Saturday, October 11, 2008

KPD Blue: Chapter 10 : George Freitas

(Our post yesterday about Chief Darryl Perry’s recent comments on whether he was the one who “got a raw deal” in long process of becoming KPD’s Chief provides the background- or perhaps foreground- of Chapter 10 of Sommer’s book.

It tells the story of former Chief George Freitas, graphically and accurately describing what faced both KC Lum and Chief and Police Commissioner Michael Ching when they were first appointed.)

KPD Blue

by Anthony Sommer

Chapter 10 : George Freitas

Mayor Maryanne Kusaka liked to portray herself as a kindly retired school teacher, which she certainly is, although many former students will dispute how kindly she was. For those not familiar with government in Hawaii, there is no city government, only county government. There are four counties: Hawaii, Maui, Oahu and Kauai.

All of the counties have a “strong mayor” system in which the mayor is the chief executive and runs the administrative branch of the government in a manner similar to the federal government and most state governments. The mayor has veto power and the Council may override the mayor’s vetoes.

In most jurisdictions of similar size on the mainland, there is a Council-Manager (or Weak Mayor) form of government in which a professional manager runs the administration and the mayor presides at council meetings and cuts ribbons. So, a mayor in Hawaii has considerably more power than most mainland mayors.

Another major difference is the Kauai County Charter. Most city charters on the mainland are the size of a metropolitan phone book and spell out in great detail the powers, duties and limitations of every official. Each procedure for each agency is outlined. The Charter is a “Government for Dummies” manual for city employees.

The Kauai County Charter is barely more than a pamphlet. The wording is purposely general and purposely vague. The County Attorney’s Office enjoys more than ample wiggle room to interpret it in a way guaranteed to please the incumbent mayor and County Council.

“I like a county charter without a lot of detail. The charter we have gives me a lot of flexibility,” said Bryan Baptiste (Kusaka’s protégé who replaced her as mayor).

It certainly does. Although a few holes in the charter were patched in the 2006 elections, the whole document is in need of a complete rewrite and major expansion.

Among the many vague sections of the Kauai County Charter is the part covering the removal of the police chief. It’s quite clear the chief is hired and fired by the Police Commission, which is appointed by the mayor.

In short, the mayor is not the police chief’s boss. The Police Commission is. And that is a galling fact to an insecure mayor (like both Kusaka and Baptiste) who insists on absolute control of all facets of government.

One of the many things unclear in the Kauai County Charter is a provision that states the police chief only can be removed “for cause.”

The Charter never defines the term “cause.”

Does “cause” mean commission of a felony? Commission of a misdemeanor? Giving his girlfriend a ride in his police car?

The Kauai Charter doesn’t say. The charters of all the other counties do.

The definition of “cause” is left entirely up to the county attorney, who is appointed by the mayor, and who, first and foremost, is a hired gun for the mayor.

The county attorney always says what the mayor does is legal, even if it’s not.

So, ultimately, the mayor decides.

This brings us to Kauai Police Chief George Freitas, the first police chief in the history of Kauai who was not born and raised on Kauai.

It is impossible to overstate how important it is in Kauai culture to be a native of the island. Anyone who comes from the outside is considered by locals to be taking a job that should have gone to a native Kauaian (even if no one from Kauai is qualified for the job).

Whether Freitas saw the trap he was walking into when he took the job is not clear. But, certainly, Freitas appeared on the scene as an outsider in the wrong time and the wrong place.

He was appointed by a lame duck Police Commission (the police commissioners’ terms in office are staggered and overlap the term of the mayor) in 1995, Kusaka’s first year in office. The majority of the Police Commission that hired Freitas had been appointed by Mayor JoAnn Yukimura, a liberal and reformer, who had been defeated for re-election in 1994.

George Freitas, an Oahu native who had spent his entire police career in a California police department was hired by the Kauai Police Commision as KPD chief in the wake of a discrimination lawsuit against former Chief Cal Fujita. He never had the support of either the mayor or the Kauai County Council. Mayor Maryanne Kusaka attempted to force Freitas out but failed. Her protege, Mayor Bryan Baptiste finally forced Freitas to resign when the chief finally ran out of money to hire lawyers to fight the county.

George Freitas was hired by a lame duck Police Commission entirely different from the political culture Kusaka brought back to the mayor’s office.

Freitas was doomed to failure the first day he pinned on his KPD badge.

Freitas was an outsider who didn’t bow down to the mayor.

She hadn’t hired him, she couldn’t fire him. He didn’t work for her, and he didn’t much like her.

The loathing was mutual. She had no use for him. By the time her second (and last due to term limits) term began in 1999, there had been considerable grumbling among the locals in the KPD who comprised middle and upper management and who were not at all keen on being “modernized” by Freitas.

More important in Kusaka’s scheme to keep a tight rein on the KPD, the majority of police commissioners were now Kusaka appointees. Freitas’s bosses now were Kusaka’s cronies.

Freitas had been hired as a reform chief to reverse the racist hiring policies of previous chiefs.

Problem was, both Kusaka and the KPD old guard feared diversity. They weren’t anxious for change at all.

Freitas’ record, particularly regarding sexual discrimination, was less than spectacular, as pointed out in previous chapters.

What is interesting is that Kusaka did not go after Freitas on that issue, even though he was highly vulnerable.

Perhaps Kusaka didn’t recognize discrimination as an issue she could use to rid herself of her less-than-obedient police chief.

Freitas’ efforts in adding diversity to the KPD were impressive, especially since Kusaka had pretty much limited Freitas to recruiting only on Kauai.

By 1999, Freitas had recruited a considerable number of Filipinos and even a few white officers and a few women to the KPD. The monopoly of the Hawaiian and Japanese men on the force was beginning to erode.

The power struggle between the chief and at least some of his subordinate supervisors already was underway by the beginning of Kusaka’s second term.

Enter Lt. Alvin Seto and Inspector Mel Morris.

When the County Prosecutor’s Office refused to press charges on Seto’s claim that Freitas had “hindered prosecution” in the Nelson Gabriel case, Seto and his boss, Inspector Mel Morris, began shopping around for a more sympathetic ear.

In late July, 2001, they found an ally in Mayor Maryanne Kusaka. They handed Auntie Maryanne what she believed was the “cause” to get rid of her unwanted haole police chief. She took it straight to her handpicked gang of police commissioners.

It is instructive to note that, from that day forward, with only one exception, Kusaka used her “ex officio” status to attend all of the Police Commission meetings, something she never did before or would do afterward.

In a secret meeting on Aug. 10, the Kauai Police Commission—with Kusaka present—voted to place Freitas on involuntary leave with pay.

Freitas was off island that day. He didn’t have a chance to answer the charges. He never would.

Later, Freitas said he probably could have answered all of the Commission’s questions if he had been invited to their meeting.

But Kusaka had an ambush in mind.

This was going to be Kusaka’s most glorious moment in ethnically cleansing Kauai government of outsiders. Although it later was brought to her attention that the FBI is the agency with the jurisdiction to investigate state and local government corruption cases, Kusaka’s staff said she never considered that option.

Kusaka has no control over the FBI but the police commissioners all were her loyal and grateful appointees, as was the county attorney who was advising the commission.

A month after suspending Freitas, Kauai “borrowed” John Ko, an investigator, from the Honolulu Police Commission. At taxpayer expense, Ko for two months lived at one of Kauai’s most posh resorts, drove an unmarked Kauai police car and interviewed more than 150 KPD officers and civilian employees—pretty much the entire department.

Many of those interviewed said privately that the questions asked by Ko were mostly open-ended and not about specific incidents.

Clearly, Ko was looking for additional charges against Freitas. Just as clearly, he was on a very expensive (to Kauai taxpayers) fishing expedition. Judging from subsequent events, he never even got a nibble.

The county has refused numerous requests to release the files covering the cost to taxpayers of Ko’s stay on Kauai. As usual, the state’s news organizations would not pony up for a lawyer to try to pry what should have been public record out of Kauai. Challenging the government and fighting for open meetings and public records is not in the tradition of Hawaii journalism.

Ko produced a report that found nothing new, but he appended to it an enormous stack of interview transcripts that obviously had nothing incriminating in any of them.

Although it really was nothing more than a stage prop for the island-wide television audience, Ko’s gigantic but meaningless report sat on the conference table at every Police Commission meeting about Freitas.

It never was opened. No one ever quoted it. But its sheer mass was quite impressive and proof (or at least a hint) that there had been a thorough investigation, even if it found nothing.

Ko’s masterpiece also never has been made public despite repeated requests. Hawaii state public records law says the documents related to any investigation are public record once the case is concluded.

Even more amazing, the Police Commission refused to give Freitas a copy of Ko’s report or state in writing the charges against him. And that was a violation of the County Charter.

On Nov. 23, 2001, more than three months after he was suspended (a term Kusaka’s people repeatedly objected to—“placed on involuntary leave” was what they wanted to see in the newspapers), the Police Commission for the first time publicly unveiled the charges against Freitas and even voted to toss some of them out.

The most serious charge was the “hindering prosecution” complaint involving Gabriel, which in the end proved to be totally bogus.

A lot of jaws dropped in the room when the rest of the list was read aloud:

• That Freitas violated the Americans with Disabilities Act when he brought up a medical condition of an officer (Seto) during a private departmental meeting on officer assignments.

• That Freitas showed disrespect toward an officer (again, Seto) when he hung up on him during a telephone conversation.

• That Freitas improperly transported a civilian (his girlfriend and later wife Elizabeth Goynes, a retired California police officer) in his unmarked police car for non-police purposes on July 21, 2001.

• That Freitas and Goynes used the unmarked KPD car to house hunt on that date and that, while looking at houses, he parked illegally.

• That on Aug. 2, 2001, a few days after Seto and Morris had filed the complaint against Freitas but before he was suspended, Freitas allegedly had yelled at Morris during a private meeting in Freitas’ office, causing Morris to suffer a “nervous breakdown” that required him to take several days off of work.

• That in the same meeting, Freitas had violated Morris’s rights by ordering him to keep what they discussed in the meeting confidential.

That was it.

After two months of questioning everyone in the department, that was all Seto and Morris and John Ko and Maryanne Kusaka could come up with.

But, again, there is no definition of “cause” in the County Charter and Kusaka figured she had enough to convince the Police Commission to fire Freitas.

In the meanwhile, Freitas had hired Margery Bronster as his attorney.

During her tenure as Hawaii attorney general, Bronster had prosecuted members of the board of trustees of the Bishop Trust (the richest trust fund in the world, which was established to educate Native Hawaiians) for fraud. She ranks among Hawaii’s “superstar” lawyers.

One of the Kauai Police Commission (aided and abetted, of course, by the County Attorney’s Office) tactics was to refuse to announce when Freitas’ case was on its agenda for an executive session. State law requires the subject of executive sessions be clearly stated.

This agenda camouflage began to be applied after Freitas waived his right to privacy in Commission proceedings involving him. He wanted the public and press to witness the Commission at work.

But if his name didn’t appear on an agenda and no one knew if or when Freitas would be discussed, the public didn’t show up.

Reporters, Freitas and Bronster spent a lot of time together in the hallway outside the locked Commission door waiting.

“Is it always like this in Kauai government?” Bronster asked the first time the Commission pulled this stunt. “Every day,” a reporter told her.

Bronster immediately filed a lawsuit in federal court, claiming Kauai County violated Freitas’ civil rights (and his rights clearly guaranteed in the County Charter) by suspending him without providing any written charges to him and by failing to conduct a hearing at which he could face his accusers, Seto and Morris.

In his lawsuit, Freitas denied all the accusations against him except one: He admitted he had given Goynes a ride in his police car but denied they had ever used the county car to go shopping for a house.

U.S. District Judge Susan Mollway asked the attorneys for both Freitas and Kauai County for more detailed briefs.

The judge also blocked a hearing the Police Commission had scheduled for Dec. 28 at which Freitas was scheduled to be the only witness. None of his accusers was to testify. The Police Commission still met, it just didn’t conduct a hearing. As usual, Mayor Maryanne Kusaka attended the lengthy executive session. She remained for the public session but did not speak.

At that meeting, the Police Commission voted to drop the charges against Freitas involving allegedly violating the Americans with Disabilities Act, hanging up on Seto, telling Morris to keep the subject of his meeting with Freitas confidential, and illegally parking his police car.

That left the hindering prosecution charge, the giving his fiancé a ride in his police car charge, and the yelling at Morris charge.

Then, on Jan. 2, 2002, Deputy County Attorney Laurel Loo wrote Freitas advising he could return to work the following Monday, even though three charges against him were still pending before the Police Commission.

The Police Commission, which is the only entity that can, under the County Charter, hire and fire and suspend and reinstate a police chief, did not vote to put Freitas back to work. The County Attorney’s Office reinstated Freitas without a vote of the Police Commission.

In fact, the commission refused at its previous meeting to consider a request from Freitas that he be allowed to return to work until the case was resolved.

It never has been made clear who made that decision but clearly it was blessed by Kusaka and, just as clearly, the mayor was beginning her retreat.

Freitas went back to work.

Meanwhile, back in federal court, Judge Mollway on Jan. 18, 2002, turned down a request from Kauai County to dismiss Freitas’s lawsuit.

The judge took a shot at lawyer Loo’s somewhat diminished skills at writing legal briefs and reasoning: “Defendants appear to be asserting (less than clearly) that counties and county officials acting in their official capacities are not ‘persons’…and therefore cannot be held liable for claims. That assertion is wrong.”

The judge also raised questions about the confidentiality of information in the case: “They (Kauai County’s lawyers) do not explain what state or federal law, or what court order, requires them to keep information regarding the charge against Freitas confidential.”

In effect, the judge kicked the door open on Kauai’s efforts to keep both documents and meetings out of the public eye.

The tiny Kauai press corps cheered the judge’s ruling. But their editors just hunkered further down behind their desks.

Once again, no news organization would spend the money to hire a lawyer to pursue the court’s favorable inclination.

On Jan. 24, 2002, Judge Masuoka announced his decision that Nelson Gabriel was innocent on all 22 felony counts against him.

Five days later, the Kauai Police Commission resolved all the remaining charges against Freitas.

Masuoka repeatedly had said he would not rule on the Gabriel case until the Police Commission concluded the investigation of Freitas.

When Masuoka ruled a few days before the Police Commission acted, it was a clear indication the outcome of the Freitas probe had been decided before the Commission met for a formal vote. There can be no doubt Masuoka was told beforehand what the Commission would decide. Most important, the Police Commission absolved Freitas of the hindering prosecution charge.

The Commission found Freitas had violated department policy by giving Goynes a ride in his police car and was disrespectful to Inspector Morris (who, along with Seto, had by this time retired from the KPD) by yelling at him during a private meeting in Freitas’ office.

The Commission voted to send Freitas two letters of reprimand on the two policy violations.

Freitas, however, was fuming.

The County Charter guarantees a Kauai police chief be given a written statement of the charges against him and receive a hearing before the Police Commission votes. Freitas had received neither the statement nor the hearing.

“I’d still like to know exactly what I’m supposed to have done so I can answer the complaint,” Freitas said. “More than 150 interviews (by investigator John Ko) and this is the best we can do?”

Freitas said the whole matter could have been resolved the previous summer if the Police Commission “had the courage” to show him the complaint and discuss it with him at the outset.

“Who drove this thing?” Freitas asked. “I have no idea.” Of course, Freitas knew. The whole island knew. Not by accident, this was the only meeting of the Police Commission that Mayor Maryanne Kusaka did not attend since the Freitas affair began.

Clearly, the outcome had been decided before the commissioners ever voted and Kusaka didn’t want to be around to witness (or be interviewed by the press about) her own defeat.

Because he was reinstated and lost no pay, Freitas’ lawsuit against Kauai County became moot. But it had served its purpose.

Bronster said she was convinced the filing of the lawsuit in federal court by Freitas was the only reason he kept his job. She said she believed the commission records, which still were being kept secret, would “reveal that the plan from the outset was to hunt for an excuse to fire him.”

The commission records remain sealed. The news media would not pay for a lawyer to go to court to force Kauai County to make them public.

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