Judge tells police
panel to verify vote

At stake are legal fees
for an ex-officer guilty
of jail food funds theft

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By Debra Barayuga
dbarayuga@starbulletin.com

A circuit judge has asked the Honolulu Police Commission to show it had the proper votes to deny retired Assistant Police Chief Rafael Fajardo legal fees in the cellblock food scandal.

In a written ruling issued Friday, Judge Eden Elizabeth Hifo ordered commissioners who agreed with the decision to sign it. If there is not a majority of four votes, the commission should obtain a new member or get the required votes to grant or deny Fajardo's request, she said.

Fajardo pleaded guilty to second-degree theft last month. He was accused of authorizing the purchase of food consumed by police officers and higher-ups under the guise that it was to feed prisoners at the Honolulu Police Department's Central Receiving Desk.

He cited the commission's denial of his legal fees as a contributing factor to the plea.

Fajardo appealed the commission's Aug. 1 denial of legal fees to the Circuit Court, arguing that the decision was invalid because he was not afforded a hearing by a full commission.

The City Charter had established a Police Commission of seven members, but there were only six commissioners at the time because one had resigned. Only four commissioners were present and voted at a July 31 contested case hearing on Fajardo's request for legal fees.

The vote was split 2-2 on whether Fajardo's actions were within the scope of his duties as a police officer. State law entitles police officers to legal representation when they are prosecuted for acts done in the performance of their duties.

Fajardo argued his actions were within the scope of his duties and that it was unclear how many commissioners agreed to the decision to deny him legal counsel.

Duane Pang, attorney for the commission, had said that although two commissioners found that Fajardo's actions were within the scope of his duties, they later agreed with the commission's findings that Fajardo had failed to meet this burden because he did not persuade all four commissioners.

Hifo ruled that the contested case hearing was conducted with the required quorum of four commissioners and that there was "substantial evidence" to sustain the commission's decision.

Hifo noted, however, that commission records are not clear on whether there were the required four votes to support its findings that:

>> Fajardo was "not credible" when he asserted he did not know that forms used to order food for detainees were used to purchase food for police officers.

>> His actions were not within the scope of his duties.

Hifo noted she was not requiring the commission to hold a new hearing, but Fajardo's attorney, Howard Luke, said he probably will request one. "We'd like as many commissioners there" as possible, he said.

Luke said he hopes the commission does not consider Fajardo's no-contest plea as a basis to deny him again. "I'm hoping we won't have to appeal this again if we get an adverse determination."

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Honolulu Police Commission