But Berry continues to hold and embrace his inepter choices...Berry, you are your worst enemy; forget the run for Governor. You have ruined your own chances.
STATE OF NEW MEXICO
COUNTY OF BERNALILLO
SECOND JUDICIAL DISTRICT COURT
THE CITY OF ALBUQUERQUE ex rel
THE ALBUQUERQUE POLICE DEPARTMENT,
GORDEN EDEN, Jr., JOSEPH WOLF, and
MICHAEL ARCHIBEQUE (in his
official and individual capacity),
COMPLAINT FOR DAMAGES FOR
WHISTLEBLOWER PROTECTION ACT VIOLATIONS,
PRIMA FACIE TORT, AND EMOTIONAL PAIN AND SUFFERING
I. CONCISE STATEMENT OF THE CASE
Plaintiff John Corvino ("Corvino") is a thirty-year veteran police officer with over twenty-five years as an officer of the Albuquerque Police Department ("APD"). With decades of service as an experienced patrol officer, Corvino retired from APD in December, 2005 whereafter he was rehired by APD in January 2007 and assigned to the department’s police academy—specifically its Advanced and Basic Training Units. While assigned to such units, Corvino provided thousands of hours of instruction to hundreds of APD cadets, APD officers, and to personnel from other law enforcement agencies from across the county. As a police instructor, Corvino holds numerous New Mexico Department of Public Safety ("NMDPS") certifications to teach police cadets and police officers specialized and high risk subject matter including Use of Force, Verbal Defense and Influence, and Emergency Vehicle Operations.
FILED IN MY OFFICE DISTRICT COURT CLERK 5/7/2015 11:16:28 AM James A. Noel Patricia Serna D-202-CV-2015-03865Page 2 of 17
Corvino also holds NMDPS Master Instructor Certification to teach Basic Police Instructor Training and Intermediate Force Instructor Training (defensive tactics). Unlike basic or specialized certification, Master Instructor certification authorizes Corvino to provide NMDPS accredited instruction and to certify upcoming instructors.
As an APD Academy police instructor, Corvino was bound to follow and comply with his department’s Professional Accountability Bureau standard operating procedures and rules of the New Mexico Administrative Code ("NMAC") concerning such police instruction. Such requirements include being the department’s lead instructor in specialized matters, maintaining and updating training records, and ensuring compliance with NMDPS requirements. In October 2013, while the Academy operated at the direction of its civilian director, Joseph Wolf, and its sworn officer commander, Lieutenant Michael Archibeque, nearly two-dozen officers attended two separate defensive tactics instructor certification classes to wit "Intermediate Force Instructor Certification" and "Ground Control Instructor Certification" at the academy. At Defendant Archibeque’s direction, these classes were held as instructor classes whereafter graduates would be NMDPS certified instructors authorized to teach defensive tactics to students including APD police cadets. In order for the classes to be accredited whereby graduates received valid instructor certifications, pursuant to the rules of the NMAC governing such classes, only instructors certified as defensive tactics Master Instructors could teach such classes. Instead of having Corvino teach the classes, who is certified as a Master Instructor in defensive tactics, Wolf and Archibeque brought in personnel from outside APD’s academy who were not certified Master Instructors in any police training subject matter.
Upon learning of this deficiency in the instructors’ qualification, and thereby in violation of NMAC rules, Corvino informed Archibeque, Wolf, and personnel at the New Mexico Law Page 3 of 17
Enforcement Academy ("NMLEA") that because the courses were not compliant with the NMAC, none of the graduate’s certificates were valid. Despite Corvino’s obligations as a police officer to uphold the law, and his assignment related responsibilities to ensure proper compliance with APD procedures and NMAC rules, Corvino was told by at least Wolf and Archibeque to cease all contact with NMLEA personnel and was further told that there was no defect in the October classes or their graduates. Additionally, Corvino was then presented a letter to sign, fabricated by Wolf (but in Corvino’s name), that falsely stated Corvino provided oversight of the October classes and that they complied with NMDPS requirements. Corvino refused to sign the letter. Recognizing that failing to correct the invalid instructor certifications posed to invalidate the instruction of police cadets and other students, Corvino informed and communicated with NMLEA personnel of Archibeque and Wolf’s actions in personal conversations and written documents.
In response to Corvino contacting NMLEA personnel concerning the actions and inactions of Archibeque and Wolf, Archibeque spoke with APD Deputy Chief William Roseman who advised Archibeque to initiate an APD Internal Affairs unit ("IA") investigation of Corvino, which Archibeque did. In the months following Archibeque’s contact with IA, Corvino was ostracized and excluded from social and professional activities at the Academy and, among other retaliatory actions, barred from providing instruction to police cadets. With IA concluding the investigation of Corvino in July 2014, APD Chief Gorden Eden imposed an eighty-hour unpaid suspension as final discipline upon Corvino because of his alleged violations of APD procedures which included insubordination, bringing the department into disrepute, and releasing confidential department material. Page 4 of 17
In fact, during a period whereby the United States Department of Justice was investigating APD and its officers for a pattern and practice of excessive force, Corvino sought to intervene to correct invalid training and certification in order to keep the department from disrepute and further harm. As a consequence of his efforts to ensure defensive tactics training was compliant with state rules, and thus the instructor’s certification to teach and cadets’ certifications as police officers valid, Eden, Wolf, and Archibeque retaliated against Corvino by adversely affecting his employment by suspending him without pay, making his working conditions unenjoyable and intolerable, and subjecting him to emotional harm and mental anguish. Eden, Wolf, and Archibeque additionally failed to remedy the invalid certifications for instructors who, upon information and belief, continue to teach defensive tactics instruction to cadets to this day. Additionally, the of the validity of as many as one-hundred police officer’s certifications remain in question and in doubt because of the invalid training provided to them.
Corvino brings this complaint under NMSA 1978, §10-16C-1 et seq, the Whistleblower Protection Act, and New Mexico common law for damages resulting from the illegal retaliation against him for engaging in protected activities while employed by the City of Albuquerque.
II. JURISDICTION AND VENUE
1. Jurisdiction and venue are proper in state court pursuant to NMSA 1978, §10-16C-4. All of the parties reside in New Mexico and the acts and inactions complained of occurred in Bernalillo County and the State of New Mexico.
2. Plaintiff John Corvino ("Corvino") was employed by the City of Albuquerque as a police officer and was assigned positions at APD’s Police Academy from January 2007 through April 2015. Page 5 of 17
3. Defendant City of Albuquerque is a municipality in the State of New Mexico and a public
4. Defendant Gorden Eden is employed by the City of Albuquerque as the chief of the Albuquerque Police Department and was the department’s highest ranking sworn police officer during the period of the allegations contained herein.
5. Defendant Joseph Wolf was employed by the City of Albuquerque and was the civilian Director of Training at the Albuquerque Police Department Police Academy and Corvino’s civilian supervisor during the period of the allegations contained herein.
6. Defendant Michael Archibeque is employed by the City of Albuquerque and is the sworn police officer commander at the Albuquerque Police Department Police Academy "Chief of Staff" overseeing Corvino during the period of the allegations contained herein.
IV. FACTUAL ALLEGATIONS
7. Corvino re-alleges and incorporates herein the allegations referenced as if set forth herein.
8. Corvino was hired by the City of Albuquerque and employed as an officer of the Albuquerque Police Department in 1988 and retired as a police officer in December 2005. Corvino was an APD Reserve Police Officer during his brief period of separation from the city after retirement.
9. Corvino was rehired by the City of Albuquerque in January 2007 as a police officer whereby he was assigned to APD’s Police Academy and remained there until his resignation in April 2015.
10. Assigned to APD’s Police Academy, Corvino held positions as an instructor in the academy’s Basic Training Unit as well as its Advanced Training Unit. As an instructor in those units, Corvino provided thousands of hours of instruction to department cadets, non-Page 6 of 17
department cadets, and sworn law enforcement officers from APD as well as other in state and out of state agencies.
11. Corvino holds NMDPS instructor certifications in general police instruction, use of force, emergency vehicle operations, Taser, law enforcement fitness, and defensive tactics among others. With these certifications Corvino is able to teach NMDPS accredited classes of those and other subject matters to police cadets and police.
12. Corvino holds NMDPS Master Instructor certifications in Basic Police Instructor and Intermediate Force Instructor subject matters. With these certifications Corvino is able to teach NMDPS accredited classes to students who upon successful completion of the instruction are approved and certified to teach classes of those subject matters to police cadets and police officers.
13. "Intermediate Force" instruction is referred to generally as defensive tactics instruction and is recognized by the NMLEA and 10.29.4.10(C)(1) NMAC as a high-risk subject matter of instruction.
14. Defendant Wolf, upon information and belief, holds no NMLEA certifications to teach police officers or police cadets any subject matter of instruction.
15. As Director of the APD Academy, Defendant Wolf’s responsibilities were outlined in APD standard operating procedures ("SOP"). Such responsibilities included:
A. "Executive oversight of the Police Academy and Training staff and compliance with Department Standard Operating Procedures, city personnel regulations, collective bargaining agreements, and city, state, and federal laws and regulations."
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B. "Liasion with the Department of Public Safety, regarding training standards/requirements, and establishing and enforcing appropriate contracts and other operating agreements."
C. "Direction, quality, discipline and administrative control of all training staff; review and approval of performance evaluations/feedback, commendations, and disciplinary recommendations."
16. Defendant Archibeque holds several NMLEA certifications to teach police officers or police cadets a variety of subject matter including firearms, use of force, and emergency vehicle operations among other subject matter areas. Upon information and belief, Defendant Archibeque has not led one class of instruction to any police cadets or police officers.
17. As the APD Academy Lieutenant, Defendant Archibeque’s responsibilities are outlined in APD SOPs. Such responsibilities include:
A. "Ensuring compliances with Standard Operating Procedures, city personnel regulations,
collective bargaining agreements, and city, state, and federal laws and regulations."
B. "Assisting the Director of Training with liaison responsibilities with the Department of Public Safety, regarding training standards and/or requirements."
C. "Ensuring direction, quality, discipline and administrative control of all training staff; review and approving performance evaluations/feedback, commendations, and disciplinary recommendations."
D. "Serve as the Police Academy’s principal subject-matter-expert (SME) on APD organization and operations."
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18. The APD Police Academy is recognized as a NMLEA authorized satellite academy pursuant to 10.29.5 et seq. NMAC and among its responsibilities is to provide basic training to APD police cadets who upon successful graduation become APD police officers.
19. In October 2013, at the direction of Defendant Archibeque, two classes were held at APD’s Police Academy to increase the number of APD’s defensive tactics instructors. From October 7-11, 2013, sworn officers attended the Intermediate Force Instructor Certification ("IFIC") class, and from October 14-18, 2013, sworn officer attended the Ground Control Instructor Certification ("GCIC") class. Successful graduates of both courses desired to be NMDPS certified defensive tactics instructors.
20. The primary and lead instructor for the two classes referenced in Paragraph 17 was Vicente Alvarado. Mr. Alvarado is a former APD officer and does not possess a NMDPS Master Instructor certification in any police training subject matter.
21. Alvarado had previously been denied issuance by NMDPS of Master Instructor certification in defensive tactics as recently as August 3, 2011.
22. Under 10.29.4 et seq. NMAC, the rules by which personnel interested in becoming law enforcement instructors may be certified by NMDPS as general instructors, specialized instructors, and master instructors is defined. The NMDPS follows the higher education model whereby general and specialized instructors receive their certifications to teach by attending, and successfully completing, classes led and administered by NMDPS certified master instructors.
23. As Alvarado was not a NMDPS certified Master Instructor in defensive tactics, all attendees of both October 2013 classes were not in compliance with NMLEA and NMAC rules and as such, all attendees who were issued certifications were issued certifications that were void. Page 9 of 17
24. Upon information and belief Alvarado has previously provided invalid defensive tactics instructor training to other APD personnel as early as April 1, 2011 when Alvarado did not possess Master Instruction certification then either. Upon information and belief, such personnel have thereafter provided invalid defensive tactics instruction to police cadets since April 2011.
25. Upon information and belief, attendees of the two October 2013 classes have provided defensive tactics instruction to police cadets and police officers. As the certifications of these attendees are void, any such training rendered to other personnel is as a direct consequence, also void.
26. Pursuant to NMLEA rules, police cadets must complete at least sixty-hours of defensive tactics instruction as part of their basic police training program. Such instruction requires cadets to be instructed and evaluated for proficiency by NMDPS certified defensive tactics instructors.
26. Pursuant to 10.29.9.18(A) NMAC, only students who successfully complete a basic police training program and have completed all requirements under the minimum standards of training are allowed to take the New Mexico law enforcement officer certification exam.
27. Pursuant to 10.29.5 et seq.NMAC, the NMLEA has authority over the APD Police Academy to ensure, among other things, its instructors and curriculum are accredited. Such requirements concerning instructions includes that high risk instruction, such as defensive tactics, must be instructed by personnel certified by NMDPS in those areas of instruction. Furthermore, pursuant to 10.29.5.13 NMAC, the director of the NMLEA has direct authority to monitor and evaluate the APD Police Academy and initiate decertification proceedings. Page 10 of 17
28. Upon information and belief, cadets from at least APD’s 105-110 cadet classes who received voided defensive tactics instruction have taken the New Mexico law enforcement officer exam.
29. During the time APD IA was investigating Corvino for alleged SOP violations, and before the filing of this complaint, Defendant Eden issued orders to APD employees forbidding them from meeting with or communicating with United States Department of Justice officials.
30. Since disciplining Corvino, Defendant Eden stated on about April 15, 2015, that his "duty as a police chief is to protect the person who came forward with that information to make sure there is no retaliation" regarding a cadet who alerted APD personnel of alleged misconduct by an APD officer. With such a statement, Eden acknowledges and confirms that APD personnel can be subject to retaliation and need protection.
31. Defendant Eden also said on about April 15, 2015, that referring investigations of misconduct by APD personnel to outside agencies is, "for the protection of whistleblowers because such persons are less likely to face retaliation if the investigation is handled outside of APD."
32. With respect to personnel who have alerted APD personnel of misconduct by other APD personnel, Defendant Eden said on about April 14, 2015, that he "is worried for the safety of the employee who made the report. If we provide any further information, it may put that employee in jeopardy. We are not going to do that."
CORVINO’S PROTECTED ACTIVITY
33. Upon awareness of the October 2013 defensive tactics instructor classes, Corvino contacted NMLEA personnel to ascertain the certification credentials of Alvarado whereby he was Page 11 of 17
told Alvarado was not certified as a NMDPS Master Instructor in any law enforcement subject matter.
34. Upon being informed of Alvarado’s certification deficiency, Corvino told Defendant Archibeque and Defendant Wolf of invalidity of the October 2013 defensive tactics instructor classes. Corvino was told by Defendants Wolf and Archibeque, and APD Police Academy Sergeant David Jaramillo, not contact or talk with NMLEA personnel regarding APD personnel certifications any more for any reason.
35. As part of his APD Police Academy position, and as a NMLEA certified defensive tactics Master Instructor, Corvino spoke with and was in contact with NMLEA personnel on a weekly basis. After being told not contact NMLEA personnel by Defendants Wolf and Archibeque, Corvino continued to contact NMLEA personnel in compliance with responsibilities of his position.
36. On about December 4, Corvino told and informed personnel at the NMLEA of his concerns of the October 2013 defensive tactics instructor class up to and including the director of the NMLEA. Corvino informed NMLEA personnel that the harmful consequences of the invalid certifications upon APD and the cadets who were given the invalid instruction would be immeasurable because it was unclear if the cadets were receiving training compliant with NMLEA accreditation requirements.
37. On about December 11, 2013, Defendant Wolf wrote a letter on APD letterhead fabricating facts relating to Corvino overseeing the October 2013 defensive tactics instructor classes and approving of the instruction [Attached herein as Exhibit #1]. Defendant Wolf’s letter was presented to Corvino for him to sign as if he had written it. Corvino refused to sign the letter or otherwise endorse it or the facts alleged in it. Page 12 of 17
38. After refusing to the sign the letter, Corvino was advised by APD Academy Sergeant James Collins that there was a copy of Defendant Wolf’s letter in his mailbox and that Corvino could take the copy. Corvino took a copy and made a digital image of it.
39. On about December 18, 2013, after informing Defendants Wolf and Archibeque of his concerns about APD Police Academy continuing to have personnel uncertified to teach defensive tactics to police cadets and his discussions with NMLEA personnel, Corvino was ordered by Sergeant David Jaramillo not to contact NMLEA regarding APD personnel certifications.
40. While again up at the NMLEA on about February 5, 2014, Corvino showed and provided NMLEA personnel a copy of Defendant Wolf’s letter alerting them to his concerns that not only did he refuse to sign such a letter but that if such a letter were to be sent to NMLEA he did not endorse it.
41. In February 2014, Defendant Archibeque became aware of Corvino’s actions of informing NMLEA personnel of the invalidity of the October 2013 defensive tactics class and providing them with a copy of Defendant Wolf’s letter. Defendant Archibeque spoke with APD Deputy Chief William Roseman concerning the matter and then wrote a memorandum on about February 21, 2014 requesting an IA investigation into Corvino and his actions.
42. In his memorandum to IA, Defendant Archibeque alleged Corvino’s behavior had been "detrimental to the APD academy and now the department as a whole." Defendant Archibeque further alleged that Corvino, "…constantly [has] done all that he can do to bring a negative image to the Academy and the Albuquerque Police Department[.]" Page 13 of 17
43. In the weeks and months following Defendant Archibeque’s memorandum to APD IA, Corvino was excluded and ostracized from APD Academy events. Such exclusion included Defendants Wolf and Archibeque disallowing Corvino from teaching police cadets entirely and discontinuing other training opportunities with cadets such as scenarios.
44. Corvino was excluded from APD Academy personnel events including birthday or promotion celebrations, denied issuance of Academy physical fitness apparel, given the silent treatment, was subjected to increased scrutiny, denied use of the APD Academy gym, was excluded from providing training to other personnel while other non-academy personnel were brought in, excluded from providing instruction to APD Police Service Aids, was criticized publicly by supervisors in front of other non-department officers, had his office removed and was ordered to relocated to a cubicle, had his department issued car replaced with an older used model, was disallowed to go home early on occasions where others were allowed to leave early, and additionally found his office tampered with the morning following evening training scenarios.
45. At no time did Defendant Wolf protect Corvino, or act in opposition of such actions upon Corvino, from any such adverse actions upon Corvino’s employment or working conditions.
46. During the course of the IA investigation, Corvino was interviewed three times. Upon the conclusion of the investigation, the file was issued up to Defendant Eden who concluded Corvino had violated APD SOP’s concerning insubordination on the basis of his contact with NMLEA personnel, had engaged in conduct that could bring APD into disrepute based off of his contact with NMLEA personnel regarding the content of his contact with NMLEA personnel, and had not treated the official business of APD as confidential based off of Corvino’s disclosure of Defendant Wolf’s letter to NMLEA personnel. Page 14 of 17
47. During the course of the APD IA investigation, Defendant Wolf was also identified as a target for misconduct and was issued a letter of reprimand for his fabricated letter he sought to have Corvino sign and endorse.
48. During the course of the APD IA investigation, NMLEA personnel are interviewed by APD personnel. On about March 19, 2014, APD IA personnel are advised by NMLEA personnel that:
A. Corvino informed them of Alvarado’s October 2013 defensive tactics classes.
B. Personnel who took Alvarado’s October 2013 classes are not permitted to instruct police
C. Alvardo’s application for Master Instructor certification was denied.
D. Defensive tactics is recognized as a high risk field of training.
E. Cadets who received training by attendee’s from Alvarado’s class would not have
certifications recognized by NMDPS.
F. Cadets who graduate from APD’s Police Academy technically would not be certified as
police officers because they technically would not have valid police officer certifications
in defensive tactics training.
49. During the IA investigation Defendant Wolf referred to NMLEA Master Instructor certifications as simply "honorary."
50. Defendant Wolf was named a target of the IA investigation of Corvino was issued a disciplinary letter of reprimand for the fabricated letter he wrote in Corvino’s name on APD letterhead.
51. Corvino’s discipline consisted of receiving an eighty-hour suspension whereby he lost forty Page 15 of 17
paid hours of work and a formal record of discipline was entered into his personnel file. In support of his effort to appeal his discipline through city administrative avenues, Corvino incurred significant legal fees and time spent in support of his appeal.
V. CLAIM I
52. Corvino re-alleges and incorporates herein the allegations referenced as if set forth herein.
53. Defendant City of Albuquerque is a public employer as defined by NMSA 1978, §10-16C-2C.
54. Plaintiff Corvino was a public employee of the City of Albuquerque as defined by NMSA 1978, §10-16c-2B.
55. Corvino had a reasonable basis to believe Defendants Wolf and Archibeque had acted unlawfully or improperly; when he reported their misconduct to NMLEA he acted in good faith.
56. Corvino’s actions and reporting supports good public policy.
57. Corvino’s actions and reporting of Defendants Wolf and Archibeque’s conduct with the NMLEA are activities expressly protected by sections §10-16C-2E and §10-16C-3A and B of the Whistleblower Protection Act.
58. The City of Albuquerque, by and through its employees Defendants Eden, Wolf, and Archibeque, violated the Whistleblower Protection Act by retaliating against Corvino for his activities by adversely affecting his employment, his working conditions, and disciplining him.
59. As a direct result of the City of Albuquerque’s illegal retaliation against Corvino, he was, and continues to be, damaged in an amount to be proved at trial, which includes, but is not Page 16 of 17
limited to: lost wages, lost overtime, humiliation including loss of professional reputation and standing, emotional distress and anguish, and other compensatory damages.
VI. CLAIM II—PRIMA FACIE TORT & INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
60. Corvino re-alleges and incorporates herein the allegations referenced as if set forth herein.
61. Defendant Archibeque’s conduct in retaliation against Corvino was intentional and motivated by an intent to injure and harm Corvino, or was in reckless disregard of the fact that he would be injured and harmed.
62. As the APD Academy’s "Chief of Staff," Defendant Archibeque’s conduct and actions upon Corvino was extreme and outrageous under the circumstances and duration.
63. Corvino was in fact injured and harmed by Defendant Archibeque’s actions. As a direct and proximate result of Defendant Archibeque’s actions, Corvino experienced, and continues to experience, severe emotional distress.
64. Defendant Archibeque’s conduct was unjustified, or was without sufficient justification.
65. Defendant Archibeque’s conduct was outside the scope of his duties and responsibilities as defined by SOPs thus prohibiting application of the New Mexico Tort Claims Act.
66. Defendant Archibeque’s reckless and intentional conduct was such that imposition of punitive damages is justified.
WHEREFORE Plaintiff John Corvino respectfully requests this Court grant judgment in his favor and against Defendants based on the violation of the New Mexico Whistleblower Protection Act, common law violations, award actual damages, attorney’s fees and costs, special damages, and punitive damages against individual Defendant Archibeque.
VII. JURY DEMAND Page 17 of 17
Plaintiff respectfully requests a jury on all issues so triable.
VIII. REQUEST FOR RELIEF
WHEREFORE, Plaintiff seeks the following relief:
I. Actual and compensatory damages sufficient to make Plaintiff whole;
II. Punitive damages against Defendants sufficient to punish and deter their wrongful conduct;
III. Attorney’s fees, costs, and expenses;
IV. Such other and further relief as the Court deems just and proper.
/s/ Thomas R. Grover
Thomas R. Grover
GROVER LAW, LLC
9400 Holly NE, Bldg. 4
Albuquerque, NM 87122
Office: (505) 695-2050
Fax: (505) 944-1073
Attorney for Plaintiff