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Over the next few months, Hawaii’s statewide police union will negotiate a new contract expected to result in pay raises for nearly 3,000 officers spread across four counties, most of them on Oahu.

The talks, which include union, state and county officials, will take place behind closed doors and confidentiality provisions agreed to by the parties mean the public won’t know what’s on the bargaining table until the ink has dried.

One topic that’s unlikely to get much play, however, is police accountability.

Across the U.S., activists, politicians and others pushing for reform have turned their attention to the power of police unions and the collective bargaining agreements that for decades have protected problem officers.

The scrutiny has only increased over the past year after a searing summer of protests against police violence and racial injustice sparked by the killing of George Floyd in Minneapolis. Floyd, a Black man, died after Derek Chauvin, a white police officer, pinned him to the ground in handcuffs and held him there with his knee on his neck for almost nine minutes until he stopped breathing.

Chauvin is facing charges of second- and third-degree murder and second-degree manslaughter for his role in Floyd’s death.

Minnesota lawmakers responded by passing a series of reforms, including a change to a union-backed police arbitration process that allows officers who are fired for misconduct to get their jobs back on appeal.

Several other states and localities have followed suit, including Oregon and Washington. The U.S. Conference of Mayors even issued a report outlining how certain provisions in collective bargaining agreements hurt the nation’s ability to hold officers accountable.

No similar efforts appear to be materializing in Hawaii despite its recent history of police corruption and questionable handling of disciplinary actions, including the recent reinstatement of Honolulu police Sgt. Darren Cachola, who was caught on surveillance video in 2014 pummeling his girlfriend in a Waipahu restaurant.

The State of Hawaii Organization of Police Officers appealed Cachola’s termination and convinced an arbitrator to reinstate him with back pay despite a long trail of other domestic violence allegations and the payout of a $320,000 legal settlement with the city involving his ex-wife.

“This is one of those issues that we don’t talk about that can actually end up being one of the most impactful things we can do to address officer misconduct,” said ACLU Hawaii Legal Director Wookie Kim. “It’s baffling that we as a community don’t pay as much attention to the collective bargaining process and pass up on these opportunities to put pressure on stakeholders to reform the police.”

Real Reform Requires Contract Changes

Experts across the country have flagged various provisions embedded in union contracts that make it difficult to hold officers accountable. Many are contained in SHOPO’s current contract. In August, the U.S. Conference of Mayors to the nation’s collective bargaining agreements.

The report highlighted numerous problematic provisions, including those that allow for the destruction of misconduct records, limit the scope of internal investigations and give officers accused of wrongdoing numerous chances to appeal. Among the Conference of Mayors’ top concerns was giving arbitrators too much power to overturn a chief’s decision to discipline or terminate an officer.

Too often, the report said, an arbitrator can be “put out of business” if they don’t take a position that aligns with the union. That’s because in many cases the arbitrator must be approved by both the department and the union, and if the arbitrator makes a decision that goes against the union that individual might not be selected the next time around.

“It is the experience of many chiefs that arbitration panels frequently return serious and repeat offenders to duty,” the report says. “This is a key reason that it is so hard to discipline and remove errant officers.”

“We’re doing what we’re supposed to be doing, and that goes for any other union that operates in Hawaii or on the mainland.” — SHOPO President Malcolm Lutu

Stephen Rushin teaches criminal law and police accountability at Loyola University in Chicago, and has studied how union contracts, including SHOPO’s, have .

In addition to robust grievance and arbitration procedures, he found that many contracts contain language that give officers the upper hand when accused of misconduct, whether it’s allowing them access to evidence before interrogations or destroying records of their prior disciplinary history.

These provisions, he said, go beyond the scope of a traditional collective bargaining agreement that focuses on issues, such as wages, benefits and work conditions, and work to .

“It’s pretty straightforward,” Rushin said in an interview with Civil Beat. “If you want to be able to reform police departments, you need to hold officers accountable. If you want to ensure you have a good department — a department that is protecting the constitutional rights of the people that they police — you have to have some rigorous and consistent methods of internal discipline.”

In Hawaii, for instance, SHOPO’s contract states that officers accused of misconduct cannot be under interrogation for more than 30 minutes at a time unless they agree to it and are required to be on duty or otherwise paid while under questioning.

The agreement also places restrictions on when complaints can be investigated. Allegations of misconduct that are more than a year old are exempt unless there’s a criminal statute of limitations that extend beyond that date. The contract additionally requires the department to purge any “derogatory material” in an officer’s personnel file after four years, if not sooner.

If cities and states have any hope of enacting meaningful reform, officials need to address the language embedded in union contracts, says Daniel DiSalvo, a professor of political science at City College of New York and senior fellow at the Manhattan Institute.

That’s easier said than done, DiSalvo said. , and contracts are only negotiated once every few years.

There’s also a question of what will be given up in return, which usually equates to doling out more money, something DiSalvo said might not be palatable to mayors and other elected officials who sit down at the bargaining table.

“A big question to which no one knows the answer, seriously, is how much have mayoral administrations and city elected officials really prioritized getting their contracts right or are they just letting the unions win a lot of things on job protections because it doesn’t cost them money in the short run,” DiSalvo said.

“It’s impossible to know because what mayor or ex mayor is going to admit that they really slacked off and didn’t do their homework on the contract negotiations.”

There are few opportunities for public oversight, too, he said, because most deals are cut behind closed doors so there’s no real accounting for the trade offs as they’re being made.

Civil Beat reached out to the mayors of all four counties, including Honolulu Mayor Rick Blangiardi and Big Island Mayor Mitch Roth, who were both endorsed by SHOPO in the 2020 election. None of them wanted to be interviewed for this story.

HPD Chief: ‘It’s Difficult Sometimes’

Honolulu Police Chief Susan Ballard expresses some frustration with the SHOPO contract, particularly when it comes to having her decision to terminate an officer overturned by an arbitrator.

One of the most glaring examples involves Cachola, who was caught on surveillance video in 2014 drunkenly punching his girlfriend in a Waipahu restaurant. Cachola was fired in 2015 by former HPD Chief Louis Kealoha. He was subsequently accused of other acts of domestic violence, including in a lawsuit filed by his ex-wife that the city eventually settled for $320,000.

Still, an arbitrator reinstated Cachola in 2018 while Ballard was chief, and described the 2014 fight as a “playful sparring match” that was poorly investigated by HPD and misconstrued by the media. The arbitration decision was binding, meaning there was no chance to appeal.

The union tried to block HPD from releasing the arbitrator’s report explaining his decision to the public, but lost when the Hawaii Supreme Court ordered it to be released after Civil Beat filed a lawsuit arguing it was a matter of public record.

“Whether we like it or not, we have to abide by whatever decision is made,” Ballard said in an interview with Civil Beat earlier this week. “It’s difficult sometimes, but those are the rules that we have to play under.”

While she could push for changes in the contract, she said it ultimately comes down to the negotiators at the table, which are the union, the state and the county administrators, including representatives of Blangiardi. If there’s no consensus, Ballard said, then there’s little else she can do.

“Whether we like it or not, we have to abide by whatever decision is made.” — Honolulu Police Chief Susan Ballard

Ballard, who once told the Honolulu Police Commission she hoped nationwide calls for police reform skipped over the islands, said she hasn’t given a lot of thought to what changes could be made to the SHOPO to make her job easier when it comes to holding her officers accountable.

If she had any recommendations to improve the contract it would be to increase the pay scale for younger officers to improve retention. She would also like to see the state or city pick up the cost of child care for her workers.

“I think that would really help our officers out there on the road,” she said.

Kauai Assistant Police Chief Bryson Ponce was an active member of SHOPO before becoming an administrator. He served as both the union’s Kauai County chairman and as secretary for the SHOPO state board of directors.

Ponce said he could not discuss the ongoing negotiations, but in general said the current contract provides police departments with the necessary leeway to investigate officers who are accused of wrongdoing so long as proper procedures are followed.

While he admits that KPD is sometimes “caught off guard” by an arbitrator’s decision to reinstate a fired officer or reduce discipline, that doesn’t give anyone a free pass. He said often arbitrators are looking at whether an employee is “salvageable.”

“The union has never been a venue to hide misconduct or condone misconduct of police officers,” Ponce said. “The main purpose of the union really is to make sure that due process is afforded to the officers.”

SHOPO President Malcolm Lutu said his top priorities in negotiations are safety and salaries, although he did not provide specifics due to confidentiality requirements.

“Nobody wants this job anymore,” Lutu said. “One of the things we look at is pay and trying to compensate our officers.”

Pay raises aren’t the only way SHOPO has been successful in boosting officers’ bottom lines. In 2013, for instance, the union was able to secure an increase in the so-called “Standard of Conduct differential” that essentially pays officers for not getting into trouble, and could result in them bringing home up to an additional $8,000 a year.

Lutu said he did not foresee any changes being made to the department’s grievance and arbitration procedure. He also downplayed the union’s role in keeping troubled officers on the police force, even when pushing a case to arbitration.

“We don’t win all of them and we’ll only fight for the ones that we think the officers were right,” Lutu said. “If the officer was wrong and we can prove there’s no way of winning the case then the case doesn’t go forward.”

“That’s what a union is for,” he added, “to protect our employees and our membership. We’re doing what we’re supposed to be doing, and that goes for any other union that operates in Hawaii or on the mainland. We’re there to protect our employees and afford them salaries so that they can afford to live here.”