LIHU‘E — Kaua‘i Chief of Police Darryl Perry says that when a dismissed officer that is ordered back by arbitration presents a problem to the department.
“We, as law enforcement officers, are bound to adhere and follow the laws, rules, and regulations, of our government, and although I may disagree, there is little room to inject my personal opinion,” Perry said. “However, it does make it difficult to maintain morale and motivation within the rank and file when the consequences of an act of misconduct is not properly addressed, not only in the police department, but in other branches of government.”
Since Perry became chief in 2007, there has only been one instance of a formerly dismissed officer being returned to the ranks. There were four suspensions that resulted in last chance agreements, four resignations in lieu of dismissal, two dismissals of sworn officers, and one case of a dismissed civilian employee.
“Right now we are in a really good place and the officers understand that they will be held accountable for their actions,” Perry said. “Yet, there are still officers that create a problems which we have to deal with.”
The Police Commission investigates complaints about officers who allegedly committed acts of misconduct. The complaints are referred to the chief for further investigation but the commission does not take part in internal matters.
The State of Hawai‘i Police Officers Union has a fiduciary duty to represent officers in cases where there is an allegation of misconduct. If SHOPO appeals a sanction, the county Labor Board or a hearings arbitrator can uphold the police department claim, while still denying the recommended sanction of dismissal.
After proving an officer has committed an egregious offense there is a sanctioning phase. When a sanction includes dismissal the employee is entitled to their labor rights under state law.
In effect, an arbitration hearing can order to the department to return a dismissed the officer to the ranks. This has happened only once since 2007, but Perry said it presents a potential issue with the ability of the department to discipline officers.
“That is where the dilemma lies, because SHOPO has a legal obligation to represent them, and we are seeing that this maybe as a person that we don’t want on the force because of liability concerns,” Perry said. “We are collaborating with SHOPO to ensure that the officers who are not suitable, based on egregious behavior, are not returned to the ranks.”
Kaua‘i Mayor Bernard P. Carvalho Jr. said the potential for these situations exists with any county department where employees are covered by collective bargaining agreements. He said the county is bound by these agreements and work within the confines of the laws and union agreements.
“It’s important for us to follow the processes and procedures outlined in these agreements,” Carvalho said. “Moreover, it is crucial to act properly and to keep an open dialogue with the unions so that when the opportunity arises we can suggest changes to the contract where necessary to insure that our employees are protected, and the overall needs of the department as well as the community are protected.”
KPD collaborates with SHOPO to make sure that officers sanctioned for egregious behavior are not returned to the ranks. A county administrative review board takes testimony from the officer and their union representative. A claim usually refers to violations of the collective bargaining agreement.
“At the end of that entire process if the complaint is sustained and we find that the act was egregious, then we will move forward with dismissal, Perry said.
SHOPO will appeal the case if there are valid points to argue against a dismissal. Perry said that new information could lead to a Labor Relations hearing officer to affirm the police proceeding is in order and either sustain the dismissal or order the officer back to the department.
SHOPO has the option at this stage to file for arbitration if the officer is not reinstated, Perry said. The arbitrator may rule that the allegations were correct, but still say the sanctions are too severe, overturn the decision and order the officer back.
“We have no say in that anymore,” Perry said. “The arbitrator makes that decision.”
Requests for comment to SHOPO were not returned.
KPD is currently undergoing a three-year certification process with the Commission on Accreditation for Law Enforcement Agencies. It says the department is functioning with adequate standards and policies.
CALEA Deputy Director Craig Hartley said Wednesday from Virginia, that police departments and local governments approach employee issues in different ways. Some of them operate with a complex set of rules while others are very streamlined.
Not all police departments operate with a union, and not all government units allow for an arbitration hearing, he said. At the end of the day, there is no one standard about what policies works best for a given department, he said.