Who’s responsible for bad cops?

Mayor Brown says changing police disciplinary procedures up to Council. Council demurs.

This article was originally published in Investigative Post. Read it here.

Mayor Byron Brown has said that he wants the police commissioner to have more power to discipline cops, but change is beyond his purview.

An arbitrator now decides discipline, although the city charter says that disciplinary authority rests with the police commissioner. Giving power to the commissioner, according to the mayor, is up to the Common Council.

“I don’t control the council, and if there was anything in this document that the council felt they could implement or wanted to implement they would and could do so,” the mayor recently testified when asked about a policy brief published by the Partnership for the Public Good, which cited the charter and court decisions in concluding that the commissioner, not an arbitrator, should have final disciplinary power.

The mayor’s testimony came during a deposition in a lawsuit filed by Black Love Resists in the Rust, which is suing the city over East Side traffic checkpoints.

No Common Council members interviewed by Investigative Post said they were prepared to push for the commissioner to replace an arbitrator in disciplinary matters.

Common Council President Chris Scanlon, who didn’t return two phone calls and an emailed interview request, wouldn’t talk after a Tuesday Finance Committee meeting.

“I have no comment,” said Scanlon, who was endorsed by the Buffalo Police Benevolent Association in last fall’s election.

Other council members said they’re not sure whether the charter trumps a collective bargaining agreement with the police union that gives an arbitrator final say in disciplinary matters.

“We have not been able to get the question answered by corporation counsel,” said University District Council Member Rasheed Wyatt, who has unsuccessfully pushed for a civilian oversight body with power to investigate misconduct allegations. “So, we don’t know. It’s a question floating in the air with no answers.”

If he had his way, Wyatt said, the commissioner would be responsible for discipline.

“Honestly, it should be in his hands,” Wyatt said. “He is the person that is the head of the police department, so he should be the one who should execute the discipline.”

North District Council Member Joseph Golombek said much the same thing.

“Honestly, I think the administration needs to be the supervisor, in a perfect world,” Golombek said. But he’s content to let lawyers litigate.

“I think that it’s going to be something that the lawyers are  going to be debating back and forth, and I’m supportive of that,” Golombek said. “It does seem odd that the administrations over the years would give up disciplinary action. It’s like a parent saying, ‘We’re not going to discipline our children.’”

Ellicott District Council Member Leah Halton-Pope, who joined the council in January, said she doesn’t have enough information to know what should be done.

“I don’t know any executive who shouldn’t have the ability to discipline their own staff,” Halton-Pope said. “However, I also cannot read every MOU [memorandum of understanding with the police union], and I have not been able to go all the way down to the very first contract ever done by the police. Until I can get a chance to read all of those, I don’t think I can have an intelligent conversation on that.”

Masten District Council Member Zeneta Everhart, who also joined the council in January, also said she doesn’t have sufficient information to say whether the commissioner or an arbitrator should decide discipline. She said she doesn’t have a gut feel.

“I don’t go off my gut,” Everhart said. “I go off the facts.”

Niagara District Council Member David Rivera, who chairs the council’s Police Oversight Committee, said he doesn’t know what problems might exist with current disciplinary procedures. The mayor, Rivera said, never has asked the council about giving the commissioner final disciplinary authority.

“He’s a strong mayor, based on the charter,” Rivera said. “He runs those departments. It’s up to him.”

Fillmore Councilmember Mitch Nowakowski, Delaware Councilmember Joel Feroleto and Lovejoy Councilmember Bryan Bollman did not respond to emails or messages left on their office and cell phones.

While the mayor says he’s powerless, even a lawyer for the city has said that the commissioner, not an arbitrator, should have final disciplinary authority, according to a story published last month by Investigative Post. Black Love also says that the commissioner, not an arbitrator, has power to discipline officers. Attorneys for Martin Gugino, who suffered a fractured skull after being pushed by police during a 2020 protest, say the same thing in an excessive force lawsuit that claims the city has failed to discipline officers.

Brown has said he’d like to give the commissioner more authority.

“We would certainly like to increase the ability of officers to be disciplined for misconduct by the police commissioner and the commissioner’s management, not just for misconduct as it relates to the potential of racial bias, but for a variety of other factors,” the mayor testified in November.

Melissa Wischerath, Gugino’s lawyer, said the commissioner already has all the power he needs.

“They’re intentionally violating the highest court of the state,” said Wischerath, pointing to a 2006 decision by the New York Court of Appeals, which ruled that an arbitrator can’t decide police discipline if a city charter gives that power to a commissioner. 

“They want to keep up the farce that they’re not able to discipline police. No one has to do anything. The police commissioner should start fulfilling his duty,” she said.