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Monday 21 September 2020
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Judge Rules PAB Can’t Discipline Officers

Patti Singer
pattisinger@minorityreporter.net

The Police Accountability Board cannot legally discipline officers of the Rochester Police Department, according to a court decision.

The ruling by State Supreme Court Justice John Ark on May 7 invalidated a key aspect of the board’s function.

The ruling didn’t necessarily wipe out all of Local Law No. 2, which established the Police Accountability Board.

Even though Ark found that parts of the law conflict with state law and the City Charter, he wrote that it is up to City Council “to amend and/or repeal contradictory provisions” and that the law “is referred back to the Rochester City Council to be reconciled and made compliant with New York State law and the Rochester City Charter.”

However, City Council President Loretta Scott said the focus will be on an appeal, noting that council successfully appealed a ruling by Ark last fall that would have kept the referendum from even getting on the ballot.

Andrew Celli, the attorney for City Council, said Ark’s ruling was narrow and limited.

“The only thing the judge did was way the Police Accountability Board cannot set discipline,” Celli said during a video news conference. “We are now going to ask the higher court to change that ruling and to find that New York state granted the power to the city of Rochester and the city of Rochester has the power to give that authority to the Police Accountability Board.”

The referendum to create the PAB passed last November with 75% of the vote.

Scott said that Ark’s decision “negates the will of the citizens of Rochester” because they voted “to approve a referendum that would establish a transparent and accessible Police Accountability Board. They voted to give this Board the power to investigate complaints, to subpoena information, and to set minimum discipline by establishing a disciplinary matrix, formed with input from the Chief of Police and Locust Club.”

The Rev. Lewis Stewart, president of the United Christian Leadership Ministry and an advocate for police accountability to the public, called the decision “egregious. It strips away the power from the people.”

Stewart called for a progressive approach and that “something will have to be put in place to hold police accountable.”

The Police Accountability Board Alliance released a statement saying it disagreed with Ark’s ruling: “… The Appellate Division has already struck down a decision by Judge Ark which attempted to prevent city residents from being able to vote on the PAB. We expect that the Appellate Division will once again strike down this anti-democratic decision and that the PAB will prevail on appeal.”

The Rochester Police Locust Club had initially sued to keep the referendum off the ballot and brought suit against the city, Mayor Lovely Warren and City Council after it passed.

President Mike Mazzeo said the union’s argument wasn’t as much about discipline as it was about protecting collective bargaining rights.

“This confirms what our message was from the start, and that was that this so important to us not to defend a bad cop,” Mazzeo said. “This is about ensuring collective bargaining rights and due process for 700-plus men and women who go out every day and do a great job and will sacrifice their life for this community.”

The referendum called for the PAB to work with the city, the RPD and the Locust Club on a disciplinary matrix that the chief would have to use if a complaint were sustained by the PAB.

Mazzeo said it’s important to keep an eye on discipline because it’s “often used by management to cover their lack of ability to lead or to make sufficient training changes. With collective bargaining, we have the right to challenge that, and that’s the way it should be.”

In his 30-page decision, Ark covered whether Local Law No. 2 complied with state law and the Rochester City Charter.

As the case worked its way through the court, Ark had requested additional information from both parties on several issues. As part of that information, Warren indicated that the law which passed may violate state law.

According to Ark’s decision, Warren disclosed that in January 2019, she had submitted to City Council a different proposed law that would have limited the purview of a proposed PAB to complaints of excessive force and did not permit a PAB to conduct disciplinary hearings of police officers. That proposal left final authority over officer discipline to the police chief. That proposal also would have left the mayor in control of appointment and removing PAB members. Ark wrote that Council has held this proposed legislation in committee.

Asked why, Scott said the mayor’s proposal did not allow for discipline, which became one of the pillars of Local Law No. 2.

“What we have pushed for over the years … had to do with discipline,” she said. “That the residents of this city felt compelled to have a process that they could trust, that would be transparent, independent, accountable, all of those things that are attendant to having discipline in the way we put forth Local Law 2.”

Ark’s decision focused on four questions:

  • Does City Council’s 1985 law submitting police discipline to the state preclude implementation of police discipline by the PAB? He wrote that certain portions do conflict.
  • Can only an officer’s commander or designee conduct disciplinary hearing? Under state law, discipline of RPD officers is handled by the mayor, the police chief or a designee. The PAB is not a designee or a commander, so it can’t lawfully conduct a hearing or impose discipline.
  • Does handing discipline over to the PAB, divesting the mayor of power over discipline, violate Civil Service Law? Regarding discipline, Local Law No. 2 unlawfully inhibits the mayor from collective bargaining over terms and conditions of RPD officer employment.
  • What is the import of the law’s severability clause? Unlawful sections relating to discipline are stricken. The remaining lawful parts continue. The law is referred back to City Council to be reconciled with state law and the City Charter.

The PAB has been meeting and is accepting applications for executive director. PAB interim president Shani Wilson deferred comment.