State legislators say a bill that would have required county police departments to release details of misconduct when an officer is suspended as well as fired was too complex to finish this session. 

Now, unlike other public employees, officers who are disciplined enjoy a veil of privacy while their cases are investigated by the department or are going through a similarly secretive union arbitration process. Police departments must disclose records on those who are ultimately discharged but not those who are suspended.

House Bill 285 sought to change that by subjecting police to the same disclosure requirements other public employees adhere to.

“They wanted amendments,” Sen. Clarence Nishihara said, referring to the state House. “But time became the culprit.”

Kauai Police Dept signage on police vehicle.
The Kauai Police Department would be one of four county police agencies required to disclose more disciplinary information if HB 285 had passed. Cory Lum/Civil Beat/2019

Rep. Chris Lee told Civil Beat on Friday that he was assigned to the bill just a few days before a crucial deadline for bills on Thursday and was asked to look at several issues that could complicate HB 285.

“We get only one crack at this,” Lee said. “Rather than everything getting swept under the rug, how can we get some transparency there.”

He said he needed to figure out how this new law would jive with existing state laws and the procedures each county police department already has in place. He said he also considered how the bill would affect the departments going forward, as well as how it could affect current police investigations and union arbitrations.

“There’s a lot of working parts there,” he said.

The bill came to a conference committee late, state lawmakers said, and rather than rush everything, legislative leaders decided to put it on hold til next year.

“I think this is the kind of issue, if we are going to do it, we should do it right,” Rep. Aaron Johanson, the House conference committee chair, told his counterpart Nishihara Thursday night.

Johanson said during a committee meeting Thursday that he considered moving forward with one of the House’s version of the bill which required the chief of each county police department to disclose information on cops once they were suspended or fired.

The Senate changed that to include a starting date — March 2020 — for the requirement to disclose information about suspensions to take effect and to include the names of officers in the annual summaries to the Legislature beginning with the 2021 session.

Johanson was out of the office early Friday afternoon and couldn’t be reached, but Nishihara told Civil Beat that the Senate didn’t plan on making any further changes to the bill during the conference committee hearings.

“If the House really wanted to get it passed they wouldn’t have waited so long to hear it,” Nishihara said, adding that he doesn’t think Johanson or Lee wanted to kill the bill.

Nishihara also said that State of Hawaii Organization of Police Officers, the police union, had been pressuring lawmakers for some time on the bill.

Hawaii’s police union strongly opposed HB 285. Nathan Eagle/Civil Beat/2013

Nishihara said that SHOPO believes publishing the names of bad cops could hurt morale, embarrass them and possibly lead to recruitment trouble for the police departments.

“I don’t know how valid that is, but that is their argument,” Nishihara said.

Similar bills to close the disclosure exemption for police officers, which was put in place in 1996, have been introduced in the Legislature since at least 2014, primarily championed by former Sen. Will Espero. Two sessions ago, lawmakers agreed to require a bit more information on the annual legislative summaries, including whether the incident had been referred for prosecution and whether a grievance procedure had been initiated or concluded.

Since 1996, the Hawaii Supreme Court has ruled on the issue a couple of times, including finding that a union contract does not take precedence over Hawaii’s public records law. More recently, in 2016, the high court ruling in a case brought by Civil Beat found that disciplinary files can be made public if the public’s interest in disclosure outweighs the privacy interest of the officer.

But the effort to bring police in line with other public employees when it comes to disclosure of misconduct and disciplinary records has failed year after year at the Legislature, largely due to pressure from the union.

SHOPO has been lobbying heavily on HB 285 this year as well.

The union president, Malcolm Lutu, submitted seven pages of written testimony on HB 285 in which he first outlined several incidents that endangered the safety of police officers in the state before explaining SHOPO’s stance against the bill.

“Publicly disclosing an officer’s name adds absolutely nothing to the multi-layered disciplinary procedures and protocols that are already in place which holds each and every officer responsible for his/her actions under the highest scrutiny,” Lutu said.

Brian Black, executive director of the Civil Beat Law Center for the Public Interest, has also been lobbying in favor of the bill’s passage.

Black and the state Office of Information Practices were among numerous supporters of HB 285.

“The long history of police discipline reflected in the annual legislative reports shows that suspended police officers have committed exceptionally troubling conduct,” Black said in written testimony to the Senate Judiciary Committee in March. “The public deserves clear and timely access to information about suspended police officers.”

The inaction on HB 285 comes in the same week as Darren Cachola, a Honolulu police sergeant, was charged with domestic abuse and subsequently lost his police powers.

Cachola was previously investigated for a 2014 incident in which he repeatedly punched his girlfriend outside a Waipahu restaurant. He was put on leave, but got his job back last year after arbitration.

Civil Beat politics editor Chad Blair contributed to this report.

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