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HomeMy WebLinkAboutCOM 0831.003 2004-2006 Paul M. de Silva 3020 Ainaola Drive, Hilo, Hawaii 96720 Telephone: (806959-6901 Fax: (808) 959-6901 Emait.. Paolo@ Hawaii.rr.com - May 6, 2006 Honorable Stacy Higa and Members of the Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 Dear Chairman Higa and Council Members: Re: Letter from Mr. Lincoln Ashida to the Council May 4, 2006 Their Entry: WRK 06-12224 Mr. Jacobson provided me with a copy of the corporation counsel's correspondence concerning Bill 270. The corporation counsel's views were previously sought to assure that there were no collective bargaining or other legal impediments to it. I also emailed a copy of my working draft to corporation counsel Ashida for him to discuss with the chief and comment to me if he wished. I have always respected his professionalism though we often disagree on issues. He is your counsel and certainly his advice on legal matters should be critically important to you. However, I do have some thoughts on his letter that I would respectfully like to share. Garrity rights for police officers: I totally agree with the thrust of the corporation counsel's advice on this matter and some of the comments made by Mr. Malani from the police union, and believe that the a section of the bill goes beyond monitoring and should be amended by striking the ,functions that I have underlined below. (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. Comm No. ~.3 Ref. Toi1 Ref. Date The auditor should not participate in any of the department's functions other than in the capacity of a monitor, and I was wrong and apologize for suggesting this language and missing this glaring issue. This was purely my error of judgment. However, I emphatically disagree with the assertion that "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." This is a palpable non sequitur. His presence is intended as a non-participatory monitor and sitting and listening is not "tantamount" to participation. If language to clarify that is necessary, it is suggested that you do so rather than defeating the entire proposal. Monitoring is not participating. The best way to assess the fairness of the hearing is to allow presence of the auditor. Furthermore, reviewing the paperwork for less than half of the department's misconduct complaints after the fact is not much oversight at all. There is much to be said in favor of watching the disciplinary and promotion systems in action. As I understand it, there is no transcript or minutes kept by the administrative review board. Without a monitor, its fairness and objectivity cannot be reviewed thoroughly. Effective oversight should also go way beyond the disciplinary system and into the root causes of some of the department's systemic or cultural problems and a lack of public confidence if such be the case. Good oversight does not involve "micro management." The auditor simply has no management responsibilities at all. Concerning the application of HRS 291F-19: The corporation counsel states that "Simply put, assuming Bill 270 in its present form passes, it does nothing to mandate the disclosure of internal affairs records to the independent auditor." I do not believe that this is an accurate statement since the charter itself would require disclosure. The auditor would have the power, duty and function to "access all evidence and reports developed as part of such investigations." It would therefore become the department's duty to provide such access and Section 291F-19 would allow the chief to release it. Granting the power to one agency to obtain records from another very cleary implies the duty to make them obtainable. The chief has discretion that must be exercised to perform his duty to provide the necessary information. Interpretation of laws which describe a system need to be read together to make the system work as intended, not to frustrate it. It would be absurd to empower the auditor to have access to the information while having the chief decide whether or not to supply it. That is what has happened up to this point. The overseen could dictate to the overseer what could be overseen. That just doesn't work well. I totally agree with the Corporation Counsel that there should be a "mutually agreeable protocol for the sharing of sensitive information." At least under the present administration of the police department, I don't envision that there would be any 2 problem. The police auditor is there to try to improve public confidence in the department, not to create unnecessary controversy. Future chiefs may not be as open minded. To whom does the independent police auditor answer: Either the Corporation Counsel's submission or my copy of the IPA Bill is wrong. My copy says this: Section - .3. Independent Police Auditor. The county council shall by ordinance set qualifications for the office of independent police auditor. The mayor shall nominate a qualified person for the independent police auditor, and a two-thirds vote by county council shall be required for confirmation of the independent police auditor. 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. While the mayor nominates the independent police auditor and the council confirms, removal requires first action by the council. The reason for this reversal is that the mayor has general administrative authority over the police department. It should not appear to the public that he or she should or could remove an independent auditor simply because he or she dislikes what the auditor concludes. Should the independent police auditor be doing an unsatisfactory job, the council could of course call him before them to inquire and determine whether or not he should be dismissed. The same happens to police commissioners, except that the mayor acts and the council approves. I believe that some of the council's questions concerning "checks and balances" might have been predicated on a misunderstanding about how the independent police auditor would be selected. Confusion may have arisen from the drafts that I had sent to the corporation counsel when I was working on this matter. At one point, the draft did say that the council alone would select the independent police auditor. The draft submitted as an attachment to the Corporation Counsel's letter is not the same as Bill 270. An auditor must have independence to have public confidence. Please note that under Bill 270: o The auditor is selected by the mayor and confirmed by the council. o The auditor can be removed by two-thirds vote of the council with the concurrence of the mayor. o The council sets his or her qualifications. o The council can assign additional powers, duties and functions. o The auditor is prohibited from interfering with the day to day administrative affairs of the police department. One common characteristic of all effective oversight agencies in independence. It is this characteristic that makes them democratic. The auditor's loyalty is most directly 3 to the public, largely free of political influence. Similar considerations justify the use of independent counsel for investigation of government corruption. Supervision by the mayor or managing director, who has administrative powers over the overseen police department is also problematical since the auditor's report must have an appearance of independence from the mayor's influence. Nevertheless, whenever this form of oversight is being considered, similar debates have ensued. To have the auditor subject his discretion to that of another government office would destroy independence upon which public confidence would be based. The term super chief: With due and total respect to its progenitors, the catch phrase, "super chief," does not fairly characterize the proposed office of the independent auditor. It is an inflammatory saying used to emotionally hinder critical judgment while implying a distortion of the independent police auditor's proper role. The auditor has no administrative functions and is the chief of neither the department and its chief nor any of the department's operations. o The auditor cannot make department policy, is not superior to the chief and is not "super" anything. o The auditor is a monitor that performs oversight and provides a better way for the public to know and influence law enforcement policy through recommendations. It replaces the secrecy which breeds distrust. o The proposal specifically prohibits interfering with the administration of the department just as it does for the police commission. o The depth of oversight depends largely on how much accountability to the public is desired. It is certainly true that because other jurisdictions have auditors, it doesn't mean that they are justified here. It is also important to be aware of trends in other jurisdictions lest we remain insular in our thinking, failing to consider more modern developments and vast experiences elsewhere. The method of selecting the auditor is debatable. Methods of selection of course vary widely from jurisdiction to jurisdiction. This is a detail that could be easily amended by the council, and I certainly defer to your wisdom. One primarily protected value is the independence of the auditor whose credibility with the public is the essence of his deep oversight function. The police commission: The corporation counsel states that the police commission continues to perform its oversight functions pursuant to its duty to review the department's operations and recommend improvements. Of that I am glad though dubious and realize that my brief 4 visit on the commission ended over two years ago, and although I read its meeting minutes and newspapers, I am not well informed on what it has been doing. Nevertheless, other than the commission recommendations I submitted with my written testimony when I appeared before the committee, I am not aware of any recommendations to the managing director or mayor that were systematically adopted as police commission written recommendations for improvement as specified by the charter. If the police commission were being effective as a recommending oversight board, are their recommendations of record that show this? The chief, mayor and managing director can be asked to produce the police commission's written recommendations and reports to them since 2001, the first year that they were mandated to "review the department's operations." Do any of its annual reports mention recommendations for improvements or studies of department operations? Perhaps the commission might tell us what operations they have reviewed in detail, how they have reviewed them and what specific recommendations for improvement it has made to the chief, mayor and managing director. What written reports has it prepared and submitted that memorialize any in depth efforts to study any police operations? Has the commission categorized complaints to attempt to discover weaknesses, and has it made inquiries to isolate causes or are they satisfied with finding a few rotten apples without fixing the barrel? Has it examined local police culture to see if there are any problems that can be solved? Have they been trained about police culture? What training have they been given by the corporation counsel? How will training continue so that all commissioners are properly trained? How do you handle a constantly changing commission membership in terms of keeping abreast? What backgrounds of the various commissioners make them particularly suitable candidates to review police operations? What training or experience gives them a basis understanding of police operations? We know that there has been no significant, percipient monitoring of the police department's closed operations or any oversight at all over the disciplinary system for other than matters that arise from public complaints of the police commission, and in that event, it seems that the review is cursory. Although the police commission has heard hundreds of public complaints, it is pertinent to know whether or not they have sufficiently reviewed training and culture and recommended ways to solve persistent, recurring problems, e.g., police-public confrontations caused by police officer attitude problems, the most common complaint. Has this problem been reviewed in depth and something done other than a few casual remarks at meetings? The commission cannot closely monitor the disciplinary or promotion processes given the settlement agreement, and it seems to be a rather common public notion that the commission still wants to be too close to and popular with the police department as sort of its buddy and cheering section rather than its monitor. It might even be healthy if the police administration were a little afraid of the police commission rather than its lunch partner. 5 The commission probably does not focus on police operations in depth to try to suggest betterment. It has never made an assessment of community confidence or police morale. Adequate training of commissioners is difficult and vacancies are hard to fill with suitable candidates. It has never functioned well as an effective review board even after that duty was made clear by the public in 2000 when it adopted the recommendation of the charter commission to add the power, duty and function to review the operations of the department for the purpose of recommending improvements. Nothing would make me happier than to be proven wrong. It would be interesting to have some way of determining what the public thinks of the police department and the police commission system. My views would certainly be influenced by a positive response. Maybe I have listened to the voices of the six blind men from Hindustan describing an elephant, but what I hear does not ring well for either agency. What do you hear? Conclusion: Passage of Bill 270 would provide a good measure of what the public wants for law enforcement. If the public voted for it and the office functioned for a while, the charter commission would have a body of experience upon which to rely when deciding whether to retain it, and someone will have had a good opportunity for an inner look at a closed agency without violating any privacy laws adding to the improvement of the police department promised by accreditation. If Bill 270 fails to satisfy you, hopefully this issue will again surface before the charter commission with much more time to thrash through the debatable issues thoroughly. I regret that I will be unable to attend the council meeting on this matter because I will have to be out of state. I sincerely thank Mr. Jacobson for what I think took moral and political courage, and I thank you for your attention, consideration and interest in "who is policing the police." Your perceptive and insightful questions and discussion during the committee hearing demonstrate the wisdom of a collective mind. Aloha, aul M. de Silva cc. by email attachment Honorable Harry Kim, Mayor Chief Lawrence Mahuna, Chief of Police Mr. Lincoln Ashida, Corporation Counsel Mrs. Pudding Lassiter, Chairman, Hawaii County Police Commission 6