On Friday, January 10, the City of Albuquerque filed a Motion to have certain portions of the federal Court Approved Settlement Agreement (CASA) suspended and placed into “sustained compliance” and “suspend monitoring” of those requirements by the Federal Court approved monitor. The city’s Motion highlights the progress made by the Albuquerque Police Department (APD) in implementing the court mandated reforms under the CASA.

It was on November 16, 2014, that the City and the Department of Justice (DOJ) entered into the Court Approved Settlement Agreement (CASA). The agreement contains 276 requirements for reforming the police department. The settlement required the appointment of a Federal Court Monitor to perform audits on the progress of the all reform. Thus far, 11 federal monitor reports have been filed. The link to the CASA is here:

https://www.cabq.gov/mental-health-response-advisory-committee/documents/court-approved-settlement-agreement-final.pdf

According to the Motion, the Albuquerque Police Officer’s Association, the sole intervenor in the case, agreed with the relief being sought by the City in the original motion to suspend filed. The court appointed federal monitor took no position on the City’s motion. In the city’s motion, the city was seeking that APD self-assess upwards of 25% of the 276 settlement agreement requirements.

The requirements that would be self-monitored would be the operation of a Mental Health Response Advisory Committee, field officer recruitment and training, and management of the department’s Special Operations Division. The DOJ and the monitoring team have been working with the City and APD on a “self-assessment” plan. The plan was to determine to what extent APD has in fact come into compliance with all the reforms and the extent of the need for further monitoring. In March, a 51-page self-assessment plan was filed with the Federal Court for approval.

MOTION TO WITHDRAW

On Friday, August 21, the City Attorney’s Office filed a “Motion to Withdraw” its “Motion to Suspend” certain portions of the settlement and allow for self-assessment and monitoring. Since the filing of the motion, hearings on the motion and the plan for self-assessment have been repeatedly scheduled only to be continued because of the pandemic. As grounds for withdrawal, the City Attorney is now citing the ongoing impact of the COVID-19 public health crisis and pandemic’s lockdown orders.

According to Albuquerque Police Department spokesman Gilbert Gallegos, the decision to put off consideration of the plan indefinitely was made in consultation with the other parties in the case. The U.S. Attorney’s Office, the APD Police Union, the Federal Monitor and all the others stakeholders in the case do not oppose the Motion to Withdraw. An agreed order sign by the parties and the Federal Judge granting the request will be filed. APD will continue to work on the plan for self-assessment and will revisit the issue once things have settled down with the pandemic. APD spokesman Gallegos had this to say in a statement:

“APD was forced to devote additional time and resources over the past six months to deal with the impacts of COVID-19, while also ensuring public safety during 35 protests in the city. … APD will need to continue to devote time and resources to the COVID-19 impact for at least the next few months. In addition, we want to continue to get input from the amici groups on these plans.”

The agreement, signed in 2014, lays out 276 requirements for reforming the police department, ranging from when and how officers should use force, how the use of force should be reported and how it should be investigated, to how special units such as SWAT or Crisis Intervention Teams should operate.

https://www.abqjournal.com/1490089/city-halts-efforts-to-seek-release-from-parts-of-doj-agreement.html

DOJ INVESTIGATION

On April 10, 2014, the United States Department of Justice (DOJ), Civil Rights Division, submitted a scathing 46-page investigation report on an 18-month civil rights investigation of the Albuquerque Police Department (APD). You can read the entire report here.

https://www.justice.gov/sites/default/files/crt/legacy/2014/04/10/apd_findings_4-10-14.pdf

A significant number of the use of force cases reviewed involved persons suffering from acute mental illness and who were in crisis. The investigation found APD’s policies, training, and supervision did not ensure that officers encountering people with mental illness failed o to ensure rights were respected and police did not act in a manner that was safe for all involve.

What differentiates the DOJ’s investigation of APD from the other federal investigations of police departments and consent decrees is that the other consent decrees involve in one form or another the finding of “racial profiling” and use of excessive force or deadly force against minorities. The DOJ’s finding of a “culture of aggression” within APD dealt with APD’s interactions and responses to suspects that were mentally ill and that were having psychotic episodes.

APD REQUIRED STAFFING FOR DOJ CONSENT DECREE

It is the APD Compliance Bureau that is primarily responsible for enforcing the mandates under the CASA. The Compliance Bureaus consists of the Internal Affairs Professional Standards Division, Policy and Procedure Division, Accountability and Oversight Division, Internal Affairs Force Division and the Behavioral Health and Crisis Intervention Section and includes funding for training provided by the APD Academy for constitutional policing practices.

The 2020 -2021 City Council approved budget has a line item funding of $34,042,000 for APD Professional Accountability. This funding is essentially funding for the Compliance Bureau and the 5 divisions it consists of and includes APD Academy training associated with the Department of Justice Consent Decree reforms and enforcement. According to the August 1, 2019 “Staffing Snapshot”, the Compliance Bureau has total staffing of 61 sworn police consisting of 40 Detectives, 1 Deputy Chief, 3 Commanders, 1 Deputy Commander, 6 Lieutenants, 10 Sergeants.

One of the major concentrations of the Compliance Bureau is the ongoing cooperation with the Department of Justice (DOJ) consent decree (CASA) and its implementation of its terms and conditions. Internal Affairs deals with investigation police misconduct cases. Crisis Intervention deals with the crisis intervention teams who deal with the mentally ill. Policy and Procedures deals with the review and writing of standard operating procedures.

The city currently employees one Assistant City Attorney who is the former United State Attorney for New Mexico paying $150,000 and one retired Federal Magistrate billed and paid for on contract to review and write APD Policy.

COMPLETED MANDATED REFORMS

On November 16 , 2020, it will be a full 6 years that has expired since the city entered into the CASA with the DOJ. It was originally agreed that the settlement implementation would be completed within 4 years, but the previous Republican Administration engaged in delay and obstruction tactics found by the Federal Monitor. Now after almost 6 full years the following mandated reforms under the CASA have been completed:

1. After a full year of negotiations, new “use of force” and “use of deadly force” policies have been written, implemented and all APD sworn have received training on the policies.

2. All sworn police officers have received crisis management intervention training.

3. APD has created a “Use of Force Review Board” that oversees all internal affairs investigations of use of force and deadly force.

4. The Internal Affairs Unit has been divided into two sections, one dealing with general complaints and the other dealing with use of force incidents.

5. Sweeping changes ranging from APD’s SWAT team protocols, to banning choke-holds, to auditing the use of every Taser carried by officers and re-writing and implementation of new use of force and deadly force policies have been completed.

6. “Constitutional policing” practices and methods, and mandatory crisis intervention techniques an de-escalation tactics with the mentally ill have been implemented at the APD police academy with all sworn police having received training.

7. APD has adopted a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented detailing how use of force cases are investigated.

8. APD has revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.

9. The Repeat Offenders Project, known as ROP, has been abolished.

10. Civilian Police Oversight Agency has been created, funded, fully staffed and a director hired.

11. The Community Policing Counsels (CPCs) have been created in all area commands and the CPCs meet monthly.

12. The Mental Health Advisory Committee has been implemented.

13. The CASA identified that APD was understaffed. The City and APD are in the process of spending $88 million dollars, over a four-year period, with 32 million dollars of recurring expenditures, to hire 322 sworn officers and grow the department to 1,200 officers. As of January 1, 2020, APD has 949 full time police officers, up from 878 sworn police. The expansion thus far is attributed primarily to hiring from other departments and returning to work APD retirees.

14. In November, 2018 APD achieved 99.6% compliance with primary tasks, 75.4% secondary compliance and 59.5% operational compliance with APD making significant progress in overall compliance.

15. According to the Use of Force Report for the years 2017 and 2018, APD’s “use of force” and “deadly force” is down dramatically , which was one of the primary objectives of the CASA reforms.

COMMENTARY AND ANALYSIS

It is disappointing that the city decided to withdraw the “Motion to Suspend” portions of the Court Approved Settlement Agreement (CASA). The city arguments are very weak at best that “APD was forced to devote additional time and resources over the past six months to deal with the impacts of COVID-19 …” and that APD needs to “continue to devote time and resources to the COVID-19 impact for at least the next few months.” The truth is 61 fully funded APD positions are devoted to the DOJ reform process, positions that are not likely being used at all to deal with the pandemic.

After review of the city’s motion, the DOJ investigation report, the 276 CASA mandates, the 11 Independent Monitors Reports and the reforms implemented, a major conclusion that can be reached is the spirit and intent of the CASA has been attained. The motion was viewed by many as a precursor to dismissal of the entire case sooner rather than later.

The biggest complaint of all the DOJ consent decrees in the country is implementation and enforcement “go on and on” for years, costing millions in taxpayer dollars. With expected, continued implementation of the DOJ reforms a 95% to 100% compliance with all the CASA primary, secondary and operational compliance goals should be achievable within 12 months, if not much sooner.

The role of the federal monitor should be reduced, as was being requested in the original motion, as well as the continued costs of the monitoring team reduced. The city should commence negotiations immediately with the DOJ for a stipulated “Order of Complete Compliance and Dismissal” of the CASA, and all causes of action the DOJ has against the city and APD. Otherwise, the city and taxpayers will be sucked into “year after year” of expenses and costs associated with a consent decree whose primary objective has been achieved and whose federal monitor wants another $4 million to audit progress.

Sooner rather than later there must come a time when APD needs to be dismissed from the case. APD needs to be able to do its job without the Department of Justice (DOJ) constantly monitoring and looking over its shoulder. City Hall, the Mayor and the City Council need to be forced do their jobs along with the Police Oversight Commission of civilian oversight and holding APD accountable for constitutional policing practices.

The documents related to APD’s settlement agreement include:

The Settlement Agreement between City and the DOJ
APD Progress Reports
Independent Monitor’s Reports
Compliance Reports
Use of Force Annual Reports
Use of Force Reports
Studies
Audits

The link to review and download the documents is here:

https://www.cabq.gov/police/documents-related-to-apds-settlement-agreement

For a related blog article see:

City Moves To Be Released From Portions Of DOJ Consent Decree And Monitoring; Commentary: Intent And Purpose Of CASA Accomplished, Dismiss Case

On Monday, August 31, Mayor Tim Keller and his Chief Financial Officer Sanjay Bhakta, held a press conference to discuss the city’s financial condition, the city’s tax revenues and the impending release of the finalized 2020-2021 fiscal year budget to the City Council for hearing and final approval. Keller reported that the decrease in tax revenue has led to an estimated $27 million shortfall in Albuquerque for the current fiscal year, but by preserving this year’s budget, the city was able to avoid furloughs.

What was also was instrumental in avoiding furloughs and layoffs among the city’s roughly 6,000-person workforce was the city receiving $150 million in restricted federal coronavirus relief funding through the Coronavirus Aid, Relief, and Economic Security Act (CARES). Originally, the CARES Act funding was only to be used for pandemic related efforts, but it was amended to allow it to be used and applied to other city expenditures.

City officials reported that for the fiscal year 2020 gross receipts tax revenue finished 5% behind expectations. Another 5% drop in gross receipts tax revenue is projected for 2021. The drop in revenues resulted in a hiring freeze. According to Keller, the hiring freeze translates into meaning fewer people performing code inspections, driving buses and maintaining parks.

For the 2020 fiscal year that ended June 30, the city’s gross receipts tax revenue (GRT) was approximately $19.9 million short of projections, but the GRT still surpassed 2019 GRT because of a new Internet sales tax stream. City officials expect that GRT revenues will continue to dwindle in fiscal year 2021, which began July 1.

Mayor Keller offered the following summation:

“We have our economic challenges, there’s no doubt about that, but our city on a relative basis is actually not doing as bad as we thought. … [W]e tried to first cut costs then we tried to identify savings by banning travel, by examining department budgets for costs savings, restrictions on new hires; we have a broad hiring freeze that’s had a lot of exceptions we’ve had in place now for I think six months. …

But by and large, any major initiative, we expect government to continue on as it normally would with just minor delays in some services. … The job recovery region, Albuquerque and Bernalillo County, is in much better shape. … We should be back to the normal level sometime in 2024.

Keller did acknowledge that it might get worse if local businesses don’t start rebounding, but believes the city’s finances will be fine for at least 6 months assuming the economy gets better. If the economy does not get better, Keller said:

“We are always considering what we need to do and that could include layoffs. That could include wage cuts. That could include furloughs.”

Links to related news coverage are here:

https://www.kob.com/albuquerque-news/city-of-albuquerque-faces-budget-shortfall-but-mayor-says-it-could-be-worse/5846715/?cat=500

https://www.koat.com/article/expect-taller-grass-trash-and-longer-bus-waits/33854871

https://www.abqjournal.com/1492125/keller-citys-economic-position-better-than-most.html

CITY FINANCES IN A NUTSHELL

City finances have been totally upended as a result of the corona virus pandemic and its impact on the city economy and in turn city gross receipts tax returns have dramatically declined. On March 16, 2020, the New Mexico Department of Finance, Local Government Division, issued Memorandum authorizing the New Mexico municipalities to submit their last year’s fiscal budget for 2019-2020 budget as their fiscal budget for year 2020-2021 until reliable tax revenue projections can be determined. That is exactly what the Albuquerque City Council did when it enacted what they considered a “stop gap” budget.

The Charter of the City of Albuquerque requires the Mayor to formulate the annual operating budget for the City of Albuquerque and all of its departments. It is the City’s Department of Finance under the direction of the City’s Chief Financial Officer (CFO) that formulates the yearly budget which is then submitted to the Albuquerque City Council. The city’s fiscal year’s budget begins every year on July 1 and ends every year on June 30. The annual city budget must be submitted by the Mayor’s Office to the City Council by April 1. The City Council, upon receipt of the proposed budget from the Mayor, schedules budget hearings, takes public input and makes changes as it sees fit before enacting the final budget to be effective July 1.

The current gross receipt tax added to virtually all retail sales of goods and services is 7.7850%. Businesses collect the tax on each sale made and the money is then sent to the New Mexico Taxation and Revenue Department and each month the state the distributes the city’s portion of tax collected to the city. Retail businesses make up about 25% of all the city’s gross receipts tax collected. The gross receipts tax revenue pays for basic municipal operations and essential services such as police protection, fire protection, solid waste collection, street repairs, animal welfare, parks maintenance, social services and the wages and benefits to over 6,000 city employees.

Gross receipts tax is collected and given to the city accounts for 67% of the City’s general fund revenue. The gross receipts tax revenue pays for basic municipal operations and essential services such as police protection, fire protection, solid waste collection, street repairs, animal welfare, parks maintenance, social services and the wages and benefits of over 6,000 city employees. For the current fiscal year that ended on July 31, 2020, the city averaged upwards of $41 million in gross receipts tax revenue or $492 million dollars for the year. The remaining 33% of revenues needed to operate the city are generated other fees, other tax revenues and federal funding

2020-2021 OPERATING BUDGET ENACTED

On April 13, 2020, on a unanimous vote of 9-0, the Albuquerque City Council enacted R-20-31 which is the city’s operating budget for fiscal year 2020-2021. The approach to enact the 2020-2021 city budget was a dramatic departure from all previous years all because of the pandemic and falling gross receipts tax revenues.

The City Council’s operating budget, R-20-31, enacted is a “bare bones budget” resolution consisting of only 7 pages of line item appropriations for each of the city departments. There is no explanation or elaboration on the actual use of the millions appropriated in the budget. No public hearings were conducted that would have allowed comment and input from the public. The 2020-2021 operating budget went into effect on July 1, 2020 and ends June 31, 2021. The City Council ostensibly will follow the normal process with the Keller Administration submit a “performance based” budget and conduct public hearings.

The link to the enacted budget, resolution R-30-21 is here. Click on the link then click on R-31 spelled out in blue and marked FINAL:

https://cabq.legistar.com/LegislationDetail.aspx?ID=4411998&GUID=3FD662EF-A96A-4BD6-8113-380B7451BADC

BREAKING A CAMPAIGN PROMISE

In May, 2018, 5 months after he assumed office, Mayor Tim Keller signed into law a gross receipt sales tax increase enacted by the City Council. Seventy percent of the tax was dedicated to public safety. The tax was supposed to raise $55 million a year in revenue. Keller broke a campaign promise not to raise taxes, even for public safety, without a public vote. The rational for the tax increase was that the city was faced with a $40 million dollar deficit. The deficit never materialized and the tax increase was not repealed, and the Keller Administration has never disclosed where those revenues went or why the tax was not repealed when the deficit never materialized.

The City of Albuquerque had an operating budget of $1.1 billion for the fiscal year that began July 1, 2019 and ends on June 30, 2020. It was the first time in city history that the city operating budget exceed the $1 Billion figure. The 2019-2020 budget represented an overall 11% increase in spending over the previous year.

HISTORY REPEATING ITSELF

City Hall history is repeating itself. It was 10 years ago in 2010 that the city had to make significant cuts in order to deal with the “great recession”. Then Republican Mayor Richard J. Berry had a $69 million shortfall and he decided unilaterally to cut city employee pay by 3%, disregard negotiated union contract pay increases with the city’s unions, place a freeze on all hiring and reduced and slashed city services not considered essential such as the 311-call center. The number of APD sworn officers went from 1,100 in 2010 all the way down to 875 under Mayor Berry and community based policing was abandoned and existed in name only.

For the full 8 years under the former Republican Mayor Administration, the city was hit hard because of the great recession to the extent that essential services were dramatically cut and city and government was dramatically downsized. The cuts and downsizing were done in order to avoid any all tax increases to maintain Mayor Berry’s Republican philosophy that all tax increases are bad, even when needed for essential services, and that city government was too big and needed to be downsized.

COMMENTARY AND ANALYSIS

Just as the city was pulling out of the 10-year great recession, the city gets hit and get hit hard in the gut with the corona virus pandemic resulting in business closures, layoffs and a dramatic decrease in gross receipts tax revenues that funds 67% of the city’s operating budget. The city is now facing a major financial crisis.

It will not be fully known for at least another 6 months to what extent the corona virus has depleted the city’s coffers. If the City in fact plunges into another recession, which is highly likely, it will be much deeper than the 10-year great recession that started in 2008. Many businesses along central already barely making it because of the ART project will probably close permanently because of the Governor and Mayor’s emergency health orders.

DIFFICULT DECISIONS AHEAD

Mayor Tim Keller and the Albuquerque City Council will likely have to embark on a very painful but absolutely necessary reduction in government services and expenditures to deal with the major deficit caused by a dramatic reduction in gross receipts tax revenues. The City’s loss of gross receipts tax revenues obviously was brought on by the corona virus shutdown of businesses and resulting loss of gross receipts tax revenues, but Mayor Keller pinning his hopes on a quick rebound is not realistic.

The City is mandated by law to have a balanced‐budget. According to Mayor Keller, city financing should be fine over the next six months. But if things do not improve quickly by June, 2021, the city will be faced with any number of options or a combination thereof including:

1. Slashing department budgets across the board by a mandatory percentage to “spread the pain”.
2. Eliminate entire none essential city service departments, city divisions or units.
3. Reduce city services in some form.
4. Closure of city facilities such as libraries, senior citizen centers, golf courses and recreational activities and cancellation of major public events such as Summerfest.
5. Continue to freeze all hiring over the next year.
6. Layoffs or furloughs of government workers and elimination and funding of city positions.
7. Delay for a time all city construction projects that will result in need to hire more city staff.
8. Suspend all salary increases or implement salary deductions to the 6,000 city employees.
9. Postpone growing the police and fire department ranks and concentrate on police and fire academy classes for the sole purpose of keeping up with retirements and maintaining the existing number of the ranks before retirements
10. Increase gross receipts tax.
11. Increase property taxes.
12. Increase admission fees to museums, the Zoo and Botanical Gardens and Aquarium, golf fees.
13. A combination of all cost cutting and revenue increase options.

Mayor Tim Keller will start to look and sound more and more like his former Republican predecessor when he starts to say “cut city services and reduce the size of government” to get through the financial crisis caused by the pandemic. One thing is for certain is that if Mayor Tim Keller advocates another gross receipt tax increase, or goes along with the city council with it, or supports a property tax increase, Keller will wind up becoming a one term Mayor.

CONCLUSION

Before Mayor Keller downplays delaying not getting the parks mowed, he may want to pick up the phone and call former Mayor David Rusk on the importance of such things. Rusk served as Mayor from 1977 to 1981 and became a former, one term Mayor, when his popularity plummeted. Voters became very upset and when they felt Rusk did not act quickly in cutting down wild weeds growing throughout the city after a heavy monsoon season. The weeds were not cut down because of cost savings.

Then again, cutting weeds and grass will be the least of Mayor Tim Keller’s concerns as he is dealing with the cities violent crime and murder rates.