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HomeMy WebLinkAbout2010-03-12 Police Commission MinutesHAWAII POLICE COMMISSION REGULAR SESSION MINUTES MARCH 12, 2010 HILO DEPARTMENT OF LIQUOR CONTROL INVOCATION Commissioner Ignacio gave an invocation. CALL TO ORDER Chair Whittemore called the meeting to order at 9:07 a.m. ROLL CALL Present: Tom Whittemore, Chair Richard J. Behenna, Commissioner Carol R. Ignacio, Commissioner Louis Kaoiwi, Commissioner Melvin S. Morimoto, Commissioner Anita Politano Steckel, Commissioner Michael B. Sumja, Commissioner Absent: Donn S. Mende, Vice Chair Also Present: Paul K. Ferreira, Deputy Chief Marshall Kanehailua, Assistant Chief Henry Tavares, Assistant Chief James O'Connor, Captain Nori Ishii, Accountant Lincoln S. Ashida, Corporation Counsel Josie Pelayo, Secretary Chair Whittemore recognized Commissioners Anita Politano Steckel, Louis Kaoiwi, and Melvin Morimoto for their five years of service on the commission. Their five -year term ends this month. APPROVAL OF AGENDA Commissioner Ignacio moved to approve the agenda. Commissioner Sumja seconded, and it carried unanimously. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS — None. APPROVAL OF MINUTES Commissioner Sumja moved to approve the regular session minutes of February 19, 2010. Commissioner Politano Steckel seconded. Discussion: Correction — Politano Steckel and Sumja were absent. The motion carried unanimously. Commissioner Kaoiwi moved to approve the executive session minutes of February 19, 2010. Commissioner Ignacio seconded. Discussion: Chair Whittemore stated that Complaint HPC 09 -56 is being continued from the previous meeting due to a lack of a Hawaii Police Commission Regular Session Minutes March 12, 2010 Page 2 quorum vote, and the minutes are more extensive than usual in order to assist the two commissioners who were not at the meeting. The motion carried unanimously. COMMUNICATIONS Commissioner Kaoiwi moved to accept the communications as listed. Commissioner Politano Steckel seconded, and it carried unanimously. COMMITTEE REPORTS • Budget and Finance (Kaoiwi /Mende): No report. • Office Management and Staffing (Whittemore): No report. • Rules and Policies (Behenna /Sumja): Will be discussed later in the meeting. • Contractual Services (vacant): No report. • Public Relations /Information ( Politano Steckel /Ignacio): Commissioner Ignacio suggested that the committee work with Chris Loos, the Police Department's Public Relations Specialist on an overall plan. Chair Whittemore suggested that they go through the Chief for this. CHIEF'S REPORT Including: • Crime: Assistant Chief Tavares summarized the written report. They did not see an increase in crime during the Tsunami alert. Burglaries are up in the Puna District, a task force has been initiated, and it has been successful. Traffic: Assistant Chief Tavares summarized the written report. Island -wide, 167 citations were issued for cell phone use from January to March. The way the law is written, if the engine is running, they are still in control of the vehicle, and can be cited. If they use the phone, they should pull over on a safe area and turn the engine off. Regarding fights at the Mooheau bus terminal, they are aware of individuals using the bus between districts to commit crimes, and that problem is being addressed. Personnel (Including, but not limited to work and training assignments, promotions, reallocations, severance from service, automobile allowances, and appointments.) Assistant Chief Kanehailua reported that the 74th recruit class started on March 1. At that time they were one over their vacancy. After the first day, two recruits resigned. They have not seen good retention in their cadet program. The intent of the cadet program is for individuals to transition into the recruit program. There was only one cadet who worked up to the third phase but later dropped out of recruit class. Hawaii Police Commission Regular Session Minutes March 12, 2010 Page 3 Assistant Chief Kanehailua reported that they have 13 civilian vacancies. An issue with filling the school crossing guard positions is that they only work two hours a day, one in the morning and one in the afternoon. They are continuously actively recruiting for these positions. Deputy Chief Ferreira stated that he would like to put the burden back on the Department of Education. Commissioner Ignacio wondered if they could do a letter to the schools and have them look internally to people who are already working at the school. • Finance: Assistant Chief Kanehailua stated that they are below their projections due to cuts in overtime. • Commendations: On behalf of Police Chief Kubojiri and the police department, Deputy Chief Ferreira thanked Commissioner Politano Steckel, Kaoiwi, and Morimoto for their years of service on the commission. He reported receiving seven commendations since the last meeting. He asked the commissioners for their help in publicizing police - public relations information in their districts such as in community newsletters and publications. • Other Departmental Activities: Deputy Chief Ferreira stated that the police department's budget hearing before the County Council will be on March 30 at 1:30. Regarding the recent cannabis raid that was in the newspaper, all search warrants were done by the DEA and other federal agencies. They only assisted and were not deputized. They did not violate the Lowest Enforcement ordinance. NEW BUSINESS Annual State of Hawaii Police Commissioners' Conference hosted by Hawaii County May 20 -21, 2010, at the Waikoloa Beach Marriott. Chair Whittemore encouraged all members to attend the conference. UNFINISHED BUSINESS • Review of Revised Rules and Regulations —February 17, 2010 Version - Correspondence 2010 -02, input from Police Chief Kubojiri. Corporation Counsel Ashida stated that procedurally, somebody should make a motion to adopt the rules for discussion purposes only. When they are in discussion, they can make a motion to amend, which is independent from the main motion to adopt this. Commissioner Ignacio moved to adopt the proposed rules and regulations for discussion. Commissioner Sumja seconded. Discussion followed. Corporation Counsel stated that it is up to the entire commission to vote and decide what actually goes for public hearing. If there are any changes to this, they will need five affirmative votes to change it, and that is a secondary motion. Hawaii Police Commission Regular Session Minutes March 12, 2010 Page 4 Commissioner Behenna went over the changes: Rule 2: Addition of a mission statement — no change. Rule 3: Renumbering starts here. Rule 4: Added verbiage to be in line with the County Charter - no change. Rule 5: Description to each committee was added. The Contractual Services Committee was deleted. A Police Discipline Committee was added. Rule 5 (a) (4) (A) Budget & Finance: Commissioner Behenna moved to change "Mayor" to "Managing Director." Commissioner Ignacio seconded, and it carried unanimously. Rule 5 (a) (4) (B): Office Management - no change. Rule 5 (a) (4) (C): Rules & Policies - no change. Rule 5 (a) (4) (D): Police Officer Discipline: Commissioner Behenna stated that the intent of this committee was to have an effective disciplinary system. The committee would review the discipline of officers. Chair Whittemore stated the Police Officer Discipline Committee would review the effectiveness of internal policies and procedures relating to discipline. However, Rule 4 (j) states that neither the commission nor its members shall interfere in any way with the administrative affairs of the department. He felt that discipline is the role of the Police Chief, not the commission. After further discussion, Commissioner Morimoto moved to strike this committee. Commissioner Politano Steckel seconded. The motion carried with ayes from Steckel, Morimoto, Kaoiwi, Ignacio, and Whittemore. Nays were called by Behenna and Sumja. Rule 5 (a) (4) (E): Public Relations: Chair Whittemore stated that the other commissions clearly define that their Chair is the body's spokesperson for all communications. He moved that they change the last sentence to "The committee will assist the commission Chair in all routine communications with other police commissions including conference and joint activities." Commissioner Ignacio seconded. The motion carried unanimously. In response to Ms. Pelayo's question whether this committee covers every single routine communication that comes through the office. Corporation Counsel stated that it would be delegated to her. Rule 9 (a) (1): Change to 90 days — no change. Hawaii Police Commission Regular Session Minutes March 12, 2010 Page 5 Rule 9: (a) (1) (C): Addition of acceptance of complaint for any reason — no change. Rule 9 (e) (3) and (4): Addition of referral to the Chief - no change. Rule 9 (f): Addition of Burden of Proof - no change. Commissioner Behenna moved to correct Rule 9 (a) (1) last sentence from sixty -day to ninety -day. Commissioner Ignacio seconded, and it carried unanimously. Rule 11: Subpoena Power: Commissioner Behenna stated that this is a new section and would give them more power to get documents and could be used for people. Corporation Counsel informed them that this could probably not be exercised against police officers. Corporation Counsel Ashida stated that the process of issuing a subpoena and using the service of a police officer or process server could have considerable expense. The commission would have to pay a person according to statute for attending a meeting. For police officers, they would have to pay a minimum of 3 hours and other union benefits. Another issue would be the possibility of a lawsuit because of Garrity Rights. Subpoenaing documents would also have costs. The commission cannot order a person to come to their meeting, but they could file a special court proceeding. That person could assess attorney fees. After some discussion, Chair Whittemore asked for Corporation Counsel's opinion. Corporation Counsel Ashida stated that he would be comfortable if it specifically exempted the police department, its officers, and its records because that totally avoids bargaining issues, overtime issues, and whether they could subpoena themselves. Technically, under the Charter, the commission is part of the police department. Commissioner Ignacio moved that they amend this rule using Corporation Counsel's suggestion to exempt police officers, the department, and their records. Commissioner Sumja seconded. The motion carried with a nay from Commissioner Morimoto. Rule 15: Deletion of the Office of the Chief of Police as a location for obtaining information — no change. Rule 21 (c) (3): A non - police investigator was added to avoid a conflict of interest — no change. Rule 22 (a) (1): The hearing officer is to be appointed by the commission — no change. Commissioner Kaoiwi stated, for the record, that subpoenas will cost them money. Hawaii Police Commission Regular Session Minutes March 12, 2010 Page 6 Rule 24: Addition of how they are to handle confidential information — no change. Rule 25: Addition that the rules shall be posted on the internet — no change. Corporation Counsel stated that the main motion on the floor was to adopt what they had just done as amended and to send it for public hearing. The motion carried unanimously. Ms. Pelayo stated that they could have the public hearing on the date of the next monthly meeting at 9:00 a.m. and then have the monthly meeting at 10:00 a.m. Lunch recess was called at 12:25 p.m. The meeting reconvened at 12:58 p.m. INVESTIGATION AND DELIBERATION OF COMPLAINTS STATEMENTS ON COMPLAINTS (OPEN TO THE PUBLIC) RESERVE OFFICER MICHAEL DECOITO (Complaint HPC 10 -04) answered questions from the commissioners. He stated that he couldn't say exactly what was said. He didn't mean to be disrespectful. There was no reason for him to laugh or make a joke. His job that morning was to make calls to people in the beat folder. As he was talking to Enos, he realized the order was for that day. Each folder could have twenty pages or more. There was no intent to disrespect him. Corporation Counsel Ashida stated that the issuing of paper is very problematic for our police department — bench warrants, penal summons, TROs, whatever. The paper has increased very much, but police personnel has not increased. It is not unusual for paper not being served. It is not the fault of our officers, it's just the volume. FRANK ENOS (Complaint HPC 10 -04) stated that Officer DeCoito told lies. He is not honest. In response to questions by commissioners on how the officer lied, Enos stated that he never received anything in the mail and that the police don't have to receive the TRO. His complaint is that the officer made fun, like it was a joke. COMPLAINT HPC 10 -09, Corporation Counsel Ashida stated that there are two issues that the commission needs to address, the timeliness of filing (complaint received 96 days from the date of the incident) and the position of the parties. According to the Charter, complaints against police officers or the police department must be made by members of the public. In other words, any complaints made by police officers are generally required to be handled within the department, not to the commission. RICHARD CARTER, JR. (Complaint HPC 10 -09) stated that he filed the complaint late because he was facing criminal charges. He was advised by his attorney that in order to get a fair trial, to hold off with the complaint until his criminal matter was completed. The case was dismissed. He requested an exemption to the 60 -day rule in his written complaint. Hawaii Police Commission Regular Session Minutes March 12, 2010 Page 7 Commissioner Morimoto stated that per their rules, they investigate cases from the general public against police officers, not a police officer against another police officer. So, it is not within their jurisdiction. Commissioner Behenna moved to accept the explanation for filing beyond 60 days. Commissioner Sumja seconded, and it carried unanimously. Corporation Counsel Ashida stated that the County Charter Section 7 -2.2 (c) (4) says that the commission shall receive, consider, and investigate charges brought by the public against the conduct of the department or of any of its members. Section 7 -2.5 of the Charter reads, "The dismissal, suspension, demotion, or grievance of any police officer or employee of the police department shall be under procedures set forth by civil service laws and regulations." The Sunshine Law requires them to allow anyone to testify on items on the agenda. In this case the commission cannot take official action or refer the complaint to I.A. Carter stated that at the time of this incident, he was an employee of the police department. He made his statement in his written complaint. He came here in case the commissioners had any further questions. Commissioner Kaowi asked Carter why he only let his window down five inches. Carter stated that it was for his safety, and he remained in his vehicle. He turned off the motor, and the officer reached in to unlock the car to get him out of his vehicle. Commissioner Kaoiwi told Carter that being a police officer, he must have known that when the officer smelled alcohol, a sobriety test would be given. He asked why he refused to walk the line. Carter contended that he did not sway, and that the other officer present backed up his findings at the Administrative Driver's License Hearing. CAPTAIN SAMUEL JELSMA (Complaint HPC 10 -09) stated that he wanted to respond to the complaint because his reputation is on the line. Officer Carter made statements that were sworn to and notarized. He is saying that under perjury, all statements that he is making is true. During the incident, he followed the vehicle going down heading towards Burger King. The vehicle was weaving in his lane, driving real slowly, indications that somebody was driving under the influence. He never ran the license plate number, so he didn't know who the driver was. It was not a police subsidized vehicle, so there was no indication to him at that time that it was a police officer. The vehicle failed to execute a turn signal right by Burger King when he turned onto Kilauea Avenue. At that point he did a traffic stop fronting Ace Hardware. He called off from the vehicle, walked up, made contact with a local male. He didn't recognize him at that point. The last time he saw Richard Carter was probably over ten years ago. He put on some weight since then. He told him, Sir, I need to see your driver's license, insurance, and registration. He responded by telling him, "Sam, it's me." Then he recognized that it was Dickie Carter. He smelled alcohol coming from him. He saw he had glassy, bloodshot eyes, an indication of somebody driving under the influence. He was already committed to that, policeman or no policeman, possible DUI. He was going to treat this guy just like anybody else. He told him to turn off his car and exit his vehicle. He turned Hawaii Police Commission Regular Session Minutes March 12, 2010 Page 8 off his car but refused to get out. He told him to roll down his window, and that he needed to get out of the car. Carter cracked it about five inches and wouldn't get out. He was just ignoring him. He gave him the chance to voluntarily exit the vehicle. He chose not to. He reached into his car and unlocked the door from the inside. While he was doing that, Carter was trying to relock the door. He did not stand on the running board of the car. It was a two -wheel drive truck. Jelsma further stated that two other officers came and backed him on the stop. Policemen don't like to arrest policemen, so he didn't get them involved. They stood at the back of the vehicle. They did not have a lot of contact with Carter while he was talking to him. The officer was standing some distance away from him, and could have been honest when he said he didn't smell alcohol. He arrested Carter and brought him back to the station. He smelled alcohol on him, and there were signs that he was intoxicated. Jelsma further stated the he has gotten over 500 DUI arrests himself. He has been responsible for over 1,000 DUI arrests, especially in the Traffic Enforcement Unit where he's on the line, screening vehicles that smell alcohol. He knows a DUI when he sees one, and there was no doubt in his mind that Richard Carter was drunk that night. It wasn't a borderline case. Jelsma pointed out that Carter did a cc to Mayor Billy Kenoi and Councilman Dennis Onishi when it should be heard by the Police Commission. Jelsma further stated that at the bottom of the complaint Carter said he received information that he stopped another police officer in Kona and although the officer appeared intoxicated, he let that officer go. That's an out right lie. He has been out on the road twice in Kona, one on New Year's Eve. He doesn't know who Benjamin Galluppi is. He knows he is a police officer. He was stationed in Kona and transferred to the Ka'u District before he got there. He knows that Galluppi was recognized for the most DU Is in the district. If the guy was drunk, policeman or not, he would have arrested him. He was out there two nights. His purpose when running the traffic was to look for DUIs. If he runs across somebody who was DUI, he obviously would have run him through the test, and he would be arrested. So, that's an outright lie. Carter mentioned that Sergeant Zachary Houchin witnessed this, so he asked Houchin if recalled an incident where he pulled over Officer Galluppi on a traffic stop out there, and he was intoxicated. He goes, "No." That would have stuck in his mind that he stopped a policeman. So, what he's saying is Richard Carter is taking an outright lie and putting it into the complaint as truth. He has an issue with that because police officers should be truthful. Jelsma further stated that the criminal case was dropped. In an e-mail, which he submitted to the commission, Prosecutor Charlene Iboshi told him the stop was good, but they didn't pursue the case because Carter refused the field test and breath test. He is a policeman and knows what the consequences are. A policeman who gets stopped for DUI who is not DUI, knows that he risks losing his license by refusing the Hawaii Police Commission Regular Session Minutes March 12, 2010 Page 9 test. If he still refuses the test, that would lead him to believe that that person was intoxicated. Unfortunately, he had a good lawyer, got off on the ADL hearing and the DUI. Chair Whittemore stated that they would not pass judgment here. STEVEN BARNES (Complaint HPC 10 -06) stated that the officers were bullying and overaggressive. They were over reacting to this situation and caused him to overreact. He had to say what he had to say. He felt trapped in his car because he was in pain. That's why he was laying down. He asked the officer if he could get out of his car. He said no. The officer was threatening to Taser him. All he wanted to do was step out of his car. The officer insisted he was sleeping in his car. He was listening to the radio and watching him come by. He started screaming. It was far out of line. His complaint is about the officer's attitude. Ms. Pelayo stated that the officers requested a deferral to the next meeting in Kona in order for them to attend the meeting. EXECUTIVE SESSION (CLOSED TO THE PUBLIC) Commissioner Kaoiwi moved to meet in executive session to consider discipline and charges against officers or employees of the Hawai'i County Police Department where consideration of matters affecting privacy will be involved and to consult with Corporation Counsel on questions and issues pertaining to the commission's powers, duties, privileges, immunities, and liabilities pursuant to HRS 92 -5 (2) (4) and Hawai'i County Charter Section 13 -20 (b). Commissioner Ignacio seconded, and the motion carried unanimously. Executive session convened at 2:09 p.m. ACTION ON EXECUTIVE SESSION MATTERS HPC 10 -01: Complainant alleged that he was arrested for cannabis even though he pointed out the lowest law enforcement of cannabis ordinance. He also alleged that the officer refused to give him a ride back home. Commissioner Behenna moved that there was insufficient evidence to prove the complainant's allegations. Commissioner Politano Steckel seconded, and it carried unanimously. HPC 10 -02: Complainant alleged that an officer yelled and used profanity towards her. Commissioner Behenna moved to defer this to the next meeting in Hilo in order to give the complainant and the officer another opportunity to attend the meeting. Commissioner Ignacio seconded, and it carried unanimously. HPC 10 -04: Complainant alleged that an officer called him to inform him of a TRO hearing that morning in Kona and laughed about the situation. Commissioner Ignacio moved that there was insufficient evidence to prove the complainant's allegations. Commissioner Sumja seconded, and it carried unanimously. HPC 10 -06: Complainant alleged that officers yelled at him and harassed him by issuing him a citation for parking outside of a parking stall. Commissioner Sumja moved Hawaii Police Commission Regular Session Minutes March 12, 2010 Page 10 to defer this to the next meeting in Kona to give the officers an opportunity to attend the meeting. Commissioner Ignacio seconded, and it carried unanimously. HPC 10 -07: Complainant alleged that an officer used an electronic control device on him, although he was attempting to cooperate and was not resisting. Commissioner Ignacio moved that there was sufficient evidence to prove the complainant's allegations and to refer the complaint to the Chief for an Internal Affairs investigation. Commissioner Behenna seconded the motion, and it carried unanimously. HPC 10 -08: Complainant alleged assaults, threats, and fabrication of reports by unidentified officers. Commissioner Morimoto moved to decline investigation of the complaint because it is speculative or purely hypothetical and not based on facts. Commissioner Ignacio seconded, and it carried unanimously. HPC 10 -09: Complainant alleged that the officer who arrested him for DUI did not have probable cause to suspect intoxication and that the officer illegally reached into his vehicle to open the door. Commissioner Ignacio moved to file this complaint because this is not within the commission's jurisdiction. Commissioner Morimoto seconded, and it carried unanimously. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS — None. ANNOUNCEMENTS • Chair Whittemore announced that the Police Commission will have a public hearing on the revised rules and regulations on April 23, 2010, at 9:00 a.m. at the Old Mayor's Office Conference Room, 75 -5706 Kuakini Highway, Suite 103, Kailua- Kona. The monthly meeting will follow at 10:00 a.m. • Collection of files and documents. — Done. ADJOURNMENT The meeting was adjourned at 3:45 p.m. SUBMITTED: JOSIE PELAYO, SECRETARY APPROVED: %r Att wowe TOM WHITTEMORE, CHAIR