LAS CRUCES POLICE AUDITOR EMPLOYED TO EXONERATE

[11 Jan 22  update: The OIR audit omitted 2 years of complaints, between 31 December 2018 and 31 December 2020.  It thus precluded my first complaint, on 5 August 2019, about phony charges against me for five code violations.  The OIR audit included all complaints only from 1 January 2021, despite which date, on advice from the City Attorney, IA excluded my second complaint, on 2 June 2021, on antisemitism as the motive for those charges on the obviously spurious ground that the second complaint duplicated the first.  Las Cruces City Council unanimously did not want my case to interfere with a whitewash with the customary praise and a few tweaks to suggest a proper audit.]

The police auditor contract approved by City Attorney Jennifer Vega-Brown requires OIR Group to “review and report” on “all formal citizen ... complaints and investigations” “to ensure [IA’s] investigations were complete, objective, thorough, and fair and that findings and actions taken in response to the investigations were appropriate.”

An absurd provision.  OIR cannot be sure that it will see “all” complaints.  It will see only those complaints which the LCPD provides and neither excludes nor “overlooks.”  OIR cannot “ensure” either the completeness, objectivity, thoroughness, and fairness of closed-out investigations—done is done—or, thus, the appropriateness of responses to their findings and actions.  And, within budget, OIR cannot properly examine available documents or correlate them with referenced events.  Yet the provision is less inept than it seems: it signals the city’s desired outcome of OIR’s “review and report”—exoneration.

More generally, the 1-year contract is suspect.  The maximum cost is $75,000.  Each of the five OIR personnel assigned to this contract, three being OIR principals, commits 20 percent of his or her time to the contract.  OIR implies a person-year of $75,000, an implausibly low annual salary for professionals, especially in California.  Explanations for this figure range from wink-and-nod or handshake understandings that the maximum cost will be renegotiated and increased during the contract period, to a loss-leader contract to secure option-year contracts at much higher costs.  The latter explanation raises the possibility of client-pleasing results to secure those follow-on contracts.

For that reason, OIR might not examine my unpopular complaint.  The Mayor has vacillated on his promise that I might present it to OIR, Council members have ignored it, and the LCPD has mishandled it.  So I infer that they might not make it available to OIR.  To prevent an “inadvertent oversight,” I sent it pertinent complaint records by email and certified mail.  Whether or not OIR examines my complaint, it cannot claim ignorance.

Ordinarily, OIR’s work would be guided by IA’s six labeled categories of complaint results.  OIR would see the result of my complaint labeled “sustained other”—“other” meaning a violation not in the complaint—, note the officer’s violation, and likely move on, with no reason to examine the complaint itself.

A proper examination of IA’s investigation of my complaint, however, would probably take undue time and effort to identify its many issues and questions, as shown below, and to address and answer them.  Even if other complaints and IA’s investigations are less complex than mine, OIR would still find it difficult or impossible to examine “all” of them in enough detail to make reliable analyses and evaluations of them.  Cursory inspections of IA files and LCPD records, and paper shuffling seem inevitable.

Issue 1: Two interviews of Officer Juan Valles: on or before 11 September 2019, James Chavez, Chief Codes Administrator; on 14 January 2020, by IA Sergeant Sean Mullen.  In between, on 17 December 2019, Police Chief Patrick Gallagher emailed that the investigation was complete by 11 September.

1. Why was a second interview necessary?
2. What explains the 4-month interval between the two interviews?
3. Did IA find the discrepancies between the interviews?  If so, how did it treat them?
4. Did IA deem the second interview more credible than the first one?  If so, why?

Issue 2: Late IA claim of Valles’s failure to record a 1 August conversation 2019.  In a 7 January 2020 meeting with Gallagher, then-IA Chief Rebecca Kinney, and others, I said that the recording would support my account of it.  On 5 February 2020, Mullen noted Valles’s failure.  On 19 February 2020, Kinney’s close-out letter reports that violation of policy.

1. When did IA learn about or discover Valles’s failure to record the conversation?
2. When it learned about or discovered this failure, why did IA not seek to interview me for my account of the conversation?
3. Why did IA accept Valles’s uncontested version of our conversation?
4. Why did IA regard Valles’s explanation of his failure as trustworthy?

Issue 3 Undisclosed confirmation in Mullen’s 5 February 2020 memorandum that all five charges were unfounded.  “Mr. Hays’ warning notice had several violations marked to which there was no physical evidence or proof an actual violation had occurred.”

1. Why did Mullen put this central finding under the heading “Ancillary Issues”?
2. Why did Mullen make excuses for these false charges?
3. What policy allows IA to make excuses overriding the facts of false charges?
4. Why did Kinney’s 19 February 2020 close-out letter not report this finding?
5. Why did IA make no official determination (“sustained”) that the charges are false?
6. Why has the LCPD refused to admit that the charges are false?
7. Has Vega-Brown advised the LCPD to make no admission of false charges?
8. What policy justifies retaining the notice of false charges in LCPD files?

If OIR considers these issues and questions in my complaint, it should assess IA’s and LCPD’s overall performance.

1. Has OIR ascertained that IA’s investigation “complete, objective, thorough, and fair and that findings and actions taken in response to the investigations were appropriate”?
2. Does OIR recommend corrections of findings or actions?
3. Has OIR explained why IA and the LCPD let this matter fester instead of resolving it easily, quickly, and professionally?
4. Has OIR ascertained whether IA and the LCPD followed or enforced department policies, like General Order 103.17 Truthfulness, in this case?
A. “Employees shall not knowingly make a false statement in connection with any investigation, assignment, or inquiry....
B. Employees shall not knowingly sign any false official statement or report, commit perjury, or give false testimony whether or not under oath.
C. Employees are required to completely, honestly, and accurately report all facts and information pertaining to any criminal or administrative investigation, or any matter of concern to the department.”
5. Has OIR traced any citizen distrust of police to dishonesty in IA investigations?

OIR’s likely failure to do properly what the contract requires matters little.  A police audit is merely a gambit to get City Council and the LCPD off the hook of transparency and accountability, and any good-faith effort at police reform.  Those who saw Councilor Bencomo change her mind about a citizen review board know that the fix is in and public input is out.  OIR’s report will repeat at least one finding of previous audits: persistent and unrelieved citizen distrust of LCPD police.  Indeed, last June, then-Deputy Police Chief Miguel Dominguez told Council so; no member asked why because no member cares why.  Status quo then, now, and forever!  Where is the progress, Progressives?

CLIMATE CHANGE AND THE SINS OF OMISSION IN LAS CRUCES

When my wife and I relocated to Las Cruces for nursing school and sunshine in 2007, we had a big surprise the next year: downpours from four hurricanes, two from the east, two from the west.  Living on an escarpment, we saw flood-control ponds with water so deep that neighborhood kids swam in them.  We told family and friends that we had lakefront property.  Because the ponds attracted many ducks, waders, and insectivores, the birdwatching was excellent.

The year before, I had attended a district meeting at which newly elected Mayor Ken Miyagishima and Councilor Gil Jones addressed citizen interests in city development.  Most citizens mentioned bicycle paths, shaded bus stops, enhanced city parks, and more—all worthy.  I asked a question which took them by surprise: did the city have a water management plan.  The answer was “no” although climate predictions for a hotter, drier Southwest were already widely accepted.  In private conversations afterwards, I advised thinking about this impending future.  They did not; the flood plain, though incompetently re-arranged, has nothing to do; and the birding is lousy.

Las Cruces does nothing much better than it does anything else.  Inaction is often commendable where infrastructure is concerned.  When it laid a concrete pad to prevent mosquito-breeding ponding in a storm run-off, it failed to anchor the pad.  Rushing water from the next rainstorm lifted the pad, broke it, and lifted the broken section onto the unbroken section—a lesson in Las Cruces incompetence left unrepaired for all to see.

The bigger problem is climate change.  The predicted drought is upon Las Cruces and the rest of the state.  The smaller snow packs in Colorado are beyond anyone’s control; drilling permits to tap aquifers are not, but they are a drop in the bucket, so to speak, as far as a reliable water supply is concerned.  Past water shortages have led to water wars.  Presently, they are predictable if New Mexico governors and legislators do not prepare for the economy-busting effects of long-term droughts.

The three major combatants will be cities, with residential and commercial needs increased by growth; agriculture, and extractive industries.  A struggle between Las Cruces real estate construction and Dona Ana County water-intensive crops like pecans and pistachios is easy to imagine.  Here and elsewhere there will be legal, perhaps even illegal, skirmishes when shortages can no longer be abated by conservation measures like alternate-day lawn watering.

What is needed is state action, from public hearings to legislation.  New Mexico needs principles and procedures to establish priorities; regulations necessarily mandatory in times of stress; and provisions for rigorous enforcement.  The alternative is competition for water, rising water prices, unplanned failures in different economic sectors, social dislocations, adverse environmental effects, and more—none of it good.

Since the effects of the drought are likely to be unevenly distributed, smaller, more remote cities and towns are likely the earliest and greatest victims.  Economic depression will close businesses, close schools, and collapse the housing market.  The state should begin now to identify the most vulnerable cities and towns, and assess how they may be transitioned to an alternative economy or else decommissioned, with assured alternative employment, schools, and housing for relocated residents.  Only government, not the private sector, can take an organized and orderly approach to these problems.

However, if New Mexico is faithful to its past and true to its culture, it will take no action but do nothing very well, and defer the problems, to the next generation, with greatly diminished hopes of solving them.  Meanwhile, it can create a statewide industry of exporting sandbags to riparian or coastal cities fighting rising river or ocean levels.  But it cannot provide more water to meet its needs.

Las Cruces has problems whether it does something or does nothing.  It can develop a water resource plan, make it part of its city planning, and abide by and enforce it.  But if it makes assured additional water supply a condition on building permits, it will anger the construction industry, one of the largest employers in town.  Or the city can do nothing and anger both future and current residential and commercial property owners who will experience “brownouts” or “blackouts” in their water supplies—little or no tap, bath, or toilet water.  So we can all learn the lyrics, “it ain’t gonna rain no more no more; it ain’t gonna rain no more.  So how in the heck can I wash my neck if it ain’t gonna rain no more.”

NEW MEXICO TEACHERS UNDERMINING THE ECONOMY, EDUCATION, AND DEMOCRACY

In A History of the English People (1985), Paul Johnson describes the relationship between England’s economy and its education:

The educational revolution in sixteenth-century England set in motion the chain of events which produced the modern world; and, conversely, England’s educational failures lie at the very root of her decline as a dynamic society.

This melancholy truth leads us to a related, and still more dismal, aspect of the English problem.  A high rate of economic growth cannot be sustained unless there is a corresponding high rate of investment in the education of the people—not merely in technical skills but in social responsibility through the liberal arts. The English ruling establishment ... have fobbed off the working class with a minimum education; and the country has in consequence received a minimum growth-rate. (p. 403)

This correlation between economic vigor and educational quality is also evident in New Mexico, with one of the weakest economies (c. 40^th) and one of the weakest educational systems (c. 50^th) in America.  To improve its economy, the state must first improve education by focusing on the essentials: quality curriculums and quality teachers.  New Mexico has neither.

Instead, New Mexico gives most students an education suitable for low-skill jobs in mining, farming, ranching, construction, retail business, and tourism.  For decades, 4^th- and 8^th-grade proficiency in mathematics and English has averaged about 50 percent.  One-third of high-school graduates require remedial courses if they go on to college, and most college graduates are no better than modestly competent in their field and on the job.  Lofty talk about STEMH—science, technology, engineering, mathematics, and health—is enough hot air to make the Spaceport viable for balloon rallies.  The students who get an education suitable for high-skill careers are too few to constitute a workforce attractive to high-tech companies.  In short, K-12 teachers crank out graduates—I omit dropouts—semi-literate and semi-numerate, and foist them on employers and colleges.

No change for the better is foreseeable because political and educational leaders fail to take education seriously.  Governors disdain higher education by appointing hacks to serve as regents.  Legislators disregard educational qualifications for the Secretary of Education.  Neither The University of New Mexico nor New Mexico State University has enhanced its academic programs or developed research parks worthy of the name.  Arrowsmith Park satirizes the concept.  Despite experience as governor, NMSU College of Business dean, and NMSU president, Garry Carruthers did nothing to better education at NMSU or make it an engine of economic development.

Such leaders deny, or refuse to identify, the biggest problem: poorly prepared and poorly motivated teachers.  In 1963, James D. Koerner’s The Miseducation of American Teachers compared professionals by academics, aptitudes, and attitudes.  Teachers scored lowest then and would score lower now, since women’s liberation has freed the best and the brightest to pursue other professions.  The residue is teachers who, before-grade-inflation, were C students.  No one has accused these would-be teachers of respect, not to mention a passion, for learning, only a desire for higher salaries and job security.

Their champion since 2013 has been Bill Soules, high-school teacher and state senator.  After 8 years on the Senate Education Committee, as a member, vice chair, and, more recently, chair, New Mexico’s educational system remains mired in mediocrity.  He is not single-handedly responsible for the state’s failure in public education.  But he is responsible for doing nothing more than more of the same, which means raising teacher compensation (without assured subject-matter mastery) and funding more programs (with more teachers and without proof of long-term academic benefits).  He has backed bigger education budgets without requiring better educational results.  He has never sought accountability: get better results or face program termination or staff reductions.  But Soules is no fool.  Such expenditures are necessities to secure teachers’ votes and thereby indirect means to fund re-election campaigns with taxpayer dollars.

Soules sponsors the status quo.  He knows that PED-specified teacher qualifications make the state’s public education system a closed shop, de facto, if not de jure.  He knows that school of education programs stress ancillary matters related to diversity and identity, not focus on the basics of academic subjects in both technical fields for careers and humanities for citizenship in a democracy.  What makes his irresponsibility the greater is his indifference or opposition to improvements at little or no cost.  Otherwise, he would sponsor legislation to:

• Define specific educational qualifications for all appointments to educational offices, including the Secretary of Education and university regents
• Direct the state’s Public Education Department (PED) to:
• Set criteria for academic performance to initiate, continue, or terminate educational programs, including early childhood education
• Develop subject-matter curriculums inclusive in coverage, sequenced in delivery, and systematic in treatment, and require curriculum reviews by independent educational evaluators.
• Require schools of education to focus their programs on preparing teachers to teach curriculums as defined or implied by state curriculums
• Require prospective teachers to pass independently developed, delivered, and graded subject-matter examinations with high marks
• Accept accreditation of teachers relocating from other states
• Encourage hiring former military veterans with the expertise to teach higher-grade-level courses
• Give retirees credit for education and experience qualifying them for teaching.

Such alternatives are anathema to Soules and his base for one reason: they demand more of teachers, especially elementary school teachers, than they can deliver.  He knows that advocating these reforms would jeopardize his re-election.  Teachers would be infuriated by efforts to establish higher standards of academic preparation, ensure subject-matter mastery, and give huge compensation increases to only those teachers, old and new alike, achieving high scores on subject-matter tests.  They would decry such reforms as insulting or unfair.  They would oppose legislators, Soules included, who did not continue to support increased numbers and compensation of all teachers, and thereby enlarge a special-interest constituency and swell union political power.

Soules and his base, with PED support, keep New Mexico in a deplorable economic and educational state.  In effect, this anti-education triad mounts an insurrection against the state, not one assaulting government buildings, but one eroding public education by mollycoddling mediocrities.

LAS CRUCES WANTS INDEPENDENT POLICE AUDIT TO MAINTAIN STATUS QUO

Long after Progressives protesting George Floyd’s murder went home satisfied with themselves for making a powerful statement against police injustice, and long after the City first sought an independent police auditor, it has, for the modest price of $75,000 a year, hired OIR Group to absolve the city of its sins.

My cynical and dour prediction has both historical justification and moral rationale.  Past police auditors have come and gone, left behind reports which resemble previous reports, and not enabled meaningful change in LCPD performance.  Citizen distrust of police abides.  The main reason for OIR Group’s inevitable failure is the culture of Las Cruces, in which honesty is poorly understood, scarce, and impotent to prompt action.

Honesty may be defined as the combination of candor and truth in its entirety and purity.  Thus, the oath for legal testimony is swearing “to tell the truth, the whole truth, and nothing but the truth.”  No such oath commits Councilors or city personnel to do their duties honestly; even so, no such oath would be self-enforcing.  Locally, honesty is a virtue more honored in the breach than in the observance.

Consider these breaches in my case.  All City Councilors, City Manager Ifo Pili, and Police Chief Miguel Dominguez know the facts and have done nothing about them: 

Officer Juan Valles lied in alleging five municipal code violations, about each of which I complained.  IA confirmed the truth of my complaints—“Mr. Hays’ warning notice had several violations marked to which there was no physical evidence or proof an actual violation had occurred”—but hid its confirmation under “Ancillary Issues.” Neither Pili nor Dominguez has enforced General Orders, Code of Conduct, 103.17 Truthfulness: “Employees shall not knowingly make a false statement in connection with any investigation, assignment, or inquiry.”

LCPD retains the warning notice of these five violations in its files.  Pili admitted and Dominguez did not deny this fact in the presence of Councilor Bencomo.  Yet no one has acted to have the LCPD purge its files of this false, defamatory document.

The Law Office broke the Inspection of Public Records Act (IPRA).  It lied about an exemption to justify redacting two and withholding two documents.  It lied not only to me, but also to the New Mexico Office of the Attorney General.  The officers of the court involved were Attorney Robert Cabello, who drafted the lies, and City Attorney Jennifer Vega-Brown, his supervisor, who likely approved this lawbreaking and these lies.

Meanwhile, Dominguez tries to sell truthfulness, transparency, and accountability even as he gives them the lie.  On 18 June 2020, before his promotion, he told Council that the LCPD makes mistakes but admits them—except in my case.  On a recent KRWG program, he said that he wanted complaint investigations to be “thorough, fair, and just”—except in my case.  New chief, old lies; long live the status quo.

A police auditor coming across my case might stop with its close-out letter finding that the officer failed to record our conversation—not much to prompt suspicion.  But, if he did not stop there, he might wonder how I knew, and why I made a complaint, about that failure.  He might wonder whether my complaint concerned other items or whether many other cases had been wrongly closed.  He might review internal documents and discover IA’s one-sided report of a two-sided conversation, the recording of which IA claims was never made (likely destroyed); and unwritten policies (citizens are guilty till proven innocent); slippery vocabulary (warnings are for “possibilities,” not “violations”).  He might do these things, but likely not.  They are too labor-intensive, time-consuming, costly, and unprofitable.

No police auditor is apt to pierce the protective shield of Council and LCPD interests in sustaining the status quo.  Indeed, as OIR discovers their dishonesty, indifference, and inaction, it will understand their real wishes.  So it will investigate only the LCPD and skip other government units.  Like previous auditors, it will rely largely on suspect documentation, unreliable information, and distorted interpretations; accept pledges stressing transparency and accountability; focus on policies and ignore their non-enforcement; disregard the effects of risk-management on police performance; write a report echoing past reports; and give the impression that, with a few tweaks here and there, the LCPD will become the police force which Las Cruces desires and deserves.  For police auditors know to shield their clients from the truth; it keeps them in business.  If OIR wants to win four, optional, 1-year, follow-on contracts, it had better do a good job of it.  Or Council and the LCPD will not be happy.