HomeMy WebLinkAboutCOM 0647.010 2002-2004 pNtV 0/ N+w
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Harry Kim i~, Lincoln S.T. Ashida
Mayor Cnrpnrolinn Caunrel
• Gerald Talcase
kk11'~ +r~ 6F•~~:~ Assistant Capiaratinn Counsel
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OFFICE OF THE CORPORATION COUNSEL
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101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-4262 • (808)961-8251 • FAX (808) 961-8622 t^ ~
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July 22, 2004 -
TO: Constance R. Kiriu
Legislative Auditor r_1
FR: Bobby Jean Leithead-Todd /~,7
Deputy corporation Counsel
RE: WRK 04-8041, Bill No. 280 Relating To Business Improvement Districts
Questions Presented:
1. May the County adopt a business improvement district ordinance that enables
aboard or association created pursuant to Chapter 46-80.5, HRS, to procure
goods and services without complying with the State Procurement Code or
applicable civil service laws?
2. If yes, does the language in Bill No. 280, Section -18 authorize the
board or association to independently procure goods and services without
complying with the State Procurement Code or applicable civil service laws or
would you suggest clarifying language?
3. From an ethical or procurement standpoint, is there a law or rule that prohibits
the council member of the district within which the majority of land in the
business improvement district is located to be a voting member of the district
board or association?
Comm. No, 7• ~
Ref. To: Ereyse~_.~~L
Ref. Utate-_ NUI. ~ ~ [U~
Constance R. Kiriu
July 22, 2004
Page 2
Answer to Question 1.
The County has the authority under HRS Section 46-80.5 to enact an ordinance
authorizing the creation of special improvement districts. Such districts are for
the purpose of providing and financing supplemental maintenance and security
services and such other improvements, services, and facilities as the council
determines will restore or promote business activity in the special improvement
district.
Under HRS Section 46-80.5(g) any board or association established for the
purpose of carrying out activities within the special improvement district is not
deemed a governmental body, department, agency, or county. Neither is it
deemed to be performing services on behalf of a government department,
agency or county. As it is not a government entity it is not subject to either the
procurement code or civil service laws. HRS Section 103D, the Hawaii Public
Procurement Code, only applies to "governmental bodies." Similarly, civil service
laws only apply to public employees as the purpose of civil service laws is to
foster career service in government. HRS Section 76-1.
Answer To Question No. 2.
The language in Bill 280, Section -18 is sufficient to authorize the board or
association to independently procure goods and services without being subject to
either the State Procurement Code or civil service laws. However, it could be
made stronger by inserting language that reads "Any board or association
established for the purposes of carrying out the management and activities of the
special improvement district shall neither be deemed to be a government
department, agency, or a county, nor to be performing services on behalf of a
government department, agency or county." This is similar to the language of
HRS Section 46-80.5(g).
Additionally, two other changes should be made to this section. The reference in
Section _-18 (b)(1), Section -24(c), and Section -44, to the
department of facilities maintenance should be changed to the Public Works
Department. The reference in item _-18(b)(2) to the department of budget and
fiscal services should be changed to the Department of Finance.
Constance R. Kiriu
July 22, 2004
Page 3
Answer to Question No. 3.
There is nothing in the procurement code or ethics laws and rules that prohibits a
council member from serving on the board or association of the special
improvement district.
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s:deptActy council\04-8041 Bill 280 Sp Imp Dist Itr to Kiriu 7-04 BLTpc.doc
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