and 6025, Basic Course for Peace Officers.

Comment: CPL § 2.30(2) provides that “no person appointed as a peace officer shall exercise the powers of a peace officer, unless he or she has received such certification within twelve months of appointment.” While Executive Law § 837-a(9) allows the Commissioner [of DCJS] to extend the one year training deadline, it doesn’t appear to similarly extend the authority to exercise peace officer powers.

Response: DCJS disagrees. There may be exigent circumstances that prevent an officer from completing the Basic Course for Correction Officers within 12 months of appointment. The proposal would allow an employer to request a one-year extension for completion of the course based on such exigent circumstances. Illustrative of exigent circumstances are: the correction officer’s inability to complete a basic course for health reasons; or the temporary unavailability of a training program within a reasonable distance from the officer’s place of employment.

Further, Military Law § 242(4) provides that a public officer or employee who is absent from his or her employment while engaged in the performance of ordered military duty shall not be “subjected, directly or indirectly, to any loss or diminution of time service, increment, vacation or holiday privileges, or any other right or privilege, by reason of such absence, or be prejudiced, by reason of such absence, with reference to continuance in office or employment, reappointment to office, re-employment, reinstatement, transfer or promotion.” If an officer is unable to exercise his or her peace officer powers, one can argue that that would diminish his or her employment rights and prejudice his or her continuation in employment in violation of Military Law § 242(4) (see, also, Hogan v. New York State Office of Mental Health, 115 A.D.2d 638, 496 N.Y.S.2d 299 [2 Dept.,1985] [“Military Law § 242[4] proscribes the diminution of a public employee's employment rights by reason of the employee's absence pursuant to ordered military duty.”]).

In the alternative, SCOC suggested that DCJS only allow extensions if required by law. However, for consistency, as noted above, DCJS believes that an exigent circumstance should also include health reasons and the unavailability of a training program within a reasonable distance.

Accordingly, and based upon the assessment of the foregoing comments, DCJS will not make any changes to the proposed rule.