“The New Mexico Criminal Defense Lawyers Association (NMCDLA) provides support, education and training for attorneys who represent persons accused of crime. NMCDLA also advocates fair and effective criminal justice in the courts, the legislature and in the community.”
Paul Haidle is the Executive Director of NMCDL. On Wednesday, June 24, the Albuquerque Journal published the following guest editorial comment:
HEADLINE: ABQ DUE BALANCE DEAL WITH [APD POLICE] UNION
BY PAUL HAIDLE / EXECUTIVE DIRECTOR, N.M. CRIMINAL DEFENSE LAWYERS ASSOCIATION; MEMBER, APD FORWARD COALITION
Wednesday, June 24th, 2020 at 12:02am
“The recent killings of George Floyd, Breonna Taylor and Ahmaud Arbery have once again catapulted the issues of systemic racism and police violence to the forefront of the national conversation and galvanized a large cross-section of America to demand long overdue changes to our systems of policing. Unfortunately, not enough attention is being paid to one of the primary obstacles to police accountability: police unions.
Public service unions like those that represent firefighters, teachers and police provide public servants with the critical ability to collectively negotiate fair wages, better benefits and safe working conditions. But police unions are unique in that they also negotiate some of the terms under which their members use state-sanctioned violence against people in their communities. Over the course of decades, police unions have used their political and cultural power to make it exceedingly difficult to hold individual officers accountable when they brutalize or kill someone. One of law enforcement’s favorite claims is that racist and violent officers in their employ represent only a “few bad apples.” If that is true, it is also true that police unions have intentionally made it nearly impossible to meaningfully discipline or remove “bad apples” from the barrel.
This summer we have an opportunity here in Albuquerque to restore a proper balance between fairness to officers and officer accountability as the city renegotiates its collective bargaining agreement (CBA) with the Albuquerque Police Officers Association (APOA). Some provisions cannot be changed because they track language in state law. But APD Forward is calling on Mayor Tim Keller to renegotiate these provisions:
1. REMOVE THE 90-DAY LIMIT ON INVESTIGATIONS OF POLICE OFFICERS.
The current CBA requires any administrative investigation of an officer accused of misconduct to be completed within 90 days, subject to a possible extension of up to 30 days if approved by the chief of police. Both the Civilian Police Oversight Agency and the independent monitor overseeing APD’s reform agreement with the U.S. Department of Justice have singled out this provision as a significant obstacle to officer accountability, resulting in many complaints expiring because the clock runs out on their investigations. The mayor should insist on a limit of no fewer than 180 days for administrative investigations, in line with the standard for most other police departments nationally.
2. RELEASE INFORMATION ABOUT OFFICER MISCONDUCT TO POLICE OVERSIGHT BOARD.
Section 20.1.10 severely restricts the information the director of the Civilian Police Oversight Agency may share about investigations into officer misconduct with the Police Oversight Board (POB), even though the board is responsible for approving the findings of the director and any disciplinary recommendations to be made to the chief of police. The current CBA even prohibits the POB from knowing the identity of the officer, preventing it from identifying officers who are repeat offenders. Mayor Keller should strike this limitation from the agreement.
3. DON’T GIVE OFFICERS UNFAIR ACCESS TO INFORMATION.
Though the POB is precluded from knowing the names of officers under investigation, ironically, the CBA extends no such courtesies to people who file complaints. Section 20.1.3 requires the identity of the person or officer making the charge be shared with the officer under investigation, if it is known. People who file complaints against officers therefore must weigh the risks of possible retaliation before reporting misconduct. The mayor should strike this requirement.
The collective bargaining agreement between the city and APOA expires at the end of this month, but the union may push to delay negotiations until late in the year when the fervor over police violence may die down and its leverage improves. The people of Albuquerque need to seize this moment and urge the mayor to renegotiate the CBA now. We deserve an agreement that treats police like all other public employees and restores proper balance between fair working conditions and officer accountability.”
TWO OTHER TERMS THAT NEED TO BE NEGOTIATED
In addition to the 3 terms proposed by the New Mexico Criminal Defense Lawyer’s Association, there are two more terms that need to be negotiated by the City with the APD Union Contract. Those terms are:
4. Sergeants and Lieutenants need to be made at will employees and removed from the police union bargaining unit.
Removing Sergeants and Lieutenants from the Union is necessary in order to get a real buy in to management’s goals of police reform and the Federal Court Approved Settlement Agreement (CASA) reforms. 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.
On April 10, 2014, the Civil Rights Division of the United States Department of Justice (DOJ) issued its report of an 18-month civil rights investigation of the Albuquerque Police Department (APD). The DOJ reviewed excessive use of force and deadly force cases and found APD had engaged in a “pattern and practice” of unconstitutional “use of force” and “deadly force” and found a “culture of aggression” within APD. The result was that on November 13, 2014 Albuquerque and APD entered into a federal court-approved settlement agreement mandating 276 reforms.
Six years ago, 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.
POLICE UNION MEMBERSHIP AND COMPLAINTS
The federal monitor has reported repeatedly in no uncertain terms that there are problems with APD sergeants and lieutenants enforcing policies and to discipline officers who violate the policies under the CASA. 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.
A mere 10 months ago 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.
The police union has never articulated in open court and in clear terms exactly what it is about the reforms that are keeping rank and file from “doing their” jobs and “why they hate” the CASA as articulated by the union president. It’s likely the union feels what is interfering with police from doing their jobs is the mandatory use of lapel cameras, police can no longer shoot at fleeing cars, police can no longer use choke holds, police need to use less lethal force and not rely on the SWAT unit, police must use de-escalating tactics and be trained in crisis intervention, and management must hold police accountable for violation of standard operating procedures.
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”.
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. 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 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.
5. Restructure APD 40 hour weekly pay system to salary pay system.
Police officers earning excessive overtime is nothing new. It has been going on for years and is very common knowledge. During the last 9 years, the Albuquerque Police Department has consistently gone over its overtime budget by millions. In fiscal year 2016, APD was funded for $9 million for over time but APD actually spent $13 million. A March, 2017 city internal audit of APD’s overtime spending found police officers taking advantage of a system that allows them to accumulate excessive overtime at the expense of other city departments. A city internal audit report released in March, 2017 revealed that the Albuquerque Police Department spent over $3.9 million over its $9 million “overtime” budget.
On May 29, APD Chief Michael Geier issued a special order capping the amount of regular time and over time that officers can work to 65 hours a week. For an officer that works a regular 40-hour shift, that means a maximum of 25 hours of overtime a week. Chief Michael Geier’s change in the overtime policy is a good first step, but it does not go far enough and will likely be abused, no doubt with the blessing of the APD chain of command. The new policy has a glaring loophole. The policy states “The Chief of Police or his designee can waive the weekly cap to meet department operational needs.” No doubt, as in the past there will be those who will take advantage of the loophole, A case in point would be Sargeant Simon Dolbick, the APD spokesman, who in 2019 was paid $166,484.67 because of overtime.
Authorizing a 65-hour work week with the normal 40 hours work week and adding 25 hours of overtime does not make much sense if you want to avoid extreme fatigue and emotional burnout. It is likely given the amount of pay involved, more officers will want to work 65-hour work weeks, 40 at regular pay and 25 at time and a half.The 25-hour cap on overtime should be monthly, not weekly and an “on call” shift pool of officers should be created.
REAL SOLUTION TO STOPPING OVERTIME ABUSE
As a viable solution to paying millions in overtime and longevity bonuses the City should do away with APD hourly wage and time and a half for overtime for sworn police and implement a salary structure based strictly on steps and years of service. A complete restructuring of the existing APD 40-hour work week and hourly wage system needs to be implemented.
A base pay salary system should be negotiated with the police union and be implemented for all APD sworn personnel. A base salary system with step increases for length of service should be implemented. The longevity bonus pay would be eliminated and built into the salary structure. Mandatory shift time to work would remain the same, but if more time is needed to complete a work load or assignments for the day, the salaried employee works it for the same salary with no overtime paid and a modification of shift times for court appearances.
APD Patrol Officers First Class who handle DWI during nighttime shifts should be required to change their shift times to daytime shifts when the arraignments and trials occur to prevent overtime pay. As an alternative to DWI arraignment, the City Attorney’s Office should explore the possibility of expanding or modifying the Metro Traffic Arraignment Program with the Bernalillo County District Attorney’s Office assisting to include not just traffic citations but DWI arraignments to eliminate the need for APD officers to appear at such arraignments.
Until real overtime pay and salary pay reform is implemented at APD, do not expect too much to change and expect the overtime abuse to continue at APD, especially by APD spokespersons such as Simon Dolbick and the other 150 sworn police in the list of the top 250 paid city hall employees.
The current police union contract expired on June 30. The City and the Union have now suspended their negotiations because of the corona virus pandemic and the uncertainty of the city’s revenues for the new fiscal year that begins July 1. It has been made known that union contract negotiations will again commence sometime in August.
Until a new union contract is negotiated and approved, the terms and conditions of the old contract will remain in effect. The Police Union no doubt wants to continue the terms of the expired contract in that the old terms were very lucrative when it comes to increase in pay and longevity pay. Until sergeants and lieutenants are removed from the union and made at will employees, do not expect the CASA reforms to be in 100% compliance allowing the dismissal of the case. Also, do not expect the union.
There is no real excuse to delay negotiations on the 5 major changes to the APD Union Contract as outlined in this blog article. Delay will only allow the Union to continue dictating to the city what should be done and continue its efforts to obstruct implementation of the police reforms under the CASA.