Why can’t the City Council get the NYPD to show up at a hearing?

After New York City Police Department officials refused to appear at a City Council oversight hearing on the department’s own Strategic Response Group earlier this month – a hearing which had already been twice rescheduled – some council members showed signs of losing patience.

“The NYPD’s decision to skip a public hearing about the Strategic Response Group is a disservice to the people of our city and ignores the dozens who shared their experiences of being policed by the unit,” City Council spokesperson Rendy Desamours said in a statement at the time. (The NYPD has said that it couldn’t produce “expert witnesses” to testify at the hearing because of an ongoing lawsuit over the department’s conduct at 2020 Black Lives Matter protests – which the department said touches directly on the Strategic Response Group, which polices large events like protests.)

“Agencies are expected to be transparent with the city’s residents through public hearings, and the message sent by NYPD leadership today is that the department does not need to be accountable to the everyday New Yorkers they swore to protect and serve,” the council’s statement continued. “This lack of commitment to public transparency and accountability cannot continue, and it’s a shame that the department’s leadership not only undermined its relationship with the Council but all New Yorkers by choosing to not show up.”

But despite the Council’s strong statement in response to the NYPD’s no-show at the hearing, there is one lever at the council’s disposal that it is not yet pulling. The City Council has the power to issue a subpoena to compel city officials to appear and testify at hearings, and to require the city to produce certain documents relevant to an inquiry. The speaker is able to sign a subpoena, as is the chair of a standing committee, following a majority vote of the committee.

Some City Council members – including the leaders of the newly bold Progressive Caucus and City Council Member Julie Won – have called for the body to exercise that subpoena power following the NYPD’s refusal to appear at the recent hearing. 

But City Council Speaker Adrienne Adams has not done so yet. A spokesperson for Adams declined to comment on whether the council had considered using the subpoena power following the previous rescheduled hearings, or if they would consider using it moving forward. “The council reserves the right to exercise all legal options to conduct the oversight of city agencies that holds them accountable to New Yorkers,” a spokesperson said in a statement. City Council Member Kamillah Hanks’ office did not respond to a request for comment about whether Hanks would consider exercising the subpoena power as chair of the Committee on Public Safety, which led the hearing.

This council and its speaker would not be out of step with their predecessors for being hesitant to use the subpoena power to compel testimony from a city official. While the council’s subpoena power has been used with some more frequency to go after documents – such as the NYPD’s “digidog” contract in 2021 – it has very rarely been used on people. In fact, several experts on the council, when asked by City & State, couldn’t recall a single instance of the subpoena power being used to compel someone to testify before the council since 2005.

Several people familiar with the council’s inner workings said that while the body is empowered to serve its oversight capacity to the administration, it’s typically preferable for both parties to work out a conflict before subpoenas start flying. 

“The crux of it is however the tone and tenor of the relationship between the speaker and mayor is going to be,” said one person familiar with the council’s internal workings, of the decision on whether or not to exercise the council’s subpoena power. “It’s really about making sure that the institution is respected as a separate branch, but has the responsibility of oversight.”

But while the subpoena power can allow the council to fulfill that oversight responsibility, the question of whether or not to exercise it invariably becomes a political one. How far does the council want to push the administration? And could a subpoena backfire?

Theoretically, if the council were to subpoena an NYPD official to testify on a given matter, the NYPD and the administration could decide to fight the subpoena. “Then the council's in the position of having to decide whether or not the council is going to proactively go to court to enforce (the subpoena),” said one former City Council employee. “(The administration) might play a game of chicken with the council, and be like, ‘Does the council actually want to sue us?’”

In 2005, the council subpoenaed a Department of Education official to testify about the implementation of an anti-bullying law that the Bloomberg administration vetoed before the council overrode it – one of the few somewhat recent examples of the council subpoenaing an official to testify. At the time, the administration pushed back against the subpoena but eventually the DOE showed up to testify, avoiding a battle that could have played out in court.

If the council were to subpoena the NYPD to testify on its Strategic Response Group and the administration fought the subpoena and managed to get a favorable ruling in court, it could make the council more hesitant about pursuing and enforcing subpoenas in the future. Still, the former City Council employee said, “You can’t really lose a power you’re not using.”