An April 6, 2022 Albuquerque Journal editorial entitled “[Overtime] scandals eating away at credibility of APD, its watchdogs” said in part:
“How many overtime scandals will it take for the Albuquerque Police Department — and those who investigate it — to end them once and for all? The accrual of overtime isn’t the issue. The collective bargaining agreement between the city and the local police union spells out the terms for claiming overtime.
But the process seems ripe for abuse based on the number of problems over time. We’re at seven audits and counting since 2014, raising concerns. The latest, in August, found that problems identified previously persisted and the city was not tracking progress in addressing recommendations. And the lack of follow-through doesn’t stop with APD.”
The editorial discusses the overtime investigations of former Lt. Jim Edison and APD Spokesman Simon Dolbick, including 7 audits. A public dispute between APD Chief Harold Medina and City Councilors Louie Sanchez and Dan Lewis was also noted. The editorial points out the lack of follow up by the Attorney General and Chief Harold Medina’s failure to solve the overtime pay abuses and concludes saying pressure from the State Auditor and the Mayor may be needed. Frankly, far more than that is needed.
The link to the full Albuquerque Journal editorial is here:
The answer the Journal’s ultimate question to what is needed to end APD overtime pay abuse once and for all is:
1. Criminal prosecutions for fraud.
2. Civil lawsuits for reimbursement of fraudulent overtime pay.
3. New terms to the APD union contract removing APD management from the bargaining unit.
4. Abolishing all forms of overtime pay.
5. Creating a strict salary structure.
This blog article is an in depth discussion of the APD overtime abuses and what must be done to stop it.
LT. JIM EDISON CASE STUDY IN EXCESSIVE OVERTIME PAID
The latest overtime scandal involving excessive overtime paid in the hundreds of thousands of dollars is the case of APD Lieutenant Jim Edison. It is a case study showing the police union contract encourages and permits overtime pay abuse. APD command staff from commanders up to the Chief are “at will” employees, prohibited from being police union members and prohibited from claiming overtime. The Lieutenant Edison case pinpoints that the union contract needs to be negotiated to remove the management positions of Sergeants and Liements from the collective bargaining unit, making them at will, and prohibiting them from being paid overtime.
WHAT HAPPENED IN THE EDISON CASE
In the spring of 2020, right after the pandemic began, APD Chief Harold Median placed Lt. Jim Edison in charge of the COVID-19 unit in APD’s Special Operations Bureau. Edison was responsible for coordinating the department’s COVID response, including contact tracing, testing of officers and directing them when to quarantine.
According to a March 14, 2021 KRQE News 13 Investigative report, over the course of one year, APD Lieutenant Jim Edison was paid $242,758 which consisted of a base pay and overtime pay. To put this staggering amount into perspective, hourly based pay for APD Lieutenants in 2020 and 2021 was $40 an hour or $83,200 a year. In other words, Edison was paid $159,558 in overtime in addition to his $83,200 base pay resulting in $242,758 paid in 2021.
Review of APD pay stubs showed Edison made $186,944 in 2020 and $173,672 in 2021. In 2020, more than $95,000 appeared to be from overtime according to pay stubs. From April 2020 to April 2021 Edison was paid upwards of $224,000, according to records APD provided to the media.
Edison was paid upwards of 3 times his base pay all because of overtime paid at the rate of time and a half. The police union contract requires payment in full for 2 hours for any overtime worked outside scheduled work time, no matter if the actual work was for mere minutes or seconds.
APD Internal Affairs and the Police Oversight Agency investigation into the time Edison claimed found Edison was routinely forwarding voicemails or emails outside of work hours and claiming 2 hours of overtime in each time he forwarded the voicemails or emails which likely took seconds to forward. The police union collective bargaining contract contains a clause that when an officer is “called in to work outside their regular working hours”, they are guaranteed pay for a minimum of 2 hours and the rate of time and a half.
The investigation report on Edison found he was voluntarily taking on tasks or duties outside of his regularly scheduled hours not ordered or approved by his supervisors, including early morning hours when he was at home. The investigator wrote in the report:
“An example … [is] listed on his overtime slips were emails Edison chose to send each morning, early hours example 0300 hour, and claiming an automatic 2-hours. [Deputy Chief Michael] Smathers did not require this work at that time and never ‘called him to work’ to complete those at that time during the period investigated.”
The city has never demanded nor sued Edison for reimbursement for the questionable overtime paid.
MEDINA PROCLAIMS “EDISON WASN’T EXACTLY BREAKING THE LAW”
On Thursday, March 31, the Albuquerque Journal reported that APD Chief Harold Medina met with its editors and reporters ostensibly to discuss a wide range of issues that APD is confronted with, including APD overtime pay abuse. Such meetings are standard and occur on a regular basis with elected officials including the Mayor and the District Attorney and government officials.
Referencing prior audits of APD’s overtime uses and abuses, Medina told the Journal editors he thinks the department has improved. Medina had this to say:
“Look at the audit reports – it said hold people and supervisors accountable to create that culture. … That’s what we’re doing. He was held accountable.”
The Journal story noted that the union represents officers, lieutenants and sergeants. In a remarkable revelation that was not elaborated upon in the Journal news story, Chief Medina said:
“Edison wasn’t exactly breaking the law, but he was taking advantage of the terms within the collective bargaining agreement between the city and the union to claim more overtime than he actually worked.”
What Medina said is worth repeating “Claim[ing] more overtime than he actually worked?” Really? REALLY? That is what is called gaming the system for personal gain and profit. Ostensibly, Medina was not asked and did not say if what Edison did was unethical or a “gaming of the system” for personal gain and profit which arguably would be breaking the law by perpetrating fraud. Presumably, Chief Medina was not asked by the Journal if lieutenants and sergeants should be removed from the collective bargaining unit and it would have been reported.
The link to the full quoted Journal article is here:
Edison’s attorney Tim White insists his client did nothing wrong. He said Edison followed standard operating procedures and the terms of the collective bargaining agreement. White insists that everything was above board and that his client really did “work those hours”. He pointed out that Edison had to create the department’s response to COVID-19 from “ground zero” and was the only one working on it for the first six months.
“What really happens is, Jim takes that call and whether he takes it live or whether he takes a voicemail, listens to it, and then refers that piece to one of the subordinates in the unit, he’s still working. … He’s having to wait to see what that person that he has sent the work to needs. Do they need to call him back? Is he going to still be involved? And until that call comes back from whoever he’s sent the work to, he’s on the clock.”
Lt. Jim Edison was fired in mid-November for being untruthful following internal affairs investigations. Edison was with APD for 14 years before he was fired. According to APD Spokesperson Gilbert Gallegos, Edison received an 80-hour suspension and a 120-hour suspension for two complaints about his overtime pay. Edison was also investigated for retaliating against a commander who raised the issue involving his overtime pay. Edison was fired before his suspensions were served.
According to APD Spokesperson Gilbert Gallegos, Edison was fired because “there was a determination that he was untruthful” in the 2 investigations involving the overtime pay and the one involving the retaliation claim. APD Deputy Chief Smathers for his part received a verbal reprimand and an eight-hour suspension without pay for lack of supervision of Edison.
The link to quoted news source material is here:
SIMON DOLBICK ANOTHER CASE STUDY IN EXCESSIVE OVERTIME PAY
The overtime pay scandal involving Lieutenant Jim Edison is nothing more than a repeat of what happened a mere 2 years ago involving APD Public Information Officer and patrol officer Simon Drobik. On Friday, April 12, 2019, it was reported that the APD Civilian Police Oversight (CPO) Agency recommended the dismissal of APD Master Police Officer 1st Class and Public Information Officer Simon Drobik as well as his former supervisor for overtime pay abuse.
The CPO Agency investigation found that in 2018, Drobik was paid $192,973 making him Albuquerque’s highest-paid employee in 2018. The investigation also found that his supervisor was one of the city’s top 11 paid wage earners. The investigation found that throughout 2018 Drobik violated overtime and pay policies more than 50 times by getting paid simultaneously for being on call as a spokesman for APD and working “chief’s overtime” and paid time and a half stationed at local businesses.
On May 2, 2019 it was reported that State Auditor Brian Colon announced that his office had begun an investigation of Drobick.
For successive years, as APD Spokesman, Drobik was routinely among the highest earners in the city. Drobik ranked No. 1 among all city employees in 2018 by being paid $192,973. In 2019, Drobik was ranked as the 7th highest wage earner in 2019. When Drobik retired in July 2020, he had already collected $106,607 for the year when his base pay rate was listed as $31.50 per hour, or $65,520 a year according city records ($31.50 per hour X 2,080 hours a year= $65,520).
The city has never demanded nor sued Drobik to reimburse the city for any questionable overtime paid found by the investigations.
CHRONIC OVETIME PAY ABUSE
Since 2014, there have been 7 audits investigating APD’s overtime pay abuses. The audits resulted in 17 findings and recommendation made to stop the overtime pay abuse, but they were never fully implemented by APD management nor former Republican Mayor Richard Berry and Democrat Mayor Tim Keller.
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:
The State Audit released found that problems identified in previous 6 investigations and audits persisted and the city did not track its progress in addressing recommendations. The 2021 special audit found 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 violation of the Federal Labor Standards Act and that the police union contract has contributed significantly to the overtime pay abuse by rank-and-file sworn police officers.
The links to quoted news source material are here:
On October 26, 2020 the City’s Internal Audit Department released a performance audit that found over $400,000 paid in overtime to 4 police officers. The release audit found that 4 APD Officers claimed over 2,000 hours of paid overtime, paid at the rate of time and a half, during the fiscal year of July 1, 2019 and ending June 30, 2020.
LISTING OF 250 TOP PAID CITY HALL EMPLOYEES REVEALS EXTNT OF PROBLEM
At the beginning of each calendar year, City Hall releases the top 250 wage earners for the previous year. The list of 250 top city hall wages earners is what is paid for the full calendar year of January 1, to December 31 of any given year. Review of the 2019, 2020 and 2021 city hall 250 highest paid wage earnings reveal the extent of the staggering amount of overtime paid to APD Sergeants and Lieutenants. The lopsided number of APD sworn police officers listed in the top 250 paid city hall employees is directly attributed to the excessive amount of overtime paid to sworn police officers.
Police officers first class, senior police officers 1st class, master police officers 1st class, sergeants and lieutenants comprise the collective bargaining unit for the APD police union contract. All are classified employees and can only be terminated for cause.
For the past 3 years in a row, over half of the top 250 wages earners at Albuquerque City Hall are APD sworn police officers in the ranks of police officer first class, senior police officer 1st class, master police officer 1st class, sergeant and lieutenant. All earned between $113,126.08 to $199,414.69 a year. All were paid hourly wages for 40-hour work week and all are paid time and a half for overtime pay.
For both the years of 2019 and 2020, 160 of 250 top paid city hall employees were police who were paid between $107,885.47 to $199,666.40.
In 2019, there were 70 APD patrol officers first class, master, senior in the list of 250 top paid employees in 2019 earning pay ranging from $108,167 to $188,844. Hourly pay rate for Patrol Officers was $29.00 an hour to $31.50 an hour depending upon years of experience. In 2019, there were 32 APD Sergeants in the list of 250 top paid employees earning pay ranging from $109,292 to $193,666. Hourly pay rate for APD Sergeants was at the time $35 an hour, or $72,800 a year. In 2019, there were 32 APD Lieutenants in the list of 250 top paid employees earning pay ranging from $108,031 to $164,722. Hourly pay rate for APD Lieutenants was at the time $40.00 an hour or $83,200 yearly.
In 2020, there were 69 patrol officers paid between $110,680 to $176,709. In 2020, there were 28 APD Lieutenants and 32 APD Sergeants who were paid between $110,698 to $199,001 in the list of the 250 top paid city hall employees paid between.
For the calendar year of 2021, 126 of the top 250 city hall wage earners were sworn police officers ranging from the rank of patrol officer 1st class through to the rank of Lieutenant. The 2021 listing of APD sworn personnel reveals that between the ranks of Senior Police Officer and Lieutenant were paid between $130,000 to over $199,000 in 2021 because of overtime. In 2021, there were a total 52 sworn police officers in the ranks of Police Officer First Class, Senior Police Officer and Master Police Officer in the listing of the top 250 top city wage earners. For 2021, there were 27 Sergeants and 30 Lieutenants listed in the top 250 city wage earners working for APD.
The links to a related blog article is here:
HISTORY OF OVERTIME PAY EXCEEDING APD BUDGET
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 allowed 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. In 2019 APD paid $17.9 million in overtime and in 2020 paid $18.3 million in related overtime costs.
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 police union contract provision placing a cap on the amount of overtime any officer can be paid. Compensatory time is the award of hours as already worked to be paid and is calculated at the rate of 1-1/2 times the hours actually worked. The maximum accrual of comp time for any officer is 150 hours.
A link to a related blog article is here:
POLICE UNION CONTRACT TERMS AND CONDITIONS
At the epicenter of APD’s excessive overtime pay is the police union contract. For that reason, certain terms of the contract merit review. The 65 page APOA police “Collective Bargaining Agreement” (CBA) can be down loaded as a PDF file at this link:
“CITY OF ALBUQUERQUE AND ALBUQUERQUE POLICE OFFICERS ASSOCIATION COLLECTIVE BARGAINING AGREEMENT EFFECTIVE JANUARY 1, 2022 THROUGH JUNE 30, 2023”
Three sections of the police union contract are worth noting. Those sections are:
“ 1.3.1 The APOA is recognized as the Exclusive Representative for regular full time, non-probationary police officers through the rank of Lieutenants in the APD … .
EDITOR’S NOTE: It is under this provision that APD sergeants and lieutenants, although management, are allowed to be members of the police union. Under the police union contract, they are required to work a 40-hour work week and are then are paid time and a half for all time reportedly worked over their 40-hour work week hours.
1.3.2. The City of Albuquerque extends to the Albuquerque Police Officers’ Association representing such unit of employees the following rights:
18.104.22.168 To represent the employees in negotiations and in the settlement of grievances;
22.214.171.124 To exclusive representation status during the term of this agreement as provided in the Employee Relations Ordinance;”
Following are the union contract provisions governing payment of overtime, compensatory time and the Fair Labor Standards Act provisions
… during the term of this Agreement the Parties will abide by the conditions of the 12-Hour MOU [Memorandum of Understanding].
3.2.1 Employees shall be entitled to overtime compensation at the rate of time-and-one-half their regular straight-time rate when they perform work in excess of forty (40) hours in any one workweek.
126.96.36.199 The workweek shall consist of seven (7) consecutive days beginning at 0001 each Saturday, or the tour starting the nearest to that time.
188.8.131.52 The workday will be any regularly scheduled, consecutive twenty-four hour period beginning at the start of the employees regularly assigned shift.
184.108.40.206 The Department shall retain the prerogative to implement either a four ten hour or five eight hour work schedule.
220.127.116.11 For the purpose of computing overtime, paid leave shall be considered time worked, as per Subsection 2.5 (FLSA).
3.3 Compensatory Time
… during the term of this Agreement the Parties will abide by the conditions of the 12 hour MOU.
3.3.1 Time worked over 40 hours per week will be compensated at 1-1/2 times the officer’s regular rate of pay, or in the form of compensatory time. Compensatory time will be computed at the rate of 1-1/2 times the hours actually worked. The maximum accrual of compensatory time for any officer, including Aviation Police, is 150 hours.
3.3.2 Upon separation of employment from the Albuquerque Police Department and Aviation, an officer is limited to cash-out of no more than forty (40) hours of unused comp time at straight time pay. Any accrual of comp time over forty (40) hours must be used 6 months prior to separation.
3.4 Fair Labor Standards Act
3.4.1 Under the Fair Labor Standards Act (FLSA), paid leave is not considered time worked for the purpose of computing overtime and the regular rate for the purpose of computing overtime includes all remunerations.
3.4.2 … during the term of this Agreement the Parties will abide by the conditions of the 12 hour MOU. The parties hereto agree that for the purpose of computing overtime, paid leave will be considered time worked and the regular rate includes the hourly rate with no other remunerations included. Under 7K of the FLSA, the parties agree that for the purpose of computing overtime, the pay schedule will be a 7-consecutive-day, 40-hour workweek.
3.4.3 Applications of the FLSA as it pertains to the exempt status of positions will not change from current practice.
POLICE UNION CONTRACT VIOLATES FEDERAL
One of the most dramatic findings in the Porch & Associates Audit is 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 points out that the union contract says “for the purpose of computing overtime, paid leave will be considered time worked” and the provision needs to be negotiated and says the City can save thousands of dollars in overtime by insisting that the APOA police union and APD follow the actually follow the Fair Labor Standards Act. The audit also said the City should not bargain away what is established by law.
The audit recommends 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.
APD POLICE UNION CONTRACT VIOLATES STATE LAW
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 … , may form, join or assist a labor organization for the purpose of collective bargaining … .”
The link to the statute is here:
By virtue of their job duties and responsibilities over lower ranking sworn police, Sergeants and Lieutenants are management. Simply put, the police union contract violates New Mexico’s collective bargaining laws by allowing Sergeants and Lieutenants to be a part of the collective bargaining unit.
FRAUD CAN BE BOTH CIVIL AND CRIMINAL
A victim of fraud has the options of initiating a civil cause of action against a perpetrator to recover a loss the result of fraud or to file criminal charges.
In very general terms fraud is defined as “the false representation of facts, whether by intentionally withholding important information or providing false statements to another party for the specific purpose of gaining something that may not have been provided without the deception.”
Fraud is an intentional deceptive act designed to provide the perpetrator with an unlawful financial gain. Often, the perpetrator of fraud is aware of information that the intended victim is not, allowing the perpetrator to deceive the victim for personal gain. Timesheet or time card fraud is when an employee puts down hours they did not work and collects payment for those hours not worked.
Under New Mexico criminal law, fraud is defined as follows:
“Fraud consists of the intentional misappropriation or taking of anything of value that belongs to another by means of fraudulent conduct, practices or representations” When a person is convicted of fraud, full restitution is usually made a part of the sentence. Under New Mexico criminal law, it is the amount of the value of the property misappropriated or taken that determines the degree of the charges brought and sentences imposed.
It is a fourth degree felony when the value of the property misappropriated or taken is over five hundred dollars($500) but not more than two thousand five hundred dollars ($2,500). A fourth degree felony convictions carry a basic sentence of up to 18 months in prison and a fine up to $5,000.
It is a third degree felony when the value of the property misappropriated or taken is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000). A third-degree felony convictions carryss a basic sentence of up to three years in prison and a possible fine of up to $5,000.
It is a second degree felony when the value of the property misappropriated or taken exceeds twenty thousand dollars ($20,000). The basic sentence for most second-degree felonies is up to nine years in prison, plus a maximum fine of $10,000″
COMMENTARY AND ANALYSIS
There a number of things that need to be done immediately to stop the APD overtime pay abuse.
THE CITY COUNCIL
The city council needs to demand that the Keller administration negotiate new terms of the police union contract in order to once and for all put a stop to APD’s decades long overtime pay abuses. Among the terms that need to be negotiated are:
1. Remove Lieutenants and Sergeants from the police bargaining unit and make them at will employees in order to conform with state law and federal law that prohibits management from joining the union.
When the Porch & Associates Audit says that there is a failure of APD supervisors to properly monitor and pre-approve officer overtime, what it fails to disclose is those supervisors are the management positions of lieutenants and sergeants who are allowed to join the APD police union despite being management.
Instead of enforcing limitations on overtime and preventing the overtime abuse, many sergeants and lieutenants simply participate in excessive overtime pay practices themselves and likely approve all overtime submitted by their subordinates to keep them happy and to maintain a working relationship with them and to garner favor with them.
2. Negotiate a term that makes it clear that “paid leave is not considered time worked for the purposes of computing overtime” in order to comply with the Federal Fair Labor Standard Act (FLSA).
3. Negotiate a term that whenever it is determined that overtime was paid in violation of APD standard operating procedures and overtime policy, the overtime pay must be refunded to the city either in single lump sum or garnishment of wages.
INITIATE CIVIL ACTION TO RECOVER OVERTIME PAID
One or more of the audits have identified just a few of the most egregious fraudulent overtime claims have been paid to APD employees, yet the city had done nothing to secure reimbursement for unauthorized overtime pay. Despite all the city and state audits on APD overtime pay abuses and extensive findings of inappropriate conduct, not once has the city ever initiated civil collection actions to recover the overtime paid. At a bare minimum, the City Attorney needs make demand for reimbursement of the pay or initiate civil collection action for reimbursement of overtime paid.
The city does have grounds for a civil cause of action to recover the fraudulent overtime pay. To that end, the City Attorney should make immediate demand for repayment of all fraudulent overtime pay and if refused by the employee, terminate them and immediately file a civil collection claim against the employee.
CRIMINAL INVESTGATION BUT NO CHARGES
Despite repeated referrals to the New Mexico Attorney General of audits revealing overtime pay fraud, not once has the New Mexico Attorney General ever brought criminal charges. If the Attorney General is incapable, unable or simply unwilling to initiate any criminal actions, he needs to make that known and refer the overtime abuse to the Bernalillo County District Attorney. Not once has the Bernalillo County District Attorney’s office been asked by the Mayor’s Office to step in and investigate time card fraud by the Albuquerque Police Department.
The answer to the Journal’s editorial question “How many overtime scandals will it take for the Albuquerque Police Department … to end them once and for all?” is it will take APD oversight watchdogs such as the Mayor, the City Council, the State Auditor, the Attorney General and the District attorney to do their jobs and actually do something when it comes to enforcing the law.
The Attorney General or the District Attorney need to prosecute, the City attorney needs to sue to recover overpayments and the Mayor and City Council need to negotiate new APD contract provisions to remove police management from the union, place a cap on overtime and enforce it or abolish overtime and make all APD sworn “at will” which will eliminate overtime pay requirements.
Otherwise, we can expect more audits costing thousands that will collect dust on shelfs and not worth a damn other than the value of the paper they are written on.