The Honolulu Police Commission’s plan to discuss the fate of Police Chief Louis Kealoha in a closed-door session is being questioned by attorneys who often represent the media and the public interest.
The commission is scheduled to meet Wednesday in executive session to consider what it should do about the chief. Kealoha is on paid leave after being notified by federal officials that he is a possible suspect in an ongoing FBI investigation into police corruption.
“The status of the Chief of Police should not be discussed behind closed doors,” Brian Black, executive director of The Civil Beat Law Center for the Public Interest, told the commission in written testimony submitted this week.
“When it comes to the fate of the person charged with maintaining public safety, law, and order on the island, everyone deserves to know what is happening,” he said.
But commission Chairman Max Sword called the matter a personnel issue that is more appropriate to be handled in executive session.
Still, Black suggested that holding the review in secret could be a violation of Hawaii’s Sunshine Law that requires most government meetings to be open to the public, except in the rarest of circumstances.
He emphasized the importance of allowing the public to see for themselves how the commission is dealing with serious allegations against a high-ranking police official.
“This Commission is the only government authority with the power to remove the Chief of Police,” Black said. “Transparency is critical to maintaining that public trust; the people must know the Commission carefully weighs the exercise of that authority for the good of the City & County of Honolulu. Backroom discussions are unacceptable.”
Kealoha is under federal investigation along with his wife, Katherine, a city prosecutor, and other police officers in a highly publicized case that involves allegations of conspiracy and public corruption. A grand jury has been meeting to consider whether, among other things, the Kealohas and police officers attempted to frame Katherine Kealoha’s uncle for stealing their mailbox. At the time, Katherine’s uncle and grandmother were suing her for financial mismanagement.
One former HPD officer has already pleaded guilty to federal conspiracy charges and is helping the prosecution.
The mailbox theft happened in 2013 but the situation blew up publicly in 2014 as Katherine’s uncle, Gerard Puana, went on trial for destruction of a mailbox, which is a federal crime. Since then, the controversy has been reported on extensively.
On Wednesday, according to the commission’s agenda, the closed-door talks regarding the chief will include matters related to the “hire, evaluation, dismissal, or discipline of an officer or employee” as well as issues that might be related to legal advice.
Sword, the commission chair, said Tuesday that he doesn’t expect to have any public discussion about the chief’s job status unless a decision is made during the executive session.
“It’s a personnel matter and we always have that in executive session,” Sword said. “We’ll discuss in open session what we’re going to do at the end of the meeting. But leading up to that we’re going to keep that in executive session.”
“It’s easy to hide behind a very technical interpretation of a provision in a statute. But there are overriding considerations that should ensure full public disclosure, or at least discussion, of these issues.” — Jeff Portnoy
Jeff Portnoy, a Honolulu-based media attorney with experience litigating public access cases, said the commission should be conducting its business in public, especially given the nature of the allegations against the chief.
But Portnoy said the commission can also make the argument that any personnel matter should be discussed in secret in large part because Hawaii courts have made personal privacy a priority.
“We run into this all the time. It’s one of the huge exemptions in the Sunshine Law,” Portnoy said. “I don’t think it’s good policy, but they do have the right to do that. … It’s easy to hide behind a very technical interpretation of a provision in a statute. But there are overriding considerations that should ensure full public disclosure, or at least discussion, of these issues.”
Black argues that the public interest outweighs any privacy interest the chief may have.
He noted that there is significant public interest in knowing how the police commission evaluates the chief and whether that evaluation is being done properly.
“How the Police Commission addresses this issue goes to the heart of the public interest,” Black said. “Is the Commission adequately monitoring the Chief of Police and has the Chief of Police been doing his job? The Chief of Police — no matter who holds that position — is a person too critical to the fabric of our community for these discussions to occur outside public view.”
Black told Civil Beat in an interview that he plans to attend Wednesday’s meeting.
“I’m hoping that the commissioners will seriously consider limiting the scope of any executive session discussion of the chief’s status,” he said.
Under state law, a two-thirds majority of the the seven-member commission must vote to enter into executive session.
Sword acknowledged that there are differing views among commissioners about having their deliberations in public but wouldn’t say where he stands on it.
Newly appointed Commissioner Steven Levinson, a former associate justice on the Hawaii Supreme Court, said that he’s confident the commissioners will follow state law governing executive sessions.
He also noted that no matter what happens Wednesday, the commission will not be able to fire Kealoha immediately.
According to the Honolulu city charter, the commission must make a formal charge against the chief in writing as well as afford him the opportunity to defend himself with a hearing before the commission prior to termination.
Levinson said he suspects that if the commission gets to that point a public hearing would be held.
“It’s my understanding that will happen during an open meeting,” Levinson said. “You’ll hear and see everything that we hear and see on the subject.”