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25 .Atapusi Sn F~:-
Milo, Haes~ai'i ~672~
October 24, 2001
TO: Council Members
FROM: James Y. Arakaki, Chair:'
RE: Bill for an Ordinance re ating to the Refunding Ordinance
Eliminating Requirement Of One Reading for A Refunding Ordinance
This is to transmit a bill for an ordinance proposing to amend Chapter 12, Article 5,
Section 12-61(b), Hawaii County Code, by eliminating the requirement of only one
reading to adopt a refunding ordinance. Because the Hawaii County Charter says that
ordinances shall be passed only after two readings, this bill proposes to make the County
Code consistent with the County Charter. A supporting opinion from the Corporation
Counsel is attached.
Should you have any questions, please feel free to contact Legislative Auditor Connie
Kiriu at 961-8388.
Att. (Bill/Opinion)
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E`~~r_n. No_
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aNtr Jcs ~'!`r.
\al~t4;.
~3arry Kim Lincoln S.T. Ashida
Mu_vnr • Corporation Coun.eel
o' : Gerald Takase
qrE OF'N~''~ A c.ri.ctant Corporation Cnun.cel
~~.ttt~C'~~ Ar~ .~I~1Y~tt
OFFICE OF TIIE COItFOIZATION COUNSEL
101 Aupuni Street. Suite 325 • Hilo, Hawaii 96720-4262 • (808) 96(-8251 • FAX (808) 961-8622
C®NFI®B9~TIA?L: ATfi®FdNBY-CI_IEd~ll° PFtIVII_BGB AND W®RK PIS®®IJCT
IV®T TO 13~ F2~L~~1SE® T® TI~~ PUBLIC
October 12, 2001
Constance R. Kiriu
Legislative Auditor
County of Hawaii
25 Aupuni Street
Hilo, HI 96720
Re: Refunding Bill
Dear Ms. Kiriu:
This letter is written in response to your request for an opinion.
Issue: Does an improvement district refunding bill require one or two readings?
Background
Chapter 12, Article 5, of the Hawaii County Code, provides that the Council may
provide for the refunding of the outstanding indebtedness of improvement
districts within the County. I understand that the Council has passed a resolution
initiating the refunding process for Kaloko Improvement District No. 17. Section
12-61, Hawaii County Code, provides that after a public hearing, the Council will
then determine whether to proceed with the refunding measure.
Section 12-61(b), Hawaii County Code, provides that:
"If after such initial and further advertisement and hearing the council
determines to proceed with the refunding measure, it shall, by ®rdinance
requiring n®t m®re than ®ne reading f®r its ad®pti®n, pr®muBgate the
refunding measure."
Constance R. Kiriu
Legislative Auditor
October 12, 2001
Page Two
Section 3-8, Hawaii County Charter, provides that every legislative act of the
council shall be by ordinance. Section 3-10(a), Hawaii County Charter, provides
that:
"Ordinances shall be initiated as bills which shall be passed only after
tw® readings ®n separate days."
There appears to a conflict on the number of readings required for a refunding
bill.
General rule
Article VIII, Section 2, of the Hawaii Constitution provides that:
"Charter provisions with respect to a political subdivision's executive,
legislative and administrative structure and organization shall be s
to statutory provisions, subject to the authority of the legislature to enact
general laws allocating and reallocating powers and functions."
The Court in Fasi v. City Council of the City & County of I-donolulu, 72 Haw. 513
(1992), held that an ordinance must conform to, be subordinate to, not conflict
with and not exceed the charter. In Fasi, the charter provided that board and
commission members held office until their successors were appointed. The
Court overturned an ordinance which prohibited members from holding over.
Exceptions
The Court in Hawai `i Government E`mployees' Association v. County of Maui, 59
Haw. 65 (1978), recognized the superiority of the charter provisions over
conflicting statutory provisions, but also recognized that the charter was subject
to the authority of the legislature to enact laws of statewide concern, e.g. civil
S2rVICe IaW$.
The legislature has also reserved the power under Section 50-15, Hawaii
Revised Statutes, to enact all laws of general application throughout the state on
matters of statewide concern and interest and laws relating to the fiscal powers
of the counties.
Constance R. Kiriu
Legislative ,4uditor
October 12, 2001
Page Three
In the present case, there does not appear to be any exception allowing the
ordinance to override the charter. The charter provision deals with the legislative
structure of the County. Section 3-11, Hawaii County Code, dealing with
emergency ordinances, does not apply. Sections 46-80, 46-80.1, and 46-80.5,
Hawaii Revised Statutes, authorize the counties to enact ordinances to provide
for improvement districts, but do not authorize or discuss the adoption of
ordinances by one reading.
We conclude that a bill relating to improvement district refunding must pass two
readings.
Please call me if you have any questions. Thank you.
Sincerely,
`Lester Ishado
Deputy Corporation Counsel