An arbitrator’s decision that allowed a Honolulu police sergeant to keep his job even after he was fired for repeatedly punching his girlfriend in a Waipahu restaurant must be released publicly, a court ruling issued Tuesday says.
But Cachola was reinstated with back pay by an arbitrator four years after the incident. The department and the city were set to release the decision, but the state police union — the State of Hawaii Organization of Police Officers — sued to keep it secret.
Civil Beat, which had filed a public records request for the report, intervened in the case and on Tuesday, First Circuit Court Judge Jeffrey Crabtree agreed with the city, HPD and Civil Beat that the report was a matter of “significant public interest.”
When Civil Beat — and the public — will actually get the report remains to be seen — SHOPO is likely to appeal the decision, which could keep it under wraps for months longer, if not years.
Although misconduct records including arbitration reports for other public employees in Hawaii are publicly available once discipline becomes final, police officers are exempted from that element of the public records law unless they have been terminated. In June 2016, the Hawaii Supreme Court, ruling in a different case brought by Civil Beat seeking police disciplinary records, ruled that police officer misconduct files must be made publicly available if the public’s interest in knowing about the misconduct outweighs the privacy interest of the officer.
Crabtree cited that Supreme Court ruling, as well as another state law requiring the release of adjudicative orders such as arbitration decisions, in finding that the Cachola report must be made public.
“The more serious the misconduct, the more likely the public interest outweighs the individual privacy interest,” Crabtree said. “Here, the alleged misconduct was extremely serious: the use of unauthorized, unjustified, and potentially criminal physical force against another person, completely unrelated to any official law enforcement duties.”
Crabtree noted that proper performance of a law enforcement officer’s duties, whether on the job or in a private situation such as in this case, are of legitimate public concern.
Moreover, he said, “there is a significant public interest in knowing how HPD supervises alleged misconduct, responds to misconduct allegations, and investigates alleged misconduct.”
“The court finds that as a matter of law, the public interest in disclosure far outweighs the privacy interest.” — First Circuit Court Judge Jeffrey Crabtree
In the Cachola case, officers who responded to the scene and questioned Cachola and his girlfriend about the attack also were under scrutiny for the way they handled the call.
Crabtree said he reviewed more than 900 pages of records and filings in this lawsuit, including the 30-page arbitration report, a closing report and the full investigative record. He concluded that “little of the conduct described in these records was of a truly personal, private, or intimate nature.”
Much of the incident played out in front of witnesses in the restaurant, he said.
“The court finds that as a matter of law, the public interest in disclosure far outweighs the privacy interest,” he said.
Crabtree also said he intends to rule on the release of the other documents — the closing report and the full investigative report — within the next week or so.
Attorneys representing SHOPO couldn’t be reached for comment Tuesday.
But Brian Black, executive director of The Civil Beat Law Center for the Public Interest who argued the case for Civil Beat, said he expects SHOPO will appeal, delaying the public’s ability to understand why an arbitrator decided Cachola should be reinstated.
“Given how clearly most people would look at this and see how it needs to be disclosed, it’s unfortunate that these types of cases are taking years” to produce the information for public inspection, he said.
This year, House Bill 285 seeks to lift the exemption and bring police under the same rules as all other public employees. It passed the House Labor Committee and is awaiting a hearing in the House Judiciary Committee, which it must receive by March 1 to remain alive this session.
Black said HB 285 would make it much easier to access police disciplinary files, including arbitration reports.
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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Patti Epler is the Editor and General Manager of Civil Beat. She's been a reporter and editor for more than 30 years, primarily in Hawaii, Alaska, Washington and Arizona. You can follow her on twitter at @PattiEpler, email her at firstname.lastname@example.org or call her at 808-377-0561.