occasion, the Commissioner contacts the officer’s commanding officer directly to obtain additional information.

2.              Informal Input Prior to Final Disposition

The Commissioner may sometimes receive or provide informal input concerning officer discipline, which can affect his final determination. For example, the Commissioner and members of his Office meet regularly with representatives from police unions. Those representatives may seek to discuss disciplinary cases and lobby on an officer’s behalf.[72] The Panel was also informed that the Commissioner on occasion has contacted DAO prior to receiving its recommendation to express his own initial thinking on the case. Because the Police Commissioner’s interim view is likely to align with his final determination, stakeholders expressed concern that DAO may recommend a disposition that does not reflect its own best judgment in such cases.

C.             In Certain Cases, the Police Commissioner Must Detail the Reasons for Imposing Penalties Inconsistent with the Recommendations He Receives

Under the Rules of the City of New York, for cases prosecuted by CCRB—whether tried before DCT or resolved by negotiated settlement—if the Commissioner intends to impose a penalty lower than that recommended by either CCRB or DCT, he must “include a detailed explanation of the reasons for deviating . . . including but not limited to each factor [he] considered in making his . . . decision.”[73] The memorandum is then sent to CCRB’s Executive Director and forwarded to DAO, the CCRB attorney, and the officer’s attorney; the memorandum is not separately sent to DCT. CCRB and the officer “may respond to such notification within five business days of its receipt, after which the Police Commissioner will make a final determination.”[74] Following the comment period, the Commissioner memorializes his final disposition in a letter sent to the First Deputy Commissioner’s Office, DCT, the CCRB attorney, and the officer’s attorney.

In DAO cases, the Commissioner is not required to prepare such a memorandum. By letter, however, he notifies DCT if he departs from the penalty that the DCT judge recommended. These letters are forwarded to the First Deputy Commissioner’s Office, DCT, DAO, and the officer’s attorney. For cases that are resolved through settlement (and do not originate from CCRB), the Commissioner is not required to prepare a memorandum if the ultimate disposition varies from the parties’ agreement because the penalty is not viewed as a

[72] Stakeholders with whom the Panel spoke have noted that this type of input is not unique to the Commissioner or his office and is common within the Department; union representatives have informal conversations with the First Deputy Commissioner or members of his staff, as well as DAO.

[73] Rules of the City of New York Civilian Complaint Review Board (38-A RCNY) § 1-45(g) (“In any case substantiated by the [CCRB] in which the Police Commissioner intends to impose discipline that is of a lower level than that recommended by the Board or by the Trial Commissioner, the Police Commissioner will notify the [CCRB] . . . . Such notification will be in writing and shall include a detailed explanation of the reasons for deviating from the Board’s, or, as the case may be, the Trial Commissioner’s recommendation, including but not limited to each factor the Police Commissioner considered in making his or her decision.”).

[74] Id.