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City Council Bail Fund Continues Slow Path to Reality


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Speaker Mark-Viverito (photo via flickr)


The City Council’s long-awaited public bail fund, a project spearheaded by Council Speaker Melissa Mark-Viverito, is one step closer to being operational after receiving another required approval from state authorities.  

Mark-Viverito announced the plan to create a $1.4 million citywide bail fund in February 2015, during her first State of the City address. She called it a crucial element in her larger agenda of criminal justice reform, which now includes several other elements, such as the Criminal Justice Reform Act, which reduced penalties for many low-level, nonviolent offenses.

But the bail fund has been mired in bureaucratic process for some time, and its launch does not appear to be something that the speaker and her partners in the effort have made an urgent priority, despite the fact that the city’s bail system is widely acknowledged as broken. The problems with the bail system prompted Mark-Viverito’s bail fund initiative and elements of the Criminal Justice Reform Act, which helps avoid arrests in the first place.

The Liberty Fund, as it is called, aims to assist low-level offenders who cannot afford bail, at times as low as $250, and would otherwise be incarcerated awaiting trial. It would mirror other bail funds that are running in the city, and will be overseen by the Doe Fund, a nonprofit that provides assistance to homeless people.

"[I]f you can't afford bail you will spend on average 15 days in jail," Mark-Viverito said in the 2015 speech. "The results are predictable: people lose their jobs, or their housing, and cannot take care of their children while they are in custody. These are people who are accused of minor offenses and are still considered innocent in the eyes of the law. This is not justice."

More than a year later, in March 2016, the fund was recognized as a charity by the Attorney General’s office. After other steps in the lengthy procedure involving multiple levels of state approval, the fund received a license to run as a charitable bail bond operation on August 12, according to a spokesperson for the state Department of Financial Services, which authorizes such funds. The speaker’s staff told Gotham Gazette that same month that the fund is expected to provide assistance to about 1,000 people annually, and they hope to reach as many as 2,000 each year. Under state law, a charitable bail fund can only pay bail for an individual charged with a misdemeanor whose bail is set below $2,000.

According to the DFS spokesperson, the fund now has to to obtain a license for an individual to act as a bail bond agent. The spokesperson said that they received an application and a letter from the City Council on November 23 asking to approve the license. The individual will have to be vetted and interviewed before receiving the license, although the spokesperson could not say how long that process would take.

Two other bail funds currently operate in New York City -- The Brooklyn Community Bail Fund and The Bronx Freedom Fund. Both funds report that about 95 percent of their clients, who would otherwise have been unable to afford bail, return to court. The city-funded Independent Budget Office found in 2011 that on an average day, 49 percent of pre-trial detainees were jailed because they could not pay bail and that the annual cost to the city for housing all pre-trial detainees who were unable to pay bail was around $125 million.

The Council’s bail fund aims to prevent thousands of such defendants from spending time in jail, cutting down both on the prison population and the associated costs of incarceration, as well as the personal costs to the individuals. “Our Citywide Bail Fund will make our criminal justice system more fair by ensuring low-income New Yorkers accused of low-level offenses aren’t forced to languish in jail while awaiting trial,” said Robin Levine, a City Council spokesperson, in an email. “We are in active conversations with our partners and will be announcing next steps soon.”

Once the fund is established, that licensed bail bond agent will begin offering qualified candidates the cash to post bail, with the agreement that the participant will show up for his or her court date. The city’s budget for Fiscal Year 2016, which ended June 30 2016, included $1.4 million for the bail fund, which was unused. The same amount was included in the Fiscal 2017 budget as well.

At this point, the launch of The Liberty Fund could coincide with Mark-Viverito’s next, and final, State of the City address, in February. Mark-Viverito is term-limited out of office at the end of 2017.

“It is a time consuming process for an organization to be charitable bail fund organization,” said Peter Goldberg, executive director of the Brooklyn Community Bail Fund. Goldberg said his organization received its license in about a year-and-a-half, which is similar to the timeline for the Council’s fund so far. For the Brooklyn fund’s individual bail bond agents, Goldberg said it took about three months to be licensed by the state.

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by Samar Khurshid, senior reporter, Gotham Gazette
     

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22 Campaign Finance Bills to Move Through City Council 'Soon,' Speaker Says


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Speaker Mark-Viverito (photo: @NYCCouncil)


Within the next two months, the City Council is expected to vote on a large legislative package that would alter the city’s campaign finance system in a variety of ways and regulate donations to political nonprofits, Council Speaker Melissa Mark-Viverito said this week. Some of the proposals and the timing of their likely passage have raised concerns, though, that the Council is weakening the city’s model campaign finance system, pushing some reforms through after too long a wait and rushing other, newer bills through just in time for the next municipal election.

The Council has before it 22 bills relating to campaign finance law and elections, 14 of which were heard just last week by the Committee on Standards and Ethics. It was the first hearing on legislation for the committee under this Council, which took office in January 2014, owing to the fact that the main bill in that bundle deals with conflicts of interest. The 13 others relate to the campaign finance system.

The other eight bills of the 22 were heard in May by the Committee on Governmental Operations, which has oversight of the Campaign Finance Board, and were introduced about one year ago. They have awaited a committee vote since, but have not moved.

Mark-Viverito, who largely controls which bills are heard and voted on, has promised that the two bundles of bills will be lumped and voted on together. “We will be moving ahead with an extensive package,” she said at a news conference on Tuesday, in response to Gotham Gazette’s questions about the concerns raised at last week’s hearing. “We’ve been going through a lot of deliberations, a lot of conversations with stakeholders and others, so I’m very confident about what it is that we will be presenting.”

When asked when the vote could happen, she said, “It’s gonna be soon. Probably within the next month or so, without a doubt.”

Although a common theme unites 21 of the 22 bills, they have taken vastly different trajectories in the Council’s legislative process. The first package was only heard six months after it was introduced and has since languished in committee. Those proposals came straight out of the Campaign Finance Board’s 2013 post-election report, which recommended improvements to the campaign finance law. These proposals mainly seek to tighten gaps in the campaign finance law, including the elimination of public matching funds for contributions bundled by people with city business, enhanced disclosure rules for entities that do business with the city, and a prohibition on contributions from non-registered political committees to candidates who don’t participate in the public matching program.

The second package has not been as thoroughly vetted, it seems, including the 22nd and most high-profile bill, Intro. 1345, which would limit donations to political nonprofits affiliated with elected officials.

That bill is a direct response to the Campaign for One New York, a now-defunct nonprofit affiliated with Mayor Bill de Blasio that accepted large donations from people who have business with the city. Those activities have led to multiple investigations and allegations of a pay-to-play culture at City Hall, with federal authorities investigating whether government action was offered or done in exchange for donations to the Campaign for One New York. De Blasio has denied any wrongdoing and no one has been charged. 

Intro. 1345 and the accompanying 13 bills were introduced on November 16 and were heard just one week later. Although Intro. 1345 was embraced by the Campaign Finance Board, which is an independent city entity, the de Blasio administration, and government reform groups, the rest of the bills are seen as a bit more problematic. Even representatives of the city Conflicts of Interest Board, which would be tasked with implementing Intro. 1345, expressed doubts about COIB’s ability to do so and questioned whether it is the appropriate agency to be assigned the job. Meanwhile, representatives for the Campaign Finance Board critiqued several of the bills relevant to its operations and the city’s well-regarded public campaign finance system.

In contrast with the first legislative package, some of the new bills are more friendly to Council members and candidates in general, and would ease certain elements of campaign finance regulation including documentation requirements for contributions and the current restriction on the use of non-public campaign funds for official purposes.

Government reform groups have questioned the overall approach the Council has taken with the most recent bills, which they say are being rushed along and are based on Council members’ personal experiences with the system rather than objective analysis that would usually be identified by the Campaign Finance Board.

In written testimony submitted to the committee, Susan Lerner, executive director of Common Cause New York, a good government group, said it was “perplexing” that the 14 bills were heard by the Standards and Ethics committee when only one of them dealt with conflicts of interest.

“These bills are, in major part, detailed technical changes that, unlike previous revisions, have not grown out of the Campaign Finance Board’s statutorily required reports and recommendations, which result in revisions of the system which are openly discussed, negotiated and considered far in advance of the City’s next election cycle,” Lerner wrote, stressing that they could inadvertently weaken the CFB’s independence.

She also said the bills “appear to be on a fast track,” while the older bills based on recommendations in the Campaign Finance Board’s 2013 post-election report have languished. Taking issue with the timing, right on the eve of a city election year, she said the Council should wait till after the 2017 elections to reconsider most of the campaign finance bills and do so through the appropriate committees.

The CFB itself criticized the bills as hampering its ability to enforce the campaign finance law, calling them “poison pill” measures in testimony at the November 21 hearing.

At a public meeting on December 1, CFB Chair Rose Gill Hearn reiterated those concerns. “This legislation has been considered on an accelerated schedule,” she said, stressing that the “hastily drafted” proposals would undermine the board’s oversight of the campaign finance system. She specifically called on the Council to reject one of the bills, Intro. 1355, sponsored by Council Member David Greenfield, which allows candidates or their committees to complete or correct contribution cards. “The board believes this bill will enable fraud,” she said, “and remove a weapon for the CFB to detect and prevent it.” Council Member Greenfield was not made available for comment for this article.

In urging the Council to delay the bills till after the 2017 elections, Hearn did promise to work with the Council on improving the campaign finance program and commended Council members for Intro. 1345, the political nonprofit donation limits bill. This bill is sponsored by Mark-Viverito, who was not present for the hearing on the bill, which was chaired by standards and ethics committee Chair Alan Maisel. 

Dick Dadey, executive director of Citizens Union, a government reform group, stressed that the bills need more time to breathe. “We hope we have at least a month or two to make some needed changes to these bills that represent new ideas and are a marked shift in the management of the campaign finance board,” he told Gotham Gazette.

Dadey said the new package “does feel rushed to us” and that “there’s some question as to whether these will actually strengthen or weaken the program and a much fuller discussion needs to be had before these move forward.” While he acknowledged that Council members should have a significant voice in improving the campaign finance system, he said they should avoid imposing solely their own concerns. “[The campaign finance law] needs to reflect the public’s interest in protecting taxpayer dollars while making it a workable program for the candidates themselves,” Dadey said.

Council Member Maisel said the timeline of these newer bills, from drafting to hearing to a possible vote, may be short but is necessary. “There’s an effort to try to get these bills voted on sooner than later because the election is next year,” he said in a phone interview, adding that he was not given a specific timeline to push through the bills. “Whether it’s done before December 31 or the first week of January, I can’t tell you,” he said. Maisel is meeting this week with Council staff to review feedback from the hearing to amend and tweak the bills, he said.

Maisel also pushed back against the criticism that the bills might weaken the CFB’s authority, insisting that they’re aimed at making the system more reasonable to encourage participation. “They’re protecting their turf,” he said of the CFB. “If these bills are passed, their powers are intact. I don’t see how [the bills] undermine their authority.”

When asked if his committee was the appropriate venue for the campaign finance bills, he said it was the speaker’s office that made the decision. “I have no experience with campaign finance bills, I deal with ethics issues,” he said, in a sense echoing the critique made by others who’ve questioned why campaign finance bills were heard in his committee as opposed to their typical place, government operations, the committee chaired by Council Member Ben Kallos.

The proposals have created some degree of internal tension within the Council for multiple reasons, including the committee venue. Additionally, before the bills were introduced, Council Member Kallos was openly skeptical of the effect they might have, telling the New York Times, “I am concerned about undermining the best parts of a system that has worked for the people.”

Council Member Brad Lander, sponsor of one of the new bills, disagrees. First, Lander told Politico New York that the Times report had mischaracterized the bills under consideration. On Tuesday, shortly after the speaker’s news conference, Lander told Gotham Gazette the concerns over the bills would be addressed through amendments and that criticism of their timing was unfounded. That the bills were heard through the standards and ethics committee rather than the governmental operations committee made little difference, he said, since the same people and advocacy groups would testify even if there were separate hearings. He also noted that Kallos, the governmental operations chair, was present at the hearing as well.

Lander also sought to dispel the notion that the bills were being expedited through the Council. “That’s a silly thing to say,” he said, noting that discussions on Intro. 1345 in particular have been in the works since the shutdown of The Campaign for One New York was announced months ago. And while there was not the same urgency with the eight campaign finance bills from last year, he said, “I think if we get a good package that combines a lot of good reform and sensible legislation, that’s a good legislative process.”

***
by Samar Khurshid, senior reporter, Gotham Gazette
     

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Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union.

Under the Hood at Agencies, Investigation Department Increases Policy Focus


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Department of Investigation ad (photo via DOI)


Formed in the 1870s, the city’s Department of Investigation (DOI) is a law enforcement agency tasked with keeping city government honest. Run well, DOI acts as a safeguard against fraud, abuse, and neglect in municipal government, an advocate for taxpayers, and an enforcer of ethics.

In 2013, then Mayor Michael Bloomberg described the agency as a "vigilant watchdog," and a "national leader in promoting transparency, efficiency, and accountability in government."

While DOI is often responsible for arresting bad actors in city government, its long-term impact is best seen in its investigative reports, policy recommendations, and follow through ensuring that agencies implement suggested reforms. As with many types of government reports, though, it is not always easily evident what type of oversight DOI provides to see that its recommendations are indeed implemented.

DOI has unlimited power to investigate any city agency, officer, elected employee, contractor, and those who receive city benefits: its jurisdiction spans 45 mayoral agencies and various other city entities, boards, and commissions. Through its subpoena power and by maintaining a working relationship with agencies under investigation, DOI has access to information and resources that can produce lasting reform.

Often, DOI investigations result in criminal prosecution. In the 2015 calendar year, DOI made 569 arrests from over 1,500 investigations, and received over 700 criminal prosecution referrals, nearly double the number from the prior year, as previously reported by Gotham Gazette. This data is from the tenure of DOI Commissioner Mark G. Peters, who was nominated to the position by Mayor Bill de Blasio and confirmed by the City Council early in 2014 despite some concerns about the fact that Peters had worked on de Blasio’s campaign.

Under Peters, DOI has focused less on arrests and more on investigations and reports to identify root causes of malfeasance or ineffectiveness and push comprehensive reform. "DOI, in the last two years, instead of being a reactive agency, which tended to react to complaints and react to tips coming in, has now become a proactive agency," Peters said at a March City Council budget hearing. The office’s capacity and budget have expanded under Peters.

The key feature of DOI reports are Policy and Procedure Recommendations (PPRs). PPRs identify relevant violations, neglect, and criminal activity, and propose solutions to the agency under investigation.

A typical PPR recommends the sharing of data analytics or internal reports to ensure that recommendations are being met. Some task agencies to provide employee training to close loopholes that led to the infractions at hand. A PPR usually prompts an official response from the agency under investigation, which details steps taken to address DOI recommendations, and any areas of disagreement.

Inspector generals, grouped by category (i.e. social services, uniform services) are responsible for monitoring PPRs; there are separate inspector generals for NYCHA, NYPD, the New York City Housing Development Corporation, and New York City Health + Hospitals. Commissioner Peters meets with his inspector generals for each agency every three weeks, according to comments made at a March hearing of the City Council’s Committee on Oversight and Investigations, which has oversight of DOI.

According to DOI, in fiscal year 2016, which ended June 30, it issued 693 PPRs with an implementation rate of 81%, up from the 74% implementation rate in fiscal year 2015. The number of PPRs was a 87% increase from the year before, DOI said.

"We have not, in the past, been as good at tracking compliance as I would like to be," Peters admitted at the same City Council hearing, noting that DOI was improving internal protocols.

IGs are responsible for monitoring DOI-issued timelines and delivering regular reports to the commissioner. Data collection plays an important role in this process, as does more regular tracking. According to Nicole Turso, the DOI press secretary, data that tracked progress had been updated only once a year, resulting in a lower implementation rate.

DOI has no legal authority to force agencies to accept the terms of PPRs, however, DOI typically has city government on their side. In some cases, the Mayor's insistence pressures agencies to adopt PPRs. In others, the agency in question will adopt recommendations to avoid public backlash. DOI also relies on the fact that compliance typically benefits both parties: there is a strong mutual interest in enacting reform. Still, agency pushback to DOI is not uncommon, especially during the initial investigatory phase.

"When you do the type of work that we do, there's always a certain amount of friction. But, having said that, we're all in it for the greater good,” said Turso, about city employees across agencies, in an interview with Gotham Gazette. “We're all out for integrity and good government. We parse through the difficulties that we have and make it work."

Turso pointed to the recent Rivington House investigation as a prominent exception to this rule.

In March of 2016, the de Blasio administration was found to have signed off on a series of decisions that led to the conversion of a Lower East Side nursing home into a new apartment building of market-rate condominiums. A DOI investigation into the process had already begun, as de Blasio officials had recognized mistakes made and notified the agency.

DOI investigations include virtually unfettered access to government documents. But in July, the Daily News reported that the mayor’s team withheld a memo revealing prior knowledge of the sale that appeared to compromise some of the accounting of how key decisions were made in removing deed restrictions from the Rivington House property and its subsequent sale. When DOI issued its initial report on the matter, it cited restrictions to its access to de Blasio administration documents and computers.

After DOI threatened litigation against the Law Department, according to DOI only then did the Law Department produce documents previously classified as irrelevant.

The Daily News reported that this refusal to cooperate was nearly unprecedented, citing that no DOI commissioner had been forced to threaten litigation under the Dinkins, Giuliani, and Bloomberg administrations.

Outside of the Rivington case, which was a very public embarrassment for the de Blasio administration, DOI reports mostly strong communication and efficiency in their collaborations with city agencies.

DOI investigations vary in nature, and three 2015 cases show the scope of the agency’s oversight: the first involves fraud within the Human Resources Administration (HRA); the second, negligence by the Department of Homeless Services (DHS); and the third, lack of accountability at the New York Police Department (NYPD) around the use of chokeholds prior the death of Eric Garner.

While DOI provided insights into the three case studies selected by Gotham Gazette for this article, it did not respond when asked for a variety of details about how DOI representatives ensure compliance with PPRs on a daily basis, or track them. 

Human Resources Administration Fraud
In December 2015, the Human Resources Administration alerted DOI of internal fraud, leading to the arrest of one current and one former HRA employee on charges of conspiracy to commit mail and wire fraud and aggravated identity theft. The culprits exploited a vulnerable computerized case management system and used benefit issuance procedures to steer $2.4 million to themselves and associates using Electronic Benefit Transfer (EBT) cards.

In order to investigate and prosecute these cases, DOI joined forces with HRA, the U.S. Attorney's Office for the Southern District of New York, the FBI, the New York State Office of the Inspector General, and the Richmond County District Attorney’s Office.

In October, DOI Commissioner Peters announced the sentencing of one former HRA employee to 23 months in federal prison for her role in schemes totaling approximately $1.8 million, including the purchase of $120,000 worth of Red Bull, later pawned off to small retail locations.

Following its investigations, DOI issued a series of recommendations to HRA. These included the design and implementation of a secured, electronic, fraud report system. DOI also recommended an increased supervisory review of cases and frequency of training, and the design and implementation of a comprehensive EBT fraud identification training program.

In its report, DOI commended HRA for taking immediate action to implement recommendations, including an agreement to enhance controls to monitor program vulnerabilities. Most importantly, HRA would continue sharing data analytics with DOI and continue collaboration to develop new strategies.

As of November, DOI reports that each reform timeline has been met.

HRA spokesperson Lourdes Centeno emphasized the two agencies’ strong relationship to Gotham Gazette. "HRA has a long-standing partnership with the Department of Investigations,” Centeno said, “and we value their assistance in adjusting instances of potential staff misconduct interagency."

Department of Homeless Services Shelter Conditions
In March 2015, DOI announced that a year-long investigation of 25 DHS-operated shelters revealed serious health and safety violations, a lack of social service programs, and inadequate or missing certificates of occupancy. The shelters provided housing for approximately 2,000 homeless New Yorkers.

In the report, Peters explained that the investigation was requested by Mayor Bill de Blasio, who came into office with about 51,000 people sleeping in city shelters (the number has since grown to about 60,000).

DOI reached its conclusions by reviewing records, interviewing shelter residents, and collaborating with inspectors from the Department of Buildings, Fire Department, and Department of Housing Preservation and Development. Upon DOI review, 621 building, housing, and fire safety violations were issued, including accounts of vermin infestations, blocked or obstructed entrances and exits, and nonworking smoke and carbon monoxide detectors.

DOI also discovered that DHS had not, for years, used the city's contracting process to secure providers, and was not enforcing existing contracts, eroding an important check that holds providers accountable for failing to meet health and safety standards.

Providers include faith-based non-profits like Volunteers of America, as well as organizations like the Women’s Prison Association, which serve groups like families affected by maternal incarceration, and others, including private landlords.

“Dangerous living conditions, rat-and-roach infested residences. And fire violations are the stark reality facing too many homeless families and children in the City’s shelters,” Peters noted in the DOI report.

Giselle Routhier, policy director at Coalition for the Homeless, said no one should underestimate the importance of building maintenance in providing shelter for homeless people and the role of shelter in helping people return to stable housing. "Poor conditions are problematic for very obvious reasons. There are health and safety issues—families are concerned whether roofs are caving in, versus actually being able to focus on getting the kids to school and getting out of shelter," Routhier said in an interview. "One of the best ways to make sure that you have a system that is capable of being operated with the proper oversight of conditions is to not always be concerned about having enough capacity," she said. "When capacity gets tight, everything else kind of false to the wayside."

The de Blasio administration has consistently struggled with several elements of combatting homelessness, in part due to the city's affordable housing crisis that leads to shelters busting at the seams. There are challenges with not only the conditions at shelters, but with helping to keep people in their homes through rental assistance and working with those ready to leave shelters on using vouchers to help pay for rent in stable housing. The administration has also seen significant community pushback to its efforts to open new shelters.

The essence of the DOI report, echoed in a damning December 2015 audit from city Comptroller Scott Stringer, was the deplorable shelter conditions. The two reports prompted significant city action, including the creation of a new shelter repair squad. The Department of Homeless Services’ Shelter Repair Squad has worked to aggressively address building violations, with significant progress, though many shelter issues remain.

“Being homeless is tough enough – no one in shelters, particularly children, should have to endure poor or unsafe living conditions,” said Mayor de Blasio in a May 2015 announcement of the shelter repair squad launch.

DHS pledged to bring in new shelter capacity through the city's procurement process. Lauren Gray, senior communications advisor at DHS, told Gotham Gazette that the agency has announced a commitment to increase the number of shelters city-wide as the administration transitions to a "borough approach" to help homeless individuals and families stay closer to their communities, jobs, and support networks. A more local approach is something de Blasio has recently promised as he has seen pushback to shelter siting plans in several neighborhoods.

DOI was especially critical of cluster sites, privately-owned residential buildings that the city has paid up to $3,500 a month to maintain the notoriously inadequate shelters. In January, 2016, de Blasio announced a three-year plan to phase out cluster sites completely, in coordination with DHS.

As 2016 nears an end, Gray reports that approximately half of the more than 1,700 cluster units have already been brought under contract. She also said that, as of mid-October, the shelter repair squad has helped see to “a 75% reduction in cluster unit violations since January 2016." 

As of November, DOI reports that each reform timeline has been met by DHS relative to the PPR from the March 2015 DOI investigation. 

NYPD Chokeholds & Accountability
On July 17, 2014, NYPD officer Daniel Pantaleo placed Eric Garner in a chokehold, a maneuver forbidden by section 203-11 of the NYPD patrol guide, leading to Garner’s death. The confrontation, caught on video, spurred public fury, fueling the national debate about excessive force by police officers, quality-of-life policing, and relations between law enforcement and communities of color.

On December 3, 2014, a Staten Island grand jury declined to issue an indictment of Pantaleo, or other officers on the scene.

In January 2015, the DOI Office of Inspector General for the NYPD (OIG-NYPD) published its first-ever report, an investigation into the NYPD's management of improper use of force violations.

OIG-NYPD aimed to shed light on how frequently officers were using chokeholds, why they were doing so, and what discipline was imposed on those who violated the prohibition. In order to review comparable use of force violations, OIG-NYPD conducted reviews of ten chokehold cases substantiated by The Civilian Complaint Review Board (CCRB) between 2009 at 2014. The CCRB is the civilian panel that reviews allegations against police officers in New York City.

Use of force complaints are investigated by CCRB. Cases, if substantiated, would move, with recommendations, to the NYPD, which determines discipline. In DOI-reviewed incidents, CCRB recommended the most severe level of discipline in nine out of ten cases with a substantiated chokehold.

Next, NYPD's Department Advocate's Office (DAO), responsible for prosecuting substantiated use of force cases, downgraded seven of CCRB's recommendations, proposing the least punitive disciplinary measure in four, and no discipline in another.

Ray Kelly, police commissioner from 1992-1994 and 2002 through 2013, was tasked with making a final determination. Kelly sided with DAO and rejected six CCRB recommendations, opting each time for less severe penalties or no discipline at all. The commissioner provided no explanation for his decisions.

In sum, DOI found that CCRB's input was barely heard, if at all. By the time cases reached the police commissioner's desk, CCRB disciplinary recommendations had been watered down substantially, if not completely.

Peters summarized this point in the DOI report, citing “the extent to which the NYPD has disregarded disciplinary recommendations from the Civilian Complaint Review Board and thus minimized the role of the central body tasked with investigating individual cases of police misconduct.” 

"There is no indication from the records reviewed that NYPD seriously contemplated CCRB's disciplinary recommendations or that CCRB's input added any value to the disciplinary process," another section of the DOI report reads.

OIG-NYPD found that CCRB and NYPD measured accountability by different standards: CCRB, "an investigative agency," substantiated cases specifically on "credible evidence:" video footage, third-party witnesses and officer records indicated harmful contact. DAO, a “prosecutorial unit," defined chokeholds through “contextual” evaluations: circumstantial evidence, personnel history, and the viability of future prosecution.

As a result, OIG-NYPD found that the two groups were operating with different guidelines, and, likely, agendas.

OIG-NYPD evaluated NYPD's training for officer communication and de-escalation tactics. In several cases reviewed, OIG-NYPD found that NYPD officers had used chokeholds as a first act of physical force in response to "verbal resistance," making little attempt to resolve the encounter through nonviolent means.

In the NYPD response to OIG-NYPD recommendations, Deputy Commissioner Lawrence Byrne touted the new “Remand" process requiring NYPD to issue formal written requests for penalty reconsiderations, upon disagreement with CCRB. A 2016 OIG-NYPD assessment labeled this reform "partially implemented," citing that NYPD had yet to adopt a more transparent disciplinary process alongside CCRB.

In the same response, Byrne announced that the NYPD had instituted a three-day refresher tactical training program to promote nonviolent resolution, designed to reach 20,000 officers out on patrol, and, “eventually,” all 35,000 uniformed service members.

Citizens Union, a government reform group, recently released an agenda for improved police accountability and included in it a more transparent process around the NYPD commissioner’s reaction to CCRB recommendations. Citizens Union also argues that CCRB should be the “primary finder of fact in cases it investigates, except in cases of clear error."

Byrne emphasizes NYPD autonomy. “We agree with your observation that no definitive conclusions can or should be drawn from such a limited universe of cases, nor do we believe it is useful to revisit the factual circumstances,” Byrne wrote to DOI. “While we are fully committed to increasing the collaboration between the NYPD and the CCRB, as you note in your report, the Police Commissioner continues to retain the final authority and complete discretion to make all judgments about internal discipline,” he also said.

DOI successfully pressured the commissioner into providing public rationale for his decisions. In a 2015 annual report, OIG-NYPD said that the commissioner had agreed to write explanations to CCRB for any decisions that "deviate downward" from original recommendations. The recommendation was deemed “implemented.”

While NYPD has met certain DOI timelines, there are also ongoing related concerns.

On the day following the release of the inaugural 2015 OIG-NYPD report, Mayor de Blasio vowed to veto legislation that would make the use of chokeholds by officers a misdemeanor offense. However, according to a Daily News report, a new set of June patrol guidelines stipulate specific circumstances that a banned chokehold can be excused if the Use of Force Review board determines that the officer’s actions were "reasonable and justified.” The Daily News reported that City Hall claims the new guidelines are clarifying determinations of excessive force, and there is no change to the chokehold ban.

City Council Member Rory Lancman, who chairs the Council’s Committee on Courts and Legal Services and sponsors the chokehold misdemeanor bill, thinks otherwise. In an interview, Lancman admonished de Blasio for liberalizing the previously absolute chokehold ban.

“The mayor has made it clear that he is not going to push the police department to reform how it holds officers accountable to use chokeholds, and if anything the mayor allowed the NYPD to loosen the restriction on chokeholds, so I think it sends a signal to police officers that the chokehold ban is not really a ban,” Lancman said. “Even if a conclusion is reached that you use a chokehold improperly, the consequences are minimal.”

The mayor’s office has pushed back on such characterizations, citing de Blasio’s effort to enforce new trainings for all NYPD officers, reduce the use of stop-and-frisk, and institute neighborhood policing.

***
by Benjamin Jurney for Gotham Gazette
     

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