On November 1, 2019, Federal Court Appointed Monitor James Ginger filed with the Federal Court his 10th compliance audit report of the Albuquerque Police Department (APD) reforms mandated under the Court Approved Settlement Agreement (CASA). The audit report covers February 2019 through July 2019. The report is 287 pages long and follows the same format as all the previous 9 reports. It is a detailed audit of every paragraph of the consent decree.
On November 8, 2019, the Albuquerque Journal did a very lengthy front-page story entitled “APD hits important milestone in DOJ reforms”. The Journal article glosses over or practically ignores the “Counter CASA effect” the monitor has been dealing with APD since September 2018. The link to the Journal article is here:
The Albuquerque Journal article was published the day after my own blog article with the link to that article provided below.
COUNTER CASA EFFECT
It was on September 10, 2018, at a status telephone conference call held with US District Court Judge Robert Brack who at the time was presiding over the Court Approved Settlement Agreement (CASA) reforms that Federal Monitor Dr. James Ginger first told the federal judge that a group of “high-ranking APD officers” within the department were trying to thwart reform efforts.
The Federal Monitor 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”.
UNION RESISTANCE TO REFORMS
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). Judge James Browning took over the case from Judge Robert Brack who retired and went on Senior Status. It had been more than a year since the last public status conference was held.
At the August 20, 2019 hearing, 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.
During the August 20, 2019 hearing, 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.
COMMENTARY AND ANALYSIS
After well over a year since the “Counter Casa” effect was first reported on September 10, 2018 to the federal court, the November 1, 2019 10th Federal Monitors report confirms once again that police union membership continues to undermine the reform process. 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.
According to the Federal Monitors 10th report:
“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.
Under “Counter CASA Effects” in his 10th report the Federal Monitor reports:
“Some members of APD continue to resist actively APD’s reform efforts, including using deliberate counter-CASA processes. For example:
• Sergeants assessed during this reporting period were “0 for 5” in some routine aspects of CASA-required field inspections;
• Collective Bargaining Agreement (CBA) disciplinary timelines, appear at times to be manipulated by supervisory, management and command levels at the area commands, letting known violations lie dormant until timelines for discipline cannot be met;”
MOVE TO DISMISS POLICE UNION AS PARTY TO FEDERAL LAWSUIT
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. For a full year, the police union was 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 policies were 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. The union has repeatedly claimed rank and file cannot do their jobs even with training on the policies. The major contribution the police union has provided to the reform process is interference, obstruction and delay of the reforms.
The City Attorney’s Office and the Department of Justice need to file a “Motion For Removal” of the police union as a party to the lawsuit. This would allow an evidentiary hearing where the Federal Monitor could testify as to his findings and identify the management, sergeants and lieutenants who “go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.” Testimony could then taken from APD Sergeants and Lieutenants to determine to what extent there has been interference with implementation of the reforms.
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.
The very last thing APD management needs is for sergeants and lieutenants to passively but deliberately oppose the reforms by acting as union operatives as opposed to management, which ostensibly is still happening based on the 10th Federal Monitors Report filed on November 1, 2019.
CITY SHOULD 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 within management and sends mixed messages to rank and file sworn police officers.
APD police sergeants and lieutenants are 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.
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 removal of the sergeants and lieutenants from the bargaining unit knowing it will eliminate the unions ability to influence them in management and it will reduce the size of the dues paying union membership.
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 management’s 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. Further, the Keller Administration should seek to have the APOA Union removed as a party to the federal lawsuit, the consent decree and CASA negotiations.
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 with all of the reforms.
Below is the link to a related blog article on Federal Monitors 10th report:
10th Federal Monitor’s Compliance Report: “Counter Casa Effect” Alive and Well Within APD; Move To Dismiss Union From Case; Remove Sergeants and Lieutenants From Police Union