Two Honolulu police commissioners threatened to walk out of a public meeting Wednesday after arguing their colleagues were violating the First Amendment and state law requiring open governmental proceedings.
At issue was whether the Honolulu Police Commission should approve taxpayer-funded legal counsel for two officers, Minh-Hung “Bobby” Nguyen and Daniel Sellers, who were recently named in a lawsuit related to an ongoing corruption and abuse of power investigation.
Commissioners Loretta Sheehan, a former federal prosecutor, and Steven Levinson, a retired state Supreme Court justice, believed that the Nguyen and Sellers’ hearings should be public under the First Amendment and the Hawaii state constitution.
Sheehan and Levinson are the two newest members of the commission, having been appointed by Mayor Kirk Caldwell in the past year as the federal corruption probe into former Chief Louis Kealoha was emerging into the public arena. Both have made an effort to shake up the commission’s historic way of doing business, which has long been with little public scrutiny.
Wednesday’s hearing was a good example of the two legal experts trying to prod their colleagues into a different way of operating. They supported their arguments of constitutional violations with federal and state case law, including a 2004 decision by the Hawaii Supreme Court that Levinson was a part of.
Levinson quoted a ruling that said, in part, that “Democracies die behind closed doors.”
But their colleagues, Chairman Max Sword, Eddie Flores, Cha Thompson and Luella Costales, were unmoved. They voted, with the approval of attorneys from the city’s Department of Corporation Counsel, to close the proceedings to the public.
The decision spurred heated debate about government transparency and the state of democracy in the Aloha State. It also created a situation in which Levinson and Sheehan might not participate in future proceedings should the commission continue holding closed-door proceedings.
“It would be illegal for this body to exclude the press and the public,” Levinson said. “And I am willing to tell you right now that I will not participate in a closed contested case hearing.”
Sheehan described it simply as “unconstitutional.”
Neither of the commissioners had to follow through on their threats, however.
After the commissioners voted to close the proceedings, Nguyen’s attorney, Randall Hironaka, said his client changed his mind about having his contested case hearing conducted in secret.
Both Nguyen and Sellers are caught up in the Justice Department investigation of Kealoha and his wife, Katherine, a deputy county prosecutor.
Hironaka told the commissioners that he wanted a “full strength” commission to make the decision about Nguyen’s legal fees.
The commission then voted 4-2 against providing Nguyen with legal counsel. Sheehan and Levinson both voted in favor of Nguyen’s request.
Sellers’ case, on the other hand, never made it to a hearing.
Sellers’ attorney, Richard Sing, asked that his client’s contested case hearing be conducted in private. But once it became clear and Sheehan and Levinson would not participate, Sing pleaded with them to take part in the proceedings.
“I would respectfully ask those who might leave to reconsider,” Sing said. “We very much want you to hear Detective Sellers’ story. (But) I understand that there are lofty issues at play here and they’re not issues that we’ve had a long time to deal with.”
Sing’s argument wasn’t particularly persuasive, although the commissioners did allow him some time to come up with a compelling argument for why he should be allowed to make his client’s case in private with both Sheehan and Levinson in attendance.
But Sheehan and Levinson made clear that they require a high standard.
“In my opinion it would be unconstitutional for your client’s contested case hearing to be closed to the press and the public,” Levinson said, “And I’m unwilling to participate in an unconstitutional proceeding.”
Sheehan took a similar stance, even though she said she “very much” wanted to hear Sellers’ argument as to why he deserved having his legal fees paid for. She also made clear that she had a duty to uphold the law.
“I represent the public,” Sheehan said. “I’m a volunteer here and it is my desire to make sure I follow the law in everything I do.”
The commission’s decision to close Nguyen and Sellers’ contested case hearings to the public didn’t just perturb Sheehan and Levinson. It drew public objections from several members of the media, including Civil Beat and the Honolulu Star-Advertiser.
At the beginning of Wednesday’s meeting Star-Advertiser reporter Gordon Pang read testimony written by his newspaper’s managing editor, Ed Lynch, urging the commission to be transparent about Nguyen and Sellers’ requests for legal counsel.
Lynch’s testimony noted that the Star-Advertiser had consulted with an attorney, who determined there was no legal basis for the commission to hold closed proceedings. His testimony said that doing so would “set dubious precedent that would be subject to legal challenge.”
“Whether or not to spend public funds to defend public employees is a public matter, pure and simple. This should always be the case,” Lynch wrote. “But when you consider that these two cases involve a high-profile investigation of the former chief of the Honolulu Police Department, the public’s right to know far outweighs the abundance of caution that the commission appears to be exhibiting.
“Closing discussion, debate and decision-making in these two cases flies squarely in the face of the First Amendment and open government.”
Chairman Max Sword dismissed any concerns about opening the city to more liability after Wednesday’s hearing when talking to the press about the commission’s decision.
He noted that the city had always held contested case hearings for officers behind closed doors, and that debating whether to have them opened up public scrutiny is “new to us.”
“I just think that the police officers have the right to have their deliberations private,” Sword said. “What did the lawyers call it? Due process. I gave them (that) opportunity.”
View the police commission meeting: