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United States v. City of Albuquerque

United States District Court, D. New Mexico

August 13, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
THE CITY OF ALBUQUERQUE, Defendant
v.
THE ALBUQUERQUE POLICE OFFICERS' ASSOCIATION,

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE

         This matter is before the Court on the City of Albuquerque's Motion for Court Acceptance of the City's Proposed Promotional Policy, filed on May 29, 2018. The Court held a hearing on the motion on July 23, 2018. (See Docs. 390; 393.) Having considered the submissions and arguments of counsel and relevant law, the Court will GRANT IN PART the City's motion.

         The parties have been working on an updated promotional policy for the Albuquerque Police Department (APD) since 2015.[1] (See Doc. 238 at 2.) “Pursuant to the Court-Approved Settlement Agreement (CASA) and a Collective Bargaining Agreement between the City and the” Albuquerque Police Officers' Association (APOA), “the APOA [has] provided feedback to the City about the new Policy throughout the lengthy review and revision process.” (See Doc. 268 at 1.) The parties have also sought Court guidance to clarify certain terms and mediate several disputes regarding the definitions and terms of the Policy. (See Docs. 238; 268.)

         While the parties have made some headway toward a policy that is satisfactory to both sides, three disputes remain that require input from the Court: (1) how long the promotional eligibility lists should last before they expire; (2) how many hours of disciplinary action should be used in the definition of “just cause”; and (3) whether the Policy may incorporate the “rule of three” for promotional decisions, or whether the Chief must select the candidate based on seniority. (See Docs. 374; 378.)

         I. Expiration of the promotional eligibility list.

         Part of the promotional process involves creating a list of candidates who are eligible for promotion. (See Doc. 374-1 at 8-9.) Section 13(D) of the current proposed promotional policy (the “2018 Policy”) provides that any promotional eligibility list will expire two years after the list is created. (Id. at 9.) “Individuals on a promotional list who are not promoted by the expiration date of the list must retest in a future promotional process to be considered for promotion.” (Id.) The City's 2016 version of the Policy (the “2016 Policy”) had promotional eligibility lists expire after only one year. (See Doc. 198-1 at 8.) The 2014 Policy provided for a perpetual list which would operate “from the date of its publication unless the list has been depleted.” (Doc. 206-5 at 10.)

         The APOA would like to extend the expiration date of promotional eligibility lists in the 2018 Policy to 30 months, if not longer. (See Doc. 378 at 2-3.) After the City changed the Policy in 2016, officers have filed at least one “Prohibited Practice Complaint” with the Albuquerque Labor-Management Relations Board, one civil lawsuit in the Second Judicial District Court, and two claims that are scheduled to be heard (though it is unclear who will hear the claims) in July 2018. (See id.)

         The City does not want a perpetual list, because it “may unnecessarily delay the start of a new process if officers are under investigation or otherwise suspended from the list.” (Doc. 374 at 2.) The City argues that “an expiration date ensures that all individuals on the list are currently competent and knowledgeable of Department procedures and policies.” (Id.)

         The Court finds that a two-year expiration date is reasonable. As the City mentioned at the hearing, it knows of no city in the country that has a perpetual list. (See Doc. 393 at 5:16-19.) Even two years seems to be an exceptionally long time where APD's policies shift and adapt as the Department continues to find more effective ways to comply with the CASA. It is critical to promote officers who have demonstrated a current understanding of and adherence to APD's policies and who will lead the APD into full compliance with the CASA. The Court will grant the City's motion on this issue.

         II. Definition of “just cause.”

         Section 8(Y) of the 2018 Policy defines “just cause” in part to “mean only those disciplinary issues that normally disqualify a candidate from promotion eligibility to a position sought, as defined in Section[s] 11 and 22 of the policy, including: 1) sustained discipline[2] for complaints of misconduct that have resulted in a penalty greater than a written reprimand . . . .” (Doc. 374-1 at 3.)

         Section 11(A)(1) of the City's 2018 Policy describes when disciplinary action will render a candidate ineligible to participate in the promotional process. (Doc. 374-1 at 7.) The language in section 11(A) is mandatory. (Id.) Section 11(A)(1) provides that a candidate will be ineligible to participate where s/he has “sustained disciplinary action, equal to or greater than a [40] hour suspension, within the [12] month period immediately preceding the written examination . . . .”[3](Id.)

         “The APOA believes that sustained discipline for complaints of misconduct should only be considered when resulting in disciplinary hours of 160 hours received within one year preceding being considered eligible for promotion” for sections 8(Y) and 11(A)(1). (Doc. 378 at 4, 5.) The APOA believes this is important both because “[t]he former Chiefs administered discipline in amounts of 160 hours routinely[, ]” and because the Chief's discretion is more limited when the policy allows for a greater number of hours. (Id.)

         Sections 11(B)(1)-(3) describe when a person may, at the Chief's discretion, be rendered ineligible for promotion. (Doc. 374-1 at 7.) In this section, a candidate may be ineligible if s/he has sustained 16-39 hours of suspension in the 12 months preceding the promotional process, or 20 hours in a two-year period preceding the process, or 80 hours in a five-year period preceding the process. (Id.) The APOA would like to increase those hours: 160 hours for 12 ...


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