BEFORE ARBITRATOR AUDREY B. EIDE, ESQ. STATE OF HAWAII In the Matter of the Grievance Arbitration Between STATE OF HAWAII ORGANIZATION OF SHOPO No. 0-2017-031 POLICE OFFICERS, ARBITRATOR'S OPINION AND SHOPO, BORD vs. Grievance of Albert Lee HONOLULU POLICE DEPARTMENT, CITY AND COUNTY OF HONOLULU, Employer. Albert Lee was discharged on May 21, 2018, from his position as Detective with the Honolulu Police Department. State of Hawaii Organization of Police Officers (SHOPO) filed a grievance. This matter came on for hearing before the Arbitrator February 17 and 18, 2021, at the Blaisdell Exhibition Hall in Honolulu, Hawaii, ‘The Employer was represented by City and County of Honolulu Deputy Corporation Counsel Leslie Chinn and Deputy Corporation Counsel Exnest Nomura. Also present for the Employer were Labor Relations Specialist Pat Ah Loo and Clark Hirota from the City of Honolulu Department of Human Resources. SHOPO was represented by Keani S. Alapa, E'sq., Law Office of Viadimir P. Devens, LLC. The proceedings were reported by Certified Shorthand Reporter Donna N. Baba. ‘The parties agreed that the issue before the Arbitrator is: Was there just cause according to Article 13 of the Collective Bargaining Agreement to discharge Detective Albert Lee? If not, what is the remedy? The parties further agreed that the Employer has the burden of proof and the measure of proof is by clear and convincing evidence. There are no issues of substantive or procedural arbitrability. Each party had the opportunity to present evidence, to call and cross examine witnesses and to argue their case. Both parties timely filed post-hearing briefs on April 28, 2021. The Page 1 of 13evidence presented at the hearing and the arguments of the parties filed in post-heating briefs have been carefully considered. co iG ARTICLE 13: DISCIPLINE AND DISMISSAL A. Discipline Shall be For Cause- The discipline and/or discharge of regular employees shall be for cause. When it becomes necessary for the Employer to initiate and impose disciplinary actions against any employee, such actions shall be administered in a fair and impartial manner, with due regard to the circumstances of the individual case. Discipline shall be deemed to include written reprimands, suspensions, dismissals, disciplinary transfers and disciplinary demotions. STANDARDS OF CONDUCT Article VIL, Section C, Subsection 1 (Knowledge of Laws and Regulations) Officers are expected to establish and maintain a working knowledge of those ordinances of the City and County of Honolulu, statutes of the State of Hawai, standards of conduct and procedure and orders of the department and elements thereof which are applicable to their functions as police officers. In the event of the improper actions ot breaches of discipline, it will be presumed that the officers were familiar with the law, standard of conduct, procedure or order in question. Asticle VIL, Section C, Subsection 2 (Obedience to Laws and Regulations) Officers and civilian employees shall observe and obey all laws and ordinances and all rules, regulations, standards of conduct, and orders of the department, including any order of a superior oF any order relayed from a superior by an employee of the same or lesser rank. Article VIL, Section C, Subsection 10 (Performance) Officers and civilian employees shall perform their duties as required or directed by law, standards of conduct, other directives, policies or procedures, of by order of a supervisor. All awful duties required by competent authority shall be performed promptly and as directed, notwithstanding the general assignment of duties and responsibilities. Article VII, Section C, Subsection 12 (Conduct) Officers and civilian employees shall conduct theie private and professional lives in a manner which conforms to the highest professional behavior and demeanor. Page 2 of 13Article VIL, Section C, Subsection 16 (Falsification of Records) Officers and civilian employees shall not knowingly falsify, either orally ot in writing, official reports or enter ot cause to be entered, either orally ot in writing, any inaccurate, false or improper information on any records of the department. Article VII, Subsection C, Subsection 17 (Truthfulness) Officers and civilian employees are required to be truthful at all times, except as necessary in the performance of a specific lawful police objective. Article VIII, Subsection B, Subsection B 5 (Commission of any Criminal Act) Officers and civilian employees shall not commit any criminal act. Article VIII, Subsection D, Subsection D 16 (Traffic Regulations) Officers and civilian employees shall comply with traffic regulations and signals except when operating under the exemptions granted by law. In any event, caution shall be exercised to safeguard lives and property. Article VII, Subsection D, Subsection D 23 (Directives) Violation of departmental directives is prohibited. To wit: HBD Policy 4.13 (Police Vehicles) Il. VEHICLE OPERATIONAL PROCEDURES B. Off-Duty Operation-Subsidized Vehicles 2. Officers operating theit vehicles, both off and on duty, shall observe all traffic laws and regulations and ensute that their spouses, sons, daughters, and friends who use their vehicles while off duty also observe correct driving standards in order to avoid embarrassment to the department. HBD Policy 5.06 (Media and Public Relations) I, COMMITTEES, SPEAKING ENGAGEMENTS, AND INTERVIEWS C. News Media Interviews News media interviews with departmental personnel on police-related issues shall be conducted only upon approval of the individual's division-level commander; news media interviews with division-level commanders shall be conducted only upon approval of the commander's bureau ot deputy chief. Division-level commanders shall advise the Media Liaison Office of authorized interviews and topics to be discussed. Page 3 of 13,Note: This restriction does not affect procedures for the release of routine information on police investigations. ‘The officer in charge of a crime scene or of an investigation ‘may continue to provide routine information on police investigations to the news media. FACTS Detective Albert Lee, the Grievant, was a long-term Police Officer. In 2016 be bad been with the department for a litte more than twenty years. He had an exemplary performance record which included the prestigious award of Sergeant of the Year in 2008. At the time of his discharge, he served as a Detective with the Financial Crimes Detail. On November 17, 2016 at approximately 3:40 a.m. Detective Lee’s vehicle crashed into a concrete high voltage Hawaii Electric Company (HECO) switch room vault. This disabled electrical power to about seventeen hundred HECO customers in the Hawaii Kai area for several hours. Officer Mariano responded to the scene and did not see anyone in the vehicle. He ran the license plate of the crashed vehicle. He learned that the vehicle was owned by Detective Albert F. Lee. The vehicle was a subsidized Hawaii Police Department vehicle. Officer Mariano observed Detective Lee coming out of the door to the vault. Officer Mariano detected a strong odor of an alcoholic beverage on Detective Lee’s breath, his slurred speech, saw that Lee was unsteady on his feet, and had EE 10:c. Detective Lee told Officer Mariano that he had been “bar hopping” in the Honolulu area until approximately 3:30 a.m, Detective Lee related that he had been asleep in the front passenger seat atthe time of the crash. He stated he was too drunk to remember who was driving. He maintained he was not injuzed. An ambulance was called to the scene. About 3:56 am. Detective Lee was treated for a [EEE on the face. He was able to answer questions appropriately. He told the Medical Technician that be had been seated in the front passenger seat and was wearing his seat belt when the crash occurred. He refused further treatment. Sergeant Rick Yi arrived on the scene at about 4:00 am. Detective Lee told Sergeant Yi Detective Lee had been drinking alcohol with family and friends. He had too much to drink and his brother decided to drive him home. He fell asleep in the front passenger seat and awoke after the crash, The “driver” was nowhere to be found at the scene. Page 4 of 13‘The Department obtained warrants to search the vehicle. ‘The Honolulu Police Department conducted two internal investigations, a civil investigation and a criminal investigation. There is n0 dispute the investigations disclosed: There was severe damage to the front of the vehicle and the windshield had been shattered. The driver's eat steering wheel airbag and the side curtain airbags anking the driver and passenger seats had been deployed. There was (II matching, Detective Lee's DNA profile on the steering wheel airbag and the driver’s side curtain airbag. ‘The front passenger seat was unoccupied, and the passenger seathelt was not fastened at the time of the crash. Detective Micah Putnam of the Honolulu Police Department conducted the civil investigation. Detective Lee responded in writing on December 27, 2016 to the charges against him. He was interviewed February 1, 2017. Detective Lee told Detective Pumam in his interview the ceventin question had occurred the night before he was to testify before a Federal Grand Jury against Police Chief Louis Kealoha and Chief Kealoba’s wife, Deputy Prosecuting Attorney Katherine Kealoha. Detective Lee said he was being targeted and retaliated against because of his testimony regarding their alleged illegal activities. In his written statement and in response to Detective Putnam’s questions, Detective Lee changed his account of the events of November 17. He told Detective Putnam he had gone out to meet friends at a bar in Honolulu. He bad two beers. He had started feeling dizay and sick when he was drinking his third beer. He had thought he was having a medical condition ot that his beer had been dragged. He went to his car, laid down in the back seat to rest. From that moment until he regained consciousness after the crash, he bad no memory of what happened. No one was in the car with him when he regained consciousness. He claimed that when he had regained consciousness, he had found himself in the middle of the car with the top half of his body on the center console and front passenger seat, his head on the seat and his feet facing backwards. He was not sure if he came from the back scat. He continued to ‘maintain that he was not the driver of the car, but now he said he did not know who the driver had been. Detective Putnam asked for the contact information for the two friends Detective Lee said he had met at the bar. Detective Lee stated the contact information for these two friends was in one of his cell phones, and the only way he had access to their contact information was through that cell phone. He told Detective Putnam he did not know where it was. He said it was in his car at the time of the incident, and he did not have access to that phone at the time of the interview. Page § of 13Detective Putnam conducted a second interview of Detective Lee on March 28, 2017. Detective Putnam wanted clarification as to who was driving Detective Lee’s car at the time of the incident, and to further investigate Detective Lee’s assumption that his drink may have been drugged. He also requested contact information for the two friends Detective Lee said he met at the bar, or for anyone who was at the bar and might have information regarding the night of the incident. Detective Lee did not provide the requested contact information or offer names of further potential witnesses. Detective Lee spoke to the media after the accident without approval from his division-level commander. He stated he did not trust the Hawaii Police Department and the Prosecutors Office to do a fair investigation of the incident. He told the media that he was being retaliated against by the Hawaii Police Department, Chief Louis Kealoha and Prosecutor Katherine Kealoha, because of his testimony before the Federal Grand Jury regarding their alleged unlawful activities. ‘The investigation was reviewed by the Administrative Review Board (ARB). The ARB held a Loudermill heating on July 20, 2017. It was attended by Detective Lee and his SHOPO Business Agent Mr. Wade Tony Souza. They presented a response to the findings of the internal civil investigation. The ARB reviewed the investigation and the results of the Loudermill Hearing. A Predetermination Heating was held on April 5, 2018, after the ARB made a preliminary decision to recommend discharge. Again, Detective Lee and his SHOPO Business Agent were in attendance and presented a response to the ARB’s preliminary decision. The ARB then unanimously concurred that Detective Albert Lee should be discharged from the Honolulu Police Department. That recommendation was made to the Chief of Police Susan Ballard. ‘Meanwhile, the internal criminal investigation resulted in Detective Lee being charged with Operating a Vehicle While Under the Influence of an Intoxicant and False Reporting to Law Enforcement Authorities. ‘On May 9, 2018, Detective Lee was discharged from the Honolulu Police Department. Chief of Police Susan Ballard found sufficient evidence to support the allegations that on November 17, 2016, Detective Lee committed a criminal act when he operated his subsidized vehicle while under the influence of an intoxicant. She also determined he made untmithfal statements to investigators at the scene of the crash thereby causing inaccurate information to be entered on the Hawaii Police Department Report. Further, she concluded that after the incident he participated in Page 6 of 13an interview with the news media without authorization from his division-level commander. Detective Lee was charged with violating the Standards of Conduct set forth above on pages 2-4. SHOPO grieved the discharge. POSITIONS OF THE PARTIES Article 13 of the Collective Bargaining Agreement requires that discipline including discharge shall be for cause. Both patties argue the seven steps of just cause. The criteria for just cause are commonly summed up by Arbitrators as: knowledge of the standards of performance required of the employee and of the consequences if performance standards are not met, an investigation of the alleged violation of those standards, notice of the alleged offense, a chance to be heard, and consequences rendered commensurate to the offense. Notice; SHOPO argues that no one gave Detective Lee notice he could be discharged for a crime he did not commit. He was discharged for Operating a Vehicle While Under the Influence of an Intoxicant. The charge had not been prosecuted at the time of his discharge. After the discharge, it was dropped, and he pled no contest to Reckless Driving, Reckless Driving was not considered in the decision to discharge Detective Lee. Just cause requires that the Employer's rules and orders must be reasonably related to its safe operation or the performance it expects from their employees. SHOPO argues that discharging Detective Lee for a crime he did not commit does not meet that just cause standard. ‘The Employer argues that Detective Lee stipulated that he was aware and trained on the Hawaii Police Department Standards of Conduct. He knew he was required to follow them. As a ‘sworn police officer he knew that the commission of a criminal act and then being untruthful during ‘a Hawaii Police Department investigation were clear violations of the department's Standards of Conduct. Further, when Detective Lee was notified of the charges against him, he was handed a form titled “Honesty Considerations”. That document clearly states that untruthfulness and dishonesty can end a career. They argue that discharge for a criminal act and untruthfulness is, reasonably related to the orderly, efficient, and safe operations of the Hawaii Police Department. Investigation: SHOPO argues the investigation was not fair or thorough. Detective Putnam ignored Detective Lee’s expressed concems that the civil and criminal investigations were done internally by the department, under the supervision of Chief Louis Kealoba and the Prosecutor's Office where Deputy Prosecutor Katherine Kealoha worked. Detective Lee told Page 7 of 13Detective Putnam he had been targeted and retaliated against for his testimony before a Federal Grand Jury about the Kealoha’s alleged illegal activities. At the time of the crash Detective Lee was cooperating in an investigation with the FBI which included the Kealobas and the notorious crime boss Mike Miske. The investigation was to be kept confidential. Detective Lee testified at the Arbitration he was threatened by Miske and warned by Prosecuting Attomey Katherine Kealoha to back off on a warrant he had out for Miske’s arrest. He was very frightened for his and his family’s safety and under a lot of stress. Detective Putnam did not investigate Detective Lee's allegations that his drink might have been drugged. Detective Putnam did not interview Miske, Chief Kealoha or Deputy Prosecutor Kealoha. Detective Lee requested the ARB suspend a decision in his case ‘until the FBI investigation was concluded and he would no longer be under a “gag order”. They declined to do so. ‘The Employer argues that the investigation was fair and thorough. Detective Lee admitted at the Arbitration he was driving his vehicle after consuming alcohol, crashed into the cement high voltage HECO switch room vault and conceded some level of discipline is appropriate. This testimony by the Grievant supports the investigation was fair and thorough. The Employer points ‘out that Detective Lee mentioned the threats from Mike Miske and his fears for his safety for the first time at Arbitration. None of the excuses put forth by SHOPO above explain or justify Detective Lee’s actions of driving his Hawaii Police Department subsidized vehicle after drinking beers at a bar, crashing it into a cement high voltage HECO switch room vault and then failing to tell the truth during the investigation into this misconduct. ‘Truthfulness: SHOPO argues at Page 67 of their brief that Detective Lee has maintained all along he did not remember driving the night of the crash. He still does not recall driving that night. They maintain this has consistently been his statement of the events of November 17 and itis not a deliberate lie. He is now convinced he was the diver of his car at the time of the incident and takes responsibility for the crash. ‘The Employer argues that Detective Lee had many opportunities to tell the truth during the five-month investigation and prior to his discharge. Instead, they argue at Page 18 of their brief that ‘he was untruthful several times and changed his story throughout the investigation. Although he told various stories about what happened that night and who was driving his car, he never once told the truth. He lied about his own personal culpability and tried to cover up his wrongdoing, Page 8 of 13Appropriate level of discipline: SHOPO argues that Detective Lee’s discharge for a crime he did not commit was clearly in error. Chief Ballard did not consider the crime Reckless Driving when she discharged Detective Lee. She considered the crime of Operating a Vehicle While Under the Influence of an Intoxicant which is the crime he was charged with at the time of his discharge. ‘The Employer did not meet the seven tests of just cause and therefore cannot meet their burden of proof. SHOPO also argues that discharge is too harsh. Discipline should be progressive and corrective. They provided numerous examples of police officers that had committed crimes and received suspensions and Last Chance Agreements. They rely on Detective Lee’s exemplary record, long-term service, testimony by a previous supervisor and subordinate that they would welcome ‘working with Detective Lee again, and remorse for his actions, and commitment to abide by the Standards of Conduct expressed at the Asbitration to support their argument that he should be reinstated with a lesser discipline imposed. ‘The Employer argues that disparate treatment is an affirmative defense put forth by SHOPO. which places the burden of proof on SHOPO. They must prove the Employer improperly discriminated against Detective Lee. They pointed out that the cases cited by SHOPO do not involve officers who committed a criminal act and were untruthful. Such variations in penalties are not discriminatory when a reasonable basis exists such as degrees of fault or mitigating circumstances. The Employer argues that Detective Lee’s record, although exemplary, fails to ourweigh the egregiousness of his conduct. He can no longer be trusted to accomplish the goals set forth in the Hawaii Police Department Standards of Conduct. He has violated the trust of the department and the public the department serves. ‘The discharge should be upheld. Axbitrator’s Authority: SHOPO argues (at page 47 of their brief) that discharge is, considered the “labor relations equivalent of capital punishment”. This requires that the Employer be held to a higher standard of just cause. Reasonable doubts should be resolved in favor of the accused. The Atbitrator must be completely convinced that the employee is guilty. ‘The Employer on the other hand, at page 16 of their brief argue that the role of the Arbitrator is limited. In a discharge case the Arbitrator is to review and not redetermine management's decision or substitute their judgment for that of the Employer. They further argue that the proper standard for evaluating the Employer's decision is whether the decision to discharge Page 9 of 13the employee was arbitrary, capricious, or unreasonable. If the Employer's decision was not arbitrary, capricious, or unreasonable, or based on mistake of fact, its decision should stand. Detective Lee was discharged because he committed a criminal act and was untruthful. The discharge was not arbitrary of capricious. DI 510} Detective Lee admitted at the Arbitration Heating for the first time that he was driving his vehicle on November 17, 2016 when it crashed into the concrete high voltage HECO switch room vault. He testified that sometime in September of 2019 he ran into one of the friends who had been with him at the bar on that night. His friend confirmed he was in his cat alone. That information in conjunction with the physical evidence convinced him he was the driver of his car when it crashed, He subsequently pled no contest to Reckless Driving. Turning to the charge that Detective Lee was untruthful, he told several different stories about what happened at the scene of the incident and during the investigation, Officer Mariano responded to the scene. Detective Lee told Officer Mariano that Detective Lee had been “bar hopping” in Honolulu until about 3:30 a.m. He said he had been asleep in the front seat at the time of the crash, and that he was too drunk to remember who was driving. Detective Lee was treated at about 3:56 a.m. at the scene for a contusion on his face. He told the Medical Technician he was in the front passenger seat with his seat belt on at the time of the crash. Sergeant Yi arrived at the scene at about 4:00 am. Detective Lee told Sergeant Yi that Detective Lee had been drinking alcohol with family and friends, he had too much to drink, and his brother decided to drive him. home. Detective Lee said he fell asleep in the front passenger seat and awoke after the crash. The “driver” was nowhere to be found 2t the scene. Detective Putnam conducted an internal police department investigation of the incident. Detective Lee submitted a written statement in response to the charges against him and participated in an interview. Detective Lee changed his story again. He told Detective Putnam that he had gone to meet friends at a bar in Honolulu. He had two beers. He had started feeling dizzy and sick when he was drinking his third beer. He had thought he was having a medical condition ot that his beer had been drugged. He went to his car and laid down in the back seat to rest. From that moment until he regained consciousness after the ctash, he had no memory of what happened. No one was in the car with him when he regained consciousness. He claimed that when he had regained consciousness, he had found himself in the middle of the car Page 10 of 13,with the top half of his body on the center console and front passenger seat, his head on the seat and his feet facing backwards. He was not sure if he came from the back seat. He contiaued to ‘maintain that he was not the driver of the car, but now he said he did not know who the driver bad been. Finally, Detective Lee changed his story one more time at Arbitration. He testified that he sealized there was no other explanation for how the crash occurred than to conclude he was the driver of his car. The credible evidence supports that Detective Lee was untruthful in his statements to the responding Officers at the scene of the incident and during the subsequent investigation of the incident. His statement to investigators at the scene of the crash caused inaccutate information to be entered on the Hawaii Police Department Report. Chief of Police Susan Ballard testified that her decision to discipline Detective Lee was made after she considered the recommendation of the ARB, the file compiled by the ARB in their investigation, and the civil investigation by Detective Putnam. She found sufficient evidence to support the allegations that on November 17, 2016, Detective Lee committed a criminal act when he operated his subsidized vehicle while under the influence of an intoxicant. Chief Ballard also determined Detective Lee made untruthful statements to investigators at the scene of the crash thereby causing inaccurate information to be entered on the Hawaii Police Department Report. Further, Chief Ballard concluded that after the incident he participated in an interview with the news ‘medis without authorization from his division-level commander. The decision to discharge Detective Lee was made by Chief Ballard because she relied on the fact that Detective Lee had ‘committed the crime of Operating a Vehicle While Under the Influence of an Intoxicant. He was never convicted of that crime. He was not tested for intoxicants in his system at the scene. He did not admit he was the driver of his vehicle when the crash occurred. However, Chief Ballard had persuasive evidence at the time of her decision to discharge Detective Lee to find that he was guilty of Operating a Vehicle While Under the Influence of an Intoxicant. Officer Mariano responded to the scene of the incident. He observed Detective Lee coming out of the door to the HECO switch room vault. Officer Mariano detected a strong odor of an alcoholic beverage on Detective Lee’s breath, his slusted speech, saw that Lee was unsteady on his feet, and had {EEE uoder his ‘nose. Detective Lee admitted to the investigating officers he had been drinking prior to the crash. He told Officer Mariano he had been “bar hopping” and was too drunk to remember who was driving. Detective Lee told Officer Yi at the scene he had been drinking alcohol with family and friends, had too much to drink and his brother decided to drive him home. No one else was at the Page 11 of 13scene of the incident. The evidence obtained at the scene of the incident supports the charge of Operating a Vehicle While Under the Influence of an Intoxicant. The Employer had clear and convincing evidence Detective Lee committed this criminal act. ‘There is no dispute Detective Lee spoke to the media after the accident without approval from his division-level commander. He stated he did not trust the Hawaii Police Department and the Prosecutors Office to do a fair investigation of the incident. He told the media that he was being targeted and retaliated against by the Hawaii Police Department and Prosecutor Kealoha, because of his testimony before the Federal Grand Jury regarding their alleged unlawful activities. ‘The Collective Bargaining Agreement at Article 13, Section A requires discipline be for cause. It further requires “discipline shall be administered in a fair and impartial manner, with due regard to the circumstances of the individual case”. Chief Ballard testified at Arbitration that she determined the appropriate level of discipline for Detective Lee was that he be discharged. Chief Ballard came to this decision since Detective Lee had committed a criminal act and was untruthful about what happened the night of the incident. SHOPO presented examples at Arbitration of fellow police officers receiving discipline after they committed a crime. For the most part the examples reflect fellow police officers received suspensions and Last Chance Agreements for committing a criminal act. The examples of other disciplines amongst Detective Lee’s fellow officers do not include the offense of untruthfulness. SHOPO argued for leniency from the Asbitrator including a reinstatement of Detective Lee and a lesser discipline imposed upon him. Arbitrators have pointed out in numerous discharge cases that leniency is the prerogative of the Employer rather than that of the Arbitrator: and the latter is not supposed to substitute their judgment in this area for that of the Employer unless there is compelling evidence that the Employer abused its discretion. (Enterprise Wire Company, 46 LA 359 (Carroll R. Daugherty, 1966)). The Employer had just cause for the discharge of Detective Albert Lee and the grievance must be denied. Page 12 of 13AWARD ‘There was just cause according to Article 13 of the Collective Bargaining Agreement to discharge Detective Albert Lee. The Grievance is denied. Respectfully Submitted, this 22nd day of May 2021. andi Coda Audrey B. Bide, Esq. Arbitrator and Mediat Page 13 of 13