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HomeMy WebLinkAboutCOM 0831.002 2004-2006 ,Vol, o+•Lincoln S.T. Ashida Harry Kim b4 Corporation Counsel Mayor Gerald Takase Assistant Corporation .o%•~~'"~ Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 - Hilo, Hawaii 96720-4262 - (808) 961-8251 - Fax (808) 961-8622 May 4, 2006 Honorable Stacy K. Higa and Members of the Hawaii County Council County of Hawaii 25 Aupuni St. Hilo, HI 96720 Dear Chairman Higa and Council Members: RE: Bill 270 (Independent Police Auditor) Our Entry: WRK 06-12224 Thank you for seeking the assistance of our office in addressing concerns regarding Bill 270 (relating to a Charter amendment to create an independent police auditor) raised by the Hawaii County Council Committee on Public Safety and Parks and Recreation at its meeting on May 1, 2006. After the meeting, I reviewed opinions authored and issued by Deputy Corporation Counsel Craig Masuda dated April 5, 2006, and April 24, 2006 (enclosed), together with the related research material and other documents.' At the onset, we commend the author and proponents of this bill as manifesting a genuine desire to explore ways to improve the civilian oversight function of the Hawaii Police Department as contemplated in our Hawaii County Charter (2000) (hereinafter "Charter"). I respectfully offer the following comments concerning Mr. Masuda's opinions and Bill 270 in general (the Council's original questions are italicized). The present communication is not sent under attorney-client privileged cover, ' As represented at the May 1, 2006, meeting, I originally "screened" myself from legal work in this matter, since as legal representative of the Hawaii Police Commission, I maintained an attorney-client relationship with former Police Commissioner Paul De Silva, a proponent of Bill 270, and believed it prudent to avoid the appearance of impropriety by allowing an independent attorney from our office to see to the legal needs of Councilman Bob Jacobson. Mr. Jacobson's oral and public representations at the May 1, 2006, placing Mr. Masuda's legal opinions in the public domain have since obviated any privilege the Council may have had with respect to these opinions, and consequently allow me to comment thereon. 831 Comm. No. - Ref. To: 1AA1 Hawai'i County is an Equal Opportunity Employer and Provider RU. La>., M 4v n c I i Honorable Stacy K. Higa and Members of the Hawaii County Council May 4, 2006 Page 2 since the majority of my comments were already presented orally and publicly to you at our meeting on May 1, 2006. 1. How would Hawaii Revised Statutes ("HRS'), Section 92F-19 impact such an independent auditor's access to internal affairs records? 2. Does application of HRS Section 92F-19 currently impact police commission access to internal affairs records? Mr. Masuda's conclusion that "HRS Section 92F-19 would not impact such an independent auditor's access to internal affairs records" is generally accurate, assuming (1) the Police Department acquiesces to the release of these records, and (2) the independent police auditor, as the Police Commission has already done, seeks to establish an amicable working relationship with the Police Department with respect to the sharing of sensitive information. No doubt internal affairs records are "government records" within the definition found in HRS Chapter 92F, commonly referred to as the Uniform Information Practices Act (hereinafter "UIPA"). Government records are generally available for public inspection and copying, unless such public inspection and copying is prohibited by law. Further, the UIPA contains limited exceptions that allow an agency to withhold both public inspection and the copying of records, if certain criteria are met. Therefore, it is clear these sensitive records may be withheld from public dissemination pursuant to HRS Sections 92F-13 and 92F-14.2 2 HRS Section 93F-13 provides as follows: Government records; exceptions to general rule. This part shall not require disclosure of: (1) Government records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy; (2) Government records pertaining to the prosecution or defense of any judicial or quasi-judicial action to which the State or any county is or may be a party, to the extent that such records would not be discoverable; (3) Government records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function; (4) Government records which, pursuant to state or federal law including an order of any state or federal court, are protected from disclosure; and (5) Inchoate and draft working papers of legislative committees including budget worksheets and unfiled committee reports; work product; records or transcripts of an investigating committee of the legislature which are closed by rules adopted pursuant to section 21-4 and the personal files of members of the legislature. HRS Section 92F-14 provides in pertinent part as follows: Honorable Stacy K. Higa and Members of the Hawaii County Council May 4, 2006 Page 3 Similarly, HRS Section 92F-19 simply provides that the custodial agency may disclose these records to other agencies, upon the meeting of specified criteria. There is no requirement these records be disclosed. Simply put, assuming Bill 270 in its present version passes, it does nothing to mandate the disclosure of internal affairs records to the independent auditor.3 The Police Significant privacy interest; examples. (a) Disclosure of a government record shall not constitute a clearly unwarranted invasion of personal privacy if the public interest in disclosure outweighs the privacy interest of the individual. (b) The following are examples of information in which the individual has a significant privacy interest: + r • r + (2) Information identifiable as part of an investigation into a possible violation of criminal law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation; « ? • w r (4) Information in an agency's personnel file, or applications, nominations, recommendations, or proposals for public employment or appointment to a governmental position, except: (A) Information disclosed under section 92F-12(a)(14); and (B) The following information related to employment misconduct that results in an employee's suspension or discharge: (i) The name of the employee; (ii) The nature of the employment related misconduct; (iii) The agency's summary of the allegations of misconduct; (iv) Findings of fact and conclusions of law; and (v) The disciplinary action taken by the agency; when the following has occurred: the highest non judicial grievance adjustment procedure timely invoked by the employee or the employee's representative has concluded; a written decision sustaining the suspension or discharge has been issued after this procedure; and thirty calendar days have elapsed following the issuance of the decision; provided that this subparagraph shall not apply to a county police department officer except in a case which results in the discharge of the officer; 3 We recognize the proposed language of Bill 270 provides for subpoena power. Although the authority to issue a subpoena may be authorized by the bill, the Police Department would reserve the right to seek the quashing of the subpoena. The Police Department may also legally seek to prohibit the disclosure of sensitive records through an injunction or other legal remedy. It is also Honorable Stacy K. Higa and Members of the Hawaii County Council May 4, 2006 Page 4 Department, as the custodial agency, retains the responsibility of caring for these records and deciding whether it is appropriate to share these records and information within the limitations of the law. This is exactly the reason the Police Commission, through negotiations with the police administration, developed a mutually agreeable process wherein police records and internal affairs information is shared in camera with the Commission, whenever the Commission is charged with investigating a charge of police misconduct. This is the process followed now, and one that was established within the last five years. Assuming the power of civilian oversight is divested from the Police Commission and conferred upon the independent auditor, absent a mandate from a court, there would be a need to arrange for a mutually agreeable protocol for the sharing of sensitive information, as presently exists between the Police Department and Police Commission. 3. Are you aware of any settlements or other binding agreements between the County and police union that would prohibit an independent police auditor, as an agent of the County, from having access to police internal affairs records or any other police department records? Mr. Masuda's caveat that employer-union consultation occur prior to the enactment of any legislation is very well taken. For this reason, we would respectfully recommend the County of Hawai'i's Personnel Director be consulted to provide the Council with puidance and information on this matter, in the event Bill 270 progresses further. To further supplement Mr. Masuda's response to Question No. 3, enclosed is a copy of the Settlement Agreement dated April 20, 2005, between the police union and County of Hawaii (employer). Since the signing and filing of this Settlement Agreement, the Police Commission has undertaken to modify its procedures to comply with the letter and spirit of this Settlement Agreement, while providing for appropriate civilian oversight. To this end, the Commission has correctly recognized that their oversight function may best be served by conducting a review of the police likely, given the statements and sentiments shared by the SHOPO representative at the May 1, 2006, meeting, that the police union would similarly join in such legal resistance. a The County's Personnel Director remarked to our office that he would be willing to address any concerns the Council may have concerning the duty of the employer to meet and confer with the police union on substantive changes made to the collective bargaining agreement. Honorable Stacy K. Higa and Members of the Hawaii County Council May 4, 2006 Page 5 misconduct investigation process after it has been completed, instead of conducting a "concurrent" investigation as was previously done in the past. Such a procedure is also consistent with the Charter mandate found at Article VII, Chapter 2, Section 7-2.2(c)(9), providing that "except for purposes of inquiry, neither the commission nor its members shall interfere in any way with the administrative affairs of the (police) department." 4. Are there other legal impediments to the establishment of an independent police auditor? Mr. Masuda's reiteration of the need for meaningful consultation with the police union prior to the implementation of any legislation cannot be stressed enough. In fact, these were salient concerns raised by Councilman Gary Safarik at the May 1, 2006, meeting that were not fully resolved in our discussion. Further, Mr. Masuda's final comments in his April 5, 2006, opinion interestingly echo concerns raised by Council members at the Committee meeting: 1. The proposed charter amendment does not state who the independent auditor will answer to, nor does it state a funding source or oversight mechanism. 2. Concentration of powers and authority as proposed into one person may be an issue where there is no apparent oversight mechanism in place. 3. Content of the report of the independent auditor and relative privacy issues for the department member and complainant. A final thought in response to Councilman Bob Jacobson's very important fourth question posed to our office. Under our present system of governance in our County, the Police Chief is appointed by a citizen commission. These commissioners are appointed by the Mayor and confirmed by the Council. As our office reminds our commissioners, they are the Chiefs appointing authority, "but not his boss." In other words, our Charters and system of laws make clear the administrative activities of the Police Department (including matters related to labor and personnel) are the exclusive responsibility of the Chief and his administration. This system of "checks and balances" presupposes that neither the mayoral administration nor Council should have any control over the day-to-day activities of our Police Department. e Article VII, Chapter 2, Section 7-2.2(c)(9), Hawaii County Charter (2000), supra. Honorable Stacy K. Higa and Members of the Hawaii County Council May 4, 2006 Page 6 An independent police auditor, as contemplated in the subject proposed legislation, would be an appointee of the Council and the Council alone. There would be no administration input into the hiring of this person. The powers of the proposed independent police auditor appear to be more than an "after-the-fact" review of police administrative and operational activity. By allowing this "auditor" to be present during administrative review board hearings, for example, is tantamount to allowing the auditor to participate in the investigatory process. Further, the provisions that propose the auditor direct further investigation are similarly of concern. Perhaps the most important tool available to law enforcement officers conducting internal investigations is the process discussed in Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616 (N.J. 1967). In that monumental case, the United States Supreme Court carved into law what has come today to be known as "Garrity rights" for police officers. Under this process, police officers being administratively investigated by the police authority are given a choice either to incriminate themselves or to forfeit their employment. Since the incriminating admissions are not voluntary, the Fourteenth Amendment to the United States Constitution prohibits the use of the statements in a subsequent (or contemporaneous) criminal proceeding. This is exactly why, in our opinion, the present draft of Bill 270 provides, inter alia, that the independent police auditor would have the authority to "participate in the department's investigative interviews related to such complaints at the discretion of the independent police auditor." There is obviously recognition on the part of the proponents of this bill that the independent police auditor cannot in fact operate "independently." This is because in order to avail themselves of the benefits of Garrity v. State of New Jersey, supra, there is a need for a police internal affairs investigation. Suffice it to say anyone who disagrees with the introduction of an independent police auditor may be accused of having "something to hide," or may be confronted with the argument of, "How do we know if something is wrong unless we can participate in the investigatory process?" As policy makers for our County, it is within the province of the Council to decide whether there is a need in our community to micromanage our Police Department to the point of having joint investigations into alleged wrongdoing conducted by a Council appointee who, pursuant to the proposed Charter amendment, would not need to answer to the Council, Mayor, or Chief. As keenly observed by some Council members at the May 1, 2006, meeting, although the present system may not be perfect, it nonetheless contains Honorable Stacy K. Higa and Members of the Hawaii County Council May 4, 2006 Page 7 the safeguards of checks and balances necessary to a democratic form of governance, and ensures "ultimate power" is not given to one entity (or person). Under our present system, if there truly are rampant problems within our police department, our citizens are encouraged to report misconduct to either the Police Department administration, or the Hawaii Police Commission. Either way, the complaints are investigated. Since the Police Commission is a board subject to the Sunshine Law, all proceedings, to the extent legally permitted, are done in public, and complaints cannot be "swept under the rug." On balance, this public process may arguably promote more accountability than the proposed independent police auditor, whose unilateral recommendations are those of a Council appointee who does not answer to our Council, Mayor, or Chief. No doubt Bill 270 is well intended and seeks to enhance accountability in our County Police Department. The proponents of this bill should be commended for this effort. However, on balance, perhaps a thorough examination of the present operations of our Police Department may be more appropriate, as well as an examination of the current effectiveness of our Police Commission in performing the civilian oversight function, prior to seeking an amendment to our Charter that creates what amounts to a "Super Chief," and the displacement of our current check and balance system. Thank you again for requesting the assistance of our office in addressing the questions presented on May 1, 2006. Please contact me if further assistance is required. Very truly yours, ayw- LINCOLN S. T. ASHIDA Corporation Counsel Encls. c: Honorable Harry Kim, Mayor (w/ encls.) Honorable Lawrence K. Mahuna, Police Chief (w/ encls.) Honorable Pudding Lassiter and Members of the Hawaii Police Commission (w/ encls.) S: Boards/Police Commission/Corresp./Letter re Bill 270 5-3-06/LSAmr Harry Kim Lincoln S.T. Ashida Mayor _ _ Corporation Counsel Gerald Takase COUNTY OF HAWAPI Assistant Corporation Course OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720.4262 • (808) 961.8251 • Fu (808) %1.8622 April 24, 2006 Confidential: Attorney-Client Privilege Not to Be Copied, Released Or Circulated To The Public Or Anyone Without The Consent of the Hawaii County Council Councilman Bob Jacobson Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 Dear Councilman Jacobson: Re: Personal Liability of Council Member Resulting from Introducing Legislation Corporation Counsel WRK No. 06-12125 This is in response to your request for "formal legal advice regarding any personal legal liability that 1, or any other Council Member, can face as a result of introducing legislation." Specifically, can an individual, organization, or other entity take legal action against a Council Member as an individual because of alleged impact of legislation introduced by that Member? In relevant part, the Hawaii State Constitution Article 3, section 7 states, "{n]o member of the legislature shall be held to answer before any other tribunal for any statement made or action taken in the exercise of the members legislative functions The Hawaii State Supreme Court, in interpreting this Article, noted that the intent of the drafters was to grant a broad scope of legislative immunity and "further intended for the courts to finally determine the parameter of the legislative immunity by construing the clause 'the exercise of his (legislator's) legislative function' on a case by case basis." Abercombie v. McClung, 55 Haw. 598, 600, 525 P.2d 594, 597 (1974). In other words, while legislators have constitutional immunity for their legislative actions, it is the courts which will decide if the legislator's action was within the scope of his legislative function based on the facts of an individual case. Mehau v. Gannett Pacific Group, 66 Haw. 133, 658 P.2d 312 (1983) Hawaii County is an Equal Opportunity Provider and Employer 11 1, ~l, Councilman Bob Jacobson April 24, 2006 Page 2 15 Am. Jur. 2d Civil Rights § 108 (2"d Edition) cites to a collection of cases where various courts have found that the introduction of legislation was covered by legislative immunity as a legitimate legislative function. This citation further noted that were the legislative act was found to be a legitimate legislative function that the legislators had immunity against civil rights allegations under 42 U.S.C.A. § 1983. Please note however that, as with any issue or case, even if a determination of legislative immunity is ultimately made this does not prevent individuals, organizations, or other entities from filing a legal action. Sincerely, GJ a~ C IG T. MASUDA t Deputy Corporation Counsel ~i CTM:fc s:\dept\police\06-12125 Itr tojacobson re legislative immunity for introduction\4-24-06UKKfc.doc Harry Kim Lincoln S.T. Ashida Mayor - Corporation Counsel Genic! Takase COUNTY of HAwAPI Asm=t Corporation Counsel OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suim 325 • Hilo, Hawai'i 96720-4262 • (808) 961.8251 - Fax (808) 961.8622 April 5, 2006 CONFIDENTIAL: ATTORNEY-CLIENT PRIVILEGE NOT TO BE COPIED, RELEASED OR CIRCULATED TO THE PUBLIC OR ANYONE WITHOUT PRIOR CONSENT The Honorable Bob Jacobson Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 Dear Councilman Jacobson: Re. Application ojHawairiRevised Statutes §92F-19 on proposed Independent Police Auditor WRKNo. 06-11931 (RUSH) Issues Presented: 1. How would Hawaii Revised Statutes ("H.R.S."), §92F-19 impact such an independent police auditor's access to internal affairs records? 2. Does application of H.R.S. §9217-19 currently impact police commission access to internal affairs records? 3. Are you aware of any settlements or other binding agreements between the County and police union that would prohibit an independent police auditor, as an agent of the County, from having access to police internal affairs records or any other police department records? 4. Are there other legal impediments to the establishment of an independent police auditor? Facts: Attached is the draft ordinance that was provided to me for review. Hawai'i County is an Equal Opportunity Provider and Employer I Honorable Bob Jacobson April 5, 2006 Page 2 Response: 1. How would H.R.S. §92F-19 impact an independent police auditor's access to internal affairs records? H.R.S. §92F-19, in relevant portions, states: No agency may disclose or authorize the disclosure of government records to any other agency unless the disclosure is: (1) necessary for the performance of the requesting agency's duties and functions and is also; (A) Compatible with the purpose for which the information was collected or obtained; or (B) Consistent with the conditions or reasonable expectations of use and disclosure under which the information was provided; The draft of the proposed charter amendment, while removing powers and duties of the police commission, does not specifically transfer these powers and duties to the independent auditor. For purposes of this response it is presumed that your intent was to have the powers and duties removed from the police commission and transferred to the independent auditor. Based on the presumption that the independent auditor will be charged with the power and duties of receiving, considering and investigating charges brought by the public against the conduct of the department or its members, and the rules, regulations and operations of the department as is currently with the police commission, it appears that H.R.S. §92F-19 would not impact such an independent auditor's access to internal affairs records. 2. Does application of H.R.S. §92F-19 currently impact police commission access to internal affairs records? No. To the extent that the police commission's powers, duties and use of the internal affairs records remain as necessary to carry out their function as the police commission, H.R.S. §9217-19 does not impact their access to internal affairs records. 3. Are you aware of any settlements or other binding agreements between the County and police union that would prohibit an independent police auditor, as an agency of the County, from having access to police internal affairs records or any other police department records? State of Hawaii Organization of Police Officers (hereinafter referred to as "SHOPO") Bargaining Unit 12 Agreement, July 1, 2003 - June 30, 2007, Article 12: Police Officer's Protection -Administrative Investigations and Interrogations and Article 13: Discipline and Honorable Bob Jacobson April 5, 2006 Page 3 Dismissal, are employee rights that were negotiated and bargained for under the present contract. As the transfer of powers from the police commission to the independent auditor appears to be a significant change, SHOPO will likely demand a consultation or agreement be reached on this matter. Please note that there is case law that suggest that this consultation or agreement must occur prior to enactment of this legislation. See, Pontiac Police Officers Association v. City of Pontiac, 246 N. W.2d 831(Mich. 1976) and Spokane Police Guild and City of Spokane, Decision 5054, PECB (Wash. PERC Hearing Examiner 1995) Note: Spokane Police Guild and City of Spokane, Decision 5054 was not available for review in full but its holding is noted in The Rights of Law Enforcement Officers, The Labor Relations Information Systems, (4th ed. 2000). 4. Are there other legal impediments to the establishment of an independent police auditor? While the proposed ordinance does fulfill the requirement of H.R.S. §52D-1 that a police commission be established and that the counties prescribe the powers and functions of the commission; this proposed ordinance calls into question the functionality of the commission and therefore calls into question the legality of the ordinance. This proposed ordinance seeks the removal critical functions of the police commission. Specifically the removal of Hawaii County Charter Section 7-2.2(c)(1): Adopt such rules as it may consider necessary for the conduct of its business and the regulation of the matters committed to its charge and may review the rules and regulations ofthe department. Section 7-2.2(c)(4): Receive, consider and investigate charges brought by the public against the conduct of the department or any of its members and submit a written report of its findings to the chief ofpolice. A summary of the charges filed and their disposition shall be included in the annual report of the commission. There shall be budgeted sufficient funds in the annual budget of the police department for use by the police commission to fulfll the intent of this section. Section 7-2.2(c)(6): Review the department's operations, as deemed necessary, for the purpose of recommending improvements to the police chief and the managing director. This essentially leaves the police commission only with the duty to review the department's budget but not their operations. Removal of these powers and duties call into question the functionality of the police commission. Additionally, as noted above, case law from other jurisdictions indicates that there is a need to consult or have an agreement on this ordinance prior to enactment by the Council. Honorable Bob Jacobson April 5, 2006 Page 4 Comments: The following are policy decisions which you may wish to address: 1. The proposed charter amendment does not state who the independent police auditor will answer to, nor does it state a fimding source or oversight mechanism. 2. Concentration of powers and authority as proposed into one person may be an issue where there is no apparent oversight mechanism in place. 3. Content of the report of the independent auditor and relative privacy issues for the department member and complainant. Thank you for allowing us to assist you in this matter. Sincerely, t CRAIG ASIJDA Deputy orporation Counsel CTM:stw Encl. sAep@J'olice\W RK 064I93I4tr to Jacobson re police auditorW-5-06\CTMstw.doc I fY M NI`` COUNTY OF HAWAII STATE OF HAWAII BILL NO. ORDINANCE NO. AN ORDINANCE TO INITIATE A CHARTER AMENDMENTAMENDING ARTICLE VII, CHAPTER 2 OF THE HAWAII COUNTY CHARTER (2000) RELATING TO THE POLICE DEPARTMENT, AND TO ADD A NEW CHAPTER 5 IN ARTICLE VII RELATING TO AN INDEPENDENT POLICE AUDITOR. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Background: In the present circumstances, misconduct in the police department is difficult to determine or to refute because there is no meaningful oversight. Without meaningful oversight police corruption in Hawaii County has in recent years resulted in litigation and liability payments by the county, and promotions due police officers were denied. The improvement of oversight, from a source external to and not under the influence of the police department, will allow a better appraisal of the police department on a first hand basis by an independent auditor. The police auditor will be independent of the county administration, the county council, and the police department. Currently, the oversight is a responsibility of the police commission, a part of the police department from which its budget derives. Meaningful oversight provides a mechanism for assessment of the need for change and also serves a deterrent to the risk of misconduct. An independent police auditor protecting against corruption and abuse of power provides insurance against a tarnished reputation and diminished effectiveness of law enforcement. SECTION 2. Purpose: The proposed charter amendments remove the responsibility for oversight of the police department from the police commission and assign this responsibility to a full time independent police auditor nominated by the mayor and ratified by the council. Along with this responsibility for oversight, the ability to hire staff is also reassigned from the police commission to the independent police auditor. The police commission is retained as required by statute with the continuing powers and duties to evaluate, hire and fire the chief of police, and to review and make recommendations regarding the department's budget. SECTION 3. Chapter 2 of the Hawaii County Charter (2000) relating to the Police Department is hereby amended to read as follows: "Section 7-2.1. Organization. There shall be a police department consisting of a police commission, a chief of police, a deputy chief of police, and the necessary staff. Section 7-2.2. Statement of policy. It is hereby declared to be the purpose of this chapter of the charter to establish in the county a system of law enforcement which shall be based on due regard for the constitutional rights of all persons, which shall promote the highest possible degree of mutual respect between law enforcement officers and the people of the county and which shall provide for the expeditious apprehension of those who violate the law. In order that these purposes may be achieved, the police department shall be operated in accordance with the following (1) Standards of recruitment shall be designed to attract into the service persons with high degrees of education, intelligence and personal stability. (2) Promotions shall be based upon fair standards of merit and ability which shall include peacekeeping and law enforcement criteria. (3) Grievance procedures for the people and police officers of the county shall be based on due regard for their constitutional rights. Section 17 2.2.17-2.3. Police Commission. (a) The police commission shall consist of nine members. One member shall be a resident of each council district. The members shall be appointed by the mayor and confirmed by the council in the manner prescribed in section 13-4. te establish in the eeuR4y a system of law enfer-eemefAA~eh shall be based en due regard fer t eenstitatienal fights ef all persens, whieh shall pr-emete the Wghest possible degree ef fnuwal (1) Standards ef r-eefuitment shall be designed te a4vast into the th ] Powers and Duties. The police commission shall: (1) Adopt such rules as it may consider necessary for the conduct of its business and the regulation of the matters committed to its charge [and may review the n4les And regulatiens of the depai4fne- 1. (2) Review the annual budget prepared by the chief of police and may make recommendations thereon to the mayor and managing director. (3) Submit an annual report to the mayor, the managing director, and the council. CF •ent f nds in the annual budget e f the peliee a.,paFtme"4 for use by the peli,, to a.ictt the intent a (this seetien.] [(-5)1(4) Advise the mayor, the managing director, the council, and the chief of police on police-community relations. /6\ De..:,... . the depaAma..N.. operations, as deemed „ ..e......r,4e« the purpose e r-eeemmending impr-evements to the peliee chief and the managing ] [(-7)] (5) At least annually, jointly with the independent policy auditor, [E]gvaluate [at least aanually] the performance of the police chief and submit a report to the mayor, the managing director, and the council. [/Q, v:«e _ e' » , eaffy ut it u nom....] Except for purposes of inquiry and review necessary to the fore oing, neither the commission nor its members shall interfere in any way with the administrative affairs of the department. Section [7-2~] 7-2.4. Chief of Police and Deputy. The chief of police shall be appointed by the police commission and may be removed by the police commission at its sole discretion. Any motion for removal of the chief of police must contain a statement of reasons, and the commission shall not vote to remove the chief of police unless the chief of police has been given an opportunity to respond to the statement of reasons at a hearing before the commission. The deputy shall be appointed by the chief of police with the confirmation of the police commission and may be removed by the chief of police with the approval of the commission, without cause being stated. The chief of police shall have had a minimum of five years of training and experience in law enforcement work, including at least three years in a responsible administrative capacity. Section [7-2:4.] 7-2.5. Powers, Duties, and Functions of the Chief of Police. The chief of police shall be the administrative head of the police department and shall: (a) Be responsible for the preservation of the public peace, prevention of crime, detection and arrest offenders against the law, protection of the rights of persons and property, and enforcement and prevention of violations of all laws of the state and ordinances of the county and all regulations made in accordance therewith. (b) Train, equip, maintain, and supervise the force of police officers and employees. (c) Promulgate rules and regulations for the organization and administration of the police force. (d) Make periodic reports to the police commission and the independent police auditor about the activities of the police department and about actions taken on cases investigated by the independent police issienj auditor. (e) Have such other powers, duties, and functions as may be [required oy the peliee saFFa . ion-eF] provided by law, including an~statute or Hawaii Countv ordinance. Section [7-23:] 7-2.6. Dismissal, Suspension, Demotion, or Grievance. The dismissal, suspension, demotion, or grievance of any police officer or employee in the police department shall be under procedures set forth by civil service laws and regulations. Section [7 33 ] 7-2.7. Administrative Supervision. The police department shall come under the general supervision and control of the mayor, through the managing director." SECTION 4. A new chapter is added to the Hawaii County Charter (2000) relating to the Independent Police Auditor to read as follows: "CHAPTER 5. OFFICE OF THE INDEPENDENT POLICE AUDITOR Section 7-5.1 There shall be an office of the independent police auditor consisting of an auditor and necessary staff. Section 7-5.2 Statement of Policy. It is hereby declared to be the purpose of this chapter to establish in the county a system of independent civilian oversight over all operations of the police department to assure accountability to the public and to enhance the development and maintenance of modem and effective law enforcement policies governing all operation of the police department. In order to achieve these purposes the office of the independent police auditor shall be operated in accordance with the following. Section 7-5-3. Independent police Auditor. The county council shall appoint the independent police auditor by two-thirds vote and by ordinance shall set qualifications for office. The independent police auditor shall serve for a term of six years and may be removed by two- thirds vote of the council and with concurrence of the mayor. Section 7-5.4. Powers, Duties, and Functions of the Independent Police Auditor. The independent police auditor shall be independent of the operational supervision of the mayor, the managing director, the council, and the chief of police and shall: (a) Adopt such rules as the independent police auditor may consider necessary for the conduct of the auditor's business and the regulation of the matters committed to the auditor's charge; and may review the rules and regulations of the police department. (b) Receive, classify, investigate and route all internal or external complaints about swom police officers and other police department employees. (c) Review the operations of the police department including those relating to criminal intelligence. (d) Monitor the police department's investigations and processing of internal and external complaints of misconduct of sworn police officers and other police department employees; access all evidence and reports developed as part of such investigations; participate in the department's investigative interviews related to such complaints at the discretion of the independent police auditor; attend administrative review board and promotion board hearings; and require the police department to undertake additional investigations as deemed necessary by the independent police auditor. (e) Conduct inquiries and investigations into any operations of the police department and make subsequent recommendations to the managing director, the council, and the chief of police. (f) Have the power to issue subpoenas relating to the performance of any of the independent police auditor's duties. (g) Hire personnel necessary to carry out the functions of the office of the independent police auditor and to provide staff support for the police commission. (h) Contract with qualified persons or entities outside of the police department to conduct independent investigations of complaints about sworn police officers or other police department employees. (i) Make recommendations to the chief of police or designees subsequent to investigations regarding complaints of misconduct of sworn police officers or other police department employees. (j) Prepare reports to the managing director, the council, and the chief of police regarding complaint trends and police practices in general. (k) At least annually, jointly with the police commission, evaluate the performance of the police chief and submit a report to the mayor, the managing director, and the council. (1) Have such other powers, duties and functions as may be prescribed by ordinance. (m) Except for purposes of inquiry and review necessary to the foregoing functions, the police auditor shall not interfere in any way with the day to day administrative affairs of the police department." SECTION 5. Material to be deleted is bracketed. New material is underscored. In printing this ordinance, the brackets, bracketed material, and underscoring need not be included. SECTION 6. Upon adoption of this ordinance, this council, by appropriate resolution shall provide that this amendment be submitted to the electorate of the county for approval at the next general election. SECTION 7. If any provision of this ordinance, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are declared to be severable. SECTION 8. This amendment shall take effect upon its approval by the voters. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII Hawaii Date of Introduction: Date of I" Reading: Date of 2"d Reading: Date of 3`d Reading: Effective Date: BEFORE THE HAWAII LABOR RELATIONS BOARD STATE OF HAWAII In the Matter of ) CASE NO. CE-12-555 STATE OF HAWAII ORGANIZATION ) OF POLICE OFFICERS (SHOPO), ) SETTLEMENT AGREEMENT Complainant, ) (Hawaii Police Commission) ) vs. ) THE HONORABLE HARRY KIM, ) MAYOR, COUNTY OF HAWAII, ) and HAWAII POLICE DEPARTMENT, ) Respondents. ) SETTLEMENT AGREEMENT (Hawaii Police Commission) This SETTLEMENT AGREEMENT is made and entered into on this ~crEL day of Iva I 2005, by and between Mayor HARRY KIM, County of Hawaii, and the HAWAII POLICE DEPARTMENT (hereinafter referred to as "Employer"), and the STATE OF HAWAII ORGANIZATION OF POLICE OFFICERS (hereinafter referred to as "SHOPO"), collectively referred to as the "parties." WHEREAS, on March 17, 2004, SHOPO filed a prohibited practice complaint with the Hawaii Labor Relations Board ("HLRB"), alleging various violations of the Collective Bargaining Agreement ("CBA" including: (1) Permitting one or more police commissioners to be present at an Administrative Review Hearing; and (2) That during the course of this review hearing, confidential information was not kept confidential, as specified by the terms of the CBA; and (3) That the Employer violated Articles 1, 12, 13, 14, 28, and 35 of the applicable collective bargaining agreement (CBA) and/or Chapter 92F, HRS, by the Hawaii Police Department's unilateral proposal to the Police Commission, without mutual agreement with SHOPO, to implement procedural changes for the conferral of concurrent authority to take disciplinary action against police officers, and/or to provide confidential employee investigative, disciplinary and/or personnel records and reports to a non-appointing authority, to wit: Hawaii County Police Commissioners. WHEREAS, SHOPO's Complaint further alleges that the "Hawaii County Police Commission wants to enlarge or increase its powers, through its coercion, manipulation of, acting in conjunction with, and/or with the consent and/or cooperation of the Hawaii County Police Department, by adopting new rules and procedures that will allow or enable it to (a) subpoena Hawaii County Police Department personnel records and files and even ongoing/pending criminal and/or administrative investigative files, and (b) ultimately partake in, issue, control, decide, and/or influence disciplinary and termination actions which is not sanctioned or allowed by Chapter 52D, HRS, and/or the Hawaii County Charter and to accomplish and effectuate its overzealous goals it is unlawfully manipulating, demanding, coercing, forcing, and/or requiring the Employer to do its bidding in total disregard of the applicable CBA, Hawaii County Police Department General Order No. 303, the Rules and Regulations on Civil Service and Compensation, Hawaii County, and/or Chapter 92F of the Hawaii Revised Statutes." WHEREAS, the Employer engaged in meetings with the Hawaii County Police Commission and/or with individual commissioners to discuss, agree upon and/or draft rules and procedures whereby the Employer would provide, grant access to or share police reports, personnel records, and/or internal investigations with the Hawaii County Police Commission, which was contemplating the adoption of rules authorizing the Police Commission to issue subpoenas and to have concurrent authority and jurisdiction with the Police Department to investigate, interview, interrogate, discipline and/or terminate officers from employment in violation of the Articles 1, 12, 13, 14 and 35 of the applicable collective bargaining agreement. WHEREAS, the Hawaii County Police Commission is not the appointing authority of duly sworn Hawaii Police Department officers, nor can it actually discipline police officers because under Article VII, Chapter 2, Section 7-2.2(c)(4) of the Hawaii County Charter, the Police Commission is limited to "[r]eceives, consider and investigate charges brought by the public against the conduct of the department or any of its members and submit a written report of its findings to the chief of police." The Charter does not authorize or empower the Hawaii County Police Commission to directly discipline and/or terminate officers from employment. WHEREAS, since the Hawaii County Charter does not authorize the Police Commission to directly discipline and/or terminate officers, and is not the appointing authority, the police officers who are investigated and/or interrogated by the Hawaii County Police Commission will be denied their statutory, contractual and privacy rights, and their constitutional protections afforded to them by the United States Supreme Court, e.g., Garrity v. New Jersey, 385 U.S. 493 (1973) and Gardner v. Broderick, 392 U.S. 273 (1968). WHEREAS, an actual dispute has arisen between SHOPO and the Employer concerning the intent of the Employer respecting the enlargement of the duties and activities of the Police Commission. WHEREAS, the parties hereto desire to effect a full and final compromise and settlement of any and all matters, claims, and causes of action arising out of the subject complaint and have fashioned a mutually acceptable agreement to resolve all issues. NOW, THEREFORE, the parties hereto mutually agree as follows: 1. The Employer shall cease and desist from assisting or allowing Hawaii County Police Commissioners to observe and/or participate in the internal departmental disciplinary process, including attending and/or participating in Administrative Review Board hearings to consider an officer's discipline. 2. The Employer shall cease and desist the delegation of and/or conferral of concurrent authority upon the Hawaii County Police Commission to conduct internal departmental investigations, interviews or interrogations, and/or to directly discipline and/or terminate police officers. 3. The Employer shall cease and desist from providing, granting access to or sharing personnel records, and/or internal investigations regarding police officers with the Hawaii County Police Commission. 4. The Hawaii County Police Commission shall cease and desist from engaging in further meetings and/or taking action in order to draft, revise, adopt rules or procedures (1) to subpoena police officers and/or their police reports, internal investigations or personnel records, and/or (2) to administratively investigate, interview, interrogate, discipline and/or terminate police officers, except as is consistent with their responsibilities under Article VII, Chapter 2, Section 7-2.2(c)(4) of the Hawaii County Charter, which states, "[r]eceives, consider and investigate charges brought by the public against the conduct of the department or any of its members and submit a written report of its findings to the chief of police." 5. The Employer shall fully comply with the current collective bargaining agreement with SHOPO, specifically Articles 1, 12, 13, 14, 28 and 35. 6. SHOPO will withdraw the prohibited practice complaint filed with the HLRB in Case No. CE-12-555 without prejudice. 7. Each party will bear its own costs and fees. DATED: Honolulu, Hawaii, ri 20 ~90 Sr C C/(/ln/~ 2sGC.. HA Y KIM, M or TENARI MAAFALA County of Hawaii President, SHOPO Elio ^ Qcs..l®~i.a~T LAWRENCE K. MAHUNA EMORY PRINGER Chief of Police Hawaii County Chapter Chair, SHOPO Hawaii County Police Department L 96~~ - 0( - MICHAEL J. U OVIC R . DAL . SHIDA Deputy Corporation Counsel Attorney kp-tHOPO Attorney for Mayor Harry Kim, Hawaii Police Department and Hawaii Police Commission STATE OF HAWAII ) ) SS. COUNTY OF HAWAII ) On this day of ~en 2005, before me personally appeared HARRY KIM, to me personally known, who, being by me duly sworn, did say that he is the Mayor of the County of Hawaii, a municipal corporation of the State of Hawaii; that the seal affixed to the foregoing instrument is the corporate seal of the said County of Hawaii; that the foregoing instrument was signed and sealed in behalf of the County of Hawaii by authority given to said Mayor of the County of Hawaii by Section 5-1.3 (g) of the County Charter, County of Hawaii (2000), as amended; and said HARRY KIM acknowledged said instrument to be the free act and deed of said County of Hawaii. JEA VIERNES Notary Public, State of Hawaii My commission expires: 11/1/2005 Py V I G"', (~~,-v S`P 0r N