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Home My WebLink AboutCOM 0482.005 2010-2012BRENDA J. FORD Council Member District 7 - Central Kona DATE: TO: FROM: SUBJECT: Phone: Fax: (808) 323 -4277 (808) 329- 4786 E -Mail: bford @co.hawaii.hi.us HAWAII COUNTY COUNCIL County of Hawaii West Hawaii Civic Center 74 -5044 Ane Keohokalole Hwy. Kailua -Kona, Hawaii 96740 December 29, 2011 Dominic Yagong, Chairperson, and Members of the Hawai`i County Council �$renda J. Ford, Council Member Proposed Amendment to Bill No. 152, Draft 2; An Ordinance To Initiate An Amendment To Article III, Section 3 -6, And Article VI, Chapter 5, Section 6 -5.5, Of The Hawai`i County Charter (2010 Edition), Relating To Special Counsel And Council Staff Attorneys. Please see attached proposed amendments to Bill No. 152, Draft 2. The proposed amendments are illustrated below in Ramseyer format with respect to the contents of Bill No. 152, Draft 2 and bolded for emphasis (material to be deleted is bracketed and stricken; material to be added is underscored). Section 3 -6, as provided in Bill No. 152, Draft 2, is amended by amending subsection (d) to read: "(d) By a [ ' , • ] two- thirds vote of its entire membership, the council may hire its own council staff attorneys without express limitation. Furthermore: Council staff attorneys shall be appointed positions and report to the county clerk. Council staff attorneys may advise the council independently of the corporation counsel. 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 are 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." (1) (2) (3) • A draft copy of Bill No. 152, Draft 3, is attached with the proposed amendments incorporated therein. BJF /dkr att. Serving the Interests of the People of Our Island Hawai `i County Is An Equal Opportunity Provider And Employer Comm. No. Ref. To: i+uit Ref. Dote flF(; 2 2 7Q11 82 . s AN ORDINANCE TO INITIATE AN AMENDMENT TO ARTICLE III, SECTION 3 -6, AND ARTICLE VI, CHAPTER 5, SECTION 6 -5.5, OF THE HAWAII COUNTY CHARTER (2010 EDITION), RELATING TO SPECIAL COUNSEL AND COUNCIL STAFF ATTORNEYS. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Purpose. The purpose of this ordinance is to initiate an amendment to the Hawai`i County Charter to grant the County Council the right to employ special counsel and Council staff attorneys without express limitation. SECTION 2. Article III, section 3 -6 of the Hawai`i County Charter (2010 Edition) is amended to read as follows: "Section 3 -6. Organization of the Council; Officers; Employees. (a) Definitions. For the purpose of this section, the following definitions apply: "Constituted authority" means the legislative, executive, and judicial departments officially and rightfully governing a municipality; properly appointed or elected under organic law, such as a constitution or charter. "Express" means clearly and unmistakably communicated; directly stated. "Imperative authority" means an authority that is absolutely binding on a court. "Limitation" means the act of limiting; the state of being limited; a restriction. "Organic Law" means the body of laws (as in a constitution) that define and establish a government; fundamental law. "Primary authority" means the authority which issues directly from a law - making body; legislation and reports of litigated cases. "Without express limitation" means that 1) since the Hawai`i County Charter established the council as a constituted authority, 2) the council members' election occurs under organic law, and 3) because the council's legislative, primary, and imperative authority is absolutely binding on a court of competent jurisdiction, then the council clearly and unmistakably has the right to engage staff attorneys and special counsel without restraint or restriction, and without the concurrence, agreement, or assent of the corporation counsel or any member of the executive branch of the County of Hawai`i. [Ea)](b)The council shall elect from among its members a chairperson and a vice chairperson, each of whom shall serve at its pleasure. Until such time as the chairperson and presiding officer shall be elected, the mayor shall preside at such meeting, provided that the mayor shall not have a vote. The chairperson shall preside at council meetings. If at any meeting the chairperson is not present or unable to act, the vice chairperson shall then preside. In the absence of the chairperson and vice chairperson, the council shall elect from among its members a temporary presiding officer. [(b)lls1 The council shall appoint the county clerk which position shall be exempt from civil service laws and classifications. The county clerk shall: (1) Be the clerk of the council. (2) Be custodian of the county seal. (3) Conduct all elections held within the county. (4) Appoint the deputy county clerk, with the approval of the council, and such position shall be exempt from civil service laws and classifications. (5) Perform such other functions as the council may prescribe. (6) Appoint necessary staff for which appropriations have been made by the council, subject to civil service laws and classifications, and exercise the same power with respect to the personnel of the clerk's office as the department heads in the executive branch, with the exception of the office of the legislative auditor. al By a two - thirds vote of its entire membership, the council may hire its own council staff attorneys without express limitation. Furthermore: a) Council staff attorneys shall be appointed positions and report to the county clerk. 21 Council staff attorneys may advise the council independently of the corporation counsel. al 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. 04Z In the event that council staff attorneys are 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. Cel By a simple, affirmative majority vote, the council may authorize the employment of special counsel without express limitation. Furthermore: al Such special counsel may advise the council independently of the corporation counsel. al 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. Any such authorization shall specify the compensation, if any, to be paid to such special counsel, and the council shall make an appropriation therefor. (f) Compensation, if any, to special counsel employed by the council under this section shall be paid from the budget of: a) The council if it decides to employ special counsel for its own purpose; or a) The office of the corporation counsel if: The council determines that a conflict of interest with the corporation counsel exists; The council determines that a conflict of interest with the executive branch exists; or (C) The corporation counsel voluntarily withdraws as a result of its stated conflict of interest with the council." SECTION 3. Article VI, chapter 5, section 6 -5.5, of the Hawai`i County Charter (2010 Edition), is amended to read as follows: "Section 6 -5.5. Special Counsel. cmployment of spccial counsel for any spccial matter presenting a real necessity for such cmployment. Any such authorization shall specify the compensation, if any, to be paid for said services.] The council may authorize the employment of special counsel without express limitation, as provided in Section 3 -6 of this Charter. Any such authorization shall specify the compensation, if any, to be paid for said services." SECTION 4. Charter material to be repealed is bracketed and stricken. New charter material is underscored. When revising, compiling, or printing these charter provisions for inclusion in the Charter of the County of Hawai`i, the reviser need not include the brackets, bracketed and stricken material, and underscoring. SECTION 5. If any provision of this ordinance, or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the ordinance, which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are severable. SECTION 6. Upon adoption of this ordinance, this council, by appropriate resolution, shall provide that this amendment be submitted to the electorate of Hawai`i County for approval in the 2012 general election. SECTION 7. The charter amendment proposed in this ordinance shall take effect upon its approval by a majority of voters voting on this legislation in the 2012 General Election, as duly certified.