The Rochester Police Accountability Board has released reports on all its completed investigations into Rochester police officer misconduct, against the advice of the city’s top lawyer.
The 31 heavily-redacted documents posted online Sunday afternoon do not include names of officers, alleged victims, nor PAB staff or board members.
The PAB sustained allegations of misconduct in 23 of those reports, and recommended discipline. The most common was misuse of body-worn cameras, appearing in nine of the reports. Other reports found misuse of force, racial bias, discourteous language, and falsifying reports.
The recommended punishments range from notes of apology to, in four cases, termination. The PAB does not have the authority to discipline RPD officers, only the police chief can do that.
While Chief David Smith has taken action based on some of the PAB’s reports, he has yet to follow the exact recommendations made by the board, according to the PAB.
“Transparency is a cornerstone goal of this agency,” said board chairman Larry Knox. “This best practice of putting these reports out, in a redacted form, increases our ability to meet that goal.”
The release of the files deviated from guidance offered by city Corporation Counsel Patrick Beath. For months, PAB Executive Director Lesli Myers-Small vowed in public news conferences and interviews to release the files. On Friday, Beath sent Myers-Small a strongly worded letter advising the PAB against releasing the documents.
The letter cited several reasons, including the city’s code of ethics and ongoing litigation. In December 2020, the New York Civil Liberties Union sued the city of Rochester for the release of all its police disciplinary files. The city maintains a Police Department database but only publishes reports when the department sustains misconduct allegations.
The NYCLU won its case, but the city has appealed.
“Whether the state of the law allows the publication of unsubstantiated internal investigation reports is the exact question before the court of appeals,” Beath wrote in the letter, obtained by WXXI News. “It is not the role of the PAB or the PAB’s outside counsel to prognosticate on what the court might do, particularly when the privacy interests of city employees hang in the balance.”
Beath’s letter also implied that if the PAB were to release the reports, that would open the board up for its own internal misconduct complaints to be publicized.
And he references the personal past of Myers-Small, who faced allegations of sexual misconduct while serving as superintendent of the Rochester City School District. An investigation commissioned by the district school board concluded she committed no wrongdoing.
“You yourself have been the subject of public release of allegations of wrongdoing that were ultimately determined to be inaccurate,” Beath wrote. “Once a report is published, even if redacted, it can take on a life of its own.”
Prior to the release of the reports, the PAB sought legal counsel from T. Andrew Brown, who served as the city’s top lawyer under former Mayor Lovely Warren and is past president of the New York State Bar Association. In a legal opinion, Brown advised the PAB that the release of the police disciplinary reports was legally sound.
“As with any other citizen, organization, or media outlet, PAB may report upon publicly available misconduct and disciplinary information it deems necessary to ensure public accountability and transparency,” Brown’s legal opinion reads.
It a statement Sunday evening, the city of Rochester described the publication of the reports as “dangerous” and revealing potentially identifying information on complaints which have not been sustained by the department’s internal investigations process.
While names are redacted in the reports, some officers are easily identifiable.
For example, one officer that was recommended for termination was cited for failing to get an interpreter for a deaf man who had been in a car accident. The man was only able to speak to an EMT on the scene, who knew some sign language. The PAB reported that the officer in that incident had multiple complaints against him.
WXXI News first reported on that incident, where the officer was identified as Mitchell Leach. The officer accrued four federal lawsuits against him in less than three years, including three for use of force and one for shooting and killing a dog. One case has since been dismissed.
The PAB recommended terminating an officer's employment in its report on a July 11, 2022, incident in which an RPD investigator shoved and handcuffed an EMT at Strong Memorial Hospital. The incident was heavily publicized and the officer, Charles LoTempio, has been on paid administrative leave since the altercation.
Geoff Wiater, president of the Rochester Police Locust Club, did not immediately return a request for comment. In a social media post, the police officers' union agreed with Beath and said it would take “necessary steps to protect our members’ rights.”
Ben Wittwer, deputy executive director of the PAB and the agency’s general counsel, stood by the legal soundness of the decision to release the documents.
“I don’t know what the Locust Club would be suing over,” Wittwer said. “New York City releases its civilian review reports, Albany releases its civilian review reports, there’s other entities in New York state that are doing this. Of course, other agencies have attempted to stop them, but the state of the law is clear.”
The rift between City Hall and the PAB is the latest in an ongoing debate over the agency’s scope of power. For example, Beath previously sided with District Attorney Sandra Doorley on the Police Department sharing information with the PAB. That guidance blocked the sharing of any departmental information which could relate to a criminal investigation, including through the court appeals process.
Given that decisions on officer discipline, by law, must be made within 18 months of an incident, that rule effectively blocks some cases from ever being investigated.
Voters overwhelmingly approved creating the PAB in 2019. It was tasked with making recommendations on Police Department policy, investigating claims of misconduct, and disciplining officers. State courts since stripped the PAB of disciplinary power. Its investigative reports and findings now go to the chief as advisory opinions.
Pastor Wanda Wilson is a leading member of the Police Accountability Board Alliance, a grassroots organization that advocated for the creation of the PAB. She said the city law department's positions are an attempt to strip what power the board has left.
“Members of the alliance have observed the obstructionist behavior of the office of the corporation counsel from the birth of the PAB in our city, such as refusing to answer subpoenas, refusing data access, refusing to respond to requests for information in a timely manner,” Wilson said, adding: “This board, this agency, this alliance wants better for the citizens of this community.”
The city’s response on Sunday read:
“It remains the City’s legal position that the Police Accountability Board, per its charter, does not have the authority to publish internal investigative reports, and that publication of such reports, redacted or otherwise, violates local law, the automatic stay of the Fourth Department’s decision in the NYCLU matter, and the City’s own Code of Ethics.
“The PAB’s charter clearly defines its ability to publish data on the receipt and disposition of complaints, and aggregated quarterly and annual reports setting forth that information. The information released on Sunday is neither of those things.
“The public release of allegations of wrongdoing that may be or have already been determined to be inaccurate is dangerous. Any attributions of an employee’s name to a report – whether that attribution is correct or incorrect – can have lasting impacts on that employee’s personal and professional lives.”
