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There are NYPD Oversight Measures on the Ballot - How Significant are They?

police academ gra

(photo: Michael Appleton/Mayoral Photography Office)

New York City may soon take several steps toward strengthening the power of the Civilian Complaint Review Board, or CCRB, the agency responsible for investigating misconduct allegations against police officers.

Voters have the opportunity to approve or reject a package of CCRB-related measures on this fall’s ballot, just months after the Board played a consequential role in the high-profile trial of Officer Daniel Pantaleo, resulting in his firing by NYPD Commissioner James O’Neill.

The 2019 New York City Charter Revision Commission has placed five “yes” or “no” questions on this fall’s ballot, one of which includes five proposed CCRB reforms. Perhaps the most controversial of the five is expanding the jurisdiction of the Board to include investigating some instances of suspected lying by police officers. It is a step police reform advocates say is important but which has limitations that illustrate the city’s caution toward tightening the reins on police misconduct.

The ballot question, which will be the second of the five presented to voters during early voting or on Election Day, also includes expanding the size of the Board and changing certain appointment processes; giving the CCRB a budget large enough to hire staff of a certain size relative to that of the NYPD force; providing the CCRB executive director subpoena power; and requiring that the police commissioner provides written explanation to the CCRB when the commissioner “intends to depart or has departed from discipline recommended by the CCRB” or by one of the NYPD’s top internal trials officials.

The proposals, which will pass or fail together, could significantly impact the performance of the Board in its work to hold officers accountable in cases of alleged excessive force, abuse of authority, and other specifically-outlined examples of possible misconduct. They are being put before voters, along with other changes to city elections and governance, during what is expected to be a very low-turnout election and amid heightened attention, both in New York City and nationally, toward police misconduct, transparency, and consequences for officers who break their pledge to protect and serve the public.

In sum, the reforms amount to changes that CCRB officials and police accountability watchdogs believe would help the board operate more efficiently and independently.

“I think on the whole they are good for the agency and will help to advance civilian oversight of certain disciplinary aspects of the NYPD, those that fall within our jurisdiction,” said Fred Davie, the chair of the CCRB appointed by Mayor Bill de Blasio, in an interview with Gotham Gazette.

The CCRB is a police oversight agency made up of civilians that falls outside the NYPD but is part of the disciplinary framework for officers accused of certain kinds of misconduct. Agency staff and the Board it reports to are empowered by the City Charter to investigate complaints of officers using unnecessary force or abusing their authority as police and recommend discipline to the police commissioner.

Davie said there has not necessarily been a proliferation of false statements made by officers during the course of the Board’s investigations, “but where there might be, we should be able to investigate that and then work out the appropriate discipline to recommend to the police commissioner.” That power is currently beyond the Board’s reach.

The false official statements provision is the only one that actually expands the Board’s jurisdiction. The rest have to do with CCRB operations, though they also have the potential for significant impact.

On the proposal related to guaranteeing a CCRB budget tied to NYPD headcount, Davie said it will provide a baseline in budget negotiations and “increase the agency’s stability and effectiveness.”

The proposed changes to the size of the Board and structure of appointments to it would limit the influence of the mayor -- who also appoints the police commissioner -- and give the City Council far more power in selecting appointees, including the chair. It would also add an appointee by the public advocate.

The Charter Revision Commission this year was chaired by an appointee of City Council Speaker Corey Johnson, and was balanced with other appointments made by the mayor, public advocate, comptroller, and borough presidents, with no one authority having a majority (though all but one are Democrats). It tackled a wider range of charter issues in its public hearings than previous commissions appointed by mayors, including some targets that have never before been touched.

The commission ultimately came up with 19 proposals in the form of five ballot questions dealing with elections, the CCRB, ethics, the city budget, and land use, all of which are expected to be approved by voters. There has been little public push for or against any of the five sets of reforms, other than a coalition organized to seek passage of ranked-choice voting for certain city elections, which will be question one on the ballot.

The potential changes to police oversight, many of which have long been supported by reformers, are modest enough to have avoided a concerted public effort to defeat the proposals, particularly from the labor unions representing NYPD officers. The Police Benevolent Association, the largest police officer union, did not return a request for comment for this article.

False Official Statements
“The proposed reform related to the CCRB obtaining authority to prosecute officers who lie during the investigation process is by far the most important charter amendment for voters to look for this [fall],” said Cynthia Conti-Cook, an attorney at Legal Aid Society with experience litigating police transparency matters.

The CCRB was established in its current all-civilian form (former NYPD officers are regularly appointed by the police commissioner) in 1993 to investigate complaints made against officers from outside the NYPD. Over the years its budget has increased and its authority expanded to allow it to prosecute substantiated cases in a police trial setting.

Its jurisdiction is restricted to “FADO” -- unnecessary force, abuse of authority, discourtesy, and offensive language -- complaints, which must be made by civilians in order to be investigated. The charter amendments would, among other things, expand that jurisdiction to include lying to CCRB investigators.

But the reform does have significant limits. It applies only to the police officer(s) originally under investigation and not to any other officers who may provide false testimony related to the inquiry. Even if the CCRB has proof that an officer lied to its investigators, it has no ability to initiate a new case on the matter.

This means that police witnesses who lie to protect a colleague under investigation or to shield their own behavior, when not the subject of an ongoing investigation themselves, can do so without recourse from the CCRB.

Currently, when the CCRB has evidence of an officer lying, it refers the case to the NYPD’s internal affairs bureau where it gets dealt with out of public view. Because of a provision in the state’s Civil Rights Law known as Section 50-a, any discipline issued by the police department, including any action against dishonest officers, is sealed.

Limits of CCRB Proposals
Gail Benjamin, the chair of the Charter Revision Commission that created the ballot proposals, told Gotham Gazette the body was limited in how much it could expand the authority of the CCRB to investigate misconduct because of a catch-22 involving the complaint-initiated nature of the agency’s mandate.

“Because the CCRB can only investigate based on a complaint and a complainant, if there are other officers, somebody else would have to complain about them in order for the CCRB to have jurisdiction. Their jurisdiction, as I said, is only over FADO and other officers would be outside of that," she said in an interview.

A State Supreme Court ruling from February determined that the City Charter barred the CCRB from initiating an investigation or gathering evidence without first receiving a complaint. But because this is an issue of the City Charter and not state law, the Charter Revision Commission had the authority to deal with it.

“To the extent that that is a limitation of the Charter then the Charter Revision Commission could have looked at altering those provisions in order to expand the CCRB’s mandate, but didn’t in this case,” said Michael Sisitzky, lead policy counsel at the New York Civil Liberties Union (NYCLU), in an interview. He said he is not aware of any state law that would prevent the CCRB from beginning an investigation without a civilian complaint.

“I can't say that that was an issue that came up. What came up was how to affect the greatest change. I'm not sure what would have happened if it had,” said Benjamin.

“I'm not sure we would even have the jurisdiction,” she added. “It's a very complicated question to change and pull out one thing."

“I think to me the emphasis was on materiality,” Carl Weisbrod, a commissioner appointed by de Blasio, told Gotham Gazette in a brief interview. “The person who is being looked at at the CCRB is the officer who is under investigation, and that I think was the rationale.”

‘We haven’t seen that willingness’
The commission’s relatively narrow expansion of the CCRB’s jurisdiction is in some ways characteristic of the history of resistance to bringing police oversight outside of the purview of the police department itself.

From the early days of investigating civilian complaints in the mid-1960s when the powerful Patrolmen’s Benevolent Association fought to keep the function within the NYPD, to earlier this year when Gotham Gazette reported on the secret effort by de Blasio administration officials to lobby commissioners to scuttle the provision related to officer lying -- attempts to create a police accountability framework independent of the NYPD has met resistance. Only after a second vote and a change of heart this year did the commissioners move to place false official statements on the ballot in its circumscribed form.

Other measures sought by police reformers never made it onto the ballot. Things like bringing school safety agents and other peace officers under the jurisdiction of the CCRB were proposed but never taken up. High on the list for reform advocates was codifying the CCRB’s administrative prosecutorial unit (APU), through which the CCRB prosecutes cases of misconduct when the Board is seeking the highest forms of discipline.

Currently governed by a memorandum of understanding, the CCRB’s APU provides a layer of oversight that can have large consequences. It was the APU that brought charges against Officer Pantaleo for Garner’s death, which led to a guilty verdict by the NYPD trial judge and Commissioner O’Neill to dismiss Pantaleo from the force this summer.

Only one provision in the APU agreement was picked up by the Charter Revision Commission to be codified in the Charter despite advocates pushing for more. Under the proposed amendments, the police commissioner will be required to explain in writing to the CCRB in any instance when deviating from a disciplinary recommendation, as is currently required under the memorandum of understanding.

“I think it’s disappointing on the one hand that we haven’t seen that willingness to take on expanding the CCRB’s mandate,” said Sisitzky, especially on the issue of peace officers and on strengthening the board’s “ability to actually make discipline stick.”

“But I don’t want that to take away from the fact that there are important changes being proposed to the CCRB as part of this ballot measure that we support and want to see enacted,” he said.

Layers of Accountability
To reform advocates, the changes made to give the CCRB greater sway in the Sity Charter are important but limited in their impact because state law gives the police commissioner the ultimate authority to discipline members of the force.

“The CCRB is ultimately not given more teeth in terms of being able to enforce penalties, but allowing an independent agency to conduct investigations into false statements made to that agency is still an important way for the agency to have increased authority to hold officers accountable,” said Sisitzky.

NYPD officials have expressed concerns about the package of amendments and said that the system of referring cases of misconduct to the department’s internal affairs team works well, especially in instances of false official statements. “Currently, the CCRB has been integrated into this framework and makes referrals to Internal Affairs when it suspects an officer has made a false statement during its investigation,” wrote Al Baker, the NYPD’s director of media relations, in an email.

“Going forward, it is imperative for the integrity of our criminal justice system that a uniform standard remain in place when assessing the serious issue of officer credibility," Baker added.

According to police reform advocates, however, the current system is not doing enough to curtail police lying to the CCRB. “The fact that false statements made it into the ballot is incredibly important because false statements are given in almost every police killing and misconduct case our members have worked on,” said Joo-Hyun Kang, director of the advocacy coalition Communities United for Police Reform, in an interview.

Over 130 cases of police making false official statements to CCRB investigators were referred to the NYPD between 2014 and 2018 (nearly half of which occurred in 2015 alone), according to a report provided by the CCRB. That figure includes only the cases where the CCRB had enough evidence to prove an officer lied without initiating a separate investigation into the matter.

Officer credibility is also a concern for New York City prosecutors, who often rely on police testimony at trial. WNYC reported in April that district attorneys in all five boroughs kept files of police dishonesty and Bronx DA Darcel Clark recently released a large portion of her office’s files to Gothamist following a Freedom of Information request.

City Council Member Joe Borelli, a Republican representing parts of Staten Island and a candidate this fall for New York City Public Advocate, is opposed to expanding the authority of the CCRB in many ways, saying he’s voted against giving the agency the power to prosecute misconduct and supports limiting the scope of “what it can do unilaterally against police officers.” Borelli told Gotham Gazette he would be voting against the CCRB ballot proposals.

But he backs the measure to allow the CCRB to pursue cases of police lying, he said. “If that was a stand-alone bill I’d probably support that,” he said in an interview.

“Because what is the point of having a court if you can’t validate a statement people make while they are swearing...before it. That to me is not a problem,” he said.

Layers of Obfuscation
In the interview, Borelli ruminated on whether police witness testimony in CCRB investigations was that important. “With all the video evidence we have now of most incidents with body cameras, usually the fact pattern is pretty established,” he said.

But establishing the facts through video evidence is a difficult task for the CCRB, Board representatives have said, and one that has led agency officials to push for other reforms on the ballot.

CCRB Executive Director Jonathan Darche testified before the Charter Revision Commission in March about the need for the agency’s highest ranking staff to have subpoena power. Currently, the CCRB chair can sign subpoenas after a vote of the Board, at times creating a period during which material evidence may be lost.

Many of the subpoenas the Board issues are to government agencies or businesses for evidence, especially video surveillance, which don’t necessarily have a system for preserving recordings, according to Davie, the Board’s chair. The Charter Revision Commission proposal will allow the CCRB to delegate its subpoena power to the executive director so the agency can more quickly respond to and acquire potential evidence.

The CCRB also has trouble obtaining body-worn camera footage from the police department, noted CCRB communications director Colleen Roache, despite the Charter-mandated duty to cooperate with the Board’s investigations. Since the complete rollout of body-worn cameras to NYPD patrol officers in March, month-to-month between 29 and 37 percent of CCRB investigations have pending footage requests with the NYPD. Roughly 13 percent of cases are pending for more than 90 days. The NYPD has not put forth publicly any formal policy for releasing body camera footage to the CCRB or the public at large.

“The step that has been taken helps,” Davie told Gotham Gazette, referring to the false statements ballot proposal. “It’s a step in the right direction, and if expanding it makes our ability to do our job better then of course we would not be opposed to that.”

Another layer of obfuscation is Section 50-a, the part of state law that prevents public disclosure of police disciplinary records, which the Charter Revision Commission does not have the power to suggest changing via ballot referendum. Because of Section 50-a, the public has no ability to see the outcome of CCRB investigations, even when it substantiates complaints of misconduct.

“If we should ever be able to repeal 50-a, [the false official statements amendment] might even add a little more transparency,” said Davie. Davie has never taken a public position on Section 50-a “other than recognizing the challenges it poses to the agency,” according to a CCRB spokesperson, but he will be testifying at a State Senate hearing on a bill that would repeal the law taking place in Manhattan on Thursday.

Amending the City Charter to allow the CCRB to go after officers under investigation who lie, he believes, will enhance the agency’s abilities to serve its mandate. “I think that it adds integrity to the process. It adds another level of accountability,” he said of what the commission has proposed.

by Ethan Geringer-Sameth, reporter, Gotham Gazette

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