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101 Aupuai Street. Suite 325 • Hilo, Hawaii 96720-1262 • (BOB) %1$251 • F,z (808) %1-8622 C
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25 August 1997 _ 'J
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OPINION NO. 97-03
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Ms. Connie Kiriu w
Legislative Auditor
25 Aupuni Street
Hilo, Hawaii 96729
SUBJECT: COUNCIL CONTRACTS
Dear Ms. Ririu:
This is a reply to your two related requests of July 15, 1997;
both concerning the authority of the Council to enter into
contracts.
I, wBa~ *tio Council Provide by Ordinance Fo1-`the Chair, or
some other official. to sign Contracts relating to the
i.Paislat~ve Function -
Section 13-13 (c) of the Hawaii County Charter (HCC) requires
that all written contracts to which the County is a party shall:
(c) Ezcept as otherwise provided, be signed by the
Mayor. ,
The question presented is, therefore, whether the words `Except
as othezwise provided' mean, as provided elsewhere in the
Charter, or as may be provided by other means, such as by
ordinance.
Such language, termed "proviso" is generally to be strictly
construed, when there is any doubt as to the eztent of the
intended application. Sutherland Stat. Const. §47.08 (5th Ed).
Nevertheless, the general rule today is that provisos will be
applied according to general legislative intent. Ibid at
§47.09, and is not necessarily a reservation of power to the
enacting body. Ranalli v. Edwards 202 A2d. 516 (RI 1964). The
natural effect of a proviso is, therefore, to ezcept something
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Ms. Connie Kiriu
25 August 1997
Paye 2
from the enacting clause or to limit the scope the statute (or
in this case, charter provision) something that would otherwise
be within its terms. c'ommerro Hank of Rancor itv, 762 SW 2d
931 (Mo. App. 1988).
Normally, were we to strictly construe this law "Ezcept as
otherwise provided...', we would conclude that the ezception
need be included in the same document, i.e., the Charter. But,
since the Charter contains no ezceptions, we must conclude that
the obvious intent of the framers, was to allow for ezceptions
to be created by ordinance.
Accordingly, we Conclude that the language of Sec. 13-13(c)
allows the Council to provide by ordinance, for the Council
Chair (or some other officer), to sign contracts involving the
Legislative Branch.
We emphasize, however, that this opinion is limited to these
contracts necessary to Carry out the Legislative function. It
does II.4~ eztend to those contracts involving an ezercise of
authority eaclusively vested in the ezecutive branch. See
Harris v. Desoto, 80 Haw 425 (1996).
II. Application of Civil Service Law to Council Contracts
You have also raised the question of the applicability of Civil
Service Law to Council contracts, in light of the decision in
Konno v. County of Hawaii, 85 Haw 61 (1997). That case made it
clear that under ezisting law, services, the nature of which
have customarily and historically been performed by civil
servants, may not be contracted, unless there is a specified
ezemption in Civil Service Law.
HRS Sec. 76-77(10), ezcepts from Civil Service those services
specifically eaempted by any other State Statute. Such
ezemption for the Council is found in Sec. 46-32, which gives
the Council of each County broad authority to "appoint and
employ personnel as it deems necessary'.
In view of that language, it is our opinion that the authority
of the Council to enter into contracts, necessary to carry out
the Legislative function, has not been altered by the gonno
decision.
Sincerel
. WURDEMAN
Corporation Counsel
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