HAWAI`I POLICE DEPARTMENT
OFFICE OF THE POLICE CHIEF
POLICE CHIEF LAWRENCE K. MAHUNA
JULY 18, 2005
A settlement agreement was made and entered into on the 20th day of April 2005 in the matter of the State of Hawai`i Organization of Police Officers (SHOPO), complainant, vs. the Honorable Harry Kim, Mayor, County of Hawai`i, and the Hawai`i Police Department. This action was taken before the Hawai`i Labor Relations Board (HLRB), State of Hawai`i, Case No. CE-12-555.
This incident arose out of two police commissioners attending an Administrative Review Board (ARB) hearing in Kona on March 12, 2004. This was not done with the permission of the employer/Police Chief and stemmed from a misunderstanding that had occurred with the ARB chairman. The employer was fully aware that under Article 14, of the collective bargaining agreement, Changes in Departmental Rules, a written notice had to be furnished by the employer to the Union and the respective Union chapter chairperson of the employer’s intention to make changes in departmental rules, policies or procedures that would affect the working conditions of employees, etc. This article also gave the Union the opportunity to meet and confer on the proposed changes.
SHOPO on March 17, 2004, filed a prohibited practice complaint with the HLRB alleging various violations of the Collective Bargaining Agreement, to include:
(1) Permitting one or more police commissioners to be present at an Administrative Review Hearing; and
(2) That during the course of this review hearing, confidential information was not kept confidential, as specified by the terms of the CBA; and
(3) That the Employer violated Articles 1, 12, 13, 14, 28, and 35 of the applicable Collective Bargaining Agreement (CBA) and/or Chapter 92F, HRS, by the Hawai`i Police Department’s unilateral proposal to the Police Commission, without mutual agreement with SHOPO, to implement procedural changes for the conferral of concurrent authority to take disciplinary action against police officers, and/or to provide confidential employee investigative, disciplinary and/or personnel records and reports to a non-appointing authority, to wit: Hawai`i County Police Commissioners.
In the settlement agreement, SHOPO further alleged that the Hawai`i County Police Commission wanted to enlarge or increase its powers, through its coercion, manipulation of, acted in conjunction with, and/or with the consent and/or cooperation of the Hawai`i Police Department, by adopting new rules and procedures that would allow or enable it to (a) subpoena Hawai`i Police Department personnel records and files and even ongoing/pending criminal and/or administrative investigative files, and (b) ultimately partake in, issue, control, decide, and/or influence disciplinary and termination actions which are not sanctioned or allowed by Chapter 52D, HRS, and/or the Hawai`i County Charter and to accomplish and effectuate its “overzealous goals” it unlawfully manipulates, demands, coerces, forces, and/or requires the Employer to do its bidding in total disregard of the applicable CBA, Hawai`i Police Department General Order No. 303, the Rules and Regulations on Civil Service and Compensation, Hawai`i County and/or Chapter 92F of the HRS.
The Union also stated that the employer engaged in meetings with the Hawai`i County Police Commission and/or with individual commissioners to discuss, agree upon and/or draft rules and procedures whereby the Employer would provide, grant, access to or share police reports, personnel records, and/or internal investigations with the Hawai`i County Police Commission, which was contemplating the adoption of rules authorizing the Police Commission to issue subpoenas and to have concurrent authority and jurisdiction with the Police Department to investigate, interview, discipline and/or terminate officers from employment in violation of Articles 1, 12, 13, 14, and 35 of the applicable CBA.
In summary, the prohibited practice complaint reiterated that the Hawai`i County Police Commission was not the appointing authority to duly sworn Hawai`i Police Department officers, nor can it actually discipline officers under Article VII, Chapter 2, Section 7-2.2(c)(4) of the Hawai`i County Charter. The complaint also indicated what the Police Commission’s duties currently are to receive, consider and investigate charges brought by the public against the conduct of the department or any of its members and submit a written report of its findings to the Chief of Police.
The complaint went on to repeat the fact that the Hawai`i County Charter did not authorize the Police Commission to directly discipline and/or terminate officers, and is not the appointing authority. Additionally, the Union stated that police officers who are investigated and/or interrogated by the Hawai`i County Police Commission will be denied their statutory, contractual and privacy rights, including their constitutional protections afforded to them by the United States State Supreme Court, e.g., Garrity v. New Jersey (1973) and Gardner v. Broderick, (1968).
The Union indicated that an actual dispute had arisen between SHOPO and the Employer concerning the intent of the Employer respecting the enlargement of the duties and activities of the Police Commission. In order to settle the prohibited practice, the County agreed to the following:
1. The Employer shall cease and desist from assisting or allowing Hawai`i County Police Commissioners to observe and/or participate in the internal departmental disciplinary process, including attending and/or participating in Administrative Review Board hearings to consider an officer’s discipline.
2. The Employer shall cease and desist the delegation of and/or conferral of concurrent authority upon the Hawai`i County Police Commission to conduct internal departmental investigations, interviews or interrogations, and/or to directly discipline and/or terminate police officers.
3. The Employer shall cease and desist from providing, granting access to or sharing personnel records, and/or internal investigations regarding police officers with the Hawai`i County Police Commission.
4. The Hawai`i County Police Commission shall cease and desist from engaging in further meetings and/or taking action in order to draft, revise, adopt rules or procedures (1) to subpoena police officers and/or their police reports, internal investigations or personnel records, and/or (2) to administratively investigate, interview, interrogate, discipline and/or terminate police officer, except as is consistent with their responsibilities under Article VII, Chapter 2, Section 7-2.2(c)(4) of the Hawai`i County Charter, which states, “[r]eceives, consider and investigate charges brought by the public against the conduct of the department or any of its members and submit a written report of its findings to the chief of police.”
5. The Employer shall fully comply with the current collective bargaining agreement with SHOPO, specifically Articles 1, 12, 13, 14, 28 and 35.
The settlement agreement essentially reiterated the mandates, duties and responsibilities of both the employer and the Hawai`i County Police Commission as mandated by the County Charter, and as a result SHOPO has withdrawn the prohibited practice complaint filed with HLRB in Case No. CE-12-555 without prejudice.
The Hawai`i Police Department Administration believes its employees have a right to be treated fairly, and all rights afforded officers within the letter and spirit of the collective bargaining agreement shall not be abridged. Allowing two civilian police commissioners to attend a confidential disciplinary investigative hearing offended the privacy rights of the officers involved. This is because collective bargaining requirements of conferring with the police union on procedural changes had not yet occurred. Based on these facts, the Police Department believes a settlement of this lab
or complaint is in the best interest of the department, in assuring its members that labor law violations are taken seriously, and that proper safeguards are in place to protect lawfully private personnel matters in the future. The Police Commission, a separate investigating entity in our community, will maintain its authority granted it by our Hawai`i County Charter as a civilian oversight body to audit and review the operations of the department, to ensure accountability to our citizens. The settlement with the police union does nothing to affect or dilute the powers of the Police Commission, and it is the expectation of the Police Department that the Police Commission can and will continue to perform its duties accordingly.
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