Bill Text: NY S02108 | 2023-2024 | General Assembly | Introduced

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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 6-0)

Status: (Introduced - Dead) 2024-01-03 - REFERRED TO CITIES 1 [S02108 Detail]

Download: New_York-2023-S02108-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          2108

                               2023-2024 Regular Sessions

                    IN SENATE

                                    January 18, 2023
                                       ___________

        Introduced  by  Sens.  BAILEY, RIVERA -- read twice and ordered printed,
          and when printed to be committed to the Committee on Cities 1

        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, paragraph 3 of subdivision
    12  (d) as amended by section 4 and subdivision (g) as added by section 5 of
    13  question  2 of local law number 215 of the city of New York for the year
    14  2019, paragraphs 1, 2 and 5 of subdivision (c) as amended by  local  law
    15  number  24 of the city of New York for the year 2022, paragraphs 3 and 6
    16  of subdivision (c) and paragraphs 1 and 2 of subdivision (d) as  amended
    17  by local law 47 of the city of New York for the year 2021, is amended to
    18  read as follows:
    19    § 440. Public complaints against members of the police department. (a)
    20  It  is in the interest of the people of the city of New York and the New
    21  York city police department that the investigation  and  prosecution  of
    22  complaints  concerning  misconduct by officers of the department towards
    23  members of  the  public  be  complete,  thorough  and  impartial.  These

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02350-01-3
        S. 2108                             2

     1  inquires  must be conducted fairly and independently, and in a manner in
     2  which the public and the police department have confidence. An independ-
     3  ent civilian complaint review board is  hereby  established  as  a  body
     4  comprised solely of members of the public with the authority to investi-
     5  gate  and prosecute allegations of police misconduct as provided in this
     6  section.
     7    (b) Civilian complaint review board.
     8    1. The civilian complaint review board shall consist of 15 members  of
     9  the public. Members shall be residents of the city of New York and shall
    10  reflect the diversity of the city's population. The members of the board
    11  shall  be  appointed  as follows: (i) five members, one from each of the
    12  five boroughs, shall be appointed by the city council; (ii)  one  member
    13  shall  be  appointed  by  the  public advocate; (iii) three members with
    14  experience as law enforcement professionals shall be designated  by  the
    15  police  commissioner and appointed by the mayor; (iv) five members shall
    16  be appointed by the mayor; and (v) one member shall be appointed jointly
    17  by the mayor and the speaker of the council to serve  as  chair  of  the
    18  board.
    19    2.  No  member  of  the  board  shall  hold any other public office or
    20  employment. No members, except those designated by  the  police  commis-
    21  sioner,  shall  have  experience as law enforcement professionals, or be
    22  former employees of  the  New  York  city  police  department.  For  the
    23  purposes  of  this section, experience as a law enforcement professional
    24  shall include experience as a  police  officer,  criminal  investigator,
    25  special  agent,  or  a  managerial or supervisory employee who exercised
    26  substantial policy discretion on law enforcement matters, in a  federal,
    27  state,  or  local  law  enforcement  agency, other than experience as an
    28  attorney in a prosecutorial agency.
    29    3. The members shall be appointed for terms of three years. The public
    30  advocate shall make the public advocate's first appointment to the board
    31  on or before May 6, 2020. The board member  so  appointed  shall  assume
    32  office  on  July 6, 2020. The mayor and the speaker of the council shall
    33  make their initial joint appointment to the board on or  before  May  6,
    34  2020. The member so appointed shall serve as the board's chair and shall
    35  assume office on July 6, 2020.
    36    4.  Members  of the board shall serve until their successors have been
    37  appointed and qualified. In the event of a vacancy on the  board  during
    38  the term of office of a member by reason of removal, death, resignation,
    39  or  otherwise,  a  successor  shall  be chosen in the same manner as the
    40  original appointment within 60 days from the date such vacancy occurred.
    41  A member appointed to fill a vacancy shall serve for the balance of  the
    42  unexpired  term.  During  any period in which the office of the chair is
    43  vacant, the mayor shall select a member of the board to serve as interim
    44  chair until such vacancy has been filled.
    45    (c) Powers and duties of the board.
    46    1. The board shall have the power to receive, investigate, hear,  make
    47  findings  and  recommend  action upon complaints filed by members of the
    48  public, or information received by the board or complaints initiated  by
    49  the  board  against members of the police department that allege miscon-
    50  duct involving excessive use of  force,  abuse  of  authority  including
    51  bias-based  policing and racial profiling, discourtesy, or use of offen-
    52  sive language, including, but not limited to, slurs  relating  to  race,
    53  ethnicity,  religion,  gender,  sexual  orientation  and disability. The
    54  board shall also have the power to investigate, hear, make findings  and
    55  recommend  action  regarding  the  truthfulness of any material official
    56  statement made by a member of the police department who is  the  subject
        S. 2108                             3

     1  of a complaint received or initiated by the board, if such statement was
     2  made  during  the course of and in relation to the board's resolution of
     3  such complaint. The findings and recommendations of the board,  and  the
     4  basis therefor, shall be submitted to the police commissioner, who shall
     5  have  no  discretion  in  whether  to impose the recommended discipline.
     6  Where the board substantiates  one  or more allegations against a member
     7  of the police department and  recommends  a   level of  discipline  that
     8  would subject the member of the department  to  being fined,  reprimand-
     9  ed,   removed,   suspended   or dismissed  from the force, the complaint
    10  shall be adjudicated by a hearing officer pursuant to subdivision (d) of
    11  this section.  No finding or recommendation shall be based  solely  upon
    12  an  unsworn  complaint  or  statement,  nor shall prior unsubstantiated,
    13  unfounded or withdrawn complaints be the basis for any such  finding  or
    14  recommendation.
    15    2.  The  board  shall promulgate rules of procedure in accordance with
    16  the city administrative procedure act, including  rules  that  prescribe
    17  the  manner in which investigations and prosecutions are to be conducted
    18  and recommendations made and the manner by which, when a member  of  the
    19  public  is  the complainant, such member of the public is to be informed
    20  of the status of his or her complaint. Such rules may  provide  for  the
    21  establishment  of  panels,  which  shall  consist of not less than three
    22  members of the board, which shall be empowered to supervise the investi-
    23  gation of matters within  the  board's  jurisdiction  pursuant  to  this
    24  section,  and  to  hear,  make  findings  and  recommend  action on such
    25  matters. No such panel shall consist exclusively of members appointed by
    26  the council, or designated by the police commissioner, or  appointed  by
    27  the mayor.
    28    3.  The board, by majority vote of its members, may compel the attend-
    29  ance of witnesses and require the production of such records  and  other
    30  materials  as  are  necessary  for  the investigation and prosecution of
    31  matters within its jurisdiction pursuant to this chapter. The board  may
    32  request  the  corporation counsel to institute proceedings in a court of
    33  appropriate jurisdiction to enforce the subpoena power exercised  pursu-
    34  ant  to this chapter, and the board itself may, subject to chapter 17 of
    35  the charter, institute such proceedings. The board may, subject  to  any
    36  conditions  it deems appropriate, delegate to and revoke from its execu-
    37  tive  director  such  subpoena  authority  and  authority  to  institute
    38  proceedings.
    39    4.  The  board shall establish a mediation program pursuant to which a
    40  complainant may voluntarily choose to resolve a complaint  by  means  of
    41  informal conciliation.
    42    5.  The board is authorized, within appropriations available therefor,
    43  to appoint such employees as  are  necessary  to  exercise  its  powers,
    44  including but not limited to the power to initiate complaints in accord-
    45  ance  with paragraph 1 of this subdivision, and fulfill its duties.  The
    46  board shall employ civilian investigators  to  investigate  all  matters
    47  within its jurisdiction. The board shall create an administrative prose-
    48  cution  unit, staffed by attorneys and the necessary support staff, that
    49  shall handle the prosecution of substantiated  cases  before  a  hearing
    50  officer.
    51    6.  The board shall issue to the mayor and the city council a semi-an-
    52  nual report which  shall  describe  its  activities  and  summarize  its
    53  actions.  Such  report  shall  include, for each investigation initiated
    54  pursuant to  section  441,  such  investigation's  date  of  initiation,
    55  current  status and any date of completion or termination, a description
    56  of any investigative findings and recommendations set forth in a written
        S. 2108                             4

     1  statement of final  determination  and  a  description  of  any  written
     2  reports  from the police commissioner in response to a written statement
     3  of final determination.
     4    7.  The  board  shall  have the responsibility of informing the public
     5  about the board and its duties, and  shall  develop  and  administer  an
     6  on-going   program  for  the  education  of  the  public  regarding  the
     7  provisions of this chapter.
     8    (d) Hearings.
     9    1. The executive director shall appoint at least one hearing  officer,
    10  who  shall  be a civilian with no law enforcement background, to preside
    11  over and adjudicate disciplinary proceedings  and  make  final  determi-
    12  nations  in  cases where the board has substantiated one or more allega-
    13  tions against a police officer and  recommended  command  discipline  or
    14  charges and specifications.
    15    2.  The  hearing officer, upon approval of the board chair, shall have
    16  the power to punish an officer, upon a plea of guilty or  a  finding  of
    17  guilty after an administrative trial, by reprimand, forfeiting and with-
    18  holding pay for a specified time, suspension, suspension without pay, or
    19  by  dismissal  from the force. No more than thirty days' salary shall be
    20  forfeited or deducted for any offense. Members of the police  department
    21  may  be  fined,  reprimanded,  removed,  suspended or dismissed from the
    22  force only on written charges made and  preferred  against  them,  after
    23  such  charges  have been examined, heard and investigated by the hearing
    24  officer, by a preponderance of the evidence, upon such reasonable notice
    25  to the member of service charged, and in such manner or procedure, prac-
    26  tice, examination and investigation as prescribed, to the extent  appli-
    27  cable  under  sections  15-03  and 15-04 of the Rules of the City of New
    28  York.
    29    3. The conduct of such hearings shall follow, to the  extent  applica-
    30  ble,  the  parameters specified in sections 15-03 and 15-04 of the Rules
    31  of the City of New York.
    32    4. Attorneys from the board's administrative prosecution unit shall be
    33  responsible for the prosecution of cases before the hearing officer.
    34    (e) Cooperation of police department.
    35    1. It shall be the duty of  the  police  department  to  provide  such
    36  assistance  as the board may reasonably request, to cooperate fully with
    37  investigations by the board, and to provide to the  board  upon  request
    38  records  and  other  materials  which  are  necessary for investigations
    39  undertaken pursuant to this chapter, except such  records  or  materials
    40  that cannot be disclosed by law.
    41    2. The police commissioner shall ensure that officers and employees of
    42  the  police  department  appear  before  and respond to inquiries of the
    43  board and its civilian investigators in connection  with  investigations
    44  and prosecutions undertaken pursuant to this chapter, provided that such
    45  inquiries  are  conducted  in  accordance with department procedures for
    46  interrogation of members.
    47    [3. The police commissioner shall report to the board  in  writing  on
    48  any  action  taken,  including  the  level of discipline and any penalty
    49  imposed, in all cases in which the board submitted a finding  or  recom-
    50  mendation to the police commissioner with respect to a matter within its
    51  jurisdiction  pursuant to this section. In any case substantiated by the
    52  board in which the police commissioner intends to impose or has  imposed
    53  a  different penalty or level of discipline than that recommended by the
    54  board or by the deputy commissioner responsible for making  disciplinary
    55  recommendations,  the  police  commissioner  shall  provide such written
    56  report, with notice to the subject officer, no later than 45 days  after
        S. 2108                             5

     1  the  imposition  of such discipline or in such shorter time frame as may
     2  be required pursuant to an agreement between the police commissioner and
     3  the board. Such report shall  include  a  detailed  explanation  of  the
     4  reasons for deviating from the board's recommendation or the recommenda-
     5  tion  of  the  deputy  commissioner  responsible for making disciplinary
     6  recommendations and, in cases in which the police  commissioner  intends
     7  to  impose or has imposed a penalty or level of discipline that is lower
     8  than that recommended by the board or such  deputy  commissioner,  shall
     9  also  include  an  explanation of how the final disciplinary outcome was
    10  determined, including each factor the police commissioner considered  in
    11  making his or her decision.
    12    (e)]  (f)  The  provisions  of  this section shall not be construed to
    13  limit [or impair the authority of the police commissioner to  discipline
    14  members  of  the department. Nor shall the provisions of this section be
    15  construed to limit] the rights of members of the department with respect
    16  to disciplinary action, including but not limited to the right to notice
    17  and a hearing, which may be established  by  any  provision  of  law  or
    18  otherwise.
    19    [(f)]  (g)  The  provisions  of this section shall not be construed to
    20  prevent or hinder the investigation or prosecution  of  members  of  the
    21  department for violations of law by any court of competent jurisdiction,
    22  a  grand jury, district attorney, or other authorized officer, agency or
    23  body.
    24    [(g)] (h) 1. Beginning in fiscal year 2021 and for  each  fiscal  year
    25  thereafter,  the  appropriations  available  to  pay  for  the  personal
    26  services expenses of the civilian complaint  review  board  during  each
    27  fiscal year shall not be less than an amount sufficient to fund personal
    28  services  costs  for  the  number  of full-time personnel plus part-time
    29  personnel, calculated based on full-time  equivalency  rates,  equal  to
    30  0.65  percent  of the number of uniform budgeted headcount of the police
    31  department for that fiscal year, as determined consistent with published
    32  budgeted headcount documents of the office of management and budget. The
    33  calculation to determine the minimum  appropriations  for  the  personal
    34  services  expenses  of  the  civilian complaint review board pursuant to
    35  this paragraph shall be set forth in the preliminary expense budget, the
    36  executive expense budget, and the adopted budget.
    37    2. Notwithstanding paragraph 1 and in addition to any action that  may
    38  be  undertaken  pursuant to section 106, the appropriations available to
    39  pay for the personal services expenses of the civilian complaint  review
    40  board  may be less than the minimum appropriations required by paragraph
    41  1 provided that, prior to adoption of the budget pursuant to section 254
    42  or prior to the adoption of a budget modification  pursuant  to  section
    43  107,  the mayor determines that such reduction is fiscally necessary and
    44  that such reduction is part of a plan to decrease overall appropriations
    45  or is due to unforeseen financial  circumstances,  and  the  mayor  sets
    46  forth  the  basis  for such determinations in writing to the council and
    47  the civilian complaint  review  board  at  the  time  of  submission  or
    48  adoption, as applicable, of any budget or budget modification containing
    49  such reduction.
    50    § 3. Section 14-115 of the administrative code of the city of New York
    51  is amended to read as follows:
    52    §  14-115 Discipline of members. a. The commissioner shall have power,
    53  in his or her discretion, except civilian complaints determined  by  the
    54  civilian complaint review board, in which the commissioner shall have no
    55  discretion,  on conviction by the commissioner, or by any court or offi-
    56  cer of competent jurisdiction, of a member of the force of any  criminal
        S. 2108                             6

     1  offense, or neglect of duty, violation of rules, or neglect or disobedi-
     2  ence  of  orders,  or absence without leave, or any conduct injurious to
     3  the public peace or welfare, or immoral conduct or conduct unbecoming an
     4  officer,  or  any breach of discipline, to punish the offending party by
     5  reprimand, forfeiting and withholding pay for a specified time,  suspen-
     6  sion,  without  pay  during  such  suspension,  or by dismissal from the
     7  force; but no more than  thirty  days'  salary  shall  be  forfeited  or
     8  deducted  for  any offense. All such forfeitures shall be paid forthwith
     9  into the police pension fund.
    10    b. Members of the force, except as elsewhere provided herein, shall be
    11  fined, reprimanded, removed, suspended or dismissed from the force  only
    12  on  written  charges  made or preferred against them, after such charges
    13  have been examined, heard and investigated by the commissioner or one of
    14  his or her deputies upon such reasonable notice to the member or members
    15  charged, and in such manner  or  procedure,  practice,  examination  and
    16  investigation  as  such commissioner may, by rules and regulations, from
    17  time to time prescribe. Where the member of  the  force  is  subject  to
    18  being  fined,  reprimanded,  removed,  suspended,  or dismissed from the
    19  force as a result of a complaint substantiated by the civilian complaint
    20  review board, the written charges made or preferred against  the  member
    21  of  the  force  shall  be examined, heard, and investigated by a hearing
    22  officer of the civilian complaint  review  board  upon  such  reasonable
    23  notice  to  the  member charged, and in such manner, or procedure, prac-
    24  tice, examination and investigation as prescribed, to the extent  appli-
    25  cable  under  sections  15-03  and 15-04 of the Rules of the City of New
    26  York.
    27    c. The commissioner is also authorized and empowered  in  his  or  her
    28  discretion,  except  civilian  complaints  determined  by  the  civilian
    29  complaint  review  board,  in  which  the  commissioner  shall  have  no
    30  discretion,  to deduct and withhold salary from any member or members of
    31  the force, for or on account of absence for  any  cause  without  leave,
    32  lost  time,  sickness or other disability, physical or mental; provided,
    33  however, that the salary so deducted and withheld shall not,  except  in
    34  case of absence without leave, exceed one-half thereof for the period of
    35  such absence; and provided, further, that not more than one-half pay for
    36  three days shall be deducted on account of absence caused by sickness.
    37    d.  Upon  having  found  a  member  of the force guilty of the charges
    38  preferred against him or her, either upon such member's plea  of  guilty
    39  or  after  trial,  the commissioner or the deputy examining, hearing and
    40  investigating the charges, in his or  her  discretion,  except  civilian
    41  complaints  determined  by the civilian complaint review board, in which
    42  the commissioner shall have no  discretion,  may  suspend  judgment  and
    43  place  the  member  of  the  force so found guilty upon probation, for a
    44  period not exceeding one year; and the commissioner may  impose  punish-
    45  ment at any time during such period.
    46    §  4. Nothing in this act shall make the discipline of police officers
    47  of the police department of the city of New York subject  to  collective
    48  bargaining  or arbitration or remove police discipline from local gover-
    49  nance.
    50    § 5. This act shall take effect on the thirtieth day  after  it  shall
    51  have become a law.