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City further undercuts police oversight board on advice from Doorley

A poster hangs in the window of the PAB offices in the Seneca Building.
Max Schulte
A poster hangs in the window of the Police Accountability Board offices at the Seneca Building on East Main Street.

On the morning of Oct. 3, 2023, 79-year-old William Mills was driving on Waring Road on the eastern edge of Rochester, when his vehicle was struck by a speeding car.

The crash destroyed his front driver’s side wheel, leaving his Subaru sedan undrivable.

Officers with the Rochester Police Department arrived on the scene to take the report. But Mills, who is deaf, was left out of most of the conversation about what happened. Officers allegedly refused to provide him an American Sign Language interpreter, instead offering to pass written notes back and forth. When Mills declined to do that, he said he was ignored.

WATCH: Police body worn camera video shows officer's interactions after Mills crash.

“Both of the police officers said, ‘No, we don’t have time to call a sign language interpreter, we don’t have time to wait for them to show up,’” Mills said, through an interpreter. “One of the officers spent quite a lot of time with the other person who was driving, while I was just standing around, feeling very isolated, and not sure what was going on.”

In the police report, Officer Mitchell Leach wrote that Mills was “unable to be spoken to because he was deaf.”

The Americans with Disabilities Act states that interpretive services should be provided — if requested, and at an agency’s expense — so long as it does not cause an undue burden.

Mills complained to the department. But Police Chief David Smith exonerated Leach of any wrongdoing after an investigation by the department’s Professional Standards Section. Now, the issue is up to the Rochester Police Accountability Board to investigate.

Mills’ story seems tailored to the PAB’s mission. It alleges misconduct by an officer repeatedly accused of it—Leachhas had four federal complaints opened against him in the past three years, one of which has since been dismissed—and there is a clear policy issue at hand to investigate.

But newly cemented city policies make it unclear what the PAB is even capable of doing. The administration has taken a position which has further eroded the agency’s purpose and has largely nullified its ability to perform many of its city charter-granted functions.

Rochester voters overwhelmingly approved the PAB in 2019 with the intent of independently investigating complaints of police misconduct. It was seen as a more robust replacement to the Civilian Review Board, a board whose powers were limited to only reviewing completed internal investigations done by the department.

After a slow rollout, investigations began in earnest last year.

But the board’s power have been gradually picked away. Its authority to compel discipline on officers, for example, was stripped by state courts.

For months, PAB staff, city officials, and law enforcement officials have debated how the department will share information with the PAB, and what is off limits. Now, with new guidance from District Attorney Sandra Doorley and instructions given to the PAB by the city’s top lawyer, Patrick Beath, the limitations have become even more stringent.

The PAB is blocked from interviewing officers during an internal investigation and from accessing any police information related to a criminal investigation.

The city law department said that interviews with officers could violate the city’s collective bargaining agreement with the Rochester Police Locust Club. Doorley has taken the position that providing PAB with information related to criminal investigations could jeopardize prosecutions.

Murky access and differing agreements

From its inception, the Police Accountability Board was meant to have access to Police Department documents, body-worn camera footage, and other relevant information, either by way of good-will exchanges or by subpoena power granted to the board. That power is outlined in the city charter.

“The RPD and the City shall provide to the Board, as requested: access to all documents and evidence,” the charter reads.

But that exchange hasn’t always played out.

Elizabeth Beltran formerly served as the PAB’s director of investigations. She left the organization in March, largely because she was frustrated over the lack of access to needed information.

She pointed to one instance in which the department declined to provide information related to allegations that Officer Shawn Jordan had exposed himself to a minor. Jordan was later fired from the department and several months later he was found guilty of raping a 13-year-old girl.

“The PAB staff is dedicated to transparency, and that involves airing dirty laundry,” Beltran said in an interview shortly after her departure. “The only way to get it clean is to let the light in, and RPD takes an opposite approach.”

Beltran had put much of the blame for the PAB's lack of access to information on Beath, who took over the role of corporation counsel in January, and the Police Department’s union, the Rochester Police Locust Club.

“There’s certain things they don’t want the PAB to do, one of which is interviewing officers,” Beltran said. “Another is access to any criminal reports or criminal case.”

Those positions had long been debated among the city Law Department, the Locust Club, and the Police Department, all of which shared concerns over criminal prosecutions and violating the city’s collective bargaining agreement with the union.

But they were hammered in place recently through a series of letters from Beath and Doorley.

The letters, obtained by WXXI News via a Freedom of Information Law request, outline a position that places strict limitations on the PAB’s access to department information. Doorley, in an April 16 letter, wrote that the District Attorney’s Office “would not consent” to releasing any information related to active criminal cases, whether it pertains to an alleged victim of police misconduct, or an officer.

District Attorney Sandra Doorley has advised the city of Rochester to not provide any information to the Police Accountability Board which could relate to a criminal investigation. That move effectively cripples the agency's investigations.
Ryan Williamson
District Attorney Sandra Doorley has advised the city of Rochester to not provide any information to the Police Accountability Board which could relate to a criminal investigation. That move effectively cripples the agency's investigations.

The letter goes on to state that an “active criminal case or investigation” does not end with a guilty verdict or plea, but includes any post-conviction litigation, including appeals. That means the PAB could be blocked from reviewing information for months, or in some cases years, after a conviction is made.

The Locust Club’s agreement with the city sets a statute of limitations of 18 months from the incident for an officer to be charged with misconduct. That stipulation is also mirrored in state public service law, and includes a caveat for cases where criminal offenses are determined.

Likewise, any information related to a criminal matter gathered by the PAB would need to be reported to the District Attorney’s office.

Ben Wittwer joined the PAB in March as deputy executive director. He sees the tack the department, city attorneys, and the DA’s office has taken as picking and choosing which cases to provide information on.

“Simply, it allows the Police Department and corporation counsel to decide for the PAB which allegations of misconduct it is allowed to investigate, that is what it does,” Wittwer said.

“And it is not coincidental, in my opinion, that the allegations of police misconduct that are perhaps the most public, that have been reported on by the media or may have caused outcry throughout the community, those are the very investigations we are not receiving information on,” he continued.

For example, one case in which the PAB claims it was denied access to information was the March 2023 fatal police shooting of Brendon Burns. Edited body-worn camera footage had been provided to media and the public within weeks of the shooting. The PAB alleged it has still not received all unedited video from the incident.

Following this story's publication, the city of Rochester countered the PAB's claim that it denied access to the footage in that incident. A spokesperson for the city said it provided the PAB all of the department's footage, unedited, from 18 officers that responded to the scene.

“We have cases where we’re on the fourth or fifth refusal from RPD,” Wittwer said. “Each one of those back-and-forths is this multi-pronged process where it’s all being vetted by corporation counsel. So, it’s a slow negotiation in a lot of cases.”

Ten days after Doorley penned her letter, Smith, the police chief, sent an email to PAB interim-Executive Director Sherry Walker-Cowart, affirming the department’s position that it would not share any information that could relate to a criminal matter.

“Maintaining a strong partnership with the District Attorney’s Office is crucial to public safety in this city,” Smith wrote. “And it is paramount that we safeguard the integrity of criminal investigations to the fullest extent possible in order to facilitate successful prosecution.”

The agreement between Doorley and city and police leadership is not legally binding, but rather it is informal guidance. Wittwer said prior to the letters, information was shared by the department relating to active criminal investigations.

“These problems were going on before, but we moved backwards a little bit with the letter, because then it really enunciated a blanket ban,” Wittwer said.

Ben Wittwer, deputy executive director of the Rochester Police Accountability Board, at the PAB office.
Max Schulte
Ben Wittwer, deputy executive director of the Rochester Police Accountability Board, at the PAB office.

The spirit of police accountability

For the people who had worked to build the PAB, 2019 was a victory. What has come since has been a whittling away of the original vision.

Ted Forsyth was a prominent member of the Police Accountability Board Alliance, the advocacy group that had pushed to have the board established. He said the policies surrounding the board now are hobbling it.

“It’s an erosion of what the original spirit of this was,” Forsyth said. “Which was to give civilians, citizens, the ability to investigate these kinds of claims immediately, not to wait for (RPD’s Professional Standards Section) to complete its process and hand it off.”

The Police Accountability Board was formed as a replacement for the Civilian Review Board. That organization reviewed internal investigations of alleged misconduct after the fact and provided its own disciplinary recommendations, which were routinely disregarded.

That organization did not have the ability to perform independent investigations of alleged misconduct, like the PAB does. Or is supposed to.

“The old saying is justice delayed is justice denied,” Forsyth said. “It’s just a way to draw out and zap momentum from the spirit and powers of the board.”

Members of the Police Accountability Board Alliance and organizers with Free the People Roc gather Monday in front of City Hall to speak out against the proposal.
Gino Fanelli
A long-time demand of activists, the PAB was overwhelmingly approved by voters in a 2019 referendum. But its implementation has been troubled, and the latest guidance has removed some of the key goals of the agency.

The agency, staffed by 31 full-time employees on top of the nine volunteer board positions, today functionally serves as an advisory body, offering disciplinary and policy recommendations to the chief based on its investigations.

Even before the letters from Smith and Doorley, PAB staff and board members had complained of difficulty in accessing information from the Police Department. For example, in February the agency released a report on department use of force against juveniles. The report looked at 318 incidents. The department provided body-worn camera footage for two of those cases.

“PAB faced barriers caused by lack of access to information and data as RPD and the city of Rochester law department determined what could and could not be turned over,” the report reads.

The issue was the subject of a City Hall meeting last week involving Mayor Malik Evans, Beath and members of City Council, the Police Department, and the PAB.

Councilmember Michael Patterson said if the PAB is restricted in its ability to evaluate information, then it will be impotent.

“They can’t do anything,” Patterson said, in a back-and-forth with Beath. “If the evaluative element doesn’t exist, then you have nothing. That’s the fundamental premise of the whole thing.”

Of the roughly 200 cases the PAB has examined, it determined an officer committed some form of misconduct in 11. Due to the ongoing legal debate at City Hall, none of those determinations have been made public. Who those officers are, and what they did, is known only to the alleged victims, the PAB, and the department.

The PAB reported it had 122 cases with outstanding information requests. The police department said there are seven.

In total, the city said it has provided 14,000 documents to the PAB across 200 misconduct investigations.

In a statement provided to WXXI News, the city stood by the decision to limit the information accessible by the PAB.

“Sharing information from pending criminal investigations or prosecutions with the PAB runs the risk of PAB sharing sensitive information with witnesses during its own investigation, potentially tainting a criminal proceeding, jeopardizing the safety of witnesses of the criminal action, or even revealing information subject to a court’s protective order,” the statement reads.

Ultimately, the PAB was created as a check on the Police Department, meant to ensure the city’s most vulnerable had a voice. It was designed to analyze the practices of the department and, in practice, work alongside the RPD to foster transparency and accountability. But years of cuts and blows to the agency’s powers have left it all but impotent.

Much like what Mills, the deaf driver, himself experienced, the PAB is unable to talk to the officers involved. And even if a determination of misconduct is made, it’s unclear whether the city will allow the board to talk about its findings.

Mills, who also is considering suing the department, is hopeful some good still might come of his case.

“I hope that there is some kind of improvement in the services the department provides to the citizens of Rochester that are deaf,” Mills said. “I want the Police Department to be aware that deaf people have the right to communication access.”

This story is reported from WXXI’s Inclusion Desk.

Corrected: May 23, 2024 at 11:29 AM EDT
This story has been updated to reflect that one of the four complaints against Mitchell Leach has since been dismissed.
Gino Fanelli is an investigative reporter who also covers City Hall. He joined the staff in 2019 by way of the Rochester Business Journal, and formerly served as a watchdog reporter for Gannett in Maryland and a stringer for the Associated Press.