MARATHON MEETING: City Attorney says Geneva City Council doesn’t have legal authority to regulate police use of force

The Geneva City Council held its monthly meeting Wednesday, July 1, 2020. The meeting was held via Zoom Conference call due to the continuing COVID-19 crisis.

This meeting was one of the strangest on record for the City of Geneva. It was a marathon session that lasted 6 hours and 12 minutes. Mayor Steve Valentino chaired the entire meeting from a car, City Attorney Emil Bove, Jr. attended wearing a Canal Fest t-shirt, and the council received public comments from over 50 residents.

MARATHON CITY COUNCIL MEETING

The meeting began at 7:00 P.M. Wednesday, July 1, 2020, and lasted until approximately 1:12 A.M. Thursday, July 2, 2020. The Council reaffirmed its commitment to hearing public concerns by allowing over 50 residents to make presentations at the meeting. The public comment period lasted over 2 ½ hours. Mayor Valentino asked commenters to limit their presentations to 3 minutes due to the number of speakers who had asked to speak, but not one single resident was cutoff even if their presentation went slightly over the 3-minute limit. The vast majority of residents spoke regarding the police reform resolutions considered by the Council.

The meeting was broadcast on Finger Lakes Television (FLTV). In a nod to the importance of the issues being discussed and towards public transparency, FLTV stayed with the meeting for the entire 6 hours and 12 minutes. The only glitch for residents was that at about 10:00 P.M. FLTV had to reset the live feed hourly. This led to the appearance that FLTV had terminated the broadcast causing some to switch from viewing the FLTV broadcast to logging into the Zoom call. The Council did not announce until almost midnight that the FLTV feed was merely being reset hourly and that they were in fact still broadcasting live. The reset process meant that viewers on FLTV missed some comments made by the public and some of the debate by Councilmembers as the meeting did not pause during the reset process.

The Council began the long night with a public hearing regarding the City’s intent to apply for Community Development Block Grant (CDBG) funds to assist local businesses CCMI, Inc. and Assured Edge Solutions with relocation and expansion plans. Despite the meeting’s huge turnout, the Council received no comments at all during the brief public hearing.

The meeting also opened with Mayor Valentino presenting a Certificate of Appreciation to outgoing Geneva School District Superintendent Trina Newton, and City Manager Sage Gerling provided a routine Foundry project update.

In light of what was anticipated to be a lengthy meeting, the Council voted to once again table the first reading of an ordinance that would permit the keeping of chickens in the City until the August 2020 Council meeting.

The vast majority of the 6+ hour meeting was spent on issues related to law enforcement reform. Despite the extensive public comment on police reform proposals and the clear emphasis on police reform issues published in the proposed agenda, Geneva Police Chief Michael Passalacqua did not speak at all during the meeting and did not even appear to be in attendance on the Zoom call.

PUBLIC COMMENT

The law enforcement reform discussion began with a presentation by Geneva resident Adam Fryer who represented the advocacy group Geneva Peaceful Protesters. Mr. Fryer reinforced that the group is not paid to protest and that they are not anti-police. Rather Mr. Fryer stated that the group is a conglomeration of City residents from many walks of life who have come to gather to support the Black Lives Matter protests for police reform. Mr. Fryer spoke in support of the police reform resolutions on the Council’s agenda. He stated that the resolutions were modest in nature and were designed to “start the conversation”. Fryer also stated that the NAACP’s request that the resolutions be put off for further discussion should not be followed as the group does not speak for the entire black community. He emphasized that the group had obtained over 1500 petition signatures in support of the organization’s position. Fryer was also concerned that Councilmembers Jan Regan (Ward 3) and Laura Salamandra (Ward 5) were the only members of the Council who had listened to the group’s concerns. Fryer called upon the Council to pass all of the proposed resolutions due to the urgent need for law enforcement reform in Geneva.

Following Mr. Fryer’s presentation, the Council heard from over 50 City residents who either made in-person presentations or submitted letters of public comment that were read into the record. The majority of public commenters spoke regarding the police reform resolutions. In addition, the majority of commenters spoke in support of the police reform resolutions emphasizing the need to address institutional racism towards minority communities, particularly the black community.

Commenters linked the need for police reform in Geneva to both the current rash of police killings of black men such as the Minnesota incident in which George Floyd died while being arrested for allegedly trying to use a counterfeit $20 bill, and to Geneva’s own 2011 incident where local resident Corey Jackson was killed when a Geneva City Police Officer shot Jackson in the head during a traffic stop.

Only a few residents argued that the process should be slowed down to permit more research and discussion amongst the community. In addition, a couple of residents asserted that Salamendra was biased against the police and thus incapable of bringing forward truly unbiased reform measures. Finally, one resident wrote that working in the Courts for 14 years he had observed some residents being extremely disrespectful towards law enforcement and opposed the proposed reforms because he believed they were being brought by that small disrespectful segment of the community.

Overall, the tenor of the presentations strongly supported the proposed law enforcement reform resolutions and strongly opposed the idea that the resolutions should be put off for additional discussion.

Following public comment, Mayor Valentino stated that it was important to hear from residents on these issues and wanted residents to know that Councilmembers had been hearing their concerns.

LAW ENFORCEMENT REFORM RESOLUTIONS

Councilmember Salamendra introduced all of the law enforcement reform proposals. The debate on these resolutions became heated at times. The process often became confusing because the Council failed to follow its own rules of order by not speaking on just the resolution or amendment that was being considered. In addition, Councilmembers were often confused by amendments being voted on because they were offered verbally from the floor without the opportunity for either Councilmembers or the public to review written versions of the proposed amendments.

At the outset, Councilmember Salamendra withdrew resolution 36-2020, which called for School Resource Officers to work in plain clothes, be unarmed, and without handcuffs. The resolution also called for an annual review process to continually reevaluate the school resource officer program. Salamendra withdrew the resolution because it was determined that the school resource officer program is within the jurisdiction of the Geneva City School Board, not the City Council.

Salamendra also proposed resolutions to revise the Geneva Police Department’s Use of Force Policy (Resolution 38-2020) and to ban the use of “No Knock” warrants within the City of Geneva (Resolution 33-2020). City Attorney Bove, Jr., who is normally a relatively minor participant in City Council meeting discussions, played an instrumental role in considering these two resolutions. The resolution to amend the police department’s use of force policy essentially attempted to make use of deadly force a last resort and called for numerous de-escalation techniques to be used before resorting to deadly force. The “No Knock” warrant resolution would have prohibited the use of “No Knock” warrants by the Geneva City Police Department. Despite the fact that many jurisdictions throughout the United States and New York are considering and implementing these types of proposals, Bove Jr. argued that the Council lacked the legal authority to implement these resolutions. Bove Jr. contended that the Council lacked the authority to instruct the Geneva Police Department not to use “No Knock” warrants because these types of warrants are authorized by New York’s criminal procedure code. Bove Jr. also stated that it was his legal opinion that the Council lacked the legal authority to prescribe a Use of Force Policy for the Geneva Police Department. Rather Bove Jr. seemed to believe that the Use of Force Policy was within the sole discretion of the Chief of Police and City Manager. Based on Bove Jr.’s assertions that the Council lacked legal authority to ban “No Knock” warrants or prescribe a police department Use of Force Policy to protect Geneva citizens, the Council voted to table both resolutions without further debate.

Salamendra also introduced resolution 30-2020 calling for the creation of a task force to modify, improve, affirm, or amend the Geneva Police Department’s body cam policy by December 31, 2020. The resolution calls for the task force to consist of at least 2 City Council members and at least 4 individuals recommended by the Community Compact.

During the discussion on resolution 30-2020, Councilmember William Pealer (Ward 2) asked if there was any legal issue with the language of the resolution being developed by an outside advocacy group. City Attorney Bove Jr., during the course of a discussion of all of the law enforcement reform resolutions, indicated that there were no legal problems with an outside entity drafting the resolution.

In supporting the resolution Councilmember Ken Camera (Ward 4) stated that Councilmembers represent an institution of government that has not delivered on social justice for far too long. Mayor Valentino countered that he only wanted to pass resolutions that were sustainable and he didn’t believe this and many of the presented law enforcement reform resolutions met that standard. In a bit of a heated exchange, Councilmember Salamendra questioned Mayor Valentino on why, if he did not think the resolutions were sustainable, he failed to participate in the drafting process. Salamendra stated that she thought it was “disrespectful” for the Mayor to question the validity of the resolutions given his lack of participation in the drafting process. The Council approved the body camera task force resolution (Resolution 30-2020) a narrow 5-4 vote.

Salamendra also introduced Resolution 31-2020 to improve the diversity of the Geneva City Compact organization to better reflect the diverse population of the City. Councilmember John Pruett (Ward 6) questioned why, if the intent was to reflect the diversity of the City’s population, young people and the LGBTQ community were not included in the proposed membership expansion. Pruett offered an amendment to include these groups, which was approved with only Mayor Valentino dissenting.

Following Pruett’s amendment, Pealer offered a second amendment that eliminated references to the focus of police reform and accountability being brought because of Black Lives Matter and Governor Andrew Cuomo’s directives related to police reform. Pealer’s amendment also eliminated the People’s Peaceful Protest from the Compact’s membership and replaced the organization with representatives of the black community. Pealer argued the amendment makes the resolution clearer and is appropriate because the Peoples Peaceful Protest is not an official organization. Although emotions flared over the procedural process regarding the amendment, the amendment ultimately passed.

When debating the full amended resolution, Valentino argued that the Community Compact is a separate organization and that the Council does not have the authority to direct its membership composition. Salamendra countered that she felt the resolution was appropriate, particularly given the City’s funding contribution towards the Compact, as it expresses the City’s desire that the Compact’s membership be diverse. Ultimately the resolution passed.

Next Salmendra introduced resolution 32-2020 which created a framework for the Geneva Police Department to produce annual reports of its activities. The resolution called for completion of the 2019 report that would be consistent with the data elements reported in prior years’ reports, called for completion of a 2020 report and annual reports thereafter within 2 months of the end of the year., and added the additional data elements of types and frequency of calls, response time and length of time on the scene, use of force, number and type of officers responding to calls, and other elements the Council may subsequently request to be added to the 2020 report and all subsequent reports.

Pealer proposed amending the data collection resolution to change the date for submission of the 2019 report to September 31, 2020, and to change the data collection language so that the Department was only required to collect the data it has previously collected in prior years. Pealer’s amendments passed as did the amended resolution.

Resolution 34-2020 sought to schedule a public hearing to consider a public law to amend the City Charter to create a Police Accountability Board within the City of Geneva. Although all members of the Council seemed to support the idea of exploring a Police Accountability Board for the community, there was some discussion regarding how fast the process should proceed. The resolution initially called for a full public hearing process with the hearing to be held during a special meeting of the City Council on August 5, 2020. Councilmember Anthony Noone (At-Large) proposed an amendment to change the process to a simple community forum meeting rather than a full-blown public hearing. City Attorney Bove Jr. advised that this amendment would delay the process as it was outside of the process outlined by the Home Rule Law. Pealer felt the amendment was appropriate as it would get the discussion going without a formal process. Pealer was also concerned that the way the process was set-up it required that the law to establish the Police Accountability Board would need to be fully developed within 30 days. Camera and Salamendra believed that it was inappropriate to delay the process further than it had already been delayed. But Noone countered that rushing the process could result in hurting those who the Police Accountability Board is intended to help. The Council voted to defeat Noone’s amendment, but not without the roll call vote process going slightly askew as Councilmember Tom Burrall (Ward 1) skirted procedure by adding significant discussion on the resolution during his no vote on the amendment. Following the amendment defeat, the Council narrowly passed the original version of the resolution.

The next law enforcement reform resolution considered by the Council was Resolution 35-2020 which proposed creating a Police Department budget advisory board. Noone felt the resolution was micromanaging City staff who prepare and review the budget. But he also stated that if the Council was going to go in this direction, it should do so related to all City Department budgets, not just the Police Department’s budget. Noone proposed an amendment to make the budget advisory committee a Citywide budget advisory committee responsible for evaluating all city department budgets. The proposed amendment was rejected.

During the debate on the resolution, Pealer questioned the necessity of the resolution echoing Noone’s concerns of micromanagement by pointing out that the budget already undergoes significant review by Staff and Council. He also was concerned that the Board would be comprised of non-elected members who do not have any public accountability. Valentino argued that the Council had the entire City as an advisory board already because the budget goes through an extensive 4 hearing public hearing process.

Salamendra stated that this was an important transparency issue and reminded Councilmembers that they had ran for office promising increased transparency. Burrall felt that no harm would be done by the board as it was simply another set of eyes reviewing the budget. Camera went a step further by arguing that the Police Department budget advisory board was important to review and curtail the practice of giving suspended officers significant raises while they were not working. Pealer questioned that Camera’s goals would be achieved as even the Council does not have the authority to withhold officer salaries or dismiss officers for misconduct. Pealer felt this resolution was causing the counsel to spin its wheels and waste time and resources. Pealer concluded by reminding residents that they should elect City Councilors that actually understand how the budget process works.

In yet another split vote, the resolution to create a Police Department budget advisory board was approved.

Resolution 38-2020 proposed establishing a Whistleblower Protection Policy. The resolution was amended to link it to applicable state labor law. The resolution permitted those who report misconduct to keep their identities confidential to the extent permitted by law and to be free of retaliation for making the Whistleblower complaint. The amended resolution was passed.

Based on the Council’s actions on police reform resolutions, Camera asked that his resolution on the topic (Resolution 28-2020) be tabled as it was no longer applicable. He requested that the resolution be tabled rather than withdrawn so that the details of the proposal would remain a part of the public record. The Council voted to table Resolution 28-2020.

OTHER BUSINESS

In other business, Camera proposed a resolution to eliminate $52,000 from the Police Department Budget. Camera’s intent was to achieve cost savings because of the potential budget shortfall caused by COVID-19 by eliminating the cost of two police officer positions for officers who are currently in training. He felt that the City could save $52,000 this year by not having the officers hired, which would result in additional savings of roughly $160,000 in next year’s budget.

Pruett, who co-sponsored the resolution, clarified that it was not intended to be part of the law enforcement reform resolution package, but is instead a part of the need for budget control due to the COVID-19 crisis and the estimated $2.3 budget shortfall he believed the City would face due to the crisis. He further stated that he believed the Geneva Police Department was over staffed by 5-6 positions when he compared the Department’s operations to those of nearby cities such as Ithaca and Auburn.

Councilmember Frank Gaglianese III spoke against the resolution. Gaglianese was concerned that the Department’s operations would be hampered because it has not backfilled a previously vacated position and will be losing an additional officer in approximately 20 days. He was also concerned about the stress that would be put on other officers who had to pick up the slack due to the reduced staffing levels and regarding the potential overtime costs of current officers having to work extra hours. Gaglianese also felt that not hiring the officers now would be throwing away roughly $70,000 the City has already invested in their training. Finally, Gaglianese was also concerned about the personal impact the new officers would endure by having their job offers revoked.

City Manager Sage Gerling clarified that the two officers are already City employees and were actually working with the Geneva Police Department as part of the field training portion of their academy training. Mayor Valentino and the City Manager also clarified that the Council could not direct the elimination of these two positions but could merely direct a budget amendment requiring the $52,000 reduction in the Police Department budget. It would then be up to the City Manager and staff to determine how that budget reduction is implemented.

Pealer also felt that the City should not be cutting police officer positions in light of the possibility that crime could increase as the current economic crisis worsens.

There was considerable confusion during the voting process. Ultimately the resolution failed to receive the 2/3 vote necessary for passage.

Councilmember Regan submitted a proposed resolution to ban the use of synthetic pesticides on city property. Although City Attorney Bove Jr. contended that the Council did not have the authority to direct Police Department policy, he did not object to the Council directing the Department of Public Work’s policy regarding the use of pesticides. Pealer cautioned that this resolution might be going a bit far as it is possible that in the future there could be a synthetic pesticide that is safe and more cost-effective than other current alternatives. Gerling believed that the partnership which developed this proposal is a positive approach for the community. The resolution was passed.

The final resolution of the evening was a proposal to terminate the Long Point Marina Project. However, as the discussion on the resolution progressed it became clear that the Council needed more information on the actual amount of money that might be saved by terminating the project as well as the early termination costs that would be incurred by ending the project. Consequently, the Council voted to table the resolution to allow staff to obtain better financial information regarding the proposal.

Mayor Valentino closed the meeting by saying that he thought the Council, with its 6 hour and 12-minute meeting, had likely created a new record for Council meeting length.


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