Loading...
HomeMy WebLinkAbout2008-04-07_Bill_270 of+�Y ..H��y� Lincoln S.T. Ashida Harry Kim �,I%.: Corporation Counsel Mayor :+ Gerald Takase Assistant Corporation OF'N�'� Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 + Hilo, Hawaii 96720-4262 . (808)961-8251 . Fax(808)961-8622 PRIVILEGED AND CONFIDENTIAL COMMUNICATION ATTORNEY-CLIENT COMMUNICATION NOT A PUBLIC RECORD April 7, 2008 Sent via email; no hard copy will follow Honorable Brenda Ford Chair, Hawaii County Council Committee on Public Works and Intergovernmental Relations County of Hawaii 333 Kilauea Ave., 2"d Floor Hilo, HI 96720 Dear Chairwoman Ford and Commitee Members: RE: Bill 270 An Ordinance to initiate a Charter amendment to Article III, Article VII, and Article XIII of the Hawaii County Charter (2000), relating to the establishment of an Office of Police Oversight and Complaints The Office of the Corporation Counsel has been asked by the Hawaii County Council to review the most recent draft of the above bill, and to offer comments and answers to questions raised at the first reading of this bill before the Hawaii County Council Committee on Public Works and Intergovernmental Realations on March 24, 2008. A copy of the video and audio of the proceedings held on March 24, 2008, was reviewed. Background Council Member Bob Jacobson worked with former Police Commissioner Paul De Silva to formulate an earlier version of the draft legislation. In 2006, this legislation was introduced to a previous Council, and the effort failed. Hawaii County is an Equal Opportunity Employer and Provider Honorable Brenda Ford April 7, 2008 Page 2 In late 2007, Mr. De Silva met with me concerning the present legislative effort. I informed Mr. De Silva (and subsequently informed Mr. Jacobson's office) that I believed improvements to the current system of police officer misconduct investigations was warranted. Although the creation of a new office or position within the County may not be the preference of our office, it was nonetheless important for this issue and proposed bill to be deliberated by the Council, as the promotion of transparency in our police department would benefit all involved. I informed Mr. De Silva it was not the desire of the Corporation Counsel to either lobby for or against this legislation. This is because under our laws, the Corporation Counsel represents not only the Council, but the Police Department and Police Commission as well. All parties would be best served if the Corporation Counsel simply provided legal counsel, as we are mandated to do. If the office took an active role in advocating for the passage or defeat of legislation beyond legal criteria, our Rules of Professional Conduct would necessarily require the retention of special counsel to avoid any conflict of interest. As expressed to Mr. De Silva and our Police Department and Police Commission clients, there is always room for improvement in any system of police misconduct investigations. Further, if it is the collective will of the Council that there is such a demonstrated need for a new office of oversight for our police department such that the voters should be called upon to decide, the Corporation Counsel would not advocate against such a collective effort by the Council. To this end, Councilman Jacobson is commended by our office for his effort in bringing this issue before the Council in a public venue, so that the Council may make an informed decision on the need for any Charter amendment, and the Police Department may be made aware of any specific problems either experienced or perceived by the public with respect to the misconduct of its police officers. Bill 209 Bill 209 seeks to amend the Hawaii County Charter (2000) (hereinafter "Charter") by creating an Office of Police Oversight and Complaints. In the preamble to the most recent draft of the bill, this amendment is necessitated by the "desire to create a civilian oversight mechanism for Hawai'i County" due to "years of frustration expressed by numerous elected officials, police officers, and residents that have had experiences with police that were less than satisfactory." At the first reading of this bill on March 24, 2008, there were five persons who offered public testimony. Tom Whittemore, a police commissioner from Council District 8 (Kailua- Kona), offered testimony as both a police commissioner (Mr. Whittemore serves as the Vice Chair of the Police Commission) and private citizen. Mr. Whittemore Honorable Brenda Ford April 7, 2008 Page 3 spoke against the bill. Mr. Whittemore maintained that the present system of civilian oversight, although imperfect and a work in progress, achieves a satisfactory level of governance over incidences of misconduct by police officers. John Stewart, the local chapter chair of the State of Hawai'i Organization of Police Officers union (SHOPO), testified against the bill. SHOPO was most concerned with the maintenance of confidentiality of records with respect to police officer misconduct cases. Gabriel Malani, the local business agent for SHOPO, testified against the bill. Mr. Malani (a retired police officer) stated there was not a need for this newly proposed position. Louis Kaoiwi, a police commissioner from Council District 4 (Hilo), offered testimony as both a police commissioner and private citizen. Mr. Kaoiwi spoke against the bill. Mr. Kaoiwi expressed concern the bill created an additional layer of unneeded bureaucracy, and that the new proposed position would essentially create a "Super-Chief' within the County, and he doubted the wisdom of such action. Tim Rees, a private citizen, offered testimony in support of the bill. Mr. Rees said he has been following and studying the Police Commission for approximately 1 and '/2 years. Mr. Rees said three years ago, he provided the Commission a 30-page document concerning police issues that was ignored by the Commission. Mr. Rees summarized that there are two principal problems with the current Police Commission system; (1) the questioning of witnesses and offering of testimony is repugnant to Hawaii Revised Statutes ("HRS") Chapter 91 provisions regarding contested case hearings, and (2) the burden of proof utilized by the Commission is not appropriate, to wit: "Insufficient evidence to support/sustain a criminal complaint." Prior to addressing the questions and concerns of Council members, we address the concerns raised by Mr. Rees during his public testimony. With respect to Mr. Rees' concern regarding the manner of questioning of witnesses by police commissioners not being consistent with HRS Chapter 91, there is no such need for formal questioning. This is because the investigation and review of police officer misconduct case is not subject to HRS Chapter 91. In fact, the only provision in the Rules of the Police Commission that provide for a contested case hearing is the denial by the commission of government counsel for police officers in cases where they are sued. For this reason, Mr. Rees' contentions are unfortunately misplaced. With respect to Mr. Rees' concern that the burden of proof utilized by the Commission is not appropriate ("insufficient evidence to support/sustain a Honorable Brenda Ford April 7, 2008 Page 4 criminal complaint"), Mr. Rees is mistaken as to the burden of proof. The Police Commission does not, nor has it ever during the present mayoral administration, utilized a burden or standard of proof commensurate with the criminal law standard. The burden of proof utilized by the Commission is an administrative standard, as the investigation of police officer misconduct cases is civil in nature. Turning now to the proceedings held on March 24, 2008, numerous Council members spoke at the Committee meeting, and verbalized questions they had concerning the need for this bill, as well as specific concerns related to provisions of the bill as currently written. We address each of these concerns below. 1. What are the underlying factual reasons the level and nature of oversight proposed by Bill 270 is necessary? Many Council members asked the question, "Why is this necessary?" These Council members sought to be informed of actual cases of police misconduct and the failure of the current system of investigation to properly address them. At the onset, it is important to recognize that with or without this newly proposed Office of Police Oversight and Complaints (hereinafter "OPOC"), there will be cases of police misconduct. No system presently known to our civilized society can effectively eliminate the fact there will be complaints made against police officers. The reality is for the vast majority of situations, interaction with the police is not a pleasurable event. Indeed, a significant number of complaints are made by persons who were arrested or otherwise investigated by the police; no doubt many of these persons may have a view of our police that is not consistent with the average law-abiding citizen. However, we do recognize there are (and will be) a number of complaints that are valid, made by law-abiding citizens. As recently reported in our media, the County of Hawai'i leads the state in the number of per capita cases of discipline and termination. No doubt many of these civilian-initiated complaints comprise the basis upon which this reported discipline is based. Further, as with all professions, there are "good cops," and "bad cops." The salient questions are (1) whether there is presently a systemic problem or phenomena in the police department that cultivates a culture of"bad cops," and (2) whether the present system of police oversight is adequate to address any police misconduct, and provides meaningful accountability to the public at large. If the answer to these questions is yes, and there is a demonstrated factual basis to support the premises, then improvements to the system via a Charter amendment may be warranted. In support of this legislation, Councilman Jacobson asserts there was a case of police misconduct involving complainants from his district (Ka'u) that Honorable Brenda Ford April 7, 2008 Page 5 went unabated, resulting in the possibility that this matter was reported to the Federal Bureau of Investigation (FBI). A review by our office of this case reveals complaints were filed by the complainants against this Ka'u police officer under Hawaii Police Commission complaint numbers (HPC) 03-32, 03-33, 04-08, and 04-49. The first three complaints involved allegations the police officer was stalking the complainants, and gave them "stink eye." The fourth complaint involved another complainant who alleged the police officer did not complete a thorough investigation when looking into a matter where he was the victim. With respect to HPC 03-32 and 03-33, both complaints were sustained by the Police Commission. The cases were then referred to the Police Department for an independent investigation. The complainants in this case had obtained a temporary restraining order against the police officer. When the matter was brought before the Honorable Joseph Florendo, District Court judge for the imposition of a permanent order, Judge Florendo denied the request of the complainants, and dissolved the temporary order. This fact was brought before the Police Department's Administrative Review Board (ARB), who then summarily concluded that there was insufficient proof on the record to sustain any recommendation of wrongdoing by the police officer. Based on this finding, no discipline was meted out to the officer. With respect to HPC 04-08 (the "stink eye" incident), the Police Commission found there was insufficient evidence to conclude there was evidence of misconduct, and the matter was closed by the commission.' With respect to HPC 04-49, the following synopsis received from the Police Department Internal Affairs summarizes the complaint as well as its outcome: On November 8, 2004, (the complainant) called for police assistance after his neighbor was verbally threatening him. (The complainant) did not have a phone so he walked to the Ocean View Volunteer Fire Station to call Police. When he placed the call to Police Dispatch, he informed dispatch that he was armed with a gun. Two officers arrived and it was learned that (the complainant) was in possession of a handgun. The gun was recovered under Place to Keep/I-11737. The officers then took(the complainant's) complaint and initiated a Terror Threat investigation/1-11736 against(the complainant's) neighbor. A thorough and complete investigation was conducted and routed to the Prosecutors Office. On December 06, 2004, (the complainant) files a complaint indicating officer told him that the case will be thrown out before it gets to the prosecutor's office. It is important to note that under present procedures of the Police Commission and Police Department, cases where the Commission finds insufficient evidence are still referred to the Police Department's Internal Affairs Division for investigation and review. This"safety net" ensures cases do not"fall through the cracks," and that all allegations of police officer misconduct are independently reviewed by Internal Affairs. Honorable Brenda Ford April 7, 2008 Page 6 Investigation was able to show that the officers conducted a thorough and complete investigation. ARB did not sustain complaint. Based on the foregoing, the case was closed by the Police Department, and no discipline was meted out to the officer. On April 4, 2008, checks were made with the FBI Corruption Unit to determine the status of any complaint made to them concerning this police officer. According to the FBI, they have no record of any complaint on file dating back to that time. FBI representatives indicated that had there been such a complaint filed, they would have sought information and documentation from our Police Department, but there is no record of any contact from the FBI concerning this officer. During the first reading of this bill, Councilman Jacobson also referenced Silva v. County of Hawaii, et. al., the case involving the "rigged promotions" at our Police Department, involving a former police administration. No doubt this case represented a very dark and unfortunate chapter in the history of our County and police department. To succinctly summarize the salient facts of this case, former Police Chief Guy Paul is alleged to have indicated to his administrative subordinates those police officers in the department he wanted promoted. Former Deputy Chief (and Police Chief) Wayne Carvalho and former Deputy Chief Francis Demorales are alleged to have facilitated this by providing the answer to interview questions to those officers Chief Paul sought to promote. The promotion of police officers, as with all other government departments, is an administrative matter within the jurisdiction of the employer. It has nothing to do with the system of rules and regulations relating to public complaints against police officers. In sum, our office cannot understand how the existence of an Office of Police Oversight and Complaints would have prevented the nefarious actions of these former police officials. Even if adopted as proposed, Bill 270 could not effectively prevent the commission of the acts committed by the responsible police administrators in the "rigged promotions" scandal, as the actions of the police administrators would have gone undetected.2 Again, it is the opinion of our office that the Council should first determine whether there is in fact a systemic problem of police corruption in our Police Department. As stated above, given the very nature of police work, there will be persons who bring complaints against police officer due to the fact most interaction with police officers tend to be less than pleasurable. In fact, a significant number of citizen complaints brought against police officers before the 2 We note that this case, the scandal would not have been discovered and litigated but for the courageous actions of former Police Captain William Perreira,who came forward with compelling testimonial and documentary evidence of the rigged promotions. Honorable Brenda Ford April 7, 2008 Page 7 Police Commission involve cases where the complainant was arrested and charged for a criminal offense. In many of these cases, the complainant is convicted of the underlying crime, and was motivated to bring a complaint against the police officer by his criminal defense attorney. As stated above, given the sheer large size of our police department, there will be cases where the actions of police officers do constitute misconduct. Further, we submit and concede there may be "bad cops" on the force as recognized above.3 Whether the incidences of misconduct or the prevalence of "bad cops" amounts to a systemic problem is debatable. If the Council believes on the present record there is such a systemic problem, then the need for an Office as contemplated by Bill 270 may be warranted. However, if there is no evidence of a systemic problem, then the inquiry should focus on the present system of investigating allegations of police officer misconduct. 2. What happens if a citizen has a complaint against a police officer? An aggrieved citizen has the option of bringing a complaint against a police officer with the Police Department or the Police Commission. There is no "right way," as the present system allows our citizens to opt for the track they feel most comfortable with.4 For complaints filed directly with the Police Department, the Internal Affairs Division investigates these cases. The Division is physically separated from other department divisions, and is headed by a captain who reports directly to the Chief. After an investigation is completed, the Police Department convenes an Administrative Review Board (ARB) comprised of ranking police officers who hear the Internal Affairs investigation, as well as the accused police officer's case. The ARB then makes a recommendation to the Chief, who makes all final decisions on wrongdoing and subsequent discipline. For complaints filed with the Police Commission, the Commission hears cases each month at its meeting. There is no contested case hearing requirement imposed by HRS Chapter 91, as the more informal process encourages accessibility by our citizens to the Commission. In a number of cases, given the Commission's ability to assess the credibility of the complainant 3 During my 13.5 year service as a prosecuting attorney, I initiated a number of criminal prosecutions against police officers (State of Hawaii v. Sean Kobayashi, State of Hawaii v. Sherwin Taka, State of Hawaii v. Cory Yamanouchi, e.g.). The vast majority of these cases involved actions by the police officers outside of their official duties as police officers. It nonetheless evidences the willingness and in fact the practice of our Police Department in investigating its own police officers and referring the cases for prosecution. 4 Citizens may not feel comfortable going down to their local police station to make a complaint against a police officer. To this end, they are afforded the opportunity to file a written complaint with the Police Commission. Honorable Brenda Ford April 7, 2008 Page 8 and police officer firsthand, a decision may be made whether to sustain or not sustain the complaint. Historically, in those cases where the Commission sought further information, a referral to the Commission's private investigator was made. However, these investigative reports proved less than helpful, as the private investigator did not have the benefit of obtaining a Garrity' statement from the accused police officer. Also, these Commission investigations would take place some time after the alleged wrongdoing, and it proved problematic to locate witnesses and obtain meaningful statements and evidence. In sum, these investigations would be no more than a regurgitation of the existing police report, with the taxpayers being assessed close to $2,000 per report. With the appointment of Lawrence Mahuna as Police Chief, the Commission has enjoyed unprecedented access to internal police records concerning the investigation of police officers. This has been the product of long and arduous negotiation with SHOPO, who had historically been on record as not "recognizing the Police Commission." Under the present informal agreement with the police union, SHOPO encourages its officers to attend Police Commission hearings, although they are not compensated for their attendance and time, and although any statement against their interest may be used against the officer by the Commission or the Police Department. Presently, where the Commission requires further investigation, instead of utilizing a private investigator at taxpayer expense, a referral is made to Internal Affairs. Internal Affairs then completes a thorough investigation, complete with the taking of a statement pursuant to Garrity. The case then proceeds to the police administration as described above, and a report is made to the Commission on the results of the investigation and any discipline meted out. For cases that are closed by the Commission as having insufficient evidence, the case is nonetheless still referred to Internal Affairs for an independent investigation. This unprecedented safeguard not used by any other county but Hawaii County ensures that no case will "fall through the cracks," and every allegation made by our citizens has the benefit of a complete Internal Affairs investigation that allows for the taking of a Garrity statement from the officer. At the end of each investigation and case, the complainant is advised by either the Police Department or Police Commission as to the outcome of the investigation. Although the exact type of discipline may not be divulged to the 5 Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616 (N.J. 1967). Honorable Brenda Ford April 7, 2008 Page 9 public,6 the citizen complainant is advised whether the police officer was sanctioned or not. 3. Questions raised by Councilwoman Brenda Ford. Councilwoman Brenda Ford raised questions regarding this bill. With respect to "who" is accountable to the public for the conduct of the police, Chief Mahuna on March 24`h succinctly answered in no uncertain terms it is the Police Chief. Under the present system of our laws, the mayor nominates police commissioners from each of the Council districts, who must be confirmed by the Council. These commissioners alone are responsible for the hiring and firing of the Chief. This system ensures neither the administration or council will have unfettered and unilateral authority or influence in the hiring and firing of the chief. This system best illustrates the wisdom of checks and balances found in our Hawai'i County Charter (2000). Councilwoman Ford also sought additional information concerning national accreditation and video cameras in patrol vehicles. These administrative and operational matters should be covered by the police department representatives at the April 8, 2008 meeting where continued discussion on Bill 270 will occur. 4. Will the Council lose its legislative immunity if it passes Bill 270 and essentially manages the Office of Police Oversight and Complaints? Article III, Section 7 of the Hawai'i State Constitution provides for the legislative immunity of State legislators "for any statement made or action taken in the exercise of the member's legislative functions." There is no corollary provision in our Charter for Council members. However, it is long recognized in municipal government that council members performing legislative functions are immune from legal action. In Hawaii, the determination of what constitutes a "legislative function" is left to a case-by-case analysis and determination. Abercrombie v. McClung, 55 Haw. 595, 525 P.2d 594 (1974). We need look no further than Article III, Section 3-1 of the Hawaii County Charter (2000) for a proper definition of legislative function in our county. That section provides as follows (emphasis supplied): Powers and functions. The legislative powers of the county shall be vested in the county council. Its primary function shall be legislation and public policy formulation, as distinct and separate from the executive administration of county government. 6 Chapter 92F, Hawaii Revised Statutes, as amended. Honorable Brenda Ford April 7, 2008 Page 10 The present draft of Bill 270 effectively creates a County office whose function is to conduct investigations of police misconduct, a purely administrative function. The director is appointed solely by the Council, without any input from the administration, the police department, or Police Commission. The bill essentially proposes that this office not only oversee, but actually perform investigatory functions, such as issue subpoenas and make findings and conclusions with respect to each case of alleged misconduct. The bill also provides that the chief shall be evaluated by this office. The bill then makes clear the overall governance and direction of the office shall be under the Council: Section 3-3.9. Administrative Supervision. 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. This presents separation of powers issues that may provide the basis for claims made against individual Council members for acting outside the scope of their legislative authority. This bill, if passed in its present form, effectively emasculates the authority of the administration in performing a core police function; to wit: the investigation of misconduct complaints against police officers. There is very limited judicial authority (case law) in Hawaii concerning legislative immunity. However, it is well established in other jurisdictions that council members are not immune from lawsuits brought under federal law (USCA Section 1983) for civil rights violations occasioned as a result of the legislator exceeding his or her legislative function. Mission Springs, Inc. v. City of Spokane, 134 Wash.2d 947, 954 P.2d 250 (Wash. 1998). Based on the foregoing, our conservative legal advice to the Council is to carefully consider this proposed legislation and move forward only if there is a clear need for intervention and overhaul of the present police misconduct investigatory system. 5. Is the present system of police misconduct investigation working effectively? As with many facets of operations within our County, the present system is a work in progress that could benefit from improvement. A common frustration experienced by some police commissioners are their "gut feeling" that something inappropriate may have happened, but the lack of credible evidence either convicting or exonerating the police officer. This often happens in cases where there are no witnesses, and all that is available for review is the statement of the complainant and the statement of the accused police officer (i.e., a "credibility shootout"). Commissioners are consistently advised since this is an employee misconduct hearing, there must be sufficient evidence to tip the scales in favor of Honorable Brenda Ford April 7, 2008 Page 11 the complainant. In other words, "all ties go to the police officer." This standard of proof is well recognized in public sector employment law, and is a necessary part of appropriate administrative review. To address this problem, the Commission has worked with the police administration in obtaining the employment history of accused officers to determine whether a "pattern" is present. Although an individual case may not have the necessary facts to sustain a finding of misconduct, the recognition of a "pattern" of allegations may prompt the Commission to recommend the Chief counsel the accused officer. This verbal counseling (and recall training, if necessary) does not constitute discipline as defined by the collective bargaining agreement, and is a prompt and direct form of behavior modification. Another area where improvement is necessary is the timeliness of bringing complaints made to the Police Commission before Internal Affairs. At present, a complainant must wait until the Commission's monthly meeting to have his or her complaint heard, and ultimately referred to Internal Affairs. A pending recommendation with the Commission is a task force of the Commission be utilized to promptly review all incoming complaints, and make the necessary prompt referral to Informal Affairs. During the public testimony of Thomas Whittemore, Councilman Jacobson asked Mr. Whittemore if he was aware of the "agreement with SHOPO that our mayor had signed." Further inquiry with Mr. Jacobson's office reveal Mr. Jacobson referenced the settlement agreement in SHOPO v. Harry Kim, et. al., Case No. CE-12-555, a complaint filed with the Hawaii Labor Relations Board, based on two former police commissioners attending an Administrative Review Board hearing without the consent of the full commission. As part of the settlement of that case, the administration agreed that "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." Our office takes the position that this settlement was made within the spirit of acknowledging that the Police Commission should not have access to these records gathered by Internal Affairs while the Police Commission is conducting its own investigation independent of Internal Affairs. Thus, it is the position of our office that once an investigation is completed by Internal Affairs, pursuant to the Commission's oversight authority contained in our Charter, access to these records should not be restricted by the agreement. No doubt this is an area where the County and SHOPO may not agree, and further discussion with the union may be warranted.' We thank Mr.Jacobson for raising this very important issue. Honorable Brenda Ford April 7, 2008 Page 12 Copies of communications between our office and the Police Commission are enclosed for your reference. As a friendly reminder, these are privileged communications shared with the Council on a "need to know" basis, and should remain protected as confidential. 6. What happens if a constituent makes a complaint of police misconduct to a Council member, and claims they do not want to report it to the Commission or Police Department, as they lack trust and confidence in the present system? There are many independent governmental agencies that may field such complaints. In addition to the FBI, the State Department of the Attorney General (the Attorney General is the chief law enforcement officer in the State of Hawai'i, pursuant to statute), the Office of the Prosecuting Attorney, or the United States Attorney may independently investigate such allegations. Please facilitate the report of any allegation of police misconduct or corruption to any of these agencies, if the complainant does not wish to report it to the Commission or police department. If in fact there is a systemic problem of police corruption as intimated in the preamble of Bill 270, an agency outside the confines of the County of Hawaii may be best able to properly investigate and surface any evidence of a culture of wrongdoing. Thank you for allowing our office to weigh in and comment on Bill 270. 1 will be present at the meeting on April 8, 2008, to address any questions the Council committee may have. Very truly yours, LINCOLN S. T. ASHIDA Corporation Counsel Ends. S: Departments/Council/LSA Corresp./Letter to Council re independent police auditor 4-7-08/LSAmr �.,+`"•`"�w� Lincoln S.T.Ashida Harry Kim `= ���c; Corporation Counsel Mayor . Gerald Takase Assistant Corporation Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 - Hilo,Hawaii 967204262 - (808)961-8251 - Fax(808)961-8622 PRIVILEGED AND CONFIDENTIAL COMMUNICATION ATTORNEY-CLIENT COMMUNICATION ATTORNEY WORK PRODUCT NOT A PUBLIC RECORD May 17, 2006 5 Honorable Pudding Lassiter and Members of the W L C Hawaii Police Commission County of Hawaii Hilo Lagoon Centre, Ste. 313 101 Aupuni St. Hilo, HI 96720 Dear Chair Lassiter and Commission Members: RE: Recommended Improvements to the Investigatory Process Involving Complaints against the Police Department and Police Officers This communication is submitted for the purpose of initiating discussion with the Hawaii Police Commission on suggested improvements to the process currently followed by the Commission in receiving and investigating citizen complaints against the Hawai'i County Police Department and police officers. Hawaii County Charter(2000) Article Vll, Chapter 2, Section 7-2.2 of the Hawaii County Charter (2000) (hereinafter "Charter") mandates the Police Commission "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." What constitutes "investigate" is not defined in the Charter. However, turning to the plain meaning of the term, it is "to inquire into; to examine thoroughly."' 1'�►1i;w -,io[l 1 ' Webster's Dictionary for Everyday Use, 1981. Hawaii County is an Equal Opportunity Employer and Provider i` Honorable Pudding Lassiter and Members of the { Hawaii Police Commission May 17, 2006 Page 2 The Present Process At present, a member of the public may file a "complaint" against a police officer with either (1) the Police Commission, and/or (2) the Police Department. For complaints filed with the Police Department (hereinafter"HPD"), the department initiates its own investigative process that necessarily involves the Internal Affairs Division. The Police Commission (hereinafter "Commission") is generally not involved in the review and investigation of these complaints. For complaints filed directly with the Commission, the Commission "investigates" the complaint by offering to hear the complainant and police officer2 in person, reviewing the police reports and criminal history summary of the complainant, and reviewing the written complaint filed with the Commission. The following graph illustrates the present process: Police Commission Police Department May public file a complaint? Yes Yes Who investigates complaint? Commission HPD Internal Affairs If complaints are filed with Yes Yes both the Commission and HPD, is there concurrent investigation? How soon is complaint Not until next Immediately investigated? Commission meeting How long does investigation Time varies depending Normally within 90 days take? on meeting schedule and length of outsourced investigation. In some cases, has taken over one year. Presently, there are significant impediments to the Commission conducting a thorough and speedy independent investigation. These limitations include: 2 The police officer is not required to attend the Commission hearing, nor make any written or oral statement on his behalf. i Honorable Pudding L-assiter and Members of the Hawaii Police Commission May 17, 2006 Page 3 • The inability to administer Garrity' rights to the police officer. • Waiting until the next Commission meeting to review the complaint and determine whether further investigation is necessary. • Lack of subpoena power. • Investigatory limitations of available private investigation service providers in our community. No doubt the most thorough investigation may be conducted by HPD, as they do not face the limitations discussed above. Based on the foregoing reasons, the Commission may wish to consider the following: 1. All complaints, whether made to the Commission or HPD, should be referred to and investigated by HPD Internal Affairs (hereinafter 1K). 2. The completed findings (and not the entire report) of IA for every case should be forwarded to the Commission for their review. This will satisfy the "receive, consider and investigate" requirement of the Charter. The Commission may review these findings at our monthly meeting, and if discussion is warranted, may go into executive (closed) session to discuss the particulars with IA personnel. 3. Complainants may be notified of the date and time of this Commission review, so they may appear to offer testimony, if they so choose. This is a very important part of the process. This will allow the complainants face-to-face contact with the Commission to "have their day in court." This unique aspect of our Hawaii County Commission should be retained.° 4. Assuming the Commission have concerns regarding the IA investigation after hearing from the complainant, the Commission may request a review of the entire IA file as part of the Commission's oversight function. The Commission may then make recommendations to the Chief if necessary, or report back to the complainant that the case was properly investigated. The above process, if adopted, would not require an amendment of present Commission rules. The process would also allow the Commission to fulfill its oversight responsibility, (1)without the risk of jeopardizing a case by conducting a concurrent investigation with IA, and (2) without interfering with the 3 Garrity v. State of New Jersey, 385 U.S.493,87 S.Ct. 616 (N.J. 1967). °At the 2006 State of Hawaii Police Commissioners'Training Conference, it was discovered the Hawaii Police Commission was the only board in the State that routinely facilitated a process where complainants were encouraged to provide oral testimony on their own behalf at a meeting of the Commission. Honorable Pudding Lassiter and Members of the Hawaii Police Commission May 17, 2006 Page 4 administrative affairs of HPD. The process nonetheless retains the unique characteristic of facilitating interaction between the public and the Commission. Please take a moment to review these proposals in light of the present practice of our Commission. When this matter is properly agendized at a future meeting, I look forward to discussing this matter as well as any other suggestions you may have with the entire Commission. Police Chief Lawrence K. Mahuna is copied on this communication. When this matter is deliberated, I strongly urge the Commission to include Chief Mahuna in the discussion, as he and his person el should be afforded the opportunity to provide input. Again, the purpose of this communication is to initiate discussion only, and not make any firm decisions regarding any changes to the present practice of the Commission. Thank you for your kind attention to this matter. Very truly yours, owrl-�� LINCOLN S. T. ASHIDA Corporation Counsel c: Honorable Lawrence K. Mahuna, Police Chief S: Boards/Police/LSA Corresp./Letter re proposed changes to investigation process 5-15-06/LSAmr Lincoln S.T.Ashida Harry Kim Corporation Counsel �' Mayor " Gerald Takase . a�'•; Assistant Corporation �•.a,•;,:+' Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo,Hawaii 96720-4262 • (808)961-8251 • Fax(808)961-8622 PRIVILEGED AND CONFIDENTIAL COMMUNICATION ATTORNEY-CLIENT COMMUNICATION ATTORNEY WORK PRODUCT NOT A PUBLIC RECORD May 24, 2006 Sent via email; no hard copy will follow Honorable Pudding Lassiter and Members of the Hawai'i Police Commission County of Hawaii Hilo Lagoon Centre, Ste. 313 101 Aupuni St. Hilo, HI 96720 Honorable Lawrence K. Mahuna Police Chief Hawaii Police Department 349 Kapiolani St. Hilo, HI 96720 Dear Chair Lassiter, Commission Members, and Chief Mahuna: RE: Supplement to Communication regarding Recommended Improvements to the Investigatory Process Involving Complaints against the Police Department and Police Officers This communication is intended to supplement my letter to the Hawaii Police Commission dated May 17, 2006 (enclosed), concerning recommended improvements to the investigatory process involving complaints against the Police Department and police officers. On May 17, 2006, the Hawaii County Council voted 8-1 against approving Bill 270, a proposed Hawaii County Charter (2000) (hereinafter"Charter") amendment seeking to create an "independent police auditor." Pursuant to our laws, the bill requires two further readings. These readings will occur before the full Council at their meetings on Monday, June 5, 2006, in Hilo, and on Wednesday, June 21, 2006, in Kona. Hawaii County is an Equal Opportunity Employer and Provider Honorable Pudding Lassiter and Members of the Hawaii Police Commission Honorable Lawrence K. Mahuna May 24, 2006 Page 2 The statement in the May 18, 2006, edition of the Hawaii Tribune-Herald that this bill had been "defeated" is misleading. In the unlikely event votes are reversed by at least five Council Members, the bill may pass. During the course of the spirited discussions had on May 1, 2006 (at the Committee level) and on May 17, 2006, many interesting observations and suggestions were made by Council Members. It may be appropriate for our Commission to consider these observations and suggestions as we examine possible improvements to the investigatory process. These questions and issues are discussed more fully below. 1. Complainants unwilling to bring their cases forward. Councilman Bob Jacobson has represented on multiple occasions he has spoken with "many people" who have told him they lack confidence in the Police Department and Police Commission in their ability to properly investigate charges of police misconduct. Councilman Jacobson further represented these complainants were so advised by their attorneys that it was "useless" to make a complaint to the Police Commission. When I queried Councilman Jacobson on these statements, within the spirit of seeking to encourage all citizens to bring any concern they may have forward, Councilman Jacobson declined to identify who allegedly made these statements. If there is any validity to this allegation, I surmise it may be the product of perceived inadequacies of the Commission fostered through the negative media attention received in the latter part of the 1990's, when the Police Department was embroiled in the "rigged promotions" scandal and other unfortunate matters. Perhaps my mother's sage advice of"Today is what people will think about you for the rest of your life" may be appropriate here. I believe the present membership of the Commission, together with the exemplary leadership of Chief Lawrence Mahuna, has taken great strides to dispel the ghosts of scandals past. Thus, Councilman Jacobson's statement, which I believe he genuinely believes is true, is a sobering reminder to us all that there is a long path ahead for our department and Commission to fully regain the public's trust, much of which is based on dated negative perception. 2. Additional powers for the Commission? Councilman Gary Safarik and other members of the Council have now repeatedly asked whether it would be appropriate for us to enlarge the present powers of the Honorable Pudding Lassiter and Members of the Hawaii Police Commission Honorable Lawrence K. Mahuna May 24, 2006 Page 3 Commission to achieve those objectives identified in the proposed independent police auditor legislation. I have previously identified two principal investigatory tools the Commission lacks; (1) the ability to provide Garrity rights to police officers, and (2) subpoena power. With respect to Garrity, it is unlikely anytime soon our United States Supreme Court would amend its monumental decision and allow non-employers and non-law enforcement officers such as civilian board members the authority to administer Garrity warnings and receive and use coerced statements in administrative investigations. With respect to subpoena power, there is a possibility legislation may be pursued to allow the Commission this authority. However, on balance, it would appear the most efficient method of completing a thorough investigation into misconduct is to allow the Internal Affairs Division, armed with the aforementioned investigatory tools as well as the expertise to utilize them, to conduct the investigation. The Commission may then, pursuant to its oversight powers, review the investigation and make necessary recommendations to the Police Chief. 3. Is there corruption in the Police Department? This question was asked of me by Councilman Safarik. I answered unequivocally"no." He asked what my definition of"corruption"was. I responded that it was a systemic pattern of wrongdoing permeating through multiple layers of an organization, including the administration. Councilman Safarik disagreed with me, opining that corruption may occur within a small subgroup of an organization, unbeknownst to the administration. He asked how this corruption may be found out and eliminated, and whether the Commission could perform this function. For purposes of this discussion, I will assume "corruption" is synonymous with "knowing wrongdoing." If this is occurring (officers stealing evidence, officers not arresting acquaintances, e.g.), it may be found out through reporting by aggrieved parties, reporting by co- workers, or the discovery of incriminating evidence. This corruption may occur in any organization, but is generally perceived as most disparaging when it occurs in a law enforcement organization, such as a police department. It would appear that preventive training, preventive mechanisms, accountability measures, and auditing are all methods that may effectively mitigate the occurrence of such corruption. To this end, the Commission is encouraged to work with Chief Mahuna to examine these measures. In sum, we need to Honorable Pudding Lassiter and Members of the Hawai'i Police Commission Honorable Lawrence K. Mahuna May 24, 2006 Page 4 answer Councilman Safarik's question if posed by the public: What is the police department doing to ensure corruption is not taking place? 4. The Commission is a rubber stamp for the Chief. This is an unfortunate perception of the past that still permeates in the belief of some of our citizens today. It is also unfortunate since proponents of this belief require a contentious and adversarial relationship between the Commission and Chief as the only evidence that "the system is working the way it should." Consensus and collaboration are foreign concepts to them, as they fail to recognize the most important characteristic of positive work alliances in the modern work place is cultivation, establishment, and sustenance of trust. There is no easy answer to this riddle. When I asked a local news reporter what evidence he had that the "rubber stamp" was alive and well, he reminisced about former commissioners who had unfortunately used their positions unethically. He even commented on a former commissioner who wore "cop sunglasses." The worse (and only) negative observation the reporter made about our present Commission was that the Commission "eats lunch with the Chief." I responded that a once-a-month lunch in a public restaurant is much different than the Chief playing cards with a group of Commissioners on Saturday night. Nonetheless, this was again a sobering reminder of the ghosts of the past appearing at the door of our present Commission. Indeed, it appears much of the "fuel" used by proponents of the independent police auditor legislation came from the negative perceptions earned through the deeds of previous administrations and commissioners. When called to the carpet and asked to articulate present "corruption," the Council Member who introduced the legislation could only say that unidentified persons contact him "all the time" to complain about the police department and Commission. Although the independent police auditor proposal may not pass, it has again placed in the public spotlight innuendo of"police corruption," a familiar theme in the recent history of our community. The challenge for the Commission is to recognize that in small communities, perception is sometimes greater (and more powerful) than the truth. Transparency is critical here. If and when the Commission decides to amend its practice to allow HPD Internal Affairs to complete a thorough investigation into all cases of alleged wrongdoing, and then conduct a Honorable Pudding Lassiter and Members of the Hawai'i Police Commission Honorable Lawrence K. Mahuna May 24, 2006 Page 5 Commission review of these investigations, it is strongly suggested the public be afforded the opportunity to weigh in on this proposed process. No doubt some may argue this is tantamount to allowing the "fox to guard the henhouse." However, when considering the following factors, the wisdom of the proposed new procedure is evident: 1. Priority number one should be the need for all allegations of police misconduct to be investigated thoroughly. 2. The most thorough investigation is one conducted by trained investigators, with tools such as subpoena power. 3. Perhaps the most powerful tool available to HPD Internal Affairs is Garrity, which allows the investigator to obtain a coerced statement and use it in his administrative investigation. This tool is unavailable to non-law enforcement and non-employer personnel. 4. Under the proposed procedure, HPD Internal Affairs presents summaries of all completed investigations to the Commission for review. This is vastly different from the present practice, where the Commission only sees Commission-initiated complaints. 5. If a complainant is not satisfied with the findings of HPD Internal Affairs, he has the option of asking the Commission to exercise its powers of oversight and review the investigation conducted by the police. The complainant has the right to address the Commission at a public meeting. All voting of the Commission must be done in open session pursuant to the Sunshine Law to ensure Commission accountability. 6. The Commission has the power to make recommendations to the Chief in the event the Commission feels a case was not investigated thoroughly or properly. The Commission is the Chiefs appointing authority, and this "check and balance" will ensure some response by the police administration. Note this important component was missing from the proposed Independent Police Auditor legislation, since the auditor was not the Chiefs appointing authority, and there was no incentive on the part of the Chief to address concerns raised by the auditor. As referenced in my earlier communication to the Commission, the purpose of this letter is to initiate discussion on ways we may improve the Commission's role in investigating allegations of police misconduct, with an eye towards improving public accountability and restoring the public trust. ;f f Honorable Pudding Lassiter and Members of the Hawai'i Police Commission Honorable Lawrence K. Mahuna May 24, 2006 Page 6 Summary To summarize, we respectfully recommend the Commission consider the following as it embarks upon an assessment of the current process of reviewing citizen complaints: • Identify the most effective means for the Commission to fulfill its Charter- mandated responsibility of"investigating" complaints against the police department or its officers. We have recommended the most effective means is a complete investigation conducted by HPD Internal Affairs. • Dialogue openly with the police administration on working towards an efficient method of having citizen complaints promptly and thorough investigated by HPD Internal Affairs, and having a summary presented to the Commission at its monthly meeting for oversight purposes. The Charter mandates that adequate resources be afforded the Commission. This may be an opportunity to increase personnel in Internal Affairs or other needed areas of the Police Department. • Openly discuss (and allow for public input on any) proposed changes in the citizen complaint process. • Evaluate the philosophical and practical bases of the independent police auditor legislation. Are there positive aspects that may be incorporated in any investigatory or oversight processes of the Commission? • If a new process is developed, consider preparing a report for the Office of the Mayor and Hawaii County Council, outlining the process that includes (1) a thorough investigation into allegations of police misconduct, (2) comprehensive oversight by the Commission, and (3) safeguards in place to find out and address any form of corruption. I look forward to fully discussing this matter with the Commission and police administration when the matter is brought forward for discussion. Thank you for your kind attention to this matter. Very truly yours, LINCOLN S. T. ASHIDA Corporation Counsel Encl. S: Boards/Police/LSA Corresp./Leiter to Comm.re suggested improvements to investigation process 5-24-06/LSAmr r�Y of a Lincoln S.T.Ashida Corporation Counsel Harry Kim Mayor ` ' Gerald Takase Assistant Corporation %:;;•,;:+` Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo,Hawaii 967204262 • (808)961-8251 • Fax(808)961-8622 PRIVILEGED AND CONFIDENTIAL COMMUNICATION ATTORNEY-CLIENT COMMUNICATION ATTORNEY WORK PRODUCT NOT A PUBLIC RECORD June 2, 2006 Sent via email;no hard copy will follow Honorable Pudding Lassiter and Members of the Hawai'i Police Commission County of Hawaii Hilo Lagoon Centre, Ste. 313 101 Aupuni St. Hilo, HI 96720 Honorable Lawrence K. Mahuna Police Chief Hawaii Police Department 349 Kapiolani St. Hilo, HI 96720 Dear Chair Lassiter, Commission Members, and Chief Mahuna: RE: Second Supplement to Communication regarding Recommended Improvements to the Investigatory Process Involving Complaints against the Police Department and Police Officers This communication is intended to supplement my earlier two letters to the Hawaii Police Commission (hereinafter"Commission"), concerning recommended improvements to the investigatory process involving complaints against the Police Department(hereinafter"HPD")and police officers. The recommended changes to the complaint review process may be summarized as follows: 1. All complaints (whether filed with the Commission or HPD), will be referred to Internal Affairs (hereinafter"IA")for investigation. Hawai'i County is an Equal Opportunity Employer and Provider folioe 0)fT!.£T1iSfii0l1 Honorable Pudding Lassiter and Members of the Hawai'i Police Commission Honorable Lawrence K. Mahuna June 2, 2005 Page 2 2. When a complainant is notified of the IA investigation is completed, IA will notify the complainant they may ask the Commission to review the investigation, if the complainant is not satisfied with the outcome. 3. The Commission may review the investigation conducted by IA as part of the Commission's oversight powers, and report back to the complainant whether proper procedures were followed. One additionalr suggestion involves paragraph number 3 above, concerning a review by the Commission of the IA investigation. This review may be completed by representatives from IA meeting with the entire Commission in executive session to discuss the investigation. However, there may be times when a review by the Commission of paperwork or other items outside of a noticed meeting is necessary. More than two members of the Commission cannot participate in such a review outside of a noticed meeting, as this will constitute a violation of the State Sunshine Law. To address this problem, and to allow the Commission to exercise its oversight powers, it is recommended the Commission assign two of its members to audit cases where complainants have requested a Commission review of their complaints. This will allow these two members to meet outside of a properly noticed meeting, discuss the case (so long as no commitment to vote is made or sought), and report back to the full Commission when appropriate. This proposed process falls within Sunshine Law limitations, is less cumbersome, and will facilitate a prompt resolution of complaint reviews by the Commission. Thank you again for considering this proposal. I look forward to discussing these matters with the Commission at our next meeting. Very truly yours, *V—�- LINCOLN S. T. ASHIDA Corporation Counsel S: Boardslftlice/LSA CorrespAetter to Comm.re suggested improvements to Investigation process 6-2-06ILSAmr rS of. �!r� Lincoln S.T.Ashida Corporation Counsel , Harry Kim ���'' Mayor Gerald Takase Assistant Corporation •'d►'M� Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo,Hawaii 967204262 . (808)961-8251 • Fax(808)961-8622 PRIVILEGED AND CONFIDENTIAL COMMUNICATION ATTORNEY-CLIENT COMMUNICATION ATTORNEY WORK PRODUCT NOT A PUBLIC RECORD February 12, 2007 Sent via email; no hard copy will follow 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 At the request of the Police Commission, the following represents the consensus gleaned from discussion over the past few months concerning suggested improvements to the investigatory process (copies of excerpts from meetings enclosed, as well as previous correspondence from our office concerning this issue): • The majority of commissioners and Police Chief Lawrence Mahuna favor the present process where members of the public are able to personally address the Commission. This should not change, as it promotes transparency. • Cases where the Commission's investigator has been used were not positive experiences. The investigations took place too long after the incident, and the reports were essentially restatements of existing police reports. • In some cases, commissioners expressed concern in not having enough information to make an informed decision. These were often cases where (1) there was no police report, and/or (2) the police officer did not appear nor submit a written statement. Hawaii County is an Equal Opportunity Employer and Provider Honorable Pudding Lassiter February 12, 2007 Page 2 • Internal Affairs' ability to question police officers while affording them their Garrity rights is a tremendous tool not available to the Commission. The majority of commissioners recognize the present system in place is not all that bad. Some have remarked, "If it is not broken, perhaps we don't really need to fix it." The Commission has requested the Corporation Counsel to incorporate the primary conclusions above into a recommendation for the investigation of cases for the future. The following represents some options available to the Commission. Option 1 • Make no changes, as the present system is working fine. Pros: (1) The present system has the benefit of allowing the public to come before the Commission prior to any decisions by the Commission being made, thereby promoting transparency. Some have remarked Hawaii County's system is unique in that our citizens are afforded the opportunity to address the police commission. Cons: (1) Investigations take long to complete due to scheduling problems and lack of police reports; (2) investigations are incomplete due to the inability of the Commission to obtain a statement from the police officer. Option 2 • Refer all cases to Internal Affairs. Pros: (1) Internal Affairs will conduct a more comprehensive investigation than the Commission, since they have the legal ability to obtain a statement from police officers pursuant to Garrity, (2) the investigation will be completed in a more timely manner given the resources of the police department vis-a- vis the Commission. Cons: (1)Allowing the police to investigate their own cases may lead to the argument that "the fox is guarding the henhouse." The suggested solution The best solution is a combination of Options 1 and 2 above, incorporating the "pros" from each. The following flow chart outlines a suggested course of investigating complaints made to the Commission: 1. Complaint received by Commission and forwarded to Internal Affairs. Once the complaint is received, it is immediately transmitted to Internal Affairs so an investigation may begin. This eliminates the Honorable Pudding Lassiter February 12, 2007 Page 3 delay between the filing of the complaint and a formal referral to the police at the next regularly scheduled Commission meeting. 2. Complaint agendized at the next Commission meeting. This will allow the 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. 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 his status report at the monthly Commission meeting. 4. Complainant notified of outcome. The complainant should be notified by the Commission of the outcome of the investigation; whether the charges were sustained or not. The type of discipline meted out, however, cannot be released, unless the officer was discharged. The above process may be implemented without any amendments to the Commission's existing rules. The "con" of the "fox guarding the henhouse" may be addressed so long as the complainant believes he/she was treated fairly. To this end, it is incumbent on the Commission to not only review the substance of the investigation, but to also critique the manner in which the investigation was carried out. Deputy Corporation Counsel Craig Masuda will appear in my stead at our next meeting on February 16, 2007. 1 will be present at our meeting in March 2007, where we can hopefully agree whether to implement the above recommended process. Very truly yours, LINCOLN S. T. ASHIDA Corporation Counsel Encls. c: Honorable Lawrence K. Mahuna, Police Chief (w/ encls.) Craig T. Masuda, Deputy Corporation Counsel (w/encis.) S:Boards/Police/LSA Corresp./Letter to Commission re investigatory process 2-12-07/LSAmr Lincoln S.T.Ashida Harry Kim Corporation Counsel Mayor Gerald Takase Assistant Corporation Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo,Hawaii 96720-4262 • (808)961-8251 • Fax(808)961-8622 NI&M 2M .2 Sent via email; no hard copy will follow Honorable Pudding L, Chair, Hawaii Police Commission County of Hawaii Hilo Lagoon Centre, Ste. 313 101 Aupuni St. Hilo, HI 96720 Dear Chair Liar 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"IX 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 201h meeting if you have any questions concerning this process. Very truly yours, INCKOLW9 T. ASHIDA Corporation Counsel C: Honorable Lawrence K. Mahuna, Police Chief Captain Marshall Kanehailua, HPD IA S: Board s/Police/Corresp./Letter to Commission re new investigative process FINAL 3-20-07/LSAmr Hawaii County is an Equal Opportunity Employer and Provider PROCESSING OF CIVILIAN COMPLAINTS HAWAII 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 of the complaint and a formal 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 the 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 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 be notified by the Commission of the outcome of the investigation; whether the charges were sustained or not. The type of discipline meted out, however, cannot be released, unless the officer was discharged. 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 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 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.