HomeMy WebLinkAboutCOM 0482.011 2010-2012BRENDA J. FORD
Council Member
District 7 - Central Kona
Phone: (808) 323 -4277
Fax: (808) 329- 4786
E -Mail: bford @co.hawaii.hi.us
HAWAII COUNTY COUNCIL
County of Hawai`i
West Hawai`i Civic Center
74 -5044 Ane Keohokalole Hwy.
Kailua -Kona, Hawaii 96740
DATE: July 17, 2012
TO: Dominic Yagong, Chairperson,
and Members of the Hawai`i County Council
FROM: 't a - Brenda J. Ford, Council Member
SUBJECT: Proposed Amendment to Bill No. 152, Draft 4; 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 find attached proposed amendments to Bill No. 152, Draft 4. The proposed amendments
are illustrated below in Ramseyer format with respect to the contents of Bill No. 152, Draft 4 and
bolded for emphasis (material to be deleted is bracketed and stricken through; material to be
added is underlined):
1. Section 2, as provided in Bill No. 152, Draft 4, is amended to read as follows:
"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.
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"Imperative authority" means an authority that is absolutely binding on a court.
Serving the Interests of the People of Our Island
Hawai`i County Is An Equal Opportunity Provider And Employer
Comm. N
Ref. To: Presented
Ref. Dote
32.11
"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 council 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.
[(a)](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)](c) 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.
(d) The council may hire its own council staff attorneys pursuant to Section 46 -32 of
the Hawai` i Revised Statutes. Furthermore:
(1) [ Staff attorneys ] Council staff attorney positions shall be [appeinted
positions] exempt from civil service laws and classifications and report to
the [county clerk.] council chairperson.
(2) [ Staff attorneys ] Council staff attorneys shall serve the council, may
advise the council independently of the corporation counsel without
[express ] limitation, and may represent the council in legal disputes with
the executive branch.
(3) By a two - thirds vote of its entire membership, the council may authorize by
resolution [ staff attorneys] attorney(s) hired by contract to represent the
council [' - _ - - _ . .. - ' - - . . .. ] and
employee of the executive branch]. These contract attorneys shall serve the
council, advise the counsel in legal matters without limitation, and
represent the council as special counsel in litigation in any matter. Any
such authorization shall specify the maximum compensation, if any, to be
paid to the attorneys for said services.
(4) In the event that council staff attorneys are authorized by a resolution and
with a two - thirds vote of the council's entire membership to represent the
council in litigation, those council staff attorneys shall be deemed to have
the status of "special counsel" for the purpose of that litigation.
By a two thirds vote of its entire membership, the council may authorize the
(3)
corporation counsel.
Such special counsel may represent the council in litigation where-the
dispute is with the executive branch and where the corporation counsel may
Any such authorization shall specify the co
appropriation therefor. ]
(e) Compensation, if any, to special counsel under this section shall be paid from the
budget of:
(1) The council if it:
(A) decides to employ special counsel for its own purpose;
(B) determines that a conflict of interest with the office of the
corporation counsel exists;
(C) determines that a conflict of interest with the executive branch
exists; or
The office of the corporation counsel if the office of the corporation
counsel voluntarily withdraws as a result of its stated conflict of interest
with the council."
[(
section shall be paid from the budget of:
(2)
The office of the corporation counsel if:
(A) The council determines that a conflict of interest with the
corporation counsel exists;
(B) The council determines that a conflict of interest with the executive
branch existser
(C) The corporation counsel voluntarily withdraws as a result of its
stated conflict of interest with the council. "]"
2. Section 3 is amended to read:
"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.
(a) The council may, by two - thirds vote of its entire membership and by resolution,
authorize the employment of special counsel for the executive branch or the
County of Hawai`i for any [ special ] matter presenting a [real] necessity for such
employment. Any such authorization shall specify the maximum compensation,
if any, to be paid for said services.
(b) The council, by two - thirds vote of its entire membership and by resolution, may
authorize the employment of special counsel for the legislative branch without
[express ] limitation, as provided in Section 3 -6 of this Charter. Any such
authorization shall specify the maximum compensation, if any, to be paid for said
services."
A draft copy of Bill No. 152, Draft 5, is attached with the proposed amendments incorporated
there in.
BJF /dkr
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 council 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.
[(a)](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)](c) 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.
The council may hire its own council staff attorneys pursuant to Section 46 -32 of
the Hawai`i Revised Statutes. Furthermore:
[ Staff attorneys ] Council staff attorney positions shall be [appointed
positions] exempt from civil service laws and classifications and report to
the [county clerk. ] council chairperson.
(2) [ Staff attorneys ] Council staff attorneys shall serve the council, may
advise the council independently of the corporation counsel without
[express ] limitation, and may represent the council in legal disputes with
the executive branch.
By a two - thirds vote of its entire membership, the council may authorize by
resolution [ staff attorneys] attorney(s) hired by contract to 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]. These contract attorneys shall serve the
council, advise the counsel in legal matters without limitation, and
represent the council as special counsel in litigation in any matter. Any
such authorization shall specify the maximum compensation, if any, to be
paid to the attorneys for said services.
al In the event that council staff attorneys are authorized by a resolution and
with a two - thirds vote of the council's entire membership to represent the
council in litigation, those council staff attorneys shall be deemed to have
the status of "special counsel" for the purpose of that litigation.
[ (e) By a two thirds vote of its entire membership, the council may authoriz the
employment of special counsel without express limitation. Furthermore:
fl Such special counsel may advise the council independently of the
corporation counsel.
(3)
dispute is with the executive bunch and where the corporation counsel may
represent the mayor or any officer or employee of the executive branch.
2
(3)
Any such authorization shall specify the compensation, if any, to be
appropriation therefor. ]
he council shall make an
Lel Compensation, if any, to special counsel under this section shall be paid from the
budget of:
(1) The council if it:
decides to employ special counsel for its own purpose;
LB determines that a conflict of interest with the office of the
corporation counsel exists;
,n, determines that a conflict of interest with the executive branch
exists; or
(2) The office of the corporation counsel if the office of the corporation
counsel voluntarily withdraws as a result of its stated conflict of interest
with the council."
[ (f)
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
(2) The office of the corporation counsel if:
(A) The council determines that a conflict of interest with the
corporation counsel exists;
(B) 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.
[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.]
La,) The council may, by two - thirds vote of its entire membership and by resolution,
authorize the employment of special counsel for the executive branch or the
County of Hawai`i for any [ special ] matter presenting a [real] necessity for such
employment. Any such authorization shall specify the maximum compensation,
if any, to be paid for said services.
The council, by two - thirds vote of its entire membership and by resolution, may
authorize the employment of special counsel for the legislative branch without
[express ] limitation, as provided in Section 3 -6 of this Charter. Any such
authorization shall specify the maximum compensation, if any, to be paid for said
3
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.
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