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Whistleblowing Ignites Consequences in New York City

When a City Council Policy Analyst Called the Police Commissioner a Liar

On Monday, September 8th, a 30-year-old policy analyst working for the New York City Council was upset. That day, he had heard William J. Bratton, the city’s Police Commissioner, testify before the council that the use of force by NYC police officers has been steadily declining. According to Bratton, two decades ago police used force in 8.5% of arrests. In contrast, in the most recent year, just about 1.9% of arrests (roughly 7,900 in 400,000) “involved force use recorded by an officer.” Bratton’s testimony came in wake of concern about the deadly use of force on a man, Eric Garner, suspected of illegally selling cigarettes on a Staten Island sidewalk. Bratton said that his figures show “an extraordinary record of restraint” by the city’s police department. [1]

146469-william-j-bratton

NYC Police Commissioner William J. Bratton

When policy analyst, Artyom Matusov, heard Bratton’s claims, he was sure they were wrong. Although his job as legislative analyst for the city council’s consumer affairs committee did not address criminal justice issues, he had data on the use of force that he thought contradicted Bratton’s figures.  This data, which Matusov had collected for former Council Speaker Christine Quinn, showed that in 2011 a controversial program called “Stop and Frisk” resulted in 40,880 arrests, and officers self-reported the use of force in 19,360 (47.4%) of them.[2, 3] According to Matusov, this “Stop and Frisk” program continued in 2013 as the “Broken Windows” program, and assuming that approximately the same levels of force used in 2011 were used in 2013, the use of force by the NYPD in carrying out “Broken Windows” far exceeded the 7,900 claimed by Commissioner Bratton.

Upset with what he thought were Bratton’s mischaracterizations (he later called them “lies”), Matusov notified the Mayor’s press office the next day (Tuesday, September 9) that Commissioner Bratton had misinformed the city council in his testimony. Also, he texted a friend who is one of the mayor’s deputy press secretaries to tell him that the commissioner could be lying to the mayor.[4] According to Matusov, he “was told in writing that they did not want to hear about such things from me, that it put them in an awkward position.” [5] His friend replied in a text that “ignorance is bliss.”[6]

Loyalty and Ethics in Policy Analysis

At this point, Matusov had to decide what he would do next, if anything, to bring Bratton’s “misleading” testimony to light.  In making this decision, Matusov had an impressive education and plenty of experience to help him sort through the options. He had graduated from a top policy school, Harvard University’s Kennedy School of Government, in 2009 with a Master of Public Policy degree, and he had been working for the NY city council for more than three years.

With his education and experience, he likely understood the nature of his conflict with his bosses. Analyst-client conflicts are not rare because the job of a policy analyst is often incompatible with the goals of his or her clients – people with responsibilities to make public policies.  Analysts in a legislative policy shop like that in which Matusov was working are typically expected to provide “objective” nonpartisan advice and information to help inform clients on policy issues. However, clients – especially elected officials – operate in political environments, and frequently politics or personal beliefs are more important than objective analysis in determining their position on an issue.

654

New York City Council in session.

Often analyst-client conflicts raise questions of loyalty and ethics that are not easy to answer. In regard to loyalty, analysts may have different beliefs about to whom they owe their primary loyalty. Most analysts are loyal is to their immediate clients, the people who hire them, give them assignments, and evaluate them. These clients – their bosses – determine if the analysts will get rewards such as praise, promotions, and pay raises, and they likely have the power to punish or fire them.  Given the powers of their bosses, policy analysts –- most of whom are at-will employees –- do not cross their bosses if they want to be successful within their organizations and keep their jobs.

Some analysts, however, have different perspectives on loyalty. Idealistic analysts may believe that their first loyalty should be to the “public,” the citizens who pay their salaries. Their primary concern is not the interests of their clients, but the broader idea of “public good.”

Other analysts may believe their primary loyalty should be to the values of their profession, and they may refuse to do things they are told to do by their bosses because they view such actions as not professionally acceptable. Alternatively, some analysts may feel they should be most loyal to their own personal values and beliefs. These analysts will not be loyal to clients whom they perceive are making bad decisions.

Loyalties are important because, depending on an analyst’s hierarchy of loyalties, he or she will make different decisions when in conflict with a client.  If the conflict raises a question of the ethics of a particular action, primary loyalties will be an important consideration when an analyst decides what to do.  Consider this example:

A policy analyst has completed a professionally competent and objective policy analysis that recommended a specific policy      action. The analyst’s client favors an alternative action because of his or her political beliefs or because political considerations make it preferable. The client tells the analyst that the work should not be made public (i.e., distributed to anyone, including the press, outside the organization).

Faced with this situation, analysts loyal to their client would have no problem following their client’s orders. However, analysts with primary loyalty to “the public interest,” “professional values,” or “personal values” might decide that because of their personal sense of ethics they could not withhold the analysis.

> on January 30, 2014 in New York City.

NYC Mayor Bill de Blasio

When in a conflict with their bosses, analysts might turn to a classic book by Albert Hirschman to understand better their alternatives.[7] Using his framework, an analyst who strongly disagrees with the behavior or action of his or her client could consider three main alternatives:  The analyst can quit in protest if he or she feels strongly enough about the issue; the analyst can speak publicly about the issue against the wishes of the client; or the analyst can be loyal and do nothing beyond discussing it with the client.  These “exit, voice, and loyalty” options have a couple of overlaps. For example, the analyst can keep his/her job, but anonymously leak information (loyalty and voice) or can quit the job and go to the press with information he or she thinks should be made public (exit and voice).

These various options were open to Matusov on Tuesday, September 9, after the mayor’s press office had told him to go away.  In choosing a course of action, he had to decide to whom he felt his greatest loyalty and, based on that loyalty, what action would be the most ethical. If he were a practical person, he would also have to think about the likely costs and benefits of his various alternatives, especially the likely consequences of doing anything other than keeping quiet.

Matusov’s Choice and the Aftermath

On Tuesday, September 9th, after the mayor’s office indicated it had no interest in his allegations, Matusov chose to bring the alleged inaccurate statistics of Commissioner Bratton to the public’s attention by taking his own information to reporters.  He explained why he did so:

After receiving [the negative] response from the executive branch of the city of New York, I knew that I had no other recourse than to go to the press, which I did immediately thereafter, since I had already informed the highest levels of government and had been informed that there was no interest. On the same day that I informed the press, I also informed the deputy chief of staff to the speaker of the facts, including sending an email to him listing the allegations I had sent to the press (emphasis added). [8]

Why did he choose to go to the press?  He explained to a newspaper reporter that he thought that following the chain of command would not have been productive:

Matusov concedes that he could have gone through “normal channels” instead of dealing directly with the media – something that’s gotten him questioned in the past, although he says he was never told to stop.

This time Matusov felt so strongly that he wouldn’t wait.

If he’d followed the usual procedure, Matusov said, “It would go up the chain, there would be some meetings about what to do, somebody would reach out to the mayor’s office. It would be soft-pedaled.”

Matusov says he has no regrets about speaking his conscience – and says he’s gotten lots of support for doing so…”

“People on the Council are fed up with this,” he said. “They’re tired of being lied to.”  [9]

On Friday, September 12, three days after talking to reporters, Matusov was dismissed from his job. When a reporter interviewed him that day, Matusov asked him, “Why should I be fired for going to the Council and saying, ‘someone is lying to you’?” He told the reporter that no reason was given for his dismissal, but he think he knows why:

Screen-Shot-2014-01-08-at-3.27.57-PM

Council Speaker Melissa Mark-Viverito

He’s convinced he got booted because Council Speaker Melissa Mark-Viverito wanted to punish him for blowing the whistle on Mayor de Blasio’s police chief. “It means confronting the mayor and the mayor has a lot of goodies he can hand out,” he said. “Remember, he appointed the speaker. [10]

The following week, he filed a complaint against Council Speaker Melissa Mark-Viverito with the city’s Department of Investigation. According to an article about his complaint, “Artyon Matusov says he was fired…for going public with allegations that Police Commissioner Bill Bratton deceived lawmakers at a Sept. 8 hearing by lowballing how often his officers use force on the job.  Matusov argues that he deserves whistle blower protections after speaking to reporters about his accusations.” [11]

A couple of weeks later, civil rights lawyer Norman Siegel told a reporter that he was going to file a suit against the city council for “improperly firing analyst Artyon Matusov, who questioned data in a report presented to the legislative body by Police Commissioner Bill Bratton…Siegel said he will argue that the city violated Mausov’s free speech rights.”   He continued, “My hope is that this lawsuit will further push Police Commissioner Bratton, Mayor De Blasio, and Council Speaker Mark-Viverito to be more accountable for their policies and actions, and help further a real debate and dialogue about how to best police and govern New York City.”  He also said that he hoped the suit would encourage other whistle blowers to speak up when they see city leaders doing wrong: “You hope that people will have the strength and courage to speak out…So many people in government are afraid to speak.” [12]

On October 14, a month after his termination, Matusov filed a claim with the comptroller of the New York City alleging that his free speech rights had been violated by the N.Y. city council when he was wrongfully terminated “because of his speech, made as a private citizen on an issue of public concern that was unrelated to his official duties at the Council.”  The claim noted that Matusov did not work on the committee before which Bratton had testified, had no involvement in the hearing, and did not regularly speak with member of the media as part of his job.

The complaint maintained that as a concerned citizen, Matusov thought that “what he believed were misleading statements” made by Bratton about use of force should be “publicly exposed.” It said that he had on September 9th, the day he talked to reporters, told employees in the Mayor’s office and at the Council that he had contacted members of the media regarding Commissioner Bratton’s statements.”

The claim stated that the damages from the “wrongful and unconstitutional termination” were injuries to his career and economic injuries, including loss of wages, loss of potential for career advancement, mental and emotional injury and anguish, diminution of the quality of life, loss of standing in the community and humiliation.” The amount of compensation for these injuries is to be determined at a trial. [13]

Did Bratton Lie in His Testimony?

Matusov’s initial complaint against his dismissal said that he deserved protection as a whistle blower. However, the later legal actions, including the October 14th claim, maintain that he was unconstitutionally fired for exercising freedom of speech. Likely the whistle blowing claim was largely phased out because it would require proving that Bratton had lied in his testimony. An examination of the statements by the police department and by Matusov provide little support for that conclusion; however, Bratton’s statistics were flawed by likely measurement errors and did not tell the complete story of police use of force.

In response to Matusov’s allegations, the police department strongly denied that Bratton had lied to the council. On the day Matusov was fired, a police spokesperson, Deputy Chief Kim Royster issued this statement:

Mr. Matusov has grossly misinterpreted the statistics he used to determine that Police Commissioner Bratton has been caught in a lie before the City Council concerning the use of force in arrest situations He is comparing apples to oranges by drawing his data from Stop, Question, and Frisk worksheets which include a much broader category of actions, including placing hands on and placing handcuffs on a suspect. Using this standard our force rate would be 100% this year not 1.9%. The arrest report refers to use of a firearm, to the use of the baton, the use of O.C. Spray, and the use of hands-on physical force beyond what is necessary to effect an arrest. According to our arrest reports they were indeed used in only two of every 100 arrests so far in 2014.  [14]

As Bratton had stated in his testimony, use-of-force statistics were drawn from self-reported actions in which a firearm, a baton, a Taser, pepper spray, or extraordinary physical force was used; in contrast “use of force” in the “Stop and Frisk” and “Broken Windows” programs was defined, at a minimum, as the use of handcuffs or any physical contact.  In his testimony, Bratton had used statistics that have been compiled by the police department over many years.

Nevertheless, the use-of-force figures cited by Bratton are poor measures of the actual use of force because they are self-reported, according to a story by J. David Goodman in the New York Times. They likely understate the actual use of force. According to Goodman, some “rough arrests” may be seen by onlookers as involving the use of force, but would be considered routine by policemen and not reported. [15]

Goodman wrote, “Part of the challenge in accurately capturing the use of force by officers is that it exists as a continuum that goes from verbal command to “soft hands” to arm restraints and takedowns. In many instances, officers come to view those actions -– even pointing a gun –- as an ordinary part of an arrest, not as force.”

He pointed to another, less subjective, measure that is viewed by many experts as “the best broad measure of the use of force in arrests.” That measure is the charge of resisting arrest, and in 2013, 12,452 arrests in NYC included charges of resisting arrests. That number was about 3.1 percent of all arrests, substantially more than the 2 percent use of force that was self-reported.

According to Goodman, “the numbers [of resisting arrest charges] present a more complex picture of the interactions on city streets than a simple decline in the use of force, and they raise questions about how force is recorded by officers.”

The lack of clarity of the meaning of “use of force” was apparent when Matusov in a radio interview asked the commissioner to answer this question yes or no: Does Eric Garner count toward the 1.9 percent? In other words, would actions the police officers took to arrest Garner – actions that caused his death – be recorded as a use of force? According to Matusov:

If he [says yes], then they’re admitting that something criminal happened. He explained to us what that 1.9 percent was – none of which [firearm, baton, O.C. spray] was used in this instance – so all it can be is excessive force to make an arrest, which they have not acknowledged happened even though the city medical examiner ruled it a homicide. If he [says no, then] Bratton would be admitting that he didn’t include a killing in his statistic about force.[16]

Commissioner Bratton has not answered Matusov’s question.

The Costs of Speaking Out

When Matusov made his decision to go to the press with his accusation against Commissioner Bratton he made a courageous decision that showed his primary loyalty to “the public,” “profession,” and/or “personal values.”  No doubt that he did what he thought was ethically correct and what he thought would be best for the city.

His action was also in many ways foolhardy and the outcome was predictable. Could there be any doubt that his bosses, from his primary supervisor to the speaker of the City Council, would view his action as, at best, a breach of organizational protocol, and at worst, organizational disloyalty?

The wisdom of Matusov’s action is a fertile topic for discussion by practicing and would-be public policy analysts, plus others interested in public policy making. His decision raises not only difficult questions of loyalty and ethics, but also practical questions of what was gained and what was lost by his action.

Also, his firing by the NY City Council merits discussion. Was Matusov unfairly and unconstitutionally fired because of his exercise of free speech?  What, in fact, are the free-speech rights of policy analysts (and others) working as staff members for legislators, executives and other elected officials? Does such a policy analyst, an at-will employee, have the right to state opinions as a private citizen about matters before his or her employer? If so, what restrictions can be placed on the exercise of that right? As Matusov has asked, “What procedure do I have to follow to call out public information?” [17]

All of these questions deserve attention. The one about the legality of Matusov’s termination by the city council will be answered during the coming months in New York City by the city controller and the courts. The others will plague policy analysts far into the future as they wrestle with questions about what constitutes ethical behavior.

 

This column was first published on Dan Durning’s blog: eclecticatbest.com.

Sources:

[1] J. David Goodman. Bratton’s numbers of use of force by New York police raise questions. New York Times. September 18, 2012. Accessed at:  http://www.nytimes.com/2014/09/19/nyregion/brattons-numbers-on-use-of-force-by-new-york-police-raise-questions.html?_r=0

[2] Lana J. Lee. Broken Windows, Broken Trust. Huffington Post. Posted November 6, 2014, revised November 7, 2014. Accessed at http://www.huffingtonpost.com/lana-j-lee/broken-windows-broken-tru_b_6064724.html

[3] Celeste Katz, City council analyst: I got fired for saying NYDP’s Bill Bratton Lies about use of force. New York Daily News, September 12, 2014. Accessed:http://www.nydailynews.com/blogs/dailypolitics/city-council-analyst-fired-nypd-bill-bratton-lied-force-blog-entry-1.1937978

[4] Lee. November 6, 2014, (see note 2)

[5] Celeste Katz. Fired city council analyst files DOI whistleblower complaint against Speaker Melissa Mark-Viverito. New York Daily News. September 19, 2014. Accessed athttp://www.nydailynews.com/blogs/dailypolitics/fired-city-council-analyst-files-doi-whistleblower-complaint-speaker-melissa-mark-viverito-blog-entry-1.1945889

[6] Lee. November 6, 2014, (see note 2)

[7] Albert Hirschman. Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States. 1970.

[8] Katz. September 19 (see note 5).

[9] Katz. September 12 (see note 3).

[10] Katz, September 12 (see note 8).

[11] Katz, September 19 (see note 5).

[12] Tara Palmeri. City council to be sued after firing analyst who questions NYPD report. New York Post. September 25, 2014. Accessed at:  http://nypost.com/2014/09/25/city-council-sued-after-firing-analyst-who-questioned-nypd-report/

[13] Celeste Katz. City council analyst files whistleblower claim with controller’s office over firing. New York daily News, October 15, 2014. Accessed at: http://www.nydailynews.com/blogs/dailypolitics/city-council-analyst-files-whistleblower-claim-controller-office-firing-blog-entry-1.1975469

[14] Katz, September 12 (see note 8).

[15] Goodman, September 18 (see note 1)

[16] Lee. November 6, 2014, (see note 2)

[17] Lee. November 6, 2014, (see note 2)

Dan Durning

Dan W. Durning, a native of Fayetteville, Arkansas, had a governmental consulting firm in Little Rock before joining the academic world, earning a Ph.D. in public policy at the University of California, teaching at Duke University, and working at the University of Georgia’s Vinson Institute of Government. He headed the Institute’s International Center for Democratic Governance, with projects in Ukraine, China, Russia, Georgia and several other countries. His research interests include Arkansas history, Vienna, Europe between the wars, early German immigration, and policy analysis. He writes about those topics in his blog eclecticatbest.com. He lives in Birch Bay, Washington.

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