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HomeMy WebLinkAboutCOM 0461.003 2004-2006 "`•v Lincoln S.T. Ashida Harry Kim Corporation Counsel Mayor ,j Gerald Takase :;~r,.• Assistant Corporation Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720-0262 (808) 961-8251 Fax 1808) 961-8622 November 7, 2005 ~norable Stacy K. Higa Honorable Virginia Isbell Honorable Fred Holschuh Honorable James Arakaki Honorable Pete Hoffman Honorable Donald Ikeda Honorable K. Angel Pilago Honorable Gary Safarik Hawaii County Council 25 Aupuni St. Hilo, HI 96720 Dear Council Members: RE: Board of Ethics Petition filed by Roger Christie Our office received the enclosed Board of Ethics petition filed by Roger Christie against each of you. In the very near future, you will each receive a letter from the Board of Ethics, asking whether you wish to submit a written response to the charge(s). Based upon a determination by our office that the subject actions taken by you at the meeting of the Hawaii County Council on October 18, 2005, were within the course and scope of your responsibilities, and that you were following the guidance and advice of counsel, our office is willing to provide legal representation for you in the defense of this Board of Ethics petition. If you wish to utilize the services of our office, please contact me immediately, and we will arrange to have an attorney from our Litigation Division assigned to assist you. Of course, you are free to either represent yourself, or seek private counsel at your own expense, if you so choose. This decision is completely up to you. In order to avoid any actual or potential conflict of interest, and in order to eliminate any appearance of impropriety, our office will arrange to have an Comm No. ~/•3 Hawaii County is an Equal Opportunity Employer and Provider Ref. To: Raf. CPat~ Honorable Stacy K. Higa Honorable Virginia Isbell Honorable Fred Holschuh Honorable James Arakaki Honorable Pete Hoffman Honorable Donald Ikeda Honorable K. Angel Pilago Honorable Gary Safarik Hawaii County Council November 7, 2005 Page 2 attorney from a neighbor island Corporation Counsel or County Attorney office specially assigned to represent the Hawaii County Board of Ethics in this matter. Given the deadline established by rule for responding to the Board of Ethics, I humbly seek your prompt response to this letter. Very truly yours, LINCOLN S. T. ASHIDA Corporation Counsel Encl. c: Gerald A. Takase, Assistant Corporation Counsel (w/ encl.) Joseph K. Kamelameha, Deputy Corporation Counsel (w/ encl.) Katherine A. Garson, Deputy Corporation Counsel (w/ encl.) S: Boards/BOE/Christie re legal fees/Letter to Council members 11-7-05ILSAnv r._ J PETITION NO. 7 O ~ = ~ ,3 Board of Ethics 101 Aupuni Street, Ste. 325, Hilo, Hawaii 96720 /P~E~TI~TQIO,N NAME OF PETITIONER:4~~~C/~~ `~Yi IC..b ST~~ Date: ~M' Residence Ph: g~ ADDRESS: ~ LU~f Business Ph: -NIL15 7Z1 STAEnTSEMENT OF THE NATURE OF PETITIONER'S ,IN{TEREST, INC ING ASONS F9 THh?~JY~I a w~ ifs A21 PfYI~ It1J,~P6~ ~ O~ dSG ~ e~ natt~IPm in an ~vi~ r~~~, i~~~• t~, .QD.~ SPECIFIC PROVISION ON CODE OF ETHICS IN QUESTIO _ 8Y1 2- 8.3 ,b2 ~ 2- S~ I . ~ ~'~~~IYID~A~VY~ C~'~f IY~~il~d. COMPLETE STATEMENT OF FACTS: MIC~~~'1 C.DYhM_ ~ ~ ~p~ ~1~ f~n~ntt~m®i~, mIDyYL~P~-~~,...~l~,~t~~J", ~t~,kA~ka,+l a,~d -N9~?~ v~ ~01+~,~z.+ ~ rr~srt~ STATEMENT O HE POSITION OR CONTENT N OF T PETITIO R: >m~~ an ~~a~ ~ tx~i~-rP~fia ~S .~J_ Signature ANY PETITION WHICH DOES NOT SUBSTANTIALLY COMPLY WITH THE FOREGOING REQUIREMENTS MAY BE REJECTED. IN ADDITION, THE BOARD MAY, FOR GOOD CAUSE, REJECT ANY PETITION. IF THE PETITIONER IS THE PERSON WITH THE ETHICS PROBLEM, PLEASE COMPLETE THE FOLLOWING: , DO HEREBY REQUEST AN OPEN~CLOSED HEARING. Signature Hawaii County Council-23 Page 2 October 18, 2005 9:00 A.M.: STATEMENTS FROM THE PUBLIC ON PETITIONS, MEMORIALS, COMMUNICATIONS, CERTIFICATES OF MERIT AND EXPRESSIONS OF CONDOLENCE PETITIONS, MEMORIALS, COMMUNICATIONS, CERTIFICATES OF MERIT AND EXPRESSIONS OF CONDOLENCE Comm. 461: PETITION FOR I&fPEACHMENT (SEEKING THE A~IPEACHMENT OF THE MAYORAND EIGHT SITTING HAWA[`I COUNTY COUNCIL MEMBERSI From Corporation Counsel Lincoln S. T. Ashida, dated September 28', 2005, - - recomme~ing this matter be agendized for the purpose of establishing prior to the conclusion of the Circuit Court case, the "ground rules" and process for hearing, considering, and v_ot_ing apon the reimbursement of legal expenses at the end of the impeachment case. - - Waived: FC 9:00 A.M.: STATEMENTS FROM THE PUBLIC ON ORDER OF RESOLUTIONS ORDER OF RESOLUTIONS Res. 169-05 Authorizes the Acceptance of a Donation of a Two Man Lifeguazd Tower to the (Draft 2): Department of Parke and Recreation for Use at Onelcahakaha Beach Park {Donated by Aloha Machine and Weldiag Company, with an estimated total value of $30,000, to be used by the East Hawaii Water Safety Officers for lifeguard surveillance.} Re: Comm. 445.1 Intr. by: Ms. Isbell Approve: FC-t5T Res. 170-05: Authorizes the Council's Process for Procuring as Independent Auditor(s), Pursuant to Section 10-13, Hawaii County Charter, and Authorizes the Payment of Funds in Future Fiscal Years on a Multi-Year (4 years) Contract. {Recommends the Council proceed with the issuance of a Request For Proposals (RFP), evaluation, award, and execution of the contract in order to secure an audit finm to conduct a limited general audit for the next four fiscal years commencing June 30, 2006, through June 30, 2009. } Re: Cornm.451 Intr. by: Ms. Isbell Approve: FC-160 Section 2-83. Fair treatment. (a) Officers and employees of the County, while discharging their duties and dealing with the public, shall adhere to the following precepts: (1) All public property and equipment are to be treated as a public trust and are not to be used in a proprietary manner or for personal purposes without proper consent. (2) No person in a supervisory capacity shall engage in personal or business relationships with subordinates, which might intimidate said subordinates in the discharge of their officiat duties. (3) All persons shall be treated in a courteous, fair and impartial manner. (b) No officer or employee shall use or attempt to use the officer's or employee's official position to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment, for oneself or others; including but not limited to the following: (1) Seeking other employment or contract for services for oneself by the use or attempted use of the officer's or employee's office or position. (2) Accepting, receiving, or soliciting compensation or other consideration for the performance of the officer's or employee's official duties or responsibilities except as provided by law. (3) Using county time, equipment or other facilities for private business or campaign purposes. (4) Soliciting, selling, or otherwise engaging in a substantial financial transaction with a subordinate or a person or business whom the officer or employee inspects or supervises in the officer's or employee's official capacity. (5) Using county property or personnel for other than a public activity or purpose. (cj Nothing herein shall be construed to prohibit an officer from introducing bills and resolutions, serving on committees or from making statements or taking action in the exercise of the officer's legislative functions. Every officer shall file a full and complete public disclosure of the nature and extent of the interest or transaction which the officer believes may be affected by legislative action. (1975 C.C., c. 2, art. 8, sec. 5; Am. 2002, Ord. No. 02-109, secs. 3 and 4.) Section 2-84. Conflicts of interests. (a) No officer or employee shall take any official action directly affecting: (1) A business or other undertaking in which that officer or employee has a substantial financial interest; (2) A private undertaking in which the officer or employee is engaged as legal counsel, advisor, consultant, or representative, or other agency capacity; or (3) A business or undertaking in which the employee knows or has reason to know that a brother, a sister, a parent, an emancipated ~!.~,._.,~s Lincoln S.T. Ashida Harry Kim Corporation Counsel Mayor •,I Gerald Takase Assistant Corporation Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL t01 Auvuni Sveet, Suite 325 Hilo, Hawaii 9g72o-4282 (808)961-8251 pax (808) 867-8622 September 28, 2005 Corporation Counsel Published Opinion No. 2005-06 Honorable Harry Kim Mayor, County of Hawaii 25 Aupuni St. Hilo, HI 96720 Honorable Stacy K. Higa, Chairman, and Members of the Hawaii County Council County of Hawaii 25 Aupuni St. Hilo, HI 96720 Dear Mayor Kim, Chairman Higa, and Council Members: RE: Petition for Impeachment Our Entry No.: WRK 05-10404 We received a copy of the enclosed documents authored by Roger Christie, seeking the impeachment of the Mayor and eight sitting Hawaii County Council members. We understand from a communication received from County Clerk Constance Kiriu dated September 12, 2005 (enclosed, with Petition Audit Worksheets omitted), that her office has received a petition signed by over 1 DO qualified electors, as required by County law.' Article XII, Chapter 2, Section 12-2.2, of the Hawaii County Charter (2000) (hereinafter "Charter"), provides as follows: Impeachment of Elected Officers. Any elected officer or officer appointed to a vacancy in any elected office may be impeached for malfeasance, misfeasance, nonfeasance, or maladministration in office. The circuit court shall be a court of impeachment for the trial of any such Our office has opined that "qualified electors" are the equivalent of "registered voters' Thus, the Clerk has verified that at least 104 signatories of the Petition for Impeachment were registered voters of the County of Hawai i. See discussion of this definition, inlra. Hawaii County is an Equal Opportunity Employer and Provider Honorable Harry Kim Honorable Stacy K. Higa and Members of the Hawaii County CounciV September 2H, 2005 Page 2 officer who may be charged on any of the foregoing grounds. The charge shall be set forth in detail in writing in a verified petition for impeachment signed not less than one hundred (100) qualified electors of the county. The court shall sit without a jury and shall proceed according to the form required for the trial of all civil cases. If the court sustains the charge, the officer shall be deemed removed from office and the office declared vacant under this charter. Article XI, Chapter 2, Section 6-2.3, of the Charter provides in pertinent part as follows: The corporation counsel shall represent the county in all civil legal proceedings and shall perform all other services incident to the office as may be required by law. The corporation counsel shall, however, be prohibited from representing any elected officer in impeachment proceedings. (Emphasis supplied). Since the Corporation Counsel is prohibited by law from representing elected officials in impeachment proceedings, the purpose of this communication is simply to present (1) an analysis of the definition of "qualified elector," (2) an analysis of the question of whether special counsel may be hired to represent the Mayor and Council Members, pursuant to Article XI, Chapter 2, Section 6-2.5 of the Charter, and (3) a recommendation to the Hawaii County Council to establish a reimbursement hearing process prior to the conclusion of the Circuit Court case. Further, this letter will serve to provide you information as to what may be expected in upcoming legal proceedings relative to this case. A summary of our letter is as follows: 1. A "qualified elector" is the equivalent of a "registered voter." In other words, in order to be a "qualified electol' under our Charter, the individual must be registered to vote. 2. County government funds may not be used at the outset to pay for or subsidize the legal defense of the Mayor and Council Members. However, upon conclusion of the case, if there is a determination that the County officers acted in good faith and within the course and scope of their duty and were furthering a public purpose, and that public purpose was the corpus of the impeachment charge, reimbursement of legal expenses may be available, subject to the approval of the Hawaii County Council. Honorable Harry Kim Honorable Stacy K. Higa and Members of the Hawaii County Council September 28, 2005 Page 3 3. The Council is encouraged to establish a procedure for hearing and determining whether legal expenses may be reimbursed to the Mayor and the affected Council Members. This process should be established prior to the conclusion of the Circuit Court case. "Qua/iFed Electors" The aforecited Charter provision provides that 100 "qualified electors" must sign the petition for impeachment. What is a "qualified elector?" Is it synonymous with a "registered voter?" Our research concludes a "qualified elector" is the equivalent of a "registered voter," and that both terms are used interchangeably in our Charter. Our laws instruct us that in construing the meaning of words and phrases in our statutes, deference must be given to the intent of the legislative body that created the statute. Koolau Agr. Co., Ltd. v. Commission of Water Resource Management, 83 Hawaii 484, 927 P.2d 1367 (1996}. In our Charter, the term "qualified elector" appears in six (6) sections.Z The term "registered voterr appears in four (4) sections 3 The terms "qualified elector" and "registered voter„ appear in many of the same sections, and there is limited distinction between both phrases. Interestingly, Article XII, Chapter 1, Section 12-1.1 of the Charter, relating to the recall of elected officers by the voters, provides in pertinent part the method of recall as follows (emphasis supplied): (a) A petition demanding recall of an official elected at-large, or by voters of the entire county, as the case may be, shall be signed by qualified voters equal to or greater than twenty-five percent of the total number of persons who registered in the last general election. (b) A petition demanding recall of a district councilmember shall be signed by qualified voters equal to or greater than twenty-five ~ Section 3-3, relating to the qualifications of a candidate for the Hawaii County Council; Section 5-1.2, relating to the qualifications of a candidate for the office of the Mayor; Section 9-2, relating to the qualifications of a candidate for the office of the Prosecutor; Section 12-2.1, relating to impeachment proceedings Section 13-1, relating to a vacancy in otrice upon a finding that the officer was not a "qualified elector;" and Section 15-1, relating to Charter amendments being initiated by "qualified electors " ~ Section 3-3, relating to the qualifications of a candidate for the Hawai i County Council; Section 6-4.3, relating to the qualifications of a candidate for the Hawai i County Planning Commission; Section 6-10.2, relating to the qualifications of a candidate for the Hawaii County Board of Appeals; and Section 15-1, relating to Charter amendments. Honorable Harry Kim Honorable Stacy K. Higa and Members of the Hawaii County Council September 28, 2005 Page 4 percent of the total number of persons who registered in the last general election. (c) The term "qualified voter„ means a person who is registered to vote in the county on the day that the clerk begins the examination to determine the sufficiency of the signatures on the petition. There is limited case law in Hawaii concerning the definition of "qualified electors." One case of interest, however, is In re Chung, 44 Hawaii 220, 352 P.2d 846 (1960), wherein our conclusions are supported. In Chung, the Supreme Court of Hawaii examined whether the Clerk of the City and County of Honolulu had standing to appeal a decision by the Board of Registration of Electors for the City and County of Honolulu. In that case, the Clerk refused to register a citizen, claiming that a criminal conviction from Japan effectively disqualified him from voting in a territorial election, pursuant to the Hawaiian Organic Act, 48 U.S.C.A. Section 590. The Court was confronted with the task of defining "qualified elector," and stated as follows: It is to be noted that the provision quoted above (relating to the Session Laws of Hawaii, which transferred the duties of registration to the respective county clerks) gave the right of challenge to "any qualified elector," whereas under Section 47 (of the Revised Laws of Hawaii) the person who had the right of challenge was "any legal voter." We think that both expressions have the same meaning, and there is no significance in the mentioned change of language. 44 Haw. at 223. The Chung court further explained its reasoning as follows: In a strictly literal sense, the words "any legal voter' mean a person who has met all of the conditions precedent to the exercise of suffrage, including registration. 44 Haw. at 225. ? • f While this appeal is not concerned with the application of the words "any legal voter," as used in Section 11-23 (of the Revised Laws of Hawaii 1955), to a person whose right to be or remain registered as a voter is in Honorable Harry Kim Honorable Stacy K. Higa and Members of the Hawaii County Council September 28, 2005 Page 5 question, we shall briefly touch upon it in order to round out our consideration of the meaning of those words. As we noted earlier in this opinion, such person does not come within the literal meaning of those wards. But, clearly under every concept of an orderly judicial process, if any person ought to have the right to appeal from an adverse board ruling to this court, it is the person ruled against by the board with respect to his right to be or remain registered as a voter. We think that the right of appeal of such person may be preserved by interpreting those words to mean any person who claims the right to be registered as a legal voter.° 44 Haw. at 227-228. Finally, the minutes of the Charter Commission from June 12, 1979, reveal that this very question was raised before the County commission. The following exchange occurred between Charter Commissioner Matsuo Yanaga and Charter Commission Counsel Stuart Oda: MR. YANAGA: Mr. Chairman. Stuart, or the qualified electors of the county, I think someplace I read in the minutes that the County Clerk Rudy Legaspi recommended that along with your signature, you get your home address, your social security number and all that son: of thing. I don't know for what purpose. What is the reason for this? MR. ODA: That is for verification purposes. In case you have to contact the individual. By qualified elector is meant a person has to be a registered voter. Let's say a person signs John Doe as one of the one- hundred and there is no registered Jahn Doe with any address. That is not verified, so that is out. If there is a John Doe, address Kea'au, Hawai' i, P.O. Box 927, or whatever it is, that can be traced, right? There may be some attempt made. You have to be qualified. The coordination has to be made with the County Clerk's registered list of voters. (Emphasis supplied}. Based on the seemingly interchangeable use of the terms "qualified electors" and "registered voter* throughout our Charter, the majority opinion and reasoning found in /n re Chung, supra, the above-cited Charter Commission minutes, and the lack of legal authority to the contrary, it is our considered opinion that a "qualified elector" is a "registered vote' for purposes of thane referenced sections of the Hawaii County Charter {2000). `There is atwo-member dissent which argues the terms "qualified elector and "registered voter" are distinguishable. Honorable Harry Kim Honorable Stacy K. Higa and Members of the Hawaii County Council September 28, 2005 Page 6 It consequently follows that in order for an impeachment action pursuant to Article XII, Chapter 2, Section 12-2.1 of the Charter to be valid, the petition for impeachment must be signed by at least one hundred (100) registered voters of the County of Hawaii. Hiring Special Counsel or payment of legal expenses A recurring question raised by elected officials around the country is who pays for legal expenses incurred when the official is required to legally defend him/herself in lawsuits or other quasi-judicial actions, based upon challenges to the official's actions taken within the course and scope of their office. State and County statutory law is silent on this issue, and provides no guidance on whether elected officials are afforded the right of representation paid for with public funds. Similarly, there is limited case law relative to this narrow issue. One thing, however, is clear. Our Charter provides in no uncertain terms that the Corporation Counsel is prohibited from representing any official in impeachment proceedings. In our opinion, this presupposes that the use of public funds for this purpose is likewise generally prohibited. Article VI, Chapter 2, Section 6-2.5, of Charter, which provides for the hiring of special counsel, provides in pertinent part as follows: The council may, by two-thirds vote of its entire membership, authorize the employment of special counsel for any special matter presenting a real necessity for such employment. Any such authorization shall specify the compensation, if any, to be paid for said services. However, upon closer examination of the present case, this is really not a "special counsel" issue. This is because the use of special counsel presupposes that the government wilt pay for the legal fees and expenses incurred by the government official who acted within the course and scope of their duties.s e We note this office issu€d a letter dated August 31, 1999, to then Council Chair James Arakaki, wherein it was suggested that the special counsel procedure was available, even though the Charter specifically provided that the Corporation Counsel was prohibited from representing County officers in impeachment proceedings. Although we do not presently vacate that opinion, we do express concern that the use of special counsel presupposes that the County officer was acting within the course and scope of his duty, and was furthering a public purpose, while acting in good faith. These facts have not yet been conclusively proven in the present case. Honorable Harry Kim Honorable Stacy K. Higa and Members of the Hawaii County Council September 28, 2005 Page 7 The more accurate and germane question is whether there is a legally recognized basis for the payment (or reimbursement) of legal expenses, even though the Corporation Counsel is statutorily prohibited from representing the County officers. Generally, no compensation can be recovered by the attorney or agent who represented the government official, where there was no authority to employ him or her, or when the employment was not validly effected, or when there is no provision in the law for compensation. Cahn v. Town of Hunnington, 29 N.Y.2d 451, 328 N.Y.S.2d 672, 278 N.E.2d 908 (1972). Further, attorneys' fees cannot be recovered byway or reimbursement of a municipal offcer, where the attorney was employed to protect the private interest of the officer in his or her office and no public benefit inured to the municipality's benefit. Matthews v. City ofAtlantic City, 196 N.J. Super. 145, 481 A.2d 842 (Law Div. 1984), iudament affd, 196 N.J. Super. 338, 482 A.2d 530 (App. Div. 1984). However, a municipality may indemnify its officials only where expenses are incurred in the performance of official duties or in defense of actions challenging official acts. Matthews v. City of Atlantic City, supra. Further, the fact that the public official is involved in the suit is not dispositive of the issue, rather it is the subject matter of the underlying suit that determines whether the public must bear the burden of the expense. Matthews v. City ofAt/antic City, supra. Thus, both an examination of the merits of the alleged malfeasance by the County's officers, and an examination of the outcome of the impeachment action itself is necessary in order to properly evaluate the County's responsibility in paying for attorneys' fees, per the above-cited Matthews opinion. With respect to the merits of the alleged malfeasance, no question the corpus of the impeachment claim lies with the continued funding of the County's marijuana eradication program, and the alleged failure of the Council to perform the mandatory program review as required by the Charter. As Mr. Christie points out in his moving papers: The obvious solution to ending the ongoing colossal failure of the (sic) 'war on drugs' on this island is to cause the trial for impeachment of Mayor Harry Kim and~ight of the nine County Council members immediately. Why? Because the Mayor proposed, and the Council funded an increase in marijuana eradication grants for last fiscal year. They agreed to maintain those increased funds for this fiscal year with knowledge that there has never been a "mandatory program review" (a specialized, "mandatory" audit) of the controversial program. Zero. These elected Honorable Harry Kim Honorable Stacy K. Higa and Members of the Hawaii County Council September 28, 2005 Page 8 officials also know that there is at least one scientific study that links their marijuana eradication program, island poverty and the (sic) 'ice' epidemic, yet they continue to gamble with our lives. (sic) 'Malfeasance' in office? I think so. Again, whether these claims are meritorious or not is for the Circuit Court to decide, and our office offers no opinion. We simply point out what is abundantly clear: That Mr. Christie's claims of malfeasance are matters clearly within the course and scope of the duties of the County officials. An examination of the outcome of the Circuit Court proceeding is also necessary. Irrespective of the outcome of the case (whether Mr. Christie is successful in the impeachment of the Mayor and/or any of the Council members or not), an examination of the facts developed in the Circuit Court case is necessary. Questions such as whether the County officers acted within the course and scope of their responsibility, whether they adequately performed their Charter-mandated tasks, and whether there is any evidence of wanton neglect would be critical and diapositive in our analysis and conclusion of whether legal expenses may be reimbursed. An enlightening case is Maui County Council v. Thompson, 84 Hawaii 105, 929 P.2d 1355 (1996), reconsideration denied 84 Hawaii 496, 936 P.2d 191 (January 29, 1997). In that case, the Maui County Council sued the Maui County Finance Director, Corporation Counsel, and then Mayor Linda Lingle, alleging that the administration wrongfully exceeded their authority by unilaterally hiring special counsel to defend them in a wrongful termination case. The Maui Circuit Court initially dismissed this lawsuit. However, on appeal, the Supreme Court of Hawaii vacated the Circuit Court's order of dismissal, and found that Mayor Lingle and her co-defendants had in fact violated Maui County law in the unilateral hiring of special counsel to defend them. The Supreme Court summarized its decision as follows: And it is true, as a matter of policy, that "public indemnification of public officials serves in part to encourage public service." Howard v. Town of Burlington, 399 Mass. 585, 506 N.E.2d 102, 106 (1987). But this case is not about whether public officials should be reimbursed, but about which branch of government has the power to decide that question. Municipalities often reimburse officials for legal fees incurred in defending themselves from claims brought against them in their individual capacities. But there is no legal or moral duty to reimburse unless the disputed action affects the public interest, relates to the employee's official duties, and the Honorable Harry Kim Honorable Stacy K. Higa and Members of the Hawaii County Council September 28, 2005 Page 9 official was acting in good faith. (Citations omitted; emphasis in original text). 84 Hawaii at 108. With respect to the seminal question of whether public officials should be reimbursed, the Hawaii Supreme Court in Thompson, as we have similarly opined presently, recognized both the appropriateness of reimbursing public officials for legal expenses, and the relevant criteria to consider prior to making such a decision: It has {ong been the law in this and other jurisdictions that "[i]t is within the discretionary power of a municipality to indemnify one of its officers against liability incurred by reason of any act done by him while in the bona fide discharge of his official duties, and the municipality has the right to employ counsel to defend the officer or to appropriate funds for the necessary expenses incurred by him in such defense " However, a municipality is under no legal obligation to do so, even for actions within the scope of official duties: "It would seem to be wisest to leave the indemnification of the officer to the discretion of those who represent the interest of the city, that, on the one hand, they should not be without the power to indemnify a meritorious officer, acting in good faith, for the consequences of his conduct, and, on the other hand, they should not be obliged to protect every officer, though acting in good faith, under circumstances which seem to them to indicate a blamable want of care and caution." (Citations omitted throughout) 84 Hawaii at 107. Thus, the above passage espouses the need to examine the Circuit Court record after this case is concluded, to determine whether there is any evidence to suggest "blamable want of care and caution" on the part of any of the accused County officers. If there is no such evidence in the Circuit Court case, reimbursement of legal expenses may be justified, subject to Hawaii County Council approval.e e We are mindful of the etlSical implications of Council Members voting on whether to reimburse themselves for legal expenses incurred. Nonetheless, our Charter and the mandate of Maui County Council v. Thompson, supra, require this process. Hearing the matter in an open, public meeting, and allowing public input would provide some safeguards against impropriety. We also suggest as an option, as this office suggested in a letter dated August 31, 1999, to then Council Chairman James Arakaki, that the matter be presented to the Hawai i County Board of Ethics for their consideration. See further discussion of this issue, infra. Honorable Harry Kim Honorable Stacy K. Higa and Members of the Hawaii County Council September 28, 2005 Page 10 The initiation of an Impeachment Petition with the Circuit Court Our laws provide that the Third Circuit Court presides as a court of original jurisdiction over impeachment trials. The Court hears the case without a jury. The Court follows the Hawaii Rules of Civil Procedure, which govern the process of civil trials in Hawaii State courts. Generally, an action is commenced by the filing of a complaint or petition. Enclosed for reference purposes is a copy of Mr. Christie's petition filed in 1999, seeking the impeachment of former Mayor Stephen Yamashiro and six Council Members. Since the Corporation Counsel will not be representing the Mayor and Council, it is important that you immediately consult your attorney upon service of a complaint or petition upon you, or take the necessary action to answer the pleading within the statutorily mandated time. After the parties are served, you may expect the case to be brought forward by Mr. Christie, for a hearing before the Circuit Court. Again, the Mayor and affected Council Members are urged to consult their private attorneys or other legal representative. Establishing a process for reimbursement prior to the conclusion of the Circuit Court case As discussed in footnote 6, ante, there are ethical implications if the Council is called upon to vote upon the reimbursement of legal expenses for its own members. In 1999, in response to a request from the Hawaii County Council seeking advice whether special counsel would be made available to Council Members whose impeachment was sought, this office opined as follows: There are some potential problems presented under the unique circumstances of this case. While the County Council is the appropriate body to determine if public funds should be expended and whether a public purpose would be served by such expenditure under these circumstances, six members of the Council are themselves subject to the impeachment action. These members would have to vote then on a matter of financial interest to themselves as individuals. Provisions of the ethics code may apply. Section 2-83(d) provides that "[n)o officer or employee shall...have a financial interest, direct or indirect, which might reasonably tend to be incompatible with the proper discharge of his official Honorable Harry Kim Honorable Stacy K. Higa and Members of the Hawaii County Council September 28, 2005 Page 11 duties or to impair his independence of judgment in the performance of his official duties..." Section 2-83(b) provides that "[njo officer or employee shall use or attempt to use his official position to secure or grant unwarranted privileges, exemptions, advantages, contracts or treatment, for himself or others." At the onset, we note that the aforecited Section 2-83(d) of the former Ethics Gode was effectively repealed by the Hawaii County Council in 2002 (Ordinance 02-109). Thus, the only provision of the present Ethics Code which raises concern is Section 2-83(b), cited in pertinent part in the passage above. However, a present conflict of laws is presented, since our laws also provide that it is the Council and the Council alone who may authorize the payment of legal expenses for County officials. Maui County Council v. Thompson, supra, conclusively laid this issue to rest. In the 1999 letter from this office, the following advisory was issued, which we believe provides wise counsel today: Section 14-3 of the Hawaii County Charter provides that: "It shall be incumbent upon all employees or officers of the county to: "(a) Make full disclosure in writing to the appointing authority or to the council in the case of an elective officer, the possession or acquisition of any interests, financial or otherwise as might reasonably tend to create a conflict with the public interest. Any member of the council who knows of a personal interest, direct or indirect, in any action proposed or pending before the council shall disclose such interest prior to the taking of any vote thereon. "(b) File a copy of such disclosure with the county clerk which shall become a matter of public record." Should the Council determine to vote on an expenditure of funds for these legal expenses, Council members affected should follow the disclosure requirements of the code (Section 2-91.1[gj) and charter and further should determine if they wish to ask the Ethics Board for an advisory opinion on the propriety of voting on the issue. We believe it is likely that since necessity dictates that only Council members can vote on the issue, Honorable Harry Kim Honorable Stacy K. Higa and Members of the Hawaii County Council September 28, 2005 Page 12 that it must be allowed. But the Ethics Code sets up the Ethics Board as the body to make these determinations. It is recommended that the Council consider agendizing the present communication from our office, for the purpose of establishing prior to the conclusion of the Circuit Court case, the "ground rules" and process for hearing, considering, and voting upon the reimbursement of legal expenses at the end of the impeachment case. This process will provide for transparency, and will allow the public to weigh in at (1) the formative portions of the proposed process, and (2) upon consideration of whether legal expenses should be reimbursed at the conclusion of the case (assuming the impeachment effort is unsuccessful). Although our laws do not provide for a specific process that cover this unique situation, our proposed remedy seeks to reconcile and balance the competing interests of (1) the legal requirement that the authority to grant reimbursement remain with the Council, (2) the legal maxim that government funds should be used to pay for legal expenses of government officials when they have acted within the course and scope of their responsibility, in good faith, and for a public purpose, in order to encourage persons to serve in public office, and (3) ethical issues raised, by requiring the matter to evolve before a public forum, allowing members of our community to weigh in on this important subject. Please contact me if I may be of further assistance to you in answering any other general questions regarding this matter. Very truly yours, ~~i" " LINCOLN S. T. ASHIDA Corporation Counsel Encls. c: Honorable Constance Kiriu, County Clerk (w/ encls.) Roger Christie (w/ encls.) S: Depts/CCiLSA Misc.lletter to Mayor and Council re Christie impeachment 8-9-OS/LSAmr