2008-04-07_Bill 270_Ordinance_re_Office_of_Police_Oversight

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Honorable Brenda Ford April 7, 2008 Page 10 The present draft of Bill 270 effectively creates a County office whose function is to conduct investigations of police misconduct, a purely administrative function. The director is appointed solely by the Council, without any input from the administration, the police department, or Police Commission. The bill essentially proposes that this office not only oversee, but actually perform investigatory functions, such as issue subpoenas and make findings and conclusions with respect to each case of alleged misconduct. The bill also provides that the chief shall be evaluated by this office. The bill then makes clear the overall governance and direction of the office shall be under the Council: Section 3-3.9. Administrative Supervision. The office of police oversight and complaints shall come under the general administrative supervision of the council, which shall conduct annual reviews. The council shall budget sufficient funds to assure that the goals and objectives of this chapter can be attained and shall not interfere with the administration of the office of police oversight and complaints and its director. This presents separation of powers issues that may provide the basis for claims made against individual Council members for acting outside the scope of their legislative authority. This bill, if passed in its present form, effectively emasculates the authority of the administration in performing a core police function; to wit: the investigation of misconduct complaints against police officers. There is very limited judicial authority (case law) in Hawaii concerning legislative immunity. However, it is well established in other jurisdictions that council members are not immune from lawsuits brought under federal law (USCA Section 1983) for civil rights violations occasioned as a result of the legislator exceeding his or her legislative function. Mission Springs, Inc. v. City of Spokane, 134 Wash.2d 947, 954 P.2d 250 (Wash. 1998). Based on the foregoing, our conservative legal advice to the Council is to carefully consider this proposed legislation and move forward only if there is a clear need for intervention and overhaul of the present police misconduct investigatory system. 5. Is the present system of police misconduct investigation working effectively? As with many facets of operations within our County, the present system is a work in progress that could benefit from improvement. A common frustration experienced by some police commissioners are their "gut feeling" that something inappropriate may have happened, but the lack of credible evidence either convicting or exonerating the police officer. This often happens in cases where there are no witnesses, and all that is available for review is the statement of the complainant and the statement of the accused police officer (i.e., a "credibility shootout"). Commissioners are consistently advised since this is an employee misconduct hearing, there must be sufficient evidence to tip the scales in favor of