On Wednesday, June 9, Federal District Court Judge James Browning held an all day long Status Conference on the Court Appointed Monitor’s 13th Independent Monitor’s Report (IME -13) As has been the case for the last year during the pandemic, the hearing was held via Zoom Video/Web Conferencing with upwards of 110 in attendance.
The Department of Justice (DOJ) in accordance with its established practice in this case, filed “Notice Letters from the Court’s Amici And Stakeholders” established or recognized by the Court-Approved Settlement Agreement (CASA) . The letters set forth the issues and concerns the parties wish to address with the Court during the June 9, 2021 Public Hearing.
Seven ‘Notice Letters’ were filed by the various stakeholders including from APD Forward Coalition, the Amicus McClendon Sub-Class and the Community Coalition. All three of these stake holders in their letters asked in one form or another that the APD Police Union be held in contempt of court for intentional interference with the Court Approved Settlement Agreement with its political ad campaign and disparaging the CASA reforms.
POLICE UNION POLITICAL PUBLIC RELATONS CAMPAIGN
On April 27, 2021, it was widely reported by local news media that the Albuquerque Police Officers Association (APOA) launched a $70,000 political ad campaign to discredit the Department of Justice (DOJ) mandated reforms saying the police reforms are preventing police officers from doing their jobs and combating crime. The Police Union political ad campaign consisted of billboards around the city and testimonials on TV, radio and social media from former Albuquerque Police Department officers. The public relations campaign is urging the public to tell city leaders that crime matters more than the Police reforms mandated by the settlement. The union has reported that almost 10,000 emails had been sent to the city.
JUNE 9 STATUS CONFERENCE HEARING
During the June 9 status conference hearing, presiding Federal Judge James Browning asked the Plaintiff Department of Justice (DOJ) and the Defendant City of Albuquerque if they had the “appetite” to seek and to have the Intervenor Party the Albuquerque Police Officers Association held in contempt of court and be removed as a party to the litigation. Judge Browning has previously said he would not take any action in the case unless requested by both of the parties.
During the hearing both the City and the DOJ declined to ask for the police union to be held in contempt of court, essentially ignoring the wishes of the 3 advocacy groups that were instrumental in bringing the DOJ here in the first place. It was during the last hearing on the 12th Federal Monitors report that the advocacy groups had advocated that APD be placed into receivership because of the City’s willful failure to implement the reforms.
FEDERAL MONITOR’S RESPONSE TO UNION AD CAMPAIGN
Judge Browning asked Federal Monitor James Ginger if he felt that the settlement reforms was leading to higher crime and what he thought of the police unions ad campaign. On June 9, Ginger told the court:
“[The accusation that the settlement is the cause of higher crime is] a union canard. We’ve talked about the counter-CASA effect in Albuquerque for years and years, and it is still alive and well. This latest process from the union is just another piece of counter-CASA. The union would like us out of town, I’m sure, and remember this monitoring team – as much as we love Albuquerque – would be glad to be done with the job. But we’re not going to give passing scores unless passing scores are earned. … [if the city] will actually focus on compliance” [it could be done with the CASA in 2 to 3 years]. … We’re constantly making the same recommendations over and over and over again,” Just like this time – 190-plus recommendations. It’s a get-out-of-the-CASA-free card, those 190 recommendations. What’s dragging this out, quite frankly, your honor, is a police department not focusing its resources on complying with the CASA.”
FOUR AREAS OF CONCENTRATION IDENTIFIED
During the June 9 hearing, Federal Monitor Ginger told the court that APD needs to concentrate on 4 major areas:
1. APD needs to concentrate and re- build the APD Academy, strengthen its programs and training and establish effective management oversight to ensure it goals are attained.
In his 13th Independent Monitors Report, the Federal Monitor wrote:
“This monitor’s report can be synopsized in a single sentence. Due to a catastrophic failure in training oversight this reporting period and similar failures at the supervisory and command levels of APD, the agency suffered a 9.9%-point loss in compliance elements related to the training and supervisory functions at APD and a 7.8% loss in overall compliance …. Overall, there is an argument to be made that operational compliance rates have held relatively steady, at slightly less than 60 percent, since IMR-8, two and one-half years ago.”
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2. APD needs to spend more time on a employing a “cadre” of managers who are committed to the reforms and who can get the job done on implementation.
3. Executive decisions must be made that are consistent t with best practices.
4. APD needs to institute “quality improvement” mechanisms on the reforms, which is the only way APD will come into compliance with the reforms.
DOJ AND CITY’S RESPONSE TO CONTEMPT OF COURT REQUEST
Department of Justice Attorney Paul Killebrew was asked point blank by Judge Browning if the DOJ had had the “appetite” to seek contempt against the police union over the ad campaign and if the Union should be thrown out as a party to the case. Killebrew response was quick and he said in part:
“The Albuquerque Police Officers’ Association, and indeed, the officers of the APD who are its members, have a First Amendment right to speak on a matter of public concern, and they are exercising those rights. I will say that it was not a surprise to me personally to know that the APOA would like the city to renegotiate some terms of the CASA. That has been a flavor of their position from the outset, and so I don’t take that as a surprise. I will say that at any time we are willing to hear out anyone’s proposals for how the CASA can better achieve its aims and whether modifications may be necessary.”
Killebrew then went on to add that although the Police Union was a Third-Party Intervenor, only the Plaintiff DOJ and the Defendant City have signed the Court Approved Settlement Agreement (CASA) and therefore the police union cannot be held in contempt of court for violating the Court Approved Settlement Agreement. Killebrew deliberately ignored the fact it was the Plaintiff DOJ and the Defendant City who agreed to allow the union to become a third party. Killebrew also down played the fact that the Union has signed off on other court orders modifying the CASA. If the DOJ and the city agreed that the police union could intervene, they have the right to ask the court to dismiss the union from the case. Judge Browning never ruled that the Union could not be held in contempt of court, but said he declined to do so unless asked by the parties.
City of Albuquerque Chief Administrative Officer Sarita Nair attended the June 9 hearing and was asked by Judge Browning about the union ad campaign and if the police union should be held in contempt of court. According Nair, the union’s political ad campaign was a failure. She said that in the 6 weeks since the union launched the ad campaign the city had received emails from about 820 individuals. In comparison, Nair said when the city asked for input on a recent gas tax measure, 6,600 people wrote in across both sides over the course of three days. Nair gloated with sarcasm and a snicker over the failure of the police union ad campaign when she said:
“In terms of what actually happens in the larger context of public input, this was a negligible effort … I appreciate that they spent [$70,000], you know, $85 per unique user, but it doesn’t really change the impact. And I believe that seeking sanctions at this point is just going to become a sideshow.”
CAO Nair further took issue with the federal monitors assessment that the city has not done enough in response to the 13th Monitors report which covers the period from August 2020 through January 2021. According to Nair, many of the Monitor’s recommendations are easier said than done and she said:
“We also do not have the luxury of believing that moving from reactive to proactive is simple to do or that we need to just buckle down, and that all it takes is to read the report and do what it says. I’m sure it seems like that from the outside, but there’s a lot of work.”
CAO Nair told the Court that in response the 13th Federal Monitors Report that the city hired in May Jessica Henjy, who is the APD Academy Curriculum Development Manager and has hired Renae McDermott, who will start work as APD Academy Commander in July. APD Superintendent Sylvester Stanley was also hired as superintendent of police reform and to oversee the Internal Affairs division, the academy and the reforms.
POLICE UNION’S RESPONSE
During the June 9 hearing, APOA president Shaun Willoughby and attorney John D’Amato were asked to respond to the allegation that the goal of the union ad campaign was to end the settlement agreement or that they are “counter-CASA.”
Union Attorney John D’Amato had this to say:
“Fighting crime in this community and engaging in the reform process are not incompatible.”
However, in response to questions from Judge Browning, Willoughby gave what can only be described as an emotional and unhinged statement to the court. Willoughby freely acknowledged that he does not believe that the city can be in compliance with the CASA and simultaneously lower crime rates.
With respect to the Court Approved Settlement Agreement, Willoughby had this to say:
“Is it the No. 1 reason for the crime in Albuquerque? No, but it’s a contributing factor.”
Willoughby also told Judge Browning he stood by his comments he made to the media when he said:
“You can either have compliance with DOJ reforms or you can have lower crime. You can’t have both.
https://www.abqjournal.com/2398400/police-union-wont-be-held-in-contempt.html
The rest of the comments made by Willoughby to the media are:
“We think it’s time that our city leaders hear from the public that crime matters more because it does. … They want to focus on the growing crime problem, instead of wasting millions of dollars on endless Department of Justice oversight. … This conversation of reform needs to come back to common sense. … Right now, the City of Albuquerque capitulates to everything the DOJ wants and that might not necessarily be the right direction for the City of Albuquerque. … You don’t need enemies when you have friends like the city attorney. … We believe that our community deserves better from this police department. … We believe our community deserves better from this consent decree process.”
Willoughby told the Court that APD morale is in a complete melt down, that all of the 70 lateral hires and returned retirees from 3 years ago are now eligible for retirement and are scheduling to retire in July, that APD officers are leaving in in droves, that officers are afraid they will be disciplined for small infractions that will destroy their careers. According to Willoughby, the number one question he gets from police officers is if they can file a lawsuit for hostile working environment. Willoughby also stated many recently hire police officers are looking to leave the department and that they are “absolutely miserable”.
Judge Browning asked Willoughby how long it will be before the case can be dismissed and he responded at least 6 more years. Judge Browning then asked if that were the case, what was the purpose of the spending $70,000 for the ad campaign and Willoughby said the union wanted to provide the public with an opportunity to tell the city that the CASA should be dismissed.
UNION MEMEBERSHIP OF SERGEANTS AND LUITENANTS IS THE COUNTER CASA EFFECT
The most misleading and inaccurate comments made to Judge Browning by APOA President Shaun Willoughby during the June 9 hearing was his denial that the union is the “counter casa” effect. Willoughby boldly and defiantly claimed that the police union does not have the “power” to undermine the CASA reforms. Neither the DOJ nor the City objected to the comments.
Willoughby also said that there is no problem with Sergeants and Lieutenants, who are management, being part of the union. Willoughby went on to say that Sergeants and Lieutenants have been part of his union for years. He ostensibly has forgotten the APD Captains, now called Commanders, were removed from the union bargaining unit many years ago because they are management.
It was on September 10, 2018, at a status telephone conference call held with the Federal Judge assigned the case that Federal Monitor Dr. James Ginger first told the federal judge that a group of “high-ranking APD officers” within the department were trying to thwart reform efforts. The Federal Monitor revealed that the group of “high-ranking APD officers” were APD sergeants and lieutenants. Because sergeants and lieutenants are part of the police bargaining unit they remained in their positions and could not be removed by the APD Chief. Federal Monitor Ginger referred to the group as the “counter-CASA effect.”
Ginger described the group’s attitude as <em>“certainly ambivalent” to the reform effort and the CASA. According to the transcript of the proceeding, Dr. Ginger told the Judge:
“The ones I’m speaking of are in critical areas and that ambivalence, alone, will give rise to exactly the sort of issues that we’ve seen in the past at the training academy. … So while it’s not overt, you know, there’s nobody sabotaging computer files or that sort of thing, it’s a sort of a low-level processing, but nonetheless, it has an effect. … It’s a small group, but it’s a widespread collection of sworn personnel at sergeant’s and lieutenant’s levels with civil service protection that appear to be, based on my knowledge and experience, not completely committed to this process … It is something that is deep-seated and it’s a little harder to find a quick fix or solution to it, but I think, in the long term, by having this foundation with new leadership and a new direction from the top down, we should be able to get through this and survive it.”
The entire 53-page transcript of the conference call can be read here:
In his 10th report Federal Monitor Ginger referred to the group as the “Counter-CASA effect” and stated:
“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.
“Some members of APD … resist actively APD’s reform efforts, including using deliberate counter-CASA processes. For example, … Collective Bargaining Agreement (CBA) disciplinary timelines, appear at times to be manipulated by supervisory, management and command levels at the area commands, letting known violations lie dormant until timelines [mandated by the union contract] for discipline cannot be met.”
In his 12th Monitor’s Report, Dr. Ginger states:
..APD Internal Affairs routinely permits officers and union representatives to hijack internal fact-finding.
… “[There] are strong under currents of Counter-CASA effects in some critical units on APD’s critical path related to CASA compliance. These include supervision at the field level; mid-level command in both operational and administrative functions, [including] patrol operations, internal affairs practices, disciplinary practices, training, and force review). Supervision, [the] sergeants and lieutenants, and mid-level command, [the commanders] remain one of the most critical weak links in APD’s compliance efforts.
… Many of the instances of non-compliance seen in the field are a matter of “will not,” instead of “cannot”! The Monitor … report[s] … he see actions that transcend innocent errors and instead speak to issues of cultural norms yet to be addressed and changed by APD leadership.”
… Supervision, which includes Lieutenants and Sergeants in the union, “needs to leave behind its dark traits of myopia, passive resistance, and outright support for, and implementation of, counter-CASA processes.”
UNION CONTRACT VIOLATES NEW MEXICO PUBLIC EMPLOYEES BARGANING ACT
Section 1.3.1 of the police union contract provides:
“The APOA is recognized as the Exclusive Representative for regular full time, non-probationary police officers through the rank of Lieutenants in the APD … .
The 65 page APOA police “Collective Bargaining Agreement” (CBA) can be down loaded as a PDF file at this link:
https://www.cabq.gov/humanresources/documents/apoa-jul-9-2016.pdf/view
THE NEW MEXICO PUBLIC EMPLOYEES BARGANING ACT
The New Mexico Public Employees Bargaining Act, Sections 10-7E-1 to 10-7E-26 H (NMSA 1978), governs the enforcement of the city’s collective bargaining agreement with the APD police union. The link to the statute is here:
https://www.pelrb.state.nm.us/statute.php
The Section 10-7E-5 provides as follows:
“Public employees, other than management employees and confidential employees, may form, join or assist a labor organization for the purpose of collective bargaining through representatives chosen by public employees without interference, restraint or coercion and shall have the right to refuse any such activities.”
The link to Section 10-7E-5 is here:
https://www.pelrb.state.nm.us/pdf/statutes/10-7E-5_Rights%20of%20public%20employees.pdf
COMMENTARY AND ANALYSIS
The DOJ and the City do not have an “appetite” to do the right thing to be aggressive enough to get the job done. After 6 years and millions spent on the reforms, APD is no closer to complying nor implementing the reforms than it was six years ago and it’s only going to get worse.
It’s extremely disappointing that the Department of Justice, the City of Albuquerque and the Federal Monitor see nothing wrong with the $70,000 ad campaign the Police Union engaged in to disparage and interfere with the implementation of the reform process and the Court Approved Settlement Agreement. What is even more disappointing is that Federal Judge Browning stated on June 9 and before that he will not take any action in the case unless he is asked to by the DOJ and the City.
It is now twice within the last year that the various stakeholders and the friends of the court, the very groups that sought to bring the DOJ to the city to investigate APD’s excessive use of force and deadly force and the culture of aggression, have essentially been ignored by the DOJ, the city and the court. First, the Court refused to appoint a receiver to take over APD when asked last year and now the court declines to hold a party in contempt of court for overtly attempting to interfere with the reform process.
What makes the Court’s refusal to take any action far more disappointing is the fact that Peter Cubra, the attorney for Amicus McClendon Sub-Class, on June 9 actually begged in open court that Judge Browning exert his authority and take action in the case. APD Forward and Amicus Community Coalition also asked the court to take action in their letters. .
COURT SHOULD ORDER REMOVAL OF SERGEANTS AND LIEUTENANTS FROM POLICE UNION
It was downright offensive and arrogant for Federal Monitor James Ginger to say during the June 9 hearing that the City and APD need to “spend more time on a employing a cadre of managers” who are committed to the reforms and who can get the job done on implementation. The Federal Monitor knows damn well that it is the Sergeants and Lieutenants that need to be that “cadre”. Ginger himself has said Sergeants and Lieutenants are where the “rubber meets the road” when it comes to police reforms. The point that has been repeatedly made by the Federal Monitor is that “until the sergeants are in harness and pulling in the same direction as the chief, things won’t get done as quickly”. In other words, without the 100% support of the sergeants and lieutenants to the CASA mandated reforms, there will be little or no progress made with police reforms.
The Federal Monitor has declined to make any recommendation to the court remove the Union as a party to the case nor even demand that Sergeants and Luitenants be removed from the union and made at will employees. APD sergeants and lieutenants, even though they are part of management with supervisory authority over sworn police officers, are not “at will” employees and they are allowed to join the police union and benefit from its civil service protection. . Including sergeants and lieutenants in the collective bargaining unit creates a clear conflict within management and sends mixed messages to rank and file sworn police officers.
APD police sergeants and lieutenants are on the front line to enforce personnel rules and regulations, standard operating procedures, approve and review work performed and assist in implementing DOJ reforms and standard operating procedures policies.
Sergeants and lieutenants need to be made at will employees and removed from the police union bargaining unit in order to get a real buy in to management’s goals of police reform and the CASA. APD Police sergeants and lieutenants cannot serve two masters of Administration Management and Union priorities that are in conflict when it comes to the CASA reforms. Until sergeants and lieutenants are removed from the union and made at will employees, do not expect the CASA reforms.
The New Mexico Public Employees Barganing act is very clear that “management employees” are prohibited from joining the police union for the rank and file, yet the City for years has allowed APD Lieutenants and Sergeants to be part of the collective bargaining unit that represents lower ranking officers.
Judge Browning should enter a sua sponte order removing Lieutenants and Sergeants from the police union. Otherwise, the union no doubt will be embolden to continue with disruptive nonsense to disparage the Federal Court Approved Settlement Agreement and the mandated reforms.