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The Legislature is considering a bill that would require police misconduct in Hawaii to be entered into a national database, a system that could help prevent bad cops from being hired by another law enforcement agency.

Local departments would also be required to consult the National Decertification Index, which tracks officers fired or decertified for misconduct before making hiring decisions.

But depends on the , launched in 2018, to operate as it was supposed to, including putting in place standards for state and local law enforcement officers and establishing a process to decertify officers if necessary. An accredited Peace Officer Standards and Training organization, also known as POST, is a requirement for submitting and requesting information on behalf of state and county agencies to the NDI.

Although it has been in place five years, Hawaii lawmakers and governors have been reluctant to provide the money it needs to hire staff and implement the standards. There’s also been constant pushback from the county police departments, state agencies that have law enforcement functions and the statewide police union over numerous elements including the decertification requirement and even whether all officers should be held to the standards or just cops hired after the law was passed.

Police reform advocates pushed for a statewide database of police misconduct following the case of former Honolulu Police Department officer Ethan Ferguson. Ferguson was discharged by the department in 2012 and then hired by the state Department of Land and Natural Resources as an enforcement officer.

In 2016, Ferguson was found guilty of five counts of sexual assault after raping a 16-year-old girl at a Big Island beach park while on duty. HPD leadership never spoke about the reasons for his firing and his disciplinary report was destroyed.

More recently, the state has agreed to pay $1.25 million to settle a lawsuit brought by the victim.

If HB 1611 passes, Hawaii would join states like California, Massachusetts, Minnesota, Tennessee, New York and Texas where use of the national database is mandatory for agencies. The NDI is currently used by more than 11,000 background investigators and department reps for pre-employment screening.

The “big picture” of the bill, says Rep. David Tarnas, chair of the Judiciary and Hawaiian Affairs Committee and a bill sponsor, is to enable informed hiring decisions by local agencies facing the difficult task of recruiting and retaining officers in Hawaii.

But Tarnas concedes that the timeline for implementing the law would have to be delayed because “the Law Enforcement Standards Board is not as far along as I thought it was,” he said.

And one provision of HB 1611 has already been removed after opposition from the because it provided some latitude for employing officers who may have been convicted for low-level drug offenses — essentially possession of marijuana.

‘Wandering Officers’ And Decertification

The NDI is maintained by the and currently has over 53,000 actions reported from 49 certified agencies. While use of the register isn’t mandatory in all states, it receives around 15 inquiries per day and is completely free to use, according to its executive director, Mike Becar.

“It’s not a blacklist,” Becar said.

But when the register started in 2000, he said, “a lot of these officers were being let go, stripped of their law enforcement authority, but they would go to another jurisdiction and do some of the same behavior.”

A 2021 found that “state-level data systems would fail to prevent decertified officers from moving across state lines to take new jobs at other departments.”

Becar said the national index has turned out to be an extremely valuable resource for recruiters and driven more state legislation requiring agencies to check the NDI before they hire.

Research on “wandering officers” who end up being rehired after misconduct is scant, according to a , but media investigations and studies have shown that they tend to stay in state and are rehired by smaller departments with fewer resources who are looking to save money on training costs.

Officers who are fired or resign due to misconduct are likely to replicate the behavior if they are re-employed and represent a liability for recruiters, Becar said.

The solution to wandering officers, proponents say, is a decertification process which would permanently strip an officer’s police powers.

But all that is moot while the Law Enforcement Standards Board is still recruiting its administrator and has not yet put the statewide standards in place. Issues related to the status of the certification of officers employed under existing collective bargaining agreements have yet to be resolved.

Assuming all of this can be settled, critics say wrinkles with the NDI will remain.

in 2021 found potential flaws with the NDI because some officers were allowed to retire or resign before decertification was complete and were not reported, and the threshold for what kind of misconduct gets reported to the database varies from state to state.

That means in some instances any misconduct short of a felony doesn’t end up being registered on the NDI.

Recent Reports Highlight Issue

Information on misconduct by Hawaii officers is not currently submitted to the NDI but the website links back to the most recent annual legislative disciplinary summary for the Honolulu Police Department for 2023, filed Jan. 31.

Ten officers were dismissed, resigned or were allowed to retire over misconduct in 2023 from all county departments and all those officers potentially remain eligible for rehiring.

Whether officers who were dismissed or resigned would be reported to the decertification index retroactively was an open question, Tarnas said, adding that is something that could be explored in committee.

As in the rest of the country, police departments in Hawaii are grappling with understaffing and trying a range of strategies to attract new recruits and lateral hires from other states.

Staffing shortages in local departments definitely should not be an excuse to lower standards for officers, the State of Hawaii Organization of Police Officers President Robert Cavaco said via email.

“However, the staffing crisis should not be exploited as a reason to pass poorly crafted legislation with no connection to recruitment or retention. Anyone truly wanting to address the staffing crisis should work proactively with law enforcement organizations to ensure the policies are both relevant and effective,” Cavaco said of HB 1611.