The Hawaii Supreme Court has agreed to consider whether the Honolulu Police Commission was right to secretly craft a severance package that included a $250,000 payout for former Chief Louis Kealoha.

The Civil Beat Law Center for the Public Interest filed a lawsuit in January 2017 challenging the commission’s refusal to hold discussions of the severance agreement in public. The state’s highest court agreed Monday to take up the issue directly after a lower court dismissed the case.

Kealoha was the target of a highly publicized federal investigation into corruption and abuse of power by the chief, his deputy prosecutor wife and at least five other Honolulu police officers. They have been indicted on numerous charges and are awaiting trial, with the exception of one officer who has pleaded guilty and is cooperating with the FBI.

In January 2017, the police commission met several times behind closed door to discuss a separation agreement for Kealoha, eventually allowing him to retire in good standing with his pension and medical benefits intact. The deal included a $250,000 cash payment that he would be required to repay if he was convicted of a felony within six years.

Even the commission’s 5-1 vote on the package was done in secret.

HPD Chief Louis Kealoha gestures as HPD Commissioner Sheehan questions him. 7 sept 2016
Former Honolulu Police Chief Louis Kealoha appeared before the Honolulu Police Commission in 2016 to answer questions about the federal investigation. Cory Lum/Civil Beat/2016

Brian Black, executive director of the Civil Beat Law Center, formally objected to the closed door sessions, saying they violated the state’s Sunshine Law. The commission rejected his request for openness and he filed suit.

Black said Tuesday the Supreme Court’s decision to consider the case gives the court the opportunity to clarify a number of things about the Sunshine Law that will have significance beyond just the Kealoha case.

Public agencies often take up employment issues and other matters in executive session, saying they have to do that because they’re dealing with, for instance, personnel matters. That was what the police commission said, too — that it was required by law to discuss Kealoha’s deal privately because it was a personnel issue.

The police commission also said its members could be criminally prosecuted if they agreed to discuss the chief’s severance package in open session.

But Black argued that the Sunshine Law says only that a “board may hold an executive meeting closed to the public,” not that it must. He said state law actually requires a balancing of the public interest and privacy concerns and if a matter is found to be of high public interest the debate over it should be held in public.

Honolulu’s highest-ranking police official had just been given a target letter by the FBI and there was a real question of whether he should even be retained as police chief, much less allowed to retire with a hefty cash payout, a situation that was of extreme public interest, Black said.

The Honolulu City Council also wanted to know what the commission was thinking and was also rebuffed, Black noted.

He pointed to other high-profile personnel departures that the public wanted to know more about, including Dan Grabauskas’ resignation as executive director of the Honolulu Authority for Rapid Transportation and the departure of University of Hawaii president M.R.C. Greenwood as just a couple of examples.

“It’s a common problem,” Black said. “The boards feel there is no balance (of the public interest) required when it’s a personnel issue.”

Besides asking the Supreme Court to decide whether personnel matters require a balancing of the public interest against the privacy of the individual, Black wants the court to clarify whether boards are actually required to hold closed sessions in certain instances or whether that’s just an option, and whether board members themselves could be criminally prosecuted if they vote to hold an open meeting.

He also wants the high court to weigh in on procedural issues that must be followed when someone challenges an executive session and once an executive session is over what the board is required to say publicly about what just happened.

“All of these questions go to the heart and spirit of the Sunshine Law,” Black wrote in his application to the Supreme Court, noting that commission members are not elected and thus not accountable to the public.

“That relative independence from politics serves the public only when balanced with greater transparency. The Sunshine Law provides accountability for these boards by making their deliberations public,” he said. “Yet here the Commission spent $250,000 in public monies with no explanation or public deliberation, refusing even to answer questions from the City Council.”

The Supreme Court is expected to schedule a time for oral arguments in the case.

The Civil Beat Law Center for the Public Interest is an independent organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat. Civil Beat Editor Patti Epler sits on its board of directors.

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