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Part 3 of a 5-part series
Even before Hawaii Circuit Court Judge John Lim unequivocally championed the public interest in police disciplinary actions and ruled against the State of Hawaii Organization of Police Officers, SHOPO had a Plan B — get the Legislature to do what the courts would not.
SHOPO had reason to believe this would work — and it did. Hawaii is a union-friendly state, and the police had recently convinced lawmakers to narrow public disclosure of misconduct to officers whose transgressions occurred while they were on-duty.
Cops are different from other people, the union argued. Stress and high-pressure situations force snap decisions that sometimes result in a mistake, and officers and their families shouldn’t be publicly humiliated in addition to whatever discipline the department hands down, SHOPO said.
In 1995, the Legislature voted overwhelmingly in SHOPO’s favor. Police disciplinary records would be off limits to the public, but the county police agencies would have to file annual summaries with the Legislature so lawmakers could be assured serious misconduct was being dealt with effectively.
The police union and its membership made keeping this information secret a priority for the 1995 legislative session.
The fight over police officers’ disciplinary records “has brought this union from the ashes into an activist group,” Michael Joy, SHOPO’s business manager, said in a press release issued the day 500 officers rallied at the state courthouse to protest the case in which Lim was ruling.
“We will no longer permit our rights to be trampled or compromised,” he said. “We need to let the public and our political leaders know which issues are important to our police officers. SHOPO will begin to take a very active role in politics and do whatever needs to be done to elect our friends into office.”
SHOPO may have failed to convince Hawaii’s judges that the records should be off limits. But the Hawaii Legislature was a much easier sell.
“We won, and it was nice for awhile,” said Jeff Portnoy, the Honolulu attorney who represented University of Hawaii journalism students in their quest to keep police disciplinary files public.
“But as I had always predicted, we might wind up with a Pyrrhic victory because the cops made it clear that they had the power and the resources and the money and the professionals to walk across the street to the Legislature and get their pals over there to change the law.”
Gerald Kato, the UH journalism professor who was the advisor to the students, said the police union had provided his pupils “a good lesson in lobbying.”
“SHOPO just outgunned us politically,” Kato said. “We just didn’t have any kind of political clout.”
Civil Beat tried numerous times over the past six months to interview SHOPO officials. None would agree to an interview and didn’t return more recent calls asking them to speak with us.
On Jan. 18, 1995, while SHOPO’s appeal of Judge Lim’s March ruling was still pending before the Hawaii Supreme Court, state Sen. Rey Graulty introduced Senate Bill 171. It carved out an exemption to the state’s public records law that would protect information about troublesome police officers.
As he explained at the time, officers who were disciplined should not be forced to wear “scarlet letters” alongside their badges.
“Not only will they wear the stripes on the sleeves of their uniforms, but their mistakes as well,” Graulty said then, according to the Senate Journal. “Not only are they being disciplined by their chiefs, but they are being pilloried in the press. This is not only bad employment policy, this is bad public policy.”
Matthew Matsunaga, son of famed Hawaii politician, the late U.S. Sen. Spark Matsunaga, was the lone opposition vote in the Senate. He said the records should be kept available because of the public’s right to know about how their tax dollars are being spent.
“I think the argument about embarrassment to the family is not a real issue. I think it’s a red herring,” Matsunaga said then. “I think if that were truly an important factor, then we would prohibit disclosure of any public employer’s wrongdoing because of potential embarrassment to our families. We all have families.”
Graulty, who is now retired and living in Kapolei, says he remembers SHOPO putting on a “full court press” at the Legislature in order to win over lawmakers. He said it was impressive how well the union and the officers made their pitch.
“It was kind of a real difficult area from a legal perspective because they have collective bargaining rights, they have grievance procedures and they have the rights to privacy,” Graulty said. “The Legislature was struggling to find a balancing point back then.”
The SB 171 preamble lays out a case that there is already enough information about police misconduct to satisfy the public’s legitimate interest, whether it’s through the police department or the court system. The bill notes that names of officers charged with a crime or sued civilly are already in the public record.
The bill also cited SHOPO’s labor agreement with county police agencies and noted that the union contract required the police department to respect the privacy of officers and keep disciplinary records secret. But that was an argument Judge Lim had already rejected and one that the Hawaii Supreme Court ultimately dismissed, too.
Beyond privacy issues, Graulty also raised the fear of retribution against the police if their names were made public.
“The Legislature finds that police officers, their families and friends may face retaliation and physical and verbal threats if their names are publicly disclosed for job-related disciplinary actions that may be relatively minor infractions,” SB 171 said.
Graulty put a lot of trust in the system of checks and balances, such as the county police commissions that had been in place for decades, to ensure police officers were being held accountable.
His bill underwent some slight changes, but ultimately gave police officers an exemption afforded to no other public employee. Cops no longer would have information about their misconduct made public unless they were discharged.
All other public employees who are suspended or fired are subject to have their names, details about their misconduct and disciplinary action released as soon as union grievance procedures are exhausted.
Instead, each year the four county police departments — Honolulu, Maui, Kauai and Hawaii — would submit a report to the Legislature that outlined the incidents resulting in the suspension or discharge of an officer. Lawmakers believed that the annual reporting requirement would help them keep tabs on the departments and make sure bad cops weren’t running rampant.
They left the door open to review the exemption. As one committee report noted: “Should the number of cases involving malicious use of physical force and mistreatment of prisoners particularly, increase to the point of concern by the legislature, a new policy on police misconduct will likely be developed.”
“The fact that the law hasn’t been modified since then means there must not be much cause for concern,” Graulty says now. “It seems like it has withstood the test of time. I think that’s a good indication of the reasonableness and wisdom of the law.”
But, as Civil Beat has reported in this series, lawmakers haven’t been reading the summaries, which also aren’t easy to find in legislative records. They now say they are surprised by the nature and extent of misconduct that has been going on.
The police union’s push to get the law changed wasn’t confined to the halls of the State Capitol.
SHOPO produced an 8-minute “training video” in 1995 to convince its membership that keeping disciplinary records secret was a good thing for the police force.
Honolulu entertainer Kimo Kahoano played a TV news anchor reading a scripted story about the misconduct of police officers. As the story unfolded, the “disciplined officers” were forced to confront their families and friends, their emotional and mental health suffered and they struggled with the reported public backlash to their misdeeds. In the video, one officer’s daughter is attacked on the playground by her schoolmates, her parents anguished over her bruises and tears. In the end, the officer is reinstated.
SHOPO’s point? Lots of trauma and embarrassment for well-meaning cops and their families who in the end are vindicated anyway.
Former City Councilman Jon Yoshimura was originally supposed to play the part of the newscaster in the video, but backed out just before filming began. Yoshimura was a former journalist and told The Honolulu Advertiser in a May 17, 1995, article that he had problems with the script.
“I don’t really recall what the script said, but there were incidents that the media would never report,” Yoshimura told the newspaper. “Also, the way the anchor person’s text was written was very inflammatory and not very objective. It didn’t accurately reflect the kind of items the media would find newsworthy.”
Yoshimura also said he felt “obligated” to be in the video because SHOPO had endorsed him and given money to his campaign in the previous election cycle. He also said the video was couched as a public service announcement.
As SHOPO business manager Michael Joy promised, the fight to keep disciplinary records secret transformed the union into what is now arguably one of Hawaii’s biggest political powerhouses.
Its “rise from the ashes,” as he deemed it, can be tracked in state campaign finance records. As reported in a 1995 Honolulu Advertiser article, SHOPO was a minor player in 1992, contributing only $600 to political campaigns and spending another $4,000 to advertise its endorsements. Two years later, as the court case continued and the battle was switching to the legislative arena, SHOPO paid out $73,844 in political contributions.
That was about triple the amount spent that year by the state’s largest public employees union, Hawaii Government Employees Association, the Advertiser reported. HGEA had 35,000 members at the time, SHOPO only 2,500.
Hawaii’s campaign finance records are destroyed after 10 years, state officials say. Some are online but not easily searchable. But in the 2012 election cycle, SHOPO’s political action committee spent more than $176,000 on state campaigns, with $33,315 going directly to candidates and much of the rest to advertising, according to Hawaii Campaign Spending Commission reports. SHOPO also gave to congressional candidates through direct contributions and independent expenditures, including $6,790 to Linda Lingle, $4,290 to Mufi Hannemann and $1,790 to Colleen Hanabusa.
In February and March of 1995, a year after Judge Lim’s historic ruling, the media and good government groups coalesced around the students to oppose passage of SB 171. So did the Hawaii Office of Information Practices.
OIP Director Kathleen Callaghan warned that the police officers who were getting suspended or discharged weren’t committing “minor or frivolous infractions.” Instead, they were using unnecessary force on prisoners and assaulting citizens, among other things, she said.
Hiding their identities, Callaghan said, makes it impossible to know if officers are repeat offenders and if disciplinary action is effective.
Christie Lee Williams, the head of the local student chapter of the Society for Professional Journalists, piggybacked on Callaghan’s arguments, saying that granting access to the names of bad cops “won’t sell more newspapers or generate higher television news ratings” but will “enhance the public’s confidence.”
“Beating up someone in the police cellblock is not an honest mistake,” she said. “Neither is falsifying records. It doesn’t matter how stressful or dangerous the situations police officers face. There’s no excuse for violating the public trust.”
Still, not many legislators opposed Rey Graulty’s bill. And even Sen. Rod Tam, who worked for SHOPO, was allowed by then-Senate President Norman Mizuguchi to vote on the measure after Mizuguchi ruled there was no conflict.
Rep. Terry Nui Yoshinaga was one of those who backed SHOPO, saying that she trusted police officers to protect her home and her family.
“Open government doesn’t mean that we destroy the people and institutions that have protected us in the name of openness,” Yoshinaga said. Misbehaving officers “have been weeded out,” she said.
The controversial measure cleared the full House on April 10, 1995. By then, editorial boards of both of Honolulu’s daily newspapers had railed against it. SHOPO and its supporters had gotten plenty of ink, too, particularly in op-eds submitted to the papers.
“It was pretty clear that they (SHOPO) had the political clout and the money to get the Legislature to do whatever they wanted as it related to this, and there were very few legislators to stand up to them,” Portnoy, the students’ attorney, said. “And we, being a volunteer lawyer and a few students, tried to do what we could. It wasn’t even David versus Goliath. It was a joke.”
With that, the measure landed on Gov. Ben Cayetano’s desk. A former criminal defense attorney, Cayetano was the students’ last hope.
Although Cayetano says now he was torn by the issue, in 1995 he was swayed by arguments that much of the misconduct in question was decisions made under stress. Cayetano agreed with the sentiment that cops are in a different position than other public employees,
“I don’t think this same right should be made available to people other than the police,” Cayetano is quoted as saying in a May 1995 Honolulu Star-Bulletin story. “This is one of the things that really troubles me because I’ve always held that one reason to support the police position is that the police are in a different position. They get abused. They get attacked. They have to make snap decisions.”
Cayetano allowed the bill to go into law without his signature. It took effect July 6, 1995.
Click here to read all the stories in Civil Beat’s special report, In The Name Of The Law.
Thursday: Oversight of police misconduct is lax
Read SB 171: