Federal Judge “Clarifies” Ruling on APD Policy

Rejects Union Position on City Promotional Policy

Last November U.S. District Judge Robert Brack made his first ruling on an APD policy in the more than two-year old reform effort, holding that a City promotional policy provision that allowed the Chief to remove an officer from the City’s promotional list for prior misconduct violated the officers’ rights to due process. In a Memorandum Opinion and Order filed on April 14, 2017, Judge Robert Brack clarified his use of the word “primarily” with respect to the Albuquerque Police Chief’s discretion to remove an officer from the City’s promotional list for prior misconduct.

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U.S. District Judge Robert Brack rules on City promotional policy

The Court had previously ruled that the Chief’s discretion to remove names from the promotional list was “primarily” limited to misconduct that occurred after the Settlement Agreement went into effect. If the Union’s view had prevailed the prior ruling would result in the promotion of officers who had unreasonably shot and killed people or cost the City millions of dollars, City lawyers claimed.

Judge Brack now clarifies his ruling, stating that he meant “the Chief should have some discretion” to remove officers from the lists, however, that “discretion to consider conduct that predates the CASA should be limited to the most egregious cases that directly violate the spirit of the CASA.” The Judge wrote that he:

…cannot offer the parties a bright-line test with objective criteria to guide the Chief on when it is appropriate to use the discretion to consider pre-CASA conduct, (but) certainly the exercise of the Chief’s discretion regarding [Lampiris-Tremba] is consistent with the Court’s use of the word “primarily.”

APD Detective Brett Lampiris-Tremba describes how Kenneth Ellis III was holding the gun to his head during his cross examination. Friday, Mar. 08, 2013. (Jim Thompson /Albuquerque Journal.)

The Court referred to Officer Brett Lampiris-Tremba as “an officer who shot and killed a citizen and received a judicial finding that his conduct violated the citizen’s constitutional right to be free of excessive force.”  And Judge Brack wrote that he was “concerned” that if the City was “forced to promote an officer whose case was one of the incidents that prompted the DOJ’s original investigation, the parties’ efforts could suffer setback.”

The Court concluded its opinion by encouraging “the parties to continue developing policies that reflect their commitment to train and promote officers who are committed to effective and constitutional policing and to create and uphold policies that promote the public’s confidence and the goals of the CASA”

On March 13, 2013, Albuquerque Police Chief Ray Schultz resigned immediately following a jury award of $10,000,000 for the shooting of Ken Ellis, III by Lampiris-Tremba.

A March, 2013, report by UNM Professor David Correia provides details.

While the federal judge’s words about developing policies that promote the public’s confidence may sound good to the Court, there is little evidence that policy development and attempts to resolve labor and contract disputes between the City and its Police Union in closed meetings without either the knowledge or input of the community are in any way constructive or capable of properly promulgating public policy or advancing the “public’s confidence (or) the goals of the CASA.”

Federal Judge Rules on APD Labor Dispute

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 case against the City.

The case between the DOJ and the City began with the Justice Department’s charging letter, closed-door negotiations between City lawyers and DOJ lawyers, and a Settlement Agreement that was agreed upon prior to the filing of the Complaint by the DOJ.

What was most unusual, however, was the inclusion of the Albuquerque Police Officers’ Association, or APOA, as a party a few months later. Out of 14 active “consent decree” cases in the country, this may be the only one in which the police union is a party in the litigation.

And of all the police reform efforts being litigated, monitored, and overseen around the country, this is almost surely the only one that has a federal district judge acting as arbitrator and applying constitutional law to resolve labor contract and policy disputes between a police union and its municipal employer.

The Promotional Policy Dispute

The APOA’s argument, advanced just a few months after the approval of a one-year collective bargaining agreement, was that the City’s new promotional policy violated officers’ constitutional rights by allowing the Chief to remove them from APD’s promotion lists solely because they had done bad things in the past.

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

And when City Attorney Jessica Hernandez and Police Union lawyer Fred Mowrer got together and 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 that he was acting strangely, or that he might be compromising the City’s labor relations rules and system. He also acted without knowing that he was improperly creating and condoning City policy changes and, in particular, allowing the City and Union to disregard the extreme past misconduct of one particular officer, Brett Lampiris-Tremba, the City’s poster-child for excessive force killings, and force his promotion to Sergeant.

Now, in a highly unusual set of motions and status conferences, the City and its Police Union are “working out” some of their labor issues with the DOJ lawyers looking on and the federal judge presiding as final arbiter.

And as if having the federal court acting in the role of labor arbitrator between two parties on the same side of a DOJ pattern-or-practice police reform case wasn’t strange enough, Judge Brack has assigned the Court appointed monitor, Dr. Jim Ginger, to work with the City and its union to resolve their disputes. Other moves may be underway to have the employment issues between the City and APOA shifted to a federal Magistrate Judge.

However the labor disputes are eventually resolved, it may have been a fatal mistake to have allowed the police union into the case on the same side as police management at the same time they are engaging in contract disputes.

Although the focus in the federal court right now is on the City’s promotional policy and whether Chief Eden should have the discretion to remove officers from the promotion list because of things that happened years before, a far more important concern is whether the federal court should conduct negotiations and ultimately decide or resolve issues that are matters of City policy between a public police union and City management.

The Federal Court Policy Litigation

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 briefs raise no new issues; nor is there reference to any precedent for the kind of proceedings that are taking place here.

The Court ruled on November 30, 2016, giving its Opinion. The ruling was inconsequential, but mostly favored the Union’s position against the City’s.

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The Court ordered the City 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 officer misconduct from before the date the new City policy was implemented to be used for disqualification from the promotional lists.

Need for Clarification

The Court’s ruling only led to more dispute between the City and APOA, the City attorneys moved for “clarification” of the Judge’s Order, and on March 16, 2017, Assistant City Attorney Jeramy Schmehl filed the City’s Reply brief.

The Judge has told the City and APOA to try to resolve their differences, but if Dr. Ginger is unable to secure a compromise or he accepts the City’s promotional policy, then the Union will object and the Judge will have to again rule on the labor issues brought before him by the City and Union.

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

The Oversight Board and its members appear to be unaware of the implications of the City-APOA disputes over City promotional policies.

According to City Attorney Jessica Hernandez, the City and the Union have been submitting their promotional policy arguments to the Monitor, whose “ruling” will come very soon and can be “appealed” to Judge Brack .

Dr. Ginger’s Secret Report

Oversight Board Reviewing Monitor’s Report;|
“Not Allowed” to Talk About It.

Members of Albuquerque’s Civilian Police Oversight Board have been given the discussion draft of the Fifth Independent Monitor’s Report, but they have been told they are “not allowed to talk about it” and so the Board members aren’t sure what to do with it between now and May 2nd.

Disregarding any obligation to the “civilians” for whom they are supposed to serve as eyes and ears, the Board Chairperson, Joanne Fine, announced that the Independent Monitor’s 5th Report would not be “made public” until May 2, and could not be talked about until then. Another Board member, Dr. Sue Brown, said that while reading Dr. Ginger’s report a number of things concerned her, and she appeared to want to discuss them with the other oversight board members.

The Civilian Oversight Board has also turned down an Inspection of Public Records Act (IPRA) request for the Monitor’s Report, arguing that the Settlement Agreement does not allow the Monitor’s Report or any communications with the Monitor to be considered “public records.”

The draft Report has reportedly been sent to numerous police, oversight, and administrative officials and lawyers within the last week for their review and comments.

OPA – The Original Post (April, 2016)

Originally Posted on APD LEGAL 

Faced with a persistent inability to fashion adequate policies to support effective reform of APD, the City of Albuquerque has secretly and suddenly created a brand new administrative agency: The Office of Policy Analysis, or OPA. Much more than an “office” within APD, the new agency is a super policy-making body, headed by a former federal judge, with the power to review, revise, and create new rules for the troubled Albuquerque Police Department.

Some facts about the new Policy Analysis group were revealed by a member and confirmed by the Director of the City’s year-old Civilian Police Oversight Board (CPOB) at the Board’s monthly meeting last week. But many questions remain unanswered, such as who is on the policy board, who appoints members, who votes, and with what authority?

Headed by former U.S. Magistrate Judge Lorenzo F. Garcia – who contracted with APD about a month ago to take over the policy-revision process – the new policy board signals a major alteration in plans for implementation of the Settlement Agreement. The first meeting was held on April 12, 2016. Another meeting is scheduled for April 26 at 8:30 a.m. at the Wells Park Community Center.

The Settlement Agreement between the City and the DOJ prescribed a policy review process largely controlled by an in-house APD Policy Review Committee (PRC). City officials have also used a Standard Operating Procedure Review Committee (SOPRC) to review policies. Both City committees were closed to public scrutiny and both were deemed ineffective by almost everyone involved.

Although the PRC eventually allowed an Oversight Board member to sit on that committee, the head of the Oversight Board’s Policies Subcommittee, Susanne Brown, reported that the PRC seldom took any effective action to review or revise policies. The other committee, apparently referred to as “The Four Lieutenants” was deemed similarly ineffective.

But the news that Judge Garcia and the City attorneys had put together a new “first stop” administrative body to review policies

appeared to be a complete surprise to at least some of the CPOA Board members on Thursday, when Brown read a draft of a letter

she had written proposing to bring OPA under the control of the Civilian Oversight Board. She was most concerned about the need for

openness and transparency.

Brown first related what she had learned about the City’s new “third process” of policy review:

What happened is, from what I understand, I wasn’t – you know none of us were involved in the discussions before it went public, okay, but what happened was there was finally a public meeting with City Counsel and Dr. Ginger. Leonard was there, David was there, I was there, Ed was there. And at that meeting we heard about a third policy committee that has been set up, and it’s called OPA, Office of Policy Assessment. And that committee at that time, the only member of the committee that was talked about was Judge Lorenzo Garcia, who’s a retired magistrate judge. Since then the OPA has been filled out with various members of APD and a couple names I’ve heard that might be the lawyer who will be on the committee. And the committee is tasked with looking at the overarching principles related to policy. And it’s now the first-stop committee. I asked at the time, I asked the City Attorney, Jessica, about whether this would be an open meeting, public meeting, etcetera, and where it would be housed, and she didn’t know the answer to either one. The committee, I hear, met for the first time this week.

Director Harness then disclosed that he had attended the first OPA meeting.

According to Harness, OPA’s first priority is the City’s Use of Force Policy. That critical policy had finally been approved by Dr. Ginger, but doubts remain about whether the new policy is actually any better than the old one. Earlier in the meeting Brown had summarized and listed some of the subcommittee members’ concerns about the policy.

Assuring the Civilian Oversight Board members who were worried that they and the public would continue to be excluded from the policy-making process, Director Harness assured them that new process would allow their participation.  The makeup of that committee, “will have two voting members, one from CPOA and one from POB. The first full meeting is scheduled for April 26th.”

The committee’s meetings would be closed to the public, Harness said, but the public would be informed by the CPOA representatives, who would report on the OPA meetings at the Oversight Board’s public meetings. Also, the OPA board would be inviting “stakeholders,” like the ACLU, to attend its meetings when policies they were concerned about are considered.

The public can go to the POB meetings to hear about what the POB has learned. Is that part of the public Process?

The creation of OPA, the appointment of the new board members, and the board’s first meeting were accomplished without public notice or media attention. The establishment of the new agency took place over the last few weeks; so quietly that it has still not been announced by the City or reported in the media. At the same time the OPA has moved so quickly that the new board is already making important decisions about policies and practices, even before all the board members have been seated.

APD had been required to create and maintain Community Policing Councils, one for each Area Command, to facilitate communication and cooperation between the communities and the APD. Some of those who had volunteered to serve on the CPCs had been highly critical of the lack of coordination and the refusal of Chief Eden to respond to them, making the Policing Councils ineffective and frustrating the citizen volunteers.

According to Harness, it “came to light at the OPA meeting that it’s their hope that the Community Policing Councils begin to communicate and begin to make their policy recommendations through the Police Oversight Board.” The City Attorney, Jessica Hernandez, and APD’s head of Policy and Planning Bill Slauson had suggested the changes, which Harness said surprised him because he “didn’t even know the CPCs were on their radar.”

The City Attorney, Jessica Hernandez, and APD’s head of Policy and Planning Bill Slauson had suggested the changes, which Harness said surprised him because he “didn’t even know the CPCs were on their radar.”

Last Thursday evening the Oversight Board discussed the possibility they would be hosting the Policing Councils, but it was not clear when or how the OPA directives would be implemented. Hearing the plans for the Community Policing Councils to process their policy suggestions to APD through the Police Oversight Board, CPOA member Joanne Fine said, “so they establish an organization, then tell them to communicate through us, when they won’t communicate with us. Makes no sense.”But Harness responded that the new “collaborative effort” would be good for both the Oversight Board and the communities.

Story Still Developing …