With former Deputy Prosecutor Katherine Kealoha now behind bars, you might think the Honolulu Prosecutor’s Office has undergone major reforms to ensure an employee could never again use city resources for a criminal conspiracy.
But you’d be wrong, according to a city audit released on Saturday.
“Despite the revelations of Katherine Kealoha’s misconduct and abuse of her position in the prosecuting attorney’s office, we found that the department has not made any substantive changes to its policies or procedures,” the audit states.
When the scandal was playing out, Prosecuting Attorney office policies and procedures failed to identify Kealoha’s criminal conduct, which included a conspiracy to frame her uncle for stealing her mailbox, her effort to protect her brother from a drug investigation and her alleged role in fixing a speeding ticket.
Supervisors were not providing enough oversight, the audit said, and the department’s reliance on self disclosure of conflicts of interest was ineffective, vague and did not promote transparency and accountability.
Unfortunately, that’s still the case today, the audit found. Acting Prosecutor Dwight Nadamoto implemented an anonymous complaint box and a department hotline to encourage employees to report misconduct. However, those responses fall short of making systemic changes to prevent, identify and respond to employee misconduct, the audit said.
“Relying on fellow employees to police each other and report misconduct after-the-fact is not sound management practices,” the audit stated.
The audit found that the department is more focused on its heavy workload than ensuring its staff is following professional standards; that the department’s policies and procedures are not designed to monitor for misconduct or errors; that supervisors fail to sufficiently monitor attorney performance; and the system for handling internal complaints is inadequate.
The report was the result of a resolution sponsored by Councilman Ron Menor. He also requested an audit of the Honolulu Police Department, which was released on Thursday.
In a tense exchange over a year ago, Menor reprimanded the acting prosecuting attorney for not doing enough to identify the faults in his office that had allowed Kealoha to use her position to commit felonies. Nadamoto told council members he had not launched an internal investigation or analyzed federal prosecutors’ findings.
“The federal government has done an outstanding investigation. They left no stone unturned in investigating Mr. and Mrs. Kealoha,” said Nadamoto. “We are glad that it has been done.”
Nadamoto lost the August primary election to keep his job with only 5% of the vote. The winner, former judge Steve Alm, who campaigned on a message of restoring trust, takes office in January.
In response to the audit, the Prosecuting Attorney’s office said it did not completely agree with the findings but acknowledged it must restore public confidence and trust that was lost because of the Kealoha scandal.
An unsigned letter from Nadamoto’s office states the department disagreed with the audit’s implication that the office was not motivated to change after the “highly publicized misdeeds of one specific deputy.”
“Policies were changed, anonymous reporting options were developed, training continues, complaints are investigated and conflict cases continue to be referred to the Attorney General’s office, where appropriate,” the letter states.
“Could more be done? Yes. Was nothing done? No. The Kealoha matter has cast a long shadow on (the Prosecuting Attorney’s office) and the many good, hard working deputy prosecutors who have endured relentless scrutiny, fairly or not. Characterizing (the Prosecuting Attorney’s office) as needing motivation to prevent future misconduct is unfounded.”
When it comes to employee supervision, the auditor found that efforts are hampered by a high caseload volume.
Over the past five years, the total number of cases the office accepted has increased 75% – from 16,348 cases accepted in fiscal year 2015 to 28,635 in fiscal year 2019. In that time, staff vacancies increased by 17%, from 54 to 63.
“There is personal pressure caused by individual attorney workloads and the need to move cases through the process of charging, resolving, and/or sending cases to prosecution,” the audit states.
“Supervisors have little time to effectively supervise or track all the cases. As a result, supervisors rely on their relationship with subordinates and trust their staff to self-manage administrative tasks that include monitoring and oversight,” it added.
The lack of supervision hampers the department’s ability to “identify potential misconduct, retaliation, favoritism, or abuses of power,” the audit said, adding that the heavy workload doesn’t “absolve management from its supervisory duties.”
The audit also noted inconsistent supervision around the approval of plea bargains. Some supervisors orally discuss cases with attorneys while others review documentation before approval of plea deals. The auditor found one instance in which a case had no documented approval at all.
“The lack of standardization leaves the plea bargaining process vulnerable to staff attorney misconduct and errors in judgment,” the audit said.
In Circuit and Family Court cases, the office is failing to complete case evaluations, the audit said. Supervisors are supposed to use these to evaluate how a case was handled and to identify any missteps or actions that need correction. In one instance, the case evaluation was not submitted to management for review until two years after sentencing, according to the audit.
The lack of oversight in the department extends to the top job in the office, the audit found.
Prosecuting Attorney Keith Kaneshiro has been making $176,688 annually while on paid leave since March 2019 when he received a federal target letter.
It’s an elected position that is not subject to control or oversight by the mayor, City Council or any commission. A Honolulu prosecuting attorney can only be removed from office by impeachment or recall. The Hawaii Supreme Court heard arguments in a case seeking to impeach Kaneshiro in September, but justices have not yet issued a ruling.
The auditor found that in other cities, top prosecutors are subject to formal performance evaluations on a regular basis before city councils. Honolulu could establish a commission on prosecutorial conduct to provide independent oversight to elected prosecutors, it said.
“The role of the prosecuting attorney is the most important role to fairly enforce criminal statutes in the City and County of Honolulu,” the audit stated.
Another major problem cited by the audit relates to conflicts of interest, with no policy outlining how to identify them, report them or how to avoid them.
“We found that (the Prosecuting Attorney’s office) conflict of interest practices are passive and reactive, and rely on the voluntary disclosure by staff,” the audit states.
In response to the audit, Nadamoto’s office said it relies on attorneys to follow ethics rules that all lawyers are required to adhere to. Kealoha had a duty to follow those rules, and she didn’t, the letter stated.
“No department affirmation, oath, policy or procedure would have changed that,” it said.
Another major concern in the audit is that the prosecutor’s office has no specific policies to address attorney misconduct.
Management has a duty to report attorney misconduct to the Hawaii Office of Disciplinary Counsel. However, the Honolulu Prosecutor’s Office did not file a single report with the ODC between fiscal years 2015 and 2019, according to the audit.
“There is no guidance from management that attorneys or supervisors should be aware of the possibility of misconduct, or how to identify it and report it as necessary to management for review and resolution,” the audit stated.
The audit noted that other cities have specific procedures for addressing attorney misconduct and suggested Honolulu should do the same.
“We believe that having a formal misconduct handling process that routes misconduct complaints to disciplinary counsel would help management identify and respond to internal misconduct similar to Katherine Kealoha(‘s),” it said.
The prosecutor’s office’s process for handling complaints in general is also informal and inconsistent, with no written guidelines, the audit found after reviewing five years of records covering 65 internal complaints.
Most complaints were about workplace issues, including hostile work environments, harassment and discrimination. Several one-time complaints related to an unauthorized use of access, a breach of a confidential agreement, insubordination and performing work-related duties on compensatory leave.
“Department administrators arbitrarily decide each time how to handle a complaint rather than follow set guidelines for assessing, reviewing, investigating, and resolving complaints,” the audit found.
The audit found that four complaints that were handled internally concerning hostile work environment, harassment, and discrimination were not sustained due to lack of evidence. “However, there is no formal criteria or guidance for either the reviewer or the complainant,” the audit said.
The number of complaints about hostile and disrespectful work environments – 28% of complaints in five years – “may indicate serious concerns about workplace safety,” the audit stated, but it found no evidence that management sought to change its policies to improve the environment.
Overall, the audit said the office needs to do better and noted that there is an opportunity for Alm, the newly elected prosecutor, to consider its recommendations.
“The department needs to be motivated to make changes necessary to identify and prevent misconduct,” it said.
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