Monday, May 26, 2008

STEPPING ON HIS TONGUE

STEPPING ON HIS TONGUE: Kaua`i Police Department Chief Darryl Perry’s letter in today’s local paper may be his last due to his admission that he has illegally changed KPD’s Mission Statement without adhering to the State Administrative Procedure Act (HRS §91).

Following the publication this weekend of an article by TGI columnist, Island Breath's Juan Wilson criticizing KPD’s “mission statement” Perry announced the following:

While I did not read Juan Wilson’s entire commentary about the Kauai Police Department, the part about our mission statement did catch my eye (“Toward a Kaua‘i police mission statement,” Island Breath, May 24).Perhaps this is as good a time as any to mention that we have revised our mission statement for the exact reasons that Wilson mentioned.We included the aloha spirit and pono as our guiding principles. It was months in the making and was unveiled to our employees only this past Wednesday.

Input was gathered from all levels of the department, both sworn and civilian. We will be making a public announcement
shortly.



The problem is that according to law all rules and regulations of any governmental department in the State must go through a public procedure including posting the rules 30 days in advance and holding public hearings and allowing for public input.

HRS§91-1(4) defines the “rules” as including the mission statement in saying:


"Rule" means each agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency.


And the process of promulgating “Administrative Rules” must be open and transparent according to the next section §91-2(a)3-4 regarding public information which says:


(a) In addition to other rulemaking requirements imposed by law,
each agency shall:
(3) Make available for
public inspection all rules and written statements of policy or interpretation
formulated, adopted, or used by the agency in the discharge of its
functions.
(4) Make available for public inspection all final opinions and orders.
(b) No agency rule, order, or opinion shall be valid or effective against any person or party, nor may it be invoked by the agency for any purpose, until it has been published or made available for public inspection as herein required, except where a person has actual knowledge thereof.


The Chief did not comply with §91-2.6 regarding “(p)roposed rulemaking actions and rules; posting on the lieutenant governor's internet website”. It says:


(a) Beginning January 1, 2000, all state agencies, through the office of the lieutenant governor, shall make available on the website of the office of the lieutenant governor each proposed rulemaking action of the agency and the full text of the agency's proposed rules or changes to existing rules. The internet website shall provide instructions regarding how to download the information regarding proposed rulemaking actions and the full text of the agency's proposed rules.
(b) Each state agency, to the greatest extent feasible, shall:

(1) Ensure that all information pertaining to that agency that is
contained on the lieutenant governor's website is current and accurate; and
(2) Advise individuals contacting the state agency of the availability of the proposed rulemaking actions and the full
text of the agency's proposed rules on the lieutenant governor's website.

In HRS§91-1 agencies are defined saying


“'Agency’ means each state or county board, commission, department, or officer authorized by law to make rules or to adjudicate contested cases, except those in the legislative or judicial branches.”

Chief Perry has sworn to uphold the law and an illegal act such as this would seem to be grounds for removal from office, especially given that, as, any chief of police knows, ignorance of the law is no excuse. It seems unfathomable that he would be ignorant of this provision after decades of police work, including administrative positions.

But the most troubling part of this is that it comes at a time when the chief is under fire for his lack of openness and transparency.

In a recent article in Kaua`i People reporter Joan Conrow reported that:


“Perry is also striving to make the department’s activities and operations more open. ”’The term transparency is overused, but we want to make sure the public knows we have nothing to hide,” he said. “We want to communicate with the community to make sure we’re in synch with what they want.’”

Nothing to hide? Then why has he routinely refused to comment on alleged abuses and over reactions of his department?

In the past few weeks the island has been abuzz with three incidents – the 20 member swat team’s descent upon Dayne Apioalina for a missed, purportedly excused, court appearance when a telephone call would have sufficed, the 30 man operation to essentially harass fisher(wo)men at Black Pot beach and the three to one ratio of officers to demonstrators - replete with Coast Guard and harbor police presence- protesting the cruise ship practices of burning bunker fuel while in port

This all comes at a time when Perry has asked for riot gear and tasers. That has been roundly criticized by a great number of Kauaiians many testifying before the Council and responding to newspaper reports with letter to the editor.

There have also been numerous email discussion including many prominent community members talking about how to maintain civilian control of a community-based police force and discussing the public development of protocols to restrain the militarization and resulting mentality that could cause officers and citizens to have unnecessary confrontations.

The People article talks of how Perry has - again without promulgating Chapter 91 rules-


“formed an Internal Affairs Unit to investigate allegations of misconduct among officers and department employees, with a trained administrative review board that metes out discipline. ‘Those were some big changes internally right there,’ he said.”

But an extremely reliable source with great familiarity with the courts and KPD says that the problem is lack of record keeping.- a compilation of citizen complaints against officers- and the lack of the requirement at some level of officer reporting on all use of force (guns/tasers) in the field.

The source says that although (s)he knows the new chief says that implementing an Internal Affairs (IA) unit is a priority it should be done before additional weapons are purchased and distributed.

Our source says that last year in an extensive deposition a former police chief testified that putting in an IA division was one of his top priorities - yet it didn't happen.

“Promises, promises” (s)he says.

The deposed former chief also basically said that citizen complaints to the chief often just get filed away in the chief's file cabinet. Some get investigated, some don't. Many just apparently disappear.

“I'm not really swayed by promises of an IA They have been a long-time coming and have not manifested. Real action is needed. Record keeping is also essential to the KPD accreditation that Chief Perry wants” says the source who asked not to be identified so that (s)he can keep working on the problem from the inside and might not be as effective if these comments were publicly attributed.

“Such record keeping also goes a long way in reaching the recent promise of officer accountability.”

Normally police departments have extensive record keeping on complaints against officers for excessive force and dishonest conduct. Without such record keeping, it is difficult to objectively decide which officer should be trusted with lethal force and which one might be considered a little trigger happy - and assigned to a less-stressful duty.

And according to the source- who is in a position to know- at least five KPD officers have been the subject of numerous citizen complaints, ranging from false reports to basic brutality.

When KC Lum was chief, according to newspaper accounts and multiple sources there were numerous instances of masked, armed police, storming into houses on smallish dope cases. One vice officer is repeatedly quoted as screaming "You don't have any rights. You're a drug dealer" as he arrested innocent until proven guilty suspects.

“Do we want this guy to have a taser or a gun?. It appears there isn’t anyone keeping a record of citizen complaints of these types of things, let alone complaints of dishonesty or excessive force.” says our source.

Increased accountability should be required before new weapons are issued. In fact, the failure to keep such records alone, can create municipal liability - and perhaps that is how mandating KPD record-keeping needs to be “sold” to County officials. Its cheaper for the county in the long run.

In Delgado v. Rosemont (Illinois 2004), the court allowed a complaint against the city to go forward, where the complaint alleged "(1) the failure to properly investigate allegations of police misconduct, including excessive force; (2) the failure to properly discipline sustained allegations of police misconduct, including excessive force; (3) the failure to properly maintain records of police misconduct and allegations of police misconduct, including the use of excessive force; (4) the failure to properly hire, train, monitor and supervise police officers; and (5) permitting a “code of silence” to exist concerning police conduct."

It presents an opportunity to keep Kauai out of such lawsuits but only if the Chief recognizes and acts upon the issues raised here in an open and transparent manner.

Perhaps the most distressing of things in his letter today is that Perry becomes flippant and cutsy-pooh in responding to the suggestion that being armed to the teeth isn’t the best way to send a community-policing message to the community presenting an absurd straw man by saying:

Some people have suggested we do away with all of our weapons. Let’s see what would happen if we left our weapons in the station house.

If a victim — perhaps your wife, sister, mother, son or daughter — were getting the snot kicked out of them by someone drunk or under the influence of drugs, we could try to talk them down.If that fails, then perhaps I could have my officers hold hands and sing a hymn. Maybe that would calm him down, then we could politely ask him to comply by placing his hands behind his back as we place him under arrest. If that fails, then we’ll just wait till he gets tired.


Or better yet, I could contact one of our community experts who deplore the use of any type of weapon and ask him to resolve the situation.


In hundreds of emails letter articles and public testimony we’ve reviewed recently no one has suggested all officers always leaving weapons at the station house, although some have said that it might be wise to establish a protocol saying that, when not in use, perhaps KPD officers should leave their guns behind or in the trunk of their patrol car under certain circumstances.

The Chief quite obviously doesn’t get it and prefers to insult the intelligence of the civilians who, on paper, control his military unit.

Many have in the past week or so, suggested that the Chief is a reasonable man and that perhaps the best course of action regarding the use of tasers, riot gear and any use of deadly force should be to approach him and the police commission- our legal civilian oversight for KPD- and review the protocols and chapter 91 administrative rules for use of force, especially deadly force.

But when some corresponded with him directly regarding the lethality of tasers, despite voluminous documentation of deaths directly attributable to police use of tasers he continued to maintain no deaths have occurred, parroting the taser manufacturers laughable contentions.

When combined with his blatant and most likely willful illegal activity regarding KPD rules and this “you stupid naive people” rant in today’s paper an intolerable situation exists.

This is not the level of sensitivity to the notorious problems at KPD nor the behavior we should expect from the chief law enforcement officer on Kaua`i.

We see no alternative but to call for the resignation of Chief Perry.

13 comments:

Anonymous said...

zzzzzzzzzzzzzzz

He changed a mission statement. Lets hang him.

Of course, since a mission statement neither interprets or interprets law or policy nor does it describe organization or procedures where's the beef?

Practice requirments? nope.

The rest of the information in the link:

"The term (RULE) does not include regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public, nor does the term include declaratory rulings issued pursuant to section 91-8, nor intra-agency memoranda."

I think most reasonable people would consider a mission statement little more than internal motto or guideline not even adding up to an internal rule.

Crap. Another Parxworld screed with a foundation of cotton candy.

Do you even read the links you provide? Or are you just hoping no one else will?

Ed Coll said...

Emailers Take Warning

From personal experience, I know that Kauai Police Department officers send threatening email messages to citizens, and I know the practice is acceptable and will not be publicly reprimanded by Kauai Police Commission or by Kauai Board of Ethics.

However, I did not know until reading reporter Rachel Gehrlein’s story, Emissions protest dampened by weather (5/24/08 TGI p.1), that police officers were monitoring the email of citizens. But evidently they are because KPD Capt. Ale Quibilan said "the department decided to prepare for any event" based upon the belief that "approximately 100 people expected to show up at the protest circulating through e-mails."

Let’s be careful out there.

Anonymous said...

Hi Ed,
I noticed the quote also. I asked several of the folks close to the event if email had been used as part of their communications strategy with the police department. From what I understood, the organizers communicated primarily by phone and in person with police department representatives.

There were several widely circulated email announcements and web postings about the event of course, but I would still be very curious to know exactly which emails the police department had access to. If they can demonstrate that they were "in the loop" of emails by intention, that's fine. It's quite a provocative statement for them to make, and I think the public deserves an explanation.

Katy

Andy Parx said...

You’re always good for a morning laugh my dear Trollie- only you could find a way to spin the mission statement describing and directing how department personnel interact with the public into a strictly internal document. Perhaps you should go to work for the law firm Spin, Prevaricate and Timewaster. Either that or try reading some actual departmental ad rules which usually being with their mission statement.

As an update this morning some are claiming that what the Chief called the “mission statement” was only the “Chief’s message”. So I revise- he may not be a crook but then he would be just a liar who sought to negate Wilson’s public criticism with a misrepresentation- let’s see if the Chief offers a correction.

Also Ed- I was on Don Greer’s emailing list for the event and got three or four emails which also went out to dozens of journalists and politicians including the Mayor whom if no one else, I suspect, shared them with the KPD.

charley foster said...

I'm not so sure, Andy. A mission statement doesn't implement, interpret or prescribe any law or policy, nor does it describe the organization of an agency, or the procedures of an agency, or the practice requirements of an agency.

A mission statement is usually understood to be a statement of an organization's reason for existing.

If you look at the cases included in the annotations under the statute you linked containing the definition of rule you see that "rule" is generally interpreted by the courts as something actually having specific legal effect and impact on people's rights.

Maybe mission statements do fall under the definition of rule. I don't personally know. But I didn't locate any cases that said as much. Do you have any actual knowledge that mission statements require the same procedures as rule making? If so it would be interesting to see. Otherwise, your claim that "mission statement" falls under the definition of "rule" seems more contrived than anonymous's claim that it doesn't.

Anonymous said...

zzzzzzzzzzzz

Poor Andy. Still making conclusions then trying to make the facts fit them afterward.

So when a supervisor tells his troops "be nice to the public and treat them with respect (aloha and pono)" that doesn't fit into "internal management".

I think you'll lose that one. But hey, why derail another perfectly frothy rant over messy little things like facts that don't quite fit. Still looking for a way to deny bike path plans that predate 2002 by a decade or so?

Andy Parx said...

Mission Statements don’t only cover your internal affairs. They cover your service to the public. Everything has an internal component. They’re not about your mission to yourself, especially if your job is serving and interacting with the public

A “mission statement” is part and parcel of the operation procedures for everything from garden clubs to county agencies. You will find them in the ad rules of most county and state departments- under “administrative rules”. Ask for them by name. I’ve read most of those for the county and have some paper copies lying around somewhere. I think they actually have a couple on line now.

Look for the mission statements in them They describe how the organization serves the public and does whatever it is they do to, er- for us. When they have one it’s what they “go back to” in every management review meeting (which government people seem to go back to every week) when someone yells “ why aren’t we following our mission statement”.

charley foster said...

I accept that a mission statement isn't a purely internal document. But that doesn't make it a rule. My question is which of the specific roles in the statutory definition of rule does the mission statement satisfy. I contend it does not fall under any of them and is therefore not a rule and is therefore not subject to the same process as is required for promulgating rules.

Anonymous said...

still, the point is, for an open and transparent chief in charge of a somewhat suspect group of county workers, he should do better than that. he'd of been better off not to respond. likewise for the chair.
they don't deserve a pass on this. juan struck a nerve, a raw one. 'read juan, read'em all' speaks to the base nature of this.

Andy Parx said...

Charley- tell me how a mission statement isn’t perfectly described in saying it “prescribes... policy (and, although only or is required) describes the organization or(and) practice requirements of (the) agency?” (92-1 “Rule”- definition)

I don’t understand how it could be clearer.

And here some red meat for our morning time-waster--That which is not done accordance with law is illegal... by definition. Thank sir- Can I have another peripherally off-subject prevaricative equivocations..

Anonymous said...

"Off subject"? You called for the chief's resignation based on your contention that he broke the law. How is a discussion of whether he broke the law (a subject YOU raised) "off subject"?

Back to the subject: First, you misinterpret the statute when you say "describes the organization." Describing the organization doesn't make a rule. Describing the organization OF THE agency, is a rule. A flow chart, in other words. Who in the organization has authority and to whom are decisions appealable. That sort of thing. A statement that the police dept. exists to protect the public and be respectful is not a rule. A statement that officers answer directly to captains and that decisions are appealable to a board is a rule. The mission statement therefore is not a rule under that particular clause.

Does it prescribe policy or describe practice requirements so as to constitute a "rule." Based on case law I would argue not. Case law, for instance, has distinguished between "guidelines" and "rules and regulations" - guidelines not following under the statutory requirements of rules. I believe if you were to press your point in court, mission statements would fall closer to the "guidelines" definition than to a definition of rules which the courts have described as commanding or prohibiting some specific act or describing specific procedures.

And anyway, there's an answer to the question that a journalist ought to be able to dig up. Are mission statements subject to the requirements of the Act? You tell me. Make some phone calls. Bet they're not.

Andy Parx said...

Hey- I got it- it was equivocation. And you still wish rules were defined other than they are in 91-1, eh?

You want organization to be self-referential and mean the organizing of the department. I bet you sure wish it said organizing in stead of organization...

If a mission statement doesn’t “prescribe policy, describe the organization or practice requirements of (the) agency”. what the heck does it do? I can’t imagine anyone who would read these words together and not consider a “mission statement” to come under the specific definition found in law. Except an amateur troll.

The issue is not just the action in disregard of the law (which despite your hysterical off-subject denial is by definition illegal if it violates 91-1). but the juvenile actions of leadership and their refusal to talk about or deal with- and apparent approval of actions in- numerous reported excessive and even abusive use of force incident that are still occurring.

I'm talkin about that.

Anyway it yurns out he lied anyway and it wasn't the mission statement. He should resign for that .

charley foster said...

As I point out in the comments to the post above this one, apparently you lose by an AG decision. And anyway, a mission statement does not “prescribe policy, describe the organization [of an agency] or practice requirements of (the) agency”. A mission statement is not something that prescribes rules. If you are having a tiff with an agency, you don't get to site to its mission statement in your complaint. No. You would site to whatever rules it has violated.

Like, are you going to sue the police department because it failed to "acknowledge and accept our individual differences and unique cultural diversity, and promise to treat each other and everyone we serve with dignity and respect" in blatent violation of its mission statement?

Or sue the department because it failed to "strive to maintain public trust and confidence by upholding the highest moral and ethical standards" again in violation of the mission statement?

Or because they failed "to provide superior level of services, and to take responsibility for our actions and decisions"?

Do you see what a dopey premise you're pushing here? Read the mission statement. Nothing about it is described in the definition of rule. It doesn't act like a rule, it doesn't look like a rule. It clearly isn't a rule.

And making such a fuss because the police sent more cops than you'd like to a demonstration and a clean up seems kind of silly too.