2021 NM Legislative Update: Governor Signs Bill Repealing 1969 Law Criminalizing Abortion; “Cannabis Regulation Act” Passes House; Pandemic Relief Signed By Governor

Friday, February 26 turned out to be one of the more significant days of the 2021 New Mexico legislature. Action was taken on 3 major issues:

Repeal of 1969 law criminalizing abortion signed by the Governor
Cannabis Regulation Act passes the House
Pandemic relief package enacted

REPEAL OF 1969 ABORTION BAN

On Friday, February 26, Governor Michelle Lujan Grisham signed a bill repealing the 1969 abortion ban. The 1969 law criminalized abortion to end a woman’s pregnancy except in certain circumstances, such as rape and incest. The 1969 state statute has not enforced been in the state due to the United States Supreme Court’s decision in Roe v Wade in the 1970s, which legalized abortion nationwide.

The repeal of the 1969 law was necessitated by the fact the repeated attempts have been made over the years to have the United States Supreme Court reverse the decision of Roe v Wade. With the appointment of 3 very conservative supreme justices over the last 4 years, the reversal of Roe v. Wade is becoming more and more likely by the Supreme Court, in which case New Mexico’s 1969 law would again become law in the state.

In a statement, Governor Lujan Grisham had this to say:

“A woman has the right to make decisions about her own body. Anyone who seeks to violate bodily integrity, or to criminalize womanhood, is in the business of dehumanization. New Mexico is not in that business – not anymore. Our state statutes now reflect this inviolable recognition of humanity and dignity. I am incredibly grateful to the tireless advocates and legislators who fought through relentless misinformation and fear-mongering to make this day a reality. Equality for all, equal justice and equal treatment – that’s the standard. And I’m proud to lead a state that today moved one step closer to that standard.”

https://www.koat.com/article/gov-lujan-grisham-signs-abortion-bill-repealing-decades-old-ban/35651457

REPEAL CRITICIZED AND DEFENDED

Republican State Senator Crystal Diamond, R-Elephant Butte, said the bill’s passage was not a win for women, but for abortion providers and said:

“With the stroke of her pen, the governor has weakened standards of care for women, stripped conscience protections for medical professionals and given the abortion industry unchecked power to operate under the radar in our state. ”

Supporters of the repeal pushed back hard on the claim arguing other medical conscience protections in state and federal law will remain in place. In addition, advocates for the repeal of the 1969 law criminalizing abortion was statute of a highly sexist era.

https://www.abqjournal.com/2363746/governor-signs-bill-repealing-abortion-ban-into-law.html

RECREATIONAL MARIJUANA BILL PASSES HOUSE

On Friday, February 26, House Bill 12 entitled the “Cannabis Regulation Act” passed the New Mexico house in a 39-31 vote. HB 12 legalizes and regulates the use, production, and sale of cannabis and cannabis products for adults 21 years and older. The bill would allow New Mexicans to grow up to 6 mature cannabis plants. Smoking in public would be strictly prohibited. The bill will allow retail stores to offer space for consumption. Under the proposal, employers generally could not discipline an employee for cannabis use outside the workplace, but employers could take disciplinary action, including termination, against someone who used marijuana, possessed it or was impaired at work.

TAXATION AND REVENUES

HB 12 imposes an 8% state excise tax on sales at cannabis retailers. Cities and counties could impose additional taxes of up to 4%. The combined maximum tax rate in New Mexico could reach 21.4%. According to a press release from House Democrats, economic projections indicate that recreational cannabis sales in New Mexico could total as much as $318 million in the first year alone and will create over 11,000 new jobs. Estimated tax revenue is projected to be $28.6 million in the first year, stabilizing at $50 million annually. It could generate about $44 million in new tax revenue for the state government and $24 million for local governments a year by 2024. Recreational sales could begin as soon as January 1, 2022.

https://www.abqjournal.com/2363898/house-passes-bill-to-legalize-marijuana-in-nm.html

Representative Javier Martinez, a sponsor of the bill, had this to say about the low variation in tax:

“That’s important for two reasons. Number one, we want to make sure that we nurture this brand-new industry that we hope and expect will create thousands of jobs across the state, but number two, we also want to make sure that we undercut the illicit market.”

During the first committee hearing on HB 12, Republican Representative Luis Terrazas objected to the legalization legislation citing a study that showed traffic deaths increased in Colorado after legalizing marijuana and had this to say:

“One of the articles I read was that traffic deaths were up 75 percent a year.”

The legislature over many years has repeatedly tried and failed to pass similar bills, but those efforts have been blocked repeatedly more the more conservative legislators in both parties. In 2019, a recreational use of marijuana passed in the house but didn’t make it out of a Senate committee.

Governor Lujan Grisham supports the legalization of recreation use of marijuana and has said she would sign the legislation and said:

“I’m optimistic. Again, there’s a lot of stuff going on, and I’ve seen cannabis fail because it’s complicated. … But I’m seeing the right movement in both the House and the Senate in these debates, and I’m confident they’re going to meet our expectations about safety, etc. plant count, and get me something upstairs that I can sign. I’m feeling pretty good about it.”

https://www.kob.com/new-mexico-news/recreational-marijuana-bill-passes-in-state-house-moves-to-senate/6025071/?cat=500

https://www.krqe.com/news/business/bill-that-would-legalize-marijuana-in-nm-passes-house-heads-to-senate/

The “Cannabis Regulation Act” will now goes to the New Mexico Senate for further committee hearings. This year, the passage of the legislation by the Senate is considered the best it has been in years.

PANDEMIC RELIEF MEASURE

On Friday, February 26, Governor Lujan Grisham signed into law House Bill 11 the long-anticipated pandemic relief measure. It authorizes $200 million in small business loans. Qualifying businesses that have no more than 75 employees will be able to secure up to $100,000 in funding. A separate pandemic recovery bill providing $600 rebates to low-income workers and enacting a four-month tax holiday for restaurants and breweries is also on its way to Lujan Grisham’s desk for final approval after being approved Wednesday by the House. Thus far, the 2021 New Mexico Legislature have enacted bills authorizing upwards of $400 million in state spending on pandemic relief measures.

COMMENTARY AND ANALYSIS

The passage and signing of the repeal of the 1969 archaic abortion ban as well as the improved chances of the passage of the legalization of recreational use of marijuana are no easy feats nor a mere change of heart by a few legislators. As the saying goes “elections have consequences”. Two years after voting down a bill that would have repealed the long-dormant New Mexico abortion ban, the New Mexico State Senate voted 25-17 to repeal the 1969 abortion law making abortions illegal. The 2020 NM general election resulted in the defeat of 5 long serving, conservative Democrat Senators who for years voted with Republicans to form a “conservative coalition” that stymied more progressive legislation sent to the Senate by the New Mexico House. The same conservative coalition in both the House and Senate have insured the failure of legalization of recreational use of marijuana as well.

The 60-day 2021 legislative session ends on March 20. There are still a significant number of issues that the New Mexico legislature will be dealing with over the next few weeks remaining of the session. Those include the Senate having to approve the legalization of recreational marijuana, the “red flag” law dealing with the ability for law enforcement to temporarily seize guns by court order from those who are a threat to themselves or others and comprehensive “liquor license reform” and legislation dealing with police reform.

Civil Rights Act Passes NM House As Ethics Complaint Filed Against Civil Rights Act Sponsor NM Speaker Of House Brian Egolf; Speaker Not the Only One; Attorney Fees At Issue

On Tuesday February 9, the New Mexico House of Representatives enacted House Bill 4 establishing the New Mexico Civil Rights Act. It passed 39 voting yeas and 29 voting no with 5 Democrats crossing party lines to vote “no” with 24 Republicans present. HB 4 has now been referred to the State Senate with further committee hearing held, including the Senate Judiciary Committee.

The New Mexico Civil Rights Act would allow plaintiffs to file a new cause of action in state court against a public body to recover financial damages caused by a government employee for violations of rights under the New Mexico Bill of Rights over alleged infringements of free speech, freedom of religion and other constitutional rights. Unlike litigation in federal court, qualified immunity would be barred as a defense against claims filed under the new act.

The bill will prohibit “qualified immunity” as a defense to legal claims filed against government agencies. The substitute bill caps damages at $2 million. Legal claims brought under the proposed New Mexico Civil Rights Act could only be filed against a government agency, not an individual employee. The revised Bill passed by the house also prohibits public employees from using the Civil Rights Act to bring claims against their public employer.

One major change made to the original house bill was that attorneys fees and costs would be taken directly out of any settlement or judgement and not be an add on expense. Attorney fees and cost would not be added to a judgement nor settlement. Attorneys fees in civil causes of action for damages are usually one third of the total recovery made.

HB 4 was strenuously opposed by city and county governments as well as public employees, especially law enforcement. The New Mexico Association of Counties that counties would lose insurance coverage over insurance cancellations for the risk thereby leaving the counties responsible for all liability found and with less money to pay out claims. The Municipal League argued that the bill is entirely punitive and would do nothing to prevent misconduct in the first place. Cities argued there is more of a need for law enforcement training.

During the debate, Republican Representative Greg Nibert, R-Roswell, argued the creation of a Civil Rights Act was not necessary. Nibert argued that aggrieved people can already file claims under the state Tort Claims Act against law enforcement that has a roughly $1 million cap on damages.

CONFLICTS OF INTERESTS ALLEGED AGAINST SPONSORS

House Bill 4 drew sharp debate because it is sponsored by some of the most powerful members of the Legislature. The sponsors include House Speaker Brian Egolf, D-Santa Fe and Rep. Georgene Louis, an Albuquerque Democrat, chairwoman of the House State Government, Elections and Indian Affairs Committee. Senator Joseph Cervantes, a Las Cruces Democrat is also a sponsor and Chairman of the Senate Judiciary Committee. All 3 legislators are lawyers.

State Representative Ryan Lane, R-Aztec, introduced an amendment that would prohibit legislators who practice law from representing clients who bring claims under the act while they’re in office or for three years after they leave the Legislature. Republican Representative Lane is a lawyer and questioned whether it would be appropriate for a member of the Legislature to file suit under the act and profit from it, declaring it a conflict of interest.

New Mexico Speaker of the House Brian Egolf is a prominent Santa Fe trial attorney and his practice includes civil rights law. Rep. Georgene Louis practices in tribal government law. Senator Joseph Cervantes is a highly successful trial attorney who focuses on personal injury and wrongful death and has secured historically high judgements in the millions.

Opponents of Lane’s amendment to prohibit legislators who practice law from representing clients who bring claims under the act made two major arguments:

1. It would violate the New Mexico judiciary’s right to set limits on lawyers in the state while Lane argued it would help maintain the public’s trust in legislators

2. The state Legislature is a part-time body, and members don’t draw salaries. Most lawmakers are either retired or have other full-time jobs.

The Lane proposed amendment failed.

Senator Joseph Cervantes for his part said HB 4 deserves and will receive “a great deal of scrutiny” in the Judiciary Committee that he chairs. Cervantes has introduced legislation that would complement House Bill 4. Cervantes is sponsoring Senate Bill 376, which would make changes to the state Tort Claims Act and prohibit the use of qualified immunity in some instances.

https://www.abqjournal.com/2360252/house-endorses-nm-civil-rights-law.html

ETHICS COMPLAINT FILED AGAINST EGOLF BY FORMER JUDGE

On February 17, it was reported that retired State District Court Judge Sandra Price of Farmington, New Mexico has filed an ethics complaint with the new State Ethics Commission that is deals with all elected state officials, including all legislatures. Former Judge Price was a district court judge in the Eleventh Judicial District of New Mexico. Price joined the court in January 2005 after winning the November 2004 election and he retired from the bench on December 31, 2017.

The four-page ethics complaint alleges Egolf failed to disclose as a cosponsor of HB 4 conflicts of interest and would obtain personal benefit from passage of House Bill 4. Speaker Egolf’s work as a private attorney includes personal injury, medical malpractice, civil rights and other civil litigation. Egolf did file a state disclosure form reporting that he has a civil law practice and has represented clients before the Health Department and the Taxation and Revenue Department, in addition to the state engineer. Egolf did not report that his work also includes civil rights work.

The link to the Egolf law firm web page is here:

https://egolflaw.com/

THE ETHICS COMPLAINT

The Governmental Conduct Act calls for legislators to use “the powers and resources of public office only to advance the public interest and not to obtain personal benefits or pursue private interests.” It prohibits legislators from requesting or receiving “any money, thing of value or promise” in exchange for an official act.

The ethics complaint filed by former Judge Price is a mere 4 pages long and it alleges Egolf’s sponsorship of the Civil Rights Act violates ethical standards in state law, including a prohibition on elected officials using their powers to obtain personal benefit or pursue private interests. The complaint points to an online legal profile that estimates about 20% of Egolf’s legal practice is civil rights claims and 40% is civil litigation on behalf of plaintiffs. Price contends in her ethics complaint that Egolf should have made full disclose to other legislators. According to complaint:

“If passed [Speaker Egolf] will now have greater access to receiving payments from New Mexico’s local and state governments. … [The laws legal provision “clearly and unequivocally benefit the private practice of Speaker Egolf.”

Price’s complaint is pending with the State Ethics Commission, an independent agency.

EGOLF RESPONDS

In a written statement, Speaker Egolf responded to the complaint and said:

“The complaint is baseless and clearly designed to distract me from my work and to discourage me from fighting for the people of New Mexico”.

Private attorney Andrew Schultz who is representing Speaker Egolf said he will seek dismissal of the complaint. According to Schulz, one of the two sections in the law cited by Price does not apply to legislators and another would prohibit almost any lawyer from serving in the Legislature if it were read the way Price suggests.

According to Schultz:

“I don’t believe this is a gray area at all. … I think the claims filed against the speaker have no factual basis, and they have no legal basis under the Governmental Conduct Act, which is the only law cited in the complaint that the speaker was supposed to have violated.”

NOT THE FIRST TIME

In the past, Egolf has made a distinction between laws that affect the public more broadly and bills with an immediate impact on specific pending litigation he is working on. Just last year, Egolf recused himself from voting on a bill that clarified who may enroll in New Mexico’s medical marijuana program. Egolf said the legislation might affect a pending appeal and underlying case he had filed on how to define a qualified patient for the program.

https://www.abqjournal.com/2360769/ethics-complaint-accuses-speaker-of-conflict.html

COMMENTARY AND ANALYSIS

At the absolute center of the debate on HB 4 enacting a Civil Rights Act is whether the State Of New Mexico should go out of its way to create a whole new cause of action for violation of civil rights under state laws and state constitutional rights to ease the burden of proof to recover damages in a court of law free of any “qualified immunity” defense. It should come as no surprise that plaintiff’s lawyers, such as Speaker of the House Brian Egolf and Senator Joseph Cervantes are in favor of enactment of a Civil Rights Act and getting rid of the qualified immunity defense.

To put it mildly, plaintiff’s lawyers simply do not like the “qualified immunity defense” created by the Federal Courts because it makes it much more difficult to recover damages in civil rights cases filed against law enforcement. It is not as much about “holding government employees accountable for misconduct” as it is making it a lot easier to prove a case and recover a larger judgment against a “deep pocket” such as government agencies.

Many argue that a New Mexico Civil Rights Act is needed to stop the “culture of aggression” or systemic racism and stop the excessive use of force or deadly force by law enforcement. When it comes to the Albuquerque Police Department (APD), the city is already getting a handle on the problem. For the past 6 years, APD has been under a federal court consent decree that mandates 271 reforms that APD and the city are still struggling to implement under the watchful eye of a federal judge and a federal court appointed monitor. Albuquerque has paid out upwards of $64 million dollars over the last 10 years for excessive use of force and deadly for cases and civil rights violations stemming from a “culture of aggression” found by the Department of Justice (DOJ).

From a practical standpoint, it makes little or no sense to enact a Civil Rights Act that creates a new cause of action for violations of state constitutional rights by government employees, abolishing qualified immunity only to have a Tort Claims Act that mandates a defense and payment of judgments for damages. It appears with the enactment of a Civil Rights Act as proposed, damage to a plaintiff, the liability of a government employee and the taxpayer wind up in the exact same place as to who pays for the damages under the Tort Claims Act. The only benefit of such legislation is to make recovery in state court a lot easier than in federal court.

NO INDIVIDUAL ACCOUNTABLITY PROVISIONS

Absent from the Civil Rights Act passed by the House is any provision that would actually hold a government employee truly liable and accountable for damages they have caused another. All the act does is create a cause of action, prohibits qualified immunity and mandates government to pay. There is no personal liability nor other types of penalties to hold the individual employee accountable for wrongful conduct and violations of civil rights and constitutional rights.

Absent from the legislation is any preventative measures directed at the government employee or services such as training, expanded behavioral health services and decertification’s and terminations of the employee. All that the legislation provides for is to pay out claims with no provisions that would prevent violations from happening in the first place.

Then there is the matter as to what extent do you want to hold a government employee personally liable for violations of constitutional rights? Do you make that person individually, jointly or severally liable to pay damages awarded? Should government pensions be forfeited? There are options many would likely feel go too far and are just punishment and not restitution while others would say it is justified if a person is dead because of the negligent conduct of the government employee.

Other types of penalties could easily be included such as mandatory termination from government employment, suspension of professional licenses such as licenses to practice law, medical licenses, teacher licenses, law enforcement licenses and certifications and trade licenses all issued and regulated by the state under existing law.

As it stands now under the proposed civil rights act, government will still bear the responsibility to defend and pay the judgments and settlements, and in turn its the taxpayer who is paying. If accountability is truly what the Civil Rights Act is intended for, and what plaintiff trial attorneys want, it sure does look like the real goal is to make recover a lot easily from a deeper pocket without having to prove a case in court before a judge and jury.

APPEARANCES ARE EVERYTHING IN THE COURT OF PUBLIC PERCEPTION

What cannot be dismissed lightly and that should not be ignored, is that New Mexico Speaker of the House Brian Egolf is a New Mexico plaintiff’s trial attorney and a very successful and prominent one at that. He and his firm over the years has represented many a client plaintiff adverse to government entities in a courtroom.

Lest anyone forget, attorney at law Brian Egolf sued the state of New Mexico just a few years ago over the medical marijuana residency requirements. Egolf voted on amendments to the medical marijuana law then turned around and sued the state over the changes in the law. Egolf’s actions as an attorney then as now with the Civil Rights acts raises more than a few questions of “conflict of interest” and the “appearance of impropriety” in the courtroom of public perception.

Speaker of the House Egolf in no way can be considered average run of the mill New Mexico House Representative and is view by many as the second most powerful State elected official. His sponsorship means something and appearances of impropriety should be avoided at all costs even if it means recusing himself from sponsorship or voting. The State Ethics Commission needs to use the complaint against Speaker Egolf as an opportunity to issue far more guidance on the restrictions that elected officials need to follow when it comes to the legislation they sponsor or vote on.

Links to related blog articles are here:

Speaker Of The House Brian Egolf Ignores Appearance Of Impropriety With Sponsorship Of New Mexico Civil Rights Act; Civil Rights Act Creating Solution Looking For A Problem

2021 Legislative Update: Overhaul Bill Of New Civil Rights Act Goes To Full House For Vote; No Individual Accountability Provisions; New Civil Rights Act A Solution Looking For “A Deep Pocket” And Attorney Fees.

APD Chief “Citizen Survey” Disqualifies Harold Medina To Be Permanent Chief; Experience With A Department In Crisis And DOJ Consent Decree Needed, Not One Who Contributed To “Culture of Aggression”

On September 10, Mayor Tim Keller and APD Chief Michael Geier held a press conference to announce that Chief Geier was retiring after 2 years and 9 months as APD Chief. Keller announced a national search would be conducted to find a new chief.

Within days after the departure of Chief Geier, the city posted and advertised the position nationally. The Keller Administration hired a consultant to help search for applicants. The search resulted in 39 applicants who submitted their resumes. A screening process was initiated and applicants were sorted into 25 “qualified” candidates and 9 “unqualified” candidates. On January 1, 2021, the names of all applicants were released.

3 FINALISTS ANNOUNCED

The City of Albuquerque narrowed its search for a new police chief to 3 candidates. On January 20, 2019, Mayor Tim Keller announced 3 finalists for Chief of Police. The finalists are:

1. Joseph Sullivan
2. Clinton Nichols
3. Interim Chief Harold Medina

A Link to related news coverage is here:

https://www.kob.com/albuquerque-news/keller-reveals-3-finalists-for-apd-chief-of-police-position/5984697/?cat=500

On Saturday, January 23, Albuquerque Mayor Tim Keller, along with CAO Sarita Nair and city leaders and Herb Crosby, the owner of AVTEC, Inc., the Albuquerque consulting firm hired by the city for the hiring process for Chief of Police, held a webinar featuring the 3 finalists for Chief of Police.

A link to the full 1 hour and 18-minute webinar is here:

https://www.krqe.com/news/albuquerque-metro/city-officials-give-opportunity-to-meet-police-chief-candidates-saturday/

CITY CITIZENS SURVEY RESULTS

Prior to the January 23 webinar interviews with the 3 APD Chief finalists, the city conducted 40 virtual meetings with community groups as well as an online survey to get community input on what characteristics should be looked for in hiring the next chief. The city collected upwards of 2,300 responses to the survey. According to one news report:

“The survey results revealed that the community wants to see the following in the next APD police chief:

Communication, leadership by example, and accountability to the community were the attributes most valued by survey respondents.

The qualifications considered ‘Very important’ by a large majority of respondents included ‘experience with reducing use of force and procedural justice,’ ‘crisis management,’ and ‘knowledge of crime prevention and law enforcement strategies.’

The three priorities considered ‘Very important’ by over 70 percent of survey respondents included ‘Protecting civil rights,’ ‘Reducing violent crime,’ and ‘Improvements in police training.’

Common themes that emerged from the community input sessions also included:

Change the narrative from crime-fighting to crime prevention by focusing on behavioral health and public health. Input session participants recommended that the next chief work to address the root causes of crime, in partnership with others to tackle issues such as mental illness, trauma, and substance misuse.

Prioritize de-escalation to prevent crimes and officer-involved shootings. Input session participants stressed the need for a police chief willing and able to address and resolve the Department’s use of force issues.

Seek out candidates whose understanding of, and commitment to, racial equity comes from lived experience. Meeting participants recommended that the next police chief have direct experience addressing racial equity concerns and commit to enhancing racial equity training for officers.

Increase APD’s transparency with regard to decisions that affect the community.

Engage with the community. Input session participants wanted the next chief to be a visible presence in their communities.”

A link to the quoted source and survey is here:

https://www.krqe.com/news/albuquerque-metro/apd-releases-results-of-police-chief-community-survey/

PUBLIC CONCERNS MIRROR THE DOJ INVESTGATION FINDINGS

On November 10, 2014, the City and the Department of Justice entered into a Court Approved Settlement Agreement (CASA) that mandates 271 sweeping reforms of the APD. The CASA was negotiated to be completed within 4 years and after 2 years of consecutive compliance, the case was to be dismissed in November of 2020. Six years have now expired and APD has failed to fully implement the reforms and is not in compliance.

It is not at all surprising that virtually all of the concerns the public survey found as to what the public wants in its next APD Chief hit squarely on the issues identified and involved with the Department of Justice (DOJ) investigation and the Federal Court Approved Settlement Agreement.

On April 10, 2014, the United States Department of Justice (DOJ), Civil Rights Division, submitted a scathing 46-page investigation report on an 18-month civil rights investigation of the Albuquerque Police Department (APD). The investigation was conducted jointly by the DOJ’s Washington Office Civil Rights Division and the United States Attorney’s Office for the District of New Mexico.

The link to the DOJ investigation 46-page report is here:

https://www.justice.gov/sites/default/files/crt/legacy/2014/04/10/apd_findings_4-10-14.pdf

What differentiates the DOJ’s investigation of APD from the other federal investigations of police departments and consent decrees is that the other consent decrees involve in one form or another the finding of “racial profiling” and use of excessive force or deadly force against minorities. The DOJ’s finding of a “culture of aggression” within APD dealt with APD’s interactions and responses to suspects that were mentally ill and that were having psychotic episodes.

INTERIM APD CHIEF HAROLD MEDINA’S WEBINAR INTERVIEW

During his January 23 webinar interview, Interim chief Harold Medina said he has the “hindsight” to take the department forward, to get it where it needs to be and to reduce crime in Albuquerque and complete the reform effort. Medina stated his biggest priorities with the department are to continue to increase the department’s resources, adding more sworn police to the force, build up and add to the department’s investigation capacity and stop “the revolving door” when it comes to arresting and releasing criminals.

Highlights of what Interim Chief Medina had to say include:

“We know we have to increase the quality of our investigations. … The three areas that we will focus on improving is the increase in resources. … We simply need more officers. … The challenge is you have to build the capacity of our investigative units. … We are on track to have our first batch of investigators go to their specific training to through the mid-part of the year.”

Medina emphasized his years of experience with APD and what he is doing now had this to say:

“How can you change a culture if you had not lived and been a part of that culture? … I have already begun the transformation process for the Albuquerque Police Department, and I am asking for the time to complete it. … We will continue to reach out to make sure that all segments of the community have their voice heard with APD. … The success of these relationships will rest on the department being transparent with the public.” (Yes, Medina really said it, and more on this later.)

Medina added that there needs to be measures taken to boost the quality of use-of-force investigations while making sure those who break policy are held accountable and he said:

“The narrative has to change. … The focus cannot be that we are disciplining officers but rather we are protecting the integrity of all the great officers of this department.”

One very uncomfortable take away from Interim Chief Medina’s presentation is that he either read or regurgitated answers he had memorize, while the other two applicants clearly answered the questions spontaneously.

MEDINA TELLS OFFICERS APD CANNOT FOCUS EXCLUSIVELY ON CRIME BLAMING DOJ CONSENT DECREE

On January 30, the on-line news outlet ABQ Raw reported that APD Interim Chief Harold Medina addressed APD personnel in a 4-minute internal message. The recorded message was not for release to the general public. In the recorded message, Medina says that and APD cannot focus exclusively on fighting crime because it is being forced to divert resources to comply with Department of Justice mandated reforms. The media outlet ABQ RAW obtained the video from a confidential source and then published it.

In the video, Medina says that the police department is short of patrol officers and that he is asking officers in the field to determine which calls for service cops should not be sent to. ABQ Raw for its part said the clip shows that Medina and the Keller administration have admitted defeat in the fight against crime.

The ABQ Raw report and the video can be viewed in the entirety at this link:

https://www.facebook.com/abqraw/videos/1137832919984382

The most relevant portion of Medina’s internal statement to APD employees is as follows:

“I wish, and those of you who know me, uh, know that I would love to sit here and say that we’re going to focus on crime and crime alone. But the reality is that’s not where the Albuquerque Police Department is at this time, and we must change the culture for the good of the community and for the good of our officers. So we’re going to have to make sure that we’re open to ensuring that we move forward on all fronts, the compliance front and the crime front, and it’s a very delicate balancing act, and when we’re able to I intend to give more resources to Investigations.

“We recognize the Field [of patrol officers] is short and I’m going to ask commander(s) in the field to make sure their people are getting information to us on which calls we shouldn’t be dispatching to. So there’s a lot of moving parts to this. We’re well aware of them, we’re committed, and everybody recognize that this is a tough time for law enforcement across the nation.”

HAROLD MEDINA’S TROUBLED PAST

Interim Chief Harold Medina has a very troubling past of 3 police officer involved shootings with reactive decision-making and failed leadership resulting in the killing of two mentally ill people having psychotic episodes.

The 3 cases reveal Medina’s actions, his failure to act and supervise, his reactive decision-making process resulting in disastrous outcomes, even death, and reflecting failed leadership. A short summation of each of the 3 shootings merit review:

1. THE 2004 SHOOTING OF DOMINIC MONTOYA

Harold Medina has the tragic distinction of shooting and killing a 14-year-old Cibola High School student in 2004 when he was an APD field officer. At the time of the shooting, Harold Medina was 30 years old and was a seven-and-a-half-year veteran of APD. According to news accounts, 14-year-old boy Dominic Montoya went to Taylor Ranch Baptist Church looking for prayer. Montoya was reported as saying he was possessed by demons and went to church for help. Some one noticed the teenager was concealing a weapon and APD was called. It turned out it was a BB gun and when APD showed up, the 14-year-old was fatally shot by police after pointing the BB gun at the officers. It was then APD Officer Harold Medina who fired 3 shots at the 14-year-old, Cibola High School Student with two hitting the juvenile in the abdomen. It was reported that the BB gun was indistinguishable from a real gun and Medina said he was in fear for his life and reacted by discharging his service revolver killing the boy.

https://apnews.com/41e13a7f6393b3ea5b92ccfadae5ccd6

2. THE FEBRUARY 8, 2009 SHOOTING OF ANDREW LOPEZ

On February 8, 2009, the shooting of 19-year-old Andrew Lopez by APD officer Justin Montgomery occurred. Harold Medina was “off-duty” supervisor when Lopez was killed. The reasons why Medina was off duty have not been disclosed. Medina’s assigned APD’s officers he was supposed to supervise attempted to pull over Lopez when Lopez stopped the vehicle, exited, and ran pursued by Montgomery who shot at Lopez three times with one shot causing a non-lethal bullet wound. Lopez fell to the ground and lay motionless on his back. Lopez was unarmed. The officer fired the fourth and final shot into Lopez’s chest, piercing his lung and heart and causing his death. The officer said Lopez had a gun. The truth is Lopez had no gun and none was found at the scene.

In a bench trial in state court, the judge found that the officers’ testimony about the threat they perceived from Lopez was not credible. The judge concluded that the shooting was unreasonable. The judge further found that the training provided to APD officers on use of deadly force “is not reasonable and is designed to result in the unreasonable use of deadly force.” The judge found the City principally responsible for Lopez’s death and awarded his estate approximately $4.25 million.

3. THE JANUARY 13, 2010 SHOOTING OF KENNETH ELLIS

On January 13, 2010, Kenneth Ellis, III, a 25-year-old veteran who was suffering from post-traumatic stress disorder and was shot and killed by APD police officers. The officers suspected Ellis of vehicle theft and pulled him over in a parking lot. Ellis exited the vehicle holding a gun pointed to his head. Ellis continued to hold the gun to his head as he made several phone calls and the officers attempted to negotiate with him. After several minutes, an officer shot Ellis one time in the neck and killed him.

A 12-page transcribed interview taken on January 13, 2010 of then APD Lieutenant Harold Medina reveals his involvement in the shooting and killing of Ken Ellis. Lt. Harold Medina admits that he was at the scene, that he authorized the use of deadly force on Kenneth Ellis and he did not attempt to deescalate the confrontation. APD Lieutenant Harold Medina became “involved” by being armed with a rifle and “covering” Ellis. In his interview Medina states he was prepared to use deadly force himself. A judge in a state civil suit granted summary judgment in favor of the plaintiffs, finding that the shooting of Ellis violated the Fourth Amendment. A jury later returned a verdict finding the City and the officer who shot him liable for Ellis’ death and awarding more than $10 million in damages.

Former APD Chief Michael Geier sat on the city’s force review committee at the time of the Ellis shooting and later said that Medina should have been disciplined for his failure in leadership in dealing with Ken Ellis.

Medina was never disciplined for his conduct relating to any of the 3 high profile shootings.

COMMENTATY AND ANALYSIS

What Interim Chief Harold Medina said during his January 23 webinar interview is worth repeating:

“How can you change a culture if you had not lived and been a part of that culture? … I have already begun the transformation process for the Albuquerque Police Department, and I am asking for the time to complete it.”

You sure the hell can not change the culture with someone who helped create, was part of and who did not stop “the culture of aggression” found by the Department of Justice. Frankly, Medina has had 24 years with APD and his “time” has really come and gone and he needs to go away.

In his internal office video to all law enforcement personnel, Medina said APD has a problem with staffing and that crime is raging out of control. When Medina says:

“… I would love to sit here and say that we’re going to focus on crime and crime alone. But the reality is that’s not where the Albuquerque Police Department is at this time, and we must change the culture for the good of the community and for the good of our officers …” he is ostensibly referring to the DOJ consent decree to change the APD “culture of aggression” found by the DOJ in 2014.

The message Medina is delivering to APD officers is that the DOJ reforms are making difficult then to fight crime.

Medina knows better. To blame the DOJ consent decree for APD’s inability to concentrate on crime alone is wrong on so many levels. Medina knows a lot of the problems with APD are directly related to the APD management and he has been a part of management for the last 3 years when he was in charge of Field Services as a Deputy Chief.

Medina’s January 29 recorded message to his department personnel is an admission that he cannot do both the jobs of criminal investigations and implementing the DOJ reforms.

With his words, Interim Chief Harold Medina admitted he was and really is still part of the problem with APD. Medina has a history of reactive decision-making and failed leadership resulting in the killing of two mentally ill people having psychotic episodes. Interim Chief Harold Medina spins the two tragedies as a positive credential to run the APD saying because of the shootings he now understands the DOJ reforms, their need and can implement them. Medina’s conduct in the two shootings is the very type of conduct that resulted in the Department of Justice investigation in the first place.

With two separate fatalities involving the mentally ill, Interim Chief Harold Medina represents the total opposite of what a large majority of survey respondents want in a police Chief. Survey respondents said it was “very important” to have a chief with “experience with reducing use of force”, “crisis management”, “protecting civil rights” and able “to tackle issues such as mental illness. ” The fatal shootings Medina was involved with show he possesses none of the desired traits and Harold Medina, as a Deputy Chief, has been part of the very management team that has shown he does not possess the desired traits with the failure to implement the DOJ reforms.

Interim Chief Harold Medina is part of the very problem that brought the Department of Justice (DOJ) here in the first place. It was the past APD management practices that resulted in the “culture of aggression” found by the Department of Justice that lead to the federal consent decree after 18 police officer involved shootings and the findings of excessive use of force and deadly force by APD. The litany of cases includes 4 Cases where $21.7 Million was paid for APD’s excessive use of force and deadly force and $64 Million for 42 police officer shootings in 10 years.

Mayor Keller needs to take to heart the findings of the citizen’s survey. Any one in APD command staff who assisted, contributed or who did not stop the “culture of aggression” found by the Department of Justice and who has resisted the reform process has no business being APD Chief or Deputy for that matter and that includes Interim Chief Harold Medina.

When running for Mayor, Keller had zero knowledge of the extent of how serious the problems that were found by the Department of Justice and the “culture of aggression.” Keller was not interested in learning about the APD “culture of aggression” in that he did not bother to attend any one of the many Federal court hearings on the APD reforms when he was running for Mayor. Keller has no background nor practical experience in law enforcement and now his inexperience is showing, as is the inexperience of the political operatives such as CAO Sarita Nair he has surrounded himself with in his office.

It is no secret at city hall that Chief Administrative Officer Sarita Nair is very much involved with the day to day management of APD and that Interim Chief Harold Medina have developed a strong working relationship with CAO Nair. According to city hall sources Interim Chief Harold Medina will do whatever he is told to do by CAO Nair and Mayor Tim Keller. Confidential APD command staff also reported that Deputy Chief Harold Medina made it known to them that he intended to be the next Chief of APD sooner rather than latter even if took orchestrating Chief Geier’s departure relying upon CAO Sarita Nair’s support.

Mayor Tim Keller has his eyes focused on another 4 year term or higher office unable dealing with a crisis of Keller’s own making. Keller has forced his first, handpicked appointed APD Chief to retire in order to appoint an insubordinate Harold Medina with a nefarious past who was hell bent on orchestrating Geier’s removal and taking his job as Chief. Mayor Keller is now faced with the very difficult task of finding and hiring a new APD Chief 8 months before the November 2021 election for Mayor. That may not happen because whoever is appointed by Keller likely will know they will be out of a job if Keller is not elected to another 4-year term. Keller now has an Interim Chief who wants to be made permanent and who has a nefarious past who will lead APD in the reactionary manner that will result in disastrous outcomes.

Experience with a law enforcement department both in crisis and under a DOJ consent decree must be an absolute requirement. If Mayor Tim Keller is truly committed in conducting a national search to find someone who will change the culture within APD, he should order AVTEC, Inc., the Albuquerque consulting firm he hired, to find far more than just two qualified law enforcement professionals who have the experience to manage a department in crisis. Both applicants Chief Clinton Nichols and former Deputy Commissioner John Sullivan should be considered with others, but not Harold Medina.

It is as disappointing as it gets that Mayor Tim Keller did not make it clear from the get go that Interim Chief Medina should not apply for the position full time if he wanted to serve as Interim Chief. If Mayor Tim Keller appoints Medina as permanent Chief, it would mean Keller could not care less about what the public thinks and what it wants in a Chief of Police. Then again, Keller’s inability to deal with the city’s spiking crime rates will go down as his biggest failure, even if he is elected to a second term which at this point in time seems more likely than not. APD deserves better than Harold Medina as Chief

City Spends $35.85 Million Yearly On CASA Reforms; 61 Sworn Police Assigned To Compliance; Judge Should Deny Motion For EFIT Team; Suspend CASA; Order Monitor To Take Over Of IA Use Of Force Investigations

On Friday, October 6, 2020, after over 6 years of auditing and $7.5 Million paid to Federal Auditor, APD Monitor Ginger told Federal District Court James Browning Judge overseeing the DOJ reform efforts:

“We are on the brink of a catastrophic failure at APD. … [The department] has failed miserably in its ability to police itself. … If this were simply a question of leadership, I would be less concerned. But it’s not. It’s a question of leadership. It’s a question of command. It’s a question of supervision. And it’s a question of performance on the street. So as a monitor with significant amount of experience – I’ve been doing this since the ’90s – I would have to be candid with the Court and say we’re in more trouble here right now today than I’ve ever seen.”

On Friday, December 4, 2020 an all-day status conference hearing was held by Judge Browning on the 12th Compliance Audit Report of the APD reforms mandated under the Court Approved Settlement Agreement (CASA). During the hearing, it was revealed publicly for the first time that the City and the Department of Justice were negotiating a “stipulated order” for court approval that would create and External Force Investigations Team (EFIT).

During the hearing, Paul Killebrew, special counsel for the DOJ’s civil rights division, said that after the 12th Federal Monitor’s report was released on November 2, the DOJ and the City realized that something had to be done. If not agreed to by the city, the DOJ would have to take very aggressive action. Killebrew told Judge Browning:

“The city agreed the problems were serious and needed to be addressed … that’s significant. If we had gone to the city and the city disagreed with our picture of reality, and had they not been willing to address the problem we identified, I think we would be in a different posture … We might have needed to seek enforcement action over the city’s objections.”

The enforcement action that could have been taken, and in fact recommended by other stakeholders in the case, was to file a “Motion for Contempt of Court” seeking sanctions against the City and APD for intentional violations of the CASA. Another option recommended was to have APD placed in a “receivership” with the appointment of a Special Master to take over the day-to-day management of APD. Creating the EFIT was a compromise approach.

JOINT MOTION FILED

On Friday, February 5, the City of Albuquerque and the Department of Justice (DOJ) filed a “Joint Motion For Entry of Stipulated Order Establishing An External Force Investigation Team”. The motion has attached to it a proposed Stipulated Order that has been negotiated between the city and the DOJ with no objection from the court appointed Federal Monitor. The APD Police Union is an intervenor in the case, but did not sign off on the motion and ostensibly was not involved with negotiation of the stipulated order. A hearing must be held by the Federal Judge who must approve the Stipulated Order before it can be implemented.

According to the motion filed, the proposed Stipulated Order will require the City to establish, on a “temporary basis”, an External Force Investigation Team (EFIT) to assist the Albuquerque Police Department (APD) in conducting use of force investigations by APD officers, while also assisting APD with improving the quality of its use of force by police investigations.

The EFIT team will train APD Internal Affairs investigators on how to properly investigate uses of force instances by APD police officers. According to the proposed order, the City will ensure that APD maintains at least 25 force investigators assigned to the APD Internal Affairs unit unless and until APD can demonstrate by an internal staffing analysis that fewer investigators are necessary to timely investigate uses of force by APD Officers.

A link to the Motion and the Stipulated Order is here:

https://drive.google.com/file/d/1DO2UyAGKf5Srw50Y9DcYCmuX3WzESukC/view<

EXTERNAL FORCE INVESTIGATION TEAM (EFIT)

According to the motion filed, the proposed Stipulated Order will require the City to establish, on a “temporary basis”, an External Force Investigation Team (EFIT) to assist the Albuquerque Police Department (APD) in conducting use of force investigations by APD officers, while also assisting APD with improving the quality of its use of force by police investigations.

The EFIT team will train APD Internal Affairs investigators on how to properly investigate uses of force instances by APD police officers. According to the proposed order, the City will ensure that APD maintains at least 25 force investigators assigned to the APD Internal Affairs unit unless and until APD can demonstrate by an internal staffing analysis that fewer investigators are necessary to timely investigate uses of force by APD Officers.

The proposed Stipulated Order provides that the Independent Monitor will continue to provide extensive technical assistance to the City regarding Internal Affairs processes, including the period before an EFIT administrator is selected. The specialized unit would be disbanded when APD becomes proficient at investigating itself, but no timeline is identified and neither is the actual cost to the city.

The Stipulated Order also provides that the additional services to be provided by the Federal Monitor will be additional to the auditing work under the CASA. According to the Stipulated Order, the monitor and the city will have to enter into a separate contract providing additional compensation. The Federal monitor’s team has already been paid $7.5 million for 6 years of work and is currently being paid $1.5 million a year. The Federal Monitor employees a 9-member professional team in addition to local staff and the city provides office space.

COMPLIANCE BUREAU FUNDING FOR CASA REFORMS

APD’s existing budgets for the last 2 years contains a “line item” appropriation identified as “PD-PROFESSIONAL ACCOUNTABILITY” which is essentially a consolidation reference to all of APD’s DOJ Compliance functions. The biggest responsibilities of the Compliance Bureau is the ongoing cooperation and working with the Department of Justice (DOJ) consent decree (CASA) and its implementation of its terms and conditions. The Compliance Bureau consists of the Internal Affairs Professional Standards Division (IA), Policy and Procedure Division, Accountability and Oversight Division, Internal Affairs Force Division and the Behavioral Health and Crisis Intervention Section and includes funding for training provided by the APD Academy for constitutional policing practices mandated under the CASA.

Internal Affairs (IA) deals with investigation police misconduct cases, including excessive use of force. Crisis Intervention deals with the crisis intervention teams who deal with the mentally ill and police encounters. Policy and Procedures deals with the review and writing of standard operating procedures that must comply with the CASA reforms. Policy and Procedures deals with the review and writing of standard operating procedures.

2019 -2020 APD BUDGET ALLOCATED $32 MILLION PLUS FOR CASA REFORMS

The City’s fiscal year budgets begin each year on July 1 and end on June 31 the following year.

On July 1, 2019, the Keller Administration released the 2019- 2020 operating budget and general fund appropriations budget. It was a whopping $1.1 Billion for fiscal year 2019-2020. APD had an approved general fund budget of $210,057,000 million dollars, which represented an increase of $12,134,000 Million above the previous year’s budget. APD’s approved budget for 2019-2020 contains a line-item budget of $32,077,000 for “Professional Accountability” which was an increase of $11, 053,000 from the previous year. (See Albuquerque City 2020 approved budget, page 12.)

The 2019-2020 budget contained an increase of 41 full-time positions which were added intra-year FY/19 at a total cost of $1.9 million including benefits and 4 positions were created at the APD Academy to comply with the Independent Monitor and DOJ mandates. Two quality assurance auditors were converted from part-time to full-time to support the DOJ compliance efforts. A chief policy advisor position was added to provide support on policy, best practices and case law development.

The link to the City 2019-2020 city budgets is here:

https://documents.cabq.gov/budget/fy-20-approved-budget.pdf

2020-2021 APD BUDGET ALLOCATS $35,851,000 FOR CASA REFORMS

On Monday, October 19, 2020, the Albuquerque City Council enacted the 2020-2021 fiscal year budget with the fiscal year budget beginning on July 1, 2020 and ending June 30, 2021. The enacted budget totals $1.1 Billion dollars for second year in a row and for that reason is considered a zero-growth budget.

APD continues to be the largest budget department in the city with the city council approving a $212 million budget for the department. Nearly $32 million is coming from the city’s federal coronavirus relief money. The approved budget funds a total of 1,678 full time positions that includes 578 civilian staff and funding for 1,100 sworn police.

During the February 8, 2021, City Council Public Safety Committee, Interim Chief Harold Medina reported that APD has 957 sworn police. Of the 957 sworn police, Medina reported a mere 371 sworn police are in Field Services responding to calls for service or 39% of the entire sworn force. The 371 sworn police taking calls for service are spread out over 3 shifts and 8 area commands to patrol based on crime rates in the areas. Medina also told the committee that Field Services has 6 area commanders, 18 lieutenants, 53 sergeant’s, 21 bicycle officers for a total of 511 officers assigned to field services. The problem is commanders, lieutenants, sergeant’s, and bicycle officers do not patrol the streets and do not take calls for service.

https://www.abqreport.com/single-post/zero-growth-for-apd

The Fiscal Year 2020-2021 approved general fund budget for APD contains a line item of $29,280,000 for “PD-PROFESSIONAL ACCOUNTABILITY”. According August 1, 2019 “Staffing Snapshot”, the Compliance Bureau has total staffing of 61 sworn police consisting of 40 Detectives, 1 Deputy Chief, 3 Commanders, 1 Deputy Commander, 6 Lieutenants, and 10 Sergeants. In addition to the $29,280,000 line item allocation, the 2020-2021 APD approved budget includes:

$5.2 million for continued work to comply with the Court Approved Settlement Agreement with the Department of Justice, which is understood to be funding for the Federal Monitor.

$627,000 to acquire electronic control weapons that have an audit trail to monitor usage and compliance with use of force policies.

$594,000 to purchase on-body cameras, as required by the CASA and state law.

Adding the above funding, the resulting total allocated by the City for the CASA reforms is calculated as follows:

$29,280,000 for “PD-PROFESSIONAL ACCOUNTABILITY”
$5,200,000
$627,000 to purchase electronic control weapons
$594,000 to purchase on-body cameras

TOTAL: $35,851,000

The link to the 2020-2021 budget is here:

https://www.cabq.gov/mayor/documents/final_fy21-budget-presentation-_09032020.pdf

You can review at all Fiscal Year budgets from FY 2007 to FY 2021 at this link:

https://www.cabq.gov/dfa/budget/annual-budget

EDITOR’S NOTE: Since 2014, the Federal Court Appointed Monitor has been paid thus far $7.5 million for the work of 9 auditing professionals. The monitors contract has been extended and is currently being paid $1.5 million a year.

COMMENTARY AND ANALYSIS

The late Senate floor leader Republican Everett Dirksen of Illinois cautioning that federal spending had a way of getting out of control, Dirksen reportedly observed, “A billion here, a billion there, and pretty soon you’re talking real money.” When it comes to the City’s Court Approved Settlement Agreement (CASA), the 271 mandated reforms, and the nearly $35 million being spent a year, it is easy to say were talking real money. Money that would go along ways to fund essential services and social services.

FAILURE TO GIVE ESTIMATED COST OF THE EFIT TEAM

It is downright pathetic that the City and the DOJ want to create an External Force Investigation Team (EFIT) without giving the Federal Judge any sort of estimated cost over and above APD’s budget. No cost breakdown is contained in the motion for the EFIT which reflects and element of pure laziness on the part of the City and the DOJ. Both the City and the DOJ could not careless about actual cost thinking that city finances can always be adjusted with budget cuts or finances can be replenished with more taxes.

The estimated minimum cost of such a specialized unit can be easily projected. According to the Motion, an administrator will first be hired and then upwards of 29 additional personnel will have to be hired. EFIT will be established to assist the APD in conducting use of force investigations by APD officers, which is a highly specialized requiring experience. Applicants will have to submit bids to get contracts and the bids will likely be well over and above paid to entry level sworn police officers which is $65,000 a year. The administrator will likely be on the level of an experienced APD Commander who can earn as much as $80,000 a year while experienced APD detectives can be paid upwards of $75,000 a year when you factor in bonus pay. It likely the EFIT bureau will cost at least $2,255,000 a year minimum. (Administrator $80,000 + 29 Investigators @ $75.000 each a year = $2,255,000)

APD MANAGEMENT FAILURE

The findings of the 12th Monitors report is what prompted the city and the DOJ to try and enter into the Stipulated Order to create the Use of Force Investigation Team. After 6 years, it is APD management and negligence that there is still overt resistance to the consent decree by not taking aggressive action to enforce the proper investigation of use of force and deadly force cases.

The Court Approved Settlement Agreement was negotiated to be fully implemented within 4 years and after a full two years of compliance, the case is supposed to be dismissed. At the time, the Federal Monitor said it was definitely doable, even though he had very little working knowledge of APD. It has now been over 6 years since the settlement with the DOJ was negotiated. The $35 million plus line item contained in the 2020-2021 budget for Professional Accountability and the 61 sworn police assigned to enforce the CASA reforms demands should be more than enough to deal with the reforms. If anything, 61 sworn police is excessive and is and top heavy with 1 Deputy Chief, 3 Commanders, 1 Deputy Commander, 6 Lieutenants, and 10 sergeants. It is more likely than not when the 2021-2022 budget is approved, which will effective from July 1, 2021 to June 31, 2022, even more millions will be added to create EFIT and the additional associated costs.

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. That is exactly what is happening in Albuquerque, and will continue to do so unless the Federal Court puts the brakes on it and denies the Joint Motion for a new police division to hire outside investigators to oversee the work being done by APD’s Internal Affairs unit in reviewing use-of-force complaints against officers. What you will no doubt have is “police who will police the police who police the police” during an ongoing violent crime wave which is a major the point made by the Albuquerque Journal in its Saturday, February 20, editorial. You can read the entire editorial in the postscript to this article.

The single most remarkable understatement made during the entire one-day December 4 status conference hearing was made by Special Counsel for the DOJ’s Civil Rights Division Paul Killebrew when he said:

“APD has proven over and over again its agility to avoid the requirements of the CASA.”

Nothing gets past Kilebrew and the DOJ!!!! Notwithstanding his comment, Killebrew felt the “use of force” investigation team should be implemented even with the risk of APD continuing to avoid the CASA. The DOJ is seriously mistaken if it feels a use of force team, especially whose work is done remotely, will be able to avoid APD agility and resistance to the reforms.

For the past 6 years, the CASA has been plagued with inconsistencies, conflicts, and the political turmoil. In the last 6 years there have been 3 United States Attorneys General, 2 Federal Judges assigned to the case, 2 appointed New Mexico United States Attorneys, the City has elected 2 Mayors, there have been 3 police Chiefs, the court has called a “reset” of the process 3 years ago after the current Mayor was elected, the APD has undergone at least 3 reorganizations, the high command of Deputy Chiefs and Area Commanders has changed at least 3 times with reorganizations.

What the City and the DOJ have done is negotiate a stipulated order to create another level of bureaucracy with the creation of a “use of force team.” Even though motion says that the EFIT unit will established on a “temporary basis”, given APD’s failed track record of the past 6 years and millions spent, it’s more likely than not the EFIT will be around for some time. The DOJ and the Keller Administration is essentially throwing in the towel on forcing APD to implement the reforms required under the CASA. The DOJ is giving APD another way out of a problem its management and the police union have created on their very own.

ENOUGH IS ENOUGH

There have been only 3 consistent factors relating to the CASA:

1. The reforms mandated by the CASA,
2. The same federal monitor and
3. Resistance to the reforms by APD.

The creation of a new use of force team is nothing more than creating another level of bureaucracy that will be costly. It will almost assuredly guarantee that the CASA will continue for any number of years and beyond the 6 years as was originally envisioned because APD will still have not learned to properly do use of force investigations.

It’s more likely than not APD management, the union and rank and file will continue with their efforts of “noncompliance”, not overtly, but in a manner to avoid detection and once again using “agility to avoid the requirements of the CASA.” As was the case before, APD is simply waiting out another Mayoral Administration. Where there is a will to obstruct the CASA reforms, APD and the Police Union always find a way and the City and the DOJ have failed to learn that lesson after 6 years and millions spent on the reform effort.

The Federal Monitoring Team after 6 years should know without any doubt what needs to be done with use of force investigation and knows where things are lacking. The 300 plus page audits covering each time the 271 reforms and the Monitor’s continuing refrain “it’s not my job” to manage is no longer cutting it. No matter what is said, the public perception is that he and his group have a very strong financial incentive for APD to fail especially when the the Federal Monitor does possess the knowledge what is wrong with APD, what changes need to be made and what actually needs to be done by APD.

OFF THE TOP OF HIS HEAD

A few years ago, it took a year for the parties to negotiate new “use of force” and “deadly force policies”. The police union contributed significantly to the one-year delay in writing the policies objecting to many provisions of the policies as “unworkable” or “unreasonable”. The police union repeatedly objected to the language of the use of force policy and deadly force policy. 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. In a conversation with this blog publisher, Federal Monitor James Ginger was asked why he could not just write acceptable use of force and deadly force policies. His response was quick and sure and he said he could do it practically “off the top of his head” within less than an hour but said it was not his job and that his job was to audit and report his findings to the court.

The Federal Court should deny the joint motion, reject the hiring of an outside use force team, suspend the CASA and order the Federal Monitor to take over APD’s Internal Affairs Unit and use of force investigations. The monitor needs to be given full authority over Internal Affairs personnel to the extent of being given direct management and control to issue orders and commands as to how use of force investigations are to be conducted. If the Monitor is unwilling to do more than audit and push paper for $1.5 million a year, the Federal Court and the parties need to find some one else to get the job done. Otherwise the city in all likely looking at 6 more years of failed progress and millions more.

_______________________________________________

POSTCRIPT

On Saturday, February 20, the Albuquerque Journal published the following editorial:

HEADLINE: Amid a Crime Wave, APD Gets Another Layer Of Bureaucracy?

Albuquerque remains in the throes of a crime wave that has held the city in its deadly grip for years. And 2021 is no exception. Homicides in January were at or near record levels. News coverage and neighborhood social media are replete with posts of people hearing gunshots, vehicles being stolen and strangers wandering through yards and driveways, checking for unlocked doors on homes and vehicles.

Mayor Tim Keller’s administration has made adding Albuquerque Police Department officers a priority and has made progress. Still the response to many of these calls from a chronically understaffed APD is: File a report. We don’t need to see your security camera video.

Meanwhile, the homicide unit has a huge backlog of cases and a depressing clearance rate. After major missteps in high-profile investigations like the Victoria Martens and Jacqueline Vigil murders, it’s clear the unit needs more staff, expertise and training. And Thursday, APD revealed it has just four narcotics detectives.

So what’s next on deck on the APD priority list?

Incredibly, it is hiring from four to 29 outside investigators to oversee the work being done by APD’s Internal Affairs unit in reviewing use-of-force complaints against officers. That higher number is almost comical in view of the fact that IA now numbers 15 officers with a mandate to increase the number to 25.

It is part of a stipulation order reached by the city, the Department of Justice and Monitor James Ginger, who has so far been paid $7.5 million to oversee a reform agreement APD entered into with the DOJ in 2014 after DOJ found a pattern of unconstitutional use of force in policing. Ginger issued his 12th status report last November, blasting APD’s processes in reviewing use of force. He said the department was on the brink of catastrophic failure – which is worth noting since it has been six years of his oversight and two years of the current administration at City Hall.

The city’s plan is in response to that 12th report and designed to head off a possible contempt proceeding, which could lead to receivership.

According to the order, which is awaiting action by U.S. District Judge James Browning, the new investigators would report to a yet-unnamed outside administrator and “for each use-of-force investigation evaluate the quality of the IA force personnel’s investigations and immediately notify APD and APD’s legal counsel of any deficiencies or misconduct by IA personnel related to their investigations.”

The order also mandates increasing the number of IA investigators to 25 – which could be hard to do since police officer union President Shaun Willoughby says some of the ones there now want out. The city said the number of investigators of the investigators could be anywhere from four to 29 – a range that in and of itself raises questions. Do we need four people or seven times that many? Seriously? Ginger, of course, would get another contract extension and more money.

This isn’t to say constitutional policing isn’t important, or that APD isn’t guilty at times of use of force outside the detailed policies that have been developed. But there has been – thankfully – a marked reduction in the kinds of misconduct that led to the agreement in the first place.

Things like overwhelming and improper SWAT response or sending a couple dozen officers and K-9s to a report of a couple drunk guys fighting on a bench, one who pulled a knife. De-escalation has become a priority. Meanwhile, Interim Chief Harold Medina has noted a number of people involved in shooting incidents with APD had methamphetamine in their system – which makes de-escalation all the more challenging. Meth and guns are a tough mix.

What might have sounded like good news – just 3.7% of use-of-force complaints sustained in 2018, 1.7% in 2019 – was in essence dismissed by Ginger and used as an exhibit to support his contention IA was just going through the motions. The monitor’s complaints now center on process, so the answer apparently is to police the police who police the police, all at taxpayer expense and at a time the public is fed up with crime. City councilors should ask some hard questions about this new deal.

The link to the Journal editorial is here:

https://www.abqjournal.com/2361529/amid-a-crime-wave-apd-gets-another-layer-of-bureaucracy.html

The Public Relations Firm Of “Keller & Medina” Promote “Big Lie” On Reducing Crime; 1,000 Arrests In 6 months Out Of 15,000 Average A Year Not Enough To Bring Crime Rates Down

On Thursday, February 18, the public relations firm of “Keller & Medina” held a press conference to tell the public “they mean business” when it comes to fighting crime and to discuss enforcement actions by the Albuquerque Police Department (APD) over the last 6 months. The public relations “dynamic duo” received news coverage by Channel’s 4, 7, 13 and the Albuquerque Journal as they released information on 6 months of what they referred to as “increased” enforcement efforts.

Links to the news coverage are here:

KOAT

https://www.koat.com/article/apd-trying-to-get-violent-suspects-guns-drugs-off-the-streets/35555491

KOB

https://www.kob.com/albuquerque-news/keller-details-proactive-strategies-to-tackle-crime-in-albuquerque/6017378/?cat=504

KRQE

https://www.krqe.com/news/albuquerque-metro/mayor-keller-apd-leaders-to-highlight-results-of-anti-crime-operations/

ALBUQUERQUE JOURNAL

https://www.abqjournal.com/2361149/apd-touts-1000-arrests-in-anti-crime-efforts.html

According to the media dynamic duo Keller & Medina, they mean business! APD has arrested more than 1,000 people, seized nearly 150 guns and recovered more than 125 stolen vehicles in over 20 operations over the past six months. Interim Chief Medina had this to say:

“Since starting our anti-crime operations, we have successfully taken repeat, at times violent, offenders into custody and dangerous weapons out of their hands. … Not only are we bringing these individuals to justice, but also we are seeing the positive effects on our overall crime”

APD spokeswoman Rebecca Atkins chimed in and said the increased enforcement operations have “clearly” impacted crime in the city by recovering more weapons and arresting more repeat offenders than in the past view years. Atkins said the most recent operation, APD’s 22nd, resulted in 56 felony arrests, 31 for warrants, 4 stolen vehicles and 7 guns and 17 misdemeanor arrests, five for warrants.

When asked about the number of narcotics officers the department has right now, compared to past years, Interim Chief Medina said:

“I think it’s right around four right now. That is way less than we had 20 years ago. 20 years ago we had basically three teams of narcotics.”

STUNNING ADMISSION

It is a stunning admission by Medina that APD has only 4 narcotics officers, presumably doing under cover work. FBI statistics over the past 8 years have shown that narcotics trafficking has increased in Albuquerque significantly to the point it is being called and opioid crisis by the United States Attorney. On February 10, 2021, Medina said half of all the officer-involved shootings last year involved people on meth. In 2016, 17 and 18, it was more than 70%. On February 12, 2021 as a matter of sure coincidence with a day before story that meth usage is connected to police shootings, it was reported that a random traffic stop on the West Side in the early morning of February 11, a BCSO Deputy seized duffel bags stuffed with 160 pounds of methamphetamine.

Links to news coverage are here:

https://www.koat.com/article/apd-multiple-shootings-and-crime-linked-to-meth/35474658

https://www.abqjournal.com/2358459/apd-confrontations-often-fueled-by-meth-use-ex-interim-chief-medina-says-solution-is-to-address-lifestyle-and-root-causes.html

https://www.abqjournal.com/2359161/bcso-traffic-stop-yields-more-than-160-lbs-of-meth.html

https://www.kob.com/albuquerque-news/us-attorney-general-blames-mexican-lsquosuperlabsrsquo-for-new-mexicorsquos-growing-violent-crime/5846804/

BREAKING ANOTHER RECORD IN HOMICIDES

The media couple’s presentation was done with the backdrop that the city has had yet another major spike in homicides breaking yet another record. Medina disclosed that APD is investigating 20 homicides in the metro since the start of the new year. By this same time last year, there had been 10 homicides. Only one suspect has been arrested in the 20 murders according to recent reports.

DEVIL IN THE STATISTICS

The cities record breaking number of murders for the last 3 years and now continuing in 2021 are only a small part of the city’s overall violent crime problem. The crime statistics that gage the success or failure of the city’s programs must include not just actual murders but the arrest rates and high violent crime rates. For that reason, those statistics merit review.

HOMICIDES SPIKE DURING THE LAST 3 YEARS

In 2018, during Mayor Tim Keller’s first full year in office, there were 69 homicides. In 2019, during Mayor Keller’s second full year in office, there were 82 homicides. Albuquerque had more homicides in 2019 than in any other year in the city’s history. The previous high was in 2017 when 72 homicides were reported in Mayor Berry’s last year in office. The previous high mark was in 1996, when the city had 70 homicides. The year 2020 ended with 76 homicides, the second-highest count since 1996. The decline dropped the homicide rate from 14.64 per 100,000 people in 2019 to about 13.5 in 2020.

https://www.abqjournal.com/1534762/homicide-numbers-high-despite-pandemic.html?amp=1

HISTORICALLY LOW HOMICIDE CLEARANCE RATES

For the past three years during Mayor Keller’s tenure, the homicide clearance percentage rate has been in the 50%-60% range. According to the proposed 2018-2019 APD City Budget, in 2016 the APD homicide clearance rate was 80%. In 2017, under Mayor Berry the clearance rate was 70%. In 2018, the first year of Keller’s term, the homicide clearance rate was 56%. In 2019, the second year of Keller’s term, the homicide clearance rate was 52.5%, the lowest clearance rate in the last decade. In 2020 the clearance rate has dropped to 50%. Of the 75 homicides thus far in 2020, half remain unsolved. There are only a dozen homicide detectives each with caseloads high above the national average.

On Friday October 23, 2020 the Albuquerque Police Department (APD) released its “Use of Force” report covering a four-year time period from January 1, 2016 to December 31, 2019. The link to the entire use of force report is here:

http://www.cabq.gov/police/documents/2016-19-albuquerque-police-department-annual-use-of-force-report.pdf

The Use of Force report has upwards of 56 bar graphs and charts and 8 maps in the 73-page report. Below are the combined totals in the top 8 blogger “consolidated” categories for the years 2016, 2017, 2018, 2019. The calculations for the 7 categories are based on the raw numbers gleaned from the various bar graphs in the report.

Civilian deaths in 4 years involving APD shootings: 19
Number APD arrests: 58,251
APD “use of force” incidents (Empty hand, TAZER, gun discharge): 2,395
APD “show of force” incidents (Handgun, rifle, TAZER): 1,087
APD firearm discharges: 65
Number of times APD officers displayed a hand gun: 524
Number of times APD officers displayed a rifle: 212
Times APD used “electronic control weapon” (TAZER): 365
Estimated total “calls for service” generating “case numbers” 312,000 to 375,000
(Combined number of cases generated by all 6 area commands)

ARRESTS

The number of arrests for the four years of 2016-2019 are as follows:

2016: 14,022 total arrests made
2017: 13,582 total arrests made
2018: 15,471 total arrests made
2019: 15,151 total arrests made

FOUR YEAR TOTAL OF ARREST MADE BY APD: 58,226

Editor’s Note: Statistics for 2020 not reported in Use of Force report.

VIOLENT CRIME

In 2018 during Mayor Keller’ first full year in office, there were 6,789 violent crimes, 3,885 Aggravated Assaults and 491 Non-Fatal Shootings.

In 2019, the category of “Violent Crimes” was replaced with the category of “Crimes Against Persons” and the category includes homicide, human trafficking, kidnapping and assault. In 2019 during Keller’s second full year in office, Crimes Against Persons increased from 14,845 to 14,971, or a 1% increase. The Crimes Against Person category had the biggest rises in Aggravated Assaults increasing from 5,179 to 5,397.

2020 VIOLENT CRIME STATS

On Monday, September 21, 2020, the Albuquerque Police Department (APD) released statistics that revealed that overall crime in the city is down slightly across all categories in the first six months of 2020 as compared with the first six months of 2019. Crimes against persons are all violent crimes combined and include murder, deadly weapons assault and injury and rape. The decreases in “violent crime” from 2019 to 2020 was a decrease by only 21 crimes or a 0.28%. Over a two year, it decreased 4%. According to the FBI statistics released, there were 7,362 crimes against persons reported in the first six months of 2020 and there were 152 more in the second quarter than in the first.

COMMENTARY AND ANALYSIS

In 2017, Candidate Tim Keller campaigned to get elected Mayor on the platform of implementing the Department of Justice (DOJ) mandated reforms, increasing the size of APD, returning to community-based policing and a promise to bring down skyrocketing crime rates. Mayor Keller no doubt sincerely thought he could do a better job than his predecessor and he could actually make a difference. The truth is, he has not and crime in the city has only become worse since Tim Keller has taken office, especially in terms of violent crime.

Mayor Tim Keller and Interim APD Chief Harold Medina have pushed the “peddle to the metal” and are going full throttle with their public relations campaign to convince the general public and the media that what they have done recently is having a major effect on reducing crime. Keller ostensibly felt that it was so important that he even found a razor to look clean shaven and put on a tie for the cameras as he talked with a smile on his face and a grin in his voice. Truth is that the 1,000 arrests made in the last 6 months in the enforcement efforts are nothing more than a drop in the city’s blood filled crime bucket, especially in view of the fact that the city is once again experiencing another spike in homicides with 20 murders in 6 weeks and only one arrest.

Links to two related blog articles are here:

Interim APD Chief Medina Admits Mayor Keller’s 4 Violent Crime Reduction Programs Are Failures; Neither Have Answers, No Solutions To Stopping City’s Rising Crime; Medina Resorts To Plagiarism

City’s 2020 Mid-Year Crime Rates Reflect Small Decline; Violent Crime Remains High; Arrests Made Are Fraction Of Crimes Committed; Dr. Keller Has Failed To Find A Vaccine For High Crime Rates

City Will Buy Former Lovelace Hospital For “Gateway Center” For Another $2 Million For Total $15 Million; What Timmy Wants, Mayor Keller Gets

Since being sworn in on December 1, 2017, Mayor Tim Keller made it known that building a homeless shelter was one of his top priorities. City Hall had deemed that a 24-hour, 7 day a week temporarily shelter for the homeless as critical toward reducing the number of homeless in the city. The city owned shelter was projected to assist an estimated 300 homeless residents and connect them to other services intended to help secure permanent housing. The new facility would have served all populations of men, women, and families. Further, the city wanted to provide a place anyone could go regardless of gender, religious affiliation, sobriety, addictions, psychotic condition or other factors.

The city facility was to have on-site case managers that would guide residents toward counseling, addiction treatment, housing vouchers and other available resources. According city officials, the new homeless shelter would replace the existing West Side Emergency Housing Center, the former jail on the far West Side. The west side facility is unsustainable costing over $1 million in transportation costs a year for the homeless. The goal was for the new homeless shelter to provide first responders an alternative destination for the people they encounter known as the “down-and-out” calls.

On November 5, voters approved a general obligation bond package of $128 million which included $14 million for the city operated 24-7 homeless shelter. The actual cost was to be $32 million. The City asked the 2020 New Mexico Legislature for an additional $14 million to complete phase two of the project, but the funding request failed.

Notwithstanding Mayor Keller’s desire for a city run shelter, and the bond approval, there were many critics of the proposal. The critics included downtown business organizations such as the Greater Albuquerque Business Association (GABA) and neighborhood associations that mounted strong opposition. Critics argued against mixing populations and argued that a large facility would unduly burden any one neighborhood or business area of the city. Bernalillo County officials, homeless service providers and residents of neighborhoods surrounding potential locations seriously questioned the city’s efforts for a one centralized shelter.

KELLER ABANDONS SINGLE GATEWAY CENTER CONCEPT

On Wednesday, May 7, 2020, Mayor Tim Keller conducted one of his daily briefings on the City’s response to the Corona Virus. However, he dedicated most of the briefing to report on the “Gateway Center.” Participating in the briefing were Chief Operating Officer (COO) Lawrence Rael and City Council President Pat Davis. The FACEBOOK video link to the press briefing is here:

https://www.facebook.com/MayorKeller/videos/290814465247439/UzpfSTEwNTQ4MTY4OTY6MTAyMjAwNDA5NDYxMDgwMTQ/

In a surprise announcement, Keller said that the city was abandoning the development concept of a single, 300-bed homeless shelter. He announced the city will be proceeding with a “multi-site approach” to the city’s homelessness crisis. Mayor Tim Keller went so far as to state that the 300 bed Gateway Center was “off the table”.

Keller said the corona virus crisis has highlighted the need for an alternative to the city’s existing shelter, which is the former jail 20 miles from downtown and he said:

“The coronavirus has also shown us how important this is. … The amount of funding and logistics we have to deal with going back and forth to the West Side … is extremely hard.”

MULTI-SITE APPROACH

When the city abandoned plans to build one large homeless shelter, city officials said the new multi-site approach could mean a series of “smaller facilities” throughout the community. Ostensibly, there would be no single resource hub in one large facility as was originally proposed with the 300 bed Gateway Center.

City Family and Community Services Director Carol Pierce offered insight into what the city means when it refers to small shelters and had this to say:

“We’re often talking 100 to 150 beds of emergency shelter that could be defined as a smaller shelter.”

CITY MAKES OFFER TO BUY LOVELACE HOSPITAL COMPLEX ON GIBSON

In an attempt to buy the first Gateway location, the city made an offer to buy the former Lovelace hospital on Gibson Boulevard in Southeast Albuquerque for $13 million.

The Loveless facility is a 529,000-square-foot building and upwards of 50% of it is said to be vacant. The facility has a 201 bed capacity, but remodeling could likely increase capacity significantly. According to one news report, an estimated $10 million in upgrades in the Lovelace Hospital Complex, including remodeling for specific tenants, improving common areas and the parking lot and installing a 540-ton cooling unit out back were made by investor owners. Parts of the building date back to 1950 and what was then known as the Lovelace Clinic, and as a result the need for any asbestos remediation is subject to speculation and has not been reported on by the news media.

https://www.abqjournal.com/774956/medical-center-at-old-lovelace-hospital-might-expand-to-other-uses.html

According to one report and analysis released by the city, the cost to purchase the Lovelace Hospital Complex would be $14 million in acquisition and renovation costs. It was in 2007 Lovelace Medical Center closed down. It was later purchased by local private investors.

On Thursday, December 17, 2020 Mayor Tim Keller did not give a specific answer when asked how many emergency shelter beds the city may include at the Lovelace facility if purchased. Keller called the planning “fluid” since the city has not yet acquired the property. Other city officials said the Lovelace site may have other uses beyond shelter beds, including behavioral health services and medical care.

A link to news source material quoted is here:

https://www.abqjournal.com/1527950/city-official-smaller-shelter-means-100-150-beds.html

DONATION TO CHARITABLE FOUNDATION

The investors who purchased the former Lovelace Hospital on Gibson were Jimmy Daskalos and Nick Kapnison. Nick Kapnison is one of the owners of “Nick and Jimmy’s” Restaurant, Mikinos Creek Restaurant and Papa Fillipes. Mr. Nick Kapnison is a highly respected businessman and community activist.

The Albuquerque Journal reported that Nick Kapnison donated $3,500 to Mayor Keller’s Charitable Foundation. The Charitable Foundation has raised $250,000 from private donors for city initiatives.

The Mayor’s Charitable Foundation has given the City $20,000 to provide housing vouchers for the homeless.

The link to the Journal report on the donations is here:

https://www.abqjournal.com/1421506/familiar-businesses-back-abq-foundation.html

LAWSUIT FILED AND SETTLED

The city’s attempted purchase of the Lovelace property was in serious jeopardy. The facility and property became embroiled in a highly contested lawsuit between the two former business partners who owned the property, Nick Kapnison and Jimmy Daskalos.

Daskalos and his wife sued Kapnison and the city last October to try and stop the sale. It was alleged that Kapnison violated the parties’ previous agreement, was selling the property over their objections, and that he was accepting too low a price. The lawsuit contended that a 2020 appraisal had valued the property at $18.5 million.

According to a news report, the city entered into a $13 million purchase agreement for the property with Nick Kapnison. Jimmy Daskalos sued both the City and Kapnison to stop the purchase. Daskalos and his wife alleged breach of contract. They claimed Kapnison sold the Gibson Medical Center against their wishes, that he violated the terms of a “power of attorney” given to him and offered the property at less than a “commercially reasonable” price in violation of his fiduciary responsibilities. Mr. Kapnison denied the accusations.

Court pleading file reveal the Daskaloses still owed Kapnison $4.5 million as part of a 2020 buyout agreement terminating the Kapnison and Daskalos long time business relationship. That debt was secured by the Gibson Medical Center and other property.

The city filed a counterclaim against Daskalos. The denied the Daskalos allegations, contending in its response and counterclaim that Kapnison had the legal authority to negotiate the sale in that he had a power of attorney. The city also disputes the claim that the purchase price is far below the property’s value. Soon after the city filed a counterclaim, the city entered in to settlement negotiations.

https://www.abqjournal.com/1534612/citys-planned-shelter-site-embroiled-in-lawsuit.html

On February 18, 2021 it was reported that the Keller Administration agreed to pay another $2 million to buy the former Lovelace hospital for its long-awaited Gateway Center. The settlement raised the total purchase price to $15 million and resolved the city’s involvement with the litigation. over the property’s ownership.

The link to the news story reporting on the settlement is here:

https://www.abqjournal.com/2360797/city-settles-lawsuit-over-old-lovelace-hospital.html

KELLER’S CHARTIABLE FOUNDATION

On January 7, 2019, Mayor Tim Keller announced the creation of the One Albuquerque Foundation. It’s a foundation formed by the city to collect donations from the general public to support city initiatives and projects. According to the city’s website page:

“… the endowment Fund raises funds in support of and to supplement measurable city priorities, including the housing voucher program for people experiencing homelessness, recruiting and retaining public safety officers, expanding opportunities for young people in Albuquerque, and equipping our workforce with the skills they need to succeed. Additional funding for these priorities will accelerate progress and help scale significant investments the City is already making go much farther, much faster.”

On February 7, 2020 the Albuquerque Journal reported that the Albuquerque One Foundation has raised nearly $250,000. Records provided by the city pursuant to a request for public records show most of the money is not coming from individual citizens but rather a cross section of well-known businesses and individuals. The donations that make up the $250,000 are not small donations from people but are in the thousands made by a few.

https://www.abqjournal.com/1421506/familiar-businesses-back-abq-foundation.html

All told, 35 entities and individuals donated $248,250 to the fund. A breakdown of the large donations included Nick Kapnison, owner of Nick and Jimmy’s Restaurant, Mikinos Creek Restaurant and El Patron Mexican Restaurant for a donation of $3,350. Restaurants must maintain a license to do business with the city and are subject to the zoning and code enforcement regulations including health code inspections.

Mayoral spokeswoman Jessie Damazyn at the time confirmed that many contributions made to the One Albuquerque Foundation came in response to face-to-face requests made by Mayor Tim Keller himself to meet with donors. Damazyn did not say exactly how many of the existing donors Keller met with personally to solicit contributions, but said that he had talked with “nearly all” of those on the list of 35 as well as many others “in contexts from coffees to community events to speaking engagements about how they can play a role from volunteering to donating.”

A link to a related blog article is here:

https://www.petedinelli.com/2020/02/22/mayor-keller-needs-to-knock-it-off-fundraising-for-his-charitable-foundation-abq-journral-weighs-in-inspector-general-needs-to-review/

COMMENTARY AND ANALYSIS

The size and scope of the shelter component at the Lovelace facility is likely to be a major source of contention with area neighborhood residents objecting to its use for the homeless. The city planning department reports the property’s zoning does not impose a bed cap, which no doubt is problematic for the neighborhood. The City could decide to unilaterally fill the facility with the original 300 beds as proposed for the original 24 – 7 homeless shelter facility.

The zoning for the Gibson Lovelace facility does allow an overnight shelter as a “conditional use,” something the city could, and would, consider pursuing if necessary. “Conditional use” permits often generate controversy and oppositions and require a public hearing. Conditional uses are granted only if there are no significant adverse impacts to surrounding areas.

If the purchase of the Lovelace facility goes through as is anticipated now that the civil case is settled, the Keller Administration will likely unilaterally fill the facility with the original 300 beds. It that happens, it will be viewed justifiably as nothing more than a “baite and switch” scheme where Mayor Tim Keller first wants a single facility, changes his mind for multiple smaller facilities only to turn around to change his mind again.

On Thursday, December 17, when Mayor Tim Keller did not give a specific answer when asked how many emergency shelter beds the city may include at the Lovelace facility if purchased Keller called the planning “fluid”. It’s more likely than not Keller knew what his end game and goal was all along, but did not disclose it to the public. This coming from a Mayor who has promised transparency and ethics in government.

WHAT DID KELLER DISCUSS AND WHEN DID HE DISCUSS LOVELACE PURCHASE?

The propriety of Mayor Tim Keller scheduling meetings to solicit private denotations for his charitable foundation from those who do business with the city or who interact with city departments and who want to talk with him is so very, very wrong on so many levels with respect to ethical conduct and the appearance of impropriety. The solicitations by Mayor Keller during city business smacks of “pay to play” at worst and at best gives the appearance of impropriety and the exertion of political influence to compel donations from those who do business with the City of Albuquerque, either by contract or being regulated by city departments.

Large donations made in the political world more likely than not come with the expectations of at least access to the elected official or a candidate and even commitments to be performed. What is very disturbing is that Keller had his office arranged the meetings, had the private conversations, but nothing was disclosed as to what was discussed, how the donation amounts were determined nor what commitments, if any were made, by Keller to the donors or the donors to Keller. No one knows for certain what private conversations nor commitments Keller had regarding the Lovelace hospital purchase.

It is a pathetic practice for any government entity and its elected Mayor to solicit donations from the general public to carry out its duties and responsibilities to the public. In the eyes of many city hall insiders, observers and a few city hall confidential sources, Keller engaged in unethical conduct with his Charitable Foundation, but his top Administration Officials have gone along with it without any objection because he is “the Mayor” and always gets what he wants very much like a spoiled child.

With the purchase of Lovelace Hospital for his Gateway Center, what Timmy wants, Mayor Keller gets.