written and submitted by PABA Executive Committee
Since February 2017, activists have pushed with renewed vigor for the passage of legislation that has been needed for well over a half century in Rochester, New York. Police have evaded responsibility for far too long. Rochester needs and demands a powerful Police Accountability Board (PAB), a mechanism for civilian oversight of law enforcement when complaints of misconduct are made against the Rochester Police Department (RPD). True accountability requires the power to make decisions and enforce them. Thus, the following five pillars are essential, and what we have been clearly advocating to be included in the legislation for the PAB for over a year:
- The PAB will be an independent agency of city government, separate from the RPD;
- The PAB will have independent investigative authority;
- The PAB will have subpoena power to compel the production of evidence and witnesses;
- The PAB will have disciplinary authority using a disciplinary matrix; and
- The PAB will have the power to evaluate systemic patterns, practices, policies, and procedures of the RPD to recommend changes and prevent misconduct.
In addition to the five pillars, sufficient funding is required so that complaints of misconduct are resolved efficiently and effectively in 90 days. To handle the volume of complaints that are filed in Rochester, the PAB will require 1% of the RPD budget. This would equal one million dollars in funding, a reasonable cost of true accountability, and an investment which will result in far fewer costly lawsuits concerning excessive force against the city. We have received the draft legislation from City Council, and it fails to establish the five pillars.
In February of 2017, Enough Is Enough (EIE) and the Rochester Coalition for Police Reform jointly released The Case for an Independent Police Accountability System: Transforming the Civilian Review Process in Rochester, New York. This report can be found at enoughisenough.rocus.org. The report, authored by Barbara Lacker-Ware and Theodore Forsyth, reviews the current complaint process for civilians regarding police misconduct. The researchers looked at annual reports from the Professional Standards Section (PSS), the Rochester Police Department’s internal affairs division; and the Civilian Review Board (CRB), the current agency responsible for overseeing the complaint process, administered by the Center for Dispute Settlement (CDS) as well as reports of racial profiling and police misconduct by members of the community. According to CRB annual reports of the 923 civilian-generated allegations of force from 2001 to 2016, the Chief of Police sustained only 16 of them (1.7%). According to PSS annual reports from 2002 to 2015, there were only 13 instances of officer discipline stemming from such allegations. Of those, the harshest were six suspensions. No officer has been fired as a result of a civilian-generated allegation of excessive force.
The PAB report, as well as several high-profile cases of police brutality in the news, prompted City Council to thoroughly investigate the process used by civilians who have experienced police misconduct. City Council used its subpoena power for the first time to review the PSS investigation of the claims made by Rickey Bryant Jr., a minor who was brutalized by over a dozen officers in a case of apparent mistaken identity as he was riding his bike in the summer of 2016. Although Mr. Bryant was never charged with a crime, he sustained severe injuries, for which the police were not held accountable.
The Police Accountability Board Alliance (PABA or “the Alliance”), a collection of community groups in favor of police accountability, will select six members from the community to sit on the proposed PAB, has met with the mayor and every member of council, advocating explicitly for the five pillars above. The alliance has submitted a proposed ordinance to council, which spells out the PAB process in detail. This is available on our website at www.pabnow.com. Council said they couldn’t move forward on the proposed ordinance because of legal reasons. We have shown them how there is nothing preventing them from passing a PAB with all of these pillars. City Council retained an independent legal opinion from Harris Beach, PLLC, who agreed with our position.
Harris Beach was specifically asked to address the question, “May the proposed PAB be legally empowered to discipline police officers of the Rochester Police Department?” The Harris Beach Opinion, released to the City on May 3, 2018, stated “Based on our legal analysis, as set forth below, of the applicable N.Y. Civil Service Law provisions, as well as the pertinent provisions of the Charter and Code of the City of Rochester, relevant statutes and case law, we have concluded that the proposed PAB may be legally empowered to discipline police officers, provided that certain amendments are made to the Charter of the City of Rochester that delegate such authority to the PAB.”
Nearly a week later on May 9, Rochester’s city attorney, Corporation Counsel Tim Curtin, issued his rebuttal to the Opinion. The PABA has thoroughly reviewed both the Opinion as well as the Rebuttal, and we believe that they both offer clarifying information that favors the passage of the proposed PAB by City Council with the five pillars called for by advocates.
The PABA lauds the independent legal opinion that City Council obtained insofar as it confirms the Alliance’s interpretation of New York State law. In particular, nothing in New York State law would prevent Rochester from establishing a PAB with disciplinary power. Although Rochester’s Corporation Counsel alleges that the Rochester Police Locust Club, the union for the RPD, collective bargaining agreement and the Taylor Law prevent changes to police disciplinary procedures, Corporation Counsel fails to respond to cases from the Court of Appeals which have allowed other New York State municipalities to change police disciplinary procedures despite conflicting collective bargaining agreements. Corporation Counsel relied on a lower court opinion in the Schenectady case to support its position. City of Schenectady v. New York State Pub. Employment Relations Bd., 30 N.Y.3d 109 (2017). That case was overturned by the Court of Appeals, the highest court in New York. Therefore, despite Corporation Counsel’s claims to the contrary, according to the Court of Appeals, the Harris Beach Opinion, and the Alliance, nothing in New York State law would prevent Rochester from establishing a PAB with disciplinary power.
In late August, multiple members of City Council said that the draft legislation would be shared with both the PABA and the Locust Club the first week of September. We have received the draft legislation and our comments are as follows:
1) There is no disciplinary power for the PAB, only the ability to recommend discipline to the chief of police. As can be seen in the report, one of the main problems with the current system is the fact that the chief of police will not sustain complaints that the CRB has sustained. Without disciplinary power, the PAB has no real power.
2) Investigations are still handled by PSS. This means that if you have a complaint against the RPD, say for excessive use of force, you have to go to the PSS office and be interviewed by another police officer. Many people, including Christopher Pate in recent memory, did not want to be interviewed by PSS. When someone has trauma or PTSD stemming from an interaction with police, sometimes the last thing they want to do is to talk to police about it. According to the City Council draft, once PSS finishes its investigation, only then can the PAB utilize its independent investigatory power and subpoena power to conduct an investigation. The PAB would be dependent on PSS. There is no parallel investigation. This could add time to investigating and adjudicating a complaint and is not acceptable.
3) Another problem with how the draft legislation handles investigations is that the PAB can only investigate a case if they feel that relevant information has been left out of the PSS report. We advocate that civilians should be allowed to have their complaints investigated by the PAB, at the very least concurrently as the PSS investigation, or before the PSS investigation, or in lieu of the PSS investigation.
4) There is not community control for representation to the board. We proposed an 11 member board with one member appointed by the mayor, four by city council, and six by the PABA. The draft legislation gives the mayor two appointees, council the same four, and the PABA appointing three. This means there is not community control of this process and makes it too subject to political forces.
There are other things that are problematic within the draft, but these are the most glaring and obvious problems. You can look at both our proposed ordinance and City Council’s draft at www.pabnow.com.
So, what’s next? How can you be part of the change our city needs? City Council has said they will hold public forums to get feedback from the community. If you sign up for email updates at www.pabnow.com we can let you know when they are announced. If you are an advocate of accountability and justice, it is crucial that your voice is heard at these meetings. It is also vitally important that we show up at council meetings and have our voices heard; you can call 311 and say you want to speak to council. Council meetings are the third Tuesday of each month at 6:30 p.m. in council chambers at city hall. Even if you don’t want to speak, just showing up to support those who do can have a great impact. To get more involved with the movement, you can sign up at www.pabnow.com or follow us on social media.
Given that there is no state law preventing the establishment of a strong PAB, the only thing standing in the way of progress is the allure of the status quo. The Alliance calls on all city officials to resist this allure for the sake of the Rochester community, for the sake of individuals affected by police violence, and for the sake of justice. Pass the proposed Police Accountability Board now.