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Home My WebLink AboutRES 088 Draft 01 2010-2012OFFICE INFORMATION ONLY Meeting: Council — June 4, 2011 (Special Session) Action: Filed due a lack of aye votes Authorization to hire special council requires 6 aye votes (2/3 of the entire Council. Ayes: Ford, Hoffmann, Pilago, Smart, Yagong — 5 Noes: Blas, Ikeda, Onishi, Yoshimoto _ 4 Albesent: None Re: Res. 88-11; Comm. 240; Waived FC COUNTY OF HAWAII STATE OF HAWAII RESOLUTION NO. A RESOLUTION AUTHORIZING THE RETENTION OF SPECIAL COUNSEL BY THE HAWAII COUNTY COUNCIL TO PROVIDE LEGAL OPINION REGARDING (1) FORM AND/OR LEGALITY OF BILL 29, DRAFT 4, THE PROPOSED OPERATING BUDGET FOR THE COUNTY OF HAWAII FOR FISCAL YEAR 2011- 2012 AS ADOPTED BY THE HAWAII COUNTY COUNCIL ON JUNE 1, 2011; (2) THE VETO MESSAGE FOR BILL 29, DRAFT 4, AS TRANSMITTED BY THE HONORABLE MAYOR WILLIAM P. KENOI, DATED JUNE 15,2011; AND (3) THE LETTER BY CORPORATION COUNSEL LINCOLN S.T. ASHIDA TO FINANCE DIRECTOR NANCY CRAWFORD, DATED JUNE 14, 2011, REGARDING BILL 29, DRAFT 4. WHEREAS, section 6-5.5 of the Hawaii County Charter, 2010 edition, states "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"; and WHEREAS, Bill No. 29, the proposed operating budget for the County of Hawaii for fiscal year 2011-2012, was submitted by the Honorable Mayor William P. Kenoi on March 1, 2011; and WHEREAS, on May 5, 2011, the Mayor submitted proposed amendments to Bill No. 29, said amendments were incorporated into the proposed operating budget, as Draft 2; and WHEREAS, at the May 18, 2011, meeting of the Hawaii County Council, Bill No. 29 NA as further amended by the Council, said Draft 3 was scheduled to be heard on June 1, 2011; and WHEREAS, at the June 1, 2011, meeting of the Council, Bill No. 29 was further amended and adopted by the Council, said Draft 4 was transmitted to the Mayor on June 7, 2011; and WHEREAS, on June 14, 2011, Hawaii County Corporation Counsel Lincoln S.T. Ashida issued a legal communication addressed to Finance Director Nancy Crawford, said legal communication alleged that Bill No. 29, Draft 4 contained " ... numerous legal infirmities with respect to actions taken by the Council (and actions not taken by the Council)" and further alleged that said legal infirmities "... compromise the integrity" of Bill No. 29, Draft 4. The Corporation Counsel further opined that the Corporation Counsel is "... unable to approve the bill as to form and/or legality, and cannot recommend Bill 29 (Draft 4) become law as presently submitted" and further alleged that the Council violated the Hawaii County Charter and the Hawaii County Code; and WHEREAS, by not designating the June 14, 2011, legal communication as a privileged and confidential document, Corporation Counsel allowed this document to go public to the detriment of the Council; WHEREAS, on June 15, 2011, the Mayor returned Bill No. 29, Draft 4 to the Council with a veto message that alleged that Bill No. 29, Draft 4 did not meet the "requirements of the County of Hawai'i Charter or the County Code" said veto message also stated his disapproval of other portions of the Bill and alleged philosophical differences with the Council budget amendments; and WHEREAS, the Mayor used the Corporation Counsel's June 14, 2011, legal communication to support his allegations that the Council violated the Hawaii County Charter's separation of powers provision when it created the Council adjusted expense account, and violated the Hawaii County Code when it reduced the deposit into the Public Access, Open Space, and Natural Resources Preservation Fund by $1,000,000; and WHEREAS, the June 14, 2011, legal communication by the Corporation Counsel was forwarded by executive assistant to the Mayor, Kevin Dayton, on June 15, 2011, to The West Hativai 'i Today newspaper and their reporter called Council Member Dominic Yagong to seek his comments on the June 15, 2011, budget veto message, this was the first time that Council Member Dominic Yagong was informed of the June 14, 2011, legal communication; and WHEREAS, the Corporation Counsel, in the performance of his official duties as attorney for the Council, provides solicited and unsolicited legal advice to the Council concerning pending Council legislative actions, and did so during the Bill No. 29 hearing process; and WHEREAS, during the Council's discussion of Bill No. 29 Draft 3 on June 1, 2011, the Corporation Counsel did not advise the Council that the budget amendments being considered for adoption as Draft 4, presented the "legal infirmities" that he describes in his legal memorandum dated June 14, 2011; and WHEREAS, the Council feels that there is a need to seek legal advice from special counsel because of the June 14, 2011, legal memorandum by Corporation Counsel to the Finance Director; and WHEREAS, by stating that the Council has violated both the Hawaii County Charter and the Hawaii County Code it is impossible for Corporation Counsel to fairly represent the position and interest of the Council, making it necessary to obtain independent legal representation; and WHEREAS, the Office of the Corporation Counsel cannot continue to serve as the attorney for the Mayor and for the Council because they cannot provide legal advice and serve as advocate to both the executive branch and the legislative branch on matters concerning Bill No. 29, Draft 4; and WHEREAS, it is necessary for the Council to retain the services of special counsel to provide legal opinion to the Council to help the Council interpret the legal issues presented by the Corporation Counsel in his Jane 14, 2011 legal memorandum and the legal objections raised by the Mayor in his June 15, 2011 veto message so that an informed decision can be reached concerning the possible override of the Mayor's veto of Bill 29, Draft 4; now, therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that special counsel is hereby authorized to provide legal opinion to the Hawaii County Council regarding: I. Form and/or legality of Bill No. 29 Draft 4, the proposed operating budget for the County of Hawaii for fiscal year 2011-2012; and 2. The Mayor's veto message for Bill No. 29 Draft 4; and 3. The June 14, 2011 opinion from Corporation Counsel to Finance Director Nancy Crawford regarding Bill No. 29 Draft 4. BE IT FURTHER RESOLVED that the special counsel shall be compensated at an hourly rate or rates consistent with prevailing rates in the community for specified services to be rendered and that the total compensation not exceed $8,000.00. BE IT FINALLY RESOLVED that copies of this resolution shall be transmitted by the County Clerk to the Corporation Counsel and the Director of Finance. Dated at , Hawai`i, this day of 2011. 'OUNTY COUNCIL County of Hawaii Hilo, Hawaii I hereby certify that the foregoing RESOLUTION was by the vole indicated to the right hereof adopted by the COUNCIL of the ATTEST: INTRODUCED BY: r\/ Y COUNCIL MEMBV, C01rY OF HAWAII ROLL CALL VOTE Reference: C-240 a —FC COUNTY CLERK CHAIRPERSON & PRESIDING OFFICER RESOLUTION NO. 8 AYES NOES ABS EX BLAS FORD HOFFMANN IKEDA ONISHI PILAGO SMART YAGONG YOSHIMOTO Reference: C-240 a —FC COUNTY CLERK CHAIRPERSON & PRESIDING OFFICER RESOLUTION NO. 8