Honolulu Police Commission under scrutiny with chief Susan Ballard’s exit

It’s been a trying year for the Honolulu Police Department, which has found itself time and time again in the spotlight, whether it be for its poor financial decisions, disparities in arrests and use of force, flawed internal policies or lack of transparency.

The entity created to keep HPD from running amok is the Honolulu Police Commission, but is it properly set up to provide effective oversight to its Police Department?

In recent years the Police Commission, made up of seven civilians nominated by the mayor and approved by the City Council, has been seen as ineffective by its critics, and blame usually lands on the commission’s disinterest in challenging HPD and the police chief or its inherent lack of power to force changes it feels are necessary.

Over the past year the panel had recommended to HPD that it adequately punish officers for misusing body-worn cameras and establish a new division to respond to cases involving homeless people, drug misuse and mental health issues. It’s also inquired about rampant overtime abuse, misuse of federal aid and, more recently, investigations involving police shooting and killing civilians.

It has had a difficult time doing anything beyond asking questions and making recommendations, though.

But its annual performance review of HPD Chief Susan Ballard on April 7 and the chief’s subsequent announcement to resign before the end of her term demonstrated that the commission has substantial leverage over HPD’s chief and, by extension, the department. And with Ballard’s exit, it falls to the commission to select a new police chief.

The Police Commission is, by design, primarily an advisory body to HPD. It can review and make recommendations on HPD’s annual budget and the chief’s five-year plan, but it can’t make changes to them, for example.

Honolulu’s City Charter itself says that “neither the commission nor its members shall interfere in any way with the administrative affairs of the department.”

It’s not without any tools, however, and as a citizen oversight agency, its most important one may be the ability to suspend or fire police chiefs for any reason.

That was on display when the panel delivered its stinging performance evaluation of Ballard for her work in 2020.

The evaluation included placing the chief on a “performance improvement plan,” which has been interpreted as an ultimatum to force Ballard to improve or face punishment.

It wasn’t meant to be that way, according to Commissioner Richard Parry.

“It was not intended to be a threat or anything like that,” he said. “It was a way to address the issues we had … said were areas of concern for us. … We had hoped the chief would have embraced the plan.”

But when Ballard resigned after complaining that she no longer had the commission’s support, it was apparent that its power to suspend or fire her — and pick a new chief — was threatening, regardless of intent.

“I do think that their performance evaluation was a reflection of some of their priorities and what the chief should be doing,” Brian Black, executive director of the Civil Beat Law Center, said of the Police Commission. “What they can do to exercise their authority over the chief — ultimately leading to hire, fire (the chief). … That’s how they make their thoughts known.”

Even before Ballard’s evaluation, it was Black’s opinion that the city charter had given enough to the Police Commission to do its job properly.

Others have felt the same way.

Steven Levinson and Loretta Sheehan, both reform-minded police commissioners who resigned last year, have also said there isn’t a need to overhaul the city charter to give the commission more authority.

Levinson has often emphasized that the makeup and culture of the panel determines its success or failure, rather than the rules that are in place.

He applauded the new iteration of the Police Commission — now including Doug Chin and Michael Broderick, who have both shown a willingness to challenge Ballard — for being critical of HPD.

“If the commission continues in this way, we’ll see a major step forward over the past … which has been developing over the couple of years but has really flowered with this evaluation,” Levinson said.

Even current Police Commission Chairwoman Shannon Alivado said the city charter doesn’t need changing.

“I do believe the current Charter together with our Administrative Rules provide the Commission with sufficient ability to exercise oversight over the Chief of Police,” Alivado said in a written statement.

Nationwide, the Honolulu Police Commission appears average in its abilities as an oversight agency of a police department, according to a 2019 University of Chicago Law School data set, which provides an overview of civilian oversight agencies in 100 of the most populous cities in the country.

Some agencies in cities with populations similar in size to Honolulu are even more basic in function, while in other cities there are no oversight bodies at all.

On the other hand, agencies like the Milwaukee Police and Fire Commission in Wisconsin are relatively supercharged. Its commission can prescribe rules for both the city’s Police and Fire departments that chiefs cannot override, and rules by the chiefs must be approved by the commission.

In larger cities, police departments are overseen by multiple agencies that specialize in different oversight functions.

Despite its apparent middle-of-the-road functionality, the Honolulu Police Commission’s subpoena power is relatively uncommon among oversight agencies, according to Sharon Fairley, the University of Chicago Law School professor who put the data set together, adding that it is an important tool communities around the country are demanding for their own civilian oversight bodies.

She also said the Police Commission’s firing ability is “really, really rare,” and named only four other civilian oversight agencies nationwide that can do the same.

That’s a good thing, according to Black, who said that giving a civilian-led agency like the Police Commission the ability to hire and fire a police chief — instead of the mayor, for example — helps depoliticize the position.

“Somebody’s got that authority to fire the chief,” Black said, adding that “a citizens commission like this — it’s more removed from politics.”

But even if the Honolulu Police Commission is sufficiently authoritative, it’s far from perfect.

An accompanying publication by Fairley includes a list of obstacles to effective police oversight, and some are applicable to the Police Commission.

One is its lack of independence.

Its ability to issue subpoenas provides it with more independence, Fairley said, but because HPD decides the annual budget for itself and the Police Commission, which can only recommend changes to the budget, the commission loses some of that independence.

Another oversight obstacle is “continued backlash from police unions and leadership.”

Like other police unions around the country, the State of Hawaii Organization of Police Officers has shielded officers from punishment or accountability, as recently documented by a Honolulu city auditor report. SHOPO has fought to keep confidential the names of disciplined officers, and collective bargaining has provided officers with the ability to reduce their punishment, which more officers have successfully been doing over the past two years.

Additionally, Black said the Police Commission can improve by, for example, selecting commissioners who are “more closely tied to the community” by allowing the City Council choose one commissioner per district, rather than having the mayor nominate them.

Fairley is updating her data set to accommodate a wave of reform in police departments and their oversight agencies that followed the killing of George Floyd, a Black man who died at the hands of Minneapolis police during the summer of 2020. A trial is currently underway to decide whether former police officer Derek Chauvin murdered Floyd.

“There’s been so much going on in the world of civilian oversight in the last year and a half. There are newer agencies that have come online, and there are agencies that have been revamped,” Fairley said. “Cities are looking to enhance the effectiveness of civilian oversight by strengthening its powers, making it independent and making sure it has enough resources.”

Over a dozen of the country’s largest cities have created or updated their oversight agencies in the past year or so, she found.

Most police oversight agencies are fairly unique. Who should have the final say for policy and other oversight decisions for police departments “is the million-dollar question,” Fairley said, but ultimately function of the oversight bodies is up to the public to decide.

“When you think about civilian oversight, the whole point of it is trust and legitimacy. I don’t think there is a right answer here,” she said. “I think … whatever it is that will engender trust and legitimacy in policing, that’s the system that needs to be set up.”