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HomeMy WebLinkAboutCOM 1089.006 2006-2008 CONFIDENTIAL MEMORANDUM Not for Public Disclosure To: Bob Jacobson, Council Member From: Levi Hookano, Legal Specialist Date: April 21, 2008 Re: Bill 270, Office of Police Oversight and Complaints This memo is in response to a request from District 6 regarding Bill 270, establishing an Office of Police Oversight and Complaints ("Office"). Issues Presented 1. Whether Bill 270 is a legal bill. 2. Whether Bill 270 generates any personal liability for individual council members. 3. Whether Bill 270 violates a police officer's "Garrity rights." Discussion Bill 270 could be Challenged on the Grounds that it Violates the Doctrine of Separation of Powers because the Council would be Participating in the Enforcement of the Law by Appointing a Director who Monitors and Oversees the Conduct of the Police and Administratively Supervise the Office of Police Oversight and Complaints. However, the Hawaii State Supreme Court Has Recognized that there is some Overlap may Occasionally Occur The doctrine of separation of powers generally states that the legislative branch of government sets the policy and the laws, and the executive branch enforces those policies and laws passed by the legislative branch. The Hawaii State Supreme Court has stated, when referring to the Honolulu City Charter, that "[t]he charter has as its basic scheme a clear and definite separation of the legislative power and the executive power of the city and county, vesting the former in the legislative branch represented by the council and the latter in the executive branch headed by the mayor."' Asa result, the Court then stated "[u]nder the separation of powers each branch is coordinate with the other, and neither may exercise the power vested in the other."2 There must be, however, some ' Akahane v. Fan, 58 Haw. 74 (1977). z Id. Gomm. No. 1 00-6 Ref. To: Praeoted coma Ref. DateAPR 22 2008 1 latitude between the branches of government since one branch cannot exercise its power without some say from the other. The Hawaii County Charter, however, states in Section 4-1, that the executive power of the county is vested in the executive branch... except as otherwise provided by the Charter. This could provide for an exception to the traditional views of the separation of powers doctrine which would allow for the Council to amend the charter to allow the Council some authority normally reserved for the executive branch of government .4 Since the proposed Office of Police Oversight and Complaints would review all internal and external complaints against the police as well as monitor the police department's own investigations of complaints against police officers, the Bill could be found to encroach on the duties of the executive branch. The reason it would be appear to encroach on the executive branch is primarily because the director of the Office would be appointed by the County Council and would serve at the pleasure of the Council. Additionally, the Office falls under the general supervision of the County Council. This would put the council in a position to effectively participate in police internal investigations and complaints against the police by the public. For the reasons stated, this Bill may not necessarily violate traditional views of separation of powers because it is a charter amendment. It should be cautioned, however, that a thorough review of the Charter Commission minutes may reveal that the Commission did not intend for any one branch of government to have more authority than another, and a court could take that into consideration and invalidate the bill on the traditional views of separation of powers. Legislative Immunity would probably Protect the Individual Council Members from Liabilitv The general rule is that legislative members would not be able to perform their duties effectively if they were to be exposed to liability for everything they said and did while serving in their official capacity. As such, they are protected by legislative immunity from lawsuits while in the conduct of their duties.' At this time, the only issue I can see that would possibly expose the individual counsel members to personal liability regarding Bill 270 would be if Corporation Counsel advised the Council that this Bill was contrary to established law, and the Counsel were to disregard the advice and pass the Bill anyway. It is possible that, if a court were to invalidate Bill 270 on the grounds that it was contrary to law, the Council could be sued by a police officer who was disciplined under the law. In this situation, if Corporation Counsel has warned that the Bill is contrary to established law, Corporation Counsel may 3Id " See Id. s See Bogan v. Scott-Harris, 523 U.S. 118 (1448). 2 be disqualified from representing the Council in a subsequent lawsuit. This determination, however, would be made by the Corporation Counsel. Legislative immunity would most likely protect the individual council members because the law was passed in accordance with their official duties. There is Potential for Bill 270 to Violate an Officer's Garrity Rights where there is a Request for Civilian Investigation Under Proposed Section 3-3.6 Garrity Rights effectively protects a police officer from self-incrimination. Where a police officer is investigated, s/he has "Garrity Rights" when the officer is threatened to either make an incriminating statement or face discipline or lose their job. When a statement is given in that situation, it cannot be then used against the officer in a subsequent criminal proceeding 6 Section 3-3.6 allows for a civilian investigation into police misconduct if the Director of the Office concludes that the police department refused to thoroughly investigate a matter. In this situation, it is not within the civilian investigator's authority to give immunity to a police officer who is investigated. In order for Garrity Rights to apply, a police officer must be faced with a threat of discipline or loss of their job. A civilian investigator cannot make that threat to a police officer. As such, any statements made to the civilian investigator can still be used against the officer in a criminal prosecution. Conclusion It is my understanding that an opinion from Corporation Counsel has been issued on Bill 270. While I have not seen that opinion, I would recommend deferring to Corporation Counsel should their opinion differ from my own as they are the County Council's official attorney of record. If you have any further questions regarding this issue, please do not hesitate to contact me. Again, I apologize for the delay in getting this opinion to you as I was initially unfamiliar with some of the issues such as "Garrity Rights." Sent electronically. No hard copy to follow. /s/ Levi Hookano Levi Hookano Legal Specialist Cc: Casey Jarman Kenneth Goodeunw Valerie Victorine 6 See Garrity v. New Jersey, 87 S.Ct. 616 (1967). 3