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When Honolulu police officers face termination for breaking the law or otherwise violating department policies, they often are presented with a choice.
Stick out the disciplinary process — which can include criminal trials, administrative hearings and a lengthy union grievance proceeding — or quietly resign.
And while the public is typically left in the dark about the details of officer wrongdoing under any circumstances, a resignation dims the lights even more.
For years the Honolulu Police Department has refused to release information about officers who resigned in lieu of termination. HPD officials have relied upon a clause in the state’s public records law that says details about officer misconduct, including an individual’s name, can only be released after they are discharged.
Now there are questions about whether HPD has been misinterpreting the law, and has been withholding details about officer misconduct that should have been made available all along.
“I think it’s clear enough that this stuff should be public,” said Brian Black, a Honolulu-based attorney who specializes in First Amendment law and open government. “You can’t just resign and then say that everything is private.”
Just this week, it was revealed that HPD issued 17 discharge notices to officers in 2015 for various misconduct and criminal infractions, including drunken driving, sexual assault and kidnapping. One officer was accused of handcuffing a man, driving him to an undisclosed location and threatening him.
But a spokeswoman for HPD said she could only release the names of two officers, Gerren Silva and Kinohi Warrington, because six others had resigned before their discharges were made official and the remaining nine had pending appeals.
Silva and Warrington were both HPD recruits. Silva lost his job for “unnecessarily brandishing” an AR-15 assault rifle at a police station parking lot and squad room. Warrington was fired for getting into a car accident while under the influence of alcohol.
Black, executive director of the Civil Beat Law Center for the Public Interest, said the details about wrongdoing by other officers who resigned should be released as well, including their names.
“I think it’s clear enough that this stuff should be public. You can’t just resign and then say that everything is private.” — Brian Black, executive director of the Civil Beat Law Center for the Public Interest
He points to an opinion from the Hawaii Office of Information Practices — the state agency that oversees the state’s public records law — that says as much. That opinion is based on a case in which an analyst for the state auditor resigned before being disciplined for misconduct.
A staff attorney for OIP found that the public interest in disclosing the analyst’s misconduct outweighed any privacy interests that the individual might have had because that information “sheds substantial light” on the auditor’s performance and the functioning of the agency.
Black said he believes that same standard should hold true for police officers who quit before they are fired.
“The public has the same interest in that information as it does in officers who are subject to final termination,” he said. “And HPD’s position is inconsistent with OIP guidance.”
HPD officials said city attorneys are reviewing the matter.
Meanwhile, the Legislature is considering a bill that aims to lift some of the secrecy surrounding police misconduct.
Sen. Kalani English introduced SB3016 to get rid of the exemption in the public records law that protects bad cops from having information about them released publicly. Currently, the law states that officers are exempt from having details about their misdeeds made public unless they are fired.
No other state or county public employees are afforded that luxury.
The only information that comes out about officer suspensions is contained in a vague annual report to the Legislature that does not include names, dates or details about what led to the discipline.
English did not make himself available for an interview despite numerous requests from Civil Beat. Instead, the Senate majority leader’s staff issued a broad statement highlighting the chamber’s desire to improve government:
“The Senate is reviewing a number of measures that are in line with the four major themes of the 2016 Senate Majority Legislative Program; Mālama Aupuni (good governance) — encourages effectiveness, transparency, and accountability across all branches of government by insisting on high standards of conduct, proper training, and fair and reliable systems and procedures.”
English’s police transparency measure has the support of several colleagues, including Sens. Will Espero, Les Ihara, Russell Ruderman, Laura Thielen and Roz Baker. It will have its first hearing Thursday in the Senate Public Safety Committee.
If the bill passes there, it faces a steep challenge in the Senate Judiciary and Labor Committee, where it must gain the support of its chairman, Sen. Gil Keith-Agaran.
Keith-Agaran was one of only a two state senators endorsed by the State of Hawaii Organization of Police Officers union in 2014. He deferred a measure that was similar to SB3016 last year with little comment or public debate.
The senator said at that time that he wanted to see how the Hawaii Supreme Court would rule on a case involving the identification of suspended HPD officers and the release of their disciplinary records.
Civil Beat filed a lawsuit in 2013 after HPD 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 had been disciplined for assaulting citizens, falsifying police reports and interfering in investigations.
Hawaii Circuit Court Judge Karl Sakamoto sided with Civil Beat in 2014, saying that the records should be released. But the police union, the State of Hawaii Organization of Police Officers, appealed the ruling to the Hawaii Supreme Court before any of the disciplinary files were made public.
The state’s high court heard oral argument in June. A ruling is expected sometime this year.
Keith-Agaran did not respond to several requests for comment.