Anson Stevens-Bollen
News
The Santa Fe Police Officers Association would prefer you didn’t know about members’ on-duty misconduct.
Why?
For one, publicity of punishment for a policy violation—be it a letter of reprimand, a 40-hour unpaid suspension or, in the rare case, termination—could keep city cops from landing a job at another department.
And another thing: Everyday folks learning that a cop has been in trouble at work would violate the US Constitution by depriving those in blue of a due process hearing (though it’s not clear how, even in the union’s view).
For years, SFR has sought the association’s perspective on whether officer discipline should be public record; for years, we’ve heard a faint chirping sound.
The union’s take comes from a June 17 legal brief arguing that SFR’s ongoing lawsuit against the City of Santa Fe and former police records custodian Greg Gurule seeking to force cop discipline into the sunlight should be bounced out of court.
In short, the union has adopted the city’s long-held position: The fact that a police officer—or any other municipal employee—has been disciplined is not a fact but, rather, a “matter of opinion” that can be kept from public view under an exception in the New Mexico Inspection of Public Records Act (IPRA).
The local chapter of the American Federation of State, County and Municipal Employees (AFSCME) also has filed a brief in support of the city’s secrecy policy.
SFR disagrees. After Gurule denied our IPRA request for four officers’ disciplinary records in 2019, the newspaper sued the city, arguing a suspension or a firing is a fact, not an opinion. In October, First Judicial District Judge Bryan Biedscheid issued a mixed-bag ruling, giving SFR and the city each a partial victory.
There’s been some appealin’ since then—and lots of legal papers flyin’.
The case is now in the state Court of Appeals. The New Mexico Foundation for Open Government, along with a couple other newspapers and TV stations, have thrown in with SFR in an amicus brief; the two city unions filed briefs supporting Mayor Alan Webber’s secrecy policy.
After briefing ends in mid-August, a panel of appellate judges will decide whether to schedule oral arguments and, either way, they’ll issue an order.
No dates have been set for all that yet.
However the dice tumble, there’s likely to be more appealin’, next to the New Mexico Supreme Court. And it could be years before the court rules on the key question: Should residents get to know when the government they pay for has disciplined an employee—including police, America’s most visible expression of state power?
SFR has for years pushed for transparency, exposing the city’s aversion to it in a 2017 cover story and pressing the issue in numerous follow-up stories. In litigation, SFR’s legal team of Daniel Yohalem and Katherine Murray have argued the Legislature never intended to shield public employees’ discipline records when it crafted IPRA in the 1970s or in subsequent major amendments to IPRA.
The state’s appellate courts have erred through the years, SFR argues, in cases that expanded the definition of “matters of opinion” to include the fact of discipline. Our newspaper wants the Appeals Court to follow the law, not those cases.
The city, however, wants to stick to the higher courts’ previous holdings, Assistant City Attorney Marcos Martinez writes, no matter how overbroad and in conflict with IPRA they may be.
But Martinez goes a step further.
Who could know, he muses in a June 10 reply brief, the difference between fact and opinion when sorting what should be released and what shouldn’t? In any case, it is wrong, unlawful and burdensome for SFR “to require record custodians to solve this epistemological riddle.”
SFR’s “position is unreasonable because the distinction between fact and opinion rests on a false distinction, impractical because no record custodian could implement it, and unfair because [SFR] wants to punish local public bodies that do not understand fact versus opinion as [SFR] does,” Martinez continues.
But is it really so hard to separate fact from opinion?
Longtime cop attorney Fred Mowrer penned the officers’ association’s supporting brief just two weeks before the union reached a contract agreement with the Webber administration that included raises for patrol officers, detectives and sergeants ranging from 1.2% to 6%—plus bonuses for lateral hires to SFPD from other departments and, thus, more union dues.
In his argument for continued secrecy, Mowrer notes the officers whose disciplinary records SFR sought in the underlying public records request are union members. But he makes no mention of officers who may be exonerated in the department’s Internal Affairs process; the city doesn’t release those records, either.
Should the Appeals Court rule in SFR’s favor, Mowrer cautions, our newspaper is “likely to target the disciplinary records of SFPOA’s members again in the future.”
(Narrator intones: SFR will continue doing so regardless of how this case turns out.)
Mowrer restates the city’s contention about the previous case law, imploring the Appeals Court to follow his interpretation of it, then moves on to his constitutional arguments.
Disclosure of discipline could prevent officers “from getting an additional law enforcement position in the future,” he writes.
New Mexico cops often catch serious discipline at one department, then, because their punishment is a secret, land at another, unsuspecting law enforcement agency, where they again engage in misconduct leading to constitutional rights violations and expensive lawsuits. The issue has long bedeviled the state; at least three New Mexico attorneys general and numerous other officials have decried the phenomenon.
Mowrer also complains that “employees have a due process right to a hearing to clear their name if their reputations have been impugned,” and they wouldn’t get such a hearing if their discipline was made public.
Presumably, officers and other public employees are afforded a chance through the city’s disciplinary process to rebut investigators’ findings and achieve a lesser punishment or none at all. SFR wouldn’t know—because the city refuses to disclose anything about its disciplinary and punishment systems.
Stephen Curtice of the Youtz Valdez law firm writes in support of the city on behalf of AFSCME that discipline secrecy “has become the settled expectation of public employers, public employees and the labor unions such as AFSCME representing those public employees.”
The Appeals Court and, likely the Supreme Court thereafter, will get the final say in whether the government and its employees should continue to expect the same.
