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HomeMy WebLinkAboutCOM 0032.000 2002-2004Harry Kim Mayor COUNTY OF HAWAII 25 Aupuni Street, Room 215 • Hilo, Hawaii 96720-4252 • (808) 961-8211 • Fax (808) 961-6553 KONA: 75-5706 Kuakini Highway, Suite 103 • Kailua-Kona, Hawai'i 96740 (808) 329-5226 • Fax (808) 326-5663 December 5, 2002 The Honorable Chairman James Y. Arakaki and Members of the County Council County of Hawaii Hilo, HI 96720 Dear Chairman Arakaki and Council Members: .-...-mss Dixie Kaetsu Managing Director Peter T. Young Deputy Managing Director During the November 19, 2002 Committee on Finance meeting, Councilman Tyler requested that I provide the Council with a previous Corporation Counsel's opinion regarding reappointment of persons to boards and commissions; specifically, the reappointment of persons who have filled unexpired terms. Attached are the opinions from the Office of the Corporation Council. If you have any questions, please feel free to contact me. Sincerely, Wendell Hatada Executive Assistant Attachment cc: Dixie Kaetsu, Managing Director Comm. No," File No. Ref, To: Ref. Date--MAL-Z002 DEC -04-2002 WED 04:09 PM COP"'RATION COUNSEL Stephcn K. Yamashiro Mayor .tura FAX N0. 96"12 P. 07 daunfV of afvatt OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suit. 325 • Hilo, Hawaii 967204262 • (808) 961$251 • Fix (808) 969.7049 8 April 1996 TO: R. B. LEGASPI Executive Assistantto t Mayor FROM: RICHARD D. WURDEMAN Corporation Counse SUBJECT: BOARDS AND COMMISSIONS (Eligibility) Richard Wwdeman Corporation Counsel In your inquiry of March 20, 1996, you asked about the applicability of the eligibility requirements found in Section 13-Y of the Charter to members of the Tax Board of Review. The Tax Board of Review, originally created by State Law, is now established under the authority of an ordinance, HCC §19-96. The Charter, 13-41 in providing various qualifications for membership, specifically limits itself to "...boards and commissions specifically established by this Charter..." As a general rule, regulations declaring qualifications for office are liberally construed, while those establishing disqualifications are to be strictly construed. McQuillin, Municipal Cornporations, §12-58. Accordingly, we are of the opinion that the limitations that you cite, particularly the one barring reappointment, do not apply to members of the Tax Board of Review. RDW:1454L DEC -04-2002 WED 04;09 PM COP"RATION COUNSEL JAMES Y. ARAKAKI Councilman i.:.Cl✓I f lr� . '93 JAN 20 RM 9 14 CUt�t:iY OF HAWAII January 19, 1993 FAX NO. 96'""?2 COUNTY COUNCIL County of Hawaii Hawaii County Building 25 Aupuni Street Hilo, Hawaii 96720 To: Steven K. Christensen, Aoting Corporation Counsel office of the Corporation Counsel From: p1A tJames Y. Arakaki, Councilmember "�'ODUHawaii County Council Subject: Reappointment to a Board or Commission A former member who served on a Board or Commission, inquired about their reappointment to this same Board or Commission they had served on. The original Board or Commission member had resigned thus this individual served out the remaining term. For information only, I would like to know what are the laws regarding a member who served on a remaining term on a Board or Commission who wishes to be reappointed to succeed himself on a full term? The individual was informed that if they served on a remaining term, they could not serve on any upcoming full term. please quote me the chapter in the Charter, Code, or RRS that applies to the above. 'Thank you for your help in this matter. JYA/gy P. 06 DEC -04-2002 WED 04;08 PM COP"nRATION COUNSEL Office of the FAX NO. 96' - � .2 Counsel P. 02 Sim K. YAMASUM Mayor County of Hawaii 'I Hilo T,agoon Centre • 101 Aupuni Street, Suite 325 • Hi1o, Hawaii %710 (90$) 961-&251 • Fax ON) %9-7049 January 22, 1993 Honorable James Arakaki Council Councilman, Hawaii County 25 Aupuni street Hilo, Hawaii 96720 Dear Councilman Arakaki: PaTem•_ • _ • •UAi • rC�--rte` • • • it " 1 - DIV CH1EF,_,.,,. ACC cc You have asked whether a County board or commission member, who waswhdphadtresignedmpcanebeher eappointeda toaadfullcterrnssion member §§4-4 and 13-4(c) of the County Charter appear to be the sole governing provisions. §4-4 entitled Advisory Commissions provides in its entirety as follows: Section 4-4. Advisory Commissions. The mayor may appoint advisory Commissions. Members of such advisory commissions shall serve for a period of time not to exceed, or exist beyond, the term of office of the mayor, except as otherwise provided by this charter. The members of advisory commissions shall not receive compensation; however their authorized expenses shall be paid from funds of the agency affected by the commission. Advisory commissions shall have no employees, but the mayor shall cause the employees of the agency Concerned to furnish such services as may be needed by the commissions. It is clear to us that members of all advisory commissions may be reappointed without restriction concurrent with the mayor's term (or terms) of office. DEC -04-2002 WED 04;08 PM CORPORATION COUNSEL FAX NO. 96VIL P. 03 Honorable James Arakaki Page 2 January 22, 1993 However, as to other than advisory boards and commissions, §13-4, entitled boards and commissions, recites in material part: Except as otherwise provided in this charter, all boards and commissions specifically established by this charter shall be governed by the following provisions: (e) No member shall be eligible for a second pointment to apthe same board or commission prior to that the expiration of two years, provided ontedmforeasterm Of any board or commission initially app of one year and two years shall be eligible to succeed themselves for an additional term. we interpret this to mean that no board of commission member may be reappointed to the same board or commission unless there is a hiatus of two years which elapes between expiration of the term of that office and a new appointment. So far, so good. Now, however, we come to a proviso which lends itself to interpretive skills. The second clause of §13-4(c) recites an ointment exception to the disqualification for immediate Qboard oracommission. It is there "provided that members of any ar and two years shall initially appointed for a term of one ye be eligible to succeed themselves for an additional term." Clearly, this applies to board and commission members who were appointed to those positions expressly having one or two year terms. Your question is directed to the situation where, for example, a member of a board appointed to a four year term resigns after serving three years, thus leaving one year of his term remaining. Under §13-4(c), a vacancy is filled for the unexpired term. The question arises whether appointees to unepired thexremainder mof the term cthey eare cserving yisetwo yereappointed • years or less th We are inclined to believe that a person appointed to unexpired terms, where the original appointee's term was for more than two years, would be viewed as "standing in the shoes" of his predecessor and thus be likewise barred from reappointment under §13-4(c). That is to say, in our opinion, DEC -04-2002 WED 04:08 PM COP""PATION COUNSEL FAX NO. 961-02 P. 04 Honorable James Arakaki page 3 January 22, 1993 he is not viewed tw hyears"ing been out,"xathexlltoatheinted for a term remaindex o of one year [or) f a term of e.g., four years. Supporting our opinion as to the matter, courts have held that the ncV.0phrase Sta e gX Prete Hoyt �.inot otcalfno8 nous Ohiowith St. 244, 88 "vacancy " a& ILL, A y, pixon, 4 so . 2d N.E. 738, 743 (Ohio), -B 591, 596 (La.). Moreover, it has also been recited that an"unexpired term" refers to the time which the resigning officerwould continued in the office if a vacancy had not occurred. geopl V 93bArne, 7 Colo. 605, 4 P. 1074, 1077. Indeed, in Wilson Yom.�,N, 194 Iowa 28, 188 N.W. 9400 942, the court there stated that where a term of an office is fixed, "the term lives on even though the incumbent is impeached or dies." The anthropomorphic metaphor may be inexact, but the point is clear. The Oklahoma Supreme Court defined the phrases "term of office" as the "fixed period for which an office may be held," regardless of death, resignation or impeachment. On the other hand, the phrase "unexpired term" was held to refer to the portion of the term of office to which a person is appointed which remains as of the bate of the appointment. StAtA 2z rel CIUIDR v. Board Q, F&,_ 2f independent fiChOQ1 i 1'I4..._ 1 Q1 Tul= Counter 9XIAM=• 339 P.2d 534, 537 (Okla. 1959) . Similarly, in x _v_, Will=, 151 A.2d 369, 373 (R.I. 1959), the court opined that "the term of the office goes on without interruption" and the phrase "'unexpired term' must refer to an officer and not to the office..." These percepts as applied to the facts you present mean to us that the term to which the now -resigned appointee and his successor; as to the unexpired portion thereof, were appointed, if it involves an appointment to a term exceeding two years, i.e. virtually certainly a four year term, mean that both are disqualified for appointment to a new term. There are no Hawaii Appellate Court opinions addressing your question, nor any opinions by the attorney general. What we are engaged in, therefore, is educated guessing as to what Hawaii's Courts would do if faced with the issue. DEC -04-2002 WED 04:09 PM COP7"QATION COUNSEL FAX NO. 96"002 Honorable James Arakaki Page 4 January 22, 1993 Westlaw databases consulted for guidance included *all states." "all states -old" and "AG" (attorney general) (ll 50 states' attorneys general opinions) which proved without success other than as recited above. In summary. respecting Section 13--4 boards and commissions, i the instance yowould6most probably hold that we think a Hawaii Cthetboardronted member with the question can be reappointed provided the original term of the member who resigned and whom he succeeded, was for two years or one year. If the term of the resigned member was more than two years, regardless of the duration of the unexpired portion of the term, we think Hawaii's courts would hold that he is precluded from reappointment to the same board or commission absent the two year hiatus. The reasoning of the Iowa, Oklahoma and Rhode Island courts seems persuasive and likely to be followed by a Hawaii court, Finally, to reiterate what we said at the outset, we have no doubt that members of Section 4-4 advisory boards can be reappointed without restraint. If there are additional concerns or questions, please telephone or write at any time. Sincerely, Hy STEVEN CHRISTENSEN Acting Corporation Counsel SC:ch 9406I P. 05 a .