Police Accountability Board would give citizens a greater voice

With a history of police violence going back over 50 years, the city of Rochester needs a Police Accountability Board where civilians have the power to discipline police officers for misconduct, now more than ever.

Ted Forsyth

There is a lot of media talk and confusion regarding two different proposals that would establish a Police Accountability Board. One version is proposed by Mayor Lovely Warren with input from the Rochester Police Department and the Rochester Police Locust Club, the police union. The other version is proposed by Rochester City Council negotiated with the Police Accountability Board Alliance, the United Christian Leadership Ministry and the New York Civil Liberties Union.

I want to sort out the confusion and tell you what the community is demanding.

In February 2017, Enough Is Enough 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.” The 111-page report has two parts. The first half explores all of the systemic injustices with the current system, highlighting decades of injustice (as well as noting various work done by prior citizens’ groups to highlight the injustices and call for reform). The second half offers an ordinance to replace the current CRB process.

The report, authored by Barbara Lacker-Ware and me, reviews the police misconduct complaint process in the Rochester Police Department. We looked at the annual reports from the Professional Standards Section (the RPD’s internal affairs) and the Civilian Review Board, which is administered by the Center for Dispute Settlement. We also included several vignettes of people affected by racial profiling and excessive use of force to share the real, human cost of an unaccountable police force.

According to CRB annual reports from 2001 to 2016, of the 923 civilian-generated allegations of force over 16 years, the chief of police sustained the complainant 16 times (1.7 percent). The current process ends with the chief; any outcome including discipline is completely at his discretion. According to PSS annual reports from 2002 to 2015, there were only 13 instances of discipline stemming from such allegations. Of those, the harshest discipline administered was six suspensions. No officer has been terminated as a result of a sustained, civilian-generated allegation of use of force.

Since the report came out, activists, organizers, and affected individuals have led a campaign demanding that City Council pass the proposed Police Accountability Board. The PAB legislation is supported by many affected individuals and over 50 local organizations (find the current list of supporters at PABNOW.com). It includes five essential pillars that must be included to balance power and create actual police accountability:

• It must be an independent agency of city government, separate from the RPD;
• It must have independent investigative authority;
• It must have subpoena power to compel the production of physical evidence and testimony;
• It must have disciplinary authority using a disciplinary matrix; and
• It must have the power to evaluate all RPD patterns, practices, policies and procedures, and to make recommendations in order to prevent misconduct.

Here’s why we think putting discipline into the hands of the people of Rochester will benefit the community and help officers:

• First, it will even the odds. Under our plan, the police chief would be held to account just like the officers under him when he does not discipline. The historical Rochester trend of giving the community representation or calling for police and community relations while not sharing any power does nothing to advance actual accountability or build actual trust.

• It prevents favoritism by the chief and promotes fairness. Several times when we presented our legislation around town in 2017, people spoke of officers they knew who were charged with the same misconduct as other officers only to be hammered because they were on the outs with a supervisor or the chief. The disciplinary matrix in our proposal wouldn’t favor one officer over another. The PAB could also be a safer way for officers to whistle-blow on bad practices in the RPD, leading to investigations and possibly discipline.

• Our proposal doesn’t give board members willy-nilly power to do whatever they want. It is a consistent, progressive, transparent schedule of penalties for misconduct. An example can be found in the appendix of our 2017 report. The board would be bound to issue discipline based on the matrix, not their own judgment. It must be noted that all due process rights of the officers have been retained. Under Civil Service Law, police officers can appeal a disciplinary decision through the courts.

Disciplinary power held by civilians doesn’t mean that the PAB will cut itself off from the department or the union. The PAB must work with the chief, the department and the union to develop the disciplinary matrix. The chief must be willing to answer questions of the board pertaining to RPD policy and procedure in specific cases. These are relationships built on substantive, shared power and are essential to a functioning PAB and an accountable police department.

The crux of the legislation falls on the issue of the discipline. The mayor and corporation counsel have been deploying the specious argument that, according to state law, only the chief can discipline police officers. In 2018, City Council contracted with the law firm Harris Beach to answer this basic question: Can a civilian body discipline police officers? Their conclusion: “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.”

The state Court of Appeals has held repeatedly that municipalities can change their disciplinary processes without interference from a collective bargaining agreement or the Taylor Law. (The court has ruled on this issue in these cases: City of Schenectady v. New York State Pub. Employment Relations Bd., 30 N.Y.3d 109 (2017), Matter of the Town of Wallkill v. CSEA, 19 N.Y. 3d 1066 (2012), and Patrolmen’s Benevolent Ass’n of City of New York v. New York State Pub. Employment Relations Bd., 6 N.Y.3d 563, (2006), among others.) When it comes to discipline being administered by a civilian body, there is nothing in state law that says it can’t be done or must be done only by the chief. The local charter would have to change, and this is in the purview of City Council. There isn’t an issue here. It’s a question of power.

All throughout 2017, 2018 and now 2019, advocates for this legislation have met with many constituencies: City Council, affected individuals, the mayor, RPD administrators, the police union, police accountability experts and academics from around the country, and civic, religious, and nonprofit organizations.

The mayor has been close to the vest on the issue of the PAB. She avoided questions about it during her mayoral bid in 2017 and told us the issue was with City Council, not with her. In 2017, we met twice with Michael Mazzeo, the police union president, where he addressed other issues and wouldn’t address the nuances of the legislation or what he would change.

In September 2018, the PAB Alliance executive committee (Pastor Wanda Wilson, Matt DeLaus, AJ Durwin and me) was invited to the negotiation table along with the public safety committee of City Council (Loretta Scott, Adam McFadden, Willie Lightfoot and Mitch Gruber), Rev. Lewis Stewart from the United Christian Leadership Ministry, and Iman Abid from the Genesee Valley chapter of the New York Civil Liberties Union. Negotiations ended on Dec. 11 when City Council agreed to put all five of our key pillars in the legislation, as well as include two civilian investigators and a budget of $520,000. All three community entities in the negotiations with City Council were satisfied with this final work product.

On Dec. 27, in a clear cooptation of the name of the proposed legislation, the mayor released her Police Accountability Board legislation. The Alliance immediately issued a press statement against the mayor’s proposal and held a press conference on Jan. 8 specifically addressing the failures of the mayor’s legislation:

• It lacked disciplinary power;
• It solely focused on use of force;
• It severely limited independent investigative authority;
• It failed to give community majority representation and had a provision that she was to approve all nominations to the board;
• Former law enforcement including city police could sit on the board;
• There was no community input or backing from the Alliance;
• The proposal was underfunded and had no civilian investigators; and
• It undermined the democratic process that advocates had gone through with City Council for four months to get to a final negotiated piece of legislation.

Shortly after our press conference, City Council decided to hold the mayor’s legislation in committee rather than let it out to be voted on in January. That’s where we stand at this moment.

The Alliance calls on readers to support the legislation coming from City Council and to reject the mayor’s proposal—a proposal created with the Rochester police union and the police department in order to maintain the status quo. It does not address the five pillars, it is severely underfunded, and it undermines the democratic process.

City Council, especially under the leadership of President Loretta Scott, has shown tremendous courage and persistence to get this right as well as presenting their own legislation fashioned with the community. We acknowledge and appreciate their work and their invitation to join them at the negotiation table.

The timeline, as it has been told to us, is that this legislation will be released soon and three community forums for public comment will be set throughout January and into February. We urge supporters and readers to attend theses community forums and to follow the Alliance’s position. From there, City Council hopes to pass community-driven PAB legislation in February 2019.

I’ve said it before, and I’ll say it again: Rochester City Council, pass the Police Accountability Board NOW!

Ted Forsyth is an activist and organizer with Enough Is Enough, an anti-police brutality organization founded in 2013. He is also a member of the executive committee of the Police Accountability Board and co-author with Barbara Lacker-Ware of “The Case for an Independent Police Accountability System: Transforming the Civilian Review Process in Rochester, New York.”