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Home My WebLink AboutCOM 1089.005 2006-2008 wtr or BOB JACOBSON 333 Kilauea Avenue, Second Floor Councilmember ,i Ben Franklin Building, Hilo, Hawaii 96720 Chair, Environmental Management Committee Mailing Address: 25 Aupuni Street, Suite 200 • Vice-Chair, Finance Committee Phone: (808) 961-8263 Fax: (808) 961-8912 E-Mail: bjacobscn@co.hawaii.hi.us HAWAII COUNTY COUNCIL County of Hawaii e a MEMORANDUM 00 zr_ , Date: April 7, 2008 c• To: Pete Hoffmann, Chair j' 'n 7T, and Members of the Hawaii County Council i ? O From: Bob Jacobson, Council Member co District 6 This is to address some concerns raised by committee members regarding Bill 270 a proposed charter amendment creating the Office of Police Oversight and Complaints. 1. Independence Bill 270 states: "The director of the office of police oversight and complaints shall, at all times, be totally independent and requests for further investigations, recommendations, and reports shall reflect the views of the director alone. No person shall attempt to undermine the independence of the director in the performance of his powers, duties and functions". It also provides: "That the office of police oversight and complaints shall come under the general administrative supervision of the council, which shall conduct annual reviews. The council shall budget sufficient funds to assure that the goals and objectives of this chapter can be attained and shall not interfere with the administration of the office of police oversight and complaints and its director". It further provides: "That the council shall appoint the director for a term of five years and shall by ordinance, prescribe the powers, duties and functions of the director of the office of police oversight and complaints" and "the director of the office of police oversight and complaints shall be independent of the operational supervision of the mayor, managing director, council, police commission and the chief of police"... This is to ensure the director will be completely independent of the administration and will operate under policies and procedures decided upon by the Council. The Council will hire and fire the director of it's choosing to serve at its pleasure. a Gomm No. ~01T7 et Ref. To: ~eafd f ~i District 6 -Upper Puna, Ka `Cc, and South Kona Ref, Date d PR f 9W Hawal`i County Is An Equal Opportunity Provider And Employer 2. Powers of the Police Commission The intent of Bill 270 is not to compete with or diminish the powers of the Police Commission. The current system is little more than a rubber stamp for the Police Chief and status quo of the organization. The 2005 Settlement agreement with the Hawaii State Organization of Police Officers (attached) stripped the commission of any powers they may have ever had. The commissions own refusal to maintain an independent investigator is more proof of their desire to remain in a state of ineffectiveness. Bill 270 doesn't take any powers away from the commission it merely gives authority to an outside entity to objectively investigate complaints by private citizens against police officers and/or the police department. 3. Appropriateness for Hawaii County There is currently no true measure of police misconduct or dispositions of cases brought against the department or any of its officers because current police department policies prevent the general public from being informed on these types of issues. Confidentiality is often times used as a tool for non-accountability and non-disclosure of information that private citizens should and could have a right to under a different system. The code of silence must be broken and accountability must begin. 4. What this is NOT Bill 270 does not create a "Super Chief' nor does it create a position within the Police Department. I have also included information on other places that have implemented similar programs some places included have comparable populations some are smaller all work quite effectively. I hope this information helps to explain my position more clearly and helps further your understanding of civilian oversight of police organizations. Mahalo, A MODIFIED POLICE COMMISSION AND THE OFFICE OF POLICE OVERSIGHT AND COMPLAINTS --A COMBINED CIVILIAN OVERSIGHT SYSTEM-- `~i x ",Sts m~'~' 1 ys "7 I° dCi. ~4 F~ k 'y` F ~ i a `y' C d ,rm at t~'7 c 3q5 € n 4'p~ 4'p~el. tF r" ~ 2Y~dblP~f t~lt~y: i t i~ hSM1~ 454x''^• s to > 3 v6t, Malama O Pa BY JUDGE PAUL A DE SILVA APRIL 2, 2008 AN OPPORTUNITY FOR MEANINGFUL CIVILIAN OVERSIGHT OF LAW ENFOFCEMENT IN THE COUNTY OF HAWAII ----A MODIFIED POLICE COMMISSION AND A NEW OFFICE OF POLICE OVERSIGHT AND COMPLAINTS---- EXECUTIVE SUMMARY Civilian oversight of law enforcement creates sufficient institutional transparency of the police department to maintain public confidence, respect and trust, improves policing and reduces the costs associated with police misconduct. It assures the citizens that police operations are being conducted fairly, honestly and competently. This bill proposes that civilian representatives of the people, a Police Commission and an Office of Police Oversight and Complaints, will perform as trusted proxies who closely monitor law enforcement. Any police service is apart of the community and should be accountable to the community. --Former British Conservative minister Chris Patten-- Oversight agencies take many forms and are generally differing versions of civilian review boards (police commissions), independent auditors (ombudsmen, independent counsel) or hybrid combinations of boards and auditors/investigators/ombudsmen/independent counsel. These differing experiments in civilian oversight in the United States are accomplishing much good and should not be feared as an inappropriate intrusion in the life of a law enforcement agency. --Civilian Oversight of the Police in the United States, Merrick Bobb, Global Meeting on Civilian Oversight of the Police, 2000-- It is commonly known in the County of Hawai'i that the Police Commission system does not, has not and never will be able to achieve effective and sufficient oversight of law enforcement. The system is broken and should be replaced with effective civilian oversight. Our community should have respect and confidence in our police department and our government must require accountability to assure achieving this goal. The current civilian review board system embodied by the Hawaii County Police Commission has not guaranteed that allegations of misconduct against police officers will be fully, independently and impartially investigated. Police officers must trust that allegations made against them will be investigated fairly and will be entirely evidence-based. There has been no effective oversight that includes as one of its goals the improvement of police policies and operations. I This paper argues for a public choice through a proposed charter amendment that would establish a better system consisting of a modified Police Commission and an Office of Police Oversight and Complaints headed by a Civilian Director. The modified new Police Commission would review the police department's budget, advise on police community relations and select and evaluate the police chief. The new Office of Police Oversight and Complaints placed under the county council for administrative purposes. He or she would monitor the department's disciplinary system and other operations and suggest improvements of the police department to the chief of police, managing director and county council. The office would also perform policy review, provide public information, participate in the development of early warning systems and perform extensive community outreach and would not be allowed to interfere with the administrative affairs of the police department nor oversee criminal investigations. The council would appoint the director of the office of police oversight and complaints whose term of office would be five years. He would serve at the pleasure of the council which will also by ordinance, prescribe the minimum qualifications for the director. A minimum qualification would be that the applicant must hold a law degree from an accredited American university. The provisions would clearly provide that the director would respect confidentiality laws and protect the rights of police officers and be independent of political meddling. (See Appendix: Core Principles for an Effective Police Auditor's Office, First National Auditor's Conference) The amended charter would be specific enough to avoid ongoing ambiguity concerning the nature and depth of civilian oversight in the County of Hawaii. Review would not be limited to the disciplinary system, but would include other operations such as the promotion system that was once racked with scandal costing the government over two million dollars in damages and a similarly enormous amount for attorney's fees. (See References, The Promotion Scandal-Big Island Cops Settle Suit) "You cannot askpolice to investigate their buddies andfriends, "she said. "We've got the wrong paradigm for vigorously pursuing complaints. " Civil rights attorney Connie Rice who pressed the Los Angeles Police for Reform (See Appendix, LAPD Can't Police Itself, Audit Charges.) GENERALIZATIONS 1. Police oversight agencies should "conduct investigations, audits, evaluations and reviews with diligence, an open and questioning mind, objectivity and fairness, in a timely manner. Rigorously test the accuracy and reliability of information from all sources. Present the facts and findings without regard to personal beliefs or concern for personal, professional or political consequences." National Association for Civilian Oversight of Law Enforcement Code of Ethics 2 2. Deep police oversight of police departments exists throughout America. They have not been found to be unconstitutional and it is reckless to suggest that the County Council should not pass this bill because it is unconstituional. 3. It is shocking and disappointing, though not uncommon, to have police administrators ask why civilian oversight of law enforcement should be more intensive as compared to other government agencies such as the Department of Water Supply. Every competent police administrator knows that the police wield unique and immense power over the populace and often must conduct much of their work in secrecy. They realize that the potential for deprivation of fundamental liberties is always present, and the nature of police work has demonstrated worldwide that such deprivations often occur and be easily hidden without percipient oversight of police operations. No other agencies carry firearms and other weapons and none by necessity have regular opportunities to abuse the citizenry, particularly those that are the most helpless and are of racial minorities. 4. "One of the basic purposes of citizen oversight is to provide an independent review of citizen complaints in the sense of being independent of the internal police department procedures. Independence is designed to enhance the credibility or legitimacy of the complaint process in the eyes of the community." Report on Oversight Systems, Albuquerque City Council 5. There is a vast difference between conducting thorough civilian investigations of police misconduct and reading the complaint and listening to the complainant then referring the matter to the internal affairs division for a thorough investigation. "The logic behind an all- civilian review boards was the belief that civilians would be more willing than police officials to conduct full and impartial investigations. It was also believed that the public would have more confidence in civilians investigating the police than in the police investigating themselves." Frank H. Wohl, Chairman, New York City Complaint Review Board. 6. "The police commission should be able to independently investigate such charges, report its findings to the chief..." and to hire a private investigator "so that it need not rely on the police to investigate the police.- Hawaii County Charter Commission Committee Report, January 3, 1990. 7. The Hawaii County Police Commission has been unable to perform its duty to promptly conduct thorough and efficient investigations thereby causing unreasonable delays for final completion of the subsequent internal affairs investigation and submission of the case to the administrative review board. Occasionally this has resulted in a guilty officer completely escaping discipline due to the collective bargaining agreement's requirement that cases be processed within one year of the offense. 8. The Police Commission has abdicated its duty of investigate charges of misconduct by the department and its officers and employees. It has not, as of this writing, entered into a contract with any private investigators to perform investigations. A call to the commission office asking why there was no investigator was answered by saying that after the expiration of their private investigator contract in February 2007, the commission decided "to use internal affairs as our investigator." 3 9. "You often find that internal affairs is reluctant to expand the scope of the investigation beyond the initial charges. They put blinders on with respect to the other problems that arise. They interpret their mission very narrowly." Merrick Bobb, Los Angeles police accountability expert. 10. "The alternative model of oversight is the police auditor model. In this model, the police department retains responsibility for receiving and investigating citizen complaints, whereas the auditor has the responsibility for examining or monitoring the department's complaint process for purposes of quality control. Some auditors are able to request additional investigation in cases in which they find the police investigation inadequate and to recommend changes in police department policies and procedures. Auditors publish periodic reports that reflect their activities and provide an important element of openness or transparency for the police department in question." Perino, editor, Citizen Oversight of Law Enforcement. 11. This method fosters good investigations reviewed by a civilian on behalf of the public while solving the problem of Police Commission investigations slowing and sometimes defeating the disciplinary system. 12. Forty years of experience in Hawaii County shows that the civilian review board system of oversight has never been an effective way to oversee the police department. 13. The charter requires the Police Commission to review the department's operations and recommend improvements to the police chief and managing director. The Police Commission has never accomplished this in any significant way and is further limited by a settlement of a law suit precipitated by the behavior of police commissioners. 14. The charter does not define the nature of the duty of the Police Commission to review the operations of the police department, and it has been subject to various interpretations. 15. Under a recent settlement agreement with the police union, review of the operations of the police department has been interpreted to be very shallow and insufficient because, under the agreement even such serious corruption as the Hawaii Police Department's promotion scandal that resulted in a $2,000,000 settlement and enormous attorney's fees could not be investigated or prevented by any current oversight mechanism. (See references) The settlement agreement (See references) says that the Police Commission cannot: a. observe the internal disciplinary process and administrative review board hearings b. conduct internal departmental investigations, interviews or interrogations, c. monitor ongoing internal investigations, and have access to personnel records and internal investigations regarding police officers d. draft, revise, adopt rules or procedures to subpoena police officers and/or their police reports, internal investigations or personnel records 4 16. It is more difficult in a small jurisdiction to enlist the service of highly qualified and experienced volunteers who can make contributions of adequate time that is necessary to make the current system work to minimum expectations. 17. It is easier to find a qualified inspector (auditor) because the position is salaried and the market for selection is not restricted to the County of Hawaii. 18. Especially with charismatic police chiefs, qualities of human nature have caused police commissioners to become too close to the police to maintain the independence and objectivity required of a civilian review board. 19. The degree of training necessary to produce competent law enforcement oversight has never been achieved and may not practically be possible in Hawaii County under the present police commission system. Commissioners have recently been reluctant to even attend the annual conference of the National Association of Civilian Oversight of Law Enforcement which has valuable training sessions. The commission's secretary has at least once attended instead. 20. Oversight agencies should "Conduct oversight activities openly and transparently providing regular reports and analysis of your activities, and explanations of your procedures and practices to as wide an audience as possible. Maintain the confidentiality of information that cannot be disclosed and protect the security of confidential records." Code of Ethics of the National Association for Civilian Oversight of Law Enforcement. 21. "The Commission must get used to doing their work in a public forum. The credibility of the Commission and Police Department has suffered over the years due to the widely held public belief that decisions are made based on cronyism, and that police officers and other department personnel (including Commission members) are allowed to get away with things that ordinary citizens are not." Corporation Counsel Lincoln Ashida, Letter to Police Commission, October 10, 2005 (See References). 22. Thus, if the Police Commission harmfully slows the police disciplinary process, or to cure such sluggishness sacrifices the duty to conduct thorough and independent investigations and uses internal affairs as their investigator, and if the Police Commission has little credibility, lacks objectivity and fairness and can neither effectively review the operations of the police department nor maintain adequate training for commissioners, the present system should be abandoned and replaced with a better one that will command public respect, enhance transparency and improve law enforcement in the County of Hawaii. ADVANTAGES OF THE AUDITOR SYSTEM 1. Better monitoring of the internal affairs unit of the police department and identification of problems, and recommend improvements in the complaint process. 2. More effective oversight of all disciplinary proceedings including internal and external charges of misconduct while now a great proportion of misconduct charges are not subject to civilian oversight. 5 3. Greatly accelerated processing of complaints by the police department's disciplinary system that would eliminate delays caused by the investigation by the Police Commission preceding an investigation by internal affairs. 4. The inspector can publish extensive reports about its activities, and it can help to "open" up a police department, contributing to public dialogue about police problems, and enhancing public confidence in the oversight process. 5. The policy review function can play an extremely important role in identifying problems with police practices, providing a forum for public discussion of these problems, and a formal mechanism for recommending changes in policy. 6. The inspector can provide valuable detailed information about the police department and the complaint process. It is highly recommended that citizen oversight procedures provide the most detailed information possible. 7. An active program of community outreach is one of the most important functions of citizen oversight and it can be better handled by a full time inspector. 8. An early warning system offers the advantage of providing an effective response to the problem of those officers who appear to have a problem dealing with citizens in a professional manner. 9. Increased accountability to the public by law enforcement and resulting improved public confidence and respect for law enforcement. 10. Better ability to affect positive changes through recommendations to the chief, managing director and county council for improvement of the operations of the police department. 11. Qualifications for office would be set by the county council. There are no qualifications required for police commissioners. 12. Improved ability to review the operations of the police department and to oversee its promotion and disciplinary system. 13. A full time auditor (Civilian Police Inspector) can perform valuable community outreach. 14. The work of the auditor (Civilian Police Inspector) can help to reduce County liability due to police misconduct. 15. Continuous oversight by a full time professional is superior to sporadic attention by volunteer commissioners who meet monthly for several hours. Volunteer commissioners do not have the necessary specialized education, training and experience nor the ability to commit sufficient time to thorough police oversight. THE PRIOR 2006 INDEPENDENT POLICE AUDITOR BILL In 2006, a prior version of an independent police auditor bill was introduced as Bill 270. At the end of the day, the wisdom of the council and of many who testified or advised against it indicated that a better bill was required, and it was rejected. The council, corporation counsel, 6 the police union and others made important constructive comments that have helped to improve this new bill. • The Office of Police Oversight and Complaints (auditor) is now a separate office placed under the county council for administrative supervision and budgeting. • The director is evaluated by the county council rather than not being subject to evaluation by anyone. • The director may monitor but not participate in the internal affairs investigations of charges against the police department or its members nor participate in the department's investigative interviews. • The office may monitor but not participate in administrative review board and promotion board proceedings. • The director may not interrogate accused police officers but he may be present at interrogations and suggest questions to be asked. • New provisions preserve the independence of the office and prevent meddling with the director's duties and functions. • The chief of police and the police department are required to cooperate with the office. WHY THE CURRENT COMMISSION SYSTEM DOESN'T WORK It is now painfully apparent and disappointing that the current position of the administration of the Hawai'i County Police Department is that the status quo of civilian oversight here is adequate and that there is no need from change. Only officials serving with the most severe neglect would not see the obvious failures of the existing oversight system and would come before the Council attempting to convince them of the same. The current police commission system is a patent failure. In 1968 the charter created the Police Commission with a very brief provision that stated: Section 7-2.2. Police Commission. The police commission shall consist of seven members, two of whom shall be residents of the combined districts of North and South Hilo, one from the district of Puria, one from the district of Kau, one from the combined districts of North and South Kona, one from the combined districts of North and South Kohala and one from the district of Hamakua. The members shall be appointed by the mayor with the approval of the council in the manner prescribed in Section 13-4. In 1990 additional powers, duties and functions were added: Section 7-2.2. Police Commission. The police commission shall cons members, two of whom shall be residents of the combined districts of North Hilo, one from the district of Puns, one from the district of Ka'u, of combined districts of North and South Kona, one from the combined districts North and South Kohala and one from the district of Hamakua. The members shall be appointed by the mayor and confirmed by the council in the manner prescribed by Section 13-4. The police commission shall: 7 (a) 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 and regulations of the department (b) Review the annual budget prepared by the chief of police and recommendations thereon to the mayor. (c) Submit an annual report to the mayor and the council. (d) Receive, consider, and investigate charges brought by the public conduct of the department or any of its members and submit written 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 sufficient funds in the annual budget of the police department for use by the commission to fulfill the intent of this section. (e) Advise the chief of police on police-community relations. (f) Hire personnel necessary to carry out its functions. Except for inquiry, neither the commission nor its members shall interfere in any way with the administrative affairs of the department. (Amended, 1990 Gen, Elec.) In 2000, after the promotion scandal, the charter was amended further by adding a provision meant to strengthen its oversight powers and duties: Review the department's operations, as deemed necessary, for the purpose of recommending improvements to the police chief and the managing director. These provisions created a civilian review board model of police oversight that included the power to conduct independent investigations of police misconduct and to review the operations of the department with the duty to make recommendations for improvements. Although the stated objectives were admirable, in reality the system has become systemically dysfunctional. By a letter of October 10, 2005, the corporation counsel attempted to ameliorate the system's inadequacies. (See references for the complete letter.) The letter states: "One thing, in our opinion, is abundantly clear. Although Commission members are well intended in their desire to properly and completely investigate charges of misconduct, cases are not being investigated to a level of minimal adequacy. The following are some of the reasons for these failures: • The inability of the Commission to direct a police officer to appear and provide a statement. Presently, police officer participation in Police Commission proceedings is optional. • The lack ofparticipation by non-party witnesses. Normally, only the police officer and complainant are heard. Rarely are non-party witnesses heard by the Commission. The Commission is without subpoena power to direct these witnesses to appear and provide testimony. • The lack of comprehensive investigative reports. Even what investigative reports 8 are ordered by the Commission, due to the passage of time, minimal incentive to participate by the police officer, and the work demands of the part-time investigator's other world the written reports resemble nothing more than an expanded recitation offacts already known by the Commission. • The collective bargaining agreement requires all charges of misconduct to be investigated and the ensuing discipline to be meted out within one year of the date of offense. Given the fact the Commission meets only once a month, together with the delays in complainant reporting as well as other administrative delays, there is a time pressure to complete these investigations well before they are properly investigated. "Not adequately investigating a complaint of misconduct has significant consequences. The credibility of the Commission is compromised. The Charter requires the Commission to "receive, consider and investigate charges of misconduct. " It is a foregone conclusion that the public demands, and should expect, that this is done thoroughly. " "What are the proposed solutions? The Commission may consider discussing the following options: • Do nothing. Our observations may be way off base, and the Commission may feel it is presently doing an adequate job. • Consider creating a "task force" to investigate complaints. The Sunshine Law will allow up to four members to investigate complaints in private, and report their findings and recommendations back to the full Commission. This will address the "one meeting a month" time problem that presently burdens the Commission, and allow investigations to proceed outside of a meeting, and at a significantly accelerated pace. • Consider referring all complaints to Internal Affairs (hereinafter "IA') for investigation. The Commission will then review the L4 report (this satisfies the requirement the Commission "receive, consider and investigate charges'), and make a recommendation thereon to the Chief whether there was, in the Commission's opinion, sufficient evidence of misconduct. The investigation by M will presumably be complete, as a police officer is compelled by law to provide a statement, and the IA police officers are trained investigators. The only "downside" is the public option that the 'fox is guarding the henhouse. " However, compared to the present practice of the Commission and depth and quality of Commission investigations, the benefits of a complete L4 investigation become readily apparent. Note that the Commission nonetheless retains the authority and ability to review the IA report and judge its thoroughness. If the Commission feels further inquiry is necessary, the Commission investigator may be assigned to further the investigation. This is fiscally prudent, since the majority of the initial investigation will be done by the police, and no monetary expense will be incurred by the Commission. " (From optical scanning) 9 Police Commission Protocol Based on observations at recent Police Commission meetings, the following are humbly suggested to the Commission for their consideration: • Proper parliamentary procedure must be followed. This includes seeking recognition f•om the Chair prior to speaking, making motions and acting upon them properly, and maintaining focus on agenda items'. • Members of the public, especially complainants, should be afforded respect. A representative from the media has commented that it appears some Commissioners enjoy "cross-examining" complaints. Suffice it to say I have also observed same. Questions should be asked in a nonaccusatory, non judgmental, and open-ended manner. questions should also focus on relevant issues. As an example, when the complainant who accused a former commissioner of brandishing his Commission badge was questioned she was asked whether or not it was true that she was speeding or driving erratically. Whether this is true or not is not germane to the determination of the corpus of the allegation, to with whether under any circumstances a commissioner, who has no law enforcement power, should brandish a badge to a member of the public under circumstances which would lead an ordinary person to believe that the police; department was taking formal action against her. • Commissioners must read their material thoroughly prior to the monthly meeting. When the material (especially the citizen complaints) is thoroughly reviewed prior to the meeting, relevant questioning by commissioners should follow. Many of the questions being asked now would not be asked had the commissioners thoroughly reviewed the material. I will now share a simple technique f•om my trial attorney days as a prosecutor. As a general rule, open ended questions beginning with "who, " "what, " "when" and "where" should be asked. The answer should reveal what the witness experienced, through sight, sound, and/or other observation. The follow up question should then begin with "why. "The answer to this question will reveal more than a simple observation, but the value-based impression of the witness. • The Commission must get used to doing their work in a public forum. The credibility of the Commission and Police Department has suffered over the years due to the widely held public belief that decisions are made based on cronyism, and that police officers and other department personnel (including Commission members) are allowed to get away with things that ordinary citizens are not. As the citizen organization annexed to the Police Department, it is incumbent on the Commission to recta this problem by working towards transparency and accountability. The first major step in this direction is to promote and foster openness in Commission activities, including the processing of citizen complaints, to the extent permitted by our laws. This openness, in our opinion, will serve to dilute the public feelings of mistrust, and eliminate e s epticism that although may not be based on fact, is sincerely based in port on justified perceptions occasioned by the past conduct of the Commission. " 10 Many of these valuable criticisms and suggestions trace a long history of commission shortcomings. Then on March 20, 2007, the corporation counsel followed up with another letter seeking to suggest ways to improve the commission's inadequate performance and suggested protocol options to be discussed publicly. Apparently lengthy delays and other inadequacies of the commission still needed to be corrected, but this letter seems to inadequately modify the duty to perform thorough investigations. "Through the collective input of the Police Commission members representatives from the Hawaii Police Department and the Office of the Police Chief, the enclosed document represents the final version ofwhat will be the future investigative process followed by the Hawaii Police Commission in the processing ofall citizen complaints. The Commission is encouraged to formally adopt this procedure at its April 20, 2007 meeting. At this meeting, the Commission is also encouraged to create a task force, pursuant to Section 92-2,5(b) (1), Hawaii Revised Statutes, as amended (hereinafter "HRS') for the purpose ofpromptly evaluating all complaints and referring them to the Internal Affairs Division of the Hawaii Police Department (hereinafter "IA" and "HPD" respectively). The proposed method of creating this task force is enclosed for the Chair's reference. Note State law requires this to be a three meeting process. " PROCESSING OF CIVILIAN COMPLAINTS HAWAII'S POLICE COMMISSION Effective April 20, 2007 1. Complaint received by Commission and forwarded to internal Affairs. Once a complaint is received, it is reviewed by the Commission's Task Force, and immediately transmitted to Internal Affairs so an investigation may begin. This eliminates the delay between the filing ofthe complaint and a format referral to the police at the next regularly scheduled Commission meeting, Note that the Task Force may recommend the case be closed by the Commission and not referred to IA This recommendation should be submitted to the full Commission for formal action at the next regularly scheduled Commission meeting, 2 Complaint agendized at the next Commission meeting. This will allow %he complainant to appear before the Commission and provide testimony before the investigation is completed, thereby promoting integrity and transparency. A representative from internal Affairs should be present to hear this testimony. In cases where the Task Force recommends closure, the full Commission may act on the recommendation by (1) adopting the Task Force recommendation and closing 11 the case, or (2) referring the case to Internal Affairs for further investigation. 3. Completed Internal Affairs investigation presented to the Commission. The completed investigation should be presented to the Commission for review. A representative from Internal Affairs should be present to answer any questions. The status of investigations may be monitored by the Commission when the Internal Affairs representative presents their status report at the monthly Commission meeting. 4. Complainant notified of outcome. The complainant should he notifed by the Commission ofthe outcome ofthe investigation; whether the charges were sustained ornot. The type of discipline meted out, however, cannot be released, unless the officer was discharged. The corporation counsel also suggested a meeting procedure for the commission: PROCESS FOR CREATING A TASK FORCE PURSUANT TO HRS SECTION 92-2.5(b) (1) HAWAII POLICE COMMISSION 1. Meeting No. 1, The following motion is made: "I move pursuant to HRS Section 92-2.5, for the creation ofataskforce for the purpose of reviewing citizen complaints filed with the Commission, to refer cases to the Hawaii Police Department Internal Affairs Division for further investigation, and to make recommendations to the full Commission for the closure of cases. " After the motion passes: the following is stated on the record by the Chair: "The Task Force shall do the following: 1. Review all citizen complaints f led and collectively determine whether they should be referred to the internal further investigation. 2. If the Task Force collectively recommends the case not be referred to Internal Affairs and be closed by the Commission instead, this recommendation shall be made to the full Commission via written communication. 3. Report to the full Commission on all cases referred to Internal Affairs and cases recommended for closure at the next, regularly scheduled Commission meeting. " 2. Meeting No. 2. At this second meeting, all citizen complaint; received from the previous month and reviewed by the Task Force should be agendized For those cases referred to Internal Affairs, a motion should appear or, the agenda that the case has already been referred to internal Affairs for further investigation. For those cases where the Task Force recommends closure if the case, the written recommendation should be included on the agenda as a 12 communication. Note that no deliberation or discussion on (his written recommendation may occur at this Meeting No. 2, The Sunshine Law requires this deliberation and discussion to occur at Meeting No. 3. 3. Meeting No. 3. At this third meeting, the Commission may discuss and deliberate on the recommendation of the Task Force to close a case if the full Commission agrees with the recommendation, the Commission may vote to close the case and find insufficient evidence to sustain any misconduct on the part of the police officer or department. If the full Commission by majority vote disagrees with the recommendation of the Task Force, they may vote to refer the case to Internal Affairs for further investigation " Despite this clear advice, there is no public record of what the Police Commission decided to do with this proposed process. The commission's minutes do not specify that any motion was made to create a taskforce nor do the minutes reflect any public decision to change the procedure for the processing of complaints by shifting investigations to the internal affairs division of the police department. However, a recent call to the commission office asking why there was no investigator was answered by saying that after the expiration of their private investigator contract in February 2007, the commission decided "to use internal affairs as our investigator." This would constitute a clear violation of the charter's mandate that the Police Commission must receive, consider and investigate charges of misconduct. The Police Commission cannot and does not look very deeply into what is happening in our department and must rely heavily on what the police say rather than having a look for ourselves. The commission now handles only about half of the total charges and has gone from trying to conduct thorough and independent investigations to merely screening cases for the police department so that it can more quickly proceed to investigate themselves in private. The police department handles the other half (including internal charges but excluding report writing misconduct) without any civilian oversight. Although the intent of the charter commission may have been to allow both the commission and police department to receive complaints and investigate misconduct, a better system is required so that late commission investigations do not slow the process and frustrate objectives. A settlement with the union (discussed below) also forbids the Police Commission from observing internal disciplinary processes and administrative review board hearings barring the Police Commission and its investigator from conducting internal departmental investigations, interviews or interrogations. The Police Commission cannot monitor ongoing internal investigations. According to a suggested procedure made by the corporation counsel, once the case is closed, the commission may see the written report and question a representative of internal affairs. To try to make the current system work, this aspect is patchwork at best but certainly inadequate. The charter does not permit the Police Commission to abdicate its duty to conduct independent and thorough investigations of police misconduct. The commission has simply been unable to complete their investigations in a timely manner even though their monthly meetings seldom if ever lasted a full day. When charges from the public were made, the commissioners at a future monthly meeting read the complaints and often listened to the complainant, witnesses and the accused officer if he or she so desired. Any 13 police reports of the incident were included. According to commission minutes, the commission had great difficulty obtaining these reports from the department in a timely manner, and for some complaints a delay of many months was occurring before they were provided by the department. The commissioners then made a determination of whether or not to do additional investigation or close the case. If investigation was indicated, the complaint was referred to the commission's investigator who conducted interviews and prepared a report to be presented to the commission. Often the report was not finished in time for the next meeting. There was a built in 60 day delay before a case was referred to the department for investigation by internal affairs. Sometimes much longer investigative delays occurred. Internal affairs upon receiving the commission's referral through the chief normally investigated on its own with access to and consideration of the commission investigator's report and eventually presented it to the chief who usually routed it to the administrative review board that conducts a closed hearing that is not subject to percipient oversight. The collective bargaining agreement requires that the process be completed within one year from the date of the misconduct alleged. According to the corporation counsel, there is an oral agreement with the police union allowing the commission to view completed and closed investigations of misconduct charges. However, interview methods, the selection of witnesses to be interviewed, the nature of the questioning, and the accuracy of the reports can be difficult to discern from a review of a written report. Where there are many familial, professional and social relationships within the department written reports may not tell the whole story. It is well known that police culture embodies the ubiquitous blue wall of silence, an unwritten conspiracy between police officers tacitly agreeing not to incriminate each other. The Civilian Police Inspector would be allowed to perform much closer oversight than merely reading police reports that can be biased, incomplete, inaccurate or structured in a manner to favor a certain position. Often these matters are very difficult to detect and in is doubtful that untrained commissions would be able or willing to do a competent review from police reports alone. (See References: Report Faults Internal Affairs' Shooting Probes, L.A. Times) This is not an indictment of our internal affairs unit nor is there an intended inference that there must be something wrongful going on within the department because there is insufficient inspection of their internal operations, it is a statement of the need for transparency, not only to prevent abuse and bias but to assure the public that is does not and will not exist. It is based on the belief that it is not good enough for the police to police the police in secret and then say to us that we must take their word for it. An independent inspector who represents the public can require accountability that goes a long way toward heightening public confidence in the police. Without sufficient oversight, it is impossible to know whether internal affairs is performing adequate, unbiased and full investigations. It is much easier to trust the individual in charge of internal affairs than to trust the police officers who do the actual investigative work. For example, a recent audit of the Los Angeles Police Department's internal affairs unit by their police commission's inspector general found numerous inadequacies with internal affairs investigations. 14 "The audit, which is expected to be presented to the civilian Police Commission today, examined how 60 complaints filed against officers in recent years were handled by the officers' supervisors and investigators in the department's internal affairs group. In 29 of the cases nearly half of the time it found some sort of flaw, including investigators who inaccurately recorded statements and failed to interview witnesses or identify accused officers. In some cases, investigators failed to address allegations of misconduct at all. `We are always concerned about the quality of our investigations,' said Deputy Chief Mark Perez, head of internal affairs. `We take these findings very seriously.' " (See Appendix: Los Angeles Times article LAPD Can't Police Itself, Audit Charges---Las Angeles Times, February 12, 2008 Commission training is also a major problem. Most commissioners have little or no law enforcement experience and if we expect them to find patterns of misconduct that identify problems and causes and to come up with suggestions for improvement as required by the charter, it is very difficult task train them to a sufficient level of competence. Since the commission membership rotates, ongoing training is difficult to schedule and manage. Commissioners show very little interest in attending the annual conference of the National Association of Civilian Oversight of Law Enforcement, perhaps the best opportunity to learn about their business from experts in the field to bring home to Hawaii County. It is commonly known that commissioners tend to become too close to the police, and qualities of human nature amongst poorly untrained commissioners perpetuate this conduct. They have not demonstrated sufficient loyalty to their oversight responsibilities and have not fashioned any meaningful suggestions to improve the operations of the department. It is doubtful that many have had the opportunity to do much reading or receive much training on the values and methods of civilian oversight. An experienced and properly trained inspector would do a much better job. Volunteer commissioners do not have enough time to prepare themselves for and perform necessary oversight of the department. Under the present system such abuses as 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 much more likely to escape oversight where deep review of the operations of the police department is not permitted. Although the Police Commission's monthly meetings seldom, if ever, last a full work day, there was still considerable difficulty in providing speedy investigations of misconduct, and justice delayed may often be justice denied. Police officers may have pending charges and allegations of misconduct that go on too long without resolution. Genuine misconduct without resolution for long periods is detrimental to the police department and the public. 15 LACK OF PUBLIC CONFIDENCE IN THE POLICE DEPARTMENT AND THE POLICE COMMISSION SYSTEM The corporation counsel is totally correct in his assessment that "the credibility of the Commission and Police Department has suffered over the years due to the widely held public belief that decisions are made based on cronyism, and that police officers and other department personnel (including Commission members) are allowed to get away with things that ordinary citizens are not." Without a public opinion poll it is difficult to assess the degree of distrust by the public one commonly hears on the island and of the morale of police officers. It is therefore not good enough for us to reason that although the Police Commission is not functioning well, it is better than nothing. Good enough is seeking a better way to carry out important oversight functions. Faith in good government by the populace is of great importance, especially that aspect of government with a ubiquitous opportunity to affect our fundamental rights. Enough of us are of the opinion that the commission system as our eyes and ears does not effectively oversee the police department, and the efforts of some to further cloud the looking glass serves to diminish our confidence further. Public trust of the police is influenced by the "blue wall of silence," the unspoken conspiracy of police not to incriminate each other that exists here as it does across the country, and it is difficult to know what really occurred when the only other percipient witnesses to an incident are police officers. Dishonest testimony in court or disciplinary proceedings has been a serious and persistent problem everywhere, and the County of Hawaii is no exception. No one has found a solution but this well known aspect of police culture is vastly troubling to everyone. Because it permeates law enforcement and becomes part of its culture it is even more important to have the ability to independently examine police conduct. The Hawaii County Police Commission system has become ineffective as an oversight mechanism and now usually conducts only cursory investigations of public charges of police misconduct before sending them off to the police department. Can the public respect such a system, one that functions as more of a screening agency for the police department than one interested in thorough civilian investigations of police misconduct? In short, the system is now broken. It is time to ask the public if it would favor an alternative form of oversight consisting of a new Hawaii County Police Commission with revised duties, powers and function and the Office of Police Oversight and Complaints. THE HAWAII COUNTY CHARTER PROVIDES FOR INEFFECTIVE OVERSIGHT Other than review of the police department's budget, advising the chief of police on police community relations and the evaluation, selection and dismissal of the chief, the charter currently expresses two important oversight provisions. The commission is tasked with the duty to receive, consider and investigate charges brought by the public against the department or any of its members and with reviewing the operations of the department and making recommendations for improvement to the police chief and managing director. 16 The Hawaii County Charter states that the Police Commission must: 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 logic behind an all-civilian review boards was, of course, the belief that civilians would be more willing than police officials to conduct full and impartial investigations. It was also believed that the public would have more confidence in civilians investigating the police than in the police investigating themselves. The contrary view was that civilians would not be able to investigate police misconduct effectively because they would not have the sensitivity to police issues to fairly evaluate police officers' behavior, especially in stressful emergency situations. Another concern was that a civilian agency could not rapidly gather the information needed to evaluate police officers' actions. Today, in New York City, these issues are still debated. From the police side, the CCRB(civilian review board) is criticized for supporting complaints that are not capable of proof to a high degree of certainty. Police critics claim that civilians, who have never "walked in a police officer's shoes, " cannot fully appreciate the pressures on police officers that motivate their responses to stressful situations. --Frank H. Wohl, Chairman, New York City Complaint Review Board The charter mandates that the commission receive, consider and investigate public complaints of misconduct. Its value as an oversight provision centers upon assuring against the exclusive policing of the police by the police so that the public can be assured that misconduct is investigated in a fair, impartial and competent manner free of police bias for or against accused officers and complainants. It seeks accountability and fair treatment by law enforcement that the essence of democratic government demands. It does not presuppose that currently the police are dishonest and incapable of performing properly, but rather it develops police accountability and public confidence in and respect for law enforcement and militates against the abuse of the great power police have over the exercise of our freedoms in a democratic society. There are four types of complaints of police misconduct, 1. Public complaints made to the Police Commission, 2. External (public) complaints made directly to the police department, 3. Internal complains (those originated within the police department), and 4. Informal complaints involving minor matters. The Police Commission processes about half of the total of the first three categories. There is no civilian oversight over the external (public) complaints made directly to the police department and their internal complaints. The Police Commission processes a substantial proportion (probably 50%) of all complaints excluding report writing violations and informal complaints. 17 These practices relegate the commission to a less significant role on behalf of the public because a large number of misconduct complaints are not subject to civilian oversight. One wonders whether that was the intent of the charter commission when it said that the commission is to "receive, consider and investigate charges brought by the public against the conduct of the department or any of its members" and whether or not the commission envisioned that all public complaints should be made to the commission. Nevertheless, in practice the commission, already crippled by the limited role prescribed by the charter and collective bargaining agreement, has historically found it difficult to process complaints in a timely manner. When charges from the public were made, the commissioners at a future monthly meeting read the complaint and often listened to the complainant, witnesses and the officer if he or she so desires. Any police reports of the incident were included. According to commission minutes, the commission has great difficulty obtaining these reports from the department in a timely manner and a delay in presenting the complaint to the commission for consideration occurred. The commissioners then considered the public complaints and made a determination of whether or not to do additional investigation or close the case. If investigation was indicated, the complaint was referred to the commission's investigator who prepared a thorough report to be presented to the commission. Often the report was not finished in time for the next meeting. There was a built in 60 day or more delay before a case was referred to the department of investigation by internal affairs. Internal affairs upon receiving the commissions referral through the chief normally investigates on its own with access to the commission investigator's report and eventually presents it to the chief who usually routes it to the administrative review board that conducts a closed hearing that is not subject to percipient oversight. The Police Commission's inability for promptly process complaints effectively caused a time constraint for internal affairs because of the one year limitation on charges of police misconduct and, in some cases, slowed internal police justice to a crawl. As stated in the corporation counsel's letter of October 5, 2005, "Not adequately investigating a complaint of misconduct has significant consequences. The credibility of the Commission is compromised. The Charter requires the Commission to "receive, consider and investigate charges of misconduct. It is a foregone conclusion that the public demands, and should expect, that this is done thoroughly." "One of the basic purposes of citizen oversight is to provide an independent review of citizen complaints in the sense of being independent of the internal police department procedures. Independence is designed to enhance the credibility or legitimacy of the complaint process in the eyes of the community." Report on Oversight Systems, Albuquerque City Council Police oversight agencies should "Conduct investigations, audits, evaluations and reviews with diligence, an open and questioning mind, objectivity and fairness, in a timely manner. Rigorously test the accuracy and reliability of information from all sources. Present the facts and findings without regard to personal beliefs or concern 18 for personal, professional or political consequences. " National Association for Civilian Oversight of Law Enforcement Code of Ethics In his letter of March 20, 2007, the corporation counsel stated that he had "collective input of all Police Commission members, representatives from the Hawai'i Police Department and the Office of the Police Chief' and recommended a new procedure for the commission whereby complaints that have been deemed meritorious after paper review would be referred directly to internal affairs bypassing or at least materially limiting or eliminating any meaningful investigation by the commission. (See above and references for the corporation counsel's letter.) Although proposed changes to the way the commission processes complaints were suggested by the corporation counsel to be considered and adopted at a open meeting of the Police Commission, discussions of this new procedure do not appear in the minutes of the Police Commission making it difficult to ascertain reasons for the change. The new cursory review practice was not adopted to maintain a high standard for oversight of the police department, but because under the limitations of the charter, the Police Commission could not perform adequately and was causing serious delays in the processing of complaints through the disciplinary system of the police department. At this writing the Police Commission has no investigative services as it has not entered into any contract with a private investigator. A seriously damaged system was made worse by the commission's abandonment of thorough civilian investigations. Perhaps the following is a good example of early recognition of the commission's abdication of their duty to conduct an independent civilian investigation of charged police misconduct. The Police Commission's minutes of August 24, 2007, state: "[A citizen] stated that [the deputy corporation counsel] mentioned something about screening. He asked for an investigation on the screening. He got a distinct impression that this whole thing is an exercise in futility. They get their complaints filtered or screened. [The chair] stated that they are volunteers from each district. They hear why people are there. They talk about it amongst themselves and see if there is sufficient evidence to turn it over to the police department. They are not in the position to go out and arrest somebody. [The citizen] stated that [another person] made a complaint to the Police Chief and they referred him to the commission. He asked if the police department is using the commission to filter their complaints. " The citizen was right. The Police Commission's new philosophy is to act as an agent of the police department to filter complaints. It no longer seeks to independently investigate police misconduct to determine whether or not it occurred, but rather to determine whether or not the internal affairs unit should do a secret investigation to find out if it occurred. They have abdicated they duty and now simply help the police to police themselves. 19 The charter also obligates 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. This provision was added to the charter in 2000. The intent of the charter commission can be determined on its face along with an examination of the charter commission's minutes memorializing testimony concerning a scandal involving rigged promotions. (See Appendix for a brief history of the scandal) The result was the foregoing provision intended to cause the commission to oversee operations of the department to discover and deter such corrupt practices and to develop accountability. Unfortunately, the charter did not describe how this review was to occur and its depth was not specified. One clear objective of police oversight is to help law enforcement develop good practices and procedures. For example, as the commission considers public charges of misconduct, it might find patterns of recurrent police behavior. It could be the use of excessive force during arrests or simply a lack of diplomacy when officers confront citizens. Good oversight practices urged repeatedly by oversight experts, is to find patterns and determine causes and prospective solutions to recommend to the police department. For example, weaknesses could emanate from an absence of sufficient training in certain areas or perhaps an undesirable aspect of police culture. Complicating the limited powers of the commission to review the operations of the department is a 2004 settlement of a police union unfair labor practice complaint against the department precipitated by the actions of two police commissioners who attended a closed administrative review board hearing contrary to the department's general orders and the collective bargaining agreement. The settlement states, in part, as follows: "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. 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 Pole 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- 20 2.2(c)(4) of the Hawaii County Charter, which states, 8[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." This unfortunate development dealt a severe and crippling blow to the commission. It further conservatively defined the commissions duty to review the operations of the department and relegated its role to very limited and shallow oversight of law enforcement. Now unable to perform its duty to thoroughly and independently investigate misconduct and frustrated in its review of police operations, the Police Commission's oversight function is almost completely decimated. CONCLUSION Police officers are in the community to serve and protect all citizens of that community. A democracy demands transparency of its law enforcement institutions to assure constituents that they are competent, fair and honest. Law enforcement holds unique powers over the exercise of our precious fundamental freedoms. Counter veiling values that may require secrecy can justify limited access to some of the police department's operations, but there is no reason to prevent an independent proxy from doing that for the public. The police have a culture of their own. Cultures can support both positive and negative dynamics in organizational behavior. For instance the culture of the police fraternity, where police officers across the profession view each other as a family of comrades, can be a powerful element for creating unity. Taken to the extreme, this positive culture can create us-versus-them social dynamics and erect barriers that isolate police from the communities they serve. ------A. R. (Rod) Gehl, M.A., Inspector, Abbotsford Police Department, Abbotsford, British Columbia, Canada------ When our oversight system harmfully slows the police disciplinary process, or to cure such inefficiency sacrifices the duty to conduct thorough and independent investigations, and when it has little credibility, lacks objectivity and fairness and can neither effectively review the operations of the police department nor maintain adequate training, the system should be abandoned and replaced with a better one that will command public respect, enhance transparency and improve law enforcement. END 21 REFERENCE MATERIALS (Tab Numbers) 1. How Police Auditors Can Improve Policing 2. Core Principles for an Effective Police Auditor's Office 3. Best Practices in Police Accountability 4. Some Jurisdictions with Police Auditor Systems 5. Garrity v. New Jersey Brief with Procedure 6. Correspondence Between the Corporation Counsel and Police Commission with His Recommended Changes to Police Commission Investigative Procedures 7. Chapter 2, Hawaii County Charter, Police Department/Police Commission 8. The Promotion Scandal-Big Island Cops Settle Suit 9. Report Faults Internal Affairs ' Shooting Probes-Los Angeles Times, December 20, 2000 101APD Can't Police Itself, Audit Charges---Las Angeles Times, February 12, 2008 22 Harry Kim - Lincoln S.T. Aihida Mayor _ _ _ Cmporadoa Cowed Gmld Tahaae COUNTY OF HAWAII Auuuoa Corpora m Camel OFFICE OF THE CORPORATION COUNSEL 101 Aupud 8aee4 8uim 325 • ILI% llawd9 967204262 • (808) %1-8251 • Pax' (809) 9618622 .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, Hawai`i.96720 Dear Councilman Jacobson: Re: Appllcation of Hawai `i Revised Statutes §92F--19 on proposed Independent Police Auditor WRK No. 06-11931 (RUSID Issues Presented: 1. How would Hawaii Revised Statutes C H.RS: % §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. Hawaii County is an Equal Opportunity Provider and Employer 3(,?77 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 ofgovernment records to any other agency unless the disclosure is: (1) neeessaryfortheperfbrmanee 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 cant' out their function as the police commission, H.R.S. §92F-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 Hawai'i 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 Ojzcers 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 Riehts of Law Enforcement Officers. The Labor Relations Information Systems, (0 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 necessaryfar 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. 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 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 sufcient funds in the annual budget of the police department for use by the police commission to fulfill 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. r._„y. . Honorable Bob Jacobson April 5, 2006 Page 4 Comments: The following are policy decisions which you may wish to address: 1. The proposed charter amendi` ifit does not state who the independent police 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. Thank you for allowing us to assist you in this matter. Sincerely, / CRAIG SUDA Deputy orporation Counsel CTM:stw Encl. s:AdcpflPolice WRK 06.1193111tr to Juobm m police auditrnW-5461CTMstw.doc PROCESS FOR CREATING A TASK FORCE PURSUANT TO HRS SECTION 92-2.5(b)(1) HAWAII POLICE COMMISSION 1. Meeting No. 1. The following motion is made: "I move pursuant to HRS Section 92-2.5, for the creation of a task force for the purpose of reviewing citizen complaints filed with the Commission, to refer cases to the Hawaii Police Department Intemal Affairs Division for further investigation, and to make recommendations to the full Commission for the closure of cases." After the motion passes, the following is stated on the record by the Chair: "The Task Force shall do the following: 1. Review all citizen complaints filed and collectively determine whether they should be referred to the Internal Affairs Division for further investigation. 2. If the Task Force collectively recommends the case not be referred to Internal Affairs and be closed by the Commission instead, this recommendation shall be made to the full Commission via written communication. 3. Report to the full Commission on all cases referred to Internal Affairs and cases recommended for closure at the next regularly scheduled Commission meeting." 2. Meeting No. 2. At this second meeting, all citizen complaints received from the previous month and reviewed by the Task Force should be agendized. For those cases referred to Internal Affairs, a notation should appear on the agenda that the case has already been referred to Internal Affairs for further investigation. For those cases where the Task Force recommends closure of the case, the written recommendation should be included on the agenda as a communication. Note that no deliberation or discussion on this written recommendation may occur at this Meeting No. 2. The Sunshine Law requires this deliberation and discussion to occur at Meeting No. 3. 3. Meeting No. 3. At this third meeting, the Commission may discuss and deliberate on the recommendation of the Task Force to close a case. If the full Commission agrees with the recommendation, the Commission may vote to close the case and find insufficient evidence to sustain any misconduct on the part of the police officer or department. If the full Commission by majority vote disagrees with the recommendation of the Task Force, they may vote to refer the case to Internal Affairs for further investigation. o+` r•• Lincoln S.T. Ashida Harry Kim w+i w Corporation Counsel Mayor Gerald Takase Assistant Corporation COUnSBI COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 " Hilo, Hawaii 967204262 " (808) 981-8251 " Fax (808) 961-8622 March 20, 2007 Sent via email: no hard copy will follow MAR Y 7 2007 Honorable Pudding Lassiter Chair, Hawaii Police Commission County of Hawaii Hilo Lagoon Centre, Ste. 313 101 Aupuni St. Hilo, HI 96720 Dear Chair Lassiter and Police Commission Members: RE: Suggested Improvements to the Investigation Process- FINAL DRAFT Through the collective input of all Police Commission members, representatives from the Hawaii Police Department and the Office of the Police Chief, the enclosed document represents the final version of what will be the future investigative process followed by the Hawaii Police Commission in the processing of all citizen complaints. The Commission is encouraged to formally adopt this procedure at its April 20, 2007 meeting. At this meeting, the Commission is also encouraged to create a task force, pursuant to Section 92-2.5(b)(1), Hawaii Revised Statutes, as amended (hereinafter "HRS") for the purpose of promptly evaluating all complaints and referring them to the Internal Affairs Division of the Hawaii Police Department (hereinafter "IA" and "HPD" respectively). The proposed method of creating this task force is enclosed for the Chair's reference. Note State law requires this to be a three meeting process. Please contact me in advance of the April 20°i meeting if you have any questions concerning this process. Very truly yours, a, COL . T. ASHIDA Corporation Counsel c: Honorable Lawrence K. Mahuna, Police Chief Captain Marshall Kanehailua, HPD IA S: BoardslPolice(Cotresp.rLatter to Commission re new investigative process FINAL 3-20-07rLSAmr Hawai'l County is an Equal Opportunity Employer and Provider C) g ~ f V Lincoln S.T. Ashida Harry Kim bw Corporation Counsel Mayor Gerald Takase ;r.;1 A : Assistant Corporation b:~•~ Counsel COUNTY OF HAWAII;`;{;. OFFICE OF THE CORPORATION COUNSEL OCT 2005 101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-0262 • (808) 961-8251 Fax (808) 961-8622 October 10, 2005 Honorable Chairman John Bertsch and Members of the Hawaii Police Commission County of Hawaii 25 Aupuni St. Hilo, HI 96720 Dear Chairman Bertsch and Commission Members: RE: Investigation of Citizen Complaints and other Commission Protocol The purpose of this communication is to facilitate discussion concerning some recent observations of the Hawaii Police Commission's manner of investigating citizen complaints and other protocol items from recent Commission meetings. Although these matters may arguably be discussed in closed session, it is our recommendation that they be discussed in open session, in the interest of transparency and government accountability. At the onset, the County of Hawaii thanks each of you for your selfless dedication of time and effort in serving on the Commission, in an effort to make our community a better place for all our citizens. Investigation of citizen complaints Article VII, Chapter 2, Section 7-2.2(c)(4) of the Hawaii County Charter (2000) (hereinafter "Charter") provides in pertinent part as follows: The police commission shall: (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. Gil Hawaii County is an Equal Opportunity Employer and Provider Honorable Chairman John Bertsch and Members of the Hawaii Police Commission October 10, 2005 Page 2 As we have recognized through our work on the Commission, this is not the exclusive route an aggrieved citizen must follow if he/she wishes to file a complaint against a police officer. In other words, the citizen may file a complaint with the police department directly. Initiating a complaint with the Commission exists as an alternative, and not the sole means of bringing a complaint against a police officer. What constitutes "receive, consider and investigate charges?" There is no adequate definition of "investigate" in the Charter, or the existing rules of the Police Commission. What is clear, however, is the Charter provides that the Police Department shall budget sufficient funds in order for the Commission to carry out this mandated objective. One thing, in our opinion, is abundantly clear. Although Commission members are well intended in their desire to properly and completely investigate charges of misconduct, cases are not being investigated to a level of minimal adequacy. The following are some of the reasons for these failures: • The inability of the Commission to direct a police officer to appear and provide a statement. Presently, police officer participation in Police Commission proceedings is optional. • The lack of participation by non-party witnesses. Normally, only the police officer and complainant are heard. Rarely are non-party witnesses heard by the Commission. The Commission is without subpoena power to direct these witnesses to appear and provide testimony. • The lack of comprehensive investigative reports. Even when investigative reports are ordered by the Commission, due to the passage of time, minimal incentive to participate by the police officer, and the work demands of the part-time investigator's other work, the written reports resemble nothing more than an expanded recitation of facts already known by the Commission. • The collective bargaining agreement requires all charges of misconduct to be investigated and the ensuing discipline to be meted out within one year of the date of offense. Given the fact the Commission meets only once a month, together with the delays in complainant reporting as well as other administrative delays, there is a time pressure to complete these investigations well before they are properly investigated. Not adequately investigating a complaint of misconduct has significant consequences. The credibility of the Commission is compromised. The Charter requires the Commission to "receive, consider and investigate charges" of misconduct. It is a foregone conclusion that the public demands, and should expect, that this is done thoroughly. Honorable Chairman John Bertsch and Members of the Hawai'i Police Commission October 10, 2005 Page 3 What are the proposed solutions? The Commission may consider discussing the following options: • Do nothing. Our observations may be way off base, and the Commission may feel it is presently doing an adequate job. • Consider creating a "task force" to investigate complaints. The Sunshine Law will allow up to four members to investigate complaints in private, and report their findings and recommendations back to the full Commission. This will address the "one meeting a month" time problem that presently burdens the Commission, and allow investigations to proceed outside of a meeting, and at a significantly accelerated pace. • Consider referring all complaints to Internal Affairs (hereinafter "IA") for investigation. The Commission will then review the IA report (this satisfies the requirement the Commission "receive, consider and investigate charges"), and make a recommendation thereon to the Chief whether there was, in the Commission's opinion, sufficient evidence of misconduct. The investigation by IA will presumably be complete, as a police officer is compelled by law to provide a statement, and the IA police officers are trained investigators. The only "downside" is the public perception that the "fox is guarding the henhouse." However, compared to the present practice of the Commission and depth and quality of Commission investigations, the benefits of a complete IA investigation become readily apparent. Note that the Commission nonetheless retains the authority and ability to review the IA report and judge its thoroughness. If the Commission feels further inquiry is necessary, the Commission investigator may be assigned to further the investigation. This is fiscally prudent, since the majority of the initial investigation will be done by the police, and no monetary expense will be incurred by the Commission. Police Commission protocol Based on observations at recent Police Commission meetings, the following are humbly suggested to the Commission for their consideration: • Proper parliamentary procedure must be followed. This includes seeking recognition from the Chair prior to speaking, making motions and acting upon them properly, and maintaining focus on agenda items'. • Members of the public, especially complainants, should be afforded respect. A representative from the media has commented that it appears some Commissioners enjoy "cross-examining" complainants. Suffice it to say I have also observed same. Questions should be asked in a non- accusatory, non-judgmental, and open-ended manner. Questions should ' Discussing a matter of board business which does not appear on the Commission's agenda would also be a violation of the Sunshine Law. _ Honorable Chairman John Bertsch and Members of the Hawaii Police Commission October 10, 2005 Page 4 also focus on relevant issues. As an example, when the complainant who accused a former commissioner of brandishing his Commission badge was questioned, she was asked whether or not it was true that she was speeding or driving erratically. Whether this is true or not is not germane to the determination of the corpus of the allegation, to wit: whether under any circumstances a commissioner, who has no law enforcement power, should brandish a badge to a member of the public under circumstances which would lead an ordinary person to believe that the police department was taking formal action against her. • Commissioners must read their material thoroughly prior to the monthly meeting. When the material (especially the citizen complaints) is thoroughly reviewed prior to the meeting, relevant questioning by commissioners should follow. Many of the questions being asked now would not be asked had the commissioners thoroughly reviewed the material. I will now share a simple technique from my trial attorney days as a prosecutor. As a general rule, open ended questions beginning with "who," "what," "when" and "where" should be asked. The answer should reveal what the witness experienced, through sight, sound, and/or other observation. The follow up question should then begin with "why." The answer to this question will reveal more than a simple observation, but the value-based impression of the witness. • The Commission must get used to doing their work in a public forum. The credibility of the Commission and Police Department has suffered over the years due to the widely held public belief that decisions are made based on cronyism, and that police officers and other department personnel (including Commission members) are allowed to get away with things that ordinary citizens are not. As the citizen organization annexed to the Police Department, it is incumbent on the Commission to rectify this problem by working towards transparency and accountability. The first major step in this direction is to promote and foster openness in Commission activities, including the processing of citizen complaints, to the extent permitted by our laws. This openness, in our opinion, will serve to dilute the public feelings of mistrust, and eliminate the skepticism that although may not be based on fact, is sincerely based in part on justified perceptions occasioned by the past conduct of the Commission. I respectfully recommend you consider agendizing this matter for public discussion at your next meeting, to begin a dialogue on how we may work together to improve the way the Commission goes about performing its important duties. Again, we thank you for your service to our community, and for your commitment to making life better for our citizens. Honorable Chairman John Bertsch and Members of the Hawaii Police Commission October 10, 2005 Page 5 1 will be available at your next meeting to answer any questions you may have, or to facilitate discussion on these important topics. Very truly yours, LINCOLN S. T. ASHIDA Corporation Counsel S: Boards/Police/LSA miscAetter reprocessing complaints 10-10-05/LSAmr 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. ) 1 SETTLEMENT AGREEMENT (Hawaii Police Commission) This JETTLEMENT AGREEMENT is made and entered into on this 2o7`L day of ! f j 1 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 Hawail 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-appolnting 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 accompli"sh and effectuate its overzealous goals it is unlawfully manipulating, demanding, coercing, forcing;.an /or requiring the Employer to do Its bidding In total disregard of the applicable I BA,';Hawail County Police Department General . Order No. 303, the Ruies and eguistlons on Civil Service and Compensation, Hawaii County, and/orChapterkF 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 intemal Investigations with the Hawaii County Polce 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 pollee officers, except as is consistent with their responsibilities under'Articie 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. WOMEN 7. Each party will bear Its own costs and fees. DATED: Honolulu, Hawaii, 4rl~ 2D Ls°S HA. Y KIM, M r TENARI MAAFALA County of Hawa I President, SHOPO Ex ~~w LAWRENCE K. MAHUNA EMORY PRINGER . . Chief of Police Hawaii County Chapter Chair, SHOPO Hawaii County Police Department MICHAEL J. U OVIC RANDAL SHIDA Deputy Corporation Counsel Attorney far-SHOPO Attorney for Mayor Harry Kim, Hawaii Police Department and Hawaii Police Commission