In The Name Of The Law: What The Police Commission Isnt Doing About Misconduct – Honolulu Civil Beat

On a Wednesday just before Christmas, Chief Louis Kealoha addressed the Honolulu Police Commission.

The police commission meets twice a month, its primary role to watch over the police department, keep track of the police chief and hear citizen complaints.

But on Dec. 5, the Honolulu chief didn’t update the commission in open session on conduct in his department, pending investigations or any disciplinary actions taken against officers.

Instead, Kealoha sat at a conference table inside HPD headquarters, flanked by other uniformed officers, and touted an upcoming holiday event that he was especially proud of.

“Shop with a Cop” is a program designed to serve underprivileged children during the holidays. Police officers take a child to buy gifts they normally can’t afford, often using their own cash to help the kids out. It’s an effective community outreach program for departments across the country.

What Kealoha didn’t talk about were the three officers listed on the agenda who needed legal representation from the city because they were being sued in federal court. Kealoha didn’t offer any details and the commission didn’t ask for any.

Any members of the public at the meeting also were left to wonder about the six citizen complaints lodged against HPD officers and listed on the agenda only by case number.

Kealoha did take a few minutes to tell the commission about a letter from an Arizona couple thanking HPD for helping them out while they were vacationing on Oahu.

A few minutes later, Commission Chairman Marc Tilker ended the public portion of the meeting. The only members of the public present were a Civil Beat reporter, editor and videographer. The journalists left and they closed the door.

Inside the room, the commissioners took up Chief Kealoha’s annual performance review and the six citizen complaints — conduct unbecoming an officer, overbearing conduct, mistreatment of prisoners and threats.

The Commission Is Not What It Seems

The Honolulu, Maui, Hawaii and Kauai police commissions were created to watch over law enforcement, but their oversight powers are limited by the county charters that created them. They can’t fire a cop, other than the police chief. They can make suggestions but they can only review policies and practices of police agencies, but not put new ones in place.

The commissions only handle citizen complaints. The most serious misconduct, such as that involving crime, is typically handled in-house by a department’s internal affairs division, which closely guards the results of its investigations. From there it’s up to the prosecutors, who rely on information fed to them by the police. They don’t provide independent oversight of police.

Police commission proceedings, too, are shrouded in secrecy. Meetings take place largely behind closed doors and detailed information about misconduct investigations — even when wrongdoing is substantiated — isn’t made public. There’s no way for the public to judge for themselves if the police are being held accountable.

Tilker is unapologetic about the system of checks and balances. He’s been with the Honolulu Police Commission for the past four and half years, and when he sees that only 12 HPD officers out of nearly 2,000 have been discharged over the past 13 years he sees a clean department.

“We’re a safe, big city,” Tilker said.

But he’s not interested in taking his job any further — looking more closely at whether HPD is correctly and effectively addressing misconduct. Should more than 12 officers have lost their jobs in the past 13 years? That’s not his question to answer.

Tilker says it’s not the job of the commissioners to micro-manage the department. They put their trust in Kealoha, who Tilker says reports on disciplinary actions taken against officers during executive sessions. But Tilker won’t disclose what’s discussed in those conversations.

Kealoha refused to be interviewed for this series of stories on police misconduct and disciplinary records. He backed out on a meeting with Civil Beat in mid-February.

Police chiefs are charged with meting out punishment, not the commissions. So when the commission investigates citizen complaints, it turns its findings over to the police chief.

But Tilker believes it’s the citizen commission that has the power.

“I’ll tell you why we have the ultimate control,” Tilker said. “Because we hire and fire the chief. The chief has four stars and we have five.”

County police commissions are made up of volunteers appointed by the mayors. In Honolulu, the seven police commissioners include business and community leaders:

Max Sword, vice president of industry relations for Outrigger Enterprises Group; Cha Thompson, president of Tihati Productions and Ron Taketa, the treasurer of the Hawaii Carpenters Union.

Eddie Flores Jr., president and CEO of L&L Drive-Inn; Louella Costales, sales leader for Holiday Retirement; Helen Hamada, graphic designer and former Hawaii Government Employees Association president.

Tilker is president and CEO of Marathon Group, a financial management company, and acts as spokesman for the commission. Other commissioners contacted by Civil Beat referred questions to him.

But if, as Tilker asserts, the commission’s main job is to oversee the police chief, there are few details available to help the public see how that is handled. As with misconduct cases, much of its relationship with the chief is conducted out of the sight of the public.

The Honolulu Police Commission recently gave Kealoha high marks — a 4.1 out of 5 — in areas such as leadership, community relations and managerial skills. Tilker, who helped hire Kealoha to his first five-year term in 2009, even praised him in a press release.

“The Commission has observed the Chief develop into a confident and effective leader as his experience addressing the complexities of heading one of the 20 largest police departments in the Nation increase,” Tilker said in the statement. “The Chief clearly remains enthusiastically dedicated and focused on enhancing the quality of life in our communities through creating the safest possible environment.”

But looking at the evaluation form, the metrics are hard to decipher. When it came to management of the department, which includes handling officer discipline, the commission gave Kealoha a 4.0 out of 5, with no explanation as to why. Some of the categories they judged him on included whether he “imposes disciplinary actions within the written standards of conduct” and “imposes disciplinary actions within the requirements of the applicable collective bargaining agreements & laws.”

The Honolulu Police Commission also releases an annual report that says little about misconduct within the department. The commission’s latest report, from 2011, shows 111 decisions on complaints with 16 classified as “sustained.”

According to the report, some of the allegations in those complaints included conduct unbecoming an officer, dereliction of duty, harassment, overbearing conduct, profanity and solicitation. There’s no description of the incidents or anything that notes whether the officers were punished or forced to undergo remedial training for their actions.

The report also notes that 20 cases were referred to the Honolulu Police Department‘s Professional Standards Office. What those were about or what happened to them afterward is unknown.

Lack Of Transparency Is Historic

“The police commission is a pretty feckless group so I wouldn’t put a lot of faith in them,” says University of Hawaii journalism professor Gerald Kato. “You never know what they’re doing. Their big thing is just hiring the police chief and doing their annual review, which is pretty much secret.”

Kato was at the center of a legal fight to gain access to police disciplinary records in Hawaii. His college journalism students convinced the Hawaii Supreme Court they should be public only to have the Legislature change the law at the behest of the state’s politically influential police union, the State of Hawaii Organization of Police Officers (SHOPO).

In 1995, SHOPO won an exemption from public records law for county police officers at the Legislature. The union argued that disciplinary actions against cops should remain confidential because groups like the county police commissions and internal affairs divisions of each department already provided adequate oversight.

Kato doesn’t remember the police commission taking a strong position in that very public debate.

“Even when this thing was happening they were sort of there, but not there,” Kato said. “I don’t think they ever came up as a force to be reckoned with one way or the other.”

The Honolulu Police Commission is no stranger to controversy. In 1979, the American Civil Liberties Union of Hawaii protested the secrecy surrounding the commission’s handling of misconduct complaints. The following year ACLU teamed with several other groups in hopes of creating more transparency.

At the time, there was a push to get then-FBI Director William Webster and then-U.S. Attorney for Hawaii Walter Heen to investigate what was considered a pattern of civil rights violations by HPD.

The Honolulu Police Commission supported a federal investigation, but only after the ACLU held a press conference announcing that it had requested that the feds step in after two people died while being arrested on minor charges.

The word “secrecy” became attached to the Honolulu Police Commission in news reports and other public forums. Some members of the Honolulu City Council even expressed their concerns about the veil surrounding the commission and its proceedings. One council member called the commission “Honolulu’s most closely guarded secret.”

But, like every effort to shed more light on police misconduct, concerns for the privacy of the officers accused of wrongdoing stymied reform.

“The concern of protecting the reputations of police officers is a good concern,” former Honolulu City Council Member Welcome Fawcett told the Honolulu Star-Bulletin in 1983. “But there’s been so much concern there that I get the feeling it’s getting in the way of protecting citizens.”

Some, like Kato, insist that more transparency would undoubtedly lead to less corruption because it would expose officers who were found to have broken the rules.

But others question the point.

Honolulu attorney Michael Green says he’s represented scores of police officers accused of crimes. He was also hired by SHOPO in the mid-’90s to help keep police disciplinary records from being released to Kato’s UH journalism students.

“Unless you live in a little town that has three cops you’re never going to have a perfect system,” Green said. “There’s corruption slash misconduct in every department in the country. It just depends on to what extent it is. It also deals with how aggressive the department is in retraining and getting rid of the bad ones.”

If Not The Police Commission, Then Who Does Watch Over The Police?

In Hawaii it’s tough tell how good a job police agencies are doing at dealing with “the bad ones.” Police officials won’t reveal much information, citing privacy concerns and the public records exemption.

Civil Beat’s analysis of HPD data found that nearly 40 percent of HPD officers who are fired for misconduct get their jobs back. Civil Beat’s investigation also found that dozens of officers who were convicted of crimes have been allowed to stay on the force.

Federal and county prosecutors can go after bad cops, but they also acknowledge that for the most part they don’t conduct independent investigations. They take the cases brought to them by the police departments.

“My perspective is not to address the grievance process, that’s a civil matter, that’s a union matter, that’s an internal matter,” says Honolulu Prosecutor Keith Kaneshiro. “My involvement is the criminal process. If there’s a crime alleged and we prosecute based on the crime and the evidence that’s all we do. The crimes.

“We don’t get involved in a public policy issue of release of names, or stuff like that. We’re involved in whether there’s criminal prosecution.”

Once charges are filed, the public can find information about the alleged crimes in court records. SHOPO has argued that this was enough to expose bad cops.

But not all cases that are forwarded to the prosecutor’s office result in charges. And not all cases are even forwarded to the prosecutor to begin with.

Civil Beat found that HPD officers committed 111 criminal acts, according to information in the annual misconduct report filed with the Legislature. There’s no information on how many or which cases were actually turned over for prosecution.

County prosecutors in Honolulu, Maui, Kauai and on the Big Island say they don’t track or keep a record of prosecutions of police officers.

Still, Kaneshiro says he believes it’s important to aggressively pursue cases against cops if the evidence is there.

“We do look at police cases and we look at them seriously,” he said. “The reason why is once the public loses trust in the integrity of the prosecutor’s office or the police department, law enforcement suffers all over the place. If people are there to enforce the law but they don’t follow the law then the community will not have any faith in the system.”

Kaneshiro pointed to the case of Scott Valdez, an HPD officer who in September 2010 was accused of assaulting a 17-year-old motorist on H-1 who’d made an obscene gesture at him. Kaneshiro said he vigorously prosecuted Valdez, taking the case to trial twice. But charges were eventually dismissed after neither jury could come to a decision.

Kanehshiro took on a group of officers who had falsified drunken-driving police reports in an attempt to get more overtime pay. Former Mayor Peter Carlisle initially charged this case while he was the county prosecutor but was unsuccessful in getting a conviction.

In the end, several of the officers whose cases had previously been dismissed pleaded no contest to tampering with a government record. Part of the deal for the pleas, however, included a guarantee that if the officers stayed out of trouble for three to six months the crime would be expunged from their records.

Beyond a check on the extraordinary power of the police over ordinary citizens, the public has other reasons to be interested in how police misconduct is being handled.

In the case of the officers who falsified the DUI reports, the prosecutors office had to dismiss more than 200 cases. The Honolulu Police Department would not say whether any of those officers were suspended for the action. None were discharged.

Honolulu also regularly pays for police misconduct through settlements and lawsuits filed against the city by victims. The true extent of that public cost — potentially millions of dollars — is hard to calculate though.

Civil Beat filed a public records request with city attorneys six months ago for information on lawsuits, settlements and claims involving police officers. The Corporation Counsel’s office asked us to narrow our request to just the past five years but has yet to produce any information.

Union Contract Controls How Misconduct Is Handled

Civil Beat has repeatedly asked SHOPO leaders to talk with us for this story. They have refused to return numerous calls left with the union’s spokeswoman and other representatives.

But the 92-page contract describes in detail how the disciplinary process plays out.

The SHOPO contract dictates multi-layered disciplinary process that critics say handcuffs police administrators who are trying to weed out bad cops. The contract puts a premium on confidentiality, including a provision that states that all disciplinary matters, including investigations, shall remain secret.

Commentary in the contract also notes that this confidentiality clause “may conflict” with Hawaii’s public records and “may be subject to legal challenge.”

That’s the union’s nod to a 1996 Hawaii Supreme Court ruling that rejected SHOPO’s argument that its contract takes precedence over the state’s public records law. The high court ordered disciplinary files released to UH journalism students, but by then SHOPO had won an exemption to the law from the Legislature.

Through the bargaining process, SHOPO got its members a strong grievance procedure that effectively gives officers up to four opportunities to appeal a disciplinary ruling. The grievance and discipline processes are some of the most detailed segments of SHOPO’s collective bargaining agreement. Only pay, benefits and other issues of compensation are treated more explicitly.

Disciplinary action can be taken by the chief or a supervisor.

Under the contract, a department administrator can overturn a disciplinary action. The next appeal is to the police chief then the city’s human resources department and ultimately an independent arbitrator.

Critics say the SHOPO contract and it’s burdensome disciplinary process discourages HPD and the other departments from more rigorous pursuit of misconduct. It allows bad cops to keep their jobs even if there’s been serious wrongdoing, like domestic violence or assaulting a co-worker, they say.

“Basically the grievance procedure has become this kind of process for keeping people on the force who everybody knows shouldn’t be there,” Kato said. “You should try to get rid of people who are doing dishonor to the force. And I’m sure the union thinks all for one, one for all.”

But HPD Capt. Andrew Lum says his department does the best it can when it comes to handling misconduct in the ranks. He acknowledges SHOPO has a significant influence in the process.

“That’s part of the challenge in discipline in general,” Lum said. “It’s not administered one-sided. What the department decides is not the final action.”

For instance, the police chief can discharge an officer for misconduct, but that doesn’t mean that individual will lose their job. While an officer might be put on leave or reassigned to a desk job, Lum said the appeals process can take years to go through and result in that officer keeping their badge.

He also noted that the more severe the disciplinary action, the more likely it is the department will see an appeal. Sometimes, he said, bad cops will get to keep their jobs.

“I don’t think we look at SHOPO as a hindrance or a thorn,” Lum said. “You have to respect the fact that there is representation for the employees.”

Honolulu attorney Eric Seitz considers SHOPO’s power over the police administration to be a significant problem. As a plaintiffs’ attorney, he frequently brings cases against the HPD and its officers. He says the same kind of problems crop up consistently — suspects being detained longer than the law allows, for instance. Rather than being stopped by the administration through discipline, it’s allowed to continue, he says.

“It is a big department, but they have a culture of not addressing these things unless they’re told to do so,” Seitz said. “And I think one of the reasons is SHOPO intimidates the hell out of them.”

In October 2000, then-HPD officer Clyde Arakawa hit and killed 19-year-old Dana Ambrose while he was driving driving drunk. During trial it was revealed that Arakawa had previously been found drunk and passed out in a Kailua home in 1992.

Seitz took the case to federal court where he prevailed. Although there was no monetary award, the settlement agreement forced HPD to improve its policies on alcohol abuse. At the time of the 2004 settlement, HPD’s substance abuse policy didn’t include alcohol.

“It took a lawsuit to do that,” Seitz said. “Until and unless that happens they’re going to minimize these things.”

Via – In The Name Of The Law: What The Police Commission Isnt Doing About Misconduct – Honolulu Civil Beat.