Governor Cuomo has ordered local governments to “reinvent” their police departments or risk losing state and federal funding, but the back-up guidance from Cuomo’s office sets up an arduous process that likely will conflict with other parts of state law.
To put it plainly, the guidance shows the state’s “New York Tough” governor won’t take on its police unions.
Cuomo’s June 12 “Police Reform and Reinvention Collaborative” executive order affects about 470 local governments with sworn police officers. These departments range in size from 64 that have only part-time officers to the NYPD—the country’s largest. Each affected town, county, village and city must undertake a “comprehensive review” of its department, and develop and adopt a reform plan by April 2021. Absent that, Cuomo’s order indicates the state Division of the Budget (DOB) will withhold “future appropriated state or federal funds.”
To be clear, Cuomo doesn’t have the legal authority to block payments this way, at least not yet. In keeping with his mandate-then-legislate approach, he’ll likely seek a new law next year explicitly letting him condition state funding this way. But even then, blocking funds from Washington would almost immediately land the state in federal court, since DOB would be interfering with spending directed by Congress (an action that was the subject of some discussion prior to the COVID pandemic).
Even if Cuomo’s order had the force of law, the “reinvention” process ignores a key obstacle to changing how police departments operate. More than 90 percent of New York’s full-time police officers are covered by union contracts that dictate terms and conditions of employment. They can only be changed through union negotiations—not the local laws imagined under the reinvention program.
But the 139-page reinvention guidance is written as though the state’s decades-old collective bargaining law, the Taylor Law, doesn’t exist.
In fact, it doesn’t make any mention of collective bargaining. It has only one passing reference to union contracts, listing them among information local officials should gather. The guidance says officials “should consider engaging” local police unions—as part of a long list of groups, after “residents who have been incarcerated.”
The authors went to odd lengths to avoid discussing the extensive roles police unions and their contracts play in police department operations.
For instance, the guidance warns that “vendor contracts” may “interfere with transparency” by preventing the release of certain records generated using proprietary technologies. At the same time, it ignores the untold number of police union contracts that bar employers from creating, retaining, or disclosing certain discipline records. It also fails to note that public employers often fail to post their police union contracts on the internet.
Many of the local policy changes that Cuomo is seeking, or at least suggesting, would likely be struck down in court.
For instance, the guidance says departments should consider “whether tasks can be performed effectively by sworn or civilian staff.” That work reassignment process is known as “civilianization.”
Civilianization typically faces considerable scrutiny from the state Public Employment Relations Board (PERB), which decides Taylor Law disputes. Local governments before PERB would need to satisfy a “balancing test” that weighs both the public interest and that of the officers. There’s no guarantee they’d prevail—especially if it led to a community having fewer police officers or less overtime pay
The guidance also says “managers may consider limiting maximum shift lengths along with overall limits on an officer’s work hours.” But changes to shift lengths and start times for unionized police must be negotiated, under decades-old PERB rules. Any local law that attempted to change them unilaterally would almost definitely fail to withstand a legal challenge.
The Legislature, on the other hand, could prospectively change any term and condition dictated by a public-sector union contract. But Cuomo isn’t proposing that.
An undisciplined exercise
The guidance is most disconnected from reality on the crucial question of police discipline.
It encourages local officials to ask if their department responds to officer misconduct “with appropriate disciplinary measures.”
Unfortunately, if the answer is “no,” there’s often little they—or the reinvention process—can do about it
That’s because many mayors and other local officials can’t discipline their own officers due to discipline rules bargained into union contracts. Final determinations often are made by unelected arbitrators who have a financial incentive not to come down too hard on the accused.
In Syracuse, for instance, leaked records show that firefighters were repeatedly shielded from termination under union arbitration rules even in cases involving allegations of assault or child pornography. Those same rules subsequently stopped the City from terminating a firefighter who reportedly helped cover up a vehicular homicide.
State courts have voided some of these contract provisions and affirmed the powers of mayors and other leaders to make final discipline decisions. But many other public officials remain in legal limbo. The elected leaders of New York City, medium-sized “cities of the second class,” towns, and certain counties can discipline their officers, but the mayors of villages and the state’s other cities, as well as most county sheriffs, remain bound by contractual discipline rules.
Cuomo should be working with state lawmakers to fix the underlying statutory problems that diminish police accountability—and with it, public trust. As explained last month in this Empire Center report, the Legislature could make several changes to boost police accountability while preserving due process for officers: among other things, lawmakers could affirm that discipline powers are vested in elected officials and can’t be delegated to arbitrators.
The state could also take steps to make the discipline process more efficient and less expensive.
The governor, to his credit, thwarted a 2014 effort by the Legislature to roll back the key court rulings that have boosted management’s discipline powers.
But with his reinvention push, Cuomo’s forcing cash-strapped, COVID-strained local governments to undertake what will in many ways be an exercise in futility rather than tackling the underlying problems in state statute himself.
“Meaningful reform,” the guidance says, “will require honest and thoughtful discussion about these goals.”
Cuomo, so far, has missed the mark.
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