Honolulu police officer Chanel Price was one of several officers who saw her colleague, Officer Geoffrey Thom, shoot 16-year-old Iremamber Sykap after a car chase that ended on Kalakaua Avenue.
When city prosecutors charged Thom with second-degree murder, Price was called to testify during his preliminary hearing about what she’d witnessed the day Sykap was killed.
In addition to acknowledging that she would have pulled the trigger if in the same position, she said she and other officers at the scene, including Thom, wrote their reports together with a union official present in the room. That official, she said, even reviewed her report before she turned it in.
The revelation was surprising, particularly to Honolulu Prosecuting Attorney Steve Alm, who had been openly criticized by the State of Hawaii Organization of Police Officers for pursuing criminal charges in the first place.
After a state court judge dismissed the charges against Thom and two other officers, Alm held a press conference in which he raised concerns about the Honolulu Police Department letting the officers cross check their reports.
“That procedure – getting together – would never be allowed in other cases involving suspects in any other crime,” Alm said. “That shouldn’t have happened here.”
The reason it did, however, is because of a provision in the SHOPO collective bargaining agreement. Any officer involved in a “critical incident,” such as a shooting death, is allowed up to four hours to meet with their union representative or their own attorney before filing a police report.
The SHOPO contract dictates much of how officers are investigated, not just for deadly force cases, but also misconduct and criminal behavior. Across the nation, activists, mayors and police chiefs have highlighted the power of police unions in their calls for reform, but the issue hardly gets any attention from policy makers in Hawaii let alone public discussion.
Now, the SHOPO contract, which expires this year, is currently under negotiation, but confidentiality agreements among the parties, which includes the state and all four counties, means that anything of public interest that might be on the table will remain secret until an agreement is finalized.
“Everything in the contract has been there for many years and it’s been working for us.” — SHOPO President Malcolm Lutu
SHOPO President Malcolm Lutu said contract talks have been moving slowly, and that the union has put forward a proposal but has yet to hear anything back from the employers’ side of the bargaining table. He said he doesn’t see any major changes to the contract in terms of how the collective bargaining agreement addresses issues, such as internal departmental policies, officer misconduct or disciplinary appeals.
“Everything in the contract has been there for many years and it’s been working for us,” Lutu said. “Right now all anybody cares about are the wages and officer retention and recruitment so that’s what we’re working on.”
The fact that the negotiations are taking place behind closed doors is concerning to Lesley Harvey, a small business consultant who has taken an active role advocating for more police accountability and racial equity in the islands.
Too often, she said, the community doesn’t realize that many of their concerns with how a department is run, particularly when it comes to reining in problem officers, stem from SHOPO’s contract.
“Unions are supposed to protect their members, but SHOPO’s contract effectively makes the county police departments’ disciplinary actions moot,” Harvey said. “Even when the departments want to weed out the so-called bad apples, SHOPO’s process has shown us that even for the officers who have served federal prison sentences or been found guilty of other egregious misconduct, that the departments really don’t have that power.”
Consultation Or Consent?
The SHOPO collective bargaining agreement gives broad authority for the union to insert itself into the day-to-day operations of Hawaii’s four county police departments.
The contract says that the union must be notified in advance of any changes that might affect an officer’s wages, hours or conditions of employment. The same is true for any modifications to departmental policies. After the union is alerted to the proposed changes, it can then force a meeting with the department.
In some cases, particularly those involving pay and benefits, the union must expressly agree before any changes are made. This is detailed under the “mutual consent” provision in the contract. In other cases, the fact that the union is consulted about a proposed rule change is enough to implement it. This process is described under the “meet and confer” sections of the contract.
There’s not always a clear delineation between when a department must simply consult with the union or seek its outright approval.
Take, for example, the Kauai Police Department’s implementation of body worn cameras in 2016. Then-KPD Chief Darryl Perry was an early adopter of the technology. Not only did body cameras improve police accountability by increasing transparency, he said, but video evidence also protected the officers from false allegations, particularly those involving accusations of inappropriate conduct and excessive use of force.
“I want the public to understand that this is a good thing and that we’re doing this for noble purposes,” Perry said at the time.
SHOPO, however, pushed back against Kauai and filed a complaint with the Hawaii Labor Relations Board, saying that Perry violated the “mutual consent” provision of its contract. When the board denied its claims, the union appealed the case in state court, arguing that KPD’s program needed SHOPO to sign off because body cameras changed workplace conditions by subjecting officers to “second-by-second scrutiny of their words and actions.”
The union lost its appeal, but its willingness to fight effectively caused other departments, including Honolulu, the state’s largest, to delay outfitting their own officers with body cameras.
Protecting Their Own
The SHOPO contract offers numerous special protections to police officers accused of misconduct or other criminal behavior, and places limitations on how they can be investigated for alleged wrongdoing.
For one, any accusation lodged against an officer from someone outside the department must be notarized and sworn to in writing, which, some say, creates a barrier for those filing a complaint. The requirement also eliminates the possibility that a complaint can be filed anonymously.
The Hawaii Women’s Legislative Caucus raised concerns about this provision after a 2014 incident in which Darren Cachola, an HPD sergeant, was caught on surveillance video in what appeared to be fight with his girlfriend at a Waipahu restaurant.
Cachola and his then-girlfriend have both said they were just playing around and an arbitrator reinstated Cachola to his job after he was fired by HPD based largely on their view of what happened.
But the incident sparked widespread debate about how HPD addresses domestic violence within its ranks and eventually led to a change in state law to exempt abuse victims from having to comply with the SHOPO contract when submitting their complaints against officers.
As the bill’s preamble stated, “The legislature is concerned that this requirement may discourage individuals in a domestic dispute with a police officer from reporting the abuse.” Lawmakers also worried that forcing a victim to put their complaint in writing was a form of re-victimization.
Once an officer is suspected of misconduct, the SHOPO contract guides how they can be investigated. For example, if a complaint is filed against an officer more than a year after an alleged incident, it cannot be investigated unless it involves criminal behavior, at which point the statute of limitations for the alleged crime would apply.
Officers must be notified in writing of any investigation and given fair warning of any interrogation. In criminal matters, the officer must be told whether they are a suspect before being questioned.
The SHOPO contract includes numerous provisions related to how officers can be questioned by internal affairs investigators, limiting both the scope of the interrogation and the length of time it can go on to 30 minutes or less. Detectives cannot threaten the officers with discipline or promise them any reward for their cooperation.
At no point can an officer be forced to take a polygraph test.
Looking For Loopholes
Not all internal investigation provisions are spelled out in the SHOPO collective bargaining agreement. The departments have their own policies and procedures that also limit the scope of investigations.
The Honolulu Police Department, for instance, implemented a policy that states that internal affairs investigators working for the Professional Standards Office in most cases only have 60 days to complete an investigation.
On occasion these self-imposed rules can work against the department, especially when trying to discipline an officer. For example, HPD tried to fire officer Nicholas Masagatani in 2015 after he was arrested and charged with sexual assault. Masagatani appealed his termination to a third-party arbitrator with the help of the police union.
The arbitrator, in his ruling, found that one of the reasons Masagatani should be reinstated was because the HPD investigators missed their own deadline by 27 days.
“The contract has the potential to have much further reaching impacts than just compensation alone.” — Lesley Harvey
In situations in which an officer is disciplined, the contract offers a robust appeals process that can end in third-party arbitration where more often than not punishments are reduced or overturned.
Arbitrators decisions are binding, meaning that in general they cannot be appealed.
The contract even gives SHOPO a say in how an arbitrator is selected, a process that critics say incentivizes arbitrators to make decisions in favor of the union so that they are chosen again in the future.
Even if an officer’s discipline withstands an appeal, they can still purge the record of it from their personnel file. Such “derogatory material” can be destroyed after two years at the officer’s request. Otherwise the department is required by contract to remove the information after four years, a process that can make it hard to track an officer’s disciplinary past.
Departments can also have their own internal policies for purging officers’ disciplinary records. Should an officer be issued a written reprimand, the contract allows for them to dispute the findings and include that in their personnel file.
In 2014, Civil Beat reported that HPD had destroyed the disciplinary file of Ethan Ferguson, an officer who had been fired by the department after he was caught lying to investigators about his whereabouts with an underage runaway.
Two years later Ferguson was arrested and charged for raping a teen on the Big Island while working as a conservation officer for the state Department of Land and Natural Resources.
State officials said that when they considered hiring Ferguson, HPD told them he had been fired, but never provided any details as to why. Officials at HPD, meanwhile, said they had warned the state not to hire him.
Obfuscation and opacity are built into the SHOPO contract, especially when it comes to officer misconduct.
The collective bargaining agreement includes a clause stating that any details about investigations involving officers who are disciplined or discharged should remain confidential. The union however, acknowledged in its agreement that such a requirement might not withstand scrutiny under the state’s public records law, which allows citizens to access officers’ disciplinary files in cases of suspension and discharge.
The Hawaii Supreme Court has already ruled that SHOPO’s collective bargaining agreement cannot subvert the state’s public records law when it comes to disclosing records of officer misconduct.
The union has also been successful in getting more money for officers who stay out of trouble. The “Standard of Conduct differential” can pay an officer upwards of $8,000 a year.
At this point, it’s uncertain if any of these topics are up for negotiation this year in Hawaii.
In cities such as Cincinnati, Ohio, officials have pushed for more accountability of police officers by changing the collective bargaining agreement to lengthen the amount of time suspension records must be maintained in personnel files and allowing a panel of three arbitrators to issue an anonymous decision so that they cannot be targeted as pro-management or pro-union.
A similar effort is underway in San Antonio, where voters were asked earlier in the year if they wanted to strip the union of its collective bargaining rights. The community-led ballot initiative failed by 2 percentage points.
Harvey said she doesn’t expect local officials in Hawaii to take a stand against SHOPO all on their own. Instead, she said it will be up to the community to press them into action on issues such as transparency and accountability.
“The contract has the potential to have much further reaching impacts than just compensation alone,” Harvey said. “The union has shown that its purpose has not been to enact reasonable efforts at reform, but instead to retain its power and maintain its position as the main decision maker.”
Read the SHOPO collective bargaining agreement here:
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