Gotham Gazette https://www.gothamgazette.com/component/tags/tag/1747 Mon, 17 Jun 2019 11:05:29 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) '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
De Blasio Fundraising Exposed Grey Area for Ethics Board https://www.gothamgazette.com/city/8531-de-blasio-fundraising-violation-exposed-grey-area-for-ethics-board https://www.gothamgazette.com/city/8531-de-blasio-fundraising-violation-exposed-grey-area-for-ethics-board mayor bdb fl chir

(photo: Michael Appleton/Mayoral Photography)


In the last three years, Mayor Bill de Blasio has been investigated by law enforcement and oversight entities at the city, state, and federal levels for soliciting donations from people seeking favors from his administration. While several of the investigations have concluded without chargers, investigators and others have criticized the mayor for shirking conflicts of interest and campaign finance rules.

In the case of the city investigation, conducted by the Department of Investigation (DOI) and referred to the Conflicts of Interest Board (COIB), it is hard for the public to know just how close to breaking the law the board felt he came.

What is known is that DOI investigated thoroughly and found the mayor had violated guidance from the COIB, the agency tasked with enforcing the city’s ethics statute, when he raised money for a political nonprofit from individuals with or seeking city business; and that COIB, despite the DOI’s substantiation of the claim, did not take formal, public action against the mayor. It has also become clear that de Blasio is unwilling to be fully transparent about his communications with COIB, and that the mayor’s case has led COIB to adopt a new rule around the type of fundraising he did.

For serious violations of the conflicts of interest law, COIB has a range of enforcement options, from issuing public admonishments and imposing fines, to negotiating discipline, including termination, with the employee’s agency. But for minor violations or when something in the law prevents prosecution, which includes the grey area the mayor has operated in, COIB can only respond from a grey area of its own.

In the absence of charges, the DOI referral may still have resulted in what COIB refers to as a “private warning letter,” a tool it employs outside its formal adjudication process, sent to the mayor. Strict privacy provisions in the city charter and due process concerns prevent the board from discussing it, and the mayor, who is at liberty to be fully transparent, refuses to answer questions about the recently-revealed investigation into his behavior, including the DOI findings and potential COIB correspondence.

Richard Briffault, the COIB chair, told the New York Times that the board was prevented from issuing a fine or a public reprimand in de Blasio’s case because of restrictions in the ethics law. (Two other penalties -- joining a settlement with the violator’s employing agency, and ordering the employee to pay back any financial gain -- would not apply to the mayor’s fundraising.)

De Blasio has refused to speak on the matter since the latest news was revealed, first in reporting by The City, only saying that he believes he has sufficiently addressed an issue that is now past, without acknowledging the new information about the DOI referral -- including findings of wrongdoing by him -- or the question of whether he received a private warning letter from COIB.

When pressed yet again by reporters at an unrelated news conference last week, the mayor maintained his stance, saying, “I’m just not going over it. Every investigation was closed, no further action was taken, and the entity involved is defunct.”

The Conflicts of Interest Board cannot reveal whether any action is taking place or took place unless it formally determines the law has been violated. That would require the board to fully adjudicate a case and issue a public determination including action taken, which it typically does multiple times a month, often for cases in which a city employee misuses city resources, like using official email accounts for personal business or having outside employment without a waiver from the COIB.

It appears the type of fundraising de Blasio did through his now-shuttered non-profit did not meet the legal requirements for a formal penalty, even though he ignored COIB guidance.

A new rule issued by COIB last week now makes the type of fundraising de Blasio carried out -- soliciting donations to government-affiliated nonprofits from people and companies with pending city business -- a punishable offense.

The rule is based on two COIB advisory opinions from 2003 and 2008, respectively, which were cited in the DOI referral; “an advisory opinion is not a ‘rule of the Board,’” according to a statement that accompanied the new rule, and as such cannot lead to penalty on its own, even if violated.

The episode casts light on how far New York City’s conflicts of interest law goes and what COIB is able to do to enforce it. The de Blasio case has shown challenges around how to bring the ethical underpinnings of the law to bear in cases where there is not a well-established precedent or official proscription.

“The Board has now acted”
In the absence of formal enforcement the board has, since 1995, retained the option of issuing a private warning letter to city employees who have come close to violating the conflicts of interest law, but whose behavior fails to satisfy some element of it.

A COIB spokesperson provided Gotham Gazette a list of four instances in which a private warning letter might be used, including when there is not enough evidence to support a violation, or when “there is some legal reason why the Board is unable to engage in a formal enforcement action.”

Also on the list of instances are when the public servant has already been disciplined by their employing agency and when “a current or former public servant has allegedly committed a minor or isolated violation, particularly if self-reported, e.g., a public servant sent a single email using his City email account related to his private business.”

The latter two are unlikely to be the case for de Blasio and the Campaign for One New York, given that de Blasio does not appear to have ever been formally disciplined, and the fact that his non-profit raised approximately $4 million and solicited donations from people with business before the city on multiple occasions, according to the DOI report.

The conflicts of interest law was enshrined in the city charter in 1990, and there is nothing in it that mentions private or confidential warning letters.

In 1995, while its enforcement staff was severely diminished and facing a mounting backlog of cases, COIB was employing letter notices to ensure compliance in financial disclosure matters. The same year, the board issued six “informal warning[s] or other confidential letter[s]” for the first time. Also that year, the board established a formal liaison with the Department of Investigation to bolster the enforcement work of its anemic staff.

For the past decade COIB has sent between 46 and 88 private warning letters per year, according to its annual report. In 2018, the year the DOI referred the Campaign for One New York case to COIB, 62 private warning letters were sent.

“It’s questionable that an agency can actually create policy without promulgating rules because it’s required that they go through a public process where there’s a hearing and people have input,” Alex Camarda of Reinvent Albany, a government watchdog organization, told Gotham Gazette.

But the private warning letter appears to be an informal tool COIB uses to ensure the law is followed, and tracked every year in the board’s annual report.

“A private warning letter is simply a letter written by the Board to a current or former public servant or lobbyist to educate the recipient about the law relevant to his or her alleged conduct,” the COIB spokesperson told Gotham Gazette in an email.

In COIB’s Monograph, which provides commentary on the conflicts of interest law, it states that private warning letters “sometimes prove useful in the enforcement process if a public servant who has been so warned commits another offense.”

Going forward, the new COIB rule will make soliciting donations from entities with city business to nonprofits affiliated with the city or a city official subject to the ethics law. Violations could result in fines of up to $25,000, the highest the board can impose.

But the new rule is not likely to apply to de Blasio’s past actions. In the COIB statement announcing the rule, the board said, “Without any ‘rule of the Board’ governing official fundraising, the Board is prohibited by the Charter from imposing a penalty on a public servant” who violated the Charter’s “catch-all” provision related to conflicts with one’s official duties. In the case of fundraising for nonprofits affiliated with a city agency or public servant, the statement says, “The Board has now acted to fill this gap.”

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by Ethan Geringer-Sameth, reporter, Gotham Gazette      

Read more by this writer.

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De Blasio Fundraising Exposed Grey Area for Ethics Board Wed, 15 May 2019 04:00:00 +0000
City Council Considers De Blasio Nominee for Department of Investigation https://www.gothamgazette.com/city/8102-city-council-considers-de-blasio-nominee-for-department-of-investigation https://www.gothamgazette.com/city/8102-city-council-considers-de-blasio-nominee-for-department-of-investigation mg headshot

Margaret Garnett (photo via City Hall)


Margaret Garnett, Mayor Bill de Blasio’s pick to replace recently fired Department of Investigation Commissioner Mark Peters, received praise from City Council Members and the support of City Council Speaker Corey Johnson at a Monday hearing on her nomination. Currently serving as the Executive Deputy Attorney General for Criminal Justice in the New York State Attorney General’s office, Garnett’s nomination hearing came amid significant controversy over de Blasio’s firing of Peters, who claimed on his way out that de Blasio’s behavior and motives in taking the unprecedented step of letting him go were highly questionable.

The DOI commissioner, charged with running the agency that independently investigates corruption and wrongdoing in city government, is the only mayoral department-head appointee that requires approval by the City Council. Peters, the treasurer for de Blasio’s first mayoral campaign, used his position to examine systemic failings in the mayor’s administration and issued several scathing reports on the public housing authority, the police department, and the children’s services department, among other agencies. But Peters’ work drew the ire of the mayor, who reportedly considered removing the commissioner for months.

The mayor was presented with a justifiable opportunity after an independent investigator, prosecutor James McGovern, issued a report that said Peters had exceeded his legal authority in attempting to take over an independent office that conducts oversight of the Department of Education, among other transgressions.

In responding to the report and his termination, Peters questioned the mayor’s motives in a letter to City Council Speaker Corey Johnson and Council Member Ritchie Torres, who chairs the Committee on Oversight and Investigations. Peters pointed to instances where the mayor and his aides had sought to suppress critical reports by DOI and speculated that de Blasio was attempting to bring an end to potential ongoing investigations into the mayor’s office. Those actions, he said, could chill the independence of the next DOI commissioner.

De Blasio responded that Peters was fired for cause and alluded to other troubling behavior not in the McGovern report, while adding that he regretted nominating Peters in the first place and saying the former prosecutor had delusions of grandeur. A BuzzFeed News report on Monday appeared to poke holes in Peters’ critique of the mayor, citing unnamed former and current DOI employees who said that Peters himself quashed a report about NYPD officers who lied in official statements and were not disciplined.

Naturally, Peters’ conduct and the saga around his dismissal by de Blasio formed the basis of Monday’s City Council hearing, held by the Council’s Committee on Rules, Elections and Privileges, chaired by City Council Member Karen Koslowitz. Council Members questioned Garnett on the approach she would take if she was confirmed to replace Peters in leading an office with dozens of investigators and the power to make arrests, and pressed her on how she would withstand influence from the administration and handle investigations, if any, that are already underway related to the mayor’s office.

“To do its job, It is imperative that DOI remain independent from the entities it is obligated to monitor, including and especially the mayor,” Speaker Johnson said in his opening statement. “The DOI commissioner must not be beholden to any political figure and she must be capable of withstanding political pressure that would affect the integrity of DOI’s work.”

Garnett emphasized her prosecutorial experience and her apolitical beliefs in her testimony. She also said that the findings of the McGovern Report, based on which Peters was fired, were “very shocking” and said she herself would expect to be terminated under those circumstances.

The Council members and Garnett seemed reconciled to a degree of professional tension between the legislative body and the independent agency. The McGovern report, Johnson said, raised the question of whether there needs to be structural changes to prevent the types of actions for which Peters was removed. “Who watches the watchman?,” Johnson asked.

But Garnett seemed to reject that idea, emphasizing rather that DOI remain independent and create an internal culture of integrity to prevent even the commissioner from abusing their power. “It’s very important...that prosecutors and law enforcement investigators be independent from political influence or political control, partisan concerns,” Garnett said, “and in order for that independence to be effective, that often means limited oversight by elected officials and other bodies.”

Garnett said she could cite “dozens of examples” from her career of withstanding political pressure into investigations, and said bluntly that if she was ever asked to end a particular inquiry or affect its outcome, “The first thing I’d do is hang up the phone.”

“I’m not a political person, I have no political ambitions...I would much sooner risk being fired than risk damaging my professional reputation,” she later said. Garnett is a veteran prosecutor and previously served as Assistant United States Attorney for the office of the U.S. Attorney for the Southern District of New York. She has prosecuted tax fraud, embezzlement, narcotics cases and violent crimes, supervising the Violent and Organized Crime Unit for four years. She was later appointed Chief of Appeals for the Criminal Division. In the Attorney General’s office, besides heading the criminal division, Garnett oversees investigations of deaths of unarmed civilians in police interactions through the Special Investigations and Prosecution Unit.

Council members also used the hearing as an opportunity to delve further into Peters’ actions as commissioner, seeking assurances from Garnett that she would not make the same missteps. Among Peters abuses of power was the firing of a whistleblower in his own department, which Johnson said, and Garnett agreed, might necessitate strengthening whistleblower protections through legislative action.

Garnett shared the Council members’ apprehensions about Peters’ disclosure, in his letter to the Council, of the possible existence of investigations into the mayor’s office. But she also promised to look into any such investigations and said she would follow the facts and evidence without backing down as Peters’ letter suggested.

“I can assure you that I will not be chilled,” she said, “and to the extent that anyone, Mr. Peters or in the administration or otherwise, thinks that I will be intimidated or chilled, I think they’ll be sorely disappointed.”

Peters’ actions also prompted Council members to seek clarity on DOI’s role and authority over the NYPD inspector general, which is housed at DOI, and the Special Commissioner for Investigation at DOE, which Peters had tried to bring under his control. Garnett shared their concerns and was asked repeatedly about SCI’s structure in relation to DOI, even though she said she could not adequately address the question since she had yet to examine it. Council Member Mark Treyger in particular questioned whether that structural relationship should be reimagined considering that SCI has not conducted any systematic review of DOE for years despite the agency accounting for the largest share of the city budget.

Council Member Torres, who was critical of the mayor’s decision to fire Peters, said Garnett was “exceptionally qualified” to replace him. He said his “greatest frustration” with DOI was the lack of acknowledgement of the Council’s requests for probes of city agencies or particular issues. Garnett made no promises about instituting a formal reporting structure, as Torres proposed, but she agreed to have conversations with members about their concerns.

Members praised Garnett’s testimony and lengthy resume and, in the end, her confirmation to the post seemed assured (a vote is likely to be taken in committee then the full Council in the coming days). Shortly before departing the hearing, Johnson said he was impressed with Garnett’s testimony and qualifications and would support her nomination. “I feel confident in your ability to lead this agency,” he said.

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by Samar Khurshid, senior reporter, Gotham Gazette
     

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City Council Considers De Blasio Nominee for Department of Investigation Mon, 26 Nov 2018 05:00:00 +0000
'Doubt Upon the Mayor's True Motives': Investigations Commissioner Responds to Firing by De Blasio https://www.gothamgazette.com/city/8089-doubt-upon-the-mayor-s-true-motives-investigations-commissioner-responds-to-firing-by-de-blasio https://www.gothamgazette.com/city/8089-doubt-upon-the-mayor-s-true-motives-investigations-commissioner-responds-to-firing-by-de-blasio Mark Peters

Mark Peters (photo: William Alatriste/City Council)


Department of Investigation Commissioner Mark Peters, in his final days on the job after Mayor Bill de Blasio fired him on Friday, refuted the mayor’s stated reasons for the termination in a bluntly worded letter sent Monday to City Council Speaker Corey Johnson and Council Member Ritchie Torres who chairs the Committee on Oversight and Investigations, and released to the news media (read the full letter below).

Peters, who was once treasurer to de Blasio’s first mayoral campaign, has had a tense relationship with City Hall over the last few years. Under his leadership, DOI has conducted several investigations into city agencies that have angered the mayor and embarrassed his administration. Peters was asked to resign Friday afternoon but refused, following which he was terminated in a meeting with First Deputy Mayor Dean Fuleihan. De Blasio announced that Margaret Garnett, New York State’s executive deputy attorney general for criminal justice, was being nominated to replace him -- the DOI commissioner is the only city agency head that must be approved by the City Council.

Along with repeated clashes with City Hall, part of the pretext for Peters’ firing was the finding of an independent investigator that the DOI commissioner overreached his authority and made misleading statements to the City Council and to top administration officials about his attempt to bring a Department of Education investigative office under his control. “The DOI Commissioner is supposed to be most pristine of all – that’s not pristine,” de Blasio said at a Friday news conference, where he said he regretted appointing Peters to the post and explained his decision to fire him.

Under the city Charter, Peters was allowed an opportunity to give a public explanation. In his letter on Monday, he pointedly sought to rebut the administration’s rationale for letting him go. He insisted that the independent investigator’s report on his actions, while pointing out issues for which he had apologized, “contains multiple factual errors that the Mayor now repeats” and said that the mayor’s interactions with DOI and current investigations into the administration “must cast doubt upon the Mayor’s true motives.” Peters said the mayor’s actions could have a chilling effect on the independence of the next DOI commissioner and said he was willing to appear before the City Council to apprise them of investigations into the administration “so that the Council at least has a record of these investigations in the event that they are unreasonably delayed or discontinued by my successor.”

He detailed interactions with the mayor and other members of the de Blasio administration, including one phone call on which he alleges de Blasio screamed at him over an imminent report and instances whereby he alleges that administration officials repeatedly attempted to stop him from releasing damning reports, such as those into NYCHA and the Department of Correction.

"The suggestion that anyone at City Hall – including the Mayor – tried to stop any DOI review is entirely false,” de Blasio spokesperson Eric Phillips said in a statement Monday morning. “What is not in question is that Margaret Garnett is the most qualified, independent person to lead DOI and restore credibility in its important work."

Council Member Torres, in a statement on Monday, said Peters’ letter “reveals a pattern of interference with DOI investigations and intimidation against DOI officials that borders on the unethical and should be illegal.” He did not, however, say whether the Council would call Peters in to testify at a hearing.

Peters' full letter: 

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by Samar Khurshid, senior reporter, Gotham Gazette
     

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'Doubt Upon the Mayor's True Motives': Investigations Commissioner Responds to Firing by De Blasio Mon, 19 Nov 2018 05:00:00 +0000
Investigation Commissioner on Examining NYPD, NYCHA and Correction https://www.gothamgazette.com/city/7710-investigation-commissioner-on-examining-nypd-nycha-and-correction https://www.gothamgazette.com/city/7710-investigation-commissioner-on-examining-nypd-nycha-and-correction Mark Peters DOI Cy Vance

Commissioner Peters at a press conference (photo: @NYC_DOI)


It took Mayor Bill de Blasio and the New York City Police Department two years to accept what the city’s Department of Investigation had uncovered in 2015, DOI Commissioner Mark Peters said recently: that quality-of-life crime enforcement, like marijuana arrests, does little to reduce violent crime and that these arrests disproportionately affect people of color.

When the DOI came out with the report detailing these findings, it experienced pushback from the mayor, who publicly questioned the accuracy and methodology behind the data, as well as from then-NYPD Commissioner Bill Bratton. But, at a City Council hearing last month, NYPD Commissioner James O’Neill, who succeeded Bratton, not only agreed that marijuana arrests had little bearing on the reduction of violent crime but also acknowledged the need for a comprehensive study on why these arrests disproportionately affect communities of color -- something DOI’s 2015 report recommended.

“Would it be better if everybody agreed on that two years earlier?,” asked Peters, the DOI commissioner since 2014, on a recent episode of the What’s The [Data] Point podcast from Gotham Gazette and Citizens Budget Commission. “Sure. But the point is, two years later, the NYPD in fact has accepted the basic premise of our report [and] has agreed to do the thing we think needs to be done.”

Since Peters took over DOI after being nominated by de Blasio and confirmed by the City Council, the department’s work – including investigations into the NYPD, the city’s public housing authority (NYCHA), the Department of Correction, and other city agencies – has made many waves, including by frustrating de Blasio on several occasions as it has uncovered waste, fraud and abuse in city government. It is a testimony to the agency’s cherished independence, according to Peters, which is critical to earning and increasing the public’s trust in government and its ability to tackle serious problems.

Establishing a clear sense of independence at the department, however, was something Peters had to work early on to establish given that, as treasurer, he had been a key part of de Blasio’s mayoral campaign in 2013. But as DOI has released both incremental and bombshell reports over the past four-plus years, Peters has earned praise from skeptics. He has also overseen the doubling of personnel at DOI, in large part due to building out the new office of the Inspector General of the NYPD, which has produced some of the most controversial work of the Peters-de Blasio era, after its creation was enshrined into law by the City Council in 2013 over a veto by then-Mayor Michael Bloomberg.

The Role of DOI and its Commissioner
“DOI’s role is to provide transparency,” Peters said, and, when necessary, “to demonstrate ‘what we have now is not working.’”

His department is one of the oldest law enforcement entities in New York. It has jurisdiction to root out corruption, waste, and abuse throughout city government, as well as in companies that do business with or are regulated by the city, such as the construction industry. DOI has a unique ability and mandate, and looks at both specific instances of wrongdoing and larger systems that may be ineffective or corrupt.

DOI is designed in the city charter to be largely independent from the mayor, though the mayor does nominate the commissioner, who must also be approved by the City Council.

“I’d like to think that the mayor picked me because I’ve spent really the 20-odd years before in law enforcement and, in particular, doing both law enforcement and anti-corruption work,” said Peters, whose resumé includes titles like Chief of the Public Corruption Unit and Deputy Chief of the Civil Rights Bureau for the office of the New York State Attorney General. He also previously worked at various civil rights organizations, such as serving as the Senior Staff Attorney at Children’s Inc., a national organization helping abused children.

Doubts about Peters’ potential independence dominated public discourse around the time of his confirmation hearings in 2014. Since then, however, contention among DOI, the mayor, and the agencies that DOI investigates – such as the aforementioned tension over the DOI’s 2015 report regarding quality-of-life, AKA broken windows, policing – have laid those doubts to rest. Of his progress so far, Peters said, “I’d like to believe that, four years on, people are reasonably comfortable that we’ve been independent and that we will continue to be independent.”

One of the first things that Peters did as the newly appointed DOI commissioner, he said on the podcast, was talk to the mayor about increasing the department’s funding in order to acquire the appropriate amount of staff, especially in regards to overseeing the NYPD.

Subsequently, since 2013 the headcount of personnel at DOI has doubled and its budget has similarly increased by 58 percent, rising from $30.6 million in 2013 to $48.2 million today.

“Without that,” said Peters, “all the laws in the world saying ‘You’ve got the authority to do it’ are meaningless if you don’t have the troops to actually get the work done.”

Investigating the NYPD
The city charter has always granted DOI the jurisdiction to create an inspector general for the NYPD, along with the rest of the city government, but while DOI serves as inspector general for all city government and launched specific inspectors for other agencies, one never materialized for the NYPD. “Institutions are governed by a series of laws, but they are also governed by a series of practices and traditions,” Peters said when asked why there hadn’t been an NYPD IG before the City Council legislation. “That’s just true.”

The law passed by the Council in 2013 “essentially said, ‘You’ve always had the power to do this, now we are directing you that you must do this,’” Peters said.

As a result, the DOI hired about 50 new staff members, including Philip K. Eure, the first and current Inspector General for the NYPD. Along with the 2015 report on broken windows policing, a philosophy and resulting practice supported by Bratton, O’Neill, and de Blasio, DOI has released other NYPD reports, including one this year that shed light on the NYPD’s handling of sexual assault cases.

According to Peters, the report showed that while the number of sexual assault cases have increased by 65 percent in the last decade, staffing for the special victims division remained flat, with only 67 detectives assigned to work adult sex crimes. As a result of the understaffing, a policy relegated ‘acquaintance rape’ (as opposed to ‘stranger rape’) to be sent out from the investigation units to the precincts, where many officers may be unequipped to deal with such cases. The facilities in which the police interview sexual assault victims were additionally deemed inadequate given the sensitivity of the cases. And, perhaps most importantly, DOI obtained documents that revealed that even the top ranks of the NYPD knew about these problems and were not taking sufficient measures to remedy them.

NYPD officials pushed back on the report and attacked DOI for not interviewing the then-chief of detectives. They, along with the mayor, urged caution about believing the findings of the report and said that it was being further examined and that the new chief of detectives would be reevaluating everything under his purview anyway.

At a City Council hearing last month, NYPD officials acknowledged the poor state of interview facilities for the victims of sexual assault and said they would invest in fixing them. While the NYPD’s formal response to the report is expected at the end of June, Peters sees progress in how much attention and potential change is resulting from the DOI report.

“I think what’s happened is you’ve seen we’ve sped up the process of getting at this problem without people having to go to court and use litigation,” Peters said, referring to the lawsuits brought against the NYPD in response to the high rates of stop-and-frisk, a practice deemed unconstitutional in terms of how the NYPD targeted people of color. “As an old civil rights lawyer, by the way, there’s nothing wrong with litigation, but it’s not the most efficient way of changing things.”

Peters stressed the value of DOI’s work in terms of transparency. “The only way for the City Council to hold really good, thoughtful hearings is for them to have something like our reports,” said Peters. “Because that’s the baseline material that allows you to then ask questions of the NYPD. If you wanna have the NYPD come in and testify and you wanna ask them the hard questions...the first thing you need is all of DOI’s work telling you what’s going on.”

The Department of Correction and Closing Rikers
Last summer, the de Blasio administration announced plans to lower the city’s incarcerated population and shut down the Rikers Island jails, while creating additional jail space in four borough-based facilities. While public policy is under the jurisdiction of the mayor and the City Council, it is the DOI’s job to make sure that policy and programs work.

“Part of making it successful is pointing out that, in and of itself, taking Rikers and moving it to borough facilities...is not gonna solve the problems of violence and contraband smuggling that we’re seeing,” Peters said, discussing work DOI has done to examine problems at city jails, including those on Rikers.

A report that the DOI issued earlier this year found that the problems of violence and contraband smuggling, which are rampant at Rikers, are happening at similar levels at the jail facilities in Manhattan and Brooklyn. Peters estimated that about 50 correction officers and facility staff have been arrested so far for involvement in contraband schemes, such as accepting bribes in exchange for smuggling. Additionally, undercover officers were also able to smuggle weapons and drugs into the borough-based jail facilities.

“I don’t see any reason to believe that that level of arrests is necessarily gonna go down over the next year or so,” Peters said. “So we still have a huge amount of work that needs to be done to get at those problems.”

As a result, Peters doesn’t see the plan to shutter Rikers as a silver bullet solution to the city’s jail problems. “As we plan for this, we need to continue planning for how do we deal with security and mental health and contraband smuggling,” he said.

Safety Violations at NYCHA
When DOI investigated the New York City Housing Authority (NYCHA) late last year, it found that the public housing authority not only violated lead paint, smoke detector, and elevator safety procedures, but also falsified documents to the federal government that said it was complying with safety protocols.

The report DOI produced based on NYCHA misconduct led to public discussion over the failings of the agency as well as to City Council hearings, where NYCHA officials committed to making internal changes based on the findings of the report. Peters believes that a recent leadership change at NYCHA is linked to the DOI investigation that outed the safety violations and false paperwork.

“We said, ‘Look, NYCHA is failing to meet the standards that the city and the federal government have already set for lead safety,’” Peters said. “In other words, no, we’re not experts on how much lead exposure is safe, but the city and the federal government have said, ‘Here are the rules.’ What we then do is come along and say, ‘You’re not following the rules.’”

In general, NYCHA is underfunded and lacks the proper resources to fix some major problems, Peters said. To get rid of the mold in NYCHA apartments, for example, the agency would have to fix the roofs, which is difficult to do without the federal funding NYCHA has historically relied upon. According to Peters, the federal government hasn’t paid its fair share to NYCHA over the past decade.

“DOI has not spent a lot of time criticizing NYCHA or investigating issues of NYCHA that are related to that kind of funding,” Peters said, explaining, though, that NYCHA must still be organized, honest, and as efficient as possible, “because telling NYCHA that you need the money is true, but they know that. We all know that. And we do not have oversight authority over the federal government.”

Simultaneously, other areas of NYCHA, such as following the standard safety protocols for lead paint or smoke detectors, are not related to federal government funding. Instead, it is a matter of management doing its job.

Unearthing these problems of mismanagement and malfeasance at NYCHA, and throughout city government and beyond, is the crux of DOI’s mission.

“Part of the reason I think it’s important to have a permanent independent inspector general is we’re not going anywhere,” Peters said. “Our investigations into NYCHA aren’t finished. We are continuing to look at this...so that if NYCHA, having said they’re going to deal with this, doesn’t, we’ll be back in six months and we’ll be able to say to the Council and the public and to journalists and to all of you, ‘Here’s what really happened.’”

[Listen: What's The [Data] Point? 402, with Investigation Commissioner Mark Peters]

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by Chelsey Sanchez, Gotham Gazette
@chelseynsanchez  @GothamGazette

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Investigation Commissioner on Examining NYPD, NYCHA and Correction Mon, 04 Jun 2018 04:00:00 +0000
What's The [Data] Point? 402, with Investigation Commissioner Mark Peters https://www.gothamgazette.com/city/7676-what-s-the-data-point-402-with-mark-peters https://www.gothamgazette.com/city/7676-what-s-the-data-point-402-with-mark-peters whats the data point


What's The [Data] Point? Episode 41 -- 402, with DOI Commissioner Mark Peters [You can download What's The [Data] Point? wherever you get your podcasts, including on iTunes]

mark peters podcast 277px

Department of Investigation Commissioner Mark Peters is one of the most feared officials in New York City. The power of his office has few limits as it investigates waste, fraud, and abuse in and around city government. DOI issues reports, makes arrests, and really gets under the hood of city agencies.

Under Peters, who took office in 2014, DOI has issued bombshell reports about the NYPD, NYCHA, the Department of Correction, and other city agencies and entities. Peters joined the podcast to discuss the work of the office, which has grown substantially during his tenure, his relationship with Mayor Bill de Blasio, who nominated him to the position but has criticized his work on several occasions, and more.

Listen to the conversation and let us know what you think: Ben Max of GG (@TweetBenMax), Maria Doulis of CBC (@MariaDoulis). Listen below or download wherever you get your podcasts!

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by Ben Max, Gotham Gazette
     

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What's The [Data] Point? 402, with Investigation Commissioner Mark Peters Thu, 17 May 2018 04:00:00 +0000
City Council Evaluates Progress of NYPD Inspector General https://www.gothamgazette.com/city/7325-city-council-examines-progress-under-nypd-inspector-general https://www.gothamgazette.com/city/7325-city-council-examines-progress-under-nypd-inspector-general Mark Peters DOI City Council

DOI Commissioner Mark Peters (photo: William Alatriste)


Four years ago, over the veto of then-Mayor Michael Bloomberg, the City Council passed the Community Safety Act, a landmark piece of legislation relating to policing in New York City. One of the law’s most prominent planks was the creation of the NYPD Inspector General, an independent police department watchdog that would audit NYPD practices and operations and make recommendations on improvements.

With the nation on edge over widely disseminated videos of black men being shot by officers and reform activists continuously criticizing the NYPD’s broken windows policing model and the use of stop-and-frisk as racist, the Community Safety Act aimed to increase the department’s accountability to the public and increase the public’s confidence in the department. In 2014, after Mayor Bill de Blasio took office, the city’s Department of Investigation (DOI) appointed Philip Eure, the former head of Washington D.C.’s Office of Police Complaints, to be the first NYPD Inspector General.

On Wednesday, the City Council’s Committees on Public Safety and Oversight and Investigations held a joint oversight hearing to see how, nearly four years down the line, the NYPD Inspector General is accomplishing its stated goals.

The IG’s goals for improving the NYPD were repeated several times throughout the hearing, which saw initial testimony from Eure and his supervisor, DOI Commissioner Mark Peters. Among those doing the questioning were City Council Members Brad Lander and Jumaane Williams, who were the lead sponsors of the Community Safety Act.

“The IG’s mission is to enhance the effectiveness of the police department, increase public safety, protect civil liberties and civil rights, and increase the public’s confidence in the police force, thereby building stronger police-community relations,” Eure said at the hearing. “We believe that we have made important strides towards accomplishing all of these goals in the last four years, and we look forward to continuing to build upon that work in the years to come.”

Since its first publicly released report in January 2015, concerning police chokeholds, the IG has released nine reports on various NYPD practices that have resulted in some significant policy changes, but have also occasionally resulted in no changes. When the IG releases recommendations, the NYPD is pressured but not required to adopt reforms to operations and practices; if the NYPD refuses to take up a reform voluntarily, the City Council can pass legislation to mandate it.

The IG has released reports on NYPD practices such as chokeholds, de-escalation and use of force, quality of life summonses, responding to emotionally disturbed people, body camera use, investigations of political activity, and, most recently, handling of U visa requests for undocumented immigrants who were the victims of a crime.

Although the NYPD has often refused to implement recommended policies, some significant reforms have been voluntarily taken up by the department. For instance, the NYPD's Intelligence Bureau has formalized tracking measures for investigations into political activity, particularly with regard to investigative deadlines that were often ignored by the department's investigators.

However, in a large number of areas, the NYPD has simply ignored the recommendations of the IG, at times displaying open hostility toward the IG’s office. In January, IG’s office released a report showing that the NYPD is not adequately coordinating Crisis Intervention Team (CIT) training for officers, crucial when responding to calls involving an emotionally disturbed person (EDP).

At Wednesday’s hearing, Council Member Lander asked Eure and Peters what could be done to ensure NYPD compliance with recommendations, highlighting the NYPD’s refusal to streamline and improve its coordination of trained officers responding to the scene of calls regarding EDPs.

Peters urged the Council to step up efforts to codify into law certain recommendations that the NYPD refuses to implement.

“The NYPD has accepted far more recommendations than they have not,” Peters said. “And that’s great. And then the job for us, the DOI, is to follow up and to make sure that they’re implementing that.”

Peters later said that instances where the NYPD refuses to comply are the most crucial places that the IG’s office and the Council must partner.

“At the end of the day, that is the place where it’s most important for us to be partnering with the Council,” Peters said. “Because you have that report, we present that report to the mayor, we present that to the Council. And so the Council has the opportunity to read that report if you have questions.”

Council Member Williams, who represents the district where an NYPD officer recently shot and killed Dwayne Jeune, an emotionally disturbed man, questioned when a task force would be created to investigate and determine best practices for the NYPD in responding to EDP calls. Four officers responded to the Jeune call; Jeune was killed by the only responding officer who did not receive CIT training.

Mayor Bill de Blasio initially refused to set up a task force after Jeune’s death in July, but relented after prodding from the Council, according to Williams.

Although Eure and Peters had earlier said that they shared reports with the NYPD and City Hall before releasing them to the public in order to glean potentially overlooked facts, Peters said that IG is not involved with the task force.

"I think, obviously, it is an important idea. What I would say, the task force is important, but I believe there are already some things that we know need to be done," Peters said.

The IG’s office will also soon be releasing its first report related to Williams’ recently passed bill, Intro 119, requiring compilation of litigation data against officers and for the IG to use that to develop recommendations. The IG will be releasing the report in April, which Williams said he looks forward to.

Williams proudly proclaimed that things are going well, despite the NYPD and pundits saying that the creation of the NYPD Inspector General would "destroy the city, the sky would literally crack open, and brown and black young people were gonna wreak havoc on this city, and the inspector general in particular was going to confuse all police officers, they would have no idea who to listen to: the inspector general or the commissioner."

Crime has continued to fall while the NYPD has adopted some, but not all, of the reforms proposed by the IG. All 23,000 foot patrol officers are scheduled to do their jobs with body cameras on their person by 2019.

And, according to Eure, the NYPD has issued tighter guidelines on use of force as a result of the Inspector General's reports.

"Approximately eight months after this office published its first report on use of force by NYPD, the department released a set of revised policies that more precisely define the use of force, as well as a more detailed tracking form," Eure said. "All uniformed officers are now required to use a 'Threat, Resistance, or Injury Form" (TRI) whenever they use force or witness another officer using force at the scene." Last year, the City Council passed a law requiring the NYPD to publicly report use of force metrics derived from TRI data, and Eure stated that the IG’s office will soon release a report on the NYPD’s compliance with TRI.

Eure also boasted of a 2016 report that found no increase in felony crime concurrent with a dramatic decrease in enforcement of quality-of-life offenses, better known as broken windows offenses. While the NYPD continues to utilize broken windows policing that data shows disproportionately impacts communities of color, arrests and summonses have continued to drop, as has crime.

After Peters and Eure, advocates and service providers testified, offering some ideas for further scrutiny by the IG. According to testimony from Brooklyn Defender Services’ Debora Silberman, 86% of the almost 61,000 low-level marijuana arrests in New York City were of African-Americans or Latinos, despite whites using marijuana at an approximately equivalent rate.

Silberman also criticized the common NYPD practice of “testilying,” better known as police perjury, and the NYPD IG’s failure to address an apparent culture of officers lying on the stand. Recently, The New York Times reported that a Brooklyn judge warned the city that a court hearing on police perjury was imminent.

“As a public defender, I can assure you that such lying is prevalent and the NYPD has made no recognizable efforts to meaningfully address it,” Silberman said. “Likewise, the imbalance of power in the criminal legal system that pressures defendants to accept plea deals rather than go to trial also enables prosecutors to provide cover for police perjury, or ‘testilying,’ by making offers that defendants all-but-cannot refuse.”

Although the NYPD has decided not to comply with many recommendations, the department has not been outright dismissive of the IG. Peters said that, to date, the Inspector General has not had to issue a subpoena to the NYPD for documents related to an investigation.

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by Ben Brachfeld, Gotham Gazette

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City Council Evaluates Progress of NYPD Inspector General Wed, 15 Nov 2017 05:00:00 +0000
Proposal Would Mandate Media Blitz for City's Anti-Corruption Efforts https://www.gothamgazette.com/city/7012-bill-would-mandate-awareness-campaign-for-city-s-anti-corruption-efforts https://www.gothamgazette.com/city/7012-bill-would-mandate-awareness-campaign-for-city-s-anti-corruption-efforts lead photo

Council Member Vincent Gentile (photo: William Alatriste/City Council)


The City Council’s Committee on Oversight and Investigations held a hearing on Monday to discuss three bills, including one which would require the Department of Investigation to conduct an annual public outreach campaign to inform New Yorkers about how to identify corruption and use the resources of the DOI to file corruption complaints.

The Department of Investigation, the city’s independent watchdog agency, is responsible for investigating wrongdoing by city agencies, officers, elected officials, and entities and individuals who do business with the city. Intro. 1618, sponsored by Council Member Vincent Gentile, chair of the committee, would require that the DOI launch annual advertising campaigns intended to educate the public about its anti-corruption efforts, as well as require the department to file an annual report detailing the complaints received and disaggregate them by “agency, month, type of misconduct, and the mechanism through which the complaint was submitted.”

“I commend the commissioner and the department for committing valuable resources to raising awareness of the importance the public plays in assisting the DOI in weeding out corruption,” Council Member Gentile said in his opening statement.

In 2016, the DOI launched a series of ads on city buses and subways with slogans such as “Bribery and corruption are a trap. Don’t get caught up,” and “Get the worms out of the Big Apple,” to encourage New Yorkers to report instances of corruption through its complaints hotline. The campaign cost $312,000, financed through asset forfeiture funds from defendants of DOI investigations. Within the first four months of the 2017 fiscal year, complaints filed to the DOI increased by eight percent compared with the number of complaints filed in 2016. The DOI cited the 2016 outreach campaign as the main reason for this increase. Gentile’s proposed bill would expand the campaign to print, radio, and other public forums.

Representatives from DOI were invited to testify at Monday’s hearing, but Commissioner Mark Peters was unable to attend. Other DOI staff were in attendance but did not testify. When Council Member Rory Lancman asked about the commissioner’s absence, Council Member Gentile stated, “I don’t know the particulars” and noted that “the Department of Investigation has indicated to me that they will send a letter to the Council by the end of this week, which will be used as testimony as part of this record.”

In an email to Gotham Gazette, a DOI spokesperson said, "DOI agrees with the City Council about the importance of public outreach and is working with the Council on the details of this legislation."

Brandon Muir, executive director of Reclaim NY, a non-profit organization aimed at increasing transparency in government, was the only member of the public to offer testimony on the potential impact of the bill. “As a strong defender of the taxpayer in New York, it will be important for the campaign to identify and make public specific metrics that judge the efficacy of the ad campaigns," he said. "Consistent citizen oversight relies on citizens understanding that the rules of the game exist.”

Council Member Gentile asked Muir if he believed an increase in advertisements would actually help in combatting fraud and corruption. “Of course, and I would look to ‘See Something, Say Something,’” Muir said, referring to the Department of Homeland Security’s national ad campaign that seeks the public's help in identifying potential terror threats. “I mean, that’s now something I think I’ve heard on Saturday Night Live, it’s become such a popular moniker,” Muir added.

But Muir also acknowledged that the success of the DOI's campaign would largely be determined by whether or not citizens would continue to stay involved in the oversight process in the long term. “I think we need to look at it in the context of an ongoing effort to increase transparency,” he said, “not just a one time statement or a one time bill.”

This article has been updated.

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Proposal Would Mandate Media Blitz for City's Anti-Corruption Efforts Mon, 19 Jun 2017 04:00:00 +0000
Investigations Commissioner Lays Out Budget Needs For Agency https://www.gothamgazette.com/city/6798-investigations-commissioner-lays-out-budget-needs-for-agency https://www.gothamgazette.com/city/6798-investigations-commissioner-lays-out-budget-needs-for-agency peters and bk da

DOI Commissioner Mark Peters (photo: @DOInews)


At a City Council preliminary budget hearing on Thursday, Department of Investigation Commissioner Mark Peters laid out new funding and staffing needs for his agency, which is facing a $5 million proposed reduction in its fiscal year 2018 allocation by Mayor Bill de Blasio.

The proposed preliminary budget for the Department of Investigation (DOI), the watchdog body that monitors and probes public corruption and other wrongdoing at 45 city agencies, is $41.7 million, down from $46.7 million in last year’s adopted budget. (That number does not include another $13 million in federal forfeiture funds that is available for the agency to spend through fiscal year 2018. Peters also noted that these funds are not affected by federal budget fluctuations.)

Testifying at the hearing, held by the Council’s oversight and investigations committee, Peters stressed the need for adequate funding as the agency’s work has grown in key areas, including monitoring construction safety, NYPD surveillance practices, the Administration of Children’s Services, and the Department of Corrections. The agency has over 700 personnel, Peters said in his opening statement, working towards a “comprehensive strategy of systemic investigations, high impact arrests, preventative controls and operational reforms, in a manner designed to ensure we leverage our resources effectively.”

Although Peters didn’t provide an exact budget ask, he said after the hearing, “There’s work we’re doing both around the Department of Corrections and ACS where we believe that we could make very good use of some additional staff so we’re talking with OMB [the Office of Management and Budget] about it.”

Peters also spoke of the need for additional staff to cover a massive backlog in background checks for city employees, an issue raised by Council Member Vincent Gentile, chair of the committee, during the hearing. The city currently has a backlog of 4,000 needed background checks, and Peters projected that number would grow by another 1,600 over the next fiscal year.

Gentile expressed a range of concerns about the DOI’s responsibilities and how DOI measures success. Pointing to the Preliminary Mayor’s Management Report, which gauges performance indicators for all city agencies, Gentile wondered why the report did not include data for individual Inspectors General at different city agencies. Peters, who had earlier in his testimony warned against a heavy dependence on statistics, instead emphasized the agency’s focus on citywide systemic change. Reporting on 45 city agencies, he said, would be “cumbersome” and “not necessarily helpful” to gauge effectiveness as DOI works to root out waste, fraud, and abuse.

At Gentile’s insistence, Peters also explained his reticence in relying on the length of an investigation as a performance metric. Quicker investigations, he said, could be less effective. “The biggest cases where we have the most impact are the ones where we don’t jump too quickly,” he said.

He added, “I think the best metric, that’s hard to put a number about is, ‘Is there a greater sense in these city agencies that there’s a cop on the beat watching and are we seeing significant institutional change?’”

Peters did provide numbers to illustrate the agency’s work, however. In the 2016 calendar year, DOI made 694 arrests, a 22% increase over 2015, stemming from more than 1,800 investigations. The agency also referred over 800 cases for criminal prosecution, a 14% increase.

The hearing also touched on agency financial savings, a particularly pertinent subject this year round with major risks in the city budget, including potential federal funding cuts, proposed state funding cuts, and slowing city economic growth. DOI identified a one percent reduction in its Other Than Personal Spending (OTPS) costs, amounting to about $22,000. “Have you considered other areas that might yield some cost savings,” Gentile asked.

Peters said the agency had little room for creating savings through efficiencies. “The real savings come from things like doing the monitoring of monies spent,” he said, referring to DOI’s role as a watchdog of others and citing the $40 million saved by the agency’s arrest of four people involved in defrauding the “Build It Back” Superstorm Sandy relief program.

Gentile, in closing out the hearing, said he anticipates an executive budget hearing for the agency, unlike last year when DOI saw a substantial 43 percent increase in its budget. The executive budget will follow on the heels of the Council’s official response to the mayor’s preliminary budget, after weeks of hearings like the one held Thursday. The next fiscal year starts July 1.

[Related: Under the Hood at Agencies, Investigation Department Increases Policy Focus]

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by Samar Khurshid, senior reporter, Gotham Gazette
     

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Investigations Commissioner Lays Out Budget Needs For Agency Thu, 09 Mar 2017 05:00:00 +0000
Under the Hood at Agencies, Investigation Department Increases Policy Focus https://www.gothamgazette.com/city/6648-under-the-hood-at-agencies-investigation-department-increases-policy-focus https://www.gothamgazette.com/city/6648-under-the-hood-at-agencies-investigation-department-increases-policy-focus doi ad horizontal trap

Department of Investigation ad (photo via DOI)


Formed in the 1870s, the city’s Department of Investigation (DOI) is a law enforcement agency tasked with keeping city government honest. Run well, DOI acts as a safeguard against fraud, abuse, and neglect in municipal government, an advocate for taxpayers, and an enforcer of ethics.

In 2013, then Mayor Michael Bloomberg described the agency as a "vigilant watchdog," and a "national leader in promoting transparency, efficiency, and accountability in government."

While DOI is often responsible for arresting bad actors in city government, its long-term impact is best seen in its investigative reports, policy recommendations, and follow through ensuring that agencies implement suggested reforms. As with many types of government reports, though, it is not always easily evident what type of oversight DOI provides to see that its recommendations are indeed implemented.

DOI has unlimited power to investigate any city agency, officer, elected employee, contractor, and those who receive city benefits: its jurisdiction spans 45 mayoral agencies and various other city entities, boards, and commissions. Through its subpoena power and by maintaining a working relationship with agencies under investigation, DOI has access to information and resources that can produce lasting reform.

Often, DOI investigations result in criminal prosecution. In the 2015 calendar year, DOI made 569 arrests from over 1,500 investigations, and received over 700 criminal prosecution referrals, nearly double the number from the prior year, as previously reported by Gotham Gazette. This data is from the tenure of DOI Commissioner Mark G. Peters, who was nominated to the position by Mayor Bill de Blasio and confirmed by the City Council early in 2014 despite some concerns about the fact that Peters had worked on de Blasio’s campaign.

Under Peters, DOI has focused less on arrests and more on investigations and reports to identify root causes of malfeasance or ineffectiveness and push comprehensive reform. "DOI, in the last two years, instead of being a reactive agency, which tended to react to complaints and react to tips coming in, has now become a proactive agency," Peters said at a March City Council budget hearing. The office’s capacity and budget have expanded under Peters.

The key feature of DOI reports are Policy and Procedure Recommendations (PPRs). PPRs identify relevant violations, neglect, and criminal activity, and propose solutions to the agency under investigation.

A typical PPR recommends the sharing of data analytics or internal reports to ensure that recommendations are being met. Some task agencies to provide employee training to close loopholes that led to the infractions at hand. A PPR usually prompts an official response from the agency under investigation, which details steps taken to address DOI recommendations, and any areas of disagreement.

Inspector generals, grouped by category (i.e. social services, uniform services) are responsible for monitoring PPRs; there are separate inspector generals for NYCHA, NYPD, the New York City Housing Development Corporation, and New York City Health + Hospitals. Commissioner Peters meets with his inspector generals for each agency every three weeks, according to comments made at a March hearing of the City Council’s Committee on Oversight and Investigations, which has oversight of DOI.

According to DOI, in fiscal year 2016, which ended June 30, it issued 693 PPRs with an implementation rate of 81%, up from the 74% implementation rate in fiscal year 2015. The number of PPRs was a 87% increase from the year before, DOI said.

"We have not, in the past, been as good at tracking compliance as I would like to be," Peters admitted at the same City Council hearing, noting that DOI was improving internal protocols.

IGs are responsible for monitoring DOI-issued timelines and delivering regular reports to the commissioner. Data collection plays an important role in this process, as does more regular tracking. According to Nicole Turso, the DOI press secretary, data that tracked progress had been updated only once a year, resulting in a lower implementation rate.

DOI has no legal authority to force agencies to accept the terms of PPRs, however, DOI typically has city government on their side. In some cases, the Mayor's insistence pressures agencies to adopt PPRs. In others, the agency in question will adopt recommendations to avoid public backlash. DOI also relies on the fact that compliance typically benefits both parties: there is a strong mutual interest in enacting reform. Still, agency pushback to DOI is not uncommon, especially during the initial investigatory phase.

"When you do the type of work that we do, there's always a certain amount of friction. But, having said that, we're all in it for the greater good,” said Turso, about city employees across agencies, in an interview with Gotham Gazette. “We're all out for integrity and good government. We parse through the difficulties that we have and make it work."

Turso pointed to the recent Rivington House investigation as a prominent exception to this rule.

In March of 2016, the de Blasio administration was found to have signed off on a series of decisions that led to the conversion of a Lower East Side nursing home into a new apartment building of market-rate condominiums. A DOI investigation into the process had already begun, as de Blasio officials had recognized mistakes made and notified the agency.

DOI investigations include virtually unfettered access to government documents. But in July, the Daily News reported that the mayor’s team withheld a memo revealing prior knowledge of the sale that appeared to compromise some of the accounting of how key decisions were made in removing deed restrictions from the Rivington House property and its subsequent sale. When DOI issued its initial report on the matter, it cited restrictions to its access to de Blasio administration documents and computers.

After DOI threatened litigation against the Law Department, according to DOI only then did the Law Department produce documents previously classified as irrelevant.

The Daily News reported that this refusal to cooperate was nearly unprecedented, citing that no DOI commissioner had been forced to threaten litigation under the Dinkins, Giuliani, and Bloomberg administrations.

Outside of the Rivington case, which was a very public embarrassment for the de Blasio administration, DOI reports mostly strong communication and efficiency in their collaborations with city agencies.

DOI investigations vary in nature, and three 2015 cases show the scope of the agency’s oversight: the first involves fraud within the Human Resources Administration (HRA); the second, negligence by the Department of Homeless Services (DHS); and the third, lack of accountability at the New York Police Department (NYPD) around the use of chokeholds prior the death of Eric Garner.

While DOI provided insights into the three case studies selected by Gotham Gazette for this article, it did not respond when asked for a variety of details about how DOI representatives ensure compliance with PPRs on a daily basis, or track them. 

Human Resources Administration Fraud
In December 2015, the Human Resources Administration alerted DOI of internal fraud, leading to the arrest of one current and one former HRA employee on charges of conspiracy to commit mail and wire fraud and aggravated identity theft. The culprits exploited a vulnerable computerized case management system and used benefit issuance procedures to steer $2.4 million to themselves and associates using Electronic Benefit Transfer (EBT) cards.

In order to investigate and prosecute these cases, DOI joined forces with HRA, the U.S. Attorney's Office for the Southern District of New York, the FBI, the New York State Office of the Inspector General, and the Richmond County District Attorney’s Office.

In October, DOI Commissioner Peters announced the sentencing of one former HRA employee to 23 months in federal prison for her role in schemes totaling approximately $1.8 million, including the purchase of $120,000 worth of Red Bull, later pawned off to small retail locations.

Following its investigations, DOI issued a series of recommendations to HRA. These included the design and implementation of a secured, electronic, fraud report system. DOI also recommended an increased supervisory review of cases and frequency of training, and the design and implementation of a comprehensive EBT fraud identification training program.

In its report, DOI commended HRA for taking immediate action to implement recommendations, including an agreement to enhance controls to monitor program vulnerabilities. Most importantly, HRA would continue sharing data analytics with DOI and continue collaboration to develop new strategies.

As of November, DOI reports that each reform timeline has been met.

HRA spokesperson Lourdes Centeno emphasized the two agencies’ strong relationship to Gotham Gazette. "HRA has a long-standing partnership with the Department of Investigations,” Centeno said, “and we value their assistance in adjusting instances of potential staff misconduct interagency."

Department of Homeless Services Shelter Conditions
In March 2015, DOI announced that a year-long investigation of 25 DHS-operated shelters revealed serious health and safety violations, a lack of social service programs, and inadequate or missing certificates of occupancy. The shelters provided housing for approximately 2,000 homeless New Yorkers.

In the report, Peters explained that the investigation was requested by Mayor Bill de Blasio, who came into office with about 51,000 people sleeping in city shelters (the number has since grown to about 60,000).

DOI reached its conclusions by reviewing records, interviewing shelter residents, and collaborating with inspectors from the Department of Buildings, Fire Department, and Department of Housing Preservation and Development. Upon DOI review, 621 building, housing, and fire safety violations were issued, including accounts of vermin infestations, blocked or obstructed entrances and exits, and nonworking smoke and carbon monoxide detectors.

DOI also discovered that DHS had not, for years, used the city's contracting process to secure providers, and was not enforcing existing contracts, eroding an important check that holds providers accountable for failing to meet health and safety standards.

Providers include faith-based non-profits like Volunteers of America, as well as organizations like the Women’s Prison Association, which serve groups like families affected by maternal incarceration, and others, including private landlords.

“Dangerous living conditions, rat-and-roach infested residences. And fire violations are the stark reality facing too many homeless families and children in the City’s shelters,” Peters noted in the DOI report.

Giselle Routhier, policy director at Coalition for the Homeless, said no one should underestimate the importance of building maintenance in providing shelter for homeless people and the role of shelter in helping people return to stable housing. "Poor conditions are problematic for very obvious reasons. There are health and safety issues—families are concerned whether roofs are caving in, versus actually being able to focus on getting the kids to school and getting out of shelter," Routhier said in an interview. "One of the best ways to make sure that you have a system that is capable of being operated with the proper oversight of conditions is to not always be concerned about having enough capacity," she said. "When capacity gets tight, everything else kind of false to the wayside."

The de Blasio administration has consistently struggled with several elements of combatting homelessness, in part due to the city's affordable housing crisis that leads to shelters busting at the seams. There are challenges with not only the conditions at shelters, but with helping to keep people in their homes through rental assistance and working with those ready to leave shelters on using vouchers to help pay for rent in stable housing. The administration has also seen significant community pushback to its efforts to open new shelters.

The essence of the DOI report, echoed in a damning December 2015 audit from city Comptroller Scott Stringer, was the deplorable shelter conditions. The two reports prompted significant city action, including the creation of a new shelter repair squad. The Department of Homeless Services’ Shelter Repair Squad has worked to aggressively address building violations, with significant progress, though many shelter issues remain.

“Being homeless is tough enough – no one in shelters, particularly children, should have to endure poor or unsafe living conditions,” said Mayor de Blasio in a May 2015 announcement of the shelter repair squad launch.

DHS pledged to bring in new shelter capacity through the city's procurement process. Lauren Gray, senior communications advisor at DHS, told Gotham Gazette that the agency has announced a commitment to increase the number of shelters city-wide as the administration transitions to a "borough approach" to help homeless individuals and families stay closer to their communities, jobs, and support networks. A more local approach is something de Blasio has recently promised as he has seen pushback to shelter siting plans in several neighborhoods.

DOI was especially critical of cluster sites, privately-owned residential buildings that the city has paid up to $3,500 a month to maintain the notoriously inadequate shelters. In January, 2016, de Blasio announced a three-year plan to phase out cluster sites completely, in coordination with DHS.

As 2016 nears an end, Gray reports that approximately half of the more than 1,700 cluster units have already been brought under contract. She also said that, as of mid-October, the shelter repair squad has helped see to “a 75% reduction in cluster unit violations since January 2016." 

As of November, DOI reports that each reform timeline has been met by DHS relative to the PPR from the March 2015 DOI investigation. 

NYPD Chokeholds & Accountability
On July 17, 2014, NYPD officer Daniel Pantaleo placed Eric Garner in a chokehold, a maneuver forbidden by section 203-11 of the NYPD patrol guide, leading to Garner’s death. The confrontation, caught on video, spurred public fury, fueling the national debate about excessive force by police officers, quality-of-life policing, and relations between law enforcement and communities of color.

On December 3, 2014, a Staten Island grand jury declined to issue an indictment of Pantaleo, or other officers on the scene.

In January 2015, the DOI Office of Inspector General for the NYPD (OIG-NYPD) published its first-ever report, an investigation into the NYPD's management of improper use of force violations.

OIG-NYPD aimed to shed light on how frequently officers were using chokeholds, why they were doing so, and what discipline was imposed on those who violated the prohibition. In order to review comparable use of force violations, OIG-NYPD conducted reviews of ten chokehold cases substantiated by The Civilian Complaint Review Board (CCRB) between 2009 at 2014. The CCRB is the civilian panel that reviews allegations against police officers in New York City.

Use of force complaints are investigated by CCRB. Cases, if substantiated, would move, with recommendations, to the NYPD, which determines discipline. In DOI-reviewed incidents, CCRB recommended the most severe level of discipline in nine out of ten cases with a substantiated chokehold.

Next, NYPD's Department Advocate's Office (DAO), responsible for prosecuting substantiated use of force cases, downgraded seven of CCRB's recommendations, proposing the least punitive disciplinary measure in four, and no discipline in another.

Ray Kelly, police commissioner from 1992-1994 and 2002 through 2013, was tasked with making a final determination. Kelly sided with DAO and rejected six CCRB recommendations, opting each time for less severe penalties or no discipline at all. The commissioner provided no explanation for his decisions.

In sum, DOI found that CCRB's input was barely heard, if at all. By the time cases reached the police commissioner's desk, CCRB disciplinary recommendations had been watered down substantially, if not completely.

Peters summarized this point in the DOI report, citing “the extent to which the NYPD has disregarded disciplinary recommendations from the Civilian Complaint Review Board and thus minimized the role of the central body tasked with investigating individual cases of police misconduct.” 

"There is no indication from the records reviewed that NYPD seriously contemplated CCRB's disciplinary recommendations or that CCRB's input added any value to the disciplinary process," another section of the DOI report reads.

OIG-NYPD found that CCRB and NYPD measured accountability by different standards: CCRB, "an investigative agency," substantiated cases specifically on "credible evidence:" video footage, third-party witnesses and officer records indicated harmful contact. DAO, a “prosecutorial unit," defined chokeholds through “contextual” evaluations: circumstantial evidence, personnel history, and the viability of future prosecution.

As a result, OIG-NYPD found that the two groups were operating with different guidelines, and, likely, agendas.

OIG-NYPD evaluated NYPD's training for officer communication and de-escalation tactics. In several cases reviewed, OIG-NYPD found that NYPD officers had used chokeholds as a first act of physical force in response to "verbal resistance," making little attempt to resolve the encounter through nonviolent means.

In the NYPD response to OIG-NYPD recommendations, Deputy Commissioner Lawrence Byrne touted the new “Remand" process requiring NYPD to issue formal written requests for penalty reconsiderations, upon disagreement with CCRB. A 2016 OIG-NYPD assessment labeled this reform "partially implemented," citing that NYPD had yet to adopt a more transparent disciplinary process alongside CCRB.

In the same response, Byrne announced that the NYPD had instituted a three-day refresher tactical training program to promote nonviolent resolution, designed to reach 20,000 officers out on patrol, and, “eventually,” all 35,000 uniformed service members.

Citizens Union, a government reform group, recently released an agenda for improved police accountability and included in it a more transparent process around the NYPD commissioner’s reaction to CCRB recommendations. Citizens Union also argues that CCRB should be the “primary finder of fact in cases it investigates, except in cases of clear error."

Byrne emphasizes NYPD autonomy. “We agree with your observation that no definitive conclusions can or should be drawn from such a limited universe of cases, nor do we believe it is useful to revisit the factual circumstances,” Byrne wrote to DOI. “While we are fully committed to increasing the collaboration between the NYPD and the CCRB, as you note in your report, the Police Commissioner continues to retain the final authority and complete discretion to make all judgments about internal discipline,” he also said.

DOI successfully pressured the commissioner into providing public rationale for his decisions. In a 2015 annual report, OIG-NYPD said that the commissioner had agreed to write explanations to CCRB for any decisions that "deviate downward" from original recommendations. The recommendation was deemed “implemented.”

While NYPD has met certain DOI timelines, there are also ongoing related concerns.

On the day following the release of the inaugural 2015 OIG-NYPD report, Mayor de Blasio vowed to veto legislation that would make the use of chokeholds by officers a misdemeanor offense. However, according to a Daily News report, a new set of June patrol guidelines stipulate specific circumstances that a banned chokehold can be excused if the Use of Force Review board determines that the officer’s actions were "reasonable and justified.” The Daily News reported that City Hall claims the new guidelines are clarifying determinations of excessive force, and there is no change to the chokehold ban.

City Council Member Rory Lancman, who chairs the Council’s Committee on Courts and Legal Services and sponsors the chokehold misdemeanor bill, thinks otherwise. In an interview, Lancman admonished de Blasio for liberalizing the previously absolute chokehold ban.

“The mayor has made it clear that he is not going to push the police department to reform how it holds officers accountable to use chokeholds, and if anything the mayor allowed the NYPD to loosen the restriction on chokeholds, so I think it sends a signal to police officers that the chokehold ban is not really a ban,” Lancman said. “Even if a conclusion is reached that you use a chokehold improperly, the consequences are minimal.”

The mayor’s office has pushed back on such characterizations, citing de Blasio’s effort to enforce new trainings for all NYPD officers, reduce the use of stop-and-frisk, and institute neighborhood policing.

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by Benjamin Jurney for Gotham Gazette
     

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Under the Hood at Agencies, Investigation Department Increases Policy Focus Thu, 01 Dec 2016 05:00:00 +0000