LIHU‘E — The Kaua‘i Police Commission on Friday voted to appeal a 5th Circuit Court declaratory judgment that said the commission does not have sole authority to suspend or discipline the chief of police. “The commissioners voted 5 to 2
LIHU‘E — The Kaua‘i Police Commission on Friday voted to appeal a 5th Circuit Court declaratory judgment that said the commission does not have sole authority to suspend or discipline the chief of police.
“The commissioners voted 5 to 2 to further pursue the appeal process,” said Police Commission Chair Ernest Kanekoa Jr.
The vote followed a closed executive session that lasted into the early afternoon. Kanekoa said the commission would attempt to retain their own private legal representation by going through the same request process with the Kaua‘i County Council.
The appeal is regarding a declaratory action to determine the powers, duties, privileges, immunities and liabilities of the mayor and the Police Commission. It was rendered on Oct. 30 in 5th Circuit Court, and essentially allows the mayor, as the chief executive officer of the county, authority over departments where the charter does not provide alternative language.
On Feb. 1, Mayor Bernard Carvalho Jr. suspended Police Chief Darryl Perry, and placed him on paid leave a week later while the county investigated an employee complaint.
The Police Commission ordered Perry back to work, and Perry was back on the job Feb. 22.
The mayor continued to state that Perry was on leave, and instated him on March 12.
Chief Judge Randal Valenciano at the hearing said the county charter has explicit language regarding the powers of the Police Commission to appoint and remove a chief of police. He said the lack of ambiguity in language did not support the claim the provision implied supervisory powers to the commission.
In response, Mayor Bernard Carvalho Jr. expressed “extreme disappointment with the police commission’s action.” He said the necessary legal review was rendered when the 5th Circuit Court agreed with the county attorney’s legal opinion that was challenged by the police commission.
“We have heard of no legal basis for the appeal other than the commission was not happy with the decision,” Carvalho said. “Agencies of county government should not be in the business of ‘shopping around’ for the legal opinion that suits their own agenda.”
Carvalho said he spoke with the police commissioners when the challenge was first raised, and said they agreed to take the matter to court and to stand by judge’s decision.
“We don’t always have to agree, but it’s disturbing to me that I can no longer depend on the word of some of the commissioners,” Carvalho added. “Finally, an appeal will add cost, which the taxpayers of Kaua‘i will ultimately pay, to this already costly exercise.”
Community input
At the Police Commission meeting Friday, Glen Mickens, Ken Taylor and Joe Rosa presented community input prior to the closed session. They encouraged the commission to appeal saying the charter intent was for commission oversight alone.
Mickens said the ruling allows dictatorial powers over departments and eliminates the purpose of the commissions as intended by the charter. He said it gives the mayor the right to investigate the powers of the chief of police, which is under the charge of the commission.
“I urge all of you to appeal this decision all the way to the supreme court if necessary,” Mickens said.
Taylor said the outcome of a Kaua‘i appeal would have ramifications for county governments on all of the islands.
“I am very concerned that this issue really needs to be looked at further and in depth, and you have the ability to make that happen,” Taylor said.
Rosa said that supervisory actions need to be consistent with labor law and feels the charter was violated. As a long-time union steward, he said labor law does not allow someone to be fired or suspended without just cause.
“The unions have delegates from their sections and you are the representatives of the public,” Rosa said. “Every worker has a right to work clause of just cause regarding being released or suspended.”
Commissioner Francisco thanked the three gentleman for their input. He said there are two sides to a story and that he tries to keep a pragmatic outlook.
“My duty today is to focus on Kaua‘i,” Francisco said.
He said that the book “I Respectfully Dissent,” a biography of Hawai‘i Supreme Court Justice Edward H. Nakamura, helped him understand the forces that drive the state’s social and labor history. As a dissenting voice against mismanagement, Francisco said Nakamura helps him see all sides of the issue.
“What we hear and read is not always true, and we must take it all into account,” he added.
Commissioner Charles Iona said that it is good to have an engaged citizenry before actions are taken. It is more effective than just adding comments after the fact, he said.
Iona was present after missing the October meeting to recover from heart surgery. All the other commissioners were present including Vice Chair James O’Connor, Alfredo Nebre Jr., Bradley Chiba and Donald Okami Sr.
Agenda items
Assistant Police Chief Ale Quibilan was present at the meeting on behalf of the Kaua‘i Police Department to stand in for Chief of Police Darryl Perry. He took a moment to focus on holiday safety.
Quibilan said this it the time of year that people gather for holidays and to watch the big sporting events. It is a time of family celebration and entertainment, and he said KPD will be out in force to help ensure excess celebration does not cause serious accidents.
“We ask the public to make good decisions when they are out there,” he said. “Have a good time and enjoy holiday events, but we want to be safe out there.”
Quibilan said the KPD would be assisting the County Council on Monday with security and traffic control around the War Memorial Convention Hall. He asked the public to drive carefully as there will be many pedestrians making there way to and from the convention hall.
The Employees of the Month for November are Lt. Paul Applegate and Sgt. Elliott Ke. The awards were deferred to the December Police Commission meeting because the two officers are in training and so the chief can be in attendance.
There were three Letters of Commendation mentioned at the meeting.
Glenn and Doreen Tanaka expressed their appreciation to Sgt. Scott Brede and Officer Chito Garduque for assisting the Cub Scouts (Bear Den) of Pack 133 with completing a requirement in the police field.
Chief of Police Darryl Perry sent a commendation for Assistant Chief Roy Asher, along with Detectives Bryson Ponce and James Miller, for their professionalism, dedication and diligence with respect to an investigation.
The state’s Attorney General Crime Prevention and Justice Assistance Division sent thanks to Lt. Daniel Fort for assisting with planning the Violence Against Women prevention statewide training.
“It is always good to hear positive news about police work in the final quarter of the year,” Francisco said.
Quibilan announced the retirement of two officers.
Lt. Michael Gordon is retiring after 32 years with the KPD. He was most recently serving as a trainer.
Lt. Daniel Fort is retiring after 25 years with KPD. He was most recently with the Investigative Services Bureau.
The Commission was also scheduled to discuss notarized complaints in the executive session.
The complaints included an allegation that officers improperly handled a report of an assault that led to the complainant’s arrest; to a second incident where an officer was accused of intimidation and making threatening remarks.
From the October meeting, the Commission found there was sufficient information to sustain a complaint filed on Aug. 23, alleging that an officer refused to accept a complainant’s written statement and did not give them an opportunity to speak. A September complaint alleging an officer harassed a citizen with excessive questioning during traffic stop was found to lack sufficient evidence to continue.
The matters were forwarded to the Office of the Chief for further review.
The next Police Commission meeting is scheduled for Dec. 28 at 9 a.m. in Meeting Room 2A/2B of the Moikeha Building.
