A Hawaii senator who is backed by the state’s powerful police union hit the brakes on a bill Friday that would have made public the names of officers suspended for misconduct.

The measure had support from several lawmakers, including Sens. Will Espero and Laura Thielen, who have advocated for more police accountability in response to a number of highly public cases involving officer wrongdoing.

But Sen. Gil Keith-Agaran, who heads the Judiciary and Labor Committee, deferred Senate Bill 497 with no discussion, effectively killing the measure in the current session. Keith-Agaran is one of only two senate candidates endorsed by the statewide police officers’ union in the 2014 elections.

“It’s disappointing,” Espero said after the hearing. “I wish we could have sent it over the House. I think it would have sent a strong message.”

HPD Honolulu Police Department.  18 feb 2015. photograph Cory Lum/Civil Beat

Most police misconduct records have been kept confidential in Hawaii for decades.

Cory Lum/Civil Beat

Senate Bill 497 would have overturned an exemption in the state’s public records law that allows county police departments to keep secret the names of officers who are suspended for misconduct. All other public employees are subject to public disclosure when they are suspended or fired. The only time officer names are released is when they are terminated.

Civil Beat examined the exemption and its consequences in a 2013 five-part investigative series, “In the Name of the Law.” The news outlet found that there is little accountability when it comes to officer misconduct. In fact, it’s rare that bad cops are fired, including in numerous incidents in which they themselves break the law.

Keith-Agaran, however, told Civil Beat after Friday’s hearing that it’s too soon for the Legislature to act. A case pending before the Hawaii Supreme Court will take up the issue after a lower court ruled last year that the names of suspended cops and details about the incidents should be made public. He noted that the measure is not dead. It’s only delayed until 2016.

“If the Supreme Court says the lower court was correct in reading the statute and says that there was no privacy right implicated then it’s settled,” Keith-Agaran told Civil Beat. “If the court rules, though, that the lower court was wrong then that clarifies that this is within the purview of the Legislature and then we can go back in and change the language.”

Civil Beat filed a lawsuit in November 2013 after the Honolulu Police Department refused to release the disciplinary files of 12 officers who had been suspended for 20 days or more for serious misconduct between 2003 and 2012. Those officers were disciplined for beating up citizens, assaulting co-workers, drunken driving and falsifying police reports. One officer received a 626 day suspension for hindering a federal investigation.

Hawaii Circuit Court Judge Karl Sakamoto ruled in February 2014 that police, like all other public employees, do not have a right to privacy when they get in trouble. Sakamoto based his ruling on a 1996 Hawaii Supreme Court decision that said essentially the same thing. He also cited a 1997 opinion by the Hawaii Office of Information Practices that concluded the public’s right to know about police misconduct outweighs any privacy interest an officer might have.

But SHOPO, the statewide police union, filed an appeal before HPD could release any of the records. The case has since been expedited to the state Supreme Court.

The union has been the driving force behind keeping officer wrongdoing under wraps. Although a case on police disciplinary records was pending before the Supreme Court in 1995, SHOPO lobbied lawmakers that year and succeeded in getting the exemption written into the law. Since then it has vigorously defended the privacy issue.

In fact, this year — as lawmakers seemed inclined to toughen laws requiring better oversight of police — the union organized dozens of officers, many from Hawaii County, to submit testimony opposing SB497. Most of the testimony follows the same line, that it would be embarrassing to the officers and their families to have their wrongdoing made public. They also argued that it could cause them to freeze up during life or death situations because they will be more concerned about getting in trouble than doing the right thing.

Keith-Agaran said deferral of the measure had nothing to do with the strong union opposition to the bill. He’s one of only two senate candidates endorsed by SHOPO, the State of Hawaii Organization of Police Officers, during the 2014 election. The other was Republican Richard Fale, who lost to Sen. Gil Riviere in November.

Keith-Agaran said SB497 should be approved if the Supreme Court sides with Sakamoto’s ruling because it will clarify the public records law. He was less certain as to what should happen if the court goes the other way, saying it will be open for debate among his colleagues.

“The status quo for most employees is disclosure and for the police the difference is there’s no disclosure, for disciplinary purposes, short of dismissal,” he said. “So the question that will come up is: Are the police so different in terms of the kind of work they do and the kinds of pressures they’re under that they are entitled to different treatment.”

He refused to say how he would vote on the measure should the Supreme Court side with SHOPO.

Hawaii Sen. Laura Thielen, who introduced SB497, said it’s reasonable for Keith-Agaran to delay decision-making on the bill until the high court has an opportunity to act on the Civil Beat case.

If the court sides with SHOPO, she said, the Legislature should still pass the measure next year because she doesn’t believe it’s fair that county police officers can remain anonymous when they get in trouble when all other public employees are subjected to disclosure.

“We need to have parity and public access to this information, I think it’s imperative,” Thielen said. “We’ll wait to see what the Supreme Court says to see if we need to bring the measure back.”

 

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