On February 14, 2017, it was reported by then New Mexico State Auditor Tim Keller, who was also running for Mayor at the same time, that the City of Albuquerque had paid $63.3 million in legal settlements in law enforcement civil rights cases from 2010 to 2016.
Keller sounded the alarm that the settlements were resulting in a $40 million shortfall in the city’s risk management fund, which pays for uninsured losses.
(See February 14, 2017 Albuquerque Journal, Metro & NM “Payouts leave Duke City $40M short”, section C-1” )
https://www.abqjournal.com/949518/claims-payouts-leave-abq-40m-short.html
When the February 14, 2017 state audit of the city was released by State Auditor Tim Keller, he said Albuquerque needed to substantially increase funding for the risk management fund to $6.3 million a year to cover the shortfall.
“The city is basically spending more than it can afford for settlements for police shootings and civil rights violations. … That’s obviously a financial problem, which is why it shows up in our audit” Keller said at the time.
“In light of the city’s troubling trend of incurring more liabilities, it is appropriate and necessary for the city to better fund the (risk management fund),” Keller told the city.
The city budgeted from $2.1 million to $3.6 million a year to bolster the risk management fund in the past three years.
Now that Mr. Keller is Mayor, he is now facing the consequences of city lawsuits but is apparently making the same mistake of just settling cases.
OTHER CITY SHORTFALLS AND PAYOUTS
Large settlements are not the only financial troubles for the city that will have an impact on essential services.
A few days after Mayor Tim Keller took office on December 1, 2017, it was reported that the City was facing a $6 million shortfall for the current fiscal year and that the City for the fiscal year 2018-2019 could have a potential deficit of $40 million.
Further, the City has yet to see one thin dime of the $69 million dollar grant for the ART Bus project, with congressional committees cutting the grant by $20 million.
If the federal grant money for ART is not forthcoming, the money will all in probability have to come from the general fund or revenue bonds.
$5 million to $6 million dollars appears to be the financial exposure the city pays out to settled wrongful death cases for police officer involved shootings.
In 2010, the family of James Boyd who was shot and killed in the Sandia Foothills by APD officers was paid $5 million.
On May 21, 2015, the city agreed to settle a federal civil rights lawsuit over the April 2011 shooting death of Christopher Torres for $6 million, the amount of compensatory damages found by a state judge.
On January 18, 2018, it was reported that the Keller Administration settled and paid $5 million to the family of 19-year-old Mary Hawkes who was shot and killed by a former APD Officer who failed to have his lapel camera on.
YET ANOTHER MULTIMILLION DOLLARS SETTLEMENT
On January 28, 2018, the Keller Administation reached an $8 million settlement with the Albuquerque firefighters union, International Association of Fire Fighters ending a pay raise dispute that dates back to 2011.
According to a news release, the City and IAFF Local 244 came to a no-fault/no-admission settlement resulting in the $8 million one-time payment.
Albuquerque City Council President Ken Sanchez said he was “surprised” by the $8 million dollar settlement with the union with the Keller Administration apparently settling the case without conferring with the City Council or seeking its approval.
The $8 million dollar settlement with the firefighters is $3 million more than what the significantly larger police union was able to negotiate a few years ago involving an identical contract dispute.
Sanchez insisted that the city had the legal authority, which it did, to cut firefighters pay due to deficits and not enough gross receipt tax revenues to cover the negotiated raises.
$8 million for not making any admissions or accessing any fault should be hard to swallow by any taxpayer who has to foot the bill.
When announcing the settlement, the only thing the Keller administration would say is that it was the best way to settle a long-standing dispute without going to court and litigating the case.
NO SETTLEMENT POLICY IN POLICE MISCONDUCT CASES
The City spends millions of dollars in private contracts to hire defense attorney’s in cases the City Attorney does not or will not fully defend.
The danger is the City could lose its self-insurance status in the event the city does not have enough reserves to handle judgements awarded against the city or settlements agreed to by the city.
Risk management reserves are funded by the general fund which is taxpayer funded.
Another point is that if judgements against the city become so high, payment could be placed on the property tax rolls.
The settlements makes one wonder exactly what the City Attorney’s office has actually done to defend the City not only in police officer misconduct cases but as well as in other civil cases.
The City has acquired the reputation of just writing checks and “rolling over” without defending and settling the cases without advocating any defense nor making any substantive arguments for the City other than just paying what is being demanded.
The Albuquerque City Attorney’s Office employs 34 attorneys, numerous para legals, administrative assistants and support staff.
The City taxpayers are entitled to demand and expect competent and aggressive defense when the city is sued, even if it is by city unions against city hall.
In 2010, the “no settlement” policy was abolished to the absolute delight of plaintiff attorneys and the courts.
In 2010, it was the Berry Administration, on the recommendation of then City Attorney Rob Perry, a plaintiff’s attorney before becoming City Attorney, that abolished the “no settlement” policy to the absolute delight of plaintiff attorneys and the courts.
The “no settlement policy” mandated that all “police misconduct cases” be tried before a jury with a few exceptions allowed when liability and misconduct was absolutely certain.
The philosophy was that the “sunlight” of an open courtroom and the presentation of evidence was the best disinfectant for police misconduct to inform the public.
The “no settlement policy” mandated that the City Attorney’s office aggressively defend the cases and police officer’s actions and required plaintiff attorneys to prove police misconduct and their client’s cases and damages.
The “no settlement policy” worked and the City would often prevail when it went to court saving the taxpayers millions of dollars.
Even when the city did not prevail, judgments awarded by juries were often significantly less than what plaintiffs were seeking.
Plaintiff attorneys absolutely hated the no settlement policy and so did the court’s because it is a lot easier to settle a case than try a case before a jury.
With the abolishment of the “no settlement” policy, the City Attorney’s office has now acquired the reputation of just settling cases for the sake of settling and the city has become an easy mark to settle cases for large amounts of taxpayer money.
Can you just imagine what $63.3 million dollars could have been used for when it comes to public safety, senior citizen centers, libraries, and quality of life amenities?
BEHIND CLOSED DOOR SETTLEMENT
Civil settlements are reached behind closed doors.
The general public is seldom given much of an explanation of how amounts are arrived at and why, even though it is the taxpayer who is footing the bill.
No doubt the parties to the lawsuits and their attorneys are fully aware of the terms and conditions of settlements, but the public all to often are left with speculation and left to pay the bill.
The City Attorney is required to submit “quarterly” litigations report to the Albuquerque City Council and disclose all settlement amounts.
What should be included in the litigations reports are the actual terms and conditions of the settlements and how those settlement amounts were arrived at and agreed to by the parties.
CONCLUSION
What is needed is as City Attorney is an aggressive, seasoned trial attorney with an insurance defense background that understands “risk management” litigation without concern for party affiliation and who can be approved by the city counsel.
Rob Perry before he became CAO was the City Attorney and was a “plaintiff’s lawyer” who made sure the “no settlement” policy was scraped.
Perry served on the risk management committee and was involved with approving all the city settlements.
It was like putting a wolf in charge of the hen house.
Rob Perry made sure Republican political operatives such as David Toureck and Jessica Hernandez became city attorney.
This in one appointment Keller better get right or nothing will change and the city will continue to just settle cases to avoid trials.
The City Attorney’s Office also needs to get back into the Courtroom and start acting like trial attorneys and not ATM machines funded by taxpayers.