On Monday July 13, 2020 New Mexico State Auditor Brian Colon said his office was ordering a special audit of APD’s overtime payment policies to APD Police Officers. On the very same day, APD announced that longtime APD spokesman Sgt. Simon Drobik abruptly retired from the department and that APD’s Internal Affairs was in the process of completing an investigation into the large amounts of overtime Drobik had claimed.
In 2018, Drobik was paid $192,973 as a result of massive amounts of overtime claimed and he was continuing his pace of overtime pay in 2020 before he retired. For a number of years, payroll records show that Albuquerque officers who collect overtime pay are among the 250 highest paid city employees earning 2, 3 and even 4 times their base pay because of overtime.
Auditor Colón ordered a special audit of all APD overtime policies after he said his office found enough red flags related to overtime practices and internal controls at APD. According to the June 24, 2020 letter to Mayor Tim Keller, the Office of the State Auditor designated the City for a special audit “in order to examine the City’s compliance with applicable laws, regulations, policies, and procedures.” The special audit had to be paid for by the city with a selection of a firm from a list of firms authorized to do financial audits under a state contract with the State Auditor’s Office.
NM AUDITOR ASKS NM ATTORNEY GENERAL TO JOIN PROBE OF APD OVERTIME ABUSE
On July 15, 2020 State Auditor Brian Colón asked the New Mexico Attorney General Hector Balderas to join him with the probe into APD’s overtime practices. Colón said at the time:
“Together, we intend to determine what is really happening at the Albuquerque Police Department. … We will collaborate, bringing our respective strengths and skills to this investigation, to ensure no stone is left unturned.”
Colón asked the Attorney General Hector Balderas to assign special agents to work with his office’s auditors on its Albuquerque Police Department examination. Balderas for his part had this to say in a written statement:
“We have received the Auditor’s request and have assigned law enforcement to assist in this matter.”
https://www.abqjournal.com/1476402/ags-office-joins-investigation-into-apds-overtime-practices-ex-apd-says-its-conducting-an-internal-affairs-inquiry.html
FINAL SPECIAL AUDIT REPORT RELEASED
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:
https://drive.google.com/file/d/1sIsbWAGpIC2mDFs8bsbQ1BhYDOSXH8Ig/view
According to the newly released audit, it is the 7th audit performed on APD overtime practices since 2014. The audit includes the second term of previous Republican Richard Berry and the first two and a half years of Democrat Mayor Tim Keller’s 4-year term. The prior 6 audits resulted in 17 findings and recommendation made. The audit reports there was an absolute failure to carry out and implement the changes needed to solve the overtime problem. The audits further identify that certain APD police union contract terms and conditions are in violations of the Federal Labor Fair Standards act and that the union contract has contributed significantly to the overtime pay abuse by rank-and-file police officers.
State Auditor Brain Colón had this to say in part about the audit release:
“Six prior audits or investigations had been performed regarding APD overtime. Five of those reports have been reviewed as part of this report. This report is the seventh regarding APD overtime since the first report in May of 2014. Each of the reports had detailed findings and recommendations that were not implemented. … The 2014 and 2017 reports had all of the findings and recommendations necessary to fix and prevent the issues reported on in the 2018, 2019, and the 2020 reports. The findings were clear, as were the recommendations. However, the recommendations were not implemented.”
…
“There has been inadequate oversight by both the City and APD. The systemic cause is that the City did not have a procedure to ensure all open audit reports and unresolved findings were accumulated and worked on until resolved. … Continued failure to provide oversight, monitoring and accountability has resulted in abuse and contributed to the public’s mistrust. … The City and APD must not waste any time in implementing the identified opportunities for improvement.”
State Auditor Brian Colón said the audit found “a severe breakdown” and “lack of internal control” at the police department, which has resulted in a “damaged organizational culture.” The audit said the city and the police department repeatedly failed to fix the payroll system in place.
Colón in on-camera interviews with local news stations said:
“What we know in this case is that time and time again, leadership at APD clearly ignored the findings that were presented. … These are the kind of findings that lead to continued waste and abuse and ultimately fraud.”
“The most troubling thing is that we have had findings in the past that were ignored by [the APD] administration, and that is just going to be wholly unacceptable every single time.”
“It’s completely inappropriate to, you know, years later still not having policies and procedures in place to protect the citizens of Albuquerque when it comes to expenditures at APD.”
The links to quoted news source material are here:
https://www.krqe.com/news/politics-government/audit-makes-recommendations-for-apd-overtime-policies-practices/
https://www.koat.com/article/albuquerque-police-department-audited-for-overtime-pay-for-7th-time/37248257
https://www.kob.com/albuquerque-news/audit-apd-continues-to-abuse-overtime/6199260/?cat=500
SPECIAL AUDIT REPORT IDENTIFIES PROBLEMS
The Porch & Associates Audit identifies the major failures of APD dealing with overtime abuse. Those failures are:
1. The failure of APD supervisors to properly monitor and pre-approve officer overtime. There is a lack of internal controls for leave requests. The special audit specifically named now-former police officer and APD Spokesman Simon Drobik. Last year a separate APD Internal Affairs investigation found Drobik had committed rampant fraud.
2. As examples of fraud committed, the review of leave requests found that there was no record of leave request forms for one officer. In another instance an APD employee utilized system software to approve their own time resulting in over $8,000 dollars in overtime. Whether the time claimed was actually worked is unknown. In another instance, an officer submitted and was compensated for being “On call Status” 581 times in 2018. During those 51 weeks the officer worked 207 Chief’s Overtime Assignments. This is in direct violation of APD policy. Yet the officer knowing and repeatedly violated the policy to enrich himself. Despite the lack of supervision from the department, an officer’s moral code of ethics does not allow an officer to continually violate policy, especially for their own gains. The investigative report also found the officer submitted for 56 hours of compensation for 28 occasions on which he ran with the recruits at the Police Academy.
3. The overtime practice where officers who are on vacation or paid time off can use those hours as the basis for claiming overtime pay. The audit was clear that “parts of the APOA collective bargaining agreement (CBA) that allow for excess overtime compensation” are not allowed and violate the federal Fair Labor Standards Act. In particular, there is a Memorandum of Understanding (MOU) called a “12 Hour MOU” that deals with overtime, compensation time, work shift designation policy and what is referred to as a “comp time bucket”. According to one audit, the MOU is “scarcely followed”. Additionally, there is no clear indication or definition of the Department’s minimum staffing levels for shifts worked.
4. APD standard operating procedures are not being updated to in include changing and conflicting overtime policies. Several Department policies, including Standard Operating Procedures for overtime, compensatory time, and work shift designations, have not been reviewed or updated since March 10, 2016. Many rank and file officers as well as their supervisors, which are the Lieutenants and Sergeants who approve overtime, are confused as to what the overtime policies actually are and what they mean. Instead of getting any clarification or definitive answers from the Human Resources Department, they simply developed their own interpretations and allowed questionable overtime pay.
5. APD Officers are allowed to work “Chief’s Overtime”, which is working for a private company paying for security at the same time they are on on-call status with APD. The practice is a clear violation of APD personnel rules and regulations. The SOP policies are simply ignored and the overtime is allowed by supervisors to happen. The Porch & Associates Audit found a lack of internal controls and deficiencies for Chief’s Overtime. The Department’s policy does not list or define the eligibility requirements for officers working Chief’s Overtime. Although supervisory approval is required for other types of overtime, it is not required for Chief’s Overtime. Sworn police officers are allowed to cancel their regular shifts in order to work Chief’s Overtime which is more lucrative for the officer.
6. There is automatic award of two-hour overtime award, which pays time and a half per hour, for officers who have to appear in court for Driving While Intoxicating (DWI) arraignment and trials and traffic ticket violations they write. Even though a court appearance may take only 15 minutes, the officer is allowed to claim and be paid a full 2 hours of overtime at time and a half pay as mandated by the union contract. The system encourages officers to settle cases quickly so they can go home and collect 2 hours of overtime and not work the hours of overtime paid.
7. APD doesn’t monitor officer overtime for irregular activity. The Department does not have a policy or procedure in place that prevents and detects overlapping or incorrect reported time. APD does not reconcile its overtime transactions between its timekeeping and payroll systems thereby contributing to inappropriate and prohibited overtime pay at time and a half.
SUMMARY OF 5 RECOMMENDATIONS MADE IN PORCH & ASSOCIATES AUDIT
The newly released Porch & Associates Audit makes the following 5 major recommendations:
RECOMMENDATION #1:
It is recommended that the City negotiate with APOA 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.
RECOMMENDATION #2:
EDITOR’S NOTE: This recommendation reiterates the findings made in the prior reports, with those findings listed in the postscript to this blog article. Included in the recommendations are:
Establishing a memorandum of understanding with Metro Court for scheduling APD Officers’ court appearances to limit officer court appearances and optimize scheduling of officer court appearances
RECOMMENDATION #3
APD should consider working with the court system to implementing night court for cases that do not require a jury.
RECOMMENDATION #4
APD needs to work with the court system to use video appearances for officers going forward, and to eliminate in person appearances where possible.
RECOMMENDATION #5
The Porch & Associates Audit found that people who supervise officers have developed procedures, which they then provide to other officers via on-the-job training. The audit report recommends that these informal policies and procedures be documented and included in the next version of the APD Standard Operating Procedures.
KELLER ADMINISTRATION RESPONDS TO AUDIT
In its response to the audit findings, the Keller Administration issued a harsh statement blaming Mayor Tim Keller’s appointed former APD Police Chief Michael Geier for all the overtime abuse problems. The statement said in part:
“The former chief knowingly covered up overtime abuses and helped his favored employees’ game the system to enrich themselves. … The report makes it clear that the ‘tone at the top’ of APD was a major driver of the abuse and the failure to make needed changes. We didn’t hesitate to take bold action to remove the top cop and get the department back on track.”
APD spokesperson Gilbert Gallegos added that there will be a review of the top 20 overtime earners every quarter and said:
“There is no room for favoritism when it comes to protecting public funds. … It shouldn’t have taken multiple audits to fix APD’s overtime system. The problems and the solutions have been obvious for years. … We have a whole new chief, new deputy chiefs, the commanders of a new mayoral administration, city finance. So my assumption is they just didn’t know about these previous audits. … Under Chief Medina’s new leadership, he took quick action to implement those solutions and ensure there is an ongoing review of overtime so employees are held accountable.”
APD claims it started instituting policy changes last October. Under new policy, a 25-hour-a-week overtime cap is established and can only be waived when there is a staffing shortage.
APD Chief Harold Medina for his part said changes are already happening to create more oversight and said:
“We just notified commanders of their top 20 overtime earners for the department and we’re going to ask commanders to make sure that the surface and everything looks good and that there’s no issues, and in the near future we’re going to add an audit to that. ”
Links to the quoted source material are here:
https://www.krqe.com/news/politics-government/audit-makes-recommendations-for-apd-overtime-policies-practices/
https://www.abqreport.com/single-post/ot-audit-reveals-epic-failure-at-apd-city
FORMER APD CHIEF MIKE GEIER REACTS
On Friday, August 6, former APD Chief Mike Geier released the following statement in part through his attorney:
“I’ve reviewed the report by Porch & Associates. … To allege that I was inattentive or failed to take action regarding these issues is utterly false and not supported by the record of my actions which show, frankly, the Mayor’s interference with my efforts.
…
Following my review of the January 18, 2019, Albuquerque Police Department Overtime Evaluation report by the City, I prepared a summary regarding the recommendations and started a plan to address the issues raised in that report. … This plan, which was to be accomplished over 2019 and 2020 was presented and addressed to Mayor Keller’s executive team, including CAO Sarita Nair. … [T]his plan was promoted by my office in a April 27, 2019, media press release … a special order was [drafted] in 2019 but approval of that special order was withheld by the Mayor’s office.
…
… [I]n May of 2020, I initiated an APD IA investigation into the allegations concerning various APD personnel involved in approving Ofc. Drobik’s overtime earnings and from that investigation over eight persons were found to sustained findings of SOP violations.
If anybody was proactive in taking action to address the public’s concerns about APD overtime expenses, it was me and certainly not the Mayor or CAO Nair as the Porch Report shows.”
https://www.krqe.com/news/politics-government/audit-makes-recommendations-for-apd-overtime-policies-practices/
PORCH & ASSOCIATES AUDIT DEFICIENT WITH SPECIFICS
Police officers earning excessive overtime is nothing new. It has been going on for years. During the last 9 years, the Albuquerque Police Department has consistently gone over its overtime budget 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 a 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.
https://www.petedinelli.com/2018/03/30/apd-overtime-pay-abuse-and-recruitment-tool/
The 6-figure compensation being paid to sworn police can be attributed directly to “overtime” paid. There are nearly a dozen different types of overtime programs within APD. The categories where APD Officers can earn overtime include holiday work, tac-plan initiatives, training, call outs, calls for service, special events, administrative work, investigations, and court appearances. DWI check points and special events like the Balloon Fiesta and security detail for high profile dignitary visits are all events that require an extensive amount of overtime. The police union contract entitles a police officer to be paid “time and a half” when overtime is worked on any given day or week and has a mandatory 2 hour minimum overtime charge for court appearances even if less time is worked.
2019 AND 2020 LISTS OF 250 HIGHEST PAID CITY HALL WAGE EARNERS INCLUDES 160 SWORN POLICE EACH YEAR
The Porch & Associates Audit fails to delve into with any great detail the pervasive problem of overtime within APD involving more than just a few. For that reason, the 2019 and the 2020 city hall 250 highest paid wage earnings is offered as an indication of the extent of excessive overtime pay.
At the end of each calendar year, City Hall releases the top 250 wage earners. 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. 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. The link to an in depth blog article is here:
https://www.petedinelli.com/2020/05/28/9864/
APD LIEUTENANTS:
There were 32 APD Lieutenants in the list of 250 top paid employees in 2019 earning pay ranging from $108,031 to $164,722. Hourly pay rates for APD Lieutenants is $40.00 an hour or $83,200 yearly. The 5 highest paid APD Lieutenants for 2019 were:
1. Languit, Luke C Lieutenant $164,722.80
2. Patterson, Christopher Lieutenant $138,606.30
3. Jones, Aaron M. PD-Police Lieutenant $136,824.53
4. Bell Garcia, Jennifer L Lieutenant $134,492.33
5. Bassett, Jeremy D Lieutenant $132,599.17
APD Sergeants:
There were 32 APD Sergeants in the list of 250 top paid employees in 2019 earning pay ranging from $109,292 to $193,666. Hourly pay rates for APD Sergeants is $35 an hour, or $72,800 a year.
The 5 highest paid Sergeants in 2019 were:
1. Hernandez, Michael F Police Sergeant $193,666.40
2. Pholphiboun, Phetamphone B Police Sergeant $166,813.86
3. Lopez, Daniel J Sergeant $154,969.57
4. Martinez, Dominic P Sergeant $149,152.48
5. Hunt, Justin R Sergeant $140,961.94
APD Patrol Officers:
There were 70 APD patrol officers in the list of 250 top paid employees in 2019 earning pay ranging from $108,167 to $188,844. Hourly pay rates for Patrol Officers is $29.00 an hour to $31.50 an hour depending upon years of experience. The 5 highest paid Patrol Officers in 2019 were:
1. Johnson, Brian, Senior Police Officer 1C $188,884.04
2. Drobik, Simon Master Police Officer 1C $166,484.67
3. Pearson, Nicholas R Master Police Officer 1C $149,157.79
4. McCarson, Timothy W Senior Police Officer 1C $147,207.30
5. Hollier, Jeremy B Senior Police Officer 1C $143,229.86
160 OF TOP 250 CITY WAGE EARNERS FOR 2020 WERE SWORN POLICE
On January 28, 2020 , the 2020 listing of the top 250 wage earners was posted on the city web and it reflects that of the 250 top wage earners 160 sworn police officers are making between $110,648 to $199,001 a year. The top 15 of sworn police officers, their titles and what they earned in 2020 are as follows:
Hernanadez, Michael F., Sergeant, $199,001
Edison Jim A., Lieutenant, $186,944
Johnson, Brian A., Senior Patrol Officer, $176,709
Pearson, Nicholas R, Master Police Officer, $172,709
Hunt, Justin R., Sergeant, $163,372
Pholphilbourn, Phetaphone, Sergeant , $162,390
Richard, Joshua, Sergeant, $150,652
Champine, Daniel J., Master Police Officer, $150, 264
Lopez, Daniel, Sergeant, $149,281
Economy III, Byron G., Sergeant, $149,098
Rico, Michael K ., Senior Police Officer, $148,938
Del Geco, Raymond E., Lieutenant, $148,028
Mc Carson, Timothy W., Senior Police Officer, $148,938
Jones, Aaron M, Senior Police Officer, $147,843
Price, Bryan H., Lieutenant, $144,796
The link to the top paid 160 sworn police officers in 2020 is here:
https://publicreports.cabq.gov/ibmcognos/bi/?perspective=classicviewer&pathRef=.public_folders%2FTransparency%2FTop%2BEarners%2Bof%2Bthe%2BCity%2Bof%2BAlbuquerque_Department_Drillthrough&id=i77E31F34B06341588C6E000823376BA1&objRef=i77E31F34B06341588C6E000823376BA1&action=run&format=HTML&cmPropStr=%7B%22id%22%3A%22i77E31F34B06341588C6E000823376BA1%22%2C%22type%22%3A%22report%22%2C%22defaultName%22%3A%22Top%20Earners%20of%20the%20City%20of%20Albuquerque_Department_Drillthrough%22%2C%22permissions%22%3A%5B%22execute%22%2C%22traverse%22%5D%7D
COMMENTARY AND ANALYSIS
When you look at the entire pile of excrement that is the APD abuse of overtime scandal, there is no doubt who are truly responsible and who need to be held accountable. It is absolutely sickening and just plain wrong for Mayor Tim Keller, APD Chief Harold Medina and APD Spokesperson Gilbert Gallegos to lay any and all blame for the APD police overtime scandal and abuse on former APD Chief Michael Geier. What they are doing is making former APD Chief Michael Geier a scapegoat in an election year. All 3 are not above lying to do just that in order to protect Tim Keller’s chances for a second term. For a related article see: “Geier: Keller’s a liar” published on ABQ Reports
https://www.abqreport.com/single-post/geier-keller-s-a-liar
MAYOR TIM KELLER
Former Chief Michael Geier was Mayor Tim Keller’s first appointed Interim Chief then appointing him permanent. Confidential sources have said that in 2017 then Rio Rancho Chief of Police Michael Geier met with State Auditor and candidate for Mayor Tim Keller back before Keller announced for Mayor in January, 2017 and before Geier retired as Chief of the Rio Rancho Police Department on February 18, 2017. The very same sources have said that it was during the 2017 election Keller made the commitment in private to appoint Geier Interim chief and see how he performed before he was made permanent. Keller supposedly also gave Geier a full 4-year commitment to keep Geier during Keller’s entire first term.
Keller supposedly conducted a national search, but many believed the search was a sham. When Keller appointed Geier, he said he was the right man at the right time who was committed to all the APD reforms. Geier served loyally for close to 3 years until Deputy Chief Harold Medina ingratiated himself to Keller and CAO Sarita Nair and convinced them that Geier was a problem and should be removed.
When then State Auditor Tim Keller was running for Mayor in 2017, he was swept into office riding on a wave of popularity he orchestrated as State Auditor for a mere one year and six months of his 4-year term in office combating “waste, fraud and abuse” in government and boldly promising “transparency”. During his successful 2017 campaign for Mayor, Keller promised sweeping changes with APD. Keller promised a national search for a new APD Chief and a return to Community based policing and increasing the size of APD. He proclaimed he was uniquely qualified to be Mayor because of his background.
Absent from Mayor Tim Keller is any real acknowledgement of what happened on his watch and under his handpicked appointed Chiefs of Geier and Medina when it comes to the overtime abuses and the scandal. There is no press conference Keller is known for to announce what he intends to do now that the audit is out. There has been no transparency promised on Keller’s part, just a smile on his face and a grin in his voice. There are no statements nor even a commitment by Keller to adopt and implement all the recommendations made by the audits to prevent waste, fraud and abuse of police overtime. This coming from former State Auditor Tim Keller who made his reputation of being a “white knight” who combated “waste, fraud and abuse” and was swept into office in part because of that reputation. All we get is Mayor Tim Keller who is a middle aged man who likes to run around like some high school football jock who is elected student council president who announces on twitter the return of heavy metal concerts and who wants the public to pay for a $60 million dollar soccer stadium that he can romp around in reliving his high school glory days. Keller has always acted more like he is a celebrity as opposed to acting like the chief executive of a major city as he constantly seeks and thrives on attention.
APD CHIEF HAROLD MEDINA
Then you have the inept APD Chief Harold Medina who was First Deputy Chief in charge of Field Services for a full 3 years before Keller made him APD Chief. It was Chief Geier that recruited Harold Medina to return to APD and Medina proceeded to act like Judas undercutting all Geier was attempting to accomplish to the point Geier wanted to terminate Medina for insubordination for failure to implement a policy to bring down violent crime. The mistake Geier made was not to act before Medina went to CAO Sarita Nair and ran interference to get Geier fired first. Keller appointed Medina Chief despite Medina’s nefarious past and personal involvement with 2 police officer involved shootings with Medina actually saying the shootings made him qualified to implement the DOJ reforms.
As Deputy Chief of Field Services, Harold Medina must have known, or at very least should have known, of the overtime abuse that was going on, especially by field officers such as the DWI unit, that was under his command and control, yet Medina did absolutely nothing to curb the overtime abuse. Medina even says that the overtime abuse has been going on for some time and there are plenty others to blame over the years. As the Deputy Chief in charge of field services for a full 3 years, Medina no doubt knew what was going on in the field yet he did nothing to make sure the field Sergeants and Lieutenants under his command were following overtime practices.
APD SPOKESMAN GILBERT GALLEGOS
The comments of APD Spokesman Gilbert Gallegos when he says “there is no room for favoritism when it comes to protecting public funds” he thinks the public is stupid enough to think that he did not actually witnessed what was going on when it came to his APD Spokesman colleague Sgt. Simon Dolbeck who was paid thousands in fraudulent overtime. To what extent Gallegos himself has been given “favoritism” in overtime claimed and paid is totally unknown.
APD Spokesman Gilbert Gallegos has a reputation of being less than forthcoming and has issued false statements in the past when it comes to APD Police Chief Harold Medina as reflected in a blog article with the link here:
https://www.petedinelli.com/2020/09/21/apd-chief-medina-says-in-2010-interview-he-authorized-use-of-deadly-force-in-shooting-of-mentally-ill-ken-ellis-interview-reveals-medina-is-part-of-the-problem-apd-spokesman-gallegos-issues-fal/
POLICE UNION CONTRACT VIOLATES FEDERAL AND STATE LABOR LAWS
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. 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 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.
NO MENTION OF UNION CONTRACT VIOLATING STATE LAW
The Porch & Associates Audit downplays and essentially ignores the role of the APD Union membership of Sergeants and Lieutenants and the union contract in the entire overtime 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:
https://www.pelrb.state.nm.us/statute.php
Simply put, under the law, APD Sargeants and Luietentants are public management employees and are prohibited from joining a union. When the Porch & Associates Audits 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. Its Labor Law 101 that federal law prohibits management from joining unions. Simply put the police union contract violates state law when it allows the management positions of Lieutenants and Sergeants to be part of the union. Instead of enforcing limitations on overtime and preventing the overtime abuse, many sergeants and lieutenants simply participated in excessive overtime pay practices themselves and likely approved all overtime submitted by their subordinates to keep them happy and to maintain a working relationship with them and to garner favor with them.
APD Lieutenants and Sergeants are on the front-line management that oversee those officers who serve under their command. APD Lieutenants and Sergeants are primarily responsible for making sure that all Standard Operating Procedures (SOP’s) are followed and further it is they that must review and approve overtime. The excessive overtime paid over the years to rank and file police is a reflection of Lieutenants and Sergeants not doing their jobs of oversight and prevention of overtime abuse.
APD Lieutenants and Sergeants, and Patrol Officers are all are “classified” positions and can only be terminated for cause. APD Lieutenants and Sergeants are included in the police collective bargaining unit. Any and all disciplinary actions taken against APD Lieutenants and Sergeants, Patrol Officers are governed by the union contract. They have due process rights including progressive disciplinary actions and rights of appeal.
APD Lieutenants and Sergeants need to be removed from the collective bargaining unit and made at will employees so that they can be held accountable for failure to act and failure to oversee those they are responsible for and not become part of the problem.
NEGOTIATE NEW POLICE UNION CONTRACT TERMS
The two-year police union contract negotiated by the Keller Administration in 2018 expired on July 1, 2020. Negotiations on a new contract have been suspended predominately as a result of the Corona Virus pandemic. When a union contract expires, the terms of the expired contract continue until a new contract is negotiated. Therefore the 2018 contract terms have been extended for over a year.
The Keller Administration needs to demand that the police union contract negotiations be commenced immediately. Among the terms that need to be negated 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 a union.
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. Remove the guaranteed payment of overtime at time and a half and replace it with actual hourly paid to an officer.
4. 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.
5. The Albuquerque City Council needs to enact as part of the city’s personnel rules and regulations prohibitions 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.
INITIATE CIVIL ACTION FOR FRAUD TO RECOVER FRAUDULENT OVERTIME PAID
One or more of the audits have identified just a few of the most egregious false fraudulent overtime claims paid by APD employees. It is commonly referred to as “time card” fraud and the city has been successful in the past in making a recovery. 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.
NEW MEXICO ATTORNEY GENERAL HECTOR BALDERAS
On August 8, it was reported that the FBI and Homeland Security investigators are looking into alleged overtime cheating in the Lordsburg Police Department. The targets of the ongoing investigation are two brothers who at one time served as the No. 1 and No. 2 police officers in the small southwestern New Mexico city. No criminal charges have been filed, but a series of search warrant affidavits filed in U.S. District Court in New Mexico allege the brothers have been paid for “many” hours of overtime for federal border security work they didn’t perform. Such an investigation has already been accomplished with 7 audits of APD overtime abuses.
https://www.abqjournal.com/2417719/fbi-probes-ot-issues-in-lordsburg-police-force.html
It has been confirmed that New Mexico State Auditor Brian Colon has forwarded the Porch & Associates Audit on APD overtime abuse to New Mexico Attorney General Hector Balderas for his review and possible criminal prosecution by his office. No doubt Balderas is preoccupied with the ongoing investigation of former New Mexico House Majority Floor Leader Representative Sheryl Williams Stapleton for fraud, racketeering, money laundering, receiving illegal kickbacks and violations of the state’s Governmental Conduct Act.
The allegations against Stapleton involve a kickback scheme with an Albuquerque Public Schools (APS) vendor that was paid more than $5 million for over a decade . According to news reports, bank records show that businesses, including a restaurant, and charities Stapleton either owns or had close ties to received more than $950,000. Stapleton is also being investigated by the Justice Department on the monies she administered in federal grants to APS.
The allegations against Sheryl Williams Stapleton are really child’s play in comparison to the overtime fraud that has been uncovered by all 7 of the audits of APD. Instead of the fraud involving upwards of $6 Million over a 10-year period by Stapleton, the police overtime involves between $3 and $5 million a year for 7 years in overtime abuse and perhaps millions of fraudulent overtime paid to law enforcement who have taken and oath to serve and protect the public and who cannot be above the law. The collective action of those who engaged in time card fraud is far more serious that the actions of a disgraced elected official we have become accustomed to in New Mexico politics.
Attorney General Hector Balderas needs to announce sooner rather than latter what he intends to do with the APD overtime scandal and announce if indictments will be sought. As an alternative to any criminal charges, the Attorney General should initiate a civil cause of action to recover any documented and fraudulent overtime pay.
If Balderas is reluctant to act because he is too busy and preoccupied, he needs to refer the matter to District Attorney Raul Torrez to pick up the case to prosecute for government corruption within the largest law enforcement agency in New Mexico. It should be noted that the Bernalillo County District Attorney’s Office has in the past used a State Auditor’s report to convene a grand jury to investigate criminal conduct at city hall and did so to investigate the airport observation deck scandal that occurred under the Mayor Chavez Administration.
CONCLUSION
New Mexico State Auditor Brian Colón has done his job in ordering the audit and releasing it to the public and forwarding the audit to the New Mexico Attorney General. The fact that the State Auditor can only audit and has absolutely no prosecution authority was reason for asking Attorney General Hector Balderas to join in the probe.
Unless action is now taken by the City and the New Mexico Attorney General based on the audit, it will have been a total waste of time and taxpayer money. The audit will be relegated to collecting dust on some government shelf destined to be place into some government records archive until an 8th audit is performed on APD’s overtime and the process of overtime abuse by APD continues.
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POSTSCRIPT
PRIOR FINDINGS AND RECOMMENDATIONS IN AUDITS
EDITOR’S NOTE: Although the following have been identified as “prior findings” in the audits, they are essentially recommendations that need to be implemented. The findings have been edited to remove language that the city and APD “should” or “should consider” or “needs to” or “something may be happening” and substitutes language that is more definitive as to what needs to be done to correct problems identified.
The audit reiterates 17 findings and 22 related recommendations reported in the prior reports.
The prior findings and prior recommendations are as follows:
PRIOR FINDINGS
Prior Finding #1:
APD should establish a memorandum of understanding with the Metropolitan Court for scheduling APD Officers’ court appearances.
Prior Finding #2:
APD should work closely with the City’s Department of Finance and Administrative Services – Information Technology Services Division (ITSD) to Implement a new timekeeping system to ensure that officer overtime data is accurately collected and efficiently managed.
Prior Finding #3:
APD should internally track officer court attendance in order to address instances of officer “failure to appear” (FTA) at court hearings.
Prior Finding #4:
APD should enforce standard operating procedures regarding court overtime slips to ensure that information is properly documented.
Prior Finding #5 Finding:
APD should retain overtime supporting documentation with payroll timesheets to ensure efficient and complete record retention.
Prior Finding #6:
APD Should Ensure that Protocol is Followed for the Preapproval and Recording of Overtime. APD personnel do not consistently follow Standard Operating Procedures (SOPs) for pre-approving and recording overtime transactions including the pre-approval and compliance for grant funded overtime. The SOPs have specific requirements that must be followed when pre-approving and recording overtime transactions. Unauthorized overtime is being paid for transactions that are not preapproved.
Prior Finding #7:
APD needs to monitor officer overtime for irregular activity. APD does not monitor officer overtime for irregular activity to identify potential issues that would otherwise be undetected. When overtime is not monitored for irregular activity, potential issues such as collusion might not be identified, and unauthorized overtime transactions might be paid.
Prior Finding # 8:
APD needs to reconcile overtime transactions between the timekeeping and payroll systems. APD’s Fiscal Division does not reconcile between the timekeeping and payroll systems. If actual overtime paid is not reconciled to what was uploaded from the timekeeping system, changes made to the payroll system after the upload may not be valid or authorized. Changes to the payroll system can be made after the upload from the timekeeping system, which may contain unauthorized overtime changes that would remain undetected.
Prior Finding #9:
The City of Albuquerque needs to insist that the Fair Labor Standards Act language which states “paid leave is not considered time worked for the purposes of computing overtime” be in the new negotiated contract. The City of Albuquerque can save thousands of dollars in overtime by insisting that the APOA police union and APD follow the Fair Labor Standards Act. The City should not bargain away what is established by law.
Prior Finding #10:
The City of Albuquerque need to insist on language that mandates that all “comp time” earned must be utilized within 180 days of accrual. If the comp time is not used the balance must be paid to the employee on the next regularly scheduled payroll. Without this language, APD officers have no incentive to ever reduce their comp time balances and the City is forced to pay thousands of dollars out of APD’s overtime budget when overtime pay may not be warranted.
Prior Finding #11:
Pursuant to the City Office of Internal Audit Performance Audit regarding Officer Overtime Audit #16-107 dated March 17, 2017, the City needs to insist that APD follow the recommendations of the City Auditor as APD agreed to do. Another Audit of APD Overtime needs to be done of the Chief’s Overtime Program. The audit should explore the actual cost to the City of the Chief’s Overtime program versus what the Chief’s Overtime Program brings in. The Audit should cover how many officers take time off from their regularly scheduled duties to go work a Chief’s overtime during those same hours. The audit needs explore whether or not another officer had to be called in on overtime to handle the off-duty officer’s duties on that shift on that day because the staffing level was below the 70 percent threshold. Lastly, the Audit should determine whether or not the Chief’s Overtime Program violates the Anti-Donation Clause of the State Constitution.
Prior Finding #12:
APD should immediately revise its policy on overtime. Officers should be limited to working no more than 25 hours per week of overtime and that is inclusive of all overtime. The policy should prohibit officers from taking comp time or vacation from their regularly assigned duties for the sole purpose of working a Chief’s Overtime assignment. APD supervisors, prior to approving a leave request, should be required to check with the Chief’s Overtime Program to make sure that the officer is not signed up for Chief’s Overtime and/or they are not taking leave to go work a Chief’s Overtime Assignment during the very same hours they are scheduled to work their assigned shift. Officers should be prohibited from working Chief’s Overtime if they are in an “on-call” status. The policy should reflect any recommendations that were made by the City Auditor. Lastly, the policy should be vigorously enforced and adhered to by all APD personnel.
Prior Finding #13:
Twenty five prior recommendations are listed below in this blog article postscript.
Prior Finding #14:
APD needs to seek repayment from officers, if upon research by the department, it is determined that the employee was overpaid. APD needs to begin conducting periodic spot-checks of officers’ time to verify that the time reported in TeleStaff is accurately supported by the time reflected in the officers’ Computer Aided Dispatch reports. This review could be conducted internally by management or by Internal Affairs or the Office of Internal Audit.
Prior Finding #15:
APD must continue its efforts to update Standard Operating Procedure 3-20 Overtime, Compensatory Time and Work Shift Designation (SOP 3-20) to reflect current payroll and overtime practices and to include procedures surrounding time approvals and monitoring of total overtime by supervisors. APD should review payroll and timekeeping systems for possible system improvements and require that supervisors successfully complete TeleStaff Supervisor Training in order to approve subordinates’ time.
Prior Finding #16:
APD should negotiate changes in its Collective Bargaining Agreement with the APD union so that overtime is calculated based on the number of hours actually worked each week, which is consistent with the requirements of the Fair Labor Standards Act. APD should expand compensatory and overtime polices so that using other forms of paid time off, to work overtime, including Chief’s Overtime, is no longer permitted.
Prior Finding #17:
Communicate to staff the City and the department’s policies prohibiting employees from lending their password or username to anyone.
PRIOR RECOMMENDATIONS MADE IN AUDITS
The 25 recommendations made in prior audits are as follows:
1. Begin budgeting for overtime at the Department ID level.
2. Provide Commanders with data about overtime usage and hold them
accountable for managing overtime.
3. Encourage direct supervisors to adjust work hours when appropriate.
4. Centrally review overtime usage each pay period and hold Commanders
accountable.
5. Take Holiday Pay overtime into consideration when evaluating schedule
changes.
6. Adopt plan for filling specialized unit and patrol positions.
7. Calculate minimum manning levels at the area command (rather than team)
level.
8. Update minimum manning levels based on demand and a proactive policing
service standard.
9. Ensure adopted shift schedule is the most efficient and effective deployment
approach.
10. Develop training plan that maximizes amount of training completed during
normal duty hours and minimizes training completed on overtime.
11. Begin more accurately tracking the full impact of training on overtime by
adding additional overtime codes.
12. Establish and enforce training attendance guidelines.
13. Review training management systems currently in place throughout the City for
opportunities to more efficiently and effectively manage training.
14. Adopt minimum number of years for specialized positions.
15. Explore opportunities to minimize the amount of non-grant funded tact plan
activities completed on overtime.
16. Conduct preliminary assessments to minimize the amount of unnecessary call
out overtime.
17. Evaluate opportunities to provide the Investigative Services Bureau with
additional administrative support.
18. Work with Metro and District Court to limit officer court appearances.
19. Work with Metro and District Court to optimize scheduling of officer court
appearances.
20. Implement an early notification system to ensure officers do not show up to
court unnecessarily.
21. Stop approving administrative overtime and community meeting overtime.
