On September 10, 2018, a status telephone conference call was held with the United States District Court Judge Robert Brack who is presiding over the reforms underway at the Albuquerque Police Department mandated by the Federal Court Approved Settlement Agreement (CASA).
Over 5 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).
In the last eight (8) years, there have been 42 police officer involved shootings, and the city has paid out $61 million dollars in settlements for police misconduct cases.
The City entered into the CASA with the Department of Justice (DOJ) in response to a DOJ investigation which found APD had engaged a pattern of excessive force and deadly force.
During the September 10, 2018 status conference, the federal monitor told the federal judge that a group of “high-ranking APD officers” within the department are trying to thwart reform efforts.
The entire 53 page transcript of the conference call can be read here:
It was revealed that the group of “high-ranking APD officers” are APD sergeants and lieutenants and because they are part of the police union they remain in their positions and cannot be removed.
APD Chief Michael Geier reported to Judge Brack that he has also noticed some “old-school resistance” to reforms mandated by the CASA.
During the last 10 months, Chief Geier has replaced a number of commanders with others who agree with police reforms, but not many sergeants nor lieutenants who may be resisting the reforms.
Geier has said changes to several commander positions will over time ensure that the entire chain of command is buying into the “new” APD.
Federal Monitor Ginger referred to the group as the “counter-CASA effect.”
Ginger described the group’s attitude as “certainly ambivalent” to the reform effort and the CASA.
According to the transcript of the proceeding, Dr. Ginger told Judge Brack:
“The ones I’m speaking of are in critical areas and that ambivalence, alone, will give rise to exactly the sort of issues that we’ve seen in the past at the training academy. … So while it’s not overt, you know, there’s nobody sabotaging computer files or that sort of thing, it’s a sort of a low-level processing, but nonetheless, it has an effect. … It’s a small group, but it’s a widespread collection of sworn personnel at sergeant’s and lieutenant’s levels with civil service protection that appear to be, based on my knowledge and experience, not completely committed to this process … It is something that is deep-seated and it’s a little harder to find a quick fix or solution to it, but I think, in the long term, by having this foundation with new leadership and a new direction from the top down, we should be able to get through this and survive it.”
Ginger also had this to say about the use of force policy:
“I hate to be the one to rain on the parade, but I just simply have to report the facts. I received the latest use-of-force document, 2-52, from the parties last week. I found it lacking in multiple key aspects. It was missing key components. Issues that needed to be dealt with in a Use-of-Force Policy were not dealt with. I had questions about enforceability. So I’m working on writing the resolution document … I found it necessary to basically rewrite the policy. There were, at last count, 50-plus changes that I saw as needing to be made. So, it’s been a fairly complex process. Those have been made. They’re in draft form. As soon as I finish proofing that draft, it will go out to the parties immediately.”
The sergeants and lieutenants are part of the police union and have important positions with the police department that are protected as a condition of their collective bargaining agreement between police and the city.
Shaun Willoughby,the president of the Albuquerque police union, took issue with the Federal Monitor’s comments.
Willoughby proclaimed that all Albuquerque police officers throughout the ranks have bought into the reform effort and that it would be “ludicrous” to think some sergeants and lieutenants are trying to stop the process.
Willoughby went on to say:
“It gets to a point of being so frustrating that it’s almost comical. … It makes it sound like there’s an insurgency … Officers have done so much work [implementing the reforms]. They have done the heavy lifting.”
Union President Willoughby said boldly to the media that sergeants and lieutenants who weren’t following APD policies and complying with reforms would be sent to internal affairs and disciplined as if he had the authority to speak for the APD Chief , APD management and the Keller Administration.
FEDERAL MONITOR REPORTS
All six of the previous Federal Monitor reports over the last 4 years have faulted the Albuquerque Police Department and its management staff.
The previous Berry Administration and former Chief Eden were never truly committed to the DOJ mandated reforms.
Proof of failure to implement the DOJ reforms is contained in the second, third, fourth and fifth progress reports submitted by Federal Monitor James Ginger to the Federal Court.
In his second report to the federal court, Federal Monitor James Ginger accused the City Attorney of what he called, “delay, do little and deflect” tactics saying his relationship with her was “a little rougher than most” compared with top attorneys in other cities and where he has overseen police reform.
The July 1, 2016 federal monitor’s third report states “Across the board … the components in APD’s system for overseeing and holding officers accountable for the use of force, for the most part, has failed … the serious deficiencies revealed point to a deeply-rooted systemic problem. … The deficiencies, in part, indicate a culture [of] low accountability is at work within APD, particularly in chain-of-command reviews. …”
The November 1, 2016 fourth federal monitor’s report states that when “excessive use of force” incidents are investigated by the APD Critical Incident Team, it “[deploys] carefully worded excuses, apparently designed not to find fault with officer actions” and “[uses] language and terminology apparently designed to absolve officers and supervisors of their responsibility to follow certain CASA (Court Approved Settlement Agreement) related provisions.
The May 1, 2017 fifth report was the most damning and critical report to date when the monitor found that APD “subverted” the reform process by issuing “covert special orders,” denying the existence of the orders, and APD exhibiting a “near total failure” to accept civilian oversight.
The Federal Monitor stated in the last report filed in November, 2017:
“Eventually, the monitor will no longer be engaged to provide an oversight function for APD. … That role will need to be provided by supervisory, command and executive personnel. At the current time, such oversight is sorely absent” and “well below what is expected at this point” in the process. … In short we are not yet convinced that APD screens, evaluates and classifies use of force incidents in a manner consistent with the CASA (Court Approved Settlement Agreement).”
HISTORY OF APD UNION OPPOSITION TO DOJ REFORMS
The APD Union was not a named party to the original civil rights complaint for excessive use of force and deadly force filed against the city by the Department of Justice.
Soon after the DOJ initiated the federal lawsuit against APD and the City, the police union intervened to become a party to the federal lawsuit in order to advocate for union interests in city policy and changes to the use of force and deadly force policies.
The Police Union, despite public comments of cooperation, have never fully supported the agreed to reforms and contributed significantly to the delay in writing the new use of force and deadly force policies.
The union leadership has always been at the negotiating table and for a full year were involved with the drafting of the “use of force” and “deadly use of force” policy and contributed to the one-year delay in writing the policies objecting to many provisions of the policies.
The police union repeatedly objected to the language of the use of force policy asserting the policy was unreasonable as evidenced by the monitors claim that submitted use of force policy was missing key components and at last count, the monitor saw 50-plus changes needing to be made.
The union leadership has attended and has sat at counsel table during court hearings and Federal Monitor presentations on his reports.
During all the Court proceeding where the federal monitor has made his presentation to the federal court, the APOA union has made its opposition and objections known to the federal court regarding the use of force and deadly force policies as being too restrictive with rank and file claiming rank and file cannot do their jobs even with training on the policies.
All six of the Federal Monitor’s status reports were scathing against the city accusing the APD chain of command of delaying and obstructing the DOJ reform process, yet the police union had no comment and took no position.
When the previous administration accused the federal monitor of biasness and attempted to have the monitor remove, the police union remained totally silent implying its support to have the federal monitor removed.
The police union and its leadership have said in open court that the mandated reforms under the consent decree are interfering with rank and file officer’s ability to perform their job duties.
THE NATIONAL LABOR RELATIONS ACT
In 1935, labor unions secured the legal right to represent employees in their relationships with their employers when the National Labor Relations Act (NLRA) was enacted by congress.
The National Labor Relations Board (NLRB) was created to police the relationships among employees, their unions, and their employers.
The NLRA applies to all employers involved in interstate commerce, which generally means almost every privately owned company.
Certain groups of employees are not covered by the NLRA, including government workers.
The City’s Police and Firefighters are not covered by the NLRA.
Notwithstanding, the City’s personnel rules and regulations provides extensive protections for classified employees such as police and firefighters who are not at will employees and they cannot be disciplined or terminated without cause.
It is well settled law under the NRLA that managers and supervisors are not protected class by the NLRA and cannot join unions or be part of the bargaining unit.
ANALYSIS AND COMMENTARY
The City should adopt a similar policy of the NLRA and prevent police management from joining the police union.
There is a definite “chain of command” when it comes to APD.
All Commanders, Deputy Chiefs and the Chief are at will positions that serve at the pleasure of the Administration, either the Mayor or Chief.
APD has a clear line of authority that separates management from rank and file sworn police officers that must be preserved and honored.
Police sergeants and lieutenants by virtue of their titles, responsibilities, management and supervisory authority over sworn police officers are part of the “chain of command” and management team of the police department.
Including APD police sergeants and lieutenants who are part of management in the union bargaining unit creates a clear conflict of interest and sends mixed messages to rank and file sworn police officers.
APD police sergeants and lieutenants are the ones on the frontline to enforce personnel rules and regulations, standard operating procedures, approve and review work performed and assist in implementing DOJ reforms and standard operating procedures policies.
All APD police sergeants and lieutenants are clearly part of police management and chain of command and the police union refuses to acknowledge this fact knowing that if they are removed from the bargaining unit it will reduce the size of the dues paying union membership.
Sergeants and lieutenants need to be made at will and removed from the union bargaining unit in order to get a real buy in to managements goals of police reform and the CASA.
APD Police sergeants and lieutenants cannot serve two masters of Administration Management and Union priorities in opposition to management policies and procedures and the CASA reforms..
Law enforcement command staff and management must be able to make decisions to protect public safety and maintain credibility with the public.
APD command staff must be able to immediately remove and even replace police management who tarnish the badge with unethical, questionable, and at times illegal conduct in violation of standard operating procedures and the law.
It was Tim Keller who was elected Mayor, not union president Shaun Willouby.
What is so damn laughable is when Union President Willoughby says sergeants and lieutenants who are not following APD policies and complying with reforms will be sent to internal affairs and disciplined.
The union president consistently talks to the media without any disclaimers and as if he is part of management and speaking on behalf of APD Chief and the Keller Administration.
What is embarrassing is that APD Chief Geier and Mayor Tim Keller refuse to recognize that the union is usurping the message of the need for the police reforms they are so desperately trying to implement.
When Willouby says sergeants and lieutenants who are not following APD policies and complying with reforms will be sent to internal affairs and disciplined, Willouby fails to disclose the truth that the Union and its attorneys will supply a defense and oppose any discipline.
The Keller Administration should consider seeking to having the APOA Union removed as a party to the federal lawsuit, consent decree and CASA negotiations.
During the next round of union contract negotiations, the city should demand that the management positions of APD sergeants and lieutenants be removed from the APOA Union bargaining unit.
The very last thing APD management and Mayor Keller need now to implement the mandated and agreed to DOJ reforms is for sergeants and lieutenants to oppose the reforms and acting as union operatives as opposed to management.
For more on Police Union at odds with DOJ reforms see: