The Intermediate Court of Appeals has upheld a decision by the Honolulu Police Commission that former Honolulu Police Chief Louis Kealoha was entitled to legal representation at city expense in his federal criminal case. In a March 16 opinion, the court found the commission had properly applied the law and its own rules, and had made the proper decision.

The Office of Corporation Counsel had recommended the commission turn down Kealoha’s request for legal counsel. And, later, the city went to court to challenge the commission’s decision that Kealoha was entitled to be represented at public expense because he had acted in the course of his official duties.

After the former chief was convicted and sentenced to a term in a federal prision, some members of the city council had expressed outrage over the idea that the public would have to pay.

As a result, I was quite interested in how the court justified its decision.

In fact, the court had little trouble reaching its decision based on a straightforward reading of the applicable state law.

HRS § 52D-8 (2012) provides:

Police officers; counsel for. Whenever a police officer is prosecuted for a crime or sued in a civil actionfor acts done in the performance of the officer’s duty as a police officer, the police officer shall be represented and defended:
(1) In criminal proceedings by an attorney to be employed and paid by the county in which the officer is serving….

This provision was passed into law in 1941. In tracing the legislative history, the court referred back to a 1998 decision.

When the initial bill was introduced in 1941, the Senate stated, “in view of the increasing number of charges, both civil and criminal, brought against police officers, your committee feels that such provision [of legal representation] must be made if the morale of the force is to be maintained.” ? Sen. Stand. ? Comm. Rep. No. 376 on H.B. 247, in 1941 Senate Journal at 860-61. ? Recognition of a protected property interest in legal representation serves the purpose of maintaining police morale. ? As noted in Hall, such a provision “protects employees from third party claims and thus motivates state employees to perform their jobs zealously.”?Hall, 835 F.Supp. at 527.

Later in its decision, the court clarified its reading of the statute.

HRS § 52D–8 requires that a police commission determine whether the act allegedly committed by the police officer was within “the performance of the officer’s duty as a police officer[.]” In making that determination, a police commission must consider the allegations made in the charging document concerning the police officer’s acts — the conduct element — and disregard allegations about the officer’s motive for committing the alleged acts. If the acts alleged were within the performance of the officer’s duty as a police officer, the officer is entitled to a defense under HRS § 52D–8, regardless of the officer’s alleged motive.

Further:

…a county’s obligation to defend a police officer being prosecuted for a crime is statutory, determined by the language of HRS § 52D-8. That statute obligates a county to pay for counsel “[w]henever a police officer is prosecuted for a crime . . . for acts done in the performance of the officer’s duty as a police officer.” (Emphasis added.) Significantly, the county police commission’s decision is made before determination of the police officer’s guilt or innocence.

In examining Kealoha’s alleged acts cited in the federal indictment, the court noted that the chief of police has extremely broad powers and responsibilities. The court then went through each allegation against Kealoha, and determined each one was within the chief’s official duties.

The scope of the chief’s duty under RCCCH § 6-1604 is extremely broad. It applies 24 hours per day, covers all of the City and County of Honolulu, and includes supervision of all police officers within HPD.

With benefit of hindsight, after the trial that disclosed details of the actions by Kealoha, his wife, and other officers, it’s tough to swallow that the public should be on the hook for his legal defense.

But, as this decision makes clear, that was the intent of the law in the first place.

In any case, interesting reading, for sure.