E.             The Police Commissioner’s Change of Penalty Letters Do Not Provide Meaningful Explanations for Departing from the Recommended Outcome[76]

In cases prosecuted by DAO, the Commissioner’s “change of penalty notification letters” do not set forth the basis for his imposition of a different penalty from that recommended to him. Rather, the letter merely notifies the recipient that, based on his review of the record, the Commissioner has determined that a different penalty is appropriate. The letters that the Panel reviewed cited only “the totality of the issues and circumstances,” or generally indicated that the Commissioner believed the officer did not act in bad faith. The files reviewed by the Panel included cases in which the Commissioner reduced the number of vacation days forfeited, or converted a penalty of dismissal to one of voluntary retirement from the Department.

Notably, the variance memoranda prepared by the Police Commissioner’s Office in CCRB cases typically include greater detail than the Commissioner’s penalty notification letters. In the memoranda, the Commissioner may make reference to specific factors, such as the officer’s disciplinary record, performance evaluations, number of arrests, number of prior complaints, and additional contemporaneous documentation of the incident. By contrast, the Commissioner’s change of penalty letters in those same cases—as in the change of penalty letters for DAO cases—do not provide this level of detail. It is important to note that the memoranda prepared pursuant to the rules governing CCRB cases are circulated to CCRB, DAO, and the attorneys; they are not separately shared with DCT. Therefore, even in those cases that originate out of CCRB, the existence of a more detailed memorandum does not cure the deficiencies of the Commissioner’s change of penalty letter since it is not shared with all the parties involved in the process.

F.             The Absence of Information in Change of Penalty Letters Has the Potential to Adversely Impact the Disciplinary Process

The Panel recognizes that the purpose of the change of penalty letters is to notify others of the change, and not to provide a full explanation of the Commissioner’s rationale. Nevertheless, more detailed explanations would improve the process. Because the letters do not cite precedent or distinguish among cases, they are of limited usefulness to others involved in the disciplinary process. CCRB, DAO, and DCT trial judges, all of whom base their penalty recommendations on precedent, would benefit from a better understanding of the Commissioner’s rationale.

More importantly, the absence of explanation for the Commissioner’s departures may undermine the legitimacy of the trial process. Because the Commissioner can overturn a finding of guilt, a cursory explanation for his decision undercuts the significance of the robust and intensive trial process. DCT conducts thorough trials, which include, in most cases, extensive witness testimony. At the trial’s conclusion, the DCT judge generally issues a detailed, reasoned opinion, setting forth his or her factual findings and conclusions. The Commissioner’s unilateral

[76] The case summaries that follow are at a high level and do not cite specific language from the variance memoranda, per the restrictions of Civil Rights Law § 50–a and the temporary restraining order issued in Patrolmen’s Benevolent Assoc. v. de Blasio, No. 153231/2018, slip op. 32839 (N.Y. Sup. Ct. Apr. 11, 2018).