A bill that would provide more information about misconduct
of county cops still has life, but there’s little guarantee it will survive the
legislative session.
On Thursday, Senate Bill 839 had its first hearing in the House
Public Safety Committee, but was deferred so the chair, Rep. Henry Aquino,
could collect more information about the measure.
The deferral comes on the heels of the state’s powerful
police union testifying against the bill, saying it could potentially violate
state law if it means identifying cops who have been suspended for misconduct.
SB 839 seems relative innocuous as written, and in fact one
open records advocate called it "laughably cosmetic."
Besides making clear that mandatory summaries of disciplinary
action must cover the calendar year, the bill essentially changes one word in
the current law — from "summary" to "description."
That tweak prompted State of Hawaii Organization of Cops
(SHOPO) President Tenari Ma’afala to argue in written testimony that SB 839
would “eviscerate current laws” that guard cops from having to release details
about their wrongdoing. Ma'afala said the measure would infringe on their due
process rights guaranteed through the union grievance procedure.
“Any additional requirement to add detailed facts to a
summary of misconduct that resulted in a suspension or discharge of the cop may
prematurely and unfairly identify the cop,” Ma’afala said. “Further, the county
police departments would be in violation of this law should the descriptions
they provide indirectly identify an cop who has been suspended, or was
discharged without first having had the opportunity to exercise and exhaust
fully all of the administrative remedies, which are specified in the collective
bargaining agreement and in state law.”
Ma’afala also noted in his testimony that SHOPO “carefully”
vets all grievances regarding police discipline, and that while some punishment
is upheld or reduced, there are other cases that are overturned because there
was no “just cause.”
SB 839 aims to have the four county police departments —
Honolulu, Maui, Hawaii and Kauai — provide more detailed information about cops
who are suspended or discharged for misconduct. But how much more detailed is
unclear. There is no definition in the bill for "description."
Each year the counties are required to send a report to the
Legislature with summaries of these incidents. Very few people, including
lawmakers, have read them. But those who have, including the bill’s sponsor
Sen. Les Ihara, say the summaries are too vague, making it difficult to know if
bad cops are being properly punished.
Under Hawaii's public records law, the public can gain
access to police misconduct records, including names and other details about
the wrongdoing, if the termination is upheld after the union grievance process.
The public is barred from getting information about cops who have been
suspended — an exemption afforded only to the police. Other public employees'
disciplinary files are available for public review.
SHOPO convinced the Legislature to grant the exemption in
1995, in a highly publicized legal and political battle. Lawmakers undermined a
Hawaii Supreme Court decision that found police disciplinary files should be
public.
The Office of Information Practices has said that the
Supreme Court ruling trumps the legislative change. OIP says even suspended
cops' files must be made public.
University of Hawaii journalism professor Gerald Kato was in
the middle of that fight along with some of his students. He’s now supporting
SB 839, and wrote a letter to the Public Safety Committee outlining his support
as a member of the Media Council Hawaii.
Kato’s testimony recounts his three-year stand-off with
SHOPO as well as the ruling of the late Circuit Court Judge John Lim, who told
a courtroom full of cops that the public has a right to know about the conduct
of its police force.
It’s time to “breathe life” into Lim’s ruling, Kato said. He
also noted that while the Media Council Hawaii supports the intent of SB 839,
the group would like to see even more disclosure when it comes to troublesome
cops.
“We believe that the Legislature and public are entitled to
meaningful information on police misconduct and disciplinary actions,” Kato
said. “This includes names of cops and relevant details about the misconduct
and disciplinary actions taken by police departments across the state. The
current process of reporting is so general that the information, as revealed in
a recent series of articles in Civil Beat, is of little to no value as a means
of maintaining public accountability.”
Civil Beat wrote a five-part series on police misconduct in
Hawaii and the secrecy surrounding it. That investigation found that even
though cops are getting disciplined for misconduct on a regular basis — about
once a week on average in Honolulu — little information is available about
their misdeeds, even if they were guilty of committing crimes.
Kato, though, isn’t the only one who has been bothered by
the lack of information and public accountability. UH professor emerita Bev
Keever was also drawn from the past to testify on SB 839.
Keever was also a journalism professor at the university in
the 1990s when SHOPO was lobbying the Legislature to change the public records
law to hide the identities of bad cops. She fought back, but lost.
She calls SB 839 “laughably cosmetic,” and believes it needs
to be broadened to match the disclosure requirements of other public employees
guilty of misconduct.
“The Legislature didn’t listen then, but now your in-depth
attention is urgently needed,” Keever wrote in testimony, adding that the
responsibilities of cops have increased due to Homeland Security requirements.
“The public confidence in their local cops would be greatly
strengthened if this bill is recast to broaden it so that cops, except for
undercover cops, are given the same public scrutiny as all other public
employees under the state’s open-records law.”
It’s now up to Aquino to schedule another hearing on SB 839.
He didn’t set a date, and he has only two weeks pass the bill from his
committee to the House floor.
The time crunch plus the lack of a set hearing are not good
signs for Ihara’s bill. In many cases, a deferral is the equivalent of shelving
a bill for the session.
But Aquino said after Thursday's hearing his intention is to
bring the bill before his committee again. He just wants to get some questions
answered, specifically from SHOPO, before making a decision. Aquino also wanted
to get some legal insight from the Attorney General's Office on matters of law
related to collective bargaining and public records.
"Hopefully I can get those answers that I need and
we'll go from there," Aquino said. "We still have several weeks. I do
have technically two more hearing days so it really depends on when I can get
the information. So there is time."