April 3, 2017



Razzle Dazzle

Agent of Silly: Mayor Makes Hard Job Harder

Shortly before he stepped down as Police Commissioner late last summer, Bill Bratton offered reporters the heartening news that because the NYPD had “discovered” a few months earlier that it was violating a 1976 law against the disclosure of police disciplinary actions, it was likely that there would be no announcement if and when a departmental case against Daniel Pantaleo was brought and decided.

It was a stunning revelation, delivered matter-of-factly. Mayor de Blasio reacted with a more-mannered version of, “Hey, what can I tell you?” He explained that he didn’t like the 1976 amendment to the state Civil Rights law but until it was rescinded, there was nothing that he—who had campaigned on promises of reforming the NYPD and personally being a beacon of transparency—could do.

The fact that Mr. Pantaleo’s role in the death of Eric Garner in July 2014 had stirred a national controversy as one of the most-prominent examples of an unarmed black man dying because of a questionable use of force by a white cop seemed to have eluded both the Mayor and his top cop. Chances are, though, both realized they wouldn’t have to issue a press release for word to get out if the veteran Staten Island cop wound up going through the NYPD disciplinary process.

Haste Exit Got Out Quickly

And that was proven with the March 26 resignation of Richard Haste, who underwent a departmental trial after neither state nor Federal authorities brought a successful case against him for fatally shooting Ramarley Graham five years ago. The NYPD’s Deputy Commissioner for Trials, Rosemarie Maldonado, found him guilty of poor tactics that required him to deploy deadly force, when in fact he should not have pursued the 18-year-old marijuana suspect to the point of forcing his way into his grandmother’s apartment, then shooting him in the bathroom after the teen reached into his waistband for what turned out to be nothing more lethal than a bag of pot.

She recommended that he be fired, and Police Commissioner James O’Neill was reportedly prepared to make it official at the point that Officer Haste showed up at Police Plaza to submit his resignation.

Word was that someone alerted one or more of the reporters who are based there that Mr. Haste had been seen in the general vicinity of the employee-relations office, and they made inquiries. The statement the NYPD put out soon after was technically not the sort of announcement Mr. Bratton had said would probably not be issued in Mr. Pantaleo’s case should he wind up in the Trial Room after the Justice Department decides whether to bring a case against him for violating Mr. Garner’s civil rights.

Some cynical people thought it was more than a lucky break that whoever spotted Mr. Haste just happened to know someone in the media and tipped him or her off. If in fact what played out was carefully choreographed by someone higher up in the NYPD to get the story out while preserving plausible deniability, it raised questions as to why the Mayor made such a charade necessary by deciding to appeal a July 2015 ruling by Manhattan Supreme Court Justice Alice Schlesinger that the CCRB was a separate agency from the NYPD and therefore not bound by Section 50-a of the state Civil Rights Law when it came to disclosure of cops’ records.

Had Walked Away Before

He has acted as if he had no choice but to appeal, as if he hadn’t walked away from several previous controversial cases involving the NYPD, most notably his pred­ecessor’s appeal of then-U.S. District Judge Shira Scheind­lin’s 2013 ruling in the stop-and-frisk case. Speculation as to why he opted to appeal Justice Schlesinger’s ruling initially centered on a desire to accommodate Mr. Bratton, who provided credibility for him on police matters with much of the public, as well as the police unions. Once Mr. O’Neill replaced him, the thinking went, if the Mayor suddenly reversed course, it would appear that he wasn’t as supportive of his new commissioner, hurting both of them with uniformed members of the NYPD.

“Bratton put him in a jackpot and they’re still going with it,” said attorney Arnie Kriss, who served as the NYPD Dep­uty Commissioner for Trials early in Ed Koch’s 12-year tenure as Mayor. “All the city had to do is not appeal” Justice Schlesinger’s ruling. An Appellate Division panel over­turned that decision March 30, a victory the Mayor could have lived without.

Instead, Mr. de Blasio has called on the State Legislature to repeal Section 50-a, which would create the right of access to officers’ disciplinary records within the department, as opposed to the cases that have wound up before the CCRB which may still be exempted from it if the civil-liberties advocates who brought the case prevail now that it’s their turn to appeal. Given the opposition of the police unions, led by the Patrolmen’s Benevolent Association, to knocking out that law, it doesn’t figure to go anywhere as long as Republicans command a working majority in the State Senate. Which means that until such a change occurs, the Mayor is managing the unique-if-not-unprecedented political feat of tying his own hands.

Mr. Kriss said he doesn’t think it will matter in the Garner case, explaining that if the Federal Government doesn’t file civil-rights charges, “I don’t think Pantaleo goes to [an NYPD] trial. He’s gonna play it out until the last possible moment and then resign.”

‘He’s Worse Than Haste’

He’s sure of that, Mr. Kriss continued, because “you know he’s getting fired. You see what happened with Haste, and he’s worse than Haste.”

He was referring to the differences in their cases. By Mr. Haste’s account, he had to make a split-second decision when he saw Mr. Graham reach into his waistband, based on information he received earlier in the chase from colleagues that the teen appeared to have a gun. In contrast, Mr. Pantaleo didn’t anticipate Mr. Garner—a habitual criminal whom he’d dealt with before—could muster lethal force: his main problem with him was his sheer bulk, which left the cop unable to use a “seat-belt” hold successfully and led him to deploy what appeared on a video of the incident to be a department-banned chokehold.

The leaked CCRB files for both men reflected far worse on Mr. Pantaleo as well. Mr. Haste had been the subject of 10 civilian complaints involving six incidents within a 14-month period prior to the Graham killing, but none of them were substantiated during CCRB deliberations. Over a five-year period prior to his fatal confrontation with Mr. Garner, there were 14 CCRB complaints arising from seven incidents and four substantiations—involving two of those incidents—against Officer Pantaleo. The charges in one of them were egregious enough that the city reached a $30,000 civil settlement after it was alleged that the officer and his partner had forced two men to pull down their pants on a public street and then “flicked” their genitals to see whether they had hidden drugs in that area.

And so while PBA President Pat Lynch railed against the leak of the CCRB files in both cases, there was nothing about Mr. Haste’s record, given that he was working in a relatively high-crime precinct and none of the claims against him resulted in the CCRB’s equivalent of a conviction, to make an assumption that he was an abusive cop who should have been flagged by the NYPD prior to his fatal encounter with Mr. Graham. The leak of the Pantaleo file, on the other hand, buttressed the image created by the video of a cop willing to resort to force disproportionate to the situation.

‘Mayor Siding With NYPD’

Which meant that if not for the leak, Mr. Pantaleo was the officer who loomed as the prime beneficiary of the Mayor’s decision to appeal the Schlesinger ruling. Former New York Civil Liberties Union executive director Norman Siegel said he believed it was yet another case in which, “although he claims to be a progressive on issues and claims to be for police accountability, [the Mayor] sides with the Police Department. He’d rather take the criticism from the civil-rights community than risk alienating the department and the unions.”

That wasn’t necessarily a consistent thread running through the Mayor’s relationship with those entities. A conspicuous exception was his decision to settle the lawsuit brought on behalf of the Central Park 5 once their convictions in the 1989 rape of a 28-year-old jogger were vacated by then-Manhattan District Attorney Bob Morgenthau in 2002, leading the Bloomberg administration to stall the suit for more than a decade. Only diehard supporters of the police believed the five men who were charged and then exonerated—after the one individual whose DNA was found on the jogger stepped forward and said he had assaulted her alone—weren’t entitled to compensation for the long periods each of the then-teenagers had spent behind bars. But the $41 million the Mayor agreed to pay to settle the case seemed excessive, given that others in the park had identified most of them as being involved in random assaults that occurred at roughly the same time as the savage attack on the jogger by serial rapist Matias Reyes.

Mr. Siegel argued that Mr. de Blasio was less inclined to be “deferential” to the key players in the NYPD on that case because “the Central Park 5 was not only a New York issue but a national issue.”

‘Not Out of His Pocket’

He continued, “He had overwhelming support from the black community. And to be cynical, the money wasn’t coming out of his pocket.”

Mr. Siegel, while normally opposing police officers and the department in court, was harshly critical of what he claimed was a “rush to judgment” by Mr. de Blasio last October in castigating Sgt. Hugh Barry for fatally shooting a 66-year-old schizophrenic woman, Deborah Danner, when she unexpectedly charged at him wielding a baseball bat just seconds after he had convinced her to drop a scissors. Nearly six months later, the Bronx District Attorney’s Office still has not taken any action against the Sergeant, confirming the belief among many that there was not a clear-cut case of wrongdoing on his part even though he hadn’t obeyed NYPD protocol for dealing with Emotionally Disturbed Persons.

“My observation of the Mayor is that he doesn’t always stand on his principles,” Mr. Siegel said last week. “He’s pragmatic, opportunistic. I used to tell people I was a progressive. But if Mayor de Blasio and his administration are progressive, I guess I am not.”

Not Charged but Tarnished

He is hardly alone in questioning how often the Mayor’s moral compass seems to drift off course. He strained credulity with his claim last month that he had been shown to have acted ethically after both the U.S. Attorney’s Office and Manhattan District Attorney’s Office declined to bring criminal charges against him and aides last month. After all, one of them stated a Federal prosecution was ruled out because of “the particular difficulty in proving criminal intent in corruption schemes where there is no evidence of personal profit.” And the Manhattan DA’s statement in a letter to the state Board of Elections that Mr. de Blasio’s actions in trying to swing the balance of power in Democrats’ favor during the 2014 State Senate elections amounted to “an end run around the direct candidate contribution limits by taking advantage of inconsistent provisions in the Election Law” was nearly as damning.

While he’s off the hook criminally, he learned March 29 that paying off the legal tab he incurred over the past year would not be as easy as he had hoped. The Conflicts of Interest Board ruled that the legal-defense fund he set up to tap private citizens to help pay off what he owes his high-priced lawyers could not accept individual donations of more than $50, which was a lot less than he was hoping to receive from his campaign contributors. The board ruled that money meant to cover the fees (the New York Times noted that the high-powered law firm that provided legal services to others in his administration had charged $850 an hour) had to be viewed as a gift, and thus the $50 limit for all municipal employees applied.

Caught by Surprise?

The Mayor indicated he would appeal the ruling; he clearly hadn’t anticipated that limit being imposed when he announced that contrary to other members of his administration for whom the city authorized $11.6 million to cover their legal expenses as part of the probes, he would not draw from public funds for his own defense.

Compounding his aggravation for the day was the response from Ramarley Graham’s mother, Constance Malcolm, to an offer he made during that press conference last Wednesday to finally meet with her about her son’s death. He had attached one condition: he would not speak with her about pending cases, including those of two other cops connected to the death, Sgt. Scott Morris and Police Officer John Mc­Loughlin.

There were sound legal reasons for his taking that position, since the two cops are facing departmental trials.

But Ms. Malcolm, understandably, was in no mood to be reasonable. She didn’t respond to the substance of his offer, instead complaining that the Mayor had communicated it through the media rather than contacting her directly.

Clearly, though, that was­n’t what bothered her most—after Mr. Haste was allowed to resign, she questioned why he hadn’t been fired first.

‘Not the Heart of Matter’

The Mayor addressed that complaint, telling reporters, “And the fact that he resigned first, I understand why that’s painful to some, but I don’t find it to be the heart of the matter. The heart of the matter is… he’s off the force, he’s lost his pension.”

Mr. Haste was offered a deal late last summer under which he would have been allowed to resign and collect a small pension. He instead gambled and went to trial, was convicted and wound up resigning anyway, minus the pension because with a bit less than nine years on the job, he hadn’t reached the 10-year threshold at which cops’ pensions vest.

Mr. Pantaleo has been more fortunate in that regard. He had eight years’ experience at the time of the encounter with Mr. Garner, and when a Staten Island grand jury declined to indict him in December 2014, it cleared a path for the NYPD to initiate a departmental trial. It opted not to do so, with then-Commissioner Bratton saying he deferred to Federal prosecutors at the request of the U.S. Attorney’s Office in Brooklyn. That was not confirmed, however, by that office, and there actually was precedent for having the departmental trial before a decision was made on Federal action. Frank Livoti was convicted and fired by the NYPD in early 1997 after he was acquitted in Bronx Supreme Court in the killing of Anthony Baez in late 1994, prior to his being charged and convicted of violating Mr. Baez’s civil rights in June 1998, in another case in which an NYPD-banned chokehold figured prominently.

The NYPD’s decision not to follow that same sequence for Officer Pantaleo allowed his pension to vest once he marked his 10th anniversary in the department last year, adding another potential irritant to the grievances of Mr. Garner’s family as they wait to see whether the officer will face Federal charges.

Job Full of Headaches

Such controversies are part of the travails of being Mayor, with Mr. Koch lamenting that occupying the position meant there were people who would hold you responsible for the death of a sparrow in Central Park. Mr. de Blasio has brought additional heat upon himself with his prickly relationship with reporters, who two weeks ago rebelled against his strictures on when he would take questions that were “off topic” with a succession of such queries that led him to abruptly terminate the press conference he called on his bid to get a “Mansion Tax” approved in Albany.

That levy would impose a 2.5-percent surcharge on all home sales above $2 million. Standing at a windswept location on the Upper East Side which was intended to offer a visual backdrop for the kind of home he was talking about, the Mayor’s face grew redder for reasons that weren’t altogether weather-related as reporters ignored his designated topic to ask about other issues. Among them was a court ruling that he was obligated to make public the email correspondence he’d had with a longtime confidant who his then-Council had dubbed an “Agent of the City” who therefore should be exempted from the Freedom of Information Law.

In insisting he wouldn’t deviate from his q.-and-a. etiquette, he created a controversy that wound up overshadowing the Mansion Tax. He also denied himself the opportunity to weigh in on a couple of issues he would normally relish discussing. In fact, one of the questions, about the fatal stabbing of a 66-year-old black man by a white racist who came to the city from Baltimore with the alleged intent to kill as many black people as he could in the place where it would get the most attention, came up the following morning during his weekly appearance on Brian Lehrer’s radio show on WNYC.

‘Racist Terrorism’

“Look, this is domestic, racist terrorism,” Mr. de Blasio said then. “There’s no question. It is the equivalent of what happened in Charleston [South Carolina] at the church, which was one of the most-horrible incidents that’s occurred in this nation in many years—a racially motivated act of domestic terrorism.”

One defense the Mayor and his press people have offered for his limiting questions he’ll take from reporters during his general-media opportunities is that he submits to detailed questioning each week by Mr. Lehrer and NY1’s Errol Louis. Beyond the presumption inherent in his insisting it’s no big deal because he has decided that anointing two well-respected journalists to question him on a broad array of topics is enough of a concession to freedom of the press, this attitude ignores the competitive nature of the news business. It also disregards the reality that both Mr. Lehrer and Mr. Louis have decidedly smaller audiences than both the daily papers and the broadcast networks. It is as if he has decided he will narrow-band what he says for public consumption to reach two audiences he figures are likely to have large contingents of his supporters, while also doing occasional radio interviews on hip-hop stations where minority listeners make up a majority but the questions are likely to be less-testing than in a general-media press conference.

This is particularly ironic given Mr. de Blasio’s statements four years ago at a time when he was having trouble getting media attention because the front-runner for the Democratic nomination less than two months before the mayoral primary was Anthony Weiner. When Mr. Weiner’s campaign was abruptly rocked late that July by revelations that he had returned to the sexting that two years earlier forced his resignation from Congress, Mr. de Blasio called a press conference that was aimed as much at lecturing those covering it as it was at deriding Mr. Weiner for his bad behavior. Arguing that his opponent’s personal issues were sucking up all the oxygen in the room that otherwise would have been going to the substantive positions of the candidates, he said that “we haven’t had a debate on the issues and so people are making a judgment so far based on name recognition and celebrity.”

Words Still Resonate

He then added that candidates “should be scrutinized, and if you can’t hold yourself to a higher standard, you should look for a new line of work.”

It’s doubtful that, assuming he remembered those words, he thought they applied to him as he defended himself against the damning statements by prosecutors that served as indictments in the court of public opinion that they shied from bringing in courtrooms. But the inconsistencies between the ideals he professes and his actions are certainly one of the factors in the determination by the reporters from the Wall Street Journal, NY1 and The Times to brush past the Mayor’s rules on questions two weeks ago.

There was a good reason, beyond their having tired of his edicts regarding what questions they were permitted to ask on an “on-topic-only” day, for their defiance: the mansion levy seemed destined for a quiet death in Albany. Governor Cuomo was having a difficult time persuading Republican State Senators to approve a renewal of the “millionaires’ tax” on individuals making at least $1 million a year and couples earning more than $2 million, and so there were practical as well as personal reasons he wasn’t going to waste any political capital on Mr. de Blasio’s behalf. Any doubt about that was eliminated four days after the Mayor’s stand-off with the press corps when Mr. Cuomo was asked by Mr. Louis about the proposal, which had been introduced at the start of the year, and responded, “It never went anywhere in January and it hasn’t gone anywhere since.”

Inapt Comparison

Mr. de Blasio, at least publicly, refused to concede on the issue, claiming that the same doubts were expressed about his plan three years ago for an expanded all-day pre-kindergarten program, and it wound up being launched because of his persistence. In fact, he wanted to pay for that expansion by imposing a tax on wealthy New Yorkers, which the Governor was sharply opposed to partly because it was an election year for him and state legislators. They did, in the end, agree to use state funding to cover a slightly-more-modest pre-K expansion, but also forced Mr. de Blasio to make some concessions on charter schools, intervening on behalf of his longtime enemy, Success Academy network founder and chief executive officer Eva Moskowitz.

Mr. de Blasio’s battles with the media and his persistence on the Mansion Tax are testaments to his stubbornness. But the ethical issues that have cropped up involving fund-raising for both his own campaign and the failed bid to swing the State Senate to Democratic control have undercut his attempts to posture as a lonely crusader doing what’s in the city’s best interests, because of the whiff of pay-for-play created by too many contributions followed by favorable city action for the donors.

And the Mayor’s protest that his advocacy with his agencies on behalf of his do­nors merely continues his practices when he was Public Advocate and a City Council Member ignores the reality that he now holds a position powerful enough to single-handedly influence government action on behalf of his contributors. One of them who recently said she felt like she had to give money or risk adverse actions from gov­ernment that would hurt her business was not engaging in hyperbole.

What He’s Got Going

Yet despite all the turmoil swirling around him, Mr. de Blasio is regarded as an overwhelming favorite for re-election. Three popular achieve­ments that work in his favor are the steady reduction in crime even as the NYPD continues to reduce stop-and-frisks and improves community relations in the process, the paid-sick-leave policy that affects private businesses, and the successful pre-K expansion. He can also point to sound management of the budget and the cleaning up of the contract mess Michael Bloomberg bequeathed him, neither of which attracts much public attention but sure haven’t hurt him in piling up union endorsements and gaining respect from fiscal watchdogs.

But given the other glaring problems his administration has had in areas like homelessness and protecting children in at-risk families, and a personality that doesn’t endear him to some New Yorkers—particularly white vo­ters, according to numbers in the polls—the big edge being accorded him in his bid for re-election is more about the lack of a well-regarded, well-funded opponent to this point than it is about him.

Perhaps the best thing Mr. de Blasio has going for him is the aggressiveness with which the Trump Administration has targeted the city for Federal cuts while attempting to take actions that would threaten or antagonize a large segment of its population. Those who argued early on that it was a mistake to staunchly oppose Donald Trump without even waiting for him to assume office have been proven wrong, while the Mayor was able to establish himself as someone who would stand up to him, even if it made the President’s hometown more of a target.

And so that becomes one more arrow in his quiver as he moves forward with no formidable opponents on the horizon.

But all the clouds surrounding the Mayor, and a personality that makes it difficult for him to sound enthused even when things are going better than at present, suggest that he isn’t enjoying himself much.