Monitor’s Report “Not Public”

“We’re Not Allowed to Talk About it Now”

The draft copies of the consent monitor’s report, scheduled for presentation in the federal district court on May 10, 2017, have been distributed, but CPOB members and others have been told it’s secret, and they aren’t “allowed to talk about it” until May 2, 2017, when the Monitor Team’s Report is scheduled to be made “public.”

The Police Oversight Board members discussed an April 20 meeting “with the parties” and said they look forward to sharing their views with the public “after May 2nd.”  Dr. Sue Brown, head of the oversight group’s Policy and Practice Subcommittee, asked the other Board members to write her with their comments on the Report, but she quickly added that she understood they weren’t allowed to talk about the Report in public.

The Director of the Civilian Police Oversight Agency, Edward Harness, has apparently already submitted his comments on behalf of the Board to the Monitor’s Team, but those also have not been disclosed to the public.

Harness very recently denied an IPRA request for inspection of the Monitor’s draft report, citing a paragraph in the Settlement Agreement between the U.S. Department of Justice and the City of Albuquerque that states that such reports and comments on them are not subject to the State Inspection of Public Records Act.

Federal Court Rules on City Labor Issues

Federal Judge mediates City-APOA disputes

It gets confusing when a police union negotiates its union contract in the middle of a federal lawsuit over unconstitutional policing.  But that’s what’s happening in Albuquerque, and so far that’s been okay with Robert Brack, the U.S. District Judge presiding over the DOJ’s pattern-or-practice excessive force case against the City.

According to the Union, applying the new disciplinary standards retroactively would result in officers being punished now for things that failed to warrant punishment in the past.

So when City Attorney Jessica Hernandez and Police Union lawyer Fred Mowrer informed Judge Brack that they needed his help in working out a problem over the City’s promotional policy, the Judge agreed to set a briefing schedule and rule on their concerns.

The federal Judge was apparently unaware, however, that first, he was overriding the City’s labor relations system. Second, he was effectively ordering the City to disregard the extreme past misconduct of one particular officer, Brett Lampiris-Tremba, the City’s poster-child for excessive force killings, and consider him for promotion to Sergeant.

Thus, in a highly unusual set of motions, the City and its Police Union lawyer are “working out” some of their labor issues and essentially negotiating their contract disputes in the midst of the DOJ’s case on excessive force and systemic problems with the DOJ lawyers looking on and the federal judge acting as the final arbiter.

Although the issue appears to be promotional policy, the broader and far more important concern is whether the federal court should conduct negotiations and ultimately decide issues that are matters of City policy. And even beyond that is the question of how much of the party’s and the court’s policy revision process is properly a public process and whether and when public participation should be or should have been invited.


The Police Union raised the promotional issues on August 25, 2016 by giving “Notice of Objection to APD Promotional Policy…” The City filed its response a month later.

The Court ruled, issuing its November 30, 2016, Opinion.

D-238-MOO-Promotion-Policy

The Court ordered the parties (i.e., the City and APOA) to clarify the definitions it was using for its promotional policy and declared the policy invalid as a violation of due process to the extent it allowed for officer misconduct before the date of the Settlement Agreement to be used for disqualification from the promotional lists.

The Court’s ruling only led to more dispute and on March 16, 2017, an Assistant City Attorney filed the City’s “Reply in Support of the Motion for Clarification of the Finding on Retroactivity.”

Among the questions that are still unanswered are whether the federal judge is knowingly granting immunity to APD officers for their prior bad conduct before entry of the Settlement Agreement. The Court held that refusing to allow promotion of killer-cops would violate their due process due to it being retroactive application of a new rule.

The City’s Reply to its Motion for Clarification was filed on the same day the Police Oversight Board was holding its March meeting and discussing how they could “get a seat” at the policy table:

According to City Attorney Jessica Hernandez, the City and the Union have been submitting their promotional policy arguments to the Monitor, whose ruling can be appealed to the judge. The federal court’s final “clarification” of the APD promotional policy is now due by the time the case goes before the Judge again on May 8.

OPA and the Real Policy “Team”

APD’s Policy Secrets

Albuquerque’s Civilian Police Oversight Board is frustrated and angry. The Board is supposed to be an important part of the City’s police reform effort. But concerns over not having an effective seat at the policy-making table continue to occupy the time and thwart the efforts of the Police Oversight Board, which has repeatedly objected to its exclusion from the City’s policy-making process.

The CPOB is mandated by ordinance to devote more than half its time to policy development and review, but has had virtually no voice in the policy review process up to now.

The Board members were upset last year by APD’s promulgation of a Use of Force policy that lacked language they considered important and included language that was confusing. The City’s policy review process is coming under fire now from Board members who have still not been allowed a policy role.

Sparked by Dr. Ginger’s harsh criticism of the City’s defective process and lack of progress in developing and revising police policies, the City announced last year a solution consisting of hiring a “policy expert” and creating a new policy review board. They called it the Office of Policy Analysis.

At their March 16, 2017, monthly meeting, Board members discussed a letter to APD Chief Gorden Eden about the then year-old Office of Policy Analysis. After initially being excluded entirely, two oversight board members and their Director were added to the OPA Board as “voting members.”

Now the CPOB people attending the closed OPA meetings are reporting that the meetings are often chaotic, crowded with issues and controversies, and short on meaningful discussion or debate. They also complain that even though some of them are allowed to attend OPA meetings their concerns are ignored anyway.

March, 2016:  Policy Changes Announced

On March 18, 2016 the federal Monitor, Dr. Ginger, met with the City Councilors for a Council “study session.” At that time Dr. Ginger presented the Monitor’s Second Report to the City Councilors. The report was very critical of the City’s policy development process.

It was at that meeting that City Attorney Jessica Hernandez announced three major changes to the policy development process, all based on her contention that the City had fruitlessly spent the last year trying to develop new and original policies rather than those already in use or approved for use elsewhere.

The City Attorney announced that:  1) future policy development would be based on best practices and successful implementation in other places;  2) the City has contracted with former Judge Garcia to review and revise policies; and 3) the City has established a new Office of Policy Analysis — OPA — to oversee its policy review and revision process.

The City Councilors discussed the plans for the OPA to take over both the start and the finish of the City’s policy development process. The City Attorney left no doubt that Judge Garcia was going to act as the City’s final policy-maker at least through May and June of 2016, when OPA was expected to take over.

The Fourth Policy Group

May, 2016:  Judge Never Heard of OPA; Has “SOP Team”

It was in March, 2016, that the City Attorney told the City Councilors about the new policy expert and review board.

But on May 17, 2016, Judge Garcia addressed the Police Oversight Board and said he had never heard of OPA. He had learned of OPA’s existence online, but he still knew nothing about it, he told the Oversight Board.

Garcia described his new role and responsibilities to the stunned Board members. He denied knowing anything about OPA. Judge Garcia listed a long list of policies he said he personally had reviewed, revised, and sent to the Monitor for approval. But, he insisted, he knew nothing about the City’s OPA.

After the former federal judge described his policy-making activities to the City’s Police Review Board, one member of the Board asked him if the policy group he described “has a name.” Judge Garcia responded, telling the Board that the group consisted of himself, APD Administrator Bill Slauson, and Police Union lawyer Fred Mowrer:  his “SOP Team.”

A Month Later. . . .

June, 2016:  OPA Meets with a “Stakeholder”

Not long after Judge Garcia insisted he knew nothing about it, OPA held a quasi-public meeting. If nothing else the first “open meeting” of OPA revealed both the Board membership and some of the operations of the new administrative agency and board and suggested a collusive arrangement, sending its “recommendations” to the OPA and receiving policy responses from the APD.

The meeting with the ACLU’s lawyer was very poorly attended, perhaps because as reporter Charles Arasim (who is responsible for many of these video recordings) states at the end of the clip, there was no public notice or announcement of the meeting.

Policy Makers Identified

The City’s policy review and reform process has failed to include many of those it was required to include, notably the Police Oversight Board and the public. After the false start and a wasted year that City Attorney Jessica Hernandez characterized as “a misunderstanding,” Dr. Ginger and his monitoring team  took over the process, devoting a substantial amount of time, effort, and expense to “helping” the City policy writers first write a Use of Force policy and then a host of others.

None of those initial policies went through the previously prescribed policy-making process and none of those policies were reviewed by the Civilian Oversight Board or the public as required by law.

By March, 2016, Dr. Ginger’s Second Independent Monitor’s Report revealed that there really was no policy development process and the existing policy committees at APD — the Standard Operating Procedure Review Committee (SOP Review Committee) and the Police Policy Review Committee (PPRC, a/k/a “The Four Lieutenants”) — were just going through the motions but not actually doing anything.

That’s when the plan for Judge Garcia and the new Office of Policy Analysis, or OPA, was created. The contract with Judge Garcia, who had worked for years as a federal magistrate judge, served several purposes. First, it was a form of insurance against any actual pressure or real threat from Judge Brack and provided a link to the court. Second, it created a veneer of professionalism that APD had not been able to achieve up to then, and third and most important, it provided a “legal” justification for whatever language was used; and that was mistakenly considered the most crucial purpose of the APD policies: to protect the police and provide a shield against legal liability.

The formation of the Office of Policy Analysis was more of the same.

But the bottom line for those insisting on a reasonable  process that includes both civilian oversight review and input as well as public and community knowledge and opportunity to be heard is that Garcia was probably telling the truth when he described how he, Bill Slauson, and Fred Mowrer — the SOP Team — are the ones actually making and revising the APD policies.

Epilogue

The Oversight Board members appear ready to assert themselves, but uncertain how to proceed. According to Brown, the head of the volunteer Oversight Board’s policy subcommittee, OPA has quickly become dysfunctional. Judge Garcia doesn’t attend OPA meetings and has not participated in any policy development or other matter she was aware of, she told the other Board members.

The City and its police union’s creation of a closed-to-the-public, sham policy development process was bad enough, but doing it with the assistance of a retired federal judge and with the knowledge and approval of the Department of Justice, the Court’s Monitor, and Judge Brack signals the ultimate betrayal of the public’s trust and confidence.

A report in the on-line ABQ Free Press (March 30, 2017) quotes Oversight Board Chairwoman Joanne Fine saying that “OPA has consistently fallen short” and “is a joke.”

And, also as reported by the Free Press, CPOA Director Harness “stated that Eden has lied about the OPA’s makeup by claiming that retired U.S. Magistrate Judge Lorenzo Garcia is a member. He [Garcia] has never attended an OPA meeting, Harness said.”

Nonetheless, the City has reportedly paid Judge Lorenzo Garcia $107,879.75 for his work on APD policies.

March 16, 2017 CPOB Meeting

The March meeting of the Civilian Police Oversight Board was a relatively lengthy meeting that included an officer involved wounding case and much discussion about the Board’s considerable dissatisfaction with the Chief’s responses to the Board and the ability of the Board members to affect City policy.

The Board announced that their new data analyst, Dr.  Miriam Verploegh, would be leaving.

As it now does routinely, the Board dismissed several cases by closing them administratively or by signing off on their dismissal without identifying any specific cases by name. The Board also held a closed “Executive Session” without identifying or announcing the reason for its secret meeting, saying only that it was for discussion of personnel or attorney-client privileged matters.

The Policy Review Subcommittee report by Dr. Brown focused on the City’s Office of Policy Analysis and a letter being drafted about the failure of the process to allow input from the members of the Civilian Oversight Board or the public.

Officer-Involved Shooting Case

The CPOB heard and agreed with Director Harness’ recommendation of further inquiry into the “accidental” shooting and wounding of an Albuquerque man. In particular, he suggested that an investigation should be initiated against Sergeant K., who “ordered an out- of-policy search.”

Ramiro Armendariz was shot on December 14, 2014 by APD officer Tamas Nadas, who claimed he was climbing through a window on a burglary investigation in an apartment near Louisiana and Zuni “when he stumbled. He accidentally fired a shot, sending a bullet from a second-floor apartment through to the first floor apartment where Armendariz was grabbing a drink of water,” according to KRQE’s report.

The CPOA and Harness not only found fault with both the conduct of the officer who fired the bullet, but expressed concern over officers’ unwarranted and unconstitutional search of the premises above the shooting victim’s apartment and the investigation that failed to criticize either the shooting or the warrantless entry by police. “The law does not allow the officer to enter that apartment” without a warrant, Harness told Board Chair Joanne Fine, when she questioned his conclusion that the warrantless entry violated the law.

The case was reportedly settled for around $400,000.

Frustration and a Study Session

At last month’s (February 9, 2017) meeting Albuquerque’s Civilian Police Oversight Board members expressed their frustration with the limitations imposed by the City and APD officials that some Board members believed has crippled the Police reform effort in Albuquerque.

Civilian Police Oversight Agency Director Ed Harness described efforts to have a voice in the selection of the vendor the City was going to contract with to investigate allegations of tampering with lapel camera videos.  The Board members are anxious to address their concerns to the City Council and see changes made to the City’s police oversight ordinance, but they were advised they should arrange a “study session” with the City Counselors first.

That “study session” was held on Friday, March 10, 2017.

Video Tampering Claimed

The Case Review Committee of the Albuquerque Civilian Police Oversight Board usually meets about a week before the Board’s monthly meetings to review cases. The Board had cancelled its December meeting, but held a Special Meeting after the City’s former official records custodian made serious and specific allegations of evidence tampering.

Here Oversight Board members meeting in a subcommittee discuss with Director, Ed Harness, the City Administration’s plan to finance an investigation into well-publicized allegations by former APD Records Custodian Reynaldo Chavez and attorney Tom Grover that lapel camera videos were altered or erased. Media attention focused on the shooting of Mary Hawkes by Officer Jeremy Dear.

Video by Charles Arasim. The Subcommittee met on Monday, in preparation for the Board meeting scheduled for tomorrow, Thursday, January 12 at 5 p.m.

And today the ABQ Free Press reports that City Councilor and Mayoral candidate Dan Lewis has asked the Attorney General to release the investigation reports indicating former Police Chief Ray Schultz’s involvement with Taser and whether it constituted criminal misconduct.

Personnel Board Delays Dear Response

The City of Albuquerque’s Personnel Board decides appeals by City employees of the disciplinary actions taken against them and is supposed to provide advice to City officials on personnel and disciplinary matters.

But the Personnel Board over the past twenty years or so has struggled to keep up its membership and now says it lacks the members needed to clarify its ruling in one of the City’s most controversial cases:  the disciplinary action against Officer Jeremy Dear over two years after Dear shot and killed 19-year old Mary Hawkes.

Without referring to the killing of Hawkes, City officials charged Dear with violating its policy regarding recording of citizen-contacts and critical incidents, claiming Dear was guilty of insubordination because he repeatedly failed to record despite having been ordered to comply with the City’s body-cam recording policies.  Finding little evidence of the purported “order,” the City Personnel Board decided to return Dear to work after he served a suspension, a ruling that the City appealed to the State District Court.

The district court judge hearing the appeal, Clay Campbell, remanded the case to the Personnel Board asking for an explanation of the Board’s ruling. The Personnel Board – lacking the former-Chairman who had written the decision – decided at its January 11, 2017, monthly meeting to ask for additional time to respond to the judge.

Personnel Board members had voted 3-2 to reinstate Dear. City officials claimed that Dear refused an order to always record his encounters on the job, and he was charged with insubordination. Mary Hawkes was not discussed by the Personnel Board, but the City’s Civilian Police Oversight Board, after first announcing that they would be going ahead with a hearing on the shooting of Hawkes by Dear then announced at the January meeting that it was stalled and would not be hearing the Dear shooting case immediately.

At its February 8, 2017 meeting the City Personnel Board again discussed its inability to act on the Court’s remand and again discussed needing more time to respond.

After failing twice to address the remand and after going still another month without a Chairperson whose vote is generally decisive, the City Personnel Board announced the cancellation of its March 8, 2017, meeting.