Federal Monitor Files 11th Compliance Audit Report Of APD Reforms; “Counter Casa Effect” Still Problematic; Order 100% Operational Compliance Within 6 Months Or Replace Chief Or Deputy Chiefs To Get Job Done

On May 4, 2020, the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 11th Compliance Audit Report of the Albuquerque Police Department (APD) reforms mandated under the Court Approved Settlement Agreement (CASA). The report covers the eleventh monitoring period from August 1, 2019 to January 31, 2020.

The Federal Monitor’s report is 307 pages long and follows the format as all the previous 10 reports. Its a detailed audit of every paragraph of the consent decree and for that reason it is difficult to follow. This blog article highlights major finding of the report but in no way should it be considered as all inclusive. The blog article also covers the city’s pending motion to suspend portions of the CASA and the accomplishments under the CASA. The article concludes with “Analysis and Commentary”.

The entire 11th Federal Monitors report can be found at this link:

https://www.justice.gov/usao-nm/file/1274006/download

OPERATIONAL COMPLIANCE LEVELS

The CASA was negotiated to be fully implemented over a four-year period. It has now been over 5 full years. Under the terms and conditions of the CASA, once APD achieves a 95% compliance rate in 3 compliance areas, and maintains compliance for 2 years, the case can be dismissed.

For the purposes of the APD monitoring process, “compliance” consists of three levels: primary, secondary, and operational compliance levels.

The 3 compliance levels are:

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. As a matter of course, the policies must be reflective of the requirements of the CASA; must comply with national standards for effective policing policy; and must demonstrate trainable and evaluable policy components.

2. SECONDARY COMPLIANCE: Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to and be 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. By definition, there should be operational artifacts such as reports, disciplinary records, remands to retraining, follow-up, and even revisions to policies if necessary, indicating that the policies developed in the first stage of compliance are known to, followed by, and important to supervisory and managerial levels of the department.

3. OPERATIONAL COMPLIANCE: Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency e.g., line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.

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11th FEDERAL AUDITORS REPORT COMPLIANCE STATUS ASSESSMENT

In the 10th Federal Monitor’s Report, APD was reported to have met 100% of CASA-established primary compliance requirements during the reporting period. To quote the audit “This means, in effect, that policy requiring compliance actions and processes are complete, and are reasonably designed to achieve the articulated goals of the CASA.” Secondary compliance rates (training) were reported at 81%, up from 79% and overall compliance rates are at 63%, the same as the 9th audit report.

In the 11th audit report that covered the time period of August 1, 2019 and ended in January 31, 2020, the federal monitor found APD was 100% in primary compliance, no change from 10th report, a 93% in secondary compliance, a change of 14.8% from the 10th report, and 66% in operational compliance, a change of 3%.

Primary Compliance relates mostly to development and implementation of acceptable policies and conforming to national practices.

APD is now in 93% Secondary Compliance as of the 11th reporting period, which means that effective follow-up mechanisms are beginning to be taken to ensure that APD personnel understand the requirements of promulgated policies in the areas of training, supervising, coaching, and disciplinary processes to ensure APD personnel understand the policies as promulgated and are capable of implementing them in the field.

APD is in 66% Operational Compliance with the requirements of the CASA, which means that 66% of the time, field personnel either perform tasks as required by the CASA, or that, when they fail, supervisory personnel note and correct in-field behavior that is not compliant with the requirements of the CASA.

POSITIVE NEWS REPORTED IN 11TH AUDIT REPORT

The Executive Summary reported news on the “administrative and operational fronts” of the settlement in 4 major areas:

1. “Policy development and promulgation has improved markedly … with proffered policies requiring little or no pressure from the monitoring team to move them to an acceptable level of specificity, applicability, and conformance with CASA requirements.”

2. “Training processes … have improved markedly; moving from old style lecture-memorize-test with multiple choice questions, to a more modern, … more effective interactive process that requires the ability to identify problems, analyze those problems, and create solutions to those problems by working in small collaborative groups and demonstrating skills actually needed to manage: listening, assessing, analyzing, decision-making, and implementation management. As a result, learning has evolved to skills-level processes instead of an ability to memorize and parrot back information via multiple-choice tests.”

3. “Some levels of supervision and management have begun to pay meaningful attention to critical tasks involving specific components of the CASA: use of force, preparation of valid reports of in-field incidents, effective supervision and oversight, and well-focused managerial review and assessments … .”

4. “Compliance with the CASA is broadly seen as important at command levels and is beginning to be perceived positively by mid-management and supervisory ranks.”

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According to the report, these 4 “key changes have taken years to have an impact on APD management systems, and more importantly, internal belief systems. These belief systems are, at times, not fully supportive of the change demanded by the CASA. The type of strategic change required by the CASA is difficult to instill and takes longer to implement the desired change than other more “old-style” management and leadership processes. However, we see signs that this perspective is in the nescient stages of taking hold and engendering initial change, albeit in the face of strong resistance in some quarters at APD.”

FAILURES AND “COUNTER CASA EFFECT” STILL NOTED IN 11TH REPORT

Despite all the progress made in training at the APD Academy, it was reported that APD personnel “were still failing to adhere to the requirements of the CASA found in past monitoring reports, including some instances moving beyond the epicenter of supervision to mid- and upper management levels of the organization.” The monitor found that “some in APD’s command levels continue to exhibit behaviors that “build bulwarks” [or walls] preventing fair and objective discipline, including a process of attempting to delay and in some cases successfully delaying the oversight processes until the timelines for administering discipline had been exceeded. [The] delays prevented an effective remedial response to behavior that is clearly in violation of established policy.”

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The Federal monitor reported that “since the beginning of the CASA compliance process that there were a few at APD who were overtly resistant to the CASA. [The Monitor] in the past [has] found evidence of a “counter-CASA effect” among some at the supervisory, mid-management, and command levels at APD. Those who knowingly or subconsciously count themselves in this group are beginning to face pressure to change their assessment of the value of the CASA. In some cases [they] have faced reasonably prompt and appropriate corrective efforts from the current executive levels of the APD for behavior that is not congruent with the CASA.” According to the report, “this as an essential “way forward” if APD is to move into full compliance. The remaining issue is that this pressure is neither uniform nor persistent.”

COUNTER CASA EFFECT EXPLAINED

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”.

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 reported:

“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;”

MONITOR NOTES STRONG, REASONED, AND EFFECTIVE COMPLIANCE EFFORTS IN 11TH REPORT

“Over the years, APD has improved its policy development process, training process, and has markedly improved the administrative oversight process. What remains is attaining mastery of the supervisory and operational management processes at the street level. While policy, training, and administration are certainly on the critical path for the APD reform project, the proof of process is observing, in practice, routine success at the operational and street level. Until those two processes are moved into operational compliance, there remains much to be done.”

During the reporting period, the monitor reported observing examples of strong, reasoned, and effective compliance efforts at APD as follows:

“• The Accountability and Oversight Division’s (AOD) and Performance Metrics Unit (PMU) has expanded both scope and capacity, and is providing meaningful, reasoned, and fact-based oversight of an expanding portion of the CASA’s requirements.

• AOD and PMU are filtering that information to various command levels throughout the agency.

• Over the years, APD has mastered the policy development process, the training process, and has begun to improve the administrative oversight process. What remains is attaining mastery of the supervisory and operational management processes at the street level.

• While policy, training and administration are certainly on the critical path for the APD reform project, the proof of process is observing, in practice, routine success at the operational and street level. Until supervisory and mismanagement processes are moved into compliance, there remains much to be done.”

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POSITIVE STRIDES MADE WITH HANDLING USE OF FORCE

The monitor reported “positive strides by APD with respect to handling uses of force, including instances where the chain of command reviewing use of force incidents has documented performance issues, policy violations, and mis-categorized uses of force. However, there still exists cultural and systemic issues that could impact Operational Compliance moving forward. Timeliness of use of force investigations are of particular concern, and proper staffing of units responsible for CASA related paragraphs needs to be monitored closely.”

The report found that “based on the recent positive strides that APD’s Training Academy has made providing training on its new use of force policies, it was determined that APD achieved Secondary Compliance in [a number of areas and paragraphs of the CASA.] This is an important milestone for the APD organization, as it now becomes possible to make Operational Compliance assessments for APD’s ability to report, investigate, and oversee uses of force. The true measure of its success is whether the training is being implemented by officers and supervisors in the field.”

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MONITOR RECOMMENDS STRATEGIC APPROACH TO COMPLIANCE EFFORTS

In the 11th Report, the federal monitor recommends that APD utilize a strategic approach to its compliance efforts as follows:

“We continue to recommend that APD take a more strategic approach to its CASA compliance efforts, by reviewing the strategic factors leading to compliance, the internal and external weaknesses in APD’s compliance efforts, opportunities for advancement of compliance efforts, and threats to the organization’s compliance statuses. To fail to adapt this modality will lead to the “fireman’s approach” to compliance—rushing from pressure point to pressure point; applying less-than-well-thought-out “solutions” via ad hoc responses instead of thoughtful, planned responses, such as leveraging strengths against identified weaknesses; and clearly, thoughtfully assessing threats to compliance goals and objectives, and taking reasoned approaches to minimize or eliminate those threats.

By nature, most police agencies are reactive organisms: waiting for threats and responding with strong, perceived-effective responses to those threats. Lost in this response model are the true elements of building a successful organization: identifying threats early on; assessing internal and external strengths related to the threat; identifying weaknesses that may have caused or exacerbated the threat; cataloging opportunities and strategies to effect positive change; and calculating internal weakness and/or threats to each opportunity.

APD has done an effective job, for the most part, in addressing prefatory requirements of effective organizational response to threats: policy development and training. The next step is more difficult: building processes into systems and fine-tuning those systems to address effectively identified threats. These higher-level processes are commonly known as “SWOT” analyses, and using these analyses the organization can, in effect, predict the future and build systems to address critical issues before these issues actually occur.”

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SUMMARY OF APD ACCOMPLISHMENTS OVER 5 YEARS UNDER THE CASA

It was in November 2014, that the City and the Department of Justice entered into the Court Approved Settlement Agreement (CASA). The link to the CASA is here:

https://www.cabq.gov/mental-health-response-advisory-committee/documents/court-approved-settlement-agreement-final.pdf

As of November, 2019, a full 5 years has expired since the city entered into the CASA with the DOJ. From all appearances and practical purposes, and from review of the Federal Monitor’s reports, the City and APD have completed the following mandated reforms under the Court Approved Settlement Agreement:

1.After a full year of negotiations, new “use of force” and “use of deadly force” policies have been written, implemented and all APD sworn have received training on the policies.

2. All sworn police officers have received crisis management intervention training.

3. APD has created a “Use of Force Review Board” that oversees all internal affairs investigations of use of force and deadly force.

4. The Internal Affairs Unit has been divided into two sections, one dealing with general complaints and the other dealing with use of force incidents.

5. Sweeping changes ranging from APD’s SWAT team protocols, to banning choke-holds, to auditing the use of every Taser carried by officers and re-writing and implementation of new use of force and deadly force policies have been completed.

6. “Constitutional policing” practices and methods, and mandatory crisis intervention techniques an de-escalation tactics with the mentally ill have been implemented at the APD police academy with all sworn police having received training.

7. APD has adopted a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented detailing how use of force cases are investigated.

8. APD has revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.

9. The Repeat Offenders Project, known as ROP, has been abolished.

10. Civilian Police Oversight Agency has been created, funded, fully staffed and a director hired.

11. The Community Policing Counsels (CPCs) have been created in all area commands and the CPCs meet monthly.

12. The Mental Health Advisory Committee has been implemented.

13. The CASA identified that APD was understaffed. The City and APD are in the process of spending $88 million dollars, over a four-year period, with 32 million dollars of recurring expenditures, to hire 322 sworn officers and grow the department to 1,200 officers. As of January 1, 2020, APD has 949 full time police officers, up from 878 sworn police. The expansion thus far is attributed primarily to hiring from other departments and returning to work APD retirees.

14. In November, 2018 APD achieved 99.6% compliance with primary tasks, 75.4% secondary compliance and 59.5% operational compliance with APD making significant progress in overall compliance.

15. According to the Use of Force Report for the years 2017 and 2018, APD’s “use of force” and “deadly force” is down dramatically , which was one of the primary objectives of the CASA reforms.

CITY MOTION TO SUSPEND PORTIONS OF THE CASA STILL PENDING

On Friday, January 10, 2020, the City of Albuquerque filed a Motion to have certain portions of the federal Court Approved Settlement Agreement (CASA) suspended and placed into “sustained compliance” and “suspend monitoring” of those requirements by the Federal Court approved monitor. The city’s Motion highlights the progress made by the Albuquerque Police Department (APD) in implementing the court mandated reforms under the CASA. You can read the entire 25-page e-filed Motion on the United States District Court for the District of New Mexico docket Case 1:14-cv-01025-JB-SMV, Document 503 Filed 01/10/20, United States of America, Plaintiff v. The City of Albuquerque, Defendant v. The Albuquerque Police Officer’s Association, Intervenor. A hearing on the Motion has yet to be scheduled.

The city wants the federal court to suspend the monitoring activity with respect to “certain requirements” of the CASA and to put other requirements into the two-year “sustained compliance” phase. There are 3 primary areas the city is seeking that sustained compliance be found suspending further monitoring:

1. Behavioral health training of APD officers

2. APD recruitment and

3. APD specialized units.

According to the motion, APD will take steps to remain “vigilant” in preserving the progress that has already be made under the CASA. The “center piece of these efforts is that APD shall conduct regular self-assessments of compliance and shall file self-assessment reports with the court every 6 months.” (Page 3 of Motion.)

If the federal court grants the motion and allows suspension of the monitoring in the identified areas, the federal monitor will suspend the monitoring in those areas but will review APD’s self-assessment reports for compliance. The federal monitor will also evaluate whether the self-assessment reports reveal any significant concerns threatening continuing compliance with the requirements of the CASA. Further, the monitor will continue reviewing media accounts and other evidence provided to the monitor to determine whether there has been any substantial and significant lapse in compliance with the requirements of the CASA.

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ANALYSIS AND COMMENTARY

The City was to reach full compliance with the CASA within 4 years and its now been over 5 years pushing on a full 6 years. Once APD achieves a 95% compliance rate in all 3 compliance areas, and maintains compliance for 2 years, the case can be dismissed. According to the 11th progress report, APD is now at 100% in primary compliance, 93% in secondary compliance and at 66% in operational compliance.

It is clear from the 11th Federal Court Monitors report that “Operational Compliance” and the “counter casa effect” have been and continues to be the biggest sticking point for APD and presenting the biggest obstacles for the department under the consent decree. Operational Compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency. In other words, line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.

REMOVE MANAGEMENT FROM APD 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. The problem is that APD sergeants and lieutenants, even though they are part of management with supervisory authority over sworn police officers, they are not “at will” employees and they are allowed to join the police union. Including sergeants and lieutenants 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. In other words they are the point personnel for “operational compliance” under the court settlement and they still are not getting the job done when it comes to “operational compliance.” 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”. 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.

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. 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.

ENOUGH IS ENOUGH

After review of all 11 Independent Monitors Report and the 15 major reforms accomplished by of APD under the CASA a major conclusion that can be reached is the spirit and intent of the CASA has been fully attained. The City’s Motion To Suspend Portions Of The CASA must be amended to include the progress that has be reported in the 11th Federal Monitor’s Report. After over five years of implementing the mandating DOJ reforms, APD has made significant progress in implementing the reforms. The motion should be considered precursory to dismissal of the entire case sooner rather than later.

The biggest complaint of all the DOJ consent decrees in the country is implementation and enforcement “go on and on” for years, costing millions in taxpayer dollars. It appears that is what happening in Albuquerque. With expected, continued implementation of the DOJ reforms a 95% to 100% compliance with all 3 of the CASA primary, secondary and operational compliance goals should be demanded of the APD command and management staff within 6 months.

The role of the federal monitor needs be reduced, as is being requested in the motion, as well as the continued costs of the monitoring team reduced. The city should commence negotiations with the DOJ for a stipulated “Order of Complete Compliance and Dismissal” of the CASA, and all causes of action the DOJ has against the city and APD. Otherwise, the city and taxpayers will be sucked into “year after year” of expenses and costs associated with a consent decree whose primary objective has been achieved and whose federal monitor wants another $4 million to audit progress.

The time has come for the city to be cut lose from the Federal Court Approved Settlement Agreement. Mayor Tim Keller needs to hold the APD Command Staff totally responsible to perform under the CASA. If the APD command staff can not get the job done within 6 months when it comes to “operational compliance” that is still is holding APD back, Mayor Tim Keller should replace them and find a new Chief and Deputy Chiefs who can get the job done.

Then again, Mayor Keller has a bad habit of allowing APD to do what ever they want and he refuses to hold his command staff accountable for any and all mismanagement. Some good examples are:

1. His defense of APD in their refusal to gather and tag evidence of a child’s blood stained underwear in a case
2. The paying of an APD spokesman $150,000 a year because of overtime.
3. Allowing APD to spend millions in overtime exceeding their budget.
4. Using faulty statistics and representing to the public that our violent crime rates were going down when in fact they were spiking.
5. More recently, remaining totally mum on 40+ police officers and Chief Geier participating in a private event without social distancing or wearing protective gear.

Mayor Tim Keller has shown the identical unquestionable loyalty to Chief Michael Geier that former Mayor Richard Berry showed to Chief Gordon Eden. Mayor Tim Keller can no longer blame his predecessor for a troubled APD department or their failure to implement the DOJ reforms seeing as Keller has replaced all of APD’s top command staff with a Chief and Deputy Chief’s of his own choosing that are being viewed just as inept as former Chief Gordon Eden and his appointed Deputies.

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POSTSCRIPT

The link to the full 106-page CASA containing 276 mandated reforms can be read here:

Click to access court-approved-settlement-agreement-final.pdf

All documents related to the CASA can be downloaded and reviewed at the city web site link:
https://www.cabq.gov/police/documents-related-to-apds-settlement-agreement

The documents include:
The Settlement Agreement between City and the DOJ
APD Progress Reports
Independent Monitor’s Reports
Compliance Reports
Use of Force Annual Reports
Use of Force Reports
Studies
Audits

For a related blog articles see:

City Moves To Be Released From Portions Of DOJ Consent Decree And Monitoring; Commentary: Intent And Purpose Of CASA Accomplished, Dismiss Case

Glossing Over Or Ignoring APD’s “Counter Casa Effect” Does Not Make Problem Go Away

APD Staffing Levels: 970 Sworn Police; 300 More Needed

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About

Pete Dinelli was born and raised in Albuquerque, New Mexico. He is of Italian and Hispanic descent. He is a 1970 graduate of Del Norte High School, a 1974 graduate of Eastern New Mexico University with a Bachelor's Degree in Business Administration and a 1977 graduate of St. Mary's School of Law, San Antonio, Texas. Pete has a 40 year history of community involvement and service as an elected and appointed official and as a practicing attorney in Albuquerque. Pete and his wife Betty Case Dinelli have been married since 1984 and they have two adult sons, Mark, who is an attorney and George, who is an Emergency Medical Technician (EMT). Pete has been a licensed New Mexico attorney since 1978. Pete has over 27 years of municipal and state government service. Pete’s service to Albuquerque has been extensive. He has been an elected Albuquerque City Councilor, serving as Vice President. He has served as a Worker’s Compensation Judge with Statewide jurisdiction. Pete has been a prosecutor for 15 years and has served as a Bernalillo County Chief Deputy District Attorney, as an Assistant Attorney General and Assistant District Attorney and as a Deputy City Attorney. For eight years, Pete was employed with the City of Albuquerque both as a Deputy City Attorney and Chief Public Safety Officer overseeing the city departments of police, fire, 911 emergency call center and the emergency operations center. While with the City of Albuquerque Legal Department, Pete served as Director of the Safe City Strike Force and Interim Director of the 911 Emergency Operations Center. Pete’s community involvement includes being a past President of the Albuquerque Kiwanis Club, past President of the Our Lady of Fatima School Board, and Board of Directors of the Albuquerque Museum Foundation.