The Chief
June 29, 2007

Bill May Avert Breathalyzer Tests for Cops

Unions Hope Spitzer Curbs Kelly Right To Discipline

By REUVEN BLAU

The State Legislature June 22 passed a measure designed to reduce the Police Commissioner's power over disciplinary matters, which could enable the police unions to block the NYPD's move to have all officers who fire their guns when it involves injury or death to take Breathalyzer tests.

PATRICK J. LYNCH: Puts faith in Spitzer.
PATRICK J. LYNCH: Puts faith in Spitzer.

In April, Governor Spitzer vetoed a similar union-supported bill, which he said "both raises significant policy issues and has serious technical flaws."

'Addressed His Concerns'

But sources indicated last week that his major objection to that measure was that it would have retroactively changed expired collective-bargaining agreements. His veto message said that Lazarus clause "could lead to the re-opening of numerous disciplinary cases that have already been decided, all of which would have to be re-litigated."

The new bill, however, has been amended and is now being backed by all state employee labor organizations, including the State AFL-CIO.

"We have addressed all the concerns Governor Spitzer brought up in his veto message about the earlier bill," said Patrick J. Lynch, the president of the Patrolmen's Benevolent Association. "It's now time for the Governor to sign this legislation and correct the Court of Appeals decision, which has resulted in police officers being treated differently from all other public-sector employees in the state."

RAYMOND W. KELLY: His prerogatives at issue.
RAYMOND W. KELLY: His prerogatives at issue.

The measure was introduced after the state's highest court ruled last year that the PBA's demands pertaining to punishment procedures are prohibited subjects of contract negotiations. The Court of Appeals also concluded that state laws delegate disciplinary authority exclusively to government officials such as the police commissioner.

Law's Dual Standard

Backers of the measure noted that the present law treats the issue differently depending on jurisdiction. For officers in New York City, Westchester County and Rockland County, as well as the New York State Police, negotiating disciplinary issues has been prohibited. In the rest of the state, that topic is a mandatory subject of bargaining.

MICHAEL J. PALLADINO: Change prejudges cops.
MICHAEL J. PALLADINO: Change prejudges cops.

Mr. Spitzer's veto message acknowledged that discrepancy. "Although I cannot support this bill in its present form, I agree that our current system ... makes little sense," he said. "I urge the police unions and municipal employers to work together to determine if there are alternative approaches that would be acceptable to both sides."

It is unclear whether the Governor plans to sign the amended measure. Sources indicated last week that the unions had not had any direct talks with his staff concerning the legislation yet. "You can rest assured that we are going to lobby the Governor," asserted Michael J. Palladino, the president of the Detectives' Endowment Association.

Mayor Leads Opposition

The original bill was opposed by the Superintendent of the State Police, Mayor Bloomberg, the Westchester County Executive, the Conference of Mayors and Municipal Officials, and the Association of Towns. They lobbied against the measure, arguing that it would allow for key disciplinary decisions to be made by people outside the chain of command of people who are responsible for public safety.

ANTHONY GARVEY: Fears 'chilling effect.'
ANTHONY GARVEY: Fears 'chilling effect.'

"In particular, in many instances impasses in negotiations over discipline would be subject to resolution in binding arbitration," Mr. Spitzer said. "In their view, this legislation will significantly disrupt their ability to maintain effective management of their police forces."

Mr. Spitzer, however, noted in his veto message that disciplinary issues are negotiable in many police forces throughout the state and that those departments operate efficiently and effectively. The city's police unions have vowed to challenge the NYPD's alcohol-testing plan announced in the wake of the fatal Sean Bell shooting. The legislation, if signed into law by Governor Spitzer, would in all likelihood give them the power to force the department to negotiate the policy.

'Cops Have Rights'

"Cops have rights too," Mr. Palladino said. "The Constitution was built on innocence until proven guilty - cops are no different."

The legislation is also designed to overturn last year's Court of Appeals decision, which ruled only on police disciplinary decisions. That decision also concluded that under the City Charter, officer discipline is the exclusive province of the Police Commissioner.

"But the bill instead broadly defines 'terms and conditions of employment' to cover both discipline and disciplinary procedures of all public employers," Mr. Spitzer said, referring to the original measure.

The Court of Appeals concluded in March 2006 that the PBA's 48-hour rule and several other union contract provisions were not mandatory subjects of collective bargaining.

On June 18, Police Commissioner Raymond W. Kelly announced 19 recommendations of a special panel that he appointed to examine policies and procedures governing undercover officers after the Nov. 25, 2006 police shooting outside the Jamaica, Queens strip club Kalua, which killed Mr. Bell and wounded two of his friends.

The recommendations also include changing how undercover officers are selected, instructed, monitored, and retained.

Breathalyzer Prime Beef

The four police unions, however, are opposed to the Breathalyzer tests, arguing that the issue is a mandatory subject of collective bargaining and that it violates their members' Constitutional rights. The labor organizations were noncommittal to the panel's other proposals, which included allowing cops with less than two years of experience on the job to become undercover officers.

"The mere fact that you just fired the weapon alone should not give rise to a breath test," Mr. Palladino contended, "when testing for cause you have to reach a certain level of reasonable suspicion."

Despite the strong union opposition, the NYPD plans to implement the testing policy in September for all police officers, on duty or off duty, whose firearm discharge results in injury or death. "The department's view is that the Police Commissioner has the prerogative under the City Charter and the Administrative Code in matters pertaining to discipline," said Paul J. Browne, the NYPD's chief spokesman.

Sees Stigma in Test

Mr. Lynch argued that the alcohol tests would "cast a shadow" over all officers who fire their guns. "This should be done with negotiations," he said. "We are the most supervised profession in the world. Does the Police Commissioner not trust his chiefs and management people to know if their subordinates are drunk?"

Lieutenants' Benevolent Association President Anthony Garvey predicted that the policy would have a "chilling effect" on officers. "Anyone thinking that they were going to socialize and have a beer would be foolish to use their weapon if in fact they went to a barbeque and were forced into a shootout with, let's say, a robber on a block," he remarked during a phone interview last week. "You are going to lose a protection that citizens have with cops carrying their weapons 24/7."

A Two-Drink Limit

Currently, the department allows undercover officers to have two drinks while on duty to help them keep their identities secret. But critics of the department have questioned why Detective Gescard Isnora, who followed Mr. Bell and his friends from inside the club and was the first to fire at the men, wasn't tested for alcohol after the shooting.

Mr. Palladino maintained that alcohol didn't factor into the fatal shooting, noting that a supervisor at the scene deemed Officer Isnora fit for duty. Officer Isnora said he drank two beers inside the club, according to the NYPD's initial report of the incident.

"The only evidence of alcohol in the entire shooting was the fact that Sean Bell was intoxicated," Mr. Palladino asserted. "And it was his reckless actions behind the wheel that was the major causal factor of the entire shooting. That seems to be fact that Sharpton and company would like to skate around. They are trying to thrust blame on the NYPD."

Critics of the NYPD - including several City Council Members and prominent African-American community leaders - said that Officer Isnora startled Mr. Bell, who didn't realize he was a cop. Mr. Palladino, however, said the officer was wearing his badge around his neck and clearly identified himself.

Mr. Bell was killed after the officers opened fire. Two of his friends, Joseph Guzman and Trent Benefield, were each shot multiple times by the barrage of 50 rounds fired by the five officers. Three of the cops have been indicted and await trial.

The unions plan to have a joint meeting soon to discuss their legal options against the planned alcohol test. They have had mixed results battling other departmental policy changes that they objected to over the past few years.

Not Disciplinary?

The police unions are also contending that the proposed Breathalyzer policy is not a disciplinary issue. The unions successfully used that same argument in blocking the department from switching from urine drug tests to hair screenings.

But one attorney familiar with Constitutional law said the union's legal argument may be weak. "The city has an interest in preventing irresponsible criticism of Police Officers," said Herbert Rubin, the senior partner of Herzfeld and Rubin. "I suspect that the law would favor the right of the Police Department to take such tests because the record of that type of conduct doesn't differ very much from the report records that they would automatically receive with respect to any unusual incident."

Mr. Palladino said that the panel's suggestion created further problems for three officers who have been criminally charged in the Bell shooting. "The timing could be construed by potential jurors that there was fault on the side of police," the union president remarked.

Panel Kept Hands Off

Mr. Kelly has emphasized that the nine-member task force - headed by Charles Campisi, Chief of the Internal Affairs Bureau - would not investigate the Bell shooting.

Mr. Palladino, who initially embraced the creation of the task force, said that the other recommendations were overshadowed by the Breathalyzer proposal. "They are going to have a fight on their hands," he said. "I'm an advocate of alcohol-free policing, but not at the expense of cops' civil rights and their collective-bargaining rights."

The union president has recommended accelerating the promotion process for officers working undercover to become Detectives, in contrast to their colleagues serving in investigatory capacities who are primarily involved in making arrests.

As for the plan to allow officers with less than two years' experience to become Detectives, Mr. Palladino said that suggestion was due to the recent lack of interest officers have exhibited in joining the rank.

'Not Attractive Now'

"Officers do not line up for the undercover positions like they once did," he said. "Those people who are in the undercover positions are kind of held hostage there. It's not as attractive anymore because it seems like there is no way out of it on the other end."

The panel's other recommendations for undercover officers are: - Develop methods for psychological testing and instruction;

- Provide ongoing psychological screening and counseling for active undercover officers whose assignments are the most stressful and offer training for managing stress;

- Improve situation-based training through the use of professional actors; - Increase the pool of potential undercover officers by accepting particularly suitable candidates with less than two years of experience on the job and provide instruction tailored to their needs;

- Create training for supervisors with an emphasis on management, leadership, communication and interpersonal skills;

- Carry out an official job analysis in order to establish a more effective performance-evaluation system;

- Develop a community outreach program to educate the public about the risks, challenges and necessity of undercover operations;

- Create a training video for undercover officers which includes the perspective of community leaders from areas where operations are most often commenced;

- Necessitate strategic plans for undercover operations to include relevant data about the communities where they are working;

- Clarify the department regulation of two alcoholic drinks per tour and provide training on ways to avoid drinking altogether when pressured to do so by subjects;

- Require the Investigations Units of the relevant bureaus to conduct periodic inspections of tactical meetings to assess their adequacy and completeness;

- Establish a mechanism for assuring the completion of required annual firearms training, while assuring the security of their identities;

- Design a standard, readily identifiable, highly reflective jacket for officers' use when involved in plainclothes operations;

- Give supervisors portable megaphones and install light packages and public address systems in unmarked police cars so as to enhance the awareness of police presence during enforcement actions;

- Inspect equipment prior to undercover operations being carried out;

- Amend the tactical plan template to include specific consideration of where marked police vehicles are deployed near the set;

- Develop incentives to train experienced and competent undercover officers.