Jan 29
2024
Policing Buffalo’s police
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Buffalo Police Commissioner Joseph Gramaglia and Mayor Byron Brown testified last fall that the city’s contract with its police union and the power it bestows on an arbitrator make it too difficult to discipline cops accused of misconduct.
“I think any chief executive that’s running the department would like to have the managerial ability to run a department, but that’s not the contractual language that was laid out well before my time,” Gramaglia testified during a recent deposition in a police brutality lawsuit. “The arbitrator’s decision, the independent arbitrator’s decision and finding, is final in a disciplinary matter.”
Gramaglia and the mayor are wrong, however, according to police reform advocates and lawyers who point to court decisions and the city’s charter, which puts the commissioner in charge of discipline. Even a lawyer for the city has said that the commissioner, not an arbitrator, should have final disciplinary authority.
Martin Gugino, injured by police during a demonstration.
“They gave away something they didn’t have the power to give,” said Melissa Wischerath, an attorney who represents Martin Gugino, who suffered a fractured skull when police pushed him during a June 2020 demonstration in front of City Hall.
The state’s highest court three times since 2006 has ruled that disciplinary procedures aren’t controlled by union contracts, including in cities where charters assign authority to police commissioners.
In a 2021 policy brief, the Partnership for the Public Good, a local nonprofit organization, cited state Court of Appeals rulings and quoted Buffalo’s charter: “The commissioner of police shall be charged with the power and duty of governing and disciplining the department and the members of the police force and all subordinates and employees of the department.”
The city, the Partnership argued, had “an untapped power” to discipline officers outside boundaries of collective bargaining agreements.
Brown has rejected the Partnership’s position.
“Basically, we don’t agree with this policy brief,” the mayor testified during a November deposition in the Black Love Resists in the Rust lawsuit. “We don’t believe that the Partnership for the Public Good is correct.”
A nationwide challenge
Reform advocates have said that Buffalo needs to do a better job of disciplining bad cops.
“The city has chosen not to wield power that it could wield. The city’s failure to train and monitor and discipline its officers so as to prevent racial discrimination is a core part of our case,” Claudia Wilner, an attorney for Black Love Resists in the Rust, told Investigative Post.
The police department’s Internal Affairs Division rarely faults officers accused of misconduct. In 2017, Investigative Post found that Internal Affairs upheld charges against officers in just four of 62 investigations into excessive-force complaints filed between Jan. 1, 2014, and mid-September, 2016. (Investigative Post has requested more recent information from the city.)
Police are doing their best when it comes to discipline, according to the mayor.
“I believe that the police management is very aggressive about looking at these issues and, again, I think there are issues with collective bargaining and the contract that can make discipline in certain cases challenging,” Brown testified last fall.
Buffalo Mayor Byron Brown. Photo by Garrett Looker.
The challenge is nationwide, according to a 2020 study by Stephen Rushin, a Loyola University law professor, who examined 624 arbitration proceedings adjudicated between 2006 and 2020. More than half the time, arbitrators dismissed or reduced disciplinary actions by departments, according to the study. Nearly half of officers facing termination got their jobs back, often with back pay.
“These findings are consistent with prior examinations of arbitration outcomes of police disciplinary appeals,” Rushin wrote in his study published in the Vanderbilt Law Review.
The study included cases of cops whose terminations were overturned by arbitrators, including a Washington, D.C., officer convicted of sexually abusing someone in a patrol car, a San Antonio officer accused of giving a homeless person a sandwich stuffed with dog feces, and a Seattle cop who punched a handcuffed woman, fracturing her orbital socket, after, in an unrelated incident, releasing a domestic violence suspect who returned home and murdered his roommate after being released from the precinct.
New rules bargained
In Buffalo, the police commissioner’s power to decide discipline eroded in 1992, under then Mayor Anthony Masiello. Back then, the police union complained that the commissioner was rejecting more than half of hearing officers’ discipline recommendations. During contract negotiations, the union asked for binding arbitration in disciplinary matters.
The negotiations were settled by an arbitration panel. The panel wrote that the frequency of the commissioner rejecting discipline recommendations was “cause for concern.”
“Also cause for concern to the extent it occurs, is the fact that individuals plead guilty to charges of which they are innocent out of fear of more substantial penalty,” the arbitration panel wrote.
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The panel set new rules. If a commissioner rejected disciplinary recommendations from a hearing officer, the union could appeal to an arbitrator, who, based on a review of the hearing record, could overrule the commissioner, and the arbitrator’s decision would be final.
More than three decades later, an arbitrator holds hearings and decides discipline when the union and commissioner can’t agree on punishment. The procedure, in place pursuant to a 2014 agreement between the union and the city, gives Jeffrey Selchick, an Albany attorney who is a full-time arbitrator, authority to determine whether officers are guilty or innocent and what punishment, if any, they should receive.
The city charter wasn’t mentioned in either the 1992 panel decision or the 2014 agreement that puts Selchick in charge.
An arbitrator’s power to punish cops has long caused consternation.
During the 1990s, the International Association of Chiefs of Police twice issued reports recommending that collective bargaining agreements be amended to give management more authority over discipline and job assignments.
R. Gil Kerlikowske, Buffalo’s police commissioner from 1994 to 1998, said the city charter never came up during discussions about discipline.
“It was always about the collective bargaining agreement and what could be done through the collective bargaining agreement,” Kerlikowske said. “You’d want the chief to have authority.”
Court decisions
The state’s highest court has ruled at least three times that power to discipline rests with public officials, not arbitrators picked pursuant to union contracts:
- In 2006, the state Court of Appeals rejected police union arguments that disciplinary procedures should be decided by collective bargaining in New York City, where the charter states: “The [police] commissioner shall have cognizance and control of the government, administration, disposition and discipline of the department, and of the police force of the department.” The charter, the court ruled, trumps state law that gives collective bargaining rights to public employees.
- In 2012, the Court of Appeals ruled that town officials, not an arbitrator, should control police discipline in the town of Wallkill, about 80 miles north of New York City. The town doesn’t have a charter, but a statewide law that gives town officials power to pass laws spelling out disciplinary procedures negated a union contract, the court ruled.
- Citing its decisions in Wallkill and New York City, the Court of Appeals in 2017 ruled that a 1906 state law that gives police commissioners power to discipline in cities with between 50,000 and 250,000 residents precluded an arbitrator from handling discipline in Schenectady.
More recently, the Court of Appeals in November rejected an attempt by Rochester to give a civilian board power to discipline police.
That would have been possible, the court decided, if Rochester in 1985 hadn’t repealed a section of its charter that gave city officials the power to discipline officers. Absent the charter provision, disciplinary procedures are subject to union negotiations under state law that gives public employees collective bargaining rights, the court ruled.
The Rochester decision, even though it made discipline subject to collective bargaining, underscores the power of city charters to decide how police officers will be disciplined, according to Wischerath, Gugino’s lawyer.
During his deposition, the mayor testified that he’d seen the 2021 analysis from the Partnership for the Public Good that concluded the power to discipline rests solely with the commissioner. In rejecting the Partnerhip’s analysis, Brown testified that he’d discussed the document with the city’s law department, Common Council members and police brass.
Even so, Brown testified that the commissioner should have more power, but that’s not possible under state and federal law.
“There are basic common sense things that the police commissioner and police management should be allowed to do in the way of discipline that laws do not allow, period, plain and simple,” the mayor testified.
The union contract, Brown testified, can also make discipline “challenging.”
“Isn’t it the case that the city has entered into an agreement voluntarily that has weakened oversight of the BPD?” asked Chinyere Ezie, attorney for Black Love Resists in the Rust.
“Absolutely not,” Brown answered. “One hundred percent not.”
Neither Brown, Gramaglia or John Evans, president of the Buffalo Police Benevolent Association, responded to requests for comment from Investigative Post.
‘They’re wrong’
Wilner, attorney for Black Love Resists in the Rust, said the group has asked past and present commissioners, including Gramaglia and former commissioner Byron Lockwood, about charter provisions.
“They all take the same position as the union: The union contract supersedes the city charter,” Wilner said. “But they’re wrong.”
At least one lawyer for the city has agreed that the police commissioner, not an arbitrator, has final authority to decide discipline.
“It’s your job to make a record and a recommendation to the commissioner which he can ultimately accept or not accept,” Sean Beiter, an attorney hired by the city, told Selchick in 2021, when a union lawyer asked the arbitrator to dismiss charges against two officers charged with excessive force for pushing Gugino.
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Selchick, the arbitrator who cleared officers Robert McCabe and Aaron Torgalski in the incident, disagreed.
“I think that pursuant to the disciplinary … agreement that’s in effect between the city and the PBA that my decision in this matter is not a recommendation but is in fact a final and binding determination,” said Selchick.
Selchick has been paid nearly $300,000 since 2021 by the city, which splits costs equally with the union under terms of the 2014 agreement designating him arbitrator.
Lee Adler, an attorney and lecturer at the School of Industrial and Labor Relations at Cornell University, said he believes the commissioner has final disciplinary authority, given Buffalo’s charter and the 2006 Court of Appeals decision that said New York City’s charter, not a union contract, decides who controls discipline.
“If the 1949 city charter places the police chief in charge of disciplining the police force in the city of Buffalo, and that hasn’t been amended, then it seems to me the New York City case decided by the Court of Appeals applies to Buffalo, and would mean that the city of Buffalo would not have to negotiate with its police officers about discipline,” said Adler, who has represented teachers, coal miners and firefighters in labor disputes.
Commissioner Joseph Gramaglia, right, speaks with Common Council Member David Rivera. Photo by Bruce Rushton.
But Gramaglia insisted during last fall’s deposition that he’s powerless.
“I’d probably bankrupt the citizens of the city of Buffalo if I tried to negotiate some of my rights back,” Gramaglia testified.
On Dec. 20, the mayor and the police union president signed a collective bargaining agreement that’s now before the Common Council for approval. The deal, already ratified by rank-and-file officers, would run through July 2025, and keeps current disciplinary procedures intact.
