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.D-238-MOO-Promotion-Policy
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 .