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Summer 2013 Newletter

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Police Oversight Within New York's Collective Bargaining

By Elayne G. Gold and Robert E. Smith as published in the NTSBA Government, Law and Policy Journal, Fall 2003, Vol. 5, No. 2. Forms of Police Oversight Police oversight comes in many different forms. In the last decade or so, many municipalities around New York State have implemented or attempted to implement effective oversight organizations by amendments to local law, or by resolutions of the municipality's City Council.1 In Syracuse, the Common Council enacted Local Law No. 11 in 1993. The enabling legislation states, as its purpose: To establish an open citizen-controlled process for reviewing grievances involving members of the Syracuse Police Department. In order to insure public accountability over the powers exercised by members of the Syracuse Police Department, while preserving the integrity of the agency that employs them, citizen complaints regarding members of the Syracuse Police Department shall be heard and reviewed fairly and impartially by the review board established in this section. . . . To establish a Citizen Review Board to hear complaints regarding Syracuse police officers and the Syracuse Police Department, and which would maintain procedural due process safe guards to protect the rights of both police officers and individuals who come in contact with the Syracuse Police Department and its officers.2 The City of New York has had an active Civilian Complaint Review Board since 1953. The Board initially consisted of three deputy police commissioners "who were charged with the responsibility of reviewing investigative reports prepared by Police Department staff; the board then reported its findings and recommendations directly to the Police Commissioner." 3 By 1993, the Board was converted to an all civilian, non-police Review Board, via an amendment to the city's Charter.4 New York City's enabling legislation establishes the Board with thirteen members of the public-at-large appointed by the Mayor. The public appointees must be residents of the City and "shall reflect the diversity of the City's population." 5 In addition, those appointed cannot be otherwise employed by the City and may not have any prior law enforcement experience.6 In 1991, Schenectady's City Council established the Police Objective Review Committee (PORC).7 In its stated purpose, PORC was to "demonstrate to the community that the Schenectady Police Department competently, legitimately and thoroughly investigates citizen complaints against members of the department. . . ." 8 The PORC met to review documents presented to it by a member of the Schenectady Police Department's Internal Affairs unit and would issue recommendations as to whether the complaint was founded, needed further investigation, or would be referred back to the Schenectady Police Department for further action. PORC did not compel officer attendance nor hold hearings on complaints.9 In 2002, the Schenectady Police Department was investigated by the FBI, leading to the indictment and conviction of four officers. Additionally, there was simultaneous public concern that the police and city citizens did not have a solid, focused working relationship. The City Council, working with the Police Department, numerous citizen/human rights groups, and the Schenectady Police Benevolent Association (PBA), abolished PORC and established the Schenectady Civilian Police Review Board (CPRB).10 The Legislative Intent of the CPRB states that: [T]he citizens of the community will be best served with civilian oversight of internal police complaint procedures and investigations, and in addition to have a permanent body whose mission shall include the bettering of relations between civilians and police. . . . [CPRB's] goals are to improve communications between the Police Department and the community, to increase police accountability and credibility with the public, and to create a complaint review process that is free from bias and informed of actual police practices.11 Similar to the New York City oversight body, the Schenectady CPRB will not include among its members any city employees, elected officials, or members of the Schenectady Police Department; however, the city's Public Safety Commissioner is an ex-officio, non-voting member.12 Like its predecessor PORC, the CPRB reviews investigations submitted by the Police Department's Internal Affairs unit with police officer names redacted, and limits its authority to issuing recommendations to the Schenectady Police Department.13 Collective Bargaining Agreements The creation of a civilian review board (CRB) and oversight agencies must be considered in the context of a collective bargaining agreement (CBA) between a municipality and its police union. One of the parties to a CBA will generally be "the city." The city is represented by its chief executive officer, the Mayor, who in turn represents the executive branch of government. The other party to the collective agreement will be the union.14 The New York State Civil Service Law sets limited responsibility for the legislative body in the realm of negotiations, primarily relating to financial/economic matters.15 "The creation of a civilian review board and oversight agencies must be considered in the context of a collective bargaining agreement between a municipality and its police union." The collective agreement will generally have a section entitled "Management's Rights," providing to management the right to manage and direct the work force, together with the right to consider and implement discipline. For example, the city of Schenectady, in its most recent collective agreement with its police union, has a management's rights clause which provides, in pertinent part, as follows: [T]he Mayor, acting through appropriate officials, shall have the sole and exclusive right to direct and manage the Department of Police, including but not limited to, the following rights: . . . to determine the Rules and Regulations governing the Department; to determine what training or instructional programs are necessary [and] . . . to determine practices and procedures for the efficient, disciplined and orderly operation of the Department.16 Many CBAs also have sections variously titled but generally dealing with rights of the employees.17 The Syracuse CBA between the city and its police union addresses the procedures, rights and obligations of an "Investigation" The contract language is very explicit in detailing employees' rights during investigation and interrogation by management. The wide-ranging powers and duties given to the [police] Department and its members involve them in all manner of contacts and relationships with the public. Out of these contacts may come questions concerning the actions of the members of the Force. These questions may require investigation by superior officers designated by the City. In an effort to ensure that these investigations are conducted in a manner which is conducive to good order and discipline, the following rules are hereby adopted: * * * (b) The interrogation of a member of the Force shall be at a reasonable hour, preferably when the member of the Force is on duty, unless the urgency of the investigation dictates otherwise. If any time is lost, the member of the Force shall be given compensatory time. (c) The interrogation shall take place at a location designated by the Chief of Police . . . (d) The member of the Force shall be informed of the nature of the investigation before any interrogation commences. Sufficient information to reasonably apprise the member of the allegation should be provided . . . (e) The questioning shall be reasonable in length. Reasonable respite shall be allowed . . . (f) All members of the Force shall be obligated to answer any questions concerning their conduct as it relates to their employment, except those which violate their constitutional, legal or contractual rights. The contract further provides that: (g) If a member of the Force is under arrest, or is likely to be, or if he is the subject or the target of a criminal investigation, he shall be given his rights pursuant to the current decisions of the United States Supreme Court. (h) In non-criminal cases where infractions are nevertheless of a serious character, the individual shall have an opportunity to consult within 24 hours with this counsel and/or Association representative, if he so requests, before being questioned . . .18 When investigations and interrogations are conducted by a police department, generally through an office of professional standards or an internal affairs unit, the information from the investigations is kept in separate confidential internal affairs files. If at such time disciplinary action is going to be levied against a particular police officer by virtue of the investigation or interrogation, then the employee would be provided with notice of the charges against him or her and an opportunity to be heard either pursuant to the state civil service law19 or pursuant to the provisions of the applicable CBA dealing with disciplinary action.20 Information contained in internal affairs files is generally considered confidential and not available for public consumption.21 An employee's personnel file (and the information contained in it) is confidential and not publicly available unless the employee signs a release permitting the municipality to share that personnel file data with others.22 Interplay Between Police Oversight Committees and Collective Bargaining Agreements Problems can arise when municipalities create CRBs without taking into account the separately negotiated CBA. As indicated above, the CBA is an agreement between the police union and the municipality, acting through its chief executive officer.23 These two parties have the exclusive right to determine the terms of the contract.24 CRBs created by enactment of a local law grant the city's Common Council responsibility and authority which has often risen to a level of conflict with the rights, protections and authority contained in the CBA.25 The Syracuse Citizen Review Board was established as independent from the Syracuse Police Department. The enabling legislation indicates that this CRB has the power to: "Hear and review complaints and recommend action regarding police misconduct. Jurisdiction shall include misconduct that violates state and/or federal law and Syracuse Police Department rules and regulations."26 The Syracuse Board, through its enabling legislation, assists the complainant in writing the complaint against the officer, and provides for notification to the officer who is the subject of the complaint.27 Although a copy of the formal complaint will be filed with the Internal Affairs unit of the Syracuse Police Department,28 if Internal Affairs does not complete its investigation within an established time frame or fails to respond to the request to investigate, the Board itself will begin review of the complaint.29 The Syracuse CRB hearing procedure would include a full fact-finding before the Board itself which, by the enabling legislation, includes the right to take testimony, subpoena and compel attendance of witnesses, and require production of records and other documentation to support or defend the complaint.30 A review of the language from the enabling legislation in Syracuse appears to duplicate the language found in the negotiated collective bargaining agreement entered into between the city of Syracuse and its labor union. The question arises as to whom the police officer must answer to and whether the police department falls within the purview of the executive branch, through the office of the Mayor, or the legislative branch, acting through its City Council and its CRB. Challenges The Taylor Law of New York State, the public sector labor relations statute governing all municipalities in the state31 (except those which choose to create their own statutory scheme),32 provides that it is an unfair labor practice for rules and regulations to be unilaterally (without negotiations) implemented upon public sector employees when said rules and/or regulations would have an effect on the terms and conditions of the employees' employment with the municipality.33 The parties to a CBA have the opportunity to negotiate the language which appears in their collective agreement, the joint opportunity to dispute any proposal submitted by either party, and the opportunity to ultimately reach an agreement on the language which each party must abide by. Creation by municipalities of CRBs with the CRB's concomitant promulgation of its own set of rules, regulations and stated obligations upon both the police department and employees, can prove to be problematic. In fact, enactments by the cities of New York, Rochester, and Syracuse have all been challenged in various forms. Syracuse adopted its Civilian Review Board in 1993.34 Subsequently, the Syracuse PBA brought an improper practice charge to the State Public Employment Relations Board (PERB) alleging that the City of Syracuse unilaterally implemented procedures compelling PBA members to participate in hearings held before the CRB concerning citizen complaints against city police officers.35 The PBA contended that any development of procedures, certainly those which could impact employees' terms and conditions of employment (i.e., carry the possibility of discipline if the employee fails to follow the unilaterally enacted procedure), are subject to mandatory negotiations. 36 PERB held that it lacked jurisdiction over the issue since the Syracuse police contract contained negotiated procedures for investigation and interrogation, therefore the matter was deferred to arbitration.37 The Syracuse PBA filed its Demand for Arbitration.38 and simultaneously went to court to seek an injunction "enjoining the [City of Syracuse's CRB] from compelling the participation of [Syracuse PBA members] in hearings before the CRB while an arbitration proceeding is pending . . ."39 The court granted the injunction, finding that despite the city's arguments that the CRB can only recommend, and not impose, discipline (and arguably there would then be no impact upon PBA members), "[t]he issue in the arbitration is whether or not the City violated the Collective Bargaining Agreement when it unilaterally implemented the procedures set forth in Local Law No. 11 of 1993." 40 The court further stated: "Since the relief sought at the arbitration will be a ruling that the [City] cannot compel the participation of the police officer outside the procedures set forth in the collective bargaining agreement, the relief will be rendered ineffectual unless . . . the Court grants an injunction."41 Currently, the injunction is still in effect and the arbitration is pending.42 The New York City PBA brought an Article 78 proceeding against the City and its Civilian Complaint Review Board (CCRB) to permanently enjoin the CCRB from enforcing its local law claiming, among other things, that the law "is . . . in derogation of the contractual rights of members of the police department."43 With respect to the argument that the City Charter's creation of the CCRB violated the collective bargaining agreement, the court reviewed the CBA's "Bill of Rights" provisions, quoting as follows: "The 'Guidelines for Interrogation of Members of the Department' in force at the execution date of this Agreement will not be altered during the term of this Agreement, except to reflect subsequent changes in law."44 The court found that "A 'change in law' is precisely what occurred here. Specifically, the City Charter 'changes the law' with respect to interrogation of officers. Therefore, there is no impairment of contractual rights."45 In the city of Schenectady, the Schenectady PBA President was a member of the City Council task force which reviewed the status of police oversight in the city. Unlike Syracuse, Rochester or New York City, the Schenectady ordinance46 specifically states that the "[Civilian Police Review] Board shall not itself participate in an internal affairs investigation, nor shall it issue subpoenas concerning the same."47 The Schenectady CPRB may offer recommendations after it is provided with a copy of the Police Department's Internal Affairs investigation and, pursuant to the law, may encourage resolution of the matter between the civilian complainant and the officer, through a mediation process.48 The City of Schenectady CPRB will sunset by June 2005 "unless continued by ordinance duly adopted by the Schenectady City Council."49 The need for civilian police review boards will focus on a CRB's utility and effectiveness. Central to this matter is that the issues affecting public employees and police departments also have larger implications for society as a whole; i.e., should there be public review boards to resolve police misconduct claims? One rationale is that creation of a CRB preserves citizens' legitimate interests from being jeopardized if issues of public policy are resolved through collective bargaining without the opportunity for the citizens of a particular community to provide their input on specific issues. In some municipalities throughout the country, the belief is that citizens have a right to meaningful participation in the determination of such issues and that this right would be denied if a public employer voluntarily committed them to the collective bargaining process.50 In his 1974 article in the Yale Law Journal, Public Employee Bargaining: A Political Perspective, Clyde Summers described a perceived threat to democratic values inherent in channeling discussions of politically sensitive issues regarding public sector employment into closed-door bargaining sessions.51 Conversely, police officers typically view civilian police review boards with understandable disdain, believing that "civilians" are outside the police subculture and do not understand the types of people with whom police officers must routinely deal.52 In New York City in 1992, thousands of off-duty New York police officers staged a demonstration that verged on a riot in order to voice their opposition to then-Mayor David Dinkins' plans for such a Board.53 In Syracuse, there was a divisive dispute as to whether or not a civilian review board should be created. The local police chief and the Republican leader of the City's Democrat-controlled Common Council were among those opposed to the creation of such a CRB; conversely, community leaders and civil liberties advocates supported its creation.54 Nevertheless, the Board was created, but to date there is no cooperation between the Syracuse PBA and the Syracuse CRB; however, despite the lack of participation by the PBA, the Board still manages to hear complaints and make recommendations.55 Conclusion Civilian review boards will continue to be created in municipalities across the state. The CRB must be considered in terms of its utility to the overall goal of correcting and/or overseeing allegations of police misconduct and in creating an atmosphere of improved communication and understanding between the police department and the community at large. Unless the municipal PBA goes along with the legislative mandates, a CRB will be rendered ineffectual. In the municipalities where a CRB functions without challenge we find that it was created in a collaborative effort between police personnel and legislative leaders. Although the Schenectady CPRB has no subpoena power and does not convene formal hearings, it still makes recommendations and provides the public with, at least, a sense of independent oversight. As with all matters in public sector labor-management relations, cooperation and respect for each side's perspective will lead to a successful outcome. Endnotes 1. 1993 Syracuse Local Law No. 11; 1993 N.Y.C. Local Law No. 1; Rochester Resolution No. 92-4 & 95-8; Schenectady, N.Y., Ordinance No. 91-37 (City Code § § 93-94), as amended by Ordinance Nos. 93-41, 95-07, 97-32 & 2002-09. 2. 1993 Syracuse Local Law No. 11, § 1. 3. Civilian Complaint Review Board, City of New York, Status Report, Jan.-Dec. 2000, Vol. VIII, No. 2 at 3, available at 4. N.Y.C. Charter § 440, et seq., available at html/charter/pdf/citycharter2002.pdf. 5. Id. at § 440(b)(1). 6. Id. at § 440(b)(2). 7. Schenectady, N.Y., City Code §§ 93-94; see also supra note 1. 8. Schenectady, N.Y., City Code § 94-1. 9. Schenectady, N.Y., Ordinance No. 91-37 (Sept. 16, 1991), amended Nov. 22, 1993 by Ordinances 93-41, 95-07 & 97-32; see also supra note 1. 10. Schenectady, N.Y., Ordinance No. 2002-09 (June 24, 2002); see also Schenectady, N.Y., City Code § 93. 11. Schenectady, N.Y., City Code §§ 93-2A, 93-2D. 12. Id. at §§ 93-4, 93-5. 13. Id. at § 93-13. 14. N.Y. Civ. Serv. Law § 204 (McKinney 1999); Professional, Clerical, Technical Employees Ass'n v. Buffalo Bd. of Educ., 90 N.Y.2d 364, 372 (1997). 15. CSL § 204-a(1); see also Board of Educ. v. Buffalo Teachers Fed'n, Inc., 217 A.D.2d 366, 371, 634 N.Y.S.2d 904, 908 (4th Dep't 1995), lv. to appeal denied, lv. to appeal granted, 88 N.Y.2d 802, 645 N.Y.S.2d 445 (1996), rev'd, 89 N.Y.2d 370, 653 N.Y.S.2d 250 (1996). 16. Labor Relations Contract between the City of Schenectady, N.Y., and the Schenectady Police Benevolent Association for the period Jan. 1, 1997-Dec. 31, 1999, as amended by PERB Case No. IA200-011; M200-006 (Sept. 25, 2001) (Schenectady Labor Relations Contract), art. VI § G; see also 1998-1999 Labor Agreement between the Syracuse Police Benevolent Association, Inc. and the City of Syracuse ("Syracuse Labor Agreement"), art. 15. 17. Id.; see also Agreement between the City of Rochester and Rochester Police Locust Club, Inc., July 1, 1999-June 30, 2001, as amended by PERB Case No. IA201-028; M201-104 (Sept. 24, 2002) ("Rochester Agreement"), art. 20. 18. Syracuse Labor Agreement at art. 16, supra note 16. 19. N.Y. CLS § 75(1) (McKinney 1999). 20. Syracuse Labor Agreement at art. 11, supra note 16. 21. CRL § 50-a(1). 22. Id.; see also Feerick v. Safir, 297 A.D.2d 212, 213 (1st Dep't 2002). 23. CSL § 204, supra note 14. 24. CSL § 200, et seq. 25. Piedmonte v. City of Syracuse, No. 97-5241 (Sup. Ct., Onondaga Co. Mar. 19, 1998); see also Caruso v. Civilian Complaint Review Bd., 158 Misc. 2d 909, 910 (Sup. Ct., New York Co. Aug. 20, 1993). 26. 1993 Syracuse Local Law No. 11, § 3, supra note 1. 27. Id. at § 7 (2)(a). 28. Id. at § 7 (3)(a)(i). 29. Id. at § 7 (3)(a)(i)-(iv). 30. Id. at § 7 (3)(a)(v)-(vi). 31. CSL § 200, et seq. 32. CSL § 212(1). 33. CSL § 209-a(1)(d). 34. See supra note 1. 35. Syracuse PBA and City of Syracuse, 31 PERB 3004 (1998); Rochester Police Locust Club, Inc. and City of Rochester, 26 PERB 3049 (1993), affirmed 27 PERB 7003 (1994). 36. Syracuse PBA, 31 PERB 3004. 37. Id. 38. American Arbitration Association Case No. A15 390 006 2097. 39. Piedmonte, No. 97-5241 (Sup. Ct., Onondaga Co. 1998). 40. Id. at 2. 41. Id. at 4. 42. Telephone conversation with Rocco A. DePerno, Esq., DePerno & Khanzadian, counsel to the Syracuse PBA (Feb. 3, 2003). 43. Caruso v. Civilian Complaint Review Bd., 158 Misc. 2d at 910, 602 N.Y.S.2d at 488. 44. Id. at 915 (emphasis supplied). 45. Id. 46. Schenectady, N.Y., Ordinance 91-37, supra note 1. 47. Schenectady, N.Y., City Code § 93-13(B). 48. Id. at § 93-11. 49. Id. at § 93-23. 50. See, e.g., Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 162-66 (1978); Kenai Peninsula Borough Sch. Dist. v. Kenai Peninsula Educ. Ass'n, 572 P.2d 416, 419 (Alaska 1977). 51. Clyde W. Summers, Public Employee Bargaining: A Political Perspective, 83 Yale L.J. 1156, 1192-97 (1974). 52. Anthony V. Bouza, The Police Mystique: An Insider's Look at Cops, Crime and The Criminal Justice System, 4-7 (Plenum Press 1990). 53. James C. McKinley, Jr., Officers Rally and Dinkens is Their Target, N.Y. Times, Sept. 17, 1992, at B1. 54. Lindsey Gruson, Syracuse Grapples with Debate Over Civilian Review of Police, N.Y. Times, Aug. 3, 1992, at B1. 55. Allen Czelusniak, Arrested Development, Syracuse New Times, Apr. 18, 2001, available at 041801/cover.shtml. Elayne G. Gold, Esq. is a partner in the Albany law firm of Roemer Wallens & Mineaux, LLP, with her practice concentrated in public sector (management) labor relations. Robert E. Smith, Esq. is a New York State public sector labor relations attorney.

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