V. The Independent Counsel

The Role of the Independent Counsel

The Independent Counsel (IC) represents the principal form of citizen oversight of the Albuquerque Police Department (APD). The office of Independent Counsel was established by ordinance in 1987 (see Appendix), and has functioned continuously since then.

The enabling ordinance provides that the IC shall be an attorney, retained under contract for a period of no longer than one year. The IC is not considered an employee of the City of Albuquerque. Finally, the IC is required to report to the Mayor and City Council on a quarterly basis, or upon request of the Mayor or Council. Two individuals have served as IC since its inception. The two IC's have been employed on the basis of a sole source contract without competitive bidding on the basis of an RFP.

The mandate of the IC, as defined by ordinance, is extremely broad (see Appendix). Its purpose is " to ensure a fair, objective and impartial investigation " of investigations by the internal affairs unit of the APD [emphasis added]. This is designed to " enhance the credibility of this process " and to ensure " public confidence " that there is proper review of "the conduct of members of the Albuquerque Police Department" [emphasis added].

Pursuant to this basic purpose, the IC has been granted very broad authority. The enabling ordinance states that "The Independent Counsel shall direct the overall manner in which the internal affairs investigations of the Albuquerque are conducted...." [emphasis added]. Immediately upon being hired, the first IC, Mr. William Riordan, drafted a Memorandum (Directive #2) outlining the complaint review process for APD, and defining the IC's role in that process.⁽¹¹⁾ The process is outlined in Figure 4-1 in Chapter Four.

The ordinance establishing the IC defines many specific duties. It provides that the IC " shall review all Albuquerque Police Department Internal Affairs Unit investigations for the purpose of making recommendations to the Chief of Police as to whether disciplinary action should be taken...."[emphasis added].

Further, the IC " may supplement investigations " and is " authorized to employ such investigators as are necessary to provide an objective, fair and impartial review" [emphasis added].

In addition, the IC is granted general oversight authority over the APD. The ordinance provides that the IC " shall also make recommendations to the Chief Administrative Officer, the City Attorney, the Chief of Police, and where appropriate, the City Council " on procedures to be changed or any other matter the Independent Counsel deems appropriate " [emphasis added]. This authority represents the policy review function of citizen review, which is discussed in detail in Chapter Nine of this report. The policy review activities of the Albuquerque IC are discussed below.

Evaluation Methodology

Our evaluation of the Albuquerque IC consisted of five parts. First, we reviewed all of the official Quarterly Reports filed by Independent Counsel since its inception.

Second, we personally interviewed the two individuals who have served as IC, Mr. William Riordan and Mr. Patrick Apodaca.

Third, we interviewed a wide range of private citizens and public officials (see Chapter Three, Methodology), and specifically asked them about their experiences with and perceptions of the IC. This included police officials who interact with the IC on a regular basis and individuals who have an interest in police problems but have never met the current IC.

Fourth, as part of the audit of Internal Affairs files, we audited the activities of the IC as reflected in individual citizen complaint files.

Fifth, we included questions about the IC in our surveys of both rank and file APD officers and citizen complainants.

Summary of Findings

Our findings regarding the Independent Counsel fall into three general categories: (1) The IC review of citizen complaints; (2) the policy review activities of the IC; (3) the public perception of the IC.

We conclude that the IC does in fact direct the complaint investigation process and adds an important element of citizen oversight of the process. We also conclude, however, that the IC is not fully utilizing his authority to review the policies and procedures of the APD. Most seriously, the IC plays no public role and as a consequence has undermined much of the positive accomplishments related to oversight of the APD.

Review of Internal Afairs Investigations

As noted above, the Independent Counsel has very broad authority with respect to reviewing investigations by the APD Internal Affairs Unit. The IC is authorized to "direct the overall manner" of internal affairs investigations, and directed to "review all... investigations." Additionally, the IC may "initiate investigations" and employ other investigators as deemed necessary.

On the basis of our research we find that the Independent Counsel has complied with the minimal terms of his mandate.

We find that the IC does direct the overall operations of internal affairs investigations. Immediately upon taking office, the first IC drafted a Directive outlining the complaint process.⁽¹²⁾ There was some initial resistance by the then-police chief based on conflicting interpretation of the meaning of the ordinance. These differences were eventually resolved and a harmonious working relationship appears to exist between the IC and the APD.⁽¹³⁾

Some of the initial conflict was undoubtedly the result of a natural learning process as both the IC and the APD sought to define the scope of this new office's activity and its working relationship with the APD. We note, for example, that the first report of the new Inspector General (IG) for the Los Angeles Police Department (LAPD) indicates some initial conflict with the LAPD over the scope of the IG's responsibility.⁽¹⁴⁾ At the same time, some of the initial conflict between the IC and the APD appears to have been related to the personality of the initial IC and that person's concern about a particular controversy over APD activities.

The current IC continues to direct the overall operations of internal affairs investigations. The IC issued a new Memorandum of Understanding (MOU) defining the scope of his activities in August, 1996. A copy of this MOU is attached in the Appendix. This new MOU indicates that the IC continues to think about and refine the scope of the IC's responsibilities.⁽¹⁵⁾

We find that the IC has issued Quarterly Reports of his activities as mandated by ordinance. We also find, however, that these reports are extremely short and provide the public with little detail about the complaint process or the activities of the IC. Quarterly Reports for recent years are typically four pages long and follow a standardized format. For illustrative purposes, one Quarterly Report is included in the Appendix.

The lack of detail in these reports, along with other factors discussed later, have weakened the credibility of the IC in the eyes of the public. The brevity of the IC reports contrasts sharply with the scope of reports filed by citizen review procedures in other cities (see Chapter Nine). This problem is discussed in more detail below, with respect to the policy review function of the IC. Our audit of the internal affairs files indicates that the IC does review every internal affairs investigation as mandated by ordinance. In this regard, then, the current IC is fully and conscientiously fulfilling this part of his role.

In short, the IC is complying with the formal terms of the enabling ordinance with respect to directing the complaint process of the APD. We now turn our attention to the question of the effectiveness of the IC's activities.

Effectiveness of the Independent Counsel

The important question involves the effectiveness of the IC with respect to the review of internal affairs investigations. This is an extremely difficult question, and one that cannot be answered in any purely objective, quantifiable way. Answers to this question inevitably involve subjective matters, including primarily an individual's overall level of trust in the police department and city government.

Command officers with the APD indicated to us that the presence of the IC does make a difference, and that it contributes to more objective and fairer investigation of complaints. One command officer stated that the IC " helps us see things from a citizen's point of view " [emphasis added]. He then illustrated the point with reference to a particular case, the details of which are confidential. Another command officer indicated that his perspective on interactions with citizens had changed as he had risen to higher rank in the department and that the IC had contributed to this learning process.

In this respect, the IC has fulfilled one of the basic functions of citizen review. The presence of the IC has helped to "open up" the traditionally closed complaint process and provided APD investigators with a citizen's perspective on individual complaints.

Several of the people we interviewed, including police officials, private attorneys, and citizens indicated that the operations of Internal Affairs has improved over the years. They indicated that in the past IA was run very badly, and influenced by favoritism toward certain groups of officers. We believe that the IC has contributed to this improvement.

The IC has the authority to disagree with Internal Affairs investigations. This authority is the critical part of the oversight process, representing the introduction of a citizen's perspective on the operations of internal affairs. As Figure One indicates, the IC can disagree at two different stages of the complaint investigation process.

The IC reviews a complaint file after the citizen's complaint has been investigated by IA. At this point, the IC has the authority to request additional investigation (Figure 4-1, Step #4). The Quarterly Report for the period ending March 31, 1995, for example, includes the following statement:⁽¹⁶⁾

"In some cases reviewed during the quarter, I determined that the investigations submitted to me by the IAU required follow-up investigation in order to insure a fair, objective and impartial investigation. In such instances, I returned the investigation to the IAU with a request for follow-up investigation on specific points. In each instance, the IAU conducted the requested follow-up and the investigation was then resubmitted to me for final review."

Other Quarterly Reports contain identical or nearly identical language. Our audit of the Internal Affairs files indicate that these requests for further investigation do in fact occur. This process represents an important check and balance on the operations of Internal Affairs.

Our interviews found that the disagreements between the IC and the APD command staff involve give and take on both sides. Both the current IC and APD command officers independently indicated to us that they "won" about half of the time and "lost" the other half. That is to say, about half the time, APD command officers were able to convince the IC that his disagreement was not justified, and about half the time, the IC refused to change his mind.

Both the current IC and members of the APD command staff indicate that they have established a good working relationship, characterized by mutual respect for each other's point of view.

If after additional investigation the IC still disagrees with the investigation conducted by Internal Affairs, he has the authority to issue a "nonconcurrence" memorandum (Step 5B). This results in a "nonconcurrence" meeting with the Chief of Police. If the nonconcurrence meeting results in a resolution of the disagreement, the case is then sent back to the normal disciplinary process in the APD (Step #6B). If the disagreement is not resolved at the nonconcurrence meeting, the IC issues a formal nonconcurrence statement and the case is sent to the Chief Administrative Officer (CAO) for resolution (Step #7).

Nonconcurrences are rare. The IC Quarterly Reports indicate a total of two nonconcurrences in 1995 and one in 1994.⁽¹⁷⁾

The data on disagreements and nonconcurrences need to be interpreted with great care. As with other data on complaints, these data do not speak for themselves.⁽¹⁸⁾ Some critics might interpret the low number of disagreements as evidence that the IC is not performing his duties adequately. On the other hand, the low number might mean that over time the IC has established certain minimum standards for Internal Affairs investigations and that IA investigators generally meet those standards, resulting in little week-to-week conflict.

The important question is whether the IC is truly "independent" of the APD, or has he been "co-opted" into seeing things from the APD perspective. There is no way to answer this question definitively.⁽¹⁹⁾ Our prior research and experience with citizen review indicates that evaluations are heavily influenced by a person's race and general level of trust of the police department. Nonetheless, our research provides some objective bases for evaluating the performance of the IC.

First, there are the results of our audit of the Internal Affairs files, which are discussed in Chapter Seven. Second, there is the comparison of the activities of the IC with those of equivalent agencies in other cities. This is discussed in detail in Chapter Nine.

The Policy Review function of the Independent Counsel

The Policy Review Function

The Independent Counsel has statutory authority to "direct the overall manner in which the internal affairs investigations of the Albuquerque Police Department are conducted." Pursuant to this authority, the Independent Counsel is charged with the responsibility to "make recommendations to the Chief Administrative Officer, the City Attorney, the Chief of Police, and where appropriate, the City Council, on procedures to be changed or any other matter the Independent Counsel deems appropriate [emphasis added].

The scope of the Independent Counsel's authority to oversee the Albuquerque Police Department is extremely broad. The phrase "any other matter" is, on its face, without limit.

The authority granted the Independent Counsel falls within the policy review function of citizen review of police which is discussed in Chapter Nine. Policy review can serve two important purposes. First, it can play a preventive role, by identifying problems and initiating corrective action that will reduce the number of citizen complaints and prevent major crises from developing in the future. Second, it can serve as a practical means of receiving citizen concerns about police practices and translating them into meaningful corrective action. This process can reduce police-community tensions by establishing both the fact and the perception that the police department is responsive to citizen concerns.

The Policy Review Activities of the Independent Counsel

Despite the broad mandate authorized by statute, the Independent Counsel has made limited use of the policy review function. This conclusion is based on a review of all the Quarterly Reports filed by Independent Counsel.

The policies recommended by the Independent Counsel fall into two general categories: Those related to the complaint process itself and those related to general police practices. A review of the Quarterly Reports filed by the Independent Counsel between 1989 and 1996 indicates a total of six (6) policy recommendations related to the complaint process and seventeen (17) related to general police policies and procedures. This represents a total of twenty-three recommendations in eight years, or an average of between two and three per year.

With respect to the complaint process, the Independent Counsel issued a Directive outlining the complaint process in 1989.⁽²⁰⁾ A few subsequent recommendations or directives were issued to clarify or modify the original directive. In 1990 the IC clarified the procedures for submitting use of force complaints to the IC.⁽²¹⁾ In 1991 the IC revised the complaint procedures to prevent a supervisor investigating a complaint that involved the supervisor's own dealing with the officer who is subject to the complaint.⁽²²⁾ Also in 1991 the IC recommended that APD officers be specially trained in how to properly inform citizens about how and when to file a complaint.⁽²³⁾

With respect to general policies and procedures of the APD, the IC has addressed a number of different issues. In 1990 he recommended that the APD attempt to assign more experienced officers to street duty in late evenings as a way of reducing citizen complaints.⁽²⁴⁾ In 1991 the IC recommended a review of training in the handling of mentally ill persons. In 1993 the IC recommended a review of APD policies and procedures related to warrantless arrest incidents.⁽²⁵⁾ In 1994 the IC recommended a review of policies and procedures related to the SWAT team.⁽²⁶⁾ Also in 1994 the IC recommended that the APD review its training related to the use of nondeadly force.⁽²⁷⁾

On the positive side, these recommendations indicate that the Independent Counsel has to a certain extent utilized his statutory authority to oversee the operations of the APD and to make recommendations for changes in policy. Some of the police recommendations address important issues that have been matters of great concern to the community, particularly the use of force and the accessibility of the complaint process.

On the negative side, however, the level of policy review activity by the Independent Counsel is low compared with that of other citizen review procedures. Even more serious, much of the positive value of the policy review activity has been lost because of the low-visibility of the Independent Counsel in the eyes of the community. Citizens, including those who are most concerned about police practices, are not aware of the policy review activities of the IC. Additionally, the low-visibility has contributed to a lack of monitoring of the implementation of IC recommendations.

We now turn our attention to the issue of the public visibility of the IC.

Public Visibility of the Independent Counsel

One of the most serious problems with the Independent Counsel is its low-visibility in the eyes of the community. The current IC plays no public role and is not widely known in the community. As a consequence, the substantive contributions to police oversight that the IC has made are not generally known. This has undermined public confidence in the existing oversight mechanism. Additionally, the potential value of the IC as a mechanism for addressing community concerns has been lost.

Most of the people we interviewed were unable to provide any detailed information about the activities of the IC. Some could not identify the present IC by name. Most of the officers in our survey of rank and file APD officers could not identify the current IC by name. In one of the more remarkable instances, an individual who knows the current IC on a social basis, and who holds a position in government, stated that he/she did not know that he served as the IC.

Those few individuals who indicated some familiarity with the work of the IC spoke favorably about him as an individual. Several people feel that he is sincere, dedicated, and hard-working. Our personal interview with the current IC led us to concur with this judgement. He appears to take his job very seriously and to do a competent job in the tasks he undertakes. As we indicated above, the IC does direct the complaint process, reviews all complaint files, and issues quarterly reports as mandated by ordinance.

The problem with the IC is not related to the character or work habits of the person currently holding that position. The problem is that IC, partly in conjunction with City Council, has defined the role of the office in the narrowest terms possible. The IC has defined his role in terms of an "attorney-client" relationship with the City of Albuquerque, involving privileged confidential information which he cannot share with the public. The current IC is not solely responsible for this role definition. The contract for services between the City and the IC specifically defines the role in terms of attorney-client relationship.

We believe that both the IC and the City have unnecessarily limited the role of IC, with unfortunate consequences. The statute creating the office of Independent Counsel mandates only that the IC be an attorney. It does not define the role in terms of an attorney-client relationship.

Other cities have created citizen review procedures that are roughly similar to the Albuquerque IC but where the role of the top staff person is not defined in terms of an attorney client relationship. These cities include Portland, San Francisco, San Jose, and Los Angeles County. (See Chapter Nine for a detailed discussion of these and other citizen review procedures). The staff members of all of these agencies have access to confidential files on citizen complaints. They fully understand that this material is confidential and that they cannot discuss the specifics of complaints with members of the public. Nonetheless, the staff of these other procedures engage in active programs of community outreach. As is explained in Chapter Nine, community outreach serves to (1) inform the public about the complaint process; (2) provide a mechanism for hearing community concerns about police practices; and (3) cultivate community confidence that the police department and the city is responsive to their concerns.

Sole Source Contract

The Independent Counsel is employed on the basis of a one-year contract. As the records of the October 10, 1996 FGO Committee note, the IC has always been employed through a sole source contract rather than the RFP process required by the Purchasing Ordinance.⁽²⁸⁾ The current IC has been employed and reemployed on this basis since 1991. This practice has been justified on the basis of the current IC's "prior experience." The initial IC, William Riordan, was employed on a similar basis.

We believe that this is an unwise practice. It contributes to the low visibility of the IC in the community. We recommend that the position of IC be selected on the basis of the standard RFP process. We believe that an open competitive process would permit the application of individuals with different and more creative ideas about how the IC should function. Among other things, it would permit applications from individuals who have taken the trouble to study oversight mechanisms in other cities and have adopted the best practices and rejected the worst practices. We do not feel that an open competitive process will lead to abuse. The City has full power to reject any proposal that is unwise or illegal.

Police Officer Perceptions of the IC

There is a certain amount of misunderstanding about the role of the IC among rank and file APD officers. About a third of the officers (34.5%) believe that the IC investigates complaints. Slightly more than half (53.1%) believe that the IC recommends discipline. About a third (34.5%) do not know that the IC reviews policy, while almost 40 percent (39.7%) do not know that the IC makes recommendations regarding APD policies and practices.

Most officers have a negative view of the IC. Forty percent believe that the IC has a negative effect on police officer actions, while 60 percent believe that the IC has had a negative effect on police officer morale. Almost forty percent (38.6%) believe that the Independent Counsel is biased toward certain officers; 20.3 percent, however, disagree with that statement. Meanwhile, 17.5 percent believe that the IC is more sensitive toward citizens, while 57 percent disagree. Slightly more than one quarter (27.5%) of the officers believe that the IC has made a positive contribution to the professionalism of the ADP. Only 13 percent believe that the IC should be abolished.

Table 5-1

The results of the police officer survey are generally consistent with prior research on police officers and citizen review, although surprising in some other respects. Rank and file police officers have been strongly opposed to all forms of citizen review over the past forty years.⁽²⁹⁾ Police officer associations and unions have been the leading opponents of specific proposals or ordinances for citizen review. It is not surprising, therefore, to find that the APD officers have generally negative views of the IC.

The surprising finding in our survey is that about one quarter of the officers feel that the IC makes a positive contribution to police professionalism. Along the same lines, very few officers believe that the IC should be abolished. Together with our findings on officer views of Internal Affairs which are discussed in Chapter Seven, we believe that there exists within the ranks of the APD a solid core of officers who do not fit the traditional stereotype of rank and file officers as being opposed to all external scrutiny.⁽³⁰⁾ This core of officers wants more discipline, not less, along with fairer administration of discipline. They are not opposed to citizen review of the police, and in fact believe that some form of citizen input can enhance police professionalism. We believe that this core of officers represent a foundation of support for the development of higher levels of professionalism in the APD.

Summary

We reach the following conclusions about the effectiveness of the Albuquerque Independent Counsel.

First, as already noted, we believe that the involvement of someone who is not a sworn police officer in the complaint process has contributed to a more professional level of complaint investigation.

Second, as we explain in detail in our discussion of Internal Affairs, there are some questions about the quality of complaint investigations , for which both the IC and Internal Affairs share some responsibility.

Third, much of the effectiveness of the IC has been undermined by the low visibility of the office and consequent lack of its credibility in the eyes of the community.

Fourth, the IC should not be employed on the basis of a sole source contract.

We believe that these problems can be overcome. As we explain in the following chapter, the IC should have a formal relationship with the Public Safety Advisory Board (PSAB). This would help to ovecome the low visibility of the IC and provide a channel for public input into the oversight functions performed by the IC.

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11. Attachment to Report of Independent Counsel Through September 30, 1989.

12. Report of Independent Counsel Through July 31, 1989 (August 15, 1989).

13. Report of Independent Counsel Through September 30, 1989 (October 9, 1989), With Directive #2 attached.

14. Los Angeles Board of Police Commissioners, Office of the Inspector General - Six-Month Report (January 1997).

15. Patrick V. Apodaca, Operation of the Office of Independent Counsel: Memorandum of Understanding (August 30, 1996).

16. Independent Counsel, Report For the Quarter Ended March 31, 1995.

17. Independent Counsel, Report For the Quarter Ended December 31, 1995; Report For the Quarter Ended December 31, 1994.

18. See the discussion of complaint data in the section of this report on the Internal Affairs Unit.

19. Richard J. Terrill, "Alternative Perceptions of Independence in Civilian Oversight," Journal of Police Science and Administration, 17 (1990): 77-83.

20. Report of Independent Counsel Through September 30, 1989.

21. Report of Independent Counsel Through March 30, 1990

22. Report of Independent Counsel for the Quarter Ended December 31, 1991.

23. Ibid.

24. Report of Independent Counsel Through December 31, 1989.

25. Report of Independent Counsel for the Period Ended March 31, 1993.

26. Report of Independent Counsel for the Period Ended March 31, 1994.

27. Report of Independent Counsel for the Period Ended September 30, 1994.

28. FGO Committee Agenda, October 10, 1996.

29. Samuel Walker, Citizen Review Resource Manual (Washington: Police Executive Research Forum, 1995).

30. The basic sources on the police subculture are William A. Westley, Violence and the Police (Cambridge: MIT Press, 1970) and Jerome Skolnick, Justice Without Trial, 3rd ed. (New York: Macmillan, 1994).