Bill Text: NY A06012 | 2021-2022 | General Assembly | Introduced
Bill Title: Provides final discipline authority over civilian complaints to the civilian complaint review board; creates a hearing officer and adjudicative body for such complaint review board.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced - Dead) 2022-01-05 - referred to cities [A06012 Detail]
Download: New_York-2021-A06012-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6012 2021-2022 Regular Sessions IN ASSEMBLY March 4, 2021 ___________ Introduced by M. of A. CRUZ -- read once and referred to the Committee on Cities AN ACT to amend the New York city charter and the administrative code of the city of New York, in relation to providing final discipline authority over civilian complaints to the civilian complaint review board The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision a of section 434 of the New York city charter 2 is amended to read as follows: 3 a. The commissioner shall have cognizance and control of the govern- 4 ment, administration, disposition and discipline of the department, and 5 of the police force of the department, with the exception of discipli- 6 nary determinations and adjudications made by the civilian complaint 7 review board, which shall not be within the discretion of the police 8 commissioner. 9 § 2. Section 440 of the New York city charter, as added by local law 10 number 1 of the city of New York for the year 1993, paragraphs 1, 3 and 11 4 of subdivision (b) as amended by section 1, paragraphs 1, 2, 3 and 5 12 of subdivision (c) as amended by section 2, paragraphs 1 and 2 of subdi- 13 vision (d) as amended by section 3, paragraph 3 of subdivision (d) as 14 amended by section 4 and subdivision (g) as added by section 5 of ques- 15 tion 2 of local law number 215 of the city of New York for the year 16 2019, is amended to read as follows: 17 § 440. Public complaints against members of the police department. (a) 18 It is in the interest of the people of the city of New York and the New 19 York city police department that the investigation and prosecution of 20 complaints concerning misconduct by officers of the department towards 21 members of the public be complete, thorough and impartial. These 22 inquires must be conducted fairly and independently, and in a manner in 23 which the public and the police department have confidence. An independ- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07384-01-1A. 6012 2 1 ent civilian complaint review board is hereby established as a body 2 comprised solely of members of the public with the authority to investi- 3 gate and prosecute allegations of police misconduct as provided in this 4 section. 5 (b) Civilian complaint review board. 6 1. The civilian complaint review board shall consist of 15 members of 7 the public. Members shall be residents of the city of New York and shall 8 reflect the diversity of the city's population. The members of the board 9 shall be appointed as follows: (i) five members, one from each of the 10 five boroughs, shall be appointed by the city council; (ii) one member 11 shall be appointed by the public advocate; (iii) three members with 12 experience as law enforcement professionals shall be designated by the 13 police commissioner and appointed by the mayor; (iv) five members shall 14 be appointed by the mayor; and (v) one member shall be appointed jointly 15 by the mayor and the speaker of the council to serve as chair of the 16 board. 17 2. No member of the board shall hold any other public office or 18 employment. No members, except those designated by the police commis- 19 sioner, shall have experience as law enforcement professionals, or be 20 former employees of the New York city police department. For the 21 purposes of this section, experience as a law enforcement professional 22 shall include experience as a police officer, criminal investigator, 23 special agent, or a managerial or supervisory employee who exercised 24 substantial policy discretion on law enforcement matters, in a federal, 25 state, or local law enforcement agency, other than experience as an 26 attorney in a prosecutorial agency. 27 3. The members shall be appointed for terms of three years. The public 28 advocate shall make the public advocate's first appointment to the board 29 on or before May 6, 2020. The board member so appointed shall assume 30 office on July 6, 2020. The mayor and the speaker of the council shall 31 make their initial joint appointment to the board on or before May 6, 32 2020. The member so appointed shall serve as the board's chair and shall 33 assume office on July 6, 2020. 34 4. Members of the board shall serve until their successors have been 35 appointed and qualified. In the event of a vacancy on the board during 36 the term of office of a member by reason of removal, death, resignation, 37 or otherwise, a successor shall be chosen in the same manner as the 38 original appointment within 60 days from the date such vacancy occurred. 39 A member appointed to fill a vacancy shall serve for the balance of the 40 unexpired term. During any period in which the office of the chair is 41 vacant, the mayor shall select a member of the board to serve as interim 42 chair until such vacancy has been filled. 43 (c) Powers and duties of the board. 44 1. The board shall have the power to receive, investigate, hear, make 45 findings and recommend action upon complaints filed by members of the 46 public or information received by the board against members of the 47 police department that allege misconduct involving excessive use of 48 force, abuse of authority, discourtesy, or use of offensive language, 49 including, but not limited to, slurs relating to race, ethnicity, reli- 50 gion, gender, sexual orientation and disability. The board shall also 51 have the power to investigate, hear, make findings and recommend action 52 regarding the truthfulness of any material official statement made by a 53 member of the police department who is the subject of a complaint 54 received by the board, if such statement was made during the course of 55 and in relation to the board's resolution of such complaint. The find- 56 ings and recommendations of the board, and the basis therefor, shall beA. 6012 3 1 submitted to the police commissioner, who shall have no discretion in 2 whether to impose the recommended discipline. Where the board substanti- 3 ates one or more allegations against a member of the police department 4 and recommends a level of discipline that would subject the member of 5 the department to being fined, reprimanded, removed, suspended or 6 dismissed from the force, the complaint shall be adjudicated by a hear- 7 ing officer pursuant to subdivision (d) of this section. No finding or 8 recommendation shall be based solely upon an unsworn complaint or state- 9 ment, nor shall prior unsubstantiated, unfounded or withdrawn complaints 10 be the basis for any such finding or recommendation. 11 2. The board shall promulgate rules of procedure in accordance with 12 the city administrative procedure act, including rules that prescribe 13 the manner in which investigations and prosecutions are to be conducted 14 and recommendations made and the manner by which a member of the public 15 is to be informed of the status of his or her complaint. Such rules may 16 provide for the establishment of panels, which shall consist of not less 17 than three members of the board, which shall be empowered to supervise 18 the investigation of matters within the board's jurisdiction pursuant to 19 this section, and to hear, make findings and recommend action on such 20 matters. No such panel shall consist exclusively of members appointed by 21 the council, or designated by the police commissioner, or appointed by 22 the mayor. 23 3. The board, by majority vote of its members, may compel the attend- 24 ance of witnesses and require the production of such records and other 25 materials as are necessary for the investigation and prosecution of 26 matters within its jurisdiction pursuant to this section. The board may 27 request the corporation counsel to institute proceedings in a court of 28 appropriate jurisdiction to enforce the subpoena power exercised pursu- 29 ant to this section, and the board itself may, subject to chapter 17 of 30 the charter, institute such proceedings. The board may, subject to any 31 conditions it deems appropriate, delegate to and revoke from its execu- 32 tive director such subpoena authority and authority to institute 33 proceedings. 34 4. The board shall establish a mediation program pursuant to which a 35 complainant may voluntarily choose to resolve a complaint by means of 36 informal conciliation. 37 5. The board is authorized, within appropriations available therefor, 38 to appoint such employees as are necessary to exercise its powers and 39 fulfill its duties. The board shall employ civilian investigators to 40 investigate all matters within its jurisdiction. The board shall create 41 an administrative prosecution unit, staffed by attorneys and the neces- 42 sary support staff, that shall handle the prosecution of substantiated 43 cases before a hearing officer. 44 6. The board shall issue to the mayor and the city council a semi-an- 45 nual report which shall describe its activities and summarize its 46 actions. 47 7. The board shall have the responsibility of informing the public 48 about the board and its duties, and shall develop and administer an 49 on-going program for the education of the public regarding the 50 provisions of this chapter. 51 (d) Hearings. 52 1. The executive director shall appoint at least one hearing officer, 53 who shall be a civilian with no law enforcement background, to preside 54 over and adjudicate disciplinary proceedings and make final determi- 55 nations in cases where the board has substantiated one or more allega-A. 6012 4 1 tions against a police officer and recommended command discipline or 2 charges and specifications. 3 2. The hearing officer, upon approval of the board chair, shall have 4 the power to punish an officer, upon a plea of guilty or a finding of 5 guilty after an administrative trial, by reprimand, forfeiting and with- 6 holding pay for a specified time, suspension, suspension without pay, or 7 by dismissal from the force. No more than thirty days' salary shall be 8 forfeited or deducted for any offense. Members of the police department 9 may be fined, reprimanded, removed, suspended or dismissed from the 10 force only on written charges made and preferred against them, after 11 such charges have been examined, heard and investigated by the hearing 12 officer, by a preponderance of the evidence, upon such reasonable notice 13 to the member of service charged, and in such manner or procedure, prac- 14 tice, examination and investigation as prescribed, to the extent appli- 15 cable under sections 15-03 and 15-04 of the Rules of the City of New 16 York. 17 3. The conduct of such hearings shall follow, to the extent applica- 18 ble, the parameters specified in sections 15-03 and 15-04 of the Rules 19 of the City of New York. 20 4. Attorneys from the board's administrative prosecution unit shall be 21 responsible for the prosecution of cases before the hearing officer. 22 (e) Cooperation of police department. 23 1. It shall be the duty of the police department to provide such 24 assistance as the board may reasonably request, to cooperate fully with 25 investigations by the board, and to provide to the board upon request 26 records and other materials which are necessary for investigations 27 undertaken pursuant to this section, except such records or materials 28 that cannot be disclosed by law. 29 2. The police commissioner shall ensure that officers and employees of 30 the police department appear before and respond to inquiries of the 31 board and its civilian investigators in connection with investigations 32 and prosecutions undertaken pursuant to this section, provided that such 33 inquiries are conducted in accordance with department procedures for 34 interrogation of members. 35 [3. The police commissioner shall report to the board in writing on36any action taken, including the level of discipline and any penalty37imposed, in all cases in which the board submitted a finding or recom-38mendation to the police commissioner with respect to a matter within its39jurisdiction pursuant to this section. In any case substantiated by the40board in which the police commissioner intends to impose or has imposed41a different penalty or level of discipline than that recommended by the42board or by the deputy commissioner responsible for making disciplinary43recommendations, the police commissioner shall provide such written44report, with notice to the subject officer, no later than 45 days after45the imposition of such discipline or in such shorter time frame as may46be required pursuant to an agreement between the police commissioner and47the board. Such report shall include a detailed explanation of the48reasons for deviating from the board's recommendation or the recommenda-49tion of the deputy commissioner responsible for making disciplinary50recommendations and, in cases in which the police commissioner intends51to impose or has imposed a penalty or level of discipline that is lower52than that recommended by the board or such deputy commissioner, shall53also include an explanation of how the final disciplinary outcome was54determined, including each factor the police commissioner considered in55making his or her decision.A. 6012 5 1(e)] (f) The provisions of this section shall not be construed to 2 limit [or impair the authority of the police commissioner to discipline3members of the department. Nor shall the provisions of this section be4construed to limit] the rights of members of the department with respect 5 to disciplinary action, including but not limited to the right to notice 6 and a hearing, which may be established by any provision of law or 7 otherwise. 8 [(f)] (g) The provisions of this section shall not be construed to 9 prevent or hinder the investigation or prosecution of members of the 10 department for violations of law by any court of competent jurisdiction, 11 a grand jury, district attorney, or other authorized officer, agency or 12 body. 13 [(g)] (h) 1. Beginning in fiscal year 2021 and for each fiscal year 14 thereafter, the appropriations available to pay for the personal 15 services expenses of the civilian complaint review board during each 16 fiscal year shall not be less than an amount sufficient to fund personal 17 services costs for the number of full-time personnel plus part-time 18 personnel, calculated based on full-time equivalency rates, equal to 19 0.65 percent of the number of uniform budgeted headcount of the police 20 department for that fiscal year, as determined consistent with published 21 budgeted headcount documents of the office of management and budget. The 22 calculation to determine the minimum appropriations for the personal 23 services expenses of the civilian complaint review board pursuant to 24 this paragraph shall be set forth in the preliminary expense budget, the 25 executive expense budget, and the adopted budget. 26 2. Notwithstanding paragraph 1 and in addition to any action that may 27 be undertaken pursuant to section 106, the appropriations available to 28 pay for the personal services expenses of the civilian complaint review 29 board may be less than the minimum appropriations required by paragraph 30 1 provided that, prior to adoption of the budget pursuant to section 254 31 or prior to the adoption of a budget modification pursuant to section 32 107, the mayor determines that such reduction is fiscally necessary and 33 that such reduction is part of a plan to decrease overall appropriations 34 or is due to unforeseen financial circumstances, and the mayor sets 35 forth the basis for such determinations in writing to the council and 36 the civilian complaint review board at the time of submission or 37 adoption, as applicable, of any budget or budget modification containing 38 such reduction. 39 § 3. Section 14-115 of the administrative code of the city of New York 40 is amended to read as follows: 41 § 14-115 Discipline of members. a. The commissioner shall have power, 42 in his or her discretion, except civilian complaints determined by the 43 civilian complaint review board, in which the commissioner shall have no 44 discretion, on conviction by the commissioner, or by any court or offi- 45 cer of competent jurisdiction, of a member of the force of any criminal 46 offense, or neglect of duty, violation of rules, or neglect or disobedi- 47 ence of orders, or absence without leave, or any conduct injurious to 48 the public peace or welfare, or immoral conduct or conduct unbecoming an 49 officer, or any breach of discipline, to punish the offending party by 50 reprimand, forfeiting and withholding pay for a specified time, suspen- 51 sion, without pay during such suspension, or by dismissal from the 52 force; but no more than thirty days' salary shall be forfeited or 53 deducted for any offense. All such forfeitures shall be paid forthwith 54 into the police pension fund. 55 b. Members of the force, except as elsewhere provided herein, shall be 56 fined, reprimanded, removed, suspended or dismissed from the force onlyA. 6012 6 1 on written charges made or preferred against them, after such charges 2 have been examined, heard and investigated by the commissioner or one of 3 his or her deputies upon such reasonable notice to the member or members 4 charged, and in such manner or procedure, practice, examination and 5 investigation as such commissioner may, by rules and regulations, from 6 time to time prescribe. Where the member of the force is subject to 7 being fined, reprimanded, removed, suspended, or dismissed from the 8 force as a result of a complaint substantiated by the civilian complaint 9 review board, the written charges made or preferred against the member 10 of the force shall be examined, heard, and investigated by a hearing 11 officer of the civilian complaint review board upon such reasonable 12 notice to the member charged, and in such manner, or procedure, prac- 13 tice, examination and investigation as prescribed, to the extent appli- 14 cable under sections 15-03 and 15-04 of the Rules of the City of New 15 York. 16 c. The commissioner is also authorized and empowered in his or her 17 discretion, except civilian complaints determined by the civilian 18 complaint review board, in which the commissioner shall have no 19 discretion, to deduct and withhold salary from any member or members of 20 the force, for or on account of absence for any cause without leave, 21 lost time, sickness or other disability, physical or mental; provided, 22 however, that the salary so deducted and withheld shall not, except in 23 case of absence without leave, exceed one-half thereof for the period of 24 such absence; and provided, further, that not more than one-half pay for 25 three days shall be deducted on account of absence caused by sickness. 26 d. Upon having found a member of the force guilty of the charges 27 preferred against him or her, either upon such member's plea of guilty 28 or after trial, the commissioner or the deputy examining, hearing and 29 investigating the charges, in his or her discretion, except civilian 30 complaints determined by the civilian complaint review board, in which 31 the commissioner shall have no discretion, may suspend judgment and 32 place the member of the force so found guilty upon probation, for a 33 period not exceeding one year; and the commissioner may impose punish- 34 ment at any time during such period. 35 § 4. Nothing in this act shall make the discipline of police officers 36 of the police department of the city of New York subject to collective 37 bargaining or arbitration or remove police discipline from local gover- 38 nance. 39 § 5. This act shall take effect on the thirtieth day after it shall 40 have become a law.