Thursday, February 23, 2012


HA-CHA-CHA-CHA-CHA: With yesterday's "oh yeah, well so's ya mutha" public pissing contest between Kaua`i Police Department (KPD) Chief Darryl Perry and Mayor Bernard Carvalho Jr. playing out throughout the day, apparently some felt left out of the act.

Under the "yeah, you think?" headline of "Kauai police chief's status unclear," the "readership-schmeadership" Honolulu Star-Advertiser decided not to "lede" with Perry wandering the halls of the cop shop waiting for someone to "toss him a sandwich" (lest he lose his self-administered authority by going out for lunch) or Carvalho going "off-leash" and calling TV stations to let them know that he was "not making big chest mayor."

Rather, in a "stop da music- STOP da music" moment, they led with:

The Kauai County Charter Review Commission (CRC) is scheduled to meet Monday to look at whether Mayor Bernard Carvalho has the authority to keep Police Chief Darryl Perry on leave.

And in fact it seems that they've scheduled an executive session without any charge or expertise to do so, to examine Section 7.05 of the Kaua`i County Charter which details the "Powers, Duties and Functions" of the mayor.

The fact that banks of attorneys, bloggers, reporters and assorted members of the peanut galley have been unable to interpret the ancient hieroglyphics that pass for the county's guiding document over the past three weeks apparently means that, because the word "charter" appears in the name of the commission, they feel the need to add to the babble.

In case you haven't been sufficiently confused with both sides claiming the authority to discipline the chief let us try to not make sense of it.

The fact is that nowhere in the charter sections on the Police Department (Article 11) or the Mayor (Article 7) is the power to do anything specifically regarding the chief mentioned except for "Section 11.04. Chief of Police" which says:

The chief of police shall be appointed by the police commission. He may be removed by the police commission only after being given a written statement of the charges against him and a hearing before the commission.

Appointed and removed? Yes. Disciplined, suspended, placed on leave, told to stick his head in gravy and sell it to the Navy? No.

But though this has been reported ad nausium some of the other parts of Article 11 haven't.

Section 11.03 "General Powers of the Commission" says that:

The police commission shall:

C. 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 within ninety days.

D. Refer all matters relating to administration of the department to the chief of police.

Certainly the chief is a "member" of the department. Section 11.01. "Organization" specifically states that:

There shall be a police department consisting of a police commission, a chief of police and the necessary staff.

But this only covers complaints made by "members of the public." And if a complaint against him goes anywhere, it's right back to him.

But under Section 11.06. Discipline and Removal, the charter reads

The dismissal, suspension, or demotion of any police officer or employee in the police department shall be under procedures set forth by civil service laws and regulations.

That's where things go kabluey because appointed officials are not civil service employees so are not subject to civil service laws and regulations (also making "Section 11.07 Appeals" moot). This would also seem to indicate that the chief is not to be treated as other "members" of the department since he is not subject to civil service laws as most are.

So does the mayor have the authority?

The only reference for that is in Section 7.05. "Powers, Duties and Functions" of the mayor. It says that:

The mayor shall be the chief executive officer of the county. He shall have the power

A. Except as otherwise provided, exercise direct supervision over all departments and coordinate all administrative activities and see that they are honestly, efficiently and lawfully conducted.

And that's about it. Although many have pointed to the phrase "(e)xcept as otherwise provided" and said that the police commission is where the power to hire and fire the chief is seated, as delineated above, that's the only power given to the commission where the chief is concerned.

Is Carvalho claiming that he making sure that "administrative activities" are being "honestly, efficiently and lawfully conducted?" Honesty doesn't seem to involved. Or efficiency. And legality would seem to be for the courts to decide.

Thus, the "constitutional crisis," the charter being the "constitution of the county."

Anyone claiming authority for anyone to do anything to the chief but hire and fire him is simply whistling in the graveyard.

There is however an "out."

There are 13 "Powers, Duties and Functions" of the mayor in Under Section 7.05 not just the one we cited above. The very last one reads:

M. Exercise such other powers and perform such other duties as may be prescribed by this charter or by ordinance.

We can plainly see that the charter does not proscribe who is in charge of "disciplining" the chief. However although the police commission cannot claim the power in their administrative rules (under HRS Chapter 91) the county council could, conceivably, pass an "ordinance" placing the power wherever it chooses.

We're sure they're just soooo appreciative for having this thrown into their collective laps.

This of course would be subject to review by the courts. Many times courts will rule that, under the type of "supremacy" established in the 10th amendment of the US Constitution, powers not taken by a "higher" authority are reserved for the next one down. In the case of the 10th Amendment that means anything congress doesn't make a "law regarding" is "reserved for the states."

In the case of state, supremacy plays out in that anything not regulated by the state constitution is reserved for the legislature. And anything the state constitution or statutes don't cover is left to the counties. And if a county charter doesn't address it, the council may usually do by ordinance.

Maybe. There are instances where a judge will say that just because the "higher" document is silent it doesn't necessarily give the next one down the right to regulate. You just never know. It's apparently a situational, "case by case" thing and we're not an attorney nor are we in possession of those dauntingly huge collections of every court decision.

But if the authority to resolve this "crisis" exists anywhere it is with the county council which may, by ordinance, establish which "other powers and... duties" the mayor may "exercise" and "perform," including the disciplining of the police chief and other department heads that are hired and fired by boards or commissions such as fire, liquor, personnel and planning.


One more thing- again burying the lede- before we take a long weekend.

We said yesterday that, in violation of county policy and EEOC regulations, according to multiple sources, Chief Perry tried get Officer Darla Abbatiello-Higa to drop her October hostile work environment/sexual harassment complaint against an assistant chief. That, we said, prompted her to file her second complaint in January- this time not internal to the department but sent to the mayor and police commission- alleging that not only were Assistant Chiefs Ale Quibilan and Roy Asher harassing her but that Perry was among those "creating a hostile workplace."

Yesterday, in a report on KHON-TV, Perry stated that the reason he asked to either work from home or be suspended or take a leave (or whatever he's saying today):

I didn't want to come back to a hostile work environment and be placed in a situation where this person may see me in the hallway and say that I looked that person (sic) in a wrong way and make another complaint.

By using the word "another" Perry apparently confirms that a hostile workplace environment" complaint was filed against him.

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