HomeMy WebLinkAboutCOM 0482.006 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
January 3, 2012
Sent via email to all Council members; no hard copy will follow
Mr. Dominic Yagong
Chairman and Presiding Officer
Hawai'i County Council
25 Aupuni St.
Hilo, HI 96720
Dear Chairman Yagong and Council Members:
RE: Bill 152 (Draft 2)
We caution the Council the compensation provision of Bill 152 (Draft 2) as
written violates the separation of powers doctrine since it gives the Council
unilateral authority for the hiring of special counsel in cases involving
administration personnel. As the bill is currently written, only the Council
determines whether there is a conflict of interest.
Further, Bill 152 (Draft 2) as written is unnecessarily convoluted; the desired
result of the Council having the authority to hire special counsel could be
achieved by the following simple changes to our Charter:
1. Like the City and County of Honolulu, amend Article III, Section 3 -6 of
our Charter by creating the following simple language:
The council may, without express limitation, authorize the employment of
special counsel to represent it, upon the affirmative vote of at least two- thirds
of its entire membership. Any such authorization shall specify the
compensation, if any, to be paid such special counsel, and the council shall
make an appropriation therefor.
This is language taken verbatim from the Charter of the City and County of
Honolulu; we also added the phrase "without express limitation" in order to
recognize the council's authority found in City Council v. Sakai, 58 Haw. 390, 570
P.2d 565 (1977).
Hawai'i County is an Equal Opportunity Employer and Provider
rri
Comm. No. 98`31?*
Ref. To preieillla 6144144.1
Ref. Date JAN = ,4- 2fl12
Mr. Dominic Yagong
January 3, 2012
Page 2
This is simple. It is not confusing. It makes clear the Council does not
need any authority other than the super majority vote of its membership. In fact,
it goes even farther than Bill 152 (Draft 2) originally intended, since there is no
requirement there be a determination of a conflict of interest or other triggering
event in order for the Council to hire special counsel.
2. Leave Article IV, Chapter 5, Section 6 -5.5 of our Charter alone. This
section currently provides 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.
Leaving this section as is ensures administration personnel may have
special counsel hired to represent them, so long as there is a real necessity, and
the Council approves it (these are the checks and balances necessary for
healthy government).
Finally, there is no need to include "staff attorneys" in any Charter
amendment, since the Council currently enjoys the authority under State law to
create positions they deem necessary. In fact, there is currently a legal specialist
position that remains unfunded by the Council.
Very truly yours,
Ashida, Lincoln
Jan 4 2012 8:05 AM
LINCOLN S. T. ASHIDA
Corporation Counsel