The Chief
March 23, 2001

Police Fight New Disciplinary Proposal

The city police unions have decided to wage a joint legal battle against a plan unveiled by Mayor Giuliani and Police Commissioner Bernard B. Kerik to give the civilian Complaint Review Board full responsibility for prosecuting police officers charged with abusing civilians.

Announced in late January, the plan calls for the CCRB to try civilian complaints substantiated by its investigators before Administrative Law Judges at the Office of Administrative Trials and Hearings.

A Better System?

The Mayor and the Police Commissioner claimed the consolidation of investigations and prosecutions under the aegis of CCRB (currently cops are prosecuted by the Department Advocate's Office) would speed up the present sluggish pace of police discipline. It would also ensure greater accountability in both investigations and prosecutions of civilian complaints, they said.

The unions, however, say the change could abridge their members' rights to due process. In a March 7 meeting, the leaders of the five cop unions and their attorneys hammered out a strategy for derailing the plan, challenging its legality under the city Charter and insisting that the city must bargain with them over the planned change in disciplinary procedures.

"The City Charter does not grant powers to the CCRB to prosecute cases," said Detectives' Endowment Association President Thomas J. Scotto.

"I've never opted to go to OATH; they never even brought it up," said Captains' Endowment Association president John F. Driscoll.

While the PBA negotiated a side agreement in the last round of collective bargaining that changed disciplinary proceedings for its members, sending them to OATH for substantiated CCRB complaints, no such agreement was ever reached with the four other police unions, whose members' cases are still tried in the NYPD Trial Room.

'No Input From Union'

While the PBA saw OATH as a preferable alternative to what cops have long characterized as the "kangaroo court" at the NYPD's Trial Room, the line union is far from satisfied with the way cases are currently handled.

"The frustrating thing about this is that the city never reached out to the union to get our input on the things we believe should be changed," said Patrolmen's Benevolent Association President Patrick J. Lynch. "There's been no dialogue and we are forced to fight it."

Mr. Lynch argued that cops do not face a level playing field at either CCRB or OATH. While they are subject to administrative charges for lying during an investigation or hearing, civilians face no penalties for making false allegations against officers.

"A civilian making a complaint should be made to swear to that complaint and held to it," said Mr. Lynch, who also criticized OATH for allowing the evidence of hearsay evidence that officers cannot challenge through cross-examination.

The proposal to have CCRB try its own substantiated cases first surfaced last June in a sharply critical report on police discipline issued by the Mayor's Commission to Combat Police Corruption. The panel said that the shift would eliminate "mutual finger-pointing" between the Department Advocate's Office and the board over failed prosecutions and reduce delays in closing cases.

The report also questioned the "objectivity" of uniformed officers serving as prosecutors of other cops accused of abusing civilians.

Police union officials and lawyers who represent cops charged in brutality cases said that the greatest concern with the plan is that the CCRB would increase the prosecution of officers for lying, an offense that is punishable by firing.

Inexperienced CCRB investigators, they say, routinely recommend that the Department Advocate's officer's testimony conflicts with the account given by a civilian alleging police abuse.

"CCRB is famous for accusing officers of lying in investigations and wanting them tried for it," said Mr. Driscoll.

"It's a major, major concern," said a lawyer who handles police discipline cases. "They always recommend adding on false statement charges when there is conflicting testimony. The concern is that they would be out of control and cops would lose their jobs."

Union officials said that the CCRB's prosecution of false statement charges would also go beyond its mandate in the City Charter, which limits the panel's investigations to so-called "FADO offenses," for force, abuse of authority, discourtesy and offensive language.

Another concern voiced by the unions was that CCRB prosecutors would be given access to confidential police personnel records, called the Central Personnel Index, during the course of a trial.