The Chief

July 28, 2000

 

City Cop Unions See Dangers In Fed Monitoring

Fear Contract Rights Could Be Eroded By Settlement

By William Van Auken

THOMAS J. SCOTTO: Contracts face assault.
JOHN F. DRISCOLL: Monitor bad for city.

With reports that the U.S. Attorney of the Eastern District and the City of New York are close to finalizing an agreement on Federal oversight of the Police Department, the NYPD's unions are worried that the deal will be made at their members' expense.

The stigma, as well as the added paperwork and restrictions attached to Federal monitoring of the department, will further erode morale, union leaders warn.

At the same time, they are concerned that new procedures mandated by any agreement between the city and the Justice Department could override the terms of their collective bargaining agreements and abrogate rights that cops now have when faced with administrative charges.

PBA: Put Us in Talks

In a letter sent earlier this month to both Brooklyn U.S. Attorney Loretta Lynch and Mayor Giuliani, Patrolmen's Benevolent Association President Patrick J. Lynch asked for his union to be given a seat at the negotiating table.

"We believe that the PBA has a right to participate in any negotiations between [the U.S. Attorney] and the city regarding possible Federal oversight," the PBA president wrote. "Such oversight may affect, among other things, the terms an conditions of our members' employment . and statutory rights afforded our members under applicable state laws."

In a subsequent interview, Mr. Lynch said that the introduction of Federal oversight was unwarranted. "To say that it is suggests that this is a police department that is out of control, and that is absolutely not the case."

Given its introduction, the PBA is concerned that it would have considerable impact on cops' working conditions. The filing of additional reports required by the Justice Department, he said, would mean more work for the same pay for Police Officers, while drastically altering the way cops interact with the public.

According to the police union in Pittsburgh, Pa., Mr. Lynch's fears are well-founded.

"This has severely crippled collective bargaining," said Chuck Bosetti, the vice president of the Pittsburgh Fraternal Order of Police.

In April 1997, Pittsburgh became the first city to enter a consent decree with the Justice Department to allow Federal oversight. The action followed a lawsuit filed by the American Civil Liberties Union against the Pittsburgh Police Bureau charging rampant misconduct by the city's cops.

Major Changes

The decree brought wholesale changes in police oversight, training and supervision. It required the bureau to set up a computerized "early-warning" system to track the behavior of individual officers as well as develop detailed records of every arrest and traffic stop. It also introduced annual training in cultural diversity and integrity.

Consent decrees are also in effect for the local police in Steubenville, Ohio and for the New Jersey State Police. Federal prosecutors are conducting "patterns and practice" investigations in Buffalo, Los Angeles, New Orleans, Washington, D.C. and five other cities in addition to New York.

Enacted as part of the 1994 Federal crime bill, the statute allowing the Government to pursue consent decrees is backed up with the threat of withholding Federal funding from departments that resist.

"The process is robotic," Mr. Bosetti of the Pittsburgh FOP said of the color-coded computerized system that categorizes cops' performance - green for satisfactory, yellow for caution and red for danger. Cops are rated on a curve based on a comparison with other officers on their shift and taking into account the race and gender of suspects that they have stopped or arrested.

"If you're a rotten, no-good cop abusing people's rights, you'll end up in the red," he said. "If you're a good proactive cop making quality arrests, you'll end up there, too. The system rewards complacency."

Mr. Bosetti, a 23-year police veteran, cited the case of one Pittsburgh cop who made 133 arrests in 1998, all of which resulted in convictions. During the same year he received three complaints, none of which was sustained. The police officer was "red-flagged."

"The way the system categorized him, he looked like a Nazi," the union leader said. "A year before he would have been awarded a medal."

In a second case, a Detective working in his precinct was also "red-flagged" after making only one stop-and-frisk in six months. "There was perfect probable cause and the suspect, a black female, was convicted on possession of crack," Mr. Bosetti said. "But because 100 percent of the Detective's searches - that is, the one-and-only stop-and-frisk - involved a minority suspect, she was tagged as a potential Fourth Amendment abuser. It didn't matter that the Detective was herself black and female."

Tied to Crime Rise

The career tracking system combined with new regulations requiring the filing of detailed reports have led to a sharp decline in "pro-active policing" and a steady rise in the city's crime rate, the union leader said. Police officers are required to prepare reports on every stop they make, including the race and gender of suspects. To carry out a "consent" search, a cop must first present a suspect with a two-page form explaining his or her rights that the suspect must sign before a search can be conducted.

"We're acting like paralegals for the defense," said Mr. Bosetti. "At first there was outrage and anger; after three years, it's just. indifference. The general attitude is, "You want to give me the same amount of money to not do aggressive policing? Sounds O.K. to me."

The FOP leader said that violent crime had increased by 14 percent since the decree went into effect, while arrests on drug trafficking had declined 33 percent, gun arrests by 28 percent and arrests on disorderly conduct charges by 50 percent.

The union's principal problem with the consent decree, Mr. Bosetti said, is the introduction of a new system for recording anonymous and unsubstantiated complaints against officers.

Impact on Careers

Initially, he said, the Justice Department had proposed a system under which officers could be disciplined and transferred on the basis of as few as three such complaints in a two-year period. A Federal judge, however, struck out the language as a violation of cops' right to due process.

Still, the FOP leader said, anonymous complaints stay in police officers' personnel files and become the grounds for denying promotions and favorable assignments and compelling cops to undergo retraining.

The union is currently engaged in contract negotiations and is asking for language barring any outside agency "including the Federal Government" from altering the operations of the Pittsburgh Police Bureau without the union being part of the agreement.

In Columbus, Ohio, the Fraternal Order of Police had similar language in its collective bargaining agreement. The union has joined with the city in defending against a Federal lawsuit seeking to impose monitoring of the Columbus Police Department.

'No Pattern and Practice'

"There are a lot of issues involved here," said Columbus FOP President Bill Capretta. "But the bottom line is that we do not believe that there is a pattern and practice of civil rights violations."

Federal demands for oversight in Columbus arose from some 300 excessive force complaints submitted to the Justice Department. Local civil rights organizations had urged city residents to contact the Federal agency with reports of abuse by officers on the 1,700- member force.

The union balked at a tentative settlement reached between the city and the Justice Department on the grounds that new Federally supervised procedures would have violated its collective bargaining agreement. It participated in talks with city and Federal officials shortly before negotiations on a consent decree broke down.

The new rules would have expedited administrative disciplinary proceedings that now. frequently are the subject of arbitration, FOP officials said. One provision that the union adamantly opposed would have "red-flagged" officers who become the subject of three or more civilian complaints in the course of a year. These cops would be subject to forced transfers before the charges had been substantiated, the union leaders said.

Profiling Invoked

Federal prosecutors, meanwhile, amended their suit earlier this month to add a charge of racial profiling against the Columbus police based on a review of traffic stops. Mr. Capretta said he expected it to take four or five years before the case goes to trial.

"The Columbus case raised the red flag for us," said Detectives' Endowment Association President Thomas J. Scotto. "It violated their collective bargaining agreement and introduced penalties they were protected from under their contract."

While Justice Department officials assured attorneys for national police organizations earlier this year that a consent decree would not supersede contract terms, the Pittsburgh FOP's experience, indicated the limits of such guarantees, Mr. Bosetti said. When its agreement with the city expired the year after the Federal oversight began, the union was told that the successor agreement would not override the decree's mandates.

Disciplinary Concern

Mr. Scotto voiced fears that any agreement between the Brooklyn U.S. Attorney and the city could become the vehicle for introducing stiffer disciplinary penalties. "It's no secret that the Mayor and the Police Commissioner introduced legislation in the City Council seeking $25,000 fines, up to one year suspensions and demotions in rank for administrative misconduct," said the Detectives' union president.

The police unions have successfully lobbied against the proposals, but Mr. Scotto said, "If they sit down with the Justice Department and implement one, two or all three of these proposals as part of a consent decree, there is very little we could do about it."

The DEA president faulted the Giuliani administration for failing to contest the demand for Federal oversight. "The sad thing is that some of these little departments would have fought it in court had they had the wherewithal to combat the Federal Government," he said. "The City of New York has the resources and should have done so."

"If they abridge our collective bargaining agreement, we'll go into court immediately and sue," said John F. Driscoll, president of the Captains' Endowment Association.

'City Loses Most'

While Mr. Driscoll said he is concerned that any consent decree could curtail his members' rights, particularly in departmental interrogations, he added, "the big loser is going to be the city of New York."

"The NYPD is the premier police department in the country," the Captains' union leader said. "Force complaints are down 37 percent from last year and you have two or three isolated incidents that have been blown up into a reason to impose oversight."

"Let's face it, what experience does the Federal Government have in running a police department?" Captain Driscoll said. "They should look into Ruby Ridge and Waco. Who's going to do oversight on them?"

Predicting a long-range negative impact of any Federal oversight on law-enforcement, crime rates and police morale, he added, "Everyone should be frightened by this; it scares me."