How does the campaign plan to establish the Elected Civilian Review Board?

The Elected Civilian Review Board would be established through an amendment to the NY City Charter. An amendment to the NYC charter can be proposed to the NYC electorate in three ways: by the Mayor, by City Council, or by individuals through a petitioning process.

The Mayor can change the NYC Charter through executive action, which doesn’t allow for a grassroots campaign to exert any pressure or input. Due to its bureaucratic structure, the petitioning process has been historically ineffective for advancing change in New York City.

Therefore, the campaign has decided to pressure and work through City Council as our primary strategy for getting the ECRB amendment on the ballot. This strategy provides the most opportunities for building public awareness of the campaign.

In order to be implemented, the Charter Amendment would first have to be passed by City Council. It would then appear on the ballot in next NYC general election, to be voted on by the public.

Who drafted the legislation for the NYC Charter?

A working group of volunteer advocates researched charter law and drafted the proposed amendment to establish an ECRB. This group worked with lawyers, legal aid organizations and institutions, and law students from around the city. The legislation drafted by the working group was regularly presented to the general membership of the ECRB campaign for democratic discussion and was approved by vote.

What is the ECRB draft legislation based on?

To draft the ECRB amendment, the legislation working group is using a proposal from the 1990s to amend the LA City Charter by establishing a Civilian Review Board. This proposal was the result of a grassroots organizing effort by a coalition of organizations and individuals, including the Freedom Socialist Party and former Black Panther Michael Zinzun. The working group is also reviewing the NYC Charter and the New York State Constitution, in consultation with legal professionals.

Would an ECRB conflict with state law?

No - because NY State Civil service law empowers local powers to determine discipline (currently the Commissioner, and with our amendment, the ECRB via the Commissioner).

[Section 75 of Civil Service Law] outlines the procedures for disciplining public employees in New York State: "The hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred." Therefore, Civil Service Law explicitly acknowledges that a governmental body such as the proposed ECRB can have disciplinary authority.

Who will be eligible to run for the ECRB?

Any resident age 18 or over will be eligible for the Board; our goal is to create a system that selects candidates from the local community over the political systems in place. Our plan combines existing City Council districts into 17 neighborhood districts, each of which would elect representatives to the Board.

What are the differences between the ECRB and the current Civilian Complaint Review Board (CCRB)?

The amendment we are drafting would replace the current Civilian Complaint Review Board (CCRB) with the Elected Civilian Review Board (ECRB). The similarities pretty much begin and end with the closeness of their acronyms.

Whereas the Civilian Complaint Review Board only has the power to recommend discipline in the case of misconduct, the ECRB would be fully empowered to issue binding rulings regarding the discipline of police officers and to pursue investigation of criminal-level misconduct through an Independent Special Prosecutor.

Whereas the Civilian Complaint Review Board is all appointed by the Mayor, City Council, and Police Commissioner, the ECRB will be an elected body representative of and accountable to the community it serves.

What’s the difference between the Elected Civilian Review Board and Community Policing?

Community Policing is a program promoted by politicians and police officials as the solution to the antagonism between the community and police. Under the guise of promoting “community involvement,” it actually reinforces police domination by enlisting community members as agents to surveil their neighbors and report on their activities. In this way, “community policing” reinforces the strength of the police state.

An ECRB would shift power into the hands of communities by empowering accountable representatives in every neighborhood to respond to cases of police abuse. These representatives would enact discipline and challenge the domination of our communities by the police.

What opposition will the ECRB face from the City Council, the Mayor’s Office, and/or the Police Union and supporting organizations?

History has shown that there is major opposition to police reform of any magnitude by the police union and organizations (like the Patrolmen’s Benevolent Association, the Fraternal Order of Police), the mayor, and conservative members of the City Council. The only way to overcome this opposition is by building a mass movement including organized labor that can pressure City Council into movement.

Support from rank and file unionists and the organizational power of unions will be a necessary component of any challenge to the police union.

Does the proposed ECRB infringe on police officers’ right of collective bargaining?

No, it would not change their collective bargaining rights. To clarify, police officers are already prevented by law from addressing disciplinary procedure in contract negotiations.

In The City of New York v. MacDonald in 1994 it was decided—and upheld by the Appellate Court and in subsequent cases—that disciplinary procedures as outlined in the City Charter [section 434] and in the Administrative Code [section 14-115] could not be superseded by contract demands.

These two sections define the authority of the Police Commissioner in disciplinary matters. The proposed Elected Civilian Review Board legislation amends these so that the Commissioner’s authority remains intact except in those specific cases under the purview of the ECRB.

Short answer - the ECRB would not violate the rights of cops to collectively bargain because they CAN'T negotiate discipline through a union contract anyway. The charter ( which we will change) is a the higher law that determines discipline proceedings for cops. Union contracts can't override this.

How can we overcome the Mayor’s veto power?

If the proposed amendment to establish an ECRB passes the City Council, the Mayor is likely to veto it. Only a 2/3 majority vote by the City Council within thirty days of the mayor’s decision can overturn the veto. Our goal as a campaign is to pressure the Council to fight for the ECRB to the fullest extent.

Why should ECRB members be elected rather than appointed? 

Right now the CCRB is majority appointed by the Mayor and Police Department, so it inevitably has a pro-NYPD bias. And remaining appointees by the City Council and Public Advocate are are beholden to and politically tied to the politicians who gave them their position, not the people.

People who are elected to the ECRB would be directly accountable to their communities and could be voted out, or subject to recall if they don’t do their job.

Why will some districts get an additional representative? Doesn’t this violate the “one person/one vote” standard? 

Our original bill for the ECRB would have been made up of a total of 21 elected representatives. This would include one from each of 17 ECRB districts (each comprised of three adjacent City Council districts), plus an additional representative from each of the four districts with the highest number of reports of substantiated complaints in the previous period.

Additional representation for some neighborhoods is necessary because records of the Civilian Complaint Review Board show that there is considerable discrepancy in the rate at which residents from different areas of the city report being subjected to police misconduct and violence.

By incorporating proportional representation based on need, the ECRB provides a more equitable approach to engaging the community in addressing police misconduct.

The current bill in City Council omits this. However, we think this affirmative representation is more fair and needed.

Why are only 200 signatures required to nominate someone for the ECRB? 

Seeking election to the ECRB should be accessible to all residents who have community support, and not limited to those with big budgets and ties to existing political machines.

Why should all NYC residents—not just citizens— be allowed to nominate ECRB representatives? 

There are 1.47 million noncitizens living in NYC, 17 percent of the total population. Between 30 and 50 percent of residents in seven city council districtsin Queens, the Bronx and Brooklyn do not have citizenship. All have a stake in police accountability.

Non-citizens face discriminatory treatment based on their perceived immigration status, language, and ethnicity, and as such are at particularly high risk for police misconduct and for experiencing additional barriers to seeking remedies for mistreatment.

Many areas of the US already are or are considering extending voting rights in local elections to non-citizen residents. While this legislation does not include that provision, by allowing noncitizens to participate in the nomination process and in running to be ECRB members, it would improve access for an underrepresented group.

Why are police officers and their families barred from serving on the ECRB? 

People in NYC communities have a widespread mistrust of the current CCRB due to the inclusion of appointees of the Police Commissioner, and of appointees of the Mayor, who is seen as having close ties to the NYPD. These appointees have failed to stop widespread racial profiling and abuse by the NYPD.

Current and former employees of the NYPD and their immediate families have both real and perceived conflicts of interest between their ties to the police department and the mandate of the ECRB to provide independent, community oversight of police. Allowing them to participate as board members would irrevocably undermine the ECRB’s work.

Why are ECRB members not term-limited? 

Communities should have the option of choosing the continued representation of Board members who are perceived as fulfilling their mandate of striving for police accountability and zealously protecting the rights of all those targeted by police violence and abuse. Excellent performance supported by the community should not be arbitrarily restricted by term limits.

Term limits may seem like a check on career politicians. But in truth, they have created a “merry-go-round” dynamic where politicians take positions merely to jockey for the next rung up the ladder.

How and why is the mandate of the ECRB expanded beyond the current CCRB? 

The current CCRB addresses: “excessive use of force, abuse of authority, discourtesy, or use of offensive language,” and defines offensive language as “including, but not limited to, slurs relating to race, ethnicity, religion, gender, sexual orientation and disability.”

The ECRB mandate recognizes that actions as well as language can be based on disparity and discrimination. It is more specific about ways in which police officers may violate rights and inflict injury, including physical violence, theft, planting evidence or making false reports, and racial profiling or otherwise treating some groups differently, among other types of misconduct.

The ECRB legislation recognizes that the potential basis for discrimination or misconduct may include: “age, sex, race, ethnicity, religion, creed, national origin, immigration status, political views, union membership, sexual orientation, gender identity and expression, record of criminal conviction and incarceration, physical ability, or state of mental health.”

The proposed legislation also addresses any attempt by police to intimidate or harm complainants or whistleblowers or their families. Attempts to obstruct the process of the ECRB would also be an actionable act of misconduct.

The ECRB would also be empowered to initiate investigations without or before a complainant is identified, for example, on the basis of body-cam footage, witness videos, or third-party reports of misconduct.

Why does the legislation mandate the ECRB to establish a disciplinary matrix? 

Standards of conduct and what constitutes a violation should be clearly delineated. Police officers should be held to those standards and aware of the penalties of violating the rights and persons of the public.

The disciplinary matrix is to provide a range of possible actions for an offense. The action taken by the ECRB in a particular case may take into account both the severity of the offense and whether prior investigations have demonstrated a pattern of misconduct.

The ECRB would be required to periodically review the disciplinary matrix and to hold hearings seeking the input of the concerned organizations, agencies and the public.

What is the reason for requiring a minimum budget for the ECRB? 

To carry out its vital function of police oversight, the ECRB needs to have guaranteed funding with protection from yearly partisan budget negotiations. Its funding should be tied to that of the NYPD as a percentage of its budget to enable the ECRB to keep pace with expanding responsibilities.

Why is the ECRB given the power to make decisions about disciplining police officers who commit misconduct against people? 

Findings of the currently existing Civilian Complaint Review Board regarding cases of police misconduct are considered “recommendations” that can be and frequently are diluted or ignored by the Police Commissioner.

For example former NYPD Commissioner Keechant Sewell flouted CCRB discipline recommendations on at least 425 civilian complaints in 2022.

Failure to discipline police who violate civil rights and behave brutally toward people results in repeated misconduct and even deaths. Officer Pantaleo, who choked Eric Garner, had multiple substantiated complaints in his past but was never brought up on charges (this was revealed by leaked documents, as identification of offending police officers is routinely not made public). The repeated abuse by a number of officers has also been exposed when findings or settlements against them in civil suits have cost the city millions of dollars yearly.

Is it possible under NYS law for the ECRB to overrule the police commissioner on how to discipline police officers? 

The authority and powers of the police commissioner are delineated and are given to the commissioner in the NY City Charter and Administration Code. The proposed legislation would amend these in relation to discipline for ECRB investigations and determination.

Opponents of the ECRB legislation have alleged that courts might determine that changing the City Charter revokes the commissioner’s authority altogether, and make police discipline subject to collective bargaining and the authority of the Public Employment Relations Board. However, multiple NYS court decisions have been consistent with the legal opinion that the ECRB legislation’s modifications would be upheld under legal challenge. Legal precedents pertinent to this issue are appended below. A similar measure by the City of Rochester in establishing a Police Accountability Board is currently in litigation.

Why does the legislation require police compliance with deadlines? 

Historically, the Civilian Complaint Review Board has had significant problems with timely handling of complaints, with allegations that the NYPD has bureaucratically delayed pursuit of justice with slow and incomplete compliance with requests for documents and other relevant information.

The ECRB legislation seeks to enforce standards for prompt response, including compliance by the NYPD with set deadlines for both providing relevant documents and for implementing ECRB disciplinary determinations.

Why an Independent Prosecutor to try police officers who commit crimes against people? 

An Independent Prosecutor, elected by New Yorkers, would not be part of the District Attorney’s office, which relies on close ties to the NYPD and is widely perceived as reluctant to prosecute police officers. There’s an inherent bias when the DA’s prosecute police officers who they typically work with on a day-to-day basis on other criminal cases. Having an Independent Prosecutor ensures there can be prosecution of criminal acts by officers without interference or prejudice.

A NYS special prosecutor previously appointed by Governor Cuomo is empowered only in shooting cases in which a civilian is killed. An independent office is needed to seek justice for criminal acts of assault, rape, theft, choking, slander or other forms of both fatal and non-fatal attacks.

There are certainly enough cases of NYPD criminal conduct to warrant a city-wide office, and the campaign envisions this reform spreading to every city in our country.

Does the law allow the creation of an Independent Prosecutor? 

The most efficient way to enact an Independent Prosecutor for New York City would be for the City Council to pass the ECRB legislation and simultaneously send the Legislature a Home Rule Message. This is a request to enact a special law specifically granting and acknowledging NYC the ability to create this office.

Selected legal precedents pertinent to Elected Civilian Review Board holding decision-making power regarding disciplinary actions 

In the Matter of TOWN OF WALLKILL v. CIVIL SERVICE EMPLOYEES ASSOCIATION, INC. (LOCAL 1000, AFSCME, AFL-CIO, TOWN OF WALLKILL POLICE DEPARTMENT UNIT, ORANGE COUNTY LOCAL 836)19 N.Y.3d 1066 (2012) Upheld the right of the Town Board to change disciplinary procedures and recognized this as a prohibited subject of collective bargaining. https://www.leagle.com/decision/innyco20121025258

In the Matter of CITY OF SCHENECTADY, Appellant, v. NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents.30 N.Y.3d 109 (2017); 86 N.E.3d 536. Upheld the right of the City of Schenectady and specifically the right of the Schenectady Police Commissioner to enact a new disciplinary measure that differed from one previously agreed to in a collective bargaining agreement. https://www.leagle.com/decision/innyco20171017293

In the Matter of PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., Appellant, v. NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents. In the Matter of TOWN OF ORANGETOWN et al., Respondents, v. ORANGETOWN POLICEMEN'S BENEVOLENT ASSOCIATION et al., Appellants. 6 N.Y.3d 563 (2006) 848 N.E.2d 448; 815 N.Y.S.2d 1. Held that police discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials. https://www.leagle.com/decision/20065696ny3d5631524