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A law passed nearly two decades before Hawaii became a state is at the center of an increasingly bitter fight between the Honolulu Police Commission and former Honolulu Police Chief Louis Kealoha over who should foot his upcoming legal bills — the taxpayers or Kealoha himself.

The statute, which is , guarantees county police officers taxpayer-funded legal defense in both criminal and civil cases arising from their work as police officers.

But deciding which officers get the public’s help not always simple as it sounds.

The county police commissioners are supposed to determine whether an officer was in fact performing his or her duty as a police officer when an alleged incident occurred.

Missing from that calculus, however, is a clear explanation of what exactly it means to be performing their duty.

Such ambiguity has put the Honolulu Police Commission in an awkward position, particularly as it relates to Kealoha, who’s under federal investigation for allegations related to corruption, abuse of power and possible civil rights violations.

Kealoha has asked the commission to pay for his legal expenses in a lawsuit filed last year that contains allegations related to the ongoing corruption probe.

But a decision in that matter has been delayed due to the former chief’s attempts to get commissioner Loretta Sheehan booted from participating in the decision.

And while it might seem like a public relations faux pas for the city to hand over the cash to Kealoha, the way the law is written might not give the commissioners much choice.

“The whole situation cries out for the Hawaii Supreme Court to do something,” said Steven Levinson, a former associate justice of the high court who now sits on the police commission.

When Is An Officer Still A Cop?

Levinson has been critical of how the Honolulu Police Commission approves or denies legal counsel for city police officers. He says the commissioners — with the support of city attorneys — have long been applying the wrong legal standard.

Some police officers might have missed out as a result.

One recent example includes former Honolulu police officer Nelson Tamayori, who watched as his partner, Vincent Morre, punched, slapped and kicked two men inside a game room.

The incident was caught on surveillance video and Morre, Tamayori and another officer in the room, Joseph Becera, were charged with federal crimes.

They were also eventually of the assault.

Tamayori and Becera both asked the commission to pay for their legal counsel in the lawsuit, but only Becera’s request was approved despite the fact that both men were in nearly identical situations as bystanders to the violence.

Levinson has said the way the law is written appears to broaden the scope of who gets subsidized legal funding when accused of a crime or named in a lawsuit.

But what’s missing, he said, is a clear legal interpretation that eliminates the gray areas.

For instance, it might be clear that an officer who shoots and kills an armed bank robber is entitled to legal counsel, both in civil and criminal proceedings.

But what about the officer who responds to the same bank robbery and gets accused of pocketing $1,000 from the safe? Is that person eligible?

“Unfortunately the statute doesn’t shed any light on it beyond the words that it uses,” Levinson said. “That’s where the courts come in, and so far no Hawaii court has done that yet.”

A Mechanism To Maintain Morale

The legislative history doesn’t do much to clear up the issue. In 1941, the Hawaii Territorial Legislature passed the bill that would eventually become the law today.

Here’s the relevant language from the current law:

Whenever a police officer is prosecuted for a crime or sued in a civil action for acts done in the performance of the officer’s duty as a police officer, the police officer shall be represented and defended:

(1)  In criminal proceedings by an attorney to be employed and paid by the county in which the officer is serving; and

(2)  In civil cases by the corporation counsel or county attorney of the county in which the police officer is serving.

Levinson said that in the 76 years since the law passed there hasn’t been a bright-line legal analysis to help police commissioners make the call on what constitutes those acts.

“That’s a very good question,” Levinson said. “Because nobody’s quite sure what the Legislature specifically thought that it meant.”

The only insight he’s gleaned comes from a 1941 committee report in which legislators at the time recognized that county police officers were increasingly being accused of wrongdoing.

Those territorial lawmakers said they felt that “some such provision must be made if the morale of the force is to be maintained.”

For the most part, the debate over whether an officer gets legal counsel has taken place out of the public view. Levinson said he doesn’t expect that to happen with Kealoha.

‘You Need To Have The Officer Protected’

The former chief has been under investigation by the U.S. Justice Department for more than two years after allegations surfaced that he and his wife, Katherine, a city prosecuted used police resources to frame her uncle for the theft of their mailbox.

In December, a retired officer pleaded guilty to felony conspiracy after admitting he took part in the set-up. Shortly after, Kealoha was served with a target letter indicating investigators had “” linking him to the commission of a crime.

Kealoha, who retired in March, has also been named in a lawsuit filed by his wife’s uncle, Gerard Puana, who is the man accused of stealing their mailbox.

It’s this legal action that Kealoha wants taxpayers to subsidize.

In the complaint, Puana alleged that Kealoha, his wife and other officers used abusive police tactics and malicious prosecution to systematically deprive him of his rights.

Among the allegations are that the defendants, which included the Kealohas and five other police officers, stole money, forged documents, conducted inappropriate surveillance and lied to investigators so that Puana would be wrongfully arrested, jailed and prosecuted.

The allegations specific to Louis Kealoha included that he knowingly perjured himself on the witness stand and “repeatedly lied to and/or made deliberate misrepresentations”  to the officers assigned to the mailbox theft case.

The question for police commissioners is whether those are “acts done in the performance of the officer’s duty as a police officer.”

The police commission has already approved legal counsel for Dru Akagi, who is one of the officers named in Puana’s lawsuit.

Last month, the Honolulu City Council allocated for his defense, although that amount can be increased.

Honolulu defense attorney Victor Bakke, who often handles police matters, said it appears Kealoha deserves taxpayer-funded legal representation in the lawsuit, if only because he’s being accused of abusing his police authority in the alleged commission of what so far is an unproven crime.

Bakke said until charges are filed and convictions are secured, Puana’s allegations in the civil suit are merely accusations.

“You need to have the officer protected,” Bakke said, noting just how easy it is for someone to make up an allegation of wrongdoing against an officer.

“This is something specific to the chief and what he may or may not have done while abusing his authority. He’s not your run of the mill officer. But the bottom line is they need to be and they deserve to be defended from civil claims.”

On its face, Bakke said the law seems seems fair. He also called it necessary.

Police officers are often accused of bad behavior while on the job, whether it’s for being too rough with suspects, making lewd comments during a traffic stop or inappropriately pulling the trigger on their guns. Sometimes the allegations have merit. Other times not.

“Even as lawyers we get accused of stuff all the time,” Bakke said. “It just comes with the territory.”