On Tuesday, August 20, 2019, a day long status conference was convened by Federal Judge James Browning to listen to Federal Court Appointed Monitor James Ginger’s third “Outcome and Measures And Analysis Report” on the Court Approved Settlement Agreement (CASA). It has been more than a year since the last public status conference was held.
Judge James Browning took over the case from Judge Robert Brack. The U.S. Attorney’s Office, the city of Albuquerque, APD , the police union and the many stakeholders in the effort testified. Overall, the consensus throughout the all-day hearing was that APD has improved dramatically. All seem to agree that there is a lot more left to be done with the police reforms. All of the participants said they are committed to seeing the reform through.
BACKGROUND ON COMPLIANCE LEVELS
The third “Outcome and Measures And Analysis Report” deals with “operational compliance measures”. There are 3 compliance areas that are audited:
1. PRIMARY COMPLIANCE: Primary compliance is the “policy” part of compliance. To attain primary compliance, APD must have in place operational policies and procedures designed to guide officers, supervisors and managers in the performance of the tasks outlined in the CASA.
2. SECONDARY COMPLIANCE: Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to and effective in implementing the policy as written, e.g., sergeants routinely enforce the policies among field personnel and are held accountable by managerial and executive levels of the department for doing so.
3. OPERATIONAL COMPLIANCE: Operational compliance is attained when there is an apparent adherence to policies in the day-to-day operation of the agency. For example, line personnel are routinely held accountable for compliance by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD command staff enforces its policies.
On May 1, 2019, Dr. Ginger filed his 9th “Compliance Levels of the Albuquerque Police Department”. The 9th Report found that APD achieved a 100% compliance with primary tasks, 79% secondary compliance and 61% operational compliance. Under the CASA, once APD achieves a 95% compliance rate in all 3 compliance areas, and the department sustains compliance for two years in all 3 categories the case can be dismissed.
August 20, 2019, Federal Monitor James Ginger appeared by telephone conference call with the Court. According to Dr. Ginger, one of the enduring problems APD needs to continue to deal with is “Operational Compliance” and getting supervisors, and in particular APD sergeants and lieutenants to enforce policies and to discipline officers who violate those policies.
Dr. Ginger told the Court:
“[APD Police Chief Michael] Geier has pulled a U-turn with this police department and is getting it in line with best practices … But until the sergeants are in harness and pulling in the same direction as the chief, things won’t get done as quickly.”
According to US Assistant Attorney General Paul Killebrew, with the US Department of Justice out of Washington, DC, the problems the DOJ found in its investigation into APD was a lack of “consistency and accountability” when officers violated policies or used excessive force. Killebrew said often times discipline was meted out only if stories appeared in the media or when the city needed a “sacrificial lamb.”
Killebrew said he still notices ways in which APD supervisors skirt reporting use of force by detailing an action in an “Additional Concern Memo” rather than an official report to the Internal Affairs Division which is required under the consent decree. According to Killebrew the practice spiked in 2018 at the same time the Internal Affairs Force Review Division was being established. The City Attorney’s Office and the Police Union Attorney objected to Killebrew’s characterization of the memos and said there was no concerted effort to hide misconduct.
Killebrew did say APD’s Internal Affairs “went beyond expectations” in tackling a 300-case backlog of use-of-force cases. The cases were older than 120 days prohibiting disciplinary action. Notwithstanding, the IA investigators looked at every single one of the cases, noted any infractions in an officer’s file and kept an eye out for enduring patterns or problems. It was reported many of the cases predated the current administration. Killebrew said he believed APD’s Internal Affairs “made the best out of a bad situation.”
COUNTER CASA AFFECT
Last year on September 10, 2018, a status telephone conference call was held with US District Court Judge Robert Brack who was presiding over the Court Approved Settlement Agreement (CASA) reforms. During the status conference, Federal Monitor Dr. Ginger told the federal judge that a group of “high-ranking APD officers” within the department were 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” were APD sergeants and lieutenants. Because sergeants and lieutenants are part of the police bargaining unit they remained in their positions and could not be removed by the Chief. APD Chief Michael Geier also reported last year to Judge Brack that he had noticed some “old-school resistance” to reforms mandated by the CASA. At the time, Chief Geier reported he replaced a number of commanders with others who agree with police reforms. However, Chief Geier reported he could not replace the sergeants nor lieutenants who were resisting the reforms because of the union contract.
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.”
The sergeants and lieutenants are part of the police union yet have important managerial positions with the police department that are protected as a condition of their collective bargaining agreement between police and the city. The sergeants and lieutenants are not at will employees and only can be terminated for cause with personnel rights of appeal.
APD UNION OPPOSITION TO DOJ REFORMS HAS NOT CHANGED
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 (DOJ). Soon after the DOJ initiated the federal lawsuit against APD and the City, the APOA 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 and comments made to the court, have never fully supported the agreed to reforms. The Police Union 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. The union 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. This was evidenced by the monitors claim that submitted use of force policy was missing key components and the monitor saw 50-plus changes needing to be made to satisfy union objections.
The union leadership has attended and has sat at counsel table during all court hearings and the 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.
Six of the 9 Federal Monitor’s status reports have been scathing against the city accusing the previous 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 removed, after the Assistant Chief secretly tape a conference meeting with the monitor, the police union remained totally silent ostensibly giving 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. During the August 20, 2019, a day long status conference, the APOA union President Shaun Willoughby made is clear that the attitude towards the CASA has not changed in the least.
District Court Judge Browning asked APOA Union President Shawn Willoughby what he and the union rank and file felt about the CASA. Willoughby’s responses were a quick condemnation of the CASA when he said “we hate it”, “we’re frustrated”, the reforms and mandates are “a hard pill to swallow”, that “all change is hard”. According to Willoughby, police officers are afraid to do their jobs for fear of being investigated, fired or disciplined. In the same breath, Willoughby went on to brag about how his union, unlike other police unions in city’s with consent decrees, actually worked and cooperated with the city and the DOJ.
A FIRST OF ITS KIND ACKNOWLEDGEMENT
What the news media failed to report was the exchange Judge James Browning had with Chief Michael Geier when he testified. Judge Browning asked APD Chief Michael Geier in no uncertain terms if he had read the April 10, 2014 Department Investigation Report that found a “culture of aggression” within APD. Judge Browning essentially asked if APD Chief Geier agreed with the DOJ findings that APD had engage in a pattern or practice of excessive force and deadly force that lead to so many police officer involved shootings. Chief Geier did not hesitate with his answers. Chief Geier said he had read the DOJ report that found a “culture of aggression”, he agreed with it and he did not disagree and he did not dispute any of the findings of the Department of Justice.
Chief Geier’s response is the very first time anyone, ever, within APD command staff has publicly acknowledge what was wrong with APD requiring the CASA. More important, it was a reflection of a Police Chief who is truly committed to the reforms and who is making progress. Many within the community had reservations about Geier’s appointment as permanent Chief. Based on what the Chief said to the Federal Judge and the progress made with the reforms, those reservations can now be laid to rest.
COMMENTARY AND ANALYSIS
The 9th Federal Monitors Report found that APD achieved a 100% compliance with primary tasks, 79% secondary compliance and 61% operational compliance. “Operational Compliance” is the adherence to policies in the day-to-day operation of the agency where the line personnel are routinely held accountable for compliance by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, APD “owns” and enforces its policies.
It is pathetic that after almost a full four years of the consent decree, APD is only at a 61% compliance rate with progress in the single digits percentage wise. The most likely reason for this is the police union where APD sergeants and lieutenants are part of the union and management at the same time. The federal monitor reported in no uncertain terms that there are problems with APD sergeants and lieutenants enforcing policies and to discipline officers who violate those policies.
REMOVE SERGEANTS AND LIEUTENANTS FROM 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” 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 front line 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. This point was repeatedly made by the Federal Monitor when he said “until the sergeants are in harness and pulling in the same direction as the chief, things won’t get done as quickly”. Others said the same thing during the August 20, 2019 hearing. In other words, without the 100% support of the sergeants and lieutenants to the CASA and mandated reforms, there will be little or no progress made with “operational compliance” and reaching a 95% compliance rate will take years.
What is so damn laughable is when Union President Willoughby said during the August 20, 2019 hearing that the union cooperated and participated with the reforms unlike all other Departments in other cities faced with a consent decree. What he was actually doing was disrupting the process by not being fully committed to the reforms and changes in policies. What was just as laughable was when he said last year that sergeants and lieutenants who are not following APD policies and complying with reforms are sent to internal affairs and disciplined. Willoughby failed to acknowledge that the Union and its attorney supply a defense and oppose any disciplinary action.
All APD police sergeants and lieutenants are clearly part of police management and chain of command and should not be a part of the union. The police union refuses to acknowledge or agree to knowing that if sergeants and lieutenants are removed from the bargaining unit it will eliminate the unions ability to influence the sergeants and lieutenants in management and it will reduce the size of the dues paying union membership. What is very problematic is that no one knows for certain to what extent the union is influencing the actions of the sergeants and lieutenants to resist the implementation of the CASA reforms that the union opposes. During the August 20, 2019 hearing Union President Willoughby made it clear the union membership “hates” the CASA, feels the reforms are “a hard pill to swallow” and that they believe “all change is hard”. Willoughby went so far as to say the rank and file are afraid to do their jobs for fear of being fired when he knows they can only be fired for cause and guaranteed personnel rights and procedures.
Sergeants and lieutenants need to be made at will employees 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 that are in conflict when it comes to the CASA reforms. During the next round of union contract negotiations, the city should demand that the management positions of APD sergeant and lieutenant be removed from the APOA Union bargaining unit. Otherwise, the Keller Administration should seek to have the APOA Union removed as a party to the federal lawsuit, the consent decree and CASA negotiations.
The very last thing APD management, the Keller Administration and the public needs now is for sergeants and lieutenants to passively but deliberately oppose the reforms and acting as union operatives as opposed to management, which ostensibly is still happening based on what the Federal Monitor told the Court during the August 20, 2019 hearing.
Otherwise, the city will continue to deal with the APD Union version of the “Counter-CASA Effect” and it will take far more years to get APD in compliance of all the reforms.