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HomeMy WebLinkAbout2024-08-08 Police Commission Regular Minutes HAWAI`I POLICE COMMISSION REGULAR SESSION MINUTES SPECIAL MEETING, AUGUST 8, 2024 COUNTY BUILDING, COUNCIL CHAMBERS, SUITE 1401 25 AUPUNI ST., HILO, HI CALL TO ORDER AND ROLL CALL Chair Robinson called the meeting to order at 9.05 a.m. Present: Rick Robinson, Chair John Bertsch, Vice Chair Arthur Buckman, Commissioner Travis Ing, Commissioner Eileen Lacerte, Commissioner Rod Quartararo, Commissioner Jacob Tavares, Commissioner Absent: Anthony Sur, Commissioner A quorum was present. Also present: Benjamin Moszkowicz, Police Chief Reed Mahuna, Deputy Chief Andrew Burian, Assistant Chief Tuck Loy Aurello, Captain Sinclair Salas-Ferguson, Deputy Corporation Counsel Charisse Correa, Secretary STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS (None) REVIEW OF THE COUNTY OF HAWAI`I POLICE COMMISSION RULES OF PRACTICE AND PROCEDURE • Mission Statement: Commissioner Buckman suggested incorporating a reference to transparency in the mission statement, emphasizing mutual respect and transparency between the commission and the public. • Definitions: The commission discussed clarifying the term "regular officers," which led to a conversation about the roles of reserve officers. It was recommended to use "sworn officer" in place of "regular officer." • Powers and Duties of the Commission: Chair Robinson asked about the commission's authority to hire investigative personnel. Vice Chair Bertsch confirmed they have the authority to hire a secretary and consultant or outside investigator. Chair Robinson noted the lack of funds. Vice Chair Bertsch mentioned the commission oversees the department's budget, and the department is required to fund the Police Commission. DCC Salas-Ferguson clarified that the Charter mandates sufficient funds be allocated in the Police Department's budget for the Police Commission. Hawai'i Police Commission Regular Session Minutes Special Meeting August 8, 2024 Page 2 Commissioner Buckman proposed adding more details to paragraph B about the annual budget review. Commissioner Quartararo inquired about advising the chief on community relations, and it was suggested to include this in the chief's report. Vice Chair Bertsch noted the chief is developing a community calendar and stressed the importance of commissioners being active in the community to enhance transparency. • Organization: There was a discussion about the election of the chair, formation of committees, and Permitted Interaction Groups (PIG). • Commission Meetings: Commissioner Tavares proposed revisiting the idea of remote attendance. Commissioner Quartararo raised concerns about the lack of orientation for new board members. Commissioner Buckman mentioned that in the past, new commissioners received an orientation from the department, which is no longer the case. • Policy: Discussion focused on department policies and whether the term "vote" should be used instead of"pass" when referring to the passing of policies. • Charges Brought by the Public: The commission discussed complaint classifications— whether they are insufficient or sufficient and referred to the chief. Some complaints don't fit into these categories, creating challenges. Commissioner Quartararo noted that some complaints are hard to read and asked if the secretary could type them. He also inquired about requiring the public to submit typed complaints. DCC Salas-Ferguson advised that such a requirement would limit access, as handwritten complaints are acceptable, and restricting them could lead to negative feedback. Further discussion touched on the burden of proof and communication issues. Chair Robinson noted the commission doesn't always receive updates on complaints referred for investigation. DCC Salas-Ferguson explained that the Charter requires the police chief to provide periodic reports to the commission on the department's activities and outcomes of investigations. • Declaratory of Rulings: The discussion included the public's ability to request amendments to commission rules, with reference to procedures outlined in Chapter 91. DCC Salas-Ferguson mentioned that he would review and provide specific details on the timeframe and process. • Subpoena Power: Vice Chair Bertsch noted that the commission has the power to subpoena individuals outside of the department but not department employees. • Appointment of the Chief of Police: The discussion covered the process for hiring the chief and the appointment of the deputy by the chief, which is confirmed by the Hawai'i Police Commission Regular Session Minutes Special Meeting August 8, 2024 Page 3 commission. DCC Salas-Ferguson provided guidance on the procedures in cases of vacancies. • Dismissal of the Chief and Appointment of Temporary Chief of Police: The procedure for removing the chief was discussed, along with the rights of the deputy and other staff to return to their previous positions. • Methods by which the Public can Obtain Information: FOIA (Freedom of Information Act) requests were discussed as a method for the public to obtain information, subject to certain exceptions. • Privacy: The discussion covered privacy and the management of protected information, emphasizing the importance of confidentiality. Commissioners were reminded not to disclose any information to the media or external parties. For any questions, they should consult with the chair, who can review the issue with counsel. • Counsel for Police Officers: The discussion addressed legal representation for officers. State law mandates that the county provide and pay for an attorney in criminal cases where an officer is prosecuted or sued for actions performed in the line of duty. For civil cases, representation is managed by corporation counsel or county attorney. The Commission will assess whether the officer's actions were within the scope of duty, consulting with the county attorney or corporation counsel, who may offer recommendations at their discretion. It was noted that these situations can be complex, and decisions should be made with careful consideration, as they impact the department, the county, and the individual officers. • Contested Case Procedure: This rule spans about 5 or 6 pages and details the management and administration of a contested case hearing. The commission would hire or appoint a hearing officer for such cases. The policies and procedures for these hearings are codified elsewhere and cannot be altered by the commission. Post- hearing procedures outline how the contested case officer would manage and conduct the proceedings. Recess was called at 10.53 a.m., the meeting reconvened at 11.09 a.m. EXECUTIVE SESSION (CLOSED TO THE PUBLIC) Vice Chair Bertsch motioned to meet in executive session to consult with the commission's attorney on questions and issues pertaining to the commission's powers, duties, privileges, immunities, and liabilities related to the amendment of the Commission's Rules of Practice and Procedure pursuant to HRS 92-5 (a)(4). Seconded by Commissioner Lacerte, it carried unanimously. Hawaii Police Commission Regular Session Minutes Special Meeting August 8, 2024 Page 4 In discussing the executive session, Chair Robinson requested that the chief and staff remain in the room. DCC Salas-Ferguson cautioned that this would break attorney-client privilege and negate the purpose of the executive session, which is protected under §92-5 for privileged conversations with an attorney. He noted that while past practice allowed certain individuals, such as complainants or police officers, to join executive sessions, this may compromise privilege and is not advisable. Chair Robinson questioned if they should proceed with the executive session understanding that privilege would be broken or return to regular session. Vice Chair Bertsch emphasized the need for open dialogue with the police department and noted that policy decisions would be made in open session, not during executive session. DCC Salas-Ferguson suggested holding a closed executive session without the chief and staff to maintain privilege, then resuming open session to discuss matters with them. Chair Robinson proposed the chief and staff take a break for lunch and he would contact them when open session reconvenes. Vice Chair Bertsch emphasized that while reviewing their rules, they should avoid rigid constraints, as legal interpretations can vary significantly. This is the first time he has encountered this particular interpretation. (Chief and staff exited) Executive session convened at 11.23 a.m. Motion to reconvene open session made by Commissioner Tavares, seconded by Commissioner Lacerte, with no discussion, and it carried unanimously. Open session reconvened at 12.43 p.m. ACTION ON EXECUTIVE SESSION MATTERS Chair Robinson announced that during the executive session, the commission discussed their rules and regulations with corporation counsel, focusing on what is authorized under the Hawaii County Charter. REVIEW OF THE COUNTY OF HAWAI`I POLICE COMMISSION RULES OF PRACTICE AND PROCEDURE (continued) Vice Chair Bertsch reviewed Police Commission Rule 5, Section 7, which outlines the commission's role in establishing policies and serving as a liaison between the public, police, and county administration. He also explained Police Department General Order 200, stating that the police chief interprets and enforces commission policies, supervises officers, and manages the police force according to these rules. He clarified that while the commission does not directly supervise officers, it monitors them and makes recommendations to the chief. Hawai'i Police Commission Regular Session Minutes Special Meeting August 8, 2024 Page 5 Vice Chair Bertsch read Police Commission Rule 2(g), which mandates reviewing the department's operations to recommend improvements to the chief and managing director. He noted that this is reinforced by the Charter. He added that the commission deals with external complaints, but internal complaints, as well as grievances, appeals, ARB, and promotions, are within their purview. When complaints are referred to the chief for investigation, the chief needs to report back to the commission on the findings. There was further discussion about the annual chief evaluation required by the commission, noting that while it is mandated, there are no specific rules governing the process—it remains a practice rather than a formal rule. Additionally, there was discussion about the need for the commission to be briefed on the department's internal and external workings, including complaints, grievances, appeals, and promotions. Vice Chair Bertsch reported that from around 2001 to 2010 when the commission used private investigators hired by the county. These investigators handled sustained complaints by interviewing witnesses and producing reports, with each case costing between $3,000 and $5,000. However, police officers were not required to speak with these investigators, who lacked jurisdiction over the department. Consequently, investigations often resulted in merely restating the complaints and took nearly 11 months to complete, which was problematic given the 12-month window for filing complaints. Due to delays and the resulting inefficacy of the commission, a policy change was implemented allowing the Office of Professional Standards (OPS) to attend commission meetings, conduct investigations, and report findings to the commission. The commission retains the option to hire an investigator, covered by the Police Department's budget. There was a discussion about handling public testimony on items not listed on the agenda. DCC Salas-Ferguson suggested adding an agenda item titled "Agenda Items for the Next Meeting" to address this. Additionally, there was a discussion on whether the commission should consider complaints from department employees. Vice Chair Bertsch proposed establishing a rule allowing the commission to self-sanction, noting that while commissioners are appointed, there is currently no process for their removal. DCC Salas-Ferguson clarified that there is a removal mechanism outlined in the Charter, which states that members are appointed by the mayor, confirmed by the council, and can be removed based on the mayor's recommendation and council's approval. The commission discussed the best way to track all commissioners' suggestions for rule amendments. It was suggested that the commission form a PIG at the next meeting. This group could draft the rule amendments, submit them to the commission for review, and then the commission could finalize the proposed amendments and proceed through the Chapter 91 process. Hawai'i Police Commission Regular Session Minutes Special Meeting August 8, 2024 Page 6 Deputy Chief Mahuna returned to the meeting, and Chair Robinson brought up the commission's discussion about potentially hearing not only public complaints but also internal complaints from department employees. He asked for the deputy's thoughts on this. Deputy Chief Mahuna responded that he wasn't sure how it would work and asked for an example. Chair Robinson mentioned a recent complaint from an officer that the commission did not hear. DCC Salas-Ferguson clarified that the rules specifically state the commission handles complaints from the public, and while each case is reviewed individually, the commission does not have the authority to investigate internal complaints. Vice Chair Bertsch noted that this was the first time, during his tenure, that a police officer filed a complaint with the commission. At the time, the opinion was that the commission couldn't address the complaint. Looking at the rules now, they are considering how to offer an open-door policy for everyone, including officers. While officers should go through internal channels for complaints, if they feel frustrated or fear retribution, they would still have a voice with the commission. The commission wouldn't investigate the complaint but would bring it to the chief's attention for further action, with the chief reporting back to the commission. (Chief Moszkowicz returned to the meeting) Deputy Chief Mahuna asked how the commission would handle a complaint of a promotional nature if an officer brought it to them. Vice Chair Bertsch responded that, under the Charter and Rules, the commission is tasked with reviewing, monitoring, and working with the chief on promotions. If such a concern were brought before the commission, it would fall within their jurisdiction, and they would discuss it with the chief, who could then either justify the promotion or investigate the issue further. DCC Salas-Ferguson pointed out that Vice Chair Bertsch's interpretation of the Rules and the commission's authority is his own opinion. He explained that he hadn't had the chance to fully review the matter and would need a specific fact pattern to provide a legal opinion, noting that there is a lot of grey area. Vice Chair Bertsch referenced the County Charter 7- 2.2(b)(2) under the Police Commission heading. DCC Salas-Ferguson acknowledged that it states, "The Police Department shall be operated in accordance with the following," outlining what the department is required to do. Vice Chair Bertsch then asserted that the Police Commission is part of the Police Department. DCC Salas-Ferguson clarified that while the commission is part of the department, its role is primarily to hire and fire the police chief, and that this could be part of the criteria for evaluating the chief. Vice Chair Bertsch added that to effectively evaluate the chief, the commission must be informed of these matters. DCC Salas-Ferguson reiterated that the Police Department has specific duties, and the Police Commission holds the chief accountable to those standards. He emphasized that the commission's powers and duties are clearly outlined in subsection c, 1 through 9. Hawai'i Police Commission Regular Session Minutes Special Meeting August 8, 2024 Page 7 Vice Chair Bertsch expressed that officers should have the ability to bring concerns to the commission. Without that information, it's difficult for the commission to advise the chief effectively or provide a fair evaluation. DCC Salas-Ferguson suggested waiting until a specific situation arises before analyzing it, as it's challenging to address hypotheticals without specific details. Vice Chair Bertsch recalled a previous instance where the commission received a complaint from an officer but chose not to accept it, a decision he feels may have been shortsighted. He believes the officer should have been allowed to present their case, and the commission could then determine if it fell within their jurisdiction or should be addressed with the chief. Chair Robinson noted that the officer had already filed a complaint with OPS. There was a discussion about providing the commission with orientation and training. Previously, training focused mainly on the Sunshine Law, but the commission expressed a need for additional training to better serve the department. Chief Moszkowicz acknowledged their request and explained that much of the desired information overlaps with what they teach recruits. He suggested that it wouldn't be difficult to arrange a day during recruit training to include the commission. Since recruit classes begin every four months with a new curriculum, this could become an ongoing process for new commissioners. He agreed that it would enhance the commission's ability to perform its duties. Commissioner Ing expressed his support, noting that when he suggested this last year, many commissioners were opposed, and he was glad to see the commission now moving forward with the idea. Chief Moszkowicz added that the training could be offered voluntarily, leaving the decision to participate up to the commission. Whether it becomes mandatory would depend on the appointing authority. Chair Robinson asked for the chief's input regarding complaints referred to him for further action, whether related to customer service concerns or further investigation. He noted that the commission doesn't always know what happens after referrals. While they receive the annual report to the legislature, they don't get updates on other referred matters. When OPS reports back, they only see that it was referred to the chief but not the final outcome. Chief Moszkowicz explained that once a case is referred, they conduct an investigation, which involves Garrity or compelled statement, which typically leads to an Administrative Review Board (ARB), a finding, and a recommendation. That recommendation goes to him, and he makes the final decision on whether the charge is sustained, exonerated, or unfounded. If sustained, he decides on the appropriate discipline or non-disciplinary action. He believes the commission receives everything up to the decision on discipline or non- disciplinary measures, similar to what is shared with complainants. Chief Moszkowicz Hawai'i Police Commission Regular Session Minutes Special Meeting August 8, 2024 Page 8 stated he sends the commission a report indicating whether the complaint was sustained or not. Commissioners Lacerte and Bertsch mentioned they haven't been receiving those updates. Chief Moszkowicz responded that he's been signing the letters, but Commissioner Lacerte reiterated that they haven't been getting them and are unaware of what happens after a case is referred. Vice Chair Bertsch emphasized that for the commission to fulfill its responsibilities and be well-informed, it's essential to hear from the chief not just about the final outcomes, but also how those outcomes were reached. This knowledge would help the commission handle future complaints more effectively. Chief Moszkowicz explained that when they charge an employee with an administrative violation, they are very specific about the facts. However, when reviewing the commission's rules, he notices a broad approach. The commission's focus appears to be on whether there is misconduct, such as malfeasance, misfeasance, or nonfeasance, which is much less specific. He highlighted that they are dealing with two different standards and systems. Another key difference is the burden of proof. For the commission to determine misconduct, a preponderance of evidence is required, after which the case is referred to OPS, triggering Garrity rights and a full investigation that may lead to disciplinary action. In contrast, they require clear and convincing evidence as opposed to a preponderance. A higher standard of clear and convincing evidence is necessary to impose discipline. Chief Moszkowicz cautioned against using the end result of the process to guide the intake process and raised concerns about the privacy rights of employees. The terms of their contract restrict what can be revealed regarding discipline—such as termination or suspension—until a certain time after the last step of administrative grievance procedures. He said he would need to consult with counsel on what can be shared, ensuring that he does not unintentionally violate any rules or agreements by disclosing information to the commission. Commissioner Lacerte asked hypothetically what happens if an officer provides false information during a complaint investigation, as evidenced by reports and BWC footage. She noted that sometimes they never hear about the outcome. Chief Moszkowicz responded that if someone lies to the commission, it could potentially be considered a crime, regardless of whether they are sworn in or not, due to the existence of laws against falsifying unsworn statements. In such cases, both the original conduct and the false testimony would be investigated if referred as such. Once the investigation, including a compelled statement, witness interviews, and ARB review, is completed, the outcomes should be shared with the commission. He mentioned that he signs letters indicating these outcomes. Hawai'i Police Commission Regular Session Minutes Special Meeting August 8, 2024 Page 9 Vice Chair Bertsch then asked Chief Moszkowicz to explain Garrity. The chief described Garrity as a Supreme Court case allowing law enforcement agencies to compel employees to answer questions under threat of termination during administrative investigations, they don't have the right to remain silent. This is different from criminal investigations, where employees are treated the same as every other citizen. They're read their rights and if they want to make a statement they can and if they don't want to, they have a 5t" Amendment right and it can't be held against them. In administrative investigations, employees are required to answer questions, and refusal to do so can result in termination. Chair Robinson revisited the original question about providing updates on cases referred to them. Chief Moszkowicz confirmed that updates could be provided and that copies of the letters sent to complainants could also be shared with the commission, indicating whether the complaints were sustained or not. Ms. Correa mentioned the Monthly Status Report, which includes information on whether referred complaints were sustained or not. This report is provided to the commission each month. DCC Salas-Ferguson added that the report includes information such as the date received, the date occurred, OPS#, external HPD/HPC, employee, complainant, allegation, status/final disposition. It shows the status or final disposition of the investigation. Commissioner Lacerte inquired if these reports only indicate whether cases were closed or not. DCC Salas-Ferguson explained that the reports vary; they might show outcomes such as "unfounded" or "sustained," reflecting the results of the investigations. Some reports indicate whether the allegations were sustained or not. According to the Charter, the chief is required to report back on actions taken regarding cases investigated by the Police Commission. That's been interpreted in the past to provide the ultimate disposition to show if it was sustained or not. Chair Robinson stated there would have to be some consequence associated with that, correct? DCC Salas-Ferguson stated currently, they're not saying what the discipline was and he's sure that was addressed in the past and there's probably a complex analysis about whether or not to release that information. Commissioner Ing stated he wouldn't want that. DCC Salas-Ferguson stated there are times when the commission and department disagree on the interpretation of a provision, that's where declaratory rulings come into play, the circuit court would find what that actually means. It's better to just have a working understanding of what that means. The working understanding right now is that the Police Department provides whether or not it was sustained or not. Chief Moszkowicz explained that, under HRS §92F-14, certain disciplinary outcomes, such as terminations, suspensions, or counseling, are not publicly disclosed until 90 days after the completion of the highest grievance step. He would need to consult with counsel to determine if the commission's authority could override these public disclosure restrictions. Hawai'i Police Commission Regular Session Minutes Special Meeting August 8, 2024 Page 10 Commissioner Lacerte expressed that she is more interested in knowing whether discipline was imposed rather than the specifics of suspensions or terminations. Commissioner Tavares noted that he doesn't believe they are receiving information about whether complaints were sustained. Chief Moszkowicz responded that Ms. Correa mentioned this information is provided to them. Commissioner Lacerte reiterated that her primary concern is to ensure accountability and to know if any actions were taken. Vice Chair Bertsch noted that the commission is seeking more detailed information. Historically, predecessors were very forthcoming and shared ultimate details or at least answered questions, while others were less forthcoming. He emphasized that it is up to the chief to provide the commission with the information needed to make well-informed decisions, within appropriate bounds. Chief Moszkowicz indicated that he is unsure about what can be shared but is willing to provide information if he is authorized to do so. Chair Robinson informed the chief that at their next meeting, they will form a working group to move forward with revisions and will likely seek his input throughout the process. He thanked the chief for his contributions. Deputy Corporation Counsel Cody Frenz addressed the commission to clarify a few points. She explained that OPS attends commission meetings and provides updates on complaints, including details in the final reports. However, as the chief noted, personnel files are protected by law, and the commission is not entitled to access them at this time. According to the Charter and current rules, the commission cannot access personnel file information until the grievance processes are completed, which includes 90 days after the highest level of grievance. She advised the chief to withhold such information to avoid privacy violations, as the Charter and rules do not mandate its disclosure. The commission will receive updates on whether complaints are founded or unfounded at each hearing Chair Robinson clarified that the information can be provided once it's legally permissible. DCC Frenz agreed, stating that it's just a matter of timing. Vice Chair Bertsch acknowledged this, noting that it's reasonable since there are cases where administrative remedies have been exhausted, allowing the commission to review and learn from them. These cases still serve as valuable educational tools, helping the commission gain a better understanding and avoid feeling uninformed, even if the case is from years ago. Chief Moszkowicz added that some cases can remain in arbitration for several years. Vice Chair Bertsch asked Chief Moszkowicz if he could share information on pending grievances with the commission. Vice Chair Bertsch mentioned that SHOPO had approached him, questioning why the commission doesn't attend the monthly or quarterly grievance meetings with the chief. Chief Moszkowicz clarified that such meetings don't exist in that form. However, regarding the process, he explained that they meet with SHOPO quarterly and, despite offering to establish a formal process to address grievances predating his tenure, this has yet to materialize. Hawaii Police Commission Regular Session Minutes Special Meeting August 8, 2024 Page 11 Chief Moszkowicz further explained that they sit with SHOPO's president, vice president, and business agents during these meetings. Originally held monthly, the meetings are now quarterly. The purpose is to address issues before they escalate to formal grievances or lawsuits, often resolving matters informally. These discussions include policy matters and provide an opportunity for concerns to be raised and dealt with through the chain of command. He noted that this process has been effective so far. Chair Robinson asked if anyone had any further questions for Chief Moszkowicz, but there were none. ADJOURNMENT The meeting adjourned at 2.17 p.m. SUBMITTED BY: CHARISSE CORREA, SECRETARY APPROVED BY: RICK ROBINSON, CHAIR