The Honolulu Police Department is teaming up with Hawaii’s politically powerful police union to oppose legislation that would require police agencies to disclose the names of all officers disciplined for misconduct.

Both the HPD and the State of Hawaii Organizations of Police Officers oppose a House bill moving through the Legislature that seeks to change the public records law by stripping out an exemption that has allowed suspended cops to keep their names and misdeeds away from public review.

While journalists and good government groups have supported the push for more transparency, the heft of the state’s largest police force could make it more challenging for the bill to pass as written.

“It’s on a good path right now,” said Sen. Will Espero, who is leading the effort for more police accountability. “I’m certain we’ll come up with a bill that both houses will agree upon and it will be better than the legislation that’s currently in existence.”

For nearly 20 years, Hawaii’s police department have been interpreting the Uniform Information Practices Act to mean that disciplinary actions taken against suspended police officers are not public. The records are released on officers who have been discharged.

Disciplinary actions against all other public employees who are suspended for misconduct, from maintenance workers to firefighters, are subject to disclosure.

The only details about police officer misconduct that’s available to the public comes in annual reports to the Legislature that don’t shed much light on the disciplinary process as it relates to suspensions.

House Bill 1812 seeks to get rid of the controversial exemption in the public records law as well as make county police chiefs include more information about officer misconduct in their annual reports to the Legislature, including whether an officer was prosecuted or a repeat offender.

A Circuit Court judge ruled recently that suspended police officers do not have a right to privacy when it comes to disciplinary records despite the exemption.

’Ridicule in a Public Forum’

While SHOPO has been the only opponent of HB 1812 and its companion legislation — Senate Bill 2591) — HPD recently joined the union’s opposition to the measure during Espero’s Public Safety Committee hearing Wednesday. The bill passed over police objections.

HPD Maj. Clyde Ho of the department’s Professional Standards Office submitted written testimony that defended the practice of keeping secret the names of suspended officers. It was the first time HPD testified on the measure, which passed the House earlier this month.

Hawaii Sen. Will Espero

PF Bentley/Honolulu Civil Beat

Hawaii Sen. Will Espero wants more transparency when it comes to police misconduct.

“We strongly feel that the release of the officers’ names deters from the disciplinary intention, which is to correct the behavior of the employee and not proliferate a more severe penalty through ridicule in a public forum,” Ho said. “Having such a requirement would adversely affect the recruiting efforts of the HPD and may be considered in the grievance and arbitrations as a part of the imposed penalty by the agency.”

Ho added that HPD has already begun to comply with other proposals outlined in the bill, such as providing more information in the report summaries and extending its record retention policy to make sure disciplinary files are maintained for six months after being published in a the legislative reports.

HPD’s latest report to the Legislature, filed in December, did not include any additional information than had been released in prior years. And the department had already destroyed the records of one officer who had been fired for falsifying records and lying to investigators about transporting a female runaway.

HPD’s testimony follows similar arguments by SHOPO President Tenari Ma’afala, who has been the sole opponent to HB 1812 as well as a companion measure that passed through the Senate.

The union has long advocated for shielding police misconduct from public view. In fact, it was SHOPO that convinced legislators in 1995 to write include exemption for suspended officers in the public records law. That push was made after the union lost a court battle with a group of University of Hawaii students who were seeking those records.

Ma’afala cited the 1995 legislation in his most recent HB 1812 testimony, and even pulled quotes from lawmakers and committee reports at that time that stated police officers were different than other public employees because they’re held to a tougher disciplinary standard.

A change in the law, he said, “flies in the face” of that 1995 legislation.

“First and foremost, the wheel is not broken and doesn’t need fixing,” Ma’afala said. “The Chiefs of Police of the county police departments already have internal policies in place to investigate police misconduct and improve discipline.”

The union president downplayed the frequency of officer misconduct saying that in 2012 HPD only had 5.3 complaints per 100,000 public contacts and that in 2011 the rate was 4.2 complaint per 100,000 contacts.

He also argued that county police commissions — made up of citizen volunteers — along with prosecutors are enough to help keep police officers in check if there’s sufficient evidence to proceed with disciplinary action or criminal charges.

But a Civil Beat investigative series, In The Name of the Law, examined public disclosure of police misconduct and found that the situation is much different than Ma’afala describes.

The series, which analyzed legislative summaries from 2000 through 2012, found that HPD officers were suspended or fired for misconduct about once every nine days on average and that much of the wrongdoing could be classified as criminal criminal behavior.

The series also explored the loopholes in the disciplinary process — including the role of police chiefs, union, county police commissions and prosecutors — and how the secrecy surrounding the proceedings leaves the public largely in the dark about whether officers are being held accountable for their actions.

Competing Legislation

HB 1812 and SB 2591 were born out of Civil Beat’s reporting about police misconduct. But both bills face an uphill climb before becoming law.

First, HB 1812 must make it through Sen. Clayton Hee’s Judiciary and Labor Committee before going to the Senate floor for a vote. HB 1812 must also be reconciled with Espero’s SB 2591, that was recently modified by the House Judiciary Committee in a manner that would effectively keep suspended officers names confidential except in the most unusual and egregious circumstances.

Rep. Karl Rhoads introduced and amended HB 1812 to get rid of the suspended officer exemption in the public records law.

But he took a different approach when SB 2591 came before his committee. The committee decided to only require disclosure of the names officers suspended for a year or more.

Rhoads said there was resistance from colleagues about making disclosing the names of suspended officers. He also said he changed his own stance after reading the annual legislative reports and finding that many of the suspensions were only for a day or so.

Hawaii Rep. Karl Rhoads

PF Bentley/Honolulu Civil Beat

Hawaii Rep. Karl Rhoads introduced legislation that will force police to disclose more information about officer misconduct.

“You have to draw the line somewhere,” Rhoads said. “So we drew it at a year.”

But the records show that many officers who have been suspended for only a day or two have committed serious misconduct.

Civil Beat’s analysis of the annual legislative reports over the 13-year period showed only one HPD officer had been suspended for a year or more. That officer, who the department has refused to identify, was suspended for 626 days for hindering a federal investigation.

Of the 527 suspensions or discharges in that period, 125 involved criminal conduct. Of those, only 33 are known to have resulted in a prosecution and a conviction; 17 of those that ended up in court only resulted in a one-day suspension.

The Courts Have Already Ruled

The Hawaii Supreme Court ruled in 1996 that police have no different right to privacy than other public employees, despite the 1995 legislative exemption.

The Office of Information Practices — which oversees the public records law — has interpreted the law to mean that the public has an interest in knowing the names of police officers who have been suspended for misconduct.

In fact, OIP cites the high court decision in testimony supporting HB 1812, saying the change in the bill “puts police officers on the same footing as other government employees.”

Circuit Court Judge Karl Sakamoto also reaffirmed the Supreme Court’s ruling in February when [he sided with Civil Beat in a lawsuit] against HPD over the release of the disciplinary files of 12 police officers who were suspended for 20 days or more from 2003 to 2012.

Espero said he hopes lawmakers decide transparency is more important than appeasing HPD and SHOPO, and that the public records law is changed to make county officers more accountable.

“This is a policy decision about the behavior of police officers,” Espero said. “This is a policy decision on police officers who may have been suspended or who have been charged with wrongdoing. Thus, the majority of police officers will not be impacted by this bill because the vast majority of police officers are law-abiding, responsible professionals.”

Contact Nick Grube via email at nick@civilbeat.com or follow him on Twitter at @NickGrube.

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