Tabitha Clay is an investigative journalist with a focus on criminal justice and policing. She previously reported for the Rio Grande Sun.

*Editor’s Note – This story is part of our ongoing investigations following cases of police misconduct, law enforcement oversight and their outcomes. Last year, The Paper. found that New Mexico lacks a uniform system for reporting and tracking officer misconduct, enabling problem officers to bounce from department to department.

The Law Enforcement Academy Board (LEAB) made decisions in 205 police misconduct cases during the last three years. More than half of the officers named kept their law enforcement certifications, leading some police chiefs who filed misconduct allegations to believe that the LEAB isn’t doing enough to weed out bad cops.

Documents obtained through a public records request by The Paper. from the Department of Public Safety revealed the details of those misconduct cases.

A police officer with the Portales Police Dept was terminated after the Arizona Child Abuse Hotline received a complaint of possible child sexual abuse. As serious as the allegations were, they triggered an Internal Affairs (IA) investigation.

“[The officer] displays numerous signs indicative of a child predator. These warning signs cannot be ignored and must be taken seriously,” Chris Williams, then deputy chief, now Portales Police Chief wrote in a misconduct report filed with the New Mexico Law Enforcement Academy (NMLEA) in November 2020.

“The NMSP criminal investigation, including their evidence, is being held for two years at the request of the District Attorney’s office. This means that for at least the next two years, [the officer] will be under investigation for the crime of Criminal Sexual Contact of a Minor,” Lt. Chris Valdez wrote following an IA investigation conducted by Portales Police Department.

Still, in April 2021, the LEAB dismissed the misconduct allegations filed against the Portales Police officer. Now he is a deputy sheriff 160 miles away in Eddy County where he’s been working since November 2021.

“I think that they completely ignored [the misconduct allegations],” Chief Williams said.  “Because it’s one of those things where they don’t give us clear direction. When I sent it, they initially lost everything, I had to resend it all to them. And then they never talked to us.”

Williams said after his agency sent the misconduct report to the LEA, he got a call that they had received an envelope from them, but that it was empty. “I was like, ‘You think we sent a giant envelope with nothing in it?’” Williams said. “They lost it all somewhere, so I sent it again, and then I never heard from them.”

The charges were dismissed by the LEAB and then Eddy County Sheriff Mark Cage hired the officer in question as a deputy in November 2021. Sheriff Cage says he was aware of the allegations when he hired the officer because it came up during his agency’s background investigation.

“[The LEAB dismissal of the officer’s misconduct case] leads me to the conclusion that an applicant can move forward in the process,” Cage said. “It tells me that the LEA Board investigated it and was satisfied that there were not enough facts to sustain any action on their part.” But the LEAB did not investigate the case on their own; instead, they relied on the misconduct report from the Portales Police Dept., the IA investigation and the district attorney’s decision not to charge the officer. The board dismissed the case.

Cage admitted he did not have the full report from the IA investigation nor the misconduct report from the Portales Police Chief. He said he did not request the full investigation either. After receiving the full investigation packet that The Paper. obtained through a public records request, Cage said, “Well, this could change things.”

In a follow-up interview, the sheriff told The Paper. “I agree that some red flags were raised by the Internal Affairs investigation [Ed.: which said the officer exhibited ‘behaviors indicative of a child predator’], but the officer was never charged nor found guilty of anything by the NMLEA,” said Cage. He went on to say that the officer will not hold a position as a school resource officer nor will he interview children alone.

Williams isn’t the only police chief calling for the LEAB to conduct a more thorough review and take stronger action in cases of police misconduct. Roswell Police Chief Philip Smith also said the LEAB isn’t holding officers accountable.

Smith filed two misconduct reports against former Roswell Police officer Michael Burkowski.

“Burkowski initiated an investigation into an alleged sexual assault, without the knowledge or permission from his supervisors,” Roswell Police Internal Affairs Investigator Jon Meredith wrote in a report. “Burkowski located the victim, which happened to be the juvenile sister of his girlfriend, and immediately interviewed her on scene. Burkowski refused to set up a forensic interview for the child. He immediately ‘dumped’ her cell phone and obtained incriminating evidence, without a search warrant.”

According to the Internal Affairs report, Chaves County District Attorney Diana Luce issued a Giglio letter to Burkowski. A Giglio letter is based on a Supreme Court ruling established in Brady v Maryland and United States v Giglio that prosecutors have a duty to disclose when an officer has a known issue of misconduct in their personnel records that could affect that officer’s credibility. 

Yet, when Burkowski’s case came before the LEAB on August 20, 2020, it was dismissed, “based on lack of evidence that the [Burkowski] violated a board rule.”

DPS Spokesperson Herman Lovato stated that there is no list of “board rules” other than those contained in the New Mexico Administrative Code and state statutes.

“In the midst of the governor ranting and raving about police reform and the governor blaming everything on the police departments saying that they don’t watch their own and they don’t clean up their own messes,” Smith said, “this board is letting everyone go that we send up there to have their certifications removed, they’re getting dismissed, and they’re getting hired by other police departments, that’s about it in a nutshell.”

Smith filed a second misconduct report alleging Burkowski was untruthful with the LEAB during the investigation into the first complaint. That complaint was still pending at the end of 2021.

“He got on his soapbox and preached and unfortunately his preaching session was filled with misinformation,” Smith said. “If they’re not going to tell the truth, they’re going to be held accountable.”

Until the LEAB takes action on the second misconduct complaint, Burkowski is still working as an officer, as are many others who have had their cases dismissed.

“What it leaves me with is a neighboring police department hiring the people I fire for dishonesty, and then my officers have to work with them again,” Smith said.  “And I’m doing my job for the city of Roswell to remove those people that aren’t up to the standards, and they’re being rehired next door and keeping their certification.

Williams also expressed frustration that potentially unfit officers are working in New Mexico.

“We don’t want these guys, we don’t want them anywhere,” Williams said. “We want bad cops gone, that’s our whole thing, we’re there to protect everybody, whether it’s from criminals or bad cops.”

In total, the LEAB decided a total of 205 cases in the last three years. Of those cases, three officers were temporarily suspended following felony charges; 12 officers voluntarily relinquished their law enforcement certification;  41 officers were suspended for periods of time from 30 days to 3 years; 93 officers had their certifications revoked; and 55 cases were dismissed. The NMLEA did not respond to requests regarding the number of pending cases at this time.

Albuquerque-based Attorney Thomas Grover, who represents police officers before the LEAB, says there’s no way to predict what action will be taken for any given misconduct complaint.

“I’ve seen people sanctioned [by the LEAB] for routine, internally administrative violations,” Grover said.  “And I’ve seen people evade any sanctions when they’ve been defendants in criminal actions.”

He explained that just because there isn’t enough evidence for a criminal conviction, that doesn’t necessarily mean that there isn’t evidence of law enforcement misconduct.

“Officers don’t have a firm understanding as to what’s going to happen if they find themselves doing something that is later determined as misconduct or actually committing some sort of misconduct,” Grover said. “It’s completely gray, and it seems very arbitrary and capricious. The LEAB wields a lot of authority and I think they have a duty to the state’s police officers to conduct themselves in a way so that everybody knows where those lines are and they know, or have an idea, of what the ramifications are if they cross those lines.”

The current LEAB may soon be a thing of the past, with the passage of SB231 that will create two entities overseeing police, a training council to oversee the training aspects of policing, and a separate certification board focused on misconduct and other certification matters. That bill is on the governor’s desk now.

There was also a provision in SB231 that would have created a statewide database of police misconduct, something that multiple police chiefs, sheriffs and others expressed support for. It was removed at the last minute by Sen. Peter Wirth (D-Santa Fe).

“It’s too bad that politics got in the way of that database, because at the end of the day, it’s all about transparency and accountability,” said Barron Jones, Senior Policy Strategist for the ACLU of New Mexico.