On November 2, 2020, the Federal Court Appointed Monitor James Ginger filed with the Federal Court his 12th Compliance Audit Report of the Albuquerque Police Department (APD) reforms mandated under the Court Approved Settlement Agreement (CASA). The report covers the twelfth-monitoring period of February 1, 2020 to July 31, 2020. The Report is 356 pages long. It follows the format as all the previous 11 reports. It’s a detailed audit of every single paragraph of the consent decree and for that reason it is tedious and difficult to read.

“COUNTER CASA AFFECT” STILL INTENTIONAL AND DESTRUCTIVE

The 12th Federal Monitors’ report contains a summary highlighting major deficiencies that have set back compliance levels. For the 4th time, and after over 6 years, the monitor again reports that the “Counter Casa” effect is interfering with APD accomplishing the implementation the settlement reforms.

It was on September 10, 2018 that Federal Monitor Dr. James Ginger first told the federal court that a group of “high-ranking APD officers” within APD were trying to thwart the reform efforts. The Federal Monitor revealed that the group of “high-ranking APD officers” were APD Sergeants and Lieutenants.

In his 10th report Federal Monitor Ginger referred to the group as the “Counter-CASA effect” and stated:

“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”.

“Some members of APD … 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 [mandated by the union contract] for discipline cannot be met.”

In his 12th report, the Federal Monitor again identifies union resistance to the reforms by union membership. The Independent Monitor provides details of cases on how union members stall and delay internal investigations to the point no discipline is imposed and deadlines pass.

In his 12th Monitor’s Report, Dr. Ginger states:

1.“… [When] … Internal Affairs … allow union representatives … and … officers to respond to salient , and reasonable, fact-finding questions by simply reading a Garrity statement [invoking the right to remain silent] … into the record, as opposed to answering questions posed, there are serious and near terminal problems with process, policy enforcement, and outcome factors.”

5. Supervision, which includes Lieutenants and Sergeants in the union, “needs to leave behind its dark traits of myopia, passive resistance, and outright support for, and implementation of, counter-CASA processes.”

POLICE UNION CONTRACT PROVISIONS

The 2 year, city contract negotiated by the Mayor Tim Keller Administration with the Albuquerque Police Officers Association (APOA) was for the time period of July 7, 2018 to June 30, 2020 and therefor expired on July 1, 2020.

The 65 page APOA police “Collective Bargaining Agreement” (CBA) can be down loaded as a PDF file at this link:

https://www.cabq.gov/humanresources/documents/apoa-jul-9-2016.pdf/view

Three sections of the police union contract are worth noting. Those sections are:

Recognition

Term of the Agreement, This Agreement shall become effective on the first full pay period following ratification by the rank-and-file membership, approval by the Mayor, and signature by the parties, and shall remain in full force and effect through June 30, 2020.”

THE COURT APPROVED SETTLEMENT AGREEMENT (CASA)

It was on October 31, 2014 that the federal Court Approved Settlement Agreement (CASA) was agreed to by the City of Albuquerque and the Department of Justice (DOJ) mandating 271 APD reforms and the appointment of a Federal Court appointed monitor to conduct audits of APD’s progress on implementing the reforms. The link to the CASA is here:

http://documents.cabq.gov/justice-department/settlement-agreement.pdf

https://www.justice.gov/usao-nm/apd#:~:text=On%20October%2031%2C%202014%2C%20the,use%20of%20force%20against%20civilians.

After the CASA was agreed to by the City and DOJ, the police union intervened in the case and was allowed to become a third party to the federal court litigation. The Federal Court approved the intervention without question because the parties agreed.

Becoming a party to the lawsuit allowed the union a right to participate in any and all negotiations, especially the writing of new “use of force” and use of “deadly force policies” for APD. The police union became a party to the proceeding for two major reason:

One: To promote and preserve any and all rights its membership has under the union contract, especially those that may come in conflict with the CASA.

Two: To allow it to give input and give its stamp of approval on city policy on use of force and deadly force

During the August 20, 2019 status conference, the APOA Union President Shaun Willoughby made it clear his union membership attitude towards the CASA reforms. 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”, and went on to say the reforms and mandates are “a hard pill to swallow”, and he said that “all change is hard”.

According to Willoughby, police officers are afraid to do their jobs for fear of being investigated, fired or disciplined. 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. The union has said police officer’s feel their “hands are tied” preventing them from being pro-active.

It’s likely what the police union feels is interfering with its membership from doing their jobs includes one or more of the following:

1. The mandatory use of lapel cameras by APD.
2. APD police can no longer shoot at fleeing cars.
3. APD police can no longer use choke holds to subdue suspects.
4. APD police need to use less lethal force and not rely on the SWAT unit.
5. APD police must use de-escalating tactics.
6. All APD officers must be trained in crisis intervention.
7. APD management must now hold all subordinate police officers accountable for all levels of violations of standard operating procedures.
8. The mandatory “paper work” associated with any degree of use of force is too cumbersome.
9. APD Police officers are required to intervene when they witness and are concerned about other officers use of force.
10. Mandatory notification to superiors for investigation by police officers who witness another officer’s “excessive use of force” or violations of CASA reforms.

THE POLICE UNION CONTRACT PROCESS EXPLAINED

One of the first terms of the union contact is who will be included in the “bargaining unit”. In the expired contract, the APOA is recognized as the exclusive representative for regular full time, non-probationary police officers through the rank of Lieutenants in APD. This means the ranks of Sergeants, Master Police Officer, Senior Police Officers, Patrol Officers First Class, and all Detectives are included in the bargaining unit. Approximately 16 years ago, the positions of APD Captains, who are now called Area Commanders, were included in the bargaining unit until the City demanded their removal from the union in that they are management.

Negotiated police union contract terms include hourly pay, overtime pay and bonus pay know as longevity pay, the way that police officers’ records are maintained, and how internal affairs investigations are conducted. These are standard provisions that are common place in APD’s contract.

The union contract includes numerous provisions and stipulations to protect police officer’ s employment rights and remedies, including the right to appeal disciplinary action. The police union contract gives officers accused and found violating standard operating procedures and found guilty of wrongdoing a wide range of “vested” rights they would not have as unclassified or “at will” employees. A union negotiated right includes the right to appeal any and all disciplinary action and to be reinstated and paid all back pay if reinstatement is ordered by the personnel board.

After the police union employment contract is negotiated between the city and the union, the union membership then votes to accept or reject the contract on a majority vote. Once approved by the union membership, the contract is forwarded to the Albuquerque City Council to vote on the contract before it is sent to the Mayor for signature. City Councilors are strictly prohibited from taking part in negotiations and changing the contract terms due to a provision in the City’s Labor Management Relations Ordinance §3-2-18, and all the city council cand do is vote to accept or reject the contract as presented.

All police union contract negotiations have been put on hold amidst the pandemic. As a result, the terms and conditions of the expired contract, including who is in the bargaining unit and hourly pay, remain in effect until negotiations can take place at an undetermined date in the future. It’s likely the contract negotiations will not commence until the pandemic is over.

THE NEW MEXICO PUBLIC EMPLOYEES BARGANING ACT

The New Mexico Public Employees Bargaining Act, Sections 10-7E-1 to 10-7E-26 H (NMSA 1978), governs the enforcement of the city’s collective bargaining agreement with the APD police union. The link to the statute is here:

https://www.pelrb.state.nm.us/statute.php

The sections on the “rights of employees”, “rights of employers, ” and “impasse resolutions” are worth noting.

Section 10-7E-5 provides for the rights of public employees:

“Public employees, other than management employees and confidential employees, may form, join or assist a labor organization for the purpose of collective bargaining through representatives chosen by public employees without interference, restraint or coercion and shall have the right to refuse any such activities.”

The link to Section 10-7E-5 is here:

https://www.pelrb.state.nm.us/pdf/statutes/10-7E-5_Rights%20of%20public%20employees.pdf

EDITOR’S NOTE: The statute is very clear that “management employees” are prohibited from joining the police union, yet the City has allowed APD Lieutenants and Sergeants to be part of the collective bargaining unit.

Section 10-7E-6 provides for the rights of public employers.

“Unless limited by the provisions of a collective bargaining agreement or by other statutory provision, a public employer may:

A. direct the work of, hire, promote, assign, transfer, demote, suspend, discharge or terminate public employees;
B. determine qualifications for employment and the nature and content of personnel examinations;
C. take actions as may be necessary to carry out the mission of the public employer in emergencies; and
D. retain all rights not specifically limited by a collective bargaining agreement or by the Public Employee Bargaining Act [ 10-7E-1 NMSA 1978].”

The link to Section 10-7E-6 is here:

https://www.pelrb.state.nm.us/pdf/statutes/10-7E-6_Rights%20of%20public%20employers.pdf

Section 10-7E-18 of the Employee Bargaining Act provides for union and government impasse resolutions. Impasse Resolutions are where the parties cannot reach agreement on contract terms and ask for mediation and further negotiations on the contested terms.

It is Section 10-7E-18 that provides procedures for impasse and reads in part as follows:

A. The following negotiations and impasse procedures shall be followed by the state and exclusive representatives for state employees:

D. In the event that an impasse continues after the expiration of a contract, the existing contract will continue in full force and effect until it is replaced by a subsequent written agreement. However, this shall not require the public employer to increase any employees’ levels, steps or grades of compensation contained in the existing contract.

The link to Section 10-7E-18 is here:

https://www.pelrb.state.nm.us/pdf/statutes/10-7E-18_Impasse%20resolution.pdf

FEDERAL COURT QUESTIONS ROLE OF POLICE UNION

On Friday, December 4, an all-day status conference hearing was held “virtually” before Federal District Judge James Browning on the Federal Monitor’s 12th Compliance Audit. Upward of 90 people participated via a ZOOM call.

Throughout the December 4 day’s long hearing, Federal Judge Browning asked a number of those who made presentations about the role the APD Union Police union. The same questions on the police union were asked of the Department of Justice Attorneys, the Police Union Attorney and Interim Chief Harold Medina.

POLICE UNION CONTRACT ALLOWS POLICE MANAGEMENT TO BE MEMBERS OF UNION

The Chief, the 5 Deputy Chiefs, Assistant Deputy Chiefs and all APD Area Commanders are “unclassified” positions and they can be terminated “without cause” at any time. They are prohibited from being members of the police union and are management. The Chief serves at the pleasure of the Mayor and Deputy Chiefs and Area Commanders serve at the pleasure of the Mayor and Chief and can be terminated without cause.

APD Lieutenants and Sergeants, Detectives 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, Detectives and Patrol Officers are governed by the union contract. APD Lieutenants and Sergeants are management positions but are classified positions and can only be terminated with cause. They have due process rights including progressive disciplinary actions and rights of appeal.

POLICE CHIEF CANNOT FIRE CLASSIFIED SWORN PERSONNEL AND BOUND BY UNION CONTRACT

A question asked by Federal Judge Browning was if the APD Chief had the authority to fire any police officer immediately. It appeared as though the Judge wanted to know if the Chief can fire a police officer for clear or obvious police misconduct that is found or reported upon. The answer to the question given by Elizabeth Martinez, Assistant United States Attorney for New Mexico and Interim Chief Harold Medina was no, the chief cannot fire union members without cause.

Judge Browning was told that any disciplinary action against any member of the police union is governed by the collective bargaining unit contract. The police union contract outlines police officers’ personnel rights and remedies, provides for personnel hearings, provides for internal affairs investigations, and provides for progressive discipline and the use of a matrix for discipline available.

LIEUTENANTS AND SERGEANTS

Judge Browning asked the question if APD Lieutenants and Sergeants should be allowed to be part of the police union. No clear response was given by the DOJ and City Officials, but the Police Union Attorney said yes. Interim Chief Harold Medina said he was “pro union”, he has worked with the union President and had no problem with Lieutenants and Sergeants being part of the collective bargaining unit.

Judge Browning asked the question if he could hold the Union in Contempt of Court and DOJ and City Officials gave no clear-cut answer while the Union Attorney said the union has not violated the collective bargaining contract. Judge Browning also raised the prospect of APD’s Internal Affairs Unit be abolished, but gave no inclination if that should be done.

COMMENTARY AND ANALYSIS

The current police union contract expired on June 30, 2020. 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, including who is in the collective bargaining unit. There is no real excuse to delay negotiations on the police union contract. 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 City and the Police Union have ostensibly forgotten or even ignored Section 2.5 of the police union contract that says in part:

“If the City anticipates the implementation of policies or directives related to its agreement discussions with the DOJ that impacts Officers’ terms or conditions of employment, the City will notify the APOA of its anticipated changes and provide APOA the opportunity to meet and confer with the City in a timely manner on the anticipated changes. The commitment will not prevent the APOA from submitting the changes for negotiations when the parties negotiate a successor collective bargaining agreement.”

TERMS TO BE NEGOTIATED

The city should declare impasse with the police union on 3 major terms in the union contract:

1. State law is clear when it says “Public employees, other than management employees … may … join or assist a labor organization for the purpose of collective bargaining.” (10-7E-5 , NMSA 1978) APD Lieutenants and Sergeants are management positions, and for that reason they need to be removed from the union collective bargaining unit and made at will employees.

2. State law is clear that the rights of the city as an employer include “ direct the work of, hire, promote, assign, transfer, demote, suspend, discharge or terminate public employees.” (10-7E-6 A NMSA, 1978) The city needs to negotiate terms and conditions allowing the APD Chief to “immediately terminate for cause” under negotiated circumstance, with the immediate terminations subject to appeal to the personnel board for affirmation of termination or reinstatement of employment.

3. Replace hourly wage with salary structure and abolish all hourly pay, time and a half pay, longevity pay and all overtime pay programs.

Following is analysis and commentary on all 3 terms subject to “impasse”:

1. APD POLICE UNION CONTRACT VIOLATES STATE LAW ALLOWING MANAGEMENT POSITIONS OF LIEUTENANTS AND SERGEANTS INTO BARGAINING UNIT

For the last 6 years the APOA Union has been a party to the federal court litigation. As a result, Federal Judge James Browning has “personal jurisdiction” over the union. Federal Judge Browning therefore has the authority to review the police union contract and determine if it conforms to or violates New Mexico State Law.

New Mexico State law is very clear when it says “Public employees, other than management employees … may … join or assist a labor organization for the purpose of collective bargaining.” (10-7E-5 , NMSA 1978) APD Lieutenants and Sergeants are management employees because of their titles, duties and responsibilities over subordinates. Lieutenants and Sergeants need to be removed from the union collective bargaining unit by the Federal Court making them at will employees.

APD is a “para-military” organization and as such the “chain of command” must be honored and the lines of authority must not be blurred to the point where management and subordinates become one and the same for the purpose of enforcing policy. Allowing management positions to be part of employee bargaining unit is a recipe for disaster, which is exactly what has played out with the Court Approved Settlement Agreement (CASA) for the last 6 years.

Sergeants and lieutenants need to be made at will employees and removed from the collective bargaining unit in order to comply with state law that prohibits APD management to join the police union. This will result in 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.

At a very minimum, the City and the Department of Justice need to move for the dismissal of the police union from the federal court proceeding. This will allow APD command staff and management more authority do its job with enforcement of the CASA mandates and implementation of all 271 reforms.

2. AUTHORIZE POLICE CHIEF TO IMMEDIATELY TEMINATE WITH CAUSE

One APD union contract term that is long overdue to be negotiated is to give the APD Police Chief authority to immediately “terminate for cause and without any delay” sworn police who are members of the police union for incidents and conduct that clearly violate APD standard operating procedures and violate civil rights and the use of deadly force.

When it comes to the APD police union contract, the City of Albuquerque has bargained away too many of its rights provided for in Section 10-7E-6 of the New Mexico Public Employees Bargaining Act to “direct the work of, hire, promote, assign, transfer, demote, suspend, discharge or terminate” police officers. The prohibition and inability for a police chief to discharge or terminate police officers who have clearly violated people’s civil rights and used excessive force and deadly force helped create the “culture of aggression” found by the DOJ in its investigation of APD.

APD police credibility with the general public is highly questioned when the city and its Chief fail take decisive personnel action in incidents such as the shooting of homeless camper James Boyde. When there is an extensive delay in such terminations, the public perception is that the Police Chief is covering up for APD and one of his officers. A Chief must be given the management authority that come with the title of chief and the authority to remove a police officer who has disgraced the badge with apparent and obvious civil rights violations and “excessive use of force” and “deadly force.”

As a condition of employment, police union members should be subject to immediate “termination for cause and without any delay” for incidents and conduct that are clearly a violation APD standard operating procedures and violations of civil rights as found by the Chief of Police. The union contract can define and outline circumstances and situations the Chief can immediately terminate with cause a member of the union. Immediate terminations by the Chief would be subject to appeal and due process before the City’s Personnel Board for affirmation of the termination or reinstatement of the officer.

The city and police union can negotiate and outline specific instances where immediate termination would be justified and allowed. Examples of conduct or incidents meriting immediate dismissal would be those captured by APD police lapel camera video or citizen cell phones reflecting excessive use of force and deadly force. Another reason for immediate termination would be insubordination and a finding by the Chief of deliberate resistance to the CASA reforms.

3. ABOLISH HOURLY PAY, LONGEVITY PAY, AND ALL OVERTIME PAY PROGRAMS AND NEGOTIATE A PAID SALARY STRUCTURE.

Albuquerque police officers are some of the best paid law enforcement in the country when you take into account their pay, longevity pay incentives, benefits and retirement pay. The average city hall salary for classified city employees is $30,000 to $35,000 a year. The entry level pay for Albuquerque patrolman first class is $58,000 a year.

APD is being investigated by the New Mexico attorney general and state auditor for overtime pay abuse after it was revealed that a number of APD police officers were paid in excess of $100,000 in overtime in addition to their hourly pay. Excessive overtime paid is a red flag for abuse of the system and proof of police resource mismanagement. The overtime gaming system must be stopped.

EXTENT OF THE PROBLEM

In 2019 there were 160 of the 250 top paid city hall employees that were police paid between $107,885.47 to $193,666.40.

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 rate for APD Lieutenants is $40.00 an hour or $83,200 yearly. Lieutenants are classified employee and are permitted to be part of the police union and as such are entitled to be paid time and a half for overtime worked under the union contract.

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 rate for APD Sergeants is $35 an hour, or $72,800 a year. Sergeants positions are classified employee and are permitted to be part of the police union and as such are entitled to be paid time and a half for overtime worked under the union contract.

There were 70 APD patrol officers first class, master, senior in the list of 250 top paid employees in 2019 earning pay ranging from $108,167 to $188,844. Hourly pay rate for Patrol Officers is $29.00 an hour to $31.50 an hour depending upon years of experience. These positions are classified employee and are permitted to be part of the police union and are paid time and a half for overtime worked under the union contract.

There are nearly a dozen different types of overtime programs within the 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.

SOLUTION TO OVERTIME ABUSE

One guaranteed way of stopping anyone within APD from gaming the system is to abolish the existing system of overtime pay and bonus pay. Sooner rather than later, the city and the APD union need to recognize that being a police officer is not trade work justifying hourly wages, but a learned profession that requires employees to work whatever time is necessary to get a day’s work done that may arise in that day. APD police can be compensated with a decent salary and not merely paid hourly wages.

A complete restructuring of the existing APD 40-hour work week and hourly wage system needs to be implemented. As an alternative to paying overtime and longevity bonus pay to APD officers, the city needs do away with APD hourly wages and time-and-a-half for overtime and implement a salary structure based strictly on steps and years of service.

A base salary system for all sworn police officers should be implemented with step increases for length of service. The longevity bonus pay would be eliminated and built into the salary structure. Mandatory shift time to work would remain the same. If more time is needed to complete a workload or assignments for the day, the salaried police officer would work it for the same salary with no overtime paid and a modification of shift times for court appearances. Officers would have control over time worked.

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.

Until the APD salary structure is changed, APD will always have Patrol Officers First Class making two, three and even four times their base salary, and emotional burnout will be the norm, not the exception endangering public safety. Until the APD salary structure is changed, you will also have more than a few employees “gaming the system.”

It’s the taxpayer and other city employees who are getting hurt when APD exceeds its budget by the millions and when APD management does not really care about anyone else but APD. When APD exceeds its overtime pay budget, the money has to come from somewhere. That somewhere is usually other city departments affecting other city employees. The mayor, APD management and City Council are being foolish if they do not realize that when APD exceeds its overtime budget, it causes morale issues and resentment within other city departments and employees who are not paid overtime.

FINAL COMMENTARY

The Police Union no doubt wants to continue the terms of the expired contract, including who is in the collective bargaining unit and drag out all disciplinary actions as long as possible. The union policy as embodied in the union contract allows the union to defend its membership and preserve its membership’s employment rights, even under circumstances when officer conduct is clearly a violation of standard operating procedures, civil rights and the unconstitutional use of excessive use of force and deadly force.

The delayed implementation and interference of the mandated 271 reforms by the union has gone on long enough and the time has come for the City and the DOJ to take aggressive action.

There is no real excuse to delay negotiations on the police union contract, even during a pandemic when negotiations can be done virtually. 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 link to a related blog article entitled “Alan Wagman Guest Column: After 6 Years, Millions Spent, The DOJ, APD, City, Mayor Keller All Continue To Fail At APD Reforms; The Only Hope Lies With Federal Judge James Browning” is here:

Alan Wagman Guest Column: After 6 Years, Millions Spent, The DOJ, APD, City, Mayor Keller All Continue To Fail At APD Reforms; The Only Hope Lies With Federal Judge James Browning

On Friday, December 4, an all-day status conference hearing was held “virtually” before Federal District Judge James Browning on the 12th Compliance Audit Report of the APD reforms mandated under the Court Approved Settlement Agreement (CASA). Upward of 90 people participated via a ZOOM call. Interest was high on the heels of the audit report showing that Albuquerque Police Department (APD) reform efforts had “failed miserably.”

Some of the groups with standing to address the court asked Judge Browning to hold the City in “Contempt of Court” or to take control of APD away from the City. Neither of these options currently appears to be in the offing. Instead, DOJ and the City will be submitting a “Stipulated Order” for court approval in early January. There has been no public input into the preparation of the Stipulated Order. Neither the City nor DOJ has offered the amici, or friends of the court, and other stakeholders and opportunity to give input on the Stipulated Order.

ALAN WAGMAN GUEST COLUMN

Alan Wagman is a retired Public Defender attorney in Albuquerque. He served on the city’s Police Oversight Task Force in 2013-14 and continues to work on police reform and human rights issue. He has also worked as a legislative analyst. After the December 4 status conference hearing, Mr. Wagman submitted the below guest column for publication on this blog:

(EDITOR’S NOTE: The opinions expressed in this article are those of attorney Alan Wagman and do not necessarily reflect those of the political blog www.petedinelli.com. Mr. Wagman was not compensated for the column).

On Friday, December 4, Federal District Judge James Browning presided over what could have been the most important status hearing in the Department of Justice (DOJ) lawsuit against the City of Albuquerque (the City). The lawsuit is the DOJ Civil Rights Division answer to the Albuquerque Police Department’s “pattern or practice” of unconstitutional use of force. The hearing was important because it came on the heels of a report from Independent Monitor James Ginger that confirmed what many of us knew – that APD has for the entire 6 years of the lawsuit refused to change its ways and is still refusing.

The time for the Court, DOJ and the City to act is now.

__________________________

POST-SCRIPT

THE END OF THIS REFORM PROCESS WOULD BE THE END OF THE BEGINNING; WHAT IF, BY SOME MIRACLE, APD SUDDENLY CAME INTO COMPLIANCE?

If suddenly APD were to comply with the settlement agreement and the lawsuit went away, here is what APD would look like:

However, APD would do all this without beating anyone up or killing anyone. More work lies ahead. We need not wait on Judge Browning, the DOJ, or the City to begin.

This blog article is about political plagiarism. On December 12, 2020, the Albuquerque Journal published a front page story with the banner headline “City seeking to hire chief of public safety.” The link to the Journal article is here:

https://www.abqjournal.com/1526078/city-seeking-to-hire-chief-of-public-safety.html

According to the front-page story, Mayor Tim Keller is looking to hire a “chief of public safety who would oversee the chiefs of the police department, the fire department and the office of emergency management”. According to the posted job description:

“in addition to overseeing the three department heads, the new hire must coordinate with the Chief of Police to provide strong reform-minded leadership as the department works to achieve and maintain compliance with the Court Approved Settlement Agreement dictating the police reform effort.”

City spokesperson Jessica Cambell had this to say:

“The Chief of Public Safety would also play an active role in APD reform, and serve as a policy and regulatory expert.”

May 1, 2018 DINELLI BLOG ARTICLE

Over two years ago om May 1, 2018, political blog www.PeteDinelli.com posted an article that proposed the EAXACT same thing that Keller is proposing, except with the title “Public Safety Commissioner” and with greater detail.

Below is the blog article posted:

Create Department Of Public Safety; Abolish APD Internal Affairs; Create Salary Structure

Posted on May 1, 2018

On April 1, 2018 Mayor Tim Keller submitted his first budget to the Albuquerque City Council.

Mayor Keller should use some the considerable political capital given to him with his landslide win and seize the opportunity to make real change with the creation of a Department of Public Safety before the opportunity completely vanishes.

The link to the article is here:

https://www.petedinelli.com/2018/05/01/create-department-of-public-safety-abolish-apd-internal-affairs-create-salary-structure/

COMMENTARY AND ANALYSIS

“Political plagerism” is one of the highest forms of flattery but anyone who engages in it without quoting the source risks being called out on it. There have been at least 3 occasions where I have met with Mayor Tim Keller in private twice before he was elected and once after he was elected. In one meeting, I actually gave him a tour of the downtown area that I grew up in.

It was in January, 2018, I met with Mayor Keller at his request to discuss a number of issues he was faced with including the ART bus project, the Albuquerque Police Department (APD), the Department of Justice reforms and economic development. We were followed and accompanied by his APD police detail dressed in civilian clothes.

The biggest issue I discussed with him was the Albuquerque Police Department (APD) and the Department of Justice reforms. It was during this meeting I complimented him on his recent appointment of Former New Mexico State Treasurer James Lewis to help with the DOJ reforms. I also suggested the creation of the Department of Public Safety and abolishing the Internal Affairs Unit, but he showed no interest. I also suggested that he abandoned the ART bus project and file suit against the bus manufacturer.

After our meeting ended, I asked Keller if he had any more questions or if he had any objections to what I had been writing in the blog and what was the reason for our meeting. Keller responded he had no more questions, he said I had covered what he wanted to know my thoughts on. Mayor Keller told me that I was a very “prolific writer” and then Keller asked that I be fair with my blog articles. With his last comment to be fair, it became very clear the real reason why he wanted to meet with me in the first place.

On May 1, 2018, the blog article was published and emailed directly to Mayor Tim Keller but he never responded.

The Albuquerque Journal’s article adds insult to injury when it reports on the fact that Republican Party Operative and political hack Darren White was the last Chief Public Safety Officer for the City. He was my successor and White essentially did anything he could to destroy programs I had implemented including the highly successful Safe City Strike Force. At least the paper reported White was forced to step down in 2011 following a controversy related to a crash involving his wife.

Many thanks to the Albuquerque Journal for publishing my guest column on APD pay abuse entitled “Stop Gaming Police Overtime, City Should switch to salary structure for officers”

Below is the guest column followed by the link to the Albuquerque Journal:

“APD is being investigated by the New Mexico attorney general and state auditor for overtime pay abuse after it was revealed that a number of APD police officers were paid in excess of $100,000 in overtime in addition to their hourly pay. APD paying excessive overtime to a few is nothing new and has gone on for years. Historically, time and time again, year after year, the temptation to be paid two, three, even four times more a year than what your base pay is by padding hours worked is way too great. Excessive overtime paid is a red flag for abuse of the system and proof of police resource mismanagement. The overtime gaming system must be stopped.

Negotiations for a new APD union contract have been suspended because of the pandemic. If and when the city and the APD union return to the bargaining table to negotiate a new contract, the abolishment of hourly wages for APD sworn officers and implementation of a salary structure should be the first negotiated item for the new contract.”

The link to the Albuquerque Journal is here:

https://www.abqjournal.com/1525726/stop-gaming-police-overtime.html

In a letter dated October 14, 2020, Bernalillo County District Attorney Raul Torrez notified the Bernalillo County Sheriff’s Office (BCSO) and the Albuquerque Police Department (APD) that his office was introducing a new disclosure policy. The policy is based on the 1974 United States Supreme Court ruling Giglio v. United States, 405 U.S. 150 (1972). The Giglio ruling requires the prosecuting agency, in this case the Bernalillo County District Attorney’s Office, to disclose to a criminal defendant all information or material that may be used to impeach the credibility of the prosecution witnesses including police officers and sheriff officers who are witnesses for the prosecution in any case.

The Supreme Court ruling in the Giglio case in nothing new and has been required since 1972. The DA’s office formalizing the process is new. According to the DA’s office, it is being done now because of the dramatic “recent slow-down” in the criminal courts giving the time to develop a training protocol and the infrastructure to launch the new policy. According to District Attorney Raul Torrez, the new system will bring transparency to the criminal justice system and hold prosecutors and law enforcement accountable. Torrez told both APD and BCSO in his October 14 letter:

“My office joins a growing number of prosecutor offices around the nation that are embracing reform and police accountability by formalizing this Giglio inquiry process. Historically, requests for Giglio material have been done on a case-by-case basis and the results of earlier Giglio inquiries have not been searchable. Beginning in November my office will start implementing a formal and searchable system.”

The letter goes on to say that law enforcement officers listed as witnesses in an open case will receive a questionnaire where information like past misconduct of bias, use of force or truthfulness, or criminal charges must be disclosed. The findings will then be placed into an officer’s personnel file. The postscript to this blog article outlines the information that will be asked in the questionnaire to law enforcement and contained in the October 14, 2020 letter from District Attorney Torrez. A link to the October 14 letter from the District Attorney to APD and the BCSO is here:

https://www.scribd.com/document/483235279/Giglio-letter-to-local-law-enforcement#from_embed

LET IT BE MADE PUBLIC

On November 6, DA Torrez announced he intends to create a list of law enforcement officers who have disclosures reflecting a history of dishonesty, use of force, bias or other issues that might make them unfit to aid in a prosecution case or prohibit them from testifying in court. The DA’s Office said it hopes to begin publishing the list on its website early 2021. The list will consist of the names of officers who have Giglio disclosures that prosecutors are required to provide to defense attorneys where law enforcement witnesses may be unreliable or biased. The new list is being touted as the first public database of its kind in the country.

District Attorney Raúl Torrez stressed the practice of disclosing the material itself is not new. Both the Law Offices of the Public Defender and the New Mexico Criminal Defense Lawyers Association routinely ask for Giglio disclosures at the beginning of cases and it is done on a case-by-case basis.

BERNALILLO COUNTY SHERRIFF MANNY GONZALES RESISTS

After Bernalillo County Sheriff Manny Gonzales received the letter in October from District Attorney Raul Torrez, a BCSO spokesman said the letter was a “sensitive matter” and that the office would be writing a letter of response to the DA’s Office. The BCSO did say it had concerns over the confidentiality and constitutionality of the policy.

Shortly after learning of the new DA’s policy, Sheriff Manuel Gonzales sent a memo to all BCSO deputies telling them not to respond to the DA’s questionnaire. Instead, Sheriff Gonzales told his deputies to answer two questions he provided for them to answer. Those two questions are:

1. “Are you aware of any sustained Internal Affairs investigatory findings indicating you provided untruthful testimony, or were found to be untruthful in the course of your duties?”

2. “Are you aware of any court or judicial body that has determined you provided false or deliberately misleading testimony under oath?”

DA TORREZ RESPONDS TO SHERIFF’S RESISTANCE

DA Torrez quickly criticized the Sheriff’s resistance to responding to the DA’s questionnaire. DA Torrez told Sheriff Gonzales that asking just two questions “improperly narrows the scope of material that should be disclosed”. DA Torres went on to ask for the Sheriff Gonzales’s cooperation. In a one-page response, Sheriff Gonzales called the eight-question questionnaire “lengthy and intrusive,” and said he believes the information requested in the DA’s questionnaire “intrudes on the privacy rights of our deputies and is constitutionally immaterial.”

DA Torrez sent Sheriff Gonzales a letter in response and wrote:

“One of the more troubling aspects of your letter is the purported finality of your decision. … You appear to have no interest in a dialogue with my office to discuss your concerns. Instead, you simply refuse to follow your constitutional and statutory duty, as if that is the end of the matter. Your letter smacks of the type of deliberate indifference or reckless disregard for the truth in withholding evidence from the prosecution that can serve as the basis for civil liability on the part of police agencies. … Like your prolonged resistance to body cameras, your position on [the disclosure requirements mandated by the US Supreme Court] unnecessarily calls into question the integrity of your office’s investigations.”

In a December 4 interview with KOB TV 4, DA Torrez had this to say about Sherriff’s Gonzales resistance to the mandatory disclosures:

“I think this is a police and law enforcement leader who doesn’t understand that the world has changed fundamentally about the public’s expectation for transparency and accountability. … It’s not for the sheriff to decide what is constitutionally immaterial. … That’s what prosecutors are for. That’s what attorneys are for. That’s why we have courts, and independent fact finders to review the information, there are procedural safeguards. But ultimately, every federal court and the few state courts that have looked at this have resoundingly rejected that argument.”

“It’s my belief, and frankly, it’s the belief of virtually every court that’s looked at this, that public servants that are wearing a badge and a gun that are authorized to enforce the law and use force on the streets of Albuquerque and investigate crimes– when they’ve engaged in misconduct, they don’t have a privacy, right to keep that information, certainly from prosecutors. … The constitution, in fact, requires that we ask the questions, and that you know, that they respond and answer those questions.”

Gonzales declined to an interview with KOB 4 but said in a statement:

“Mr. Torrez should … focus on prosecuting cases and obtaining justice for victims in Bernalillo County which he has failed to do.”

https://www.kob.com/albuquerque-news/da-torrez-sheriff-gonzales-in-dispute-over-tracking-misconduct-among-law-enforcement-officers/5942491/?cat=500

After sending his correspondence to Sheriff Gonzales, DA Torrez notified the New Mexico Public Defenders Office and the New Mexico Criminal Defense Lawyers Association of the dispute with the Sheriff. Torrez also sent both the exchange between the offices. DA Spokeswoman Brandale Mills-Cox Torrez’s said the DA’s Office will continue to prosecute criminal cases investigated by the Sherriff’s office. However, Mills-Cox said the DA’s Office will inform the courts and opposing counsel that the Sheriff’s Office is not complying with the Supreme Court disclosure requirements and said it this way:

“We have informed both the Sheriff and the criminal defense bar that we intend to ask these questions during pre-trial witness interviews and, should deputies refuse to answer these questions, we will join defense in any motion to compel disclosure pursuant to our constitutional obligations.”

SHERIFF GONZALES DEFLECTS DEMANDS

Sheriff Gonzales in a letter to DA Torrez rendered his legal opinion and wrote:

“We believe the information requested in your questionnaire intrudes on the privacy rights of our deputies and is constitutionally immaterial.”

In a statement, Sheriff Gonzales said:

“[The DA’s letters contain] false allegations and direct contradictions of what I have instructed our deputies to do, and that is to follow the law. … Understanding the Brady and Giglio court rulings’ intent, the Sheriff’s Office has a questionnaire form each deputy is required to answer, which sufficiently meets the obligations under Giglio and Brady. … Finally, in lieu of threatening this office with frivolous litigation, Mr. Torrez should instead focus on prosecuting cases and obtaining justice for victims in Bernalillo County, which he has failed to do.”

Bernalillo County Sheriff’s Office Spokeswoman Jayme Fuller said that Sheriff Gonzales is committed to upholding the United States Constitution, is committed to serving and protecting people in the community, and that Sheriff Deputies will provide the U.S. Supreme Court disclosure material he believes is required under the law. Fuller said:

“Despite the DA’s lengthy correspondence, he failed to provide our Office with any authority, other than his oblique reference to [US Supreme Court rulings] that would justify the use of his lengthy and intrusive questionnaire. … Further, neither the U.S. Attorney’s Office nor the N.M. Attorney General’s Office have submitted a similar questionnaire to this Office. For many years, our deputies routinely participate in Giglio disclosures and interviews regarding case prosecution with the U.S. Attorney’s Office.”

PUBLIC DEFENDER’S OFFICE REACTS

New Mexico Public Defender’s Office spokeswoman Maggie Shepard said that in the past, defense attorneys have struggled and had to fight to get the materials reflecting a history of dishonesty, use of force, bias or other issues involving law enforcement called to testify. According to Shepard:

“We are encouraged that DA Torrez is saying he will hold BCSO deputies and leadership accountable to their community. … We believe all police misconduct is relevant to the testimony they give in court. As DA Torrez has implemented this program, we’re seeing more transparency from his office and from law enforcement, and that benefits the community.”

https://www.abqjournal.com/1523435/sheriff-gonzales-bucks-das-deputy-misconduct-questionnaire.html

https://www.kob.com/albuquerque-news/da-torrez-sheriff-gonzales-in-dispute-over-tracking-misconduct-among-law-enforcement-officers/5942491/?cat=500

NOT THE FIRST TIME SHERIFF GONZALEZ CHALLENGED ON MANAGEMENT OF SHERIFF’S OFFICE

Sheriff Gonzales’s dispute with District Attorney Raul Torrez is not the first time he has shown he is a “law enforcement throwback” to days gone by failing to keep up with changes in the law and failing to adopt law enforcement best practices.

LAPEL CAMERA OPPOSITION

Gonzalez has gotten a lot of mileage and publicity with his very public opposition to lapel cameras. Sheriff Gonzales has consistently opposed the use of lapel cameras by the Bernalillo County Sheriff’s office while lapel camera usage is required of APD and law enforcement agencies throughout the country. Many Democrats and Republicans strongly disagree with Sheriff Gonzales’ resistance to ordering the use of lapel cameras by his deputies. Last fall the Bernalillo County Commission allocated $1 million in startup money, plus $500,000 in recurring annual funds, for the sheriff’s office to get dashboard cameras and lapel cameras, but Sheriff Gonzales refused and no equipment was ever purchased.

On July 15, Sheriff Gonzales essentially ignored the lapel camera usage by all law enforcement in the state mandated by the 2020 legislature. At the time, Gonzales announced he was looking to partner with a private company so his deputies can put “smart phones” in their vests and record video instead of using body cameras. The suggestion to use “smart phones” was met with extreme ridicule. State Senator Joseph Cervantes, D-Las Cruces, the sponsor of the mandatory use of lapel cameras by all New Mexico law enforcement, burst out laughing when told of the sheriff’s plan to use smart phones.

Senator Cervantes had this to say:

“I’m pleased to see the sheriff is finally willing to adopt one of the tools of modern law enforcement. … We passed a law that requires body-worn cameras, so if he wants to do it by duct-taping iPhones on his officers’ chests, that’s his prerogative, although I think it creates the possibility of becoming a laughingstock.”

https://www.ctpost.com/news/article/Besieged-New-Mexico-sheriff-eyes-smartphones-as-15411944.php

A $4 MILLION DOLLAR SETTLEMENT BY BCSO AND STILL NO LAPEL CAMERAS

On March 6, 2020, it was reported that the family of a mentally ill Elisha Lucero, 28, who was shot and killed by Bernalillo County Sheriff’s deputies in front of her home during a misdemeanor battery call last summer, settled their lawsuit with the county for $4 million. The two Sheriff Deputies who shot and killed Elisha Lucero were not wearing lapel cameras. The two are the same deputies who were sued, along with the Sheriff, by the ACLU for racial profiling during traffic stops of African American women. (See below: RACIAL PROFILING ACCUSATIONS AGAINST BCSO.)

In July, 2019, mentally ill Elisha Lucero, 28, was shot to death in front of her RV, which was parked in front of her family’s South Valley home. Deputies had responded to the home after a relative called 911 saying Lucero had hit her uncle in the face. According to the 911 call, a relative said Lucero was mentally ill, needed help, and was a threat to herself and to everybody else. Just one month prior, Lucero had called BCSO and asked to be taken to the hospital for mental health issues. According to the lawsuit, when deputies arrived, they said Lucero initially refused to come out of the home. The 4-foot-11 Lucero, naked from the waist up, ran out screaming and armed with a kitchen knife and the deputies pulled their revolvers and shot her. According to an autopsy report, she was shot at least 21 times by the deputies.

The Lucero family civil suit states:

“the deputies created a situation where they were forced to use deadly force against Ms. Lucero or have justified their unlawful use of deadly force with the falsehood that Ms. Lucero presented a deadly threat to one or all of them.”

The Lucero lawsuit filed on January 13 alleges Sheriff Gonzales has fostered a “culture of aggression” in the department and too few deputies are trained to handle people with mental health issues. The allegation of a “culture of aggression” and the use of deadly force when dealing with the mentally ill is identical to what the Department of Justice investigation found within the Albuquerque Police Department (APD) 6 years ago resulting in the DOJ federal Court Approved Settlement Agreement. Albuquerque has paid out $5 million to $6 million for it’s most high-profile officer-involved shootings, including the shooting of mentally ill homeless camper James Boyd and mentally ill Christopher Torres prior to beginning its reform effort with the Department of Justice.

Even after the shooting of Elisha Lucero and the $4 Million settlement, Sheriff Gonzales did not change his opposition to lapel cameras. Gonzales has proclaimed his deputies do not need lapel cameras because they have audio recorders on their belts. He also said he saw no proof that lapel cameras reduce use of force by law enforcement.

https://www.abqjournal.com/1428402/family-of-mentally-ill-woman-shot-by-bcso-gets-4m-settlement.html

BCSO RACIAL PROFILING CASES SETTLED

In this day and age of the Black Lives Matter movement, civil lawsuits are the norm and not the exception against any law enforcement agency and the Bernalillo County Sheriff’s office is no different. There is no doubt if Sheriff Gonzales runs for Mayor, his management of BCSO will be examined as will any and all lawsuits filed against the department for systemic racial profiling under his watch.

On July 8, 2020, it was reported that two Black women from Wisconsin are suing Bernalillo County Sheriff Manuel Gonzales and two deputies alleging racial and religious profiling stemming from a traffic stop in July 2017. The lawsuit was filed about five months after Bernalillo County reached a $100,000 settlement with Sherese Crawford, a 38-year-old African-American who filed a lawsuit against BCSO after she was pulled over three times in 28 days by deputies Patrick Rael and Leonard Armijo, the same deputies named in the new lawsuit, in spring 2017.

According to the lawsuit filed by Sisters Consweyla and Cynthia Minafee, and a 5-year-old child, Yahaven Pylant, were traveling from Phoenix back to Wisconsin when they were pulled over by Rael on Interstate 40 the morning of July 7, 2017. Cynthia Minafee was Yahaven’s legal guardian at the time. According to the lawsuit, the traffic stop lasted almost an hour and included an extensive search of the vehicle with a drug dog.

According to the lawsuit, Rael told the women to get out of the car and said he could smell marijuana on Cynthia. Cynthia said that she had not smoked in the car and that there was no marijuana in the vehicle. Consweyla Minafee, the driver, was not issued a traffic citation, but Cynthia Minafee was issued a citation for not having Yahaven properly restrained. The citation was dismissed in May, online court records show.

A link to the full Albuquerque Journal article is here:

https://www.abqjournal.com/1473973/two-bcso-deputies-face-second-racial-profiling-lawsuit.html

It was on December 6, 2017 that the American Civil Liberties Union (ACLU) of New Mexico filed a lawsuit on behalf of Sherese Crawford, a 38-year-old African-American woman on temporary assignment in New Mexico as an Immigration and Customs Agent (ICE) deportation officer. The lawsuit alleged that Bernalillo County Sheriff’s Office (BCSO) deputies racially profiled her by pulling her over three times, twice by the same deputy, within a month with no probable cause or reasonable suspicion that she was breaking the law. None of the 3 times she was pulled over was she given a warning or a citation.

ACLU of New Mexico Staff Attorney Kristin Greer Love had this to say at the time:

“Our client is an accomplished federal agent who was targeted for driving while black … BCSO unlawfully and repeatedly stopped her because she fit a racial profile. Targeting people because of the color of their skin is unconstitutional and bad policing. Racial discrimination has no place in New Mexico, and BCSO must take immediate action to ensure that this behavior does not continue.”

https://www.aclu-nm.org/en/press-releases/aclu-files-racial-profiling-lawsuit-against-bcso

CLAIMING TO REACH ACROSS PARTY LINES BY COZZYING UP TO TRUMP

This past summer, Sheriff Gonzales went to the White House to participate in a photo op with President Donald Trump to attend Trump’s announcement of a federal law enforcement initiative to target violent criminals and repeat offenders in 7 cities with some of the highest crime rates in the country which included Albuquerque. Gonzales declared at first he was going to met with Trump and that he had the desire and obligation to reach across party lines when it came law enforcement. It turns out it was a Trump press conference and photo op and Sheriff Gonzales did not speak. Republican United States Attorney for New Mexico John Anderson, who was appointed by Trump, did attend and gave interviews after the press conference.

The problem was that Gonzales was the only county and city official who who was invited to attend. The Bernalillo County District Attorney, the Mayor, the President of the City Council and the Presiding District Court Judge, all who are Democrats dealing with the same high crime rates as Sheriff Gonzales, where not even invited to attend.

True or false, the Gonzales trip was widely criticized by Democrats. Senator Martin Heinrich even went so far as to demand that Sheriff Gonzales resign, with the resignation demand considered by many as over the top. The Sheriff’s trip was interpreted as an endorsement of President Trump’s law enforcement policies. Sheriff Gonzales should have known better and not gone at all or have sent the Under Sheriff in his stead.

COMMENTARY AND ANALYSIS

On September 6, 2019, BCSO Sheriff Manny Gonzales made it known he was planning on running for Mayor in 2021. Sources have confirmed he is running on a platform of being tough on violent crime, bringing down the city’s high crime rates and consolidating the Albuquerque Police Department and the Bernalillo County Sheriff’s Department to create a single law enforcement agency.

It’s likely a Mayor Gonzales will not only appoint a new APD Chief, but he will micro manage APD that is under a federal consent decree. Sheriff Gonzales has not publicly expressed his concerns about the DOJ consent decree, but it is known to many in law enforcement that he has significant reservation and disagreements with the federal Court Approved Settlement Agreement (CASA). Confidential sources say Gonzales intends to campaign for Mayor on a platform to dismiss the federal court case and abolish all the reforms imposed upon APD and seek dismissal of the federal lawsuit.

Ostensibly, Sheriff Gonzales thinks that getting into a public spat with the elected Democratic Bernalillo County District Attorney on mandatory disclosure of sheriff deputy misconduct will somehow ingratiate him with conservative voters, both Democrats and Republicans, saying he stands on his principals and for his law enforcement colleagues and against all crime. It’s also likely Gonzales believes that support from conservative Democrats and conservative Republican voters will propel him into the Mayor’s office and he will defeat Mayor Tim Keller as Keller seeks a second term. He is sadly mistaken

The blunt truth is that a badge does not allow anyone to ignore the courts nor give one a license to practice law without a license on any level. Further, despite what Gonzales may think, it is the Bernalillo County District Attorney who is the Chief Law Enforcement Officer of the County, not the Bernalillo County Sheriff. Responding to the Bernalillo County District Attorney’s questionnaire on police misconduct as written should have been a no brainer. But not for Gonzales in that it would not allow Gonzales to get the headlines he has been coveting ever since he decided to run for Mayor and by his repeated law enforcement sweeps within the city limits where APD has primary jurisdiction. With the sweeps in the City, Gonzales will be able to say his office is doing the job APD cannot do, which is get violent criminals off the streets.

What he is in fact revealing with his resistance to the mandates of the United States Supreme Court on disclosures is that he feels he and his deputies are above the law. Simply put, they are not, and the courts will no doubt order him to disclose the information in all criminal prosecutions if push comes to shove. One or two contempt of court citations will likely get the Sheriff’s attention.

Sheriff Gonzales has a full two years left of his current term and he is prohibited from running for another term. 2021 is just a few days away. If he is indeed running for Mayor in 2021, he should go ahead and announce now, resign his position and let the Bernalillo County Commission find someone who really wants the job and not campaigning for another.

If he is not running for Mayor, it is suggested that Gonzales stop trying to practice law without a license, or at least fire anyone who has been giving him such poor legal advice on what has been mandated by the United State Supreme Court. Gonzales needs to honor the request made by the Chief Law Enforcement Official of the county, otherwise he risks all the arrests and cases his department handles are worthless because of dismissals or the DA declining to prosecute the cases.

_______________________________________________

POSTSCRIPT

GIGLIO MATERIAL BEING ASKED FOR DISCLOSURE

In the October 14, 2020 letter, District Attorney Torrez outlined the information that will be asked in the questionnaire to law enforcement:

“Examples of Giglio information include but are not limited to:

Our office will disclose Giglio material will disclose to defense counsel, file a notice of disclosure, and will log the disclosure on a Giglio list.”

A link to the October 14 letter from the District Attorney is here:

https://www.scribd.com/document/483235279/Giglio-letter-to-local-law-enforcement#from_embed

UNITED STATES SUPREME COURT RULINGS

There are two landmark United States Supreme Court case that are at issue and they are Brady v. Maryland, 373 US 83, decided in 1963 and Giglio v. United States, 405 U.S. 150, decided in 1972.

Brady v. Maryland, 373 U.S. 83, (1965) is the 1965 case that established that the prosecution must turn over all evidence that might exonerate the defendant and aide in the defense. The prosecution failed to do so for Brady, and he was convicted and the conviction was overturned. The US Supreme Court found in Brady v. Maryland that due process is violated when the prosecution “withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty.” This is the case even if the failure to disclose was a matter of negligence and not intent.

Giglio v. United States, 405 U.S. 150, is a 1972 Supreme Court case involving the prosecution’s obligations in regards to criminal discovery and disclosure. In Giglio, the Court went further and held that “all impeachment evidence falls under” the Brady holding. What this means is that the prosecution is obligated to disclose all information or material that may be used to impeach the credibility of prosecution witnesses, including police officers who are called as witnesses for the prosecution.

The consequences of Brady and Giglio are simply stated as police officers must be especially careful to avoid any and all actions or statements that could compromise their credibility. This could easily include racial slurs and expressions of racial prejudice. A good example involves the case of OJ Simpson when investigating homicide officer Mark Furhman was impeached on the witness stand for his history of racial slurs that destroyed his credibility on the stand.

One legal authority succinctly put it this way:

“[Under the Supreme Court rulings] the prosecution is legally required to disclose any misconduct or compromising information regarding the witness to the defense attorney, who will then use it to impeach the law enforcement witness on the stand. The end result can be the loss of what would have been a strong case.”

Under New Mexico State law, it is not illegal to release disciplinary records of police officers. However, police departments that choose to keep them private cite an exception to the state’s Inspection of Public Records Act (IPRA) that provides “letters or memorandums, which are matters of opinion in personnel files” are exempt from public inspection.

In 1977, the New Mexico Supreme Court specifically held that “disciplinary action” and other “matters of opinion” can be withheld. The Supreme Court held that the legislature anticipated there could be documents concerning disciplinary action that “might have no foundation in fact.”

Currently, each law enforcement agency in New Mexico can interpret the state’s public records law differently. The Albuquerque Police Department (APD) consistently releases Internal Affairs Investigations and the discipline records of officers especially when civil lawsuits are filed or an officer is charged with a crime. Many other departments in the state simply resist requests and do not release the personnel records. What this means is that there are varying policies throughout the state law enforcement agency that are in a constant state of change when new management takes over.

On Monday December 7, the Albuquerque City Council voted unanimously to approve funding for its contribution to the Netflix $1 Billion massive expansion at Mesa Del Sol. On November 23, it was reported that Netflix will be expanding its presence in New Mexico by more than 10 times as it already exists by adding 300 acres to its existing 30-acre property located at Mesa Del Sol at the South border of the City. Netflex said it intends to make Albuquerque its North American production headquarters. The expansion comes a mere two years after the media giant purchased the ABQ Studios.

New Mexico Economic Development Secretary, Alicia Keyes, said the Netflix deal is going to build an ecosystem and solidify New Mexico as the place to be for film and television. The Netflix expansion will break ground in 2021.

Keyes laid out the New Mexico Film Office’s top priorities for the expansion and said:

“Our priorities for the next few years are really to train our crew base, and make sure that they can upskill so that they’re moving up the ladder within the industry,” she said. “We would like to enroll more small businesses in New Mexico within the vendor program for the state film office where lumber companies, restaurants, glass companies can register themselves in order to service the industry. Also, we need to focus on above the line talent and really how to build an ecosystem so that we’re not only a crew destination, but we’re creating our own content.”

“I think it’s an exciting time for students here in New Mexico, to be able to train and live and work and stay in their state with their families and also be involved in such an amazing thriving industry in which they can be paid well and get benefits. .. I really think that New Mexico is the place to be for film and television now.”

Link to news sources are here:

https://www.kob.com/albuquerque-news/nm-secretary-of-economic-development-discusses-new-opportunities-to-come-with-netflix-expansion/5944931/?cat=500

https://www.krqe.com/news/albuquerque-metro/albuquerque-city-council-approves-funding-for-netflix-expansion/

https://www.krqe.com/news/albuquerque-metro/albuquerque-city-council-approves-funding-for-netflix-expansion/

MASSIVE PHYSICAL EXPANSION AND FINANCIAL INVESTMENT

According to Netflex, in addition to the 300-acre expansion, it will add up to 10 new stages, post-production services, production offices, mills, backlots, and training facilities, wardrobe suites, a commissary to support meals and craft services, and other flex buildings to support productions.

Netflix said the expansion includes job creation over the next 10 years of upwards of 1,000 “project based” production jobs in New Mexico. An additional $1 billion in production spending and $150 million in capital expenditures is expected over the 10 years. The capital investment is expected to create upwards of 1,467 construction jobs needed to complete the expansion of the studios.

The State of New Mexico will be allocating up to $17 million in Local Economic Development Act (LEDA) funding. The city of Albuquerque for its part is committing up to $3 million in local LEDA funding to the project. In the 2018 , Netflix purchase, the company received a total of $14.5 million LEDA funds combined from both the state and city.

According to the State Land office, 130 of the total 300 acres will be leased from the State Land Office. The remaining 170 acreage is private property that will be either purchased or leased by Netflix.

As part of the financing for the expansion, the City of Albuquerque will issue an Industrial Revenue Bond (IRB) to partially abate property and other taxes over a 20-year term for the first $500 million investment by Netflix to build out the production facility.

All the City incentives are pending the approval of the Albuquerque Development Commission and the Albuquerque City Council. The project has been reviewed by the Mesa del Sol Tax Increment Development District Board and it is going before the Albuquerque Development Commission on Monday, November 30. The Albuquerque City Council will review the project during its December 7 regularly scheduled meeting. Once approved by both entities, the funding will be disbursed following “benchmarks” set out in the Public Participation Agreement agreed to by the parties.

The Netflix expansion plan with Local Economic Development Act (LEDA) funding is on the same lines as the deal that occurred in 2018 requiring benchmarks that must be met to secure the city and state funding. In 2019, Netflix reached its benchmark of a $75 million direct spend within nine months. The new expansion agreement calls for Netflix to spend $1 billion over the course of a decade. In addition, Netflix will be adding 1,000 jobs per year.

In the proposed investment deal, Netflix has agreed to provide training programs for crew and production team employee positions in partnership with the New Mexico Film Office, local universities, labor and industry organizations. In partnership with the New Mexico Film Office, Netflix has also committed to supporting New Mexico’s Native American, Latino, Black and other underrepresented groups’ content creators and filmmakers.

Netflix Co-CEO Ted Sarandos had this to say in a statement:

“New Mexico provides an outstanding production and business environment in close proximity to Los Angeles with some of the best crews and creative talent in the world. … The expansion will bring many new high-tech and production jobs to the region, while allowing us to be more nimble than ever in executing production plans for so many series and films enjoyed by our members all over the world, while cementing the status of the region as one of the leading production centers in North America.”

Since 2018, Netflix has filmed “Army of the Dead,” “El Camino,” “Godless,” “Daybreak,” “Chambers” and “Messiah” in New Mexico. It is currently filming “The Harder They Fall” and “Intrusion”. Netflix will soon begin filming season four of “Stranger Things.”

Links to related news sources are here:

https://www.kob.com/albuquerque-news/nm-secretary-of-economic-development-discusses-new-opportunities-to-come-with-netflix-expansion/5944931/?cat=500

https://www.koat.com/article/netflix-plans-major-expansion-in-abq/34761785

https://www.krqe.com/news/new-mexico/netflix-to-expand-abq-studios-pledges-1b-investment/

https://www.kob.com/albuquerque-news/netflix-announces-plan-to-add-300-acres-to-abq-studios-/5932504/?cat=500

https://www.abqjournal.com/1520539/netflix-plans-significant-expansion-in-abq.html

GOVERNEMENT REACTION

Governor Michelle Lujan Grisham had this to say about the Netflix expansion:

“My administration has expanded our state’s competitive film incentives, facilitating more opportunities for rural communities and high-wage employment for New Mexicans all across the state. … I am glad Netflix has chosen to double-down on its commitment to our state, and our partnership will continue to grow for the benefit of New Mexicans across the board.”

New Mexico State Land Office Commissioner Stephanie Garcia Richard for her part had this to say:

“Netflix’s expansion to state trust land is great news for our state. Because of this partnership, New Mexico will benefit from new jobs and more revenue flowing into communities that become filming location. … Netflix has already been delivering on those promises, but by moving onto state trust land, an estimated $24 million will be going to the University of New Mexico, the beneficiary of the state trust land onto which they will expand their studios.”

Alicia J. Keyes, Secretary of New Mexico Economic Development, acknowledging the pandemic, had this to say:

“This expansion secures New Mexico’s future as the place to make movies. Because of COVID, people and businesses are looking for alternatives outside of big cities. It was important for us to jump off with this expansion. We’re seeing other companies from different industries seeking out New Mexico. … Part of our job is to help local businesses and get through the pandemic. … The other part of our job is the future of New Mexico. We need a secure and diversified economy. We can’t rely on oil and gas, retail and tourism as much. We have to have things like aerospace and film to strike that balance.”

Keyes reference to the aerospace industry is an obvious reference to the Orion development. It was on Thursday, November 12, the City of Albuquerque Environmental Planning Commission approved the new site plan for the “Orion Center.” It is an aerospace and technology facility that will be built on the 122-acre plot of land located between Kirtland Air Force Base and Albuquerque International Sunport. “Group Orion”, the developer, is a subsidiary of Theia Group Inc., a Washington D.C. based, privately held aerospace company. The Theia Group is attempting to develop a network of satellites to digitally image and collect data on the physical world, providing solutions in areas from logistics to biology.

The Orion Center Development is truly and exceptional development using the city property and resources to expand the city’s economy, especially during the time of a pandemic. There is no doubt that the success of the project will fit squarely into the long-term need for the city to expand its economy and recruit in a targeted and expanding global aerospace industry. Surprisingly, the Group Orion has not requested any economic development incentives from the Local Economic Development Act funds.

NEW MEXICO’S EVER-EXPANDING FILM INDUSTRY

Over the last 20 years, the film and television industry has steadily grown and been one of the few bright spots for the state, especially during the great recession, when it comes to economic development and diversifying the state’s economy which is very dependent on federal spending. The New Mexico Film Office reports that in in 2003 the industry had direct spending in New Mexico was $7 million. In fiscal year 2019, direct spending reached a record high of $525.5 million. According to state estimates, Netflix will generate an estimated $344 million in taxes to the state, local school districts, and other local governments.

It was in 2019 that the film industry began to seriously emerge to be one of the biggest hopes for Albuquerque and New Mexico to diversify both the city and states economies. The unmistakable evidence was the immense investment in the city and state by NBC Universal and the Netflix purchase of Albuquerque studios as the site of a new production hub. Both announced NBC and Netflix announced opening film production facilities in Albuquerque.

NBC DEAL

On June 14, NBC Universal announce it would open a studio in Albuquerque as part of a 10-year venture with Garcia Realty and Development. The media giant took over and renovated and created sound stages at a now vacant industrial building south of I-40 on Commercial Street, north of downtown in the vicinity of historic Martinez town. The media giant is expected to provide more than 330 full-time jobs year-round at the film studio.

NBC Universal employees earn about $58,000 a year which is a far cry from the minimum wage jobs the city is use to announcing with the arrival of new businesses. The studio operation is projected to generate an economic impact of $1.1 billion over a 10-year period.

The state’s Economic Development Department is providing $7.7 million through the Local Economic Development Act (LEDA) to the redevelopment and production commitment. The City of Albuquerque will provide another $3 million from its LEDA fund which was approved by the Albuquerque City Council on June 17, 2019 by a unanimous vote.

NETFLEX DEAL

On October 8, 2018, it was announced that Netflix was buying Albuquerque Studios. The State contributed $10 million of Local Economic Development Act funds. The City of Albuquerque contributed another $4.5 million of Local Economic Development Funds. Albuquerque beat out other places such as Denver, Salt Lake City, Austin, New York, Georgia and Los Angeles. The Albuquerque site will be Netflix’s first hub purchased in the United States. Albuquerque Studios is an enormous complex that includes 9 sound stages, a backlot and management offices. New Mexico’s other 4 production studios are I-25 Studios, Garson Studios, Santa Fe Studios and Las Cruces Studios as other productions seek studio space for their projects.

https://www.abqjournal.com/1230755/netflix-to-buy-abq-studios.html

https://www.krqe.com/news/new-mexico/netflix-buys-albuquerque-studios/1507392854

Originally it was estimated that at least 1,000 well-paying jobs per year will be created. The jobs will run the gamut of film and TV production work, most of which is project-based contract labor. Many of the jobs are expected to pay $70,000 a year. The purchase deal also calls for $1 billion worth of production spent over 10 years which will have a dramatic effect on the City and State economies.

https://www.petedinelli.com/2019/06/17/lights-camera-action-means-jobs-repeal-nm-criminal-abortion-law/

TAX CREDITS FOR FILM AND TELEVISION PRODUCTION

On March 29, 2019, Governor Michelle Lujan Grisham signed into a law legislation expanding tax credits for film and television productions in a bid to bring more business to New Mexico’s studios as well as its cinematic mesas and small towns. Governor Michelle Lujan had called upon the legislature to abolish the annual $50 million cap on film rebate spending cap, but the legislature instead more than doubled it. The enacted legislation also pays off up to $225 million in tax credits already owed to the film and television industry. The film and television industry has hit the $50 million annual cap on tax credits in recent years, leaving the state with a backlog of $382 million through fiscal year 2023.

The enacted law more than doubled the original cap of $50 million to up to $110 million in in tax credits for film and television productions each year. That cap does not apply to production companies that have purchased or signed a 10-year lease for facilities, like Netflix, which is setting up shop in Albuquerque. The new law also provides an additional 5 percent credit for productions more than 60 miles outside of Bernalillo and Santa Fe counties, a measure that proponents argued would promote the industry in cities like Las Cruces as well as in rural areas of the state. The law also requires the state to collect additional data on how the credits are used.

It was on July1, 2019 that the current film tax incentive package went into effect. It raised the cap on what can be paid to film and TV productions in a single year to $110 million. Film production companies receive a 25% rebate on goods and services expenses for most of their projects in New Mexico. Some TV shows get up to a 30% rebate. An additional 5% tax credit is given to companies that take their film productions to rural areas.

COMMENTARY AND ANALYSIS

The one industry that represents the future of New Mexico and a major hope for expanding New Mexico’s economy is the film industry. Simply put, the film industry creates jobs for New Mexicans. The New Mexico film industry expands each year in large part because of the tax credits. With the incentive subsidies, the State economy will continue to benefit from continued millions in direct spending that will improve the economy. Jobs will also be created in ancillary or supportive industries such as food catering, cleaning and maintenance and security.

With the Nextflix original purchase and now the expansion, the State has a major production and distribution company hub that will produce projects on a consistent time line for 10 to 20 years. Last year alone, the film and TV production industry brought in over $180 million of direct spending to the city and state.

The City and the State need to continue with efforts that will ensure that our education institutions such as the New Mexico Community College continue to offer a trained work force for the film industry. Both the City and the State need to create more incentives to build and guarantee that the industry continues to prosper in New Mexico.

The film industry with both the NBC deal and the Netflix expansion is clearly in the future of Albuquerque and New Mexico. The film industry and the aerospace industry are the best hope at this point in diversifying our economy and wean the state off of federal government reliance. Albuquerque and New Mexico need to pursue with a vengeance the growth industries of healthcare, transportation, the film industry and the aerospace industry to diversify our economy. Public-private partnerships in the growth industries where ever possible should be encouraged and developed.

Links to related blog articles are here:

2020 “Orion Center” Type Of Development Foreseen In 2013 “Energize Alb” Plan; PATHETIC: City Set Aside Of $5.8 Million For Economic Development Out Of $1.1 Billion City Budget; Mayor Keller Relies On Luck For Economic Development

Film Industry Biggest Hope To Diversify New Mexico Economy

“Lights, Camera, Action” Means JOBS!; Repeal NM Criminal Abortion Law