Ever since the creation of the Police Oversight Board and the Police Oversight Commission in 2014, both have been plagued by political turmoil, resignations and membership and staffing turnover. Both have been plagued with constant resistance from the Albuquerque Police Department management and all too often completely ignored by the APD Chief and executive staff as well as the Mayor and City Council. Within the last 6 months, the Police Oversight Agency and its civilian police oversight board has seen the resignation of its Executive Director the Chairman of the CPOA board and 3 members of the civilian oversight board.
The Albuquerque City Council began efforts to try and fix the Police Oversight Agency ordinance by amending the ordinance creating the agency and the board. On February 23, 2022, the Albuquerque City Council voted to defer all action on amending the Civilian Police Oversight Agency Ordinance for two weeks to allow consideration of other changes. Amendments to the CPOA ordinance will be heard at the next regular meeting of the City Council on March 7, 2022. The blunt truth is that the Albquerquerqu City Council is attempting to fix the unfixable.
GUEST OPINION COLUMN BY JIM LARSON
JIM LARSON is a long-term resident of Albuquerque. Mr. Larson has an extensive and diversified career in law-enforcement both on the Federal and State levels. His law enforcement career includes being a former United States Secret Service Agent, a Dallas Texas Police Officer, and Investigator with the New Mexico Attorney General’s Office and working at Sandia National Laboratories. After retiring from Sandia National Laboratories, Mr. Larson served as a Court Appointed Special Advocate for abused and neglected children. He has been involved with APD civilian police reform including serving a short period of time on the Civilian Police Oversight Board. He has not been compensated for his article. Larson offered the following:
“So here we are seven years later, with the City Council continuing their futile efforts to establish effective civilian police oversight to fulfill their constituent’s demand.
Recently the Chairperson of the Civilian Police Oversight Agency (CPOA) Board resigned in frustration citing the City Council has designed a bad process. From the Council’s poorly conceived Board member appointment process to the list of far too ambitious training requirements for a Board of unpaid volunteers, and of course, the long list of responsibilities delegated to the Board, the Civilian Police Oversight Ordinance in Albuquerque is broken. He noted some Board members appointed by the Council clearly show they cannot and will not devote the minimum of 20 hours per week required to be a fully functional and well-informed member of this Board.
Here is a summary of some of the City Council’s proposed amendments (O-21-78) supposedly designed to finally establish a functioning police oversight system necessary to promote accountability of the police officers and protect the rights of civilians…
Since the inception of the Civilian Police Oversight Agency Board (Board), the Director directs and oversees the investigation of all civilian complaints and reviews of officer-in-volved shootings and serious use of force. He then makes findings and recommendations for review and approval by the Board.
Not for long! If the City Council O-21-78 proposed amendments are approved on March 7, 2022, the Board has no authority to review and approve the results of CPOA civilian complaint investigations and reviews of officer-in-volved shootings and serious use of force. The Board is provided the results for information only. Only when disciplinary recommendations are in the results does the Board have to approve them, and this is only because the CASA requires their approval.
This amendment is designed, as are the others, to finally establish a properly conceived and functioning police oversight system necessary to promote accountability of the police officers and protect the rights of civilians. Instead, this specific amendment reverts to the relationship between the for Police Oversight Commission and Independent Review Officer that the U.S. Department of Justice Albuquerque Police Department Findings Letter of April 10, 2014, exposed as contributing to the overall systemic problems with the Police Department’s use of force in encounters with civilians and which the CPOA ordinance was adopted to remedy.
The CPOA’s Administrative Office was previously required to receive and process all civilian complaints. The Council’s amendments now limit complaints to officer misconduct directed only against sworn police officers employed by the Albuquerque Police Department. This amendment would appear to be a violation of stipulations contained in the Court Approved Settlement Agreement (CASA) that the City Council agreed to in 2015.
The complainant or complaint’s authorized representative in a Civilian Police Complaint (CPC) has always been afforded a minimum of five minutes to address the Board relating to the complaint and investigation when it was presented to the Board.
Now that the Board does not have the authority to review and or approve complaints and the City Council has removed this option and in so doing will deny the complainant’s access to the Director who is the new sole decision-maker with respect to their complaint and not the Board prior to the amendment.
If at any point during an investigation the investigator determines that there may have been criminal conduct by any APD personnel, the CPOA investigator shall immediately notify the APD Internal Affairs Bureau commanding officer and transfer the administrative investigation to the Internal Affairs Bureau.
Previously the CPOA was able to review the IA investigation and continue processing the complaint at any time upon the conclusion of any criminal proceeding. That is now deleted from the ordinance with the amendments.
The CPOA’s Administrative Office was previously required to audit and monitor all incidents of use of force by police and all matters under investigation by APD’s Internal Affairs (IA) or other APD personnel tasked with conducting administrative investigations related to a use of force incident. CPOA records reflect that the audit and monitoring process never happened. Resolving the noncompliance was achieved by an amendment limiting matters under investigation to a “representative sampling” which means a subset of a population that seeks to accurately reflect the characteristics of the larger group.
Apparently, to compensate for this elimination of its review and approval authority, the Board, which previously had the option of performing an annual audit, now is required to perform semi-annual audits on a random sample of up to 10% of individual civilian police complaint investigations involving allegations of use of force or in exceptional circumstances, for the purpose of promoting an enhanced measure of quality assurance in the most challenging cases the Board may, by a vote of two-thirds (2/3) of the members of the Board, perform an additional audit, or direct that an audit be performed, on any individual Citizen Police Complaint Investigation.
Now, after seven years, the Board shall draft a job description that informs members of their roles, responsibilities, and specific expectations of a CPOA Board member. The Board shall present the job description to the City Council for final approval. Each member of the CPOA Board shall sign the job description to affirm their understanding of their obligations to the Board. This requirement may help filter applicants who do not fully grasp the commitment and requiring a new member’s signature may make it easier to remove members who fail to meet that commitment. That will not address the Board problems in turnover because the model is flawed as evidenced by the many nice to do ordinance requirements that have not been met vs those that are essential, even though all are just advisory just advisory.
There are numerous clarifications to the Board’s training requirements and compliance reporting requirements to the City Council by the Director. The issues of the Board’s failure to comply with required training have been noted for about two years. The extensive training requirements, some dependent on being conducted by APD, are not addressed in any of the new amendments but penalties for failure to complete the training are implemented.
Filling and maintaining Board vacancies has consistently been a significant problem. Efforts to address this are amendments for the reduction of the Board size from nine to seven and for the City Council staff shall establish written policies and procedures for its administration of the process to formulate recommendations for appointments based on evaluation of the qualification criteria and submit recommendations for appointment(s) to the City Council for its approval.
The Director shall notify the President of the City Council of a forthcoming vacancy on the Board at least sixty days prior to the expiration of a Board Member’s term, and within five days of the resignation of a Board member. The City Council shall act on an appointment to fill the vacancy within sixty days of the Council President’s receipt of notice from the Director.
The qualifications for the position of Director no longer minimally include the requirement of law degree but now have been expanded to include masters and relevant experience in criminal investigations. The position clearly requires demonstrated prior management experience and leadership skills to successfully navigate the organizational structures of not only the Board and CPOA, but also the Albuquerque Police Department, City Council, Mayor’s Office, and the Albuquerque Police Officers Association.
The number of full investigative files requested by the Board to fulfill its review function is the primary source of disagreement between the CPOA office and the Board. In the past, the Board has varied its approach to achieving its oversight of the CPOA investigative work product, utilizing at times a Case Review Committee (CRC) to perform due diligence on each case. The CRC then moved to more of an audit function, whereby only a randomly selected number of cases involved a CRC review of the entire investigative file whether warranted or not. The CRC met seven times in 2020, but during the IMR-14 period met only in January and April.
The Independent Monitor’s 14 report opines that it appears that the audits use may have been discontinued, with the Board now requiring that the full investigative case be made available for every complaint is not supported by a review of Board agendas. Yes, there are full investigative files requested, but they are officer-involved shooting and serious use of force cases, not civilian complaints.
The monitoring team emphasizes that this is a matter to be worked out by the Board and the CPOA investigative office. A process is envisioned that allows the Board to fulfill its review function while allowing it adequate time to address issues not being addressed such as requiring deeper analysis, such as policy and training recommendations, the requesting and analysis of data, and long-term trend analysis, as well as a process that does not unnecessarily burden the investigative function of CPOA.
The City Council’s wisdom reflected in the proposed amendments takes a hatchet to the allowing the Board to fulfill its review function by removing the function and ignoring any concerns about the quality of some CPOA investigations. It addresses the continued understaffing of the Board by reiterating excessive training requirements for a volunteer Board and instituting a monitoring and discipline regime. It also reduces the Board size to 7 from 9 with support from the Board and Interim Director suggesting it will be easier to have a quorum and for subcommittees to function.
The Executive Director has always been selected by and works under the supervision of the Board in accordance with CASA stipulations. The history of the Director’s relationship with the Board has been unsettled. The former Director resisted and at times defied those to whom he directly reported and under whose supervision he worked. Some of the unease arose from the varied views of the Board’s role and authority. For example, some members wanted to see documented investigation process manuals and procedures, while others viewed this as none of the Board’s business which the former Director supported in his rejection of the value of input from the Board, and the result was the Board still does not know if such documents exist.
An example of how the Board allows the process to be corrupted was when a Board member and the former Director both voted and supported a change to language in the APD use of force policy “near-final draft.” The language represented a return to issues the community clearly did not support from their comments at public meetings and which the Board also strongly opposed. They did not report their supporting votes at several opportunities, which some believed was evidence of attempts to evade accountability. When finally forced to acknowledge their votes because of public protest when the revision language was published, the two opined that the re-introduction of Graham vs Conner language did not significantly change the policy, their personal opinions and not the Boards. Only after communication with the monitor revealed his adamant disagreement with the inclusion of the Graham language was there agreement that a special meeting was needed. The Board took no corrective action or reproaching either their direct report Director or the long-time board member who frequently espoused his policy expertise.
Each citizen should be aware of significant changes to the Police Oversight Ordinance and form their own opinion of the amendment’s value in enhancing civilian police oversight or is it another ill conceived quick fix to problems that require more independent analysis.
CHARLES ARASIM COMMENTARY AND ANALYSIS
Freelance reporter Charles Arasim has submitted the following guest column for publication on this blog. He has not been compensated for the article. He is a citizen police oversight advocate, and as such was recognized by the Department of Justice when the Court Approved Settlement Agreement was negotiated. Mr. Arasim has scrutinized the process and usefulness of the Police Oversight Ordinance and Agency.
Soon after the Albuquerque Civilian Police Oversight (CPOA) Board, and City Council approved Executive Director Edward Harness’ (2018) second three-year contract, the CPOA began having serious issues culminating in the Director’s (2019) secret – backed by sitting Board member Bill Kass and Albuquerque Police Officer Union’s demands… eventually dismissed by the Federal Court – unauthorized approval of adding the Graham v. Conner standard to the near-final draft of the Albuquerque Police Department’s use of force policy.
Instead of terminating the Director and demanding member Kass’ resignation, the Board went into several months of closed-door sessions to rewrite the Director’s job description – not an exception to the New Mexico Open Meetings Act – while ignoring the resignations of the CPOA’s most experienced investigators.
In the second half of 2020 the CPOA Administrative office, still under the control of an insubordinate Director, completed investigations in only 13% of the Civilian Complaints received. The City Council received this information, did nothing, but, again behind closed doors, secretly discussing amendments to the CPOA Ordinance.
Months later, the CPOA Board publicly announced that the Executive Director’s position was open to all comers which resulted in 3 things:
1. The Director’s fiery public resignation,
2. The Independent Monitoring team reporting to the Federal Court that the CPOA had failed to meet the Court Approved Settlement Agreement (CASA) in providing meaningful, independent review of all citizen complaints, serious uses of force, and officer-involved shootings by APD or reviewing and recommending changes to APD policy and monitor long-term trends in APD’s use of force, and
3. CPOA Board Chairman Eric Olivas resigning, along with 3 other Board members, saying the City Council had “[D]esigned a bad process. From the appointment process, training, and of course the long list of responsibilities delegated to the Board, the Civilian Police Oversight Ordinance in Albuquerque is broken. Efforts are underway to nibble at the edges of the problem, but frankly, the proposed amendments to the ordinance hit at the low-hanging fruit and do nothing to give a meaningful role to Civilian Oversight of Police in Albuquerque.”
Fast forward to February 2022.
The City Council comes out of the shadows to reveal their proposed amendments to the CPOA ordinance. Those amendments will not bring the CPOA into compliance with the CASA. The amendments will in fact give more, if not all, power to the office of the Executive Director proven to be accountable to no one The amendments will make the CPOA a virtual carbon copy of the abolished Police Oversight Commission and the Independent Review Officer system of independent civilian police oversight that in 2014 the United States Department of Justice determined had contributed to the Albuquerque Police Department’s pattern and practice of unconstitutional use of deadly force.
It is obvious the City has failed in correcting APD structural and systemic deficiencies of insufficient oversight, inadequate training, and ineffective policies that contributed to the 2014 DOJ Investigative Report findings that APD engaged in a pattern and practice of excessive use of force, including deadly force, in violation of the Fourth Amendment.
In the most recent report Independent Monitors Report, IMR-14, dated November 12, 2021, the Federal Monitor reviewed the CASA requirement that the city shall implement a civilian police oversight agency … that provides meaningful, independent review of all citizen complaints, serious uses of force, and officer involved shootings by APD and shall also review and recommend changes to APD policy and monitor long-term trends in APD’s use of force. The Federal Monitor reported the CPOA failed to meet the requirements and is in “non-operational compliance,” meaning the adherence to policies is not apparent in the day-to-today operation of the agency.
Seven years of existence has not resulted in quality, rigor, or consistency in processes by the Board or the Executive Director’s office when conducting civilian complaint investigations or review of APD findings in serious uses of force or officer involved shooting incidents.”
DINELLI COMMENTARY AND ANALYSIS
After the passage of a full 7 years of the court approved settlement as well as the tumultuous history of the Citizen’s Police Oversight Commission that was mandated by the Court Approved Settlement Agreement, it has become painfully obvious that CPOA and its board of voluntary citizens has become so dysfunctional as to be irreparable and irrelevant. It is not at all likely any of changes or amendments to the CPOA ordinance will have any impact on any of the numerous problems identified by Eric Olivas, the former Chairman Of Civilian Police Oversight Agency.
It is personalities and hidden agendas that make both the agency and the civilian volunteer board dysfunctional. Adding to the disfunction is more than a little politics thrown into the mix by the Mayor, the City Council, the Chief and his high command and union opposition to any and all kind of civilian police oversight. The civilian board has never had any ability to persuade APD to change policies or improve their training given the extent the Mayor and APD ignore it and undercut it.
The investigation of police misconduct cases and all use of force cases and serious bodily harm cases should be done by “civilian” personnel investigators not by Internal Affairs nor by the Citizens Police Oversight Agency or the Board. The function and responsibility for investigating police misconduct cases and violations of personnel policy and procedures by sworn police should be assumed by the Office of General Council in conjunction with the City Human Resources Department and the Office of Internal Audit where necessary. The Office of Independent Council would make findings and recommendations to the Chief of Police for implementation and imposition of disciplinary action.
Link to former APOA Executive Director Ed Harness’ resignation:
Link to Former CPOA Board Chairman Eric Olivas’ resignation letter:
A link to a related blog article is here: