Ex-Española officers'
appeals of state sanctions raise questions over conflicts of interest within
oversight board for law enforcement personnel
By Lou Mattei
SUN News Editor
SUN News Editor
Published:
Thursday, April 5, 2012 10:06 AM MDT
Two Rio Arriba County
cops are at the center of an ongoing debate over what some see as a deep-seated
conflict of interest within the quasi-judicial body that oversees police
misconduct cases statewide.
Last August, Vince Crespin, a former Española Police officer and currently a lieutenant in the Sheriff’s Office, temporarily lost his police certification from the state Law Enforcement Academy. The 120-day suspension stemmed from criminal charges, later dismissed, accusing Crespin and two other city officers of embezzling money from the city. Crespin and his attorney Rudy Martin fought the suspension in front of the Academy Board, which is responsible for administering such sanctions.
The same sequence of events is true of former city officer and current Sheriff’s deputy Gabe Gonzales, whom Martin is also representing.
Before the Board, Martin raised questions over what he called “a gross conflict of interest” rooted in the fact that the state Attorney General’s Office collects evidence against officers accused of misconduct, helps decide what evidence can be admitted in a hearing and recommends sanctions against officers — all within the scope of a single case. Furthermore, the statutory chairman of the Board is Attorney General Gary King.
Last August, Vince Crespin, a former Española Police officer and currently a lieutenant in the Sheriff’s Office, temporarily lost his police certification from the state Law Enforcement Academy. The 120-day suspension stemmed from criminal charges, later dismissed, accusing Crespin and two other city officers of embezzling money from the city. Crespin and his attorney Rudy Martin fought the suspension in front of the Academy Board, which is responsible for administering such sanctions.
The same sequence of events is true of former city officer and current Sheriff’s deputy Gabe Gonzales, whom Martin is also representing.
Before the Board, Martin raised questions over what he called “a gross conflict of interest” rooted in the fact that the state Attorney General’s Office collects evidence against officers accused of misconduct, helps decide what evidence can be admitted in a hearing and recommends sanctions against officers — all within the scope of a single case. Furthermore, the statutory chairman of the Board is Attorney General Gary King.
“You
can’t get a fair hearing like that,” Martin said. “They’re not going to rule
against their own employees.”
Martin said when he raised these questions during the two officers’ hearings, the Board “totally blew that away” and “didn’t even consider it.”
Martin compared the relationship between King and his employees working on Academy cases to a sort of inner-family tribunal.
“Say for example my son and I are both attorneys, and my dad is the attorney general — he’s the director of the board I’m presenting evidence to,” Martin said. “I’m the prosecutor. I get to put on the case. Then my son is the one advising the hearing officer in the case and writing the officer’s decisions. My son is going to write decisions that favor me because he doesn’t want to overrule his dad. And my dad is going to uphold those decisions, never mind that the other side worked their butt off.”
Martin said a similar relationship tainted the cases of Crespin and Gonzales, with assistant attorneys general Matt Jackson and Zach Shandler serving as prosecutor and advising the hearing officer, respectively, and King filling the metaphorical role of patriarch.
“Do you think I have a snowball’s chance in hell?” Martin said. “No.”
Martin raised other issues with this arrangement specific to his clients’ cases, most notably, he said, that the Academy prosecutor failed to present any evidence of wrongdoing to support the recommended suspensions, which were upheld by the Board.
“These guys are mainly cops who sit on the Board, and with law enforcement, you’re guilty until proven innocent,” Martin said. “They don’t understand how the law is supposed to work. It’s just insanity sometimes.”
Martin and the officers have appealed the Board’s decision to state District Court in cases that are still pending. But Martin’s arguments became part of a lengthy discussion at the Board’s March 1 meeting in which several Board members expressed support for changing the role of the Attorney General’s Office in prosecuting Academy cases.
Board member Nate Korn, an Albuquerque attorney, referenced Martin’s arguments in making his own case that it is a conflict of interest for the Attorney General’s Office to both prosecute and recommend sanctions for alleged officer misconduct, meeting minutes show.
“Consider that Zach Shandler as the hearing officer counsel advises our hearing officer on matters that come before him from his brother prosecutor, another (attorney general),” Korn said. “And then after he advises the hearing officer about what evidence his brother (attorney general) has given, he then writes up the decisions for the hearing officer. And then after he writes the decision that the hearing officer signs, he comes before the Board at the time we do our closed meetings and advises us in the Board room. Now, you think about this. If we were an accused officer, would we feel very comfortable with the fairness of this process? And the answer is no.”
Korn told the Board he’s seen several defense attorneys, including Martin, raise this issue but the Board has never addressed it.
Korn also pointed out a conflict of interest with Shandler serving as the Board’s counsel but also being an employee of King.
“Now, imagine, just imagine you were the assistant (attorney general) being asked by your boss to pass on whether what he was doing was improper or illegal,” Korn said. “Imagine the conflict that puts you in.”
Korn goes on to detail several other issues with the Academy’s cases, including most prominently a two-year backlog in prosecutions and “acrimony” between the Academy, the Board and members of King’s staff.
“This is distrust that can never be regained,” Korn said. “This is a situation that’s bad, that can never be reworked. If we were private industry, the law firm of the Attorney General’s Office would be out on their ear so quick it would make your head spin. And that’s what I’m advocating for this Board. I’m advocating that this Board fire the Attorney General’s Office. We can do it. And there’s no reason not to.”
Shandler, who did not return a call for this story, responded to Korn’s remarks with specific reference to the Crespin case, saying the “case may be lost” due to “a Board member admitting there’s a conflict of interest.” However, he presented a state Supreme Court decision from 1982 having to do with telephone book advertising that resolved it was not a legal conflict of interest for lawyers from separate divisions within the Attorney General’s Office to serve in two separate roles within the scope of a single case.
Board members Robert Shilling, the State Police chief, and Raymond Schultz, the chief of the Albuquerque Police Department, voiced support for Korn’s idea anyway.
“It’s the perception issue we’re dealing with day in and day out,” Shilling said. “And I deal with it daily and I’m sure Chief Schultz does as well and other law enforcement administrators. Just the perception of an internal affairs process and how it’s viewed by the rank-and-file out in the field regardless of what a court may say or an administrative rule may say.”
Assistant attorney general Scott Fuqua shot back that “the courts don’t really care about perception.”
“The question in that (Supreme Court) case is was the discipline handed down by this Board so infected by a conflict of interest that a district court should reverse it?” Fuqua said. “The answer to that question from the Supreme Court is pretty clearly no.”
King largely stayed out of the discussion but ultimately ruled Korn’s motion to “fire the Attorney General’s Office” would violate the state Open Meetings Act because the item had only appeared on the Board’s meeting agenda as “conflict of interest.”
“I think that it would be wildly inappropriate for us to vote on a motion that has not been adequately noticed on the agenda,” King said.
Messages left for King were not returned.
The two sides ended up settling on a compromise for the time being, authorizing the Academy director to serve as a prosecutor in cases that come before the Board, which King said he already had the authority to do. That motion passed unanimously.
Korn declined to comment for this story, saying he felt it would be more fair to restrict his comments to those made on the record in front of the Board. Crespin and Gonzales deferred comment to their attorney, Martin.
The Board’s next meeting is slated for April 17 in Las Cruces. An agenda had not been published as of Monday.
Korn indicated March 1 he would make sure the agenda included an item to more adequately address the conflict of interest problem.
“Does this Board want to stand above the clouds and in the blue and say we’re not going to countenance anything that looks like a conflict of interest or does this Board want to say, oh, we’re going to squirm down there with the directory advertising and have that say that there’s no conflict of interest if the rest of us feel there is obviously a conflict of interest?” Korn said.
Martin said when he raised these questions during the two officers’ hearings, the Board “totally blew that away” and “didn’t even consider it.”
Martin compared the relationship between King and his employees working on Academy cases to a sort of inner-family tribunal.
“Say for example my son and I are both attorneys, and my dad is the attorney general — he’s the director of the board I’m presenting evidence to,” Martin said. “I’m the prosecutor. I get to put on the case. Then my son is the one advising the hearing officer in the case and writing the officer’s decisions. My son is going to write decisions that favor me because he doesn’t want to overrule his dad. And my dad is going to uphold those decisions, never mind that the other side worked their butt off.”
Martin said a similar relationship tainted the cases of Crespin and Gonzales, with assistant attorneys general Matt Jackson and Zach Shandler serving as prosecutor and advising the hearing officer, respectively, and King filling the metaphorical role of patriarch.
“Do you think I have a snowball’s chance in hell?” Martin said. “No.”
Martin raised other issues with this arrangement specific to his clients’ cases, most notably, he said, that the Academy prosecutor failed to present any evidence of wrongdoing to support the recommended suspensions, which were upheld by the Board.
“These guys are mainly cops who sit on the Board, and with law enforcement, you’re guilty until proven innocent,” Martin said. “They don’t understand how the law is supposed to work. It’s just insanity sometimes.”
Martin and the officers have appealed the Board’s decision to state District Court in cases that are still pending. But Martin’s arguments became part of a lengthy discussion at the Board’s March 1 meeting in which several Board members expressed support for changing the role of the Attorney General’s Office in prosecuting Academy cases.
Board member Nate Korn, an Albuquerque attorney, referenced Martin’s arguments in making his own case that it is a conflict of interest for the Attorney General’s Office to both prosecute and recommend sanctions for alleged officer misconduct, meeting minutes show.
“Consider that Zach Shandler as the hearing officer counsel advises our hearing officer on matters that come before him from his brother prosecutor, another (attorney general),” Korn said. “And then after he advises the hearing officer about what evidence his brother (attorney general) has given, he then writes up the decisions for the hearing officer. And then after he writes the decision that the hearing officer signs, he comes before the Board at the time we do our closed meetings and advises us in the Board room. Now, you think about this. If we were an accused officer, would we feel very comfortable with the fairness of this process? And the answer is no.”
Korn told the Board he’s seen several defense attorneys, including Martin, raise this issue but the Board has never addressed it.
Korn also pointed out a conflict of interest with Shandler serving as the Board’s counsel but also being an employee of King.
“Now, imagine, just imagine you were the assistant (attorney general) being asked by your boss to pass on whether what he was doing was improper or illegal,” Korn said. “Imagine the conflict that puts you in.”
Korn goes on to detail several other issues with the Academy’s cases, including most prominently a two-year backlog in prosecutions and “acrimony” between the Academy, the Board and members of King’s staff.
“This is distrust that can never be regained,” Korn said. “This is a situation that’s bad, that can never be reworked. If we were private industry, the law firm of the Attorney General’s Office would be out on their ear so quick it would make your head spin. And that’s what I’m advocating for this Board. I’m advocating that this Board fire the Attorney General’s Office. We can do it. And there’s no reason not to.”
Shandler, who did not return a call for this story, responded to Korn’s remarks with specific reference to the Crespin case, saying the “case may be lost” due to “a Board member admitting there’s a conflict of interest.” However, he presented a state Supreme Court decision from 1982 having to do with telephone book advertising that resolved it was not a legal conflict of interest for lawyers from separate divisions within the Attorney General’s Office to serve in two separate roles within the scope of a single case.
Board members Robert Shilling, the State Police chief, and Raymond Schultz, the chief of the Albuquerque Police Department, voiced support for Korn’s idea anyway.
“It’s the perception issue we’re dealing with day in and day out,” Shilling said. “And I deal with it daily and I’m sure Chief Schultz does as well and other law enforcement administrators. Just the perception of an internal affairs process and how it’s viewed by the rank-and-file out in the field regardless of what a court may say or an administrative rule may say.”
Assistant attorney general Scott Fuqua shot back that “the courts don’t really care about perception.”
“The question in that (Supreme Court) case is was the discipline handed down by this Board so infected by a conflict of interest that a district court should reverse it?” Fuqua said. “The answer to that question from the Supreme Court is pretty clearly no.”
King largely stayed out of the discussion but ultimately ruled Korn’s motion to “fire the Attorney General’s Office” would violate the state Open Meetings Act because the item had only appeared on the Board’s meeting agenda as “conflict of interest.”
“I think that it would be wildly inappropriate for us to vote on a motion that has not been adequately noticed on the agenda,” King said.
Messages left for King were not returned.
The two sides ended up settling on a compromise for the time being, authorizing the Academy director to serve as a prosecutor in cases that come before the Board, which King said he already had the authority to do. That motion passed unanimously.
Korn declined to comment for this story, saying he felt it would be more fair to restrict his comments to those made on the record in front of the Board. Crespin and Gonzales deferred comment to their attorney, Martin.
The Board’s next meeting is slated for April 17 in Las Cruces. An agenda had not been published as of Monday.
Korn indicated March 1 he would make sure the agenda included an item to more adequately address the conflict of interest problem.
“Does this Board want to stand above the clouds and in the blue and say we’re not going to countenance anything that looks like a conflict of interest or does this Board want to say, oh, we’re going to squirm down there with the directory advertising and have that say that there’s no conflict of interest if the rest of us feel there is obviously a conflict of interest?” Korn said.
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Misconduct.