HomeMy WebLinkAboutCOM 0482.001 2010-2012William P. Kenoi
Mayor
Lincoln S.T. Ashida
Corporation Counsel
Katherine A. Garson
Assistant Corporation
Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
333 Kilauea Avenue, Second Floor • Hilo, Hawaii 96720 • (808) 961 -8251 • Fax (808) 961 -8622
E -mail: corpcounsel @co.hawaii.hi.us
December 6, .011
Honorable K. Angel Pilago
Chair, Committee on Government Relations
Hawaii County Council
25 Aupuni St.
Hilo, HI 96720
Dear Chairman Pilago and Committee Members:
RE: Bill 152
We submit the following suggested amendments to Bill 152, relating to
special counsel and Council staff attorneys.
These amendments:
• Ensure compliance with State law with respect to employment and
procurement.
• Ensure necessary funds are appropriated for attorney fees, costs, and
sanctions when imposed.
• Restores the separation of powers with respect to payment of special
counsel expenses.
We suggest the following amendments to Section 1 of the proposed
ordinance:
"SECTION 1. Purpose. The purpose of this ordinance is to initiate an
amendment to the Hawaii County Charter to grant the County Council the
right to employ special counsel and Council staff attorneys without
cxprc ;c limitation, when in the best interests of the County."
We assume the omission of the language "when in the best interests of
the County" was an oversight since all actions taken by County officers should be
done in the best interests of the County, and not any particular governmental
subdivision per se. Further, omission of the phrase "without express limitation" is
Hawai'i County is an Equal Opportunity Employer and Provider
CD C,
O• -<
.1c)
3 -�
rn
N ▪ —
Comm. No. q 4 •
Ref. To: 6 A
Ref. Date .G
C
Honorable K. Angel Pilago
December 6, 2011
Page 2
advised since the County will need to comply with all authorities and rules such
as employment law and procurement (in the case of special counsel).
We suggest the following amendments to Section 2 of the proposed
ordinance (with respect to Section 3- 6(c)):
"(c) By a simple, affirmative majority vote,' the council may hire its own
council staff attorneys 2 • - - - - - •• - - • . Furthermore:
(1) Council staff attorneys shall be appointed positions and report to
the county clerk.
(2) Council staff attorneys may advise the council independently of
the corporation counsel.
(3) Council staff attorneys may represent the council in litigation
where the dispute is with the executive branch and where the
corporation counsel may represent the mayor or any officer or
employee of the executive branch.
(4) In the event that council staff attorneys shall be authorized to
represent the council in litigation, those staff attorneys shall be
deemed to have the status of "special counsel" for the purpose
of that litigation.
(5) Any and all attorney fees, costs, or sanctions imposed on
council staff attorneys related to their representation of the
Council shall be paid by the Council, and there shall be
sufficient funds budgeted by the Council for this purpose."
We suggest the following amendments to Section 2 of the proposed
ordinance (with respect to Section 3- 6(d)):
"(d) By a simple, affirmative majority vote, the council may authorize the
employment of special counsel - - - - - •• - - • . Furthermore:
(1) Such special counsel may advise the council independently of
the corporation counsel.
(2) Such special counsel may represent the council in litigation
where the dispute is with the executive branch and where the
corporation counsel may represent the mayor or any officer or
employee of the executive branch.
(3) Any such authorization shall specify the compensation, if any, to
be paid to such special counsel, and the council shall make an
appropriation therefor.
The Council may wish to consider requiring a two- thirds vote of the entire membership in order
to protect the rights of all members, including minority members. Presumably a council staff
attorney is hired for the purpose of servicing and representing the Council as a whole, and not
majority members only.
2 We assume the Council is aware of the existence of Section 46 -32, Hawaii Revised Statutes,
as amended, that authorizes the legislative branch to create positions.
Honorable K. Angel Pilago
December 6, 2011
Page 3
(4) Any and all attorney fees, costs, or sanctions imposed on
special counsel related to their representation of the Council
shall be paid by the Council, and there shall be sufficient funds
budgeted by the Council for this purpose."
We suggest the following amendments to Section 2 of the proposed
ordinance (with respect to Section 3- 6(e)):
"(e) Compensation, if any, to special counsel employed by the council
under this section shall be paid from the budget of:
(1) The council if it decides to employ special counsel for its own
purpose; or , when special counsel is procured and hired by the
Council.
(2) The office of the corporation counsel if:
{A) The council determines that a conflict of interest with the
corporation counsel exists;
executive branch exists; or
its stated conflict of interest with the council. , when special
counsel is procured and hired by the Corporation Counsel."
We suggest the following language be substituted in Section 3 of the
proposed ordinance (with respect to Section 6 -5.5):
"Section 6 -5.5. Special Counsel.
Special counsel may be employed whenever there is a real necessity for
such employment."
Thank you for allowing us the opportunity to provide these
recommendations.
Very truly yours,
Dec 6 2011 9:55 AM
LINCOLN S. T. ASHIDA
Corporation Counsel