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The Honolulu Police Commission signed off on a new set of rules Wednesday that should make it easier for officers to get taxpayer-funded legal counsel when named as a defendant in a lawsuit or criminal complaint.
It’s an issue that’s roiled the commission for months, and in particular Commissioner Steven Levinson, a retired Hawaii Supreme Court associate justice.
He said that meant some officers probably had to pay their own attorneys fees even though they were entitled to have the tab picked up by the city.
The distinction really comes down to a handful of words and how lawyers interpret them.
City attorneys have been relying on an analysis that hinged on whether an officer was accused of committing an act of misconduct within the “course and scope of employment.”
The Police Commission, on the advice of city attorneys, have long used that standard.
But state law says that police officers should be entitled to legal representation if their actions were done in the “performance of the officer’s duties as a police officer.”
While that might not seem significant to the layperson, it’s been a big deal, at least to Levinson and another commissioner with a law degree, Loretta Sheehan, a former federal prosecutor who now works in private practice.
Both have said the “course and scope” analysis is more restrictive, and while it might protect the city from shelling out more money for attorneys’ fees, it’s contrary to the law.
This has led to some friction between the lawyer commissioners and the city’s Department of Corporation Counsel, headed by Donna Leong.
Similarly, there was disagreement about whether officerss contested case hearings, in which they argue to get legal fees, should be open to the public.
For years, city attorneys and the commission have held those hearings in secret during executive sessions that the media and public were not allowed to attend.
Again, Levinson and Sheehan believed that practice violated the law.
The issue came to a head in July when the commission was supposed to make a decision about whether to pay for the legal counsel for two officers caught up in an ongoing U.S. Justice Department corruption investigation.
Levinson and Sheehan threatened to walk out of the hearing if their colleagues decided to retreat behind closed doors per the advice of city attorneys.
They said such a decision would be a violation of the public’s First Amendment rights as well as a similar provision in the Hawaii constitution.
Members of the media had also protested the practice and filed a legal challenge.
But the change in commission rules Wednesday should head off future disagreements as it spells out that contested case hearings should be open unless there is a “compelling interest” that is somehow more important than the public’s right to attend.
The new rules, which must be signed by the mayor, are expected to take effect in February.