When in doubt, always stop and check out the rules.
Keeping that in mind, it wasn’t hard to find and download a copy of the
Kauai County Charter in order to check on the authority to discipline the chief of police.
Here’s what the charter says:
Section 11.04. Chief of Police. 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. The chief of police shall have had a minimum of five years of training and experience in law enforcement, at least three years of which shall be in a responsible, administrative capacity. He shall make such reports from time to time as the commission shall require, and shall annually make a report to the commission of the state of affairs and condition of the police department. (Amended 1984)
Nothing there giving the mayor authority to “temporarily” remove or suspend the chief.
And here’s another section dealing with appointment and removal of city officers.
Section 6.04. Appointment and Removal of Officers and Employees.
A. The administrative assistant to the mayor and all department heads shall be appointed and may be removed by the mayor, except as otherwise provided by this charter.B. Department heads may appoint the necessary staff for which appropriations have been made by the council. Department heads may also suspend, discharge or discipline subordinate employees as may be necessary for the proper conduct of the departments and subject to the classification and civil service laws.
Then there’s the section of the charter setting out the powers of the mayor. It begins:
Section 7.05. Powers, Duties and Functions. The mayor shall be the chief executive officer of the county. He shall have the power to:
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.
Again, there’s that big “except” referring to the charter’s specific granting of authority over the police chief to the Police Commission rather than the mayor.
Based on this quick look at the Kauai County Charter, it certainly seems that the chief answers to the police commission and not to the mayor. And there’s no indication that this decision was made by the commission.
The Garden Island quoted Perry:
“This is an action that was brought about by my superiors, and by that I mean the mayor’s office,” the chief said.
And if the mayor overstepped his legal authority in suspending Chief Darryl Perry, who should be holding the mayor legally accountable?
The ONLY thing that I am sure of in this mess that whatever happened or happens, Chief Perry will make the most moral and ethical choice. He is one in a million and an exceptional individual.
Ian — I’m not sure that I agree with your reading of 11.04. Are you certain that placing someone on a leave of absence would qualify as that person being “removed”? The Charter doesn’t seem to define the word…
But the charter provisions Ian cites do deal with suspensions and discipline and it seems clear that in the case of the chief it is the commission’s prerogative to exercise these powers, not the mayor’s.
It seems to me that the Charter provisions dealing with suspensions and discipline leave that up to department directors to deal with their subordinates. (6.04(B))
I’m not sure the Charter is as clear on whether it’s the Police Commission or the mayor who has the power to “discipline” the police chief, though I would venture that the mayor’s office would not even concede that this leave of absence constitutes “discipline.”
I’m not saying Ian’s definitely wrong — I’m just saying the Charter isn’t so clear about it.
I think it is pretty clear it the Police Commission has authority over the Police Chief and not the Mayor. Police commissions were established to buffer police departments from direct interference from politicians as a means of rooting out corruption and favoritism.
Look at:
Section 11.06. Discipline and Removal. 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.
So “suspension” is clearly a form of “discipline” under this section. The Chief of Police is not protected from arbitrary discipline or removal by civil service laws. His due process protection comes from receiving a hearing by the police commission. If your alternative approach were to prevail, the Chief would have no protection from arbitrary and capricious abuse from a mayor.
Frankly, the Kauai county government appears to be even more dysfunctional than the City & County of Honolulu. Maybe it has always been that way. But it can no longer hide in the backwaters, unobserved. Even if the dominant newspaper and television stations do not pay attention to their ineptitudes, the internet helps the truth become observed.
Again, I don’t know for a fact that you’re wrong, but I think you’re leaping to conclusions not supported in the text of the Charter.
The chief of police is not an officer or employee covered by civil service law, I believe. So 11.06 wouldn’t seem to apply to him. And, again, I’m not sure that a leave of absence pending an internal investigation qualifies as “removal” or “suspension” or “discipline.”
Do you have definitions of those words that you can point me to? Is Perry being paid during this absence? Is this a punishment for wrongdoing?
I honestly don’t know the answers to those questions, key ones in determining whether Carvalho overstepped his bounds. In absence of those answers, I’m not ready to say for sure that the Charter was violated.
Why don’t you start by asking the Kauai Police Commissioners if they feel Carvalho is overstepping his Chartered authority?
Unfortunately, police commissioners aren’t talking, and instead refer all questions to the Mayor’s office. However, they are apparently considering hiring outside counsel to advise them in this matter.
Michael,
My point in quoting from the Charter was not to say the Chief is covered by civil service. I think I stated that he is not. My point was to say suspension IS listed under the section on “Discipline and Removal,” so it IS a form of discipline.
I don’t practice employment law, so doing the legal research for you is beyond my abilities. But as a GENERAL argument, I think the charter makes it clear it is the commission who has authority over the chief and that the protections which are enumerated for him as a basis for dismissal, i.e., the right to a hearing in front of the commission, probably apply for any disciplinary proceeding. Since he is NOT covered by civil service, he still needs some guarantee of protection from arbitrary treatment, hence the hearing before the commission.
Is that “rock hard” evidence? Of course not. You’d have to consult someone with legal expertise. But I suggest this is the correct picture in broad outline.
I know you worked on Kauai, but why did you feel a need to challenge Ian’s reading of the Charter if, as you say, you are not sure how to interpret it yourself?
I felt the need to chime in because I thought the headline (“Kauai Mayor appears to have overstepped legal authority in suspending police chief”) was pretty strong considering the fuzziness of the Charter and the lack of evidence.
I’m as curious about what’s going on over there as anybody, so I was hoping someone else reading or writing in this generally thoughtful space would be able to help me understand the issues, particularly the legal ones. Alas…
Reflecting on Dan Nakaso’s attempt to interview the mayor on this strange suspension, I would guess his honor is being evasive and possibly hiding something. A hundred attorneys might render as many opinions on the fuzzy Kauai charter but clearly when Hawaii statewide formed commission control over cops in each county, the legislature intended to depoliticize police administration.
In the1 970s when the police commission on Big Island fired the late Ernie Fergerstrom, the mayor was angry but he aimed that at the commission, not police. (Courts ultimately reinstalled Fergerstrom long enough for him to negotiate a decent retirement.)
When I came to Hawaii in 1966 Kauai was described as “different” to me by many folks. I doubt much has changed