Police unions cut deals on disciplinary records after NY secrecy law repealed
Some New York local governments are creating an avenue for police officers and their unions to try to block or obscure the release of civilian complaints and other disciplinary records despite a new state law meant to ensure they are public.
The Town of Hyde Park and Village of Wappingers Falls in Dutchess County have entered into written agreements with their local police unions, granting officers the right to object to the release of their disciplinary records or personnel file before they are provided to the member of the public that requested them.
The Town of Fishkill also adopted a similar policy after negotiating with their union.
Lawyers for the local governments said the labor agreements offer a "procedural mechanism" for releasing records and are in keeping with precedent under state labor law.
But the agreements also go into detail about what records should be withheld and how officers can try to block the release of others. Transparency advocates fear it could give police unions a loophole around New York lawmakers' decision last year to repeal Section 50-a of state Civil Rights Law, which had allowed police departments to shield complaints and disciplinary proceedings from public view for decades.
"What's happening here is that the police are trying to bring back the 50-a loophole using labor agreements," said John Kaehny, executive director of Reinvent Albany, an organization that pushes for government transparency. "It's fairly obvious."
Law repealed; agreements soon followed
In June, New York lawmakers and Gov. Andrew Cuomo repealed Section 50-a, a once-obscure provision that essentially allowed police departments to keep all personnel records — including disciplinary actions and civilian complaints against officers — private.
The repeal came amid national and statewide protests following the May 25 death of George Floyd, a 46-year-old Black man who died in police custody in Minneapolis after an officer pressed a knee into his neck for nearly nine minutes.
Since then, the USA TODAY Network New York has partnered with MuckRock, the Brechner Center for Freedom of Information and Syracuse University journalism students to file over 600 requests for disciplinary records from more than 400 police agencies.
In Dutchess County, the Town of Fishkill's attorney replied saying no records were "responsive" to the request, but did so only afterthe town passed a memorandum of agreement in October thatit had negotiated with its town police union.
The town's policy, which is similar to the agreements in Wappingers Falls and Hyde Park, was negotiated with the Town of Fishkill Police Fraternity. It specifically states that records "reflecting a finding of guilt that indicates a time for removal or are subject to removal under any provision of the CBA" will be removed or expunged from the personnel file.
The deal also requires the town to withhold "pending, exonerated, unfounded or unsubstantiated complaints," and prohibits the town from creating an online database of disciplinary records unless it includes all employees and not just police.
The agreement requires Fishkill to forward any requests for disciplinary records to the police union within two business days of receipt. And officers must be notified at least two days before the town intends to release any documents.
If the officer objects and the town still intends to make the documents public, the officer is given 10 business days to file a lawsuit to try to block their release.
Brian Nugent, Fishkill's attorney and a former police officer, conceded that a municipality "cannot collectively bargain to withhold records that otherwise be subject to release" under state law. But he said the unions must be consulted about the process for releasing documents.
"However, under labor law precedent, a municipality cannot unilaterally determine the process for the release of records without consultation/negotiation with the affected Unions," Nugent said.
Attorneys defend agreements as procedural
Wappingers Falls also passed an agreement last month which may make it harder to obtain records since officers will be given time to try to block disclosure.
However, before the village passed the agreement it had already began releasing records to the Poughkeepsie Journal, including one that detailed how an officer was suspended for five days without pay for failing to "completely investigate and file complaints", failing to return phone calls and failing to accurately record police actions.
The same officer also failed to file a domestic incident report.
Disciplinary records such as those previously released in Wappingers could shed light on how complaints are handled within police departments. Without the repeal of Section 50-a, the ability to track a complaint would not be possible.
The agreements, amendments to the police unions' collaborative bargaining agreements, are seen as procedural by the attorneys who negotiated them.
However, open-records advocates view them as an end run around the state law, inviting court litigation at the taxpayer's expense.
The attorneys who work on these agreements are also creating similar ones for local governments across the state, with the town of East Fishkill among those considering one at the request of its police union.
“The repeal of 50-a was to create more transparency, whereas these agreements might be moving around documents creating more of smokescreen than an actual process," said Bobby Hodgson, senior staff attorney at the New York Civil Liberties Union.
Reinterpreting state law?
For years, police agencies had pointed to Section 50-a as the legal rationale for declining to disclose information about civilian complaints and whether officers faced any discipline.
“Generally the rule has been that a (person who files a complaint) is not entitled to know necessarily what happened or what the disposition was or the penalty. The mantra has always been we will handle the complaint, we will tell you its being investigated, but we can’t tell you what the outcome was," said Nugent, who is a former police officer.
All of that was supposed to change with the repeal of the state law.
Under the new law, records that are now considered public include complaints, allegations and charges, transcripts of disciplinary hearings, disposition of those proceedings and the final opinion.
This means that an individual could file a complaint against a police officer and then request all the records tracking the complaint to its final determination.
However, local administrations are now taking it upon themselves to define what documents under the state law can be withheld.
Fishkill, due to its agreement with its police union, decided to withhold technical infractions even though state law suggests they could be released.
The Fishkill and Hyde Park agreements call for the local governments to not release complaints that are still working their way through the disciplinary process or were determined to be unfounded — even though that issue is currently before the courts.
Ongoing lawsuits filed by police unions in New York City, Buffalo, Schenectady and other locations challenge whether departments can legally release unsubstantiated or pending complaints. So far, trial courts have ruled on the side of making them public, though some of the lawsuits remain on appeal.
Attorneys believe unsubstantiated claims and false allegations can be used against an officer even though they may not be true. But keeping such information from the public also means those officers with multiple complaints against them will also be protected.
Delays, court battles continue
If local administrations start to interpret the state law however they want, they will be sued at the expense of their taxpayers, said Kaehny of Reinvent Albany.
The Committee on Open Government, a state entity that weighs in on state transparency laws, also states the obligations of state law trumps what's in these local agreements.
"(In) our opinion records that are responsive to a FOIL request and not exempt from disclosure ... must be produced, regardless of contract terms or 'procedural mechanisms' to which the agency may be a party," said Shoshanah Bewlay, the committee's executive director.
While the local agreements list out what documents can and cannot be released, some provide a framework where by police unions and officers can challenge what's placed in their personnel files and what gets disclosed.
Agreements such as the one created by the Village of Wappingers Falls do not stipulate what documents would be withheld, but provide an opportunity for a police officer to obtain a court order to keep documents from being released.
"If the (officer and union) wants to review the documents, what we are going to disclose, to give (them) a chance to go to court, for example, to block it. It's just fundamental fairness, so the employee doesn't get sandbagged," said Richard K. Zuckerman, outside labor counsel for Wappingers Falls.
If a request is large, such as those in process now from media outlets and civil liberties agencies, where over a hundred files are being requested from a single department, such a process could greatly delay the turnout around for open-record responds.
Deals create contractual obligations
Some critics believe the repeal of Section 50-a will backfire all together as police department move towards more informal discipline leaving no paper trail an allowing the worst offenders to hide behind the thin blue line.
Also, some smaller departments and those with part-time officers may already be using an informal discipline process that relies on the memory of its leadership, which means no such records exist in the first place
Some believe the Section 50-a repeal treats police differently compared to other public employees such at teachers and lawmakers, though all public employees have privacy protection. The state law merely made the protection of police records more explicit.
Attorneys believe the agreements are necessary because they separate out police officers and change the terms of their employment, an action that needed to be negotiated in the wake of the repeal.
"Now we have a discretionary provision that has the town releasing records of union members, which effects the term and condition of employment because its releasing their personnel file or portions of it," said Nugent, Fishkill's attorney.
Attorneys believe these agreements protect the town's employee-employer contractual obligations.
Police unions within Dutchess County would not respond, or would not comment, on these labor agreements.
Wappingers Falls ratified its agreement in December after it had already released the first batch of records to the Poughkeepsie Journal.
The village's labor litigation attorney believes with the agreement in place, the village's police union will be "more vigilant" of what gets released now. The Journal has yet to receive the remaining documents under its open-records request sent last summer.
Saba Ali: Sali1@poughkeepsiejournal.com: 845-451-4518