The ruling by state Supreme Court Justice John Ark all but hobbles the board, at least temporarily, from executing its duties that Rochester voters overwhelmingly approved by referendum in November. The board’s members were officially appointed last week.
Ark ruled that, for now, “investigations and discipline of police officers employed by the city of Rochester shall be conducted by the chief of police and/or his designee(s)” pursuant to the city’s collective bargaining agreement with the police union, the Rochester Police Locust Club.
The board may receive complaints about police officers and “perform investigative actions” consistent with the law that created the board, according to the ruling, but shall not receive “information or materials” from the RPD, including body-worn camera footage.
While the ruling explicitly allowed the Police Accountability Board to begin setting up shop, including hiring an executive director, it effectively rendered the board as toothless as the Civilian Review Board it was intended to replace. That board had the power to review and make nonbinding recommendations on completed RPD internal affairs investigations.
Ted Forsyth, of the Police Accountability Board Alliance, the organization widely credited with successfully lobbying the city to create the board, said the ruling did not come as a shock.
“I’m not surprised that Judge Ark ruled the way he did,” Forsyth said. “The city will hopefully be appealing.”
Reached by phone, City Council President Loretta Scott said she had yet to review the ruling and could not immediately comment.
A message left for Michael Mazzeo, president of the Locust Club, was not immediately returned.
Under the law that created the PAB, the board is to be an independent office of city government with an executive director and staff. It is tasked with investigating allegations of officer misconduct and has the power to issue subpoenas, impose discipline, and assess police practices and procedures.
The board's power to issue subpoenas was hailed by supporters as a major victory. But Ark's ruling also made clear that the board would not be able to compel testimony from any police officer, at least as long as his ruling was in effect.
No complaints have been referred to the board as of yet.
The Rev. Matthew Nickoloff, one of the nine Police Accountability Board members recently appointed by City Council, noted that he and the other board members have a lot of training, learning, and organizational work ahead of them.
"The board is already going to take several months to be adequately and professionally prepared," Nickoloff said.
The police union has challenged the legality of the board in a court case that is also before Ark.
In issuing his ruling, Ark noted in an accompanying memo that a 19-page decision on that case is ready for final editing. The memo cast his ruling as an order to delay the implementation of the law that created the board — and, thus, curtail the board’s powers for the time being.
The ruling, he wrote, was to stay in place for at least six months or until the litigation between the Locust Club and the city is complete, including any appeals that may be filed. That could take a year or more.
The administration of Mayor Lovely Warren appeared to dismiss the ruling as an incremental development hardly worth addressing.
"On behalf of Mayor Warren, though we appreciate Judge Ark's offer to assist, in deference to the city voters who participated in the referendum process, we would prefer to have judge Ark rule on Local Law No. 2 (the law that created the board), as adopted by the City Council, and then reassess our options to the extent appropriate," read a statement from city lawyer Tim Curtin.
Ark’s memo foreshadowed that his decision in the case would address provisions in the law that he thought were inconsistent with state law, but also struck an optimistic tone that a compromise could be reached.
“Hopefully, by working together, a ‘Rochester Police Accountability Board’ can be finalized that will not only serve the city of Rochester, but also be a model for other communities,” Ark wrote.