Plans for a Police Accountability Board could be in jeopardy because of a lawsuit filed last week by the Rochester police officers' union. The Locust Club wants a judge to block a November referendum on the board's creation.
The union; its president, Mike Mazzeo; and its treasurer, Kevin Sizer; are suing the City of Rochester, Mayor Lovely Warren, City Council, and the Monroe County Board of Elections. The suit was filed in state Supreme Court.
In May, City Council approved legislation creating the board and setting a public referendum, which state law required because it transfers discipline authority from the mayor and police chief to the accountability board. Council's action, the result of decades of effort by reform activists, was a significant one. While for years, Rochester's Civilian Review Board has reviewed cases involving charges of officer misconduct, the board doesn't conduct its own investigations. And it's not involved in decisions about officer discipline.
If the accountability board referendum were to pass, city officials would form a nine-member civilian board with broad powers, the most controversial being discipline. Currently, the police chief has that authority, and the Locust Club says the change violates state law.
And the union argues that Council's legislation violates state law in several other ways. The accountability board would create a disciplinary matrix setting the discipline for specific levels of misconduct, and the board could override the police chief's objections about it. The board would also conduct officers' disciplinary hearings.
The union says the legislation violates:
• The state's Civil Service law, which gives the mayor or a designee (the police chief) the power to make decisions about discipline;
• The state's Taylor Law, which gives public employees the right to negotiate their terms and conditions of employment with the city;
• The state constitution, which gives public employees the right to collective bargaining.
• A state law that says terms of union contracts remain in effect until a new contract is agreed to; the current contract includes provisions that Council's legislation would change.
• The City Charter, which gives the mayor the power to appoint members of all city boards. In Council's legislation, Council and the Police Accountability Board Alliance, a community organization, would appoint members of the accountability board. The union also argues that the charter gives City Council the authority to create only advisory boards, not boards with substantial power.
Because it violates state law and the City Charter, the union argues, Council's legislation couldn't go into effect, even if voters approved the referendum in November. That makes the referendum "purely advisory," the union says, "and therefore impermissible."
The Rochester school board made a similar argument in its recent fight against a referendum promoted by Mayor Lovely Warren and approved by City Council. That referendum could have bolstered Warren's push to have the state remove the school board and take over district operations for several years. The district argued that since only the state can remove a school board, the referendum was advisory, which state law prohibits. The state Appellate Division agreed with the district, and the referendum won't be on the November ballot.
If the Police Accountability Board referendum meets a similar fate, there's a possibility that City Council could revise its legislation and try again. In fact, in late December last year – shortly before City Council released an initial draft of its legislation, Mayor Lovely Warren introduced her own legislation creating a Police Accountability Board. In her version, the board would have had significantly more power than the current Civilian Review Board has. It would have the power to conduct its own investigations, for instance; it would establish levels of discipline for officers' misconduct; and it would recommend changes to the RPD's policies and procedures.
But Warren's legislation did not give the Accountability Board the authority to impose discipline. Warren was adamant about that omission; she was certain that giving the board that authority would not withstand a court suit, and the city's attorney agreed with her.
Activists who had pushed for that power conducted an intense lobbying campaign, and City Council held Warren's proposal in committee and passed the law creating the stronger board.
Warren's legislation is still alive; if the Locust Club wins its suit and the referendum isn't on the ballot in November, City Council could bring Warren's version out of committee and vote on it. The Warren administration has declined to comment on the Locust Club suit or on the future of her legislation in Council, citing the pending litigation. But even her slightly weaker version of an accountability board could face challenges; the Locust Club suit cites problems with several aspects that are in Warren's and Council's version.
Some criminal-justice experts and public officials who support stronger police oversight maintain that the only way to get it is by changing state law. But in the union-friendly state legislature, that may be an even bigger challenge.
At a press conference last Friday, leaders of the Police Accountability Board Alliance said they weren't surprised by the Locust Club's lawsuit, although they said they hadn't expected it to be filed before the referendum. While the suit means that creation of an accountability board could be tied up in court for a year or two, they said they're optimistic that the court will rule in Council's favor.
Alliance members are continuing to hold events and canvass city neighborhoods in support of the referendum.