Last November, 2017, the Albuquerque City Attorney filed a motion requesting an evidentiary hearing to determine if Federal Monitor James Ginger should be removed for being biased against the Albuquerque Police Department (APD) in his auditing and reporting of the progress made with the Department of Justice reforms.
Attached to the motion was a transcript of 9 minutes of a 14-minute lapel camera video secretly recorded by the former Assistant APD Chief of a meeting with Federal Monitor James Ginger without his permission or knowledge.
The Federal Court denied the City’s motion for an evidentiary hearing but ordered the city to turn over to the court all secret recordings the City made of the Federal Monitor.
It turns out that there were 12 meetings secretly recorded over a two-year period with 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.
In a transmittal letter forwarding the 12 recordings to the Court, the City claimed the recordings were done for internal use only.
Nine of the recording were made by a civilian member of the APD command staff and one recording was made by then City Attorney Jessica Hernandez during a meeting in the City Attorney’s office.
In a transmittal letter forwarding the 12 recordings to the Court, the City claimed the recordings were done for internal use only and not to undermine the reform process.
The City’s defense that the recordings were done for internal use only was proven false when city officials did not let the Federal Monitor know he was being recorded and then turned around and tried to use one of the recording to make the monitor look bad and show he was biased.
THE “SMOKING GUN”
One secret recording made by the City Attorney occurred 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.
The City Attorney failed to disclose to the Federal Monitor she was actually recording the private meeting and their conversation at the time.
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 were 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.”
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 the 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 feud with City Attorney Jessica 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 do his job and report to the Federal Court APD’s failures and successes in the reform process.
FEDERAL COURT DECIDES NOT TO IMPOSE SANCTIONS
On January 9, 2017, United States Federal Judge Robert Brack held a status conference with the parties to the DOJ consent decree.
During the status conference Judge Brack announce he would not impose sanctions against the City for the secret recordings of the Federal Monitor:
“I’m letting you-all know I have no interest in looking back. My shoulder’s to the wheel and my hand is on the plow. I am looking forward with all of you and I have no intention of pursuing sanctions against the prior administration … and I certainly don’t think the successor administration has any accountability on that score. So this is a — this is a public hearing, I know. I’m glad for that information to be out.” Judge Brack said during the status conference.
Brack’s decision not to waste any more time on the past and not to sanction the City is understandable when he said:
“I really appreciate everyone, everyone’s willingness to take a fresh look into and to “reset,” as we keep overusing that metaphor. … I appreciate the pronouncements that I’ve seen from Mayor Keller and the evidence of good faith and a really willingness to make this process work for the betterment of the City and the people of Albuquerque, as evidenced by the chief’s appearance at the meeting of the Community Policing Council last night. Those are all just — we’re off to a great start.”
Judge Brack’s decision not to take action himself is understandable and must be respected, but that should not be the end of it when it comes to restoring the reputation of the City Attorney’s office.
The fact is, there are hours of secret recordings of twelve confidential meetings that have been turned over to the Federal Court that the public has no idea what was said nor what APD was up to nor instructed to do by the City Attorney.
Attorney’s are held to a higher standard, and their professional conduct is governed by the Code of Professional conduct.
NEW MEXICO CODE OF PROFESSIONAL CONDUCT FOR LAWYERS
The New Mexico Code of Professional responsibility governs the conduct of attorneys.
Any infraction of the Code of Professional responsibility is investigated by the Disciplinary Board for the State Bar of New Mexico.
The Federal Monitor is a court appointed official and is therefore an officer of the court or tribunal.
There are any number of the rules of professional conduct that may apply to the hours of secret recordings, including the following:
Rule 16-303 Candor Toward the Tribunal
A. Duties. A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
Rule 16-401 Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 16-106.
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.
Rule 16-804 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) willfully violate the Supreme Court Rules on Minimum Continuing Legal Education or the New Mexico Plan of Specialization, or the board regulations promulgated under the authority of the rules or the plan;
(f) state or imply an ability to influence improperly a government agency or official;
(g) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(h) engage in any conduct that adversely reflects on his fitness to practice law.
The hours of secret recordings are proof of just how ethically challenged Chief Gorden Eden, his command staff and City Attorney Jessica Hernandez were during three years of the DOJ reform process.
Attorneys have an ethical responsibility to report unethical conduct or impropriety they witness in a pending case.
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.
Former Chief Administrative Officer Rob Perry was the supervisor of former City Attorney Jessica Hernandez and no one knows if Rob Perry approved or sanctioned the secret recordings.
Both Rob Perry and Jessica Hernandez are licensed New Mexico attorneys and they need to be compelled to disclose 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.
US District Court Judge Brack may not want to take action himself and impose sanctions against the city, but at the very least he should consider referring the matter to the New Mexico Disciplinary Board for the State Bar and let them investigate the City Attorney’s office for unethical conduct.
At the very least, anyone of the other parties to the Department of Justice (DOJ) consent decree should file a complaint with the State Bar of New Mexico Disciplinary Board to investigate and sanction if appropriate.
Public confidence needs to be restored in the City Attorney’s Office and the removal of Jessica Hernandez as City Attorney and the departure of CAO Rob Perry was only a good start.