The Honolulu Police Commission is seeking more information to determine whether taxpayers should pay the legal costs for two officers accused of causing a car crash that seriously injured six people.

On Wednesday, commissioners debated whether HPD Officers Jake Bartolome and Erik Smith were acting within the scope of their employment when they engaged in a high-speed pursuit that resulted in a crash in Makaha on Sep. 12, 2021.

Bartolome and Smith have since been named as defendants in three lawsuits filed by attorneys representing the occupants of the vehicle that crashed at the intersection of Orange Street and Farrington Highway. All three lawsuits allege that the officers caused the crash then left the scene and failed to provide aid.

Police Commission
The Honolulu Police Commission will hold a contested case hearing to decide if two HPD officers will get a city-funded legal defense. Honolulu Police Commission

Bartolome and Smith have since requested that the city provide legal representation — a decision that falls on the police commission to determine whether an officer’s actions were done in performance of their job, which would entitle the officers to city attorneys.

However, commissioners were unable to come to a conclusion during Wednesday’s meeting despite a recommendation from the Department of Corporation Counsel for the commission to approve the officers’ requests for legal representation in the first of the three lawsuits.

Commissioner Doug Chin initially agreed with the recommendation and suggested that the city should represent Bartolome because he was on duty, working his shift and in an area where he was authorized to work.

“I am going to make a motion that we grant legal representation for Officer Bartolome for now and then I’ll go on to the next guy (Smith) after that,” Chin said.

Commissioner Jerry Gibson seconded Chin’s motion, but Commissioner Ann Boticelli responded by raising questions about what “scope of employment” actually means, citing news coverage following the incident and surveillance footage that shows the officers pursuing the vehicle with their lights and sirens off.

“That seems to me, from my layperson’s perspective, outside of their duty for public protection,” Boticelli said. “So I would appreciate more information on what that exact clause means.”

Commissioner Richard Parry noted that the commission in the past has denied legal representation for officers who were on the clock, including one officer who forced a homeless man to lick a urinal and another officer accused of raping a woman while he was on duty.

Parry also questioned whether the commission has any wiggle room when an officer is on duty in an area they are authorized to work in.

“In one way you could interpret that we don’t have any discretion,” Parry said. “But the charter, or our rules, gives us an ability to make a decision … and in a case like this, it seems to me that you’re in that really gray area of saying were these guys really doing police work.”

Ultimately, the commissioners decided that they would hold a contested case hearing to determine whether they would grant Smith and Bartolome legal representation.

Commission Chair Shannon Alivado told Civil Beat that the date of the hearing will depend on the availability of the officers and commissioners.

A contested case hearing is a quasi-judicial proceeding held by the police commission in which the burden of proof is on the police officer to provide evidence to support the request for legal counsel.

The seven-member commission will then either accept or deny the officer’s request with a majority vote, a decision that can be appealed by the officer.

Makaha Crash
The crash allegedly occurred after a high-speed police chase at the corner of Farrington Highway and Orange Street. Hawaii News Now/2021

The lawsuit in question was filed last September by attorney Eric Seitz on behalf of Dayten Gouviea, a teenager paralyzed from the waist down following the crash, and his parents.

Seitz told Civil Beat that he does not think the city should represent Bartolome and Smith because of potential conflicts of interest after both the officers and the city were named as defendants.

In an answer to Seitz’s complaint, attorneys responding on behalf of the city also gave notice that they may use the defense that the officers were not acting within the scope of their employment, which would shift blame from the city.

Seitz said those same attorneys should not also be representing Smith and Bartolome.

“As far as I’m concerned, all these cops acted atrociously and I think that the City and County should not represent them,” Seitz said. “They should be required to go out and get outside counsel and even if the City and County does provide counsel, they should have their own lawyers because there are very serious conflicts of interest.”

Last October, Seitz filed a motion to disqualify a city attorney representing three police officers and the city in a police shooting lawsuit after the attorney argued that the officers were not acting within the scope of their job.

In December, a judge kicked the city attorney off the case for creating a conflict of interest and Seitz said he is prepared to do the same in the Gouviea case if the situation arises.

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