Behind Closed Door Settlements Do Disservice To Public

KOAT TV Channel 7 has reported that Albuquerque Police (APD) Officer Dominique Perez has negotiated his return to work as an Albuquerque Police Officer with the City of Albuquerque.

The return to work agreement is ten (10) pages long, places extensive conditions on work duties and responsibilities and provides for the City to pay “back pay” to the tune of $140,000 to Perez.

The return to work agreement was negotiated behind closed doors by the Berry Administration.

No civil lawsuit for wrongful termination and no appeal of the discharge with the city’s personnel board was ever conducted which resulted in the return to work agreement.

After the killing of James Boyd, APD Police Dominique Perez and Keith Sandy were charged by the Bernalillo County District Attorney for the murder of homeless camper James Boyd.

Upon being charged with a felony, both Dominique Perez and Keith Sandy were terminated by APD as per the departments standard operating procedures.

A Special Prosecutor was appointed and Perez and Sandy were tried for the murder with the trial costing the State of New Mexico approximately $200,000.

A special prosecutor had to be appointed because the Sandy/Perez defense attorneys successfully had the Bernalillo County District Attorney Office removed from the case alleging biasness, conflict of interest because of alleged interference by the District Attorney in an unrelated criminal case involving a relative of the then District Attorney.

Within hours after homeless camper James Boyd was shot, Chief Eden declared during a press conference that the killing was “justified”.

Months before the criminal trial of Keith Sandy and Dominique Perez, the City settled the civil lawsuit with the James Boyd family paying them $5 million dollars of taxpayer money.

The James Boyd settlement was also conducted behind closed doors without the City defending the case as being “justified” as Chief Gordon Eden had argued in a press conference.

When Sandy and Perez were charge and tried for the murder, a twelve-person jury could not reach a verdict of guilt nor innocence of either officer.

After the criminal trial, the criminal case against Perez and Sandy was dismissed by the Bernalillo County District Attorney.

In the Channel 7 interview, the only explanation Mayor Berry could come up with on returning Dominique Perez to work is he believes the city “had a right to return Perez” to work and “there’s no finding of guilt”.

Mr. Berry, there was also no finding of “not guilty” and no finding of innocence by the jury after a two week trial.

The biggest question is why was Dominique Perez allowed to return to work for APD when it was totally within the rights of the City not to allow him to return to work, even if he had been found not guilty, which did not occur?

There was never any public hearing in a public forum, court or personnel board as to whether or not Dominique Perez should be allowed to return to work for APD.

Over the years, there have been many cases where APD sworn officers have been charged with felonies, found not guilty, and not allowed to return to work by the City and APD.

A recent case that quickly comes to mind is the criminal prosecution of former APD Office Levi Chavez who was charged with the murder of his wife, terminated by APD, and who was later acquitted by a jury of his wife’s murder.

The City and APD refused to allow Levi Chavez to return to work, even though he was found not guilty by a jury.

Levi Chavez’s law enforcement certification was revoked when he went on trial and reinstatement of his certification was turned down by the state law enforcement board even after he was acquitted.

Levi Chaves has since gone on to apply for and is now in law school.

Another question that has gone unanswered or not reported by the media is if the law enforcement certification of Dominique Perez was ever suspended or revoked by the Director of New Mexico Law Enforcement Certification Board?

The rules and regulations of the Law Enforcement Certification Board provide as follows:

“B. Arrest or indictment on felony charges [of a law enforcement officer]; summary suspension:

(1) The director upon being notified that a certified police officer … has been arrested or indicted on any felony charge(s) shall immediately notify the individual of the intent to suspend the certification. … Notice of the immediate suspension shall be served on the officer … . Upon service of the notice, the individual shall have 15 days to request to be heard at the next meeting of the board. At the meeting, the individual may present evidence, witnesses and argument as to why their certification should not be suspended. The board may deliberate and shall issue a decision on the suspension at the meeting.” (See GROUNDS FOR DENIAL, REVOCATION OR SUSPENSION OF POLICE OFFICER OR TELECOMMUNICATOR CERTIFICATION; REPORTING REQUIREMENTS)

There has never been a court case or personnel board public hearing to determine if there was a “wrongful termination” of Dominique Perez.

The termination of both APD Officer Keith Sandy and Dominque Perez were governed by the APD standard operating procedures dealing with “rules of conduct”.

The ALBUQUERQUE POLICE DEPARTMENT GENERAL ORDERS, Section 1-1-4 of the Rules of Conduct provide as follows:

“B. Compliance with Laws, Rules, and Regulations

1. All sworn personnel are required to take an oath of office.
2. Personnel will obey all federal, state, and local laws, rules and regulations, and, enforce those lawful directives while protecting the rights of individuals, as established in the Constitution of the United States and the Constitution of the State of New Mexico. This includes, but is not limited to, obeying all felony, misdemeanor, and traffic laws, and local ordinances, as well as all lawfully issued civil orders of any jurisdiction. …
3. …
4. …
5. Personnel will not commit any act that constitutes a violation of the rules, regulations, directives, or orders of the Department, to include, but not limited to, this policy. Personnel will, at all times, be held accountable for their own personal policy and procedure violations and must report any such violations to their chain of command.
6. …
7. …
8. After providing notice to the Officer or employee, and an opportunity for a hearing, the Department may impose discipline, up to and including termination, upon the occurrence of any of the following:
a. Completion of an internal investigation establishing that an employee more likely than not has violated Department policy or procedure, or has failed to report or document an alleged violation of Department policy or procedure;
b. Completion of a criminal investigation establishing a reasonable belief that the employee has violated a federal, state, or local felony and/or misdemeanor, or has failed to report or document an alleged violation of law;
c. The return of an indictment, or filing of a criminal information, complaint, or other formal criminal charge for the violation of any federal, state, or local felony or misdemeanor.”

The rule of conduct is clear that the return of an indictment, or the filing of a criminal information or complaint, all of which are mere accusations, can be grounds for termination.

The rule of conduct may sound somewhat harsh, but not when you take into consideration that police officers are held to a higher standard and they are not above the law.

The credibility of any police officer and indeed of a police department is seriously undermined when a police officer is charged with a felony crime.

There are no standard operating procedures or rules of conduct that dictate or require that the City or APD are required to return to work a police officer who is found not guilty for a felony.

The question that has never been decided by the city personnel board or by a court of law is if the conduct of Dominique Perez in the shooting and killing of James Boyd was in fact “justified” or if there was any violation of APD standard operating procedures to sustain termination.

The Berry Administration has not given any detailed explanation or justification for returning Dominique Perez to work other than the Mayor saying the City had “the right to do it”.

Both the James Boyd civil lawsuit of $5 million dollars and the return to work agreement have been negotiated behind closed doors.

It has been reported that an estimated $63.3 million the City of Albuquerque has paid in legal settlements in law enforcement civil rights cases from 2010 to 2016 has resulted in a $40 million shortfall in the city’s risk management fund, which pays for uninsured losses.

(See February 14, 2017 Albuquerque Journal, Metro & NM “Payouts leave Duke City $40M short”, section C-1:

The report makes one wonder exactly what has the Berry Administration and the City Attorney’s office done to defend the City in police misconduct cases and wrongful termination cases other than writing checks and just “rolling over” without defending and settling the cases and without advocating any sort of defense and just returning people to work.

The Albuquerque City Attorney’s Office employs 34 attorneys, numerous para legals, administrative assistants and support staff.

The City taxpayers are entitled to demand and expect competent and aggressive defense when the city is sued, even in wrongful termination cases.

In 2010, it was the Berry Administration, on the recommendation of then City Attorney Rob Perry, a plaintiff’s attorney before becoming City Attorney, that abolished the “no settlement” policy to the absolute delight of plaintiff attorneys and the courts.

As City Attorney and as Chief Administrative Officer, Rob Perry sits on the City Risk Management Committee that approves city settlements of the cases.

The “no settlement policy” mandated that all “police misconduct cases” be tried before a jury with a few exceptions allowed when liability and misconduct was absolutely certain.

The philosophy was that the “sunlight” of an open courtroom and the presentation of evidence was the best disinfectant for police misconduct to inform the public.

The “no settlement policy” mandated that the City Attorney’s office aggressively defend the cases and police officer’s actions and required plaintiff attorneys to prove police misconduct and their client’s cases and damages.

This should also be the case for “wrongful termination” cases.

Settlements are reached behind closed doors and the public is seldom given much of an explanation of how damages are arrived at and why resulting in much speculation.

The “no settlement policy” worked and the City would often prevail when it went to court saving the taxpayers millions of dollars.

Even when the city did not prevail, judgments awarded by juries were often significantly less than what plaintiffs were seeking.

Plaintiff attorneys absolutely hated the no settlement policy and so did the court’s because it is a lot easier to settle a case than try a case before a jury.

With the abolishment of the “no settlement” policy, the City Attorney’s office has now acquired the reputation of just settling cases for the sake of settling and the city has become an easy mark to settle cases for large amounts of taxpayer money.

After 40 years of practicing law, mostly as a trial attorney, I for one have great faith in the American jury system and feel that there are times a jury needs to hear a case and determine damages, especially when it comes to police misconduct cases and even in “wrongful termination” cases.

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Pete Dinelli was born and raised in Albuquerque, New Mexico. He is of Italian and Hispanic descent. He is a 1970 graduate of Del Norte High School, a 1974 graduate of Eastern New Mexico University with a Bachelor's Degree in Business Administration and a 1977 graduate of St. Mary's School of Law, San Antonio, Texas. Pete has a 40 year history of community involvement and service as an elected and appointed official and as a practicing attorney in Albuquerque. Pete and his wife Betty Case Dinelli have been married since 1984 and they have two adult sons, Mark, who is an attorney and George, who is an Emergency Medical Technician (EMT). Pete has been a licensed New Mexico attorney since 1978. Pete has over 27 years of municipal and state government service. Pete’s service to Albuquerque has been extensive. He has been an elected Albuquerque City Councilor, serving as Vice President. He has served as a Worker’s Compensation Judge with Statewide jurisdiction. Pete has been a prosecutor for 15 years and has served as a Bernalillo County Chief Deputy District Attorney, as an Assistant Attorney General and Assistant District Attorney and as a Deputy City Attorney. For eight years, Pete was employed with the City of Albuquerque both as a Deputy City Attorney and Chief Public Safety Officer overseeing the city departments of police, fire, 911 emergency call center and the emergency operations center. While with the City of Albuquerque Legal Department, Pete served as Director of the Safe City Strike Force and Interim Director of the 911 Emergency Operations Center. Pete’s community involvement includes being a past President of the Albuquerque Kiwanis Club, past President of the Our Lady of Fatima School Board, and Board of Directors of the Albuquerque Museum Foundation.