Law enforcement officers carry deadly weapons and are responsible for the community’s safety. That’s why they must be held to a higher standard in terms of both their qualifications and their accountability to the public — and that’s why the story about Ethan Ferguson is so disturbing.
Simply put, there’s too much secrecy around disciplinary records for police officers in Hawaii.
Ferguson is the 39-year-old Hilo man who was arrested last week and charged with multiple criminal counts.
The allegations were that he sexually assaulted a female minor while on the job as a state Department of Land and Natural Resources enforcement officer.
DLNR never should have given Ferguson the job, given that its hiring officers knew he had been fired by the Honolulu Police Department in 2012, and that he wouldn’t be welcomed back.
The detailed sequence of events isn’t known yet; DLNR officials have said the agency is doing its own investigation and cannot provide all the answers.
But regardless of the who-knew-what-when, the clear message is that the records for law enforcement officers need to be made publicly accessible at the point when serious disciplinary action is taken.
The sad fact is that Ferguson’s employment history only came to light because of allegations of an assault on a girl at a Hawaii island beach park he had been hired to protect.
Avoiding such cases is what disclosure of disciplinary records is meant to accomplish.
What seems apparent at this point is that DLNR failed in its due-diligence duties in the Ferguson case.
State Sen. Will Espero, who is conducting his own inquiry, has disclosed emails he’s received from HPD. In the documents, officials said that when approached by DLNR’s human resources office, they informed the agency that Ferguson had been discharged and that HPD would not be inclined to hire him back.
HPD said it gave DLNR contacts for further information but that none was sought, so HPD assumed Ferguson would not be hired.
The disposition of police disciplinary records has been a matter of legislative and legal challenge for some time. Journalists and others seeking greater disclosure have gone to court and advocated for legislation in the interest of public safety, but the impasse remains.
The law as it now stands declares that public employee personnel records can be made public if, among other circumstances, the employees have been suspended or discharged.
Assuming there isn’t a pending grievance, the agency can release their names, the nature of the job-related misconduct, a summary of the allegations, findings of fact and the disciplinary action taken.
However, county police officers only are subject to this limited disclosure in the case of their discharge.
Efforts to repeal the exemption, which weakens police officers’ accountability to the public, have been unsuccessful.
Last session, for example, Senate Bill 497 was heard and passed its first committee before stalling. Among the influential opponents of the bill is the police union, the State of Hawaii Organization of Police Officers.
Police departments have internal investigatory procedures and submit reports on misconduct to the Legislature, SHOPO argued in its testimony, adding that “release of officers’ names that have been suspended may have a chilling effect on the extent of action taken by officers who often have to make split-second decisions.”
But the misconduct reports, stripped of identification, don’t protect the public because it’s too difficult to piece together vague information that could warn future employers.
In a state less secretive about police misconduct, DLNR likely would have felt constrained from taking the cavalier approach it did in the Ferguson case.
And it’s the public that truly feels a “chilling effect” — it’s tough to feel as trusting of a police force that puts such a premium on privacy, even for officers who are found culpable of misdeeds.
The law should be as stringent with disciplined police officers as with any other public employee — if not more so.
