HomeMy WebLinkAboutCOM 0683.012 1998-2000 VM1v Oi
4~'• ~ ~~i
Stephen K. Yamashiro Jay A. Sasan
Mayan
Sa(ery Caardirwmr
~i : .
~rf e,:N'„i~
(2~trunfg of ~ttfuttti
DIVISION OF INDUSTRIAL SAFETY
Workers' Compensation Unit
35 Wailuku Drive Hilo, Hawaii 96720 (ROR) 961-8344 Fu: (808) 961-8416
MEMORANDUM
TO: Aaron S. Y. Chung
Chairman, Finance Committee
Hawaii County Council
v
FROM: Lester J. Ishado ~r ,
Deputy Corporation Counsel
County of Hawaii
Workers' Compensation Unit
RE: Council Approval of Workers' Compensation Settlements
DATE: April 18, 2000
This memorandum is written in response to your inquiry about whether Hawaii County
Council approval is required for settlement of workers' compensation claims.
Background
Chapter 386, Hawaii Revised Statutes, provides for the payment of certain benefits for
injuries arising out of and in the course of employment. Section 386-3, HRS. These
benefits include payments for:
1. Medical care, service and supplies as the nature of the injury requires.
Section 386-21, HRS.
2. Vocational rehabilitation services. Section 386-25, HRS.
3. Indemnity (income) benefits for temporary disability (total or partial).
Sections 386-31 and 32, HRS.
4. Indemnity (income) benefits for permanent disability (total or partial).
Sections 386-31 and 32, HRS. p
Comm. No. ~rzo`~ ' O/?
Pile No. 6
Ref. To: ~/7//N('/L..
ApR 2 q 2000
Ref. Date
Aaron S. Y. Chung
Chairman, Finance Committee
April 18, 2000
Page Two
Disputed coverage of the above items is heard by the Department of Labor and
Industrial Relations, Disability Compensation Division, or (if on appeal) the Labor and
Industrial Relations Appeals Board. The parties could negotiate a settlement of
disputed coverage, e.g. based on new medical evidence, which exceeds $1,500.00. I
understand, however, that it is the Finance Committee's intent to limit this discussion to
the settlement of permanent disability (item 4 above) and to the settlement ("wash")
(waiver of future workers' compensation benefits).
How Payment of PPD and Wash Settlements is Determined
Most settlements (item 4 above) involve permanent partial disability (PPD), which is
determined by expert medical opinion, using the American Medical Association's
Guides to the Evaluation of Permanent Impairment. The County retains medical
specialists to evaluate each case and determine the impairment rating. If there is a
finding of no impairment, or if the claimant feels that the rating is too low, the claimant
may retain his own medical expert.
The formula for payment is set under Sections 386-31 and 32, HRS. For example, if
there is an impairment rating of 10% of the whole person fora 1997 injury, the payment
of PPD is determined as follows:
312 weeks (under Section 386-32, HRS) X $501.00 (maximum weekly
compensation for 1997) X 10%
"Wash" settlements must be approved by the Director of Labor and Industrial Relations,
and the Department usually requires a payment of $15,000.00 for approval.
Discussion
County Council approval of workers' compensation settlements is not required for the
reasons set forth herein.
I. Section 2-9 may not apply to workers' compensation claims.
Section 2-9 has traditionally applied to civil lawsuits and may not apply to workers'
compensation claims. There are major differences between workers' compensation
claims (for which council approval has traditionally not been required) and civil claims
(for which council approval has traditionally been required).
Aaron S. Y. Chung
Chairman, Finance Committee
April 18, 2000
Page Three
In civil lawsuits, the plaintiffs can decide to accept less, and the parties can negotiate
the amounts to be paid. In workers' compensation cases, however, once the
impairment rating is set, the PPD payment is determined (except for a residual of 1 % to
5% added by the Department of Labor and Industrial Relations or negotiated by the
parties). Workers' compensation benefits are an employee benefit mandated by statute,
and there is little room to negotiate. Can the County negotiate to pay the claimant less
without being accused of bad faith?
In addition, civil litigants do not have any expectation of privacy since court records are
open to the public. Workers' compensation claimants, however, may have some right to
expect that their claim and personnel records will be kept confidential.
II. Section 2-9 does not expressly require Council approval of settlements.
Section 2-9, Hawaii County Code, (copy enclosed) states in part that the:
"corporation counsel shall have the power to adjust, settle, compromise, or
submit to arbitration any action, causes of action, accounts, debts, claims,
demands, disputes, and matters in favor of or against the County, or in which the
County is concerned as a debtor or creditor, now existing or which may hereafter
arise, not involving or requiring payment in excess of $1,500..."
Although Section 2-9 states that the corporation counsel has the power to settle claims
not in excess of $1,500.00, it does not expressly state that the County Council has the
power to approve settlements in excess of $1,500.00. Section 2-9 is silent, but it has
been the traditional practice to submit civil settlements in excess of $1,500.00 to the
Council for approval.
In comparison, for your information, Section 3.16.020, Maui County Code, (copy
enclosed) expressly states that council approval is required for certain settlements.
Section 3.16.020 states that the:
"corporation counsel, with the approval of the mayor, shall have the authority to
settle, compromise or otherwise resolve any action, cause for action, debt, or
claim...not involving or requiring total payment in excess of $3,000...Any
settlement without court approval in excess of $3,000 shall require council
authorization."
Aaron S. Y. Chung
Chairman, Finance Committee
April 18, 2000
Page Four
III. Past practices will be considered by the courts in interpreting Section 2-9.
It has been the past practice in this County to submit workers' compensation
settlements for approval by the Mayor, without the approval of the Council. The
settlement must also be approved by the Director of Labor and Industrial Relations
under Section 386-78, HRS. Although past practice does not of itself justify continued
practice, the courts will review past practices in interpreting ordinances.
In Harris v. Desoto, 80 Hawaii 425 (1996) (copy enclosed), the Hawaii Supreme Court
upheld an ordinance which provided for council approval of settlements in excess of
$5,000.00, noting that it had been the past practice to do so. The ordinance expressly
provided for council approval of settlements in excess of $5,000.00. The Court
noted that the power to settle claims was consistent with the council's power to
appropriate city funds. The Court also held that the portion of the ordinance requiring
council approval of other types of cases, e.g. injunctive relief, was invalid.
It appears that none of the other county councils or the state legislature require
approval of workers' compensation settlements (even though they have express
statutory authority to approve settlements).
IV. Council approval may conflict with the confidentiality of employee records.
Council approval of workers' compensation settlements may conflict with the
confidentiality of employee medical and personnel records. Section 92F-19, HRS,
allows disclosure of employee records under very limited circumstances. Section 92F-
19(a)(1), HRS, allows disclosure if necessary for the performance of the requesting
agency's duties and is compatible with the purpose for which collected or with the
reasonable expectations of use and disclosure. Section 92F-19(a)(6), HRS, allows
disclosure to the county council, but there is also a constitutional provision on privacy to
consider.
Section 6 of Article I of the Hawaii Constitution states that the right of the people to
privacy is recognized and shall not be infringed without the showing of a compelling
state interest (copy enclosed). Case law interpreting this section is scarce. If the courts
do determine that the right of privacy applies to employee records (I have not found any
case to this effect), the ordinance affecting this right would be subject to a strict
interpretation.
Aaron S. Y. Chung
Chairman, Finance Committee
April 18, 2000
Page Five
Conclusion
It appears that Council approval of workers' compensation settlements is unclear under
Section 2-g, Hawaii County Code. Any doubt may be dealt with by amending Section 2-
9 to specifically state that Council approval is required for approval of settlements in
excess of $1,500.00 (as Maui County and the City and County of Honolulu have
already done), and if the Council so chooses, to further include workers' compensation
claims in this section.
Please contact me if you have any questions or comments. Thank you.
ADMINISTRATION § 2-7
(E) Department of housing and
community development Housing administrator
(4) Agencies and administrative heads under administrative supervision of the mayor unless expressly
excepted therefrom:
AGENCY ADMINISTRATIVE HEAD
(A) Civil defense Civil defense administrator
(B) Office on aging County executive on aging
(C) Hawaii redevelopment agency Manager
(1975 C.C., c. 2, art. 1, sec. 3; Am. 1989, Ord. No. 89-48, sec. 1.)
Section 2-8. Order of succession to office of mayor.
In the event of civil, military or natural disaster, during the temporary absence or disability of the mayor,
the managing director shall act as mayor. If the office of managing director is vacant, or during such periods
as the managing director is unable to so act, the director of finance shall then act as mayor. If the office of
director of fmance is vacant, or during such periods as the director of finance is unable to so act, then the
planning director, director of reseazch and development, director of personnel services and director, department
of liquor control, shall succeed to the office of mayor in the order specified herein.
(1975 C.C., c. 2, art. 1, sec. 4.)
Article 3. Office of the Corporation Counsel.
Section 2-9. Settlement of claims.
corporation counsel shall have the power to adjust, settle, compromise, or submit to arbitration any
action, causes of action, accounts, debts, claims, demands, disputes, and matters in favor of or against the
County, or in which the County is concerned as debtor or creditor, now existing or which may hereafter arise,
not involving or requiring payment in excess of $1,500, provided the money to settle claims generally has been
appropriated and is available; and provided further that a quarterly report of all settlements shall be filed with
the council.
(1975 C.C., c. 2, art. 2, sec. 1.01; Am. 1975, Ord. No. 87, sec. 1.)
Section 2-10. Settlement of land acquisitions.
The corporation counsel shall have the power to adjust, compromise, settle, or submit to arbitration, any
land acquisition requests referred to him by other County agencies or eminent domain actions, causes of
eminent domain actions in favor of or against the County, or in which the County is concerned as purchaser,
seller, condemnor, or condemnee, now pending or which may hereafter arise, not involving or requiring
payment in excess of $2,500, provided the money to settle any matter generally has been appropriated and is
available; and provided further that a quarterly report of all settlements shall be filed with the council.
(1975 C.C., c. 2, art. 2, sec. 1.02; Am. 1975, Ord. No. 87, sec. 1.)
Article 3A. Office of the Prosecuting Attorney.
Section 2-10A. Appointment of personnel.
There shall be an office of the prosecuting attorney as provided by Charter. The prosecuting attorney may
appoint deputy prosecuting attorneys and necessary staff, including investigators. The investigators shall have
all of the powers and privileges of a police officer for the County of Hawaii. The office of the prosecututg
attorney shall adopt policies and standards for training and use of these powers consistent and in conformance
with those adopted by the Hawaii County police deparunent. All investigations relating to the dischazge of
2-9
~p9b .
3.16.010 hl1 A~ `
Chapter 3.16
PAYMENT OF CLAIMS'
Sections:
3.16.010 Cleans generally.
3.16.020 Settlement o[ cleans end other
civil Iltigalioa.
• For psovisans on she sling of damage claims against she wunty,
see (]ustu 4 t3fi.
Editor's Note: 2fiem em two prig code sections Sb.l.
3.16.010 Cleans generally.
All claims shall be approved by the dirtxtor of finance
and processed through the department of finance for pay-
ment. except otherwise authorized by the finance director.
Unless otherwise instructed by the finance director, claims
shall be processed at leazt once a month. (Prior code §
5-1.2)
3.16.020 Settlement of claims and other dull
litigation.
A. The corporation counsel, with the approval of the
mayor, shall have the authority to settle, compromise or
otherwise resolve any action, cause fa action, debt, a claim
in favor of or against the county or in which the county
is concerned az a debtor or creditor, now existing or which
may hereafter arise, not involving or requiring total payment
in excess of 53,000; provided, that the fund to seAtle claims
haz bean appropriated and is available therefor.
B. Any settlement without court approval in excess
of $3,000 shall require council authori7sdon.
C. The director of finance shall file with the council
a quarterly report of all settlements.
D. All matters subject to the provisions of chapters
76, 77 and 89 of the Hawaii Revised Statutes shall be
resolved under the provisions, and no provision of this
section shall be construed to authorize the corporation
counsel to settle, compromise, or otherwise resolve any
such matter.
E. if any provision of this section or the applicatlon
thereof to any person or circumstance is held invalid, the
invalidity shall not affect other provisions or applicatlons
of the article which can be given effect without the invalid
provision or application, and to this end, the provisions
of this section are severable. (Ord. 871 § 1, 1977: prior
code § 5-6.1)ss
tsaw~ sl 58
INFORMATION PRACTICES 92F-19
list in practices. The public reports shall be filed with the office of information practices on
or before December 31, 1994. The public reports shall include:
non- (I) The name and location of each se[ of records;
(2) The authority under which [he records are maintained;
n, the (3) The categories of individuals for whom records are maintained;
other (4) The categories of information or data maintained in the records;
(5) The categories of sources of information in the records;
~ecord (6) The categories of uses and disclosures made of the records;
lquar- (7) The agencies and categories of persons outside of the agency which
Lion. routinely use the records;
[ante, (8) The records routinely used by the agency which are maintained by:
:from, (A) Another agency; or
ig and (B) A person o[herthan an agency;
ay. [L (9) The policies and practices of the agency regarding storage, retrievability,
access controls, retentions, and disposal of the information maintained in
records;
ten an (10) The title, business address, and business telephone number of the agency i
al the officer or officers responsible for the records;
lopted (11) The agency procedures whereby au individual may request access to
nation records; and
ght to (12) The number of written requests for access within the preceding year, the
nation number denied, the number of lawsuits initiated against the agency under
this part, and the number of suits in which access was granted.
shall (c) Each agency shall supplement or amend its public report, or file a new
ble. If report, on or before July 1 of each subsequent year, to ensure that the information ~i
ic[ices remains accurate and complete. Each agency shall file the supplemental, amended, or .
n, and new report with the office oC information practices, which shall make the reports
§1l available for public inspection. [L 1988, c 262, pt of § I; am L 1989, c 192, §4; am L
1991, c 167, §2; am L 1992, c 118, §2; am L 1993, c 57, §I]
with in
many
t from §92F-19 Limitations on disclosure of government records to other agen-
cies. (a) No agency may disclose or authorize disclosure of government records to
any other agency unless [he disclosure is: -
gency ~ (1) Necessary for the performance of the requesting agency's duties and
functions and is also:
tr any
tes to (A) Compatible with the purpose for which the information was col-
tall be lected or obtained; or
y IaN, (B) Consistent with the conditions or reasonable expectations oC use and
of a disclosure under which [he information was provided;
;e that (2) To [he state archives for the purposes of historical preservation, adminis-
on by tra[ive maintenance, or destruction;
[by] a (3) To another agency, another state, or the federal govemment, or foreign
of §1] law enforcement agency or authority, if the disclosure is:
(A) For the purpose of a civil or criminal law enforcement activity
authorized by law; and
;r; and ~ (B) Pursuant to:
for the (i) A written agreement or written request, or
xords (ii) A verbal reques4 made under exigent circumstances, by an
officer or employee of the requesting agency whose identity
Ards it has been verified, provided that such request is promptly con-
nation firmed in writing;
419
f
92F-19 PUBLIC PROCEEDINGS
(4) To a criminal law enforcement agency of [his State, another state, or [he
federal govemment, or a foreign criminal law enforcement agency or
authority, if [he information is limited to an individual's name and other
identifying particulars, including present and past places of employment; ~1
(5) To a foreign government pursuant to an executive agreement, compact,
treaty, or statute;
(6) To [he legislature, or a county council, or any committee or subcommittee
thereof;
(7) Pursuant to an order of a court of competent jurisdiction;
(8) To authorized officials of another agency, another state, or the federal
govemment for the purpose of auditing or monitoring an agency program
that receives federal, state, or county funding;
(9) To the offices of the legislative auditor, the legislative reference bureau,
or the ombudsman of this State for the performance of their respective
functions;
(l0) To [he department of personnel services, county personnel agencies, or
line agency personnel offices for the performance of their respective
duties and functions, including employee recruitment and examination,
classification and compensation reviews, [he administration and auditing
of personnel transactions, the administration of training and safety, work-
ers' compensation, and employee benefits and assistance programs, and ~
for labor relations purposes; or
(I1) Otherwise subject to disclosure under this chapter.
(b) An agency receiving government records pursuant [o subsection (a) shall
be subject to the same restrictions on disclosure of the records as the originating
agency. [L 1988, c 262, pt of §l; am L 1993, c 250, §2]
PART III. DISCLOSURE OF PERSONAL RECORDS
Nole
Part heading amended by L 1989, c 192, §5.
[§92F-21] Individual's access to own personal record. Each agency that
maintains any accessible personal record shall make [ha[ record available [o [he
individual [o whom i[ pertains, in a reasonably prompt manner and in a reasonably
intelligible form. Where necessary the agency shall provide a translation into com-
mon terms of any machine readable code or any code or abbreviation employed for
internal agency use. (L 1988, c 262, pt of §1]
§92F-21.5 REPEALED. L 1990, c 250, §4.
1
§92F•22 Exemptions and limitations on individual access. An agency is
no[ required by [his part [o grant an individual access [o personal records, or
information in such records: ,
(1) Maintained by an agency that performs as its or as a principal function
any activity pertaining to the prevention, control, or reduction of crime,
and which consist of:
(A) Information or reports prepared or compiled for the purpose of
criminal intelligence or of a criminal investigation, including re-
ports of informers, witnesses, and investigators; or
420
Art. I-Sec. 5 STATE CONSTITUTION
Judge who lodges complaint for criminal con- In paternity action, duc process not violated by tak
tempt may noI decide the outcome if there is no exclusion of sexual access information and No
j ( jury trial. 70 H. 459. 776 P.2d i 182. preclusion of cross<xamination of mother regard-
! Rule 4I2, Hawaii rates of evidence, cannot over- ing her earlier pregnancy. 6 H. App. 629. 736 P.2d
rick the constitutional tights of the accused. 7l H. 448.
1 I5, 785 P.2d 157. Act of state witness leaving witness stand in ~
Rape victim's clothing was not crucial evidence presence of security personnel was not so prejudi- ~
as to result in an unfair trial. 71 H. 183, 787 P.2d cial as to deny de(endant's right ro fair trial; jury is L 1
671. presumed to adhere ro coon's cautionary inswe-
Ethnical exclusion by prosecution. 7I H. 300, tion [o draw no inference from event. 8 H. App.
788 P.2d 841. 624, 817 P.2d 130.
Defendant's rights to a fair trial was denied due Violated where court imposed attorney sanctions
to State's suppression of evidence. 71 H. 347, 791 pursuant [o its powers under §603-21.9 without F
P.2d 392. adequate prior notice and reasonable opportunity to F
~ Mandarory sentences arc na unconstitutional; be heazd. 9 H. App. 249, 833 P.2d 85. 1
there is no constitutional right to probation. 71 H. 70E
485, 795 P.2d 842. Equal pro[eMion. ~
In criminal cases, peremptory challenges cannot See also notes to U.S. Cons[. Amend 14. Ihi~
~ be based solely on race, religion, sex, or ancestry. Applicable only to state action not private action. rigl
71 H. 492, 795 P.2d 845. 698 F. Supp. 1496. prh
Violated where there were unreasonable delays Not violated where city ordinance providing
by adminisuative malfunctions of prosecutor's of- mechanism for trnnsfer of fee simple interest from req
fice and loss of tapes by police. 71 H. 537, 797 P.2d condominium lessors ro lessces did not intention- t
1312. ally discriminate against Native Hawaiians. 802 F. t
Right to fair trial denied where sum of prosecu- Supp. 326.
tor's conduct was prejudicial. 72 H. 278, 815 P.2d In view of underlying differences between cars
428. and motorcycles, HRS §286-81(I)(A), requiring
Police tactics designed to detect drug-related motoreyele safety helmets, does not violate the
offenses, including officer posing as drag dealer equal protection clause. 55 H. 138, 516 P.2d 709.
and supplying and selling drugs in "reverse buy" Requirement that a woman visitor to an all-male
opern[ion, were not so outrageous as to deprive prison wear a brassiere is no[ invalid. 59 H. 346,
defendant of right to due process. 73 H. 179, 830 SSI P.2d 1164. am
P.2d 492. The protection of this section is not necessarily
~ Claim for relief against state officials based on limited to that provided by the Fourteenth Amend- be
alleged illegality of exchange of ceded lands was ment. 60 H. 71, 588 P.2d 394. o[
barred by State's sovereign immunity. 73 H. 578, Consfitutionalily of statute regulating taking of thi
837 P.2d 1247. nehu upheld. 60 H. 662. 594 P.2d 130.
Right noI violated by defendant's absence from In contexC of equal protection analysis, right [0 19'
conference settling jury inswctlons as conference work does not invoke application of strict semtiny. ] 9
dces not involve jury's presence or witness [esti- W H. 662, 594 F2d 130.
mony. 74 H. 141, 838 P.2d 1374. Rational basis exists for compulsory retirement
Requires unbiased administrative adjudicators; age for stare employees. 63 H. 501, 630 P.2d 629.
no violation where §88-77 tmstees not shown [o No rational basis for disparate treatment of ~
have pecuniary or institutional disqualifying inter- classes in establishing statute of limitations. 65 H. ~
est in adjudication. 74 H. I81, 840 P.2d 367. 26, ti47 P.2d 276. Tip
i Written notice of specific charges no[ required Certain provisions of motor vehicle insurance
for ¢710.1077(1)(a) direct summary criminal con- law denied equal protection. 65 H. 623, 656 P.2d L ,1
tempt case; contemnor's misconduct and judge's 736.
response did not require contempt trial before dif- Right to privacy does no[ invoke strict scrutiny;
ferent judge. 74 H. 267, 842 P.2d 255. rational bazis for county to require financial disclo-
Deprivation ofproperty solely on basis of subs[i- sure by "regulatory employees". 68 H. 140, 706
~ toted service in adverse posxssron action violates P.2d 814. 5
~ due process, where, with due diligence, actual no- Public policy against racial discrimination. 69 H. ;
rice possible. 6 H. App. 241, 718 P.2d 1109. 238, 738 P.2d 1205. fed
Does not require agency hearing before taz di- No procedural due process violation where pris- the
rector issues notices of tax assusment. 6 H. App. oner was placed and retained in administrative seg-
260, 718 P.2d 1122. regation. 7 H. App. 502, 753 P.2d 816. 8°,
Hawaii Legal Reporter Citations uo~
du
Due process. Equal protection.
Mooring permit. 80-1 HLR 800249. Beverage containers. 78-2 HLR 78-1478. Pri
Vagueness. 81-1 HLR 810147.
be:-
22i
RIGHT TO PRIVACY
vat
the
' ' Section 6. The right of [he people to privacy is recognized and shall no[ be st
infringed without the showing of a compelling state interest. The legislature shall
108
~II
1'
STATE CONSTITUTION Art. I-Sec. 7
br take affirmative steps to implement this right. [Add Cons[ Con 1978 and election
and Nov 7, 1978]
rd-
2d
Lew Journals and Reviews
in
di- State v. Kam: The Constitutional Status of Obscenity in Hawaii. l I UH L. Rev. 253.
• is State v. Rothman: Expanding the Individual's Right [o Privacy Under the Hawaii Constitution. 13 UH
m- L. Rev. 619.
gyp.
ns Case Notes
'W Parents' right to give their child any name [hey wish. 466 F. Supp. 714.
1O Right of privacy does not encompazs sex for a fee in a private apartment. 66 H. 616, 671 P.Zd 1351.
Public officials' expectation of financial privacy qualified by constitution's code of ethics. 68 H. 140,
706 P.2d S I4.
A person has a right to read or view pornographic material in the privacy of one's own home, along with
this right is the right [o purchase such materials for personal use; section affords much greater privacy
u. right than federal right to privacy; State must show a compelling state interest to infringe upon the right of
g privacy. 69 H. 483, 748 P.2d 372.
.n A person using a private telephone line has a reasonable expectation of privacy; pen register warrant
required the signature of a circuit court judge. 70 H. 546, 779 P.2d 1.
Not violated by police drug testing program. 71 H. 568, 799 P.2d 953.
' Not violated by firefighters drug testing program. 8 H. App. 571, 816 P.2d 306.
s
s SEARCHES, SEIZURES AND INVASION
` OP PRIVACY
Section 7. The right of the people to be secure in [heir persons, houses, papers
and effects against unreasonable searches, seizures and invasions of privacy shall no[
be violated; and no warrants shall issue but upon probable cause, supported by oath I
or affirmation, and particularly describing [he place [o be searched and the persons or l
things to be seized or [he communications sought [o be intercepted. [Am Const Con
1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7,
1978]
Law Journals and Reviews
Suppression of Evidence Without the Aid of the Fourth, Fifth and Sixth Amendments. 8 HEJ 109.
State v. Sherlock: Police Use of a Controlled Purchase of Contraband to Corroborate an Informant's
Tip. 12 UH L. Rev. 237.
Stale v. Rothman: Expanding the Individual's Right to Privacy Under the Hawaii Constitution. 13 UH
L. Rcv. 619.
Case Notes
Su also notes [o U.S. Const. Amends. 1, 4. This provision does not elevate right of privacy
Section incorporates [he 4th Amendment of the to equivalent of Fvst Amendment right. 56 H. 271,
federal constitution and is intended to give the Slate 535 P.2d 1394.
the benefit of federal decisions conswing the tan- Helicopter observation of open marijuana patch
guage. 45 H. 295, 309, 367 P.2d 499. was not "an invasion of privacy". 58 H. 412, 570
State supreme court may extend greater protec- P.2d 1323.
[ion than is extended by federal decisions, if Words "invasion of privacy" were designed to
deemed a ro riate. 50 H. 138, 433 P.Zd 593. Protect against extensive governmental use of elec-
PP P tropic surveillance techniques and undue govern-
mental inwsion into areas of a person's life neces-
Privacy. nary to insure individuality and human dignity. 58
Arent of defendants sunbathing nude on public H. 412, 570 P.2d 1323. i
beach did no[ violate their right of privacy. 52 H.
226, 475 P.2d 684. Search and seizure.
Where government secret agent is invited to pri- Use of flashlight by police officer in scanning
vote home to urchaze mari uana and later ces interior of automobile lawfully stopped for traffic
P 1 g offense is not per se unreasonable search and sei-
there and makes purchase, agent's activities do not zure. 50 H. 461.443 P.2d 149.
constitute unreasonable invasion of privacy. 54 H. Scope of search incident to lawful arrest: can be
513, 510 P.2d IlM6. no broader than necessary; in construing Hawaii
109
HARRIS v. DeSOTO 425
Clte as 80 Hawal'1125 (1996)
e to believe and 91 t P.2d 60 Court, City and County of Honolulu, granted
strong suspicion Jeremy HARRIS,[ in his official capacity summary judgment in favor of council. May-
State v. Chung, as Mayor of the City and County of or appealed. The Supreme Court, Moon,
P.2d 1063, 1070 Honolulu; Russell W. Miyake, in his C.J., held that: (1) ordinance was valid to
n omitted). Ap- official capacity as Director of Finance, extent that it vested power in council to
ig someone who City and County of Honolulu; Malcolm settle claims with city funds, but (2) ordi-
ched by, known J. Tom, in his official capacity as Chief nance was invalid to extent that it vested
len seen dozing Budget Officer, City and County of Hon- Power in city council to settle claims by
akets containing olulu; and Darolyn Hatsuko Lendio, in means other than with city funds or through
se facts "would her official capacity as Corporation exercise of authority vested exclusively in
-aution or pru- Counsel, City and County of Honolulu, council by charter.
mtiously enter- Plaintiffs-Appellants, Affirmed in part, reversed in part.
he guilt of the
d that the pres- v'
an officer with ' ' Tohn DeSOTO, Duke Bainum, John Henry 1. Appeal and Error x863
rience, created r~ Felix, Mufi Hannemann, Stephen A. On appeal, order of summary judgment
pellee indepen- ;k: Holmes, Donna Mercado Kim, Rene is reviewed under same standard applied by
Mansho, Andrew R Mirikitani, and Jon circuit courts.
C. Yoshimura, in their official capacities
was probable as members of the City Council, City 2. Judgment x181(2), 185(6)
r to the seazch and County of Honolulu; City Council, Summary judgment is proper where
he seazch was City and County of Honolulu, Defen- moving party demonstrates that there are no
~ntalities of the dants-Appellees. genuine issues of material fact and it is enti-
made immedi- No. 18072. tled to judgment as matter of law; in other
rch was a valid ,;F words, summary judgment is appropriate if
rest. Because Supreme Court of Hawai i. pleadings, depositions, answers to interroga-
hat the bindles ~ Feb. 5, 1996. tories, and admissions on file, together with
not have been affidavits, if any, show that there is no genu-
ine issue of material fact and moving party is
After city council, over mayor's veto, entitled to 'ud
J gment as matter of law.
)N passed ordinance that effectively vested ex-
elusive power in councIl to settle claims in 3. Municipal Corporations x111(1)
e, we hold that excess of $5,000, as well as suits for igjune- Municipal ordinance must conform to, be
did not violate five, declazatory, and extraordinary relief, subordinate to, not conflict with, and not
United States mayor filed complaint for declaratory and exceed municipal charter, and, just as legisla-
tion 7 of the igjunetive relief, seeking declaration that or- five act may not modify or supersede provi-
Iingly, we re- dinance was urilawful and void because it sion of State Constitution, nor may ordinance
granting Ap- violated city charter. The First Circuit change or limit charter's effect.
Id remand for 1. The present action was initially instituted on same election of September 17, 1994, defen-
i Op1I110n. November 30, 1993 by Frank F. Fasi, Russell W, dants-coun<ilmembers Gary Gill, Leigh-Wai
Miyake, Paul T. Leong, and Ronald B. Mun in Doo, and Arnold Morgado, Jr. were replaced by
their respective official capacities as Mayor, Di- newly~lected councilmembers Jon C. Yoshimu-
rector of Finance, Chie( Budge[ Officeq and Cor- ra, Duke Bainum, and Mufi Hannemanu, respec-
poration Counsel oC the City and County of Hon- Lively.
olulu. On July Ig, 1994, Mayor Fasi stepped pursuant to Hawaii Rules of Appellate Proce-
down From office to run for governor of [he State dare (HRAP) Rule 43(c)(I), Malcolm J. Tom and
of Hawaii. Then~ity Managing Director Jere- Darolyn Hatsuko Lendio have been substituted
my Harris stepped in as acting mayor and, by automatically for Paul i. Leong and Ronald B.
election held September 17, 1994, was duly elect- Mun as plaintiffs-appellants, and Jon C. Yoshi-
Ka ed to [he office of mayor. Mayor Harris was mura, Duke Bainum, and Mufi Hannemann
520 P.2d at 55, sworn in on October 7, 1994, and thereafter have been substituted automatically Cor Gary
appointed Malcolm I. Tom as Chief Budget Offi- Gill, Leigh-Wai Doo, and Arnold Morgado, Jr.
ter and Darolyn Hatsuko Lendio as Corporation as defendants-appellees in the present case.
Counsel, replacing Paul T. Leong and Ronald B. Councilmember John Desoto, the current coun-
Mun, respectively. Russell W. Miyake remains cil chairperson, has also been realigned as lead
as the City Director oC Finance. During the defendant.
~Z6 8U fL111'.11'1 RF,POR'1'S
4. Municipal Corporations alll(1) council could potentially affect ancUor control
Ordinances must conform «2th municipal any aspect of city government that happened ~ se:
w"a~
charter's expressed terms, and must not con- to be subject of "claim" against city-situa- inl
(lief in any degree with charter's object or Lion clearly in conflict eith system of separa- '~q`" mi
~~ith purposes fm~ which local cm~poration was lion oC powers mandated by charter. Re-`-~"~ an
organized. vised Ordinances of Honolulu, Haw., No. 93- " po
78. ~ the
5. Municipal Corporations 58
Municipal charter has as its basic
scheme clear and definite separation of ]egis-
Appeal from the First Circuit Court, City
lance power and executive power of city and
county, vesting former in legislative branch and County of Honohilu (Civ. No. 93-4615). -i'-Z-, of
represented by council and latter in caeca- Ronald B. Mun, Former Corporation y. ~
five branch headed by mayor; under separa- se'
Counsel, and Robin M. Kishi and Hazel G. co
lion of power so provided, each branch is geh, Former Deputies Corporation Counsel,
coordinate with other, and neither may exer- m`
~ on the briefs, Honolulu, for plaintiffs-appel- m~
cise power vested in other, but this does not lants.
mean that wall of separation is complete and _ co
either branch is free to exercise power as it Paul Devens of Devens, Lo Youth, Nakano - ~ co
pleases without any say by other. & Saito, on the briefs, Honolulu, for defen- si:
dants-appellees. po
6. Municipal Corporations c~lll(1) or.
As comprehensive general rule, ordi- Before MOON, C.J., KLEIN,
nance may not conflict with express provi- LEVINSON, NAKAYAMA and RAMIL, JJ.
1
sions, purposes, or object of city charter,
~ particularly principle of separation of powers
~ - dictated by charter, in that neither branch MOON, Chief Justice. en
may exercise powers vested in other by char- plaintiffs-appellants Jeremy Harris, Rus- th'
k'.r. sell W. Miyake, Malcolm J. Tom, and Daro- n'`
I~ lyn Hatsuko Lendio, in their respective offi- - Cc
7. Municipal Corporations C>I018 ~
To extent that city ordinance vested cial capacities as Mayor, Director of Finance, na
ower in cif council to settle claims with cif Chief Budget Officer, and Corporation Coun-
funds, ordi ance was consistent with expre s sel of the City and County of Honolulu [here- all
' provisions, object, and purposes of city char- wafter, collectively, the administration] ap- e
I, ter, and did not violate principle of separa- Peal the First Circuit Court's order granting P
lion of powers expressed therein; mayor did summary judgment in favor of defendants-
not have "sole and exclusive" power to sign appellees John DeSoW, Duke Bainum, John !t,
contracts, executive powers to "approve as to Henry Felix, Mufi Hannemann, Stephen A.
Holmes, Donna Mercado Kim, Rene Mansho,
forru and legality" and to "sign" contracts did ~g.
Andrew K. Mirikitani, and Jon C. Yoshimura,
j not include power to settle claims, and city
council possessed power to control city's in their official capacities as members of the
purse. Revised Ordinances of Honolulu, City Council, City and County of Honolulu
Haw., No. 93-78. (the city), and the City Council [hereinafter,
collectively, the City Council or the council].
8. Municipal Corporations 1018 By grantiug summary judgment in favor of
City ordinance was inconsistent with the council, the circuit court upheld the valid- X
provisions, object, and purposes of city char- ity of an ordinance recently passed by the
ter to extent that ordinance vested power in council, over the mayor's veto, that effective-
city couucil to settle claims by means other ly vests authority in the council to settle
than with city funds or through exercise of claims, demands, debts, disputes or other
authority vested exclusively in couucil by matters involving the city, except when seb i
charter, and thus, ordinance was invalid in dement would not involve or require paY~.
that respect; under ordinance xs written, went in excess of $5,000.00.
I
I
1
~I
HARRIS v. DeSOTO 427
Caeu80 Haawl'I 425 (1996)
and/or control On appeal, the administration argues es- The council's exclusive authority to set-
that happened sentially that the circuit court erred in grant- tle claims also is supported by the general
Est city-situa- ing the council's motion for summary judg- principle, found in the case law, that in the
:tem of separa- ment because the ordinance conflicts with absence of a contrary provision the power
chafer. Re- and contravenes the provisions, object, pur- to compromise a claim is lodged with the
Haw., No. 93- poses, and policies of the Revised Charter of legislative branch of a municipality. Nei-
the City and County of Honolulu [hereinaf- ther the State constitution nor the general 1
I
' ter, the RCH, the charter, or the city char- laws of the State contradict the council's
ter]. finding.
ait Court, City To the extent that the circuit court's awazd However, the council has been frustrat-
No. 93-4615). ed in its attempt to settle claims and ter-
of summary judgment in favor of the council urinate htigation in those cases where the
' grants exclusive authority in the council to mayor has refused to settle. The corpora-
Corporation settle or compromise a claim in exchange for
and Hazel G. tion counsel has opined that settlement of
consideration other than: (1) the commit- claims a ainst the cit re wires the concur-
ation Counsel, ment of city funds; or (2) an exercise of rence o f
both the execute e and le slative '
daintiffs-appel- Bi '
municipal authority vested exclusively in the branches of city government. As a result,
council by the charter, we reverse the circuit the corporation counsel has in the past
Youth, Nakano court's order on the ground that it is incon- faIled to transmit settlement offers to the
ulu, for defen- sistent with the provisions, object, and pur- council when the mayor has not approved
poses of the city charter. The circuit court's of settlement. In one case, a written offer
order is affirmed m all other respects. to settle a substantial case was transmitted
by the plaintiff to the corporation counsel
d RAMIL, JJ. I. BACKGROUND in November, 1991, but not transmitted to
On September 29, 1993, Bill No. 91 (1993), the council by corporation counsel until
September, 1992, ¢fter the council became
entitled "A Bill For an Ordinance Relating to awaze of its existence and specifically re-
Harris, Rus- ~ the Settlement of Claims Against the City,"
rF~ quested it from the corporation counsel.
Im, and Daro- was passed on third reading by the City This practice is unacceptable because it
respective offi- Council. Bill No. 91 proposed to amend deprives the council of its decision-making
ur of Finance, ('3~. Article 3, Chapter 2 of the Revised Ordi-
responsibilities and permits the mayor, as
]oration Coun- ~ nances of Honolulu 1990 (ROH), to vest ex- head of the executive branch, to ursue
~onolulu [here- elusive authority in the City Council to settle p '
and continue litigation which may have
ustrationj ap- all claims against the city, and provided in little or no merit and which commits need- ~!i!;!i
~~m. ntin pertinent part that:
gre g ed resources from the city's budget and
If defendants- The council finds that under the Revised forces the council to appropriate funds for
Bainum, John Charter of Honolulu 1973, as amended, the the litigation. The situation is further
Stephen A. council has the exclusive authority to settle complicated and exacerbated in instances
Rene Mansho, claims made by private parties or govern- where the corporation counsel is disquali- III!,,,,
C. Yoshimura, ment agencies against the city or the city's fled from representing the city and the city ~
>mbers of the agencies, officers, or employees. The retains private attorneys. Consistent with
~ of Honolulu council has the sole power under the char- the opinion of the corporation counsel, pri- ~i
I [hereinatteq ter to adopt the city budget and to appro- vale attorneys representing the city have
^ the council]. priate money for city purposes. No claims been instructed that they have no obli- ~
nt in favor of against the city can be settled or paid gation or duty to bring settlement offers to
geld the valid- without council appropriation. The char- the council for decision unless the offer is
gassed by the ter expressly provides for council review of first approved by the officials of the execu-
chat effective- claims against the city. In contrast, no five branch.
ncil to settle provision in the charter gives to the execu- The councIl does not wish to "micro-
rtes or other tive branch or any official of the executive manage' the conduct of litigation by the '
ept when set- branch the authority to approve of the city's attorneys. Nor does it deem it ei-
require PaY- settlement of claims or to prevent the ther desirable or efficient for the council to
council from settling claims. review every single written settlement of-
III
' 428 80 HAWAI`[ REPORTS
fer in all pending cases against the city, nance No. 93-78, which, as passed, read in x to
• I regazdless of merit. There aze claims, pertinent part as follows: al
however, that, for reasons of policy or fi- procedure governing council approval for tip
nancial impact, call for greater review by the settlement of claims against the city. se
~ the council as the city's chief policy-making (a) Except as otherwise provided in Sec- su
body and the adopter of the city's budget. tion 2~.1(d),IZI no claim shall be adjust- dt
Further, it tsunperative that, in those ed, settled, or compromised without the
instances where the executive branch re- prior approval of the council. n;
fuses, for whatever reason, to even consid-
er settlement, but where the council deter- (b) The council shall determine and specify b~
from time to time b resolu i ,
ton, claims w
Y
mines that settlement should be pursued, for which all written offers of settlement ci'
one branch of city government mast have are to be transmitted to the council by $f
the power to make and enforce a settle-
' ment decision on behalf of the city. That legal counsel.... ct~
~ body is, by charter, the council. ~ ~ ~ ~ t~
Therefore, the purpose of this ordinance (c) The council may, after deliberation in
is to: 1) establish a procedure by which executive session, accept or reject the
offer, or propose acounter-offer. If the st
the council can specify those claims against wuncil decides to accept the offer of tr
the city for which all written settlement settlement, the council shall do so by
offers must be transmitted to the council
for review and decision; 2) establish a time adopting a committee report or a resolu-
period for the transmittal of all such pro- Lion specifying the terms of settle-
posals to the council; 3) require the city~s ment.... The decision of the council to
legal representative to obtain the recom- accept a settlement offer shall be bind-
in on the cit and on le al counsel....
mendation of the city agencies and officials g Y g
affected by the proposed settlement and
transmit the recommendation in writing to (e) Defirtitions. For the purposes of this
the council; and 4) clarify and affuTrl that section:
where the council makes a decision to set- .
tie a claim, the decision is binding on all "Claim" includes any claim, demand,
I''~' agencies, officials and employees of the debt, dispute or other matter in favor of
h " cit ,and the cit s le al re resentative is
II Y Y' g P or against the city, its agencies, officers
%~y", required by law to carry out the council's or employees, initiated, brought or made
E~'~'~~. decision without dela and without inter-
s ference from the executive branch officials. by any person as defined in Section 1-
t~l 4.1, or any federal or state agency. The
(Emphasis in original.) term includes claims for igjunctive, de- -e
Then-Mayor Fasi vetoed Bill No. 91 on claratory and extraordinary relief.
{ October 13, 1993, and the council overrode Ordinance No. 93-78 (1993).3
the mayor's veto by an eighDtoone vote on Thus, in combination with ROH § 2-3.1(d),
October 20, 1993. Bill 91 then became Ordi- which vests power in the corporation counsel ~t
2. Revised Ordinances of Honolulu (ROH) § 2- in ezcess of $5,000.00, provided [he money
3.1(d) (1990) vests power to settle claims under to settle claims generally has been appropri-
$5,000 in the corporation counsel and provides aced and is available therefor, and provided
in pertinent pan: further, that a quarterly report of all settle-
Additional powers, duties and functions. menu shall be filed with the council within
(d) Settlement of Claims. IS days after the end of each quarter.
(I) By Cotporation Counsel. Have the power ROIi § 2-3.1(d) was unaffected by [he passage of
to adjust, settle, compromise or submit to ROH No. 93-78, and remains in force under the
I arbitration, any action, causes of action, ao new scheme.
counts, debts, claims, demands, disputes, y
and matters in favor of or against the city or 3. Ordinance No. 93-78 also contains a severabil-
in which the city is concerned as debtor or sty clause that provides:
creditor, now existing or which may hereaf- SECTION 3. Severability. [C any provision o[
ter arise, not involving or requiring payment this ordinance, or application thereof to any
HARRIS v. DeSOTO 429 ~
Clteu80 Hawal'1 ?25 (1996)
read in ~ to settle claims against the city for $5,000.00 the memorandum and it is also approved
and less, Ordinance No. 93-78 (1993) effec- by the Trials Aivision Head. If the
mat for lively vests exclusive power in the council to involved department head agrees with
he city. settle claims in excess of $5,000.00, as well as the settlement, he or she signs the mem- I~,
~ Sec gaits for injunctive, declaratory, and extraor- orandum as well. If the involved de-
adjust- Binary relief. partment head does not agree with the
:out the Prior to October 20, 1993, when the ordi- settlement, he or she may refuse to sign '
Hance at issue in the present case was passed the memorandum and may indicate a
sPec~Y by the City Council, the corporation counsel reason for the disagreement. I will then
claims would, as a matter of practice, seek the coon- sign and approve the settlement propos-
tlement cil's approval in settling claims in excess of al, and the memorandum is transmitted
moil by $5,000• The affidavit of thentorporation ~ the City Council to be placed upon the
counsel Ronald Mun, offered in support of next scheduled agenda for the Policy
the administration's memorandum in opposi- Committee's executive session.
lion to the council's motion for summary 7. If the executive (my staff and the
anon in judgment in the circuit court, details the involved department) believes that a case
lam' tits settlement review procedure, avemng in per- should not be settled or that a settlement
If the tinent part: demand is excessive and unreasonable, the iii
offer of ~ settlement demand is re ected b m staff.
~ so by 5. All claims or lawsuits are initially J Y Y
t resolu- reviewed by the staff of the Department of a. We do not transmit the settlement '
setts- the Corporation Counsel.... demand to the City Council because of ~
tuncil to our belief that, settlement being a dual ' •
~e bind- ~ 6. If the Department of the Corpo- function of the legislative and executive
uel.... { ration Counsel and/or the involved depart- branches, transmission of the demand to
the Couneff, once it has already been '~,,I~~
ment, officer, or employee decide that it rejected by the executive, would be a If
of ~ would be in the City's best interests to futile and wasteful gesture.
settle a claim or lawsuit, a settlement fig-
ure is agreed upon. b. In certain high profile cases or
a. If the settlement figure is $5,000 those with obvious policy issues affecting ,
demand, both branches of government, we trans-
favor of or less, my staff approves of the settle-
offit~r'a ment without City CouncIl intervention, mil unreasonable and excessive settle- 'I~~~
or made pursuant to Section 2~.1(d)(1) of the ment demands to the City Council, not 'I~i ;
etion 1- Revised Ordinances of Honolulu. The for approval, but for informational par- l
The amount is then paid by the Department Poses only.
dt.. of Finance from the "judgments and (Emphasis in original.)
f losses" account. The administration contends that Bdl No.
b. If the settlement figure is more 91 was prompted by the admutistration's fail-
2-3.1(d) than $5,000, my staff writes up a memo- are to transmit written settlement offers in
random setting forth the facts of the certain politically-charged "high profile"
~ case, the history of settlement negotia- tries! Concerned that the unilateral settle-
u lions, and the reasons for and against ment authority vested in the council by the
aPP settlement. The assigned deputy signs passage of Ordinance No. 93-78 would effec-
apll
person or circumstance is held invalid, the appropriation of $900,000), Hawai'i'S Thousand
c$ ~ invalidity shall not affect other provisions or Friends, et al. v. City ¢nd County o~ Honolulu,
e applications of this ordinance which can be g21 F.Supp. 1368 (D.Hawai'i 1993), and In the
~asse8~. given effect without the invalid provision or Matter o(National Pollution Discharge E(imina-
under application, and to this end, the provisions oC tion System Permit (or the City and County of
this ordinance arc severable Hono[ufu, Honoufiu[i Wastewater Treatment,
4. '('he administration points to settlement offers Docket No. NPDES-09-92-001 (dealing with the '
in Kro[I Associates v. City and County o(HOnolu- propriety of the discharge of "primarily" rather ~
(u, et a1., Civil No. 92--00150 (D.Haw.) (challeng- than "secondarily" treated effluent from the ~
Quist ing propriety of council's commitment of city City's wastewater treatment plants).
~ ~ money by contract above and beyond a lawful
430 80 HAWAII REPORTS
tively usurp the administration's ability to The City Council's power to settle or ~ On
exercise some of the powers vested in it by compromise claims is consistent with and ment i
express provisions of the City Charter, the derived from its power to appropriate city applie`
administration, on November 30, 1993, filed a funds. George A Fuller Co. v. Common- ,f judgm
Complaint for Declazatory Judgment and In- wealth, 303 Mass. 216, 21 N.E.2d 529 ty den
junctive Relief, seeking a declaration that (1939), and Shaw v. Common Council of issues
ROH No. 93-78 is unlawful and void because City of Watertown, ?5 S.D. 241, G3 N.W.2d ~ judgm
it violates the RCH. 252 (1954). See also 56 Am.Jur.2d, Munic- - words.
Thereafter, the council moved for sum- ipal Corporations, 808 and 809 (1971). if the
{ intern
mary judgment, which the circuit court As noted previously, only the City Coun-
granted by written order filed February 1, cIl is empowered by the Revised Charter gether
1994. The order provided in pertinent part of the City and County of Honolulu to there
that: make appropriations of city funds, 'i and th
ment:
First, the City Council is the legislative Since the City Council's power to settle
body of the City and County of Honolulu, or compromise claims is derived from its Heather
empowered pursuant to Section 3-101, fiscal powers and authority which are spe- VenEUre,
RCH, to enact ordinances. cifically provided for by the Revised Chaz- 781 (19S
Second, the City Council has the exclu- ter of the City and County of Honolulu, the citations
sive power to enact measures to generate enactment of Ordinance 93-78 is consistent
monies, adopt an operating and capital with, subordinate to, and does not conflict
budget, and to appropriate money for city with or exceed the Revised Charter of the The a
purposes. See Section 3-112 and 113, City and County of Honolulu. Fasti v. City court er
RCH. Council of the City & County of Honolulu, in favor
72 Haw. 513, 823 P.2d 742 (1992). nance T
Third, as part of the Executive Operat- 78 contr
ing Budget, the City Council appropriates Further, because the City Council pos-
monies each fiscal year for the purpose of sesses, in pertinent part, the power and Policies
paying settlements, losses and judgments authority to appropriate monies for city specific:
against the City and County of Honolulu. Purposes, the City Council's exercise of the 78 conf.
power to settle or compromise claims pur- "conflict
Fourth, by ordinance enacted by the council'
City Council, the corporation counsel is suant to Ordinance 93-78 does not improp- adopted
erly infringe upon a function or power
given the authority and discretion to settle which is vested primarily in the executive ing the
claims of $5,000 or less without consultor- branch of the city government. tion is
lion with the City Council. See Section 2- branch;
3,1(d)(1), Revised Ordinances of Honolulu Finally, the corporation counsel's histori- is veste
(1990). cal practice of submitting a settlement pro- subject
Fifth, in order to acMeve a settlement in Posal to the City Council for its review and vested i
a case involvin claims of approval, and making settlement agree- ment a
g ) $5,000 or more, menu contingent on securing the City E
the corporation counsel has historically ration
submitted a settlement proposal to the Council's approval confuTns the City Coun- approve
j Policy Committee of the City Council for cil's power to control the city's finances and the
consideration. The Policy Committee, in and to settle and compromise claims. tracts ~
executive session, either approves or dis- Therefore, based on the foregoing, the cannot
approves the settlement proposal. If the court declares and concludes that Ordi- her poc
City Council's Policy Committee approves nanee No. 93-78 is a valid and lawful en- once th
the settlement proposal, the City Council actment by the City Council, City and which i
votes on the settlement and approves it by County of Honolulu. settlem
resolution or committee report. If the This timely appeal followed. no add
City Council's Policy Committee does not claims
approve the corporation counsel's settle- II. STANDARD OF REVIEW exceed
meet proposal, no settlement is achieved council
and litigation ensues or continues. [l, 2] It is well settled that: resolut
HARRIS v. DeSOTO 431
` Cltes BO Hawd'1 QS (1996)
to settle or On appeal, an order of summary judg- The council asserts that the administra-
ent with and ~ ment is reviewed under the same standard lion's arguments are misplaced because Ordi-
Iropriate city applied by the circuit courts. Summary nonce No. 93-78 does not contravene the
v. Common- ,yl judgment is proper where the moving par- purposes of the RCH and merely reifies a
N.E.2d 529 ty demonstrates that there aze no genuine power that had already existed in the council.
n Council of issues of material fact and it is entitled to a In other words, Ordinance No. 93-78 is con-
1, 63 N.W.2d judgment as a matter of law. In other sistent with the RCH because the council
Ir.2d, Munic- words, summary judgment is appropriate possesses the exclusive power to settle
d S09 (1971). if the pleadings, depositions, answers to claims. We agree with the council's position
~e City Coun- interrogatories, and admissions on file, to- that Ordinance No. 93-78 is consistent with
ised Charter gether with the affidavits, if any, show that the RCH, but only to the extent that the
Honolulu to there is no genuine issue of material fact ordinance vests power in the council to settle
nds. and the moving party is entitled to a judg- claims where settlement or compromise is
ment as a matter of law. offered in consideration for either. (1) the
wer to settle commitment of city funds; or (2) an exercise
ved from its Heatherly v. Hilton Hawaiian Village Joint
Venture, 78 Hawati i 351, 353, 893 P.2d 779, of municipal authority exclusively vested in
rich are spe- the council.
evised Char- 781 (1995) (brackets, quotation marks, and
ionolulu, the citations omitted).
A. General Principles: An Ordinance
is consistent III. DISCUSSION May Not Conflict With the Express
; not conflict Terms, Object or Purposes of the City
garter of the The administration argues that the circuit lrya.~r
Fasi v. City court erred in granting summary judgment
ojHonolulu, in favor of the council and upholding Ordi- [3, 9] The proposition is self-evident that
2). nance No. 93-78 because Ordinance No. 93- an ordinance must conform to, be subor-
78 contravenes the provisions, purposes, and dinate to, not conflict with and not exceed
Council pos- the charter, and can no more change or
power and policies of the RCH. The administration limit the effect of the charter than a legis- ,
specifically contends that Ordinance No. 93- ~,i
lies for city lative act can modify or supersede a provi-
ercise of the 78 conflicts with the RCH because: (I) it sion of the constitution of the state. Ordi-
"conflicts with the 'strong mayor/strong
claims pur- nances must not onlg conform roith the I~"
council' form of government which was
not improp- express terms of the charter, but theg must ~i ~
~ or power adopted by the City electorate when approv- not conflict in ang degree with its object or i
se executive ing the City Charter' ; (2) control of litiga- with the purposes for which the Local cor-
don is vested primarily in the executive
branch; (3) the authority to settle litigation Poration Baas organized. II ,
sel's histori- is vested primarily in the executive branch Fasi v. City Council of the City & County of
dement pro- subject to the power to appropriate money Honolulu, 72 Haw. 513, 518, 823 P2d 742,
review and vested in the legislative branch; (4) a settle- 744 (1992) (internal ellipses and quotation
sent agree- ment agreement is a contract, and the corpo- marks omitted) (emphasis added) (quoting 5
g the City ration counsel has the exclusive power to E. McQuillin, The Law of Municipal Corpo-
City Coun- approve all contracts as to form and legality, rateons, § 15.19, at 98-99 (3d ed. 1989)). y
y's fmances ~ and the mayor has the power to sign con- [5] Moreover, we have also noted that: ~
'suns. tracts on behalf of the city; (5) the council The charter has as its basic scheme a
egoing, the - ~ cannot compel the mayor to exercise his or clear and definite separation of the legisla-
that Ordi- her power to bind the city to a contract; (6) five power and the executive power of the
I lawful en- once the council enacts the executive budget, city and county, vesting the former in the
City and ~ which includes appropriations made for the legislative branch represented by the coun-
settlement of claims, the executive requires cil and the latter in the executive branch
no additional approval to settle individual headed by the mayor. Under the sepaza-
claims as long as the executive does not lion of powers so provided, each branch is
7EW exceed the budgeted amount; and (7) the coordinate with the other, and neither may
council has no authority to settle lawsuits by exercise the power vested in the other.
resolution or ordinance. However, this does not mean that the wall
i
it
I
432 80 HAWAII REPORTS
of separation is tromple[e and either branch scant to RCH §9-305 (1984)' that the Cor- To th
is free to exercise its power as it pleases poration Counsel, who is appointed and may vests pt
without any say by the other. be removed by the mayor,° has the authority urith city
City Council v. Fast; 52 Haw. 3, 5, 467 P.2d ~ approve as to form and legality al] written three pr
~ 576, 578 (1970). contracts to which the city is a party.
Therefore, because Ordinance No. 93-78, in
[6] In view of the foregoing, as a compre- vesting exclusive settlement authority in the a'
j hensive general rule, an ordinance may not council, detracts from the mayor's and/or the
~I, ? conflict with the express provisions, pur- executive branch's ability to ~I'rY out its
I h poses, or object of the City Charter, particu-
lazl the entunerated powers to "approve as to form First,
y principle of separation of powers and le alit "and "si
dictated by the charter, in that neither g y gd' contracts, the Ad- has the
branch may exercise the powers vested in ministration argues that Ordinance No. 93- contract:
the other by the charter. 78 conflicts with and/or contravenes the ex- 103 doe:
press provisions, object, and purposes of the - contrary.
RCH, as we]] as runs counter W the "strong the mays
B. Orrlinanee No. 93-78 Is Consistent
mayor{strong council" form of government sco e in
i with the Express Proarisions, the Ob- espoused by the RCH. p
jeer ¢nd the Purposes of the Charter [s]igt
to the Extent that it Vests Power in The counci] contends that the administra- the city,
the Council to Settle Claims With City lion's arguments are overly simplistic and ,finance o
Funds merely beg the ultimate question of who, on by this r
behalf of the city, has the authority to effect (Emphasi
1. The authority to settle claims with the Chart
a settlement agreement. The council asserts
city funds stems from the power to that settlement authority stems from the fis- Honolulu,
control the city's purse. cal and spending powers vested in the counci] Charter C
Ii
[7] The administration argues that, pur- by the charter, and not from the powers to empowere
scant to RCH §5-103 (Supp.1993),5 the approve as to form and legality and sign al service:
mayor has the "sole and exclusive" power to contracts vested in the executive. Therefore, ty of legi
contract on beha]f of the tsty. Because a because Ordinance No. 93-78 is founded on (1984) (pre
settlement a cement is a contract, the ad- and this a
gr powers vested in the council by the charter,
ministration contends that the mayor has at the counci] aggues that it is not inconsistent ing any au
' M least co-equal authority with the council to with the charter, nor does it undermine or lion coons
accept settlement offers on behalf of the city. contravene the express provisions, object, or control o~
Moreover, the administration contends, pur- purposes of the charter. functions,
legislative
5. ACH § 5-103 provides in pertinent part that: ing ut this section and this article shall be
Y The mayor shall be the chief executive officer construed as granting any authority to the MOreOVe
mayor, the corporation counsel, or any depart- Inllllfitratio:
' of the city. The mayor shall have the power ment to exercise control over the organization,
I to: programs, functions, operations or expendi- broader au
i
[ores of the legislative branch. Article IX,
(h) Sign inst[ument5 requiring execution by 2. Be[ore execution, con[ract_s involving fi- "Financial
i~ the city, except those which the director o[ nancial obligations of [he city shall also be
ment and
1'~ finance or other officer is authorized [o sign by approved by the director of finance as to the
I this chareq ordinance or resolution. availability of Funds in [he amounts and for the tlvely. RC
purposes set forth therein. Such contracts arguably al
6. RCH § 9-305 provides: shall not extend beyond the term for which an tracts fA pu
CHAPTER 3 appropriation to finance such obligations has meet, and
PROCUREMENT AND DISPOSITION OP been made, except as otherwise provided by
f! this charter. This paragraph shall not apply [o and bodiBS i
E19 PROPERTY
obligations for the procurement of utility ser- describe an
vices. c contract on
Section 9-305. Contracts- ,
I. BeFore execution, all written contractr to 7, RCH § 5-201 (1984) provides [hat "1[Jhere t $ee gerleT¢h
which the city is a patty shall be approved by shall be a departmem of the corporation counsel (1989) (deht
the corporation wunsel as [o farm and legali- headed by a corporation counsel who shall be
ty. Except as otherwise provided, all such appointed by the mayor, with the approval of the ment of all
contracts shall be signed by [he mayor. Ex- council, and who may be removed by the may- and SerVlee:
cept as provided in paragraph (2) below, noth- or."' Clty.'~).
HARRIS v. DeSOT0
433
Clte as 80 Hawal'1 425 (1996)
e Cor- To the extent that Ordinance No. 93-78 In accord with this reasoning, the admitis- j
d may vests power in the council to settle claims tration's argument that Ordinance No. 93-78
thority with city funds, we agree with the council for "compels and forces' the mayor to sign a !
.vritten three principal reasons. settlement agreement in the event of council
party. approval is specious. Lacking "sole and ex- ~
-78, m a. The mayor does not possess the elusive' authority to sign contracts, the ad- I
m the "so(e and exclusive" power to ministration cannot credibly assert that the
!or the ~9n council's decision to settle a claim in any way 1.
gut its impinges on the mayor's ability to sign con-
y form First, it is questionable whether the mayor tracts, The charter does not require that the
ie Ad- has the "sole and exclusive" authority to sign mayor sign each and every contract to which
Io. 93- contracts on behalf of the city. RCH § 5- the city is a party. The city may validly
the ex- 103 does not expressly so provide; to the enter into a contractual agreement with the
of the contrary, RCH § 5-103(h) itself states that signature of a duly authorized representative
'strong the mayor's "signature" power is limited in of the city, which in some-but clearly not '
rnment sco in that the ma or has "the ower to '
Pe Y p all~ases may be the mayor. In other
[s]ign instruments requiring execution by words, no settlement agreements m cases , ;
_ the city, except those which the director of committing city funds need be signed by the
uustra Hance or other o er is authorized to sin '
is and ~ ~ 9 mayor to be valid; the mayor therefore can-
vho, on by this charter, ordinance or resolution." not complain that the council's decision to
) ~.~t (Emphasis added.) See also Final Report of settle a case based on Ordinance No. 93-78
the Charter Commission, City and County of "compels or forces" the mayor to sign an j
the ~ Honolulu, 1971-1972, at 13 [hereinafter 1972 agreement against his or her will because the I
roan Charter Commission Report] ("The council is mayor need not sign the agreement in order
vers ~ empowered to engage independent contractu- for the agreement to be valid, and, ultimate- 'i'
id sign al services for itself, subject to the availabili- ly, he or she need not be involved in the ~
xefore ty of legislatfve funds."); RCH § 9-305(1) process at all.
ded on ~ (1984) (Providing that "nothing in this section ~I ;
and this article shall be construed as grant- Moreover, the converse proposition is ~,i~
'fir' e ua1] untrue. The w
uistent > ing any authority to the mayor, the corpora- 9 Y po ers to settle vested
Lion counsel or any department to exercise ~ the council as explicated by Ordinance No. ?
ur control over the organization, pro ams, 93-78 do not divest the mayor of any power
gr
functions, operations or expenditures of the ~ sign contracts that he or she is authorized
legislative branch."). by the charter to sign; the fact that authori- ~ ,
shall be ty to settle claims against the city with city j
ro tlu Moreover, RCH §9305, cited by the ad- funds is vested in the council does not pro- i
' ~P~- ministration, and which ostensibly grants hibit the ma or from si
aization, broader authority to the mayor, falls under Y ~g aya provided k
racpeadi- a Bement on behalf of the cit
' Article IX, Chapter 3 of the RCH, subtitled settlement is offered in consideration for
~Iving fi- "Financial Administration" and "Procure- money, and the council has approved and ~
~O ~ ` ment and Disposition of Property;' respec- 1~
,s a the authorized the commitment of city funds in i
d (or the lively. RCH § 9305's provisions therefore the settlement amount Any inability on the
~ontrads arguably are limited to the context of con- p~ of the mayor to actually sign asettle-
u~
~ tracts to purchase materials, supplies, equip- ment agreement under the scheme set out by
ailed went, and services for the various agencies Ordinance No. 93-78 would stem solely from
apply w and bodies of the city government and do not the mayor's own refusal to sign the agree-
iGry xr ~ describe an overarching general power to ment.
contract on behalf of the city in all matters.
"[d 'See generally RCH 9-301 through 9
304 Nor does Ordinance No. 93-78 set out a ~
°O°°~ (1984) (delineating procedures for "procure- scheme whereby no one would be authorized
ment of all materials, supplies, equipment to sign a settlement agreement If autho-
he and services required by any agency of the rued in writing by the council, the corpora- ~
~tY•")~ tion counsel could, m compliance with HRS
i
'i
a
¢3¢ 80 HAWAII REPORTS
§ fi05-7 (1993) 9 and Hawai i Rules of Profes- si-legislative powers to commit municipal funds az~
sional Conduct (HRPC) Rule 1.2(a) (1995),9 funds. The executive role of the mayor was
affix his or her signature on a settlement strengthened to better equip the mayor to talmng '
agreement on behalf of the city. handle "the increasing administrative com- ROH §
plexity of city government" and not to imbue ment of
b. The executive powers to "approve as to the executive with legislative authority. See preserve
form and legality" and to "sign" contracts 1972 Charter Commission Report at 11 ("The ty to the
do not include the power to settle claims. Commission hopes that the strong mayor-
strong council form of government which it the coun~
Second, the powers to "sign" and "approve has sought to create will strengthen the based on
as to farm and legality' are not necessarily council's role of policy-making without per- in the p
coextensive with, and do not necessarily in- modificat
dude, the authority to enter into or to not mltting interference in administrative mat- settle ex
enter into a settlement a cement. As the ire' At the same time, it should be noted 1
gr that the executive role of the mayor was ROH § 2
chief executive officer of the city, the mayor
is appropriately the one individual charged strengthened to meet the increasing adminis- c 7
trative complexity of city government
~f with the responsibility of representing the Under this interpretation, the mayor's signa-
city in its contracts. See, e.g., 1972 Charter tore on a contract to commit municipal funds Finally
Commission Report at 11 ("[T]he [1958 ver- manifests the a ty y'
Sion of the] charter concentrates on the may- PPro ~1 of the d b tts chief issue of
executive officer onl when the chief execu- solved wi
or. He was made strong in order to make five officer is imbued, by the council's ap- trol over
one person responsible and accountable for proval of the executive budget or otherwise, (1984) ('h
city administration and given the tools with µjth the authority to so agree to the commit- measures
which to do the job."). Accordingly, the cor- ment and expenditure of municipal funds. ether wi
poration counsel is also appropriately g
As the council correctly notes, the dispositive able mon,
charged with the duty of assisting the mayor issue is who possesses the authority to effect §3-113 i
in ensuring the propriety of the form and a settlement agreement on behalf of the city. executive
legality of the documents the mayor is In the context of the dispute at issue in the enact the
charged with the duty to sign. present case, the executive's power to ap- ally and 1
Yet this is not to say that the powers to prove as to form and legality, and to sign, are As the 19~
approve as to form and legality and to sign invoked after the actual decision to settle or axiomatic
contracts necessarily entail or include the compromise has been made. shotild h:
power to commit the citys funds to a particu- In accord with this reasoning, the adminis- gation."
laz expenditure. As will be further discussed tration's argument that, once the council has Commis,
infra, the authority to raise, appropriate, dis- appropriated funds for the settlement of ~ Charter
tribute, and ultimately spend city funds is claims, the executive branch has unlimited tent with
lodged in the legislative branch alone. With authority to settle dawns within the total ti ~ power to
the charter's concept of separation of powers amount appropriated is flawed. The legisla- power to ;
j in mind, the mayor's power to sign contracts, five branch's power to control the purse not council's f
and the corporation counsel's power to ap- only necessarily includes the power to appro- include th
prove contracts as to form and legality, aze priate murticipal funds for a particular pur- may invob
more appropriately interpreted as powers in pose, but also in turn necessarily includes the are costly
aid of the administrative functions of the power to dictate the means by which, and, in ~ settle or
executive branch and not as substantive qua- tMs case, in what amounts, the earmazked volves an
8. HRS § 605-7 provides: 9. HRPC Rule 1.2(a) provides in pertinent part: 10. Morec
Control of actlon; power to settle. The practi- the fact I
SCOPE OF REPRESENTATION.
[loners licensed by the supreme court shall (a) A lawyer shall abide by a client's deci- nicipal p'
have control [o judgment and execution, of all lions concerning the objectives of represents- ~ e purvi
suits and defenses confided [o them; provided y RCH
that no practitioner shall have power to com- [ion, subject to paragraphs (c), (d) and (e), and ment tha
promise, arbitrate, or settle such matters con- shall consult with the client as to the means by ordinance
Oded to the practitioner, unless upon special which the objectives are to be pursued. A settlemen
authority in writing from the practitioner's lawyer shall abide by a clievi s decision wheth- (or the c
client. er to ace pt an offer of settlement of a matter. may, by ~
for the se
i
I
HARRIS v. DeSOTO 435 ~
Clteu 80 Hawal'I 025 (1996) ~
municipal funds aze expended. In this sense, by main- commitment of funds. This exercise of dis-
layor was twitting and incorporating the provisions of cretion further involves a balancing of the
mayor to ROH § 2-3.1(d), the scheme for the settle- cost to litigate, or to continue to litigate, and
five com- ] ,
ment of claims under Ordinance No. 93-78 the cost of paying or accepting a settlement ,,II
to imbue preserves the previous delegafion of authori- amount, in the context of the city's entire
rity. See ty to the executve branch to settle claims for financial situatioa10 As the body charged by _
. 11 ('"phe $5.000,0(1 and less. However, the fact that the charter with the responsibility to manage
g mayor- the council annually appropriates a lump sum the fiscal integrity of the city, the council is
which it based on total claim settlement expenditures therefore appropriately in the best position
;then the iu the past does not constitute an implicit to decide whether to settle a claim or to allow
hoot per- ri till ation to commence or continue.
modification of the dele anon of autho ty to g
g
hive mat-
settle expressly and specifically delineated in In view of the foregoing, we hold that the
be noted
iayor was ROH § 2~.1(d). authority to settle claims with city funds on
admitus- behalf of the city stems from the fiscal and
rnment."). c. The council possesses the power spending powers vested in the council by the
ar's signa- to control the city's purse. RCH. The administration's azguments that
~ipal funds Finally, and most importantly, the ultimate Ordinance No. 93-78 is inconsistent with the
~y its chief issue of settlement authority cannot be re- object and purposes of the RCH, most nota-
.ief execu- .4 solved without reference to the council's con- bly the principle of sepazation of powers
melt's ap- trot over the city's purse. RCH § 3-112 underlying the scheme of municipal govern-
otherwise 1984) ("The council shall also enact such ment framed by the RCH, are therefore
e commit- measures as will yield sufficient moneys, to- mistaken. U ;
pal funds. gether with available surplus and other avail-
disposiGve able moneys, to balance the budget RCH 2. Other Jurisdictions Have Held that '
y to effect §3-113 (1984) ("The council shall adopt an the Power to Settle Or Compromise i
tf the city. executive operating and capital program and Claims for Money Lies Exclusively 'lei '
sue in the enact the necessary budget ordinances annu- in the Legislative Branch I;,~
'er to ap- ally and provide for the financing thereof,"). Consistent with our holding today, several I~~,
o sign, are As the 1958 chazter commission noted, "[i]t is other jurisdictions that have had the opportu-
osettle or axiomatic that the person who 'foots the bill' pity to address the issue have held thaC,
should have a voice in incurring the obG- absent a contrary provision, the power to
e atlminis- gation." Report of the Honolulu Charter settle or compromise claims lies exclusively r'
rotmcil has Commission, (May 8, 1958) [hereinafter 1958 in the legislative branch of municipal govern- '
lement of Charter Commission Report] at 6. Consis- ment. For example, in City of Fairmont v.
utllimited tent with this reasoning, unlike the mayor's Hawkins, 172 W.Va. 240, 304 S.E2d 824 ~'I
i
the total power to sign, and the corporation counsel's (1983), Charles Glaspell, a Fairmont resident, si
'he legisla- power to approve as to form and legality, the brought a property damage suit against the p
purse not council's fiscal powers necessarily entail and City of Fairmont for water damage. Appel-
r to appro- include the power to settle claims. Lawsuits lee Hawkins, Fairmont's mayor, conducted a
~.culaz pur- may involve judgments in lazge amounts and personal investigation of the damage to the I
[eludes the are costly to litigate. Also, the decision to claimant's home, and, thereafter, Glaspell ap-
ch, and, in settle or compromise claims invariably in- proached Hawkins and offered to settle the jj'
earmazked volves an exercise of discretion regarding the claim for $8,500. The City Attorney in- 1
lent part: 10. Moreover, [he administration does no[ contest ordinance would be required by RCH § 3-203,
the fact [hat the appropriation of funds for mu- as the administration correctly notes, to be pre-
nicipal purposes is a legislative function within sen[ed [o the Mayor for approval or veto. How-
IieO['s deci- the urview of [he owers vested in the council
p p ever, pursuant to [he same provision, the council
represents- by RCH § 3-101. The administration's argu- may override [he mayor's veto by atwo-thirds i,
and (e), and meat that the council may not settle cases by vote in favor of the ordinance. Thus the final
he means by ordinance is therefore mistaken; in cases where authority to pass the ordinance ultimately lies
mrsued. settlement or compromise is offered in exchange with the council, both substantively, pursuant to
ision wheth- for the commitment of city funds, the council its fiscal powers, and procedurally, pursuant [o
of a matter. may, by ordinance, appropriate municipal funds RCH § 3-203.
for the settlement of a particular claim. Such an
i
I
436 80 HAWAII REPORTS
formed Hawkins that the claim should be Louisville v. Murphey, 5 S.W. 194, 198 (Ky. Boa
litigated, but that he, as mayor, had the 1887) (`te'e think the mayor has no general one
power [o settle it. Hawkins, without any power to authorize litigation in behalf of the agrv
formal action by the City Board of Directors city, or to control it. If so, he could disre- oral
(the legislative body of the city government), gazd the legislative will of the municipality, fir.. cant
had a check drawn on the city water depart- bringing and dismissing suits at his plea- Boa
ment's account for $8,500.00 made payable to sure."); City of Owensboro v. Weir, 24 S.W. Lieu
Glaspell. The city finance director refused 115, 117 (Ky.1893) (same); Shaw v. Common Id (fo
to sign the check and protested, but Hawkins Council of City ojWatertown, 75 S.D. 241, 63 Sim
signed the check on his own authority. The N.W.2d 252, 255 (1954) ("We unhesitatingly tratio~
city sued Hawkins, seeking to recover the conclude, after a cazeful review of all of our
RCH
allegedly improper settlement, and, the cir- statutes dealing with municipal corporations, brand
coif court exonerated Hawkins. that the power to control litigation on behalf Morec
The Supreme Court of Appeals of West or in the interests of a municipal corporation counsi
Virginia disagreed and, in reversing the cir- of the character of the city of Watertown ~ ~
rests solely with the common council."); see P
cost court, held: ~ ~ gener.
We begin by noting that our general also generally 56 Am.Jur.2d Municipal Cor- proval
municipal statutes authorize a monies- p°"nzions, Counties and Other Political Sub- exceec
divisions, § 808 (1971) at 809 ("In municipal
pality to compromise lawful claims pre- court
~ sented or filed against it. A municipals- corporations proper the power to compro- corpm
ty has the plenary power and authority mice usually exists in the governing legisla- submi
"to institute, maintain and defend any Live body, generally denominated the com- Counc
mon council. Thus, it has been held that the
civil action or other proceeding in any ing se
court." W.Va.Code, 8-12-1(3). And, un- Presentation of a claim to the city council curing
being a mere condition precedent to the right
der W.Va.Code, 5-12-2(4), municipalities of the claimant to resort to the court, it is the Ct
are authorized to provide in their char- thin the power of the council, where the finano
ters or by ordinance for "[t]he presenta- claim is of such a nature as to come within its -i~ claims
lion, ascertainment, disposition and dis-
jurisdiction, to compromise and settle such
charge of claims against the city." C.
As a corollary to this rule is the prin- claim either before or after an action is `
ciple that in the absence o! some con- brought in the courts thereon."); Id, § 811
trary provision, the power to compromise at 810 ("The mayor of a city cannot, unless
a claim is Lodged with the legislative specifically authorized, compromise any
branch o! the municipality and, there- claim, or, by acting under such a compm-
fore, amayor is not empowered to com- mice, estop the assertion of the city's legal
promise claims. None of the parties rights."); Annotation, Power of City, Town,
point to any specific statutory or charter or County or Their Officials to Comprmnise [8]
provisions that empower the mayor to Claim, 15 A.L.R.2d 1359, 1383 (1951 & Supp. sistent
compromise claims on behalf of the city. 1995) ("in municipal corporations proper the oses
j power to compromise usually exists in the P
Id 304 S.E.2d at 826 (citations omitted); see governing legislative body, generally denom- vests
also Nottingham v. City of Yukon, 766 P.2d inated the common council"; providing an with r
973, 975 (Ok1a.1988) ("In the absence of some extensive list of case authority for the propo- thorit~
contrary provision, power to compromise a sition). No. 9
claim is lodged with the legislative branch of power
a municipality.... Matters of legislative Moreover, in so holding, the Hawkins Hance
concern, such as the assertion of the city's ~ court took special notice of the fact that the that,
legal rights, should be addressed by the city mayor had discussions with the city boazd of [ROH
council, not the city manager."); Snyder v. directors regarding settlement. The court adjust
City of St. Paul, 267 N.W. 299, 250 (Minn. °0~d' prior
1936) ("[O]rdinarily, power to compromise Perhaps, in an implied acknowledgement decisii
claims is inherent in the common council as a that he had no specific authority, Hawkins offer
representative of the municipality."); City of asserts that he had discussions with the couns~
HARRIS v. DeSOTO 437
Clle as 80 Howal'1425 (1996)
18 (Ky. Board of Directors, the legislative body, on defined by the Ordinance, includes "clauns
;eneral one or more occasions and a majority for igjunctive, declaratory and extraordinazy
of the agreed the claim should be settled and relief." Pursuant to Ordinance No. 93-78,
disre- orally authorized him to settle it. Signifi- therefore, the council has the power to "ac-
ipaGty, cantly, there was no claim made that the cept" any offer made by a claimant and,
plea_ Board ever authorized settlement at a par- should the council "accept" the offer on its
.9 S.W, ticulaz figure. terms, the council's acceptance is binding on
'm'oron [d (footnote omitted). the city, and the city is bound to comply with
241, 63 the terms of the offer or be in breach of the t
atingly Similazly, in the present case, the adminis- settlement agreement. I'
of our tration points to no express provision in the i~'
•ations, RCH vesting authority in the executive Under the scheme as set out by the Ordi- ~I
behalf branch to settle or compromise claims. Hance, potential conflicts with the object and
Moreover, notwithstanding the corporation purposes of the charter arise. As previously
o~tiOp counsel's explanation of its actions in the noted, at the heart of the form of government
erto~ past, the administration has engaged in the prescribed by the charter is the principle of
see general practice of seeking the council's ap- separation of powers, in that each coordinate
rl Cor- proval of settlement offers for claims that branch of municipal government is charged
d Sub exceed $5,000. As we believe the circuit with particulaz governmental functions,
nicipal court appropriately noted in its order, "the largely free from interference by the others.
Impro- corporation counsel's historical practice of As written, Ordinance No. 93-78 violates the
eglsla- submitting a settlement proposal to the City principle of separation of powers to the ex-
com CouncIl for its review and approval, and mak- tent that it essentially grants to the council
iat the ing settlement agreements contingent on se- the power to bind the city to any terms,
wuncil curing the City Council's approval confirms whether or not the terms fall within the
right the Cit Council's ower to control the cit 's powers of the councIl, b anon the ower ~
it is Y P Y Y g P +I~',
re fhe finances and to settle and compromise to the council to accept any offer of settle- i
claims." ment for a claim against the city, thereby
~ Its binding the city to the terms of the agree- ~ !
such h'~'
C. Ordinance No. 93-78 Is Inconsistent ment.
1§n811 with the Provisions, 06ject, and Pur- pursuant to this logic, the council could i
unless poses of the Charter to the Extent potentially affect and/or control any aspect of
an That It Vests Power in the Council to city government that happens to be the sub- li~
Y Settle Claims Means Other Than
_ by ject of a "claim" against the city-a situation !
'mpr° With City Funds Or Through an Ex-
legal clearly in conflict with the system of sepaza-
Taws, ercise of AutJwrity Vested Exclusively lion of powers mandated by the charter. As
in the Council 6y the Charter an example, in Sussel v. Civil Service Com-
omise ,
Supp. [8] Although Ordinance No. 93-78 is con- mission, 74 Haw. 599, 851 P.2d 311, recon- i
zr the sistent with the provisions, object, and pur- sideration denied 74 Haw. 650, 857 P.2d 600 ~ f
n the - poses of the charter to the extent that it (1993), Sussel was appointed to the position
enom- y vests power in the council to settle claims of administrator of the O'ahu Civil Defense
.Ig an with city funds, the scope of settlement au- Agency (OCDA) by then-mayor Eileen 'll
/ropo_ thority vested in the council by Ordinance Anderson. After Anderson was defeated in li
No. 93-78 is ostensibly not limited to the 1985 by Frank Fasi, Mayor Fasi announced
power to settle claims with city funds. Ordi- that George Kekuna would be taking over
wk¢ns Hance No. 93-78 provides in pertinent part the administration of the OCDA and execut-
at the that, "[e]xcept as otherwise provided in ed what Fasi termed a "downward realloca-
ard of [ROH] Section 2-3.1(d), no claim shall be lion' of Sussel's position Sussel sued the
court - adjusted, settled or compromised without the mayor, among others, for what he claimed ' ,
prior approval of the council;' and that "(t]he was his illegal demotion and brought claims j
~ment decision of the council to accept a settlement in both state and federal courts. Had Ordi-
~vkins offer shall be binding on the city and on legal Hance No. 93-78 been in effect at the time,
h the counsel." The scope of the term "claim;' as Sussel could have offered to settle the cases
438 80 HAWAI'i REPORTS
for reinstatement, the corporation counsel 2016, S5 L.Ed2d 298 (1985); Nakamoto v. It is as
would have been required to transmit the Fasi, 64 Haw. 17, 635 P.2d 996 (1981) (action the scope
pal gover.
offer, and the council could have accepted it, seeking permanent igjunction prohibiting en- the city is
thereby binding the city and its officials to forcement of City policy requiring rock con- that bran
the terms of the agreement, requiring the cert promoters at city-run facility [o conduct considera~
mayor to reinstate Sussel and effectively con- inspections of patrons for bottles and cans fered by t
trolling the mayor's decision to appoint his prior to entry of arena); /uli a Fasi, 62 the consie
staff. Under the power granted to the coon- Haw. 180, 613 P2d 653 (1980) (award of commitme
cil by Ordinance No. 93-78, the council could contract for provision of city bus ser~dces);
similarly affect and/or control myriad other municipal
Ltife of the Land, Inc. v. City Council of the council by
aspects and functions of city government, City ¢nd County of Honolulay 61 Haw. 390, led ~e
seemingly limited only by the topic of the 606 P.2d 866 (1980) (spot zoning); McMahon sderation.
dispute. See, e.g., Price v. Zoning Bd of v. Office of City and County of Honolulzti anon for
d Appeals of Honolulu, 77 Hawaii 168, S83
i ~ P.2d 629 (1994) (assessment of fines for viola- Prosecuting Attorney, 51 Haw. b89, 465 P.2d municipal
lion of zoning ordinance); Bishop Square 549 (1970) (presence of court reporter at executive,
j ~ Assoa v. City and County of Honolulu, 76 Wand jury session; propriety of presentation grant, or
Hawaii 232, 873 P.2d 770 (1994) (property at grand jury hearing of evidence previously ation. Ho
tax assessment); Richardson v. City and ruled inadmissible; petition for writ of prohi- settlement
County of Honolulu, 76 Hawal`i 46, 868 P.2d bition); Salvador v. Doi, 50 Haw. 249, 438 exercise of
1193 (1999) (eminent domain); Hawai'i's P2d 392 (1968) (sufficiency of indictment; sively by t
Thousand Friends v. City and County of Petition for writ of prohibition). exercise of
Honolulu, 75 Haw. 237, 858 P.2d 726 (1993) sively by t
(special management area use permit); Kore- Thus, in sum, Ordinance No. 93-78 is Con-
an exercise
sistent with the provisions, object, and par- the charter
an Buddhist Dae Won Sa Temple v. Zoning poses of the charter insofar as it reifies the
Bd of Appeals of the City and County of five, the co
Honolulu, 9 Haw.App. 298, 837 P.2d 311 prmciple that the fiscal powers of the manic- cur in ordc
(alleged zoning regulation violations), recon- ~Pality aze ultimately lodged in the city settlement.
sideration denied 9 Haw.App. 659, 833 P.2d council as the legislative branch of city gov-
98, cert. granted 73 Haw. 626, 834 P.2d 1315, ernment. To the extent that a decision to
cert dismissed 74 Haw. 651, 843 P.2d 144 compromise or settle a claim on behalf of
the city is essentially fiscal, in that the deci-
(1992); Brewer Envtl Indus, Inc. v. A.A.T. Therefor
Chem., Inc., 73 Haw. 394, 5.32 P.2d 276 (1992) lion solely concerns the commitment of city court's away
P~ (City contract bidding process); Doe v. City funds and a weighing of the economic cost of the coon
h,. and County of Honolulu, 8 Haw.App. 571, considerations of settlement versus litiga- the council 1
816 P.Zd 306 (1991) (Honolulu Fire Depart- lion, exclusive settlement authority is appro- exchange fr
~r~ ment employee drug screening program); Priately placed in the council. The fiscal the commit
McCloskey v. Honolulu Police Dept, 71 Powers of the council do not, however, enti- exercise of ~
Haw. 568, 799 P2d 953 (1990) (Honolulu tle the council effectively to control functions sively in the
P p y g g and as cts of munici al overnment outside
PoGce De artment em to ee dru screenin Pe P g verse the cu
program); Okuda v. Ching, 71 Haw. 190, 785 the authority prescribed it by the charter. that it is i~
7y P.Zd 943 (1990) (power of city prosecutor to In other words, the council may not exceed object, and
employ private counsel to prosecute particu- its legislative function and impinge upon the circuit court
~l tar cases); Gibb v. Spiker, 65 Haw. 432, 718 powers vested in the executive branch under
respects.
P.2d 1076 (1986) (re-employment of police the guise of settlement authority. There-
~ officer suspected of criminal conduct); Mink fore, notwithstanding the settlement of
ji v. Pua, 68 Haw. 263, 711 P.2d 723 (1985) claims solely involving the commitment of
(eligibility of recalled city councilmembera to city funds, the council's settlement authority
run as candidates to fill the vacancy created vested in the council by Ordinance No. 93-
I for their unexpired term by their recall); 78 is also limited to cases where settlement
i
~ Reppun v. Board of Water Supply, 65 Haw. or compromise is offered in consideration for
531, 656 P.2d 57 (1982) (riparian water an exercise of municipal authority exclusive-
lil rights), cert. denied 471 U.S. 1019, lOb S.Ct. ly vested in the council by the charter.
STATE v. HENDERSON 439
Citeu 80 Hawal'1 439 (1996)
cmoto v It is axiomatic that, as a general principle, 911 P.2d 7a
(action the scope of authority of a branch of munici- STATE of Hawai i, Plaintiff-Appellee, ~ '
sting en pal government to settle a claim on behalf of
the city is limited by the authority vested m v'
ock con-
rnnduct that branch to pledge, grant, or commit the Ronnie HENDERSON, Defendant-
md cans consideraton sought by the claimant or of- Appellant.
Fas; 62 " fered by the city in settlement. Thus, where No. 17151.
ward of 'the consideration for settlement involves the ~I
commitment of city funds or an exercise of Supreme Court of Hawaii.
ervices);
it of the municSpal authority exclusively vested in the Feb. 7, 1996.
aw. 390, council by the charter, the council may alone I,
pledge, grant, or commit the settlement con-
'cMakon - sideration. Similarly, where the consider- Defendant was convicted in the Second
0°'Ol~v+ , anon for settlement involves an exercise of Circuit Court, of terroristic threatening and I!
l65 P2d ;municipal authority exclusively vested in the defendant appealed. The Supreme Court, ,:iii
order at executive, the executive may alone pledge, Nakayama, J., held that defendant waived his
entation grand, or commit the settlement consider- right to be silent by initiating dialogue with
'eviouslY ~ anon. However, where the consideration for otfiCer.
~f prohi- settlement of a claim requires (1) both an '!,j'
A9, 938 Affirmed.
exercise of municipal authority vested exclu- j
ietment; lively by the charter in the councIl and an
exercise of municipal authority vested exclu- 1. Criminal Law x412.2(5) 'i
lively by the charter in the executive, or (2) Defendant waived his right to be sient
nd par- an exercise of municipal authority vested by when defendant initiated dialogue with offs- ; j
fies the the charter in both the council and the execu- cer after he was properly advised of his
five, the council and the executive must con- Miranda rights and specifically told that
manic- cur in order to accept or make an offer of anything he said would be on record despite
he city "settlement.
sty gov- defendant's refusal to sign waiver of his right '
ision to to remain silent. U.S.C.A. Const.Amend. 5.
half of IV. CONCLUSION 2, Criminal Law e=412.2(3), 414 ,I '
he does- Therefore, to the extent that the circuit Witnesses x331.5
of Esty court's awazd of summary judgment in favor In determining admissibility of custodial ~
tic cost of the council grants exclusive authority in statements, prosecutor must show that ac- ~
h4ga- ~ ~ the council to settle or compromise a claim in cased was warned that he had right to re-
appro- exchange for consideration other than: (1) main silent, that anything he said could be
e the commitment of city funds; or (2) an used against him, that he had right to pres-
'r. entl- exercise of municipal authority vested exclu- once of counsel, and that if he could not
motions ~ lively in the council by the charter, we re- afford attorney, one would be appointed for
outside verse the circuit court's order on the ground him; if these safeguards are not satisfied,
starter. that it is inconsistent with the provisions, then statements made by accused may not be ~
exceed object, and purposes of the charter. The used either as direct evidence or to impeach
wn the circuit court's order is affuined in all other defendant's credibility.
I under ~ respects.
There- 3. Criminal Law <a412.2(3)
ent of Once defendant has been warned of his
Tent of Mimnda. protections, defendant is free to
~thority E exercise his own volition in deciding whether it
O KEYXUMBaB15iEM or not to make statement to authorities.
10. 93- i
lement 4. Criminal Law 412.2(5)
ion for i
ausive- Explicit statement of waiver is not invaz-
iably necessary to support finding that defen-