Rochester voters will get to say on Nov. 5 whether they want the proposed Police Accountability Board, but that may not be the last word on the subject.
If the referendum passes, it again could be challenged by the Rochester Police Locust Club, which is claiming the legislation is illegal. The Locust Club, which is the police union, sued in September and won an initial battle when state Supreme Court Justice John Ark ordered a preliminary injunction barring the vote.
City Council and the city appealed – and prevailed for now.
The Appellate Division of the State Supreme Court, in a unanimous decision announced Oct. 17, said that the Locust Club would not suffer “irreparable injury” by having the electorate vote on the measure.
“The City Council is grateful for the speed with which the Court has issued their decision allowing for the Rochester electorate to vote on the Police Accountability Board Referendum this coming Election Day,” Council President Loretta C. Scott said in a news release. “(The) unanimous decision is a victory for democracy, no one’s voice should be silenced on this important issue.”
Locust Club President Mike Mazzeo responded: “It is not about stopping a vote….. it is about stopping legislation that is not legal. President Loretta Scott insults every man and woman who serves as police officers in this city, as well as every other unionized worker in this state, when she suggests that a labor organization is preventing Democracy by protecting the due process rights of their members.”
The appeals court was deciding only on the vote. It wasn’t looking at the finer points of the law.
Civilian oversight of the Rochester Police Department has been an issue for decades. In 1963, City Council voted to set up a Police Advisory Board. Other versions came and went amid complaints that these attempts lacked independence or community confidence.
When City Council passed legislation in May for the PAB, Scott thanked the Locust Club for its participation and advocates for police accountability.
The referendum would:
- amend the city charter to authorize the creation of the PAB;
- would consist of nine unpaid Rochester residents: one appointed by the Mayor and eight appointed by the City Council; four of the Council’s appointees will be nominated by a coalition of community organizations;
- would have the power to independently investigate civilian complaints, subpoena information for its investigations, and determine whether individual officers have committed misconduct; and
- would create disciplinary guidelines, with an opportunity for input from the Chief of Police and the police union.
If the PAB found, after a hearing, that an officer had committed misconduct, the chief of police would be required to impose discipline consistent with disciplinary guidelines. The PAB would also recommend changes to the police department’s policies, practices, and training.
When the Locust Club sued, it argued that the referendum violated several aspects of Civil Service law; the New York State Constitution; the U.S. Constitution; the city and Locust Club’s collective bargaining agreement; and other laws and provisions of the city charter.
Those arguments have yet to be dissected.
Ark didn’t address them when he ordered the preliminary injunction. He acknowledged that the the challenges were “multi-pronged and complex” and “it would be a disservice to the community for the Court to render its legal judgment on such important legislation without a thorough analysis of the legality of the Statute.” Of immediate concern, he wrote, was the issue of the vote.
Because Ark didn’t address the legality of the law, neither did the appeals court.
During a news conference Oct. 18, supporters of the PAB acknowledged that if the referendum passes, it could end up back in court.
“We believe this is a legal piece of legislation,” said Stanley Martin, a member of the Police Accountability Board Alliance executive committee.
City voters could have had another referendum on the ballot. However, a decision that blocked a vote on the Rochester City School District was upheld by an appeals court.