How the NYC charter revision questions would change the CCRB

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How the NYC charter revision questions would change the CCRB

Controversial proposals regarding the NYPD’s Civilian Complaint Review Board are on the ballot.
October 28, 2019

In New York City, voters have the opportunity to decide on changes to the city charter, including a proposal that would affect the group that investigates police misconduct. That ballot question on the Civilian Complaint Review Board, although potentially imposing what seem like relatively minor tweaks, has stirred controversy even before it made it to voters with the start of early voting this past weekend.

The CCRB proposal is the second of five questions regarding the city charter. The question itself encompasses five total proposals that voters must decide on as a bundle. The proposals broadly would expand police oversight and increase the agency’s independence. They suggest expanding board membership from 13 to 15, giving the board a guaranteed budget, requiring the police commissioner to provide an explanation of any deviation from recommended police discipline, allowing it to investigate officers for making false statements while the subject of a complaint and allowing the board to delegate subpoena power to the executive director. 

But some argued that the Charter Revision Commission – the group tasked with deciding what changes to the charter should be put before voters – failed to go far enough in addressing problems with the CCRB and police accountability. The Campaign for an Elected Civilian Review Board had testified for the need to completely do away with the CCRB, which is politically appointed, and replace it with an agency consisting of publicly elected members instead. The group even drafted changes to the city charter that would establish that elected board, which the commission did not utilize. 

At the commission’s final hearing, when it voted to adopt the official ballot and charter language of each question, police reform activists associated with the Campaign for an Elected Civilian Review Board interrupted the proceedings. Now, the group has returned its efforts to the City Council to implement the change and is not publicly campaigning for or against the ballot question.

The changes seem minor compared to an overhaul of the city’s electoral system – the first question on the ballot would institute a new voting system called ranked choice for municipal primaries and special elections. “These changes are nominal, but serve to signal the city’s continued commitment to substantive accountability measures,” Common Cause Executive Director Susan Lerner wrote in a statement of support, echoing others who support the changes while adding the city could do more when it comes to police accountability. 

One change would require CCRB’s budgeted staff to be equal to .65% of the number of uniformed officers budgeted for the NYPD. In 2020, those numbers are 36,113 officers and 212 CCRB staff members, which works out to about a .59% ratio. So the charter revision would effectively increase the CCRB staff. 

Requiring the police commissioner to justify when he doesn’t follow CCRB recommendations would also be a substantive change. Currently, the board has no binding authority to discipline the officers it investigates. The police commissioner has ultimate say over how and whether to take action against those officers. While this would not change, the disciplinary process would be more transparent and make the commissioner in a small way accountable to the CCRB. 

The third component to the question would enable the CCRB members to delegate subpoena power to the executive director. Currently, the entire 13-member board must vote on whether to subpoena evidence in a case, although they only meet once a month. The change would give CCRB investigators quicker and more timely access to evidence, particularly time-sensitive evidence like video footage, which can get overwritten in a matter of days.

The staffing budget, explanation of deviation from recommendations and delegating subpoena power were recommended in the CCRB’s testimony to the Charter Revision Commission. CCRB Chairman Fred Davie told City & State that each of the proposals before voters stand to improve the agency’s operations, although he said neither he nor the agency can advocate one way or the other for the ballot question.

However, the specific proposal on staff budgeting is actually a little different than what CCRB Executive Director Jonathan Darche recommended in his testimony before the Charter Revision Commission. He asked that the CCRB budget be tied dollar-for-dollar to the NYPD budget at a rate of 1%. This proposal is more in line with a guaranteed budget as it involves actual dollar amounts. The proposal before voters is tied to the staff at the two agencies, so it does not actually guarantee the CCRB a baseline budget, but a certain number of staff. It would still be up to the city Office of Management and Budget to decide what those jobs are and how much to budget for them. In this way, it makes it nearly impossible to determine how much the CCRB budget may increase in the 2021 budget if the charter revision is approved.

Additionally, the revision commission did not choose to adopt any version of Darche’s fourth recommendation, one he highlighted in his testimony. He asked that the commission include a provision codifying the agency’s Administrative Prosecution Unit, which acts as the prosecutor in NYPD administrative trials, like the recent trial for Officer Daniel Pantaleo over the choking death of Eric Garner. The unit was created through a 2012 memorandum of understanding between the NYPD and the CCRB and is the first of its kind in the nation.

The ballot question would also expand the board’s oversight to an area that it previously did not have jurisdiction over by allowing them to investigate false statements made by officers who are under investigation. The Charter Revision Commission, the body which came up with the ballot questions, originally voted down this particular proposal. However, commissioner Carl Weisbrod decided to change his vote in between two meetings, bringing the prospect to the table again, which narrowly passed with his new support.

This particular recommendation was one that was pushed by Communities United for Police Reform, a coalition of New York groups advocating for increased police accountability. A spokesperson for the group told City & State that it considers the inclusion, particularly after it was initially voted down, a major win. She added that the group is also engaging in a public education and advocacy campaign to get the ballot question passed. The fifth and final aspect of the CCRB ballot question would expand the board from 13 to 15 members. Currently, all 13 members are appointed by the mayor, with five designated by the City Council and three by the police commissioner. Under the new structure, the City Council would appoint its five members directly, one of the two new members would be appointed by the public advocate and the other new member would serve as the chairperson, who would be jointly appointed by the mayor and the Council speaker. The purpose of the change is to help to ensure that the CCRB remains independent from the mayoral administration.

The Campaign Finance Board voter guide only includes two statements of opposition to ballot question two – the one encompassing these five proposals – one of which was submitted by the Police Benevolent Association, New York City’s largest police union. In a statement to City & State, PBA President Patrick Lynch called the CCRB a “failed institution that has never lived up to its mandate to investigate complaints against police officers in a ‘fair and impartial’ manner.” He added the officers are already “frozen by the endless barrage of second-guessing” without expanding the CCRB staff, board members, investigatory powers and budget. When asked how the agency should be changed to address the issues the union has, representatives for the PBA did not offer City & State any specifics other than it needs a complete overhaul. 

According to CCRB numbers, the agency substantiated about 19% of complaints in 2018, a number that remains fairly constant. The union claimed only about 2.1% of complaints to the CCRB are substantiated. However, the PBA uses every complaint, including those referred to other agencies because they do not fall under the CCRB’s jurisdiction and those that don’t receive a full investigation.

The PBA has taken to social media to encourage people to vote no on the CCRB ballot proposal. It also has a page on its website telling readers not to approve the proposal, although it can only be accessed by union members with an account on the site.

A recent investigative series from the Brooklyn Daily Eagle found that in the majority of cases it reviewed where civilians were killed by the police in Brooklyn, a CCRB complaint was never filed. The agency is not allowed to investigate police misconduct without a complaint, nor can it reach out directly to the family of victims. Although the findings don’t discount the low number of substantiated complaints the PBA points to, it does suggest that there are still many more cases that never even had the opportunity to be investigated by the oversight board. An increase in staff could mean a larger outreach division, so that more people know that they can file a complaint with the CCRB if they or someone they know ever think they are the victim of police misconduct. The expedited subpoena process and the possibility for more investigators may also improve the investigative process, which could lead to more substantiated complaints if evidence can be gathered more effectively. 

Representatives for the PBA suggested that there should be a penalty for filing a false CCRB complaint, similar to the criminal charges one can face for filing a false police report. Although police officers would see this as advantageous because it would discourage civilians from filing complaints, adding a penalty could potentially expand the CCRB authority even more because it would presumably need to determine which complaints were actually made under false pretenses. After all, just because a crime does not get prosecuted or a defendant is found not guilty does not mean the person who filed the charges lied, just as an unsubstantiated complaint does not mean the complainant did not believe they had been wronged. According to the CCRB, if it discovers that the incident in a complaint never occurred, it closes the case as unfounded. Only 8% of closed cases in 2018 were unfounded. 

Representatives for the PBA said it believed most complaints were false or frivolous, but did not offer evidence to prove that assertion outside of ongoing litigation over whether the CCRB inappropriately solicits complaints, which it is not allowed to do. 

The CCRB recently launched a public education campaign framed as “correcting misinformation” about the charter proposals. On its webpage, the agency laid out a series of “myths” followed by the “facts” of the situation. Each “myth” linked to a source, all of which are either from the PBA’s twitter, or articles about PBA opposition to the proposals.

Outside of the recently launched PBA opposition campaign, there appears to be no other strong public support or opposition to the changes to the CCRB. And though it may not have the attention ranked-choice voting has received, any proposed change to police oversight is sure to stir up controversy in New York City. 

Correction: This article originally understated the percentage of complaints to the CCRB that are subtantiated. 

Rebecca C. Lewis
is a staff reporter at City & State.
20200224