Several members of a board that probes NYPD misconduct regularly overturn their own staff’s investigative findings that wrongdoing occurred — helping to clear cops in hundreds of cases in recent years, an internal analysis obtained by THE CITY shows.
The process, known as “flipping” cases in Civilian Complaint Review Board parlance, represents a little-known layer in the lengthy police disciplinary process that has contributed to a wider reduction in officers facing punishment for misconduct.
The CCRB analysis found that the 15-member board’s rotating three-person panels overturned 585 allegations of police misconduct that had been substantiated by the board’s investigators from January 2014 to May 2020 — for a flip rate of 11.4%. The board substantiated 5,127 allegations of misconduct over that time period, according to the analysis.
Over the same years, the panels voted to substantiate 180 allegations of misconduct in cases where investigators were unable to confirm wrongdoing — out of nearly 39,000 unsubstantiated findings — a flip rate of .5%.
The analysis found a significant disparity in the voting records among five of the 10 members whose tenures overlapped with the years examined.
“Certain board members are much more likely to vote against an investigator substantiation, and certain combinations of board members are more likely to flip allegations than average,” reads the July 23, 2020, analysis by Nicole Napolitano, then the CCRB’s director of policy and advocacy.
She was among four senior CCRB officials who were fired in November — and who in January filed a lawsuit against the agency claiming they were retaliated against for repeatedly raising concerns on matters of policy and practice.
Napolitano declined to comment.
Year of Unrest
The analysis was conducted at a tumultuous time for police accountability — following the killing of George Floyd in Minneapolis in May 2020 and the subsequent nationwide protests calling for legitimate police reform.
More recently, some advocates and elected officials have pushed for the CCRB to be given more than an advisory say over final police disciplinary outcomes, a power that resides solely with the NYPD commissioner.
The members of the Civilian Complaint Review Board are appointed to three-year terms by the mayor, City Council, police commissioner, and — starting last year, for one member— the public advocate. They’re paid about $50 per hour but typically have full-time employment elsewhere.
Its three-member panels vote on whether to confirm or refute the findings of the agency’s roughly 100 investigators, supervisors and managers, and to recommend what level of discipline should be imposed by the NYPD.
One police commissioner rep is assigned to every three-person panel. It takes at least two votes to make a determination, and some CCRB observers note that the police commissioner representatives are the only person with law enforcement experience on a given panel.
The board investigates civilian complaints of use of force, abuse of authority, discourtesy and offensive language by police personnel — and was recently granted the power to investigate allegations of sexual misconduct and false official statements.
The investigators take months to produce one of four findings as recommendations to the board: the behavior occurred and constitutes misconduct (substantiated), it’s not clear what happened (unsubstantiated), the allegation occurred but isn’t a violation (exonerated) or there’s proof that the conduct didn’t occur (unfounded).
Among current appointees to the board, two reps appointed by the police commissioner — ex-cops Salvatore Carcaterra and Frank Dwyer — voted to reverse CCRB investigator findings of misconduct in 55% and 43% of the substantiated allegations they each reviewed between 2016 and mid-2020, respectively.
A recent mayoral appointee to the board, former Association for a Better New York President Angela Pinsky, voted to overturn 27% of substantiated allegations she reviewed in the six-month period following her appointment in December 2019, according to the analysis.
From 2014 to mid-2020, the CCRB overall substantiated between 10% and 15% of the complaints filed against police personnel by civilians, the internal memo found.
Dan Bodah, a former investigator and special assistant at the CCRB from 2000 to 2007, said the reversal rate by the police commissioner appointees should be examined.
“The rate at which Carcaterra and Dwyer are flipping cases — hovering around half of all complaints — puts the burden on them to justify themselves,” said Bodah, now a doctoral student at CUNY’s John Jay College of Criminal Justice. “They are former cops disagreeing with experienced professional staff about half the time, clear outliers among board members.”
Bodah noted that there are at least three layers of review between the investigators and the board panel, including by supervisors with years of experience.
“The vast majority of the flips soften outcomes. Considering that investigators already err on the side of caution, I find it troubling that the board is flipping 10% or more of outcomes,” he said. “Simple math suggests the extremely high rates of a few board members have to be driving the overall flip rate up.”
Dwyer, who was appointed in May 2016, couldn’t be reached for comment. Pinsky, whom a CCRB spokesperson said resigned from the board on April 20, didn’t respond to a message seeking comment.
Carcaterra, a retired NYPD deputy inspector appointed to the board by then-Police Commissioner Bill Bratton in June 2015, referred questions to the CCRB’s press office while standing by his votes.
“I’ve been there for a bunch of years and I could defend any one of my decisions I made,” he told THE CITY.
Of the seven additional board members whose votes were analyzed, two — mayoral representative John Siegal and City Council Bronx rep Michael Rivadeneyra — flipped roughly 15% of the substantiated allegations they reviewed. Rivadeneyra didn’t respond to a request for comment and Siegal said he’s never seen data on the flip rates.
Five members had rates between 0.6% and 8%. Among them: CCRB Chair Fred Davie, who was appointed in 2018 and flipped 4.5% of substantiated allegations, the analysis found.
‘No Action Was Taken’
Asked about the memo, CCRB officials provided their own analysis to THE CITY that showed flips in both directions hadn’t topped 2% of the board’s overall votes in recent years.
Their data showed a slightly lower flip rate away from substantiated allegations by the panels of 10% from 2016 through this year.
“As the data shows, the Board concurs with investigator substantiations in 90% of allegations — a rate that has remained consistent for the same years covered by the memo,” said Ethan Teicher, a CCRB spokesperson. “No action was taken as the memo provided no insight the Board was not already aware of.”
Former CCRB Chair Richard Emery said it wasn’t fair to judge individual members on their voting records absent the specifics of each case and of the reasoning behind the reversals.
But he said the flip-rate issue was an important one for the CCRB to consider.
“It’s certainly worth investigating further and of course the CCRB should be looking at its own functions very critically and continuously,” said Emery, a founding partner at the law firm Emery Celli Brinckerhoff Abady Ward & Maazel LLP, who resigned as CCRB chair in April 2016.
Maya Wiley, a candidate for mayor and former CCRB chair from August 2016 to August 2017, did not respond to requests for comment through a campaign spokesperson.
Under the Microscope
Amid the vocal push for police reform that galvanized last year, police accountability and the CCRB’s work came under increased scrutiny.
In June, state officials repealed a law known as 50-a that for years had shielded police disciplinary outcomes from the public.
In November, The New York Times released an analysis showing that the NYPD commissioner over decades downgraded the CCRB’s recommended discipline for officers found to have committed the most serious misconduct in 71% of the cases.
In January, THE CITY and ProPublica reported that the CCRB itself has often sought relatively light punishment — including the loss of 10 or fewer vacation days — for officers the agency’s investigators confirmed had used chokeholds on civilians. The move has long been prohibited by the NYPD patrol guide.
At the time of the four terminations in November, Davie, the board chair, told The New York Times the action was part of a restructuring intended to free up salaries at the administrative level in order to bring on about 20 new investigators.
The lawsuit filed two months later says the foursome bucked against a perceived deference by the CCRB to the NYPD on issues that included access to body-worn camera footage, and suggests Napolitano’s July 2020 memo wasn’t well-received by higher ups.
Her analysis — which also found that which of two CCRB lawyers was in the room with the panels significantly impacted their voting — recommended the issue be further studied and addressed by the board.
One suggestion called for allowing for direct communication between investigative team members and board members when there are discrepancies or questions ahead of the panel votes — something Emery said he encouraged under his watch.
But the lawsuit says CCRB counsel Matt Kadushin criticized Napolitano for memorializing the issue in writing, and allegedly telling her, “Nobody told you to write that memo.”
Teicher, the CCRB spokesperson, declined to comment on the claim, citing the litigation.
‘Depriving a Victim of Justice’
Among the concerns raised by former CCRB staffers familiar with the process for flipping cases is the reasoning behind a number of the outcome reversals.
In an email dated Oct. 31, 2019, obtained by THE CITY, CCRB Executive Director Jonathan Darche suggested that a certain case may have been flipped away from substantiated as “part of [a] plan to obtain Frank’s acquiescence to other votes.”
The note, a source familiar with the email said, refers to Frank Dwyer, one of the police commissioner appointees.
That complaint dealt with an officer’s refusal to show a search warrant before entering a residence. Teicher declined to comment on the email because it constituted internal deliberations.
Another factor that can tip the scales, former staffers say, is that the police commissioner appointee who sits on each panel is typically authoritative and knowledgeable — and only needs to convince one additional board member to reverse a substantiated finding.
“It’s pretty unusual for something to get to the board that wasn’t vetted seriously. So some number of those [flips] were depriving a victim of justice,” said Janos Marton, a former policy counsel for the board.
He agreed with the memo’s recommendation calling for greater dialogue between board members and senior investigative personnel.
“It is policy making at the end of the day, and having senior staff involved would mean the CCRB would be more internally consistent and have less flips,” said Marton.
Teicher noted that board appointees without prior criminal justice experience bring a range of other valuable experience with them.
“The panels issue recommendations based on majority vote,” said Teicher. “No one board member has more influence than their colleagues, and recommendations are made following a deliberative process about the law, the patrol guide, and the investigative team’s work product — which is ultimately not a final agency determination.”
In last week’s $98.6 billion executive budget, Mayor Bill de Blasio proposed adding $3 million per year to the CCRB to bolster its work toward police reform.
At the same time, the mayor has allowed one of his five CCRB board positions to remain vacant since May 2020. The City Council has left one of its five slots vacant since January 2020.
City Hall officials said they’ve been working to fill the post amid the challenges of the COVID-19 pandemic.