Administrative Prosecution of certain of the Board's Substantiated Cases, and other matters.

Adopted Rules: Closed to Comments

Agency:
Effective Date: 
Thursday, April 11, 2013
Download Copy of Adopted Rule (.pdf): 

 

 

Statement of Basis and Purpose of Rules Changes

 

Overview

 

The existing Subchapter E of Title 38-A, the Rules of the CCRB, took effect on June 25, 2001. It was adopted pursuant to a memorandum of understanding ("MOU") made between the then-Chair and Police Commissioner on April 27, 2001 and provided for the administrative prosecution by the Board of civilian complaints substantiated by the Board, before the New York City Office of Administrative Trials and Hearings ("OATH").

 

The 2001 MOU was not implemented, because a panel of the First Department of the Appellate Division of the New York State Supreme Court held that state law requires that such administrative prosecutions take place before a person employed by the Police Commissioner and OATH judges are not employed by the Police Commissioner.

 

Because the 2001 MOU could not be implemented, since June 25, 2001, administrative prosecutions of civilian complaints substantiated by the Board have continued to be handled by attorneys employed by the Police Department.  They are heard by the Trial Commissioner of the Police Department as required by state law.

 

A new Subchapter E of the Rules of the CCRB is now adopted as contemplated by an MOU made between the current Chair and Police Commissioner on April 2, 2012. The new Subchapter E replaces the existing Subchapter E and implements the terms of the new MOU which provides for the Board to conduct the administrative prosecution of certain of the Board's substantiated cases, before the Trial Commissioner of the Police Department.

 

In the course of undertaking the necessary rule changes, the Board conducted a review of its other rules. The Board determined that those sections dealing with jurisdiction, filing complaints, recording investigative interviews, letters to complainants, mediation and re-opening closed cases, should be revised to provide greater clarity and consistency.

 

The New Subchapter E

 

Rule § 1-41 explains the purpose of Subchapter E and contains a definition of terms.

 

Rule § 1-42 sets out the procedure to be followed when the Board substantiates an allegation against an officer and recommends that charges and specifications be brought against such officer. In limited cases where, in the view of the Police Commissioner, the interests of justice would not be served by the bringing of charges against an officer, the Police Commissioner may request in writing that the Board refrain from prosecuting such charges.

 

Rule § 1-43 sets out the procedure to be followed when a prosecution ought to be expedited.

 

Rule § 1-44 sets out the procedure to be followed when during the course of a prosecution the Board identifies possible misconduct falling outside its jurisdiction.

 

Rule § 1-45 restates the principle that the Police Commissioner retains in all respects the authority and discretion to make final disciplinary determinations; and requires that there be co-operation between the Board and the Police Department Advocate.

 

Rule § 1-46 sets out certain other matters relating to administrative prosecution, including several procedures to be followed.

 

Other Changes

 

Rule § 1-02 conforms the jurisdictional language in the Rules with the jurisdictional language in the New York City Charter, which provides that the Board has the power to receive, investigate, hear, make findings and recommend action upon complaints by members of the public 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, religion, gender, sexual orientation and disability. Such change, involving the addition of the words "have the power to" to the language currently contained in Rule §1-02, brings consistency to the language contained in the Rules and in the City Charter. It also reflects that under the City Charter the Board is not required to receive, investigate, hear, make findings and recommend action upon all such complaints.

 

Rule § 1-11 codifies the Board's current practice of accepting complaints received by email or through the Board's website, and makes clear that the Board may decide to accept complaints submitted by other means.

 

Rule § 1-24(i) codifies the Board's current practice of prohibiting interviewees and others from recording the Board's investigative interviews. To permit the recording of interviews would increase the risk that future evidence might be tailored to conform to statements made in an interview, and so threaten the integrity of the Board's investigations. The reference to recordings' being made either mechanically or by means of stenographer is deleted as it is archaic and redundant.

 

Rules § 1-46 through 50 are renumbered §1-51 through 56 to accommodate Subchapter E and maintain consistency with the current numbering system. The succeeding paragraphs of this Statement of Basis and Purpose use the new numberings for easier reference.

 

Rules § 1-53 (b) and (c) are deleted because to write to a complainant after forty-five and ninety days of the receipt of a complaint serves no useful purpose, as few investigations are completed within those periods and those time frames do not correspond to any meaningful stages or benchmarks in the investigative process.

 

Rule § 1-53 (b) (as renumbered) is split to make it easier to read. The second part of what was in Rule § 1-53 (b) (as renumbered) thus becomes § 1-53 (c).

 

Rule § 1-53 (c) (as renumbered) is amended to take account of the fact that not all allegations substantiated by the Board will be administratively prosecuted by the Board.

 

Rule § 1-53 (d) (as renumbered) is amended so that the term "Police Commissioner" is used consistently throughout the Rules and to reflect the new procedures introduced by the new Subchapter E of the Rules.

 

Rule § 1-53 (f) is deleted as §§ 1-53 (b) and (c) are deleted and § 1-53 (d) (renumbered as § 1-53 (b)) could not apply to a case resolved through mediation.

 

Rule § 1-54 is amended to correct typographical errors and to reflect the original intent of the respective rules.

 

Rule § 1-55 is amended to make it easier to read and to permit police officers to request the re-opening of cases closed without a full investigation.