The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6012
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 4, 2021
                                ___________
 
 Introduced  by  M. of A. CRUZ -- read once and referred to the Committee
   on Cities
 
 AN ACT to amend the New York city charter and the administrative code of
   the city of New  York,  in  relation  to  providing  final  discipline
   authority  over  civilian  complaints to the civilian complaint review
   board

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision a of section 434 of the New York city charter
 is amended to read as follows:
   a. The commissioner shall have cognizance and control of  the  govern-
 ment,  administration, disposition and discipline of the department, and
 of the police force of the department, WITH THE EXCEPTION  OF  DISCIPLI-
 NARY  DETERMINATIONS  AND  ADJUDICATIONS  MADE BY THE CIVILIAN COMPLAINT
 REVIEW BOARD, WHICH SHALL NOT BE WITHIN THE  DISCRETION  OF  THE  POLICE
 COMMISSIONER.
   §  2.  Section 440 of the New York city charter, as added by local law
 number 1 of the city of New York for the year 1993, paragraphs 1, 3  and
 4  of  subdivision (b) as amended by section 1, paragraphs 1, 2, 3 and 5
 of subdivision (c) as amended by section 2, paragraphs 1 and 2 of subdi-
 vision (d) as amended by section 3, paragraph 3 of  subdivision  (d)  as
 amended  by section 4 and subdivision (g) as added by section 5 of ques-
 tion 2 of local law number 215 of the city of  New  York  for  the  year
 2019, is amended to read as follows:
   § 440. Public complaints against members of the police department. (a)
 It  is in the interest of the people of the city of New York and the New
 York city police department that the investigation  AND  PROSECUTION  of
 complaints  concerning  misconduct by officers of the department towards
 members of  the  public  be  complete,  thorough  and  impartial.  These
 inquires  must be conducted fairly and independently, and in a manner in
 which the public and the police department have confidence. An independ-

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD07384-01-1

 A. 6012                             2
 
 ent civilian complaint review board is  hereby  established  as  a  body
 comprised solely of members of the public with the authority to investi-
 gate  AND PROSECUTE allegations of police misconduct as provided in this
 section.
   (b) Civilian complaint review board.
   1.  The civilian complaint review board shall consist of 15 members of
 the public. Members shall be residents of the city of New York and shall
 reflect the diversity of the city's population. The members of the board
 shall be appointed as follows: (i) five members, one from  each  of  the
 five  boroughs,  shall be appointed by the city council; (ii) one member
 shall be appointed by the public  advocate;  (iii)  three  members  with
 experience  as  law enforcement professionals shall be designated by the
 police commissioner and appointed by the mayor; (iv) five members  shall
 be appointed by the mayor; and (v) one member shall be appointed jointly
 by  the  mayor  and  the speaker of the council to serve as chair of the
 board.
   2. No member of the board  shall  hold  any  other  public  office  or
 employment.  No  members,  except those designated by the police commis-
 sioner, shall have experience as law enforcement  professionals,  or  be
 former  employees  of  the  New  York  city  police  department. For the
 purposes of this section, experience as a law  enforcement  professional
 shall  include  experience  as  a police officer, criminal investigator,
 special agent, or a managerial or  supervisory  employee  who  exercised
 substantial  policy discretion on law enforcement matters, in a federal,
 state, or local law enforcement agency,  other  than  experience  as  an
 attorney in a prosecutorial agency.
   3. The members shall be appointed for terms of three years. The public
 advocate shall make the public advocate's first appointment to the board
 on  or  before  May  6, 2020. The board member so appointed shall assume
 office on July 6, 2020. The mayor and the speaker of the  council  shall
 make  their  initial  joint appointment to the board on or before May 6,
 2020. The member so appointed shall serve as the board's chair and shall
 assume office on July 6, 2020.
   4. Members of the board shall serve until their successors  have  been
 appointed  and  qualified. In the event of a vacancy on the board during
 the term of office of a member by reason of removal, death, resignation,
 or otherwise, a successor shall be chosen in  the  same  manner  as  the
 original appointment within 60 days from the date such vacancy occurred.
 A  member appointed to fill a vacancy shall serve for the balance of the
 unexpired term. During any period in which the office of  the  chair  is
 vacant, the mayor shall select a member of the board to serve as interim
 chair until such vacancy has been filled.
   (c) Powers and duties of the board.
   1.  The board shall have the power to receive, investigate, hear, make
 findings and recommend action upon complaints FILED by  members  of  the
 public  OR  INFORMATION  RECEIVED  BY  THE  BOARD against members of the
 police department that allege  misconduct  involving  excessive  use  of
 force,  abuse  of  authority, discourtesy, or use of offensive language,
 including, but not limited to, slurs relating to race, ethnicity,  reli-
 gion,  gender,  sexual orientation and disability.  The board shall also
 have the power to investigate, hear, make findings and recommend  action
 regarding  the truthfulness of any material official statement made by a
 member of the police department  who  is  the  subject  of  a  complaint
 received  by  the board, if such statement was made during the course of
 and in relation to the board's resolution of such complaint.  The  find-
 ings  and recommendations of the board, and the basis therefor, shall be

 A. 6012                             3
 
 submitted to the police commissioner, WHO SHALL HAVE  NO  DISCRETION  IN
 WHETHER TO IMPOSE THE RECOMMENDED DISCIPLINE. WHERE THE BOARD SUBSTANTI-
 ATES  ONE  OR MORE ALLEGATIONS AGAINST A MEMBER OF THE POLICE DEPARTMENT
 AND  RECOMMENDS  A  LEVEL OF DISCIPLINE THAT WOULD SUBJECT THE MEMBER OF
 THE DEPARTMENT  TO  BEING  FINED,  REPRIMANDED,  REMOVED,  SUSPENDED  OR
 DISMISSED  FROM THE FORCE, THE COMPLAINT SHALL BE ADJUDICATED BY A HEAR-
 ING OFFICER PURSUANT TO SUBDIVISION (D) OF THIS SECTION. No  finding  or
 recommendation shall be based solely upon an unsworn complaint or state-
 ment, nor shall prior unsubstantiated, unfounded or withdrawn complaints
 be the basis for any such finding or recommendation.
   2.  The  board  shall promulgate rules of procedure in accordance with
 the city administrative procedure act, including  rules  that  prescribe
 the  manner in which investigations AND PROSECUTIONS are to be conducted
 and recommendations made and the manner by which a member of the  public
 is  to be informed of the status of his or her complaint. Such rules may
 provide for the establishment of panels, which shall consist of not less
 than three members of the board, which shall be empowered  to  supervise
 the investigation of matters within the board's jurisdiction pursuant to
 this  section,  and  to hear, make findings and recommend action on such
 matters. No such panel shall consist exclusively of members appointed by
 the council, or designated by the police commissioner, or  appointed  by
 the mayor.
   3.  The board, by majority vote of its members, may compel the attend-
 ance of witnesses and require the production of such records  and  other
 materials  as  are  necessary  for  the investigation AND PROSECUTION of
 matters within its jurisdiction pursuant to this section. The board  may
 request  the  corporation counsel to institute proceedings in a court of
 appropriate jurisdiction to enforce the subpoena power exercised  pursu-
 ant  to this section, and the board itself may, subject to chapter 17 of
 the charter, institute such proceedings. The board may, subject  to  any
 conditions  it deems appropriate, delegate to and revoke from its execu-
 tive  director  such  subpoena  authority  and  authority  to  institute
 proceedings.
   4.  The  board shall establish a mediation program pursuant to which a
 complainant may voluntarily choose to resolve a complaint  by  means  of
 informal conciliation.
   5.  The board is authorized, within appropriations available therefor,
 to appoint such employees as are necessary to exercise  its  powers  and
 fulfill  its  duties.  The  board shall employ civilian investigators to
 investigate all matters within its jurisdiction. THE BOARD SHALL  CREATE
 AN  ADMINISTRATIVE PROSECUTION UNIT, STAFFED BY ATTORNEYS AND THE NECES-
 SARY SUPPORT STAFF, THAT SHALL HANDLE THE PROSECUTION  OF  SUBSTANTIATED
 CASES BEFORE A HEARING OFFICER.
   6.  The board shall issue to the mayor and the city council a semi-an-
 nual report which  shall  describe  its  activities  and  summarize  its
 actions.
   7.  The  board  shall  have the responsibility of informing the public
 about the board and its duties, and  shall  develop  and  administer  an
 on-going   program  for  the  education  of  the  public  regarding  the
 provisions of this chapter.
   (d) HEARINGS.
   1. THE EXECUTIVE DIRECTOR SHALL APPOINT AT LEAST ONE HEARING  OFFICER,
 WHO  SHALL  BE A CIVILIAN WITH NO LAW ENFORCEMENT BACKGROUND, TO PRESIDE
 OVER AND ADJUDICATE DISCIPLINARY PROCEEDINGS  AND  MAKE  FINAL  DETERMI-
 NATIONS  IN  CASES WHERE THE BOARD HAS SUBSTANTIATED ONE OR MORE ALLEGA-

 A. 6012                             4
 
 TIONS AGAINST A POLICE OFFICER AND  RECOMMENDED  COMMAND  DISCIPLINE  OR
 CHARGES AND SPECIFICATIONS.
   2.  THE  HEARING OFFICER, UPON APPROVAL OF THE BOARD CHAIR, SHALL HAVE
 THE POWER TO PUNISH AN OFFICER, UPON A PLEA OF GUILTY OR  A  FINDING  OF
 GUILTY AFTER AN ADMINISTRATIVE TRIAL, BY REPRIMAND, FORFEITING AND WITH-
 HOLDING PAY FOR A SPECIFIED TIME, SUSPENSION, SUSPENSION WITHOUT PAY, OR
 BY  DISMISSAL  FROM THE FORCE. NO MORE THAN THIRTY DAYS' SALARY SHALL BE
 FORFEITED OR DEDUCTED FOR ANY OFFENSE. MEMBERS OF THE POLICE  DEPARTMENT
 MAY  BE  FINED,  REPRIMANDED,  REMOVED,  SUSPENDED OR DISMISSED FROM THE
 FORCE ONLY ON WRITTEN CHARGES MADE AND  PREFERRED  AGAINST  THEM,  AFTER
 SUCH  CHARGES  HAVE BEEN EXAMINED, HEARD AND INVESTIGATED BY THE HEARING
 OFFICER, BY A PREPONDERANCE OF THE EVIDENCE, UPON SUCH REASONABLE NOTICE
 TO THE MEMBER OF SERVICE CHARGED, AND IN SUCH MANNER OR PROCEDURE, PRAC-
 TICE, EXAMINATION AND INVESTIGATION AS PRESCRIBED, TO THE EXTENT  APPLI-
 CABLE  UNDER  SECTIONS  15-03  AND 15-04 OF THE RULES OF THE CITY OF NEW
 YORK.
   3. THE CONDUCT OF SUCH HEARINGS SHALL FOLLOW, TO THE  EXTENT  APPLICA-
 BLE,  THE  PARAMETERS SPECIFIED IN SECTIONS 15-03 AND 15-04 OF THE RULES
 OF THE CITY OF NEW YORK.
   4. ATTORNEYS FROM THE BOARD'S ADMINISTRATIVE PROSECUTION UNIT SHALL BE
 RESPONSIBLE FOR THE PROSECUTION OF CASES BEFORE THE HEARING OFFICER.
   (E) Cooperation of police department.
   1. It shall be the duty of  the  police  department  to  provide  such
 assistance  as the board may reasonably request, to cooperate fully with
 investigations by the board, and to provide to the  board  upon  request
 records  and  other  materials  which  are  necessary for investigations
 undertaken pursuant to this section, except such  records  or  materials
 that cannot be disclosed by law.
   2. The police commissioner shall ensure that officers and employees of
 the  police  department  appear  before  and respond to inquiries of the
 board and its civilian investigators in connection  with  investigations
 AND PROSECUTIONS undertaken pursuant to this section, provided that such
 inquiries  are  conducted  in  accordance with department procedures for
 interrogation of members.
   [3. The police commissioner shall report to the board  in  writing  on
 any  action  taken,  including  the  level of discipline and any penalty
 imposed, in all cases in which the board submitted a finding  or  recom-
 mendation to the police commissioner with respect to a matter within its
 jurisdiction  pursuant to this section. In any case substantiated by the
 board in which the police commissioner intends to impose or has  imposed
 a  different penalty or level of discipline than that recommended by the
 board or by the deputy commissioner responsible for making  disciplinary
 recommendations,  the  police  commissioner  shall  provide such written
 report, with notice to the subject officer, no later than 45 days  after
 the  imposition  of such discipline or in such shorter time frame as may
 be required pursuant to an agreement between the police commissioner and
 the board. Such report shall  include  a  detailed  explanation  of  the
 reasons for deviating from the board's recommendation or the recommenda-
 tion  of  the  deputy  commissioner  responsible for making disciplinary
 recommendations and, in cases in which the police  commissioner  intends
 to  impose or has imposed a penalty or level of discipline that is lower
 than that recommended by the board or such  deputy  commissioner,  shall
 also  include  an  explanation of how the final disciplinary outcome was
 determined, including each factor the police commissioner considered  in
 making his or her decision.

 A. 6012                             5

   (e)]  (F)  The  provisions  of  this section shall not be construed to
 limit [or impair the authority of the police commissioner to  discipline
 members  of  the department. Nor shall the provisions of this section be
 construed to limit] the rights of members of the department with respect
 to disciplinary action, including but not limited to the right to notice
 and  a  hearing,  which  may  be  established by any provision of law or
 otherwise.
   [(f)] (G) The provisions of this section shall  not  be  construed  to
 prevent  or  hinder  the  investigation or prosecution of members of the
 department for violations of law by any court of competent jurisdiction,
 a grand jury, district attorney, or other authorized officer, agency  or
 body.
   [(g)]  (H)  1.  Beginning in fiscal year 2021 and for each fiscal year
 thereafter,  the  appropriations  available  to  pay  for  the  personal
 services  expenses  of  the  civilian complaint review board during each
 fiscal year shall not be less than an amount sufficient to fund personal
 services costs for the number  of  full-time  personnel  plus  part-time
 personnel,  calculated  based  on  full-time equivalency rates, equal to
 0.65 percent of the number of uniform budgeted headcount of  the  police
 department for that fiscal year, as determined consistent with published
 budgeted headcount documents of the office of management and budget. The
 calculation  to  determine  the  minimum appropriations for the personal
 services expenses of the civilian complaint  review  board  pursuant  to
 this paragraph shall be set forth in the preliminary expense budget, the
 executive expense budget, and the adopted budget.
   2.  Notwithstanding paragraph 1 and in addition to any action that may
 be undertaken pursuant to section 106, the appropriations  available  to
 pay  for the personal services expenses of the civilian complaint review
 board may be less than the minimum appropriations required by  paragraph
 1 provided that, prior to adoption of the budget pursuant to section 254
 or  prior  to  the adoption of a budget modification pursuant to section
 107, the mayor determines that such reduction is fiscally necessary  and
 that such reduction is part of a plan to decrease overall appropriations
 or  is  due  to  unforeseen  financial circumstances, and the mayor sets
 forth the basis for such determinations in writing to  the  council  and
 the  civilian  complaint  review  board  at  the  time  of submission or
 adoption, as applicable, of any budget or budget modification containing
 such reduction.
   § 3. Section 14-115 of the administrative code of the city of New York
 is amended to read as follows:
   § 14-115 Discipline of members. a. The commissioner shall have  power,
 in  his  or her discretion, EXCEPT CIVILIAN COMPLAINTS DETERMINED BY THE
 CIVILIAN COMPLAINT REVIEW BOARD, IN WHICH THE COMMISSIONER SHALL HAVE NO
 DISCRETION, on conviction by the commissioner, or by any court or  offi-
 cer  of competent jurisdiction, of a member of the force of any criminal
 offense, or neglect of duty, violation of rules, or neglect or disobedi-
 ence of orders, or absence without leave, or any  conduct  injurious  to
 the public peace or welfare, or immoral conduct or conduct unbecoming an
 officer,  or  any breach of discipline, to punish the offending party by
 reprimand, forfeiting and withholding pay for a specified time,  suspen-
 sion,  without  pay  during  such  suspension,  or by dismissal from the
 force; but no more than  thirty  days'  salary  shall  be  forfeited  or
 deducted  for  any offense. All such forfeitures shall be paid forthwith
 into the police pension fund.
   b. Members of the force, except as elsewhere provided herein, shall be
 fined, reprimanded, removed, suspended or dismissed from the force  only

 A. 6012                             6
 
 on  written  charges  made or preferred against them, after such charges
 have been examined, heard and investigated by the commissioner or one of
 his or her deputies upon such reasonable notice to the member or members
 charged,  and  in  such  manner  or procedure, practice, examination and
 investigation as such commissioner may, by rules and  regulations,  from
 time  to  time  prescribe.  WHERE  THE MEMBER OF THE FORCE IS SUBJECT TO
 BEING FINED, REPRIMANDED, REMOVED,  SUSPENDED,  OR  DISMISSED  FROM  THE
 FORCE AS A RESULT OF A COMPLAINT SUBSTANTIATED BY THE CIVILIAN COMPLAINT
 REVIEW  BOARD,  THE WRITTEN CHARGES MADE OR PREFERRED AGAINST THE MEMBER
 OF THE FORCE SHALL BE EXAMINED, HEARD, AND  INVESTIGATED  BY  A  HEARING
 OFFICER  OF  THE  CIVILIAN  COMPLAINT  REVIEW BOARD UPON SUCH REASONABLE
 NOTICE TO THE MEMBER CHARGED, AND IN SUCH MANNER,  OR  PROCEDURE,  PRAC-
 TICE,  EXAMINATION AND INVESTIGATION AS PRESCRIBED, TO THE EXTENT APPLI-
 CABLE UNDER SECTIONS 15-03 AND 15-04 OF THE RULES OF  THE  CITY  OF  NEW
 YORK.
   c.  The  commissioner  is  also authorized and empowered in his or her
 discretion,  EXCEPT  CIVILIAN  COMPLAINTS  DETERMINED  BY  THE  CIVILIAN
 COMPLAINT  REVIEW  BOARD,  IN  WHICH  THE  COMMISSIONER  SHALL  HAVE  NO
 DISCRETION, to deduct and withhold salary from any member or members  of
 the  force,  for  or  on account of absence for any cause without leave,
 lost time, sickness or other disability, physical or  mental;  provided,
 however,  that  the salary so deducted and withheld shall not, except in
 case of absence without leave, exceed one-half thereof for the period of
 such absence; and provided, further, that not more than one-half pay for
 three days shall be deducted on account of absence caused by sickness.
   d. Upon having found a member of  the  force  guilty  of  the  charges
 preferred  against  him or her, either upon such member's plea of guilty
 or after trial, the commissioner or the deputy  examining,  hearing  and
 investigating  the  charges,  in  his or her discretion, EXCEPT CIVILIAN
 COMPLAINTS DETERMINED BY THE CIVILIAN COMPLAINT REVIEW BOARD,  IN  WHICH
 THE  COMMISSIONER  SHALL  HAVE  NO  DISCRETION, may suspend judgment and
 place the member of the force so found  guilty  upon  probation,  for  a
 period  not  exceeding one year; and the commissioner may impose punish-
 ment at any time during such period.
   § 4. Nothing in this act shall make the discipline of police  officers
 of  the  police department of the city of New York subject to collective
 bargaining or arbitration or remove police discipline from local  gover-
 nance.
   §  5.  This  act shall take effect on the thirtieth day after it shall
 have become a law.