EDITORS NOTE: Freelance reporter Charles Arasim contributed to this blog article regarding the Citizens Police Oversight Agency. He is a citizen police oversight advocate, and as such was recognized by the Department of Justice when the Court Approved Settlement Agreement was negotiated. Mr. Arasim has scrutinized the process and usefulness of the Police Oversight Ordinance and Agency.

EVOLUTION OF CIVILIAN OVERSIGHT OF APD

It was in 1987, as a result of an excessive number of civil lawsuits and millions in civil judgements against the City and APD for excessive use of force and violations of civil rights that the first effort was made by the Albuquerque City Council to have civilian oversight and investigations of citizens’ complaints against sworn APD police officers. The city ordinance was sponsored by then Albuquerque City Councilor Pete Dinelli and took the form of Independent Review Officer or Independent Counsel. The ordinance was strenuously objected to by then Mayor Ken Schultz, then APD Chief Sam Baca and the Police union but passed on a 9-0 bipartisan vote. The very first Independent Review Officer was then former New Mexico Supreme Court Justice Bill Reardon. Over the years, civilian police oversight has evolved.

The Civilian Police Oversight Agency (CPOA) was established in 2014 after the City of Albuquerque amended its Police Oversight Ordinance. As a result, the new Police Oversight Ordinance replaced the former Police Oversight Commission (POC) with the new Police Oversight Board (POB) and the former Independent Review Office (IRO) with the new Civilian Police Oversight Agency.

The Civilian Police Oversight Agency is an independent agency of City Government, not part of either the City Administration or City Council that consists of a Police Oversight Board and an Administrative Office led by the Civilian Police Oversight Agency Executive Director.

The Civilian Police Oversight Agency receives, investigates and reviews complaints and commendations submitted by community members for/against the Albuquerque Police Department. The Civilian Police Oversight Agency also reviews Albuquerque Police Department policies, practices, and procedures, making recommendation to the Chief of Police.

https://www.cabq.gov/cpoa/civilian-police-oversight-agency-cpoa#:~:text=The%20Civilian%20Police%20Oversight%20Agency%20(CPOA)%20was%20established%20in%202014,amended%20its%20Police%20Oversight%20Ordinance.

https://www.cabq.gov/cpoa/documents/ordinance-3-2-20.pdf

https://www.cabq.gov/cpoa/documents/2020-board-policies-and-procedures.pdf

Ever since the creation of the Police Oversight Board and the Police Oversight Commission in 2014, both have been plagued by political turmoil, resignations and membership and staffing turnover. Both have been plagued with constant resistance from the Albuquerque Police Department management and all too often completely ignored by the APD Chief and executive staff as well as the Mayor and City Council.

Within the last year, the Albuquerque City Council began efforts to try and fix the Police Oversight Agency ordinance. On February 23, 2022, the Albuquerque City Council voted to defer all action on amending the Civilian Police Oversight Agency Ordinance for two weeks to allow consideration of other changes. The CPOA ordinance will be heard at the next regular meeting of the City Council on March 7, 2022. The blunt truth is that the Albquerquerqu City Council is attempting to to fix the unfixable.

THE CPOA AND THE DOJ

On November 14, 2014, the City of Albuquerque and the Department of Justice (DOJ) entered into a Court Approve Settlement (CASA) mandating 271 reforms of the Albuquerque Police Department APD. The settlement was a result of a year’s long investigation of the APD and findings of “excessive use of force” and deadly for and a “culture of aggression.”

The link to the settlement is here:

https://www.cabq.gov/cpoa/documents/465-1-190730-2nd-amended-restated-casa.pdf

A major reform measures mandated the creation of a full time, professional Civilian Police Oversight Agency (CPOA) with a full time Director and investigators and with a 9-member, all-volunteer, civilian Police Oversight Board appointed by the city council. The CPOA board is ultimately responsible for investigations of police misconduct and making recommendations to the Chief of Police for disciplinary actions. The board also reviews investigations and examines APD policy and procedures.

The major goal of the Civilian Police Oversight Agency and its board is that it’s to be the outside entity watching over the APD department when the Federal Court Approved Settlement Agreement is finally dismissed and the Federal Court appointed Independent Federal Monitor is no longer necessary. As it stands, it will likely be another 5 years before the case can be dismissed primarily because of APD’s failures to implement the reforms and met the compliance levels mandated.

Since its inception, the CPOA and it’s all volunteer board has been in a constant state of turmoil. The turmoil has included sharp turnover of board members and understaffing at the agency. At one point there were only two investigators with the agency, leading to a dramatic decline in the number of cases they completed.

Interim director Diane McDermott has said the CPOA is now fully staffed with 6 investigators. Three of those investigators were recently hired and have not yet begun to take cases.

In addition to reviewing complaints, CPOA board members make policy recommendations. An APD spokesman said since April 2019, APD had received recommendations for 10 policy changes and revised two policies in response.

CPOA CHAIRMAN AND 3 BOARD MEMBERS RESIGN

On December 9, 2021, Eric Olivias, the Chairman Of Civilian Police Oversight Agency (CPOA) Board submitted his letter of resignation. In addition to Olivias resigning, two others CPOA Board member resigned within a 48-hour period and they are Tara Jaramillo-Prewitt and Geonie Ralph. A 3rd newly appointed CPOA Board member Richard Johnson who was appointed to the Board at the same time as Gionnne Ralph is reported have to have silently walked away from the CPOA Board on or about November 1, 2021.

The Olivia’s letter is a scathing indictment of the CPOA. The resignation comes less than 2 months after CPOA Executive Director Ed Harness resigned and less than one month after Superintendent Of Police Reform Sylvester Stanley announced his retirement at the end of December.

CPOA CHAIRMAN LETTER OF RESIGNATION

Below are pertinent portions Olivias letter of resignation. Because of the length of the resignation letter, capitalized and bold headlines were added for clarity to assist the reader.

[BADLY BROKEN PROCESS]

“First and foremost, let me state that I am not resigning for personal reasons, but rather because I believe this process is badly broken and many persons, policies, and politics have led to that breakdown. This is not a Civilian Police Oversight Board as it is titled, rather this Board is a Civilian Police Advisory Board. The Board has no oversight authority over APD, it can issue recommendations for discipline and policy, but all recommendations are non-binding and can be dismissed, as they often are, by the Chief of Police. No matter the evidence presented, the Board is able to have little effect on the actual operations of APD.”

[BOARD HAS TOO MANY RESPONSIBILITIES TO FUNCTION]

“The Board itself is tasked with far too many responsibilities. The City Council erred in assigning so many tasks and responsibilities to the Board and its members and then restricted its ability to function by limiting the number of committees that Board members may serve on. Further, the list of training required for Board members is far too ambitious for unpaid volunteers. This requirement skews the membership of the Board towards retirees and those who are independently wealthy, hardly a subset reflective of our diverse community. For example, the required Civilian Police Academy course occurs two times per week over the course of 3 months adding up to nearly 60 hours of training including topics such as the Horse Mounted Unit and Impact Investigations. These are important units of APD, no doubt, but is knowledge of them required for Board service? Hardly. To be a fully functional and well-informed member of this Board an individual needs approximately 20 hours a week minimum to devote to Board service.”

[CITIZENS VOLUNTEER BOARD LEADS TO FAILURE]

“The Board has members who cannot and do not devote the time required to serve, and it clearly shows. Some members come to meetings completely unprepared and have not reviewed materials or have only done a surface review. Recently I learned that one member who had been voting on cases for 6 months, only recently learned how to access case materials and findings letters after contacting agency staff. After spending months correcting faulty training records and regaining compliance on training requirements, just one member can set back the efforts of the Board immensely. Despite the obvious deliberate non-compliance of some members, many Board members refuse to hold those members responsible accountable. One member went so far as to say that CPOA staff should be checking in with new members on a weekly basis and another wondered whether access to a computer was a reason for non-compliance with training requirements. To be a member of this Board, some basic skills, self-accountability, and self-reliance must be had. If the Board can’t hold itself accountable, why would anyone entrust the Board with real power to hold APD accountable?”
…

[POORLY DESIGNED CITY COUNCIL PROCESSS]

“The City Council has designed a bad process. From the appointment process, to training, and of course the long list of responsibilities delegated to the Board, the Civilian Police Oversight Ordinance in Albuquerque is broken. Efforts are underway to nibble at the edges of the problem, but frankly the proposed amendments to the ordinance hit at the low hanging fruit and do nothing to give a meaningful role to Civilian Oversight of Police in Albuquerque. On numerous and repeated attempts to arrange meetings with City Councilors to discuss issues with the CPOAB several never even responded, of those that did respond and meet, 3 will no longer be on the Council at the end of this month. It is clear from meetings with councilors and even more clear from public statements, that many councilors do not understand the ordinance they wrote. In one recent meeting a Councilor went so far as to state that the members of the CPOAB, “hold the lives and livelihoods of officers in their hands.” This statement would be funny if it wasn’t so ignorant of how the process really works. Other Councilors have made similar statements indicating that they do not have a good understanding of how the CPOA Ordinance is written and how it works in practice. If City Councilors want a strong and effective Civilian Oversight process in Albuquerque, I would urge them to listen to those that know best including, but not limited to Board Members.”

[FEDERAL MONITOR, DEPARTMENT OF JUSTICE, POLICE UNION PART OF PROBLEM]

“Despite serious issues within the Board, the greatest problems in this process lie within the parties of the CASA including the Monitor, the USDOJ, the APOA, and the City. While training records for the Board have been incomplete for nearly 2 years, only in [Independent Monitor’s Report 14] is the issue formally raised. In IMR-13 the issue was raised during informal meetings. Has the monitor really been doing its job if it took two years to note that training records were out of date? Moreover, the monitor has provided conflicting guidance. Criticizing the Board for spending too much time reviewing cases while in the next paragraph applauding the Board for catching serious deficiencies in an Agency investigation during its case review process. … Why has the monitor not held the City out of compliance for not filling Board positions and not publishing a clear and transparent process for how applicants will be screened and vetted? The City has promised action on this for years, none has been taken, yet the monitor is silent.”

[DOJ AND CITY ATTORNEY MEDDLING]

“The USDOJ meddles in Board business as it sees fit. When the Assistant US Attorney didn’t like an ill-informed statement that a new member made in a committee meeting, USDOJ rallied the City Attorney and others to its cause insisting that this was a sign of the Board being complacent, rather than looking to City Council as to how such a poorly informed and biased member was appointed to this Board in the first place. The assistant US Attorney has also made statements in support of the now departed Executive Director, while failing to recognize that the Board cannot comment on such matters given Personnel protections.”

“The City Attorney has also meddled in Board business despite the professed need for independence of the Board. The City Attorney has all but declared that the current training provided to the Board is inadequate. Without stating what about the training was/is inadequate, the City Attorney has convinced all the parties that the City Attorney is better suited to provide training to the Board, despite obvious issues with the independence of the Board. However, when the assistance of the City Attorney was requested to address APD not providing required CPA training to the Board by a more accessible virtual means during the pandemic, the response indicated that it would be inappropriate for the City Attorney to intervene on the Board’s behalf given its independent status. The City Attorney has provided inaccurate information to City Council on Board training compliance, despite being provided evidence to the contrary. On numerous occasions the City Attorney has lectured and belittled the Board and myself about its shortcomings and lack of priorities. This criticism came from one of the primary parties responsible for the compliance of the City of Albuquerque with the CASA, despite improvements in CASA compliance being stalled for the last 1.5 years.”

[GREATEST FAULT LIES WITH APD]

“Despite the many parties failing in their obligations in this process the greatest fault lies with the Albuquerque Police Department, mainly its Executive Leadership. Rather than appoint leaders with real experience in reforming a large police department the current mayoral administration chose a union endorsed insider.

… Nearly every week we learn that some high-level commander has been reassigned, retired, or resigned. The training academy, a perennial issue of concern in the monitor’s reports, has had 4 commanders in 4 years. Some commanders last a matter of months, others even less than that. How can an organization project stability and good function when nothing about it is stable or consistent? How can we hold field officers accountable when command staff changes on a whim and guidance from said command staff can change on a dime depending on who is in charge and what stimuli they are responding to.”

STONEWALLING IS ENGRAINED IN APD

“While the Board is charged with evaluating and making recommendations on APD Policy, APD has consistently stonewalled the Board on basic data requests. The Board has requested data on the expensive and untested Shotspotter program only to be given a letter assuring the Board that all procurement processes were followed (with no evidence) and a short briefing emphasizing that the program was too new to offer full statistics and analysis.

When you don’t have enough officers to respond to the actual calls in the system, why purchase a complicated and expensive system to generate even more (lower priority) calls? The Board has, on numerous occasions, requested data on the K9 unit. Given the high rate of injuries (to civilians and APD personnel) and frequent settlements, having the Board look at this unit and its policy would seem to be a no-brainer, yet APD has stonewalled for nearly a year. What is APD hiding, or are they just that bad at keeping records? The Board has also requested records on traffic stops including data on fines collected, injuries, shootings, etc. Once again, APD has stonewalled this request and avoided accountability. Lastly, despite years of reporting on overtime abuse at APD, spearheaded by a CPOA Investigation, little action has been taken to implement meaningful reforms to the APD Overtime process.”

APD IS BROKEN

“APD is broken. Not because of the brave and hardworking men and women who serve the community as field officers, detectives, and front-line supervisors, but because of a command staff focused on politics and micromanagement. There is no accountability for the organization as a whole.

I believe the answer to these good questions City Council refuses to ask is relatively simple: bad leadership. When officers don’t feel supported and valued and they see the churn and burn at the top, why would they not assume that they are expendable to the organization at the first sign of trouble? Yes the organization must discipline and remove bad officers, but it must also show that it is stable and supportive of those doing their jobs correctly and to the best of their ability. “

[NEED COMPETANT COMMANDERS]

“APD must install commanders that are competent and assure them some stability to implement and oversee changes. The APD Chief should be appointed to 6, 8, or even a 10-year term to give the department the stability it needs and to attract top-tier candidates interested in leading the department for the long-run, not just padding their PERA with a few high paying years. Lower-level commanders should also be afforded more job stability so that they can actually see-through reforms they implement. The APD budget must be scrutinized and funding for fancy gadgets and at-will positions must be trimmed back while emphasizing recruitment and retention of field officers and investigators.”

[REFORM ORDINANCE]

“The [Civilian Police Oversight Agency Board and Civilian Police Oversight Agency] CPOAB/CPOA Ordinance must be reformed to narrow the focus of the Board. The training requirements of the Board should be pared back, but front loaded. Before someone is allowed to vote on cases, they should be trained on the policies and processes that govern that review. The current training requirement of 6 months after appointment is akin to allowing an officer to join the force and begin patrolling the streets with a badge and a gun before being trained, we all think that would be crazy, but for CPOA Board Members that is exactly what we allow, if Board members ever complete their training in the first place. Board members should be compensated for their time with generous stipends tied to completing training and attending meetings. If this city wants a professional CPOAB, it should pay for it. Paying Board Members also helps to break down barriers to entry allowing a more diverse slate of membership. Board Members should be required to sponsor and attend community outreach events. Most importantly, the Board must be empowered to make binding decisions on policy and discipline. What is the point of Civilian Oversight if it is purely non-binding and advisory?”

[TONE DOWN THE RHETORIC]

“The last point I wish to make is that parties in this process need to step back and tone down the rhetoric. The process is so rife with finger pointing and backstabbing that I’m not sure any of the primary parties involved is actually interested in the stated goal of ensuring that Albuquerque has constitutional community policing. If the parties actually listened and tried to understand one-another it might become apparent that most of those involved want the same thing.

It is possible that many individuals involved in the process have made mistakes and many parts of this process are flawed. No one group is solely responsible for failures, yet each group takes great pride in blaming others. If the real goal is to achieve constitutional community policing for Albuquerque, shouldn’t the process involve adopting the best ideas and practices regardless of who came up with them? The parties need to move on from failures with constructive solutions instead of getting bogged down in assigning blame and scapegoating. I hope this reform process is successful, it needs to be, for the sake of our officers and our community.”

CPOA EXECUTIVE DIRECTOR RESIGNS

It was on October 15 that CPOA Executive Director Ed Harness announced his resignation and left his job on November 15. In his resignation announcement, Harness gave a blistering condemnation of the board. Harness resigned because he had requested to be reappointed as executive director but instead the board opened the position to other applicants, a move he said was done without consulting stakeholders, the City Council, or the Department of Justice.

In his resignation announcement to the board, Harness said:

“[What is] most shameful is the fact that you didn’t even have enough respect to speak with any member of the CPOA staff – the people that do all the work to support your efforts. … This decision has permanently damaged the relationship between the agency and the board. … [Under my leadership the CPOA] has been restored to its rightful place as a meaningful oversight body … and has been applauded by the Department of Justice and the independent monitor] … You will set back the organization and its ability to maintain compliance with the [court approved settlement agreement] … because being executive director of the CPOA is not a plug-and-play position.”

https://www.abqjournal.com/2438118/executive-director-of-police-oversight-agency-resigns.html

CITY COUNCIL ATTEMPTS TO FIX THE UNFIXABLE

On February 23, it was reported that the Albuquerque City Council was attempting to fix the Civilian Police Oversight Agency by making changes to the ordinance creating the agency.

City Councilor Brook Bassan, who sponsored the ordinance along with Councilors Pat Davis and Isaac Benton, said there are two significant changes that were being considered:

1. Reduce the board from nine members to seven and directing the agency to only investigate complaints concerning sworn officers, not civilian personnel.

2. Removed the directive that CPOA board members shall review and approve or amend findings of all agency investigations.

The CPOA is required to publish semiannual reports, however the 2021 data has yet to be made public. Interim CPOA director Diane McDermott said throughout last year there had been only 3 cases where investigators found policy violations, where the police chief differed, sending a letter of non-concurrance. McDermott added that the Chief Medina’s non-concurrances have increased in recent months. According to McDermott, this sometimes could be due to the department not wanting to hold an officer accountable but there could also be aggravating or mitigating factors that she is not aware of.

Interim CPOA director Diane McDermott, in response to the accusations made former chairman Eric Olivias that the agency was broken, said without the agency there is no process for citizens to lodge a complaint against an officer and get it investigated. McDermott said in Albuquerque the goal isn’t necessarily to discipline certain officers but to improve policing department wide and said:

“The department needs to be accountable for how it conducts its policing. … So it may not be that one officer, it may be the department’s failure on something.”

City Councilor Brook Basaan had this to say about the changes:

“I absolutely think these changes are going to make a significant improvement – at least I’m hopeful they will, … I think that just streamlining their case load based off of the requirements in the [Court Approved Settlement Agreement] will help minimize some of the burden and what was described as the setup of failure.”

Chantal Galloway, who is the new civilian volunteer chairperson of the CPOA Board, told federal judge James Browning at the February 9 on the 14th Federal Monitors Report, that CPOA has found itself as a “catch all for things deemed problematic,” and she told the Court:

“Oftentimes, we’re dedicating upwards of 60 to 80 hours per month to this process because we believe it’s important and that the community needs an outlet and a voice when it comes to policing in Albuquerque. It’s difficult to remain committed when our efforts are either dismissed or outright undermined by other members engaged in this process.”

CPOA board member Dr. William Kass, a retired Sandia Labs physicist, said the board is supposed to split its time between policy development and complaints, but in practice the complaints were eating up the majority of its attention. According to Kass:

“I think the power of the board lies in its ability to persuade APD to change policies or improve their training or become a better department. … I think that’s built by building relationships between the board, agency, APD and the community.”

The link to quoted news source material is here:

https://www.abqjournal.com/2472721/councilors-consider-changes-to-civilian-police-oversight-ordinance.html

COMMENTARY BY CHARLES ARASIM ON POLICE OVERSIGHT AGENCY

“It is obvious the City has failed in correcting APD structural and systemic deficiencies of insufficient oversight, inadequate training, and ineffective policies that contributed to the 2014 DOJ Investigative Report findings that APD engaged in a pattern and practice of excessive use of force, including deadly force, in violation of the Fourth Amendment.

Seven years of existence has not resulted in quality, rigor, or consistency in processes by the Board or the Executive Director’s office when conducting civilian complaint investigations or review of APD findings in serious uses of force or officer involved shooting incidents.”

FINAL COMMENTARY AND ANALYSIS

After the passage of a full 7 years of the court approved settlement as well as the tumultuous history of the Citizen’s Police Oversight Commission that was mandated by the Court Approved Settlement Agreement, it has become painfully obvious that CPOA and its board of voluntary citizens has become so dysfunctional as to be irreparable and irrelevant. It is not at all likely any of changes or amendments to the CPOA ordinance will have any impact on any of the numerous problems identified Eric Olivas, the former Chairman Of Civilian Police Oversight Agency.

It is personalities and hidden agendas that make both the agency and the civilian volunteer board dysfunctional. Adding to the disfunction is more than a little politics thrown into the mix by the Mayor, the City Council, the Chief and his high command and union opposition to any and all kind of civilian oversight. The civilian board has never had any ability to to persuade APD to change policies or improve their training given the extent the Mayor and APD ignore it and undercut it.

The investigation of police misconduct cases and all use of force cases and serious bodily harm cases should be done by “civilian” personnel investigators not by Internal Affairs nor by the Citizens Police Oversight Agency or the Board. The function and responsibility for investigating police misconduct cases and violations of personnel policy and procedures by sworn police should be assumed by the Office of General Council in conjunction with the City Human Resources Department and the Office of Internal Audit where necessary. The Office of Independent Council would make findings and recommendations to the Chief of Police for implementation and imposition of disciplinary action.

A link to a related blog article is here:

https://www.petedinelli.com/2022/02/24/external-force-investigation-team-will-deal-with-660-apd-backlog-of-use-of-force-cases-efit-confirms-apd-unable-to-police-itself-abolish-apd-internal-affairs-and-civilian-police-oversight-allow/

EDITOR’S NOTE: Freelance reporter Charles Arasim contributed to this blog article regarding the Citizens Police Oversight Agency. He is a citizen police oversight advocate, and as such was recognized by the Department of Justice when the Court Approved Settlement Agreement was negotiated. Mr. Arasim has scrutinized the process and usefulness of the Police Oversight Ordinance and Agency.

On November 12, 2021 the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 14th Independent Monitors Report. The report is the most critical and scathing to date as to the city’s intentional noncompliance and failure to investigate hundreds of police use of force cases. The report covers the time frame of February 1, 2021 to July 31, 2021. The link to review the entire 331-page report is here:

https://documents.cabq.gov/police/reports/department-of-justice/independent-monitors-fourteenth-report-nov-2021.pdf

According to the report:

“The most important issues affecting APD during the IMR-14 reporting period involve misconduct investigations, use of force investigations, the lack of progressive discipline when misconduct is found, and supervision and leadership.

Approximately 83% of these cases are already time-barred for discipline in accordance with the Collective Bargaining Agreement [police union contract], should misconduct be found. Since its discovery, this backlog has been reduced from 667 cases to 660 cases as of October 25, 2021. At this rate of case productivity, we project that it will take APD 94 months to “clear” this second backlog, which, again, would ensure no disciplinary actions for policy violations in another 667 cases.”

PLAN TO TACKLE SEVERE BACKLOG OF CASES

On February 6, a second hearing was held on the 14th Independent Monitor’s Report where a plan was unveiled to tackle the 660-case backlog of uninvestigated level 2 and 3 use of force cases. Level 2 use of force is when an officer has to use force and the person is not injured. Level 3 includes anything that sends someone to the hospital or death, like officer-involved shootings. The Department of Justice has complained that APD doesn’t investigate use of force cases thoroughly and they are slow to look into cases.

APD wants the External Force Investigative Team established last year to help them out and sort through the cases. In other words, after 7 years of the CASA, the Albuquerque Police Department (APD) still can not do the job of policing itself. The City established the External Force Investigation Team to assist APD in conducting use of force investigations by APD officers, while also assisting APD with improving the quality of its use of force by police investigations. The EFIT team is supposed to be temporary to train APD Internal Affairs investigators on how to properly investigate uses of force instances by APD police officers.

APD is seeking the EFIT to expand its scope of work and tackle the backlog of cases that formed through the first half of 2021. Currently, APD has 25 sworn officers and civilians working on the EFIT. APD is working with EFIT, along with their own officers, to look at the backlog of cases. APD, the City, and the Department of Justice are in the process of negotiating the contract with the External Force Investigative Team. If it is approved, the contract would cover 2 years.

CREATION OF THE EXTERNAL FORCE INVESTGATION TEAM BY COURT ORDER FOR CITY TO AVOID CONTEMPT OF COURT

On Friday, December 4, 2020 during an all-day status conference hearing on the 12th Compliance Audit Report of the APD reforms mandated, it was revealed publicly for the first time that the City and the DOJ were negotiating a “stipulated order” for court approval that would create and External Force Investigations Team (EFIT).

During the hearing, Paul Killebrew, special counsel for the DOJ’s civil rights division, said that after the 12th Federal Monitor’s report was released on November 2, the DOJ and the City realized that something had to be done. If not agreed to by the city, the DOJ would have to take very aggressive action. Killebrew told Judge Browning:

“The city agreed the problems were serious and needed to be addressed … that’s significant. If we had gone to the city and the city disagreed with our picture of reality, and had they not been willing to address the problem we identified, I think we would be in a different posture … We might have needed to seek enforcement action over the city’s objections.”

During the December 4 status conference hearing, Special Counsel for the DOJ’s Civil Rights Division Paul Killebrew said:

“APD has proven over and over again its agility to avoid the requirements of the CASA.”

During the February 26 hearing to approve the stipulated order, Paul Killebrew told the court the motion was necessary because after 6 years the police department is still not holding officers accountable for using force that is out of policy. Killebrew told Judge Browning:

“…[W]hat we have is a city that has failed to comply with that court order over and over and over again. It not an option right now to do nothing. If we sit back and wait, using all the tools that we have already been using, I don’t know why we would expect things to change on their own. The sense of the United States when we received the monitor’s report was that additional interventions were required.

When we read [the Independent Monitor’s 12th report], we believed that there were likely grounds for contempt, and that we could probably make a good case for a receivership, at least as it regards serious force investigations. This is essentially something short of a receivership, but far more extensive than what is occurring now. What we’re talking about is having external folks assisting Albuquerque investigators in each investigation to ensure that those investigations identify out-of-policy force and to ensure that there is a strong factual record available so that policy violations can be identified and that officers can be held accountable. That is simply a nonnegotiable term of the consent decree. We must have officers held accountable for out-of-policy force, and after six years, we cannot wait for that to happen any longer.”

https://www.abqjournal.com/2363867/judge-signs-off-on-team-of-outside-investigators-to-help-apd.html

On February 26, 2021, the City of Albuquerque and the United States Department of Justice (DOJ) entered into a Stipulated Agreement filed with the United States District Court to stay a contempt of court proceeding against the city for willful violations of the Court Approved Settlement Agreement (CASA). The Stipulated Order established the External Force Investigation Team (EFIT).

On June 23, 2021, a contract was signed with the City, enabling EFIT to commence full operations on July 16, 2021. The 2021-2022 City of Albuquerque approved budget allocates $400,000 to APD for the Use of Force Review contract for its first year of operation. The city link to the budget is here:

https://documents.cabq.gov/budget/fy-22-proposed-budget.pdf

The EFIT is on call 24 hours a day, seven days a week. It is required to respond to all police use of force call outs within 1 hour of notification. All Use of Force (“UOF”) investigations undertaken by the EFIT must be completed within 60 days with an additional 30-day supervisory review period for a total of 90 days from start to finish. Pursuant to the Federal Court Order, EFIT must conduct joint investigations with APD Internal Affairs Force Division (“IAFD”) of all Level 2 and Level 3 Use Of Incidents . This includes all Tactical Deployments where there is APD police Use of Force is utilized. EFIT must also assist APD with training concerning the its Use of Force policies.

EXTERNAL FORCE INVESTIGATION TEAM’S SECOND QUARTERLY REPORT

On February 16, 2022, the External Force Investigation Team’s (EFIT) filed its Second Quarterly Report for the time period of October 16, 2021 to February 16, 2022. The report is 77 pages long with various court pleadings attached as exhibits. The link to the EFIT Second Quarterly Report is here:

https://www.cabq.gov/police/documents/efit-second-quarterly-with-exhibits-02-16-22-stamped.pdf

EDITOR’S PRELMINARY COMMENTARY: The External Force Investigation Team report makes it abundantly clear that after a full 7 years of the CASA reforms, APD is still failing miserably to police itself and Internal Affairs is unable to keep up. It is a very bad state of affairs when an outside contracted group of professionals such as EFIT is needed to be brought in and paid to investigate use of force cases and assume a tremendous backlog of 660 use of force cases because APD unilaterally decided not to do the work. What is pathetic is that the EFIT is forced to train APD how to do such investigations, provide guidelines to APD sworn, teach APD sworn police how to conduct interviews, teach APD sworn how to gather evidence and complete use of force investigations, teach APD sworn how to fill out simple forms with basic contact information, deal with high turn over within Internal Affairs, deal with police union interference with police misconduct interviews, forced to offer incentive pay for Internal Affairs detectives to stay, required to go out on call outs with APD Internal Affairs Use of Force personnel and essentially hold their hand as use of force investigations are conducted, and insist on professionalism to the point telling APD personnel how to dress appropriately. All of these points are highlighted in the EFIT report and need to be kept in mind when the report is read.

Below is an edited, redacted and condensed version of the report. It contains the major highlights of the Second Quarterly Report, it adds sub-titles, deletes many confusing acronyms to assist the reader and performance measures and statistics are bolded for emphasis:

“The External Force Investigation Team known as the EFIT team, is currently providing on going mentoring of all Detectives/Investigators to include, but not limit, Use of Force scene investigative practices, interview, and written reporting of the UOF investigations.

The EFIT Executive Team worked with the APD Internal Affairs Force Division to establish a detailed Internal Affairs Investigation Process Narrative … that governs the response and investigative protocols to any Level 2 and 3 Use of Force cases. These documents are the basis for EFIT to evaluate the Internal Affairs Force Division.”

[USE OF FORCE INVESTIGATIONS OUT OF COMPLIANCE]

“As of this report, 15 out of the 141 (10.63%) of the Use of Force investigations closed by EFIT and APD Internal Affairs Force Division were found to be out of APD Use of Force policies. However, 48 out of the 141 (34.04%) of the UOF investigations closed by EFIT and [APD Internal Affairs Force Division] were found to be out of compliance when evaluated against the Process Narrative used to assess investigations. These violations range from

1. APD Internal Affairs Force Division failing to conduct required Use of Force meetings and/or interviews without EFIT’s attendance
2. APD Internal Affairs Force Division lack of written or incomplete investigative plans.
3. Failure to assign Use of Force investigations for extended periods of time.
4. Failure to upload and/or provide documents to EFIT and incomplete UOF scene investigations – to include documentation from witnesses and officers.”
… .

EIDITOR’S NOTE: The EFIT report outlines the steps that were taken to correct all 4 areas of violations.

EFIT opened joint investigations with IAFD on each incident. EFIT and APD Internal Affairs Force Division completed 141 investigations within the 90-day time period outlined in the Stipulated Order. … EFIT assumed 10 Use of Force investigations pursuant to … the Stipulated Order as those investigations became close to violating the stipulated timelines.”

[EFIT GOALS AND MANDATE]

“It is EFIT’s goal to teach, mentor and professionalize APD Internal Affairs Force Division so that when this assignment is completed, EFIT leaves the City with a sustainable division that investigates Use of Force incidents in a timely, objective and professional manner. … A major accomplishment in this reporting period, is that 7 APD Internal Affairs Force Division Detectives and 2 APD Internal Affairs Force Division Investigators were identified as attaining the requisite experience level to start transitioning the UOF Interview process from a joint EFIT and APD Internal Affairs Force Division interview, to conducting interviews without EFIT’s participation.”

[TRANFERS AFFECTING STAFFING]

“As of August 28, 2021, the Internal Affairs Force Division [was to be] be staffed with 25 Detectives. Currently, APD Internal Affairs Force Division has 11 civilian investigators and 20 sworn detectives, [for a total of 31]. [However] in recent discussions with the APD Internal Affairs Force Division Commander, EFIT discovered that by the end of February 2022, APD Internal Affairs Force Division will be at a total staffing level of 25 due to retirements, promotions, officers “bidding” or requesting another assignment out of APD Internal Affairs Force Division and back to Field Divisions and the loss of Investigators. … EFIT has concerns that these numbers fluctuate and retaining both sworn and civilian personnel is a constant concern as APD Internal Affairs Force Division again moves close to falling below required staffing levels. “

Retaining trained APD Internal Affairs Force Division Detectives/Investigators, apart from the continued violations of the Process Narrative, is the EFIT Executive Team’s main concern related to the transition process of EFIT and APD Internal Affairs Force Division and Internal Affairs working totally independently. EFIT anticipated that this would be addressed to promote sustainability, adhering to the court mandated 25 personnel, and longevity during the Albuquerque Police Officers’ Association’s union contract process.”

[UNION CONTRACT PROVIDING INCENTIVE PAY]

“… The collective bargaining agreement signed by the City and the APOA on December 30, 2021, provides for APD Internal Affairs Force Division personnel the same incentive pay as their counterparts receive for remaining within the same area command or APD Internal Affairs Force Division and Internal Affairs. According to the union contract:

While EFIT believes this will be helpful, additional incentives must be explored by APD to ensure that highly trained and motivated teams remain within APD Internal Affairs Force Division.
…
EFIT recommended that Investigations be required to reimburse the City for training costs if they choose to leave Internal Affairs Force Division within a proscribed period of time … . In addition, senior APD command must communicate if any Internal Affairs Force Division member seeks to apply for another Division once such an application or notice is received.
…

[GOAL TO RETURN USE OF FORCE INVESTIGATIONS BACK TO APD]

“The DOJ and the City informed EFIT that its contract will be extended and a new Stipulated Agreement will be filed with the Court. Ultimately, the goal is for EFIT to return responsibility back to APD for Use of Force investigations.

To date, EFIT disagreed on 4 Use Of Force classification determinations as to whether the Use Of Force is out of APD policy. Pursuant to the Stipulated Order these cases are discussed with APD (DOJ and IMT are notified). After these meetings and reconsideration by IAFD Command, these Use Of Force cases were ruled out of APD policy. Provisions were written into the Stipulated Order should EFIT need to assume full responsibility of an investigation or if EFIT disagrees with IAFD’s investigative findings.”

[USE OF FORCE CASES ASSUMED BY EFIT]

“Between October 25, 2021, and February 16, 2022, EFIT assumed 10 Use of Force investigations at various levels of completion … as these investigations became close to violating the stipulated timelines. Specifically, on January 10, 2022, EFIT assumed responsibility … and … the Stipulated Order to finish a Use of Force investigation. EFIT learned that an IAFD detective experienced an equipment malfunction and lost the evaluative narrative.

Given past poor communications issues internally with [Internal Affairs Force Division and externally with EFIT, and the fact that the investigation was in serious jeopardy of becoming time-barred, EFIT assumed the investigation. This case was completed by EFIT, but it also went through the Supervisor and Command review and was closed in 87 days on February 6, 2022.”

[INCREASED SUPERVSION NEEDED AT ALL LEVELS]

“EFIT continues to recommend increased supervision at all levels of APD Internal Affairs Force Division going forward to prevent the takeover of cases from occurring in the future. In addition, such supervision is necessary to ensure that APD Internal Affairs Force Division Detectives/Investigators are adhering to the procedures contained in the Process narrative. These issues are particularly acute at the Sergeant, Deputy Command and Command levels.

Without the first line supervisors taking this role, it will continue to prolong the EFIT oversight of IAFD. The EFIT Executive Team will continue to monitor these issues very closely going forward. Finally, the relevant documents governing EFIT also outline the process Internal Affairs Force Division and EFIT need to take if a Use Of Force might subject an APD officer to criminal liability. EFIT/IAFD have not made any referrals to the Multi-Agency Task Force during this reporting period. Closed UOF cases are presented to the FRB.”
… .

[MAJOR ACCOMPLISHMENT]

“The EFIT Executive Team is pleased to report that it established protocols … to begin to transition IAFD Detectives/Investigators to conduct interviews without EFIT’s direct supervision. Once a Detective/Investigator is identified by an EFIT Investigator, Supervisor, or Executive Team Member as attaining the requisite capabilities to conduct interviews without EFIT’s direct supervision, the EFIT Executive Team determines whether the IAFD Detective/Investigator may conduct interviews.
…
[TRANSFERING DETECTIVES TO INTERVIEW TRANSITION PROCESS]

“Beginning on January 17, 2022, to present, the EFIT Executive Team identified nine Detective(s)/Investigator(s) from Internal Affairs Force Division that will be moving into the Interview Transition Process. EFIT will continue to identify Detectives/Investigators who are eligible to enter the Interview Transition Process. If successful in this process, these Detectives/ Investigators/Detectives will become the first to conduct complete investigations without direct EFIT supervision of EFIT. Additionally, as of this report, these Detectives/Investigators completed interviews without EFIT’s oversight. EFIT’s evaluation of these interviews has been very positive to date and members of IAFD admitted into this process are complying with the aforementioned Interview Transition Policy, EFIT investigators reported a positive interaction.

The EFIT Executive Team continues to meet with all Area Commanders and many of the specialized unit Commanders, to explain the EFIT process, its protocols, and what their officers can expect upon EFIT responding to UOF incidents. Additionally, it was important for Commanders to freely relay concerns they are experiencing with the Use of Force investigative process. The EFIT Executive Team continues to conduct field visits and various Division briefings concerning EFIT, specifically any changes or modifications to the Process Narrative and relevant protocols.”

[LEVELS OF PROFESSIONALISM ESTABLISHED]

“… EFIT … accomplished several changes to the IAFD investigatory process and established a certain level of professionalism within the IAFD team. The EFIT Executive Team addressed a number of significant issues facing APD. Indeed, the Process Narrative and associated protocols were revised on more than one occasion as a result of updates required to address issues. …

Investigative reports are improving with each EFIT review and IAFD is now presented with high-quality reports for the Supervisory, Command, and FRB review. EFIT believed that it was imperative that the tone and tenor – in accordance with the seriousness of these investigations – was established at the outset. That professionalism continues to develop as EFIT moves forward.”

[INTERVIEW INTERRUPTIONS BY UNION REPRSENTATIVE]

“EFIT reported on the prior actions of the APOA where the union’s representatives interrupted interviews in clear contravention of the Collective Bargaining Contract. While EFIT, for the most part, did not experience these issues, unfortunately there were incidents where representatives interrupted interviews in an unprofessional manner. When such conduct was identified, EFIT Administrators met with the Union’s Attorney and the union Vice President and notified them that such conduct would not be tolerated in the future. The union attorney informed all participants that he would address these issues with the relevant APOA representatives and such conduct would immediately cease. …”

[INCOMPLETE FORMS]

“With regards to forms, there remains a continuing concern that admonitions and witness statements are incomplete from the Use of Force scene. Admonishments and witness statements are still taken by both Internal Affairs Force Division Detective/Investigators and field officers that lack much of the important witness’s biographical data, contact information and case information.

IAFD must ensure that if documentation is obtained by field officers documentation needs to be reviewed by IAFD for completeness. In addition, Supervisors must ensure that Detectives/Investigators complete the relevant forms. [EFIT has] recommended… and reviewed accepted forms and encourage the standardization of use within the Division to capture all the pertinent information needed for a law enforcement investigation.”
…
[USE OF FORCE INVESTIGATIONS OUT OF COMPLIANCE]

As the EFIT Executive team noted [above] out of the 141 (34.04%) of the UOF investigations closed by EFIT/IAFD were out of compliance when evaluated against the Process Narrative. It should be noted that 32 of these 48 investigations (66.66%) were out of compliance in part for lacking accurate and/or effective investigative plans. This is a fundamental failure at the IAFD supervisory level and is an impediment in transitioning IAFD UOF investigations back to APD without EFIT’s involvement. Where EFIT identifies those Detectives/Investigators that are found to be lacking in certain skill sets discussions are immediately held with IAFD Command to address the areas in need of improvement.

While EFIT is not involved with misconduct investigations stemming from a Use Of Force investigation, the EFIT Executive Team observed that when closing out Use of Force cases, Internal Affairs Force Division often requests extensions for the misconduct investigations, which would authorize them to extend the investigation to 120 days. However, certain of these cases exceeded required timelines and are over 120 days. This issue was also raised by the Force Revie Board voting members, as Use of Force investigations are presented to the FRB while the misconduct case is still pending resolution. EFIT believes that misconduct investigations resulting from a Use of Force should be concurrent investigations with Use Of Force closures.
… .

[ON-SCENE ACCOUNTABILITY CHECK-LIST]

“EFIT recently discovered that Internal Affairs Force Division personnel present on-scene for tactical activations were haphazardly collecting the Special Operations Division (“SOD”) On-Scene Accountability Check-list. … This SOD On-Scene Accountability Checklist must be completed by the Tactical On-scene Sergeant and provided to Internal Affairs Force Division/EFIT. …

Specifically, this form lists everyone who is on scene, the force used and/or witnessed and must be collected prior to, or during the on-scene briefing. This is a roadmap to ensure that everyone is accounted for, admonished, photographed and all necessary protocols have been met and completed. Additionally, EFIT recommended a procedural change and Special Order be issued regarding an SOD Tactical Activation when assistance is required by an outside law enforcement agency at the direction of the APD SOD Tactical Commander and the assisting agency utilizes force. … .”

[NOTIFYING SWORN WHEN CASES CLOSED]

“During the December 16, 2021 hearing on the Federal Monitors 14th Report, the EFIT Administrator … advised the court that EFIT was told that officers utilizing force were never provided with a disposition letter after cases were closed by Internal Affairs Force Division. The EFIT Administrator found it unconscionable that an Officer would not know whether his use of force was found in or out of policy. A letter notifying the Officers was developed and approved by APD in November 2021, however, due to numerous administrative delays the letter was never sent to Officers. As a result of subsequent actions taken, APD Officers are now notified when force investigations are closed by Internal Affairs Force Division / EFIT and the findings of same.”

[USE OF FORCE INCIDENTS INVESTIGATED]

“EFIT constantly monitors the Use Of Force investigation case assignments to ensure that work is distributed evenly within Internal Affairs Force Division. On average each Detective/Investigator has 4 Use Of Force investigations. This issue is crucial to ensure that the applicable timelines are met. This issue becomes particularly acute as assignments are made between sworn officers and civilian investigators.

It should be noted that EFIT is not advocating speed at the expense of a thorough and complete investigation. However, EFIT believes that it is possible to have a thorough and complete investigation in a timely manner. When EFIT provides direct guidance during a UOF investigation the total completion time is averaging 88.86 days. EFIT believes that with proper supervision by [Internal Affairs Force Division] these investigation and review timelines will decrease.”

[TIMELY COMPLETION OF INVESTIGATIONS]

EFIT is also concerned that the timely completion of investigations will cease upon transfer back to IAFD.

A Detective/Investigator must still attain a 95% proficiency rating for two consecutive terms before they are deemed proficient to conduct investigations outside of the presence of an EFIT investigator. The EFIT Executive Team also established protocols to ensure that IAFD continues to advance the investigatory process as outlined above.
… .

The link to the complete, unedited EFIT Second Quarterly Report with attached exhibits is here:

https://www.cabq.gov/police/documents/efit-second-quarterly-with-exhibits-02-16-22-stamped.pdf

MELTDOWON OF CIVILIAN POLICE OVERSIGHT AGENCY

A major reform measures mandated by the Court Approved Settlement Agree (CASA) is the creation of a full time, professional (CPOA) with a full time Director and investigators and with a 9-member, all-volunteer Civilian Police Oversight Board appointed by the city council. The CPOA board is ultimately responsible for investigations of police misconduct and making recommendations to the Chief of Police for disciplinary actions. Early December, 2021, it was reported that the Chairman of CPO resigned along with 3 others. The resignation came less than 2 months after the CPOA resigned and less than 1 month after the Superintendent Of Police Reform announced his retirement at the end of December. All 5 positions remain vacant.

COMMENTARY AND ANALYSIS

Review of the EFIT second quarterly report indicates that it is making progress. However, there are any number of mandatory provisions under the Court Approved Settlement Agreement that makes it difficult for APD’s Internal Affairs to do its job. Those include:

APD management must now hold all subordinate police officers accountable for all levels of violations of standard operating procedures.

APD Police officers are required to intervene when they witness and are concerned about other officer’s use of force. “Old guard” police officers view it as a “snitch” program where officers turn on fellow officers.

Sworn police officers believing that many standard operating procedures should not be enforced as being too petty or serving no useful function.

The mandatory “paper work” associated with any degree of use of force is too cumbersome.

Mandatory notification to superiors for investigation by police officers who witness another officer’s “excessive use of force” or violations of CASA reforms.

CITIZENS POLICE OVERSIGHT

The Citizens Police Oversight Commission is in constant political turmoil and currently has 4 vacancies. It is also clear that Citizens Police Oversight Commission, for a all of its good intentions, is in a complete meltdown incapable of doing its job of police oversight and should be abolished as unworkable and unsustainable as voluntary commission.

APD has consistently shown over many years it cannot police itself which contributed to the “culture of aggression” found by the Department of Justice. The APD Internal Affairs Unit needs to be abolished along with the Citizens Police Oversight Board and their functions absorbed by the Office of the Inspector General. The EFIT should be made permanent and be a unit of the General Council’s office.

COMMENTARY BY CHARLES ARASIM ON POLICE OVERSIGHT AGENCY

“It is obvious the City has failed in correcting APD structural and systemic deficiencies of insufficient oversight, inadequate training, and ineffective policies that contributed to the 2014 DOJ Investigative Report findings that APD engaged in a pattern and practice of excessive use of force, including deadly force, in violation of the Fourth Amendment.

Seven years of existence has not resulted in quality, rigor, or consistency in processes by the Board or the Executive Director’s office when conducting civilian complaint investigations or review of APD findings in serious uses of force or officer involved shooting incidents.”

FINAL COMMENT

Simply put, APD is incapable of policing itself and APD’s Internal Affairs continues to fail miserably. Sworn police by their very nature and loyalty to each other look the other way when it comes to police misconduct. The Citizens Police Oversight Commission, although created with good intentions, is also a failure with an all citizen volunteer board members unwilling and likely incapable of working with each other. The Citizens Police Oversight Commission should also be abolished.

The investigation of police misconduct cases and all use of force cases and serious bodily harm cases should be done by “civilian” personnel investigators not by Internal Affairs nor by the Citizens Police Oversight Commission.

The function and responsibility for investigating police misconduct cases and violations of personnel policy and procedures by sworn police should be assumed by the Office of General Council in conjunction with the City Human Resources Department and the Office of Internal Audit where necessary. The Office of Independent Council would make findings and recommendations to the Chief of Police for implementation and imposition of disciplinary action.

It has been reported that on February 23, the Albuquerque City Council will be meeting to discuss the contract with the Albuquerque Police Union. That includes raises for officers.

https://www.krqe.com/news/albuquerque-metro/city-councilors-consider-albuquerque-police-union-bargaining-agreement/#:~:text=(KRQE)%20%E2%80%93%20Albuquerque%20city%20councilors,That%20includes%20raises%20for%20officers.&text=A%20new%20police%20officer%20would,pay%20to%20%2432.89%20per%20hour.

When it comes to any final vote to approve the collective bargaining contract Keller Administration negotiated with the APD Union, the council by amendment to the city council police union contract approval resolution, should vote YES to approve the pay provisions but vote NO and deny approval of the remaining terms of the contract.

By amendment to the resolution approving the union contract, the City Council can vote to approve the hourly pay raises but defer the approval of the remaining terms of the contract. The city council should instruct the Keller Administration to return to the bargaining table with the police union and negotiate a new contract and negotiate those terms that are in conflict with Federal and State law.

CONTRACT NEGOTIATED

On February 4, it was reported that the Keller’s administration had negotiated a new police union contract making APD the best paid law enforcement agency in the region by increasing hourly wages and longevity pay and creating a whole new category of “incentive pay”.

The police union contract containing the pay increases was signed on December 30, 2021 by Mayor Tim Keller, City Attorney Estaban Aguilar, City Clerk Ethan Watson and Police Union President Shaun Willoughby. The 48-page APOA police “Collective Bargaining Agreement” (CBA) is for 1 year and 6 months period. It is effective January 1, 2022 through June 30, 2023. The new CBA can be down loaded as a PDF file at this link:

https://www.cabq.gov/humanresources/documents/apoa-jul-9-2016.pdf/view

NEGOTIATED PAY AND OTHER TERMS

Under the signed contract, APD’s starting wage is well above cities and law enforcement agencies of comparable size including Tucson, Arizona, $54,517, and El Paso, Texas, $47,011. The negotiated hourly pay increases are as follows:

2 to 4 year service pay goes from $60,320, yearly, or $29 hourly, to $68,411.20 yearly, or $32.89 hourly.
5 to 14 year service pay going from $62,400, $30 hourly to $70,761 yearly, $34.02 hourly
15 or more years service pay going from $65,520, or $31.50 hourly TO $74, 297 A YEAR or $35.72 hourly.
Sargeant pay going from $72,800, or $35 hourly, to $82,533 a year, or $39.69 hourly.
Lieutenant pay goes from $83,200, or $40 hourly to $94,348 yearly or $45.36 hourly

Under the contract terms, longevity pay increases by 5% starting on July 1, the beginning of the new fiscal year starting at $2,730 per year with those who have 5 years of service and with incremental service years up to 17 years or more who will be paid $16,380.

Under the union contract, sworn police are entitled to overtime compensation at the rate of time-and-one-half of their regular straight-time rate when they perform work in excess of forty (40) hours in any one workweek. Time worked over 40 hours per week is compensated at time and a half of the officer’s regular rate of pay, or in the form of “compensatory time.” There is no contract provision placing a cap on the amount of overtime any officer can be paid.

The union contract allows the management positions of sergeants and lieutenants to be union members. The new union contract contains no accountability provisions under the Department of Justice Court Approved Settlement Agreement (CASA). The settlement reforms have been resisted and opposed by the police union.

NEW UNION CONTRACT ACTAULLY OLD EXPIRED CONTRACT

During the February 9, 2022 second hearing in Federal Court on the court Approved Settlement Agreement, APD Police Union attorney Fred Mower told Judge James Browning that the contract is not new but actually the previous contract containing the identical terms and conditions of the previous contract that expired on June 30, 2019. Mower insisted that only salary pay increases were negotiated.

The contract contains no “evergreen clause” which is a term that if a contract expires, and no new contract is negotiated to replace it, the terms of the expired contract continue until a new contract is negotiated. Evergreen clauses are required in government contracts.

POLICE UNION CONTRACT VIOLATES FEDERAL

On Friday, August 6, 2021, the New Mexico State Auditor’s long-awaited special audit report on overtime abuse by the Albuquerque Police Department (APD) was released. The 64-page audit was performed by the Albuquerque accounting firm Porch & Associates LLC. The audit covers the time period of January 1, 2018 to June 30, 2020. The link to the entire 64-page audit report is here:

https://drive.google.com/file/d/1sIsbWAGpIC2mDFs8bsbQ1BhYDOSXH8Ig/view

According to the special Audit Report, it was the 7th audit performed on APD overtime practices since 2014. The audit includes the second term of previous Republican Richard Berry and the first 2 ½ years of Democrat Mayor Tim Keller’s 4-year term. The 6 prior audits resulted in 17 findings and recommendation made.

There was an absolute failure by APD command staff to carry out and implement the changes needed to solve the overtime problem. The released audit identified that certain APD police union contract terms and conditions are in violations of the Federal Labor Fair Standards act and that the police union contract has contributed significantly to the overtime pay abuse by rank-and-file police officers.

https://www.petedinelli.com/2021/08/16/state-auditor-brian-colon-foolish-saying-his-audit-on-apd-overtime-abuse-will-result-in-100-compliance-160-police-union-members-made-between-110000-to-200000-in-2019-and-2020-because-of-overt/

The New Mexico State Auditor’s Special Audit report made it clear that the APD police union contract violates the Federal Fair Labor Standards Act (FLSA). Specifically, the Fair Labor Standards Act provides:

“Paid leave is not considered time worked for the purposes of computing overtime”.

The audit goes as far as saying terms of the union contract need to be negotiated and that the City can save thousands of dollars in overtime by insisting that the APOA police union and APD follow the Fair Labor Standards Act. The audit also said the City should not bargain away what is established by law.

The audit recommended that the City negotiate with the police union to remove the guaranteed overtime and replace it with actual time. Actual time would start when the officer leaves their home, or work assignment if after a normal shift, through the time they get home.

UNION CONTRACT VIOLATES NEW MEXICO STATE LAW

The Porch & Associates State Audit downplayed and essentially ignored the role of the APD Union membership of Sergeants and Lieutenants and the union contract in the entire overtime abuse scandal.

The New Mexico Public Employees Bargaining Act, Sections 10-7E-1 to 10-7E-26 H (NMSA 1978), governs the enforcement of the city’s collective bargaining agreement with the APD police union. Section 10-7E-5 provides for the rights of public employees and states in part:

“Public employees, other than management employees and confidential employees, may form, join or assist a labor organization for the purpose of collective bargaining … .”

The link to the statute is here:

https://www.pelrb.state.nm.us/statute.php

It is Section 1.3., page 3, of the police union contract that allows the management positions of APD sergeants and lieutenants to join the union as follows:

“The APOA is recognized as the Exclusive Representative for regular full time, non-probationary police officers through the rank of Lieutenants in the APD … .”

The argument has been made by the police union President Shaun Willoughby in open federal court that APD sergeants and lieutenants are not management positions. Union advocates argued that sergeants and lieutenants are “supervising coworkers” or colleagues who are part of rank and file that give commands and that provide leadership support functions, but they are not management. The argument is as bogus as it gets and does not eliminate the conflict of loyalties between management and employee relations.

The Police Union President Shaun Willoughby has also argued that sergeants and lieutenants could form their own union if they wanted to. Even if that were the case, there would be a clear separation of management to sworn police eliminating conflicts of interest.

The argument that sergeants and lieutenants are not management is contrary to basic management principals and best practices under labor law. The fact is sergeants and lieutenants are management responsible for oversight and disciplinary action of subordinates.

At one time, APD Captains, now named Commanders, were allowed to join the union. Their union membership, as is the case with sergeants and lieutenants, resulted in extreme conflicts of interest in carrying out management policies, and they were prohibited from joining the union.

The New Mexico Public Employees Bargaining Act, Sections 10-7E-1 to 10-7E-26 H (NMSA 1978), governs the enforcement of the city’s collective bargaining agreement with the APD police union. The link to the statute is here:

https://www.pelrb.state.nm.us/statute.php

As the union contract as written, it is in violation of New Mexico Public Employees Bargaining Act. Section 10-7E-5 entitled Rights of public employees provides as follows:

A. Public employees, OTHER THAN MANAGEMENT EMPLOYEES and confidential employees may form, join or assist a labor organization for the purpose of collective bargaining through representatives chosen by public employees without interference, restraint or coercion and shall have the right to refuse those activities. (Capitalization added for emphasis)

Simply put, the plain language of the statute makes it clear management are prohibited from joining unions. The new police union contract allowing the APD management positions of sergeants and lieutenants to be police union members clearly violates state law and is therefore void from the beginning and therefor unenforceable.

Under state labor law, management is not allowed to join unions. The union contract again allows APD management positions of sergeants and lieutenants to be police union members, violating state law. The police union is a party to the federal settlement case. The union has obstructed the implementation of the mandated reforms. The federal monitor has repeatedly found it is sergeants and lieutenants who are resisting management’s implementation of the DOJ reforms. Sergeants and lieutenants should have been removed from the bargaining unit and made at-will.

NO PROVISION CAPPING OVETIME PAY

It is the mandated overtime provisions of the union contract that has led to major controversy and scandal at times, including overtime time card fraud.

When you add overtime paid to the base hourly pay mandated under the contract, the net result is the sworn police can be paid twice or three times as much in base pay and well over $100,000 and upwards of $200,000 a year.

No effort was made to reduce the number of hours allowed for overtime a sworn officer can be paid nor limiting it to rank and file and not management who are at will. From a personnel management standpoint, excessive overtime can lead to serious burn out, reduce the alertness of an officer and endanger public safety. But the union only sees the dollar signs and could care less how much excessive overtime a cop works, just as long as they get paid for it.

During the last 10 years, the Albuquerque Police Department has consistently gone over its overtime budgets by millions. In fiscal year 2016, APD was funded for $9 million for over time but APD actually spent $13 million. A March, 2017 city internal audit of APD’s overtime spending found police officers “gaming the system” that allows them to accumulate excessive overtime at the expense of other city departments. A city internal audit report released in March, 2017 revealed that the Albuquerque Police Department spent over $3.9 million over its $9 million “overtime” budget.

https://www.petedinelli.com/2018/03/30/apd-overtime-pay-abuse-and-recruitment-tool/

NO EVERGREEN CLAUSE

The fact that there is no evergreen clause in the contract has proven problematic and was an issue considered by the Federal Court in the Court Approved Settlement Agreement. An evergreen clause is a term that if a contract expires, and no new contract is negotiated to replace it, the terms of the expired contract continue until a new contract is negotiated.

Federal Court Judge Browning raised the issue questioning if there was a binding police union contract and was relegated to do his own research on the matter and concluded the expired union contract terms were enforceable but noted the oversight. Despite how problematic it is, the contract still does not have an evergreen clause.

NO PROVSIONS TO DEAL WITH COURT APPROVED SETTLEMENT AND POLICE ACCOUNTABBILITY

The Keller administration failed to get concessions from the union on police misconduct accountability.

In his latest report, the federal monitor found 667 uninvestigated use-of-force cases. All non-force-related misconduct investigations completed by APD were found to be deficient. Approximately 83% of the cases were time-barred for discipline in accordance with the collective bargaining agreement should misconduct be found.

Three provisions that need to be included in the contract but opposed by the union are:

• The contract provision barring the city’s Civilian Police Oversight Agency (CPOA) board members from knowing the names of officers investigated by the agency. This provision undermines the purpose and intent of the CPOA to identify sworn officers who have a history of misconduct and who should be disciplined or terminated.

• Police oversight advocates, such as APD Forward, wanted to increase the amount of time for the city to complete police misconduct cases. Under the previous contract, 90 days for police misconduct investigations with an optional 30-day extension with the police chief’s approval, was provided. However, in practice, the 90 days is not sufficient.

COMMENTARY AND ANALYSIS

Under the city charter, it is the Chief Admirative Officer that has the exclusive authority over personnel matters. the personnel rules and regulations and primarily responsible for union negotiations. They Mayor is prohibited from becoming involved in personnel matters involving classified employees.

It is also clear that the Albuquerque City Council is not allowed to participate in any way in union contract negotiations. Notwithstanding, the City Council does have the authority to insist and require that certain city policy terms and conditions be included in all contracts. In particular, the city council could decree as a matter of city policy that management not be allowed to join unions and define what management is under the personnel rules and regulations.

The Albuquerque City Council plays a crucial oversight role of the Albuquerque Police Department (APD) including controlling its budget. Inherent in its authority when it comes to Albuquerque Police Department (APD) reforms, is to challenge the Administration and the APD command staff demanding compliance with the Department of Justice (DOJ) consent decree reforms.

From review of the police union contract, the Keller administration’s negotiated contract with the police union is lost opportunity to oversee the department and reform the Albuquerque Police Department and implement the DOJ reforms under the settlement. No doubt the union is ecstatic, given the fact that the Keller administration did exactly what it did four years ago. It caved into union demands, giving the union all the pay increases it demanded.

During the 2021 municipal elections for City Council, City Councilors Dan Lewis, Renee Grout and Louis Sanchez all proclaimed they would hold the Keller Administration accountable. The newly elected city council is now at a cross roads when it comes to their oversight authority of the Albuquerque Police Department and to the Keller Administration.

The City Council can simply act as a “rubber stamp” to the Keller Administration and approve the negotiated contract and all of its terms without question. If the City Council truly wants to hold the Keller Administration accountable, the city council should vote YES to approve the raises and vote NO to approve the remaining contract terms and order the Keller Administration back to bargaining table and negotiate a new police union contract that conforms with both state and federal law. The council should outline what terms it wants in the new contract as to who should be included in the bargaining unit, overtime pay and the police reform mandates.

Links to related blog articles are here:

Third Year In Row Over Half Of Top 250 City Wage Earners Sworn Police; APD Police Union Contract Violates Federal And State Labor Laws; After Over 6 Months, Special State Audit Has Not Reduced APD Overtime

City, APD Union Negotiate New Contract; Keller Squanders Another Opportunity For APD Police Reform; Hourly Pay Increased 8%; Longevity Pay Increased 5%; New “Incentive Pay” Created; Overtime Remains; Sergeants And Lieutenants Remain In Union; DOJ Accountability Provisions Excluded

The final tally of murders in the city for 2021 is 117. It shattered the previous 2019 record by 36 murders.

Following is the raw data breakdown:

Total Homicides: 117
Number of “justified homicides” excluded from total: 10
Per Capita Number: 20.8 per 100,000
Number of homicides Involving guns: 97
Number of cases solve or closed: 40
Number of case solved from previous years: 10
Oldest victim: 66
Youngest victim: 2

The link to quoted source material is here:

https://www.abqjournal.com/2458296/remembering-some-of-2021s-homicide-victims-in-abq-ex-total-

The first homicide of 2021 happened on January 8 and the last occurred on December 31. Not at all surprising is that it is believed that the dramatic increase in homicides and robberies is drug related.

AUDIT REVEALS HOMICIDE CASES ASSIGNED TO DETECTIVES NO LONGER IN HOMICIDE UNIT

On Sunday, February 13, the Albuquerque Journal reported that during the summer of 2021 APD conducted an audit on open homicide investigations and found that there were 85 cases assigned to detectives who were no longer in the homicide unit. Among the 12 detectives listed, several had more than 10 unsolved cases and one had 16. In other words 73% of all the homicides that occurred last year were assigned to detectives that are no longer in the homicide unit.

The link to the full Albuquerque Journal article is here:

https://www.abqjournal.com/2469703/left-in-limbo-ex-victims-grieving-families-feel-like-their-cases-ha.html

Deputy Commander Hartsock said the homicide cases range as far back as 2014, but the majority are from 2016 to 2020. According to Hartsock:

“We operated under this idea that [homicide detectives] were still going to do it … [and the detectives were not pushed to complete cases after they left the homicide unit.] … And to the defense of the detectives, they have met the families, and they literally want to solve the case. … They want to keep it because they feel like they’re the only ones that can solve it. But the practice didn’t play out that way. They have other responsibilities, other duties.”

TRANSFERRING CASES

Quoting the pertinent portions of the Journal article:

“When a detective is working on a case, the investigative documents are kept in a brown accordion folder. When the detectives left the unit, they would take that folder with them, meaning the case files are spread throughout the police department.
…
Now, when a detective wants to transfer to another position, the move will not be allowed until the detective’s cases are completed and submitted to the unit’s leadership, according to the memo on outstanding homicide case management.

“As, hopefully, homicides slow down and staffing goes up we are going to effectively deal with these cases systematically. None of them close, none have statute limitations on them. Our biggest fear, of course, is that we don’t want anyone to repeat crimes.”

The link to quoted news source material is here:

https://www.abqjournal.com/2469703/left-in-limbo-ex-victims-grieving-families-feel-like-their-cases-ha.html

FOUR YEARS OF HISTORICAL HIGH HOMICIDE

In 2018 there were 69 homicides. In 2019, there were 82 homicides. Albuquerque had more homicides in 2019 than in any other year in the city’s history. The previous high was in 2017 when 72 homicides were reported. The previous high mark was in 1996, when the city had 70 homicides. The year 2020 ended with 76 homicides, the second-highest count since 1996. The decline dropped the homicide rate from 14.64 per 100,000 people in 2019 to about 13.5 in 2020. 2021 ended with the city shattering the all time record with 117 homicides in one year and a per capita murder rate of 20.8 per 100,000.

https://www.abqjournal.com/1534762/homicide-numbers-high-despite-pandemic.html?amp=1

CITY’S HISTORICAL HOMICIDE CLEARANCE RATE HALF NATIONAL AVERAGE

Each year since 1995, the FBI has released annually its Crime In The United States Report. Following are the national clearance rates for 2016, 2017, 2018 and 2019 as reported by the FBI:

In 2016: 59.4%. national clearance rate for murder
In 2017: 61.6% national clearance rate for murder
In 2018: 62.3% national clearance rate for murder
In 2019: 61.4% national clearance rate for murder

https://www.fbi.gov/services/cjis/ucr/publications

From 2019 to 2020, police across the country solved 1,200 more murders, a 14% increase. But murders rose twice as quickly by 30%. As a result, the homicide clearance rate, the percentage of crimes cleared, dropped to a historic low to about 1 of every 2 murders solved or by 50%.

https://www.themarshallproject.org/2022/01/12/as-murders-spiked-police-solved-about-half-in-2020

For the years 2019 to 2021, the city’s homicide clearance percentage rate has been in the 50%-60% range. According to the proposed 2018-2019 APD City Budget, in 2016 the APD homicide clearance rate was 80%. In 2017, the clearance rate was 70%. In 2018, the homicide clearance rate was 56%. In 2019, the homicide clearance rate was 52.5%, the lowest clearance rate in the last decade. In 2020 APD’s clearance rate dropped to 50%. APD’ clearance rate has now dropped to 30%.

APD Deputy Commander Kyle Hartsock oversees the homicide unit. On January 20, Hartsock said APD is investigating 115 homicides from last year, including a missing persons case from Belen and of that number, only about 30% have been closed, which is an all-time record low for APD.

Links to news source material are here:

https://www.koat.com/article/abq-crime-homicide-arrests/38820745

https://www.kob.com/news/albuquerque-homicide-map-2022/6350373/

https://www.abqjournal.com/2463551/apd-investigates-death-in-sw-albuquerque.html

https://www.abqjournal.com/2460901/apd-investigating-homicide-in-southwest-albuquerque-2.html

APD’S HOMICIDE UNIT

APD’s homicide unit has 11 detectives and two sergeants for a total 13 sworn police. However, it was reported by an spokesperson that on January 20, the homicide unit has 5 vacancies.

https://www.koat.com/article/abq-crime-homicide-arrests/38820745

Last year, homicide detectives each were working anywhere from 9 to 15 cases. Because some cases are quickly resolved, the number of “active” cases for each detective varies.

APD Police Chief Harold Medina addressed the caseload of active cases by saying:

“We also understand that they go through times where they get a lot of cases that come in. … So there’s also been a time where we took all the detectives city-wide and we transferred them into homicide for a short period to help them catch up with warrants, interviews, or anything else that may be slowing down these investigations. That’s the first step that we’ve taken.”

Chief Medina was also asked how APD will handle the 2021 cases this year in 2022 as homicides continue. In response, Medina said APD is working on developing and expanding the cold case unit and said:

“We don’t want them to lose traction. We want someone to continue looking at them. I know the impact it has on families firsthand. Earlier this year we did the story on someone I knew growing up, 30 years later, we’re able to solve that case. I know the closure that brings to families so we’re still looking to see how they are going to be handed off over and how they’re going to be handled and who, what efforts are going to be put into them. There has to be a priority system on the ones that have the most solvability factors.”

The link to the quoted news source is here:

https://www.kob.com/albuquerque-news/apd-36-of-2021-homicides-solved/6349356/?cat=500

Deputy Commander Kyle Hartsock had this to say about the 30% clearance rate:

“A homicide case never closes in Albuquerque Police Department. It just never closes. We either make an arrest or the DA’s office makes a determination, or it just stays open. … We’ve seen a downward trend [in clearance rates] over the past two years, but we’re on the road to correct it now. … A lot of these things and programs that we started in the past several months, they are taking shape just specific to murder investigations, and we’re seeing higher quality murder case is being developed internally by our detectives and with our crime lab and our partners.”

Hartsock reported that in mid-January, APD made several arrests in connection to homicides. He credited that to the oversight of the day-to-day tasks for homicide detectives, adding certain milestones to a case and having more eyes looking over cases. Hartsock said this:

“Instead of just one person deciding to need a resource now, it’s a little bit more of a group deciding what resources this case needs. And then when we do review it with supervisors and people that have been doing this for a while, we’re pulling off pieces a little bit quicker.”

“WORKING ON RECIPES” TO DEAL WITH “CRUSHING” HOMICIDE CASE LOAD

Deputy Commander Hartsock said the one thing that is hindering the closure of homicide cases is the number of detectives with the number fluctuating. The homicide unit has 11 to 12 detectives and the goal is 16.

Fluctuating staffing is only part of the overall problem when it comes to homicide clearance rates. The biggest problem is the continuing rise of homicide cases. This year the department is investigating six new homicides, three of which happened in roughly 24 hours.

Hartsock had this to say:

“The average homicide detective, the research that’s been done in America for urban police departments, they seem to get more than five or six new homicide cases a year. We’ve been over that, that number for a handful of years. So it’s just it’s literally it’s just too many. That is absolutely crushing to a homicide unit because it’s not giving our primary a lot of time and space to really work that first line as far as they want to work it. They only get to work it for a day or two. And just like that, they got to work the next one. That’s not a good recipe. So we’re working on the recipes.”

Hartsock said APD has victim advocates for victims of violent crime. It includes domestic violence, sex crimes and family of homicide victims. According to Hartstock:

“We will set up an in-person meeting if they want or phone call whatever they want, and get them caught up on it. They deserve that transparency,”

https://www.koat.com/article/abq-crime-homicide-arrests/38820745

APD HOMICIDE UNIT HAS DUBIOUS HISTORY OF BOTCHED INVESTIGATIONS

The APD Homicide Unit has a dubious history of botching a number of high-profile murder investigations. The APD Homicide Unit has compiled a history of not doing complete investigations, misleading the public, feeding confessions to people with low IQs, getting investigations completely wrong and even arresting innocent people.

A listing of homicide investigations reflecting negligence include:

2005 to 2008: Robert Gonzales, a mentally retarded young man was arrested by APD and charged with the rape and murder of an 11 year old neighbor. Weeks after the arrest DNA evidence confirmed Gonzales was not the offender. The Homicide and the Bernalillo County DA never turned this evidence over to the court and defense attorneys. Only after Gonzales spent 965 days in jail for a crime he didn’t commit and and only after he was released by the judge was the DNA evidence exposed.

2007 to 2011: Michael Lee and Travis Rowley, working as a group of salesmen, were arrested and charged with the murders and rape of an elderly Korean couple. Both Lee and Rowley had below normal IQs. Lee confessed to the murders, Rowley did not. Shortly after the arrests, DNA evidence excluded both men and confirmed that Albuquerque serial killer, Clifton Bloomfield was the offender. APD and the DA kept both men locked up for over a year before they were released.

2015 to 2016: Christopher Cruz and Donovan Maez are wrongly arrested for the murder of Jaydon Chavez Silver. They spent 10 months in jail before the Bernalillo County DA reviewed the entire case sent to them by APD Homicide, finding that there was no evidence that Cruz and Maez were involved. APD Homicide is alleged to have fed witnesses information for them to repeat in interviews and threaten witnesses to provide false information.

https://www.petedinelli.com/2018/07/02/abq-report-apd-homicide-units-legacy-of-shame/

MOST EGREGIOUS NEGLIGENT MURDER INVESTIGATIONS

The most egregious negligent murder investigation is the murder investigation of 10-year-old Victoria Martens. On August 24, 2016, she was murdered, dismembered and her body was burned in a bathtub. The initial APD Homicide investigation alleged that it was Jessica Kelley that stabbed 9-year-old Victoria Martens and that Fabian Gonzales strangled her while Michelle Martens, the child’s mother, watched the murder.

Gonzales was accused of drugging, raping and killing 10-year-old Victoria. After further investigation, Bernalillo County District Attorney Raul Torrez was forced to abandon the prosecution’s theory of the case and forced to drop the rape and murder charges against Gonzales. DA Torrez then accused Gonzalez of helping his cousin dismember the body of 10-year-old Victoria Martens after the child was reportedly killed by an unidentified man who was looking for Gonzales for revenge.

It was revealed that Jessica Kelley did not murder the child. Michelle Martens falsely admitted to committing the crimes. Forensic evidence revealed she and her boyfriend Fabian Gonzales were not even in the apartment at the time of the murder, they did not participate in the murder and that there was an unidentified 4th suspect in the case who committed the murder with supposedly DNA evidence found on the child’s dead body. The unidentified 4th suspect in the case is still at large.

https://www.abqjournal.com/1393384/fabian-gonzales-released-from-mdc.html

On December 5, 2019, 17-year-old Albuquerque High School Student Gisell Estrada was arrested and charged with a murder she played no part in. She was never arrested before and had absolutely no criminal record of arrest and conviction of any crime, misdemeanor nor felony. She spent 6 full days in jail on a case of “mistaken identity.” Notwithstanding the motion for detention, Estrada was released six days later after she was arrested and the charges were dismissed.

LEADING A HORSE TO WATER

As the saying goes, you can lead a horse to water, but cannot make it drink. Same goes for the APD homicide unit.

In 2019, the firm “Law Enforcement Training and Consulting Services” were retained on a three-month, sole source contract for $75,000 to train the APD homicide unit on investigations. All APD sergeants, detectives and lieutenants, who investigate and supervise violent crime investigations the time, were given the training.

A total of 126 APD personnel went through and completed the training and instructions provided by a former retired APD homicide detective now with “Law Enforcement Training and Consulting Services”. At the time of his retirement from APD, the former APD homicide detective had a 95% clearance rate, one of the highest in the country, and has been qualified as an expert witness in high profile cases on a national level.

COMMENTARY AND ANALYSIS

There is no getting around it. It is nothing but APD case management negligence and downright embarrassing that 85 homicide cases, or a whopping 78% of the cases from last year’s 117 cases are assigned to detectives who are no longer in the homicide unit.

The statistic without a doubt is a major red flag that the homicide unit is not a police unit any detective wants to work in. Detectives are leaving the unit as quickly as possible even after they are trained. It also indicative that homicide detectives are not “owning” the cases from start to finish because they are so overwhelmed as the body count continues to rise.

FOUR YEAR NEED IGNORED BY APD DEPUTY CHIEF AND CHIEF HAROLD MEDINA

There has been at least a 4 year need for two homicide units and far more detectives to be assigned to the homicide unit. To add insult to injury APD Chief Harold Medina was made Deputy Chief in Charge of Field Services when Mayor Keller first sworn into office 4 years ago, and Medina served in that capacity until he effectively orchestrated the termination of former Chief Michael Geier to become Chief with the help of CAO Sarita Nair .

Medina has always known how bad the homicide unit has been understaffed and has failed to perform, yet Medina did little next to nothing to increase the homicide unit. What APD Chief Medina has done in just the last year is to increase his Chief’s Office command staff from the decades normal of 3 Deputy Chiefs to a total Chief’s high command staff of 10, adding 3 new Deputy Chiefs positions and creating and hiring a whole new level of APD management by creating the positions of Assistant Commanders and hiring 14 new Assistant Commanders paying them upwards of $115,000 a year. Instead of hiring 14 Assistant Commanders at upwards of $115,000 each, Medina could just as easily hired far more APD sworn APD detectives with experience. Pay for a Master Police Officer first class with 15 years and above of service is $74,297 a year under the union contract.

The link to a related blog article is here:

https://www.petedinelli.com/2022/02/07/city-apd-union-negotiate-new-contract-keller-squanders-another-opportunity-for-apd-police-reform-hourly-pay-increased-8-longevity-pay-increased-5-new-incentive-pay-created-ov/

During an October, 2019 City Council meeting, APD management said it was working on new strategies to ease the workload on APD sworn officers and homicide detectives. During the October, 2019 City Council meeting, then APD Commander of Criminal Investigations Joe Burke had this to say:

“I would say in the long term if I was looking at a long-term solution—I believe we need two homicide units. I think the best practices around the nation normally have two homicide units. Detectives should be balancing between three to five investigations and we’re nearly double that.

… We absolutely need detectives in criminal investigations. … I was happy when I went over at the end of July and was briefed on the status of the unit that there’s a plan in place within the executive staff that when cadets are graduating from the academy that we’re going to get a certain percentage specifically for the criminal investigations bureau.”

WHAT NEEDS TO BE DONE

Given the sure number of homicides from last year and the pathetic 30% homicide clearance rate, the Homicide Investigation Unit needs to be increased to at least 25 detectives. Further, given the units low clearance rate and past performance, more needs to be done with respect to recruiting and training.

APD continues to be in a crisis mode and it needs to concentrate on recruiting seasoned homicide detectives from other departments if necessary. At the very least, APD needs to ask for temporary assignment of personnel from other agencies such as the Bernalillo County Sheriff’s Department or the New Mexico State Police to help clear out the cases.

The longer a homicide case takes to complete an investigation or is neglected because of lack of personnel, the less likely the cases will be solved and prosecuted. Adding to the crisis is the emotional toll an unsolved murder takes on the families of the victims.

People want results and want to feel safe. Victims of families of those killed also want justice. Taking years not identifying, arresting and prosecuting those that killed their loved ones only prolongs their mourning and it certainly is not justice.

During the 2022 New Mexico 30-day session that ended on Thursday, February 17, the “omnibus crime bill” was passed. House Bill 68 is a complete rewrite by the Senate Judiciary Committee. The committee took a number of individual crime bills advancing during the session and consolidated them into one “omnibus crime” bill.

House Bill 68 was passed in an effort to bring down violent crime rates. The major provisions of the bill are:

1. Enhanced penalties for brandishing a firearm in the course of committing a serious crime.
2. Eliminates the six-year statute of limitations for second-degree murder.
3. Creates a new crime of operating a chop shop.
4. Increases penalties for metal theft.
5. Sets up a fund for officer retention payments at five-year intervals.
6. Increases the death benefit for a fallen officer’s family to $1 million.
7. Enables statewide funding for violence intervention programs similar to ones in Albuquerque.
8. Requires the courts to turn over GPS monitoring data to police and prosecutors during a criminal investigation to allow better tracking of pretrial defendants on electronic monitoring in an effort to prevent a charge defendant awaiting trial from committing another crime.

NEW MEXICO DISTRICT ATTORNEYS WANT LINE-ITEM VETO

New Mexico’s 14 district attorneys, though the District Attorneys Association, are urging Governor Michelle Lujan Grisham to veto part of House Bill 68 proclaiming that even before it becomes law, it is problematic for them.

Specifically, the District Attorneys object to the section of the legislation that requires the judiciary to share defendants’ GPS data with law enforcement officers when requested for a criminal investigation. The enacted House Bill 68 provides the GPS information must be shared without a warrant if there’s a “reasonable suspicion” to believe the data would provide relevant evidence. The GPS data section was a provision contained in Senate Bill 225 sponsored by Albuquerque Democrat Senator Gerald Ortiz y Pino.

The state’s prosecutors contend the proposal will narrow their access to the location data of defendants who wear an ankle monitor before trial. The District Attorneys and law enforcement argue “reasonable suspicion” makes it too difficult for them to obtain information about suspects’ recent whereabouts.

The “reasonable suspicion” language was added to HB 68 by state senators during the Senate Judiciary Committee hearing presided over by Las Cruces Democrat State Senator Joseph Cervantes who is a highly respected and experienced trial attorney.

The “reasonable suspicion” language was added after Senators questioned Albuquerque Police Department officials, including career prosecutor and former United Sates Attorney for New Mexico Damon Martinez, who is now APD’s chief policy adviser and city lobbyist and questioning court administrators.

A LETTER TO THE GOVERNOR AS DISTRICT ATTORNEYS REACT

5th Judicial District Attorney Dianna Luce , the president of New Mexico District Attorneys Association, wrote a letter to Governor Michelle Lujan Grisham, requesting that the “reasonable suspicion” language be “line item vetoed” from the bill. She wrote that the data section of the bill was written without prosecutors’ input. Luce ignored the fact that former United Sates Attorney for New Mexico Damon Martinez testified before the Senate Committee.

District Attorney Dianna Luce wrote the Governor:

“[Reasonable suspicion will delay] law enforcement’s ability to respond to a potentially life-threatening situation, such as a pretrial defendant being at a domestic violence victim’s home. … [The bill] will make the public less safe and give pretrial defendants greater opportunities to commit crime while on release.”

Luce, whose district covers southeastern New Mexico, said the data-sharing is all the more important given the Legislature’s rejection of proposals designed to keep more criminal defendants in jail while they await trial.

DISTRICT ATTORNEY TORREZ POUTS LIKE A CHILD NOT GETTING WHAT HE WANTED

Bernalillo County’s District Attorney Raul Torrez, who is now running for Attorney General, expressed no confidence with the passage of House Bill 68. According to Torrez one of the biggest disappointments was the failure to pass the pre-trial detention bill. Torrez pouted like a child after not getting what he wanted and had this to say:

“The [legislature failed] to address the problem of the revolving door, specifically with regard to some of the most violent and dangerous defendants that we’ve got. People accused of murder, sexual assault, child abuse. Individuals who have been armed with firearms. … I’m concerned that we will once again see individuals who we have sought to have detained who have been released who will then go on to commit very serious crimes.”

Torrez had this to say about the “reasonable suspicion” provision of the bill:

“The bottom line is the provision on GPS actually makes our jobs more difficult. It narrows the categories of defendants we can seek information on and it creates a privacy right for defendants who are considered to be in custody while they’re on GPS.”

SENATE JUDICIAL COMMITTEE CHAIRMAN REACTS

It was Senator Joseph Cervantes who was instrumental and the led efforts to assemble and then enact the final version of House Bill 68. Cervantes said the District Attorneys’ interpretation of the bill is simply not accurate. Senator Cervantes pointed out that without the bill, District Attorneys have had to sue to obtain GPS records for defendants they deemed violent.

The language of the bill makes it clear that a search warrant is not required. A warrant would require evidence of “probable cause” from an affiant. The “reasonable suspicion” standard was added, during committee hearings, to ensure officers have a reason for requesting the data.

Senator Cervantes put it this way:

“[Reasonable suspicion is] about the lowest standard there is to try and obtain. … All they really have to show is that it’s in connection with an ongoing investigation. … [The legislation passed] should make the information more available to law enforcement officers. …”

On February 19, Senator Joseph Cervantes responded on TWITTER to District Attorney Dianna Luce’s accusation that the data section of the bill was written without prosecutors’ input and said:

“For prosecutors to claim they had no input ignores my invitations for their written input and opportunities to speak during committee meetings. They did neither, and sat on their hands throughout. Crickets.”

https://twitter.com/senjoecervantes/status/1495105458012495873?s=10

CITY REACTION

APD Commander for Investigative Support Aaron Jones said the enacted legislation requires turning data over to law enforcement “as soon as it’s needed” and said:

“To be sure, we did not get everything we wanted … but it is a step in the right direction.”

Both APD Commander Jones and former United Sates Attorney Damon Martinez served as expert witnesses when the bill was presented. It was after they were questioned by Judiciary Committee Senators that the “reasonable suspicion” language was added to the crime bill.

REBUTABLE PRESUMPTION OF DANGEROUSNESS FOR PRE TRIAL DETENTION REVISITED

A major contributing factor for the 14 State District Attorneys to ask the Governor to veto the reasonable suspicion language in the crime bill is their dissatisfaction with the legislature’s rejection of the “pre trial detention legislation.” For that reason, a review of the the pretrial detention legislation is in oreder.

UNM STUDY OF “PRESUMPTION OF NO BAIL” CONSTITUTIONAL AMENDMENT

It was in July, 2019 that The University of New Mexico Institute for Social Research studied and reviewed the proposal by District Attorney Raul Torrez to change by constitutional amendment the way pretrial detention is handled in New Mexico. The final report was prepared by Paul Guerin the director of UNM’s Center for Applied Research and Analysis. The study called into serious question the effectiveness and outcomes to change the way pretrial detention is handled in New Mexico thereby discrediting the arguments made by District Attorney Raul Torrez.

The UNM study found no evidence that Torrez’s proposal would improve public safety. Based on a review of cases in which a defendant was released despite the DA’s requesting detention, Guerin found that preventive detention motions filed by the District Attorney’s office did not have “substantively” improved public safety as opposed to those cases in which no detention motions were filed.

Guerin’s study report recommends that the rebuttable presumption proposal be scaled way back by saying:

“If rebuttable presumption use is limited to cases in which defendants are charged with offenses punishable by life imprisonment, and other pretrial detention decisions are left to judges’ discretion and informed by risk assessment tools like the PSA, they can ensure reputation protection [for the criminal justice system] and align with national standards without undermining public safety. ”

Guerin cited research showing that a defendant’s current charge alone does not predict involvement in future dangerous crimes. He reported that some of the offenses or statutes the DA lists in his pretrial detention proposal “are arguably questionable indicators of dangerousness.” It was noted that many of the factors are already taken into consideration by the Arnold Venture’s Public Safety Assessment, a tool judges use when deciding to detain someone.

The UNM study looked at more than 7,000 cases filed from July 2017 to August 2018 as part of the review. There were 1,500 cases that had preventive detention motions filed by the District Attorney’s Office. Of those preventive detention motions, 46% were granted and 54% were denied.

The review found no substantial differences in failure to appear and in new criminal activity rates between defendants for whom the DA did not request detention and those who were released despite the DA’s requesting detention. In all, the study found that 17% of those denied cases picked up a new charge. Only 2.9% more of those defendants in denied motions failed to appear in court, and only 2% more picked up new charges.

The UNM Institute for Social Research Study reported that the rebuttable presumptions of detention being proposed could actually jeopardize public safety in two ways:

First, limited detention resources are used on those who could be released or supervised while more dangerous defendants are released.

Second, the report found that studies show unnecessary detention can lead to higher recidivism rates if defendants lose their jobs or their homes, or suffer other disruptions because of their detentions.

LEGISLATIVE FINANCE COMMITTEE REVIEWS “REBUTTABLE PRESUMPTION OF DANGEROUSNESS”

In preparation of the 2022 legislative session, he highly influential (LFC) released a 14-page memo analysis of the proposed “rebuttable presumption of violence” system and pretrial detention. LFC analysts found that low arrest, prosecution and conviction rates have more to do with rising violent crime rates than releasing defendants who are awaiting trial.

The LFC report called into serious question if violent crime will be brought down by using a violent criminal charge to determine whether to keep someone accused of a crime in jail pending trial. According to the LFC report, rebuttable presumption is “a values-based approach, not an evidence-based one.” The LFC report said that while crime rates have increased, arrests and convictions have not. The LFC went on to say the promise of “swift and certain” justice has a more significant impact on crime rates that rebuttable presumption does not.

A major result of the Legislative Finance Committee report was that legislators rejected all “pretrial detention” legislation which would have created a “rebuttable presumption of dangerousness” for defendants charged with certain violent crimes to be held in jail pending trial . Rebuttable presumption shifted the burden of proof from state prosecutors, who must prove a case “beyond a reasonable doubt” to convict, to the defendant who would have to show they are not a danger to the public in order to be allowed to be released pending trial. The “rebuttable presumption of being violent” legislation was substituted with legislation and then incorporated in House Bill 68 and that focuses on ankle-monitoring data of defendants released from custody as they await trial.

https://www.abqjournal.com/2471031/tax-cuts-crime-package-sent-to-governor.html

https://www.abqjournal.com/2468840/pretrial-monitoring-bill-surfaces-in-house-advances-quickly.html

NO LINE-ITEM VETO AUTHORITY ON LEGISLATION WITH NO APPROPRIATIONS

The New Mexico State Constitution grants line-item veto power to the governor for “any bill appropriating money.” It is designed to enable a Governor to specifically reject funding appropriated for projects or programs.

The problem with House Bill 68 as enacted is that it contains no appropriation of funding. The “reasonable suspicion” language also has nothing to do with funding. Senator Joseph Cervantes himself has said that it is clear that House Bill 68 cannot be line-item vetoed because it doesn’t have an appropriation. Consequently, the only option Governor Lujan Grisham likely has is signing House Bill 68 into law in its entirety or vetoing it in its entirety.

Governor Spokesperson Nora Meyers Sackett had this to say:

“[The Lujan Grisham administration] will thoroughly review passed legislation and evaluate any input from stakeholders before taking action.”

The links to quoted news source material are here:

https://www.krqe.com/news/albuquerque-metro/bernco-district-attorney-shares-frustration-over-crime-legislation/

https://www.abqjournal.com/2471738/prosecutors-oppose-key-provision-in-crime-bill-ex-da-group-wants-gov.html

COMMENTARY AND ANALYSIS

The reaction of the District Attorneys throughout the state to the “reasonable suspicion” language contained in the enacted legislation, especially that of District Attorney Raul Torrez, can only be characterized as pathetic, perhaps even “pouting” like children over not getting what they wanted in the first place. Instead of giving any effort to try and make it work, they simply want the Governor to veto it. In a real sense, their lobbying effort is an acknowledgement that they do not know how to do their jobs. They are upset with the legislature’s refusal to enact their coveted “rebuttable presumption of violence” legislation that shifted the burden of proof to defendants.

Prosecutors like Torrez are always looking for ways to blame their failures on the courts and finding ways to allow them to ignore constitutional rights that will make their job the easiest without having to go to court. This coming from supposedly trial attorneys whose primary job is to go to court. It’s obvious that the District Attorneys want to be able to conduct “fishing expeditions” on the whereabouts of any and all defendants on ankle bracelets and on any and all types of cases not just those charged with violent crimes. They do not want any court involvement as is required with “reasonable suspicion” language in the bill.

DA Torrez’s argument that the legislation “creates a privacy right for defendants” is about as bogus as it gets. The truth is that as written, no “privacy rights” are being created. What is being created is a system where prosecutors and law enforcement must give very bare minimum reasons why they want the information in the first place.

PATHETIC ACKOWLEDMENT DO NOT WANT TO GO TO COURT

It is embarrassing and downright pathetic that the New Mexico District Attorney’s want the Governor to line-item veto the “reasonable presumption provision” of HB 68. “Reasonable suspicion” is without question the lowest burden a proof there is especially in the criminal law. Unlike “probable cause”, which is evidence that makes it more likely than not that a crime has been committed and required in search and arrest warrants, “reasonable suspicion” can be established with hearsay, even hearsay on hearsay, opinions and speculation.

District Attorneys like Torrez could not care less that the line-item veto request could easily place in jeopardy the entire HB 68 in that Governor just may decide to veto the entire bill. If the Governor does indeed line-item veto the provisions of the legislation the District Attorneys object to, it would likely wind up in court for the New Mexico Supreme Court to decide. In the past, law makers have been very successful in challenging line-item vetoes of past Governor’s. Given the fact that the “reasonable suspicion” language involves the courts, it’s likely the Courts will want the lower courts to have some degree of review and set aside the line-item veto.

FINAL COMMENTARY

The failure of the pretrial detention legislation no doubt was disappointing, but enactment of House Bill 68 was a far more realistic approach and will likely have a bigger impact on improving the criminal justice system and reducing crime.

Governor Lujan Grisham would be wise to just to ignore the whining and complaining of the District Attorneys, especially that of Raul Torrez, sign the legislation and get on with her efforts to get elected to a second term.

On February 17, the 2022 New Mexico Legislature 30 day legislative session came to an end at 12:00 noon referred to officially as “sine die.”

At it concluded, the 2022 New Mexico Legislative session approved an $8.48 billion state budget, the largest budget in state history. The budget bill boosts state spending by $1 billion, nearly 14%, over current budget levels. The enacted budget includes increases in spending for public education, raises for educators, state employees and state police as well as funds going towards initiatives for local economic development projects and housing programs for homeless people.

The enacted budget was the result of a Senate and House Conference Committee that worked out the final details of the budget. The Conference Committee report was introduced and heard in both Senate and House Chambers with the committee report adopted in both chambers. The enacted budget now goes to Governor Michelle Lujan Grisham for signature, but subject to line-item vetoes.

HIGHLIGHTS OF ENACTED BUGET

The newly enacted budget relies on the windfall in state government income from record surpluses from oil and production royalties and federal pandemic aid. The major highlights of the enacted 2022-2023 enacted budget are as follows:

Annual spending on K-12 grade public education is increased by $425 million to $3.87 billion, a 12% boost.

Starting July 1, the base pay for teachers will rise to $50,000, $60,000 and $70,000 depending on the level of a teacher. According to a fiscal impact report, New Mexico’s average teacher salary was just under $55,000 a year. That’s lower than Colorado, Texas and Utah, but higher than Arizona and Oklahoma.

https://www.kob.com/albuquerque-news/nm-teacher-pay-increase-bill-heads-to-governors-desk-after-unanimous-house-vote/6393826/

On teacher pay, legislators approved a measure to allow Indigenous language teachers to be paid at the same rate as their peers, even if they don’t have an undergraduate degree. For Native American language teachers paid as teaching assistants in many districts, their salaries could triple.

Significant salary increases for judges is provided. The bill calls for a state Supreme Court justice to be paid in line with federal magistrates, or about $205,000 a year, a 33% raise of what justices makes now. Appeals and District Court judges would see similar increases because their salaries are set as percentages of what higher-ranking justices or judges make.

https://www.abqjournal.com/2470385/proposal-to-boost-judicial-pay-on-its-way-to-governor.html

Annual Medicaid spending is increase by roughly $240 million to $1.3 billion as the federal government winds down pandemic-related subsidies to the program that gives free health care to the impoverished.

The budget contains salary increases of 7% for school districts and state government staff across the state. A minimum hourly wage of $15 for public employees and higher base salaries for teachers is provided.

The salaries for state police is increased by nearly 16%.

The enacted budget extends free college tuition to most New Mexico residents pursuing two- and four-year degrees. $75 million is allocated to the “opportunity scholarship” program, providing free tuition and fees for New Mexico residents. Unlike the existing lottery scholarship, it would be open to adults long after high school graduation and could be used for part-time course loads.

The enacted budget fully funds home-based care for thousands of people who have had severe disabilities since childhood.

The budget underwrites new intervention programs aimed at curbing gun violence.

Pregnancy-related Medicaid coverage is extended for a year afterbirths, up from two months, by spending $14 million. Most births in New Mexico are covered by Medicaid.

The budget bill funds an initiative from the governor to establish a training academy for the film industry run by a consortium of existing state colleges and universities.

The new budget provides $650,000 to found a climate change bureau as the state expands the regulation of greenhouse gas emissions.

$1 Million in funding is provided to the Regulation & Licensing Department for cannabis control program operations.

$500,000 funding is provided for the crime victims reparation commission.

https://www.kob.com/new-mexico-news/new-mexico-lawmakers-hammer-out-state-budget/6395640/?cat=500

https://www.abqjournal.com/2470767/lawmakers-strike-tenuous-budget-deal-as-adjournment-looms.html

BUDGET FUNDING THAT FAILED

The final budget that made it oui of the conference committee, made up of House and Senate members, also eliminated funding. The conference committee eliminated $125 million for hydrogen hub tax credits and gave $50 million of that to broadband partnerships instead.

The unused hydrogen money will be used to increase reserves to more than 29%.

The conference committee also deleted budget language making law enforcement officer recruitment bonuses contingent on passage of a broad crime package.

Two items that also failed to make it onto the conference report include an item that would have appropriated $30 million dollars from the general fund for expansion of health care delivery systems and rural health care delivery systems in the Human Services Department as well as funding to New Mexico State University for soil and water conservation.

The links to related and quoted news sources are here:

https://www.krqe.com/news/politics-government/legislature/new-mexico-legislators-approve-1b-state-spending-increase/

$827 PUBLIC WORKS BILL PASSED

The 2022 New Mexico legislature enacted Senate Bill 212, a $827.7 million public works projects package. The capital outlay bill includes $4.5 million for improvements at the State Fairgrounds in Albuquerque and $20 million for construction of a new New Mexico Veterans’ Home in Truth or Consequences. The bill includes money for school repairs, watershed restoration efforts and the construction of a new state government building. The total dollar amount represents more than 3,600 different projects around the state.

A separate bill funds $259 million in projects for higher education institutions, senior centers and libraries.

https://www.abqjournal.com/2470579/senate-votes-30-0-to-approve-827-million-public-works-package.html

Major public works projects included in the $827.7 million public works Senat Bill 212 include:

$75 million from the public-school capital outlay fund to the public-school facilities to make a distribution to each school district in fiscal year 2023 for the maintenance and repair of public-school buildings. This is the single largest line

$6,000 to purchase an enclosure for an excavator for the acequia de Arriba in Taos county.

https://nmlegis.gov/Sessions/22%20Regular/bills/senate/SB0212FCS.pdf
https://www.krqe.com/news/politics-government/legislature/new-mexico-legislators-approve-1b-state-spending-increase/

CRIME PACKAGE PASSES

House Bill 68 passed and it enhances some criminal penalties and offers retention bonuses to experienced police officers at certain stages of their career. House Bill 68 calls for increased criminal penalties for violent felons found to be in possession of a firearm. It includes a sentencing enhancement for individuals convicted of possessing a gun during aggravated burglary or drug deals. The firearms in question could also be subject to seizure and forfeiture under the proposed legislation. It also creates a crime of making a threat of violence targeted at schools or other public places. It would also require the judiciary to share ankle monitor data for pretrial defendants with law enforcement if needed for an investigation, among other provisions.

House Bill 68 includes efforts to expand police training and oversight, with funding for alternatives to traditional prosecution and incarceration. New Mexico would overhaul police training and oversight, hire more state district judges, and enhance criminal penalties for threatening a judge and for certain felons in possession of a firearm.

Legislators rejected “pretrial detention bill which would have created a “rebuttable presumption of dangerousness” for defendants charged with certain violent crimes. The rebuttable presumption bill shifted the burden of proof from state prosecutors, who must prove a case “beyond a reasonable doubt” to convict, to the defendant who would have to show they are not a danger to the public in order to be allowed to be released pending trial. The crime bill instead expands surveillance of criminal defendants as they await trial, with 24-hour monitoring of ankle-bracelet tracking devices.

https://www.abqjournal.com/2471031/tax-cuts-crime-package-sent-to-governor.html

TAX PACKAGE PASSES

The tax cut legislation House Bill 163 passed both the House and Senate. The tax relief package slightly reduce gross receipts taxes on sales and services by a paultry 0.25%, eliminate taxes on Social Security income for individuals earning $100,000 or less, and provide a per-child tax credit of up to $175 to parents. More than the $400 million set aside for tax changes in the budget bill.
House Bill 163, reduces the state’s gross receipts tax rate by 0.25% and exempts Social Security retirement income from taxation up to a certain income amount.

House Bill 163 includes a $250 tax rebate for all New Mexico adults who make less than $75,000 annually. Married couples filing jointly with an adjusted gross income of less than $150,000 per year would get a $500 tax rebate. An annual income tax credit of up to $175 per child is also included.

https://www.abqjournal.com/2471031/tax-cuts-crime-package-sent-to-governor.html

“BUY NEW MEXICO” BILL 39 PASSES

Senate Bill 39 aimed at increasing New Mexico businesses’ standing for bidding preference and boosting Native American and veteran-owned businesses also passed.

The highlights of Senate Bill 39 are as follows:

Increase the bidding preference of New Mexico businesses seeking state and local government contracts from 5% to 8%.

Double the annual revenues cap for New Mexico veteran-owned businesses receiving the 10% bidding preference from revenues of $3 million to revenues of $6 million.

PAYDAY LOAN INTEREST RATES LOWERED

In consumer protection efforts, the 2022 Legislature enacted a bill caps annual interest rates on storefront loans at 36%, down from the very oppressive 175%. As a concession to the payday loan industry, a fee of 5% can be charged on loans of up to $500, and the maximum size of an installment loan is doubled to $10,000.

https://www.abqjournal.com/2365015/senate-approves-bill-lowering-nm-loan-interest-rate-cap.html

LEGISLATION THAT FAILED

There were 3 major legislation initiatives that Governor Lujan Grisham actively supported that failed: pretrial detention, the hydrogen development act and the voting right bill.

PRETRIAL DETENTION

The controversial “Pre Trial Detention”, with versions introduced ib both the House and Senate, failed to pass either chamber. The proposal was backed by Governor Michelle Lujan Grisham, 2nd Judicial District Attorney Raúl Torrez and Albuquerque Mayor Tim Keller leaving all 3 of them looking somewhat foolish being unable to secure passage of the bill. Both Torrez and Keller went out of their way to testify in committees supporting the bill and lobby for passage.

Supporters of the bill, including families of those killed, said the legislation would be a commonsense step toward reducing crime. They argued it would keep dangerous offenders behind bars until trial and ensure they don’t commit new offenses. Opponents of the bill, especially the New Mexico Defense bar, challenged the the constitutionality of the proposal and said it would do little to reduce New Mexico’s violent crime rates.

Links to news sources are here:

https://www.krqe.com/news/politics-government/legislature/high-profile-pretrial-detention-proposal-moving-slowly/

https://www.abqjournal.com/2468188/pretrial-detention-bill-blocked-by-senate-committee.html

The pretrial detention legislation would have created a “rebuttable presumption of dangerousness” for defendants charged with certain violent crimes. Under current state law, prosecutors are required to convince a judge in an evidentiary hearing that a charged defendant poses and immediate threat of violence to the public and to hold the defendant in jail until trial and not allow bond. The rebuttable presumption bill shifted the burden of proof from state prosecutors, who must prove a case “beyond a reasonable doubt” to convict, to the defendant who would have to show they are not a danger to the public in order to be allowed to be released pending trial. As written the bill was likely “unconstitutional” and violated the presumption of innocence until proven guilty.

On January 20, the influential Legislative Finance Committee (LFC) released a 14-page memo analysis of the proposed “rebuttable presumption of violence” system and pretrial detention. LFC analysts found that low arrest, prosecution and conviction rates have more to do with rising violent crime rates than releasing defendants who are awaiting trial. The LFC report called into serious question if violent crime will be brought down by using a violent criminal charge to determine whether to keep someone accused of a crime in jail pending trial. According to the LFC report, rebuttable presumption is “a values-based approach, not an evidence-based one.” The LFC report said that while crime rates have increased, arrests and convictions have not. The LFC went on to say the promise of “swift and certain” justice has a more significant impact on crime rates that rebuttable presumption does not.

The link to a related blog article is here:

https://www.petedinelli.com/2022/01/24/legislative-finance-committee-report-pretrial-detention-does-not-lower-crime-arrest-prosecution-and-sentencing-lowers-crime/

HYDROGEN HUB DEVELOPMENT ACT

The Hydrogen Hub Development Act failed after two separate bills went down to defeat and died in committee. The original Hydrogen Hub Development Act was tabled on a bipartisan 6-4 vote last month in the House Energy, Environment and Natural Resources Committee after aggressive opposition from environmental organizations. A second substitute bill was offered and it to was withdrawn.

The link to quoted news source material is here:

https://www.abqjournal.com/2468170/revived-nm-hydrogen-bill-pulled-back-amid-criticism.html

The Hydrogen Hub Development Act would have created a legal framework for hydrogen energy development in the state. Lujan Grisham Administration government officials and the oil and gas industry argued that the development of the state’s hydrogen can provide a tool for the transition to a clean energy economy. Supporters argued that hydrogen has many potential applications as a relatively clean-burning fuel that doesn’t emit carbon dioxide. Governor Lujan Grisham promoted the bill as a way to significantly boost efforts to lower carbon emissions in New Mexico while at the same time creating a whole new industry that offers sustainable, high-paying jobs. Environmentalists strenuously spoke out against it, citing widespread fear that promoting and accelerating hydrogen development with government incentives would hurt, rather than help, state efforts to combat climate change. Environmentalists argue that large-scale hydrogen production would do little to lower carbon emissions, perhaps make them worse, because hydrogen is made with natural gas that has a huge amount of carbon dioxide.

The link to a related blog article is here:

https://www.petedinelli.com/2022/01/26/hydrogen-hub-development-act-introduced-the-pros-and-cons-consequences-of-getting-it-wrong-are-too-dire-hold-special-session-on-environmental-issues-and-hb4-or-hold-over-until/

VOTING RIGHTS BILL DIES

Senate Bill 144, the voting right bill, failed to be enacted by the Senate after passage in the House. Der Führer Trump Republican Senator William Sharer, R-Farmington, effectively killed the measure with a filibuster on the Senate floor. In order to run out the clock on the legislative session, Sharer talked about San Juan River fly-fishing, baseball rules, Navajo Code Talkers and the celestial alignment of the sun and moon during his lengthy filler buster on the Senate floor.

The bill would have done the following:

1. Established a permanent absentee voter list.

6. Restored the voting rights of people convicted of a felony upon release from incarceration, rather than after they’ve completed probation or parole.

Senate Bill 144 was sponsored by Albuquerque area Democrat Senator Katy Duhigg, a former Albuquerque city clerk in charge of elections, and Corrales Area Democrat Representative Daymon Ely. Governor Michelle Lujan Grisham a d Secretary of State Maggie Toulouse Oliver had made its passage a priority.

https://www.abqjournal.com/2471195/voting-bill-dies-as-30-day-session-comes-to-an-end.html

HOUSE SPEAKER BRIAN EGOLF ANNOUNCES RETIREMENT

In a surprise and unexpected announcement, New Mexico House Speaker Brian Egolf, D-Santa Fe, announced at the conclusion of the 2022 New Mexico Legislative Session, that he will not run for reelection this year for his District 47 seat. Speaker Egolf told the House of Representatives shortly before noon and the end of the session:

“This is the last time I will speak to you from this rostrum during the conclusion of a regular legislative session. … It’s time to put my young family first. … Neither District 47 or the [House] leadership belong to me. I will always count you as my colleagues but also, more importantly, as my friends.””

Egolf, 45, who has served as speaker since 2017, is considered one of the most influential politicians in New Mexico, as well as a vocal leader of progressive wing of the state’s Democratic Party. Speaker Egolf is an experiences and respected civil rights attorney. Members of the House stood and applauded Egolf as the session came to an end.

A new House speaker will be chosen next January.

The link to quoted news source material is here:

https://www.santafenewmexican.com/news/legislature/house-speaker-egolf-announces-retirement-as-session-closes/article_86a1355a-9024-11ec-82a8-2be089534442.html

COMMENTARY AND ANALYSIS

Given the sure magnitude of the historic $8.48 budget enacted as well as the massive $827 public works bill enacted, the 30 day 2022 legislative session can be declared a success. The failure to pass the voting rights act was disappointing. Some would say the failure of the pretrial detention legislation was disappointing , but other anti-crime legislation passed and a more realistic approach is being taken to improve the criminal justice system. The failure of the hydrogen industry legislation should come as a shock to anyone given the complexity of the legislation and considering it in a 30 session was a bad fit from the get go.

Now on to the 2022 mid term elections.