Making accountability work

The Police Accountability Board began accepting complaints last month, a much-anticipated milestone after long delays and staffing turmoil. But taking complaints is half the battle. 

How will it conduct investigations? Will it reach an agreement with the Rochester Police Department over access to data?

The board has taken in 95 complaints as of Monday. PAB officials expect to receive 480 complaints over the next year and predict that 125 will warrant full investigations. 

The agency has a $5 million budget, but half of that money has been placed in escrow and will be released on the condition that the organization meets with City Council on a bi-monthly basis. With a staff of 35, the PAB is based in downtown Rochester at 245 E. Main St. 

Two of the nine positions on its board remain unfilled despite being vacant for 30 and 105 days respectively—City Council has not approved or rejected any of the three nominees proposed for those seats by the Police Accountability Board Alliance. The council is expected to assign nominations to seats within 60 days of them being vacated. 

One of those positions was made vacant when former Chair Shani Wilson stepped down on June 10 after being publicly accused of sexual harassment by Conor Dwyer Reynolds, the agency’s former executive director who was himself suspended amid an investigation into human resources complaints made against him. Reynolds is now suing the PAB and city government over the circumstances of his suspension, alleging the board violated the New York Open Meetings Law.

Interim Director Duwaine Bascoe, who was appointed to the position on May 27 to replace Reynolds, discussed the steps involved in investigating the newly taken cases with the Rochester Beacon, how they were developed, and his reasons for optimism when it comes to coordinating with the police department. Officials from the Rochester Police Department say they expect to cooperate as required by the City Charter. However, new disagreements over access to RPD materials have complicated negotiations.

Inside investigations

Cooperation and disagreement between the PAB and police notwithstanding, PAB is accepting information from the public. When a complaint is submitted, a staff member will reach out to the filer within two days to follow up, Bascoe says. PAB case managers can help talk people through the kinds of incidents that might constitute misconduct. Bascoe encourages people to call even if they are unsure about whether they have been mistreated.

“It’s important to understand that there are going to be some obvious cases of misconduct—illegal search and seizure, use of force, things of that nature,” he says. “But there are less common forms of misconduct: failure to respond to a call, failure to take action, maybe damage to property, things of that nature. So what we’re aiming to do is 1) take complaints, yes, but 2) educate the public in regards to what qualifies as misconduct.”

PAB’s Deputy Chief of Community Engagement Mozart Guerrier adds that complaints can be filed by anyone with information about an interaction with RPD that might constitute misconduct. The process is not restricted to residents or people who were directly engaged by police.

Once follow-up on a complaint is complete, the file is passed to the board’s director, currently Bascoe, who will take a broad look at the case to determine if there is enough information for an investigation to proceed. (If not, the complaint is filed away in case more evidence turns up.)

The director then passes the case to the board’s investigative staff, which currently has four attorneys, six investigators, and two forensic specialists. Each case will be worked by at least two investigators, one forensic specialist, and one staff attorney ensuring legal procedures are followed and a proper chain of custody is maintained for any evidence.

Those staff members will reach out to the complainants, witnesses, and police officers involved to gather information. They will also assess the scene and circumstances of the incident to gather material evidence, including body-worn, surveillance, and cell-phone camera footage. The complainant will get updates through the whole process.

Bascoe says the PAB predicts this investigative procedure will take roughly three months, depending on the demands of each case. 

After the initial examination, investigators will then write a memo of recommendation on whether there is cause for a misconduct allegation. This memo and the case file will move to the deputy of investigation, who will raise questions and ensure the analysis is thorough. If it passes that review, it will then go to the director, who will do the same.

If there are concerns about the analysis, the director will recommend that the investigators conduct further investigation on aspects of the evidence. Then, the director will present the staff’s recommendations to a three-person rotating panel of appointed board members for a vote on whether misconduct occurred.

After that vote, the report passes to the chief of police along with disciplinary recommendations, if there are any. This is when the public is made aware of the PAB’s findings. 

Disciplinary recommendations

The board will then move “forward with the chief in order to come to an understanding in regards to where we stand regarding disciplinary action if there is such disciplinary action recommended,” Bascoe says.

As of now, the PAB does not have the power to issue binding disciplinary orders in misconduct cases. It was given this authority when it was first created by City Council. However, Locust Club President Mike Mazzeo brought the city government to court over this provision, arguing it violated New York’s Civil Service Law by placing disciplinary hearings and decisions respectively outside of the police department and hands of the police chief. The courts have upheld Mazzeo’s challenge twice, though the decisions are being appealed once more.

RPD Lieutenant Greg Bello was unwilling to comment on whether the department would voluntarily honor the PAB’s disciplinary recommendations.

“The RPD will cooperate with PAB as required by the City Charter as much as is allowable by law,” Bello says. “It is premature and inappropriate to discuss our reaction to a court decision that is still pending.”

The board’s investigations will also have an appeal process. 

“Our aim is to do a very thorough job the first time through,” Bascoe says. “If there (is) additional information that comes in after our conclusion, we will certainly look at that and that may or may not play a role in our conclusions. However, I want to make it clear that a disagreement in regards to our finding is not sufficient enough to warrant an entire investigation.”

PAB’s procedures were informed by the routines of RPD’s Professional Standards Sections and benchmarking reviews of other police accountability boards around the country, including Denver’s Citizen Oversight Board, New York City’s Civilian Complaint Review Board, and Seattle’s Office of Police Accountability, among others. 

Third-party firm SMK Consulting also aided in the development of PAB procedures. New York City-based SMK specializes in civilian police oversight, corporate client risk mitigation, and nonprofit and governmental agency re-engineering. It was founded by Ron Sullivan and Mina Quinto Malik, two Harvard law professors, alongside Thomas Kim, who served as first deputy chief of Chicago’s Civilian Office of Police Accountability and director of investigations for the CCRB in New York City.

“We want to make it clear that our objective is to go through a very thorough procedure and do a thorough job speaking to every witness, canvassing the area, speaking to the officers involved, reviewing any type of evidence that there may be, and making sure we compare that to the policies, procedures, and statutes that the officers are bound by,” Bascoe says.

Handling complaints

On how the board’s budget factors into investigations, Bascoe expects the bulk of expenses to relate to paying investigative staff and maintaining the security infrastructure needed to store case information. At the moment, the PAB is not fully equipped to move forward with the full scope of this investigative procedure, mainly because this security infrastructure hasn’t been established yet.

There has been lots of back and forth with the city government about getting the building outfitted for the board’s work, Bascoe says, but the PAB will move forward with investigations as much as possible.

Updates from the July 7 board meeting show PAB was expected to have VPN-secured city Wi-Fi installed on July 8, which is a security measure necessary for them to receive information from RPD. The documents also note that PAB’s case management system will not be running until mid-August. 

“I know everyone expects (the) government to move fast, but experience shows that (the) government doesn’t move as fast as most would like,” he says. “So, as long as it’s continuing to move, that’s a good thing.”

But Bascoe’s messaging on the back and forth with the city has changed. A statement issued Monday by the PAB expresses frustration at the city and alleges the board is being prevented from directly accessing RPD materials. The city argues that the PAB charter requires the agency to make requests for information to the RPD rather than directly accessing RPD databases themselves. 

When Bascoe spoke with the Rochester Beacon on June 24, he said that the PAB would have direct access to RPD databases and that outstanding questions about that access mainly pertained to technological logistics. It is now unclear whether they will be given direct access at all.

Rochester Mayor Malik Evans’ office issued this statement on the access disagreements: 

“The City of Rochester has not refused to provide any records or body worn camera footage to the PAB. The PAB has been advised, for numerous legal reasons, that they cannot directly access RPD databases, and that all requests for records should be made to the RPD and will be honored in a timely fashion. To-date, very few requests have been made, and all requests for records and video have been fully fulfilled.”

Before it opened for complaints, much of the PAB’s focus was on training investigative staff, Bascoe says, and the process is still ongoing. Staff have been trained in the statutes covering police misconduct, the policies and procedures of Professional Standards Sections and RPD, investigation tactics and standards, chain of custody parameters, and questioning witnesses.

“The training has been done locally by some of the individuals here,” Bascoe says. “Also, some of the training has been conducted by our third-party consultants SMK. And we’re always constantly looking for and adapting to changes that come up, so this is where the RPD training comes into effect as well as any other outside entities that we have reached out to for training. There’s a national, what you would call a PAB board entity, that provides training as well.”

He says getting staff up to speed on these disparate policies and procedures has been a major undertaking since the bulk of the investigative staff was brought on board in January. This, along with negotiating information transfers from RPD and across sectors of government, Bascoe adds, has constituted much of the PAB’s day-to-day work up to this point.

A way forward?

Many of the specifics of the PAB’s negotiations with RPD are unclear. It held a closed-door meeting on June 7 and is in the process of scheduling another, according to a recent board meeting summary.

Bascoe offers a look into the topics being discussed, using ride-alongs as an example. Concerns over RPD’s willingness to schedule them went away with face-to-face meetings. RPD has handed over the necessary paperwork to get the PAB staff penciled in.

Bascoe says that dates and times for staff members to also undergo some training given to RPD officers are being worked out.

“We want to make sure that we understand what is asked of our officers, what their daily tasks are, and what they’re facing, because we have to make sure that we have a full understanding and we’re not sitting in a glass house per se,” he says. “We have to have a full interaction with them to build trust so that they understand that we’re there to make sure that they’re doing the best job that they can and that we’re judging them based upon their experiences and what’s called upon them to do.”

However, Bello says PAB staff going through the entire scope of officer training has never been an option.

“I don’t think this has ever come up as an option or been requested,” he says. “An officer goes through approximately 10 to 12 months of training at the academy level (which) includes intense physical fitness, firearms, and defensive tactics training, followed by several months of on the road field training. This is not something that is appropriate for a civilian panel.”

On why the negotiations have gone on behind closed doors, Bascoe had this to say: “Whenever you’re in negotiations, whether it’s a contract, whether it’s legislation, there are going to be details and individuals that want to be able to speak freely without the condemnation of their opinion being broadcast, and I think that we can get a lot more done when those types of meetings are closed.”

He believes that the outcome of such discussions should be transparent, however, and that the public needs to be educated on negotiated agreements.

Bello expresses a willingness to cooperate during the negotiating process.

“I’m not able to comment on the specific content of the meetings, but we have met and are scheduled to meet again in order to find common ground on a working relationship,” Bello says. “I can’t speak for the PAB regarding if their preferences are being met or not, but RPD will continue to abide by the city charter as much as we’re legally able to. … We are continuing to work with PAB to re-establish appropriate civilian (oversight) of the RPD.”

Before this week’s statement, Bascoe echoed that same willingness and optimism.

“I think that (for) everything that we’ve proposed, there is a way forward for us to meet those challenges, so I wouldn’t say that there’s something that is (majorly) standing out there where we can’t find a way forward on,” Bascoe said last month.

Speaking with WROC this week, he said: “We have tried some backchannels to negotiate how to gain the (direct) access (to RPD’s databases) that is required. At this point, those backchannels have failed.”

A mischaracterized relationship

PAB investigations hinge on access to information from RPD. A couple of weeks ago Bascoe said his positive outlook was rooted in this progress he was seeing during the negotiation process.

The organization is ironing out details with other parts of the government as well, including with City Council President Miguel Melendez and District Attorney Sandra Doorley, to ensure concerns are addressed.

“How the information is going to be transferred, the timeliness of the information, who has access to the information, all of those logistics are being worked out right now,” Bascoe says. “So long as there is continued progress in those negotiations, then we feel as though we’re going to be equipped to fully investigate the complaints that come in, because we’ve started from a standpoint that once we’ve spoken with each other, we’re on to the same goals, which is to make sure that there is accountability and there is transparency with public safety.”

Bascoe also went as far as to say the public characterization of the relationship between the PAB and the police as combative was untrue, and Bello agrees.

“When you get a chance to meet people and speak to them face-to-face, you realize that you have a lot more in common and a lot more common ground than you may have thought by relying on third parties or media or social media in order to gauge the interest to work with each other,” Bascoe says.

Says Bello: “Meeting in person is great so that both agencies can have an open dialogue and discuss potential issues in person rather than the (time-consuming) process of sending formal emails. By no means would I describe the relationship as combative.”

Bascoe contends that this combative narrative cropped up because the board members “really haven’t had an opportunity to speak for (themselves),” despite the fact that he and Guerrier backed out of an hour-long radio appearance with Mazzeo weeks ago. PAB first expressed an unwillingness to appear directly alongside Mazzeo and asked for the hour to be split, which was accommodated. Eventually, they cited a COVID-19 exposure as their reason for canceling entirely. 

Bascoe draws attention to the fact that a majority of the Rochester community voted in favor of the PAB. He points to allies on the City Council, in City Hall, and in the rank and file at RPD who indicate that oversight is necessary and welcome—a move that helps these parties do their job more easily and better, and builds continuity with the community.

“So, the notion that everything is adversarial is misplaced. I think that when people are working together with a common goal and they may have disagreements on how best to get there, it seems adversarial, but what’s really happening is that we’re speaking to each other while people that are not privy to those meetings are speaking based upon what their beliefs are,” Bascoe says. “It may come off as a new message, when it really was our message from the beginning.”

Coming soon: Discussions with Police Accountability Board Alliance members and the Locust Club about their perspectives on PAB investigations and public safety in Rochester.

Justin O’Connor is a Rochester Beacon intern and a student at the University of Rochester. The Beacon welcomes comments from readers who adhere to our comment policy including use of their full, real name.