I. Introduction, Scope of Investigation, and Synopsis of Findings ...............................................

A. Introduction ....................................................................................................................1

B. Scope of Investigation....................................................................................................1

C. Synopsis of Findings ......................................................................................................7

II. Process .......................................................................................................................................9

III. Background ..............................................................................................................................13

A. Structure of the Academy ............................................................................................13

B. Academy Culture and Environment .............................................................................16

IV. Complaints ...............................................................................................................................23

A. Memo re Cadet Christine E Exit Interview ........................................................23

1. Body Weight Comment ....................................................................................25

2. Firing Range Ridicule .......................................................................................26

3. Females Unsupported in Physical Training and Treatment of Injuries ............27

4. Defensive Tactics ..............................................................................................30

5. Nepotism ...........................................................................................................31

6. Discussion about E Concerns ................................................................32

7. Response to E Concerns .........................................................................35

B. Cadet Z Complaint and Tort Claim Notice .........................................................38

1. Nan Z Complaints – Introduction .............................................................38

2. Cadet Z ’s Employment and Pre-Academy APD Performance at APD ......41

3. Cadet Z ’s Allegations .................................................................................45

4. Findings..............................................................................................................60

C. Commander Byrd Retaliation Against Officer G ...............................................60

i
D. Potential Complaint relating to Cadet M Instructions ........................................65

E. Email to Governor’s Office ..........................................................................................66

F. Cadet Sexual Orientation Comments (April 17, 2020 Incident) .................................70

1. Reporting and Documentation ...........................................................................70

2. Discipline Charge Sheet and Allegations of Falsification .................................77

3. Discipline ...........................................................................................................80

4. Discussion and Findings ....................................................................................84

5. Confusion Regarding Status and Related Policies .............................................89

G. Allegations Against Wayne D ........................................................................91

H. Anonymous Email Allegations .....................................................................................93

1. Permitted or Ignored D behavior ..........................................................94

2. Cadet Homophobic Behavior/Sexual Orientation Comments ..........................95

3. Prior Instances of Discrimination and Harassment Being Buried ........ ...........95

4. APD Permits Discrimination ............................................................................96

I. Retaliation for Anonymous Email .................................................................................96

1. Allegations .......................................................................................................96

2. Findings............................................................................................................99

3. Mitigation.........................................................................................................99

4. Recording .......................................................................................................100

J. Darrick G Complaint ...........................................................................................102

K. Crystal S Complaint ............................................................................................102

1. Inappropriate Racial Comments .....................................................................102

2. Other Concerns ................................................................................................108

ii
Exhibit OO: 5/22/20 Email from Chief G to Melissa K

Exhibit PP: 5/26/20 Memo from Lt. S to Chief G

Exhibit QQ: 6/9/20 Email from Commander Byrd to Chief G

Exhibit RR: Compilation of positive comments made by Cadets

Exhibit SS: Policies– Harassment, Sexual Harassment, Reporting, Code of Conduct,

Retaliation, and Others

Exhibit TT: 2/21/20 D and S emails

Exhibit UU: Byrd-Text from S

Exhibit VV: 2019051 Org Chart

Exhibit WW: 202008 Org Chart

Exhibit XX: 201910 Org Chart

Exhibit YY: 5/13/20 Email from AB to CG and DS re D evals & addressing class

Exhibit ZZ: Timeline of Events

vi
 CONFIDENTIAL
November 20, 2020

this investigation are referred to collectively in this report as the “Complaints,” and each is referred

to individually as a “Complaint.”

Chief G indicated that he would like me to conduct two separate investigations: one

relating to the Complaints he described as being against the basic training staff, and another on the

Complaints against Commander Byrd. He also indicated that he would like me to investigate the

Complaints against the basic training staff first. 3 I discussed the Chief’s preferences with Ms.

K . She explained that the allegations in the Complaints appeared to be intertwined and to

relate to several of the same issues, and that I should investigate all of them at the same time.

The two matters referenced in the anonymous email mentioned above that I was initially

instructed not to include in the investigation are allegations that outside instructor Wayne D

had made inappropriate racial and misogynist comments, and allegations of inappropriate

comments about sexual orientation made by Cadet Braden F to another Cadet (the “April 17,

2020 incident”). Ms. K explained that the alleged comments made by Mr. D were

the subject of a separate investigation. Ms. K did ask me to investigate concerns about

reporting and handling of the April 17, 2020 incident. On June 29, 2020, Ms. K revised her

instructions and requested that I include the April 17, 2020 incident in the investigation. 4

3
I do not know why Chief G wanted the investigation to proceed against the basic training
staff first. As noted in the Second Preliminary Summary Report (as corrected) (August 31,
2020), I became concerned about the possibility that he was assuming complaints about Basic
were true, was prepared to take disciplinary action against at least one Basic staff member based
on allegations, and was willing to do so prior to completion of a full investigation. (See Exhibit
BB, Second Preliminary Summary Report (as corrected) pp. 15-19).
4
As this investigation progressed, I learned that Internal Affairs (“IA”) was also investigating this
incident.
3
 CONFIDENTIAL
November 20, 2020

Except as described above, neither Ms. K nor anyone else in the Legal Department

provided instructions regarding the scope or manner of my investigation. I was authorized to

interview any witnesses I thought should be interviewed, to ask questions I thought should be

asked, and to review documents I requested. Neither Ms. K nor anyone else in the Legal

Department said or did anything that could be construed as an effort to influence the direction or

outcome of this investigation.

After I reviewed the initial set of Complaints, APOA Section 20.1, and NMSA § 29-14-4,

I prepared some recommended language regarding the nature of the allegations being investigated

for APD Human Resources Administrator Karmela O to consider in preparing the Notices of

Investigation (“NOIs” or “target letters”) to be sent to witnesses. Paralegal Suzanna T and

I began scheduling witness interviews through Commander Zack C on June 12, 2020, the

day after the first set of NOIs were sent to the witnesses. Commander C was extremely

helpful and responsive in assisting with scheduling and providing documents requested.

APOA Section 20.1.16 requires that any administrative investigation be completed within

ninety days but allows for one thirty-day extension. Out of an abundance of caution, dates were

calculated based on receipt of the assignment on May 22, 2020. Because this investigation

ultimately included more than thirty-two (32) separate Complaints, several of which included

multiple allegations, on August 17, 2020, a thirty-day extension, until September 18, 2020, was

granted. On September 16, 2020, the Union and City agreed to a further extension until October

26, 2020 for completion of this report. 5 (See Exhibit E, Byrd I 45:2-16). I completed all interviews

5
The additional extension was also necessary because pandemic-related logistics caused work
processes to take extra time, because of the delay in receiving interview transcripts, and because
5
 CONFIDENTIAL
November 20, 2020

by August 28, 2020. A draft of Part I of this report, relating to the Complaints against Commander

Byrd, was provided to Ms. K on October 20, 2020, and a draft of Part II of this report, relating

to the other Complaints, was provided to Ms. K on October 26, 2020. I planned to combine

the two Parts to create one consolidated report, which would be sent to Ms. K on October

26, 2020, with a consolidated set of Exhibits to be provided the next day. 6 I had expressed

frustration over my inability to finish both parts of the report sooner than I did, and over my related

frustration about not having had a chance to review, proofread, and revise the consolidated report

to correct any errors and to reorganize it so it could be read as one document rather than two

combined but disjointed parts. Ms. K gave me permission to review, correct, and reorganize

it. On November 3, 2020, I received an email with some questions Ms. V had asked about

drafts of Parts I and II of this report. This final report is a consolidated report containing the

information contained in the drafts of Parts I and II, and includes revisions designed to answer the

questions asked by Ms. V . The findings and conclusions stated in this final report are the

same as those explained in the drafts of Parts I and II sent to Ms. K on October 20, 2020 and

October 26, 2020.

of longstanding plans I had made to be unavailable between September 7, 2020 and September 30,
2020. I rescheduled my plans in an effort to complete this report, to be away from September 19,
2020 until October 9, 2020, but was not able to complete this report by September 18, 2020. I
greatly appreciate the generosity of the APOA and the City in agreeing to the second extension.
6
This investigation was conducted and this report prepared while COVID-19 precautions were in
place. I and most others with our law firm were (and are) working remotely. Documents and
confidential materials are maintained on the firm’s server. Various seemingly routine tasks such
as compiling, bookmarking, and printing hundreds of pages of documents are more time
consuming than under customary circumstances. City and other offices were also closed on
October 26, 2020 because of a snow storm.
6
 CONFIDENTIAL
November 20, 2020

C. Synopsis of Findings.

My findings on each of the Complaints investigated are included in the discussion of each

of the Complaints. My decisions were based on a preponderance of the evidence 7 and on my

opinions relating to the credibility of witnesses and information. The specific findings stated and

discussed in this report are listed below.

1. Allegations [several separate allegations] in memo re Officer E exit interview not

sustained.
2. Complaints alleging discrimination, harassment, bullying, hazing and other violations by
Cadet Nan Z not sustained.
3. Complaint against Commander Byrd alleging retaliation against Officer G
sustained.
4. Complaint against Commander Byrd alleging retaliation based on Officer’s girlfriend’s
email to Governor sustained.
5. Cadet Sexual Orientation Comments (April 17, 2020 Incident).
a. Not Sexual Harassment per policy definitions.
b. Was inappropriate, violated Code of Conduct.
c. Special Order re reporting to IA – confusion on applicability
i. Was reported to IA, source not known.
ii. Possible discipline of Sgt. M not warranted.
d. Overlapping investigation with IA.
6. Chief G allegations regarding falsified Discipline Charge Sheet in Cadet file not
sustained.
7. Anonymous Email. The allegations in the Anonymous Email are not sustained.
8. Complaint against Commander Byrd alleging retaliation based on Anonymous Email
sustained.
9. Complaint alleging failure to wear PPE not sustained.

7
“Evidence” refers to information I received in interviews and in documents. It does not mean
that the information as presented to me would be admissible in court.
7
 CONFIDENTIAL
November 20, 2020

M , Officer D , Officer W , Officer T , Officer N , and Officer

R the option of meeting with me in person at my office on the condition of strict adherence to

distancing and other pandemic precautions. I rescinded the offer to interview Sergeant M

in person when the New Mexico Public Health Order restrictions were tightened. Chief G

Officer A , and Officer W accepted the offer to be interviewed in person.

Commander Byrd elected to be interviewed by Zoom. Five of the witnesses were represented by

legal counsel who sat in on the interviews. A list of the witnesses I interviewed is provided in

Exhibit D. A union representative attended one of the witness interviews. I recorded all of the

interviews, although I neglected to turn on the recorder at the beginning of, or after a break, in a

few of the initial interviews. I took notes during all of the interviews. Pursuant to instructions from

the City’s Legal Department, the interviews were transcribed by a professional court reporter

service. 8

The interviews were limited to two hours duration at a time, which prevented me from

completing some of them in one sitting. I advised each witness of their right to receive a copy of

the recording or interview transcript after the investigation is complete. Copies of all interview

transcripts are attached as Exhibit E. 9 Several of the transcripts include misspelled names and

specific phrases. At least some of the identified misspellings are listed on Exhibit E. I neglected

to note the presence of counsel in one of the interviews; this is noted on Exhibit D. I conducted

8
Per prior authorization, in order to have transcripts to review to prepare for other interviews, a
few of the interviews were also transcribed in our office. I did not receive a complete set of
transcripts until September 2, 2020, when I received the last batch of transcripts from the court
reporter.
9
This report includes several relevant interview transcript citations, but I have not attempted to
include all relevant citations.
9
 CONFIDENTIAL
November 20, 2020

an earlier class because she had been identified by a temporary employee in the Backgrounds Unit

(Marshall D ) as someone who might have been discriminated against. She said that she had not

been discriminated or harassed in any way. I wanted to interview another Cadet from a prior Class

who Mr. D also suggested I interview, but that Cadet was on FMLA leave.

During this investigation, I asked open-ended questions about the issues being investigated.

Unless I had a reason to believe the witness might know about something specific, I did not ask

questions about specific allegations. The follow-up questions I asked were based on the witnesses’

answers to the initial questions. For example, I asked something like, “Did you witness or hear of

any incidents in which one Cadet made an inappropriate comment to another Cadet about their

sexual orientation?” instead of asking questions about Cadet F ’s comments to Cadet T .

At the beginning of each interview, I described the investigation as including allegations of

unprofessional conduct, abuse of authority, retaliation, discrimination and harassment on the basis

of sex and national origin, and violation of the no smoking policy. 10 I also said that it involved

complaints filed by Officers and Cadets against Commander Byrd, complaints by a former Cadet

against Academy staff, a Complaint about inappropriate comments by one Cadet to another (and

the process on how that was handled), 11 and a complaint by a staff member alleging an Instructor

made some racist remarks. I told the witnesses that I was also looking into some concerns

expressed by a Cadet who graduated but resigned before starting Field Services Training (“FTEP”

or “OJT”). I advised the witnesses of whether they were the subject (target) of the investigation,

10
This is not an exact quote. I did not use the exact same language to describe the investigation at
the start of each interview.
11
In the earlier interviews I asked about the process, but not about the actual incident.

12
 CONFIDENTIAL
November 20, 2020

and, where APOA Section 20 required, identified the source of the Complaint. Neither City Legal

nor anyone else at the City gave me any instructions on how to conduct this investigation, restricted

who I talked to, or limited the numbers of interviews I conducted. Ms. K and Ms. V

did ask me about the status of this investigation and the estimated completion date. I prepared

Preliminary Summary Reports for City Legal, submitting one on August 10, 2020, and submitting

a second on August 28, 2020 (corrected on August 31, 2020). (See Exhibits CC and BB,

respectively, for the Preliminary Summary Reports).

I reviewed the documents listed on Exhibit G and conducted some limited legal research

on allegations of discrimination based on language abilities and on law enforcement training.

III. Background.

A. Structure of the Academy.

The Albuquerque Police Department Academy provides training for experienced police

officers and newly hired recruits. Commander Angela Byrd, Director of Training, had overall

responsibility for the Academy. At the beginning of this investigation, Commander Byrd reported

directly to Chief G . It is my understanding that the organizational structure changed during this

investigation, so that she reported to Deputy Chief Eric G . Based on recent newspaper reports,

I understand that Commander Byrd’s employment with APD has recently been terminated.

In addition to the most recent leadership change, the structure of the Academy changed

somewhat during the course of this investigation. In general, training at the Academy is provided

by different groups, referred to in this report for ease of reference as “units.” The training units

include the Advanced Training Unit (“Advanced”), Basic Training Unit (“Basic”), the Reality

13
 CONFIDENTIAL
November 20, 2020

would help me understand exactly what I was investigating and that the answer might shed some

light on the actual Complaints. I wondered if any of the Complaints had been filed to defend the

complainant from allegations made in one of the other Complaints, or to defend the complainant

from some sort of pending disciplinary action. I did not receive any information that led me to

believe that anyone had filed a Complaint to protect themselves from disciplinary action, or to

defend themselves from allegations made against them. The information I received did help me

piece together some opinions about why so many Complaints had been filed, and how a variety of

seemingly separate events combined to create an unpleasant, possibly hostile, 19 working

environment at the Academy. Based on what I learned during this investigation, I think the culture

at the Academy during the spring of 2020, and possibly from soon after Commander Byrd took

over, was a culture of fear and mistrust. I think there were several contributing factors, including

a lack of clear communication about goals and expectations when Commander Byrd took over,

some specific incidents when Academy staff felt punished for speaking out about safety and other

concerns, instances in which Commander Byrd did not follow the chain of command (thereby

making more junior officers uncomfortable and more senior officers feel uninformed), and

concerns by Basic staff relating to the possible elimination of their jobs.

At the start of this investigation, Chief G explained that the Basic and Advanced Units

were separated, and that, in his mind, those in the Basic Unit viewed themselves – and were viewed

by others as seeing themselves – as elite. My understanding was that Chief G saw the Basic

unit as a “clique” that negatively impacted the Academy’s ability to fulfill its training mission and

19
By this, I mean a hostile work environment based on factors other than race or other protected
category.
17
 CONFIDENTIAL
November 20, 2020

to meet the conditions in the related Department of Justice Court Appointed Settlement Agreement

(“CASA”.) He and Commander Byrd wanted to reorganize the Academy to eliminate separate

training units, and they wanted to restructure the Instructor positions so that all Instructors taught

in more than one area. Chief G seemed to me to be very upset about the fact that the Basic staff

resisted this change. 20 He seemed determined to change the Instructor positions despite their

opposition.

[The] lieutenant went in and said we're not going to support you
So that's when I said, "Wait a minute.··Make sure
they know that's from me.··Okay?··Because if they don't
want to support me, then we're going to have an issue here.
….The union [said] you can't transfer the existing. But once
it's broke down, that's the way it will be rebuilt going forward….
So I wasn't that concerned because we did do it. It was
approved. Going ahead, we'll have two squads that are
interchangeable. They'll rotate so we don't get into this
kind of isolation. Because from what -- and I'm sure if
you talked to other staff members over there, you'll find
that this group was very elite, close, basically were not
respected by the other -- other -- the other instructors,
especially the advanced and the civilian staff.

(Exhibit E, G I 47:8-48:14; see also Geier I 45:19-46:20). Chief G mentioned that there

had been problems with the Basic staff in late 2019 and that he had received Complaints about

how Cadets were treated. I was not able to identify any problems or specific incidents involving

the Basic staff in late 2019, and did not find any Complaints relating to the treatment of Cadets,

except those included in this investigation. The first Complaint included in this investigation is

Lieutenant D memo about Officer E ’s April 1, 2020 exit interview. Chief G

20
In fact, some members of other Training units also resisted this, as did the APO. (Exhibit E,
M 24:1-25:21).
18
 CONFIDENTIAL
November 20, 2020

staff I talked to indicated a lack of respect for Basic staff. I got the impression that the Basic

staff, and Officer G who taught firearms to the Basic staff, are well respected by

longstanding Academy staff and by others who worked at APD before coming to the Academy.

Members of the Advanced units sometimes assist the Basic Unit by teaching specific

courses. The Basic Unit instructors are willing to assist Advanced, but their schedules are less

flexible because they are scheduled full time for six months of training at a time. Officer D

has taught emergency vehicle operations (“EVOC”) 22 at the FTEP, although CSO R told me

that Chief G would not allow her to do so this summer. Occasionally Cadets and Laterals will

take a course, such as the “Law Week” course taught by the District Attorney’s office. None of

the Academy staff members I spoke to expressed any unwillingness to assist staff members in

other training units.

All Academy staff members 23 participate in the Team Building Day, a Cadet orientation

program Commander Byrd instigated. Several of the Basic Instructors and others mentioned that

they initially resisted the idea of a Team Building Day but changed their minds and found it to be

a good program. Everyone who participates “wears the same shirt” – meaning that rank is not

identified. Lieutenant M also mentioned that Commander Byrd made some positive

changes to the curriculum, including eliminating “death by powerpoint” classes and

implementing the CASA-related training programs that were being developed before she came to

the Academy. (Exhibit E, M , 9:21-10:1, 10:7-18, 12:19-20 and 13:7-17).

22
I was surprised to learn that advanced training for APD’s experienced officers does not include
EVOC training.
23
As discussed in this report, Officer R was excluded from participating.
20
 CONFIDENTIAL
November 20, 2020

Gloria M , a sworn officer in the newly created CSA position, felt like Basic did not

treat her as a member of the team and did not help her. (Exhibit E, 7:24-8, 21:24:25, 24:6-15). She

mentioned that she thought the fact that she had come to the Academy from outside of APD made

it difficult to be accepted. I do not know whether she was or was not accepted. To the extent Basic

or other training staff members were reluctant to treat her as part of the team, I think that this may

have been due, at least in part, to the fact that she reported directly to Commander Byrd and was

in a newly created position that was not explained to other Academy staff. Because they were in

a culture that emphasizes the chain of command and prohibits fraternization, other non-ranking

officers may have found it difficult to consider Officer M as a member of their team. Civilian

employee Crystal S indicated that she did not feel well treated by some of the Basic staff, and

civilian employee Marshall D made some negative comments about the Basic staff. Ms. S ’

and Mr. D ’s comments are discussed below.

Those I asked told me that when Commander Byrd came to the Academy, she was

introduced to the Academy staff and that she made some general comments to the staff. Some of

the ranking officers said that she met with them and talked about the program. The officers I asked

said that Commander Byrd did not convey any information about her plans or working methods.

A few people also mentioned that she frequently said that she reported directly to the Chief, and

that they interpreted this as telling them that they should not question anything she did or said.

Although Commander Byrd did not report directly to the Chief until January 2020, some of the

witnesses mentioned that she had his ear from the time she started, and that she did not hesitate to

contact him. (See, e.g. Exhibit E, CSO R interview.) This, coupled with at least two of the

incidents described in this report – one involving Commander Byrd’s reaction to being told about
21
 CONFIDENTIAL
November 20, 2020

a firearms safety rule during a tourniquet class Commander Byrd taught before she was hired by

APD, and the other involving her response to being advised of a remedial firearms training policy

– show that any fear of speaking out was understandable. The fact that Officer D and

Sergeant M were transferred after they filed Complaints and after they and other Academy

staff resisted the reorganization efforts, and that Officer W and other Basic staff members

(but no Advanced staff members) were required to attend an FTEP refresher course (which could

indicate an upcoming transfer), also show that such fear was understandable.

Several other factors contributed to a difficult working environment in the spring of 2020,

including pandemic-related restrictions that resulted in many staff members working from home,

some courses (DT and RBT) having to be rescheduled because of physical contact requirements,

and the transfer out of the Academy of Cadet mentors. Although the Cadets in Class 122 were

praised for reporting Mr. D ’s inappropriate comments, they were threatened with not being

able to graduate when the anonymous email was received. Shortly after that incident, Sergeant

M and Officer D were transferred. Several Cadets mentioned that these transfers had

a negative effect. At the very least, it was unsettling. All of the Cadets I spoke to said very positive

things about the Basic Instructors and Sergeant M . Soon after the anonymous email was
24
received, there were protests against police officers in Albuquerque and across the country. In

the meantime IA began investigating the April 17, 2020 incident, and possibly other Academy-

related issues. Some of the Cadets were interviewed by IA.

24
A quick internet search shows that riots occurred in Albuquerque between May 29, 2020 and
May 31, 2020, early and mid-June, 2020 and again on August 2, 2020.
22
 CONFIDENTIAL
November 20, 2020

and gender. Her attorney, Mr. Tom Grover, summarizes her claims in his May 22, 2020 Tort

Claim Notice by saying, “During Ms. Z ’s tenure at the police academy, she was specifically

targeted and subjected to … bullying, hazing, harassment, emotional and mental abuse, was

mocked and ridiculed because of her Chinese accent, and was called racially based epithets by

APD personnel because she is Chinese.” (Exhibit A, pp. 32-33, Tort Claim Notice). Mr. G

asserts that Cadet Z is entitled to damages under the New Mexico Tort Claims Act (“TCA”)

and for violations of the New Mexico Human Rights Act (“HRA”) and the New Mexico

Whistleblower Protection Act (“WPA”) because she was forced to resign. In referring to the WPA

claim, Mr. G says that “these actions occurred following her communications of and

objections to misconduct to City employee.” He does not identify the referenced communications

and objections, the misconduct, or the City employee. Mr. G also does not explain the basis

for any TCA claim.

I investigated the allegations made by Cadet Z in her April 6, 2020 Complaint and

Tort Claim Notice except those relating to damages or any report of misconduct outside of the

specific allegations in her Complaints or in the documents I received during the course of this

investigation. None of Cadet Z ’s allegations that I investigated are sustained. The information

I received about Cadet Z ’s allegations is summarized below or in other parts of this report

referenced below. 47 Most of the interview transcripts included in Exhibit E include detailed

questions and answers regarding Cadet Z ’s claims. A compilation of some of the statements

47
Discussing all of the information I received regarding each of Cadet Z ’s allegations would
require a separate, lengthy, report. I would be happy to provide additional information about any
of Cadet Z ’s allegations or the basis for my findings.
46
 CONFIDENTIAL
November 20, 2020

to do this in English is not, in my legal opinion, discriminatory. The City’s job description for an

APD lateral hire officer outlines the essential functions of the position, including, among others,
50
things “interview[ing] victims, witnesses and suspects”. A lateral hire officer’s preferred skills

and abilities are being able to “understand, interpret and apply laws, regulations, policies, and

procedures,” and to “prepare clear and concise reports.” (Exhibit MM).

Cadets and Academy staff members whom I spoke to said that both Cadets and Instructors

worked with Cadet Z to help her communicate clearly. Cadets took turns leading the Class in

PT exercise and, when doing so, were required to issue clear, concise commands. Team Leaders

were required to make specific statements and say things in specific ways when reporting to the

Team Supervisors in the mornings. All Cadets who did not speak clearly, loudly enough, or say

the commands or verbally report information as specified were required to start over and say the

command or instruction accurately. Several of the Cadets I spoke to said that they had had to do

this, especially those who served as Team Leaders. Contrary to Cadet Zhang’s allegation that she

was chosen to be a Team Leader “as the beginning of the process to smoke [her] every day,” as

alleged in her April 6, 2020 Complaint, Cadet Z was chosen to be a Team Leader specifically

so she would have the opportunity to work on communication and leadership skills. As explained

by Officer A , her Team Supervisor, “I felt that Cadet Z could use a little bit of experience

being in a leadership role. Because she was very quiet.” (Exhibit E, A , 71:20-22). Sergeant

50
The City does not have a job description for a certified law enforcement officer. Exhibit MM
includes the job descriptions for Cadets and lateral hire officers. Ms. O explained that Cadets
are still governed by the Cadet job description when they graduate from the Academy while in
on the job training (FTEP.) Requirements and duties of a lateral hire officer are probably the
same as for an officer.
48
 CONFIDENTIAL
November 20, 2020

D , indicated that Cadet Z had been treated unfairly as a Team Leader. Mr. D ’s

comments are discussed in Section L.1.

Cadet Z was not the only Cadet who struggled with PT. (See discussion above under

Section IV.A). Some of the Cadets I spoke to told me that they fell behind when running, and

described Instructors, other Officers or fellow Cadets falling behind with them to encourage them

to keep up and to finish the run. I think all of the Cadets mentioned being “yelled” at. I asked if

they believed they were treated inappropriately, and if they witnessed any other Cadets being

treated inappropriately. None of them said that either they or other Cadets were treated

inappropriately. Some of them mentioned that the Instructors were tough, but that they had to be,

and that they (the Cadet) expected the Instructors to be harsher. (See, e.g., Exhibit E, T

4:15-5:19, E 11:6-16, 26:10-19; Exhibit NN, R testimony 12:8-13:16). None of the

cadets I spoke to said that they felt the Academy was too militaristic.

Cadet Z also alleges that she was yelled at and that the Officers did not tell her what

was expected. She mentions one example where she refers to lifting her “beanie” and was told,

“why can I not be like other cadets?” (See Exhibit JJ, Annotated Z Complaint). This incident

is probably related to the requirement that all Cadets were required to wear an identical uniform

every day. If one of the Cadets was not wearing part of the uniform that others were wearing, or if

one of the Cadets was wearing a part of the uniform that others were not wearing, the Cadet was

told to dress like everyone else, and may have been asked why she or he was not dressed the same

as the others. Cadets were issued a black “beanie” (watchman’s cap type hat) that they wore while

running in the cold. The incident involving a beanie that Cadet Z refers to in her Complaint

is probably an incident in which she showed up wearing the beanie when the other Cadets were
50
 CONFIDENTIAL
November 20, 2020

hearing anyone refer to “Cadet Covid,” so I did not ask Officer A if he had referred to Cadet

Z as “Cadet Covid.”

No one reported that anyone other than Officer A referred to Cadet Z as “Cadet

Covid.” Based on the inconsistent accounts of when, and under what circumstances, Officer

A allegedly referred to Cadet Z as “Cadet Covid,” the lack of corroboration by anyone

who heard Officer A make the statements as reported by Commander Byrd, and the fact that

Commander Byrd did not take any action in response to the alleged comments, the allegation that

Basic Instructors referred to Cadet Z as “Cadet Covid” is unsustained.

4. Findings.

As stated above, none of Cadet Z ’s allegations are sustained. Her complaints against

Basic, as Chief G characterized them, are not sustained.

C. Commander Byrd Retaliation Against Officer Garduno.

On April 7, 2020, Commander Byrd came to the firing range to give Arianne M ,a

Cadet in Class 122 who was having difficulty with shooting, some pointers. By all accounts, Cadet

M had received a lot of firearms training in addition to the training provided to all Cadets,

but was still not able to shoot well enough to pass the qualification test. Sergeant S described

the problem as “mashing,” meaning that Cadet M flinched when she pulled the trigger, which

caused her to shoot four or five feet lower than intended. (See Exhibit E, Sc 64:3-25).

Commander Byrd told Lieutenant M of her intent to go to the range to help Cadet M .

Commander Byrd planned to assist Cadet M on a different firing range 56 than where the rest

56
My understanding is that both of the shooting ranges were on APD Academy property and are
considered part of the “Range.”
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Officer A . I do not think her explanation of why she wanted to know who sent the email –

so she could make sure that the author knew of the protocols – was credible. I cannot think of a

legitimate reason for her to insist on knowing who sent the email. I believe that Commander Byrd

should have understood that a private citizen has the right to contact the Governor’s office about

anything. Although there may be some things that happen at the Academy that should be kept

confidential and not discussed outside of APD, concerns about the lack of PPE for the pandemic

are matters of public concern. I believe that, instead of focusing on the source of the email,

Commander Byrd should have given Chief G factual information about the status of PPE at

the Academy so he could forward the information to the Mayor’s office. I cannot determine

whether Commander Byrd intentionally complained about wearing a mask when Officer A

could hear her, in an effort to berate Officer A about the email.

Commander Byrd and Chief G both acknowledged that they did want to change the

Basic Instructor’s job duties so they would have to work, at least some of the time, in the other

training Units. I do not know when they first decided to restructure the job duties. As mentioned

above in the discussion of the work environment at the Academy, Chief G told me that he

wanted to restructure the Academy to eliminate the separation of the Basic and Advanced units.

The timing of when Lt. S was told of the restructuring efforts is suspect, but I cannot

conclude that the email to the Governor’s office was the cause of the restructuring efforts. I think

the email was not the cause of the restructuring efforts. Commander Byrd did not take any adverse

action in direct response to the email to the Governor’s office, but her response was intimidating.

This fits within the City’s definition of prohibited retaliation. For that reason, the allegation is

sustained.
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Lieutenant S , Sergeant M , and Officer A recall that Officer A

recommended termination and that his recommendation was based on the category of the offense

stated in the handbook. (See Exhibit O, Cadet Handbook, Chart of Offenses). Lieutenant S

said that Commander Byrd was aware of the recommendation before the anonymous email was

received.

Commander Byrd’s explanations about the DCS were confusing. (See Exhibit P, a

compilation of quotes from both interviews with Commander Byrd about the DCS, along with

quotes about the DCS from Sergeant M ’s and Lieutenant S ’s interviews). The copy

of the DCS that is in the file provided to me shows termination as the recommended action. Even

if Commander Byrd had not seen that DCS before May 19, 2020, 71 she had seen and signed Officer

A ’s April 29, 2020 memo which mentions termination as a possibility. In the paragraph at

the end of the memo, Officer A describes the violations and says that he “personally believes

Cadet F knew better than to make these comments…” (See Exhibit Q).

Because Commander Byrd had the authority to make the final decision regarding whether

and what discipline to impose on Cadet F , absent any evidence that someone intentionally

71
I found no policy explaining when a DCS should be prepared, or if the Commander is required
to sign it. Lieutenant S explained that the DCS is the document that is used for an internal
investigation and discipline at the Academy. (See Exhibit E, S I 59:2-17). I asked several
people about the customary sequence of discipline related events, but no one was able to tell me
what or if there was a customary sequence. It could be the DCS was prepared after the other
documents and after Commander Byrd made her (initial) decision, to complete the
documentation in the file. If so, it would not necessarily have been deceptive for it to be created
or finalized and put in the file on May 19,2020. Of course, this assumes that it was not
substituted for a different DCS signed by Commander Byrd that was already in the file.
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this investigation on May 22, 2020. During the course of this investigation, I learned that IA was

also investigating the incident. I do not know the purpose of their investigation, but I do not know

of any basis for IA (or me) to be involved in deciding whether or how Cadet F should be

disciplined for his comments to Cadet T . The Cadet Handbook states that the Director of

Training has discretion on deciding disciplinary action. (See Handbook 11.2.A).

The Class graduated on July 1, 2020. If F was going to be terminated, it seems like it

should have happened before he graduated. He is currently an Officer in the FTEP program. I do

not know if any APD policies or the APOA state that disciplinary procedures relating to Cadets

would apply to Officers because the incident occurred while F was a Cadet. Absent a specific

written policy or contractual agreement saying otherwise, I think the APOA and APD policies

would govern any additional disciplinary action for the April 17, 2020 incident. I was not asked to

make a determination on whether additional discipline should be imposed, and I have not done so.

If in fact the possibility of additional disciplinary action is being considered, and if I am asked for

any related recommendations, I would recommend that the discussion relating to the incident in

this report, and the fact that F is now a sworn Officer be taken into consideration.

Although everyone I spoke to believes the comments were inappropriate, supported Cadet

T , and were upset with Cadet F for making them. I also believe that most of the Cadets

in Class 122 were not aware of F ’s comments or T ’ report. Of those whom I have

spoken to who were aware of the situation, all expressed the unequivocal opinion that the comment

was out of line. T is satisfied with how the incident was handled, although she is not aware

of the questions relating to the disciplinary timeline. One Cadet told me that he believes that

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F should have been terminated. Most of those who indicated that they were aware of the

incident said that they believed some disciplinary action had been taken but did not know what.

4. Discussion and Findings.

The Cadet Handbook Section 2.12, titled “Equal Employment Opportunity” says that

sexual harassment, racial discrimination, and retaliation of any type are not tolerated. Section 2.12

also states that Cadets must sign an acknowledgement of receipt for the City’s Sexual Harassment

Policy and handout. The Chart of Sanctions, Section 11.2 of the Handbook, includes “Racial,

Sexual Misconduct in violation of the EEO Policy” among the list of Class One violations,

presumably referring to the City’s Sexual Harassment Policy. The City’s Administrative

Instruction 7-18 (AI 7-18) is titled “Harassment/Sexual Harassment Policy.” (The version

accessible via the CABQ.gov website Human Resources link is dated May 4, 2020. The version

in the IA file is dated February 14, 2018. (Both are attached in Exhibit SS, pp. 71-82). AI 7-18

defines sexual harassment as

[A]ny unwelcome sexual advances, requests for sexually motivated

physical contact, or other verbal expression or physical conduct or
communication of a sexual nature when:

1. Submission to that conduct or communication is made a term or

condition, either explicitly or implicitly, of obtaining employment
or public services; or

2. Submission to or rejection of that conduct or communication by

an individual is used as a factor in decisions affecting that
individual's employment or obtaining public services; or

3. That conduct or communication has the purpose or effect of

unreasonably interfering with an individual's employment or
obtaining public services or creating an intimidating, hostile or
offensive environment in which to work or obtain services.

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(Exhibit SS, p. 72).

AI 7-18 also says that the frequency of the conduct, the severity of the conduct, and whether the

conduct unreasonably interferes with work performance will be considered when determining if

sexual harassment occurred. Finally, AI 7-18 says that “unwelcome verbal or physical conduct,

even if it does not rise to the level of sexual harassment, may be a violation of City policies.”

Cadet F ’s comments fit within the category of potential instances of sexual

harassment listed in B.5.d of the examples provided in AI 7-18, but they do not fit within any of

the three necessary elements listed in AI 7-18. Had he made additional comments about Cadet

T ’, or anyone else’s, sexual orientation on other occasions, and if the Academy staff and

leadership knew of or ignored reports of his comments, they may have been sufficiently pervasive

to create a hostile work environment and meet the third element of the definition. However, his

comments were made on one occasion and were addressed promptly when Academy staff learned

of them. Cadet F acknowledged in his interview that he understood that similar comments

would not be tolerated. His comments were unwelcome and offensive to Cadet T , but they

did not violate the City’s Sexual Harassment Policy. His comments may have violated Section

2.5.A of the Cadet Handbook, Professional Code of Conduct, which requires that Cadets “be

professional, courteous, and respectful at [all times and] all interactions with others.” 74

APD SOP 1-5, titled “Harassment/Sexual Harassment in the Workplace” specifically states

that it applies to all forms of harassment but does not replace City Administrative Instruction 7-

18. (Exhibit SS, p. 23). Cadet F ’s comments do not meet the definition of “harassment”

74
As indicted by the word added, I think there are a few words missing in the policy.
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DCS would have been put in the file. I do not know if Commander Byrd wrote and signed a

different DCS, or what was done with it if she did, but there is no evidence that anyone but her

ever saw it.

During our second interview, Commander Byrd said that when she received the memos,

she asked for a DCS and was given a blank form. No one else mentioned a request from her for a

DCS. If she had requested one, it seems likely that she would have made the request when she

gave Sergeant M her mark up of Officer A ’s memo, but neither Sergeant M nor

Officer A mentioned that to me. Commander Byrd did not say that she requested a DCS then.

Even though the instructors were rotating between working at home and at the Academy, I think

that Commander Byrd was still working at the Academy at that time. It would not have been

difficult for her to type, or for her to have someone type a DCS. I find it odd that she would have

the final DCS be handwritten. The allegations that the April 29, 2020 DCS was falsified and that

it was placed in the file to replace a DCS written by Commander Byrd are not sustained.

When Officer A had Cadet F sign the DCS, he explained that his (F ’s

actions) could result in further disciplinary action. Based on the discipline imposed on a Cadet in

a prior class, and the fact that Cadet T did not want F to be terminated, Commander

Byrd decided not to terminate him. I have no reason to think that her stated reasons were pretextual.

Cadet F has clearly acknowledged that his comments were inappropriate. He never denied

making them, although he professed to not understand that “dyke” was a derogatory term or that,

even though he believed he and T were good friends, it was not appropriate for him to ask

her about her sexual orientation. Officer A and Sergeant M understood that she had

decided to make him write an essay and give a class presentation instead of being terminated.
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have been reported to IA. The process of referring a matter to Internal Affairs for investigation is

referred to as “opening a Blue Team.” When I asked Chief G about this, he said that, in general,

the Academy follows the DPS standards and that the “jury is still out” on whether the Blue Team

related policies apply to Cadets. (See Exhibit E, G II 86:8-90:16). Chief G also said that

the issue of whether the Blue Team/Internal Affairs reporting policy applies to Cadets is not

addressed in APD’s policy manual. (See Exhibit E, G II 9: 8-11). Lieutenant S told me

that the Discipline Charge Sheet is the form used for the Academy’s internal investigations. (See

Exhibit E, S I 59:6-9).

Chief G acknowledged that Commander Byrd had advised him of the investigation and

action being taken at the Academy immediately following the incident, and, by his and

Commander Byrd’s accounts, he seemed satisfied with it at the time. Chief G seemed satisfied

at the time with how the incident was being handled, and told me that the Policy did not require

IA to investigate incidents involving Cadets. Chief G said that the question of whether

incidents involving Cadets should be reported to IA had never come up before. Commander Byrd

told me during her July 14, 2020 interview that she had just learned that “we,” presumably meaning

the leadership at the Academy, should have “done a Blue Team” on the April 17, 2020 incident,

and that the Sergeant (M ) should have done that. (See Exhibit E, Byrd I 74:4-19). Lieutenant

S ’s explanation that the DCS form was the Academy’s internal investigation form would

indicate that he understood the matter would be investigated at the Academy, not through IA. The

Special Order included in the IA file would indicate that all incidents should be reported to IA but,

as mentioned above, I was not able to find that Special Order among the APD and City policies

available online. It is my understanding that all sworn APD personnel signed acknowledging
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12, copy of the anonymous email). The email alleges that outside instructor Wayne D made

numerous inappropriate comments, including discriminatory and harassing comments about

African Americans and Native Americans, and that he described himself as a misogynist who

treated female Cadets poorly. The email also alleges that APD had buried prior instances of

discrimination and harassment and alleges that one of the Class 122 Cadets “demonstrated

homophobic behavior several times,” and that APD “believes discrimination is ok.” On Monday,

May 18, 2020, Commander Byrd told Lieutenant S to have the Basic staff keep the Cadets

in the classroom during their break so she could address the class. The allegations in the

anonymous email are not sustained. Each of the allegations in the anonymous email is discussed

below.

1. Permitted or Ignored DeChano Behavior.

On May 12, 2020, Officer Tillery D and other Basic Instructors read the

evaluations of Mr. D that referenced inappropriate racial and misogynist comments,

immediately reported them to Sergeant M , who immediately reported them to Lieutenant

S , who immediately called Commander Byrd. Commander Byrd contacted Commander

G at SED. The reports to Byrd and G were made in the evening. Commander Byrd

contacted HR first thing the next morning and Mr. D was put on administrative leave. (See

Exhibit E, Byrd II 47:4-21, G 11:16-19, Ortiz 43:15-25). Each officer who received notice

of Mr. D ’s comments immediately reported them to their supervising officer. Commander

Byrd and all APD Academy staff took prompt, appropriate action. The Class was commended for

reporting Mr. D ’s behavior and was assured that it would be addressed. Based on some of

the Cadet’s comments, ’ I believe this left a very positive impression on the Cadets and reinforced
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the message that they should not hesitate to speak up against discriminatory or other inappropriate

comments or behavior. This allegation is not sustained.

2. Cadet Homophobic Behavior/Sexual Orientation Comments. 78

I asked all Cadets I spoke to if they knew of any incidents of homophobic behavior or of

any inappropriate comments or behavior relating to sexual orientation. None of the Cadets I spoke

to could think of any instances of homophobic behavior. Some, but not all, of the Cadets I spoke

to identified Cadet F ’s inappropriate comments to Cadet T as an instance of

inappropriate comments about sexual orientation. (Details about Cadet F s comments, related

reporting, and resulting action are discussed above.) None of the Cadets I spoke to could think of

any other instances of inappropriate behavior or comments about sexual orientation. The allegation

that there were numerous incidents of homophobic behavior is not sustained. To the extent the

anonymous email was intended to allege that no action was taken in response to Cadet F ’s

inappropriate comments about sexual orientation, that allegation is also not sustained.

3. Prior Instances of Discrimination and Harassment Being Buried.

No one I spoke to could identify any prior instance of discrimination or harassment that

was buried. No one I spoke to was able to identify any incident that the email author(s) might have

been referring to. This allegation in the anonymous email is not sustained.

78
See discussion above in Section IV.F. of this Report for the exact words as reported by Cadets
F and T as having been said.

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4. APD Permits Discrimination.

Prompt and appropriate action was taken as soon as the Complaints about Mr. D

were received. Cadet F ’s inappropriate comments were reported and dealt with promptly,

although it is not clear whether the action taken is/was the final action. All Cadets were trained on

the EEO policies. This allegation is not sustained.

I. Retaliation for Anonymous Email.

Several Cadets, all of the Basic Instructors and the Basic Training Unit Sergeant submitted

Complaints to HR alleging retaliation by Commander Byrd based on her response to the

anonymous email discussed above. (Exhibit A, pp. 14-28).

1. Allegations.

The Complaints about retaliation based on Commander Byrd’s response to the anonymous

email allege that, on the morning of May 18, 2020, Commander Byrd spoke to Cadet Class 122,

demanded to know who wrote the anonymous email, made disparaging comments about whoever

sent the email (calling the author a liar and a coward), and threatened to prevent the Class from

graduating if the author(s) were not identified that day.

All of the Cadets and the members of the Basic Training Unit staff I spoke to confirm

these allegations. They also said that Commander Byrd told the class that “what happens at the

Academy stays at the Academy,” implying that submitting a complaint directly to HR violated the

chain of command, and that people should not discuss anything that happened at the Academy

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2. Findings.

The allegations against Commander Byrd of retaliation in response to the anonymous email

are sustained. Her frustration over the implied allegations that APD permitted and ignored the

complaints about Mr. D , and that APD tolerated discrimination and harassment is

understandable. However, the comments she made and the threat to prevent the Cadets from

graduating were intimidating. Her insistence that the author identify themselves was contrary to

Policy, as was her insistence that the complaint should not have gone to HR. APD and City Policy

specifically require employees, including law enforcement employees, to report concerns of

discrimination, harassment, or retaliation and allows them to report directly to HR. SOP 1-55-4

B.1 says that personnel “should” report the matter promptly;” and SOP 1-5-4B.3 requires

personnel who have knowledge of harassment to report it immediately.” (See Exhibit R, SOP 1-

5). There is no policy prohibiting anonymous complaints and, in fact, the APOA acknowledges

the possibility. APOA Section 20.1.3 includes different investigation processes for signed and

unsigned complaints. APD’s SOP prohibiting retaliation, SOP 1-1E.10, included in the APD

General Orders Manual applicable to all APD personnel, prohibits, among other things, retaliation

against anyone making or supporting a complaint. SOP 1-1 and SOP 3-41-4 defines “retaliation”

to include, without limitation, “threats and intimidation.” (Exhibit SS, pp. 15 and 31). The

allegations against Commander Byrd of retaliation in response to the anonymous email are

sustained.

3. Mitigation.

After Commander Byrd left the classroom, Sergeant M addressed the class, assured

them that they had the right to submit a complaint directly to HR, that they had the right to file a
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complaint anonymously, and assured them that the fact that a complaint had been submitted would

not prevent them from graduating.

4. Recording.

Early on in this investigation, an attorney sent me a recording of Commander Byrd’s May

18, 2020 statements to the Class about the anonymous email. 80 (See Exhibit W, unofficial

transcript of the recording). I told Chief G that I had a recording of her comments. (See FN.24).

Instead of showing any concern about the fact that the allegations against Commander Byrd might

be true, Chief G seemed to become even more angry and told me that recording Commander

Byrd was a serious policy violation, one that could result in termination.

I do not know what type of device was used to record Commander Byrd’s address to Class

122 on May 18, 2020 and I do not know who made the recording. I reviewed policies to determine

if any prohibited a Cadet from recording at the Academy. I also looked at APD policies applicable

to all APD personnel, not just sworn officers. I did not look for policies that might apply to any

others who were present when Commander Byrd spoke to the Class on May 18, 2020 and who

might have recorded her statements. Cadet Handbook Section 10.2 prohibits the use of lapel

80
Early on in this investigation, an attorney sent me a recording of Commander Byrd’s May 18,
2020 statements to the Class about the anonymous email. (See Exhibit W, unofficial transcript of
the recording). When I met with Chief G on July 2, 2020, I mentioned this recording and
incorrectly told him I had received it from Tom G . At the time, I was confused about which
attorney sent the recording. I forgot that I told Chief G who sent the recording and did not
recall telling him Mr. G sent it. One month after the interview with Chief G , Mr. G
sent me an email saying that people had heard that I received a recording from him. Believing my
assurances to be true, I assured Mr. G that I had not told anyone that he sent me a recording.
I discovered my error when I read Chief G ’s interview transcript. I emailed Chief G to
advise him of my mistake. After I completed the draft of this report, submitted as Parts I and II, I
sent Mr. G a letter apologizing for my error.
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cameras to record unless instructed to do so by the training staff. If a Cadet recorded Commander

Byrd’s remarks with a device other than a Department-issued lapel camera, Handbook Section

10.2 would not apply. Cadet Handbook Section 7.7 A.2 prohibits Cadets from having or using

personal cell phones at the Academy or while training off site. This would prohibit a Cadet from

recording Commander Byrd’s statements on a cell phone. I did not find any provision in the Cadet

Handbook that prohibits recording on devices other than APD-issued lapel cameras and I did not

find any policy that prohibited Cadets from having recording devices other than cell phones at the

Academy. There are no policies that prohibit Cadets from using laptops, tablets, or handheld

recorders at the Academy.

APD SOP 2-8 governs the use of On Body Recording Devices (“OBRD”). By its terms,

it applies to all “Department personnel who wear a Department-authorized uniform which displays

a Department patch.” Section 2-8-5 B says that “Department personnel shall activate OBRDs only

in conjunction with official law enforcement duties.” Section 2-8-5 B.9.b says that “Department

personnel shall not use OBRDs to document… personal activities or private conversations of

Department personnel that do not involve calls for service or contact with individuals.” Section 2-

8-5 B.9.c prohibits using OBRDs to record “Conversations between Department personnel if

parties are unaware that it will be recorded, except in undercover investigations of Department

personnel involved in alleged criminal conduct.” Even assuming that a Cadet is considered APD

Department personnel as defined in the OBRD policy, Commander Byrd’s statement to Class 122

was not a “private conversation.” Thus, read literally, even if the SOPs apply to Cadets, 81 SOP 2-

81
As explained in IV.F. there is significant confusion about whether the Special Order and if all
SOPs apply to Cadets.
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as a “very humble guy,” who “grew up very poor … in Mexico,” learned English, finished school,

and whose father had been murdered in southeast Albuquerque. (See Exhibit E, D 22:20-23:2).

Mr. D described Cadet E as someone who had something different to offer the

Department, someone who wanted to help children in need. (See Exhibit E, D 67:4-9). Mr.

D said that the Cadets who had a “Hispanic background” who did not grasp the material right

away were targeted. He said he heard Basic Instructors grading homework talking about these

Cadets like they were stupid, 94 but that the Cadets would probably have understood the material if

the instructors talked to them in their native dialect. D also said he thought that the Instructors

put extra pressure on these Cadets because the Instructors were biased and made comments to the

Cadets to make them feel stupid. (See Exhibit E, D 33:16-24).

Mr. D said that after he had heard Officer A talking to the other Instructors about

Cadet Ba , he told Officer A about Cadet Ba ’s background

and that Officer A seemed “less aggressive” after that. Mr. D said that Officer D

was “piping” Cadet E , meaning running her to the ground, and that Officer D would

be on Cadet E ’s “tail every day about something… her boots, her hair…her uniform.” My

impression, based on the interviews of Cadets, is that all Cadets were required to comply with the

uniform requirements, including those relating to their hair. Mr. D described Officer D

94
At various times, Mr. D said the Instructors called the Cadets “stupid,” talked about the
Cadets like they were stupid because they did not grasp the material or get the information, and
that they talked about the the Cadets “like [they were] stupid.”(See Exhibit E, D 20:22-21:14,
27:6 and 67:24). I understood Mr. D to use the word “stupid” as a generic characterization of
what the Instructors thought about a Cadet, not as the exact word used by the Instructors. As
reported by Mr. D , these comments were made among the Instructors, not to a Cadet. He also
said Instructors joked about the “stupid team building [day],”saying that “it was stupid.” (Exhibit
E, D 36:1 and 47:3-4).
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Commander Byrd has retaliated against him and that her retaliation began as soon as she became

Director of Training at the Academy. Commander Byrd and Chief G explained that there were

many complaints about the way that Officer Ryan treated the Cadets, although neither were able

to give me any specific information about these complaints. Chief G and Commander Byrd

also told me that Officer R had been insubordinate by continuing to wear a ball cap that had

been given to Academy staff by a vendor who sponsored an NRA competition at the Academy.

Officer R attributes Commander Byrd’s hostility toward him to a situation that occurred

when Commander Byrd taught a tourniquet instructor class on the firing range at the Academy

while she was Bosque Farms Chief of Police, before she was employed by APD. As described by

R and others who attended, including Officer G , the class involved a scenario in which

an officer had been shot and was lying on the ground between a responding officer and the fleeing

suspects. After a tourniquet was put on the downed officer (played by a class member),

Commander Byrd instructed the class participants to kneel down, draw their weapons, and then

step over the fallen officer. 96 Officer R objected and explained that, for safety reasons, the

responding officer participants should not draw their weapons until after they had stepped over the

fallen officer because there was too great a risk of discharging the weapon if they stumbled or

tripped while standing up and stepping over the fallen officer. Officer G explained that

while the participant was straddling and stepping over the fallen officer, they would be covering

the officer because their muzzles would be pointed toward the downed officer. (Think of standing

up from a kneeling position, drawing a weapon, and stepping out and over someone on the ground

96
Some of the exercises involved live rounds.
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-– the hand holding the weapon will rise up in an arc as you draw the weapon. During the

movement, before reaching shooting height, the weapon will point toward the person you are

getting ready to step over). Officer R explained that one of the firing range rules prohibits

drawing a weapon from a kneeling position, and that a DPS rule prohibits covering another student

with a weapon. Someone also mentioned that, in the scenario as portrayed, although the suspects

were on the other side of the fallen officer from the responding officer, they could run in a different

direction while the responding officer was standing up, in which case the responding officer would

have to respond accordingly. For example, the responding officer would need to pivot while

stepping over the fallen officer – increasing the risk of “covering” the fallen officer with their

weapon. Cadets and Officers are taught to always be aware of where the muzzle of their gun is

pointed and that they should never cover anything they are not willing to destroy.

Commander Byrd dismissed Officer R ’s objection and said that they should do the

exercise as instructed. Officer R said she responded by saying, “We are all adults here and we

know how to keep our finger off the trigger.” (See Exhibit E, R 22:3-20, 32:4-15).Officer

G told Commander Byrd that the class would not do the exercise as instructed, and that they

would not draw weapons until after they had stepped over the downed officer. Because

Commander Byrd was there as a guest instructor from another department, Officer G , as a

Master Firearms Instructor and as Lead Firearms Instructor for Basic, 97 had the authority to make

the final decision on the situation. Those I spoke to about the tourniquet class scenario, including

Sergeant Matt S t, the Sergeant over the firing range, fully agreed with Officer R ’s and

97
Some people referred to Officer G as the Range Master. Apparently, this is not correct.
Master Police Officer Dave B is the Range Master.
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Officer G ’s position and agreed that Officers R and G acted correctly when they

objected to doing the exercise as Commander Byrd instructed. Sergeant S , other Officers,

and the Cadets I spoke to about firearms safety also told me that they are taught that safety is a

priority, that they are each responsible for firearms safety, and that they each have an obligation

to speak out about any firearms safety violations. (See Exhibit E, A 16:12-25; E 23:17-

23; F 29:7-10; G 46:1-48:24; R. G 47:9-15; S 26:19-30:2; W

53:11-57:19).

Officer R asserts that when Commander Byrd first started working at the Academy, she

treated the Basic staff differently than the rest of the Academy staff. As he described it, on the day

she was introduced to the Academy staff, “As we went through and introduced ourselves and we

got to the basic training unit, she was kind of like – you could see the look on her face just kind of

like, hmmm, I remember you guys…It did not look like a friendly face.” (See Exhibit E, R

33:4-9). Officer R said that Commander Byrd insisted that everything be done her way or “the

highway,” and that she was not willing to listen to any comments or suggestions that he or other

members of the Basic staff made. He said that prior Training Directors Commander C ,

Commander S , and Major T had all been receptive to suggestions and comments from

Academy staff. Six months after Commander Byrd’s arrival at the Academy, in January 2019,

Officer R accepted a TDY position with SWAT. Shortly after the TDY position became a

permanent position, he decided to return to the Academy. 98

98
It’s my understanding that this is permitted under the APOA.
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R talked to Cadets, she described two comments Officer R had made. The first was a

comment Officer R made to her when she wondered out loud why Cadet Class 120’s scores on

the state exam were low. Officer R ’s said “You know what they call a person who scores a 70

on the exam? An Officer.” (See Exhibit E, Byrd I 37:2-7). The second comment was Officer R

saying, to a Cadet who yawned at graduation rehearsal, “You have a fly trap there.” (See Exhibit

E, Byrd I 37:11-14). During her second interview, I asked Commander Byrd if she had ever

received any complaints about Officer R . She said, “No…Like I said in the last interview, I

was the one who had issues with him,” confirming that her concerns were related to the two

comments Officer R had made. (See Exhibit E, Byrd II 32:19-24).

Chief G was not able to give me any specific information about any complaints made

against Officer R . Chief Geier said that he received about half a dozen phone calls from people

with “connections to APD” who complained about how a son, daughter, or other family member

had been treated at the Academy and that the names that came up most frequently were Officer

R ’s and Officer D ’s. Chief G said he did not keep notes or logs about these calls and

that he took them with a grain of salt. 100 I asked Chief G whether anyone had spoken to Officer

R about concerns relating to how he treated Cadets. Chief G said that he believed that

Commander Byrd had directed her chain of command to do so. To my knowledge, no one

explained any of these concerns to Officer R .

In explaining the out-of-uniform issue, Commander Byrd said that after Lieutenant A

complained about people wearing ball caps that were not part of the APD uniform, she told

100
Despite the grain of salt, Chief G seemed to rely on these conversations to support his
decisions about the Basic Instructors and Sergeant.
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I did not ask Commander Byrd about prohibiting Officer R from teaching at CNM, although it

would be in keeping with the general prohibition of contact with Cadets.

Finding: The allegation that Officer R was unfairly excluded from the Academy and

from having contact with Cadets is sustained. The directive to exclude him from the Academy

grounds and from contact with Cadets is not lawful. I was not provided any legitimate reason for

why Officer R was not welcome at the Academy and was prohibited from having contact with

Cadets. Based on the information provided, I believe that Chief G , not Commander Byrd, is

responsible for the unlawful order. I did not investigate whether the decision to require Officer

R to teach at the RBT instead of Basic when he returned to the Academy complied with the

APOA. He did not specifically complain about that, and any such complaint should be addressed

in accordance with the APOA procedures. I did not contact CNM to confirm that there had been

no complaints against Officer R by CNM Academy students. Chief G s prohibition on

Officer R having contact with Cadets presumably included contact with APD Cadets at the

CNM Academy and, as such, would be unlawful. I did not contact Sergeant (ret) to

confirm that he had requested that Officer R be allowed to teach at the CNM Academy. I did

not make any findings about that specific assignment.

N. Other Allegations Against Commander Byrd.

The other Complaints against Commander Byrd submitted by Academy staff include

allegations of a hostile work environment, discrimination, harassment, and retaliation. (See Exhibit

A, pp. 15-30, 34-35, 39-40, 49). Most of the allegations of hostile work environment assert general

hostility and unpleasant working conditions, not hostility based on a protected category of

employees. Specific allegations made in these Complaints are discussed below.

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1. Treatment of Basic Staff/Conference Table.

The Basic Instructors often met at the conference table in the common area in the Academy

offices. Each Basic Instructor grades the homework done by the Cadets in their team. Because all

of the Cadets have the same homework assignments, the Instructors met at the conference table in

the lunch area to discuss and grade the homework. Apparently, one of the previous Academy

Directors suggested that they do this. Commander Byrd told the Basic Instructors that they should

each work in their own offices and to stop working on homework together at the conference table.

As described by one of the instructors, Commander Byrd ordered them to work in their individual

offices and to stop working together as a team. The Basic Instructors allege that this is part of

Commander’s Byrd’s efforts to break up the Basic Unit. Commander Byrd denied telling them to

stop working together. She told me that she told them to stop meeting at the table because someone

had complained that the Basic Instructors left their materials on the conference table, which

prevented them (the complainant) from eating lunch at the table.

The Basic Instructors said that, one day when they needed to prepare for a class, they met

in an empty classroom. Commander Byrd banged on the door, interrupting them, and demanded

to know what they were doing. She said she asked them what they were doing in the classroom

the day they were meeting because they were not supposed to eat in the classroom. No one

mentioned whether they were eating there, or her telling them not to eat in the classroom.

Commander Byrd’s directive to the Basic Instructors to stop meeting at the conference table does

not violate any policies. I cannot determine whether she did tell them, as they allege, to stop

grading homework together, although neither she nor they mentioned any alternative place that

she authorized them to work together. Although the Instructors’ rationale for working together to
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purposes of requiring whether the instruction must be provided by a Certified Firearms Instructor.

The Certified Firearms Instructors I spoke to, including Sergeant S , said that they did not

believe that having a Certified Instructor present would be sufficient for someone else to provide

instruction. I did not find a specific policy on this but NMAC 10.29.4 includes the standards for

various types of law enforcement training certification. Firearms instruction is one of the high-risk

areas requiring specialized instructor certification. (See Exhibit T, NMAC 10.29.4.10.A.(1)(a)). I

do not have the qualifications to issue a finding on this allegation. This Complaint is undetermined.

b. Firearms Qualification Policy Violation.

I received an email advising that on August 20, 2020, Commander Byrd called the firing

range and asked for a private qualification, as she has allegedly done each year since she was hired.

The email says that Commander Byrd has not shot at turning targets and has not had a qualification

during a regular cycle with other officers, as is reportedly required by DPS. I have not looked into

the policies or regulations on this and have not followed up on whether the report of the request is

accurate. I will be happy to do so if instructed, although I will need direction on where to find any

Academy-specific qualification rules. This Complaint is undetermined.

4. Smoking and Littering.

Several Complaints assert that Commander Byrd violates policies prohibiting smoking on

Academy property and one asserts that she smokes in City-owned vehicles. Commander Byrd

admitted that she smokes on APD Academy property and explained that she was not aware of the

policy prohibiting smoking. She also admitted to smoking in a City-owned vehicle at least one

time. Only one person recalled seeing anyone else (a civilian whose identity was not known)

smoking on Academy property. Cadet Handbook Section 7.4 prohibits Cadets from using any type
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November 20, 2020

of tobacco on Academy property. SOP 1-1-6-7 says that all City facilities shall be smoke free.

The SOP mentions several indoor facilities but does not say if it applies to outdoor areas at City

facilities. At least one of the Instructor’s Complaints cites SOP 6-1-3 as prohibiting smoking on

or around Academy Property, but I was not able to find an SOP 6-1-3. The SOPs posted on the

APD website are numbered from SOP 1-1 to SOP 3-52. I did not look for policies prohibiting

smoking in a City-owned vehicle, although I assume there is one.

Some of the Complaints allege that Commander Byrd violated the City’s policy prohibiting

littering by throwing cigarette butts onto the ground. I did not investigate this issue. The allegation

of smoking on Academy grounds is sustained. I am not able to determine whether any policies

prohibit others than Cadets from smoking outdoors at the Academy. Commander Byrd smoked in

a City-owned vehicle at least once, and probably violated an applicable City policy.

5. Interference /Attempt to Influence Investigation.

a. Commander Byrd’s Presence at the Academy.

During the course of this investigation I received complaints that Commander Byrd was at

the Academy and that some of the staff felt intimidated by her being there. My understanding from

Chief G and Commander Byrd is that she was instructed by Chief G sometime between

May 16, 2020 and May 19, 2020 to work from home pending this investigation. 105 Initially, Chief

G authorized her to go to the Academy after hours to pick up things she needed. On August

105
Beginning in mid-March, many of the Academy staff members were working at home because
of the pandemic precautions. The Basic Instructors rotated between working at home and at the
Academy, on a schedule that allowed one or two of them to be at the Academy on the same day.
Several classes were taught via Zoom. The Cadets attended classes in a classroom that combined
two rooms, wore masks, and sat at least six feet apart. They also wore masks during PT and
outdoor exercises.
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November 20, 2020

16, 2020, Chief G authorized Commander Byrd to work at the Academy on Mondays, and the

Basic Instructors were ordered not to be there on Mondays. (See Exhibit U, email from Deputy

Chief Eric J. G ).

At least one of the complaints about Commander Byrd being at the Academy related to

what would normally have been after hours. Another complaint related to a time when Chief G

instructed Commander Byrd to be at the Academy to meet with him and some of the CASA

monitors. Chief G advised me that Commander Byrd was with him and the CASA monitors

the entire time she was there. The last complaint about Commander Byrd being at the Academy

while this investigation was ongoing related to a Monday (August 17, 2020) when the Basic

Instructors had been instructed to attend a mandatory problem-oriented and community police

(“pop/cop”) training that all APD Officer are required to attend under the CASA Agreement. The

Basic Instructors had signed up for the course. Chief G directed Deputy Chief G to advise

the Basic Instructors that they needed to reschedule attending the POP/COP course for a later date

or complete it via video. Chief G explained to me that this was necessary because “the monitor

and the consent decrees had issues with…some failing at the Academy that he directly related to

her not being able to interact with her staff” and Commander Byrd needed to be there to “go

through some of the issues.” (See Exhibit E, G II 42:16-47:16). Chief G said there were

fifteen more POP/COP classes that the Basic Instructors could sign up for. Unfortunately, because

they had signed up for the class but did not attend, their names were included on a discipline-

related list of Officers who failed to attend the class that was sent to Ms. H . Chief G

assured me that they would not be disciplined.

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November 20, 2020

interview transcripts. Lieutenant M told me that a day or two before I interviewed him, 106

Commander Byrd told him that she was going to review the interview transcripts so she would

know who she could trust. Lieutenant M called me back a few minutes after we finished

the first phone conversation and told me that when Commander Byrd told him that she would be

reviewing the interview transcripts. She also told him that if she stayed, she might be given a

promotion and that she would recommend him for promotion too. Commander Byrd denied

mentioning the possibility of a promotion for M if she was promoted and denied telling

anyone that she would review the transcripts. She did tell me that she had mentioned to Lieutenant

S that her attorney had told her that, after the investigation was over, she would know who

complained about her. I asked her if she said that once she had reviewed the complaints, she would

know who she could trust. She said that she did not recall saying that but thought it was implied.

Q. Okay. Did you tell any of the civilian employees or actually any
sworn officers that you would have access to the transcripts and
could see who you could trust?
A. I think I -- sort of. I said that I had an attorney and that -- that
you had told me that I would know
who complained against me.
Q. Uh-huh. So who did you mention that to, that you would have
-- well, when you say "sort of," did you tell anyone you would have
access to the transcripts?
A. Transcripts. I think I -- no. I didn't say transcripts. I said I
would know who filed the complaints against me. And that was to
Lieutenant Saladin.
Q. And when did you tell him that?
A. After our first interview, I believe.
Q. And so why did you mention that?
A. You know, I don't remember the conversation specifically. But
I think I -- we were talking about when this was all over how S
was concerned on how we were going to move forward. And I said,
well, you know, I'm going to know who made the complaints and

106
I interviewed him on Tuesday, July 28, 2020.
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November 20, 2020

FTEP refresher courses to prevent a “disconnect” from actual law enforcement duties and

academic training --- was the real reason. The facts that make me question this are whether taking

an FTEP refresher course could prepare Officer W for a field assignment; that Officer

W did not request authorization to take the course; that in the past, Academy staff were

not required to take FTEP refresher courses; that none of the Advanced or RBT staff were required

to take the FTEP refresher course; and the timing of both the discussion about the assignment

(graduation) and subsequent assignment in relation to the Complaints filed against Commander

Byrd and the Basic staff’s resistance to reorganization of the Academy and changes to their job

descriptions.

B. Additional Concerns about Chief G ’s Characterization of Complaints as

“Complaints Against Basic.”

Chief G characterized Lieutenant D ’s memo about Officer E ’s exit

interview, Cadet Z ’s April 6, 2020 Complaint, Officer G ’s reminder to Sergeant .

M and Officer D that Cadet M could hear them when she was wearing ear

protection headphones, Basic’s treatment of Cadet M , Darrick G ’s Complaint about

PPE, Crystal S ’ Complaint, and possibly the comments Chief G recalled hearing about

from Mr. D as “complaints against Basic. ” Ms. S ’ Complaint was a Complaint against

Basic Instructor Officer D , and Mr. G ’s Complaint alleged that Basic Instructor Officer

A was not wearing PPE on a particular afternoon. (Lieutenant S determined that

Officer A was not at the Academy the day Mr. G said he saw Officer A there

without PPE. (Exhibit PP, 5-26-20 Memo from Lt. S to Chief G ). Cadet Z ’s

Complaints did include allegations against Basic staff, but not only against Officer D or

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