This blog results from delving into the tangled IA investigation into my complaint.
My previous blog detailed the failure of IA Sergeant Sean Mullen, now Deputy Police Chief responsible for Internal Affairs, to focus his investigation on the truth or falsity of an ACO’s five false allegations of animal code violations about which I had complained. Instead, as it also detailed, he emphasized the ACO’s account of the circumstances of his site visit and the conversation which the ACO and I had on 1 August 2019, the day after he issued me a warning notice. In his 5 February memorandum to the Police Chief and to the IA Chief, Mullen filled the 4+-page “FACTS” section with the ACO’s account. He gave only a half page to “ANCILLARY ISSUES,” with its buried finding that the allegations lacked support. In “ANCILLARY ISSUES” or “FINDINGS AND CONCLUSIONS,” he added three matters: recording devices, bias-based policing, and ACO2017-1 (follow-up).
Two weeks later, the IA Chief’s very brief 19 February 2020 letter relied on Mullen’s memorandum to close out my 5 August 2019 complaint. Her letter mentions those three matters but says nothing about the five alleged animal code violations:
The Internal Affairs Unit of the Las Cruces Police Department completed its investigation of your report concerning the conduct of Animal Control Officer Juan Valles on July 31, 2019. Our investigation revealed that the officer violated departmental rules and regulations. General Orders 151 Recording Devices, 165 Biased [sic] Based Policing, and ACO2017-1 were addressed in this complaint. As discussed during the meeting in January, the Notice which states the reason for visit was updated and is in use by the Animal Control Officers.
It is peculiar that she includes these three matters and excludes the alleged violations. It is misleading that she says the ACO violated “departmental rules and regulations” since he was charged with only one of them and cleared on the other two. My complaint says nothing about recording devices, bias-based policing, or ACO2017-1 (follow-up/warning notice). The matter of “Recording Devices” deserves scrutiny because it not only led to a charge against the ACO, but also bears on the ACO’s account emphasized by Mullen. His story explaining this charge is worth reporting and rejecting.
On August 1, 2019, ACO Valles was in the office working on paperwork for a dangerous dog case and not responding to calls, so he left his recorder in his vehicle with other equipment. [Receiving a message of my required call, he decided to call me.] He was unprepared for Mr. Hays’ response [ACO claimed that I was angry (I was) and profane (I was not)] and unable to record it since his equipment was inside his unit [patrol car]. From my interview with ACO Valles this is not a deliberate act to avoid recording rather him trying to complete the calls quickly and efficiently while in the office….an audio recording of Mr. Hays’ interaction would have proven useful during the administrative investigation.
An inconsistency suggests that Mullen’s story is fictitious. At the beginning, the ACO is intent on not placing calls so that he could do paperwork and did not bring his recorder in from his car. But, in the end, the ACO is intent on completing calls at his desk—which implies that he had the recorder with him. Mullen’s unforced error exposes his fiction.
Another reason for thinking this account is fictitious is a “tell.” Mullen claims that the recording would have been “useful” by confirming the ACO’s account. It is odd that he thinks so, presumably without having heard it. He doth protest too much, methinks. Since he accepts the ACO’s account and ignores mine throughout his memorandum, neither the Police Chief nor the IA Chief would have noticed the absence of a claim about a non-existent recording unless its non-existence mattered to them. It did, for without the recording, IA would prefer—he said/I said—the ACO’s word to mine contradicting his. So Mullen had their interest as a good reason for his otherwise unprompted fiction.
Their interest arises from their participation in a 7 January 2020 recorded meeting to which Mullen’s IA Chief’s letter refers. The attendees—District 1 Councilor, Interim City Manager, Police Chief, herself, and me—discussed conflicting accounts of the ACO’s site visit and our conversation. The Police Chief and the IA Chief made a poor showing in trying to counter my account of the ACO’s site visit and our conversation (and my analysis of his allegations). I referred to the ACO’s recording as evidence which would confirm my account. Although the opportunity presented itself, the IA Chief never said that the recording did not exist—a point which no one in the LCPD had made in five months. The likely reason: it did exist. On 11 October, Mullen, writing the ACO’s commander, advised him to “immediately notify IA in writing” about “any recording related to this matter.” I have no record of any reply about a recording but assume that the ACO’s Commander, who interviewed the ACO on or about 11 September, would have notified Mullen about its existence or its non-existence. If it did not exist, then the IA Chief and everyone else would know, and the IA Chief would have said so. She did not.
My hypothesis is that their poor showing prompted Mullen to tell a story covering the elimination of adverse evidence. His story begins with him and others listening to the recording and realizing that it was a problem, especially because it was liable to an IPRA request. The recording refuted the ACO’s account and confirmed my account of it. It also noted his other failures or misconduct: admitted flaws in his site visit and evident misrepresentations or lies about my statements in his interview, trespassing on two neighbors’ property, and threats to harass me with more site visits.
The IA or the LCPD solution to the problem was to destroy the recording after IA used it to prepare for a second interview of the ACO. Although his commanding officer had interviewed him, Mullen re-interviewed him to elicit enlargements of his previous comments. He let the ACO say anything about his site visit which would exonerate him and anything about our conversation which would misrepresent my account or discredit me. One result is inconsistent or derogatory details between his two interviews: first one dog heard, then two dogs seen; first an epithet, then a profane epithet. Mullen covered the destruction of the recording by faking confidence in its contents and feigning regret at its absence—all implying that IA or the LCPD would not want to destroy it. As a clincher, he ended his story with a charge against the ACO for a minor LCPD violation.
However, if Mullen had been conducting a proper and fair investigation and learned that the ACO had never recorded our conversation, he would have sought my account of the conversation instead of relying only on the ACO’s account, one side of two sides of it. But he was not conducting such an investigation. Otherwise, I would have told him that the ACO’s recording was not the only account of the conversation. My 4 August blog summarized it honestly, and not only because I believed that the ACO had recorded it and could use it to prove me wrong. If he did not forget about it, he knew it was bad enough, though likely long since forgotten by its readers, but the recording, with the risk of disclosure from an IPRA request, was far worse. So, poof! Evidence? What evidence?
The question abides: why such defensiveness, persistent to this day and even, perhaps especially, on Police Chief Jeremy Story’s watch, about five false allegations of animal code violations? A third blog in this trilogy will attempt to answer it.
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