Gotham Gazette https://www.gothamgazette.com/component/tags/tag/1747 Fri, 05 Mar 2021 10:52:06 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) The Attorney General’s Lawsuit Against the Mayor and NYPD is a Needed Option https://www.gothamgazette.com/130-opinion/10153-attorney-general-lawsuit-against-mayor-nypd-needed https://www.gothamgazette.com/130-opinion/10153-attorney-general-lawsuit-against-mayor-nypd-needed depart over cere

The Mayor and PC Shea (photo: Michael Appleton/Mayor's Office)


Last month, New York Attorney General Letitia James filed a groundbreaking lawsuit against the City and the NYPD “to end the pervasive use of excessive force and false arrests by the NYPD against New Yorkers in suppressing overwhelmingly peaceful protests.” The suit was in response to the NYPD’s use of force at last summer’s racial justice protests. The complaint alleges multiple examples of excessive force, and presents a detailed critique of the NYPD’s handling of both the summer protests and many other peaceful protests that came before.

Litigation seeking systemic reform is a long and messy process and should never be a first resort. But because Mayor de Blasio has consistently refused to make necessary reforms to the NYPD even when given specific roadmaps about how to do so, litigation is now the most promising option on the table. Indeed, as the Attorney General’s complaint points out, nothing short of a federal monitor has yet to change the Department’s behavior in this area. To that end, the complaint alleges that the NYPD has engaged in unlawful practices against peaceful protests for years and failed to voluntarily take corrective action despite multiple warnings in the form of reports and lawsuits. A failure the Mayor and Police Commissioner now concede.

We have seen this process play out in similar circumstances ourselves. For five years we ran the City’s Department of Investigation, which oversees the NYPD’s Inspector General. During that time, we issued several reports on systemic failures that were largely brushed aside by the NYPD’s top leadership and the Mayor. Most importantly, in 2018 we issued a Report that demonstrated that the NYPD repeatedly failed to properly investigate sexual assault and continuously failed to properly staff and train the officers responsible for these investigations. Despite the Report, and despite the protests and City Council hearings it fostered, the NYPD failed to take action on its most central recommendations.  

Moreover, these were not new problems. During our investigation into the Special Victims Division, we discovered that an internal 2010 report had come to the same training and staffing conclusions and thereafter there had been repeated complaints from the head of the unit about these problems. So, the NYPD had been ignoring these issues for at least eight years. The Mayor and Police Commissioner were unwilling to insist on key police reforms, even where rape cases were often poorly investigated or at times not investigated at all. According to the NYPD IG’s most recent Annual Report issued last year, over half of DOI’s recommendations regarding investigation of sexual assault remain unimplemented.

Another example – which has disturbing echoes of the problems identified by the Attorney General in her lawsuit – involves the NYPD’s reporting on use of force. In a lengthy Report in 2018, DOI found that the NYPD, despite promises to the contrary, was failing to properly monitor, track, and report on the use of force by its officers. Specifically, although the NYPD had created a Threat, Resistance or Injury (TRI) form to track use of force, too often officers either failed to fill out the form or did so improperly. Again, the Police Commissioner and the Mayor refused to make significant changes – as of the most recent reporting by the NYPD IG, over half of the recommendations have still not been fully implemented.

Indeed, according to the most recent Annual Report from the NYPD IG, just slightly over half of all recommendations made since 2014 by DOI to the NYPD have been fully implemented. And these recommendations themselves were the subject of extensive discussions between the IG and the Police Department before they were ever published. They are not recommendations issued in a vacuum without consideration of the realities of modern policing.

None of this is intended as an overall indictment of the 36,000 officers in the NYPD – the vast majority of whom do a difficult job exceedingly well. Indeed, calls to defund the police miss the mark and will not result in necessary reforms. We do not need a vastly smaller police force; we need a police force that reforms certain specific dangerous and unconstitutional practices. A federal monitor of, rather than defunding, the police is the best way to get there.

Two arguments have been raised in opposition to the Attorney General’s lawsuit: First, that the NYPD already has multiple monitors and second, that last summer’s protests presented a volatile situation that was difficult to police. While both statements are true, neither, as an argument, should prevail. As to the first, while there are multiple NYPD monitors, none, in this area, have the backing of a federal court and thus the NYPD has felt free to disregard the monitors’ recommendations. As to the second, policing protests is certainly difficult; however, that is exactly why it requires proper training and must be done correctly.

It is important to acknowledge that the monitor sought here would only deal with the one issue raised in the Attorney General’s lawsuit. Nevertheless, monitorships have been powerfully effective in the past, most recently in reducing the use of stop-and-frisk. A monitorship here could give the hardworking officers in the NYPD the tools they need and the training they deserve to be better partners with the community.

This Mayor and his police commissioners have repeatedly shown an unwillingness to make needed changes even when confronted with evidence of problems. If they haven’t taken steps they’ve known were needed for the last seven years, it’s hard to imagine they will do so now.  For this reason, we’ve reached the point where a federal monitor to force change on the NYPD is the best option for this Department.

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Mark Peters and Lesley Brovner are the founding partners of Peters Brovner, LLP and from 2014 to 2018 served as Commissioner and First Deputy Commissioner of the Department of Investigation, the City’s Inspector General.

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Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

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The Attorney General’s Lawsuit Against the Mayor and NYPD is a Needed Option Tue, 09 Feb 2021 05:00:00 +0000
Jury Still Out in Several Investigations of NYPD's Protest Policing https://www.gothamgazette.com/city/9736-investigations-nypd-black-lives-matter-protest-policing https://www.gothamgazette.com/city/9736-investigations-nypd-black-lives-matter-protest-policing bomb threat bk

NYPD officers; the department remains under multiple investigations (photo: Edwin J. Torres/Mayor's Office)


The New York City Department of Investigation (DOI) and Law Department have missed the August 31 benchmark set by Mayor Bill de Blasio to submit a final report in their joint investigation into the NYPD's response to summer protests that broke out in the aftermath of the killing of George Floyd by Minneapolis police.

Officers' frequently violent engagement with demonstrators marching against police racism and brutality led to hundreds of allegations of police misconduct and excessive force, and numerous city and state investigations, none of which have made final determinations.

In the days after Floyd's killing on May 25, peaceful marchers were corralled, beaten with batons, and arrested by NYPD officers; pepper spray was commonly used, even on nonviolent crowds; officers drove their vehicles into protesters and used helicopters to whip-up debris around them; many officers covered their badge numbers; and many didn't wear masks, against city and state guidelines, in the midst of the first widespread public gatherings of the pandemic.

The demonstrations were accompanied by destruction on the part of some protesters and others who appeared to take advantage of the moment of chaos, with police cars smashed and burned and sprees of looting. Meanwhile, persistent questions were raised about the degree of systemic police aggression. De Blasio and Police Commissioner Dermot Shea frequently discussed violence perpetrated upon NYPD officers while also offering unproven allegations of the dangerous presence of "outside agitators" and plots to harm police. They largely dismissed clear evidence of repeated incidents of unprovoked use of force by police, though in a few instances both condemned specific officers’ actions.

After two days of unrest in New York City, Governor Andrew Cuomo asked Attorney General Letitia James to investigate the NYPD's response. The same day, de Blasio said the city would conduct its own "independent review" of police-civilian interactions and the next day, May 31, he announced Department of Investigation Commissioner Margaret Garnett and Corporation Counsel Jim Johnson would lead the investigation. The NYPD is conducting its own misconduct investigations through its Internal Affairs Bureau, as well as a broader analysis by the department's operations unit and top leadership, including Shea and Chief of Department Terence Monahan. Separately, complaints from the public have initiated hundreds of investigations by the Civilian Complaint Review Board.

"The whole idea of having an independent review is to look at all the video and determine discipline for anyone who needs it, actions that should be taken additionally towards those who incited violence amongst the protesters, and any changes we need in our approach to policing," de Blasio told reporters when he announced the investigation.

"The first results will come back in June and we'll take action immediately on the initial findings," the mayor said.

On June 20, he signed an executive order outlining the scope of the investigation, in which he directed the two entities to assess the NYPD's "planning and response to the protests" and make factual findings about the events. The order also directs the Corporation Counsel to conduct a separate review of "the factors that may have impacted the events at protests" during the period under review from the first demonstrations on May 28 to the date of the order. (Members of the Office of the Inspector General of the NYPD, which is housed within DOI, are part of the team conducting the investigation, according to a DOI spokesperson.)

The order calls for a status report and for the agencies to "make best efforts to produce a final report on August 31, 2020."

But protests continued for weeks and in a June 24 letter to the mayor and other elected officials Garnett said the timeline was too short to analyze a period over 20 days long. Other investigations, either by the NYPD's Internal Affairs Bureau or by District Attorneys, also hampered the review, she wrote. "If there is to be individual accountability for officers involved in specific incidents, the disciplinary process and criminal investigations must be given precedence," Garnett wrote.

On September 1, DOI spokesperson Diane Struzzi told Gotham Gazette the investigation was still in progress.

"As we indicated in our June statement, the investigation is active and ongoing and DOI would endeavor to meet an August 31, 2020 deadline requested by the Mayor's Executive Order, but that the timing of the report, or series of reports, would be determined by the fact-finding process and the status of parallel proceedings," she wrote. "That has not changed."

"As we indicated in our June statement, until the completion of this investigation, DOI will not comment publicly on the investigation’s status, or provide updates to City or elected officials on our findings, unless unforeseen circumstances arise that warrant a further update," Struzzi added.

"This is vital work. We are committed to getting it right," wrote a Law Department spokesperson in an email.

The mayor's office did not provide a comment on the missed deadline.

De Blasio and Shea have also said there needs to be discipline for officers who committed specific transgressions during the protests.

"I want to see real action quickly on individual cases of discipline that need to be addressed," de Blasio said on May 31, the same day he announced the Law Department-DOI review. "I want to see real action on any officer who should not be in the police force, real action on any officer who needs to be transferred from one command to another because of performance and approach. These can all happen immediately and they will."

The NYPD did not respond to Gotham Gazette inquiries about its internal review of misconduct during the protests. At least two officers have been suspended without pay and one supervisor transferred to another precinct, according to Shea in June. One of the suspended officers has also been criminally charged with assault after he shoved a demonstrator into the curb in a particularly high-profile incident, which was caught on video and went viral on social media. His supervisor, who was present at the scene of the crime, was transferred for failing to take action. Another officer, who was caught on film pulling the mask off a protester to pepper spray them at close range while their hands were up, was suspended without pay.

The Civilian Complaint Review Board, a city entity with board members appointed largely by the mayor and tasked with investigating certain allegations of police misconduct, received over 750 complaints stemming from 250 separate incidents during the protests, a spokesperson said. According to initial figures provided by the CCRB, roughly one-third of those complaints are for inappropriate use of force, and one in five are claims that officers abused their authority.

“I strongly believe what New Yorkers saw during the protests in support of Black lives warrants fact-based, independent, civilian-led investigations into allegations of individual misconduct," wrote CCRB Chair Fred Davie in a statement to Gotham Gazette. "The CCRB is undertaking these investigations, and will be making disciplinary recommendations in the near future.”

The CCRB has the power to make recommendations for discipline when it substantiates misconduct claims, but the police commissioner retains ultimate decision-making powers about punishment.

The CCRB spokesperson told Gotham Gazette that information on final determinations, if there are any, are not available at this time.

In addition to the incident where a protester was violently shoved by an officer, district attorneys have launched several criminal investigations into other police actions.

At the state level, Attorney General James is performing a parallel investigation into NYPD behavior during the protests at the request of Governor Cuomo. The directive, issued on May 30, after two nights of demonstrations, called for the attorney general to issue a public report within 30 days.

That investigation is still ongoing, according to a spokesperson for James. In June, she held multiple day-long hearings to solicit testimony from New Yorkers who protested, some of whom testified to police brutality, as well as Shea. The police commissioner testified that officers exercised "extreme discretion" when dealing with protesters and that many of the aggressive tactics witnessed were in response to dangerous situations created by protesters. He said he had not heard of "kettling" -- a strategic maneuver in which lines of officers cordon and charge a barricaded crowd -- which was common throughout the first week of protests.

On July 8, James held a press conference announcing a preliminary report, in which she made a series of recommendations for police reform. But James prompted confusion and criticism for not making any material determinations about the behavior of police during the protests.

"I don't know if we were tasked with the ability to judge the police," James told reporters. "We were tasked with the responsibility of looking at the interactions between police and protesters during a certain period of time."

"While OAG’s investigation into NYPD’s response to the protests remains ongoing, it is clear that real, meaningful reform cannot wait," reads a statement accompanying the report. The recommendations range from major changes to NYPD structure to more frequently sounded calls.

At the top of the list is the creation of a commission to oversee the police department with the power to hire and fire the commissioner. The preliminary report also suggests the CCRB and Office of Inspector General of the NYPD (which is within DOI) both be strengthened and certain public-response duties be moved away from the NYPD. James also wanted to see codified use of force standards "with real legal consequences for violations" (per legislation passed by the City Council and signed by the mayor, the city published a "disciplinary matrix" on Monday, with a mandatory range of punishments for certain officer misconduct).

James’ final report will include an assessment of police use of force and kettling tactics, arrest practices (including the use of "extremely tight zip-tie" handcuffs), and the treatment of members of the press, legal observers, and essential workers, according to a statement from her office.

In terms of passing judgement on the NYPD's actions, James demurred.

"Well I do know that the testimony of Police Commissioner Shea was at odds with the vast majority of the protesters who came before us," she told reporters at a July press briefing. "And so what we are trying to do is continue to examine the testimony."

"Other protesters have come forward and submitted additional evidence,” she added, “and we are still in the process of examining all of the evidence before us.”

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by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

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Jury Still Out in Several Investigations of NYPD's Protest Policing Fri, 04 Sep 2020 04:00:00 +0000
While Trump Debases Federal Inspector General System, New York City’s Remains a Model https://www.gothamgazette.com/130-opinion/9327-trump-debases-federal-inspector-general-system-new-york-city-model https://www.gothamgazette.com/130-opinion/9327-trump-debases-federal-inspector-general-system-new-york-city-model debase trump ig

NYPD IG Eure, second from left (photo: @OIGNYPD)


During our national coronavirus crisis, two Inspectors General stories were reported – one federal, one New York City – concerning how IGs exercised their statutory duty. No doubt the stories’ significance was lost because our attention is diverted. But they’re important, and telling.

On April 3, President Donald Trump gutted the Inspector General Act of 1978 when he proclaimed “You’re fired!” Michael Atkinson, Inspector General, Office of the Director of National Intelligence.

Forty-two years ago, Congress passed the Act, which was supported by six Democratic and Republican presidents from 1978-2016, all recognizing the good government importance of independent oversight of the executive branch to ferret out mismanagement, abuse, and fraud of its programs and operations.

So why did Trump fire Atkinson – Trump’s own appointee – in essence ending independent federal IG investigations, especially after Atkinson supported Trump’s pre-inauguration plan to restructure “the bloated and politicized intelligence community”?

He dismissed him because Atkinson, doing his duty, investigated a September 2019 whistleblower complaint alleging that Trump pressured the Ukraine government to investigate Joe Biden and his son Hunter Biden, resulting in Trump’s impeachment and a Senate acquittal. 

To Trump, Atkinson’s investigation was an unforgivable betrayal, as his appointee, no matter what the law required. Flailing to find a legitimate dismissal reason, Trump justified it claiming he "no longer" had confidence in Atkinson, whom he said did an absolutely terrible job -- but the pièce de résistance: Atkinson is not a big Trump fan.  

We have heard this before, a Trump appointee promising the Senate to follow the law then forced out when Trump disagrees with his own appointee.

In November 2017, Atkinson at his Senate confirmation hearing swore, “[I]f I am confirmed...we [with Congress] will work together to encourage, operate, and enforce a program for authorized disclosures by whistleblowers within the Intelligence Community that  validates moral courage without compromising national security and without retaliation.” 

By a Senate voice vote, Atkinson was confirmed and by presidential directive went on his way to ‘fix’ the intelligence community. 

After Atkinson honored his Senate promise, Trump retaliated, placing a black storm cloud over all federal IG investigations, ending independence, and sending an abusive message that IGs will be denigrated and dismissed when Trump disagrees with an investigation’s finding.  

Atkinson was not the only IG to feel Trump’s wrath. On April 7, Trump publicly criticized the Health and Human Services deputy IG for a report concerning coronavirus-related shortages and testing delays at our nation’s hospitals. Trump used the refrain that the IG’s findings were politically motivated.

Apparently, no IG’s good government deed goes unpunished -- if the IG’s work gets in Trump’s way.

In contrast, in 1978 former New York City Mayor Ed Koch, by executive order and similar to the federal Inspector General Act, mandated all city government agencies have an IG. For 42 years – and five mayors – New York City has had effective oversight.

For instance, just on April 9, the NYPD’s Office of Inspector General – having a statutory function of oversight – issued its annual report. In a city where policing is always a contentious issue, the report raised serious concerns about racial bias in policing, compelling the mayor and the police commissioner to consider it and respond.

The report’s only issue, in my view, is the IG’s timing, releasing it during a pandemic when police officers’ health and safety are in jeopardy daily – almost 20% of NYPD personnel was out sick at one point recently. The IG report could have waited.

Timing aside, the NYPD IG met its statutory duty, apparently without interference or threats. Since the creation of the NYPD IG office in 2015, notwithstanding NYPD/IG disagreements, there have been 16 NYPD IG reports with recommendations for NYPD reform. Remarkably, and perhaps begrudgingly, the NYPD has accepted or implemented at least partially 76% of those recommendations.

Although a healthy tension exists between the IG and the NYPD, and between other IGs and their relevant agencies, the city’s IG system -- unlike the federal system under Trump -- has worked without a city IG hearing a Trumpian “You’re fired!” for doing an investigation or report.

However, on two occasions mayors have forced out ‘for cause’ the city’s chief IG — the Commissioner of the Department of Investigation.  

In 1986, the mayor demanded the resignation of the DOI commissioner who was caught up in a criminal investigation of his staff member who installed an air conditioner in the commissioner’s home.

In 2018, the mayor dismissed his former campaign treasurer and appointee as DOI commissioner after an independent special investigator found the commissioner abused his authority and was “cavalier with the truth” during the investigation. The ousted commissioner claimed he was fired by the mayor because DOI had issued embarrassing administration reports.  

Contrary to Atkinson’s dismissal, the DOI Commissioner — pursuant to the City Charter — was dismissed with due process and an opportunity to be heard.  

Critically, an IG’s core principle is to independently investigate without being beholden to the appointing authority. This ensures good government when an IG makes recommendations and advises corrective action without the fear of reprisals.

Now, after Atkinson was dismissed without a rational basis, and to ensure all IGs are permitted to independently investigate, Congress must seek answers concerning Atkinson’s dismissal to determine if retaliation by a president for an IG doing his lawful duty are intolerable abuses of power.  

To me, they certainly are.

***
Arnold N. Kriss is an attorney in private practice in Manhattan, and a former NYPD Deputy Commissioner for Trials and Brooklyn Assistant District Attorney. On Twitter @ArnieKriss.

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Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

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While Trump Debases Federal Inspector General System, New York City’s Remains a Model Thu, 23 Apr 2020 04:00:00 +0000
As Council Passes Bill to Require It, Department of Investigation Set to Launch Dashboard Tracking Agency Reforms https://www.gothamgazette.com/city/9172-as-council-passes-bill-to-require-it-department-of-investigation-set-to-launch-dashboard-to-track-agency-reforms https://www.gothamgazette.com/city/9172-as-council-passes-bill-to-require-it-department-of-investigation-set-to-launch-dashboard-to-track-agency-reforms comm eco dev

Council Member Ritchie Torres (photo: John McCarten/City Council)


The New York City Department of Investigation, a watchdog agency that monitors corruption and more broadly evaluates the functioning of city agencies, will launch a database next month to track each and every reform recommendation it makes, going back to 2014 when Mayor Bill de Blasio took office, and how agencies are complying with them.

Every year, DOI issues hundreds, if not thousands, of Policy and Procedure Recommendations (PPRs) to city agencies to help them eliminate inefficiencies and improve protocols and services. The department, whose commissioner is nominated by the mayor and approved by the City Council to operate independently, has examined everything from the NYPD’s use-of-force policies to the New York City Housing Authority’s lead monitoring procedures.

But other agencies are free to accept or reject the recommendations since DOI’s reports do not carry the force of mandates, which also means agencies can choose whether to implement a recommended reform or not even if they accept it. DOI reports on the number of recommendations made each year and the percentage that are accepted in the annual Mayor’s Management Report. It does not point out how many are implemented by agencies.

In November, the City Council’s Committee on Oversight and Investigations held a hearing on a bill, introduced by Council Member Ritchie Torres, a Bronx Democrat who chairs the committee, that would require an online, public-facing database of every recommendation made by DOI, how many are accepted or rejected, and how many are implemented. At the hearing, DOI Commissioner Margaret Garnet said the database was already being built.

Torres’ legislation, which was passed on Thursday by the City Council, also mandates the creation of a separate but linked database by the Special Commissioner of Investigation for the New York City School District, a Department of Education watchdog that falls under DOI and reports to it but is operationally independent.

“The premise of the legislation is that an investigation is only as good as the long-term impact it produces,” Torres said in a brief phone interview. “What is the value of reforms that are never implemented? I think the dashboard will see to it that there is follow up and follow through.”

“It's a bill that affects the totality of city government,” he added. Requiring the databases by law means that the DOI under this mayor or another will not be able to do away with the practice it has pledged. The requirement will also make it more likely for follow-up by the Council in the form of oversight hearings.

The legislative mandate notwithstanding, a DOI spokesperson said the agency’s database is ready to be debuted. “This March, DOI is on track to unveil its policy and procedure recommendations (PPRS) database, which will be publicly available on DOI’s website and contains thousands of PPRs dating back to 2014,” said Dianne Struzzi, DOI spokesperson, in an email. “The database is the result of years of internal discussion and work by DOI and is supported by [Council Member Torres’] legislation.”

Torres said SCI, in negotiation with City Hall and DOI, had agreed to meet a July 1 deadline to build its own database which, unlike DOI’s dashboard, will only track reforms going forward. Nonetheless, Torres said his bill is “historic” since it would be the first time the Council would require greater accountability and transparency from SCI, “which has historically operated in secret.”

“The public is largely in the dark about the investigative findings and reforms of SCI,” he said. “So the fact that we're requiring reporting on a dashboard will mean that the public is going to have more knowledge about the work of SCI.”

The new databases will broadly help strengthen the Council’s oversight of city government, Torres emphasized, noting that the reform recommendations made so often by DOI aren’t just about improving simple agency procedures.

“It's questions like has NYCHA been effectively inspecting, remediating and abating lead? Is ACS effectively protecting the safety of children under its supervision? Is the NYPD effectively investigating rape cases?,” he said. “The dashboard will provide answers to questions whose stakes are a matter of life and death, whose stakes are a matter of public safety and public integrity.”

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by Samar Khurshid, senior reporter, Gotham Gazette
     

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As Council Passes Bill to Require It, Department of Investigation Set to Launch Dashboard Tracking Agency Reforms Thu, 27 Feb 2020 05:00:00 +0000
Department of Investigation Commissioner Pledges to Eliminate 'Shameful' Background Check Backlog https://www.gothamgazette.com/city/9158-department-of-investigation-commissioner-pledges-to-eliminate-shameful-background-check-backlog https://www.gothamgazette.com/city/9158-department-of-investigation-commissioner-pledges-to-eliminate-shameful-background-check-backlog city oversight hearing

(photo: John McCarten/City Council)


The Department of Investigation, an independent city agency that monitors and investigates government corruption, waste, and mismanagement, has yet to complete thousands of background checks on workers currently employed in city government. At a hearing of the City Council’s Committee on Oversight and Investigations on Monday, DOI Commissioner Margaret Garnett sought to explain why the agency had fallen behind and assured Council members that the problem would not carry on into the future.

As of Friday, February 21, DOI had 5,122 backlogged background check applications from city agencies, down from about 6,479 on July 1, 2019, Garnett testified. She pledged that DOI “is successfully shrinking the massive backlog that had been growing for years and remains committed to eliminating it within four years, if not sooner. This issue is among my top priorities.” By that timeline, Garnett apparently meant from the time of her appointment last year.

Council Member Ritchie Torres, a Bronx Democrat who chairs the committee, said the backlog “is not only an embarrassment but it’s a threat to the integrity of city government.” He noted that backlog came under scrutiny in recent months after David Hay, a high-ranking official at the Department of Education whose file was included in that backlog, was arrested in Wisconsin in December on charges of seeking sex with a minor. Hay did undergo two checks by the DOE and Garnett has insisted that, even if her agency were to have conducted a background check, it would not have necessarily surfaced the red flags that were found in Hay’s past (he misrepresented certain facts in his file, only found through a subsequent investigation by the Special Commissioner of Investigation at the DOE).

Torres also cited the example of Kevin O’Brien, a former aide to Mayor Bill de Blasio who was fired after facing allegations of sexual harassment. O’Brien had previously been fired for the same reason from a job at the Democratic Governors Association, a fact that he lied about in a background check questionnaire. Garnett said it would have been hard to identify O’Brien’s red flags because the case involved a non-disclosure agreement (NDA) and he committed “perjury” by not disclosing it on his questionnaire.

“What I want to hear from DOI is a diagnosis of what went wrong,” Torres said in his opening statement. “Why was the Background Investigations Unit allowed to atrophy from neglect?”

Garnett made it clear that the backlog she inherited was a “shock” and that it seemed to stem largely from the department being woefully understaffed to handle the massive uptick in city hiring after de Blasio took office. She said she has been attempting to cut down that backlog since she took over as commissioner early last year, making it her priority to hire new investigators and restructure the Backgrounds Investigation Unit, she said.

The backlog increased from about 2,000 in the summer of 2014, de Blasio’s first year in office, to about 6,400 by April 2019, while DOI’s background investigation staff only saw moderate increases. “The current circumstance is shameful. It is a dereliction of DOI’s responsibility to the hiring agencies and to the city as a whole,” Garnett said.

The department also added 13 new positions with additional funding last year to create a team dedicated solely to resolving the backlog, while ensuring that a separate 28-person team completes all new background checks within six months of receiving an application from a city agency. Since July 1, the latter team has completed 766 new background investigations in an average of 71 days, Garnett said.

Garnett said she is taking additional steps to further reduce the backlog while maintaining a balance between the “objective” and “subjective” triggers for an investigation. One “objective” trigger is a salary of $100,000, which Garnett said she is considering increasing to $125,000. She said she would also tweak the categories of managerial employees that are currently subject to background investigations to narrow it somewhat. She also said the department is updating how the “subjective” criteria are defined, which cover employees such as those who have access to sensitive information-technology infrastructure and those who have the authority to negotiate and approve contracts, permits, and zoning applications.

She also seemed open to legislative fixes to the background investigation process. City agencies only send background check applications after making a hiring decision, and then help applicants fill out their forms before sending them to DOI. That means an agency employee could be on the job for months before DOI unearths any information that could mean they should not have been hired or are fired or disciplined.

Torres suggested that perhaps some aspects of the background check process could be preconditions for hiring. Garnett said fingerprinting and a criminal history check would be feasible. “We could accommodate it logistically if the agencies were willing to partner with us in doing that,” she said, emphasizing that “the agencies really control the pipeline.”

She also said she didn’t have “any inherent objection” to creating statutory timelines for background checks going forward, though she said that doesn’t apply to the backlog. “I would resist a legislative mandate regarding the backlog...Legislation’s kind of a blunt instrument,” she said.

“We think it’s surgical,” Torres replied.

Garnett also pushed back against the Council member suggestion that DOI inquire specifically about sexual misconduct in its background investigations, discussing both the Hay and O’Brien cases. “Given the national zeitgeist, the #MeToo movement, why not ask specifically about sexual misconduct?” he wondered.

Garnett cautioned against the approach, pointing out that DOI seeks any and all adverse information about a city employee, and that narrower questions could lead to limited answers. “I don’t think that privileging sexual harassment allegations over the range of other corruption vulnerabilities that are our primary focus, is the way to go.”

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by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

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Department of Investigation Commissioner Pledges to Eliminate 'Shameful' Background Check Backlog Mon, 24 Feb 2020 05:00:00 +0000
Two Troubling Trends Collide in City Homeless Outsourcing https://www.gothamgazette.com/130-opinion/8988-two-troubling-trends-collide-de-blasio-city-homeless-outsourcing https://www.gothamgazette.com/130-opinion/8988-two-troubling-trends-collide-de-blasio-city-homeless-outsourcing mbdb flcm mayor

(photo: Michael Appleton/Mayor's Office)


Last week the City of Newark sued New York City over New York’s placement of more than a thousand homeless individuals and families in Newark, through the city’s Special One Time Assistance (SOTA) program. Under the program, New York City employed private brokers to find homes for the families in New Jersey and elsewhere, and, without checking to see if the homes were habitable, paid a full year’s rent in advance and left families to live there. The result was thousands of families sent out of the city into homes that were uninhabitable.

The Newark lawsuit, which details instances of lack of heat and vermin infestations, sought to prevent New York from “coercively relocating” any future families via the SOTA program. Newark’s brief goes on to object to New York’s “ill-conceived, surreptitious efforts to shift the burdens associated with the homeless to other communities in this nation.” In court on Monday, New York agreed to a temporary halt to the program in Newark, but the lawsuit continues.

The SOTA program represents the culmination and convergence of two particularly disturbing recent trends: New York’s failure to provide safe housing for homeless people and New York’s propensity to outsource social services without proper oversight.  

As to the first trend, New York City’s recent history in providing unsafe housing for homeless people is distressing. During our time running New York City’s Department of Investigation we did two Reports outlining the deplorable conditions at New York City shelters. Those Reports detailed fire and safety hazards, dead vermin in bedrooms, widespread prostitution activity, and a lack of essential services.  

The second, equally disturbing trend, is New York’s continued outsourcing of government programs without proper oversight. While at DOI we witnessed the tendency of New York City agencies to hire private vendors to provide essential services yet fail to: one, set standards for the work to be done; two, supervise the agencies; and three, take action against contractors who neglected to carry out their requisite functions.  

For example, one DOI investigation found that while the city’s Administration for Children’s Services hired private providers to carry out certain ACS functions, ACS failed to take action even after learning that some of these providers were not performing up to standards and were putting children in harm’s way. Indeed, ACS continued to pay these providers for dangerously inadequate care.

Similarly, for years, the City’s Department of Correction hired a private company, Corizon Health, to provide health care services to inmates in city jails. Corizon neglected to screen and manage staff, creating a series of dangers without effective oversight from the city.  A report from DOI that exposed the problem finally forced the city to remove Corizon.

City government’s mishandling of SOTA combines both trends with the worst possible outcomes. Not only did the city outsource its problem – hiring private brokers to find apartments – but by sending the families to other jurisdictions, and refusing to provide those jurisdictions with the identities and locations of the families, they made oversight impossible.  

In theory, getting homeless families housing in New Jersey, where rents are cheaper, is not inherently wrong (regardless of whether the motivation is to get families off New York City’s rolls or some other greater good). But doing this without checking to make sure the housing is habitable and refusing to tell the New Jersey localities who has been placed in their jurisdiction, is unacceptable. Only the filing of a lawsuit forced New York to provide Newark with information on the families’ locations.

This goes beyond a failure to set standards and supervise outside contractors. Here, when New York sent these families to Newark and paid the private landlords for a year in advance, New York gave up the ability to have its own agencies make sure the housing was habitable and it failed to give New Jersey that opportunity. The end result was that New York had less money -- having sent it to landlords who provided deplorable housing -- and Newark, not aware of where the placements were, was unable to fix the problem.

Going forward, if New York is to continue sending homeless families out of state – and, it appears that it plans to do so – at a minimum the city must properly check the habitability of all dwellings, stop paying for a full year in advance, and coordinate with the other jurisdictions, providing them full information and cooperation. Anything less is not an anti-homelessness program but a dumping of responsibilities.

***
Peters and Brovner are the founding partners of the law firm Peters Brovner LLP and were, respectively, the Commissioner and First Deputy Commissioner of the New York City Department of Investigation from 2014 to 2018.

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Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

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Two Troubling Trends Collide in City Homeless Outsourcing Wed, 11 Dec 2019 05:00:00 +0000
De Blasio's Answer to Garner Death, NYPD Deescalation Training Slowly Evolves Toward Meeting Mayor’s Rhetoric https://www.gothamgazette.com/city/8977-garner-death-slowly-evolving-nypd-deescalation-training-doesnt-match-de-blasio-rhetoric https://www.gothamgazette.com/city/8977-garner-death-slowly-evolving-nypd-deescalation-training-doesnt-match-de-blasio-rhetoric police academy graduation

Mayor de Blasio (photo: Michael Appleton/Mayor's Office)


In the five years following Eric Garner’s death at the hands of then-NYPD Officer Daniel Pantaleo, Mayor Bill de Blasio has repeatedly fallen back on the same argument to defend the police department when questions are raised about apparent incidents of excessive force or other misconduct by officers: deescalation training.

“[T]he goal is always to de-escalate,” the mayor said at a news conference on crime statistics on November 6, addressing a recent “chaotic” incident on a Brooklyn subway platform where an officer was caught on video punching two teenagers in the face amid a crowded brawl. The officer was later placed on desk duty while the department investigates the incident.

“That officer's obviously been modified, there's obviously a concern there being investigated, but we want our officers to engage members of the public in a way that de-escalates conflict,” the mayor continued. “That's what they're being trained to do.”

It’s what Pantaleo had failed to do before he decided to try to take Garner into custody back in 2014. The encounter, caught on cellphone video, showed Garner objecting to what he said was repeated and unnecessary harassment by police as Pantaleo and his partner told him they were responding to complaints that Garner was illegally selling loose, untaxed cigarettes. When Garner refused to cooperate with the arrest and be handcuffed, Pantaleo placed him in a chokehold – banned by department policy – from behind and pulled him to the ground instead of attempting to reason with him to get him to comply. Multiple officers then restrained Garner who said “I can’t breathe” 11 times before losing consciousness. He was later pronounced dead at a hospital.

When then-NYPD Commissioner James O’Neill fired Pantaleo in August of this year, in carefully worded remarks he stressed how difficult the decision had been for him. “I served for nearly 34 years as a uniformed New York City cop before becoming Police Commissioner. I can tell you that had I been in Officer Pantaleo’s situation, I may have made similar mistakes,” he said. “And had I made those mistakes, I would have wished I had used the arrival of back-up officers to give the situation more time to make the arrest. And I would have wished that I had released my grip before it became a chokehold. Every time I watched the video, I say to myself, as probably all of you do, to Mr. Garner: ‘Don’t do it. Comply.’ To Officer Pantaleo: ‘Don’t do it.’ I said that about the decisions made by both Officer Pantaleo and Mr. Garner.”

In December 2014, on the heels of a Staten Island grand jury’s decision not to indict Pantaleo for Garner’s death, de Blasio announced that the NYPD would begin retraining all of its tens of thousands of officers in de-escalation techniques.

“[T]he training that’s going to happen here in this building will change the future of this city,” the mayor promised at the time, speaking from the Police Academy in Queens. “It will have not just an impact on thousands of people, it will have an impact on millions of people, because every interaction that every officer has with their fellow New Yorkers after they are trained again will be different. And that will multiply many times over, for years and years to come and a whole new generation of officers will be trained with a new approach.”

But it has taken more than five years for the department to slowly adopt best practices and recommendations from outside watchdogs who say its training curriculum must be strengthened. And major questions remain about how effective the training has been, whether officers who don’t follow department protocols are held accountable, and whether the NYPD has truly been transformed to the extent the mayor claims.

Incidents like the one on the Brooklyn subway platform, where full details remain murky, have also led to some public outcry that the mayor’s and departmental rhetoric often does not match the actions of officers, and that retraining cannot ameliorate the effects of the broken windows policing paradigm that, even if modified, disproportionately targets and criminalizes people of color.

De Blasio and NYPD officials repeatedly stress that incidents where officers escalate or fail to de-escalate situations are aberrations for a department that employs 36,000 uniformed officers and that the department as a whole has been transformed, in large part by the new training regime. Even after the latest NYPD report showed that incidents of use of force by officers had increased, particularly the deploying of tasers, de Blasio defended the department.

“De-escalation is the dominant approach now. It has been for years,” he said at a December 5 news conference on crime statistics. “The retraining of the entire police force...the meaning of that was not fully felt because there are so many other things happening. But if you really stop and think about it and look around this country, retraining an entire police force and then continually reinforcing that training in the name of de-escalation, is a seismic change.”

But there are significant questions about whether de Blasio is right.

In October 2015, the Office of the Inspector General for the NYPD, an independent watchdog under the Department of Investigation, issued a lengthy report that critiqued the department’s use-of-force policy and made sweeping recommendations for reforms to policy, reporting on incidents, disciplinary measures, and training. Based on its review of the NYPD patrol guide procedures, Police Academy curriculum, and in-service training, the report “identified little to no substantive focus on de-escalation in NYPD’s training programs.”

The report made five specific recommendations on deescalation training: create specific Police Academy and in‐service courses that involve classroom and scenario‐based training; create a formal evaluation system for all scenario‐based trainings on the use of force; increase funding and personnel at the Police Academy to train recruits and in‐service officers; train officers to intervene when other officers escalate a situation; and review use‐of‐force trends to identify and retrain the serving officers that most need deescalation and use‐of‐force training.

Almost immediately after the report, the NYPD issued new use-of-force guidelines that it had been crafting. The new policies mandated documentation of each use-of-force incident, created a new division to investigate those incidents, and included instructions for officers to de-escalate situations.

For instance, it outlined that if an individual refuses to answer questions or walks away during a Level 1 encounter (the lowest level, where officers are simply asking for information), that does not constitute escalation.

The new policy has yielded three annual reports on use of force, with the long-delayed latest released on December 3, for data on 2018. In total, there were 7,879 NYPD use-of-force incidents reported last year, an increase of 500 from 2017.

Meanwhile, for this year there have been 1,911 arrests for resisting arrest as of September 30, compared with 1,891 in the same time period last year.

"The use of force by a police officer is often the result of a subject resisting arrest,” the report reads, though it does not indicate how often. “Resisting arrest is a crime under New York State law."

Similar to the use-of-force guidelines, the department’s new deescalation training methods have evolved and grown from the early stages where it simply involved a three-day retraining course.

According to the NYPD, deescalation has been incorporated into the curriculum for recruits and is reinforced over an officer’s career. Training involves academic teaching as well as lessons taught by a Scenario Based Training Unit, which, as the Department of Investigation report shows, was slow to be adopted.

The department also conducts workshops on interacting with people experiencing mental health crises and, as of October, more than 15,000 officers have received Crisis Intervention Training (CIT) to respond to situations involving such individuals. Part of the CIT instruction, which includes uniformed instructors and mental health clinicians, involves scenarios by professional improvisational actors. Recruits are also taught to review actual body-camera footage from incidents involving tense encounters. (The mayor’s office and NYPD also recently released a long-delayed new set of protocols for officers responding to people experiencing a mental health crisis).

The NYPD did not make Chief of Training Bureau Theresa Shortell available for an interview despite multiple requests.

The mayor and NYPD leadership have emphasized the results of the new training paradigm along with the shift towards so-called neighborhood policing, which involves cops working the same beats and attempting to forge relationships in communities. They point out that arrests and summonses have dropped precipitously in the last few years, as have use-of-force incidents, all while major felony crimes have mostly continued to drop as well.

The new policing model has its critics on both sides. Many conservative voices and elected officials say the mayor has tied officers’ hands and deprived them of the ability to safely do their jobs, including in incidents when use of force could be necessary. They say that no one wants to be the next Pantaleo, vilified for using force to arrest a non-compliant suspect, and that this puts cops and the public at greater risk because officers often don’t have time to think twice. They point to incidents like an arrest in the Bronx in August caught on video, where officers clearly seem hesitant to force a man in handcuffs into a police car despite his repeated resistance. Then there were the multiple instances of officers being doused with water over the summer, none of which prompted immediate action on the scene by the officers. Some praised these officers for their restraint.

On the other hand, some progressives say that the city’s policing and police department are inherently broken, racially biased, and harmful, with officers enjoying far too much leeway and experiencing little accountability for wrongdoing. They say that despite talk of deescalation, officers still abuse their power with impunity and in fact escalate encounters with civilians, especially in communities of color. Repeated instances caught on video demonstrate their point.

In its fifth annual report of investigations by the NYPD Inspector General’s Office, issued in April of this year, DOI noted that out of the five recommendations made in 2015 on deescalation training, three were implemented while two were “accepted” by the NYPD but remained “unchanged.” (DOI’s recommendations are not mandatory and an agency can either choose to accept or reject them. Accepting a recommendation does not necessarily mean it can or will be implemented.)

The report acknowledged that one of those recommendations, on adding courses on deescalation with classroom and scenario‐based training, has been partially implemented by the NYPD.

The second recommendation, to review use‐of‐force trends to identify officers for retraining, was accepted in principle but not yet implemented. The department reported to DOI that it was adjusting its early intervention system for officers.

“While NYPD’s early intervention system may be able to identify at-risk officers based on their involvement in force incidents, NYPD has not commented on whether such officers will receive de-escalation and/or use-of- force training, as recommended,” the report read.

“DOI continues its oversight in this area, including the two recommendations from our 2015 report that remain open,” said DOI spokesperson Dianne Struzzi, in an email.

NYPD spokesperson Al Baker said in a statement that recruits and officers “actively participate in always evolving scenario-based training exercises that amplify our emphasis on deescalating what are often the most difficult encounters in policing.”

“For recruits, these scenarios hone their communication skills in answering domestic violence calls or aiding those in emotional distress…Later, officers who receive our Crisis Intervention Team training work to sharpen their de-escalation proficiency by immersing themselves in realistic jobs that are play-acted by professional actors and members of various city communities,” he said.

For elected officials seeking to see a more just police department, particularly when it comes to treatment of New Yorkers of color, the answers around training haven’t been satisfactory.

“Each situation obviously is unique, but we still have some ways ago,” said City Council Member Donovan Richards, a Queens Democrat who chairs the Council’s public safety committee with NYPD oversight.

“In a department with 36,000 people, there will be individuals who, no matter how much training you give them, will still unfortunately use excessive force...So until there's accountability, you can't train your way out of this,” he added, echoing an ongoing concern of the de Blasio years, that a mayor elected in large part on policing reform has made some significant strides but done little on officer accountability.

Part of the problem, Richards pointed out, is officers enforcing so-called quality-of-life violations and creating situations that can then escalate further. He cited two examples: Garner’s death, which happened when the officers involved attempted to arrest him for allegedly selling untaxed cigarettes and Garner resisted; and the incident at an HRA benefits office when two officers violently tried to rip a child from his mother’s arms as they sought to arrest Jazmine Headley, the mother.

He also noted that the culture of the department needs to reflect the diversity and lived experience of the city, without which systemic issues will continue to persist. He pointed to the recent elevation of Chief of Detectives Dermot Shea, who is white, as the new NYPD Commissioner, over First Deputy Commissioner Benjamin Tucker, the top African-American officer in the department.

“How could you train a department of 36,000 people to really understand what that feeling is about stop and frisk, about excessive force, if the people at the top and the executive office have not necessarily had that lived experience,” Richards said.

He did end the interview on an optimistic note, however, noting that new officers coming into the department, which is now the most diverse it has been in generations, maybe ever, are receiving training at the start. “I would hope that in a decade or two decades from now – god willing before then but I'm just being cautiously optimistic – that as the department diversifies, as individuals come into the department from these newer classes with certainly much more training and much more of a lived experience around these issues, that things will get better.”

Brooklyn Borough President Eric Adams, a former NYPD officer himself, conceded that officers may be slow to change even with the new training. “In policing, it's called mental muscle,” he said in a phone interview. “When you're changing the culture of policing, it's not about what you do in one course.”

“Not only must we do it when an officer is in the Police Academy, but every time he or she goes through in-service training, we must do role-plays of what do you do when you respond to the job,” he added. “We need to put a greater level of repeated training on deescalation. Half of the madness you get involved in in policing is because we don't know how to deescalate, we escalate.” He said the recent subway incident presents a crucial teachable moment for the department and should be used in subsequent trainings to show officers exactly what not to do.

Adams did say there should be mutual understanding, that the NYPD should be training people on how to interact with police officers, something he recently held a workshop on for Brooklyn youth that also incorporated a “know your rights” theme. “When my lights go off on the car, and I'm pulling you over, I need to understand I'm approaching a person who's already dealing with a high level of anxiety,” he said, “because they're being stopped by the symbol of authority.”

***
by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

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De Blasio's Answer to Garner Death, NYPD Deescalation Training Slowly Evolves Toward Meeting Mayor’s Rhetoric Mon, 09 Dec 2019 05:00:00 +0000
Department of Investigation to Publicly Track City Agency Compliance with Recommended Reforms https://www.gothamgazette.com/city/8922-department-of-investigation-to-publicly-track-city-agency-compliance-with-recommended-reforms https://www.gothamgazette.com/city/8922-department-of-investigation-to-publicly-track-city-agency-compliance-with-recommended-reforms cm ritchie oversight

DOI Commissioner Margaret Garnett (photo: John McCarten/City Council)


The Department of Investigation, a watchdog agency tasked with rooting out waste, fraud, and abuse in city government, issues hundreds of recommendations each year, urging other city agencies to reform their procedures and enhance the services they provide. It’s not always apparent to the general public, or even elected officials, whether agencies comply with those suggestions, which are typically based on extensive investigations.

But the department has now promised a new database next year that will provide a window into the agencies that are willing and able to improve and those that are resistant or incapable to do so. At the same time, the City Council may codify that database into law.    

Council Member Ritchie Torres, a Bronx Democrat who chairs the Council’s Committee on Oversight and Investigations, is pursuing legislation that would mandate that DOI create an online, public-facing database to track the various Policy and Procedure Recommendations (PPRs) that it makes every year and how agencies are or aren’t implementing them. The legislation has three other sponsors and was the subject of a Council committee hearing on Wednesday chaired by Torres. 

DOI’s recommendations are just that, recommendations, and agencies are not beholden to them. An agency can choose to “accept” or “reject” recommendations and, even when they are accepted, there is no guarantee they will be implemented.

“Without systematic tracking by DOI, agencies have no incentive to implement reforms, and the public has no means of knowing whether agencies are implementing reforms as promised,” Torres said in his opening remarks at the hearing. “An investigation is only as good as the real-world result it produces. It is only as good as the follow-up and the follow-through. As a city, we cannot afford a hit-and-run approach to investigations. We cannot content ourselves to issue reports and then move on to the next order of business.”

Torres has a willing partner in DOI. At the hearing, Commissioner Margaret Garnett said the department has been working for the last year to create a database along the lines of Torres’ bill. It will report on recommendations made, those that are accepted, rejected, and implemented (all of which is required by the bill) and would record agency explanations on implementation, if provided. 

“The idea is significant,” she said, “providing a window for the public into DOI’s compelling work in a way that goes beyond our press releases on arrests or our public reports, and reflects the wide-reaching impact our investigations have on the city.” 

Garnett noted that DOI already publishes some information about PPRs in the annual Mayor’s Management Report. Between the 2015 and 2019 fiscal years, the department issued a total of 4,669 recommendations to agencies. Currently, DOI only reports on the percentage of recommendations accepted by agencies in sum, and that does not get at how many have been implemented. For instance, in fiscal year 2018, DOI issued 2,538 recommendations, 56% of which were accepted. In previous years, there were far fewer recommendations but they were accepted at a much higher rate. (The report does not show how many of the 549 recommendations from fiscal year 2019 were accepted.)

Garnett said DOI will provide that new information, about the percentage of reforms accepted and implemented, in the MMR for the 2020 Fiscal Year. The larger database will be made public by the summer of 2020 or potentially earlier, she said. 

Garnett acknowledged that DOI has not had an effective centralized method so far to track how its recommendations have been implemented. “In the past, that had been a process that had been located more with individual [Inspectors General] for the agencies, and different inspectors general at DOI had different methods for keeping track and for following up with agencies,” she said. The new database will provide both the public and the department internally with a tool that “would show all of the PPRs and an accurate and up-to-date assessment of where the agencies are in both agreement and implementation,” she added.

Garnett did caution the committee against mandating a ranking of the reform recommendations in any public database or using it to grade individual agencies for compliance. “All PPRs are not created alike,” she said in her opening statement. “Some address relatively minor issues while some address significant systemic changes. Some are more costly or difficult to implement while others may require the approval or cooperation of other entities.”

As Garnett pointed out, PPRs span across city agencies. For instance, a 2015 report on the NYPD’s use-of-force policies included 15 recommendations on policy, training, discipline and documentation procedures. A 2016 investigation of the Administration for Children’s Services yielded five recommendations on case management and employee discipline. A 2017 report on the New York City Housing Authority’s failure to conduct mandatory lead paint safety inspections made five broad recommendations on compliance and reporting. 

One notable exception from the database will be the Department of Education, which falls under the purview of the Special Commissioner of Investigation for the New York City School District. Garnett’s predecessor, Mark Peters, infamously tried to wrest control of SCI and was fired by the mayor for overstepping his authority (though Peters and others have also claimed that de Blasio was unhappy with how aggressively Peters had approached his work holding city agencies accountable, and a possible investigation into the mayor’s office over a stalled DOE examination of yeshiva education that some believe de Blasio himself has slow-walked). SCI is independent of DOI but must report certain information to it. 

“A dashboard that fails to include one-third of city government is deeply deficient,” Torres said, referring to the massive DOE. “And that might be a major point of disagreement between DOI and the Council. And this is a point on which I'm going to push very hard. But it feels like it would be odd not to include the largest city agency, or city entity, in the dashboard.”

Garnett was open to the idea. “I think that's certainly something that we can explore,” she said.

Garnett did reject an idea put forward by Torres that the online dashboard allow comments from the public. 

“Is there going to be some mechanism by which the opinions of external stakeholders are going to be included in the dashboard as DOI envisions it?,” Torres asked. “Is that something you're open to?”

“That, for a variety of reasons, is a challenge that I think is beyond our ability to implement,” Garnett responded. “The information that is currently going to be in this PPR tracking database is all information that is sort of in the possession and control of DOI.” She noted that simply making the information available to the public would allow individuals, elected officials, community groups and advocates to hold agencies to account. 

“Personally, I don't know how much time you spend on the internet, Chairman Torres, but I'm not sure that a publicly open comment field is useful,” she joked.

***
by Samar Khurshid, senior reporter, Gotham Gazette
     

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Department of Investigation to Publicly Track City Agency Compliance with Recommended Reforms Wed, 13 Nov 2019 05:00:00 +0000
The Root NYCHA Problem: A Culture of Disengagement & Dysfunction https://www.gothamgazette.com/130-opinion/8703-the-root-nycha-problem-a-culture-of-disengagement-dysfunction https://www.gothamgazette.com/130-opinion/8703-the-root-nycha-problem-a-culture-of-disengagement-dysfunction mayor bdb carl

(photo: Michael Appleton/Mayoral Photography Office)


Last week the federal NYCHA monitor issued his first quarterly report. It was a scathing indictment of the agency, describing “putrid liquid” spilling into a laundry room and rats scurrying through a 14-floor high garbage compactor. As one resident explained, “we are hostages in our own homes at night…due to rats that are the size of cats.”

But as disturbing as these examples are, the most important finding was less graphic but ultimately more dangerous:  A systemic culture of failing to take responsibility. NYCHA, the monitor found, was simply unable to proactively recognize and tackle problems, and in many instances showed little interest in even making the attempt.  

For example, NYCHA initially explained that it could not fix the leaking of putrid liquid because scaffolding was needed to complete the job. After the monitor made inquiries, the problem was solved in a matter of hours using a ladder.  

Further, to this day, NYCHA cannot accurately identify (or even quantify) the number of children living in apartments with potentially dangerous levels of lead paint. Indeed, NYCHA cannot even accurately quantify the total number of people actually living in NYCHA’s apartments. While NYCHA continues to insist it has 400,000 residents, the Department of Sanitation estimates the number, based on waste produced, is closer to 600,000.  

These systemic issues, even more than any one graphic example, are the real danger. An agency that can only fix a basic leak after pressure from a monitor is an agency that cannot manage to maintain its buildings. Relying on a monitor to raise these fixes is not a long-term solution; the monitor cannot be everywhere, and the monitor will not be there forever. Similarly, without basic information about who is living in which apartments, the task of protecting children from lead is unmanageable.

None of this is a surprise to us. For five years we served as Commissioner and First Deputy Commissioner of New York City’s Department of Investigation, which runs the NYCHA inspector general’s office. During that time, we wrote multiple reports detailing similar failings. Most notably, 20 months ago we issued a report after our investigation determined that children in NYCHA apartments were being exposed to dangerous levels of lead paint and that senior NYCHA officials had filed false forms with the federal government that failed to disclose this fact.  

The lead report followed earlier reports finding that NYCHA failed to perform safety checks on smoke detectors (and often falsified documents to cover up the fact) and did not follow safety rules regarding its elevators. The first report came after two children died in a fire where the smoke detector did not go off, even though an inspector had been in the apartment just hours before the fire and falsely filed paperwork stating that he had tested the alarm and it was working. The second report came after an elderly resident was killed when an elevator malfunctioned and threw him backwards to the ground.

NYCHA’s response to many of DOI’s findings was to minimize the problem rather than to aggressively tackle it. It seems little has changed.

This is the real problem. Not just putrid liquid, not just rats, but a culture starting at the top that has continually sought to downplay problems and avoid public embarrassment rather than energetically work towards real reform. Until this underlying problem is fixed, NYCHA will continue to put its residents in danger.

Moreover, while NYCHA suffers from federal disinvestment, this is not solely a problem of money. Indeed, it costs less to have someone with a ladder fix a leak than to erect unnecessary scaffolding to do the job, or even to have a worker mopping the floor every day for two months.

These failures have real world consequences for the hundreds of thousands of New Yorkers living in NYCHA apartments. The mounting number of young children now known to have been exposed to dangerous lead paint is just the most well-reported example. As our earlier reports demonstrated, the failure to carry out other basic safety checks can also put residents in harm’s way. The failure of City and NYCHA leaders to do what they can to change the culture of disengagement that now exists is unacceptable.  

***
Mark Peters & Lesley Brovner are the founding partners of the law firm Peters Brovner LLP and, respectively, former commissioner and first deputy commissioner of the city’s Department of Investigation.

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Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

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The Root NYCHA Problem: A Culture of Disengagement & Dysfunction Sun, 28 Jul 2019 04:00:00 +0000
'So Completely Compromised': New York Watchdog Agencies Have a Credibility Problem https://www.gothamgazette.com/state/8554-new-york-watchdog-agencies-have-credibility-problem https://www.gothamgazette.com/state/8554-new-york-watchdog-agencies-have-credibility-problem mayor commissioner exec

(photo: Edwin J. Torres/ Mayoral Photography Office)


In January, the state Joint Commission on Public Ethics, a governmental watchdog agency, revealed that it had held a closed-door vote on a potential ethics investigation into a former top aide to Governor Andrew Cuomo. The aide, Joe Percoco, was convicted on federal corruption charges in a highly publicized trial that also laid bare work he had done from his executive chamber office while on leave to work for the governor’s campaign.

Despite the obvious appearance of an ethics violation, JCOPE only held a vote on an investigation when its commissioners’ hands were forced through a lawsuit -- and even then, the outcome remains shrouded in mystery because JCOPE refuses to announce it to the public.

Created in 2011 to monitor the behavior of more than 250,000 public officials and to enforce state lobbying laws, JCOPE has become the epitome of New York State’s lax ethical oversight, and the agency’s opacity is a source of widespread consternation. As is the case with other watchdog entities, JCOPE has to balance the privacy of individuals against its duty to inform the public and instill confidence that it is effectively carrying out its work.

By design, many of these agencies are not required to inform the public about the complaints they receive, or are prohibited from doing so to prevent reputational harm against individuals or entities that may be the subject of a complaint. But good government groups say that must change in order to build trust in institutions, and that the public would be better served if agencies provided more transparency about how they handle complaints and report on outcomes of investigations.

JCOPE is just one of several governmental watchdog entities in New York, but its lack of disclosure is not unique. Among a variety of governmental bodies with mandates to scrutinize elections violations, nonprofit fundraising, and public integrity, there’s no standard protocol for reporting on the number and status of complaints received, the investigations initiated or concluded, or the final disposition and enforcement actions taken.

It’s true in many cases at both the state and city levels: other such entities include the State Board of Elections, the Inspector General, the New York City Department of Investigation, and the New York City Conflicts of Interest Board.

In New York City, for instance, recent news reports revealed that though two agencies had concluded that Mayor Bill de Blasio’s fundraising practices during his first term violated guidance about conflicts of interest rules, the mayor did not face any punitive action and neither agency -- the Conflicts of Interest Board and Department of Investigation -- publicly disclosed that it had ended its investigation or the results. Even after news outlets reported on the general conclusions of those agencies, the specific reports and their findings were either heavily redacted or kept secret.

Government reform advocates say some agencies aren’t following the letter of the law in reporting on their work, and they argue that all the agencies, either proactively or through legal mandates, should be releasing more information than they currently do.

“We feel like there’s inconsistency across the many enforcement entities in New York State as to how they make known, or don’t make known, the way they process complaints,” said Alex Camarda, senior policy advisor for Reinvent Albany, a good government group. “And generally speaking we’d like to see more transparency. At the very least, complainants ought to be told what the outcome is of their complaint after a period of time has passed, if not immediately.

This criticism rings particularly true in a recent case regarding an allegation of sexual misconduct against former State Senator Jeff Klein by a former aide, Erica Vladimer. JCOPE has refused to reveal the status of its investigation into the matter -- even to Vladimer, she has said.  

Camarda acknowledged that agencies have a duty to maintain confidentiality. Accusations of impropriety against an elected official, public servant, or candidate for office could serve to harm them if they are publicized but later found untrue. This would be particularly important in the case of spurious complaints, which agencies regularly receive and dismiss on a lack of merit.

But, Camarda said, “that hasn’t been the problem in New York State.”

“In this state, we’ve erred more on the side of protecting the reputation of the accused rather than transparency of complaints, and I think the pendulum needs to swing in the other direction, towards transparency,” he added. “The problem has not been that people are wrongly accused and their reputation is sullied as a result. The problem has been lack of enforcement. So we need to compensate for that by having greater transparency with how complaints are handled and making that known to the complainant and to the public.”

Joint Commission on Public Ethics (JCOPE)
The lawsuit over the Percoco matter, brought by New York State Republican Party Chair Ed Cox, was not the first time JCOPE was compelled by the courts to vote on an issue. In 2014, Donald Trump sued the agency to hold a vote on his complaint against then-Attorney General Eric Schneiderman, whose office was suing Trump over fraud claims related to the now-defunct Trump University.

In both cases, JCOPE did not hold a vote within 60 days of receiving a complaint, as required under state law, raising questions about how regularly it flouts requirements. Even after holding a vote, JCOPE doesn’t disclose whether it voted to open an investigation -- the agency is exempt from the state’s Freedom of Information Law, as well as from the Open Meetings Law.   

Under the law, JCOPE only makes public the results of a Substantial Basis Investigation, which involves a more detailed probe of a particular complaint. (In case the complaint involves a member of or candidate for state Legislature, or a legislative employee, the agency isn’t authorized to impose any penalties, however, and refers the matter to the Legislative Ethics Commission.) Substantial basis investigation reports are also published online with related documents detailing the complaint and settlement reached.

While it has a broad mandate, in 2018 the commission processed 257 matters across a range of possible violations including conflicts of interest, nepotism, improper gifts, failure to file financial disclosure statements, and post-employment restrictions, according to its annual report.

Those 257 matters resulted in 27 investigations initiated. By the end of 2018, JCOPE had 38 open investigations and 93 matters pending review. The report only includes data in the aggregate, which, Camarda of Reinvent Albany pointed out, is in fact more transparent than other agencies but does not seem to fully comply with the law, which requires the agency to report a list of complaints and referrals received alleging violations, and the status of each complaint.

JCOPE spokesperson Walter McClure disagreed with this reading of the law, saying the agency cannot release certain information “because it would be providing confidential information to people who should not have access to it….[A]nything that has to do with an investigative matter is subject to the confidentiality provision and we cannot make it public unless or until the Commission votes to allow that.”

“This is just one small niche issue in a bigger enforcement system that we believe is a problem, and that is, we file these complaints, they seem to go into a black hole and we don’t get a lot of information back as to what happens, at any point,” Camarda said.

Reinvent Albany was among several civic organizations that sent a letter to Governor Cuomo and state legislative leaders on May 16, calling for an overhaul of ethics enforcement by amending the state constitution. The coalition of groups -- including NYPIRG, Citizens Union, New York City Bar Association, Common Cause NY, and others -- surveyed ethics agencies in 50 states and found that New York’s agencies, including JCOPE, are “among the very weakest in the nation” on independence and public accountability. “Few, if any, other states have ethics watchdogs so completely compromised by lack of independence, partisanship, lack of transparency and the other failings described,” the survey noted.

As the groups noted, JCOPE’s structure and independence, or lack thereof, have been a perennial cause for frustration. The agency’s commissioners are appointed by the state Legislature and the governor, who also chooses its chair. The executive director is appointed by a majority of the commissioners. The agency’s three executive directors so far have been close allies of Cuomo. Seth Agata, who was previously counsel to the governor, currently holds the position but recently announced that he would be departing for a job with a law firm.

The call for an ethics agency overhaul has been echoed by state lawmakers. Among them is state Senator Liz Krueger, a Manhattan Democrat who has proposed an amendment to the state constitution to replace JCOPE with a ‘truly independent’ state ethics commission. [Read: ‘It’s just not designed to do its job’: Will New York reform its state ethics agency?]

“[O]ur official position has been, and remains, that when it comes to calls for reform/changes to the Commission and the proposed constitutional amendment that calls for a replacement for the Commission, it is up to the Executive and the Legislature to make decisions about the laws that govern what we do and how we do it,” said McClure, in response, noting that JCOPE itself has made legislative recommendations in the past to strengthen its authority.

State Board of Elections
In 2014, the state election law was amended to create a new independent enforcement division headed by a chief enforcement counsel, a role that has only been held by Risa Sugarman, who was nominated by the governor and confirmed by the state Legislature. The creation of the division and Sugarman’s appointment was meant to depoliticize the agency, whose commissioners are appointed on party lines, and lend credibility to the BOE’s oversight of election and campaign finance violations.

As with JCOPE, the BOE’s enforcement division has not been immune from criticism that it has failed to fulfil its obligations under the law and has shown minimal investigative activity. Last year, in an apparent power grab, the BOE commissioners voted to curtail the enforcement counsel’s power to issue subpoenas, and mandated that the division issue regular reports on investigations as well as complete them within six months.

At the time, BOE’s Democratic co-chair Douglas Kellner said it was prompted by the enforcement counsel’s failure to adequately investigate election law violations, despite thousands of referrals particularly related to candidates failing to file campaign finance disclosures. “I think it's pretty clear that I'm fed up with the current process of the enforcement unit,” Kellner said at the time.

At the root of that issue is the fact that the enforcement counsel’s unit is separate from the campaign finance compliance unit, which essentially keeps two oversight roles removed from each other. At public hearings, the compliance unit’s leadership has aired complaints that it receives little to no information from the enforcement unit.

“The BOE is its own strange animal,” said Camarda, of that structure. He added, “It’s the same problem we’re discussing as a good government group writ large but they can’t even find out within their own agency. And [Sugarman] argues that that’s an imposition on her work and the confidentiality of her work. It seems to me in the law and in the rules that the enforcement counsel is required to provide some transparency around the complaints that are received and how they’re handled.”

Reinvent Albany opposed the new restrictions on Sugarman’s subpoena authority but was supportive of the expanded disclosure on investigations and complaints. But, the reports -- with significant detail of complaints, investigations, and dispositions -- are only required to be sent to the BOE commissioners and co-executive directors. Reinvent Albany has pushed the Board to make the reports more broadly available to the public.

The numbers on the BOE’s 2017 annual report, the latest one available, bear out some of the critiques. The report notes that the division received 463 emailed questions and complaints from the public in the 2017 calendar year, but it does not mention how many complaints were received through telephone, snail mail, or other means.

Violations of state campaign finance law appear rampant but the BOE seems unable to properly uphold its mandate. In 2017, the enforcement division received 3,984 referrals from the compliance unit for non-filing of disclosures. By the end of the year, 2,880 still owed reports to the BOE. Additionally, 597 referrals were made for deficient filers who failed to comply after being informed that their disclosures were deficient. Between 2014 and 2017, the report noted, 2,101 referrals of deficient filers were made to the enforcement division; 329 were amended to fix deficiencies; one was deleted and 1,066 remained unresolved.

In total, the division opened 52 formal investigations and received authorization to issue subpoenas in four cases. Sugarman referred one case for further investigation and potential prosecution. And the division filed only six matters to go through a civil enforcement administrative hearing process.

In an email, BOE’s Sugarman declined to comment for this story.  

State Inspector General
The State Inspector General, a gubernatorial appointee, is charged with oversight of the state executive branch including every agency, department, division, commission, board, public authority, and public benefit corporation.

The IG’s office investigates allegations of criminal activity, corruption, and fraud and regularly makes referrals for criminal prosecution. According to the law, the office informs heads of agencies about investigative proceedings and releases public reports “as appropriate and to the extent permitted by law, subject to redaction to protect the confidentiality of witnesses.” The office often recommends reforms at state agencies and oversees their implementation.

Two other offices under the IG perform investigative roles dedicated to specific agencies and their services and purviews -- the Office of the Welfare Inspector General (OWIG), which oversees the provision of social services at the state and local level; and the Office of the Workers' Compensation Fraud Inspector General (WCFIG), which investigates violations of workers’ compensation laws (it also monitors the implementation of the state’s paid family leave program). Both these offices release annual reports detailing enforcement activity.

Until recently, Cuomo appointee Catherine Leahy Scott was in charge of all three offices. In January, Cuomo replaced her in the IG’s office with Letizia Tagliafierro, a longtime aide and former executive director of JCOPE. Leahy Scott continues to serve as acting welfare inspector general.

Among the three offices, the Inspector General alone does not release an annual report or make public the number of complaints received and investigated in a year.

In 2017, according to the latest annual report, the OWIG processed 650 complaints related to public assistance fraud, up from 562 complaints in 2016, about a 16 percent increase. The office’s investigations found more than $1.3 million in fraud and improper social service benefits payments. Twenty individuals were criminally prosecuted.

The WCFIG, in 2017, received 2,369 complaints, a more than 50 percent increase from 2016 (because of a new partnership with the National Insurance Crime Bureau, which made a large number of referrals in one go). Investigations found more than $1,043,000 in fraud, resulting in  23 arrests and 38 criminal cases.

Though the IG’s office itself puts out public releases about the conclusions of investigations resulting in criminal charges, the office does not publish an annual report summarizing its enforcement activity. A spokesperson for the IG’s office noted that the office publishes information as required by statute and that each complaint is thoroughly reviewed.

New York City Department of Investigation (DOI)
The DOI is the independent watchdog that monitors city agencies and has broad authority to conduct criminal investigations and make arrests and prosecution referrals. The agency, whose head is nominated by the mayor and approved by the City Council, conducts background checks of city employees, investigates fraud and corruption, monitors firms that receive large city contracts, and conducts investigations for the Conflicts of Interest Board. DOI also examines systemic issues at agencies and recommends reforms to reduce inefficiency and the risk of corruption.

As with other enforcement agencies, DOI has strict confidentiality rules and does not disclose directly whether it is conducting an investigation based on a complaint. But the agency does annually report, in the aggregate, on the number of complaints received, investigated and closed.

Those numbers are published in the Mayor’s Management Report, tracking enforcement activity by the fiscal year, as well as in an end-of-calendar-year statistics report. In fiscal year 2018, for instance, DOI received 13,073 complaints, made 2,540 policy change recommendations, and conducted 389 lectures on corruption prevention and whistleblowers. The agency made 762 referrals for civil and administrative action, 860 referrals for criminal prosecution, and its investigations led to 661 arrests.

The Department also issues detailed public reports on investigations that are concluded.

“Complaints made to the New York City Department of Investigation are kept confidential to safeguard the integrity of DOI investigations and protect the individuals filing those complaints,” said a DOI spokesperson, in an email. “DOI is committed to a transparent, accountable government, frequently proactively publishing findings of closed investigations through its public reports, and adhering to the Freedom of Information Law, taking requests for documents seriously and following the law in responding to them.”

New York City Conflicts of Interest Board
As the investigation into Mayor de Blasio showed, the COIB can be an opaque agency at times. De Blasio’s fundraising for an outside nonprofit from individuals who had business with the city triggered investigations at the city, state, and federal level. The state and federal cases closed without any criminal charges. Recently, THE CITY revealed that DOI concluded the mayor had violated COIB guidance and run afoul of conflicts of interest and ethics laws.

But COIB could not say whether it took any action and could not publicly disclose either the status of the investigation or the conclusion reached by DOI. Last week, the Board formally created a rule addressing the type of fundraising activity the mayor was found to have engaged in, releasing a statement to clarify its position. The City Charter, which governs the COIB, places strict confidentiality requirements on the agency, so much so that it cannot even confirm nor deny if a complaint has been filed or investigated.  

“It was good that they put out that statement because ultimately it did clear things up,” said Camarda of the recent developments involving de Blasio, “but it points to the problem, which is, we could not actually tell as a good government group that follows these things, why they did not assess penalties against de Blasio.”

On the other hand, COIB does release aggregate data on enforcement action taken each year in its annual report. In 2018, for instance, the agency opened 392 cases, closed 404 cases, imposed fines in 92 matters, issued 6 public warning letter and 22 private warning letters, made 76 referrals to DOI and received 150 reports from DOI. The agency also discloses summaries in the annual report of the types of enforcement actions taken each year, and publicly releases the full details of the disposition of a matter, including individuals' names and the actions taken by them. 

[Read: De Blasio Fundraising Exposed Grey Area for Ethics Board]

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by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union.

Note - This article has been updated to clarify that COIB does publicly disclose names of individuals and the full details of a disposition of a matter. 

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'So Completely Compromised': New York Watchdog Agencies Have a Credibility Problem Tue, 28 May 2019 04:00:00 +0000