Albuquerque Public Schools keeps an eye on it’s employees. May seem reasonable considering all the concerns regarding those responsible for our children. How they go about it may be up for discussion.
ALBUQUERQUE, N.M. (KRQE) Aug 15, 2018 – A federal court is deciding if Albuquerque Public Schools violated the privacy of its employees by hiring a private investigator to record them at work. So just how often is APS hiring private investigators, and why?
Frank Davis is an attorney representing two APS employees in a federal lawsuit. Scott Elder is the Chief Operating Officer for APS.
The two are at odds on an issue of privacy in a public workplace.
Elder told KRQE News 13 that the school district is well within its right to hire private investigators, while Davis argues what APS did to his clients is against the law.
“I was pretty surprised and shocked honestly when I found out what happened, that they were being recorded,” Davis recalled.
He’s referring to his clients Bobbie Gallegos and Regina Sanchez, who didn’t want to go on camera.
The two women worked in the same office for APS testing services back in 2016. That’s when Gallegos claims she found a voice activated audio recording device under her desk, and surveillance equipment in the ceiling above her.
An invoice shows APS paid private company Robert Caswell Investigations more than $1,000 for “Surveillance Ref: Bobbie Gallegos.”
The P.I. firm billed APS for 11.5 investigative hours. The invoice lists the installation of a listening device and camera, and a two-week camera rental under ‘Work performed/Notes.’ “They just have no clue why APS would do this to them,” Davis told KRQE News 13. He said his clients were never given an explanation as to why they were being investigated.
The lawsuit claims APS violated the Federal Wiretap Act, which “prohibits the willful interception of any wire, oral, or electronic communication.”
“You shouldn’t be recording private conversations,” Davis said. “The government shouldn’t be doing that without some warrant or some probable cause.”
While Elder wouldn’t comment on this case or any specific case, he did speak with KRQE News 13 about the district’s reasoning for hiring private investigators.
“We are public employees and we answer to the public, so there is probably a higher level of scrutiny,” Elder explained. “But I would suspect even in private business, if they suspected employee malfeasance or misconduct, that they would do some form of investigation.”
KRQE News 13 wanted to know just how often APS hires private investigators and why. Through a public records request, KRQE News 13 obtained the invoices between APS and Robert Caswell Investigations from 2016 and 2017.
Invoices show APS spent more than $56,000 on private investigators in those two years.
When asked if it was a valuable use of funds, Elder responded, “Yeah, I think so. It’s important to make sure that we protect the taxpayers’ interest as well as the district’s interest, and protect the employee rights.”
“It’s all this balance and it’s to make sure that everyone is treated equitably and fairly,” Elder added. He also said some cases may relate to insurance investigations.
Since APS heavily redacted the 39 invoices, it’s hard to tell how many cases private investigators handled for the district. However, Elder said it’s rare for APS to bring in P.I.s, and when the district does it’s for good reason, saying it protects the public’s investment in schools and kids.
“Even though it feels intrusive, it can protect people who’ve been unjustly accused,” Elder explained.
In a district with 84,000 students and nearly 12,000 employees, Elder said there are only 52 sworn officers with APS police, and not every school has a resource officer.
“There are certain things that we hire the investigator to do that our force just doesn’t have the capacity to do,” Elder said. For example, he said the APS police force does not use GPS tracking.
However, Robert Caswell does use GPS tracking. Invoices show the P.I. firm was paid for things like, “GPS tracking of APS facilities employees, surveillance on employees in reference to ‘misuse of time,’ and transporting workers to Concentra for surprise drug and alcohol screenings.
If a maintenance worker is suspected of taking side jobs on the clock for instance, Elder said GPS can be used to track APS vehicles. Depending on what investigations find, he said the district can take disciplinary measures or file criminal charges.
So at what point will APS hire private investigators?
“It’s always on a case by case basis,” Elder said.
For example, if a coworker or even a parent accuses an APS employee of misconduct, neglecting to do their jobs, or stealing equipment, Elder says supervisors will address those complaints with the employee first. Launching a private investigation won’t necessarily be step one, he said.
Still, Davis claims his clients did not receive any write-ups or warnings letting them know something was wrong.
“To my knowledge, there’s no allegation of misconduct on either of their parts,” Davis said. He said it’s still unclear what is on the recordings, and how APS may have used them.
“The societal expectation is that we will have some reasonable expectation of privacy in the workplace, and that stems from the Fourth Amendment, it has deep roots in the Fourth Amendment,” Davis explained. “And that is balanced against the employer’s interest.”
When asked if APS employees should know going into the job that they could be placed under private investigation, Elder said they should be aware of that potential.
“It’s part of your code of conduct and it’s in the employee handbook,” Elder said. “Like I say, it’s unusual, but safety is what’s important.”
Under the staff conduct section, the APS Code of Conduct states:
“The district shall reserve the right to investigate concerns of employee or volunteer misconduct involving students even if no written complaint has been filed.”
Davis argues, “I don’t see anything in there that discloses to employees that they may be recorded or surveilled while they’re at work.”
“There are many other ways short of that that APS could’ve advanced its interest,” Davis said. “I mean they do desk audits, they perform employee evaluations on a regular basis, they can look at other performance metrics to see if the employee is carrying out their duties in a proper way.”
He claims his clients have since been retaliated against. Davis said Gallegos, who’s also a Union Steward, was demoted from her title of Testing Tech to Custodian, and that Sanchez tells him someone is now assigned to observe her at work.
At the end of the day, Elder said since APS staff members are public employees, “We just have to understand there’s a high level of scrutiny, and we have to be very careful.”
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