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HomeMy WebLinkAboutCOM 0857.002 2022-2024 P/Council bii( U:O ERRA CL B U HAWAII ISLAND GROUP i June 3, 2024 CD c) L �7 Hawai'i County Council 25 Aupuni St. Hilo HI 96720 rr-- w T' Re: Bill 160, Draft 1, comments and suggested amendments '• - Aloha Madame Chair and members of the county council, The Sierra Club of Hawai'i, Hawai'i Island Group does not believe that the proposed amendments in Bill 160, Draft 1, whereby the manner in which the Corporation Counsel would be selected would be changed, is sufficient to address the frequent conflicts of interest that occur between the county administrative and legislative branches when it comes to legal advice and/or representation. Therefore, HIG would like to offer amendments to Bill 160, Draft 1. These amendments use the language contained within the City and County of Honolulu Charter in order to create an Office of Council Services (OCS)under the County of Hawai'i Charter. The intention is to maintain the Office of Corporation Counsel while creating a new OCS to provide the Hawai'i County Council with the same clearly independent legal services that are available to the Honolulu City Council. HIG proposes replacing the existing language in Sections 2 and 3 of Bill 160 as follows: Section 2. Article VI, chapter 5, of the Charter of the County of Hawai'i (2022 edition) is [repealed in its entirety] amended by adding new language to be appropriately inserted and to read as follows: Section 6-5.3. Powers, Duties and Functions. The corporation counsel shall be the chief legal advisor and legal representative of all county agencies, the council and all officers and employees in matters related to their official powers and duties. Except as otherwise provided by federal or state law, the determination whether a matter relates to official powers and duties shall be made by the corporation counsel and shall include, among other things, consideration of case law applicable to the concept of course and scope of employment. The corporation counsel shall represent the county in all civil legal proceedings, except as otherwise provided in this charter, and shall perform all other services incident to the office as may be required by this charter or by law. The corporation P 0 Box 1137 Hilo.HI 96721-1137 I sierraclubhig.org I hawaiiislandsierraclub@gmail.com Comm. Ref.7o: Ref.Date '° j counsel shall,however,be prohibited from representing any elected officer in impeachment proceedings. Section 3. Article III of the Charter of the County of Hawai'i is amended by adding a new section to be appropriately inserted and to read as follows: (c) The council may establish an office of council services and create such positions therein as it deems necessary to assist it in the exercise of its legislative power. The council shall fix the salaries of such positions by ordinance. Funds appropriated for such salaries shall be allotted by, and the persons holding such positions shall be appointed by and serve under the direction of, the presiding officer of the council. Staff shall be appointed in a manner consonant with the provisions set forth in Chapter 1 of Article XII of this charter,but shall not otherwise be subject to the provisions in Section 13-9 of Article XIII of this charter. The council may authorize attorneys within the office of council services to represent it in court litigation where the dispute is with the Executive Branch and where the corporation counsel may represent the Mayor or officers of the Executive Branch. In the event that attorneys within the office of council services should be authorized to represent the city council, those staff attorneys shall be deemed to have the status of"special counsel. End of suggested amendments. For many years, members of the current and past county councils, as well as the general public, have expressed their frustration with the county's current organizational structure wherein the OCC is representing both the administrative and legislative branches of county government, branches with separate powers. Under the doctrine of"separation of powers", the legislative branch of government may not delegate its lawmaking powers to the administrative branch (see Questions, Answer 5 at https://lrb.hawaii.gov/wp-content/uploads/2002_Separation-of-Powers.. For whatever. reasons and regardless of intention,under the current organizational structure of county government, it sometimes appears that the council has delegated its law-making powers or had its law-making powers subverted. Because legal services to these separate branches of county government have not been separate, the two branches have often been at odds over the interpretation and/or applicability of laws, rules, and regulations. In those instances, OCC finds itself attempting to represent two parties who have a conflict of interest, a no-win situation in which it must effectively"take sides". Here are a couple of examples from the past year: 1. In December 2023, the county administration and OCC made the decision to hire"special counsel"to litigate the lawsuit filed by Earthjustice on the behalf of Kona community group, Hui Malama Honokohau. The lawsuit alleges dumping of the Kealakehe Wastewater Treatment plant's outflow into a pit one mile from the ocean is a Clean Water Act violation. The administration and Corporation Counsel testified to the council that Earthjustice was not interested in settling the case. However, once Earthjustice learned of this testimony, it sent a letter to the council informing them that a settlement offer had been made three months previously,but no response had been received from the county. In addition, Corporation Counsel refused to provide the council with a copy of the proposed special counsel contract, despite the fact the council was being asked to authorize funding for the special counsel contract. This prevented the council from ascertaining the services to be provided and the potential cost to county taxpayers.. 2. In July 2023, the administration and OCC the Mayor released a memorandum of understanding ("MOU") to the council less than 48 hours prior to their meeting. The MOU was to establish a "Pacific Hydrogen Alliance" consisting of the County of Hawai'I, City of Lancaster, CA, and Namie-machi in Fukushima Prefecture, Japan under the U.S. Department of Energy's H2 Twin Cities initiative and the Clean Energy Ministerial, a consortium of nations and global hydrogen partnerships. During their meeting, the council learned the mayor was already in Lancaster for a signing ceremony, effectively giving the council no choice but to approve the MOU, despite that many unanswered questions remained after the council's discussions. HIG requested an opinion from the state Office of Information Practices as to whether the Sunshine Law had been violated. OIP responded with an e-mail which stated, in part, "If materials the board members need to review aren't available to the board in time to meet that 48 hour deadline... the board should not circulate those materials to members in the last 48 hours before the meeting." Despite repeated instances of apparent conflict of interest, OCC has maintained that it can independently represent both the administration and council. It cannot. Private attorneys and/or law firms are not allowed to legally represent two parties with a conflict of interest because it is impossible to be truly independent and fairly represent both interests. The council should have an unambiguous right to access separate independent legal support and services. The organizational structure described in the City and County of Honolulu Charter enables an OCC for the entire city/county government,but also enables a separate office, the OCS, to provide separate independent legal services to the city council. Because this structure has had such great success (ask any past or present city council member), the County of Hawai'i should adopt the same organizational structure. The amendments to Bill 160 listed above, if passed,would allow the council to place on the ballot of the next election a proposed Hawai'i County Charter amendment to create an Office of Council Services, solving a long-standing problem. HIG believes the council and voters of our county should be given the opportunity to approve or reject the creation of separate independent office for legal services to our legislative branch, that is, our elected lawmakers and their staffs. Mahalo nui loa for your consideration and support of HIG's proposed amendments. Sierra Club of Hawai'i, Hawai'i Island Group From the website of the City and County of Honolulu, Office of Council Services https://www8.honolulu.gov/ocs/ "The Office of Council Services (OCS) supports the Honolulu City Council by providing legal services, conducting research for the enactment or consideration of legislation, and serving in an advisory or consultative capacity to the Council and its committees. The services performed by OCS include: • Performing research, drafting research memoranda, and providing advice supporting the formulation of ideas for legislation • Drafting bills, resolutions, and other legislative documents for discussion, consideration, and adoption • Staffing the Council and its committees at hearings and meetings to ensure compliance with laws and rules • Analyzing communications submitted by the Mayor and executive departments • Analyzing and drafting the City's budget and all parts thereof • Preparing legal opinions and serving as legal special counsel • Serving as the revisor of the Revised Ordinances of Honolulu • Supporting the Council as a member of the Hawaii State Association of Counties • Supporting the Council as trustees of the Kapiolani Park charitable trust" The enabling language for the OCS is contained within the Revised Charter of the City and County of Honolulu, Article III, Chapter 1, Section 3-107. Organization of Council; Officers; Rules;Meetings; Employees: " 7. The council may establish an office of council services and create such positions therein as it deems necessary to assist it in the exercise of its legislative power. The council shall fix the salaries of such positions by ordinance. Funds appropriated for such salaries shall be allotted by, and the persons holding such positions shall be appointed by and serve under the direction of, the presiding officer of the council. Staff shall be appointed in a manner consonant with the merit principles set forth in Section 6-1102 of this charter,but shall not otherwise be subject to the provisions of Chapter 11 of Article VI of this charter,pursuant to Section 6-1104 of this charter. The council may authorize attorneys within the office of council services to represent it in court litigation where the dispute is with the Executive Branch and where the corporation counsel may represent the Mayor or officers of the Executive Branch. In the event that attorneys within the office of council services should be authorized to represent the city council, those staff attorneys shall be deemed to have the status of"special counsel." End of testimony