Loading...
HomeMy WebLinkAboutCOM 0583.000 1998-2000 /J~~V Oi jrgw 1. CURTIS TYLER, Ill ~ Tel: (808) 961-8273 Counnlmrrubrr Tom"' Pax: (808) 969-3291 :..N:, r ar'Mri COUNTY COUNCIL ' RECEIVED Coiu~d~ of Hawaii HuwuiiCountyBuildinS, 11me...__------~1/- ~Y---------------` , Hil Ht~wniiS96720 OptCounty Council December 13, 1999 MEMORANDUM TO: James Y. Arakaki, Chair and Council Members ~e'~.~cJ FROM: J. Curtis Tyler, 111, Chair Human Services and Economic Development Committee SUBJECT: Advisory Memorandums from I-lawaii County Charter Commission Attorney Christopher Yuen John Ray, Chair of the Hawaii County Charter Commission, requested that the attached advisory memorandums and correspondence from the Commission's attorney, Christopher Yuen, be shared with all Council members for your review. As you know, John will offer a brief update on [he Commission's activities at tomorrow's HSEDC meeting. ec: Legislative Auditor Attachments JCT/rf Comm. No. File No. ~'HA r~se~'e ySED Ref. To: G Ref. Date 1 4 1999 77-6399 Nalani St., Suite 1-A Kailun-Kona, Hawaii 96740 Kona Telephone: (808) 726-5684 Pax: (808) 326-5697 CHRISTOPHER J. YUEN HILO LAGOON CENTRE, SUITE 108 101 AUPUN[ STREET ATTORNEY AT LAW HILO, HAWAII 96720 TEL. (808)935-4429 FAX (808)935-1844 e-mail: chrisyuenz@hotmail.com November 23, 1999 Patrick Kahawaiolaa 260 King Avenue Hilo, Hawaii 96720 Harry Jim c/o 260 King Avenue Hilo, Hawaii 96720 Deaz Mr. Kahawaiolaa and Mr. Jim: The Charter Commission asked me, as its attorney, to respond to your concerns about § 1-2 of the Charter, which sets out the geographical boundaries of the County. You questioned whether the Hawaiian home lands should be included within those boundazies because of §4 of the Admission Act, which states that "the encumbrances authorized to be placed on Hawaiian home lands by officers other than those chazged with the administration of said Act [the Hawaiian Homes Commission Act of 1920] shall not be increased, except with the consent of the United States." In my opinion, the County of Hawaii does properly encompass the entire island of Hawaii, as stated in § 1-2 of the Charter. A brief history of the County government explains why. The Kingdom of Hawaii and Republic of Hawaii had no county governments. The Organic Act of 1900, §56, authorized the Territorial Legislature to establish counties. (Territories did not ordinazily have the power to establish counties under federal law.) The Territorial Legislature then passed a law in 1905 creating counties, including Hawaii County, which, according to the legislation, consisted of "the island of Hawaii and all other islands lying within three nautical miles of the shores thereof, and the waters adjacent thereto." When the Hawaiian Homes Commission Act was passed in 1920, it designated certain lands as "available" for the Hawaiian home lands program. These available lands included parcels on the island of Hawaii, which were, therefore, within the boundaries of the county. There is nothing in the HHCA which suggests that these lands were to be removed from the county. The HHCA established a new agency, the Hawaiian Homes Commission, to lease land. The Commission is not a separate government. There aze no provisions in the Act for the Commission to replace the services normally provided by the counties, such as fire and police protection. The Admission Act of 1959 put certain conditions on the Hawaiian home lands, including the "no new encumbrances" clause you mentioned. In 1959, [he Hawaiian home lands on this island were still within the boundaries of the County, and there is nothing in the Admission Act which suggests that they were to be removed from the County. We must assume that Congress was aware that these lands were included within the County, and that if Congress intended that the lands not be included, we would expect some statement describing how the normal municipal services provided by a County government would be replaced. Patrick Kahawaiolaa Harry Jim November 23, 1999 Page 2 Being under the jurisdiction of a local government, such as Hawaii Coun[y, would not normally be considered an "encumbrance" upon land. An encumbrance is a right or interest that a third party has in a piece of land, which diminishes its value, but does not rise to an ownership interest in the pazcel. Examples of encumbrances aze mortgages, other liens, restrictive covenants, and easements. Even if being under the jurisdiction of the County were considered an "encumbrance," it would not be a "new" encumbrance in 1959, because the Hawaiian home lands were already within the jurisdiction of the County. There are a number of practical problems which would arise if the Hawaiian home lands were excluded from the legal boandazies of the County. People living on Hawaiian home lands would not be eligible to vote for County offices. The County police would not have jurisdiction, the Department of Water Supply would have no authority to supply water, and the Fire Department would have no duty to put out fires. You aze correct in stating that Hawaiian home lands aze special. The County's legal authority over the Hawaiian home lands is different than over other land, including other state- owned land. For example, the County's zoning authority is affected by a pazcel's status as Hawaiian home lands. Exactly how the County's authority differs depends upon the situation and there aze a number of gray azeas, so I don't want to go into any detail about this. It is not for the Charter to specify how Hawaiian home lands are different; this is covered by other laws. There aze other kinds of land, besides the Hawaiian home lands, within the borders of the County for which different rules apply because of the different legal status. For example, because of federal law, the County has no real zoning authority over land within the national pazks. This does not change the fact that the County's boundazies properly include the island's national pazks, and residents living within the national pazks may vote in County elections. I hope that this letter satisfactorily answers the concerns you have. Yours truly, /5/ CHRISTOPHER J. YUEN Christopher J. Yuen CJY/np cc: John Ray, Hawaii County Charter Commission WORD\COUNLL.TRPK.135 HILO LAGOON CENTRE, SUITE 108 CHRISTOPHER 'T. YUEN lot AuruNl sTREET ATTORNEY AT LAW HILO, HAWAfI96720 TEL. (808)935-4429 FAX (808)935-1844 e-mail: chrisyucnz@hotmail.com November 9, 1999 Hawaii County Charter Commission John Ray, Chairman Re: Impeachment of Elective Officers Dear Chairman Ray and Members of the Commission: We discussed impeachment of elective officers at the October 16, 1999 meeting, and I was asked to make some suggestions for amending the impeachment sections. The specific sections on impeachment now in the Charter were added by the 1979 Charter amendments. Before 1979, there was a provision for impeachment, but it said only that the officer "may be removed by impeachment proceedings as required by law." The "law" referred to was H.R.S. §62-13, which provided for impeachment of county officials. Basically, the 1979 Charter amendments followed this law in calling for an impeachment trial at the circuit court, but increased the number of signatures from 25 to 100. H.R.S. §62-13 also used the terms "malfeasance, misfeasance, nonfeasance, and maladministration" as the grounds for impeachment. (This statute was repealed in 1988 because it had been superseded by the county charters.) At this point, it would be best forme to provide options for the Charter Commission rather than a suggested drafr of an amendment, because the Commission needs to make policy decisions about the kinds of changes it wants to pursue. Three basic areas of concem with the impeachment process have been discussed: (1) the potential for misuse of the process for harassment purposes, (2) the lack of clarity in some aspects of the present process, and (3) the vagueness of the standards for impeachment. A. "Harassment." There has been concern expressed by commission members and at least one person testifying before the commission that the impeachment process can be misused to harass elected officials. The impeached officer may incur personal liability for attorney's fees, and will spend time defending against an impeachment petition, even if it lacks merit. The attorney's fee issue has more sting for the official than the normal lawsuit Chairman Ray and Members of the Commission November 9, 1999 Page 2 which he or she may face arising out of official duties, because the normal lawsuit will generally be defended by corporation counsel at no cost to the officer. The Charter specifically forbids corporation counsel from representing officers in impeachment proceedings. §5-2.3. The County Council does have the power [o reimburse an elected official, including a council member, for attorney's fees incurred by that officer in defending against a failed impeachment proceeding. This is not specifically stated in the Charter, but by general law, the government may appropriate funds to reimburse an official for fees incurred by the official in successfully defending lawsuits (or impeachment proceedings) that azise from official conduct. Each side in a lawsuit generally pays for its own attorney's fees, unless there is a specific law covering the situation. "Costs" are routinely awarded to the winning party, but these aze only some of the direct expenses, like court filing fees, copying costs, and expenses of subpoenaing witnesses, and are usually far less than attorney's fees. Because there is no specific law allowing attorney's fees to the prevailing party in an impeachment case, the losing side will not be liable for the attorney's fees of the winner, unless the court finds that the entire impeachment petition was "frivolous", and "not reasonably supported by the facts and the law." H.R.S. §607-14.5. On the other hand, a group which successfully impeaches an officer will also be responsible for its own attorney's fees, unless the officer's defense is entirely frivolous. H.R.S. §607-14.5. [t is quite difficult to get an award of attomey's fees under the "frivolous" standard. In some kinds of cases, like breach of contract cases, the law provides that the winner ordinarily is entitled to reasonable attomey's fees against the loser, although there may be limitations on the amount awarded. There is a legal standard for the award of attorney's fees that is in between "frivolous" and "loser pays": the standard in the federal Equal Access to Justice Act, 28 U.S.C. §2412. This provides that in most cases where a person or a small business is involved in a civil lawsuit with the federal govemment, and wins, the person is entitled to attorney's fees unless the government's position was "substantially justified" or there are "other circumstances which make an award of fees unjust." "Substantially justified" means there was a reasonable basis in law and fact. The advantage to using this as a standard for awarding attorney's fees to a prevailing party is that there is a body of case law which would guide a court's decision about when fees should be awarded. The Charter could provide that attorney's fees can be awarded to the winning party under some circumstances, and a court will use this as the authority to award fees. Chairman Ray and Members of the Commission November 9, 1999 Page 3 Of course, an award of attorney's fees to one side does not necessarily mean that it will be paid: it must still be collected. The argument against awazding attorney's fees to prevailing parties in impeachment cases is that i[ might discourage individuals from bringing impeachment actions that did have merit. It would have a particularly chilling effect if the signatories were each potentially liable for the total amount of the fees joint and several" liability.) On the other hand, if each of I00 signatories on a petition is only liable for 1/100 of the opposing party's fees, it becomes so difficult to collect the fees that it may not be worthwhile to do so. If attorney's fees can also be awazded against an official who is successfully impeached, this potential liability may discourage officials from fighting the impeachment. Specific options for atoorney's fees are: 1. No change. 2. Provide that the county shall pay the reasonable attorney's fees of an elected official who successfully defends against the impeachment petition, unless the court finds that although the officer should not be impeached, the petition was substantially justified or there are other circumstances which make the award of fees unjust. Or, in the alternative, reimbursement could be made whenever the impeachment effort fails. 3. Provide that the losing party (or perhaps only the petitioners) shall pay the attomey's fees of the successful party, unless the petition was substantially justified or an award would be unjust. This can be combined with (2). The county would then pay the fees if they could not be collected from the petitioners (or possibly from the official). It has also been suggested that the number of signatures could be increased to require more popular support for the impeachment, and more commitment by the petitioners. This is not a legal issue so I will not comment further on it, except to mention that Honolulu and Maui require substantially more signatures than Hawaii County; Kauai also requires only 100 signatures. B. Unclear Procedures. The Charter currently provides that the petition for impeachment must be "verified". Again, this came from H.R.S. §62-13. Usually, in general rules of court, a "verification" means an affirmation made under penalty of perjury that the statements in Chairman Ray and Members of the Commission November 9, 1999 Page 4 the petition are true, although the affirmation can be made on the basis that the signer "is informed and believes" the statements to be true. The recent impeachment petition was dismissed by the Third Circuit Court because there was no verification of signatures. It is not clear from the present language whether each person signing must provide the verification, or whether it is enough that someone else verify under penalty of perjury that the person did sign. The latter is enough for initiative, referendum and recall petitions. My opinion is that under the present charter language, each person does have to separately sign a verification that they have been informed and believe that the accusations in the impeachment are true. The signatures need not be individually notarized as long as they aze made with a proper declaration that the signature is made under penalty of law. Another difficulty with the present procedure is that all 100+ petitioners are parties to the impeachment. If they are not represented by an attorney, the impeached official must send court documents to each person individually, which is a logistical burden. This could be solved by requiring that the circulators of the impeachment petition form a committee, which would then be the party in the court case. It is also not clear in the present Charter whether the 100 signatures must all be from district voters if a council member is being impeached. My analysis is that district residency is not currently required. (The Charter doesn't say it is, whereas it does for recall signatures.) C. Standards For Impeachment. Our Charter provides that an elected official may be removed for misfeasance, malfeasance, nonfeasance or maladministration. Misfeasance, malfeasance, and nonfeasance aze fairly well-defined terms in the law; maladministration is not. Misfeasance is doing some mandatory duty in an illegal manner. Malfeasance is the doing of something entirely illegal and unauthorized. Nonfeasance is the total failure to perform some mandatory duty. Maladministration is a vaguer word, which encompasses highly imprudent management (such as mismanagement of financial assets) but conduct that is not necessarily in violation of law. In one of the very few Hawaii cases involving an attempt to impeach a public official, the Hawaii Supreme Court decided that an officer could be removed for misfeasance, malfeasance, or nonfeasance even if the officer did not act from fraudulent or corrupt motives. In re Bevins, 28 Haw. 733 ((925). In other words, the officer could be removed for negligent misconduct, or even for a mistaken belief that he or she was acting legally. I had expected to find a much more detailed body of case law about when a court should use its power to remove an elected official. Unfortunately, there is very little. It Chairman Ray and Members of the Commission November 9, 1999 Page 5 seems self-evident that removal of an elected official by ajudge should be confined to fairly serious misconduct, but [here don't seem to be any widely used legal models or standazds used for impeachment. The options I see with respect to the standard for impeachment would be to remove the term "maladministration" and to require [hat the illegal act (or failure to act) be done with some willfulness. A "willfulness" standard would still allow members of the public to go to court to correct "innocent" mistakes by public officials without asking for impeachment. A governmental official can be forced to take required action by a legal proceeding asking for a writ of mandamus, or prohibited from taking illegal action by an injunction. Yours truly, ~S/ CH$(STOPHER 1. YUEN Christopher J. Yuen CJY/np W OFD~COUMLTRCOMM l 133 CHRISTOPHER J. YUEN HILO LAGOON CENTRE, SUITE 108 101 AUPUNI STREET ' ~ ATTORNEY AT LAW HILO, HAWAII 96720 TEL. (808)935-4429 FAX (808)935-1844 e-mail: chrisyuenz@hotmail.com October 26, 1999 Re: Placement of Qualifications for Fire Chief, Managing Director, Planning Director, and Finance Director in § 13-3 Deaz Chairman Itay and Members of the Commission: This is another in a series of letters responding to questions raised at the October 16, 1999 meeting. Commissioners asked why the qualifications for fire chief, managing director, planning director, finance director, and deputy finance director were placed in § 13-3 by the 1989-1990 Charter Commission, rather than the individual sections for each _ department, where they seem to more logically belong. Originally the 1989-1990 Charter Commission lead voted to put these in the individual deparhnental sections. The Commission also prepazed a ballot question that would have these qualifications voted on together as one amendment, because it had proposed many changes to the charter, but did not want to overwhelm the voters with too many ballot questions. Had the various changes been presented as separate questions, there might have been thirty or forty ballot questions. The Commission tried to join together related issues, and to offer the voters a separate vote on the issues it deemed more important. In general, one charter amendment can be submitted to the voters wtrich combines different subjects, as tong as the amendment has a common purpose, and is not deceptive and misleading. Kahalekai v. Doi 60 Haw. 324 (1979). The Commission was on solid legal grounds in joining these together. The County Clerk at that time was not comfortable with the Commission's proposed ballot, and disagreed with combining items. The Clerk took the position that he had to approve the final form in which proposed amendments were submitted to the voters. To avoid an impasse, some issues were negotiated with the Clerk. The result of one negotiation was that the Clerk would agree to the various qualifications being presented to the voters in one ballot question as long as it amended only one section of the Charter. Hence, these qualifications were put in § 13-3. Chairman Ray and Members of the Commission October 26, 1999 Page 2 After this issue arose, the Commission also recommended an amendment to § 15-3 which would make it clear that the Charter Commission controls the ballot which is submitted to the voters. -'Chis was approved in the 1990 election, so this difficulty should not arise again. Yours tnily, i ~ i Christopher J. Y CJY/np W ORDICOUNLLTRCOMM6.125 CHRISTOPHER J. YUEN HiLO LAGOON CENTRE, SU[TE 108 101 AUPUNI STREET ATTORNEY AT LAW HILO, HAWAII 96720 TEL. (808)935-4429 FAX (808)935-1844 e-mail: chrisyucnz@hotmail.com October 26, 1999 Re: Procedures for Initiative, Referendum, Recall, and Charter Amendments Dear Chairman Ray and Members of the Commission: At the October 16, 1999 meeting, I was asked to review and provide some background on vazious subjects. I will write about these in separate letters. One question was the inconsistency among various provisions for petitions and voting on initiative, referendum, recall, and charter amendments. This was also something which came up in Mr. Wurdeman's comments at the May 26, 1999 meeting. Most of these inconsistencies were the result of deliberate choices by the earlier charter commissions. The first charter (1968) used different petition requirements for initiative and referendum, versus charter amendments. The 1979 Charter introduced recall, but used a different voting requirement. A few inconsistencies result from the fact that the 1989-1990 Charter Commission proposed sepazate amendments which would have made similaz changes to the initiative and referendum process, and to the recall process, but only the recall amendment was passed by the voters. The proposed amendment to the initiative and referendum process encountered semi-organized opposition because in some respects it made initiative and referendum more difficult. The inconsistencies cannot be eliminated without making significant changes to the voting requirements. The remainder of this letter discusses these inconsistencies in more detail. Petition signature requirements: Initiative/referendum: petition requires signatures of "qualified voters of the county equal in number to at least fifteen percent of the total number of persons who voted in the county for the office of mayor in the last preceding general election." § l I- 2(c). Chairman Ray and Members of the Commission October 26, 1999 Page 2 Recall: petition requires "qualified voters equal or greater than twenty-five percent of the total number of persons who registered in the last general election" for an at-lazge office, § 12-1.1(a), and twenty-five percent of those in the district for a district election, §12-1.1(b). "Qualified voter" is now defined as "a person who is registered to vote in the county on the day that the clerk begins the examination [o determine the sufficiency of the signatures on the petition." § 12-1.1(c). Charter amendment: petition requires signatures of "qualified electors equal in number to at least twenty percent of the registered voters for the fast preceding general election." §15-1(b). The 1968 Charter included the different number of signatures for initiative and referendum (15%) versus a charter amendment (20%). The 1979 Charter added recall. The Commission members wanted recall to be more difficult than initiative and referendum, so they required 25% of registered voters to sign. 1979 Charter Commission Minutes of 7/3/79. There is a slight problem with the use of the term "qualified voter" which the 1989-1990 Charter Commission attempted to correct. The County Clerk at that time had asked the Commission to clazify whether a qualified voter needed to be registered when he or she signed the petition, or whether the person should be registered when the clerk began to verify the signatures. As a practical matter, it is much easier to verify the signatures using the current registration rolls. Initiative committees will sometimes register voters at the same time they solicit signatures, so the signatories might not actually be registered when they sign the petition. On the other hand, it is possible that a signatory might be registered when signing the petition, but dropped from the list before the petition is counted. At the Clerk's request, the 1989-90 Commission proposed amendments to both initiative and recall that would specify that the signatory's qualifications should be determined on the day that the Clerk begins to validate the signatures, but as I mentioned earlier, the changes to recall passed, but to initiative and referendum did not. The 1990 amendment also defined a "qualified voter" as a "registered voter." Without the definition, the term "qualified voter" has a legal meaning which may be a tittle different from "registered voter," but for most practical purposes, a "qualified voter" is a registered voter. One cannot be a qualified voter without being registered, but a few registered voters may not be "qualified". For example, if someone changes residency by moving out of the district or the island, they might not be "qualified" to vote, but might still be carried on the registration rolls. In defining "qualified voter" to be a "registered voter", the 1989-90 Commission conformed to the practice of the Clerk's office, which, of course, cannot routinely verify whether registered voters who have signed a petition Chairman Ray and Members of the Commission October 26, 1999 Page 3 have moved away and are hence not "qualified". A person convicted of a felony, or who has been adjudged incompetent, may also be a "registered voter" until the Clerk is informed of this status and removes the person from the rolls (this is routinely done). I spoke with Mr. Konishi about when the qualifications should be determined, and he said it was still the practice to qualify signatures when the person was registered at the time the verification was being done, rather than when he or she signed. He felt a clazification for initiative and referendum would be helpful. I do feel that legally what the Clerk's office has been doing over the yeazs is correct, even though the definition of "qualified voter" currently appeazs only in the "Recall" section. "Qualified elector," which is used in §15-1(b) with respect to charter amendments, means the same thing as "qualified voter." Processing Procedure: Initiative/referendum: Clerk has twenty days to determine sufficiency of signatures. If there aren't enough, clerk informs petitioners' committee, which has ten days to get more signatures. The clerk then has five days to verify the additional signatures. Recall: Clerk has thirty days [o determine sufficiency of signatures; if there aren't enough, procedure is same as initiative/referendum. Charter amendment: Clerk has twenty days to count signatures. No opportunity for petitioners to supplement. The 1989-90 Commission, at the request of the Clerk, proposed amendments that would extend the time to count signatures to thirty days. This passed for recall, but was part of the package of changes to initiative and referendum that was defeated. There was no change proposed for chazter amendments. Voting: Initiative/referendum: For an initiative, the voters have the opportunity to vote "for" or "against" the proposed ordinance; the proposed ordinance is enacted "if a majority of the voters voting upon a proposed initiative ordinance shall vote in favor of it." For referendum, the voters vote "for" or "against" the challenged ordinance, and the ordinance is repealed if it is "not approved by a majority of the voters voting on it". § 11- 8. Recall: for a recall election to successfully recall the office-holder, 50% of total number registered in last general election must vote in recall or recall fails, and if "a Chairman Ray and Members of the Commission October 26, 1999 Page 4 majority of the electors qualified to vote on the question at a recall election vote `yes,"' the official is recalled. I find this language for recall somewhat ambiguous. Does this mean that a majority of those registered (i.e. "qualified to vote") must vote to recall, or is it enough that a majority of those who actually come to the polls vote yes? The 1979 Charter Commission Minutes (7/3/79, at p.28-32) make it clear that if a majority of those who actually come and vote is sufficient for a recall (provided that at least 50% of the number registered in the previous election do vote). Charter. amendment is passed if a "majority of voters voting upon it" vote in favor. § 15-3. For the charter amendment and initiative and referendum, to answer one question that comes up, one does not count blank and spoiled ballots in determining whether the proposed ordinance or charter amendment has received a majority of the votes. Because of the wording of the recall section, "majority of the electors qualified to vote," one would count blank and spoiled ballots in determining whether more than 50% had voted "yes." I can give a full legal analysis of my conclusions on blank and spoiled ballots but it would take several pages. I must mention that there is a state law on the adoption of charter amendments, H.R.S. §50-11, which is ambiguous as to whether blank and spoiled ballots are counted. I am not going to give a detailed analysis why this section is ambiguous because (I) I believe our charter provisions supersede H.R.S. §50-I 1, and (2) because H.R.S. §50-I0 expressly states that blank and spoiled ballots aze not counted in making a new charter, the same interpretation should be given to amendments under §50-1 1. Possible Amendments: The inconsistency between the number of signatures required for petitions for initiative, referendum, recall, and charter amendments was deliberate. If the Commission wants to propose changes to the requirements to make them easier or tougher, that is the Commission's decision, but I would not recommend changing them for consistency's sake alone. The remaining inconsistencies aze slight and probably not worth a charter amendment to clean up. If the Commission does want to make other changes in these provisions, changes to clarify the relatively minor technical inconsistencies and ambiguities could be included. Mr. Konishi, speaking as a private citizen, testified before the Charter Commission that the initiative and referendum provisions should be amended to put a "shelf life" on the use of signatures, so that they would be valid for only a set period, and to put a time frame on the submission of the petition to the clerk, to meet election Chairman Ray and Members of the Commission October 26, 1999 Page 5 deadlines. Similar ideas were part of the amendment suggested by the previous Charter Commission and rejected by the voters in 1990. Whether this Commission would like to propose similar changes is, of course, strictly for the Commission to decide. Mr. Konishi also suggested that the petitioners be allowed to get supplementary signatures only if they were very close to the required number. Please note that I will prepare slight amendments to the use of voters voting for the office of mayor in the general election as the standazd for initiative and referendum petitions, in § 11-2, to go along with the nonpartisan election provisions, because there wouldn't be a "general election" for the office of mayor if the nonpartisan elections aze approved. We would refer to the second special election, or to the first special election if there had been no second special election. Yours truly, /si GdR1STOPHER J. YUEn Christopher J. Yuen CJY/np W 00.D~COUMLTRCOMM5.135 CHRISTOPHER J. YUEN HILO LAGOON CENTRE, SUITE 108 101 AUPUNI STREET ATTORNEY AT LAW HILO, HAWAII 96720 TEL. (808)935-4429 FAX (808)935-1844 e-mail: chrisyucnz@hotmail.com October 12, 1999 Dear Chairman Ray and Members of the Commission: The Charter Commission asked me to prepaze a charter amendment for the change requested by corporation counsel which would give his office the authority to retain special counsel to represent officers and employees of the county when corporation counsel may be prohibited from doing so by the rules of professional conduct (the ethical rules which govern conflicts of interest). I have enclosed a proposed draft in Ramseyer and "clean" formats. Mr. Wurdeman has reviewed this proposed draft and agrees that it accomplishes the objectives sought. The reference to sections 10-11 and 13-13 is to make it cleaz that there must have been an "appropriation duly made" to fund the employment of special counsel, that the mayor must sign the contract, and that the finance director must certify the availability of funds. In other words, the council will still have to make an appropriation which could be used for special counsel, but the corporation counsel would not have to go to the council for further authorization to hire special counsel in conflict-of-interest situations, as long as there were available funds. I also corrected a typographical enor in the present charter. Yours truly, /s/ CHRISTOPHE@ J. YUEN Christopher J. Yuen CJY/np cc: Sharon Henry WORD\CO VMLTRCDMM4 115 SPECIAL COUNSEL DRAFT, RAMSEXER FORMAT Section 5-2.5. Special Counsel. The council may, by two-thirds vote of its entire membership, authorize the employment of special [council] counsel for any special matter presenting a real necessity for such employment. Any such authorization shall specify the compensation, if any, to be paid for said services. The corporation counsel may emoloy special counsel to represent officers and employees of the county without specific authorization by the council, when representation of such persons by the department of the corooration counsel may be prohibited by the Rules of Professional Conduct for attomevs in Hawaii. The corporation counsel shall comply with sections 10- 11 and 13-13(a), (c), and (d) in emplovine such counsel. SPECIAL COUNSEL DRAFT, "CLEAN" FORMAT Section 5-2.5. Special Counsel. The council may, by two-thirds vote of its entire membership, authorize the employment of special counsel for any special matter presenting a real necessity for such employment. Any such authorization shall specify the compensation, if any, to be paid for said services. The corporation counsel may employ special counsel to represent officers and employees of the county, without specific authorization by the council, when representation of such persons by the department of the corporation counsel may be prohibited by the Rules of Professional Conduct for attorneys in Hawaii. The corporation counsel shall comply with sections 10- 1 Land 13-13(a), (c), and (d) in employing such counsel. HILO LAGOON CENTRE, SUITE 108 CHRISTOPHER J. YUEN 101 AUPUNI STREET ATTORNEY AT LAW HILO, HAWAII 96720 TEL. (808)935-4429 FAX (808)935-1841 e-mail: chrisyucnz@hotmail.com September 9, 1999 Dear Chairman Ray and Members of the Commission: I have enclosed draft language which would allow a member of a board or commission to hold over for not more than ninety days after the end of his or her term, or until a successor has been appointed and confirmed, whichever comes first. This is the proposal suggested at the September 8, ] 999 meeting. I have also enclosed a final version of the non-partisan election language, which incorporates the change made at the September 8, 1999 meeting, so that blank and spoiled ballots (spoiled ballots aze overvotes) aze excluded in determining what makes a majority. The motion was cleaz enough so that I think it is unnecessary to vote again on the exact language, except at the very end of the process when the Commission votes on the final package which will be placed on the ballot. Yours truly, /ti CHRISTOPHER J, i'ucH Christopher J. Yuen CJY/np cc: Sharron Henry wono~colmu.racon+ms izs 90 DAY HOLD OVER FOR MEMBERS OF BOARDS AND COMMISSIONS DRAFT, RAMSEYER FORMAT Section 13-4. Boards and Commissions. (d) No member whose term has expired shall continue to serve on such boazd or commission, except that if [the member's term expires less that one month after the commencement of the term of a new mayor, the member shall hold over for thirty (30) days,] no successor has been appointed and confirmed, the member shall continue to serve for ninety (901 dam or until a successor is appointed and confirmed, whichever comes first. DRAFT, CLEAN FORMAT Section 13-4. Boards and Commissions. (d) No member whose teen has expired shall continue to serve on such boazd or commission, except that if no successor has been appointed and confirmed, the member shall continue to serve for ninety (90) days or until a successor is appointed and confirmed, whichever comes first. COUmooDAYHO 135 NONPARTISAN ELECTIONS, ALTERNATIVE 1 (adopted 9/8/99) (second election if no majority in first) DRAFT, RAMSEYER FORMAT Section 13-27. County Election. No person shall be a candidate for more than one elective office in the same election nor shall a candidate defeated in the primary election seek an elective office in the general election unless placed on said ballot as a substitute for a candidate who has expired, withdrawn or been disqualified). If no person is elected to a county office, the county council shall appoint a person to fill such office. County elections shall be conducted in accordance with the election laws of the state insofaz as applicable. All county elective officers--mayor, council members and prosecutine attorney-- shall be elected in nonpartisan special elections. Such special elections shall be held in conjunction with the primary and eeneral elections of the applicableyeaz First special election. The first special election shall be held in conjunction with the reQUlazly scheduled primary election Anv candidate receiving a maioriri of all votes validly cast for candidates for that office excluding blank and spoiled ballots shall be deemed elected. If there is only one candidate for the office, that candidate shall be deemed elected regazdless of the number of votes received. Second special election. The second special election shall be held in conjunction with the reeulazly scheduled eeneral election. Unless a candidate has been elected in the first special election, the two candidates receivine the highest number of votes for the office in question in the first special election shall be placed on the ballot for the second special election. At the second special election the candidate receivine the highest number of votes for each respective office shall be deemed elected. DRAFT, CLEAN FORMAT Section 13-27. County Election. No person shall be a candidate for more than one elective office in the same election. If no person is elected to a county office, the county council shall appoint a person to fill such office. County elections shall be conducted in accordance with the election laws of the state insofaz as applicable. All county elective officers--mayor, council members, and prosecuting attomey-- shall be elected in nonpartisan special elections. Such special elections shall be held in conjunction with the primary and general elections of the applicable yeaz. First special election. The first special election shall be held in conjunction with the regulazly scheduled primary election. Any candidate receiving a majority of all votes validly cast for candidates for that office, excluding blank and spoiled ballots, shall be deemed elected. If there is only one candidate for the office, that candidate shall be deemed elected regazdless of the number of votes received. Second special election. The second special election shall be held in conjunction with the regularly scheduled general election. Unless a candidate has been elected in the first special election, the two candidates receiving the highest number of votes for the office in question in the first special election shall be placed on the ballot for the second special election. At the second special election the candidate receiving the highest number of votes for each respective office shall be deemed elected. Nonpartisan Elections, Alternative 1 (adopted 9/8/99) HILO LwGOON CENTRE, SU[TE 108 CHRISTOPHER J. YUEN 101 AUPUNI STREET ATTORNEY AT LAW HILO, HAWAII 96720 TEL. (808)935-4429 FAX (808)935-1844 e-mail: chrisyuenz@hotmail.com June 8, 1999 Deaz Chairman Ray and Members of the Commission: The Charter Commission will be holding public heazings to take public suggestions for changes to the County Charter. We expect that we may not necessarily have a quorum of commission members at some of these hearings. I wanted to write a brief letter to state why this is legal, in case there is any question from the public, and to mention the basic ground rules. State law was changed in 1996 to clarify when commission members can interact in groups of less than a quorum. This is now H.R.S. §92-2.5. The law allows a group of less than a quorum to "investigate a matter relating to the official business of the boazd." Basically, this is what these hearings aze for - to investigate public opinion by hearing what people have to say. This purpose was discussed at the meeting authorizing these hearings. The substance of public comments will be presented to the full Commission later, in the form of minutes and a summary. By law, these public hearings with less than a quorum must not be decisionmaking meetings. The commission members should not discuss and debate the merits of proposed Charter amendments at these heazings. (There is nothing wrong with making polite comments to testifiers that their ideas aze worthy of cazeful consideration.) Yours truly, /s/ CHRISTOPHER 1. YUEN Christopher J. Yuen CJY/np cc: Sharron Henry WOROICOUNV.TRCOMM 1.1]5 CHRISTOPHER J. YUEN HILO LAGOON CENTRE, SUITE 108 l01 AUPUNI STREET ATTORNEY AT LAW HlLO, HAWAII 96720 TEL. (808)935-4429 FAX (808)935-1844 e-mail: chrisyuenz@hotmail.com June 7, 1999 Deaz Chairman Ray and Members of the Commission: I was asked to provide a legal opinion on whether the County Charter could establish political subdivisions at less than the County level, such as, for example, town or community governments, because the Charter Review Commission expects to receive some public commentary about this subject. Only the State Legislature has the authority to establish new political subdivisions (or new counties), that have actual powers and authority. Article VIII, Section 1 of the State Constitution states that: "The legislature shall create counties, and may create other political subdivisions within the State, and provide for the government thereof." As a general rule, the County government only has only the powers granted to it by the State Constitution or by the State Legislature, and powers that can reasonably be implied in support of those granted powers. Because neither the State Constitution nor the Legislature have given the County the power to create internal political subdivisions, the County does not have this power. Thus, the County Charter cannot establish local subgovemments which have actual powers, and the County cannot split itself into multiple counties, unless the State Legislature chooses to allow it. The Charter definitely can establish regional organizations that have only advisory powers. The neighborhood boazds of the City and County of Honolulu aze examples of regional advisory organizations. The County Council, by ordinance, and the Mayor also have the power to set up bodies that aze purely advisory. A related question is whether the County Chazter could organize the County government so that certain boards and commissions would be split up and organized on a regional basis, and have the various powers that they now have. This is a more complicated question because boards and commissions may not be "political subdivisions." However, most County boards and commissions aze affected by state laws which were written under the assumption that the County has just one of the board or commission in question. Rather than try to give a blanket answer for all boards and commissions, if the Charter Review Commission is seriously considering a proposal to reorganize a particular boazd or commission so that there is more than one, I can address that in a separate opinion. I hope this answers the question raised. I will be happy to discuss this further if necessary. Yours truly, ~S/ CHRISTOPHER 1. YUEN Christopher J. Yuen CJY/np WORD\COUNLLTRCOMM.I ZS