Safir’s Plan to Police the Police Has a Loophole

It would seem Police Commissioner Howard Safir and Mayor Rudy Giuliani elegantly sidestepped a giant black eye this month. Federal prosecutors of the Brooklyn-based Eastern District have been threatening to sue the city for failing to adequately punish police officers involved in brutality, and the inevitable outcome appeared to be some kind of Justice Department-imposed policing.

Heck if a potential takeover of the New York City Police Department wouldn’t be just the albatross to hang around the neck of a certain senatorial candidate-to-be. It would sully his vaunted crime-fighting record and–ugh–vindicate the Rev. Al Sharpton and his fellow campers outside 1 Police Plaza.

Facing this, the Mayor and the Commissioner announced on Aug. 10 that the Police Department was seriously considering adopting the Civilian Complaint Review Board’s investigations of misbehaving officers as its own.

That’s a big change–the civilian review panel, an independent body, has been one of the Mayor’s and Commissioner’s favorite punching bags. Now, no more extra layer of investigation by the police, and no more delays in prosecuting officers. It would seem to be an arrangement that would satisfy the Justice Department, plus soften the Mayor’s and Police Commissioner’s reputations as control freaks. Right off, The New York Times editorial board signed on.

But hidden inside Mr. Safir’s olive branch is a prickly thorn–a cushy loophole that allows Police Department brass to, in essence, order a do-over if they don’t like the review board’s results. So much for relinquishing control.

According to a Police Department memo obtained by The Observer , Mr. Safir wants to be able to do something the law doesn’t appear to let the department do: Shove the review board’s guilty verdicts right back to the panel for them to reconsider.

That has some of the board’s 10 members worried. “I’m suspicious of the motives behind this,” said one board member, Earl Ward. “I think it’s a direct response to the Eastern District probe. When this probe is over, eventually you’ll have the N.Y.P.D. kicking a lot of cases back to us.”

That rejection would be nothing new. During any given year this decade, at least half of the officers that the board deemed culpable enough to warrant punishment have not received even a slap on the wrist from the department. Federal prosecutors are looking at that fact pretty closely, to judge from the weight of material they have extracted from the review board.

But now Mr. Safir and the Mayor would like to, in essence, formalize that rejection by building it into the process. That’s likely to spark more bureaucratic fights between the warring agencies.

And then there’s the larger question of whether this would put the board under Mr. Safir’s thumb. “If we can’t put in his in-box any case that he doesn’t want, where does that leave us?” said one review board source. “We can interview eight witnesses and they can always say we want you to investigate 12.”

Marilyn Mode, the Commissioner’s spokesman, said board officials are overreacting. “When you’re leaving it up to them, how possibly could you construe this as abridging their independence? I still don’t get it, you’re asking them to take actions, asking them to go back and finish the job that they’re mandated to do,” she said.

Ms. Mode said that the department’s stance is about standards, about “giving them more information so they can consider their decision.” Why didn’t the civilian panel have the information before? “They might have had access to the information, they might not have recalled it,” she explained.

The review board was initially housed inside the department. It was moved out by the Charter Commission in 1993, and ever since the police have scorned its findings. Specifically, the department has ignored its work and rarely used the board’s findings in departmental trials.

Instead, the Police Department’s disciplinary team would do its own investigation–adding precious months to the process that would often swallow up witnesses or obscure additional evidence. As bad as this was for a civilian reeling from a negative encounter with police, it was just as bad for the police officers who were the targets.

In fact, the board’s probes drag on for months, police officials like to point out. In 1995, the average investigative time on a complaint was 16 months; the statute of limitations for trying an officer is 18 months.

The board, meanwhile, blames the department for some of the delays. Board officials said department bureaucrats drag their feet, failing to produce roll calls, photo arrays, rosters of license plates, telephone records or other investigatory materials in a timely manner.

Yet Mr. Safir has been coming around. As the probe by Federal prosecutors hovers in the background, he has noticed that the board has hired more seasoned investigators, revamped its investigative method in the past two years, and lowered its average investigative time to seven months. As a result, in March, Mr. Safir first told board members he was exploring the possibility of giving them responsibility for investigations.

In July, deeming the board sufficiently improved, Mr. Safir decided to move ahead–a decision he said had no connection to the Federal investigation. He told Kevin Flynn of The Times that his plan “would make the C.C.R.B. totally independent as far as the investigations are concerned.”

Mr. Safir first broke the news to a review board delegation during a meeting at 1 Police Plaza on July 29. They had gathered to discuss problems in their relationship–primarily review board folks’ belief that the police could be cooperating more. At the meeting, said two people familiar with the board’s workings, Mr. Safir offered to get information to the panel in a more timely fashion. Then he dropped the bombshell that the department would no longer rework their cases.

He never mentioned, however, the do-over clause. That came on Aug. 6, in a memo from Joseph Flynn, the director of the department’s disciplinary assessment unit, to Gene Lopez, the executive director of the review board. On Aug. 12, two days after Mr. Safir and the Mayor announced the new plan, Mr. Flynn reiterated the demands in a nonconfidential memorandum to Mr. Lopez. “Reconsideration of cases would be fair to police officers, would enable the department to dispose of referrals in the most appropriate manner, and would underscore the C.C.R.B.’s commitment to the integrity of the entire civilian complaint process,” he wrote.

A majority of board members is needed to implement any proposal, and right now the Mayor and the Commissioner have only a slight advantage. The board panel is made up of three former high-ranking police officials appointed by the Commissioner, three former prosecutors appointed by the Mayor and four members (usually lawyers) recommended by the City Council. The Mayor’s contingent has two vacancies. A vote could come on Sept. 8.

Some of the board’s members said the proposal is especially stinging, given their hopes and beliefs that the relationship between the two agencies was finally improving. Besides promising better access to crucial investigatory information, Mr. Safir has actually met with the board twice this year, after pretty much ignoring them in previous years. More crucially, Mr. Giuliani has said he would raise the board’s budget 21.3 percent this year, after raising it 18.9 percent last year.

Mr. Ward said the Police Department could engage in case-dumping. “I am a little concerned that they will just send cases back to us as a way to clear out their backlog. To put it on our backlog instead of theirs,” he said. At the end of 1998, the department had resolved only 19 of the 300 cases the board referred during the year.

“There has to be a time limit during which they could send the case back, say after three months, to say this needs further investigation, if this proposal is going to work at all,” Mr. Ward said.

Ms. Mode conceded that justice could be delayed under the proposal, then put responsibility on the review board: “Well, that’s something they need to be cognizant of, but if you’re doing the investigation properly from the get-go, there shouldn’t be any delay.”