The lack of transparency into NYPD disciplinary matters also frustrates external oversight. In its meetings with the Panel, the Legal Aid Society described the obstacles § 50–a, as interpreted by the NYPD, imposes on its efforts to evaluate disciplinary outcomes for consistency and appropriateness.[69] For example, the NYPD trial calendar is treated as a confidential document, even though disciplinary trials are open to the public. In addition, the Department treats trial transcripts as personnel records subject to § 50–a because decision makers in the disciplinary process rely on them in formulating their recommendations and imposing penalties. As a result, Legal Aid Society interns must be assigned to monitor trial rooms to determine when a case is called and must take careful, detailed notes if they want to meaningfully inform others of what occurred during the proceedings. The end result is a system that is understandably perceived by the public and others as gesturing towards some transparency, but ultimately remaining largely closed to any external scrutiny.

II.             THE POLICE COMMISSIONER HAS AND EXERCISES COMPLETE DISCRETION OVER DISCIPLINARY OUTCOMES

As noted, at the conclusion of the disciplinary process, the Commissioner reviews all penalty recommendations and determines whether discipline is warranted and, if so, what penalty should be imposed. While the Commissioner has complete discretion to change a finding of guilt or modify a penalty, in certain cases, he must set forth grounds for his departure in a written memorandum. Currently, no written guidelines inform the Commissioner’s exercise of his discretion or set standards for his written explanations.

A.            The Commissioner’s Review and Evaluation of Disciplinary Decisions

Pursuant to § 434 of Chapter 18 of the City Charter, the New York City Police Commissioner has “cognizance and control of the . . . discipline of the department, and of the police force of the department.” Under § 14-115(a) of the City Administrative Code, the Commissioner “shall have power, in his or her discretion, on conviction by the commissioner, or by any court or officer of competent jurisdiction, of a member of the force of any criminal offense, or neglect of duty, violation of rules, or neglect or disobedience of orders, or absence without leave, or any conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming an officer, or any breach of discipline, to punish the offending party by reprimand, forfeiting and withholding pay for a specified time, suspension without pay during such suspension, or by dismissal from the force.” While the Commissioner has delegated to other bodies the responsibility of reviewing, investigating, and prosecuting complaints, as well as making disciplinary recommendations to him, he has retained complete power and discretion to modify disciplinary decisions and frequently does so.

B.             The Police Commissioner’s Case Review Procedures

The Commissioner reviews all disciplinary cases tried before DCT, as well as those that reached a pretrial resolution through settlement. Following the First Deputy Commissioner’s