KOB Channel 4 reported upon the hours of secret recordings made by the Albuquerque Police Department command staff and former City Attorney Jessica Hernandez of the court appointed Federal Monitor James Ginger.
There were 12 private meeting conversations recorded without the Federal Monitors knowledge nor consent.
One secret recording was made of a meeting that occurred roughly around the two year anniversary of the Department of Justice Consent Decree (DOJ) process being review and audited by the monitor and during a time the City Attorney and Federal Monitor were at odds with each other and publicly disagreeing on the reform process.
Following is the beginning portion of a meeting recorded behind closed doors in the City Attorney’s office:
City Attorney Hernandez: “I’m not planning to take … I’m not going to be writing notes. If you are comfortable not…”
Dr. Ginger: “Unfortunately, if I don’t take notes, I don’t remember. I’m getting to be that age.”
The Federal Monitor objected to the request not to take notes saying he needed to take notes to help his memory.
What is alarming is that the former City Attorney Jessica Hernandez tells the Federal Monitor at the beginning of the meeting that she did not feel anyone should take notes but she fails to disclose to the Federal Monitor she was actually recording the private meeting and their conversation at the time.
Failing to disclose a fact is at the very least misleading and at worse a lie.
The appearance of impropriety by not disclosing to the Federal Monitor that the meeting was being recorded is astonishing.
The way the conversation proceeds makes it clear that what the City Attorney wanted to record are admissions or statements by the Federal Monitor that reflected he was biased and to record anything that would compromise his position that could be used to have him removed by the Federal Judge.
The private meeting continues with City Attorney Hernandez telling Dr. Ginger she has concerns about her personal relationship with Ginger and that the relationship is not working by making the following accusation:
“City Attorney Hernandez: “I know that you have told people that you can’t or you won’t work with me, and that’s not going to work.”
Dr. Ginger: “That’s not true. I don’t know who told you that, but it’s incorrect. I don’t think I’ve ever uttered the phrase in my life “I can’t work with so and so.”
When you listen to the conversation further, the Federal Monitor raises concerns about former APD Chief Gorden Eden and Eden’s management style implying that Chief Eden is more of a manger than he is a leader when it came to APD.
Dr. Ginger says there are chiefs who lead and chiefs who manage and Dr. Ginger goes on to say “What this place needs is leadership.”
City Attorney Hernandez complains that the APD monitoring team is setting goals impossible to reach and asserts that the goals constantly change by saying:
City Attorney Hernandez: “When they receive feedback from you or from the monitoring team, they would like it to be something they can continue to rely on. They would like it to not shift, and they would like it to not be different when the monitor’s report comes out.”
The recorded meeting conversation then turns to the recording made by former APD Assistant Chief Robert Huntsman with his department-issued lapel camera:
“Hernandez: “You expressed your frustration with me, and you told them ‘this department is going to be collateral damage” referring to the Huntsman recording.
According to the body camera video released by City Attorney Hernandez last November in a motion asking for an evidentiary hearing to determine if the Federal Monitor was biased, Dr. Ginger does indeed use the words ‘this department is going to be collateral damage but Ginger denies he said it:
Dr.Ginger: “I’m telling you I didn’t say that. I know I didn’t say it because that’s not who I am. I’m not vindictive. Never have been, don’t plan on being.”
Even though Dr. Ginger used the words “collateral damage”, City Attorney Jessica Hernandez took his use of the term out of context asserting that Ginger was intentionally trying to damage APD which has never been the case.
In the context used by Dr. Ginger, “collateral damage” means damage that would result to an unintended target, APD, because of his disagreement or fued with City Attorney Jesseca Hernandez.
It’s the intent that matters, and Ginger by his actions, words and reports has never intended to do harm to APD but rather report to the Federal Court APD’s failures and successes in the reform process.
The secret recordings filed are clear proof of just how ethically challenged Chief Gorden Eden, his command staff and City Attorney Jessica Hernandez really were for the last three (3) years.
Attorneys have an ethical responsibility to report unethical conduct or impropriety they witness in a pending case to the Federal Court and do not have authorization to secretly record Court appointed officials.
The secret recording of a federal court appointed official without their knowledge is an extremely serious breach of ethics by any licensed attorney and should never be tolerated and should be sanctioned.
Rule 16-803 of the New Mexico Code of professional responsibility provides in part as follows:
Rule 16-803 Reporting Professional Misconduct
A. Misconduct of Other Lawyers. A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
Both former Chief Administrative Officer Rob Perry and Jessica Hernandez are licensed New Mexico attorneys and they need to disclose to the Federal Court what they knew about all the secret recordings by APD command staff, and in particular explain in full detail why they did not disclose to the Federal Monitor he was being recorded without his consent nor knowledge.
The other parties to the DOJ Consent Decree need to seek sanctions in federal court against the city attorney’s office to prevent this from ever happening again.
An even bigger issue is if anyone of the parties or if the Federal Court will make a referral or file a complaint with the New Mexico Bar for the full investigation of the City Attorney’s office.
The next Federal Court Monitor’s report will be filed in four months.
The Federal Monitor needs to address the issue and ask Federal Court Judges Brack to take the appropriate action.
The only “collateral damage” inflicted by the clandestine recordings of the Federal Monitor without his knowledge nor consent is the reputation of the City Attorney’s Office.
Public confidence needs to be restored by the new administration in the City Attorneys Office and the removal of Jessica Hernandez and the departure of CAO Rob Perry was a good start.