By ALAN WAGMAN
Alan Wagman is an assistant public defender in Albuquerque. He recently served as one of eleven members of the Police Oversight Task Force, which was created in May of 2013 and was charged with recommending changes to the practice of police oversight in Albuquerque. At a special meeting held on September 18, 2014, the City Council abolished the existing Police Oversight Commission and replaced it with a newly created Civilian Police Oversight Agency. Wagman, along with four other members of the POTF, spoke out against key elements in the new ordinance at that special meeting. Below he provides for La Jicarita readers an analysis of the new ordinance in which he considers the way the new ordinance addresses (or doesn’t) the five areas of concern emphasized in POTF deliberations.
- Free civilian oversight from control of both the executive and legislative branches city government
The ordinance completely removes the mayor’s office from any say in the selection process for any of the personnel involved in civilian oversight. Ideally, the civilian oversight mechanism would have more than advisory status, but realistically that never was going to happen. Ultimately, the mayor, the Chief Administrative Officer, and the Chief of Police remain in charge of actual decisions. They do have to do more explaining under the ordinance than they used to, which is a good thing. In this area, although I (and some other Police Oversight Task Force (POTF) members) hoped for more, we probably got as much as we ever had any realistic chance of getting.
City Council is still more involved in the process than the POTF wanted. POTF recommended a selection process for members of the Agency’s Police Oversight Board (POB) that would have taken City Council out of the direct selection process. We proposed that City Council appoint a committee, which would then select the members. POTF was very sensitive to the concerns expressed by the community that POB members not be beholden to City Council.
Unfortunately, City Council was much less willing to give up its own control over the POB than it was to strip the mayor of control. The Council initially wanted to reinstitute the existing system where each council member hand-picked a POB member. Because of resistance from the community, when the Council re-started the POTF, the Council asked POTF to re-address the selection process.
The POTF met without its most conservative member, Craig Loy, who chose not to participate. We felt so strongly that Council had to be removed from the selection process that we voted unanimously – without even needing to discuss it – to send back our original proposal. Only when we were advised by Council staff that our proposal would never be adopted, we voted to recommend that Council select POB members at large and not one-to-one.
I believe POTF proposed a process for removal of POB members and for removal of what is now called the Executive Director (formerly IRO) that did not provide a role for City Council and was completely under control of the POB. The Council has passed a hybrid, where both POB and Council have to vote on removals.
I still favor removing City Council from the entire process. But, we’ve got what we’ve got. It is problematic, because there is a failure to recognize and deal with the degree of distrust in which large segments of the community hold City Council. Conceivably, good selections of POB members might allay some of the mistrust. For this reason only I do not put this into the category of “fatal flaw,” but it is a time bomb that could easily go off.
The ordinance provides an independent source of funding – not subject to a line item veto in the annual budget – for the oversight body. This provides independence from the mayor.
The ordinance allows the POB to hire its own lawyer, which means among other things that the City Attorney’s office will no longer dictate what the oversight body can and cannot do.
- Make clear that the civilian oversight mechanism is unitary and not subject to internal separation of powers and checks and balances
This was always a central element of POTF recommendations and was pretty much an established fact in all of the iterations of the proposed ordinance – except the one that passed. POTF was very clear that what was called the “Independent Review Office” (IRO) [under the old ordinance] and what is now called the “Administrative Office” [under the new ordinance] should be subservient to and perform work as directed by the POB. POTF wanted the POB to have complete authority to do whatever was necessary to review, oversee, check up on, examine, supervise, etc. the work of the IRO equivalent – now called the Executive Director (ED). Previous iterations of the ordinance and POTF recommendations made clear that was to be the case. The ordinance as passed essentially creates an Administrative Office that is nominally under control of the POB but strips the POB of the means to effectively evaluate the performance of the Executive Director or Administrative Office.
The ordinance provides that when a civilian complaint is filed, the POB must issue a Public Record Letter which either substantiates that the officer in question violated policy and recommends discipline or finds the officer not guilty. To accomplish this, the Executive Director supervises an investigation, presents the results to the POB, and if the POB substantiates, it formulates a Public Record Letter. In the alternative, the POB may unsubstantiate or it may direct the ED to pursue further investigation on the matter. The problem is that prior to the issuance of the Public Record Letter, the ordinance does not provide a right for the citizen complainant to be heard (contrary to the POTF recommendation).
A citizen complainant may ask for reconsideration of a Public Record Letter that either unsubstantiates or recommends discipline the complainant thinks is too lenient. The complainant is entitled to a hearing on the reconsideration. Although the ordinance does not say so explicitly, the complainant has a right to speak at the reconsideration hearing – this is the first time the complainant may speak other than in public comment. However, here’s the rub: At that point, the POB has no power to direct the ED to re-open the investigation. Even if the complainant is able to make a strong showing that the ED’s investigation was seriously deficient and/or misleading, the POB is powerless to do anything about it.
This means two things, both troubling. First, it means that the POB can only exercise supervision over investigations when it may not have enough information to know whether more investigation is needed. Second, it means that when POB actually has enough information to know whether more investigation is needed, POB lacks authority to do anything about it. Under the ordinance, POB cannot reopen any case after the initial approval of the Public Record Letter. This effectively undermines POB’s ability to supervise the ED and the Administrative Office, creates a dangerous power center in the staff, and undermines the unity that was key to POTF recommendations.
Under the last set of POTF recommendations, the POTF advised that Civilian Police Complaints (CPCs) that did not involve use of force (including officer-involved shootings) should be decided by the ED, who would prepare the Public Record Letter, with potential appeal to a rotating subset of the POB. [Note: this refers to a recommendation of the POTF that CPCs appear before a small subset of the Board. The intention of this recommendation was to free the time of the entire Board to do policy work] This was intended to free up time for the POB to look more deeply into patterns of officer misconduct, to analyze whether the misconduct came from individual officer character flaws, ineffective training, defective policy (causing officers to be trained to do the wrong thing), or other. (See below for why I think analysis and policy is important.)
In contrast to the ordinance which was passed, POTF recommended that decisions about use of force complaints should be decided by a rotating subset of the POB – that is, NOT by the Executive Director, with appeal to the full POB.The Public Record Letter would be prepared not by the ED, but by a subset of the POB.
The important thing about both of these sets of appeals was that the POTF recommended that upon initial consideration of use of force complaints and on appeal of both non-use-of-force and use-of-force complaints, both the subset of the POB or the full POB had the power to re-open the investigation if there was dissatisfaction with the way the investigation was conducted or if there were unanswered questions. As noted above, the ordinance as passed eliminates the power to re-open or expand the investigation. In most instances, the POB has to rely upon the investigation conducted or directed by the ED, with no recourse to looking behind the investigation to see what might have been missed. This is a serious and fatal flaw in the ordinance.
To reiterate, it is a fatal flaw because the ordinance strips a complainant of the right to speak during the investigatory phase leading up to the creation of the Public Record Letter. A complainant only has the right to speak at a hearing on reconsideration. By that time, the investigation is closed, no matter how much evidence contrary to the ruling the complainant is able to provide at the appeal hearing.
- Provide the POB the tools necessary to exercise effective supervision of the Executive Director and the Administrative Office
The POTF recommended that the POB be able to re-open the investigation of any case, whether it had been appealed or not. Without this power, the POB might suspect in a specific case that the ED or the investigators had engaged in misfeasance or malfeasance, but would be powerless to determine whether or not the suspicions were true or not.
By means of a last minute amendment, the ordinance as passed strips the POB from ever re-opening a specific investigation unless it is chosen for examination on a random basis for purposes of auditing trends. The effect is that although the ordinance – to its great credit– makes explicitly clear that the POB is directly over the ED, the ordinance strips the POB of the ability to look behind the surface performance of the ED, even when the POB thinks that the performance in a specific instance or instances is deficient or that reports submitted are false, biased, or otherwise misleading. Misdeeds will go undetected or unpunished; false suspicions will ripen into hostility. This is a fatal flaw because it is a recipe for an atmosphere of infighting, back-stabbing, and mistrust which will undermine the internal functioning of the entire agency and destroy public trust.
- Get past restrictions on access to information and limitations on complaints
The ordinance provides for POB access when needed to complete officer statements rather than just summaries. This is an important improvement. To the extent that the ordinance provides for some information on personnel/disciplinary history, this is also an improvement.
- Increase emphasis on trend analysis and policy recommendation
The ordinance mandates that 50% of the POB’s time be devoted to analysis and policy recommendations. I think this is a good thing.
To the criticism that I have seen that discussion about policy is just useless thumb-sucking, I would answer that it should never have taken two years and a DOJ report to get APD to change the policy on shooting into the passenger compartment of motor vehicles that led to the police killing of Mickey Owings in late 2012.
I am aware from reading thousands of police reports that there are regular practices of APD officers that by virtue of their being so common are clearly being taught to the officers but which are completely inappropriate uses of force. As long as these are a part of policy and training, officers will do them and be free from discipline. Unless a civilian oversight body is provided the time and resources to actually look at and evaluate what officers are being told to do, the people of Albuquerque will be subjected to the consequences of the old maxim, “The scandal is not what officials do that is outside the law; the real scandal is what officials do that the law permits.”
Long-lasting, systemic change will not come from adjudication of individual complaints. Long-lasting, systemic change will only come from application of lessons learned from the adjudication of individual complaints. We will not learn those lessons without trend analysis and we will not effect change without policy recommendations.
POTF made some recommendations for changing the workload to free up POB time for policy analysis and recommendations. Whether those specific recommendations made sense can be debated. I stand by the need to somehow change the workflow to give POB time to devote to policy change. However, City Council not only rejected POB’s scheme, City Council put back on POB all of the work it was previously charged with doing. Under that workload, outside evaluators for going on 17 years consistently noted that POC did not get around to doing policy work. City Council has added language in the ordinance that POB should spend the majority of its time on policy work. But without actually changing the workflow – which this ordinance does not do – this is magical thinking. This is a fatal flaw, because it won’t achieve the desired and necessary result.