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HomeMy WebLinkAboutCOM 0749.058 1998-2000 4 ~'Jr V 1 ± BENJAMIN J. CAYETANO 1 EARL I. ANZAI GOVERNOR OF HAWAII _ pTiORNEY GENERAL 9. po E I. OrN.o,,,-.mw•.• ~I I~~ 'TiHIDM1~.3 LLER Ilk OEPII~' ATfOPr GENERAL STATE OF HAWAII r DEPARTMENT OF THE ATTORNEY GENERAL 425 QUEEN STREET HONOLULU, HAWAII 98813 (808) 588-1500 ADMINISTRATION DIVISION (808) 586-0618 July 17, 2000 James Y. Arakaki, Chair Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 Dear Chair Arakaki: We appreciate the time you and other officials from the County of Hawaii took to meet with Governor Benjamin Cayetano and my first deputy Rick Keller during my absence regarding the marijuana eradication program in your County. I was informed that it was a productive meeting and the Governor understood your concerns. The meeting was prompted by a request on behalf of six members of the Hawaii County Council for an Attorney General legal opinion. You asked whether the various Council actions taken over the past four years to accept and approve federal grants to eradicate marijuana comply with the requirements of Section 3-16 of the Hawaii County Charter. This Charter section terminates any program supported by County funds unless the Council critically reviews the program at least once every four years and authorizes the continuation of the program. You also asked for an opinion on a related issue: whether council members who hire private attorneys to defend themselves against impeachment petitions brought by citizens who allege, in part, violation of Section 3-16 with respect to the marijuana eradication program, could be reimbursed by the Council for their legal expenses. Q Comm. No. 7~'9• DurB File No. Ref. To: P cayn l Ref. Date JW$ 2 A 2M Mr. James Y. Arakaki July 17, 2000 Page 2 You further informed us that (1) you must personally advance all costs for any defense of an impeachment petition because the corporation counsel is barred by a provision in your County Charter from representing an official in an impeachment proceeding; (2) you have no assurances that you will be reimbursed by the County for these expenses if you successfully defend the impeachment petition; and (3) there may be ethical conflicts in seeking any reimbursement for your personal expense because the six council members who would potentially seek reimbursement themselves constitute part of the full Council that must formally approve any reimbursement request. Thus, you wanted the State Attorney General to give you a written opinion concluding, first, that the Council has fully complied with Section 3-16 of the County Charter and, second, the council members are entitled to reimbursement from the Council for all out of pocket legal expense they advance in defense of an impeachment petition, notwithstanding a Charter provision which bars use of County attorneys to defend an impeachment. As a fellow public official, I can empathize with your frustration in having to defend yourself from what you believe to be frivolous and harassing lawsuits, especially where you must advance the costs of the defense and where reimbursement is uncertain. For the reasons we discussed at the meeting, however, our Department cannot give you the legal advice and opinions you request. Whether your actions as council members over the past four years with respect to the marijuana eradication program meet the requirements of the County Charter involves solely county issues. These issues include: what does Section 3-16 of the County Charter require the Council to do; what, in fact, has the Council done over the last four years; do these specific actions meet the requirements, intent and purpose of Section 3-16. Our Department is an agency of the State of Hawaii, and we do not have any special expertise or knowledge on these issues that originate solely from provisions of the County Charter and involve solely Council actions. For similar reasons, we decline to give you an opinion that under the specific circumstances of the impeachment petition at issue, you and other members of the Council are entitled to reimbursement for your legal fees, notwithstanding the County Charter provision barring the corporation counsel from defending officials in impeachment proceedings. Again, the dilemma you face is created by a provision in the County Charter barring use Mr. James Y. Arakaki July 17, 2000 Page 3 of the corporation counsel to defend impeached officials. This dilemma is exacerbated by the relatively low threshold established by your County Charter to initiate impeachment. Our Department has no special expertise in this area, and I believe your Corporation Counsel has already advised you on this issue. At the meeting with the Governor, you also raised the possibility of our Department supporting your request for reimbursement from the State legislature for your out-of-pocket legal expense incurred in the impeachment defense. As was indicated at the meeting, while a one-time legislative reimbursement will solve the problem this year, the Legislature may ask how the County plans to solve this problem in the long term. As we see it, so long as your Charter requires the 4 year program review, and so long as your Charter prohibits your corporation counsel from defending county officials based on asserted violations of the 4 year review requirement, and so long as your Charter provision makes it relatively easy to initiate an impeachment, County officials will always be at risk to advance from their own pockets for impeachment defense costs. I also was informed that your Charter Revision committee is reluctant to propose any changes to these various Charter provisions creating the dilemma you face. Finally, you asked again whether the State could somehow restructure the federal grant process so that the State, not the County, remains responsible for implementing the marijuana eradication program, and thus the State, not the County, would have to defend any challenge to the program. I have checked again with the program officers and confirm our earlier advice that we are not able to restructure the grant responsibilities. Very truly yours, Earl I. Anzai Attorney Gene