More Honolulu police officers accused of wrongdoing while on the job may have been eligible to receive legal representation than actually were approved, a key member of the Honolulu Police Commission said.

And the commission is now considering a rule change that would rectify what has been an “illegal” interpretation of the law, said Commissioner Steve Levinson, who is heading the effort to change the commission’s Rule 11.

The proposed change states that when deciding whether to approve legal counsel, commissioners must decide whether a police officer’s actions were done “in the performance of an officer’s duty as a police officer,” Levinson told reporters Wednesday.

Currently, the language states that commissioners should decide whether the officer’s actions were done “in the course and scope of employment,” he said.

The state law giving county police commissions the authority to provide legal counsel makes no reference to “course and scope of employment determination,” Levinson said. Under that city interpretation, the commission has granted legal representation “only in cases in which the city would be liable if the allegations of a complaint are true.”

That’s not what the state statute says, said Levinson, a retired Hawaii Supreme Court associate justice.

“In my view, the rule as it’s presently written and interpreted limits the authority conferred by the Legislature in the statute, and that’s illegal,” he said. Administrative rules, such as the one used by the commission in determining legal representation, “cannot limit the statute that you’re trying to implement.”

As a result of the wrong interpretation, Levinson said, “it probably means that fewer police officers have been granted representation than the Legislature originally intended.”

Both Levinson and commission Chairman Max Sword said they’re not sure what kind of impact the rule change might have in terms of how many more officers would be entitled, nor could they say whether officers or former officers would be able to apply for compensation retroactively under the rule change.

The proposal is still in draft form. Sword said the commission wants to hear first from city Corporation Counsel Donna Leong’s office.

Vladimir Devens, an attorney for the State of Hawaii Organization of Police Officers, said he concurs with Levinson’s assessment that the commission has been interpreting the state law incorrectly. As a result, arbitrary decisions were being made by the commission about who should get legal representation, Devens said in an email response to questions by the Honolulu Star-Advertiser.

Arbitrarily or improperly denying officers legal representation under a course-and-scope standard “can have a chilling effect on our officers,” which in turn could be detrimental to public safety and the officers, Devens said.

“Requiring an officer to hire and pay for their own lawyer to defend against a frivolous lawsuit could bankrupt an officer,” he said. “Our officers are confronted with false allegations all the time. If an officer thinks that he/she may have to pay out of pocket for their own legal representation to defend against a frivolous lawsuit, it could cause an officer to hesitate acting in response to a situation when a split-second decision is required in the face of an immediate danger.”

Devens said that if the rule change were to be made, those denied legal representation based on a course-and-scope standard should be compensated. “However, it may be difficult to do in reality if no appeal was filed by the officer,” he said.