CCRB Counsel

INCREASED SOVEREIGNTY: The Civilian Complaint Review Board’s Deputy Chief Prosecutor Suzanne O’Hare and CCRB Prosecutor Jonathan Fogel, above, following a trial session in the CCRB’s prosecution of Police Officer Daniel Pantaleo in May, would have increased authority if a slate of recommendations by the city’s Charter Review Commission is approved by voters in November.

City residents in November will decide whether the city’s police-oversight panel should have increased clout—and more money.

After considering and discussing several proposed amendments to the city charter over the past few months, the city’s Charter Review Commission has introduced a package of five proposals that if finalized by the 15-member panel later this month and approved by voters in November, would grant the Civilian Complaint Review Board additional prosecutorial authority.

 

Handled Pantaleo Trial

The CCRB investigates and prosecutes complaints by the public against NYPD officers. Its attorneys recently prosecuted the case against Officer Daniel Pantaleo, who was accused of using a department-prohibited chokehold that led to the death of Eric Garner in Staten Island nearly five years ago.

If the cluster of recommendations is approved (the proposals will be presented to voters as a single package), the CCRB’s budget would become tied to the NYPD’s to the tune of.71-percent personnel headcounts for every uniformed NYPD officer. In other words, the CCRB’s budget would equal that of five-sevenths of one CCRB staffer for every 100 uniformed officers.

According to some advocates, one benefit of that provision would be additional independence for the CCRB, as well as increased transparency with regard to the police budget.

Although the Charter Review Commission's ballot language has not yet been finalized, the CCRB estimates that should the .71-percent figure be retained and the proposals pass in November, the agency's Fiscal Year 2021 budget would be about $22 million. CCRB’s Fiscal Year 2019 budget is roughly $17.1 million. 

The slate of recommendations from Commission staff will have one more go-around before the 15-member panel July 24, but a city source said the commissioners are not likely to deviate much, if at all, from staff suggestions.

Could Probe 'Testilying'

Another proposal would allow CCRB to investigate suspected false statements made by an officer during the course of an investigation or during prosecution. The CCRB currently refers allegations of that type of misconduct to the NYPD for investigation and possible prosecution.

Another recommendation would require the Police Commissioner to give the CCRB an explanation if he or she deviates from recommendations of discipline by the board or by the NYPD Commissioner for Trials.

The Police Commissioner is not now required to explain his or her reasons when meting out discipline that is different than that recommended by the CCRB. Jonathan Darche, the CCRB’s Executive Director, while advocating for changes that would strengthen CCRB’s authority before the Charter Revision panel in March, said that provision would hold the Commissioner “accountable” for disciplinary decisions. 

Charter Revision staff also forwarded a proposal that would delegate subpoena power to the CCRB’s executive director. That power currently resides with the CCRB board.

The final recommendation suggests increasing the CCRB from 13 to 15 members, with one additional person appointed by the Public Advocate and the other, who would serve as chairperson, jointly by the Mayor and the Council Speaker “provided that a process shall be established for appointment of an interim chair” if the two cannot agree on a choice.

What Was Not Addressed

Significantly, Charter Revision staff did not forward a proposal that would have codified the 2012 memorandum of understanding between the NYPD and the CCRB, which in essence is the document that sanctions the CCRB’s prosecutorial power.

One of the MOU’s central provisions established the CCRB Administrative Prosecution Unit, whereby CCRB lawyers, in a public courtroom at 1 Police Plaza, prosecute NYPD officers.

Arguing in March for codification, Mr. Darche said the MOU’s provisions are key to keeping the NYPD accountable in the public’s eye, as well as safeguarding the CCRB’s autonomy regardless of leadership changes at the CCRB or the NYPD.

“Amending the City Charter to codify the APU will ensure that this independent and effective tool for civilian oversight will continue,” he said then. “Similarly, better defining the NYPD’s duty to cooperate would enable the established cooperation between the agencies to continue, regardless of leadership changes at either agency.”

Codifying the memorandum, he said, would ensure that that the CCRB’s prosecutorial mechanism would retain some measure of independence as an “effective tool for civilian oversight.”

“It’s the only glimpse into the disciplinary process that the public has,” he said in May during an appearance on Manhattan Borough President Gale Brewer’s MNN TV show. “That kind of insight and transparency, I think, is vital to people believing in the process.”

Since the creation of the APU, the CCRB has administratively prosecuted officers for misconduct at 374 trials.

NYPD Pushed Back

Addressing the charter revision panel in March following Mr. Darche, the NYPD’s Executive Director of Legislative Affairs, Oleg Chernyavsky, while saying the department and the CCRB had “shared goals of transparency,” made it clear police brass were not in favor of expanding either the board’s authority or its budget.

“While the department will continue to encourage a healthy working relationship that goes beyond the strict bounds of the Charter—as we did with the creation of the APU—we do not support such an expansion of the CCRB’s authority,” he said.

The department, Mr. Chernyavsky said, was already “subject to multiple oversight entities,” including city, state and federal authorities as well as the public.

“Allowing an expansion of the CCRB’s legal jurisdiction to include prosecution and policy review would be duplicative of existing oversight frameworks and create a significant unfunded burden to the department,” he said.

He argued against linking the CCRB’s budget to the NYPD’s by saying that every city agency’s spending plan should be evaluated on its own merits.

'No Rational Correlation'

“Tying an agency's budget to the NYPD's budget we do not believe has a rationale correlation to the needs of any particular agency,” he said.

Among recommendations in a report documenting the NYPD’s failure to prosecute any of the nearly 2,500 claims of discrimination levelled against officers during a four-year period ending in 2018, it was suggested that the board adopt a policy to classify and investigate allegations of biased policing by uniformed officers, rather than referring those claims to the Internal Affairs Bureau. CCRB Chairman Fred Davie, however, said the board would need more money and more staff if it were tasked with investigating, mediating and prosecuting allegations of discrimination. 


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