For a third year in a row, over half of the top 250 wages earners at Albuquerque City Hall are APD sworn police officers in the ranks of police officer first class, senior police officer 1st class, master police officer 1st class, sergeant and lieutenant. All earn between $113,126.08 to $199,414.69 a year, all are paid hourly wages for 40-hour work week and all are paid time and a half for overtime pay. Police officers first class, senior police officers 1st class, master police officers 1st class, sergeants and lieutenant are all members of the APD police union, they are classified employees and can only be terminated for cause. The amounts paid are two and a half times and at times 3 times more than their base yearly hourly pay primarily because of overtime pay which has been the subject of abuse and scandal in the past, including time card fraud.

This blog article is a deep dive analysis of the top 250 wage earners at city hall and the extent of the wages paid to APD top personnel.

APD BUDGET AND PERSONNEL

The Albuquerque Police Department (APD) is the largest budget department in the city. APD’s approved general fund operating 2022 budget is upwards of $222 million, or roughly 4.5% higher than fiscal year 2021 existing levels. Ultimately, the City Council approved nearly all the APD funding the Keller Administration requested in the budget proposal submitted on April 1, 2021.

APD’s funding is for 1,100 sworn positions and 592 civilian support positions for a total of 1,692 full-time positions. It also includes funding for new positions, including 11 investigators to support internal affairs and the department’s reform obligations under the Federal Court Approved Settlement Agreement and two communications staffers. Notwithstanding being fully funded for 1,100 full time sworn police, APD has only 917 full time sworn officers.

On December 12, during a federal court hearing on the Department of Justice consent decree, APD reported that as of December 6, 2021 APD’s staffing levels are as follows:

Full Sworn Officer Count: 917

1 APD Chief
1 Superintendent Of Police Reform
1 Deputy Superintendent Of Police Reform
6 Deputy Chiefs
1 Chief of Staff
12 Commanders
14 Deputy Commanders
44 Lieutenants
113 Sergeants
731 Patrol Officers
2 Sworn CSA’s

The positions of 44 Lieutenants, 113 Sergeants and 731 Patrol Officers, for a total of 888 staffing are all covered by the police union contract.

NEW APD CONTRACT NEGOTIATED

On February 7, it was reported that the Mayor Tim Keller’s administration 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”. Under the new 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 new APD contract keeps APD starting wages slightly higher than the New Mexico State Police.

On February 9, APOA police union attorney Fred Mower told Federal Judge James Browning that the contract signed contains the identical terms and conditions of the contract that expired on June 30, 2020. According to Mower, the only terms that changed were the negotiated hourly pay for sworn police officers that are in the collective bargaining unit.

The police union contract containing the pay increases was signed on December 30, 2021. 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

RANK AND FILE PAY UNDER NEW UNION CONTRACT

“Rank and File” police officers are generally recognized as sworn police officers under the rank of sergeant. These are the sworn police officers that do the heavy lifting of police work responding to 911 calls for service and who patrol the streets of the city.

Under the new police union contract, following is what rank and file sworn officers will paid:

Police Officer 1/C (first class) with 2 TO 4 YEAR SERVICE under new contract goes from $60,320 TO $68,411.20 a year.

Pay for Senior Police Officer 1/c (first class) with 5 To 14 YEAR SERVICE under new contract goes from $62,400 to $70,761 a year.

Pay for a Master Police Officer 1/c (first class) with 15 years and above of service goes FROM $65,520 TO $74,297 A YEAR.

SARGEANT AND LIEUTENANT PAID HOURLY

Under the APD collective bargaining contract, the management positions of sergeants and lieutenant are allowed to join the police union in violation of state law. For that reason, the union has the authority to negotiate with the city hourly wages for sergeants and lieutenant. Following are the hourly wage increases negotiated under the new contract:

SARGEANT PAY UNDER THE NEW UNION CONTRACT GOING FROM $72,800 TO $82,533 A YEAR

From January 1, 2022 to June 30, 2022 hourly pay for APD Sergeants under the new contract goes from $35 an hour or $72,800 a year to $37.80 an hour or $78,624 until June 30, 2022, the end of the fiscal year. Pay for APD Sergeants under the new contract then increases from July 1, 2022 to June 30, 2023 to $39.69 an hour or $82,555.20 a year until the expiration of the union contract on June 30, 2023.

LIEUTENANT PAY UNDER NEW UNION CONTRACT GOING FROM $83,200 TO $94,348 A YEAR

Hourly pay for Lieutenants goes under the new contract from $40 an hour or $83,200 yearly from January 1, 2022 to June 30, 2022 to $43.20 an hour or $89,866 yearly until June 30, 2022, the end of the fiscal year. From July 1, 2022 to June 30, 2023 Lieutenants pay under the new contract will be increased to $45.36 an hour or $94,348.60 a year until the expiration of the contract on June 30, 2023.

OVERTIME PAY

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. Compensatory time is the award of hours as already worked to be paid and is calculated at the rate of 1-1/2 times the hours actually worked. The maximum accrual of comp time for any officer is 150 hours.

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/

LISTING OF 250 TOP PAID CITY HALL EMPLOYEES

At the beginning of each calendar year, City Hall releases the top 250 wage earners for the previous year. The list of 250 top city hall wages earners is what is paid for the full calendar year of January 1, to December 31 of any given year. The 2019, 2020 and 2021 city hall 250 highest paid wage earnings reveals the extent of the staggering amount of overtime paid to APD Sergeants and Lieutenants. All sworn police officers from patrol officer first class up and through the rank of lieutenanat are classified employees, can only be terminated for cause, are paid time and a half for overtime in excess of 40 hours a week worked and and are union members.

For both the years of 2019 and 2020, 160 of 250 top paid city hall employees were police who were paid between $107,885.47 to $199,666.40.

For the calendar year of 2021, 126 of the top 250 city hall wage earners were sworn police officers ranging from the rank of patrol officer 1st class to the rank of Lieutenant.

In 2019, there were 70 APD patrol officers in the list of 250 top paid employees earning pay ranging from $108,167 to $188,844. There were 32 APD lieutenants and 32 APD sergeants in the list of 250 top paid employees earning pay ranging from $108,031 to $164,722 because of overtime.

In 2020, there were 69 patrol officers paid between $110,680 to $176,709. There were 28 APD Lieutenants and 32 APD Sergeants who were paid between $110,698 to $199,001 in the list of the 250 top paid city hall employees paid between.

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 lopsided number of APD sworn police officers listed in the top 250 paid city hall employees is directly attributed to the excessive amount of overtime paid to sworn police officers. A comparison of pay between APD sworn, pay to APD Chief Executive Staff and pay to the Mayor’s Executive Staff and Department Director’s for the year 2021 reveals a tremendous disparity.

APD CHIEF EXECUTIVE COMMAND STAFF

Eight of 10 APD Chief executive command staff are listed in the top 250 city wage earners. All 8 of the positions are considered “at will employees” and serve at the pleasure of Mayor Keller and are not paid overtime. All 8 are reported to have a received a pay increase upwards of 8% beginning January 1, 2022.

Following are the 8 with pay listed for the full 2021 calendar year:

Medina, Harold, Police Chief Of Police, $177,562.68
Smathers, Michael Jay, 1st Deputy Chief, $149,881.56
Garcia, Eric, 2nd Deputy Chief, $147,444.20
Barker, Cecily, Deputy Chief, $147,201.70
Griego, Jon J , Deputy Chief $144,228.47
Brown, Joshua Deputy Chief, $134,608.38
Lowe, Cori Deputy Chief, $128,409.85
Stanley, Sylvester, Superintendent of Police Reform/DCAO , $123,219.28 (8 months with city and retired and the end of 2021)

APD SWORN PERSONNEL PAID BETWEEN $130,000 TO OVER $199,000 in 2021

There are a total 109 sworn police officers on the list up through the rank of Lieutenant. This does not include sworn officers who are on the list and who have retired. There are a total of 27 Sergeants and 30 Lieutenants listed in the top 250 city wage earners for 2021 still working for APD. There are a total 52 sworn police officers in the ranks of Police Officer First Class, Senior Police Officer and Master Police Officer in the listing of the top 250 top city wage earners for 2021 who are still working for APD.

All 109 sworn police officers on the list up through the rank of Lieutenant have now received 8% or more hourly pay raises under the new contract terms starting January 1, 2022, This means with the new pay and with overtime they will likely be paid even more in 2023 if they continue with working the same level of overtime.

The listing of APD sworn personnel between the ranks of Senior Police Officer and Lieutenant paid by the hour between $130,000 to over $199,000 in 2021 are as follows:

Johnson,Brian APD-Police Sergeant, $199,414.69
Hernandez,Michael, Police Sergeant, $185,941.82
Hernandez,Armando F., PD-Police Sergeant, $162,236.73
Martinez,Dominic , Police Sergeant, $160,268.28
Richards,Joshua R., Police Sergeant, $160,237.57
Price,Bryan HPD-Police Lieutenant, $159,692.06
Greco,Raymond , Police Lieutenant, $157,161.06
Pearson,Nicholas, Police Master Police Officer 1C, $152,957.36
Lopez,Daniel, Police Sergeant, $152,758.37
Hunt,Justin, Police Sergeant, $151,470.59
Arnold,Jerry, Senior Police Officer 1C, $151,123.03
Molina,SonnyPD- Police Sergeant, $149,771.53
Martinez,Marisa, Senior Police Officer 1C, $149,488.84
Feist,Andrew, Master Police Officer 1C, $148,884.44
Deyapp,Lena, Police Lieutenant, $147,563.29
Edison,Jim APD-Police Lieutenant, $147,315.91
Pholphiboun,Phetamphone, Police Sergeant, $147,155.35
Rico,Michael, Police Sergeant, $146,470.80
Solis,Brenda, Senior Police Officer 1C, $145,882.69
Ruiz,Luis, Police Officer 1C, $142,431.13
Saladin,David , Police Lieutenant, $141,845.27
McCarson,Timothy, Police Senior Police Officer 1C, $139,571.76
Champine,Daniel, Master Police Officer 1C, $139,238.67
Shook,Michael B., 1Senior Police Officer 1C, $138,802.93
Frick,Sean, Police Lieutenant, $136,920.10
Apodaca,Timothy, Police Lieutenant, $136,227.46
Kimminau,Randall, Police Officer 1C, $135,920.62
Chavez,Matthew, Police Lieutenant, $135,858.78
Valentino,Gregory Allen, Police Officer, 1C, $135,246.58
Breeden,Charles , Master Police Officer 1C, $134,647.93
Schmidt,Matthew , Police Sergeant, $133,854.45
Rogillio,Justin, Senior Police Officer 1C, $132,497.53
Nicko,Troy, Police Sergeant, $132,170.74
Keeling,Christopher, Senior Police Officer 1C, $131,485.32
Juarez,Terra, PoliceSergeant, $130,638.78
Trebitowski,Justin, Police Lieutenant, $130,280.30
Moore,Douglas , Police Sergeant, $130,193.67
Martinez,Herman, Master Police Officer 1C, $129,987.36
Nelson,Ryan, Police Sergeant, $129,942.70
Porlas,Dwight , Master Police Officer 1C, $129,753.10
Duda,Christopher, Police Officer 1C, $129,693.17
Swessel,Robert, Master Police Officer 1C, $128,817.64
Patterson,Christopher APD-Police Lieutenant, $128,483.46
Herbst,Zachary, Senior Police Officer 1C, $128,341.36
Meyer,Jesse, Master Police Officer 1C, $128,321.49
Walsh,Stephen, Master Police Officer 1C, $127,826.29
Meisinger,Michael, Police Lieutenant, $ 127,404.60
Legendre,Roger, Police Lieutenant, $127,259.76
Sanchez,Jason, Police Lieutenant, $127,107.37
McElroy,Matthew, Police Lieutenant, $126,731.47
Landavazo,Mark, Police Lieutenant, $126,294.15
Franklin,Daniel, Master Police Officer 1C, $126,289.76

The full listing of all APD Sworn Police Officers paid between $113,126.08 to $125,856.93 and appearing in the top paid 250 city hall employees can be found in the postscript below.

CITY HALL EXECUTIVE STAFF AND DEPARMENT DIRECTORS LISTED IN TOP 250 WAGE EARNERS

According to the 2021 enacted budget, the City of Albuquerque employs 6,259 full time employees with an annual budget of $1.2 Billion dollars. The link to the enacted 2021-2022 budget is here:

https://www.cabq.gov/dfa/documents/fy22-approved-budget-numbered-w-hyperlinks-final.pdf

Mayor Tim Keller is paid $125,278.72 a year and Albuquerque City Councilors are paid $35,860 a year with their salaries determined by the Citizens’ Independent Salary Commission.

City Executives and Department Directors are considered “at will” employees and serve at the pleasure of Mayor Keller. There are 26 city departments. There are 30 City Hall Executive Positions and Department Directors identified in the top 250 wage earners for the 2021 calendar year. Each are paid a set salary they can negotiate or they take whatever is offered by the mayor. When Keller was first elected 4 years ago, beginning pay for Department Directors was approximately $116,000 but over the last 4 years, the pay has increase to roughly $130,000 a year.

These executives are not eligible for time and a half overtime pay and are required to work whatever hours deem necessary during the week to carry out their duties. Department Director’s duties and responsibilities include management of all personnel assigned to the department and managing budgets usually in the millions.

Executive salaries and Department Directors individuals and what they were paid in 2021 are as follows:

MAYOR’S SENIOR STAFF

Nair,SaritaCA-Chief Administrative Office Chief Admin Officer, $196,773.12
Rael,Lawrence DCA-Chief Administrative Office Chief Operations Officer, $191,600.30
Aguilar Jr,Esteban , City Attorney, $150,724.32
Bhakta,SanjayFA-Finance Admin Svc Chief Financial Officer, $150,224.31
Sourisseau,Kevin JCA-Chief Administrative Office Associate CAO, $130,261.91
Puelle,Michael Chief Administrative Office Chief of Staff, $139,445.91

DEPARTMENT DIRECTORS AND DEPUTY DIRECTORS

Osterloh,Brian ATI-Technology and Innovation Director, $144,118.55
DiMenna,Mark, Environmental Health, Deputy Director, $132,786.87
Leech,Mark TTI-Technology and Innovation Deputy Director, $135,419.97
Simon,David, Parks and Recreation Director, $135,204.31
Ortega,Carolyn, Animal Welfare Director, $130,549.91
Martinez,Jennifer Renee, Finance Admin Svc Director, $130,041.12
Pierce,Carol MFC-Family Community Services Director, $130,041.12
Martinez,Jennifer Renee, -Finance Admin Svc Director, $130,041.12
Montoya,Charles PMD-Municipal Development Director, $130,041.11
Daniel,Christopher Finance Admin., Chief Investment Officer, $128,545.11
Whelan,Matthew Solid Waste Director, $124,877.92
Watson,Ethan , City Clerk, $124,877.91
VanEtten de Sanchez,MaryCS, Cultural Services Director, $124,877.91
Romero,Anthony RHR-Human Resources Director, $122,747.91
Sandoval,Donna, City Controller, $125,989.90
Sanchez,Anna, Senior Affairs Director, $124,877.90
Rogers,Paul JMD-Municipal Development Deputy Director/DMD, $123,362.71
Varela,Alan, Municipal Development Deputy Director, $123,180.37
Stowell,StephanieCS-Cultural ServicesE20BioPark Administrator, $122,468.86
Flores,David MPR-Parks and Recreation Deputy Director-Parks & Rec, $118,959.95
McCurley,RichardAV-Aviation Deputy Director Aviation, $118,005.92
Smith,Dean PCS-Cultural ServicesE19Assoc Director Library, $116,776.07
Davis,Lawrence LFA-Finance Admin SvcE20City Budget Officer, $116,733.91
Truong,Loc THR-Human ResourcesE20Deputy Director/HR, $113,739.92

SPECIAL AUDIT RESULTS RECALLED

Over 6 months ago, on August 6, 2021, New Mexico State Auditor Brian Colon released a long-awaited special audit report on overtime abuse by the Albuquerque Police Department (APD). 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

The audit 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.

The links to quoted news source material are here:

https://www.krqe.com/news/politics-government/audit-makes-recommendations-for-apd-overtime-policies-practices/

https://www.koat.com/article/albuquerque-police-department-audited-for-overtime-pay-for-7th-time/37248257

https://www.kob.com/albuquerque-news/audit-apd-continues-to-abuse-overtime/6199260/?cat=500

SPECIAL AUDIT REPORT HIGHLIGHTS FAILURES TO DEAL WITH OVERTIME ABUSE

The Porch & Associates Audit identifies the major failures of APD dealing with overtime abuse. Those failures are:

1. The failure of APD supervisors to properly monitor and pre-approve officer overtime. There is a lack of internal controls for leave requests. The special audit specifically named now-former police officer and APD Spokesman Simon Drobik. Last year a separate APD Internal Affairs investigation found he had committed rampant fraud.

2. As examples of fraud committed, the review of leave requests found that there was no record of leave request forms for one officer. In another instance an APD employee utilized system software to approve their own time resulting in over $8,000 dollars in overtime. Whether the time claimed was actually worked is unknown. In another instance, an officer submitted and was compensated for being “On call Status” 581 times in 2018. During those 51 weeks the officer worked 207 Chief’s Overtime Assignments.

3. The overtime practice where officers who are on vacation or paid time off can use those hours as the basis for claiming overtime pay. The audit was clear that “parts of the APOA collective bargaining agreement (CBA) that allow for excess overtime compensation” are not allowed and violate the federal Fair Labor Standards Act. In particular, there is a Memorandum of Understanding (MOU) called a “12 Hour MOU” that deals with overtime, compensation time, work shift designation policy and what is referred to as a “comp time bucket”. According to one audit, the MOU is “scarcely followed”. Additionally, there is no clear indication or definition of the Department’s minimum staffing levels for shifts worked.

4. APD standard operating procedures are not being updated to in include changing and conflicting overtime policies. Several Department policies, including Standard Operating Procedures for overtime, compensatory time, and work shift designations, have not been reviewed or updated since March 10, 2016. Many rank and file officers as well as their supervisors, which are the Lieutenants and Sergeants who approve overtime, are confused as to what the overtime policies actually are and what they mean. Instead of getting any clarification or definitive answers from the Human Resources Department, they simply developed their own interpretations and allowed questionable overtime pay.

5. APD Officers were allowed to work “Chief’s Overtime”, which is working for a private company paying for security at the same time they are on on-call status with APD. The practice is a clear violation of APD personnel rules and regulations. The SOP policies are simply ignored and the overtime is allowed by supervisors to happen. The Porch & Associates Audit found a lack of internal controls and deficiencies for Chief’s Overtime. The Department’s policy does not list or define the eligibility requirements for officers working Chief’s Overtime. Although supervisory approval is required for other types of overtime, it is not required for Chief’s Overtime. Sworn police officers are allowed to cancel their regular shifts in order to work Chief’s Overtime which is more lucrative for the officer.

6. There is automatic award of two-hour overtime award, which pays time and a half per hour, for officers who have to appear in court for Driving While Intoxicating (DWI) arraignment and trials and traffic ticket violations they write. Even though a court appearance may take only 15 minutes, the officer is allowed to claim and be paid a full 2 hours of overtime at time and a half pay as mandated by the union contract. The system encourages officers to settle cases quickly so they can go home and collect 2 hours of overtime and not work the hours of overtime paid.

7. APD doesn’t monitor officer overtime for irregular activity. The Department does not have a policy or procedure in place that prevents and detects overlapping or incorrect reported time. APD does not reconcile its overtime transactions between its timekeeping and payroll systems thereby contributing to inappropriate and prohibited overtime pay at time and a half.

CITY RESPONSE

When the Porch & Associates Audit Report was released on August 6, the Keller Administration, including Mayor Tim Keller, Chief Harold Medina and APD Spokesperson Gilbert Gallegos, placed all the blame on former Chief of Police Michael Geier for failure to address the APD overtime abuses and giving preferential treatment to a select few. The Keller Administration issued a harsh statement blaming Mayor Tim Keller’s appointed former APD Police Chief Michael Geier for all the overtime abuse problems. The statement said in part:

“The former chief knowingly covered up overtime abuses and helped his favored employees’ game the system to enrich themselves. … The report makes it clear that the ‘tone at the top’ of APD was a major driver of the abuse and the failure to make needed changes. We didn’t hesitate to take bold action to remove the top cop and get the department back on track.”

Chief Geier for his part issued a press release denying the accusation saying he came up with a plan to prevent the overtime abuse, including a 25 hour weekly overtime cap, and saying it was Mayor Tim Keller who interfered with him making changes to the overtime.

Chief Harold Medina had this to say:

“The overtime problems with APD have occurred since I can remember coming on this department. … So there’s been a lot of people who could have taken action quicker than they did … I do know that it was a priority of ours. We did make the decision to put up a special order as quickly as possible. And we’re also working on auditing ourselves and creating a system where we try to catch things earlier. We encourage that type of oversight within the department.”

The link to the quoted source material is here:

https://www.abqjournal.com/2419877/seventh-audit-cites-apd-overtime-problems.html

STATE AUDITOR BRIAN COLÓN

In an interview after the audit was release, State Auditor Colón said he thought his office’s latest audit would make a difference. He said an annual audit for the city will look at this issue next year and added:

“I think the city has articulated that they’re committed to addressing these findings and to embracing these recommendations … I’ve met with the chief of police, and he has indicated that some of these 22 recommendations have already been implemented. We’re optimistic that as we continue to keep the pressure on we’ll get into a situation where we have 100% compliance.”

The link to the quoted source material is here:

https://www.abqjournal.com/2419877/seventh-audit-cites-apd-overtime-problems.html

POLICE UNION CONTRACT VIOLATES FEDERAL AND STATE LABOR LAWS

One of the most dramatic findings in the Porch & Associates Audit is 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.

NO MENTION OF UNION CONTRACT VIOLATING STATE LAW

The Porch & Associates 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

COMMENTARY AND ANALYSIS

When State Auditor Brian Colon released his special audit of APD’s overtime pay abuse, he had this to say:

“I think the city has articulated that they’re committed to addressing these findings and to embracing these recommendations.”

It would appear that State Auditor Brian Colon’s was way too optimistic and the audit has accomplished absolutely nothing to bring down excessive overtime pay and that overtime pay abuse is still continuing at APD.

A full 6 months after his audit was released, the top 250 wage earner list shows nothing has really changed and the audit had no impact on making a change in performance and APD overtime pays is still out of control .

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 extreme disproportionate pay between sworn police officers and City Executives and Department Directors is the result of mandated overtime provisions of the police union contract. The contract provisions have not be changes The union contract allows sworn police to be paid twice or three times as much in base pay and well over $100,000 and upwards of $200,000 a year.

NEW APD CONTRACT AGAIN ALLOWS SARGEANTS AND LIEUTENANTS TO JOIN UNION

On February 9, Police Union lawyer Fred Mower told Judge James Browning in a status conference hearing on the Court Approved Settlement that the current union contract is identical to previous contract that has expired and that only hourly pay rates were negotiated.

It is Section 1.3., page 3, of the new 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 … .”

This is the identical provision in the expired contract that the Police Union ostensibly refused to negotiate with the Keller Administration. Confidential sources have confirmed that the Keller Administration and the Police Union have come to a mutual understanding that sergeants and lieutenants are not management positions but rather “co-workers of supervising collegues”who are part of a unit that give commands and that provide leadership support functions. The understanding is not embodied in the contract and 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.

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 is 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)

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. Sergeants and lieutenants should be removed from the police union, paid salaries without being paid overtime and made at will employees.

ACTION THAT NEEDS TO BE TAKEN

No effort was made during the most recent police union contract negotiations 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.

There are 4 major initiative that need to be undertaken

1.Remove Lieutenants and Sergeants from the police bargaining unit and make them at will employees in order to conform with state law and federal law that prohibits management from joining the union.
When the Porch & Associates Audits said that there was a failure of APD supervisors to properly monitor and pre-approve officer overtime, what it failed to disclose is those supervisors are the management positions of lieutenants and sergeants who are allowed to join the APD police union despite being management. Instead of enforcing limitations on overtime and preventing the overtime abuse, many sergeants and lieutenants are simply participating in excessive overtime pay practices themselves. They are likely approving all overtime submitted by their subordinates to keep them happy and to maintain a working relationship with them and to garner favor with them.

2. Negotiate a union contract term that makes it clear that “paid leave is not considered time worked for the purposes of computing overtime” in order to comply with the Federal Fair Labor Standard Act (FLSA).

3. Negotiate a union contract term that whenever it is determined that overtime was paid in violation of APD standard operating procedures and overtime policy, the overtime pay must be refunded to the city either in single lump sum or garnishment of wages.

4. The Albuquerque City Council needs to enact as part of the city’s personnel rules and regulations prohibitions 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.

Until major terms and provisions of the union contract are negotiated to bring in into compliance with both Federal and State Law, the list of the top 250 waged earners in the city will have an excessive number of sworn police benefiting from overtime at the expense of other city hall employees.
______________________

POSTSCRIPT

Below is the listing of all APD Sworn Police Officers paid between $113,126.08 to $125,856.93 and appearing in the top paid 250 city hall employees:

Alba Jr,HonorioPD-PolicePE1Senior Police Officer 1C, $125,856.93
Anderson,Hollie LPD-PolicePF0Sergeant, $125,552.20
Barnard,Jeffery R.PD-PolicePG0Lieutenant, $125,401.06
Jones III,JimmiePD-PolicePE1Senior Police Officer 1C, $124,663.79
Carter,Jessie W.PD-PolicePE1Senior Police Officer 1C, $124,601.47
Sedler,Amy JPD-PolicePG0Lieutenant, $124,529.93
Barraza,RenePD-PolicePG0Lieutenant, $124,201.10
Anaya,AdamPD-PolicePG0Lieutenant, $124,160.63
Haugh,PaulPD-PolicePG0Lieutenant, $124,082.93
Babcock,Tod SPD-PolicePE2Master Police Officer 1C, $123,983.98
Montano,JoshuaPD-PolicePE1Senior Police Officer 1C, $123,949.86
Mondragon,Gregory APD-PoliceATSAPD Prisoner Trans Sergeant, $123,890.14
Brito,ChristopherPD-PolicePE1Senior Police Officer 1C, $123,759.48
Avila,Michael APD-PolicePE2Master Police Officer 1C, $123,617.39
Wild,AmandaPD-PolicePF0Sergeant, $123,520.56
Arreola,Joshua APD-PolicePE0Police Officer 1C, $123,336.11
Martinez,Melvin JFD-FireRL2Para Lieutenant, $123,317.59
Luna,Michael APD-PolicePE2Master Police Officer 1C, $123,047.76
Nakamura,RachelPD-PolicePE0Police Officer 1C, $123,040.54
Brown,JasonPD-PolicePE1Senior Police Officer 1C, $122,445.75
Lujan,Damian MPD-PolicePE1Senior Police Officer 1C, $122,093.10
Sandoval,AlbertPD-PolicePF0Sergeant, $122,025.42
Morales,Daniel JPD-PolicePE2Master Police Officer 1C, $121,770.54
Romero,Christopher MPD-PolicePF0Sergeant, $121,602.61
Wheeler,NicholasPD-PolicePG0Lieutenant, $121,451.85
Barela,Victor DPD-PolicePE1Senior Police Officer 1C, $121,077.88
Sedillo,Richard EPD-PolicePE2Master Police Officer 1C, $120,833.46
Brown,EricPD-PolicePF0Sergeant, $120,494.70
Sanders,Nicholas MPD-PolicePG0Lieutenant, $120,253.49
Hotle,Timothy LPD-PolicePE1Senior Police Officer 1C, $ 120,207.58
Languit,Luke CPD-PolicePH0Commander, $120,194.93
Lee,Arlys MPD-PolicePE1Senior Police Officer 1C, $120,151.78
Chacon,Jennifer MPD-PolicePG0Lieutenant, $120,058.44
Armijo,Louis JPD-PolicePF0Sergeant, $119,988.46
Altman,Steve APD-PolicePG0Lieutenant, $119,948.56
Pelot,Jerrod C.PD-PolicePE1Senior Police Officer 1C, $119,356.16
Sanchez,Robert SPD-PolicePE0Police Officer 1C, 118,506.46
Baca,Alycia NPD-PolicePE0Police Officer 1C, $ 118,375.37
Jewell,ChasePD-PolicePE0Police Officer 1C, $118,339.84
Valdez,Ruben EPD-PolicePG0Lieutenant, $118,276.38
Hernandez,Pablo HPD-PolicePE0Police Officer, 1C $118,122.89
Gomez,Gustavo A.PD-PolicePG0Lieutenant $117,962.21
DeAguero,Daren JPD-PolicePE1Senior Police Officer 1C, $117,640.55
Martinez,Vicente MPD-PolicePF0Sergeant, $117,622.64
Rael,Miguel MPD-PolicePE2Master Police Officer 1C, $117,527.04
Bell Garcia,Jennifer LPD-PolicePG0Lieutenant, $117,136.82
Otzenberger,Deanne DPD-PolicePG0Lieutenant, $117,134.49
Kesner,Zachary L.PD-PolicePF0Sergeant, $117,126.21
Martinez,Steve TPD-PolicePF0Sergeant, $117,026.80
Perez,Mario EPD-PolicePE2Master Police Officer 1C, $116,995.44
Oates,Michael APD-PolicePE2Master Police Officer 1C, $116,235.31
Acata,Mel LPD-PolicePE2Master Police Officer 1C, $116,030.72
Zambrano,AnthonyPD-PolicePE2Master Police Officer 1C, $115,887.16
Suarez,Anthony R.PD-PolicePE1Senior Police Officer 1C, $115,618.18
Accilien,Marc-HenryPD-PolicePE1Senior Police Officer 1C, $115,525.46
Vigil Jr,Thomas CPD-PolicePE1Senior Police Officer 1C, $115,274.87
Burt,Tyler CPD-PolicePE1Senior Police Officer 1C, $115,245.40
Burton,Whitney N.PD-PolicePE1Senior Police Officer 1C, $115,161.54
Chavez,Jason DPD-PolicePE0Police Officer 1C, $115,023.71
Duren,Robert LPD-PolicePE2Master Police Officer 1C, $115,002.34
Taylor,David MPD-PolicePE2Master Police Officer 1C, $114,723.12
Solis,EmmanuelPD-PolicePE1Senior Police Officer 1C, $114,694.17
Casados,CarlosPD-PolicePE0Police Officer 1C, $114,495.52
Gomez,Geno Virgil EPD-PolicePE2Master Police Officer 1C, $114,381.38
Jones,Luke HPD-PolicePE0Police Officer 1C, $114,193.02
DeHerrera,Justin GeorgePD-PolicePE1Senior Police Officer 1C, $113,774.71
Higdon,SeanPD-PolicePF0Sergeant, $113,373.72
Napoleone,Kevin JPD-PolicePG0Lieutenant, $113,225.62
Ollquist,Renee APD-PolicePF0Sergeant $113,135.62
Dietzel,Matt CPD-PolicePG0Lieutenant, $113,126.08

The link to the entire listing of the top 250 wage earners is here:

https://publicreports.cabq.gov/ibmcognos/bi/?perspective=classicviewer&pathRef=.public_folders%2FTransparency%2FTop%20Earners%20of%20the%20City%20of%20Albuquerque%20List&id=i5AAD1EA752BA417099BA819E482F6642&objRef=i5AAD1EA752BA417099BA819E482F6642&action=run&format=HTML&cmPropStr=%7B%22id%22%3A%22i5AAD1EA752BA417099BA819E482F6642%22%2C%22type%22%3A%22report%22%2C%22defaultName%22%3A%22Top%20Earners%20of%20the%20City%20of%20Albuquerque%20List%22%2C%22permissions%22%3A%5B%22execute%22%2C%22traverse%22%5D%7D

On February 15, 2022, in almost 4-minute interview on FOX News, Albuquerque Police Officer Association President Shaun Willoughby rambled on for almost 4 minutes, without interruption, and did what only can be described as a full throttle take down of the Federal Court Approved Settlement Agreement (CASA), the mandated reforms under the settlement and the Department of Justice. The interview was nothing more than Willougby and the police union spreading their big lies about the settlement in an effort to undercut and to undermine the APD reforms. The link to view the full story and the video interview is here:

https://www.foxnews.com/politics/murder-spike-in-new-mexico-cops-blame-department-of-justice-probe-weak-leadership

Following is a very short transcript of the news story that does not contain all the comments of the Willoughby interview:

“ALUQUERQUE, NM. Police in Albuquerque, New Mexico, told Fox News crime is surging in their city because cops are not allowed to do their jobs.

“You have high crime, you have high substance abuse, you have a weak on crime approach at the state legislature—we have since the beginning of time,” Detective Shaun Willougby, president of the Albuquerque Police Association, told Fox News in an exclusive interview.

“Couple that with a completely handcuffed police department and eight years into a consent decree … and this is what you get,” Willoughby continued.

The Albuquerque Police Department entered into a settlement agreement with the U.S. Department of Justice in November 2014 after an investigation concluded the local agency “engaged in a pattern or practice of use of excessive force.”

“That opened the door for the Department of Justice in Washington, D.C., to basically almost govern and be intricately involved in everything this police department does,” Willoughby said.

Albuquerque officers involved in use of force incidents are required to go through a rigorous investigation, according to the terms of the agreement.

For example, if an officer puts a resisting suspect into handcuffs during an arrest, it could be considered use of force, Willoughby said. He told Fox News an investigation could take officers off the street for four to six hours and that it happens regularly.

“I have seen entire area commands where 50,000 people live – because of two uses of force, just two weeks ago – the whole area command was shut down,” Willoughby said. “All officers available, to include chain of command, were investigating uses of force.”

“We’re already significantly understaffed,” Willoughby continued. “Now, because of the policies that we’ve created – and some of them are really ridiculous – we have less officers on the streets protecting and serving this community simply because they’re following the policy that exists.”

In 2021, Albuquerque broke its annual homicide record with 117 killings. The city’s yearly homicide count has averaged about 45 homicides per year over the last 35 years, according to local media reports.

Consent decrees came under harsh criticism from former President Trump’s DOJ, which said they were overused and a harmful federal intrusion on law enforcement.

Then-Attorney General Jeff Sessions issued a memo in 2018 directing the agency to sharply limit their use.

Attorney General Merrick Garland rescinded the Trump-era memo last April, making it easier for the Biden DOJ to use consent decrees as an enforcement tool.

“The whole part of the conversation is like an open loop,” Willoughby said. “We have a bunch of politicians that think in election cycles, and they’re going to say the right talking points because they poll well.”

“They’re going to manipulate people to vote for them, but when push comes to shove, they’re not investing in the actual problem,” he added.

“We need politicians who invest in the problem, they think outside the box and not just in their four-year election cycle,” Willoughby told Fox News. “I think the whole country is plagued with that same problem.”

The Albuquerque Police Department lost more than 250 officers over the last two years due to people leaving the profession, retirement and officers going to other departments, according to the Albuquerque Police Association.”

The link to the FOX news story is here:

https://www.foxnews.com/politics/murder-spike-in-new-mexico-cops-blame-department-of-justice-probe-weak-leadership

A summary of the DOJ investigation and the contents of the Court Approved Settlement Agreement can be found in the postscript to this blog article.

THAT LITTLE CARD LISTING MISDEMEANORS

During the FOX News interview, Willoughby made reference and exhibited a card listing misdemeanors saying APD police cannot arrest people on. His claim is a lie that APD cannot make arrests on the offenses listed. They can make arrests but simply do not want to write an offense report. Willoughby said APD cops do not want to make arrests because they must then write an offense report articulating reasons why and the circumstance why the arrest was made.

SHOOTING OF 4 POLICE OFFICERS

It was on Thursday, August 19, after four Albuquerque Police Officers were seriously injured following a shooting in northeast Albuquerque that Willougby first lied that police cannot make arrests of misdemeanors. The shooting happened as officers responded to a felony robbery by the Dutch Bros. near Mountain and Juan Tabo. He also lied saying violent crime has increased because APD has been de-policed ostensibly referring to the DOJ mandated reforms. Willoughby said this:

“We’ve been telling this community that this was going to happen. … I believe that the violent crime and the uptick of violent crime is directly related to this police department being de-policed and having policies where they are not able to do their job. … We have de-policed the city of Albuquerque to the extent where officers carry around a little card with a list of misdemeanors that they can’t even arrest people on. … It’s officers that are hesitating to do their job because they don’t want to get in trouble … It’s the brazen acts of criminals that know that Albuquerque police officers are handcuffed … We have stepped away and de-policed this city. From the very beginning our officers are carrying a card of misdemeanors that they’re not supposed to arrest on.”

The links to the quoted news source material is here:

https://www.abqjournal.com/2421142/california-man-charged-in-shooting-of-apd-officers.html

https://www.kob.com/albuquerque-news/police-officers-association-demands-change-following-shooting-that-left-4-officers-injured/6213550/?fbclid=IwAR0sXEzSZcF0KVwlVL3o1Fa4KjXfNcV15yEgC4IxYJ-N67TvAwlDz_X-aQE#.YSALBrgluvs.facebook

ARRESTS VERSUS CITATIONS

It was on May 10, 2018 in a memo addressed to all sworn APD personnel by then APD Chief Gorden Eden issued Department Special Order 17-53. The Special Order states that “all officers shall issue citations when appropriate in lieu of arrests on non-violent misdemeanor offenses.” Special Order 17-53 was then made SOP 2-80 that deals with arrests on misdemeanor cases. The link is here:

https://documents.cabq.gov/police/standard-operating-procedures/2-80-arrests-arrest-warrants-and-booking-procedures.pdf

The new Special Order 17-53 directive was a result of the 20-plus year McClendon Lawsuit that was settled by a federal judge. That lawsuit, filed against the city and Bernalillo County by an inmate arrested for a non-violent misdemeanor, primarily focused on the conditions within the county lockup. At the time the lawsuit was filed, the then Bernalillo County detention center had a maximum capacity of 800, but the jail was repeatedly overcrowded with as much as twice that capacity. The misdemeanor offenses affected by the special order include criminal trespass, criminal damage to property under $1,000, shoplifting under $500, shoplifting under $250, prostitution, and receiving or possessing stolen property under $100. The policy remains in place to this day.

The memo makes it clear that officers may make an arrest if it is necessary, but will have to include the reasons why in an incident report. The letter states that officers have the opportunity to take offenders wanted for non-violent misdemeanor offenses to Metropolitan Court to resolve warrants or fines instead of hauling them off to jail. However, the arrested individual must have the full amount of the fine or bond in cash. Those arrested also cannot go through a bonding agency.

At the time the Special Order was issued, City and police officials pointed out that it made no changes to police policy. APD Chief Jerry Galvin in 2001 issued a similar order, and since then department policy has been to advise officers to issue citations for such crimes where appropriate, and officers have discretion in deciding when to arrest someone. According to then City Attorney Jessica Hernandez:

“If there is any part of a situation that makes an officer think an arrest is warranted, they’ll make the arrest.”

At the time the special order was issued, then Assistant Chief Robert Huntsman also issuing a statement:

“This order in no way restricts officers’ discretion to make arrests when necessary to protect the public. Citations have always been an available option for certain non-violent misdemeanor offenses. This special order and video remind officers to issue citations ‘when appropriate’ and ‘when there are no circumstances necessitating an arrest.’ We are still aggressively pursuing repeat offenders, and this order does not change an officer’s ability to arrest.”

TWO OTHER WILLOUGHBY LIES

Another lie that Willoughby told the national FOX News is that the Department of Justice in Washington, D.C., “basically [and] almost governs and [is] intricately involved in everything this police department does”. Simply put, that could only happen if APD was placed into receivership and APD has not been placed into receivership.

The Court Approved Settlement Agreement does require the appointment of a federal monitor, but the settlement provisions are very clear that the Federal Monitor has no management, nor control over APD personnel, nor over the day to day operations of APD. The Federal Monitor cannot hire or discipline APD personnel. The only authority the monitor has is to audit APD’s compliance levels and report to the court.

Paragraph 295 of the Court approved settlement agreement provides as follows:

“The Monitor shall only have the duties, responsibilities, and authority conferred by this Agreement. The Monitor shall not, and is not intended to, replace or assume the role and duties of APD, including the Chief or any other City official. The Monitor shall be subject to the supervision and orders of the Court, consistent with this Agreement and applicable law.”

It is APD management and the Mayor’s Office that is in full control of the department. The DOJ consent decree mandates the implementation of 271 reforms agreed to by the city and it is the city and APD that are required to draft policy and implement the reforms.

Another lie Willoughby has promoted is that APD has somehow been “depoliced” or “defunded”. The truth is APD is the largest budgeted department in the city’s history. APD’s approved general fund operating 2022 budget is upwards of $222 million. The City Council has approved all the APD funding the Keller Administration has ever requested over the last 4 years. In 2018, the city council enacted a tax increase without voter approval where 70% of the $55 million raise annually went to the benefit of APD and to public safety. APD Chief Harold Medina for his part has doubled the number of Deputy Chiefs, increased the Chief’s office command staff from 3 to 10 and has added a new level of management of 14 assistant commanders. The new negotiated police union contract makes APD the best-paid law enforcement agency in the region by increasing hourly pay by 8% and longevity pay by 5%, and creating a whole new category of incentive pay.

NOT THE FIRST TIME FOR WILLOUGHBY AND THE UNION TO MOUTH OFF

Willoughby’s February 15 FOX News interview is not the first time that the police union has attempted to discredit the Court Approved Settlement Agreement, the mandated reforms, the monitor and the Department of Justice. Such efforts have been a pattern and practice for the union.

On April 27, 2021, it was widely reported by local news media that the Albuquerque Police Officers Association (APOA) launched a $70,000 political ad campaign to discredit the Department of Justice (DOJ) mandated reforms saying the police reforms are preventing police officers from doing their jobs and combating crime.

POLICE UNION POLITICAL PUBLIC RELATONS CAMPAIGN

The Police Union political ad campaign consisted of billboards around the city and testimonials on TV, radio and social media from former Albuquerque Police Department officers. The public relations campaign is urging the public to tell city leaders that crime matters more than the Police reforms mandated by the settlement.

The public relations campaign included providing an email template for people to use and contact civic leaders. The template says APD has made progress with the reforms and says we are “tired of living in a city filled with murder, theft and violence. … I’m urging you to fight for this city, stand up to the DOJ, and help us save the city we love, before it’s too late. ”

APOA Police Union President Shaun Willoughby described the need for the public relations campaign this way:

“You can either have compliance with DOJ reforms or you can have lower crime. You can’t have both. We think it’s time that our city leaders hear from the public that crime matters more because it does. … They want to focus on the growing crime problem, instead of wasting millions of dollars on endless Department of Justice oversight. … This conversation of reform needs to come back to common sense. … Right now, the City of Albuquerque capitulates to everything the DOJ wants and that might not necessarily be the right direction for the City of Albuquerque. … You don’t need enemies when you have friends like the city attorney. … We believe that our community deserves better from this police department. … We believe our community deserves better from this consent decree process.

[We are asking] for the city of Albuquerque to stand up and support Albuquerque police officers and support common sense reforms that allow our officers to succeed. … . We’re talking about the bureaucracy of police officers being taken off the street because somebody that was not used force on said “ow”. And how that impacts this community, our ability to respond to the community and this community’s ability to control crime. Your Albuquerque police officers are terrified that they will lose their job for simply doing their job and it’s not fair.”

The APOA also used its FACEBOOK page to get the word out with one post saying:

“Are you tired of the growing crime problems facing the city of Albuquerque? Are you tired of break-ins, stolen cars, vandalism, theft and murder being part of everyday living in our community? Then do something! If you don’t speak up and get involved right now, things will get worse. Tell your City leaders that you care more about fighting crime then than wasting millions on endless Department of Justice oversight. Share and make your voices heard because crime matters more.”

In a February 11, 2021 Target 7 news report Shaun Willoughby had this to say:

“The whole [reform effort] system is set up to fail and the taxpayers and the people that live in this community like me and my family are the ones that are taking the brunt of [violent crime]. … Really look at this process. … It is absolutely out of control. … The entire department and the processes within it are out of control. Your officers are running out the door. Really look at every single state or agency that’s been involved in this process. … What is happening? Did it bring harmony and trust with the community? I don’t think so.”

Links to news sources quotes are here:

https://www.abqjournal.com/2384284/apd-union-launches-campaign-against-doj-oversight.html

https://www.kob.com/new-mexico-news/albuquerque-police-union-starts-campaign-to-push-back-against-doj-requirements/6087348/

https://www.koat.com/article/as-murder-rate-climbs-apd-union-launches-campaign/36257496

https://news.yahoo.com/apd-union-launches-campaign-against-040100177.html

https://www.petedinelli.com/2021/04/27/police-union-spends-70000-to-discredit-federal-court-order-after-impeding-and-resisting-apd-reforms-for-6-years-tactic-likely-grounds-for-contempt-of-court-by-a-party-for-interfering-with-court/

JUNE 9 STATUS CONFERENCE HEARING

After the police union political ad campaign, APD Police reform Advocates requested that the City and the DOJ seek to have the union held in contempt of court for interfering with the consent decree.

During the June 9, 2021 status conference hearing, presiding Federal Judge James Browning asked the Plaintiff Department of Justice (DOJ) and the Defendant City of Albuquerque if they had the “appetite” to seek and to have the Intervenor Party the Albuquerque Police Officers Association held in contempt of court and be removed as a party to the litigation. Judge Browning has previously said he would not take any action in the case unless requested by both of the parties.

During the hearing, both the City and the DOJ declined to ask for the police union to be held in contempt of court, essentially ignoring the wishes of the 3 advocacy groups that were instrumental in bringing the DOJ here in the first place. Both the DOJ and the city arrived at the conclusion that the Unions political ad campaign was protected free speech.

DOJ Assistant Attorney General Paul Killebrew said in part:

“The Albuquerque Police Officers’ Association, and indeed, the officers of the APD who are its members, have a First Amendment right to speak on a matter of public concern, and they are exercising those rights. I will say that it was not a surprise to me personally to know that the APOA would like the city to renegotiate some terms of the CASA. That has been a flavor of their position from the outset, and so I don’t take that as a surprise. I will say that at any time we are willing to hear out anyone’s proposals for how the CASA can better achieve its aims and whether modifications may be necessary.”

The DOJ essentially made all the arguments why the union should not be held in contempt of court and just ignored the Counter CASA effect and the unions activities to undermine the reforms. What should be nonnegotiable is to require accountability from the union for its obstructionist’s activities to undermine the consent decree.

When DOJ Attorney Paul Killebrew told Judge Browning “… the officers of the APD who are its members, have a First Amendment right to speak on a matter of public concern, and they are exercising those rights” Killebrew totally ignored what the union has been doing in private to undermine the reforms for the previous 6 years such as objecting to the use of deadly force and delaying the rewrite of the policy for a full year by repeatedly demanding changes. What is NOT protected free speech is the unions conduct of undermining the reforms through its membership of Sergeants and Lieutenants.

FEDERAL MONITOR’S RESPONSE TO UNION POLITICAL AD CAMPAIGN

Federal Monitor Ginger has repeatedly said that the Sergeants and Lieutenants are the “counter casa effect”. Ginger said it again in reference to the police ad campaign which is worth repeating:

“[The ad campaign is] a union canard. We’ve talked about the counter-CASA effect in Albuquerque for years and years, and it is still alive and well. This latest process from the union is just another piece of counter-CASA. The union would like us out of town, I’m sure, and remember this monitoring team – as much as we love Albuquerque – would be glad to be done with the job. But we’re not going to give passing scores unless passing scores are earned. … [if the city] will actually focus on compliance” [it could be done with the CASA in 2 to 3 years]. … We’re constantly making the same recommendations over and over and over again,” Just like this time – 190-plus recommendations. It’s a get-out-of-the-CASA-free card, those 190 recommendations. What’s dragging this out, quite frankly, your honor, is a police department not focusing its resources on complying with the CASA.”

UNION’S RESPONSE TO ALLEGATION IT WANTS TO END SETTLEMENT

During the June 9 hearing, APOA president Shaun Willoughby was asked to respond to the allegation that the goal of the union ad campaign was to end the settlement agreement or that they are “counter-CASA.”

In response to questions from Judge Browning, Willoughby gave what can only be described as an emotional and unhinged statement to the court. Willoughby freely acknowledged that he does not believe that the city can be in compliance with the CASA and simultaneously lower crime rates.

With respect to the Court Approved Settlement Agreement, Willoughby had this to say:

“Is it the No. 1 reason for the crime in Albuquerque? No, but it’s a contributing factor.”

Willoughby also told Judge Browning he stood by his comments he made to the media when he said:

“You can either have compliance with DOJ reforms or you can have lower crime. You can’t have both.”

https://www.abqjournal.com/2398400/police-union-wont-be-held-in-contempt.html

The rest of the comments made by Willoughby to the media were:

“We think it’s time that our city leaders hear from the public that crime matters more because it does. … They want to focus on the growing crime problem, instead of wasting millions of dollars on endless Department of Justice oversight. … This conversation of reform needs to come back to common sense. … Right now, the City of Albuquerque capitulates to everything the DOJ wants and that might not necessarily be the right direction for the City of Albuquerque. … You don’t need enemies when you have friends like the city attorney. … We believe that our community deserves better from this police department. … We believe our community deserves better from this consent decree process.”

UNION DEMANDS IMMEDIATE CHANGE TO USE OF FORCE POLICY

On November 12, 2021 the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 14th “Compliance Levels of the Albuquerque Police Department and the City of Albuquerque with Requirements of the Court Approved Settlement Agreement” (CASA). The report was one of 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

On January 22, 2022, in a Channel 4 news story, Shaun Willoughby, had this to say about the 14th Federal Monitor’s Report:

“Dr. Ginger is pointing the finger at APD, saying that they’re doing this intentionally. That’s an absolute absurd joke. It’s a lie. … The monitor was supposed to be here in Albuquerque, helping with technical assistance. He’s doing that over Zoom and over phone calls from a different state. … This needs to come down to action. … That use of force policy needs to be changed immediately. The City of Albuquerque is the plaintiff and they have the right to run this city and run this police department.”

The link to the Court Approved Settlement Agreement is here:

https://documents.cabq.gov/police/reports/department-of-justice/465-second-amended-restated-casa.pdf

Willoughby’s demand that the “use of force policy needs to be changed immediately” is hypocritical seeing as he sat at the bargaining table to negotiate the policy and he contributed to the full one year delay in drafting the use of force policy. In the past, the Federal Monitor noted the reason for the one year delay was upwards of 50 amendments and changes demanded by the union. Simply put, the police union does not want any kind of a “use of force” or “deadly force policy” and wants sworn officers to have 100% total discretion to decide when to use force or deadly force and under what circumstances. The union reviews such policies as handcuffing its membership from being able to do their job and not what the policies are which is “constitutional policing practices.”

The monitor did live here for a while and it is not just him doing all the work. The monitor and his team of 10 on a regular basis, met with city officials by zoom or have come to the city. For the last 2 years, the pandemic has forced changes to the way business is done. For the last 2 years, the Federal Court has held hearings in the case by zoom and Willoughby has not complained. Ginger is an officer of the court and works for the court and should be able to do the auditing remotely. The federal monitor’s reports and the data being collected is done by a team who review data and work with APD to give them guidance. The Federal Monitor himself has met with community leaders privately and in the past attended public meetings and has made presentations to the city council on his reports.

https://www.koat.com/article/albuquerque-police-department-responds-to-doj-monitor-report/38285085

COMMENTARY AND ANALYSIS

According to police officers, they are afraid to do their jobs for fear of being investigated, fired or disciplined. They claim their hands are tied. The police union for 7 years has obstructed the reforms.

It is clear the police union wants the DOJ gone and wants to dictate policy for the department by saying they have a right to identify things that are not working with the DOJ reforms and fix them. The police union also has considerable influence and thus control over its membership, especially sergeants and lieutenants, who are management. Yet sergeants and lieutenants allowed to join the union, and they undercut or interfere with implementation of the reforms.

What the police union feels is interfering with APD sworn from doing their jobs are the following mandated reforms:

The “use of force” and “deadly use of force” policies. The police union does not want any kind of a “use of force” or “deadly force policy” and wants sworn officers to have 100% total discretion to decide when to use force or deadly force can be used and under what circumstances.

The mandatory use of lapel cameras by APD.

APD police can no longer shoot at fleeing cars.

APD police can no longer use “choke holds” to subdue suspects.

APD police need to use less lethal force and not rely on the SWAT unit.

APD police must use de-escalating tactics.

All APD officers must be trained in crisis intervention.

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 officers 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.

CONCLUSION

Police reform advocacy in communities tends to ebb and flow as officer involved shooting spike, followed by public outrage only to subside after time. The elapse of time is the biggest threat to police reforms and police reform requires vigilance and aggressive enforcement.

The DOJ likely feels that the FOX News story is protected free speech. It is not at all likely the Department of Justice sees the problem with the FOX News interview and what is happening with the police union public relations antics that have gone virtually unchallenged for the last few years. The DOJ will never seek to hold the APD union responsible for undercutting, interfering and obstructing the implementation of the DOJ consent decree reforms and that is why the Department of Justice is failing in its mission to reform APD.

The DOJ lives in a vacuum not at all concerned that the public relations antics of the union has gone along way to undercut public support to reform APD where it found a culture of aggression 7 years ago.

____________________________________

POSTSCRIPT

Below is a nutshell explanation of the DOJ Investigation of APD as well as the Consent dcree.

THE DOJ INVESTGATION

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

https://www.justice.gov/sites/default/files/usao-nm/legacy/2015/01/20/140410%20DOJ-APD%20Findings%20Letter.pdf

Based on the investigation and the review of excessive use of force and deadly force cases, the DOJ found “reasonable cause to believe that APD engage[d] in a pattern or practice of use of excessive force, including deadly force, in violation of the Fourth Amendment … . and [the] investigation included a comprehensive review of APD’s operations and the City’s oversight systems.”

The investigative report found a pattern or practice of use of “deadly force” or “excessive use of force” in 4 major areas:

1. The DOJ reviewed all fatal shootings by officers between 2009 and 2012 and found that officers were not justified under federal law in using deadly force in the majority of those incidents. Albuquerque police officers too often used deadly force in an unconstitutional manner in their use of firearms. Officers used deadly force against people who posed a minimal threat, including individuals who posed a threat only to themselves or who were unarmed. Officers also used deadly force in situations where the conduct of the officers heightened the danger and contributed to the need to use force.

2. Albuquerque police officers often used less lethal force in an unconstitutional manner, often used unreasonable physical force without regard for the subject’s safety or the level of threat encountered. The investigation found APD Officers frequently used take-down procedures in ways that unnecessarily increased the harm to the person. Finally, APD officers escalated situations in which force could have been avoided had they instead used de-escalation measures.

3. A significant number of the use of force cases reviewed involved persons suffering from acute mental illness and who were in crisis. The investigation found APD’s policies, training, and supervision were insufficient to ensure that officers encountering people with mental illness or in distress do so in a manner that respected their rights and in a manner that was safe for all involved.

4. The investigation found the use of excessive force by APD officers was not isolated or sporadic. The pattern or practice of excessive force stemmed from systemic deficiencies in oversight, training, and policy. Chief among these deficiencies was the department’s failure to implement an objective and rigorous internal accountability system. Force incidents were not properly investigated, documented, or addressed with corrective measures by the command staff.

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

THE COURT APPROVED SETTLEMENT AGREEMENT

After a full year of negotiations, the 106-page negotiated CASA agreement was filed on November 10, 2014. Under the CASA, the assigned Federal Judge is given the power to enforce terms of the agreement and issue orders for compliance and issue sanctions for noncompliance. The CASA also mandated the hiring of a Federal Court Approved Monitor to audit and prepare compliance reports. The Federal Monitor has no management not control over APD in the day to day operations of the department.
Major reform mandates under the settlement include:

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

2. The CASA mandates the teaching of “constitutional policing” practices and methods as well as mandatory crisis intervention techniques and de-escalation tactics with the mentally ill.

3. The City agreed that APD would overhaul and rewrite all of its “use of force policies” and “deadly force” policies, recruitment procedures, training, internal affairs procedures and implement field supervision of officers.

4. Stricter training and restrictions on the use of nonlethal force is required under the CASA, and it requires more training and controls over the use of Tasers by officers along with quarterly audits of their use.

5. The city agreed to the creation of a Police Oversight Board (POB) as a civilian review agency that independently reviews citizen complaints, serious uses of force and officer-involved shootings by APD. The civilian agency also monitors, reviews and make recommended changes to APD policy on use of force.

6. Under the CASA, the city agreed to the creation of Police Civilian Advisory Councils (CPCs), one in each of the 6 APD area commands, designed to increase community interaction.

7. The CASA broadens and removes obstacles to the types of civilian complaints Internal Affairs and the civilian oversight agency can review.

8. The CASA provides for the appointment of a Federal Court Monitor selected by agreement of the parties with the City to pay for the auditing services of the federal monitor. The primary duties and responsibilities of the federal monitor is to report directly to the federal judge on APD’s compliance with the mandatory reforms.

9. The agreement mandates that APD adopt a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented and outlining details how use of force cases would be investigated. It requires far more reporting by officers and field supervisors and also requires detailed reviews of those reports up the chain of command within the department. Sergeants and lieutenants are required to be much more involved in field supervision and review of use of force by officers.

10. Under the agreement, officers who point their firearms at a person, but don’t fire, must fill out a use of force report that will be reviewed by field supervisors. That review is separate from a city civilian police oversight agency that will be independent of the department and will review police use of force incidents as well as civilian complaints.

11. The City agreed to create a new “Use of Force Review Board” to oversee all internal affairs investigations of use of force and deadly force. A new chain of command for the review of Internal Affairs reports of officer-involved shootings was created that reviews the Internal Affairs Reports and makes recommendations on discipline or asks for further investigation of an incident, and the board makes recommendations on discipline to the APD Chief. The Use of Force Board is required to make quarterly reports after reviewing all use of force reports to identify trends and policy changes.

12. APD agreed to revise and update its policies on the mandatory use of lapel cameras by all police officers.

13. Under the CASA, the City agreed to abolish the Repeat Offenders Project, known as ROP, within three months of signing the agreement for the reason that members of the unit were involved in a number of the controversial shootings investigated by the DOJ.

14. The agreement provides that if the city fails to implement the reforms or shows bad faith in the implementation of the CASA, the DOJ has the option of filing a federal lawsuit against the city over the city’s unconstitutional policing practices found by the DOJ investigation.

15. Certain types of hand-to-hand techniques are barred under the CASA unless the officer is in a situation that require the use of lethal force if it were available. Neck holds, sometimes called choke-holds, are explicitly forbidden to be used by officers except in situations where lethal force would be authorized.

16. A major change in the CASA bans APD officers from firing their weapons at moving vehicles in all but life-threatening situations.

The CASA provides that it is “designed to ensure police integrity, protect officer safety, and prevent use of excessive force, including unreasonable use of deadly force, by APD.” The settlement agreement requires APD to strive and use its best efforts to come in compliance with all requirements within four years, and if that were to occur, the case would be dismissed.

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

All documents related to APD’s settlement agreement can be downloaded and reviewed at this city web site link:

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

The documents include:

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

Early Monday morning February 14, Albuquerque Democrat State Rep. Georgene Louis was booked into a Santa Fe jail on charges of aggravated drunken driving after she was pulled over for speeding late Sunday evening February 13. Representative Louis is an attorney and five-term lawmaker.

According to criminal complaint filed in Santa Fe Municipal Court, she was pulled over by a Santa Fe police officer who clocked her driving her car 17 miles per hour over the speed limit on St. Francis Drive. In the criminal complaint, the arresting officer reported that Louis said she had consumed 2 or 3 vodka drinks. When the officer asked why she was driving so fast, she was reported to have responded “that she just wanted to get home.”

According to the criminal complaint filed, there was a strong odor of alcohol coming from inside the car and the arresting officer noted that Louis’ eyes were bloodshot and watery. Louis allegedly acknowledged her vehicle registration certificate had expired and was not able to provide valid proof of insurance.

The criminal complaint alleges that during a field sobriety test, she swayed and struggled to keep her balance. Two tests revealed a 0.17% blood alcohol content which is more than twice New Mexico’s legal limit. Representive Louis was arrested at 11:55 p.m.

REPRESENTATIVE LOUIS TAKES RESPONSIBILITY

In a statementreleased, Representative louis took responsibility for the incident and said:

“I am sorry and I deeply regret my lapse in judgment. … I know I let so many people down. I am accepting responsibility for my mistake. … I am prioritizing my health, and I will work hard to regain the trust of my constituents, my community and my family.”

Louis is an enrolled member of Acoma Pueblo. She ran unsuccessfully for the Democratic Party’s nomination last year for the open Albuquerque-area congressional seat vacated by Debra Haaland that was eventually won by Melanie Stansbury.

DEMOCRATS SUBDUED REACTION

Not at all surprising, Democrat Speaker of the House Brian Egolf was very subdued in reacting to the arrest and said:

“Georgene is a dear friend and a truly excellent legislator. … Until I have more information about the facts of this incident or the opportunity to speak to her directly, I cannot make any further comment.”

Speaker Egolf, House Majority Leader Javier Martinez of Albuquerque, House Majority Whip Doreen Gallegos of Las Cruces and caucus chairwoman Wonda Johnson of Church Rock issued a short statement that said:

“We are aware of this developing situation and it is important that we let the judicial process take its course. In the meantime, the legislature will continue its critical work over the next 4 days. As friends and colleagues, we are equally concerned about the wellbeing of Representative Louis and her family in this difficult time.”

DER FÜHRER TRUMP REPUBLICAN PARTYCAHIRMAN PIERCE REACTS

Hypocrite Republicans went into a feeding frenzy over the arrest of Representative Louis demanding her resignation. New Mexico Republican Party Chairman Steve Pearce called on Louis to “do the right thing” and resign and issued the following statement:

“Rep. Louis should do the right thing and resign from her House seat. She faces criminal charges, and this kind of behavior does not coincide with that of a responsible public servant. Rep. Louis has violated the public trust, let down her constituents and endangered the lives of innocents. New Mexico deserves better. Aggravated drunken driving is a serious offense, and Rep. Louis must step down.”

COMMENTARY AND ANALYSIS

Republican State Chairman Steve Pierce is nothing but a hypocrite demanding her immediate resignation. Least anyone forget, Der Führer Trump Republican Chairman Steve Pierce and 2018 candidate for Governor refused to demand the resignation of then rising Republican Star Representative Monica Youngblood when she was arrested in 2018 for aggravated DWI. No one Republican then demanded Youngblood to resign.

Links to quoted news sources are here:

https://www.krqe.com/news/new-mexico/albuquerque-state-rep-arrested-for-dwi/

https://www.kob.com/albuquerque-news/new-mexico-legislator-arrested-for-suspected-dwi-/6392827/?cat=500

https://www.abqjournal.com/2469979/state-rep-georgene-louis-arrested-on-drunken-driving-charges.html

https://nmpoliticalreport.com/2022/02/14/albuquerque-democratic-lawmaker-booked-into-jail-on-charge-of-aggravated-dwi/

COMMENTARY AND ANALYSIS

It is not at all likely that Louise will resign before the end of the 2022 session on Thursday, February 17. The big question that remains is if she will resign soon thereafter. Louise is running for another term and may well have ended her career in the legislature.

CRIME BILLS ON FAST TRACK

On Monday February 14, Law Las Cruces Democrat Joseph Cervantes, Chairman of the New Mexico Senate Judiciary Committee, unveiled during a joint meeting of the Senate Finance and Senate Judiciary committees Senate Bill 231 that focuses on the courts, law enforcement retention, training and hiring practices in an effort to deal with New Mexico’s as high rate of violent crime. The fact that there was a joint meeting of the two powerful committees is indicative of the urgency to pass crime legislation with a mere 3 full days left in the 2022 New Mexico 30 legislative session. The proposal cleared the judiciary panel without opposition after two hours of debate and testimony.

Senate Bill 231 contains an array of measures that combined will likely have a far better chance at reducing crime than the pretrial detention measure that was voted. The pretrial detention measure was voted down and substituted with a pretrial monitoring bill.

Senate Bill 231 is a consolidation of measures from some bills passed by the state House and adding new measures. Legislators are also considering proposals to stiffen criminal penalties, but the changes are not part of Bill 231.

Cervantes, a prominent trial attorney, downplayed the measure acknowledging is not the big bold change many wanted in the criminal justice system. However it a far more realistic approach that will have more of an impact in the long run given the complexity of the criminal justice system. He said this about the bill:

“This is not a big bold change where big bold change is needed, but it does some important things.”
Senate Finance Committee Chairman George Muñoz, D-Gallup, had this to say about the bill:

“It’s got to be a balanced approach that we deal with crime.”

SENATE BILL 231 PROVISIONS

Important Senate Bill 231 provisions are as follows:

1. It establishes a statewide violence intervention program modeled on a pilot program in Albuquerque. It would call for intervening with victims of violence who are likely to retaliate with their own violence.

2. It adds a District Court judge in the Albuquerque area and 2 others elsewhere in the state.

3. It provides for grants for strengthening the supervision of criminal defendants who are released while they await trial.

4. It provides for retention bonuses of 5% for law enforcement officers every five years they stay on the job through 20 years of service.

5. It splits the Law Enforcement Academy Board into two panels, one focusing on training and the other on officer misconduct.

6. It Establishes a statewide database on officer’s use of force, termination and civil judgments related to their work. Law enforcement agencies would be required to consult the database when making hiring decisions.

7. It expands the scope of what state crime reduction grants can be used for.
Senate Bill 231 would work in conjunction with House Bill 2 which is the State Budget legislation. The state budget includes raises of almost 16% for State Police officers and increased funding for pretrial services.

PRETRIAL MONITORING VERSUS PRETRIAL DETENTION

On February 7, Senate Bill 189 on “Pre Trial Detention”” was voted down and killed in committee. The bill 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.

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.

On February 9, it was reported that the “ the rebuttable presumption of being violent” legislation was substituted with legislation that focuses on ankle-monitoring data of defendants released from custody as they await trial. An amended version of House Bill 5 would require the pretrial division of the judiciary to provide around-the-clock monitoring of the locations of people who have been charged with a felony and released before trial. The legislation would require the courts to alert law enforcement if the defendant removes the monitoring unit or visits a prohibited location, such as the home of an alleged victim.

House Bill 5 will require the judiciary to provide the location data to law enforcement officers, prosecutors or public defenders, upon request. During a February 9 House Judiciary Committee hearing, Albuquerque area Democratic Representative Marian Mathews, a sponsor of the bill, said the bill “recognizes the importance of giving our law enforcement agencies the tools they need to effectively combat crime and improve public safety. ” HB 5 cleared the House Judiciary Committee on a 10-2 vote and was forwarded to the full House for consideration where it will likely pass. If the Houses passes , it will also have to make it through the Senate by noon Feb. 17 to reach the desk of Gov. Michelle Lujan Grisham. The current budget proposal includes much-needed extra funding for pretrial services.

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

COURTS MOVING QUICKLY TO ACT

On February 14, New Mexico Supreme Court Justice Michael Vigil also addressed the joint meeting of the Senate Finance and Senate Judiciary committees . Justice Vigil said the judiciary plans its own changes intended to streamline court hearings for defendants and ensure law enforcement is alerted immediately if someone cuts off an ankle monitor or enters a prohibited zone.

Justice Vigil said the judiciary is hoping to expand around-the-clock monitoring of pretrial defendants who wear an ankle monitor and issue immediate law-enforcement alerts when needed. He also said the court plans to consider rule changes that would consolidate pretrial detention hearings and preliminary hearings to determine probable cause “so the same resources don’t have to be coming in twice.”
Even though there are only 3 days left in the session, it is likely the bill will move quickly and pass both the Senate and the House.

The link to quoted source material is here:

https://www.abqjournal.com/2470017/new-crime-law-enforcement-package-emerges-in-senate.html

OTHER CRIME BILL MEASURES PASSED

HOUSE BILL 79

On February 11, House Bill 79 unanimously passed House Bill 79 and was forwarded to the Senate for consideration. HB 79 if passed by the Senate would do 3 things:

1. Raise the maximum sentence for someone convicted of second-degree murder from 15 to 18 years
2. Remove the statute of limitation for the crime
3. Raise the maximum sentence for attempted second-degree murder from three to nine years

State Rep. Antonio “Moe” Maestas, D-Albuquerque, a former Assistant District Attorney and a sponsor of Bill 79 said that under current state law, a person can do more time for other crimes than second-degree murder had this to say:

“Murder one and murder two should be the two stiffest penalties on the books, and then everything else should be relative to that, so this will put it as the second stiffest penalty in New Mexico. … A drug trafficker can do 18 years, a murderer – if you can’t prove first-degree – only does 15.”

The bill was forwarded to the Senate for consideration.

https://www.kob.com/albuquerque-news/house-passes-bill-to-increase-penalties-for-second-degree-murder/6389848/

HOUSE BILL 68

On February 12, the House voted 50-17 and passed House Bill 68 bill increasing penalties for crimes involving firearms, advancing the proposal on to the Senate for action. The vote on HB 68 did not break down along party lines. Nine Republicans and eight Democrats cast “no” votes on the proposal. The bill is sponsored by Reps. Meredith Dixon and Pamelya Herndon, both Albuquerque Democrats. Governor Michelle Lujan Grisham quickly applauded enactment of HB 68 bill which also creates a crime of making a threat of violence targeted at schools or other public places.

https://www.abqjournal.com/2469702/house-approves-bill-increasing-criminal-penalties.html

HOUSE BILL FIRST TABLED THEN AMENDED

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.

House Bill 68 was initially aimed at keeping firearms out of the hands of minors by making adults who fail to secure them subject to criminal charges was first tabled in a House committee. The legislation was then approved on February 12 after it was amended before reaching the House floor, with a provision dealing with deadly weapons in school zones being stripped out.

In its current form, the bill calls for increased criminal penalties for violent felons found to be in possession of a firearm. It also 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.

COMMENTARY AND ANALYSIS

Since the opening of the 2022 legislative session, and even before it convened, Governor Lujan Grisham has made it a priority for lawmakers to pass crime-related bills to address the state’s increasing violent crime rates. However, most of the Governor’s crime legislation has been defeated primarily because of a failure to get genuine consensus from legislators and relying on news conferences and public relations.

Although the anti-crime legislation moving through the 2022 session may not be as flashy as “pre-trial detention”, all the legislation, along with changes being proposed by the courts, have a far better chance of reducing crime rates. The actions dove tale into what the LFC analysts found which is that low arrest, prosecution and conviction rates have more to do with rising violent crime rates than releasing defendants who are awaiting trial.

The legislation now pending is an approach that should have been taken from the get go, but flashy solutions like “rebuttable presumption of being violent” always waste time, especially when it’s an election year for a Governor who wants to look “tough on crime”.

The 2020 session ends Thursday, February 17 at noon.

On November 12, 2021 the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 14th “Compliance Levels of the Albuquerque Police Department and the City of Albuquerque with Requirements of the Court Approved Settlement Agreement” (CASA). The report was one of 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

HIGHLIGHTS OF 14TH INDEPENDANT MAONITOR’S REPORT

Quoting the 14th Monitors Report, following are the most critical highlights of the 14th Monitor’s Report:

USE OF FORCE INVESTIGATIONS BACKLOG HARSHLY CRITICIZED BY MONITOR

“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.

All non-force-related misconduct investigations completed by APD … were found to be deficient. A total of 17 misconduct cases, 6 investigated by Internal Affairs and 9 area command investigations were reviewed, including two that were completed by outside agencies.

The only properly investigated case reviewed by the monitoring team this reporting period was completed by an outside agency. In two consecutive reporting periods, a virtual shut down of use of force investigations has occurred in Internal Affairs.

Only seven, or 3%, of the 216 Level 2 cases opened were closed. Only 1 of those 7 was completed within 90 days, or less than one-half of a percent. Only two of 91 Level 3 use of force cases opened during this period were completed by [Internal Affairs Force Division] IFD or 2%. Neither of the 2 cases were completed within the CASA required 90-day period.

We find these failings to be more than notable, given the amount of time the monitoring team spent with APD in the last three reporting periods specifically focused on process improvement processes at [the Internal Affairs Force Division] IAFD. Of the twelve cases reviewed for compliance concerning discipline, only 58% met the requirements for adherence to progressive discipline as outlined in the CASA.

A second backlog of 667 uninvestigated use of force cases … was reported. This second backlog is more than double the initial backlog APD dealt with from 2018-2020 and does not include any of the contemporary cases left uninvestigated by IAFD.

Approximately 83% of these cases are already time-barred for discipline in accordance with the CBA [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.”

INTENTIONAL BACKLOG AND NON-COMPLIANCE

“Given the amount of focus on the problems related to [the Internal Affairs Force Division] IAFD investigations in previous monitor’s reports, and the exceptional amounts of technical assistance provided by the monitoring team relating to IAFD processes, we can only conclude that this new backlog was intentional, and yet another canard designed to ensure that officers are not disciplined for known policy violations. We consider this another example of deliberate non-compliance exhibited by APD.

Leadership and supervision, especially in the critical areas of reform listed above, are simply lacking—or in some cases not extant. As such, these findings require direct action by the City and APD leadership to identify the causes of, and to take corrective actions responding to, what can only be described as deliberate failures to comply with existing APD policy and with CASA requirements.

Given the extensive amounts of technical assistance provided by the monitoring team related to misconduct investigations and to workload management, we can only conclude that these jarring failures are deliberate.

This reform project’s evaluation process, i.e., the manner in which the monitoring team assesses and reports progress on the required reforms, has been closely aligned to the measurable tenets of effective management.

First, the methodology closely conforms with the concept that effective management is based on developing cogent and coherent policies (articulation of acceptable activities required of police personnel).

Officers, supervisors, managers, and leaders must be clearly “on notice” of organizational expectations, so that they understand and are willing to adhere to those expectations. Once these reformative policies have been articulated, all involved personnel (recruits, officers, supervisors, and managers) must be trained to the point that they understand and are capable of implementing these policies.”

DELIBERATE FAILURE BY APD MANAGEMENT

“The monitor’s oversight process for APD during the past six years has been based on this near-universal understanding of police operational management and control. After six years of implementation, APD has fallen significantly short in its ability to engender the supervisory, managerial, and leadership efforts that have been demonstrated much earlier in other law enforcement agencies monitored in this manner.

The fact that this planned change process works, and can work well, is documented in the fact that a large majority of this monitor’s staff working on the Albuquerque Police Department monitoring process are past members of organizations that have been directly monitored by the current APD monitor.
These team members have “lived the change process” and done so successfully in their respective agencies, thus are uniquely situated to guide APD successfully through the change process.

Given the amount of technical assistance provide to APD by members of this monitoring team; given the fact that for every “out-of-compliance” outcome found by the monitor, there are recommendations developed to guide APD into compliance; given the inordinate amounts of “technical assistance” provided to APD by 4 members of the monitoring team over the past six years.

The monitor can only conclude, based on his knowledge, training and experience, that these failures at APD are deliberate.”

FORCE REVIEW BOARD

“We have noted critical potential issues with APD’s Force Review Board this reporting period, including our assessment that the number of uses of force requiring review by [the Force Review Board] FRB are likely to overload the review and assessment mechanism. This speaks as much to APD’s inability (or unwillingness) to control unnecessary or improper uses of force as it does to the efficacy of the Force Review Board itself.

The sheer volume of reported uses of force by APD officers threatens to overload the oversight system. This is both a commentary on the magnitude of reportable uses of force effectuated by APD officers and the relative inability or unwillingness of APD field commanders to call out improper uses of force.

As with past reporting periods, however, the central CASA requirements related to use of force continue to need a great deal of scrutiny and oversight if APD is to reach full compliance with the requirements of the CASA.”

OPERATIONAL COMPLIANCE STATIC

“For the last seven reporting periods, operational compliance levels have been virtually static, with operational compliance levels holding at or near an average of 62 percent. Actual data points range from a low of 59 percent (IMR-8 and IMR-13) to a high of 66 percent (IMR-11).

Our assessment is that APD has dealt with the low hanging fruit of the CASA and has deliberately failed to deal with the issues that are the crux of the reform process: officers’ tendencies to use unnecessary force, to under-report (or fail to report) uses of force, and supervisory and oversight personnel’s unwillingness to identify, classify, and correct these issues.

Obviously, use of force practices are a key element of the reform process. To date, APD, as an organization, has simply refused to deal effectively with pressing use of force issues. The monitoring team has provided, and continues to, provide more technical assistance to APD than any other police department it has monitored.

For the most part, that technical assistance is not implemented by APD when it comes to identifying, classifying, investigating, and correcting unnecessary uses of force by its personnel.

The monitor is convinced that, at this point, failures by APD to deal with improper uses of force are related to will, not ability.”

DECEMBER 16 HEARING

On December 16, 2021 a hearing on the 14th Federal Monitor’s Report was held where the Federal Monitor presented his report and the City, the Department of Justice and Third-Party Intervenor Police Union were allowed to give their reaction to the 14th report. The 14th Federal Monitor’s Report resulted in a full throttle assault and condemnation of the Federal Monitor by the City, APD and the police union directed at the process, the language used by the monitor and what he reported as the failures of APD.

CITY ATTORNEY REACTS

City Attorney Esteban Aguilar, Jr. had this to say:

“Using … inflammatory hyperbolic language is improper editorializing in a whole lot of areas. … It improperly ascribes intent to the work of our officers, the women and men who are on the ground, trying to not only keep us safe, but trying to implement all of the provisions of constitutional community-based policing. … We have failures, you know, we still have … 37% operational compliance to attain, so we do have a long way to go. … But we’re not at the beginning of this process. And, I think it does a disservice to the work of the department, but also the work of the community members who have been engaged in this process, and who have been actually asking for meaningful change as well, because we’ve been walking with them step by step throughout this process.”

APD CHIEF HAROLD MEDINA REACTS

APD Chief Medina condemned the 14th Federal Monitor report saying it’s easy for someone who is “thousands of miles away” to point at APD’s problems and saying it’s intentional. Medina claims that everyone is working to comply in the best way they can and he had this to say:

“It’s a matter that we don’t know how to do stuff to their liking, or to their standards. … I think that’s been a problem from the very beginning is that instantly when APD fails, they’re tagged by the monitoring team, DOJ, as ‘Oh, APD is resisting this.’ No, you guys are all here because APD sometimes doesn’t know how to do this stuff. And that’s what we should be doing is if we’re doing it wrong, correct us more quickly, and give us the lag time to put the fixes in place.”

Medina said he agreed with parts of the report and acknowledge there is more work to done particularly with some officers in the ranks who are not doing what is required under the consent decree. Medina had this to say:

“There may be individual officers that may be deliberately not doing something they need to do. … The thing I take offense to is that leadership questions that this isn’t being supported by leadership.”

https://www.kob.com/albuquerque-news/apd-chief-disappointed-with-latest-doj-monitor-report/6306468/?cat=500

APD UNION REACTS

Shaun Willoughby, president of the Albuquerque Police Officer’s Association, had this to say about the 14th Federal Monitor’s Report:

“Dr. Ginger is pointing the finger at APD, saying that they’re doing this intentionally. That’s an absolute absurd joke. It’s a lie. … The monitor was supposed to be here in Albuquerque, helping with technical assistance. He’s doing that over Zoom and over phone calls from a different state.”

EDITORS COMMENTARY AND ANALYSIS: What Willoughby has never acknowledged in public is that the monitor did live here for a while and it is not just him doing all the work. The monitor and his team of 10 on a regular basis, met with city officials by zoom or have come to the city. For the last 2 years, the pandemic has forced changes to the way business is done. For the last 2 years, the Federal Court has held hearings in the case by zoom and Willoughby has not complained. Ginger is an officer of the court and works for the court and should be able to do the auditing remotely. The federal monitor’s reports and the data being collected is done by a team who review data and work with APD to give them guidance. The Federal Monitor himself has met with community leaders privately and in the past attended public meetings and has made presentations to the city council on his reports.

https://www.koat.com/article/albuquerque-police-department-responds-to-doj-monitor-report/38285085

APD FORWARD REACTS

APD Forward is a coalition of 27 police reform advocacy groups and community stakeholders that were instrumental in petitioning in bringing the Department of Justice to the city to investigate APD’s use of deadly force. The American Civil Liberties New Mexico chapter is part of APD Forward and acts as it main spokesperson. Barron Jones, a senior policy strategist with the ACLU, said after reading the report, it’s clear that APD still has a lot of work to do and said:

“Unfortunately, it’s more of the same [from APD]. … While we recognize the department’s efforts to improve training and that the performance metric unit is up and helping folks analyze trends we believe that the crux of the reform lies in the department’s ability to address bad behavior, or out of policy violations. That doesn’t seem to be happening yet during another monitor report.

“It just sort of boils down to are they completing those use of force investigations in a timely manner, in a way that [APD] … leadership can take corrective action and address behavior before it gets out of hand. You know, the department can make all the changes in the world, but if they can’t get that component right, then the reform process is falling flat.”

KELLER ANNOUNCES NEW “PUSHBACK” TACTIC DEALING WITH CASA

On January 13, 2022, Channel 4 broadcast a story of Mayor Tim Keller giving a luncheon speech on January 11 to the Greater Chamber of Commerce. Keller used the opportunity to announce a new strategy on how to deal with the CASA. Keller was asked what is the City’s strategy going forward to deal with the ongoing federal oversight of the Albuquerque Police Department.

Mayor Tim Keller responded while the news camera was rolling:

“I thought, we’ll just say yes [to the settlement]. We’ll get it done, because – kind of before – there was a lot of resistance. Well, neither of those strategies work. Resistance didn’t work. Just saying yes, also didn’t work. . . . We have to do what is right for the Albuquerque Police Department and the City of Albuquerque. … That is different based on what they think we should do based on Maryland. Or what they think we should do based on LA. That’s been a huge part of the problem.”

Chief Administration Officer Sarita Nair and Shawn Willoughby, the President of the Albuquerque Police Officers’ Association were both interviewed by Channel 4 for the same story that featured Keller.

Willoughby had this to say:

“I can wholeheartedly understand that when Mayor Keller first took office four years ago, after the resistance that the DOJ and the City of Albuquerque had, he wanted to be a bridge-builder. And, they definitely went that strategy. … This needs to come down to action. … That use of force policy needs to be changed immediately. The City of Albuquerque is the plaintiff and they have the right to run this city and run this police department.”

EDITOR’S COMMENTARY AND ANALYSIS: Willoughby’s demand that the “use of force policy needs to be changed immediately” is hypocritical seeing as he sat at the bargaining table to negotiate the policy and he contributed to the full one year delay in drafting the use of force policy. In the past, the Federal Monitor noted the reason for the one year delay was upwards of 50 amendments and changes demanded by the union. Simply put, the police union does not want any kind of a “use of force” or “deadly force policy” and wants sworn officers to have 100% total discretion to decide when to use force or deadly force and under what circumstances.

Chief Administration Officer Sarita Nair boldly proclaimed:

“[The Federal Monitor] is supposed to just grade us on the policies we have and whether we’re doing them or not, he’s not supposed to be monkeying around with personnel, he’s not supposed to be taking stances that are intended to change behavior. … We need to continue to push back on that.”

EDITOR’S COMMENTARY AND ANALYSIS: CAO Nair’s comments that “he’s not supposed to be monkeying around with personnel, he’s not supposed to be taking stances that are intended to change behavior” reveal a remarkable ignorance of the CASA and the purpose and intent of the CASA. The settlement provisions are very clear that the Federal Monitor has no management, nor control over APD personnel, nor over the day to day operations of APD. The Federal Monitor cannot hire or discipline APD personnel. During the February 9 hearing, Judge Browning also pointed out that it is inherent in the Federal Monitor’s duties and responsibilities to take stances that are intended to change APD’s behavior to achieve constitutional policing.

The link to the full Channel 4 report is here:

https://www.kob.com/albuquerque-news/doj-oversight-of-apd-mayor-keller-announces-newstrategy/6357869/

FEBRUARY 9, 2022 HEARING

On February 9, Federal Judge James Browning held a second hearing on the 14th Federal Monitor’s Report to allow “amicus curiae” or friends of the Court and police reform advocates to offer their say to the Federal Monitors 14th report.

The February 14 hearing was a dramatic contrast with the December 16 hearing. The members of the community and police reform advocates expressed support of the Federal Monitor. The hearing was also a full throttle complaint session that the city continues to fail to implement the reforms.

APD police reform advocates made it clear and showed their frustration that they feel the Department of Justice is not doing its job to hold APD accountable for its deliberate failure to come into compliance with CASA reforms. Police reform advocates criticized the Department of Justice no longer being committed to the police reform process and being derelict in its duty to hold the city accountable for intentional violations of the court order.

The plaintiffs in the case of McClendon v. City of Albuquerque went so far as to advocate that APD and the City be held in civil contempt of court for deliberate and willful violations of the CASA. The Court was asked to place APD into receivership.

PARTICPANTS WHO TESTIFIED

Gary Housepian, the Executive director of Disability Rights New Mexico, bluntly asked if the Keller Administration and APD administration were still committed to bringing constitutional policing to Albuquerque. Housepian aggressively pushed back on APD’s and the City’s false rhetoric linking high violent crime to the CASA reform efforts. Last year the APD police union conducted a $70,000 media campaign to discredit the reforms and pushed the false narrative that the CASA reforms are causing increases in the city’s crime rates and keeping sworn police from doing their job.

Vickie Williams, the representative from the Community Policing Councils (CPCs), citizen groups created by the Court Approved Settlement Agreement to engage in dialogue with the police department, said the CPC’s feel “left out, disrespected and unappreciated,” and didn’t have enough resources to be effective.

Alfred Mathewson, along with attorney and state Representative Antonio Maestas, and attorney Stephen Torres, is counsel for the Amici group known as the Community Coalition. The coalition, a collaboration arising out of the Martin Luther King Task Force on Social Justice organized by Jewel Hall, includes among others the Albuquerque Center for Peace and Justice, Hispano Roundtable of New Mexico, New Mexico LULAC (League of United Latin American Citizens), and SWOP (Southwest Organizing Project). Mathewson raised the issue that after 7 years and millions spent, how much longer and how much will it take for APD to finally come into compliance with the reforms. He expressed community fears that the city is facing upwards of 4 and a half years more of DOJ oversight. He expressed totally frustration with the DOJ’s failure to act. Mathewson said a goal should be set that all the reforms should be completed within 2 years.

Dan Walter, the retiring chair of the Mental Health Response Advisory Committee criticized the Keller Administrations new Community Safety department, made up of first responders tasked with handling mental health and homelessness calls, for not involving the board or asking for advice when developing policies and procedures.

MOST DAMNING NARRATIVE PRESENTED

Civil Rights Attorney Peter Cubra, a highly experienced attorney who represents the McClendon subclass representing incarcerated people, said he was horrified by Mayor Keller Administration’s attacks on the independent monitor and his finding of APD’s failed progress. Cubra said the case is in the worse position of any case he has seen in these types of cases. Cubra told Judge Browning:

“In recent times, the city of Albuquerque has done the most shocking things I’ve ever seen in one of these kinds of lawsuits. … Their horrific levels of non-compliance alone would be the basis for civil contempt.”

In his February 3, 2022 letter to Judge James Browning for the hearing, Cubra emphasized the follow points:

1. “[The city” is not coming close to complying with the court orders which they asked [the] Court to enter as a consent decree in 2014.”

2. “[APD] intentionally stopped investigating alleged violations of the CASA and the Fourth Amendment by its employees allowing [police officer] violators to go uninvestigated and undisciplined.

3. “[The city] has not hired a permanent Superintendent of Police reform and is generally not being reasonably diligent in attempting to accomplish what they stipulated should be done; without ever asking for modifications or suspension of the provisions they are knowingly violating”

4. “Since the Independent Monitor issued his Fourteenth Report, City Officials have repeatedly publicly attacked the Monitor, undermining the Court’s authority and integrity as well as the effectiveness of the Monitor’s work. The City is currently using its web site to attack the Independent Monitor.”

5. According to the Cubra letter and quoting statements made, city officials, including Mayor Tim Keller, Chief Administrative Officer Sarita Nair, APD Chief Harold Medina and the Police Union President have all engaged in unfounded public attacks and false statements about the Federal Independent Monitor, his work performance and his work product.

6. “The City suspended altogether its efforts to comply with its obligation to investigate uses of force, but never asked the Court either to suspend its obligations or for a modification of its obligations.”

7. “During the reporting period, the Internal Affairs Force Division completed just one level 2 and 3 use of force investigations within the 90-day time period outlined in the CASA. As of October 25, 2021, IAFD had a 660-case backlog of uninvestigated level 2 and 3 use of force cases. The majority of those 660 cases, 93 percent, are older than 90 days and more than 80 percent are too old to discipline the officers if IAFD investigators uncover misconduct.

8. The monitoring team … reported on the City’s continuing failure to comply with the CASA provisions regarding how its officers interact with individuals who are experiencing behavioral health crises.

9. “The Fourteenth IMR shows continued and chronic noncompliance. As was made clear during the December hearing, violations of the CASA are numerous and chronic.”

10. “The Department of Justice (DOJ) appears to be so overtaxed by its myriad responsibilities in other matters that it has not initiated any motions practice to address the problems … . The DOJ … has the inherent authority to seek a contempt finding herein. … However, counsel for the United States have not filed a motion seeking to enforce the CASA, despite filing numerous reports since 2017 that irrefutably show that noncompliance is chronic and, often, deliberate.”

Cubra said that he was dismayed the Department of Justice had not taken action and urged U.S. District Judge James Browning to do so instead. The Court has declined to take any action.

The McClendon subclass concluded with the following requests.

1. It requested Judge Browning to promptly convene a show cause hearing to determine if the City’s actions constitute contempt of court, and, if so, to appoint a receiver to manage the City’s implementation of the CASA; and

2. To allow counsel for the amici to call witnesses, introduce evidence and otherwise participate actively at the show cause hearing in light of the failure of the United States to “seek enforcement of the provisions of” the CASA and to act to protect the authority and integrity of the Independent Monitor and the CASA from unwarranted attack.

The Court has repeatedly declined to take any action requested by the friends of the court or amici groups and police reform advocates.

MAYOR KELLER’S PUSHBACK TACTIC

During the February 9, hearing Judge James Browning went out of his way to quote Mayor Keller and asked what Keller meant when Keller told the Chamber of Commerce:

“I thought, we’ll just say yes [to the settlement]. We’ll get it done, because – kind of before – there was a lot of resistance. Well, neither of those strategies work. Resistance didn’t work. Just saying yes, also didn’t work. . . . We have to do what is right for the Albuquerque Police Department and the City of Albuquerque. … That is different based on what they think we should do based on Maryland. Or what they think we should do based on LA. That’s been a huge part of the problem.”

Attorney Carlos Pacheco who was representing the City during the hearing responded he was not at all sure what the Mayor meant. However, Pacheco did offer an opinion that what differentiates the City of Albuquerque’s consent decree from all others in the country is that it is unique, deals with APD’s interactions with the mentally ill and you cannot rely on what is working in those other city’s as being what is needed in Albuquerque. Browning acknowledged the opinion was a reasonable explanation for the Mayor’s comments.

DOJ, APD AND POLICE UNION PUSH BACK

During the February 9 hearing, the City and the Department of Justice affirmed their commitment to seeing the court-mandated reforms through to create lasting change. However, both pushed back against the criticism.

Department of Justice Attorney Paul Killebrew said the goal is not merely to get the city past the finish line, but also to foster sustainable reforms. Killebrew said this:

“All options remain on the table … So, on an ongoing basis, we’re examining what is happening with compliance and what are the steps that we need to take to move compliance along to help APD reach the goals of the consent decree and to protect the people of Albuquerque from unconstitutional policing.”

APD Chief Harold Medina, appearing by zoom in a coat and tie and not his customary open neck polo shirt with an APD emblem he is known to wear in public, was highly defensive and said he was doing all he could with the resources he has. He also said that means pushing back on the independent monitor on findings he disagrees with.

Medina put it this way:

“If I had an unlimited budget and unlimited resources, I’d have every position hired necessary for us to go into compliance. … The simple fact of the matter is I don’t. I have given every civilian position that I can to compliance, so I can get sworn people going out to enforce laws.”

The link to quoted news source material is here:

https://www.abqjournal.com/2469066/police-reform-advocates-express-frustration-at-city-doj.html

EDITOR’S COMMENTARY AND ANALYSIS: It’s laughable that Medina told Judge Browning that if he had “unlimited budget and unlimited resources, I’d have every position hired necessary for us to go into compliance.” The truth is, APD has been given all funding it has asked for during the last 4 years under Mayor Keller and still APD fails to get the job done right.

APD is the largest budgeted department in the city’s history. APD’s approved general fund operating 2022 budget is upwards of $222 million. The City Council has approved all the APD funding the Keller Administration has ever requested. Medina for his part has doubled the number of Deputy Chiefs, increased the Chief’s office command staff from 3 to 10 and has added a new level of management of 14 assistant commanders. The new negotiated police contract makes APD the best-paid law enforcement agency in the region by increasing hourly pay by 8% and longevity pay by 5%, and creating a whole new category of incentive pay.

POLICE UNION CONTRACT SIGNED

During the February 9 hearing, Police Union Attorney Fred Mower categorically denied that there is a “deliberate counter casa effect”. Mower said there is a personnel shortage. Despite what police union lawyer Mower said, the federal monitor has repeatedly documented instances of “deliberate counter casa effect.”

It was in the Federal Monitors 10th audit report that the “Counter CASA” effect was defined. According to the Federal Monitor:

“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.

Mower told Judge Browning that the current union contract is the previous contract that has expired with identical terms and that only salary pay increases were negotiated. That may be the case, but Police Union President Shaun Willoughby himself has said there were certain provisions of the contract that were “no starters” for negotiations such as the time frame increased to investigate police misconduct cases and if sergeants and lieutenants should be allowed to be in the union.

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

PLAN UNVEILED TO DEAL WITH BACKLOG OF USE OF FORCE CASES

According to the 14th Federal Monitor’s Report, there is a 667 backlog of use of force cases. Of the backlog, 83% are older than 120 days, and under the settlement officers cannot be disciplined if it was discovered they had violated policies. Notwithstanding, the DOJ is demanding that APD clear the 660-case backlog to determine the extent of police misconduct.

During the February 6 status conference hearing, APD unveiled a plan 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.

Zak Cottrell, the Interim Deputy Superintendent of Police Reform said such investigations “[Are] actually a very extensive investigation, they can take a lot of time – a lot of video has to be reviewed, make sure officer statements match what’s on the video.”

APD wants the External Force Investigative Team (EFIT) established last year to help them out and sort through the cases. The City established the External Force Investigation Team (EFIT) to assist the Albuquerque Police Department (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.

The police union says APD should be looking at their policy rather than spending $3 million on the program. Shaun Willoughby, president of the Albuquerque Police Officers Association, had this to say:

“We’ve had backlog after backlog after backlog, and the real nooks and cranny of the problem we are always going to be in a backlog. There is always going to be a backlog at this police department until the police department changes the policy.”

EDITOR’S COMMENTARY AND ANALYSIS: Willoughby once again deflects any and all responsivity of his union membership contributing to the “backlog after backlog” with their intentional obstructionist’s tactics as sergeants and lieutenants refuse to hold subordinates accountable for will violations of policy.

The link to quoted news source material is here:

https://www.krqe.com/news/crime/plan-unveiled-to-tackle-apds-use-of-force-backlog/#:~:text=Plan%20unveiled%20to%20tackle%20APD’s%20use%20of%20force%20backlog&text=During%20a%20federal%20hearing%20Wednesday,and%20sort%20through%20the%20cases.
COMMENTARY AND ANALYSIS

During the February 6 hearing, Federal District Judge James Browning raised the issue with his line of questioning if the CASA has now become more of a “historical document”. The point he ostensibly was making is that the CASA is no longer relevant to current times as opposed to an ongoing “living document”, as Judge James Browning described it, or a court order that needs to be modified to changing times. Judge Browning noted that their seems to have been a shift in public opinion without elaborating.

CHANGING TIMES DEMAND CHANGES IN APPROACH

One thing is certain. After 7 years, things have changed drastically with law enforcement not only in the city but nationally because of the “Black Lives Movement” and the killing of African American George Floyd by police. Judge Browning asked the Department of Justice if it was still committed to the CASA. Not at all surprising is DOJ Attorney Paul Killebrew said yes. If that is the case, the DOJ and Killebrew need to give the city’s police reform advocates more than lip service and do the job of going to court to hold APD and the city accountable for its intentional conduct of undermining and disobeying a court order.

After the December 16 and February 9 hearings, it’ s clear that the Department of Justice will not take any action to hold the city and APD accountable with contempt of court actions nor ask for the appointment of a receiver to take over APD. Federal District Judge James Browning has made it clear in 3 separate hearings that the court will not take any action unless specifically requested and agreed to by the City and the Department of Justice. Judge Browning needs to reconsider, otherwise things will only remain the same or perhaps continue to get worse.

It obvious the DOJ does not have the stomach nor does it want to do any of the heavy lifting when it comes to the reforms. The DOJ prefers to rely on the Federal Monitor as the lightning rod and prefers stipulated agreements with the city to settle any differences they may have with the city and APD, even when they have more than enough evidence that will support a contempt of court action. The DOJ is no longer cutting it and APD police oversight advocates know it and want and are demanding more from the court and the DOJ. It was the APD police reform advocates that worked to bring the DOJ to the city in the first place after far too many shootings.

The biggest complaint of all the DOJ consent decrees in the country is implementation and enforcement “go on and on” for years, costing millions in taxpayer dollars. That is exactly what is happening in Albuquerque, and will continue to do so unless the Federal Court puts the brakes on it. The single most remarkable understatement made during a status conference hearing a few years ago by Special Counsel for the DOJ’s Civil Rights Division Paul Killebrew was when he said:

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

WHERE THERE IS A WILL TO OBSTRUCT, THERE IS A WAY TO OBSTRUCT

Given what Mayor Tim Keller, CAO Sarita Nair, City Attorney Esteban Aguilar and APD Chief Harold Medina have now said about the 14th Federal Monitors report it is abundantly clear they are now engaged in joint efforts with the police union favoring “noncompliance” and obstruction tactics.

Where there is a will to obstruct the CASA reforms, the Mayor, the City, APD management and the Police Union will likely find a way. The DOJ have failed to learn that lesson after 7 years and millions spent on the reform effort. The Federal Monitoring Team after over 7 years know without any doubt what needs to be done with use of force investigation and knows where things are lacking. The 300 plus page audits covering each time the 271 reforms and the Monitor always have the same old refrain “it’s not my job” to manage.

Review of all the Federal Independent Monitors Reports and reforms implemented, one conclusion is the spirit and intent of the settlement has been achieved with new “use of force” and “use of deadly force” policies, extensive training and sweeping mandated changes to APD protocols. Still, APD hovers at around 60% “operational compliance” when 95% is required for two years to dismiss the DOJ consent decree.

AS GOOD AS IT’S GOING TO GET

After 7 years and millions spent, it is likely things are as good as its going to get with the Keller Administration’s current APD management under the consent decree. Now that Keller has been elected to a second term, he and his minions feel free to challenge the need for the consent decree and to criticize the monitor’s findings. The is a far cry from 4 years ago when Keller said he was fully committed to police reform. Keller campaigned and was elected in part promising to implement the DOJ consent decree reforms, proclaiming his administration “owned it” and he would be judged on his success or failure. Keller now has “buyer’s remorse” when it comes to the CASA reforms, but he still owns it.

It is painfully obvious from review of all the monitor’s reports that APD’s high command appointed by Mayor Tim Keller cannot get the job done to the satisfaction of the federal monitor and the DOJ. The Federal Monitor has said that in order to effectuate real change within APD, and outsider Chief who fully understands constitutional policing practices needs to appointed. Mayor Keller has now twice refused to appoint a Chief from the outside preferring to appoint Chief’s and Deputy Chief’s who have retired from APD. Mayor Keller appointed Chiefs and Deputy Chiefs who have been with APD for decades. They helped create, were aware of, participated in or did absolutely nothing to stop the “culture of aggression” and the excessive use of force and deadly force.

APPOINT A RECEIVER, DISMISS THE CASA

APD has now reached the point with all its failures to implement the 271 reforms that the Department of Justice should seek Court Orders through a Motion For Contempt to hold the City and APD accountable. The DOJ should ask Judge Browning to appoint a receiver to get the job done to its satisfaction and let the DOJ do the heavy lifting for a change when it comes to the reforms. If the DOJ does not want to act, Judge Browning should act “sua sponte” and appoint a DOJ receiver to take over APD and set aside the CASA as unworkable or using his own term as “historical”.

Federal Monitor James Ginger at the conclusion of the February 9 hearing said that the 15th Monitor’s Report will be filed on May 11. It’s not at all likely that his findings of compliance will be any better or dramatically different that the past few reports.

Mayor Tim Keller sent a letter in early February to all New Mexico Legislators during the 30 legislative session saying changes on the state level are necessary to get our crime crisis under control. He wrote asking for support of his “Metro Crime Initiative” legislation and asking legislators to step up their efforts and not “push this problem back to the Duke City.”

Keller wrote in pertinent part:

“… The state’s criminal justice system is fundamentally broken, and there is no single person or government that can fix it alone. Our State deserves more than another round of the blame game; we deserve and demand solutions. It is way past time for each piece of the system to take responsibility and agree that we each have to do our part to make it work.

That’s why … I convened the “Metro Crime” Initiative, bringing together leaders from across the criminal justice system, including legislators from both chambers. It produced 40 action items across jurisdictions to repair this failed system.
…
First, we must rebuild the dismantled behavioral health system. Second, we must close the revolving door by fully funding our courts at every level, and fixing the systems that are supposed to stop criminals from committing new crimes between arrest and conviction. Finally, we need to protect our communities from the epidemic of gun violence.

Today we are supporting a package of public safety legislation and investments that can help accomplish these Metro Crime Initiative guiding principles. I know it can be tempting to push this problem back to the Duke City. But our State is at its best when we step up to help each other.

… there is no excuse for ignoring the 900 thousand New Mexicans who call the Albuquerque metro area home. And the reality is that crime is not just an Albuquerque issue. Violent crime is indisputably a statewide problem with at least twenty communities in our state experiencing a rise of violence over the past decade.

The State is fundamentally responsible for key aspects of the criminal justice system, including defining which crimes we take seriously and funding the courts, the prosecutors, the public defenders, the detention centers, and behavioral health and addiction treatment. Albuquerque does not write its own criminal code or make rules for its judges. These are the areas where you can provide tangible, immediate help. There are many ways you can demonstrate action on crime this session.
…
New Mexico rises and falls with the Duke City, and today, we need your help. The larger issue for this session is not whether this particular measure will pass. It is not whether people can find reasons to stall various crime bills. It is not about commissioning studies or waiting for a longer session or more data to take action.”

Mayor Keller’s entire February, 2022 letter to the legislature can be found at this news source link:

https://www.krqe.com/news/politics-government/legislature/mayor-keller-urges-lawmakers-to-pass-crime-bills/

Mayor Keller in a separate interview said that lawmakers in rural areas do not see crime as their problem and said:

“I think that rhetoric has been really unfortunate. I think it has been damaging to our state.”

https://www.kob.com/albuquerque-news/one-week-left-to-get-key-public-safety-bills-through-new-mexico-legislature/6387362/

KELLER SUPPORTED PRETRIAL DETENTION LEGISLATION

One of the 40 action items identified by Keller’s “Metro Crime Initiative” is pretrial detention where a “rebuttable presumption of dangerousness” for defendants charged with certain violent crimes would be established for the courts. 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.

Rebuttable presumption shifts 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 original bill was likely “unconstitutional” and violated the presumption of innocence until proven guilty guaranteed under the United States constitution.

On January 20, the 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/

On February 7, the bipartisan Senate Bill 189 on “Pre-Trial Detention” was tabled on an 5-3 vote in the Senate Health and Public Affairs Committee, preventing the bill from moving forward in the Senate chamber essentially killing the legislation

APD MOST COMMON REASONS DWI CASES DISMISSED

On February 8, KRQE News 13 investigation reported on the most common reasons DWI cases are being dismissed in Bernalillo County. According to data compiled by the Bernalillo County District Attorney’s Office between 2018 and 2020, a police officer’s failure to follow through was all too often the likely reason for a case getting thrown out of court.

In the last three years hundreds of accused drunk drivers have had their cases dismissed essentially on technicalities caused by law enforcement of the prosecution. According to the report:

“In 2018, the Albuquerque Police Department, Bernalillo County Sheriff’s Office and New Mexico State Police caught 2,521 people driving drunk. By 2020, because of the pandemic, bar closures and continued police officer shortages, the number of DWI arrests plummeted by more than 600.”

KRQE obtained the Bernalillo County DA’s Officer’s data that broke down the reasons why a case is dismissed. The data places blame on police officers. Depending on the police agency and the year, up to 77% of dismissals were attributed to the arresting officer failing to follow through on the case.

Judges assigned the cases must follow the law and the rules of criminal procedure and are required to dismiss a case if an officer doesn’t complete a pre-trial interview, turn over evidence to the defense or fails to show up to court.

Bernalillo County Deputy District Attorney Joshua Boone, the main DWI prosecutor at the DA’s office had this to say:

“It’s frustrating! If I lose cases on the merits because somebody is found to be not guilty or acquitted on a charge, I can always live with that. Losing cases on technicalities that’s a problem for me. … If we get a case where discovery has been turned over, the officers have conducted their interviews and they show up to court, we’re convicting at about an 89% rate. … We don’t lose those cases.”

The link to the full KRQE report is here:

https://www.krqe.com/news/investigations/data-officers-to-blame-for-dwi-case-dismissals/?ipid=promo-link-block1

KELLER’S METRO CRIME INITIATIVE

It was on September 23, that Mayor Keller concluded a conference he dubbed the “Metro Crime Initiative”. Participants included APD, the DA’s Office, the Courts and many other stakeholders to address what all participants labelled the “broken criminal justice” system and calling it a “revolving door”.

The entire “Metro Crime Initiative” started with the phony premise that our criminal justice system is broken. It’s not. The criminal justice is only as good as the stakeholders who are responsible to make it work and succeed. The 3 main components of the criminal justice system are law enforcement, prosecution and the courts. Examination of all 3 reflects failure to do their jobs.

When you examine the “check list” of the 40 different proposals that were the result of the Metro Crime Initiative, the proposals are essentially what all the participants have been working on over the past 2 years and include many programs already announced. The list contains nothing new. The items listed are ones that the participants should have been doing in the first place.

The 40 proposals are essentially an admission by many of the participants that they have not been doing their jobs effectively from the get go. There really is nothing new other than a public relations flyer and the checklist Mayor Tim Keller could hold up during his press conference and be able to say “ignore my failures of the past 4 years and see what I have done now to combat violent crime.”

KELLER’S APD NOT DOING ITS JOB

APD statistics for the budget years of 2019 and 2020 reflect that APD is not doing its job of investigating and arresting people. APD felony arrests went down from 2019 to 2020 by 39.51%, going down from 10,945 to 6,621. Misdemeanor arrests went down by 15% going down from 19,440 to 16,520. DWI arrests went down from 1,788 in 2019 to 1,230 in 2020, down 26%. The total number of all arrests went down from 32,173 in 2019 to 24,371 in 2020 or by 25%. Bookings at the jail have plummeted from 38,349 in 2010 to 17,734 in 2020. To have booking, there must be arrests. APD’s homicide unit has an anemic clearance rate of 36%.

THE PROSECUTION

When Raul Torrez ran for DA the first time, he said our criminal justice system was broken. Torrez accused the District Courts of being responsible for the rise in crime and releasing violent offenders pending trial. Torrez accused defense attorneys of “gaming the system” to get cases dismissed against their clients. A report to the Supreme Court prepared by the District Court revealed it is the DA’s office dismissing more felony cases for various reasons than the courts. The DA’s office currently has the highest voluntary dismissal rate in its history, and plea agreements with low penalties are the norm. Data given to the Supreme Court revealed overcharging and a failure to screen cases by the DA’s Office contributes to a combined 65% mistrial, acquittal and dismissal rate.

THE COURTS

A negative perception of the courts is created when judges release violent felons and not holding them for trial without bond. It’s common knowledge that Judges are concerned about their disqualification rates, appeals and reversals and how they are perceived by the Judicial Performance Evaluation Commission. Judges are reluctant to make decisions and hold off on making the hard decisions to avoid controversy to protect their jobs.

COMMENTARY AND ANALYSIS

The participants in Mayor Tim Keller’s “Metro Crime Initiative” know what is wrong with the state’s criminal justice system. It is not a “broken system” but a “systems failure” caused by their own failures to act and to do their jobs effectively. The problems and shortcomings within our criminal justice system will not ever go away unless and until the stakeholders do their own jobs in an effective and competent manner.

The criminal justice system in this country and this state has never been perfect, nor will it ever be, but it is not broken. The criminal justice system does have its flaws and a number of inequities, but to say that it is a broken system is just plain ignorance or political opportunism at its worst.

A CONDECENDING LETTER

Keller’s letter to the New Mexico legislature has an unmistakable level of condescension of a big city attitude that results in the city being vilified by smaller rural communities. New Mexico doe not “rise and fall with the Duke City” as Keller suggests, nor is our “state’s criminal justice system fundamentally broken.” Further, our constitutional rights of presumption of innocence until proven guilty beyond a reasonable doubt should never be sacrificed because prosecutors, and for that matter Mayor’s like Tim Keller and legislator’s, want to look good and be able to say they are bringing down crime.

Prosecutors like DA Raul Torrez are also lazy not wanting to do their own jobs but instead rely on a system to hold people pending trial and forcing them to begin a criminal sentence when they ultimately may be found not guilty or a case is dismissed with a District Attorney saying “never mind”.

Mayor Tim Keller’s letter, for all of its good intentions, can be held up as a good example as to why no Mayor of Albuquerque since Clyde Tingley in 1934 has gone on to become New Mexico Governor. Big city Pete Domenici was honorary Mayor of Albuquerque as Chairman of the City Commission and ran for Governor only to be defeated by small town Stanly, New Mexico Democrat Governor Bruce King.

Next time Mayor Tim Keller writes a letter to the New Mexico legislature regarding the failure of the criminal justice system, or to chide what he feels is rhetoric from smaller communities as “unfortunate and damaging to our state,” he may want to make sure that his own law enforcement agency is carrying its own weight and doing its job. Otherwise his own ambitions to becoming Governor will fail.

On February 10, 2022, the Albuquerque Journal published the two below guest columns under the caption “ARE APD REFORMS WORKING? The answer appear to be NO.

HEADLINE: Keller squanders opportunity to push accountability – again

BY PETE DINELLI / ALBUQUERQUE RESIDENT
PUBLISHED: THURSDAY, FEBRUARY 10TH, 2022 AT 12:02AM
UPDATED: THURSDAY, FEBRUARY 10TH, 2022 AT 12:15AM

The Mayor Tim Keller administration’s new negotiated contract with the police union is another lost opportunity to 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. The new negotiated contract makes APD the best-paid law enforcement agency in the region by increasing hourly pay by 8% and longevity pay by 5%, and creating a whole new category of incentive pay. There are no meaningful provisions to prevent overtime time abuse or fraud, which has plagued the department for 10 years.

Under state labor law, management is not allowed to join unions. The new 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.

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

Three provisions not included and opposed by the union were in the new contract:

• 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.

• The union contract requires that the name(s) of the person(s) who complained about them is/are disclosed to officers under investigation. This provision was in the old contract. Allowing identification of complainants who choose to remain anonymous discourages the filing of civilian complaints for fear of retaliation.

• 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.

The police union bluntly said it was not interested at all in extending the timelines for investigations. The reason for that is that the union, and its minions of sergeants and lieutenants know that the shorter the time taken to investigate misconduct cases likely means there will be no disciplinary action. The union goal is to avoid any disciplinary action at all cost and ignore the truth of police misconduct.

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.

Keller was given a second chance when he was reelected to reform APD and implement the APD settlement agreement reforms. With the new union contract, he has essentially capitulated and, once again, given in to all union demands, squandering an opportunity to reform APD.

The link to the Albuquerque Journal Guest Column is here:

https://www.abqjournal.com/2468825/keller-squanders-opportunity-to-push-accountability-151-again.html

HEADLINE: Civilian police oversight failed in mentally ill man’s shooting

BY JIM LARSON / FORMER SECRET SERVICE AGENT; FORMER DALLAS POLICE OFFICER; FORMER MEMBER, CIVILIAN POLICE OVERSIGHT AGENCY; ALBUQUERQUE RESIDENT

PUBLISHED: THURSDAY, FEBRUARY 10TH, 2022 AT 12:02AM
UPDATED: THURSDAY, FEBRUARY 10TH, 2022 AT 12:15AM

On Dec. 9, 2021, the Civilian Police Oversight Agency (CPOA) had four vacant positions on its nine-member board. The remaining five members reviewed the details of an officer-involved shooting in Case No. 20-0044826. The board member presenting the case stated it should be tabled if all members were unable to review the documents. Two of the five board members reported they did not review the documents; one had viewed a video only.

Incomprehensibly, presentation of the case proceeded, and, with only three board members having access to the APD documents, all five members voted unanimously to accept APD’s investigative conclusions.
On June 4, 2020, Michael Mitnik called 911 to get help for his son, Max, who struggled with mental illness and was off his medication. Max wanted to go to the hospital, but not with his parents. Max’s father specifically requested that a Crisis Intervention Team respond. APD dispatched two Enhanced Crisis Intervention Trained (ECIT) officers.

One officer shot Max twice, once to his head. Max Mitnik survived, but not without life-altering traumatic brain injury and permanent disability. See civil filing D-202-CV-2022-0086.

In its review of the case, the CPOA Board opined there were numerous errors with APD’s response. For example, the ECIT officers failed to adequately grasp the nature or seriousness of the call. The officers did not gather and act upon information from family members. They did not control the scene, handcuffing and uncuffing Max, not searching him for weapons, and allowing him to return inside the home unescorted. The officers did not consider suicide a concern despite dispatch references to Max’s prior self-harm behavior. Although Max initially agreed to go to UNMH, the ECIT officers escalated the situation by discouraging his decisions, claiming extensive wait time at UNMH sitting in the police car, handcuffed, and unable to go to the bathroom.

The board members questioned how APD determines the minimum amount of force necessary, and why in this case less-lethal options were not more fully considered or discussed. Despite these questions and their own unease, the board members did not fault the shooting given the circumstances immediately preceding the shooting.

If the ECIT officers had followed the most basic policy and procedures, Max would not have been shot. According to the Force Review Board jeopardy began upon arrival and mistakes made caused this shooting and the fact the officer did not recognize the mistakes is terribly concerning. Despite the grievous failures, reliable sources report the shooter received an eight-hour suspension. Both officers got a letter of reprimand for policy violations and were to receive additional training. The CPOA Board avoided discussing the officers’ disciplinary history and, significantly, the appropriateness of this discipline.

The CPOA is statutorily required to review investigations of officer-involved shootings, make findings for each, and make them available to the public on the CPOA website. No such report has been published.

The board groused that more should be done to avoid these mental health catastrophes but did not consider further inquiry or potential corrective actions. Considering yet another example of the board’s understaffed, incomplete review of this case along with its failure to make and publish the required report of its findings, a reconceptualizing of this problem-ridden and ineffective civilian oversight process is urgent.

The link to the Albuquerque Journal Guest Column is here:

https://www.abqjournal.com/2468822/civilian-police-oversight-failed-in-mentally-ill-mans-shooting.html

BLOATED OVERPAID COMMAND STAFF VERSUS CRISIS OF “NO BOOTS ON THE GROUND”

During the last 4 years, the APD high command that works directly out of the Chief’s Office went from 4 to 10 full time sworn staff. Those positions are Chief, Superintendent Of Police Reform, Deputy Superintendent Of Police Reform, 6 Deputy Chiefs, 1 Chief of Staff. Within the last year, APD has created 16 new positions of “Deputy Commanders”.

Over the last 4 years, APD sworn went from 836 sworn officers to 917 sworn officers, an increase of 81 by last count. APD Chief staffing and mid management stand at 193 and are bloated and overpaid as follows:

1 APD Chief: $177,562 (not including recent raise of at least 6%)
1 Superintendent Of Police Reform , vacancy advertised at $155,000 to $185,000.
1 Deputy Superintendent Of Police Reform: $147,444 to $150,000.
6 Deputy Chiefs, paid between $144,228 to $149,881
1 Chief of Staff paid $149,881
12 Commanders: each paid $116,000 to $120,000
14 Deputy Commanders: each paid $100,000 to $115,000
44 Lieutenants: each paid $94,348 under new union contract
113 Sergeants: each paid $82,533 under new union contract

TOTAL: 193

The link to a related blog article is here:

https://www.petedinelli.com/2022/01/03/top-heavy-apd-high-command-staff-goes-from-3-to-6-deputies-with-5-apd-insiders-new-level-of-apd-bureaucracy-created-with-16-deputy-commander-positions-outsiders-needed-to/

RANK AND FILE PAY

“Rank and File” police officers are generally recognized as sworn police officers under the rank of sergeant. These are the sworn police officers that do the heavy lifting of police work responding to 911 calls for service and who patrol the streets of the city. Following is what rank and file sworn officers are paid:

Police Officer 1/C (first class) with 2 TO 4 YEAR SERVICE under new contract goes from $60,320 TO $68,411.20 a year.

Pay for Senior Police Officer 1/c (first class) with 5 To 14 YEAR SERVICE under new contract goes from $62,400 to $70,761 a year.

Pay for a Master Police Officer 1/c (first class) with 15 years and above of service goes FROM $65,520 TO $74,297 A YEAR.

APS sworn qualify for longevity pay in their fifth year of service. Under the new contract terms, longevity pay starts at $2,730 per year and increases topping of at $16,380 annually for those who have served 17 or more years.

The link to a related blog article on the new union contract 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/

CRISIS OF LACK OF “BOOTS ON THE GROUND”

On February 8, Chief Harold Medina reported to the Albuquerque City Council that APD has 514 field services personnel. What this means is that 514 sworn police officers are assigned to the 6 area commands, and those assigned to the 6 area commands are then divided to cover the 3 separate shifts of daytime, nighttime and graveyard.

Simple math should reveal that with 514 field service officers, 86 field officers are assigned to the 6 area commands and those 86 are then divided by 3 shifts for 28 to cover an area command that are available to patrol the streets. But that is not how it works.

The number of officers patrolling the streets in the area commands are reduced significantly for any number of reasons. Officers are also assigned to units within the area command, area command desk jobs including detective work and investigations work and officers may be in court, on vacation, on sick leave or on military duty leave. APD also makes assignments to area commands according to 911 call volumes.

The number of sworn officer patrolling streets and neighborhoods are dangerously low. The reality is that APD has a mere 4 to 6 sworn police officers patrolling the streets in each area command during any given shift and the number goes down dramatically during low volume 911 call times.

The crisis of “lack of boots on the ground” was made crystal clear on Thursday, August 19, 2021 when 4 Albuquerque Police Officers were seriously injured following a shooting in northeast Albuquerque. The shooting happened as officers responded to a robbery by the Dutch Bros. near Mountain and Juan Tabo. It turns out that only 5 sworn officers were on duty in the area command when the incident happened and they had no backup they could call on for help.

A link to a related blog article is here:

https://www.petedinelli.com/2021/08/20/officer-down-1-apd-officer-in-critical-condition-3-officers-wounded-2-suspects-arrested-with-1-injured-man-charged-with-felonies-chief-medina-blames-justice-system-union-blame/

APD MANAGEMENT TO RANK AND FILE RATIO IS 1 TO 4, NOT INCLUDING CHAIN OF COMMAND

One good indicator of just how top heavy APD has become with management positions is the calculation of the number of management positions to rank and file positions.

There are 724 sworn police officers that can be considered “rank an file”. That figure is derived by taking the total number of APD sworn of 917 and subtracting the total number of management positions of 193 from the ranks of sergeants to Chief to arrive at 724, (917 sworn – 193 management = 724 rank file.)

The ratio of APD management to employee is 1 to 4. The ratio is calculated by dividing the 724 employee position by the 193 management positions resulting in 1 manager to every 3.7 employees or a 1 to 4 ratio of management positions to employee positions.

APD is a para military organization and as such it has a chain of command. A chain of command dictates that you must add each level of command above each level of rank and file. Therefor, the lower an officer is in the chain of command, the more management levels can dictate orders and instructions. The chain of command creates a significantly higher ratio of management to employee depending on the tasks assigned to rank and file employees.

COMMENTARY AND ANALYSIS

On November 2, 2021 Mayor Tim Keller was elected to a second term even though he broke his promises to increase APD to 1,200 sworn officers, bring down crime rates and failed to implement the APD consent decree reforms.

Mayor Keller has been given a second act. Keller must get done what needs to be done with APD and the DOJ consent decree in his first year of his second term. Otherwise, APD will continue to spiral out of control, the DOJ remains and crime will continue to rise.

Keller should concentrate on four major areas during the first year of his second term:

1. Replace APD Chief Harold Medina, Reduce Deputy Chiefs By 3, Cut Command Staff Abolishing Deputy Commander Positions, Reorganize APD, Solve “Boots On The Ground” Crisis With More Field Service Personnel

It was during an April 15, 2020 hearing when Federal Judge Browning questioned Federal Monitor Ginger what his thoughts were on the appointment of Chief Harold Medina as the new APD Chief. Dr. Ginger thought then, as now, that APD needs an “external chief” or an “outsider” and in his words someone “nationally” with experience in DOJ reforms. Ginger expressed the opinion that such an outside person was needed to “effectuate real change” within APD.

During the December 16, 2021 hearing on the 14th Federal Monitor’s report, Judge Browning asked Ginger “how deep are the leadership problems at APD” and what can be done to solve those problems. Ginger’s response was blunt when stated the problems with APD are “failed leadership”.

According to Ginger the only thing that is going to change things and stop what is going on at APD is removing the existing leadership. Ginger told Judge Browning the leadership problems start from the top executive team and goes down through management to the rank file. Ginger testified that 80% of the issues APD is still faced with in the CASA can be dealt with by a change in leadership.

Keller should thank Chief Harold Medina and his appointed 6 Deputy Chiefs for their service and tell them it is time for them to move on as he did with former Chief Michael Geier. Keller needs to replace the entire APD Chief High command and conduct a national search to find a new police chief or for that matter a Superintendent of Police who has actual experience in managing a troubled police department and experience implementing department of justice reforms and allow that person to hire their own management team.

For decades, APD high command has consisted of 1 Chief and 3 Deputy Chiefs and it should be returned to those levels. It is clear that APD command staff is top heavy going from 4 to 10 and needs to be streamlined. The 16 “Deputy Commander” positions creates a whole new level of bureaucracy and management between Commanders and Lieutenants that is highly questionable as to duties and responsibilities other than “assisting” commanders.

Keller should replace the entire APD high command, cut management positions and assign more sworn to field services to solve the “boots on the ground” crisis.

2. RENEGOTIATE POLICE UNION CONTRACT TO EXCLUDE APD MANAGEMENT:

Under state labor law, management are not allowed to join unions. The current police union contract allows the 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’s sergeants and lieutenants who are resisting management’s implementation of the DOJ reforms. They need to be removed from the bargaining unit and made at will.

3. CREATE APD SALARY STRUCTURE, ABOLISH OVERTIME AND LONGEVITY PAY

APD officers are paid hourly for a 40-hour work week, paid time and a half overtime and longevity bonuses for years of service. 160 sworn police are consistently in the top 250 paid city hall employees and paid well over $100,00O a year. A salary structure of steps and grades must be implemented to abolish overtime and abolish longevity pay. $30,000 sign on bonuses to new cadets with a 6-year commitment is necessary to attract a younger generation of police officer.

4. SEEK DISMISSAL OF CONSENT DECREE OR ASK FOR RECEIVERSHIP

Review of all 14 Federal Independent Monitors Reports and reforms implemented, one conclusion is the spirit and intent of the settlement has been achieved with new “use of force” and “use of deadly force” policies, extensive training and sweeping mandated changes to APD protocols.

Still, APD hovers at around 60% “operational compliance” when 95% is required to dismiss the DOJ consent decree. After 7 years and millions spent, it’s likely things are as good as its going to get with current management under the consent decree. It’s time to ask the court to dismiss the case or appoint a receiver and let the Department of Justice do the heavy lifting for the first time in 7 years and reform APD to its satisfaction with 100% implementation of the 271 reforms it has mandated under the consent decree.

FINAL COMMENTARY

Second chances in politics because of weak opposition are very few and far between. Tim Keller has had a very charmed political career always being able to prevail against very weak candidates when he ran first for State Senate, then State Auditor and then for a second term as Mayor.

Keller has now been given a second chance. Only time will tell if Keller has learned anything in office over the last four years other than how to do photo ops, do press conferences, attend heavy metal concerts to introduce the band and act like a high school jock living his old glory days as quarterback.

If Keller fails to act now when it comes to APD he will waste his second chance to make any difference reforming APD.

A link to a related blog article is here:

Second Chance Keller: First Year Of Second Term Time To Reset APD And Deal With DOJ Consent Decree