It has been reported that on February 23, the Albuquerque City Council will be meeting to discuss the contract with the Albuquerque Police Union. That includes raises for officers.
When it comes to any final vote to approve the collective bargaining contract Keller Administration negotiated with the APD Union, the council by amendment to the city council police union contract approval resolution, should vote YES to approve the pay provisions but vote NO and deny approval of the remaining terms of the contract.
By amendment to the resolution approving the union contract, the City Council can vote to approve the hourly pay raises but defer the approval of the remaining terms of the contract. The city council should instruct the Keller Administration to return to the bargaining table with the police union and negotiate a new contract and negotiate those terms that are in conflict with Federal and State law.
On February 4, it was reported that the Keller’s administration had negotiated a new police union contract making APD the best paid law enforcement agency in the region by increasing hourly wages and longevity pay and creating a whole new category of “incentive pay”.
The police union contract containing the pay increases was signed on December 30, 2021 by Mayor Tim Keller, City Attorney Estaban Aguilar, City Clerk Ethan Watson and Police Union President Shaun Willoughby. The 48-page APOA police “Collective Bargaining Agreement” (CBA) is for 1 year and 6 months period. It is effective January 1, 2022 through June 30, 2023. The new CBA can be down loaded as a PDF file at this link:
NEGOTIATED PAY AND OTHER TERMS
Under the signed contract, APD’s starting wage is well above cities and law enforcement agencies of comparable size including Tucson, Arizona, $54,517, and El Paso, Texas, $47,011. The negotiated hourly pay increases are as follows:
2 to 4 year service pay goes from $60,320, yearly, or $29 hourly, to $68,411.20 yearly, or $32.89 hourly.
5 to 14 year service pay going from $62,400, $30 hourly to $70,761 yearly, $34.02 hourly
15 or more years service pay going from $65,520, or $31.50 hourly TO $74, 297 A YEAR or $35.72 hourly.
Sargeant pay going from $72,800, or $35 hourly, to $82,533 a year, or $39.69 hourly.
Lieutenant pay goes from $83,200, or $40 hourly to $94,348 yearly or $45.36 hourly
Under the contract terms, longevity pay increases by 5% starting on July 1, the beginning of the new fiscal year starting at $2,730 per year with those who have 5 years of service and with incremental service years up to 17 years or more who will be paid $16,380.
Under the union contract, sworn police are entitled to overtime compensation at the rate of time-and-one-half of their regular straight-time rate when they perform work in excess of forty (40) hours in any one workweek. Time worked over 40 hours per week is compensated at time and a half of the officer’s regular rate of pay, or in the form of “compensatory time.” There is no contract provision placing a cap on the amount of overtime any officer can be paid.
The union contract allows the management positions of sergeants and lieutenants to be union members. The new union contract contains no accountability provisions under the Department of Justice Court Approved Settlement Agreement (CASA). The settlement reforms have been resisted and opposed by the police union.
NEW UNION CONTRACT ACTAULLY OLD EXPIRED CONTRACT
During the February 9, 2022 second hearing in Federal Court on the court Approved Settlement Agreement, APD Police Union attorney Fred Mower told Judge James Browning that the contract is not new but actually the previous contract containing the identical terms and conditions of the previous contract that expired on June 30, 2019. Mower insisted that only salary pay increases were negotiated.
The contract contains no “evergreen clause” which is a term that if a contract expires, and no new contract is negotiated to replace it, the terms of the expired contract continue until a new contract is negotiated. Evergreen clauses are required in government contracts.
POLICE UNION CONTRACT VIOLATES FEDERAL
On Friday, August 6, 2021, the New Mexico State Auditor’s long-awaited special audit report on overtime abuse by the Albuquerque Police Department (APD) was released. The 64-page audit was performed by the Albuquerque accounting firm Porch & Associates LLC. The audit covers the time period of January 1, 2018 to June 30, 2020. The link to the entire 64-page audit report is here:
According to the special Audit Report, it was the 7th audit performed on APD overtime practices since 2014. The audit includes the second term of previous Republican Richard Berry and the first 2 ½ years of Democrat Mayor Tim Keller’s 4-year term. The 6 prior audits resulted in 17 findings and recommendation made.
There was an absolute failure by APD command staff to carry out and implement the changes needed to solve the overtime problem. The released audit identified that certain APD police union contract terms and conditions are in violations of the Federal Labor Fair Standards act and that the police union contract has contributed significantly to the overtime pay abuse by rank-and-file police officers.
The New Mexico State Auditor’s Special Audit report made it clear that the APD police union contract violates the Federal Fair Labor Standards Act (FLSA). Specifically, the Fair Labor Standards Act provides:
“Paid leave is not considered time worked for the purposes of computing overtime”.
The audit goes as far as saying terms of the union contract need to be negotiated and that the City can save thousands of dollars in overtime by insisting that the APOA police union and APD follow the Fair Labor Standards Act. The audit also said the City should not bargain away what is established by law.
The audit recommended that the City negotiate with the police union to remove the guaranteed overtime and replace it with actual time. Actual time would start when the officer leaves their home, or work assignment if after a normal shift, through the time they get home.
UNION CONTRACT VIOLATES NEW MEXICO STATE LAW
The Porch & Associates State Audit downplayed and essentially ignored the role of the APD Union membership of Sergeants and Lieutenants and the union contract in the entire overtime abuse scandal.
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. Section 10-7E-5 provides for the rights of public employees and states in part:
“Public employees, other than management employees and confidential employees, may form, join or assist a labor organization for the purpose of collective bargaining … .”
The link to the statute is here:
It is Section 1.3., page 3, of the police union contract that allows the management positions of APD sergeants and lieutenants to join the union as follows:
“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 argument has been made by the police union President Shaun Willoughby in open federal court that APD sergeants and lieutenants are not management positions. Union advocates argued that sergeants and lieutenants are “supervising coworkers” or colleagues who are part of rank and file that give commands and that provide leadership support functions, but they are not management. The argument is as bogus as it gets and does not eliminate the conflict of loyalties between management and employee relations.
The Police Union President Shaun Willoughby has also argued that sergeants and lieutenants could form their own union if they wanted to. Even if that were the case, there would be a clear separation of management to sworn police eliminating conflicts of interest.
The argument that sergeants and lieutenants are not management is contrary to basic management principals and best practices under labor law. The fact is sergeants and lieutenants are management responsible for oversight and disciplinary action of subordinates.
At one time, APD Captains, now named Commanders, were allowed to join the union. Their union membership, as is the case with sergeants and lieutenants, resulted in extreme conflicts of interest in carrying out management policies, and they were prohibited from joining the union.
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:
As the union contract as written, it is in violation of New Mexico Public Employees Bargaining Act. Section 10-7E-5 entitled Rights of public employees provides as follows:
A. 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 those activities. (Capitalization added for emphasis)
Simply put, the plain language of the statute makes it clear management are prohibited from joining unions. The new police union contract allowing the APD management positions of sergeants and lieutenants to be police union members clearly violates state law and is therefore void from the beginning and therefor unenforceable.
Under state labor law, management is not allowed to join unions. The union contract again allows APD management positions of sergeants and lieutenants to be police union members, violating state law. The police union is a party to the federal settlement case. The union has obstructed the implementation of the mandated reforms. The federal monitor has repeatedly found it is sergeants and lieutenants who are resisting management’s implementation of the DOJ reforms. Sergeants and lieutenants should have been removed from the bargaining unit and made at-will.
NO PROVISION CAPPING OVETIME PAY
It is the mandated overtime provisions of the union contract that has led to major controversy and scandal at times, including overtime time card fraud.
When you add overtime paid to the base hourly pay mandated under the contract, the net result is the sworn police can be paid twice or three times as much in base pay and well over $100,000 and upwards of $200,000 a year.
No effort was made to reduce the number of hours allowed for overtime a sworn officer can be paid nor limiting it to rank and file and not management who are at will. From a personnel management standpoint, excessive overtime can lead to serious burn out, reduce the alertness of an officer and endanger public safety. But the union only sees the dollar signs and could care less how much excessive overtime a cop works, just as long as they get paid for it.
During the last 10 years, the Albuquerque Police Department has consistently gone over its overtime budgets by millions. In fiscal year 2016, APD was funded for $9 million for over time but APD actually spent $13 million. A March, 2017 city internal audit of APD’s overtime spending found police officers “gaming the system” that allows them to accumulate excessive overtime at the expense of other city departments. A city internal audit report released in March, 2017 revealed that the Albuquerque Police Department spent over $3.9 million over its $9 million “overtime” budget.
NO EVERGREEN CLAUSE
The fact that there is no evergreen clause in the contract has proven problematic and was an issue considered by the Federal Court in the Court Approved Settlement Agreement. An evergreen clause is a term that if a contract expires, and no new contract is negotiated to replace it, the terms of the expired contract continue until a new contract is negotiated.
Federal Court Judge Browning raised the issue questioning if there was a binding police union contract and was relegated to do his own research on the matter and concluded the expired union contract terms were enforceable but noted the oversight. Despite how problematic it is, the contract still does not have an evergreen clause.
NO PROVSIONS TO DEAL WITH COURT APPROVED SETTLEMENT AND POLICE ACCOUNTABBILITY
The Keller administration failed to get concessions from the union on police misconduct accountability.
In his latest report, the federal monitor found 667 uninvestigated use-of-force cases. All non-force-related misconduct investigations completed by APD were found to be deficient. Approximately 83% of the cases were time-barred for discipline in accordance with the collective bargaining agreement should misconduct be found.
Three provisions that need to be included in the contract but opposed by the union are:
• The contract provision barring the city’s Civilian Police Oversight Agency (CPOA) board members from knowing the names of officers investigated by the agency. This provision undermines the purpose and intent of the CPOA to identify sworn officers who have a history of misconduct and who should be disciplined or terminated.
• The union contract requires that the name(s) of the person(s) who complained about them is/are disclosed to officers under investigation. This provision was in the old contract. Allowing identification of complainants who choose to remain anonymous discourages the filing of civilian complaints for fear of retaliation.
• Police oversight advocates, such as APD Forward, wanted to increase the amount of time for the city to complete police misconduct cases. Under the previous contract, 90 days for police misconduct investigations with an optional 30-day extension with the police chief’s approval, was provided. However, in practice, the 90 days is not sufficient.
COMMENTARY AND ANALYSIS
Under the city charter, it is the Chief Admirative Officer that has the exclusive authority over personnel matters. the personnel rules and regulations and primarily responsible for union negotiations. They Mayor is prohibited from becoming involved in personnel matters involving classified employees.
It is also clear that the Albuquerque City Council is not allowed to participate in any way in union contract negotiations. Notwithstanding, the City Council does have the authority to insist and require that certain city policy terms and conditions be included in all contracts. In particular, the city council could decree as a matter of city policy that management not be allowed to join unions and define what management is under the personnel rules and regulations.
The Albuquerque City Council plays a crucial oversight role of the Albuquerque Police Department (APD) including controlling its budget. Inherent in its authority when it comes to Albuquerque Police Department (APD) reforms, is to challenge the Administration and the APD command staff demanding compliance with the Department of Justice (DOJ) consent decree reforms.
From review of the police union contract, the Keller administration’s negotiated contract with the police union is lost opportunity to oversee the department and reform the Albuquerque Police Department and implement the DOJ reforms under the settlement. No doubt the union is ecstatic, given the fact that the Keller administration did exactly what it did four years ago. It caved into union demands, giving the union all the pay increases it demanded.
During the 2021 municipal elections for City Council, City Councilors Dan Lewis, Renee Grout and Louis Sanchez all proclaimed they would hold the Keller Administration accountable. The newly elected city council is now at a cross roads when it comes to their oversight authority of the Albuquerque Police Department and to the Keller Administration.
The City Council can simply act as a “rubber stamp” to the Keller Administration and approve the negotiated contract and all of its terms without question. If the City Council truly wants to hold the Keller Administration accountable, the city council should vote YES to approve the raises and vote NO to approve the remaining contract terms and order the Keller Administration back to bargaining table and negotiate a new police union contract that conforms with both state and federal law. The council should outline what terms it wants in the new contract as to who should be included in the bargaining unit, overtime pay and the police reform mandates.
Links to related blog articles are here:
Third Year In Row Over Half Of Top 250 City Wage Earners Sworn Police; APD Police Union Contract Violates Federal And State Labor Laws; After Over 6 Months, Special State Audit Has Not Reduced APD Overtime
City, APD Union Negotiate New Contract; Keller Squanders Another Opportunity For APD Police Reform; Hourly Pay Increased 8%; Longevity Pay Increased 5%; New “Incentive Pay” Created; Overtime Remains; Sergeants And Lieutenants Remain In Union; DOJ Accountability Provisions Excluded