a. Definitions. As used in this section, the following terms have the following meanings:
Act of bias. The term "act of bias" means an act stemming from a specific incident:
(i) that is motivated by or based on animus against any person on the basis of race, ethnicity, religion, gender, sexual orientation or disability, and
(ii) that the board is empowered to investigate pursuant to paragraph 1 of subdivision c of section 440.
Board. The term "board" means the civilian complaint review board.
Covered entity. The term "covered entity" means the police department, the board, the commission on human rights, the department of investigation, a court of competent jurisdiction or any other officer or body designated by the board.
b. 1. The board: (i) shall conduct an investigation of past conduct in the course of performance of official duties by a current or former member of the police department whom a covered entity has found, in a final determination reached after such member was afforded an opportunity to respond to the relevant allegations, to have engaged in a severe act of bias, regardless of whether such member was on or off duty when engaging in such act, if the date that such investigation commences would be less than five years after such final determination was made; and (ii) may conduct an investigation of past conduct in the course of performance of official duties by a current or former member of the police department whom a covered entity has found, in a final determination reached after such member was afforded an opportunity to respond to the relevant allegations, to have engaged in an act of bias other than a severe act of bias, regardless of whether such member was on or off duty when engaging in such act, if the date that such investigation commences would be less than five years after such final determination was made.
2. For the purposes of initiating such investigations, the board shall define what constitutes a severe act of bias and, in consultation with each covered entity, what constitutes a covered entity's final determination that such a member engaged in an act of bias or severe act of bias, provided that off-duty conduct may be the basis for initiating such investigation only if (i) such conduct could have resulted in removal or discipline by the police department, (ii) the board reasonably believes such conduct has had or could have had a disruptive effect on the mission of the police department, and (iii) the police department's interest in preventing actual or potential disruption outweighs the member's speech interest.
3. Within 10 days after making or changing a definition made pursuant to paragraph 2 of this subdivision, the board shall communicate such definition or change to each covered entity and shall make such definition or change publicly available online.
4. If a covered entity that is an agency makes a final determination that such a member engaged in an act of bias or a severe act of bias, such covered entity shall promptly provide notice to the board in a time, form and manner designated by the board in consultation with such covered entity.
5. Within 120 days after the effective date of sections one through four of the local law that added this section, each covered entity that is an agency shall, to the extent practicable, provide the board with a written list of such members whom such covered entity has finally determined to have engaged in an act of bias or severe act of bias before such effective date and on or after January 1, 2016; provided that such list shall be provided in a form and manner, and shall include such additional information, as the board may require in consultation with such covered entity.
6. At least once every 4 months after the effective date of sections one through four of the local law that added this section, the board shall request from each covered entity that is not an agency, except a court with jurisdiction within the state of New York, information about final determinations made by such entity that such a member engaged in an act of bias or severe act of bias, including final determinations made on or after January 1, 2016.
7. The board shall consult with the law department to obtain information about final determinations by a covered entity that is a court with jurisdiction within the state of New York that such a member has engaged in an act of bias or severe act of bias, including final determinations made on or after January 1, 2016.
c. The board shall determine the scope of past conduct in the course of performance of official duties by such member to investigate based on the member's professional rank and assigned roles and the nature of the member's act of bias. The board shall investigate all or a representative sampling of such member's past conduct within such scope beginning from the date of hire by the police department until and including, for a former member of the police department, the last day of employment by the police department, or, for a current member of the police department, the date of initiation of an investigation pursuant to this section.
d. 1. Within 10 days after the board initiates such investigation, the board shall provide written notice to the member being investigated and to the relevant covered entity.
2. Within 10 days after the completion of such investigation, the board shall provide a written statement of final determination to the member being investigated. Such statement shall include (i) the investigation's details, when it was initiated and concluded, the identity of its subject and a summary of the materials reviewed by the board during the investigation; (ii) the board's investigative findings, including the identification of any threat to the safety of an individual or the public and whether the board found evidence of any additional past acts of bias committed in the course of performance of official duties; (iii) if applicable, any recommendations of the board for remedial action, including training, discipline, where consistent with section 75 of the civil service law, or both; and (iv) if applicable, a statement that the board has determined to terminate the investigation and an explanation why.
3. The board shall provide an opportunity for the member being investigated to answer in writing, within a time period established by rule, any findings or recommendations made by the board. If such member timely submits such an answer, the board shall consider it and determine whether to revise any such findings or recommendations in response.
4. Within 10 days after finalizing the written statement of final determination pursuant to paragraphs 2 and 3 of this subdivision, the board shall submit such written statement to the police commissioner, any other parties to whom notice was sent pursuant to paragraph 1 of this subdivision and any other appropriate agency or official as determined by the board. Within 120 days after receiving such written statement, the police commissioner shall report to the board in writing on any action taken or planned to be taken in response, including the level of discipline and any penalty imposed or to be imposed upon such member, as well as any other remedial action. If such action taken or planned to be taken differs from that recommended by the board, the police commissioner shall provide in such written report a detailed explanation for deviating from the board's recommendations and an explanation of how the final disciplinary or remedial decision was determined, including each factor the police commissioner considered in making such decision. If the police commissioner takes action in response to such written statement of final determination after such 120-day period, the police commissioner shall provide an updated version of such written report to the board within 30 days after taking such action.
e. 1. The board may, subject to any conditions it deems appropriate, delegate to and revoke from its chair or executive director any responsibility or authority assigned by this section to the board.
2. The board may, subject to any conditions it deems appropriate, designate a third party to assist with any investigation conducted under this section. Any such third party shall keep confidential and is prohibited from disclosing except to the board any information it obtains in the course of such investigation, except as otherwise required by law.
f. The board shall, in accordance with subdivisions b, c and d of this section, promulgate rules that further prescribe the manner in which the board is to conduct investigations, present findings, make recommendations, provide notice and provide an opportunity for the member being investigated to be heard.
g. This section shall not be construed to limit or impair the police commissioner's authority to discipline members of the police department at any time. Nor shall this section be construed to limit the rights of members of the department with respect to disciplinary action, including but not limited to the right to notice and a hearing, which may be established by any provision of law or otherwise.
h. This section shall not be construed to prevent or hinder any investigation or prosecution undertaken by any covered entity.
(L.L. 2021/047, 4/25/2021, eff. 1/20/2022)
Editor's note: For related unconsolidated provisions, see Administrative Code Appendix A at L.L. 2021/047.