On December 16, Federal Judge James Browning held an all-day hearing on the 14th Federal monitor’s report on APD’s compliance with the Court Approved Settlement Agreement. The Federal Monitor, the Department of Justice, the City, APD and the police union all gave statement to the court.
This blog article is an in-depth summary of the 14th Federal Monitors Report and major highlights of the December 16 hearing on the report.
(EDITOR’S NOTE: Many thanks to Attorney Allen Wagman and Freelance Reporter Charles Arasim who both contributed the information on the hearing with Pete Dinelli solely responsible for the Commentary and Analysis.)
BACKLOG OF USE OF FORCE CASES SEVERLY CRITICIZED
Albuquerque Police Department’s (APD) Internal Affairs Force Division was severely criticized by Department of Justice (DOJ) attorneys for the monitor’s findings that 155 use-of-force cases were not assigned to investigators during the 6 month monitoring period. The DOJ attorneys described the failure as a “work stoppage.”
DOJ Attorney Jared Hager put it this way:
“The backlog means APD doesn’t even know whether or not officers are violating the Fourth Amendment and that’s a scary thought. … This core failure echoes our findings of excessive force, which gave rise to the Court Approved Settlement Agreement (CASA) 7 years ago. We found then that driving the problem of unconstitutional force was inadequate investigations and the unwillingness on the part of supervisors and command staff to hold officers accountable when force was used.”
SUMMARY OF 14TH FEDERAL MONITOR’S REPORT
The magnitude of the “backlog” dominated the discussions during the all-day federal court hearing before Judge Browning. For that reason, the summary of what the Federal Monitor found in his 14th report merits quoting and is as follows:
“All non-force-related misconduct investigations completed by APD … were found to be deficient. A total of 17 misconduct cases, 6 investigated by Internal Affairs and 9 area command investigations were reviewed, including two that were completed by outside agencies.
The only properly investigated case reviewed by the monitoring team … was completed by an outside agency. In two consecutive reporting periods, a virtual shut down of use of force investigations has occurred in Internal Affairs.
Only 7, or 3%, of the 216 Level 2 cases opened were closed. Only 1 of those 7 was completed within 90 days, or less than one-half of a percent. Only 2 of 91 Level 3 use of force cases opened during this period were completed by [Internal Affairs Force Division] IFD or 2%. Neither of the 2 cases were completed within the CASA required 90-day period.
… these failings [are] more than notable, given the amount of time the monitoring team spent with APD in the last reporting periods specifically focused on process improvement processes at [the Internal Affairs Force Division] IAFD.
Of the 12 cases reviewed for compliance concerning discipline, only 58% met the requirements for adherence to progressive discipline as outlined in the CASA.
A second backlog of 667 uninvestigated use of force cases … was reported. This second backlog is more than double the initial backlog APD dealt with from 2018-2020 and does not include any of the contemporary cases left uninvestigated by IAFD.
Approximately 83% of these cases are already time-barred for discipline in accordance with the [union contract], should misconduct be found. Since its discovery, this backlog has been reduced from 667 cases to 660 cases (as of October 25, 2021).
At this rate of case productivity, we project that it will take APD 94 months to “clear” this second backlog, which, again, would ensure no disciplinary actions for policy violations in another 667 cases.”
Given the amount of focus on the problems related to [the Internal Affairs Force Division (IAFD) ] investigations in previous monitor’s reports, and the exceptional amounts of technical assistance provided by the monitoring team relating to IAFD processes, we can only conclude that this new backlog was intentional, and yet another canard designed to ensure that officers are not disciplined for known policy violations. We consider this another example of deliberate non-compliance exhibited by APD.
Leadership and supervision, especially in the critical areas of reform listed above, are simply lacking—or in some cases not extant. As such, these findings require direct action by the City and APD leadership to identify the causes of, and to take corrective actions responding to, what can only be described as deliberate failures to comply with existing APD policy and with CASA requirements.
Given the extensive amounts of technical assistance provided by the monitoring team related to misconduct investigations and to workload management, we can only conclude that these jarring failures are deliberate.”
CITY REPONDS TO 14TH FEDERAL MONITOR’S REPORT
On November 14 after the 14th Federal monitors report release, City Attorney Estaban Agular, APD Chief Medina and the Police Union took issue with the accusation that the backlog was “deliberate non compliance.”
City Attorney Esteban Aguilar, Jr. had this to say:
“Using … inflammatory hyperbolic language is improper editorializing in a whole lot of areas. … It improperly ascribes intent to the work of our officers, the women and men who are on the ground, trying to not only keep us safe, but trying to implement all of the provisions of constitutional community-based policing.”
… I think it does a disservice to the work of the department, but also the work of the community members who have been engaged in this process, and who have been actually asking for meaningful change as well, because we’ve been walking with them step by step throughout this process.”
APD Chief Medina condemned the 14th Federal Monitor report saying it’s easy for someone who is “thousands of miles away” to point at APD’s problems and saying it’s intentional. Medina claims that everyone is working to comply in the best way they can and he had this to say:
“It’s a matter that we don’t know how to do stuff to their liking, or to their standards. … I think that’s been a problem from the very beginning is that instantly when APD fails, they’re tagged by the monitoring team, DOJ, as ‘Oh, APD is resisting this.’ No, you guys are all here because APD sometimes doesn’t know how to do this stuff. And that’s what we should be doing is if we’re doing it wrong, correct us more quickly, and give us the lag time to put the fixes in place.”
Shaun Willoughby, President of the Albuquerque Police Officer’s Association, had this to say about the 14th Federal Monitor’s Report:
“Dr. Ginger is pointing the finger at APD, saying that they’re doing this intentionally. That’s an absolute absurd joke. It’s a lie. … The monitor was supposed to be here in Albuquerque, helping with technical assistance. He’s doing that over Zoom and over phone calls from a different state.”
MOVING FORWARD TO ADDRESS BACKLOG
During the December 16 hearing, DOJ attorneys told Judge Browning that in moving forward they would not be content with a “sampling” of the backlogged cases being reviewed. What the DOJ is demanding is that instead sampling, it wants each and every one of the cases to be investigated in order to see if officers violated policies.
The settlement requires all uses of force cases be referred for investigation and not just those where someone makes a complaint. Because the cases haven’t been investigated, the DOJ is saying it’s impossible to say how many violated policies. The newly created External Force Investigation Team (EFIT) found that 10% of the more recent cases were out of policy.
According to the DOJ attorneys, the newest backlog comprises 667 cases and adding that to a 2019 backlog of more than 300 cases, there are almost 1,000 instances where force was used, but APD officers who violated policy cannot be disciplined. US Attorney Paul Killebrew was sharply critical of APD over the backlog and its failure to deal with it and told Judge Browning:
“As this backlog developed, we did not see the sense of urgency, we did not see [APD] … adapt, we did not see them owning the problem. … We saw a lot of focus put elsewhere. We’ve seen a lot of focus on the rhetoric, rather than what’s in the [Federal Monitor’s] reports.”
Assistant United States Attorney Paul Kilebrew told the court the Department of Justice believes that the backlog of cases reflects a “pattern of practice” that is of very serious concern and that it reflects a “failure of leadership and management” at APD. Kilebrew told the court that review and disposal of the back log of cases is considered “very high priority” for the DOJ.
According to the DOJ attorneys, it could take investigators 18 months to work through the cases.
RELEVANT EFIT TIMELINE
The following information was reported to the Court during the December 16 by APD command staff:
The External Force Investigation Team (EFIT) preliminary service contract was fully negotiated by May, 2021.
The EFIT was fully functional by July 16. 2021 and the EFIT professionals services expires May 2, 2022.
All investigator’s hired under the EFIT contract are experienced in Internal Affairs “Use of Force” investigations with many being former commanders or former Chief’s of Police or Tactical K-9 units with many serving in departments under Court approved settlement agreements.
Since July, 2021, EFI and and the APD Internal Affairs Force Division have responded to 198 Use of Force incidents. These investigations have been completed on a average of 54.68 days. In addition, the EFI close 74 Use of Force Investigations averaging a total of 88.35 days until closure.
Eight of the 74 Use of Force cases were found to be out of APD policy (10.81%) and 23 of the 74 inevestigations (32.48%) failed to comply with APD process requirements.
HE SAID, SHE SAID EXCHANGE
Federal Court Monitor Dr. James Ginger in his 14th IME Report and during the hearing made the claim that the severe backlog of cases is “another example of deliberate noncompliance” by APD. In news reports, and during the December 16 hearing, the City, APD and even the union sharply and unequivocally said the backlog is not deliberate and that APD has taken full responsibility for it. Nair emphasized to the court that the city and APD is facing the challenges of rising violent crime and a decrease in ranks within APD and that it is balancing those problems with trying to complete the reform process.
During the December 16 hearing, Chief Administrative Officer Sarita Nair had this to say:
“During this time [of the monitoring period], the department was coming to grips not just with the pileup of unaddressed cases, but also with the complete inadequacy of the force investigatory processes, and mass departures from the Force Investigation Division at all ranks … We decided to press pause to fix the processes instead of continuing to conduct inadequate investigations. In retrospect, APD leadership recognizes that this was not the right decision.”
“It is a drastic oversimplification and, frankly, the easy way out to say that APD just needs more willingness to achieve reform. … The real challenges are more complex. A lot of times, when we explain the very real choices that the department has made about officers’ time, we’re met with criticism that we’re pushing back against reform. We’re not pushing back on reform. We just know that part of the discussion must be to explain how things actually work and how we can learn from our past.”
The link to quoted source material is here:
BACKLOG STOPPED WITH EXTERNAL FORCE REVIEW TEAM
Earlier in 2021, the City and APD was faced with the real possibility of the DOJ seeking contempt of court and placing APD in receivership after the federal monitor found in 2020 that APD was failing to police itself and failing to investigate excessive use of force cases. It was on February 26, 2021 U.S. District Judge James Browning approved a stipulated order creating the External Force Investigation Team (EFIT) to avoid APD being held in contempt of court and placed into receivership.
EDITORS NOTE: On February 19, 2021, the police union file an “Objection and Motion Opposing” to the EFIT arguing that it was in violation of the collective bargaining agreement (CBA) and that it affected union rights under the contract. On December 16, the day of the hearing on the 14th report, Judge Browning filed a 65-page Memorandum And Opinion denying the unions Motion and Objection. Before denying the unions motion, the Court first found that the terms and conditions of the Union Contract, which expired on June 31, 2020 is still in full force and affect until a new contract is negotiated. Browning then ruled that the EFIT did not interfere or violate the union contract rights.
The EFIT team is responsible to train APD Internal Affairs (IA) investigators on how to properly investigate uses of force instances by APD police officers. The City agreed that at least 25 force investigators would be assigned to the APD Internal Affairs until APD demonstrates that fewer investigators are necessary to timely investigate uses of force by APD Officers. The city agreed to the creation of the EFIT in lieu of being put into a receivership after the federal monitor found in 2020 that APD was failing to police itself.
During the December 16 hearing, the parties agreed that the EFIT has been beneficial in helping internal investigators and it was reported that the backlog of cases has not continued to accrue since the EFIT team began its work. As a result, the City and the DOJ are in negotiations to extend the EFIT’s contract or hiring another group of civilian investigators to do the force investigations. According to Eric Garcia, the Deputy Superintendent of the Police Reform Bureau, the advantage to hiring civilians include the fact that few sworn officers want to work in Internal Affairs, use of civilians it frees up sworn officers to work in the field, and civilians have a more open mind and are not “tainted by prior experience.” According to Garcia, APD needs to hire staff to clear the use of force case backlog and APD does not have the resources to do so itself.
QUESTIONS FROM THE COURT
During the December 16 Court hearing, after initial remarks, Judge Browning set aside the announced and agreed to agenda by the parties and took control of the proceedings to ask questions and to address a number of issues before the hearing proceeded any further.
PLACING APD INTO RECIEVERSHIP
Judge Browning asked Assistant United States Attorney Paul Kilebrew if the Department of Justice was considering asking the Court to place APD into receivership where the Court would take over the full management and control of APD.
Kilebrew responded that the DOJ was not asking the court to place APD into receivership at the present time, but did emphasize that everything was on the table. It was last year that APD oversight groups and stakeholders, including APD Forward that includes 26 sperate community organization that promote police oversight that have banded together, demanded the appointment of a receiver. The Court made it clear that a receiver would never be appointed unless asked for by the parties.
The fact that Browning asked the question and gave the answer he did no doubt embolden the City to believe that APD will never be placed into receivership.
GINGER’S ASSESSMENT OF APD LEADERSHIP
During his December 16 court presentation, Independent Monitor Ginger predicted that the City was going to deflect blame on what was happening. However Chief Administrative Officer Sarita Nair said that the monitor’s prediction was wrong, and proceeded to assert that the City “owns the problem”. APD command staff witnesses also said the department has assumed responsibility.
Both Nair and APD Command, including Chief Medina, failed to seriously address the culture within APD. They failed to address to what extent they have failed to implement all the reforms as was promised 4 years ago by Mayor Tim Keller other than giving the excuse that APD does not have enough staffing.
Judge Browning asked Ginger “how deep are the leadership problems at APD” and what can be done to solve those problems. Ginger’s response was far more forthcoming than it has been in the past. Ginger stated that the problems with APD is “failed leadership”. According to Ginger the only thing that is going to change things and stop what is going on at APD is removing the existing leadership. Ginger has made it very clear over the last 7 years, he does not have command and control over APD nor of its personnel. Simply put, Ginger says “It’s not my job”, yet he knows damn well what can and should be done.
Ginger told Judge Browning the leadership problems start from the top executive team and goes down through management to the rank file. Ginger testified that 80% of the issues APD is still faced with in the CASA can be dealt with by a change in leadership.
OUTSIDER NEEDED TO EFFECTUATE CHANGE
It was during an April 15, 2020 hearing when Federal Judge Browning asked Ginger what his thoughts were on the appointment of Chief Harold Medina as the new APD Chief. Dr. Ginger’s response was less than enthusiastic. Dr. Ginger thought then, as now, that APD needs an “external chief” or an “outsider” and in his words someone “nationally” with experience in DOJ reforms. Ginger expressed the opinion that such an outside person was needed to “effectuate real change” within APD.
Federal Monitor Ginger has no management nor control over APD Personnel. He has no authority to hire nor fire. Ginger has repeatedly emphasized that all he can do is make recommendations. Ginger made it clear that Mayor Keller and the City were free to hire whoever they want as Chief, that he could not object, but only offer his opinion that APD needs someone from the outside.
Along with his appointment of Harold Medina as permanent APD Chief, Mayor Keller appointed Sylvester Stanley as “Interim Superintendent of Police Reform” in addition to the position of Deputy Chief Administrative Officer (DCAO). Stanley has a lengthy and distinguished career in law enforcement, but regrettably, has absolutely zero experience in implementing DOJ reforms and constitutional policing practices such as that mandated by the CASA. After a short 8 months on the job, Stanley announced his retirement and will be leaving the city on December 31.
On December 16 when they had an opportunity to speak, CAO Sarita Nair and APD Chief Harold Medina took issue with Ginger saying that an outsider as chief is not what is needed. Nair opined that APD needs a Chief that thoroughly understands the Department, the City and its people. Medina not at all surprising defended his tenure as Chief and said he was the right person at the right time for the job.
CITY CLAIMS PROBLEM “RHETORIC”
During the December 16 hearing, Judge Browning noted news accounts and comments made about the 14th Federal Monitor’s Report and Dr. Ginger by the city and the union and he said he found the rhetoric about Ginger “curious”.
At one point, Judge Browning asked CAO Sarita Nair what were the exact quotes from Ginger that she felt were inflammatory. Nair had difficulty articulating and had trouble and stumbled giving an answer. Eventually, she referred the court to only one statement in the 14th Monitors Report that said:
“Leadership and supervision, especially in the critical areas of reform listed above, are simply lacking —or in some cases not extant. As such, these findings require direct action by the City and APD leadership to identify the causes of, and to take corrective actions responding to, what can only be described as deliberate failures to comply with existing APD policy and with CASA requirements.”
Nair took issue with Ginger’s accusation of “deliberate” and the use of language in organizational development principals designed to “unfreeze”management problems. In what can only be described as a very smug and somewhat bizarre argument by Nair to discredit Dr. Ginger was when she essentially proclaimed the organizational development principals Dr. Ginger relied on are out dated having been developed many decades ago in academia. Dr. Ginger’s doctorate is in the study organizational development while Nair is an attorney. When it comes to an attorney, when the facts are not on your side, you argue the law.
CAO Sarita Nair took issue with Ginger moving towards accusations of deliberate and intentional conduct as opposed to “negligent conduct”. Nair said the reason for city’s focus on Ginger’s “rhetoric” was because of the poor morale it causes within APD amongst sworn officers. Judge Browning responded to Nair that he was not sure just how else Ginger could describe “deliberate” where Ginger has found no negligence by APD. Judge Browning was somewhat dismissive of Nair appearing to give her comments very little or no credence.
FAUX INDIGNATION BY NAIR, AGUILAR AND MEDINA
It is unmistakable that Federal Court Appointed Monitor Dr. James Ginger has changed the tone of his presentations. In the past, he has been like someone watching a lifeboat taking on increasing amounts of water and desperately and loudly sounding the alarm. In his 14th report and during the December 16 hearing, Federal Monitor Ginger seemed to be resigned to the fact that the lifeboat is sinking and he is now saying that the holes in the hull are deliberate.
The language the Federal Monitor used in his 14th report is downright tame to what he has said about APD in the past, yet City Attorney Esteban Aguilar, CAO Sarita Nair and Chief Harold Medina acted indignant over his conclusion that APD is now acting “deliberately and intentionally” not to bring the department into compliance. The blunt truth is that is that “deliberate and intentional” are the only words that accurately describe what has been going on with APD. Nair, Aguilar and Medina ostensibly have forgotten what Ginger has said in past monitor’s reports. Here is a reminder:
11TH FEDERAL MONITOR’S REPORT
In his 11th Monitors report file on May 4, 2020, Ginger wrote:
[“APD personnel are] still failing to adhere to the requirements of the CASA found in past monitoring reports, including some instances moving beyond the epicenter of supervision to mid- and upper management levels of the organization. … some in APD’s command levels continue to exhibit behaviors that “build bulwarks” [or walls] preventing fair and objective discipline, including a process of attempting to delay and in some cases successfully delaying the oversight processes until the timelines for administering discipline had been exceeded. [The] delays prevented an effective remedial response to behavior that is clearly in violation of established policy.”
“… since the beginning of the CASA compliance process that there were a few at APD who were overtly resistant to the CASA. [The Monitor] in the past [has] found evidence of a “counter-CASA effect” among some at the supervisory, mid-management, and command levels at APD. Those who knowingly or subconsciously count themselves in this group are beginning to face pressure to change their assessment of the value of the CASA. In some cases [they] have faced reasonably prompt and appropriate corrective efforts from the current executive levels of the APD for behavior that is not congruent with the CASA. … this as an essential “way forward” if APD is to move into full compliance. The remaining issue is that this pressure is neither uniform nor persistent.”
OCTOBER 6, 2020 HEARING
On October 6, 2020, Federal Monitor Ginger told Judge Browning in open court:
“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.”
12TH FEDERAL MONITORS REPORT
In the 12th Federal Monitors Report, Independent Monitor James Ginger wrote a scathing condemnation of APD’s ability to police itself and hold officers accountable when they improperly used force. Ginger found:
“[The federal monitor] identified 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.”
During this reporting period, the monitoring team often found in its reviews of management and oversight practices, a near myopathy at APD when it comes to assessing actions in the field against the requirements of APD policy and the CASA. Supervisors and command level personnel have a deleterious tendency to ignore the requirements of policy and training, and at times to even support processes to hide or circumvent internal systems designed to ensure compliance to established policy. …
[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 reports 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.
Most importantly, line officers need to engage in actions as designed by policy, law, and best practice, not past customs.
… [D] during the reporting period we encountered system-wide failures related to the oversight of force used by APD officers and supervisory and command review of those uses of force. The monitoring team has been critical of the Force Review Board (FRB), citing its past ineffectiveness and its failing to provide meaningful oversight for APD’s use of force system. The consequences are that APD’s FRB, and by extension APD itself, endorses questionable, and sometimes unlawful, conduct by its officers.
Still evident are systemic failures that allow questionable uses of force and misconduct to survive without being addressed in any meaningful way.”
13TH FEDERAL MONITORS REPORT
In his 13th compliance report of APD filed on May 3, 2021, Federal Monitor had this to say:
“… it continues to be apparent that APD has not had and currently does not have an appetite for taking serious approaches to control excessive or unwarranted uses of force during its police operations in the field. Command and control practices regarding the use of force continue to be weak. APD continues to lack the ability to consistently “call the ball” on questionable uses of force, and at times is unable to “see” obvious violations of policy or procedure related to its officers’ use of force.
At this point, the disciplinary system at APD routinely fails to follow its own written policy, guiding disciplinary matrices, and virtually decimates its disciplinary requirements in favor of refusals to recognize substantial policy violations, and instead, often sustaining minor related violations and ignoring more serious violations.
… APD is willing to go through almost any machination to avoid disciplining officers who violate policy or supervisors who fail to note policy violations or fail to act on them in a timely manner.
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.”
The monitoring team views these drops in compliance to be serious and concerning, as they reflect substantial and serious lapses in APD’s command and oversight practices designed to ensure implementation of the CASA. These data indicate that, for the second time since the inception of the CASA implementation process, APD has dropped in period-over-period compliance.
It is clear to the monitor that as of IMR-13, APD is in serious trouble with its ability to generate compliance with the CASA. This should sound alarms at all levels of the Albuquerque City government. It bears repeating that operational compliance rates are lower today than in the IMR-9 reporting period, two years ago.”
During the December 16 hearing Judge Browning asked the City, the DOJ and Ginger point blank if Ginger should be replaced.
The Department of Justice attorneys told Browning that they had complete confidence in Ginger and were satisfied with his work product.
CAO Sarita Nair for her part said “the city has not at this time asked for a replacement monitor”.
Ginger for his part said that while he’s never quit anything he has started, if the court decided he should move on, he would without hesitation. Ginger also cautioned that he did not think “it will be different with any other monitor.” Ginger said he stood by the work product of his monitoring team, claimed they are the best you can get in the country.
CITIZEN POLICE OVERSIGHT BOARD DISINTEGRATION
Judge Browning was told that the Citizen Police Oversight Board (CPOB) is now down to 5 members, with 4, including the chair, having recently resigned because of overwork and onerous training requirements for members. The resignations come less than 2 months after CPOA Executive Director Ed Harness resigned and less than one month after Superintendent Of Police Reform Sylvester Stanley announced his retirement at the end of December.
City Council has a history of leaving vacancies unfilled for months at a time, even when it has dozens of applications in hand. APD compliance with citizen oversight is one of the areas in which APD has been backsliding. No definitive action was identified as to how the CPOA disintegration can be stopped.
POLICE UNION CONTRACT AND A DENIAL OF UNION OBJECTION TO EFIT
Judge Browning asked the City if the contract between the City and the Albuquerque Police Officers Association (APOA) is still legally in force because the two year contract expired on June 30, 2020. Negotiations on a new contract had began but were suspended not because impasse had been declared by the parties but because of the pandemic.
What complicates matters is the expired union contract did not have a clause that if a new contract was not negotiated before its expiration, the terms of the expired contract would still continue until a new contract was negotiated. Such a clause in labor law is referred to as an “evergreen clause.” It was later revealed by Judge Browning the reason for his question was the Court was filing a ruling and memorandum on the Union’s objection to the City and DOJ agreed order on creating and funding the External Force Review Team. Judge Browning ruled the expired union contract terms remain in force and effect under the New Mexico Collective Bargaining Act.
It was on February 19, 2021, the police union file an “Objection and Motion Opposing the EFIT” arguing that it was in violation of the collective bargaining agreement (CBA) and that it affected union rights under the contract. On December 16, Judge Browning filed a 65-page Memorandum and Opinion denying the unions Motion and Objection to the EFIT. In his memorandum opinion denying the union’s motion, the Court found that the terms and conditions of the Union Contract, which expired on June 31, 2020, are still in full force and affect until a new contract is negotiated between the city and the police union. The court then ruled that the EFIT did not interfere or violate police union contract rights.
Judge Browning in his ruling does not address the fact that the parties did not declare impasse on union negotiations. The union negotiations were suspended because of the covid pandemic. What is very disappointing is that Browning did not order the parties back to the bargaining table to negotiate a new contract.
UNION ATTORNEY DENIES EXISTENCE OF COUNTER-CASA EFFECT
Police union attorney Frederick Mowrer was the very last person to testify during the December 16 hearing. Mowrer flat-out denied the existence of a Counter-CASA effect. This is the very first time the union has disputed the existence of the Counter Casa Effect and in 7 years the union has never disputed the data the monitor has used to support his conclusions.
It was on November 1, 2019, Federal Court Appointed Monitor James Ginger filed his Federal Monitors 10th audit report where the “Counter CASA” effect was fully explained. According to the Federal Monitor’s 10th report:
“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.
Some members of APD continue to resist actively APD’s reform efforts, including using deliberate counter-CASA processes. For example:
• Sergeants assessed during this reporting period were “0 for 5” in some routine aspects of CASA-required field inspections;
• Collective Bargaining Agreement (CBA) disciplinary timelines, appear at times to be manipulated by supervisory, management and command levels at the area commands, letting known violations lie dormant until timelines for discipline cannot be met. ”
EXPIRED POLICE UNION CONTRACT VIOLATES STATE LAW ALLOWING APD SARGEANTS AND LIEUTENANTS TO JOIN UNION
On December 16 when Judge Browning asked the City if the contract between the City and the Albuquerque Police Officers Association (APOA) is legally in force, Union Attorney Fred Mowrer could not speak up fast enough nor loud enough to offer to brief the issue for Judge Browning. Mowrer without a doubt knows the implication of the question. Mowrer also likely knows that the expired union contract is defective because it does not contain a “evergreen clause” and for that reason the city could argue that there is no union contract. Judge Browning did not confront Mowrer with the question if he was involved with the union contract negotiations on the expired contract and if so, why was there no “evergreen clause”.
Another major problem with the expired union contract is that it likely violates the New Mexico Collective Bargaining Act. Judge Browning is very familiar with the act in that he quotes it extensively in his memorandum opinion denying the union’s objection to the EFIT.
It is well settled federal and state labor laws that management personnel are prohibited from joining unions, yet the expired police union contract defines the collective bargaining unit to include the management positions of APD sergeants and lieutenants.
The 65 page APOA police “Collective Bargaining Agreement” (CBA) can be down loaded as a PDF file at this link:
It ia Section 1.3.1 of the expired union contract that 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 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:
Section 10-7E-5 of the New Mexico Public Employees Bargaining Act makes it clear that management employees cannot join unions and states 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:
APD STAFFING LEVELS
During the December 16 hearing, APD reported the following staffing levels to Judge Browning :
Full Sworn Officer Count: 917
1 APD Chief
1 Superintendent Of Police Reform (Created 8 months ago)
1 Deputy Superintendent Of Police Reform (Recently created)
6 Deputy Chiefs (3 new Deputy potions created and added)
1 Chief of Staff
14 Deputy Commanders
731 Patrol Officers
2 sworn CSA’s
EDITOR’S NOTE ON APD BUDGET AND STAFFING LEVELS
The Keller Administration and APD command staff attending the December 16 hearing failed to give Judge Browning information on APD’s overall budget as well a breakdown of reported staffing levels.
The Albuquerque Police Department (APD) is the largest budget department in the city. APD’s approved general fund operating 2022 budget is upwards of $222 million, or roughly 4.5% higher than fiscal year 2021 existing levels. Ultimately, the City Council approved nearly all the APD funding the Keller Administration requested in the budget proposal submitted on April 1.
The approved budget contains funding for 1,100 sworn positions and 592 civilian support positions for a total of 1,692 full-time positions. It also includes funding for new positions, including 11 investigators to support internal affairs and the department’s reform obligations under the Federal Court Approved Settlement Agreement, and two communications staffers. Line item funding for APD includes:
$800,000 for the Department of Justice Independent Federal Monitor required under the Court Approved Settlement Agreement that is still pending after 6 years.
$400,000 for the Use of Force Review contract (This is funding for the EFIT)
$2.3 million in funding to annualize funding for 44 additional sworn officer positions added in FY/21.
$90,000 designated for the student loan forgiveness program for APD Officers.
$986,000 thousand for electronic control weapons (TAZER weapons).
$90,000 thousand for the CNM Cadet Academy.
Funding for 1 senior advisor to the Mayor and CAO, 1 internal investigations manager and 1 Superintendent of Police reform position created to provide guidance in reshaping the training, internal affairs and compliance with the Department of Justice and the Court Approved Settlement Agreement (CASA) reforms.
Notwithstanding the approved funding for 1,100 sworn police the number of police officers patrolling the street of Albuquerque is dangerously low. According to an August 2 KOAT news report only 369 are actually patrolling the streets of the city. The 369 filed service officers are divided into 6 area commands and 3 separate shifts. According to the August 2 KOAT TV news report, APD patrol staffing levels are as follows:
369 patrol officers, for six area commands and 3 shifts
59 patrol sergeants
18 – 22 bike officers
POLICE UNION POLL
On October 29, 2021, a mere 4 days before the municipal election for Mayor, the police union released its yearly survey of its membership. The survey was sent to 823 officers with a mere 421 officers responding to the survey. The management positions of APD sergeants and lieutenants are police union members and no doubt participated in the survey.
The highlights of this year’s survey were as follows:
94% do not approve of Police Chief Harold Medina.
98% do not feel supported by Mayor Tim Keller’s administration.
89% do not feel supported by command staff.
42% said Department of Justice reform constraints are the biggest contributor to the crime problem in the city.
24% said it was “justice system problems”, ostensibly meaning the revolving door criminal justice system.
Only 5% said lack of officers is contributing to high crime rates.
COMMENTARY AND ANALYSIS
It is important to note that all though the hearing lasted the entire day, the 3 major amici or other stakeholders, including APD Forward that has 26 police oversight organization, were not given the opportunity to speak and provide their input during the December 16 hearing. The Court simply ran out of scheduled time and told the parties to confer and determine if they wanted to schedule more time.
Mayor Keller, the City, the DOJ, the police union and the federal court are not listening or simply could not careless. Dr. Ginger forcefully and emphatically has now said the obvious, not once, but twice, that APD will not change until it gets new leadership that comes from outside the department. Ginger first recommended to the Keller Administration in no uncertain terms to hire a Chief from outside when Mayor Keller terminated former Chief Geier and now he has stated it in open court, not once but twice.
On March 15, 2018 a hearing was held on the Federal Monitor’s 6th Compliance Report. During the hearing Keller revealed he had reached out in December, 2017 to the court and had a confidential meeting with the parties and the federal judge. What Keller told the presiding Judge during the March 15, 2018 hearing was simple enough to understand. Keller said that he campaigned on the DOJ police reforms, he was committed to fully implement all the police reforms, that his appointed APD management was also fully committed to implementation of constitutional policing practices and that he was confident in the management team he appointed to get the job done. Mayor Keller also said “he owned it” when it came to the reforms. Keller also said he would be judged by the progress APD makes or doesn’t make during his term in office.
Fast forward to today. After a full 4 years in office, it can be said there is little reason for hope that things are going to get any better but likely worse. Keller won a second term with a landslide vote even though he and his administration never “owned the police reforms”. Keller was not held accountable nor judged for his failings to implement the reforms. Sadly, Mayor Tim Keller has shown he lacks the insight, the courage nor maturity to do what is needed for change within APD. Keller also knows he has gotten away with it. In politics, it is better to look good than to be good.
In 2017, all the directional indicators were correct that APD needed new leadership from the outside of the Department. Instead of doing what was needed, Mayor Keller conducted essentially a sham “nationwide search” and named APD insider Michael Geier as chief who had retired from APD after 20 years. It was his 3rd retirement from a police agency. (Chicago PD, APD and Rio Rancho)
It took Keller 3 years to realize that Geier was a disaster. Keller fired Geier knowing full well Geier was becoming an election campaign issue. After firing Geier, Keller immediately turned around and appointed yet another APD retread insider as interim Chief, Harold Medina, who as Deputy Chief orchestrated Geier’s firing with CAO Sarita Nair. Keller again announced another national search for a police Chief that also turned out to be a sham.
After serving 3 years as Mayor, Tim Keller should have had wisdom and courage to recognized the need to keep an interim chief in place until after the election, at which time a substantive national search might have attract candidates who might actually be qualified. What hampered applicant numbers is that Keller was running for a second term, his election was not a sure thing, and whoever became Chief could have been out of a job come election day. Only 3 finalists made it through Keller’s second national search and low and behold Harold Medina was selected after the other two finalists essentially withdrew.
Medina has a nefarious past of first killing a 14-year boy banishing a BB gun in a church and years later gave the authorization use deadly force that resulted in APD’s killing of a veteran threatening suicide and having a psychotic episode. A jury verdict of $10 million was awarded in the killing of the veteran with the court finding that the veteran was only a danger to himself and not APD. What was truly amazing is that Medina actually promoted his nefarious past with officer involved shootings as making him qualified to be Chief in that he learned the lesson of the need for constitutional practices.
Simply put, Medina is part of the problem and always has been. Medina helped create, participated in and did not stop the culture of aggression within APD. What is truly amazing is that Medina actually believes he has done a good job as APD Chief as APD continues to disintegrate around him and to spiral out of control and as violent crime hits historic heights. The fact that 94% of sworn police do not approve of Police Chief Harold Medina, 98% do not feel supported by Mayor Tim Keller’s administration and 89% do not feel supported by command staff speaks volumes for failed leadership, yet Medina thinks he has done a good job.
The APD lifeboat is indeed sinking. All the alarm signals are for naught. The DOJ needs realize that things are only going to get worse with APD under the current leadership and it is time to seek the appointment of a receiver.
Judge Browning should be doing more than just asking questions about receivership every 6 months. Judge Browning should order the City and Union back to the negotiating table with instructions that an “evergreen clause” be included and that Sergeants and lieutenants be removed from the police union collective bargaining unit.
For the past 7 years, the police union has done whatever it could to undermine the reform effort including spending $70,000 in an ad campaign saying “You can either have compliance with DOJ reforms or you can have lower crime. You can’t have both.”
With 44 Lieutenants and 113 Sergeants, for a total of 157 management positions in the union out of 917 sworn personnel, it is very easy to figure out that the Police Union is at the epicenter of the failure to implement the reforms.