A two-year police union contract negotiated by the Keller Administration went into effect on July 7, 2018 and expired June 30, 2020. Negotiations on a new contract between the City and the police union went on until March 2020, but the negotiations were suspended and a contract was not never finalized. The negotiations for a new contract were suspended because of the corona virus pandemic and the uncertainty of the city’s revenues for the new fiscal year that began on July 1, 2020 and ends June 30, 2021. A final budget has yet to be approved by the City Council.

Until a new union contract is negotiated and approved by union membership, the terms and conditions of the old two-year contract remain in effect. collective bargaining unit. The Police Union no doubt wants to continue the terms of the expired contract in that the terms are very lucrative when it comes to increases in pay and longevity pay. The expired union contract locks in who can be part of the collective bargaining unit, which now includes the management positions of sergeants and lieutenants.

APD FORWARD SUBMITS PETITION FOR CHANGES IN APD UNION CONTRACT

APD Forward includes upwards of 20 organizations who have affiliated with each other in an effort to reform APD and implement the DOJ consent decree terms and reforms. APD Forward is one of the main stakeholders who appears during the court hearings. Members of APD Forward include Albuquerque Health Care for the Homeless, American Civil Liberties, Bernalillo County Community Health Council, Coalition to Stop Violence Against Native Women, Common Cause New Mexico, Disability Rights New Mexico, Episcopal Diocese of the Rio Grande, Equality New Mexico, La Mesa Presbyterian Church, League of Women Voters of Central New, Mexico New Mexico Conference of Churches, New Mexico Criminal Defense Lawyers Association, Sierra Club Rio Grande Chapter, Street Safe New Mexico, the Transgender Resource Center of New Mexico.

On October 8, 2020 APD Forward along with the New Mexico Criminal Defense Lawyers Association submitted to the City of Albuquerque a police reform petition signed by 1,200 people and demanding changes in the Albuquerque Police Officers’ Association (APOA) collective bargaining contract with the City. The collective bargaining contract not only dictates pay and benefits but includes terms and conditions of a worker’s employment. When it comes to APD police officers, the contract establishes the manner and method for disciplining officers.

As the City of Albuquerque negotiates a new labor contract with the police union, APD Forward and others are demanding the City include police reform in the new contract. Police reform advocates who are stakeholders in the federal lawsuit believe the current Albuquerque Police contract is interfering and preventing full implementation of all the CASA reforms.

In a June 23 guest column published in the Albuquerque Journal, New Mexico Criminal Defense Lawyers Association (NMCDLA)Executive Director Paul Haidle outlined 3 major provisions that should be included in the new union contract. The 3 new terms are:

1. REMOVE THE 90-DAY LIMIT ON INVESTIGATIONS OF POLICE OFFICERS

The current collective bargaining agreement (CBA) requires any administrative investigation of an officer accused of misconduct to be completed within 90 days, subject to a possible extension of up to 30 days if approved by the chief of police. Both the Civilian Police Oversight Agency and the independent monitor overseeing APD’s reform agreement with the U.S. Department of Justice have singled out this provision as a significant obstacle to officer accountability, resulting in many complaints expiring because the clock runs out on their investigations. The mayor should insist on a limit of no fewer than 180 days for administrative investigations, in line with the standard for most other police departments nationally.

If the investigations are not completed within the allotted time of up to 120 days the officer cannot be disciplined. The petition calls for the time limit to be increased to 180 days in order to guard against complaints expiring once the time expires

2. RELEASE INFORMATION ABOUT OFFICER MISCONDUCT TO POLICE OVERSIGHT BOARD

[The union contract] severely restricts the information the director of the Civilian Police Oversight Agency may share about investigations into officer misconduct with the Police Oversight Board (POB), even though the board is responsible for approving the findings of the director and any disciplinary recommendations to be made to the chief of police. The current CBA even prohibits the POB from knowing the identity of the officer, preventing it from identifying officers who are repeat offenders. Mayor Keller should strike this limitation from the agreement.

The petition simply also calls for the Civilian Police Oversight Agency board to be able to have more information about investigations.

3. DON’T GIVE OFFICERS UNFAIR ACCESS TO INFORMATION

Though the POB is precluded from knowing the names of officers under investigation, ironically, the CBA extends no such courtesies to people who file complaints. [The union contract] requires the identity of the person or officer making the charge be shared with the officer under investigation, if it is known. People who file complaints against officers therefore must weigh the risks of possible retaliation before reporting misconduct. The mayor should strike this requirement.

https://www.abqjournal.com/category/guest-columns

NMCDLA Executive Director Paul Haidle had this to say about the proposed 3 additions to the police union contract:

“We’ve got a couple of easy fixes that would go a long way to producing accountability. … When the collective bargaining agreement doesn’t even allow an officer’s name to be shared with the Board that is supposed to be providing oversight, how on earth is the board supposed to know if one officer keeps repeating the same infractions of policy.”

Regarding the withholding of the identity of people filing complaints against officers to be withheld from that officer, Haidle had this to say:

“It raises serious concerns of the likelihood of a person actually breaking that thin blue line and sharing information about wrongdoing, that they’ve seen officers engage in because there’s always a fear of retaliation.”

Haidle said over the years police unions have used the collective bargaining agreements to make it almost impossible to hold officers accountable for violating people’s rights or using excessive force, including deadly force. According to Haidle:

“This creates a culture of impunity that is toxic to good policing and destroys community trust. With this petition, the people of Albuquerque are asking their mayor to take a step towards finding balance between fairness to officers and officer accountability. Going forward, we must also ensure additional accountability measures are enshrined in state law.”

Micah McCoy, a spokesman for the American Civil Liberties Union of New Mexico, said the 3 three changes to the agreement are needed in order to enhance police accountability.

POLICE UNION RESPONDS

Police Union President Shaun Willoughby was quick to say the union has no interest in revisiting the items in the petition and said:

“There’s no need for the APOA to encourage a revisiting. we’re definitely comfortable with the agreement we made. I think it’s well rounded and I think the APOA has been part of the reform effort.”

As to the Police Oversight Board having access to officers’ names, Willoughby had this to say:

“I don’t believe it’s necessary for the POB to have access to officer’s names. If we have an officer that does something egregious, they usually get released pretty quickly and abruptly. If an officer gets criminally charged for whatever reason, its a matter of public record.”

Regarding the withholding of the identity of people filing complaints against police officers be withheld from that officer Willoughby had this to say:

“I think we have a right to know who filed a complaint against usI don’t think there’s been one evidentiary case of a police officer retaliating against the public, I think that is a completely false narrative.”

Willoughby did say said the union is open to one suggestion in the petition of extending the limit on administrative investigations that now stands at 90 days. The union said it would consider a 120-day limit with additional days for further review.

POLICE UNION PROCLAIMS IT ALREADY HAS IRON CLAD CONTRACT

According to APOA President Shaun Willoughby, the city and the union had an early start on negotiations and already came to a successful agreement in everything except for financial matters in early March. Although Willoughby acknowledged the contract has not been signed yet he said:

“In my perspective … what’s agreed upon is pretty ironclad. From the APOA’s standpoint we would not be interested in changing what we already agreed to because of somebody’s petition.”

THE CITY RESPONDS WITH PUSH BACK

The City said they will review the recommendations and take them into consideration when negotiations resume. City Attorney Esteban Aguilar said he doesn’t have a date for when negotiations will resume and there is no deadline to start up negotiations again and said:

“We share some of these concerns and will review the recommendations and take them into consideration when the negotiations resume. Negotiations are not final until a formal agreement is made.”

Links to related news stories are here:

https://www.krqe.com/news/latest-news/petition-calls-for-apd-union-contract-reform/

https://www.abqjournal.com/1505273/police-reform-group-asks-for-changes-to-union-agreement.html

KELLER’S COSTLY POLICE UNION ENDORSEMENT

On September 28, 2017, Albuquerque Police Officers Association (APOA) endorsed Tim Keller for Mayor. Under normal circumstances, union endorsements are common place, but when it comes to the APD, it is a department in crisis and for the first time in its history is under a Department of Justice consent decree.

https://www.abqjournal.com/1067209/albuquerque-police-union-endorses-keller.html

At the time of its endorsement of Keller, the Police Union had been at impasse with no contract for a full 8 years with the previous Republican Berry Administration. Mayor Berry unilaterally decided not to pay 5% pay raises negotiated in good faith by the police union and eliminated longevity pay for rank and file and even eliminated the take home car policy. The police union wanted influence over the next Mayor and the Tim Keller wanted the vote of rank and file police officers and be able to say law enforcement had his back and he had theirs.

The police union endorsement paid off in a big way for the union at the expense of taxpayers. Within 7 months after being sworn in, the Keller Administration signed a two-year contract that went into effect on July 7, 2018 and expired June 30, 2020. The police union contract gave significant raises to virtually ever sworn police office as well as increased longevity pay bonuses to the point that APD is one of the best paid law enforcement agencies in the region and in the country when you include retirement benefits.

POLICE UNION POLL

The love between the Tim Keller and the Police Union went away within 24 months after the 2-year contract was signed on July 7, 2018. On July 23, 2020 the Albuquerque Police Officers’ Association (APOA) released the results of its annual “State of Policing Survey”. The survey was sent out in a department wide email to all 965 sworn police with only 433 participating. The highlights of the survey released are as follows:

80% of APD officers who responded have considered a new line of work in the past couple of months and of those 84% said it was due to the “current view on policing, the increased scrutiny on officers, new reform efforts and job insecurity.”

62% of sworn police officers do not feel they are being supported by Police Chief Michael Geier.

96% of sworn police do not feel supported by the City Council.

83% of sworn police do not feel supported by Mayor Tim Keller.

88% of sworn police are concerned about losing “qualified immunity”. “Qualified Immunity” is where sworn police officers are not personally held liable for anyone they injure or killed on the job. Under “qualified immunity” the city assumes full responsibility for any and all conduct, intentional or negligent, by sworn police.

68% of officers said it was “unlikely or very unlikely” that they would recommend police work as a career choice to others.

A link to a related blog article on the police union poll is here:

https://www.petedinelli.com/2020/07/24/apd-union-releases-annual-push-poll-survey-mayor-tim-keller-has-been-had-by-police-union/

COMMENTARY AND ANALYSIS

Given the results of the police union survey, it is not at all surprising that the union does not want to negotiate any new terms to the new contract, especially if the new terms would help ensure that all the CASA reforms are implemented. It’s also likely the union survey was taken as a ploy and to gain an advantage with union negotiations seeing as Mayor Tim Keller has already made it known he is seeking a second term next year and he will want the unions endorsement again. It is more likely than not that the police union will once again peddle its influence and go with the candidate for Mayor who will promise them the most.

It is downright laughable the comments made by the union President when it comes to contract negotiations. Police Union President Shaun Willoughby is either trying to practice law without a license or just playing ignorant when he says:

“In my perspective … what’s agreed upon is pretty ironclad. From the APOA’s standpoint we would not be interested in changing what we already agreed to because of somebody’s petition.”

The union contract is not “pretty ironclad”, it still has to be approved by a vote of the union membership and it still has to be signed by the parties, including the city’s representatives before it is a binding contract. Only until then is there a contract and until that happens the terms of the expired contract continue as binding.

Now that the police union survey says 83% of sworn police do not feel they are supported by Mayor Tim Keller, you got to wonder how anxious Keller will be to seek the union endorsement as he seeks a second term in 2021 and what concessions the union will want from him. One thing is for certain, Mayor Keller no doubt feels he has been taken advantage of by the Police Union. In other words, Mayor Keller has been duped. If Keller does not feel that way, he will probably knock himself out and try to get the Police Union endorsement once again. If he does, it is hoped he does not make any more financial concessions because the last time he did that, it cost taxpayers millions for an ungrateful police union who oppose the DOJ police reforms and that does not want civilian oversight.

ADDITIONAL TERMS

In addition to the 3 terms proposed by the APD Forward, the ACLU and the New Mexico Criminal Defense Lawyer’s Association, there are 2 more terms that are far more important that need to be negotiated by the City and made a part of the APD Union Contract. The two terms will in fact go a long way to actually implement all the DOJ reforms. Those 2 terms are:

NEW TERM: SERGEANTS AND LIEUTENANTS NEED TO BE MADE AT WILL EMPLOYEES AND REMOVED FROM THE POLICE COLLECTIVE BARGAINING UNIT

The federal court appointed monitor has repeatedly said in no uncertain terms that there are problems with APD sergeants and lieutenants enforcing policies and their refusal to discipline officers who violate the policies under the CASA. The police union and its leadership have said in open court that it feels the mandated reforms under the consent decree are interfering with rank and file officer’s ability to perform their job duties.

A mere 14 months ago during the August 20, 2019, a day long status conference, police union President Shaun Willoughby made is clear that the police union is hostile towards the CASA. District Court Judge Browning asked APOA Union President Shawn Willoughby what he and the union rank and file felt about the CASA. Willoughby’s responses were a quick condemnation of the CASA when he said “we hate it”, “we’re frustrated”, the reforms and mandates are “a hard pill to swallow”, and that “all change is hard”. According to Willoughby, police officers are afraid to do their jobs for fear of being investigated, fired or disciplined. In the same breath, Willoughby went on to brag about how his union, unlike other police unions in city’s with consent decrees, actually worked and cooperated with the city and the DOJ.

The police union has never articulated in open court and in clear terms exactly what it is about the reforms that are keeping rank and file from “doing their” jobs and “why they hate” the CASA as articulated by the union president. It’s likely the union feels what is interfering with police from doing their jobs is the mandatory use of lapel cameras, police can no longer shoot at fleeing cars, police can no longer use choke holds, police need to use less lethal force and not rely on the SWAT unit, police must use de-escalating tactics and be trained in crisis intervention, and management must hold police accountable for violation of standard operating procedures.

According to the Federal Monitors 10th report:

“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.

Police sergeants and lieutenants by virtue of their titles, responsibilities, management and supervisory authority over sworn police officers are part of the “chain of command” management team of the police department. Including APD police sergeants and lieutenants who are part of management in the collective bargaining unit creates a clear conflict of interest. It sends mixed messages to rank and file sworn police officers. The police union refuses to acknowledge or agree to the removal of the sergeants and lieutenants from the bargaining unit knowing it will eliminate the unions ability to influence them in management and it will reduce the size of the dues paying union membership.

APD police sergeants and lieutenants are the ones on the front line to enforce personnel rules and regulations, standard operating procedures, approve and review work performed and assist in implementing DOJ reforms and standard operating procedures policies. This point was repeatedly made by the Federal Monitor when he said “until the sergeants are in harness and pulling in the same direction as the chief, things won’t get done as quickly”. Others said the same thing during the August 20, 2019 hearing. In other words, without the 100% support of the sergeants and lieutenants to the CASA and mandated reforms, there will be little or no progress made with “operational compliance” and reaching a 95% compliance rate will take years.

Sergeants and lieutenants need to be made at will employees and removed from the collective bargaining unit in order to get a real buy in to managements goals of police reform and the CASA. APD Police sergeants and lieutenants cannot serve two masters of Administration Management and Union priorities that are in conflict when it comes to the CASA reforms.

When police contract negotiations begin again in earnest, the city needs to demand that the management positions of APD sergeant and lieutenant be removed from the APOA Union bargaining unit. Otherwise, Mayor Tim Keller Administration should seek to have the APOA Union removed as a party to the federal lawsuit, the consent decree and CASA negotiations.

NEW TERM: RESTRUCTURE APD 40 HOUR WEEKLY PAY SYSTEM TO SALARY PAY SYSTEM.

Police officers earning excessive overtime is nothing new. It has been going on for years and is very common knowledge. During the last 10 years, the APD 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 taking advantage of 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.

On May 29, former APD Chief Michael Geier issued a special order capping the amount of regular time and over time that officers can work to 65 hours a week. For an officer that works a regular 40-hour shift, that means a maximum of 25 hours of overtime a week. Interim Chief Harold Medina has yet to say if he will keep the new policy in place. The new overtime policy is a good first step, but it does not go far enough and will likely be abused, no doubt with the blessing of the APD chain of command, especially now that Geier is gone. The new policy has a glaring loophole. The policy states “The Chief of Police or his designee can waive the weekly cap to meet department operational needs.” No doubt, as in the past there will be those who will take advantage of the loophole.

https://www.petedinelli.com/2020/06/10/excessive-overtime-abuse-will-continue-under-apds-new-overtime-policy/

Authorizing a 65-hour work week with the normal 40 hours work week and adding 25 hours of overtime does not make much sense if you want to avoid extreme fatigue and emotional burnout. It is likely given the amount of pay involved, more officers will want to work 65-hour work weeks, 40 at regular pay and 25 at time and a half. The 25-hour cap on overtime should be monthly, not weekly and an “on call” shift pool of officers should be created.

REAL SOLUTION TO STOPPING OVERTIME ABUSE

As a viable solution to paying millions in overtime and longevity bonuses the City negotiate with the union do away with APD hourly wage and time and a half for overtime for sworn police and implement a salary structure based strictly on steps and years of service. A complete restructuring of the existing APD 40-hour work week and hourly wage system needs to be implemented and can be done with a new police union contract.

A base pay salary system should be negotiated with the police union and be implemented for all APD sworn personnel. A base salary system with step increases for length of service should be implemented. The longevity bonus pay would be eliminated and built into the salary structure. Mandatory shift time to work would remain the same, but if more time is needed to complete a work load or assignments for the day, the salaried employee works it for the same salary with no overtime paid and a modification of shift times for court appearances.

APD Patrol Officers First Class who handle DWI during nighttime shifts should be required to change their shift times to daytime shifts when the arraignments and trials occur to prevent overtime pay. As an alternative to DWI arraignment, the City Attorney’s Office should explore the possibility of expanding or modifying the Metro Traffic Arraignment Program with the Bernalillo County District Attorney’s Office assisting to include not just traffic citations but DWI arraignments to eliminate the need for APD officers to appear at such arraignments.

Until real overtime pay and salary pay reform is implemented at APD, do not expect too much to change and expect the overtime abuse to continue at APD.

https://www.petedinelli.com/2020/06/10/excessive-overtime-abuse-will-continue-under-apds-new-overtime-policy/

FINAL COMMENTS

The current police union contract expired on June 30. The City and the Union have now suspended their negotiations because of the corona virus pandemic and the uncertainty of the city’s revenues for the new fiscal year that begins July 1. The union contract negotiations must commence soon.

Until a new union contract is negotiated and approved, the terms and conditions of the old contract will remain in effect. The Police Union no doubt wants to continue the terms of the expired contract. There is no real excuse to delay negotiations on the 5 major changes to the APD Union Contract as outlined. Delay will only allow the Union to continue dictating to the city what should be done and continue its efforts to obstruct implementation of the police reforms under the CASA.

The Police Union will no doubt want to get involved once again in the 2021 election for Mayor with an endorsement. Mayor Tim Keller, Bernalillo County Sheriff Manny Gonzales who have said they are running for Mayor next year, and potential candidates for Mayor being mentioned including former APD Chief Michael Geier, real estate developer Steve Maestas of Maestas & Ward, former City Councilor Dan Lewis, City Councilor Pat Davis, a failed US Senate candidate Mark Ronchette or anyone else the Republicans find to run, would be wise to avoid seeking the Police Union endorsement. With the Police Union it’s always a question of what will you do for us after your elected and what have you done for us lately, but that is a subject best left to future blog articles.

Since November 16 2014, the Albuquerque Police Department (APD) has been under a Federal Court Approve Settlement Agreement (CASA) mandating 270 reforms after the U.S. Department of Justice investigation found a “culture of aggression” within APD with the its use of excessive force and deadly force, especially when dealing with people with mental illness and having psychotic episodes. Over the last 10 years, upwards of $64 million dollars in settlements and judgements have been paid out for APD’s use of excessive force and deadly force.

The CASA mandated APD adopt a new system to hold officers and supervisors accountable for misconduct and violations of policies, especially violations of excessive use of force and deadly force. Personnel procedures were implemented which included outlining details how use of force cases and deadly force cases must be investigated. The CASA requires far more reporting by officers and field supervisors. It requires detailed reviews of those reports up the chain of command within the department. Sergeants and lieutenants are required to be much more involved in field supervision and review of use of force and deadly force.

KOAT TARGET 7 REPORT

On September 17, KOAT Target 7 reported on police misconduct reports that had not been published by APD since last year. Under the CASA and APD policies, APD is required to report on police misconduct complaints every 4 months. When APD was notified of the failure to disclose, APD said it was an oversight and quickly published two missing reports online.

Links to the Target 7 report and to an Albuquerque Journal report are here:

https://www.koat.com/article/five-times-more-apd-employees-have-been-fired-in-the-past-year/34064416

https://www.abqjournal.com/1497888/report-albuquerque-police-misconduct-cases-skyrocket.html

Interim Chief Harrold Medina when asked about the failure said he did not know why the reports were not published and said:

“I don’t have the exact answer as to why we had the delay. In terms of gathering data, it is widely known that is an area we struggle with we take ownership of and we are working to increase our abilities to gather that data. … I hope that from this point forward we are able to publish our data on time and we can correct our lack of being able to meet the deadlines of the past.”

The reports list every incident in which officers were accused of wrongdoing, what policies they violated, if any, and how they were punished. The number of policies violated at APD skyrocketed 275% and suspensions jumped by more than 350%. Data from July 2018 to June 2019 was compared with from July 2019 to June 2020. The data reviewed included civilian employees such as APD dispatchers as well as sworn law enforcement officers.

Once the two reports were published, Target 7 reported the following 4 major findings:

1. The number of policy violations being investigated jumped from 291 to 913.
2. The number of policies violated increased from 190 to 716.
3. The number of violations requiring a suspension rose from 52 to 237.
4. Five times more police employees were fired compared with the previous reporting year.

Interim APD Police Chief Harold Medina had this to say about the dramatic increase in disciplinary action:

“We are holding officers accountable when they need to be held accountable. This is a positive thing. For a lot of years going back decades, we didn’t see these types of numbers in termination. One of the things we need to build upon is public trust and legitimacy in the community.”

Interim Chief Medina said some of the increases can be explained by APD following requirements mandated by the Department of Justice (DOJ) consent decree and that includes reporting lower level policy violations like not showing up on time or being insubordinate. According to Medina the DOJ told them “that APD was allergic to discipline at one point. I think those were the words that were used.”

APD UNION REACTION

Police Union President Shaun Willoughby downplayed the statistics by saying:

“This is not egregious. This doesn’t mean that Albuquerque cops are bad and can’t follow policy.”

Willoughby argued that officers are being punished for insignificant things such as not putting away lapel cameras properly or wearing sunglasses while speaking to the public. Willoughby had this to say:

“What I see happening is officers not using force when they should. I see officers hesitating. I see officers not wanting to engage with the public simply because they don’t want to go to internal affairs again. They don’t want to get in trouble. They don’t want to have to tell their families ‘I got in trouble and I am being investigated again.”

COMMENTARY AND ANALYSIS

It is downright embarrassing that Interim Chief Harold Medina would actually say the DOJ told “APD was allergic to discipline at one point. I think those were the words that were used.” Those words cannot be found in court pleadings, nor heard in open court during hearings on the CASA, nor have they been used in any press release by the DOJ. Medina’s comments reflect an ignorance of the reforms, his failure to attend court hearings on the CASA, his failure to read any of the audits and reports on APD’s failure to implement the reforms. If Medina has in fact read any of the Federal Monitor’s audits, it may be an issue of his reading comprehension on his part.

When the Union President says the increase in number of disciplinary actions “doesn’t mean that Albuquerque cops are bad and can’t follow policy” he is clearly trying to downplay the problem and he is attempting to discredit the DOJ process and by doing so confirms his opposition to the reforms. The Union President’s comments about what he sees as officers not using force and seeing officers hesitating to use force is in fact evidence that the reforms are working and maybe finally being understood by them. The union President’s attitude presumes that APD officers are always justified using force when they decide to use force, making the use of force and deadly force more reactionary as opposed to being more deliberative. Police Union President Shaun Willoughby also conveniently ignores that the Federal Monitor placed blame directly upon the union membership of Sergeants and Lieutenants as trying to thwart the reforms by not following policy.

The spike in the number complaints for violating policies by APD personnel skyrocketing 275% and suspensions skyrocketing to more than 350% can be directly attributed to a more aggressive approach by APD management to fully implement the 270 DOJ mandated reforms. This should come as no surprise given that the Federal Monitor in his last two reports identified how problematic and how mid-management and command rank supervisors were resisting, failing or actually thwarting the reform efforts. The Federal Monitor identified the resistance to the reforms as the “Counter CASA” effect.

COUNTER CASA EFFECT EXPLAINED

It was on September 10, 2018, at a status telephone conference call held with the US District Court Judge presiding over the Court Approved Settlement Agreement (CASA) reforms that Federal Monitor Dr. James Ginger first told the court that a group of “high-ranking APD officers” within the department were trying to thwart reform efforts.

The Federal Monitor revealed that the group of “high-ranking APD officers” were APD sergeants and lieutenants. Because sergeants and lieutenants are part of the police collective bargaining unit they remained in their positions and could not be removed by the Chief. Then APD Chief Michael Geier reported to the court that he had noticed some “old-school resistance” to reforms mandated by the CASA. At the time, Chief Geier reported he replaced a number of commanders with others who agree with police reforms. However, Chief Geier reported he could not replace the sergeants nor lieutenants who were resisting the reforms because of the union contract.

Federal Monitor Ginger referred to the group as the “Counter-CASA effect”.

10th FEDERAL MONITORS REPORT

On November 1, 2019, Federal Court Appointed Monitor James Ginger filed with the Federal Court his 10th compliance audit report of the APD reforms mandated under the Court Approved Settlement Agreement (CASA). The audit report covers February 2019 through July 2019.

The link to the 10th Federal Monitor’s report is here:

https://www.cabq.gov/police/documents/493-191101-imr-10.pdf

According to the Federal Monitor’s 10th report:

“Sergeants and lieutenants, at times, go to extreme lengths to excuse officer behaviors that clearly violate established and trained APD policy, using excuses, deflective verbiage, de minimis comments and unsupported assertions to avoid calling out subordinates’ failures to adhere to established policies and expected practice. Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case “complete”.

Under “Counter CASA Effects” in his 10th report the Federal Monitor reported:

“Some members of APD continue to resist actively APD’s reform efforts, including using deliberate counter-CASA processes. For example:

• Collective Bargaining Agreement (CBA) disciplinary timelines, appear at times to be manipulated by supervisory, management and command levels at the area commands, letting known violations lie dormant until timelines for discipline cannot be met;”

10th FEDERAL MONITOR’S REPORT FOUND WEAKNESSES WITHIN CHAIN OF COMMAND FAILING TO ACT AND DISCIPLINE

The Federal Monitor reported serious and significant delays in reporting impacting discipline:

“A serious and significant tendency exists among a large percentage of field supervisors—and some in the mid-management and command ranks—to continue to routinely supersede or discount executive authority by delaying reports of officer behavior requiring action until discipline can no longer be applied due to union contract restrictions.

Supervisors (sergeants) and mid-level managers (lieutenants) routinely ignore serious violations, fail to note minor infractions, and instead, consider a given case ‘complete’. “

See pages 284 and 285 of 10th Federal Monitor’s Compliance Report at this link:

https://www.cabq.gov/police/documents/493-191101-imr-10.pdf

1Oth MONITOR REPORTS SERIOUS LAPSES IN LAPEL CAMERA USAGE

The Federal Monitor reported 2 major serious lapses by APD during the reporting period that are potentially fatal shortcoming in the compliance process. According to the federal monitor, the shortcomings need to be addressed immediately and clearly by APD.

The two major shortcomings reported are:

“[There are] … serious lapses in internal reporting, supervision, and command oversight that are in need of continued attention and improvement. Put simply, at this point, supervisory processes and command oversight remain basically unchanged, or actually moving backwards, by failing frequently to either note policy (and CASA) violations and failing frequently to take clear and unequivocal steps to inform officers that they have violated policy or procedures. [The] “corrective actions” that do occur are often executed at the lowest levels of the disciplinary process, e.g., verbal or written reprimands, regardless of the seriousness of the violation.

The most frequent CASA violations are also in the most crucial aspects of CASA compliance, e.g., the widespread and unnoticed practice of many APD patrol officers failing to activate their OBRDs [lapel cameras] when required, or even turning off their OBRDs in the middle of a given contact. This point of failure often tends to interdict the systems improvement process, as APD is effectively blind to in-field violations—and for that matter, best practices—by its field personnel. These failures are seldom noted by supervisors, and even less likely to be noted by lieutenants and commanders.”

“COUNTER CASA EFFECT” STILL NOTED IN 11TH REPORT

On May 4, 2020, the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 11th Compliance Audit Report of the APD reforms mandated under the Court Approved Settlement Agreement (CASA).

The report covers the eleventh monitoring period from August 1, 2019 to January 31, 2020. The 11th Federal Monitor’s report can be found here:

https://www.justice.gov/usao-nm/file/1274006/download

In his 11th report, the federal monitor reported that APD personnel:

“were still failing to adhere to the requirements of the CASA found in past monitoring reports, including some instances moving beyond the epicenter of supervision to mid- and upper management levels of the organization.”

The monitor found that:

“some in APD’s command levels continue to exhibit behaviors that “build bulwarks” [walls] preventing fair and objective discipline, including a process of attempting to delay and in some cases successfully delaying the oversight processes until the timelines for administering discipline had been exceeded. [The] delays prevented an effective remedial response to behavior that is clearly in violation of established policy.”

The Federal monitor reported that:

“since the beginning of the CASA compliance process that there were a few at APD who were overtly resistant to the CASA. [The Monitor] in the past [has] found evidence of a “counter-CASA effect” among some at the supervisory, mid-management, and command levels at APD. Those who knowingly or subconsciously count themselves in this group are beginning to face pressure to change their assessment of the value of the CASA. In some cases [they] have faced reasonably prompt and appropriate corrective efforts from the current executive levels of the APD for behavior that is not congruent with the CASA. … this as an essential “way forward” if APD is to move into full compliance. The remaining issue is that this pressure is neither uniform nor persistent.”

11th FEDERAL AUDITORS REPORT COMPLIANCE STATUS ASSESSMENT

EDITOR’S NOTE: A summary of the 3 compliance levels is contained in the footnote to this blog article.

In the 10th Federal Monitor’s Report, APD was reported to have met 100% of CASA-established primary compliance requirements during the reporting period. To quote the audit “This means, in effect, that policy requiring compliance actions and processes are complete, and are reasonably designed to achieve the articulated goals of the CASA.” Secondary compliance rates (training) were reported at 81%, up from 79% and overall compliance rates are at 63%, the same as the 9th audit report.

In the 11th audit report that covered the time period of August 1, 2019 and ended in January 31, 2020, the federal monitor found APD was 100% in primary compliance, no change from 10th report, a 93% in secondary compliance, a change of 14.8% from the 10th report, and 66% in operational compliance, a change of 3%.

Primary Compliance relates mostly to development and implementation of acceptable policies and conforming to national practices.

APD is now in 93% Secondary Compliance as of the 11th reporting period, which means that effective follow-up mechanisms are beginning to be taken to ensure that APD personnel understand the requirements of promulgated policies in the areas of training, supervising, coaching, and disciplinary processes to ensure APD personnel understand the policies as promulgated and are capable of implementing them in the field.

APD is in 66% Operational Compliance with the requirements of the CASA, which means that 66% of the time, field personnel either perform tasks as required by the CASA, or that, when they fail, supervisory personnel note and correct in-field behavior that is not compliant with the requirements of the CASA.

INCREASES IN DISCIPLENARY ACTION REFLECTS SARGEANTS AND LIEUTENANTS ENFORCING THE MANDATED REFORMS

There is a definite “chain of command” when it comes to APD. All Commanders, Deputy Chiefs and the Chief are at will positions that serve at the pleasure of the Administration, either the Mayor or Chief. APD has a clear line of authority that separates management from rank and file sworn police officers that must be preserved and honored. Police sergeants and lieutenants by virtue of their titles, responsibilities, management and supervisory authority over sworn police officers are part of the “chain of command” management team of the police department.

APD police sergeants and lieutenants are on the front line to enforce personnel rules and regulations, standard operating procedures, approve and review work performed and assist in implementing DOJ reforms and standard operating procedures policies. In other words they are the point personnel for “operational compliance” under the court settlement and they still are not getting the job done when it comes to “operational compliance.” This point was repeatedly made by the Federal Monitor when he said “until the sergeants are in harness and pulling in the same direction as the chief, things won’t get done as quickly”. In other words, without the 100% support of the sergeants and lieutenants to the CASA and mandated reforms, there will be little or no progress made with “operational compliance” and reaching a 95% compliance rate will take years.

CONCLUSION

The very last thing APD management needs is for sergeants and lieutenants to passively or deliberately oppose the reforms and acting as union operatives as opposed to management. The increase in disciplinary action reflects that APD mid management who are part of the union are perhaps beginning to buy into the reforms despite the Union President’s attempt at downplaying the spike in disciplinary actions.

APD police sergeants and lieutenants are in the union collective bargaining unit that creates a clear conflict of interest and sends mixed messages to rank and file sworn police officers. APD police sergeants and lieutenants are the ones on the front line to enforce personnel rules and regulations, standard operating procedures, approve and review work performed and assist in implementing DOJ reforms and standard operating procedures policies.

Sergeants and lieutenants need to be made at will employees and removed from the union bargaining unit in order to get a real buy in to management’s goals of police reform and the CASA. APD Police sergeants and lieutenants cannot serve two masters of Administration Management and Union priorities that are in conflict when it comes to the CASA reforms. The city should demand that the management positions of APD sergeant and lieutenant be removed from the APOA Union bargaining unit.

__________________________

POSTSCRIPT

The CASA was negotiated to be fully implemented over a four-year period. It has now been over 5 full years. Under the terms and conditions of the CASA, once APD achieves a 95% compliance rate in 3 compliance areas, and maintains compliance for 2 years, the case can be dismissed.

OPERATIONAL COMPLIANCE LEVELS

For the purposes of the APD monitoring process, “compliance” consists of three levels: primary, secondary, and operational compliance levels.
The 3 compliance levels are:

1. PRIMARY COMPLIANCE: Primary compliance is the “policy” part of compliance. To attain primary compliance, APD must have in place operational policies and procedures designed to guide officers, supervisors and managers in the performance of the tasks outlined in the CASA. As a matter of course, the policies must be reflective of the requirements of the CASA; must comply with national standards for effective policing policy; and must demonstrate trainable and evaluable policy components.

2. SECONDARY COMPLIANCE: Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to and be effective in implementing the policy as written, e.g., sergeants routinely enforce the policies among field personnel and are held accountable by managerial and executive levels of the department for doing so. By definition, there should be operational artifacts such as reports, disciplinary records, remands to retraining, follow-up, and even revisions to policies if necessary, indicating that the policies developed in the first stage of compliance are known to, followed by, and important to supervisory and managerial levels of the department.

3. OPERATIONAL COMPLIANCE: Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency e.g., line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.

Page 9 of 307, Case 1:14-cv-01025-JB-SMV Document 578 Filed 05/04/20

On Sunday, October 11, the Albuquerque Journal published two very remarkable and damaging guest columns, one from former APD Chief Michael Geier and the other from APD’s current 5 Deputy Chiefs. The Geier letter makes serious allegations for the very first time regarding the job performance of Federal Court appointed Monitor James Ginger in the Court Approved Settlement Agreement (CASA). The letter written by the 5 Deputy Chief’s makes accusations that former Chief Geier was a failed leader who promoted resistance to change to the conduct that paved the way for the Department of Justice (DOJ) to intervene.

Below are both guest opinion columns published under the caption “APD IN TURMOIL”. Given the seriousness of the allegations, this blog article COMMENT AND ANALYSIS calls upon United Sates Attorney for New Mexico John Anderson, the DOJ, or the stakeholders in the case to compel the sworn testimony of former APD Chief Geier and the 5 APD Deputy Chiefs at the expected hearing to be scheduled on the 12th Federal Monitor’s Audit report once filed by Federal Monitor James Ginger. Now that the allegations have been made and published, the general public need to know the truth surrounding the job performance of Federal Monitor James Ginger, former APD Chief Michael Geier and the 5 Deputy Chiefs.

GEIER GUEST EDITORIAL COLUMN

Geier: ‘I always had my officers’ backs’
Ex-APD chief decries second-guessing from federal monitor, Mayor’s Office

BY MICHAEL GEIER / ALBUQUERQUE POLICE CHIEF, RETIRED
Sunday, October 11th, 2020

“As chief of police, I was personally committed to making Albuquerque a safer city. I recently prepared a report that highlighted 22 major accomplishments APD achieved since I took office in late 2017. After a record year of violent crime in 2019, I proposed a plan to reduce gun violence in 2020 by 15%. The priority goal was to reduce homicides with firearms and shootings with injuries. Unfortunately, violent crime increased substantially (because) the mayor refused to sign grants providing critical resources needed to fight violent crime and the current interim chief failed to even get this program off the ground. I wonder how many shootings and homicides could have been prevented had the mayor and interim chief put their personal interests and political aspirations aside to simply support public safety.

Call it “Counter-CASA Culture” or whatever – I did not want to have officers hurt or killed on my watch because they were afraid to do their job. I always had my officers’ backs and always will.”

The link to the Albuquerque Journal Geier column is here:

https://www.abqjournal.com/1505849/geier-i-always-had-my-officers-backs.html

DEPUTY CHIEF’S GUEST EDITORIAL COLUMN

Deputy chiefs say Geier left them – and the department – hanging

BY MICHAEL SMATHERS, ERIC GARCIA, ART GONZALEZ, J.J. GRIEGO AND DONOVAN OLVERA / ALBUQUERQUE POLICE DEPARTMENT DEPUTY CHIEFS
Sunday, October 11th, 2020

“As the five deputy chiefs of police of the Albuquerque Police Department, we feel compelled to speak out on the recent media attention given to former chief Michael Geier. We come from different backgrounds, and we have different strengths, but we were all part of the same team – a leadership team chosen by Geier.

As Mayor Tim Keller conducts a national search for a permanent chief, we will continue to work together to ensure continuity and leadership at APD. With distractions out of the way, we have stepped up our efforts to fight crime. We have held five citywide, anti-crime operations in the last several weeks, resulting in 202 quality arrests. We are taking guns and drugs off the street, recovering stolen vehicles, and sending a message that APD is going after the drivers of crime. We are reinvigorated and moving forward, with our focus where it needs to be – on our community.”

The link to the Albuquerque Journal Geier column is here:

https://www.abqjournal.com/1505848/deputy-chiefs-say-geier-left-them-ndash-and-the-department-ndash-hanging.html

COMMENTARY AND ANALYSIS

Former APD Chief Michael Geier and the 5 Deputy Chiefs damaged their own personal reputations and they did themselves no favors with their guest columns to the Albuquerque Journal. The exchange gives APD management and the command staff another black eye. Further, the exchange reflects that things are even worse than reported with APD because of the interference by Mayor Tim Keller and his Chief Administrative Officer Sarita Nair and their micro managing of the department. The most disturbing revelations relate to Federal Court Appointed Monitor James Ginger and the Court Approved Settlement Agreement.

DISTURUBING REVELATIONS FROM FORMER APD CHIEF GEIER

On September 10 during a joint press conference with Mayor Tim Keller, APD Chief Geier announced his “retirement” from law enforcement for a third time. Since his forced retirement, Geier has sought and received significant media coverage to disclose the facts and circumstances surrounding his departure from APD. The recent letter to the Journal is a clear indication he intends to continue with his attempts to “set the record straight”. Needless to say, former Chief Geier has made some astounding disclosures to the media. Among the revelations Geier has revealed are that Mayor Keller is heavy handed, preoccupied with public relations, obsessed with his failure to keep his campaign promises to reduce high violent crime rates, implementing the Department of Justice reforms and returning to community-based policing.

Former Chief Geier makes a number of very disturbing revelations in his October 11 guest column . The first group of revelations relate to the work of Federal Court Approve Monitor James Ginger. Other revelations involve Chief Administrative Officer Sarita Nair.

The new revelations in the Geier letter relating to the Federal Court Monitor James Ginger are:

1. Despite great progress made by APD, independent monitor James Ginger continually moves “the goal posts back” a reference to APD’s required performance measures under the CASA.

2. Federal Monitor Ginger is “hypercritical and inconsistent” with his reviews of APD’s compliance work.

3. Ginger criticizes APD work product that has already been corrected by APD and based on his own comments. Ginger fails to correct his own outcomes report after APD points out errors in the auditor’s reports.

4. APD has become so concerned about the federal monitor’s “false claims” that he has not received certain documents to the point that APD takes steps to document and to refute the monitor’s claims.

5. Ginger’s audit reports to the federal court are often repetitive and sometimes inaccurate or misleading.

6. Ginger often “rambles on during conference calls, making little sense and repeating the same thing discussed in previous weeks.”

7. Ginger is always on a “fault-finding mission” and it appears that after six years, Ginger is more interested in job security than anything else. Editor’s note: The city pays Ginger and his monitoring team upwards of $1.2 million a year. When Ginger was first appointed, he was awarded a $4.5 million, 4-year contract.

8. Ginger and the monitors make excessive disciplinary demands of police officers.

9. Ginger and the monitors second guess decision made by police officers.

10. The city attorney tried convince Geier to reconsider recommendations on a particular to appease Ginger, who had concerns based on inaccurate and false assumptions. Gieier also claims was lied to by the city attorney on the case just to prevent negative comments by Ginger in his next report.

The revelation Geier makes regarding CAO Nair is when he says he is “aware that even our chief administrative officer, Sarita Nair, has been weighing in and criticizing our officers’ actions regarding deadly force encounters and other use of force incidents.” Nair has absolutely no background in law enforcement and has never worked with law enforcement until Keller appointed her CAO and Geier points out her interference.

Geier’s statement is further proof that CAO Nair and ostensibly Mayor Tim Keller are involved with the minutia of how APD is managed and operated on a day to day basis. During the September 9 city council meeting a city councilor raised questions regarding APD’s handling of the Juan de Oñate protest. City Councilor Bassan said she was concerned that the Mayor’s Office had helped make decisions about how APD handled the Onate protest and other protests, an allegation Nair rejected. CAO Nair responded this way to the line of questioning:

“Let me be clear: To the extent you’re suggesting that the 11th floor, as we call it, is making operational or tactical decisions about the Police Department, we are not.”

DEPUTY CHIEF’S GUEST EDITORIAL COLUMN

The letter from the 5 APD Deputy Chiefs was published below the letter from former Chief Geier and it was obviously sent in an effort to discredit Chief Geier. The most damning sentences contained in the Journal guest column from the 5 Deputy Chiefs are as follows:

We also shared the sad experience of watching Geier foster an unhealthy environment that undermined our efforts to fight crime, succeed at reform and embrace the need to change the culture. Geier claims that his leadership of APD was under attack. But at the end of the day he failed to support his entire command staff and his front-line officers. Geier finished his tenure by embracing the same favoritism and resistance to change that paved the way for the Department of Justice to intervene into the daily operations of APD in 2014.

The observations by the 5 Deputy Chiefs are difficult take at all serious and are easily discredited. Least anyone forget, Chief Geier has been given substantial credit for the dramatic progress made by APD in the last 3 years with implementation of the 270 mandated reforms. On September 10, 2020, Mayor Tim Keller, in announcing Chief Geier’s retirement himself said in part:

“Chief Geier came in at a pivotal moment for the department, and did a courageous job righting the ship through our first year, getting new leadership in place, focusing on gun violence and getting reform efforts on track. I deeply appreciate the extremely difficult job he took on nearly three years ago. He helped move APD in the right direction in so many important ways.

With all of the challenges this year has brought, it’s clear that the context for running a department, fighting crime and engaging in reform has changed dramatically. We know we have had persistently high crime for a decade, we know reform efforts have hit some snags, and we know there have been back office challenges and distractions. … “

What Keller did not disclose is that the now Interim Chief Harold Medina and 4 of the Deputy Chiefs who signed the Journal letter were at the center of the drama and the forced retirement Geier to replace him with Harold Medina. To add insult to injury, it was Geier who appointed 4 of the deputies with the approval of Keller.

The actions of former Chief Geier during his tenure is in sharp contrast to the actions of his predecessor Chief Gordon Eden and his Assistant Chief Robert Huntsman who were known for intentional delay and obstruction tactics. At one point Assistant Chief Huntsman tape recorded a private conversation without the Federal Monitor’s knowledge with the recording used as a basis in an attempt remove the federal monitor for biasness.

What really undercuts the credibility of the 5 Deputy Chief’s letter is that it was just 5 days before the letter was published by the Journal that APD announced that Deputy Chief Donovan Olvera was being hired and was returning to APD after he retired just a few years ago. Confidential sources have confirmed that it was Interim Chief Harold Medina who went out of his way to recruit Deputy Chief Donovan Olvera to return to APD in that they have worked together before and are close personal friends. In other words, Deputy Chief Donovan Olvera saw absolutely nothing and experienced nothing in that he was never a Deputy Chief under Geier. It obvious that Olvera did what he was told to do and signed the letter.

It is not at all likely that any one of the Deputy Chiefs actually wrote the letter. Taken as a whole, the letter signed by the 5 Deputy Chiefs is nothing more than them regurgitating the identical reasons Mayor Keller gave for his forced retirement of former APD Chief Geier. It is more likely than not that the letter was actually written by an APD Spokesperson or someone in the Mayor’s Office and the 5 Deputy Chiefs were ordered to sign it by Mayor Keller, CAO Sarita Nair or Interim Chief Medina. An APD spokesman ghost writing for the Chief’s office, even without authorization, is nothing new and occurred recently when APD Spokesman Gilbert Gallegos wrote a TWEET for former Chief Michael Geier and sent it out without Geier’s knowledge or authorization.

12TH FEDERAL MONITOR’S REPORT DUE

On November 10, 2014, the City and APD entered into a 106-page Federal Court Approve Settlement Agreement (CASA) mandating 270 reforms after a Department of Justice investigation found a culture of aggression and excessive use of force and deadly force. Under the CASA, the Federal Court Appointed Monitor must file compliance audit reports. Federal Court Monitor James Ginger is an “officer of the court” and reports directly and only to the Federal Judge assigned the case.

The link to the full 106-page CASA containing 276 mandated reforms is here:

https://www.cabq.gov/mental-health-response-advisory-committee/documents/court-approved-settlement-agreement-final.pdf

All documents related to the CASA, including all 11 Monitor’s reports can be downloaded and reviewed at theses links:

https://www.cabq.gov/police/documents-related-to-apds-settlement-agreement

https://www.apdforward.org/resources

The compliance reports usually exceed 300 pages and are a detailed audit of every paragraph of the consent decree and the 270 reforms. Once the monitor’s report is filed, the Federal Court Judge overseeing the CASA schedules a daylong hearing where the Federal Monitor gives a summary of his report in open court and stakeholders are allowed to address the court. All the parties are given time to address the court.

Federal Court Appointed James Ginger has filed a total of 11 Compliance Audit Reports. The 12th Federal Monitor’s Audit report is due to be filed within the next few weeks, either late October of early November. Given the statements an accusation made by former APD Chief Michael Geier, the United States Department of Justice and the United States Attorney for the District of New Mexico should demand or subpoena former APD Chief Geier and all 5 Deputy Chief’s to testify and elaborate on the accusations made in their columns published in the Journal.

The 10 accusations made by former Chief Michael Geier against Federal Monitor James Ginger call into question the job performance of an “officer the court”. The truth of former Chief Geier’s allegations regarding the job performance of Federal Monitor must be explored in an open court for the benefit of the general public who are footing the bill. United States Attorney John Anderson or the 14 stakeholders in the federal Court Approved Settlement litigation should not hesitate to call former APD Chief Geier and all 5 of the Deputy Chiefs to testify at the next court hearing held to review the 12th Federal Monitors Audit report once filed with the federal court. All 6 have or are still involved with the reform process mandated by the CASA. Most importantly, the selection process to find a new APD Chief should be reviewed by the federal court to confirm that a national search for a new chief is in fact being conducted and not a sham to install Interim Chief Harold Medina.

The annual “Citizen Satisfaction Survey” is a research study commissioned by the City of Albuquerque to assess residents’ perceptions of the overall quality of life in Albuquerque, satisfaction with City services, and issues relating to crime, safety, and the economy. City ordinance requires the annual survey. On September 22, the city released the Annual Citizen’s Satisfaction Survey. A link to the survey is here followed by a link to the announcement:

https://www.cabq.gov/mayor/documents/2020_citizen-satisfaction-survey.pdf

https://www.cabq.gov/mayor/news/in-part-one-of-2020-citizen-satisfaction-survey-sixty-one-percent-say-abq-handling-pandemic-better-than-other-cities

The survey was conducted by Research & Polling Inc. in August. Research & Polling Inc. is New Mexico’s largest full-service market research and public opinion research company. When it comes to polling in New Mexico, Research and Polling is considered the “gold standard” of polling in New Mexico politics The. Survey was conducted by cell phone and land lines from August 12 to 18 with 303 adults contacted living in the greater Albuquerque area.

The Keller Administration this year separated the survey into two sections. According to the Keller Administration news release “Due to the unprecedented nature of this year, the survey was split into two parts to address urgent needs faced by the community. Part one focuses specifically on the City’s response to COVID-19, equity and inclusion initiatives, and policing. Part two focuses on a wider variety of topics related to general quality of life.

These results reflect the first part, which featured 303 adult respondents surveyed by cell phone and land lines from Aug. 12-18.

The highlights of the survey are as follows:

DIRECTION THE CITY IS HEADING

More than 50% of Albuquerque residents are concerned about the direction the city is heading. According to the survey, 51% of those surveyed are “somewhat” or “very” concerned about the city’s direction. This is up from 47% found 2019 and 29% found in 2018.

According to the survey report “Generally, residents who are ‘very concerned’ about the direction Albuquerque is heading are more likely to say they are ‘very comfortable’ participating in the activities. ”

HOPEFULLNESS

The survey shows that residents’ hopefulness about the city’s direction has continued its decline with 46% characterizing their feelings as “very” or “somewhat hopeful.” This is down from 49% in 2019 and down from 68% in 2018.

CITY RESPONSE TO CORONA VIRUS

The survey showed that 61% score the city government well for how it has dealt with the coronavirus, compared with just 16% who gave poor marks. Another 22% offered a neutral score.

Early in the outbreak of the pandemic, the Mayor Tim Keller issued emergency health orders that closed most of city facilities. The city did not completely shut down but continued limited bus service, senior meals and the Planning Department continued to function. Keller has reopened many other facilities, such as pools and libraries.

Nearly two-thirds or 65% of the survey respondents agreed that the city has specifically done a good job communicating with the public during the outbreak and 60% said the city has done well keeping residents safe.

Mayor Tim Keller increased his public relations activities once the corona virus hit hard in February. Keller held daily news conferences as if competing with the Governor’s daily press conferences. He also took his public relations to another level and holds telephone “town halls meetings”. The “town hall” meetings are especially effective and consist of calling upwards of 13,000 people at one time on city compiled call lists likely prepared by the city’s 911 call center.

However, far fewer at 36% agreed that the city has done well helping business owners during the pandemic or providing assistance to those who have lost their jobs or been furloughed.

The Keller Administration has been able to avoid employee furloughs and layoffs in part because it received $150 million in federal coronavirus relief. The Keller Administration has said it will likely use most of the federal funding for COVID-19-related payroll costs. The federal funds have also gone to programs like mobile WiFi hot spots and grants to nonprofit organizations and artists.

LEVEL OF COMFORT PARTICIPATING WITH ACTIVITIES

The survey asked about Albuquerque residents’ comfort with various activities during the pandemic. 57% of those survey said they were comfortable dining outside at restaurants. However, only 34% said the same for dining inside at restaurants. 24% felt the same about sending K-12 students back to school this month. Now that winter is approaching, outside dining offered is likely to be curtailed

APPROVAL OF APD

Albuquerque, like most large American cities, has seen protests as a result of the George Floyd death at the hands of the Minneapolis Police. Most of the protests in the city have been peaceful with June 15 protest over the Juan de Oñate sculpture outside the Albuquerque Museum turning violent with one protester shot and wounded.

Survey respondents agreed with a solid 59% that the Albuquerque Police Department has done a good job of handling recent protests. Those surveyed also agreed with 49% that APD “reflects the values of the city’s residents,” while only 23% disagreed and 24% were neutral.

Survey respondents were divided almost evenly three ways on how well city government is keeping residents safe with 37% giving a favorable review, 32% giving a negative review and 30% were neutral.

Asked about the city’s performance “reforming public safety and public service programs to better serve the community,” the results were also almost evenly divided three ways with 34% saying the city was doing good or excellent with public safety programs, 30% said it was doing a poor job, and 33% were neutral.

https://www.abqjournal.com/1500710/survey-most-in-abq-happy-with-city-during-covid-19-but-hopefulness-waning.html

ALBQUERQUE JOURNAL POLL ON CITIZENS CONCERNS

On Sunday, September 13, the Albuquerque Journal published the results of a statewide poll asking voters their top concerns that are facing New Mexico families. One again, as was the case with the city’s survey, the Albuquerque Journal poll was conducted by Research & Polling Inc.

For the past 8 years, crime has dominated as the number one issue voters have been identified as being problematic. The Journal poll reflected there has been a dramatic change ostensibly since February when the pandemic hit the nation and state hard. Voters now list health and safety related to COVID-19 as their number one concern with 40% of all those polled state wide. Concerns about crime has dropping like a rock to 6th place in voters mind to an anemic 4%. Below are the results of the poll:

40% percent of voters listed health and safety related to COVID-19 as the biggest concern
23% of voters cited economic uncertainty as their biggest concern
13% of voters cited loss of jobs and unemployment as their biggest concern
12% of cited education and back-to-school challenges as their biggest concern
7% of voters cited return to “usual activities” before COVID-19
4% of voters mentioned crime as their biggest concern
3% of listed travel restrictions as their biggest concern
2% of voters listed the direction of the country and future of America, leadership of the country and the election.

According to the Journal poll report:

“Democrats were more likely than Republicans to identify COVID-19 health and safety concerns as their family’s biggest issue. In the survey, 49% of Democrats listed it as the top concern, while just 30% of Republicans and 31% of independents did. …

The percentages add up to more than 100 because some respondents identified more than one issue. About 9% said “nothing in particular.”

The link to the full Albuquerque Journal story with graphs reflecting the poll results and methodology is here:

https://www.abqjournal.com/1495902/voters-list-virus-impacts-as-biggest-concern-ndash-by-far.html

COMMENTARY AND ANALYSIS

When comparing the City’s Annual Citizen’s Satisfaction Survey to the Albuquerque Journal Poll on citizen’s concerns, the similarities cannot be ignored. Citizens’ concerns for “crime all the time” have now been replaced by public health concerns over “pandemic all the time”, at least until a vaccine is found.

Mayor Tim Keller can take very little comfort with the fact that the pandemic has replaced crime as people’s number one concern in the city. During the last two years, New Mexico has posted the nation’s first or second-highest violent crime rates in the country and some of the highest property crime rates in the country driven by high violent and property crime rates in Albuquerque.

FBI statistics reveal that Albuquerque has the dubious distinction of having a crime rate about 194% higher than the national average. Albuquerque has been on the forefront of the trend on violent crime increasing for the last 5 years and homicides have more than doubled. In 2014, the city had 30 homicides and each year thereafter homicides increased and in 2019 the city had 82 homicides, the most in the city’s history. As of October 9, the city has had 58 homicides.

In 2019, in response to the continuing increase in violent crime rates, Mayor Keller scrambled to implement 4 major crime fighting programs to reduce violent crime: the Shield Unit, Declaring Violent Crime “Public Health” issue, the “Violence Intervention Plan” (VIP program) and the Metro 15 Operation program. Based upon the statistics, the Keller programs have had very little effect on reducing violent crime.
The country will have a vaccine sooner rather than latter to deal with the pandemic. However, crime is not getting any better and only worse in Albuquerque and there appears to be no real hope in the near future to reduce crime at least not from Mayor Tim Keller and his administration. Mayor Tim Keller forcing the retirement of Chief Michael Geier is an admission of failure on Keller’s part to bring down our crime rates as he promised 3 years ago running for Mayor. Keller has been a failure in finding a vaccine for our high crime rates.

On October 7, 2020, ABC News published one of the better summation articles on the Vice-Presidential debate. It was written by Cheyenne Haslett and Meg Cunningham. Cheyenne Haslett is the 2020 campaign reporter and producer at ABC News, based out of Washington, D.C. covering the presidential campaigns and reporting for the network. Meg Cunningham is a senior convergence journalism major with an emphasis in investigative reporting from Kansas City, Missouri who also reports for ABC News. Below is the article with a link followed by additional commentary and analysis.

ABC NEWS REPORT

The vice presidential candidates for president faced off on Wednesday for their first and only debate, giving Americans a much more substantive look at the ticket — though often not the substance that they were prompted for.

“When you talk about accepting the outcome of the election. I must tell you, Senator, your party has spent the last three and a half years overturning the last election. It’s amazing,” Pence said.

https://abcnews.go.com/Politics/key-takeaways-vice-presidential-debate/story?id=73466213

DINELLI COMMENTARY AND ANALYSIS

The Vice-Presidential debate was a huge contrast from the first, and probably the only Presidential Debate between Trump and Biden. Vice President Mike Pence and Senator Kamala Harris sat 12 feet apart and were separated by plexiglass. Despite the plexiglass, the cameras were focused on both and the Plexiglas was hardly even noticed. Trump is already saying he will not participate in the next debate because the Commission of Presidential Debates want it to be a “virtual debate.”

By and large, the debate was noteworthy because it was a civil and normal debate. It was not at all like the playschool shouting match between Biden and Trump. In short, it was two people who acted like adults.

Harris talk about Trump and Pence talked about Biden. Both pivoted to totally different topics, answering very little of the original questions. Both Senator Harris and Vice President Pence did what they needed to do, stood their ground and did not make a fool of themselves.

THE FLY IN THE OINTMENT

About two thirds into the debate, a very large fly landed on Vice President Mike Pence’s head, and stayed there for over two minutes as if grooming and feasting on something. Social media went wild.

The fly has now become a new way for Joe Biden’s campaign for fundraising and to get out the word about voting. Mere moments after the fly that spent two minutes nestled in Pence’s head flew off, Biden TWEETED a photo of himself holding a flyswatter, along with the caption “Pitch in $5 to help this campaign fly” with a link to donate. Biden went on to tweet out a link to flywillvote.com, which redirected to iwillvote.com, a website that helps people register to vote.

President Trump, the reality show TV personality, knows how damaging optics can be, and he no doubt was livid. Rumor has it that Trump is now calling for a congressional investigation to find out if the fly was in fact a Chinese drone sent in to influence the election. Pence for his part was seen leaving the debate stage with Frank Sinatra singing over the intercom “Come Fly With Me”.

On November 5, 2018, New Mexico voters, with a 75% majority, voted for a constitutional amendment to establish an independent statewide ethics commission with subpoena power. On March 15, 2019, the New Mexico State legislature enacted legislation creating a new, independent ethics commission. On January 4, 2020, a little more than 10 months since the NM Legislature enacted the creation of the Ethics Commission, it was reported that the Ethics Commission is fully operational and accepting complaints to investigate.

The following guest column, submitted by New Mexico Secretary of State Maggie Toulouse Oliver and all members of the Ethics Commission was submitted to the Pete Dinelli blog for publication:

A GUIDE FOR EXPENDITURES OF CAMPAIGN FUNDS

“As New Mexico enters another election season, candidates from all corners of the state will collectively raise and spend millions of dollars to get elected. And whether they’re a first-time candidate or a seasoned campaigner, they will all repeatedly face a particular question, “Can we use campaign funds for this?” The New Mexico Campaign Reporting Act (CRA) governs how funds raised by a campaign can be spent and explicitly states they can be used towards: “expenditures of the campaign”; performing certain duties of their office; and donations to other political campaigns, the state general fund, or certain charitable organizations. While the CRA enumerates limitations on use and the Secretary of State’s Candidate Campaign Finance Reporting Guide (SOS Guide) provides a practical interpretation and some common examples, gray areas invariably arise that may require campaigners to self-evaluate or otherwise seek guidance to maintain compliance with the law regarding their use of campaign funds.

State law provides for transparency, guidance, and enforcement of these issues. The Secretary of State administers the campaign finance reporting system used by candidates to disclose the use of their campaign funds. The public can search this information at https://login.cfis.sos.state.nm.us/#/index. The Secretary of State’s Office educates candidates on the CRA and seeks voluntary compliance from candidates required to comply with the CRA spending limitations. And, for expenditures that fall into a gray area, candidates and campaign treasurers may seek advisory opinions from the Secretary of State or the State Ethics Commission. Finally, the Commission investigates, adjudicates, and enforces violations of the CRA.”

REPECTFULLY YOURS

Secretary of State Maggie Toulouse Oliver and State Ethics Commissioners William Lang (Chair), Jeff Baker, Stuart Bluestone, Garrey Carruthers, Ronald Solimon, Judy Villanueva, and Frances Williams

To learn more visit: https://www.sec.state.nm.us/

PETE DINELLI BLOG COMMENTARY AND ANALYSIS:

New Mexico has had more than its fair share of public corruption scandals over the years. A rogue’s gallery of unethical conduct, fraud, theft and abuse of power and influence in New Mexico politics includes Former Democrat State Senator Manny Aragon, two former Democrat State Treasurers, Michael Montoya and Robert Vigil, former Republican Secretary of State Dianna Duran, former Democrat State Senator Phil Griego, former Republican State Senator Monica Youngblood, former Republican New Mexico Taxation, and Revenue Secretary Demesia Padilla.

Unproven allegations of “pay to play” plagued the 8-year tenure of Democrat Governor Bill Richardson with a federal grand jury investigation resulting in no indictments and no finding of “pay to play”. Former Republican United States Attorney for the District of New Mexico Gregg Forate, with an obvious strong Republican partisan bias, released a scathing letter of condemnation that accused the Richardson administration of “corrupting” the government contract award process.

During the 8-year tenure of former Republican Governor Susana Martinez, allegations of unethical conduct and undue influence with the award of the billion-dollar, 20-year Downs Race Track Lease, dubbed the “Dirty Downs Deal”, occurred. What also occurred was a federal grand jury investigation of the Republican Governor’s number one political consultant and campaign manager relating to misuse of her inauguration funding.

EMPOWER COMMISSION WITH AUTHORITY TO SUSPEND OR REMOVE

The Ethics Commission as well as New Mexico Secretary of State Maggie Toulouse Oliver have made major inroads into restoring faith in our election process and to free it from corruption. The guest column is a good example of their work and they have even more work ahead.

One area that merits serious consideration by the New Mexico Legislature is to empower the Ethics Commission with the authority to suspend or remove a public official or give the Commission the authority to seek from a District Court or Supreme Court the suspension or removal from office elected officials who have been found to have engaged in nefarious or unethical conduct or campaign finance law violations. Further, the Ethics Commission should be given authority over local elected officials such as Mayors and City Councilors.

The statewide Ethics Commission should eventually help rebuild trust in a state government that has experienced way too much corruption throughout the decades. However, it will be able to do so only if it is empowered with real authority to suspend or remove someone for nefarious or unethical conduct. Otherwise, the Commission will be an exercise in futility to hold nefarious and unethical officials actually accountable for their actions short of criminal prosecution, forced resignations or hoping that they will be voted out of office.

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POSTSCRIPT

ETHICS COMMISSION EXPLAINED

The New Mexico Ethics Commission is empowered to oversee state public officials, including state lawmakers, state employees and constitutionally elected officials, including the governor. The seven-member commission is empowered to fine public officials if they are found by the commission to have violated civil provisions of state laws. There is no authority to suspend or remove from office elected officials.

POWERS AND DUTIES OF THE COMMISSION

Under the New Mexico Ethics Commission Act, the commission:
“may initiate, receive, investigate and adjudicate complaints alleging violations of, and issue advisory opinions concerning, standards of ethical conduct and other standards of conduct and reporting requirements, as may be provided by law, for state officers and employees of the executive and legislative branches of government, candidates or other participants in elections, lobbyists or government contractors or seekers of government contracts and have such other jurisdiction as provided by law.”

Additionally, the Ethics Commission:

“may require the attendance of witnesses or the production of records and other evidence relevant to an investigation by subpoena as provided by law and shall have such other powers and duties and administer or enforce such other acts as further provided by law.”

Powers and duties of the commission also include the power to develop, adopt and promulgate the rules necessary to implement and administer the provisions of the State Ethics Commission Act.
Absent from the enabling legislation creating the ethics commission is any authority to suspend or remove elected or appointed officials for nefarious or unethical conduct.
https://www.ncsl.org/research/ethics/50-state-chart-state-ethics-commissions-powers-a.aspx

COMPLAINT PROCESS

An Ethics Case before the Commission can begin in one of three ways:

1. A complainant may file a complaint with the Commission.
2. Another agency may refer a complaint filed originally with that agency to the Commission.
3. The Commission may initiate a complaint with the approval of at least five Commissioners.

Anyone who files a complaint must secure a notary public and attest to the truth of the allegations in the complaint under penalty of perjury. Although the Ethics Commission accepts only signed complaints, it can also initiate its own complaints with approval from 5 of the 7 commissioners. It can also accept referrals from other agencies.

The attorney appointed as “general counsel” by the seven-member commission serves as an investigator and prosecutor. The commission’s general counsel determines whether a complaint warrants investigation and if so, the general counsel will investigate the allegations made.

The Ethics Commission “hearing officers” are appointed to adjudicate the cases where evidence suggests there is an ethical violation. The hearing officers are required to use the legal standard of “preponderance of evidence” to make the determination if there was an ethical violation and must make specific findings.

The legal term “preponderance of the evidence” means the greater weight of the evidence required for the trier of fact, the hearing officer, to decide in favor of one side or the other. “Preponderance of the evidence” is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence.

The Ethics Commission through its general counsel is empowered to petition a state judge to issue subpoenas for documents and other materials as part of its work and with a judge designated to issue and grant the subpoenas on behalf of the commission itself. A public official who disputes a hearing judge’s finding are given the right to appeal the ruling to the seven-member ethics commission.

Ethics complaints are be made public 30 days after probable cause is found to proceed with an investigation. The ethics commission is prohibited from revealing ethics complaints that have been deemed frivolous or unsubstantiated, but the accuser or accused can publicly disclose the complaints.

The ethics commission is not empowered to investigate violations of legislative policies by legislators, such as sexual harassment policies, unless the Legislature works out an agreement for the ethics commission to investigate such complaints. Even then, if the ethics commission determines that a legislator has violated legislative policy, the ethics commission is required to turn over its findings to the Legislature, which would then in turn determine the legislator’s punishment.

A very significant provision included in the commission powers is authority over include statewide public officials such as the governor, the lieutenant governor, attorney general, secretary of state, public land commissioner and state auditor, or candidates for those offices, to those prohibited from soliciting campaign contributions from January 1 through the end of each year’s legislative session. However, the ethics commission has no authority over school board members and local officials such elected Mayors or City Councilors.

The enforcement of the state’s Open Meetings Act and Inspection of Public Records Act is left to the New Mexico Attorney General, and such enforcement is not made part of the duties of the Ethics Commission. State legislators are already prohibited from soliciting campaign contributions from January 1 through the end of each year’s legislative session.

JURISDICTION OF COMMISSION

According to its website, the Commission has “jurisdiction to enforce the civil compliance provisions of eight statutes and one constitutional provision for public officials, public employees, candidates, persons subject to the Campaign Reporting Act, government contractors, lobbyists and lobbyists’ employers”.

Allegations of criminal conduct are referred to law enforcement agencies. The 8 statutes the Ethics Commission is authorized to enforce are strictly civil in nature and provides for civil penalties and fines. The one power or penalty the Ethics Commission is not granted is the power to suspend or remove an elected or public official.

OFFICIALS NOT SUBJECT TO THE COMMISSION’S JURISDICTION

According to its website, the Ethics Commission has limited jurisdiction and only over certain individual as follows:

“LOCAL OFFICIALS AND EMPLOYEES”

The Commission’s jurisdiction is limited. … it cannot hear complaints alleging violations by local elected officials or local public employees such as county commissioners or municipal employees.

NO JURISDICTION OVER CRIMINAL CONDUCT

The Commission does not hear complaints alleging violations of state or federal criminal laws. The Commission will refer any complaint alleging criminal conduct to the Attorney General, the appropriate District Attorney, or the federal prosecutors. Such a referral does not prevent the Commission from pursuing civil enforcement, either through an administrative hearing or a civil action in state court.

LAWS OUTSIDE THE COMMISSION’S JURISDICTION

The Commission lacks jurisdiction to adjudicate complaints alleging violations of any law that is not expressly provided for in the State Ethics Commission Act including … the Human Rights Act, the Open Meetings Act, the Inspection of Public Records Act, the Extra Compensation Clause of Article IV, Section 27, or the Emoluments Clause of Article XX, Section 9.

LIMITATIONS BASED ON TIME

Three time-based constraints limit the Commission’s jurisdiction:

First, the Commission cannot adjudicate a complaint alleging conduct that occurred more than two years in the past or more than two years after the alleged conduct could reasonably have been discovered.
Second, the Commission lacks jurisdiction over a complaint that is filed against a candidate 60 days before a primary or general election for the pre-election period, unless the complaint alleges a violation of the Campaign Reporting Act or the Voter Action Act.
Third, the Commission lacks jurisdiction over conduct occurring on or before July 1, 2019.”

https://www.sec.state.nm.us/faqs/#Section02

WEBSITE LINK WITH INSTRUCTIONS

The link to the website can be found here:

https://www.sec.state.nm.us/

The website contains a section where the public can sign up for updates from the commission including pending cases and advisory opinions. The website also gives a detail explanation on how a complaint can be filed, gives instructions on how to file an ethics complaint, provides forms and outlines what the complaint needs to allege, including laws believed to have been violated, witnesses and evidence relied upon. The website also provides a guide to respondents and what they must do to respond.