2004-01-AU Hawai‘i County Police Department Vehicles

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B. Corporation Counsel Guidance dated August 26, 2003 I n reply to the Auditor's Off ice queri es of July 15, 2003 Deputy Corporati on Counsel Patri ci a K. O' Tool e provi ded a wri tten opi ni on dated A ugust 26, 2003 ( Corporati on Counsel WRK N O. 03 -5909. A copy of the opi ni on may be found i n A ppendix D of thi s report. I n response to the questi ons posed by the A udi tor' s Offi ce, Corporati on Counsel provi ded gui dance, summarized as fol I ows: (1) Re. Questi on 1; Response. " Yes, the County may change i is pol i ci es i f i t consul is wi th the U ni on and such change may be i naugurated at any ti me duri ng the I ife of the contract." Corporati on Counsel added: " Nei ther the statute [ H RS §89 -9(c)] nor the SH OPO arti d e i n questi on I i mi t the change i n pol i cy to a parti cul ar ti me or state that a change may only be made at the end of the contract." (2) Re. Question 2; Response. " The I anguage of Arti d e 18 makes no reference to payment of the car al I owance. Its plain meaning is to specify the period of time that the subsidized vehicle may be used. Readi ng i nto thi s arti d e a requi rement that a car al I owance be pai d for ei ght (8) years even i f an officer is no longer required to drive a subsidized vehicle goes far beyond the language of the contract." (3) Re. Question 3; Response. " We do not bel i eve any such obligation arises ... I am not aware of any promi se made to conti nue to pay for vehi d es i f the pol i cy i s changed." (4) Re. Question 4; Response: "The terms of the provision [Article 18(M), SH OPO contract] are sped fi c to M aui and Kauai counti es. H owever, shoul d the pol i cy on subsi di zed vehi d es change, we expect that SH OPO, the empl oyer, woul d meet to negoti ate i tems ref ati ng to the effects of the change si nce they woul d I i kel y fal I under the category of 'ter ms and condi ti ons of empl oyment' whi ch must be negoti ated. A si mi I ar provision might result." (5) Re. Questi on 5, Response: " I understand that M r. Ashi da has i nformed your offi ce that no wri tten opinion had been issued by this office as may have been indicated in the West Hawaii Today arti cl e." Re collective bargaining: "According to H RS §89-9, the employer and the exclusive representative are required to meet at reasonable times ... to negoti ate i n good fai th wi th respect to wages, hours etc. and other terms and condi ti ons of empl oyment whi ch are subj ect to negoti ati ons under the I aw. U nder H RS §89-2 the empl oyer i s the mayor." Re Cound I appropri ati ons: " U nder H RS §89 -10, al I cost i tems i n the agreement are subj ect to appropriations by the Council. To the extent that the subsidy for a police vehicle is a cost item, the Counci I has the authority under the I aw to re ect it if desi red." Re pol i cy maki ng authori ty of the Cound 1: " I f the questi on refers to some pol i cy maki ng authori ty of the Council, as set forth i n §3-1 of the County Charter then whatever the Council sets forth as pot icy must be exami ned to see i f i t i s i n fact pot i cy. I n Ci ty Cou nci I of the Ci ty and Cou my of H on of u 1 u v. F asi 52 H aw. 3 (1970) a resol uti on of the counci I whi ch was sai d to set forth pot i cy wi th respect to the I ease or rent of ci ty property was found by the court to be an exerd se by the cound I of executi ve power. Thi s was found to be i nconsi stent wi th the pri nd pl a of separati on of powers i n which the legislative branch of the city and county and the executive branch are coordinate and 11