The Chief
June 29, 2001

City Defers to Judge

Cops' Suit Stymies CCRB Prosecutions

By William Van Auken

The Giuliani administration put its plan to give the Civilian Complaint Review Board the power to prosecute police abuse cases on hold last week after the Corporation Counsel's Office agreed to wait until a judge rules on a challenge brought by the five police unions.

Appearing before Manhattan State Supreme Court Justice Leland DeGrasse June 10, Assistant Corporation Counsel Alan Krampf announced that the city would enter a stipulation with the unions, putting off the plan's implementation until a ruling is issued on its legality.

Board Not Gearing Up

Under a memorandum of understanding reached earlier this year between the Police Department and CCRB, the independent agency was to have taken over prosecution of substantiated complaints from the Department Advocate's Office beginning June 25.

As the two sides appeared in court, however, the board appeared less than ready to take on this function.  As of June 20, it had yet to hire a single attorney to handle the prosecution of police abuse cases, a spokesman said.  While the CCRB has placed job ads for a Chief Prosecutor with an annual salary of $100,000, an Assistant Chief Prosecutor at $85,000, and up to a dozen Staff Attorneys earning $72,000 each, no one has yet even been offered a job.

Oral arguments on the police union suit are set to begin in Justice DeGrasse's court on July 2.

"The city legislature created the CCRB, and it did not give it the authority to prosecute police officers," said Richard Dienst, the attorney representing the superior officer unions.  "The Mayor is attempting to do this by a rules change, but that is beyond the scope of his powers."

Established in 1993 under a City Council bill signed into law by Mayor Dinkins, the CCRB is empowered to accept, investigate and substantiate civilian complaints against officers accused of so-called 'FADO" offenses-excessive force, abuse of authority, discourtesy and offensive language.  Substantiated cases have been referred to the Department Advocate's Office for prosecution.

The Giuliani administration has argued that bringing the investigatory and prosecutorial functions together at CCRB would streamline the NYPD disciplinary process, creating greater public confidence and eliminating what a mayoral panel described as "mutual finger-pointing" between the agency and police prosecutors over failed cases against cops.

In its response to the unions' lawsuit, the city claimed that the Police Commissioner has the authority to delegate the responsibility for prosecuting cases to the CCRB, while retaining ultimate power in determining disciplinary penalties against accused cops.

Bargainable Issue?

The cop unions have also contested the plan on the grounds that it would shift the trials of superior officers with CCRB-substantiated complaints from the NYPD Trial Room to the city's Office of Administrative Trials and Hearings.  OATH already hears cases brought against Police Officers as the result of a side letter to the last collective-bargaining agreement between the city and the Patrolmen's Benevolent Association.  The other four unions, however, have accepted no such deal, and insist that this change would have to be either negotiated or legislated.

Finally, the unions charge that in order to prosecute cases, CCRB attorneys will be granted access to confidential information in police officers' personnel folders, which they claim is a violation of a section of the state Civil Rights Law protecting the confidentiality of cops' records.

"The city may have seen the writing on the wall," said PBA General Counsel Michael T. Murray, adding that the administration may have preferred entering a stipulation postponing the CCRB plan to the judge granting the unions' request for a preliminary injunction and thereby affirming the probability of their prevailing at trial.