A Berry Bad Legacy of Failure

https://www.abqjournal.com/1099723/its-never-a-me-thing.html

On November 30, 2017, the Albuquerque Journal did one final front page story on Mayor Richard Berry in anticipation of Mayor Tim Keller being sworn in on December 1, 2017 as the new Mayor.

(See November 30, 2017 Albuquerque Journal, page A-1, “It’s never a me thing”; Outgoing maor Richard Berry credits staff, directors for making Albquerque a better place than when he took office.”)

With this farewell fluff piece, the Albuquerque Journal confirmed what we have all know for some time: the Albuquerque Journal has lost most of its credibility as a source of objective news.

The fact that Mayor Berry did not articulate, and the Journal did not even mention or ask about what he thought his failures have been speaks volumes.

Richard Berry is in total denial and in complete spin mode when he says “It’s never a me thing … I was surprised that I was as much a part of the campaign when I wasn’t even a candidate” and saying we have made “Albuquerque a better place” than when he took office.

Berry’s true legacy is that of failure and includes: 1. extremely high violent crime rates, 2. APD being placed under a DOJ consent decree under his watch, 3. 42 police officer involved “use of deadly force” shootings, 4. $90 million dollars paid out in taxpayer money for police misconduct cases, 5. six scathing reports from the Federal Monitor pointing out the obstruction tactics of APD command staff, 6. the ART bus project not being fully funded to the tune of $69 million, 7. a failed local economy, 8. and high unemployment rates just to mention a few.

The Albuquerque Journal did another front-page fluff story on Mayor Richard Berry giving his last State of the City address.

(See September 26, 2017 Albuquerque Journal, page A-1, “A hallmark of fiscal responsibility”)

The speech was before the monthly luncheon of the National Association of Industrial Parks (NAIOP), a group of contractors and developers who have made millions in city contracts such as the ART bus project over the years thanks to Mayor RJ Berry .

Two front-page articles appeared and were truly astounding given the absolute tragic irony exhibited on the paper’s front-page.

On the left of the page was a flattering full color picture of the Mayor giving his speech as he gazes upward and it appears he is looking at the adjacent bold headline “FBI: Crime up sharply in ABQ; Murders increased 41.8% violent offenses rose 15%.”

Mayor Berry proclaimed in his speech, “the state of our city is strong,” and said Albuquerque’s next mayor will “inherit an efficient city government that is living within its means, a growing economy and close to $1.2 billion in infrastructure projects that have been built or are in the pipeline”.

Addressing the city’s rising crime rate, Berry said he feared that hiring more police officers by itself won’t solve the problem and then called for more resources for the local District Attorney’s Office, something the city has no control over.

Berry largely emphasized what he felt he had accomplished over the last eight years as mayor and proclaimed his administration has been a “hallmark of fiscal responsibility”.

To Berry, $1.2 billion in infrastructure projects and efficiency in government is far more important than people’s safety, people living in fear and needing a job.

As he ended his second term, Berry blamed all the increases in crime on the courts and says nothing about destroying one of the finest police departments with the hiring of political operatives like Gordon Eden as APD Chief who never managed a municipal police department.

During his entire eight (8) years he deliberately reduced the size of government to the detriment of essential services and the determent of public safety to avoid tax increases at all costs.

During his first term (2009 TO 2013), Mayor Berry blamed Mayor Chavez for all APD’s problems, increased crime rates and budget deficits.

As he ended his second term (2013 to 2017), Mayor Berry blamed all the increases in crime on the courts and says nothing about destroying one of the finest police departments in the country.

A review of Berry’s job performance over the last eight years and his true legacy is in order.

BERRY’S LEGACY OF DESTROYING THE ALBUQUERQUE POLICE DEPARTMENT

Eight (8) years ago when Berry took office, the Albuquerque Police Department (APD) was the best trained, best equipped, best funded department in its history and was fully staffed with 1,100 sworn police officers.

In 2009 when Berry took office, APD response times had been brought down below the national average and violent and property crime rates in Albuquerque were hitting historical lows.

Today in 2017 as Berry leaves office, response times are at historical highs with calls to APD taking hours instead of minutes to respond threatening public safety.

In eight (8) years, APD went from 1,100 sworn police to 853 sworn police all under the public safety leadership of Mayor Berry and his appointed police chiefs.

The first year he was in office, Berry made numerous mistakes that started the Albuquerque Police Department in the downward spiral it has yet to recover from and problems it will take years to correct.

The first major mistake Berry made with APD was the appointment of political Republican operative Darren White as Chief Public Safety Officer who implemented policies that had a disastrous effect on moral and APD recruitment.

Darren White wound up resigning under pressure after 16 months in office when he showed up to a traffic accident investigation involving his wife and was accused of interfering with a criminal investigation.

The first year of Berry Administration, Mayor Berry abolished the longevity program that kept experienced police officers from retiring, unilaterally decided not to pay a 5% negotiated pay raise, abolished the APD take home car policy, eliminated sign on bonuses and mortgage down payments for new recruits and implemented a college education requirement for new recruits but did not pay college wages.

Moral within APD plummeted and the mass exodus of experienced police officers began with Berry’s gross mismanagement of APD.

After four years of losing experienced officers because of his policies and because the police academy could not keep up with retirements, Mayor Berry began his efforts to advocate the New Mexico legislature to reinstate “double dipping” to allow retired police officers to return to work and get paid their salaries and retirement pay.

In 2017, APD is funded for 1,000 sworn officers but has only 853 sworn police officers.

In 2016, field service officers responded to 546,550 calls for service with a priority 1 response time of 11 minutes, 35 seconds which is approximately two minutes over the national standard.

In 2017, APD has 853 sworn police with 436 are assigned to field services and 417 sworn police officers assigned to the various specialized felony units and command staff.

Given the volume of felony arrests and cases, APD is severely understaffed to complete felony investigations.

Over the last eight (8) years, Mayor Berry has been very hands off with APD and allowed his appointed Chief’s to destroy one of the finest police departments in the country.

For close to four (4) years, Berry retained APD Chief Ray Schultz, first under the supervision of political operative Darren White who had no problem keeping Schultz as Chief.

Berry allowed Schultz to mismanage APD without civilian supervision and Schultz engaged in questionable management tactics against rank and file police officers and at one-time Shultz labeled sexual misconduct within the department as “nature at play” without Berry voicing any objections.

Schultz left APD in 2013 but only after negotiating a million-dollar plus city contract with TAZER International a contract Schultz said had been “greased”.

Schultz later went to work for TAZER within less than a year after leaving the city.

The legality of the city TAZER contract is still being reviewed by the New Mexico Attorney General.

In 2013 after proclaiming the city conducted a “national search” for a police chief, Berry selected and appointed political operative Gordon Eden as APD Chief.

Chief Eden had no prior experience managing a municipal police department before his appointment.

In 2014, a few months after Eden was appointed Chief, Eden declared that the shooting of homeless camper James Boyd was “justified”.

The city ultimately paid the family of James Boyd $5 million for wrongful death to settle the civil case and two police officers involved with the shooting were charged with murder, tried and released with charges dismissed because of a hung jury.

THE DEPARTMENT OF JUSTICE INVESTIGATION AND CONSENT DECREE

During the last eight (8) years, there have been over 41 police officer involved shootings resulting in 38 deaths with over $61 million dollars in paid in settlements for police misconduct and excessive use of force cases.

Almost four (4) years ago, a Department of Justice (DOJ) investigation found a “pattern and practice of excessive force” and a “culture of aggression” within the Albuquerque Police Department (APD).

Mayor Berry has done next to nothing about APD gross mismanagement, not even when the Department of Justice (DOJ) found a “culture of aggression” that lead to a federal consent decree and mandated reforms that have cost taxpayers millions of dollars.

Each time the Federal Monitor has presented his critical reports of APD to the Federal Court, Berry has essentially remained silent and declined to demand accountability from his appointed Chief and command staff nor hold them responsible for dragging their feet on the reforms.

CRIME RATES UNDER BERRY

Violent and property crime rates in Albuquerque are at historical highs under Mayor Richard Berry.

Albuquerque Police Department (APD) statistics reveal the total number of violent crimes in Albuquerque increased steadily and went from 4,291 in 2010 to 5,409 in 2015.

According to the Bernalillo County District Attorney’s Office, from 2009 to 2015, Albuquerque’s violent crime rates increased by 21.5%.

The Federal Bureau of Investigation (FBI) reports that in the last eight (8) years, Albuquerque has become the is fifth-most violent city in the country on a per capita basis while the nation’s violent crime rate dropped by 13.7%.

In 2009, when Berry ran for office the first time, he made auto thefts a corner stone issue in the Mayor’s race by doing a commercial standing next to his burned out stolen truck and vowing that he could do better as Mayor and make Albuquerque the “worse place to be a criminal”.

Eight (8) years later, Albuquerque has become number one in the nation for auto thefts.

The National Insurance Crime Bureau’s latest Hot Spots report shows Albuquerque and of Bernalillo County as the worst place in the nation when it comes to auto theft per capita.

In 2016 more than 10,000 vehicles were stolen in Albuquerque and Bernalillo County or more than 27 vehicles a day.

According APD statistics, the total number of property crimes in Albuquerque has steadily increased each year during the last six (6) years going from 26,493 crimes in 2010 to 34,082 in 2015.

In 2016 according to FBI statistics Albuquerque’s violent crime spiked 15.5% and murders spiked 41.8 percent.

(See September 26, 2017 Albuquerque Journal, page A-1, “”FBI: Crime up sharply in ABQ; Murders increased 41.8% violent offenses rose 15%.”).

According to FBI data, Albuquerque had 61 murders and 6,245 violent crimes in 2016.

The number of murders in 2017 went to 70 and counting, the highest number since the 1993.

Property crimes increased by 13.3 and 38,528 property crimes (6,860 per 100,000 population) and 6,236 total burglaries (1,110 per 100,000 population) in 2016.

In 2016, Albuquerque’s auto thefts jumped by the highest percentage with 7,710 motor vehicle thefts an almost a 50% increase over the year before.

FAILED ECONOMIC POLICIES

During the last eight years under Mayor Berry’s leadership, Albuquerque has fallen to the bottom and in many cases dead last of every meaningful ranking in the country, including economy, jobs, crime, education, real estate, desirability, and traffic.

Even though Albuquerque is the largest city economy in the State, New Mexico is number one in unemployment and number one in children living in poverty.

Albuquerque has lost 14,900 jobs during the last 10 years, which is roughly 4 jobs a day.

According to one Brookings Institution report, the Albuquerque metro area’s economy was so bad between 2009 and 2014 that it almost fell off the charts of three measures of economic health.

Of the largest 100 metro areas in the U.S., Albuquerque ranked 100th, 99th and 83rd in the three areas measured by the Brookings Institute: Growth, Prosperity and Inclusion.

According to the same Bookings Institute report, economically hobbled cities like Jackson, Miss., and Rochester, New York, fared better than Albuquerque.

Albuquerque ranked 99th for economic growth, 83rd for prosperity and 100th for inclusion, which measures how an area’s poorest residents are doing in the economy.

On October 1, 2017 Wallet Hub, a personal fiancé website, published the story “Fastest Growing Cities In America”.

https://wallethub.com/edu/fastest-growing-cities/7010/#city

Albuquerque ranked 450th in economic growth among 515 cities in the United States according to the Wallet Hub report.

Wallet Hub ranked the cities using 15 metrics, including population growth, unemployment and poverty rate decrease, job growth and other measures.

Among large cities, Albuquerque ranked 60th out of 64.

Among all cities, Albuquerque fared especially poorly on unemployment rate decrease (481); job growth (446); growth in number of businesses (443); median house price growth (433), and regional gross domestic product growth (433).

According to US Census reports, more people are leaving the State than moving in, and our youth are leaving Albuquerque in droves to seek employment with a future elsewhere even after they get their college education at our universities.

During his entire tenure in office, the Berry Administration has failed to attract one single business or major corporation to Albuquerque.

Four years ago, Berry proclaimed with a straight face that his economic development plan would result in 25,000 jobs created in Albuquerque.

Not a single job has been created during the last eight years by the Berry Administration.

HEADLINES SAY IT ALL

The economic news headlines during the Berry years say it all:

1. Forbes Magazine ranked Albuquerque #162 for doing business. See July 29, 2015
— just ahead of Clarksville, TN, Allentown PA , and DETROIT, MI (#169)
http://www.forbes.com/best-places-fo…verall_page:16
2. “New ranking puts ABQ in cellar for economic growth”. See September 29, 2015
http://www.bizjournals.com/albuquerq…ic-growth.html
3. “2015’s Cities with the Fastest Growing Economies”, Albuquerque ranked #404 September, 2015 https://wallethub.com/edu/fastest-growing-cities/7010/
4. Bureau of Labor Statistics – Metropolitan Employment Rankings — Albuquerque ranked #324 – August 2015: http://www.bls.gov/web/metro/laummtrk.htm
5. Colliers US Downtown Office Vacancy Rates — Albuquerque Dead Last — December 2014 http://www.colliers.com/en-us/-/medi…e_d8_Final.pdf
6. Wikipedia: Traffic analysis firm INRIX in 2013, ranks the top 65 worst US traffic cities — Albuquerque #18, https://en.wikipedia.org/wiki/Traffic_congestion
7. The Albuquerque metropolitan area’s 0.3 percent growth rate in the year that ended July . 2014 put Albuquerque in 77th place among the nation’s largest 100 metro areas, according to a Brookings Institution analysis of population trends.
http://www.bizjournals.com/albuquerq…on-growth.html — July 2014
8. 2017’s Best & Worst Cities for Jobs – Albuquerque #119 out of 150 , Jan 4, 2017
https://wallethub.com/edu/best-cities-for-jobs/2173/
9. NOV 30, 2016 MID-SIZED METROS WITH FASTEST GROWING GROSS REGIONAL PRODUCT ARE PROVO, FAYETTEVILLE AND CAPE CORAL; SLOWEST ARE PALM BAY, ALBUQUERQUE, SYRACUSE, Albuquerque #2 Slowest Regional Product
http://headlightdata.com/medium-sized-metros-with…/
10. The Best Places for Business and Careers, 2016 RANKING ABQ #138
http://www.forbes.com/best-places-for-business/list/3/…
11. Albuquerque is the 5th most violent city in the nation, updated: 6:59 PM MDT Aug 12, 2016, http://www.koat.com/…/albuquerque-is-the-5th…/5072628
12. Fortune: ABQ the worst city in the U.S. to own a home: http://nmpoliticalreport.com/…/fortune-abq-the-worst…/
13. ABQ ranked among worst real estate markets:
https://www.abqjournal.com/…/abq-ranked-among-worst…
14. Albuquerque ranks 113 out of 150 for Most and Least Recession-Recovered Cities:
http://www.bizjournals.com/…/new-ranking-puts-abq-in…
15. Albuquerque ranks near bottom in list of best, worst cities for families:
http://krqe.com/…/albuquerque-ranks-near-bottom-in…/
16. Albuquerque Really Is Like Breaking Bad:
http://ideas.time.com/…/why-breaking-bad-rings-true-to-me/
17. NM again ranks 49th in child well-being, 50th in education:
http://www.lcsun-news.com/…/nm-again-ranks…/86140070/
18. Colliers US Downtown Office Vacancy Rates — Albuquerque Dead Last — December 2014: http://www.colliers.com/en-us/-/media/Files/MarketResearch…/Market-Reports/4Q_NA_Office_d8_Final.pdf

CONCLUSION

December 1, 2017 Mayor Tim Keller will be sworn in as Mayor.

The single biggest crisis the Mayor Keller will be confronted with on day one is reforming the Albuquerque Police Department, selecting a new command staff and implementation of the mandated reforms for constitutional policing.

The second biggest crisis is to turn our economy around.

With any luck, Mayor RJ Berry’s political career is at an end.

“Send In The Clowns, There Has to Be Clowns”

On November 6, 2017 the Albuquerque Journal did an editorial opining that a hearing was needed to determine if the Federal Monitor overseeing the APD reform process was biased against APD.

At the heart of the November 6, 2017 Journal editorial was the fact that Assistant Chief Huntsman recorded on his lapel camera a confidential discussion with Huntsman, the City Attorney and the Federal monitor that suggested that the monitor was biased.

On November 16, 2017, US Federal Judge Robert C. Brack held a daylong hearing on the Federal Monitor’s sixth progress report regarding the Albuquerque Police Department’s (APD) compliance with the Court Approved Settlement Agreement (CASA).

At the conclusion of the daylong hearing, Judge Brack announced his decision from the bench denying the City’s Motion for and evidentiary hearing to determine if the Federal Monitor is biased against the Albuquerque Police Department.

It turns out the Huntsman lapel camera video was 14 minutes long, but the City as well as the Albuquerque Journal saw fit to only refer or quote the last nine (9) minutes of the video recording.

In the November 6, 2017 editorial, the Albuquerque Journal failed to disclose that the paper was provided the full 14-minute lapel camera video and posted only the last nine (9) minutes it felt was important on its website.

The City in its motion for an evidentiary hearing did essentially the same thing as the Journal by transcribing only the last nine (9) minutes of the lapel camera video for the Court.

The Albuquerque Journal apparently had no problem with Huntsman’s unethical conduct of recording the conversation without the monitors knowledge or consent given the fact no objection to the conduct was even mention in the Journal’s first editorial.

The Journal essentially gave the Berry Administration cover by siding with Huntsman.

The Federal Court in denying the City’s motion for and evidentiary hearing made a very clear finding that not including the first five (5) minutes of the 14 minute video took the entire conversation out of context.

The Court found that the City transcribing the last nine (9) minutes of the video and attaching it to the Motion was a clear attempt to discredit the monitor and mislead the court.

The Federal Court found that the entire 14-minute video did not show bias on the part of the monitor against APD.

What the entire 14-minute video showed was that the monitor was objecting to the City Attorney’s conduct and “blind siding” him in front of the City Council.

On November 24, 2017, the Albuquerque Journal published a second editorial regarding the Federal Courts ruling in denying the City’s Motion for an evidentiary hearing saying “we will never get to hear witnesses from both sides … regarding the deteriorating relationship between [the federal monitor and APD].”

https://www.abqjournal.com/1097540/no-tape-delays.html

The truth is the deteriorating relationship has been well documented in all six of the federal monitors reports submitted over the last three years that have all been highly critical of the APD command staff.

Apparently, what the Journal Editors want is a three-ring circus act to be conducted in open court and bring in the clowns Assistant Chief Huntsman, Chief Eden, and City Attorney Jessica Hernandez to testify and air their differences and disagreements with the Federal Monitor in public for all to see and hear.

An evidentiary hearing regarding the deteriorating relationship between the Federal Monitor and APD would be nothing more than putting the Federal Monitor on trial for being biased in order to set him up for removal at a later date.

Apparently by calling for an evidentiary hearing, the Journal editors do not want to be deprived of their entertainment.

The Journal in the second editorial also acknowledges that they posted “only the most relevant nine minutes on its website”.

That the Journal felt was the “most relevant”? Really?

Federal Judge Brack found that the entire 14 minute recording was relevant and that the City not transcribing the first 5 minutes of the full 14 minutes took the entire conversation out of context to try and discredit a court official as being biased.

Chief Eden, Assistant Chief Huntsman and City Attorney Jessica Hernandez are probably gone come December 1, 2017, but apparently the Journal editors do not want to be deprived of any entertainment.

The Journal labeled Judge Brack’s taking the City Council to task for a planned $25,000 audit of Ginger and his staff as being “misplaced”.

Only after the latest negative Monitor’s report did the City Council become concerned that the Federal Monitor has not spent enough time in Albuquerque.

The Federal Monitor has issued 6 extremely critical reports of APD command staff for failure to implement the DOJ reforms and Court Hearing have been held on all six reports.

The November 16, 2017 hearing on the Federal Monitor’s report was the first time any City Councilor attended such a hearing in the last three (3) years.

The only four City Councilors who did attend were Diane Gibson, Brad Winter, Issac Benton and Trudy Jones and the did not even bother to stay for the entire hearing and were absent when the Court announced his decision from the bench.

The City Council is also saying more frequent reporting is needed and the monitor doesn’t always appear before the council when requested.

Like it or not, the Federal Monitor is an employee of the Federal Court, not the Albuquerque City Council.

The City Council has absolutely no management or authority over the Federal Monitor.

The only function under the contract the City Council has is to pay the bill agreed to by the parties.

The $25,000 for the audit of the Federal Judge is a total waste of money.

All the City Council can do is forward the audit results to the Federal Judge and complain about the bill after the money has been spent.

At no time during the last three (3) years has any city councilor complained about the work or findings of the Federal Monitor.

The only accurate argument in the November 24, 2017 Journal editorial is that Federal Judge Brack did say it was time to hit the “reset button”.

Chief Eden, Assistant Chief Huntsman and City Attorney Jessica Hernandez are in all likely gone come December 1, 2017 when Tim Keller is sworn in as mayor.

December 1, 2017 is the day for Mayor Keller to hit the reset button.

City Has Paid $63.3 Million Plus In Settlements Over 8 Years

It has been reported that the City of Albuquerque has been sued hundreds of times since the end of fiscal year 2016.

In the last year alone, the City has paid out $34 million in civil settlements for all sorts of alleged personal injury cases, including police misconduct cases and officer involved shooting cases.

http://www.kob.com/albuquerque-news/city-paying-tens-millions-dollars-legal-settlements/4678692/?cat=500

According to the most recent “quarterly litigation” report to the City Council, during the last 16 months, the City has paid out over $35.1 million to settle cases.

https://drive.google.com/file/d/1lAPvWg9m2GwXVefXomEtYSELtXyEPxmS/view

Back in February, 2017, it was reported the City of Albuquerque has paid $63.3 million in legal settlements in law enforcement civil rights cases from 2010 to 2016 and that it was resulting in a $40 million shortfall in the city’s risk management fund, which pays for uninsured losses.

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

https://www.abqjournal.com/949518/claims-payouts-leave-abq-40m-short.html

The City also spends millions of dollars in private contracts to hire defense attorney’s in cases the City Attorney does not or cannot defend.

The danger is the City could lose its self insurance status in the event the city does not have enough reserves to handle judgements awarded against the city or agreed to by the city.

Risk management reserves are funded by the general fund which is taxpayer funded.

Another point is that if judgements against the city become so high, payment could be placed on the property tax rolls.

These news reports makes one wonder exactly what the City Attorney’s office has actually done to defend the City and police officers in police misconduct cases, even in frivolous cases, other than writing checks and just “rolling over” without defending and settling the cases without advocating any defense.

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.

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.

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.

Can you just imagine what $63.3 million dollars could have been used for when it comes to public safety, senior citizen centers, libraries, and quality of life amenities?

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.

PUBLIC HUMILIATION IN DENYING MOTION

On November 16, 2017, US Federal Judge Robert C. Brack held a daylong hearing on Federal Monitor James Ginger’s sixth progress report regarding the Albuquerque Police Department’s (APD) compliance with the Court Approved Settlement Agreement (CASA).

At the conclusion of the daylong hearing, Judge Brack also announced his decision denying the City’s Motion for and evidentiary hearing to determine if the Federal Monitor is biased against the Albuquerque Police Department.

Judge Brack also had his written order filed as he announced his decision from the bench.

Following is the full transcript of the ruling, with headlines added by reporter Dennis Domrzalki with ABQ Reports, announced from the bench:

(https://www.abqreport.com/single-post/2017/11/21/Transcript-Of-Judge-Ripping-City-APD)

“And that brings us to the motion for the evidentiary hearing. We’ve heard some about that today. And I’ve got lots of thoughts. Those thoughts have been informed by what I’ve heard today. But several days ago, with an election looming, an audit of the monitor threatened, and the monitor’s sixth report anticipated, the City of Albuquerque without prior consultation with the Court, and certainly without my permission, published a video, evidence, taken in March 2016. Simultaneously, the City requested that I convene an evidentiary hearing related to that video. For the reasons that I’m going to set out in my subsequent remarks, and more fully in a written order that has been filed as I speak, I’m going to deny the City’s request for the evidentiary hearing.

By now, I assume half the city has seen the video, as I have several times. But for those who haven’t had a chance to watch the video, I’ll set some context. And many of you understand these things from what you’ve even heard today, if never before. On March 18 of 2016, a meeting was attended by, among others, the City Attorney, Dr. Ginger, and representatives from APD.

HUNTSMAN NOT JUSTIFIED IN RECORDING GINGER

In the nearly two-and-a-half years since that process, this process began — actually, it’s three years right now, I think — I can only assume that there have been hundreds of such meetings. But this particular meeting was different. At some point during the meeting, Chief Huntsman put his lapel camera to a use for which it was never intended. He began to record the meeting without the knowledge of Dr. Ginger. It isn’t clear if the other attendees knew of this secret recording. But, most certainly, Dr. Ginger did not.

Based on my review of the complete 14-minute video, Chief Huntsman wasn’t justified in turning on his camera. I know what some of you who have seen the video are thinking: But wait, the video I saw was nine minutes long. Yes, I know, and I’m going to address that discrepancy as I go on.

In the 14-minute version of the video, there is nothing in the first five minutes to justify the Chief’s turning on his camera. After five minutes the discussion becomes heated. It does indeed.

GINGER IS BLINDSIDED

At that point, it’s obvious that Dr. Ginger feels blindsided by the City Attorney’s presentation to the city council just days before. The monitor accused the City Attorney of playing the rope-a-dope blame the monitor game. Much discussion followed, taking issue with the monitor’s use of the “game” metaphor. Toward the end of the video, Dr. Ginger said that he understood that APD could be collateral damage.

That meeting, which occurred 20 months ago, coupled with a more recent alleged comment, is why I’m holding you over late on a Thursday afternoon, after a long day. In my view, and contrary to the City’s assertions, the video doesn’t show that Dr. Ginger has any sort of a disqualifying bias against the City Attorney or APD.

Instead, the video shows that Dr. Ginger felt betrayed by the City Attorney’s failure to abide by a, as it’s quoted in the tape, “a no surprise agreement.”

And I hope none of you missed the irony here. In the video, Dr. Ginger is expressing his frustration at being blindsided by the City, at precisely the same time he’s being secretly recorded by the City to blindside him later.

GINGER IS FRUSTRATED

In the video, Dr. Ginger also says that he understands APD could be collateral damage. In context, the statement doesn’t mean to me, and it doesn’t seem to me a threat or an expression that Dr. Ginger is willing to sacrifice APD. Giving the monitor the benefit of that context, the statement, seems to me, means that he understands that by defending himself, he could potentially give ammunition to city council members who have problems with APD.

Clearly, Dr. Ginger was frustrated with the City Attorney. He was frustrated with what he perceived as gamesmanship and tactics. Far from suggesting bias, Dr. Ginger’s frustration is understandable. The City Attorney’s alleged tactics could disparage Dr. Ginger’s reputation in a manner harmful to the process of reforming APD. If the City successfully ruins Dr. Ginger’s reputation, then the legitimacy of this whole reform process is thrown into question. Would a discredited monitor’s positive report assure the public that APD is compliant with the CASA? And on the other hand, would a discredited monitor’s negative report stir many to double down on APD?

This is a case of Dr. Ginger defending legitimacy of the reform process. This isn’t a case of Dr. Ginger having a disqualifying bias against the City Attorney, or being willing to harm APD in the process of settling a score.

Turning to the “game” metaphor issue. Everyone here knows that when someone uses the word “game,” he is referring to tactics being taken for one side’s advantage or the other; not that you don’t consider the process you’re involved in seriously, or that Dr. Ginger considered the reform process to be a game that didn’t need to be taken seriously.

BRACK HUMILIATES HUNSTMAN

If there were no politics or optics involved, everyone in this room would freely admit this truth. But, unfortunately for Dr. Ginger, there are optics and politics involved. Chief Huntsman seized on Dr. Ginger’s “game” wording, when he said, quote, “I don’t view this as a game. I view this as my department, my city, my community. It’s not a game to me,” close the quote. It’s a noble sentiment, Chief, and one I’m sure that we all share. But the fact remains you knew that you were being recorded when you said it.

RECORDING A VIOLATION OF SETTLEMENT AGREEMENT

You say that you hit “record” because you felt Dr. Ginger was growing increasingly irritated, and exhibiting signs of escalating behavior. As I’m going to explain, the video, the whole 14-minute video, fails to support those claims. Not only was your decision to hit the record button unjustified in my mind, but there is also a strong argument that by recording the monitor during that meeting, you violated Paragraph 229 of the CASA that says, “On Body Recording Systems are only to be used in conjunction with official law enforcement duties, and not in any location where individuals have a reasonable expectation of privacy.” Now, you might think, Well, that wasn’t this place. We wouldn’t expect there was privacy in this setting. Except that one of the policemen on the tape talked about – and this is interesting to me, he used the same metaphor that Dr. Ginger is going to be hung up about here in a minute — that the city council members had an ax to grind against people at APD. That’s the first time we hear “ax to grind” in this process. Dr. Ginger’s is the second.

Here’s the bottom line. Dr. Ginger used the word “game” to take issue with the tactics of the City Attorney. Dr. Ginger’s word choice doesn’t mean that he doesn’t take his responsibilities as seriously as he should. And I think it’s silly to suggest otherwise. Anyone who believes that games and being serious about outcomes are mutually exclusive thoughts, ask Alex Bregman whether he was serious during Game 7 of the World Series.

USELESS HEARSAY

There is also an allegation that an unnamed member of the monitoring team told an unnamed member of the APD staff, who told APD leadership that Dr. Ginger had a problem with the City Attorney, the Mayor, and the APD Chief. I find this multiple layered hearsay, with speculation about the mental state of the monitor, to be wholly unpersuasive, with less than zero evidentiary value.

Having said all this, I believe that a hearing would not be beneficial for the reform process. An evidentiary hearing on nothing more than what the City alleges in its motion would be no more than a distraction involving a cast of characters that is, to say the least, in flux.

Rightly or wrongly, Dr. Ginger has a problem with the City Attorney’s tactics. Such a problem does not betray a disqualifying bias on the part of the monitor.

It’s clear to me that Dr. Ginger takes his responsibilities seriously. He told APD during the meeting he was not going to give up on them. I would have everyone note that when he said that, he didn’t know he was being recorded. Dr. Ginger’s statement that he was not going to give up on APD shows to me that he cares about APD, and that he hopes APD can come to comply with the CASA.

CITY PLAYING GAMES, MANIPULATED EVIDENCE

In my view, the City is the one that’s playing games relative to this matter. After all, it’s the City that engaged in a secret recording of the monitor.

In the version of the video that the City released to the public, the first five minutes of the video is missing. In that nine-minute video that was uploaded to YouTube, the monitor is upset around the time that Chief Huntsman apparently starts recording.

But let’s not forget that context is king. In the five minutes that the City removed, Dr. Ginger makes understanding comments, and assures APD that the monitoring team is sympathetic to APD. He attempts to comfort the APD, by telling them that the monitoring team is not draconian; that everything does not have to be stellar, just acceptable. His tone is cordial. In fact, everyone’s tone is cordial, professional, and sometimes even lighthearted. Those five minutes of crucial context contradict the Chief’s claim that he only recorded the monitor because he was becoming irritated.

The City made two deliberate choices. They intentionally cut out five minutes of that recording, and then they chose to go public with the shortened nine-minute video. The question is why? It seems to me the monitor is being baited in that last nine minutes, knowing what we know about when the video really started. But the court of public opinion can weigh in on that. When the City went public with the shortened video, the City made its bed. And what could the City possibly have been thinking when it filed the 14-minute video and a supporting transcript that covered only the nine-minute segment. Let me be clear, if I haven’t been. The City filed a written transcript with the Court titled, “March 18, 2016 meeting.” That transcript only covered the shortened nine-minute version of the video. On the last page of the transcript the court reporter certified that she had, quote, “listened to the entire recording,” close the quote. And that the transcript was, quote, “a complete record of all material included on the recording.” This tells me that the City showed the court reporter the same version of the nine-minute video that it made public. I’m left to speculate about the City’s intention.

So after recording the monitor and manipulating the record, what does the City do? It waits for 20 months, biding its time until the eve of Dr. Ginger’s sixth report, and the election, before releasing the nine-minute video to the public.

The City’s filing says that the City did not want to make the video public, but felt compelled to do so. I haven’t heard any legitimate reason why the City was compelled to make the video public. I think the public release of the less than complete video was a transparently political ploy.

And as if the actions I’ve just described weren’t enough, I’m also alarmed by this suspicious timing.

In addition to the motion for the hearing, and all the attendant machinations I’ve described, The City has requested an audit of the monitor, even though the CASA says, quote — well, it delineates the process that the City is required to follow if it believes that there is an issue with how the monitor is carrying out his obligations. And all of this comes right prior to the release of the monitor’s sixth report and the election.

ATTEMPT TO INTIMIDATE GINGER

Taken together, these actions by the City, and the timing thereof, certainly could be construed as an attempt to undermine and intimidate the monitor.

Given what is at stake, these games aren’t acceptable.

The Justice Department has said that the APD has engaged in a pattern and practice of excessive force, including deadly force. If the City and APD are spending what are obviously limited resources, time, and energy playing these games, and obstructing the monitor, instead of focusing on reform, then they’re letting lots of folks down.

Every day the brave men and women of the Albuquerque Police Department, willing to lay down their lives for strangers, they deserve better. And the patient citizens of Albuquerque deserve better. They waited years for the police department that they deserve, a police department that provides constitutional, effective, high quality service to all Albuquerque residents.

I’m too old to be naive. I knew that Dr. Ginger wasn’t going to be greeted with open arms and the key to the city. It’s been three years. We should all be tired of the toxic environment, the bickering, the passive aggressiveness, the resistance, and the game. It’s time to move beyond all of that.

REASON TO BE BIASED

Is Dr. Ginger biased against the APD? Yes, in the sense that the APD that was called out by DOJ for a culture of violence and excessive use of force can’t continue. And yes, in the sense that the former culture must give way to reform. Yes, as it relates to the obvious attempts at resisting reform. But I find nothing to suggest that he is biased as it relates to the citizens of Albuquerque, to the good men and women of APD, who were never a part of that former culture, and only want to be our guardian angels.

I deny the City’s request for an evidentiary hearing.

Like Dr. Ginger, I have not and will not give up on the Albuquerque Police Department. Today, there is reason for hope. There was an election with a new cast of characters. Somebody else said it today, I’ll say it, too. Let’s hit the reset button.

I challenge the incoming mayor, the new police chief, and the City Attorney — if she remains in her position — to refocus APD’s and the City’s efforts on reform.

Before I conclude, I need to make something really clear. This sort of conduct, secretly recording conversations, the City Attorney says that hasn’t ever happened before. I want to take you at your word. But here’s the deal: If there is any such recording, other recording of the monitor, or of me, I want to know about it immediately in camera. Nobody goes public with anything. I want it made available to me. And given all these developments, I’m not sure why I would think I was exempt from this sort of thing.

PRAISE FOR EDEN

Finally, on a more positive note, a word about the Chief. He’s announced his retirement, which takes effect a few days from now. Chief Eden has spent his entire 40-year career in law enforcement in New Mexico, most of it in high profile positions, including the US Marshal for eight years, where one of his goals in life was keeping me and my family safe; the Secretary of the Department of Public Safety; and finally, the Chief of APD.

Within days of his being named the new chief, the DOJ report came out. It’s not clear that he knew it was coming when he signed on, but I suspect he did. No one could have blamed you, Chief, if you decided to just sit this one out. But that wouldn’t have been your way. You jumped into the storm. No one should know better the slings and arrows of high profile law enforcement than Chief Eden. He’s always known that with the praise also comes condemnation.

History is going to be the judge of his legacy, as it relates to this project; not me. But we would all be wrong if we didn’t acknowledge his 40 years of service to the people of New Mexico, and wish him and his family Godspeed in his retirement.

Unless there is anything else, we’re adjourned.

Albuquerque, We Have A Drunk Problem

New Mexico Governor Susana Martinez and Bernalillo County District Attorney Raul Torrez did a joint press conference to address the results of a DWI court monitoring program by Mothers Against Drunk Driving (MADD) in the six counties with the highest DWI-related fatalities.

(See November 21, 2017 Albuquerque Journal, Metro & NM Section, page A6, “New report shows high DWI dismissal rates.”)

https://www.abqjournal.com/1095710/gov-announces-results-of-dwi-monitoring.html

1,106 DWI cases were monitored in six counties and it was found that 36% of the DWI cases were dismissed, 35% resulted in guilty outcomes, 23% resulted in prosecutions; 4% of the charges were reduced or amended, and 1% were found not guilty.

Martinez announced that the New Mexico Department of Transportation would be providing a grant of $300,000 to the Bernalillo County District Attorney Office.

$300,000 is a good start only if it is actually spent.

During the press conference, Bernalillo County District Attorney Raul Torrez once again complained that his office does not always have the resources, the staff, the training or the logistical support to effectively prosecute the cases.

What Torrez did not say is that according to the state’s Sunshine Portal, Torrez’s office has 45 vacant positions out of the 299 positions the office has been budgeted for by the New Mexico legislature.

(See https://www.abqreport.com/single-post/2017/11/13/DAs-Office-Has-45-Openings)

At least 14 of the vacancies in the Bernalillo County District Attorney’s office are for trial attorneys, and another 14 are for legal secretaries.

There is no doubt that 14 more trial attorneys as well as 14 more legal secretaries, would go a long way in reducing the backlog of cases that Torrez has been complaining about the entire first year he has been in office.

WE HAVE AN ENFORCEMENT PROBLEM

The statistics from the MADD report in the six counties is nothing compared to what has been going on in Albuquerque and Bernalillo County for the last eight (8) years.

The statistics from the Bernalillo County Metro Court are alarming and reveal just how bad things are with the Albuquerque Police Department (APD) being unable to patrol our streets, get drunks off the road, make DWI arrests and prosecute DWI cases.

In 2008, there were 633 felony DWI arraignments and the number steadily declined each year to 104 in 2015.

In 2008, there were 6,538 DWI/DUI misdemeanor arraignments and the number steadily declined each year to 2,942 in 2015.

(Source: http://www.nmcourts.gov/reports-and-policies.aspx)

According to the 2017 city budget, the Albuquerque Police Department made more than 2,200 DWI arrests a few years ago.

In contrast, APD made only made 775 DWI arrests in the first six months of the current budget year.

In other words, DWI arrests are down around 30 percent.

A decade ago, APD was making more than 5,000 DWI arrests a year.

The Bernalillo County Metropolitan court handles cases for virtually all law enforcement agencies that make arrests in Bernalillo County, including the Albuquerque Police Department (APD), the Bernalillo County Sheriff’s Department (BCSO) and the New Mexico State Police.

The largest percentage of cases arraigned in the Bernalillo County Metropolitan court is for APD cases.

In 2009, there were 746 people arraigned for felony DWI and that number dropped to a mere 104 in 2015.

In 2008, there were 6,538 people arraigned for misdemeanor DWI and in 2015 that number dropped by close to 60% to 2,942.

First, second and third DWI offense convictions are misdemeanors, and depending on the number of the conviction, carry penalties of between 6 months to 3 years license revocation, 90 to 364 days in jail, $500 to $1,000 fine, up to 5 years’ probation, and may include other mandatory penalties such as alcohol evaluation, DWI school, community service, treatment, and ignition interlock for 2 years.

Fourth, fifth, sixth, seventh or subsequent DWI convictions are felonies and depending on the conviction number, carry penalties of lifetime license revocation, 6 months mandatory prison time up to 3 years in prison, up to a $5,000 fine, mandatory alcohol evaluation, and lifetime interlock.

Aggravated DWI is where a person’s breath alcohol test is above a .16 BAC (breathalyzer), or there is a refusal to take the BAC test or if bodily injury while driving while intoxicated is caused, with mandatory jail time of 2 days for the first offense, 4 days in jail for second offense and 60 days in jail for the third offense.

We have the laws, but they mean nothing unless people are actually arrested and prosecuted.

CONCLUSION

The silence by the press and anti-DWI advocates for the last eight (8) years has been deafening given the serious drop in DWI arraignments and convictions in Albuquerque and Bernalillo County alone.

Complaints about lack of resources by the Bernalillo County District Attorney should be ignored until such time as he has staffed the office to the level it already has been funded for by the legislature.

Federal Judge Asks “Is APD Staffing Fixable In Our Lifetime?”

During the November 16, 2017 all day hearing before Federal Judge Robert on the Federal Monitor’s sixth report, it was revealed that the Albuquerque Police Department has only 830 sworn police officers despite the department being fully funded for 1,000.

During the hearing, Chief Gordon Eden testified about APD’s recruitment efforts during 2016.

Chief Eden reported that in 2016, the department graduated more than 90 cadets from its training academy, and because of retirements and other departures, the department had a net gain of six (6) officers.

Chief Eden reported that 1,000 to 1,200 applicants are needed to get a class of 40 cadets.

Eden went on to say “Our net gain this year will be almost zero.”

APD Academy Director Jessica Tyler also spoke and reported that APD currently has only 830 sworn officers contrary to the 850 that has been reported.

Major Tyler said the academy will graduate 73 cadets this year.

Last year, APD had 90 retirements.

The problem identified is that if APD has the same number of retirements and other departures that it had last year, it means that the department’s number of sworn officers will shrink.

There was a discrepancy between Eden’s and Tyler’s testimony before Brack in that both had different figures about the net gain of officers last year.

Eden said the department graduate 92 cadets for a net gain of six (6) officers.

Tyler said that last year’s net gain was four (4) officers and later she claimed the net gain was four to six officers.

After hearing from Chief Eden and Major Tyler, Judge Brack’s asked “How do we fix this? You are not going to get [to a fully staffed department] in my lifetime or in the lifetimes of anyone here. What have you done?”

Major Tyler response was “We have got to do more to retain our officers. This year we hired seven lateral officers.”

WHERE APD WAS AND WHERE IT NEEDS TO GO

Eight years ago, Albuquerque had a police department that was fully committed to community based policing and APD employed 1,100 sworn police officers, the most sworn police officers in its history.

Eight years ago, APD was the best trained, best equipped and the best funded department in its history and crime rates were going down.

Today, APD cannot recruit and hire enough sworn officers to keep the department at the 1,000 level already funded let alone the 1,200 that is being proposed.

The average and normal yearly salary paid APD Police Officers First Class after one year on the job is $56,000 a year.

The number of APD sworn officers has fallen from 1,100 officers to 836 over the past eight years in large part because of extensive retirements, extreme low morale resulting in experienced officers deciding to retire sooner rather than later, changes in the Public Employee Retirement Association benefits, failed APD management, heavy workloads and intense scrutiny by the Department of Justice resulting in the DOJ consent decree.

Although APD has 830 sworn police officers, only 436 are assigned to the field services, less those on annual leave or sick leave, spread out over three shifts, and taking 69,000 911 priority one calls a year not to mention priority 2 and 3 calls for service.

Recruiting a younger, new generation of sworn police officers and growing the size of the police department has become very difficult and unachievable for any number of reasons.

The APD Police Academy is unable to keep up with retirement losses and for many years graduating classes have averaged 35 to 40 a class, well below the number to keep up with yearly retirements.

The overwhelming number of police academy applicants fail to get into the academy for any number of reasons including failing to meet minimum education and entry qualifications, unable to pass criminal background checks, unable to make it through psychological background analysis or they fail polygraph tests or perhaps even lie on their applications.

Once in the police academy, many cadets are unable to meet minimum physical requirements or unable to handle the training and academic requirements to graduate from the academy.

The “pool” of recruits must be increased by increasing entry level salaries, offering more incentives to join APD and reevaluate whether entry level pay is commensurate with entry level requirements and minimum qualifications.

The City needs 1,200 sworn police officers to effectively return to community based policing that will reduce crime, but to accomplish that will take time, major changes in management and a major financial investment.

Every effort should be made to avoid the hiring of lateral hires with concentration made on hiring a new generation of police officer fully trained in constitutional policing policies and procedures.

The city needs to fund and implement a non-negotiated major hourly rate increase for entry level sworn officers, excluding management, to improve recruitment, retention and morale.

As an alternative, the City needs to negotiate a “salary” structure with steps, not an hourly wage structure as exists now, and eliminate overtime.

Sign on bonuses, tuition debt payoff and mortgage down payment bonuses need to be offered to new recruits.

Yearly experienced officer retention bonuses must be made permanent.

APD needs to “triple down” on recruitment and dramatically increase the size and number of police academy classes per year.

If necessary, the City Council needs to enact a public safety tax to pay for APD’s staffing expansion, pay incentive programs, needed training programs, DOJ-mandated reforms, equipment acquisitions and 911 emergency operations, staffing and equipment.

Until aggressive action is taken with APD and the Department of Justice mandated and agreed to reforms, APD will continue to spin out of control, crime rates will continue to rise and Albuquerque will continue to see dramatic spikes in violent crime.