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?