VIII. Other Oversight

Introduction

Our contract with City Council for this study asked us to evaluate the tripartite system of oversight of the Albuquerque Police Department. This refers specifically to the Independent Counsel, the Public Safety Advisory Board, and the Internal Affairs Unit of the Albuquerque Police Department.

In the course of our research, however, it became clear that several other agencies of city government have substantial direct and indirect oversight authority over the APD. We felt that we could not fulfill our mission without some investigation of and comment on these other agencies. They include the City Attorney, the Risk Management office, City Council, and the Mayor.

City Attorney and Risk Management

Both the City Attorney and the Risk Management (RM) office have important oversight responsibilities related to the Albuquerque Police Department. The City Attorney advises the APD on legal matters and defends the city in law suits involving actions by APD officers. The Risk Management (RM) office oversees the claims against the city arising from law suits or other potential liabilities. Many of these claims are not of concern here (e.g., workmen's compensation). Tort claims based on allegations of misconduct by APD officers are of direct concern here.

We conclude that Neither the City Attorney nor the Risk Management office are fulfilling their responsibilities with respect to oversight of the APD.

Settlements for Tort Claims

The City of Albuquerque is consistently paying out an extraordinary amount of money per year for tort claims involving APD officers. In Fiscal Years 1995, 1996, and 1997 the APD budget included between $4 and $5 million for tort claims.⁽⁶³⁾ There were a total of 107 APD-related tort claims in FY 1995, and 97 in FY 1996. As the minutes of the Finance and Government Operations (FGO) Committee for October 25, 1996 indicate, "Tort claims against the Police Department have a significant impact on the City spending " [emphasis added].⁽⁶⁴⁾

There is some ambiguity as the precise total of the annual payments for tort claims for actions by APD officers. In response to a specific request for such information by an Albuquerque citizen, Mr. John H. Burkhard of the Risk Management office reported settlements of $2.3 million for 1995 and $3 million for 1996.⁽⁶⁵⁾ We understand the fact that some of the ambiguity may result from different systems of classifying cases. Nonetheless, Mr. Burkhard's figures indicate that the average annual payment for the ten year period from 1987 to 1996 is $2 million.

FGO records indicate that the total cost to the City for employing an APD officer for his or her second year is $42,940 (see Appendix). (The first year costs are higher due to non-recurring recruitment and training costs). According to the document made available to us, this $42,940 includes $4,500 for "Tort Transfer." This figure is consistent with a total tort claims payout of about $4 million per year for the APD as a whole. In other words, slightly more than 10 percent of the total cost of employing each officer goes to tort claims.

Comparative Data

The relevant question, of course, is whether average payments of $4 million or $2 million is unusually and unacceptably high. We accept the fact that we do not live in a perfect world and some settlements for mistakes by police officers are inevitable. No one reasonably expects that there will be no money paid out in any year.

Obtaining comparative data on tort claims is, unfortunately, extremely difficult. No private or public agency collects and publishes systematic data on this subject. As a result, we are forced to rely on selective data. We obtained data from two sources: data published by citizen review agencies, and data provided through telephone inquiries to officials in other cities. The Christopher Commission found that between 1986 and 1990 the City of Los Angeles paid out a total of $20 million in lawsuits alleging excessive force by LAPD officers.⁽⁶⁶⁾ This represents and average of $4 million per year. Yet, the LAPD is ten times larger than the Albuquerque Police Department, with over 8,000 sworn officers. Thus, if we adjust for the relative size of the department and assume that the performance of APD officers is the same as LAPD officers, we estimate that Albuquerque should be paying about $400,000 per year for tort claims. In short, Albuquerque appears to be paying ten times more than it should be for tort claims.

Similarly, the reports of the Special Counsel [Auditor] for the Los Angeles County Sheriffs Department (LASD) indicate total payments of $3 million in FY 9992-93 and $3.9 million in FY 1994-95.⁽⁶⁷⁾ Like the LAPD, the Los Angeles County Sheriffs Department is nearly ten times larger than the APD, with over 7,000 sworn officers. An adjusted annual rate of payments for Albuquerque, based on the relative size of the LASD would be about one eighth or one tenth of the current annual rate.

1990	$41,900
1991	64,800
1992	48,000
1993	28,300
1994	4,100
1995	4,100

The January 1996 report of the Seattle Police Auditor indicates that the City of Seattle paid out a total of $218,000 in 1994 and $180,000 in 1995.⁽⁶⁸⁾ The Seattle police department has about 1,200 sworn officers, or about 30 percent more than Albuquerque. Annual tort claims payments in Charlotte, North Carolina are even lower. The figures for the last six years are as shown at right:(69)

It is clear that the total payments in Charlotte for some years are less that what Albuquerque pays out in individual cases.

The figures indicate a significant increase in payments in 1995 due to a new policy on the part of a new city attorney to settle rather than fight many claims The Charlotte Police Department disagrees with that policy. We discuss the prevailing "pro-settlement" policy in Albuquerque below.

Officials we talked with in these other cities expressed astonishment and disbelief that the figures for Albuquerque are as high as they are. Their reactions clearly indicated that an equivalent figure would be unacceptable in their respective communities.

The Costs to the City

To put the issue of tort claims in perspective we would like to offer some observations on what the high level of tort claims cost the City, the APD, and the Albuquerque community. The City budgets for $4 million per year for tort claims (see the document indicating the budget of $4,500 per officer). We believe that this figure is at least ten times higher than it should be, and perhaps even more than that. If we assume that an acceptable figure is about $400,000, consider the various costs to the city and its citizens:

(1) The estimated $3.6 million in excessive tort claims could provide between 80 and 90 additional sworn officers for the APD, with the benefit of additional police protection for the citizens of Albuquerque.⁽⁷⁰⁾

(2) The estimated $3.6 million in excessive tort claims could provide a reduction in taxes in exactly that amount.

(3) The excessively high tort claims represent violations of individual rights of the citizens of Albuquerque that should not occur.

Oversight Failure

Our research indicates that few if any people in positions of responsibility are aware of the dimensions of the tort claims problem in Albuquerque. The notable exception to this rule seems to be some person or persons associated with the Finance and Government Operations (FGO) Committee of the Albuquerque City Council.

The records of the June 24, 1996 meeting of the FGO describe a series of tort claim cases.

• The City paid a settlement of $40,000 where an APD officer was "deliberately indifferent to the physical limitation of a DWI arrestee" who had a knee injury.
• The City paid $50,000 in a case where an APD officer failed to accommodate an arrested deaf person in violation of the Americans With Disabilities Act.
• The City paid $50,000 in a case where an arrestee "was beaten and had his shoes taken away and was interrogated by officers though he requested an attorney" [emphasis added].⁽⁷¹⁾

To be blunt about it, we are astonished by these cases. On the one hand they involve clear and blatant violations of established law (the ADA and the Miranda decision). At the same time, two of the cases represent deliberate indifference to citizens with special needs. Finally, the case where APD officers took away a citizen's shoes represents a petty and malicious act that is wholly inconsistent with standards of professional police work.

These cases raise serious questions about the quality of training in the APD and the level of on-the-street supervision within the department. They appear to reflect a breakdown in the oversight responsibilities of both the Risk Management office and the City Attorney's office. It seems inconceivable to us that information about the behavior reflected in these three cases --and the resulting cost to Albuquerque taxpayers-- is not being communicated directly and forcefully to the APD command staff, along with recommendations for corrective action.

Some person or persons associated with the FGO is to be commended for asking the right questions. For example, the records of the June 24, 1996 meeting include the following "Questions:"

"1. Does the City have a reputation on the street as being an easy target for lawsuits?

"2. How can the Legal Department better keep APD informed about the outcome of lawsuits?

"3. Are there many lawsuits in which the conduct of an officer should be investigated by APD internal affairs - but cannot because they were not tracked by internal affairs and a civilian or internal complaint was not filed within the 90-day limit?"⁽⁷²⁾

The Comments of the June 24, 1996 FGO meeting indicate that the issue of repeated lawsuits against a particular police officer was discussed. It is noted that a routine IA investigation is not opened in this instance and that there is "(n)o automatic referral procedure is in place."

Unfortunately, we find little evidence that the questions being raised in FGO meetings is being translated into corrective action by the responsible officials. The FGO Agenda for October 25, 1996 include the following statement: "Lawsuits filed by citizens citing excessive force often do not get referred to internal affairs unless a complaint is filed within 90 days of the incident."⁽⁷³⁾ The June 24, 1996 FGO minutes note that " the outcome of lawsuits naming APD officers are not communicated to their commanding officers."⁽⁷⁴⁾ We regard this as a serious failure on the part of both Risk Management and the City Attorney's office. Participants in the FGO committee meeting are to be commended for pointing out this problem. Immediate corrective action is needed.

It is worth noting that the Los Angeles County Special Counsel was established as a form of citizen review in large part because of concern about the size of tort claims. The semi-annual reports of the Special Counsel give this issue continued and detailed attention.⁽⁷⁵⁾ This is a function that is well within the authority of the Albuquerque Independent Counsel, the Public Safety Advisory Board, the Risk Management office, the City Attorney's office, the City Council, the Mayor's office, and the APD itself. Yet, none of these agencies of government appear to be undertaking this responsibility in a consistent and effective fashion.

The Role of the City Attorney

The heart of the problem is the role of the City Attorney's office with respect to cases and controversies involving the APD.

The Legal Department produces quarterly litigation reports which note all lawsuits filed against the City of Albuquerque during a given quarter. We reviewed two of these reports. The report for October 1, 1995 through December 31, 1995 indicates that thirty-three lawsuits were filed against the City during that period. Of these, six were for violations of civil rights or use of excessive force. The report compared this number with thirteen lawsuits for those same violations which were filed during the previous quarter. Eighty-eight tort claims were filed with the City Attorney's Office. Of these, thirty-three (37%) alleged Excessive Force or Police Misconduct against the Albuquerque Police Department.

Twenty-eight cases were disposed of during this time period. Eight involved violation of civil rights; four were settled for a total of $201,002. Two others were tried, resulting in settlements of $29,000 against the City; two cases resulted in rulings in favor of the city.

The report for the Quarter January 1, 1996 through March 31, 1996 cited a total of forty seven lawsuits filed against the City. Of these, eight were for violation of civil rights, or damages, or excessive force; one involved a wrongful death claim. These numbers were compared with thirteen and zero respectively for the previous quarter. Seventy-nine tort claims were acknowledged by the City Attorney during this quarter. Of these, thirty (37.9%) were filed against the Albuquerque Police Department alleging Excessive Force or Police Misconduct.

These reports provide bare bones statistical data, but with no commentary representing meaningful oversight of the APD. This is in stark contrast to the commentary provided by citizen review procedures in other jurisdictions.

The Informal Policies of the City Attorney's Office

Our research indicates that the tort claims problem is the result of the informal policies and practices of the City Attorney's office. This consists of three distinct elements. First, City Attorney's office appears to be too quick to settle claims involving police misconduct. Second, the City Attorney's office provides no feedback to command officers of the APD. Third, the City Attorney's office does not alert the Mayor and City Council to seriousness of the current problem.

One member of the City Attorney's office explained the prevailing philosophy in the office He believes that the role of the legal system was to "resolve disputes," and that settling cases without trial was an effective means of fulfilling that role. We are not opposed to a policy of settling legitimate claims. Citizens have a right to compensation for wrongs. It is a mistake, however, to routinely settle claims without addressing chronic problems in the behavior of police officers on the street. The data from other cities suggests that officials there have succeeded in reducing conduct that leads to suits.

The second problem involves a failure to provide feedback to command officers in the APD. One assistant city attorney explained that he discusses cases with the individual officers who are the subject of suits, explaining to them the nature of any settlement and the reasons for it. The City Attorney's office, however, does not appear to provide feedback to APD command officers. This is a serious omission. Feedback from the City Attorney's office can and should identify:

(1) practices that need to be corrected through training and/or changes in APD policy;

(2) particular officers who seem to be involved in repeated law suits (this could supplement the early warning system which the APD is exploring);

(3) exceedingly high annual tort claims involving APD officers which might call for inquiry by City Council of the Mayor.

City Council and Mayor

Both the mayor and the city council of Albuquerque have substantial oversight authority over the Albuquerque Police Department, the Independent Counsel, and the Public Safety Advisory Board. The mayor is ultimately responsible for the activities of all executive departments of city government. The mayor and city council have ultimate authority of the budgets of the police department and all other city agencies. The mayor appoints the members of the PSAB with the advice and consent of city council.

The City Council

We interviewed several current members of City Council, but were generally disappointed in the level of their knowledge and concern about police problems. We were particularly disappointed by our inability to interview several members of City Council despite repeated requests. Most of the Council members we interviewed seemed detached from police issues, preferring to focus on other issues. Given the fact that there have been four studies (including this one) of various aspects of police use of force initiated or completed in the last year, and the public attention to the number of police shootings, this lack of interest by Council members is disturbing.

The council members we interviewed had little information about the complaint investigative process, the PSAB, of the Independent Counsel. One stated that very little information came to the Council from either the IA or PSAB. This member stated that the IC has attempted to provide some information to the Council but that relatively little is provided.

The City Council members were generally unfamiliar with the IA investigative process. Some members of City Council were aware that there is an Independent Counsel but were not clear about the functions of the office. Several members of City Council function as informal ombusdsmen with respect to police problems. If a constituent has a complaint about police misconduct they contact the Chief of Police or the IC. Some Council Members, however, told us that constituents had little faith in the police complaint system. One stated that constituents contend that the police investigative system "has no teeth." Another stated that a constituent had difficulties with IA and that the Council member had staff call the Chief of Police directly in order to solve the problem, rather than trying to resolve it with IA.

We asked several members about the existence of an official brochure describing the APD complaint process. No member was aware of the existence of this brochure.

City Council members are generally aware of the PSAB but know little about the manner in which it conducts its business. With one exception, City Council members interviewed did not have an on-going relationship with the PSAB member appointed from their Council District. This exception reported having frequent conversations regarding the work of the board.

Although members of the PSAB are appointed by district, the members of the City Council stated that they have little, or no, role in their selections. Instead they state that the Mayor decides on candidates from among his political supporters, and this name is then forwarded to the Council for approval. Some Council members stated that in some instances they were not even notified about the nominee for the PSAB from their district. Some City Council members stated to us that they had attempted to make recommendations for appointments to the PSAB, but that their suggestions had not been followed by the Mayor.

Given the widespread dissatisfaction with the PSAB reported by members of both the community and the PSAB itself, the apparent disinterest of City Councilors from the process is of particular concern. The PSAB has been ignored and left to flounder.

The Mayor

We interviewed Mayor Martin Chavez regarding the performance of the APD, the Independent Counsel, and the Public Safety Advisory Board. While the mayor did acknowledge that problems existed, he felt that the oversight mechanisms were working fairly well.

We feel that this is an overly optimistic view of the current situation. Our research indicates that (1) the number of fatal shootings by APD is unacceptably high; (2) annual tort claims for actions by APD officers is unacceptably high; (3) the PSAB has failed to carry out its oversight responsibilities; (4) the Independent Counsel has failed to make adequate use of the authority of the office; (5) there is an unacceptable level of conflict and distrust in the community between citizens and the APD. All of these are matters under the purview of the mayor.

Conclusion

We conclude that a major part of the current problems with the APD are the result of the failure of other city officials to exercise their oversight authority. We believe that the City Attorney should develop a policy of examining chronic problems in police behavior and providing the appropriate feedback to command officers in APD. Together with Risk Management the City Attorney's office should develop specific goals and timetables for reducing tort claims against the city. We believe that both the mayor and members of City Council need to take a more active role in overseeing the APD.

---

63. Ibid.

64. FGO Agenda Comments, October 25, 1996.

65. John H. Burkhard, letter to Ms. Shay Cozart, December 2, 1996.

66. Christopher Commission, Report of the Independent Commission on the Los Angeles Police Department (Los Angeles, 1991), p. 56.

67. Special Counsel, The Los Angeles County Sheriff's Department - Sixth Semiannual Report (September 1996).

68. Seattle, Internal Investigations Auditor, Report, January 1996; Report, June 1995.

69. Figures provided by Ms. Stephanie Webster, staff attorney, Charlotte Police Department.

70. Tort claims savings would reduce the annual cost for each officer.

71. Ibid.

72. FGO June 24, 1996.

73. FGO Agenda, October 25, 1996.

74. FGO, June 24, 1996.

75. Special Counsel, The Los Angeles County Sheriff's Department - 6th Semiannual Report (September 1996), and all previous reports.