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 2% of arrests (roughly 8,000 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 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]
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. His data showed that in 2011 a
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. 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 8,000 claimed by Commisssioner 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. 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.” [2]
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.
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.
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When in a conflict with their bosses, analysts might turn to
a classic book by Albert Hirschman to understand better their alternatives.[3]
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). [4]
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.” [5]
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:
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. [6]
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.” [7]
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.” [8]
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. [9]
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. [10]
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. [11]
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 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 a policy analyst working for a legislative or executive office have the unrestricted right to state his or her opinion as a private citizen about matters before the office?
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 will plague policy analysts far into the future as they wrestle with questions about what constitutes ethical behavior.
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] Celeste Katz. Fired city council analyst files DOI
whistleblower complaint against Speaker Melissa Mark-Viverito. New York Daily
News. September 19, 2014. Accessed at http://www.nydailynews.com/blogs/dailypolitics/fired-city-council-analyst-files-doi-whistleblower-complaint-speaker-melissa-mark-viverito-blog-entry-1.1945889
[3] Albert Hirschman. Exit,
Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States.
1970.
[4] Katz. September 19 (see note 2).
[5] 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
[6] Katz, September 12 (see note 5).
[7] Katz, September 19 (see note 2).
[8] 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/
[9] 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
[10] Katz, September 12 (see note 5).
[11] Goodman, September 18 (see note 1)
