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HomeMy WebLinkAboutCOM 0831.001 2004-2006 TESTIMONY OF PAUL M. DE SILVA ON BILL 270, INDEPENDENT POLICE AUDITOR TO BE PRESENTED TO THE COMMITTEE ON PUBLIC SAFETY AND PARKS AND RECREATION A COMMITTEE OF THE HAWAII COUNTY COUNCIL, ON MAY 1, 2006 INTRODUCTION. Transparency is the lynch pin of effective oversight. It is defined as the quality of being able to see through something or something free of deceit. The independent police auditor is a system that can provide the public with credible and direct knowledge of the operations of our police department and a way for the public to suggest improvements. It is important for all to remember that the police department belongs to us all and exists for our welfare. Law enforcement has an obligation to show us as much as possible about its operations, and where information must be limited due to counterweighing values, the information should be available to our public representative who will protect those values as well. As our eyes and ears, the independent police auditor will help to ensure police integrity and efficiency. Public respect, trust and confidence will increase because of this new accountability drawing the public and police closer together. For a summary of supporting reasons for an office of the independent police auditor, please see Independent Police Auditor, A Proposed Charter Amendment for 2006, submitted with this testimony. THE CURRENT CIVILIAN OVERSIGHT SYSTEM AND THE NEED FOR CHANGE Civilian oversight of the police department is now the primary the responsibility of the Hawaii County Police Commission. The existence of a police commission in the County of Hawaii predates the charter which in 1968 created a police commission by a very brief provision stating that: The police commission shall adopt such rules as it may consider necessary for the conduct of its business and regulation of the matters committed to its charge by law. Except for purposes of inquiry, neither the commission nor its members shall interfere in any way with the administrative affairs of the department.) It also provided that the chief of police would be the administrative head of the police department with certain specified powers, duties and functions and that the chief should also: Have such other powers, duties and functions as may be required by the police commission or provided by law.2 Charter of the County of Hawaii, 1968, Sec. 7-2.3. Department Rules. - a Ibid. Sec. 7-2.5, Power, Duties and Functions of the Chief of Police. Comm. Ho. 1 Ref. To: treso4t Rel. Date These skeletal specifications provided little guidance to commissioners leading to a series of modifications culminating in the last charter amendments in 2000. The current charter retains the original 1968 provision relating to the power of the commission to assign powers, duties and functions to the chief and has substantially modified those applying to the police commission. It now provides: (c) 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 rules and regulations of the department. (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, managing director and the council. (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 of police. 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 fulfill the intent of this section. (5) Advise the chief of police on police-community relations. (6) Review the department's operations, as deemed necessary, for the purpose of recommending improvements to the police chief and the managing director. (7) Evaluate at least annually the performance of the police chief and submit a report to the mayor, managing director and the council. (8) Hire personnel necessary to carry out its functions. Except for purposes of inquiry, neither the commission nor its members shall interfere in any way with the administrative affairs of the department.(Amended Gen. Elec. 1980, 1990, 1994 and 2000 Charter Amend. 2) Each county is required by statute to have a police commission that selects the Chief of Police: 2 Hawaii Revised Statutes [§52D-1] Police commission. A police commission is created for each of the counties. The composition, appointment, terms of office, staff, powers, duties, and functions of each police commission shall be prescribed by the charter of each county. Hawaii Revised Statutes [§52D-2] Chief of police. The police commission shall appoint a chief of police. The chief of police shall annually make a report to the police commission on the state of affairs and condition of the police department. [L 1989, c 136, pt of §2] The charters of the four counties vary widely. o The Charter of the County of Hawaii clearly empowers the police commission to conduct general oversight of the police department and to assign additional powers, duties and functions to the chief of police o The Kauai Charter lacks a provision empowering the commission to conduct operational oversight of its police department, but it requires the chief to "[p]erform such other duties as may be required by law or as may be assigned by the commission." o In Maui, there is also no provision for operational oversight of the department, and the chief is required to "[h]ave such other powers and duties as may be assigned by the mayor or as provided by law." o The City and County of Honolulu Charter specifies no general operational oversight over the department and requires the chief to "[p]erform such other duties as may be required by this charter or by law."3 Thus Hawaii and Kauai counties allow the police commission to assign duties and functions to the chief of police. Hawaii County most clearly gives its police commission clear oversight of the operations of its police department but its depth is vaguely stated. Minutes of the Hawaii County Charter Commission memorialize recurrent efforts to reemphasize the power of the Hawaii County Police Commission to oversee the police department's operations and the concomitant duty of the chief of police to facilitate it. Consequently, in 2000, the charter was amended by the addition of a provision to its powers, duties and functions stating that the commission should "review the department's operations, as deemed necessary, for the purpose of recommending improvements to the police chief and the managing director." This was intended to clarify the commission's oversight role as the police commission often differed with the police department about what information could be shared with them. Because this s During discussions, the commission and corporation counsel often fail to make important distinctions between the differing functions of various county police commissions. 3 operational oversight provision was not specific about how the review was to be conducted there were differing views between various police commissioners, the police and corporation counsel. A former chairman of the commission, for example, stated that he did not think that the commission has a watchdog function at all. The charter has five oversight provisions: o Review the budget and make recommendations to the mayor and managing director. o Investigate charges brought by the public against the department or any of its members and submit a written report of its findings to the chief of police. o Advise the chief of police on police-community relations. o Evaluate at least annually the performance of the police chief and submit a report to the mayor, managing director and the council, and the power to hire and fire the chief. o Review the department's operations for the purpose of recommending improvements to the police chief and the managing director. Budget review and police-community relations generally involve public information, are not significantly problematical and will remain with the police commission. Investigations of public complaints of misconduct seem to be handled quite well as far as they go. This responsibility will be removed from the commission. But at least equally as important as all other oversight provisions is the mandate for the police commission to "review the department's operations, as deemed necessary, for the purpose of recommending improvements to the police chief and the managing director."4 To understand how this key phrase, "review the department's operations" is currently being legally construed, it is necessary to examine police commission history. In 2003 and before, the police commission had adopted certain recommendations to the chief, managing director and mayor. They suggested better and deeper monitoring of the disciplinary process and were largely predicated on the power, duty and function of the police commission to "review the department's operations," construing that phrase to mean in depth, percipient review allowing access to internal affairs investigatory processes and reports and observing administrative review board (disciplinary board) hearings Since these recommendations, if adopted and implemented by the chief of police, would have necessitated changes in police department general orders, the collective bargaining agreement required that the department give notice to the union and an opportunity for agreement or consultation on the proposed changes. The chief had responded in good faith by considering the recommendations, and the department had prepared a draft of some changed general orders for discussion. Under Bill 270 the budget review, community relations and evaluation functions are retained along with the power to select and dismiss the chief of police. 4 Before being given the opportunity to make a decision on whether or not to follow any of the recommendations of the police commission and before an opportunity for notice to and consultation with the police union, a high ranking police official, contrary to general orders, invited two well intended but miscreant police commissioners to attend a hearing of the administrative review board concerning alleged police officer misconduct. The high ranking official stated that the police chief authorized him to do this, and the chief denied his allegation. The police union consequently filed a complaint with the Hawaii Labor Relations Board alleging prohibited practices by the employer. The result of this unfortunate incident was a settlement between the County of Hawaii and the police union that finally construed the phrase "review the department's operations.i5 The settlement, with which the police chief agreed ,6 provided that when reviewing the department's operations: 1. The police commission is prevented from observing the internal departmental disciplinary process, including attending and/or participating in Administrative Review Board hearings to consider an officer's discipline. 2. The police department is prohibited from sharing personnel records, and/or internal investigations regarding police officers with the commission. 3. The police commission cannot meet or act in order to draft, revise, or adopt rules or procedures: o to subpoena police officers and/or their police reports, internal investigations or personnel records, and/or o cannot investigate internal complaints of misconduct or initiate inquiries into aspects of misconduct that come under suspicion This conservative interpretation of the vaguely stated charter provision granting the power to "review the department's operations" effectively prevents any deep oversight by the police commission of the entire disciplinary system of the police department. The investigation of public complaints made directly to the police commission remains, but even in that event, the commission is unable to monitor any subsequent processing of matters sent to the department. 5 "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." "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, `[deceives, 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."' e . "The settlement with the police union does nothing to affect or dilute the powers of the Police Commission," Hawaii Police Department Media Release, July 18, 2005. 5 When the police commission receives a public complaint, it investigates those which seem to have merit and makes a finding that is sent to the chief of police. Internal affairs usually receives the commission's finding along with copies of its investigation. Internal affairs does whatever follow up investigation it deems necessary and routes its file through the chief to the administrative review board. A closed hearing accessible only to police personnel and a union representative for the accused officer is then held. Under the current system as interpreted by the HLRB settlement, the police commission cannot monitor internal affairs and the hearing before the administrative review board. Moreover, the commission cannot monitor more than half of the complaints made against the department and its officers or investigate suspected misconduct or corruption on its own initiative. The "review" as currently construed, is limited to asking the police to oversee themselves. There is very minimal public accountability and no way to independently ascertain its credibility. The police commission has had its hands effectively tied. Since internal affairs determines the sufficiency of the police commission's investigations, it theoretically has the ability to supplement or even re-investigate the alleged misconduct. Emphatically, there is no information available to the public indicating that the Hawaii County Police Department's internal affairs unit is inefficient or corrupt. But the public should not have to speculate or depend on possibly self-serving analyses by the police themselves. Internal affairs units have been the center of disciplinary system corruption in many other jurisdictions throughout the nation and are the focus of many civilian oversight mechanisms. There are generally two types of complaints, external (made to the police commission or directly to the department), and internal (made by persons in the department against the department or others in the department). Public complaints to the police commission represent less than half of the complaints of misconduct of officers or the department. Hence, complaints more often then not are not subject to any meaningful civilian oversight. Under Bill 270, specific duties for the police auditor will remove any question about what the public wants the independent auditor to do. Instead of a vague phrase such as "review the department's operations," specific powers of review and inquiry are provided. Again, the same privacy laws that govern police disclosure of private information would constrain the independent police auditor. His or her value to the general public is that he or she would act in their behalf with an independent power to inquire. He would be their watchdog. The police and police union may express concern that Bill 270 may violate privacy laws, but the corporation counsel has already advised that the independent „auditor's duties authorize access to this information. This is supported by a common 6 sense reading of Hawaii Revised Statutes, Sec. 92F-19.7 They may also advocate the status quo of an effete police commission asking that their own assessment of the effectiveness and integrity of their closed system be accepted at face value. Oversight of the disciplinary system is but one aspect of oversight, and some of the effects of the settlement may also impede a good look at the personnel and training systems. Often these examinations involve an overlapping of deficiencies. For example, inadequate training can bear upon officer morale, misconduct, increased liability, abusive use of force and many other areas of policing. Furthermore, the commission may have a reasonable belief that there is wrongdoing in the department, yet there may be no public complaint. In the promotion scandal, there had been rumors and grumbling that would have indicated that something was amiss. An effective oversight agency would have wanted to assure itself though an investigation that the promotion processes were not being abused. The current interpretation of its duties, powers and functions presently disallow this type of inquiry. Similarly, the commission may simply want to know if the internal affairs unit is operating competently and fairly in spite of temptations to favor certain officers over others. Hypothetically, if the commission were to receive information that the police chief was using the criminal intelligence unit for personal or political investigations in the manner of J. Edgar Hoover who compiled dossiers of information on private citizens, what could the commission do about it? What about abusive travel and unauthorized use of public property? What independent check could our present system provide? Under the very restrictive view of the charter taken by the police department and union, the following consequences abide: o The investigations of internal affairs remain entirely secret and no one will know whether or not they done with integrity and competence without bias for or against accused officers. o The administrative review board will similarly remain entirely secret. o More than half of all public complaints against the department or its employees are not subject to any meaningful review. o All internal complaints will remain secret and free from any meaningful review.. o All public complaints made directly to the department will remain secret and free from percipient oversight. 7 Hawaii Revised Statutes [§92F-191 Limitations on disclosure of government records to other agencies. (a) No agency may disclose or authorize disclosure of government records to any other agency unless the disclosure is:(i) 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... 7 o Reasonable suspicions about police officer or departmental misconduct cannot be investigated by the police commission without a public complaint. o The entire promotion system would not be subject to adequate review. o There could be no discussion of recommending giving the police commission subpoena power. o The police cannot be compelled to produce any evidence for review in determining whether or not there is internal corruption. An already weak system has been eviscerated to pointlessness. A system of civilian review that is limited to asking the foxes that guard the chicken house how the hens are doing is worthless and an insult to the citizens of Hawaii County. But the decimation of operational review aside and supposing that the police commission did have effective deep and percipient oversight, equally important is the question of whether or not a volunteer civilian board with inadequate training and experience would be able to do a satisfactory job of deep review such as proposed for a professional independent police auditor. In my opinion, though I have thought differently in the past, that responsibility would be too much. OTHER SYSTEMS In addition to commission and board systems, there are independent auditors (also called police monitors, independent counsels, ombudsmen). The citizens of Eugene, Oregon, a jurisdiction of about 140,000 recently approved a charter amendment creating an independent police auditor in addition to their police commission. Their newspaper, The Register-Guard on October 19, 2005 reported: Having residents look over the shoulder of the Eugene Police Department as it investigates complaints against officers would he a novelty here. But the practice is common elsewhere. Several of the nation's largest cities, including Portland and Seattle, have police watchdogs that monitor the investigation of complaints against officers. Some cities and counties use an ombudsman, commonly referred to as an auditor; others have commissions, also called civilian review boards. Some cities use a combination of both. In Eugene, advocates want both. Bill 270 Independent Police Auditor would present a similar question to our voters. It urges a dual system with the creation of an independent police auditor. Auditor systems are emerging in large and small jurisdictions. Here are a few examples: o Los Angeles, California... 10,000,000 o San Jose, California 925,000 o Sacramento, California 1,600,000 8 o Eugene, Oregon ................140,000 o Olympia, Washington......... 43,000 o Santa Cruz, California 55,000 The following are examples of jurisdictions that have dual systems with both a board or commission and an auditor: o Austin, Texas o Denver, Colorado o Eugene, Oregon o Philadelphia, Pennsylvania o Portland, Oregon o Seattle, Washington o Tucson, Arizona o Boise has an ombudsman Each is unique but there are common elements: o The review is percipient and oversight is deeper o There is much focus on close monitoring the operations of the internal affairs unit. o There is a need for more professional observation. o They are generally oriented toward problem identification and suggesting changes and improvement. o Subpoena power is present in some. o A trend to include review of all operations rather than just the disciplinary system. o There is independence but many different organizational structures. Because there is no effective mechanism for civilian oversight in the County of Hawaii, there may be a lack of public confidence in local law enforcement. There is no objective measurement of this basic indicator of a good community. No one seems to think that it is important enough to scientifically measure. Nor has the morale of our police officers been determined. A few have commented that it is quite poor, yet a small sample is insufficient to form a firm opinion. One blamed failed recruitment efforts on poor morale. If public trust and confidence and morale are important issues, shouldn't we be granted the opportunity to review the department's operations perceptually and effectively and to recommend changes to things we don't like? Although poor police morale, lack of public confidence and respect for the police and a history of scandal can all support the need for the addition of real oversight of the police department's operations, the overriding value of transparency is the deterrence and prevention of dishonesty and corruption and the opportunity for civilian input to suggest improvements to police policies and procedures. The police commission's limited oversight powers as construed by the conservative settlement agreement in the HLRB 9 case make certain that there can be no adequate review of the police department's operations. We need to have an effective and transparent police department. In my opinion, an independent police auditor and a modified police commission with powers specifically enumerated by the charter itself is the best alternative, and we should wait no longer. Respectively submitted, S5( ~ - Paul M. de Silva 10 INC 'ENDENT POLICE AUDI R A PROPOSED CHARTER AMENDMENT FOR 2006 1. Why do we need an independent police auditor? "The police auditor is a new form of citizen oversight of the police in the United States. Auditing represents an effective form of citizen oversight, focusing on organizational change and the prevention of misconduct." How Independent Police Auditors Can Improve Policing, Statement of Police Professional's Initiative at the University of Nebraska at Omaha, see appendix. The essence of effective oversight is transparency. The proposed charter amendment removes the responsibility for oversight of the police department from the police commission and assigns it to a full time independent police auditor nominated by the mayor with approval by two-thirds vote of the council. The police commission is retained as required by statute with the continuing power to evaluate, hire and fire the chief of police but with greatly minimized powers, duties and functions, and its full time staff is eliminated. The new system will benefit the community, the police department and the individual police officer. • More effective professional policing with an auditor system as opposed to the present police commission system. • More independence from the police department and political influence. • Qualifications for the independent auditor set by the county council rather than an absence of any qualification criteria for police commissioners. • The independent auditor is likely to have better educational, legal and law enforcement background and experience than most available candidates for appointment to the police commission. • Training opportunities for the independent auditor more practical and economical than for the police commission. • Standards of conduct for independent auditor possible rather than an absence of any standards for police commissioners. • Less liability risk than police oversight commission system. • Improved ability to supervise investigation of police misconduct and to audit the work of internal affairs to assure competence, fairness and professionalism. • Better recommendations to the chief, mayor, managing director and council for improvement of police policies and procedures. • Continual oversight rather than sporadic attention of monthly meetings. 1 • Better security of Ily protected information affecting privacy rights of police officers. • Less probability that the oversight authority will become too close to the police as their advocate rather than overseer. • General improvement of law enforcement and its accountability to and confidence of the public. • More effective investigation of misconduct complaints and better findings and recommendations. • Internal complaints of misconduct and external complaints of misconduct made directly by the public to the police department and not the police commission currently not subject to any independent oversight. Therefore about 50% of all complaints currently not subject to any civilian oversight. • Current charter and recent settlement of police union unfair labor practice complaint limit police commission oversight to complaints from the public, e.g., only external complaints route through police commission. Many external complaints made directly to the department and internal complaints are not subject to any oversight. ? "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." ? "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." ? "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."' ' Settlement agreement between the County of Hawaii and the police union, April 20, 2005. • Misuse of the criminal intelligence unit for personal or political reasons, sexual harassment of employees, rigged promotions and other common types of internal corruption are more likely to escape oversight under the present commission system where deep review of the operations of the police department is not permitted. • Reduced workload of the police commission that will soon be impracticably overwhelming. 2. If the Charter is amended to create the Office of the Independent Police Auditor, why do we need to have a police commission? Present Hawaii statutes require that each county have a police commission that appoints the chief of police. The commission would retain the ability to evaluate, hire and fire the 2 chief of police. It would a :ontinue to provide budget review 1 ie mayor and managing director and to provide advice on public relations. Budget review could be the responsibility of the independent police auditor rather than the police commission by slight modification of this proposal. The selection process should be as apolitical as possible. The dilution of influence upon law enforcement by political forces is an aspect of the present system that should be retained. The independent auditor should participate in the evaluation and selection of the chief of police. 2. The proposed charter amendment is specific about particular duties of the independent police auditor to include access to investigative reports of internal and external misconduct, participating in selected interviews, attendance at disciplinary and promotion board hearings and requiring further investigation by the police. Why is it necessary to specify these matters in the charter? Independent oversight is not effective unless its independence and depth are sufficient. The charter must make the depth of oversight absolutely clear as this has been a matter of dispute under the present charter. Otherwise, continuing uncertainty and disagreement will overshadow the process and a high risk of litigation would occur. 3. If there is deep oversight as proposed, what about the privacy rights of police officers? Privacy rights of police officers are protected by the law, and this proposed charter amendment will not in any way frustrate them. The law provides deep access where the government agency involved in oversight needs the information to perform oversight. However, the independent police auditor, though privy to protected information, would be prevented from its use and disclosure unless it would be consistent with his or her duties and functions as the public's oversight agent or consistent with the conditions or reasonable expectations of use and disclosure under which the information was provided 4. If achieving transparency is the essence of oversight, how can it exist where many police matters are confidential? The auditor would have access to some information that cannot be made public, and like law enforcement administrators themselves, the auditor would be similarly bound to secrecy. The auditor will be the eyes and ears of the public providing independent scrutiny and assessment of law enforcement. This would allow persons other than law enforcement officials alone to provide a check on their own practices, policies and procedures. Existing law allows deep access where the government agency involved in oversight needs the information to perform that function. However, the independent police auditor, though privy to protected information, would be prevented from its use and disclosure unless it would be consistent with his or her duties and functions as the public's oversight agent or consistent with the conditions or reasonable expectations of use and disclosure under which the information was provided 5. Why should the auditor be trusted with sensitive police information? Law enforcement officials are trusted with confidential information and the auditor would be bound by the same privacy and confidentiality laws and standards as law enforcement 3 administrators. If the chi, (id his staff are privy to criminal in 4ence, for example, the auditor should similarly be privy to it as a public representative to provide a independent check and balance assuring that the information is being gained in a constitutional manner and that the police are not misusing their investigatory resources for improper purposes. 6. Is the police department doing anything wrong to cause a change in our system? There has been police corruption that resulted in many years of litigation resulting in a $4.2 million jury verdict and the payment by the county of $2,000,000 to 19 police officers in 2003 settling allegations of cheating on police department promotions going back two decades. (See Appendix) Good oversight not only provides a mechanism for assessment of the need for change but also a deterrent to the risk of misconduct. Had there been an auditor to protect against this corrupt abuse of power, this blemish on local law enforcement and resulting liability may not have occurred. There is little evidence that public opinion has improved in the three years since then and some officer report that morale among them is poor. Whether or not there is current wrongdoing is difficult to determine because there is no meaningful independent oversight mechanism. Oversight by a professional auditor whose assessment the public is more likely to trust will provide the public with a better appraisal of the police department on a first hand basis. He or she would be independent of the county administration, county counsel and police department. Currently, the police commission is part of the police department from which its budget derives. 7. Other government agencies do not have this degree of oversight, why the police department? Unlike other government agencies, law enforcement has a very direct impact on our most precious freedoms, and police work necessarily often requires much stealth and secrecy. Police officers are often exposed to unpleasant contacts with citizens and fairness to them and the institution itself creates the need to fairly protect their privacy. The police have a distinct culture one of the mores of which is not to ever inform on another officer, commonly... the blue wall of silence or code of silence. The police auditor form of oversight creates transparency through competent, effective review of all police operations, whether or not based on external or internal complaints, while protecting the rights of officers to privacy and fair treatment. You can read about different forms of civilian oversight in Professor Samuel Walker's new book, The New World of Police Accountability. 8. What will be the cost to the taxpayer to establish and support this office? At this point, the costs have not been determined and are certainly an important consideration. City officials in Eugene, Oregon, a city with a population of approximately 142,000 that recently adopted a similar system of police monitors, estimated that it would cost $532,552 in the first year to put the monitors in place, with an ongoing annual cost of $414,092. The cost of the modified police commission with diminished power, duties, functions and staff would of course be considerably lessened. 4 9. What would be the apendent police auditor's salary? Eugene, Oregon, population 142,000, recently created the position of independent police auditor in addition to its police commission. It is advertising to fill the position at a salary range of $85,000 - $106,000. San Jose, California, population 929,000, offers a salary of $145,000. April 19, 2006 Paul M. de Silva, J.D. Former: Prosecuting Attorney, County of Hawaii 1972-1978 Judge, District Court of the Third Circuit 1978-1882 Judge, Circuit Court f the Third Circuit 1982-1988 Police Commissioner, County of Hawaii 2002-2003 5 APPENDIX 1. SECPTION 92f-19, HAWAII REVISED STATUTES Limitations on disclosure of government records to other agencies. Allows disclosure of private information between government agencies where appropriate to their duties. Approved by corporation counsel for this proposed charter amendment. 2. SETTLEMENT AGREEMENT, STATE OF HAWAII ORGANIZATION OF POLICE OFFICERS VS. THE HONORABLE HARRY KIM, MAYOR, COUNTY OF HAWAII, AND HAWAII POLICE DEPARTMENT Settlement prohibiting deep, percipient oversight of the Hawaii County Police Department by the Hawaii County Police Commission and in effect construing the power, duty and function of the Hawaii County Police Commission to "review the department's operations, as deemed necessary, for the purpose of recommending improvements to the police chief and the managing director." 3. HAWAII POLICE DEPARTMENT MEDIA RELEASE, JULY 18, 2005 Hawaii Police Department media release commenting on the settlement of State of Hawaii Organization of Police Officers vs. Harry Kim, Mayor and Hawaii Police Department that severely limited the oversight powers of the police commission. The releases states that "The settlement with the police union does nothing to affect or dilute the powers of the Police Commission, and it is the expectation of the Police Department that the Police Commission can and will continue to perform its duties accordingly." It is then apparently the police department's position that even before the settlement the police commission never had the powers and duties that the settlement agreement constrains. 4. HAWAII COUNTY POLICE COMMISSION, RECOMMENDATIONS FOR IMPROVEMENTS TO THE DISCIPLINARY SYSTEM OF THE HAWAII COUNTY POLICE DEPARTMENT Recommendations that had been adopted unanimously by the police commission relying on its power, duty and function to "review the department's operations, as deemed necessary, for the purpose of recommending improvements to the police chief and the managing director." §92F-19 Limitations on disclosure of government records to other agencies. (a) No agency may disclose or authorize 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 pWose 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; (emphasis added) (2) To the state archives for the purposes of historical preservation, administrative maintenance, or destruction; (3) To another agency, another state, or the federal government, or foreign law enforcement agency or authority, if the disclosure is: (A) For the purpose of a civil or criminal law enforcement activity authorized by law; and (B) Pursuant to: (i) A written agreement or written request, or (ii) A verbal request, made under exigent circumstances, by an officer or employee of the requesting agency whose identity has been verified, provided that such request is promptly confirmed in writing; (4) To a criminal law enforcement agency of this State, another state, or the federal government, or a foreign criminal law enforcement agency or authority, if the information is limited to an individual's name and other identifying particulars, including present and past places of employment; (5) To a foreign government pursuant to an executive agreement, compact, treaty, or statute; (6) To the legislature, or a county council, or any committee or subcommittee thereof; (7) Pursuant to an order of a court of competent jurisdiction; (8) To authorized officials of another agency, another state, or the federal government for the purpose of auditing or monitoring an agency program that receives federal, state, or county funding; (9) To the offices of the legislative auditor, the legislative reference bureau, or the ombudsman of this State for the performance of their respective functions; (10) To the department of human resources development, county personnel agencies, or line agency personnel offices for the performance of their respective duties and functions, including employee recruitment and examination, classification and compensation reviews, the administration and auditing of personnel transactions, the administration of training and safety, workers' compensation, and employee benefits and assistance programs, and for labor relations purposes; or (11) Otherwise subject to disclosure under this chapter. (b) An agency receiving government records pursuant to subsection (a) sball be subject to the same restrictions on disclosure of the records as the originating agency. [L 1988, c 262, pt of §1; am L 1993, c 250, §2; am L 1994, c 56, § 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 ETTLEMENT AGREEMENT is made and entered into on this day of !Uri ) , 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 ("NLRB"), 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 "[rjeceives, 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 HIRB in Case No. CE-12-555 without prejudice. 7. Each party will bear its own costs and fees. DATED: Honolulu, Hawaii, 1)jfi~ 2,01 1-90 t; HA Y KIM, M *or TENARI MAAFALA County of Hawaii President, SHOPO LAWRENCE K. MAHUNA EMORY fPRINGER Chief of Police Hawaii County Chapter Chair, SHOPO Hawaii County Police Department CHAEL J. U OVIC RXNDAL SHIDA Deputy Corporation Counsel Attorney fbpSHOPO Attorney for Mayor Harry Kim, Hawaii Police Department and Hawaii Police Commission STATE OF HAWAII ) ) SS. COUNTY OF HAWAII ) On this day of ~pn 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 ~4PN Vic t~OTAt. N a?g~~C 9T ~p OF N°. HAWAII POLICE DEPARTMENT OFFICE OF THE POLICE CHIEF POLICE CHIEF LAWRENCE K. MAHUNA PHONE: 961-2244 JULY 18, 2005 MEDIA RELEASE A settlement agreement was made and entered into on the 20a' day of April 2005 in the matter of the State of Hawaii Organization of Police Officers (SHOPO), complainant, vs. the Honorable Harry Kim, Mayor, County of Hawai' i, and the Hawai' i Police Department. This action was taken before the Hawaii Labor Relations Board (NLRB), State of Hawaii, Case No. CE-12-555. This incident arose out of two police commissioners attending an Administrative Review Board (ARB) hearing in Kona on March 12, 2004. This was not done with the permission of the employer/Police Chief and stemmed from a misunderstanding that had occurred with the ARB chairman. The employer was fully aware that under Article 14, of the collective bargaining agreement, Changes in Departmental Rules, a written notice had to be furnished by the employer to the Union and the respective Union chapter chairperson of the employer's intention to make changes in departmental rules, policies or procedures that would affect the working conditions of employees, etc. This article also gave the Union the opportunity to meet and confer on the proposed changes. SHOPO on March 17, 2004, filed a prohibited practice complaint with the HLRB alleging various violations of the Collective Bargaining Agreement, to include: (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. In the settlement agreement, SHOPO further alleged that the Hawai' i County Police Commission wanted to enlarge or increase its powers, through its coercion, manipulation of, acted in conjunction with, and/or with the consent and/or cooperation of the Hawaii Police Department, by adopting new rules and procedures that would allow or enable it to (a) subpoena Hawai'i 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 are not sanctioned or allowed by Chapter 52D, HRS, and/or the Hawai' i County Charter and to accomplish and effectuate its "overzealous goals" it unlawfully manipulates, demands, coerces, forces, and/or requires the Employer to do its bidding in total disregard of the applicable CBA, Hawai' i Police Department General Order No. 303, the Rules and Regulations on Civil Service and Compensation, Hawai'i County and/or Chapter 92F of the HRS. The Union also stated that 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, discipline and/or terminate officers from employment in violation of Articles 1, 12, 13, 14, and 35 of the applicable CBA. In summary, the prohibited practice complaint reiterated that the Hawai' i County Police Commission was not the appointing authority to duly sworn Hawai' i Police Department officers, nor can it actually discipline officers under Article VII, Chapter 2, Section 7- 2.2(c)(4) of the Hawai' i County Charter. The complaint also indicated what the Police Commission's duties currently are to 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 of Police. The complaint went on to repeat the fact that the Hawai'i County Charter did not authorize the Police Commission to directly discipline and/or terminate officers, and is not the appointing authority. Additionally, the Union stated that police officers who are investigated and/or interrogated by the Hawai' i County Police Commission will be denied their statutory, contractual and privacy rights, including their constitutional protections afforded to them by the United States State Supreme Court, e.g., Garrity v. New Jersey (1973) and Gardner v. Broderick, (1968). The Union indicated that an actual dispute had arisen between SHOPO and the Employer concerning the intent of the Employer respecting the enlargement of the duties and activities of the Police Commission. In order to settle the prohibited practice, the County agreed to the following: 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 officer, 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. The settlement agreement essentially reiterated the mandates, duties and responsibilities of both the employer and the Hawaii County Police Commission as mandated by the County Charter, and as a result SHOPO has withdrawn the prohibited practice complaint filed with HLRB in Case No. CE-12-555 without prejudice. The Hawaii Police Department Administration believes its employees have a right to be treated fairly, and all rights afforded officers within the letter and spirit of the collective bargaining agreement shall not be abridged. Allowing two civilian police commissioners to attend a confidential disciplinary investigative hearing offended the privacy rights of the officers involved. This is because collective bargaining requirements of conferring with the police union on procedural changes had not yet occurred. Based on these facts, the Police Department believes a settlement of this labor complaint is in the best interest of the department, in assuring its members that labor law violations are taken seriously, and that proper safeguards are in place to protect lawfully private personnel matters in the future. The Police Commission, a separate investigating entity in our community, will maintain its authority granted it by our Hawaii County Charter as a civilian oversight body to audit and review the operations of the department, to ensure accountability to our citizens. The settlement with the police union does nothing to affect or dilute the powers of the Police Commission, and it is the expectation of the Police Department that the Police Commission can and will continue to perform its duties accordingly. nnn Hawaii County Police Commission Recommendations for Improvements to the Disciplinary System of the Hawaii County Police Department February 20, 2004 Introduction: The Hawaii County Police Commission finds that improvements to the disciplinary system of the Hawaii County Police Department are necessary to enhance police accountability to the public. To fulfill its duty to efficiently and continually review the operations of the Police Department, the Commission's recommendations are intended to cooperatively develop sufficient accountability building strategies that will ensure fairness and justice for our citizens and police officers while helping to restore public confidence in the Police Department. By seeking improvements to achieve a clearer vision of the internal workings of the disciplinary system, the Commission does not imply that it has a current basis to conclude that there is any present wrong doing. Our efforts seek an environment for better citizen oversight allowing careful scrutiny of the system's inner workings on behalf of the community. The Commission is equally interested in the prevention of police abuse of citizens and citizen abuse of police officers. It has been instrumental in protecting our many good officers from meritless complaints and has vindicated the reputations of many. It will continue to perform that function with enthusiasm. Chief Lawrence Mahuna has committed to an open-minded, fully cooperative and proactive dedication to the Commission's goals. He and his administration have responded to the efforts of the Police Commission to suggest meaningful and progressive change to the disciplinary system of the Department. However, many issues remain to be resolved. Police commissions have had significant problems obtaining pertinent information that would allow them to perform duties and functions prescribed by the Charter. In 2000, because of the Department's ongoing internal problems, the Hawaii County Charter was amended to strengthen and reaffirm the Commission's powers and duties. Nevertheless, unresolved problems continued. The commission and Department developed statistics and interviewed representatives of all elements of the current disciplinary system. Although statistics provided no answers, they increased understanding of the process and helped to define important issues. Problem areas have been identified, and the Commission now seeks solutions based upon a search for sufficient police accountability and of honest and open government. 1 Recommendations: 1) All formal public external complaints filed directly with the PD are now normally investigated by the PD by-passing the PC. This practice should continue. 2) A copy of all formal public external complaints made directly to the PD should be provided to the PC. 3) Where compelling circumstances exist, the PD should continue to investigate and take action on any public complaint, whether or not such complaint was first filed with the PC by a citizen. 4) In such case, the PD should provide the PC with a copy of the complaint and state the compelling reasons for such action. 5) For investigations by the PD of complaints that by-pass the PC, the PD should provide a copy of the completed IAU report to the PC. 6) The PC should be entitled to obtain the following from the PD subject to adequate procedures consistent with existing law and collective bargaining agreements relating to the privacy rights of the individuals concerned: a) Copies of all IAU investigative reports of other misconduct of the accused. b) OBITS record of the complainant. c) Police reports relating to the incident or incidents associated with the misconduct alleged. d) Other personnel records on a case by case basis. 7) At its next meeting the PC should then: a) Hear the complainant's testimony and examine all other available evidence. b) Determine whether or not there is a reasonable suspicion of misconduct. c) If the PC determines that a reasonable suspicion of misconduct exists, it may refer the complaint to its investigator for investigation. 8) At all meetings relating to police misconduct, a suitable police official should be available for consultation in open or executive session on matters of police training, procedure, custom, etc. Such official would be allowed into executive session only where inquiries might reveal matters the discussion of which in open session is prohibited by law. Such official would only answer specific questions relating to proper police procedure and standards, and such official would not be allowed to hear or participate in any PC deliberations on misconduct. 9) When the commission investigator completes the investigation, the PC shall consider all evidence at its next meeting and decide whether or not there has been misconduct by the accused. If misconduct is found, the PC will submit findings of fact and conclusions along with recommendations, if necessary, to the Chief of Police. 2 10) If the IAU completes an investigation on the PC's submission, it should send its report to the Chief with a copy to the PC for review, comment, supplementation or amended findings and conclusions, if any. 11) If the Chief of Police refers the case to the Administrative Review Board, a PC non- participating observer designated by the Chairman of the Police Commission will be allowed to attend and audit the meeting subject to reasonable regulations adequately protecting the privacy of the accused. 12) The following recommendations apply to the ARB. a) The complainant should be allowed to testify before the ARB. b) The burden of proof at the ARB should be more clearly specified as that of a preponderance of the evidence. c) A majority decision of the board should be sufficient to conclude guilt. d) General orders should specifically require consideration of the PC's findings and conclusions. e) Upon completion of its proceedings, the ARB should provide with PC with a statement identifying its members, the witnesses who testified, its decision and recommendations, if any, and a brief statement of its rationale. 13) Chief of Police should then inform the PC of his decision including the discipline imposed, if any. 3 Recommendations: (With Commentary) 1) All formal public external complaints filed directly with the PD are now normally investigated by the PD by-passing the PC. This practice should continue. 2) A copy of all formal public external complaints made directly to the PD should be provided to the PC. Commentary: The existing intake system should remain. The citizen should have the choice of by- passing the PC. So that the PC will remain informed of the general nature of public complaints made directly to the PD and by-passing the PC, the PC should be provided with a copy of such complaint. 3) Where compelling circumstances exist, the PD should continue to investigate and take action on any public complaint, whether or not such complaint was first filed with the PC by a citizen. 4) In such case, the PD should provide the PC with a copy of the complaint and state the compelling reasons for such action. 5) For investigations by the PD of complaints that by-pass the PC, the PD should provide a copy of the completed IAU report to the PC. Commentary: Certain public complaints filed with either the PC or PD are not suitable for routine disposition. Such situations include matters which are essentially criminal in nature, or require immediate action. Even if the PC is processing a complaint made to the PC, the PD should continue to have the ability to deal with those situations quickly and efficiently. Therefore, complaints presenting compelling circumstances requiring such action treatment should continue to be exempted from the normal process. When such occurs, the PC should be informed of the nature of the case and compelling reasons for the exception. 6) The PC should be entitled to obtain the following from the PD subject to adequate procedures consistent with existing law and collective bargaining agreements relating to the privacy rights of the individuals concerned: a) Copies of all IAU investigative reports of other misconduct of the accused. b) OBITS record of the complainant. c) Police reports relating to the incident or incidents associated with the misconduct alleged. d) Other personnel records on a case by case basis. 4 Commentary: Although the PD has represented that it will allow access to this information, current practice still does not allow the PC to receive and utilize IAU investigative reports for its determination of misconduct. Investigative reports of other misconduct may contain evidence relevant to a reasonable suspicion of misconduct sufficient to trigger an investigation or to a final f nding of misconduct. It is strongly recommended that copies of pertinent 1AU investigative reports be furnished to each Commissioner before hearings to allow for study, evaluation and meaningful use. PC recognizes that important privacy interests must be carefully protected. Therefore, it strongly recommends that the PD and PC come to an agreement on reasonable and sufficient procedures to assure confidentiality while allowing meaningful access to IAU investigative reports by all Commissioners. Except.for use in connection with PC hearings, individual Commissioners should not have access to any IAU reports or other personnel information to which privacy rights obtain except by specific authorization conferred by a vote of the Commission. 7) At its next meeting the PC should then: a) Hear the complainant's testimony and examine all other available evidence. b) Determine whether or not there is a reasonable suspicion of misconduct. c) If the PC determines that a reasonable suspicion of misconduct exists, it may refer the complaint to its investigator for investigation. 8) At all meetings relating to police misconduct, a suitable police official should be available for consultation in open or executive session on matters of police training, procedure, custom, etc. Such official would be allowed into executive session only where inquiries might reveal matters the discussion of which in open session is prohibited by law. Such official would only answer specific questions relating to proper police procedure and standards, and such official would not be allowed to hear or participate in any PC deliberations on misconduct. Commentary: In a small community, applicants for membership on the police commission seldom have the training or experience in law enforcement required of review board members in some larger cities in the United States. Often, to improve decision- making, the Commission would profit from expert advice on police custom and practice, standards of conduct and general orders for police officers, e. g. OC spray, firearms, submission techniques, radio procedures, etc. Inquiries about these matters should be made in open session, but where inquiries would reveal matters required by law to be private, such inquiries should be allowed to be made in executive session. The presence of a police official in executive session would be limited to the time during which inquiries of him or her are being made by Commission members. The official would neither hear nor participate in any deliberations. 5 9) When the PC investigator completes the investigation, the PC shall consider all evidence at its next meeting and decide whether or not there has been misconduct by the accused. If misconduct is found, the PC may submit findings of fact and conclusions along with recommendations if necessary. 10) If the IAU completes an investigation on the PC's submission, it should send its report to the Chief with a copy to the PC for review, comment, supplementation or amended findings and conclusions, if any. 11) If the Chief of Police refers the case to the Administrative Review Board, a PC non-participating observer designated by the Chairman of the Police Commission should be allowed to attend and audit the meeting subject to reasonable regulations adequately protecting the integrity of the process and the privacy of the accused. Commentary: The non participating observer (auditor) should be allowed to attend all ARB proceedings. The observer should not interfere in any manner with the proceedings and should not comment on the PC's investigation, findings or recommendations. The principal purpose of this procedure is to allow continuing oversight ofARB proceedings. Therefore, this process should not be limited to a fixed period of time, but rather continue indefinitely at the discretion of the Chief. Automatic termination of this procedure would allow a return to deprivation of a significant oversight opportunity for the PC. 12) The following recommendations apply to the ARB. a) The complainant should be allowed to testify before the ARB. b) The burden of proof at the ARB should be more clearly specified as that of a preponderance of the evidence. c) A majority decision of the board should be sufficient to conclude guilt. d) General orders should specifically require consideration of the PC's findings and conclusions. e) Upon completion of its proceedings, the ARB should provide with PC with a statement identifying its members, the witnesses who testified, its decision and recommendations, if any, and a brief statement of its rationale. 13) The Chief of Police should then inform the PC of his decision including the discipline imposed, if any. 6