For the fifth year in a row, lawmakers may choose not to put Hawaii on par with the rest of the nation when it comes to having minimum standards for law enforcement officers.

Civil Beat first reported in 2013 that Hawaii is the only state without a police standards and training board. It’s one of five states without a licensing and certification process for law enforcement officers, though the Aloha State licenses professions such as doctors, private security guards and boxing event promoters.

A bill to do both of those things was watered down last week.

Legislators have tried to set minimum standards for officers several times.

Anthony Quintano/Civil Beat

House Bill 2071 was amended before being passed after a joint hearing of the Senate Judiciary and Ways and Means committees, chaired by Sens. Brian Taniguchi and Donovan Dela Cruz, respectively.

The bill now heads to the full Senate, where it will likely pass, and then to a House-Senate conference committee to hammer out differences.

Prior to last week’s hearing, HB 2071 would have created a board with the power to certify officers and set minimum performance standards, training requirements and continuing education. It would have had the power to investigate officers, subpoena records and require officers to answer questions in writing, under oath. An officer’s certification could be revoked if they were convicted of a felony or lie on their application.

But the bill was gutted and replaced with the text of Senate Bill 2427 to study and develop recommendations for creating a standards board. There was no discussion or debate at the hearing.

The Senate opted to consider a working group because of testimony submitted by police chiefs in opposition to the bill, Taniguchi said. It’s better to have people in the industry provide guidance than for legislators to decide standards during the session, he said.

“I think when you create some of these boards, we have to get some direction as to what the standards would be,” he said.

Correction: An earlier version of this story contained a quote from Taniguchi that referred to a different bill about police records, not HB 2071.

Ethan Ferguson

Having a standards board in Hawaii might have prevented Ethan Ferguson, a Honolulu police officer fired for misconduct, from raping a 16-year-old girl while on duty in a subsequent job as a Department of Land and Natural Resources enforcement officer on the Big Island.

Earlier versions of the bill were generally supported by state departments but opposed by police chiefs who argued their departments already do a good job of recruiting, training and disciplining officers.

“We are concerned that the extra layer of bureaucracy created by this bill will add costs to the HPD and not necessarily serve the needs of the communities on Oahu,” the Honolulu Police Department wrote in testimony. “Each of the four county police departments have unique needs and services that they provide. We are in constant communication to share thoughts and seek solutions to common and future problems.”

Police chiefs normally support the creation of standards and training boards, said Roger Goldman, a professor at the St. Louis University School of Law and expert in police standards boards.

‘Vague’ Wording

Instead of creating a board to regulate officers, HB 2071 now calls for a working group to study the concept of a standards board and certification process for a few years. The Attorney General’s office would be responsible for ensuring officers “terminated for misconduct” by a state or county law enforcement agency aren’t rehired by another agency.

That language could be problematic for two reasons, Goldman said.

It could allow officers who committed misconduct — but were not fired — to be hired by another state law enforcement agency, he said.

“It’s a good first step that you start with termination. The definition of misconduct … seems to be a little too vague,” he said, adding the current language “could be easily abused.”

“Misconduct” could entail anything from upsetting a supervisor to sexual misconduct. Goldman said legislators should decide what constitutes misconduct, as those in other states have.

Hawaii law explicitly prohibits massage therapists, for example, from having sex with clients.

“Why wouldn’t we want to do that same thing for police?” he said.

Goldman pointed to New York’s law, which bans officers from working at another state law enforcement agency after being fired “for cause.”

He also pointed to Connecticut law, which states that officers cannot be rehired in another law enforcement agency if they are “dismissed for malfeasance or other serious misconduct calling into question such person’s fitness to serve as a police officer.”

Some states have opted to first study law enforcement standards boards, he said, much like the proposal laid out in the new draft of HB 2071. But most have been quick to adopt laws immediately creating such boards, Goldman said.

A resolution currently pending in the Massachusetts Legislature would create a commission to study a standards and training board for peace officers, a general term for law enforcement officers. Massachusetts already has such a board for police.

Could This Still Be The Year?

HB 2071 was introduced by Rep. Scott Nishimoto, who as chair of the House Judiciary Committee decides the fate of hundreds of bills involving law enforcement and the courts. He killed SB 2427 by declining to schedule it for a hearing.

Nishimoto said he couldn’t recall the language of SB 2427 or why he didn’t hear the bill in his committee.

Chair Scott Nishimoto sits during house meetings at Capitol Room 308. 5 april 2016.

This year was Nishimoto’s first attempt at passing legislation to create a law enforcement standards and training board.

Cory Lum/Civil Beat

He reaffirmed his support for the House’s version of the bill and said it’s a good thing that HB 2071 will head to conference committee, which is farther than previous versions of the bill have made it.

The Senate committees likely would not have decided to hear the bill if they weren’t open to the original version, Nishimoto said.

Sen. Will Espero was the first to propose a law enforcement standards board and certification program in 2014. He’s supported similar legislation every year since.

This year he co-sponsored SB 2427.

“The bottom line right now is that we have legislation that keeps moving … We want to keep the discussion going and we want to go to conference,” Espero said, adding that there will be “several options to look at” by that point.

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