BILL NUMBER: S4354
SPONSOR: BAILEY
 
TITLE OF BILL:
An act to amend the New York city charter and the administrative code of
the city of New York, in relation to providing final discipline authori-
ty over civilian complaints to the civilian complaint review board
 
PURPOSE OR GENERAL IDEA OF BILL:
To increase transparency and public trust in the police disciplinary
process by removing the Police Commissioner's discretion to modify or
reject a determination or recommendation made by the civilian complaint
review board. This bill also provides due process and a fair and impar-
tial determination of civilian complaints by a hearing officer who is
independent of the police department, and it removes the requirement
that a civilian file a complaint before the civilian complaint review
board can begin to investigate alleged misconduct, despite the board
being aware that alleged misconduct may have been committed against a
member of the public.
 
SUMMARY OF SPECIFIC PROVISIONS:
Section 434 (a) of the Charter of the City of New York is amended to
reflect that the Police Commissioner does not have discretion over
disciplinary determinations and adjudications made by the civilian
complaint review board: The title clause of Section 440 of the Charter
of the City of New York is amended to reflect that the board will have
the power to investigate public complaints and as other allegations of
misconduct against members of the New York City Police Department.
- Subsection (a) expands the jurisdiction of the board to include prose-
cution of civilian complaints and the investigation of allegations of
misconduct other than those filed directly by members of the public.
- Subsection (c)(1) is amended to give the board the power to receive,
investigate, hear, and make findings upon allegations of misconduct upon
information the board receives from sources other than a complaint filed
by a member of the public. This obviates the need for a civilian to file
a formal complaint before the board can begin its investigation into
alleged misconduct. This subsection also provides, in line with the
amendments made to section 434 of the Charter of the City of New York as
part of this legislation, that the Police Commissioner shall not have
discretion to change a finding or recommendation made by the board or by
a hearing officer hired by the board to adjudicate matters handled by
the board. Amendments to this subsection further provide to adjudi-
cations of matters handled by the board must be adjudicated by a hearing
officer employed by the board. The purpose of this change is to bring
transparency and increase public confidence in the outcomes of matters
handled by the board by having substantiated allegations against a
police officer adjudicated by a hearing officer who is not employed by
the Police Department of the City of New York.
- Subsection (c)(2) is amended to allow the board to promulgate rules
and procedures for the prosecution of matters by the board.
- Subsection (c)(3) is amended to provide the board with subpoena power
for the purpose of conducting prosecutions.
- Subsection (c)(4) is amended to allow mediation of any allegation
handled by the board.
- Subsection (c)(5) is amended to create an administrative prosecution
unit that will handle the prosecution of substantiated allegations
before the board's hearing officer(s).
- Subsection (d)(1) delegates the administrative adjudication of matters
handled by the board to a hearing officer or officers employed by the
board. To ensure that hearings are fair and impartial, the hearing offi-
cer must be a civilian with no law enforcement background.
- Subsection (d)(2) gives the hearing officer or officers the authority,
subject to approval by the chair of the board, to impose discipline on a
member of the police department who either pleads guilty or is found
guilty after an administrative trial of misconduct.
- Subsection (d)(3) provides that civilian complaint review board hear-
ings should follow the guidelines of other police department administra-
tive procedures.
- Subsection (d)(4) delegates the responsibility for prosecution of
matters before the hearing officer to the civilian complaint review
board's administrative prosecution unit.
- Subsection (e) (1) provides that the police department comply with
board requests to provide records and materials that can be disclosed by
law.
- Subsection (e)(2) adds that the Police Commissioner shall ensure
employees of the police department appear before the board.
- Subsection (e)(3), which discussed the process for the Police Commis-
sioner's deviation from the board's findings and recommendations, is
deleted.
- Subsection (f) is amended to remove language about final authority of
Police Commissioner over discipline of members of the police force.
Section 14-115 of the Administrative Code of the City of New York
- Subsection (a) is amended to reflect that the Police Commissioner will
no longer have discretion over the discipline of officers in matters
handled by the civilian complaint review board.
- Subsection (b) now mandates that the administrative prosecution unit
handle all prosecutions of members of the police force who are subject
to discipline in a matter investigated by the civilian complaint review
board.
- Subsection (c) is amended to specify that the Police Commissioner no
longer has discretion to determine whether to impose monetary fines in
discipline matters determined by the civilian complaint review board.
- Subsection (d) is amended to reflect that in matters handled by the
civilian complaint review board, the Police Commissioner no longer has
the discretion, in matters where a member of service pleads guilty or is
found guilty after an administrative trial, to suspend judgment and
place the member of service on dismissal probation.
The final clause explains that the changes to the Police Commissioner's
authority over discipline in cases handled by the civilian complaint
review board, as specified in this bill, in no way subjects the disci-
pline of members of the police department of the City of New York to
collective bargaining, or removes authority over discipline from gover-
nance by a local body, nor should it be interpreted as such.
 
JUSTIFICATION:
Transparency and public confidence in the discipline of members of the
Police Department of the City of New York has long been a topic of
discussion in New York City and in the State Legislature. Discussion
heightened during the spring and summer of 2020 following the death of
George Floyd while he was in the custody of the Minneapolis Police
Department. Public protests were sparked worldwide as a result of Mr.
Floyd's death and resulted in legislative action around the issues of
policing and police misconduct.
In New York, the State legislature acted in June 2020 to repeal Civil
Rights Law § 50-a, which had for decades shielded the disciplinary
records of members of the New York City Police Department. Debate over
Civil Rights Law § 50-a had occurred for years, but Mr. Floyd's death
and the ensuing protests finally resulted in legislative action to allow
the public access to the disciplinary records of the police officers who
are sworn to protect and serve their communities.
Public discourse about police discipline in New York City revealed that
the public did not have confidence that members of the New York City
Police Department who commit misconduct were adequately punished. The
Police Commissioner's final authority over the outcome of all discipli-
nary matters was of particular concern, as the Police Commissioner could
reject or modify the findings and recommendations of the civilian
complaint review board or the trial commissioners employed by the New
York City Police Department. The release of records by the civilian
complaint review board following the repeal of Civil Rights Law § 50-a
allowed the public for the first time to see the ultimate dispositions
of thousands of civilian complaints, including whether any discipline
was imposed by the Police Commissioner in a case where misconduct was
substantiated by the civilian complaint review board or resulted in a
guilty plea or verdict in a case handled by the civilian complaint
review board's administrative prosecution.
The Police Commissioner's unfettered discretion to reject or modify
findings and recommendations in those cases removes the independence
that the civilian complaint review board was designed to have from the
police department. This bill would amend Section 434 of the Charter of
the City of New York, to take away the Police Commissioner's discretion
in matters handled by the civilian complaint review board. Other police
disciplinary matters would still remain within the full purview of the
Police Commissioner. By their very nature, matters handled by the civil-
ian complaint review board involve police conduct towards members of the
public. This category of complaints warrants scrutiny and independence
because the discipline of officers who commit misconduct against members
of the public strikes at the heart of public confidence in the police
officers who are sworn to protect and protect the people of the City of
New York.
To further ensure that allegations of misconduct involving civilians are
fairly and independently scrutinized and adjudicated, this bill amends
section 440 of the Charter of the City of New York, to allow the hiring
of a hearing officer(s) who are employed by the civilian complaint
review board, not the police department as is currently the case. These
hearing officer(s) would preside over the administrative prosecution of
all matters where the civilian complaint review board substantiated
allegations of misconduct against a member of the police department and
recommended certain levels of discipline. Allowing independent hearing
officers, rather than those employed by the police department, to
preside over these prosecutions will ensure that the adjudication of
these matters is for and independent, and that the public has confidence
that the police department is not protecting its officers and either not
disciplining or imposing unwarrantedly low levels of discipline on
police officers who have committed misconduct.
This legislation also codifies the administrative prosecution unit,
which was established in its current form pursuant to a 2012 memorandum
of understanding between the police department and the civilian
complaint review board. This memorandum of understanding permits the
administrative prosecution unit, which is a division of the civilian
complaint review board, to prosecute most cases where the board has
voted to substantiate at least one allegation of misconduct against an
officer and recommended that charges and specifications be preferred,
but allows the Police Commissioner to retain the case in certain situ-
ations. The memorandum of understanding is merely an agreement that can
be terminated at the whim of the Police Commissioner upon 30-days'
notice. By amending the City Charter to provide that the administrative
prosecution unit will have to authority to prosecute every as where
command discipline or charges and specifications was the discipline
recommended by the board, the administrative prosecution unit will no
longer exist at the will of the Police Commissioner, nor can the Police
Commissioner retain a case from prosecution by an independent hearing
officer not employed by the police department.
Finally, this legislation expands the jurisdiction of the civilian
complaint review board to allow it to investigate allegations of police
misconduct against a civilian, even where a member of the public has not
filed a formal complaint. Under the current construction and interpreta-
tion of the Charter provisions governing the civilian complaint review
board, the board cannot commence an investigation unless a member of the
public first files a complaint, even if the agency has information that
indicates that an officer may have engaged in misconduct. This small
clarification of the board's jurisdiction will help ensure that
suspected misconduct does not go unpunished simply because a civilian
has not contacted the board to file a complaint. Furthermore, with this
investigative authority, the civilian complaint review board can start
investigations more quickly, which will allow for the identification of
more witnesses and victims, and the collection of evidence when it is
most fresh.
 
PRIOR LEGISLATIVE HISTORY:
2021-22: 55252 - Referred to Cities
2022-23: S2108 - Referred to Cities 1
 
FISCAL IMPLICATIONS:
To be determined.
 
EFFECTIVE DATE:
Immediately.