Bill Text: NY S05252 | 2021-2022 | 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 4-0)

Status: (Introduced - Dead) 2022-01-05 - REFERRED TO CITIES 1 [S05252 Detail]

Download: New_York-2021-S05252-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          5252

                               2021-2022 Regular Sessions

                    IN SENATE

                                    February 26, 2021
                                       ___________

        Introduced  by  Sen.  BAILEY -- 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, 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.
                                                                   LBD07384-01-1
        S. 5252                             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 be
        S. 5252                             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-
        S. 5252                             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  on
    36  any  action  taken,  including  the  level of discipline and any penalty
    37  imposed, in all cases in which the board submitted a finding  or  recom-
    38  mendation to the police commissioner with respect to a matter within its
    39  jurisdiction  pursuant to this section. In any case substantiated by the
    40  board in which the police commissioner intends to impose or has  imposed
    41  a  different penalty or level of discipline than that recommended by the
    42  board or by the deputy commissioner responsible for making  disciplinary
    43  recommendations,  the  police  commissioner  shall  provide such written
    44  report, with notice to the subject officer, no later than 45 days  after
    45  the  imposition  of such discipline or in such shorter time frame as may
    46  be required pursuant to an agreement between the police commissioner and
    47  the board. Such report shall  include  a  detailed  explanation  of  the
    48  reasons for deviating from the board's recommendation or the recommenda-
    49  tion  of  the  deputy  commissioner  responsible for making disciplinary
    50  recommendations and, in cases in which the police  commissioner  intends
    51  to  impose or has imposed a penalty or level of discipline that is lower
    52  than that recommended by the board or such  deputy  commissioner,  shall
    53  also  include  an  explanation of how the final disciplinary outcome was
    54  determined, including each factor the police commissioner considered  in
    55  making his or her decision.
        S. 5252                             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  discipline
     3  members  of  the department. Nor shall the provisions of this section be
     4  construed 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  only
        S. 5252                             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.