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HomeMy WebLinkAboutCOM 0482.014 2010-2012 Joseph K. Kamelamela Attorney at Law 41-liwipolena Road Hilo, Hawaii 96720 July 18, 2012 Dominic Yagong, Chairperson, and Members of the Hawaii County Council County of Hawaii Hawaii County Building 25 Aupuni Street, Suite Hilo, Hawaii 96720 = Dear Chair Yagong and Members of the Hawaii County Council: c RE: Public Testimony Regarding Bill 152 (Draft 4) — Initiates an Amendment to the Hawaii County Charter (2010) by Amending Article III, Section 3-6, and Article VI, Chapter 6-5.5, Relating to Special Counsel and Council Staff Attorneys I submit this personal written statement in opposition to Bill 152 (Draft 4) on several grounds. First, there is no justification to increase the number of personnel, which are the proposed staff attorneys, for the County Council during this continued economic recession. Second, it lacks transparency when the County Council is not held to the same standard as the Executive Branch for obtaining Special Counsel. And third, the bill provides unnecessary confusion where you have Council Staff Attorneys determining what is in the best interest of the County of Hawaii ("County"). I. Current Procedure in Employing Special Counsel Works Well for this County A. Present Charter Provisions For over 40 years, this County had always employed a Special Counsel by two- thirds vote of the County Council's entire membership for any special matter presenting a real necessity. Section 6-5.2 of the Hawaii County Charter states: The corporation counsel shall be appointed by the mayor, confirmed by the council and may be removed by the mayor with the approval of the council. Section 6-5.3 of the Hawaii County Charter further states: Comm. No.,, g)'•• ) q 1 Ref. To: r Gametal Ref. Date JUL 1 9 2012 The corporation counsel shall be the chief legal advisor and legal representative of all county agencies, the council and all officers and employees in matters related to their official powers and duties. The corporation counsel shall represent the county in all civil legal proceedings and shall perform all other services incident to the office as may be required by law. The corporation counsel shall, however, be prohibited from representing any elected officer in impeachment proceedings. And lastly, Section 6-5.5 of the Hawaii County Charter provides: 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 of such employment. Any such authorization shall specify the compensation, if any, to be paid for said services. In accordance with the above-mentioned charter provisions, the Corporation Counsel is the chief legal advisor and legal representative of all County agencies, the County Council and all officers and employees in matters related to their official powers and duties. With a few limited exceptions, the County Council approves the hiring of Special Counsel by the required 2/3rd vote of the entire County Council. See also Maui County Council v. Thompson, 84 Hawaii 105, 108, 929 P.2d 1355, 1359 (1996) (The Maui County Council is expressly charged by the charter with the power to retain special counsel, a power that is restricted by the necessity of a two-thirds majority vote). Where there is a real necessity, such as a conflict of interest including an opinion contrary to the County Council as a whole, the County Council can approve by a 2/3rd vote the hiring of Special Counsel. Charter Commission Minutes of the April 13, 1968 Meeting, at 9. The County Council can also approve Special Counsel by a 2/3rd vote where the Corporation Counsel lacks expertise in an area of law. See Charter Commission Minutes of the November 9, 1967 Meeting, at 23 — 24. B. No Necessity at this Time for County Council Staff Attorneys to be Special Counsels For the past twelve years with the current Corporation Counsel, this County Council, as a whole, has only once requested the authorization to retain special counsel because of an opinion that was contrary to the opinions of certain members of the County Counsel. In that one request, the Council Chairman introduced Resolution 88- 11 which requested the authorization to retain special counsel on Bill 29, Draft 4, the Mayor's veto message and a letter from the Corporation Counsel. On June 24, 2011, the resolution failed to get the requisite 2/3rd votes (that is, 6). So, over this twelve year period of time, the Corporation Counsel, his assistant corporation counsels and deputies corporation counsels have provided to the County Council a substantial amount of advice. Yet, during that twelve year time period, there was only one request by the County Council for Special Counsel. Thus, it appears 2 unreasonable to increase the cost of government for County Council staff attorneys who may be "deemed to have the status of"special counsel." II. Lack of Transparency, or Whimsical Conduct There is either a lack of transparency, or evidence of potential whimsical conduct, when the County Council is not held to the same standard as the Executive Branch for employment of Special Counsel. The Bill proposes to dispose of the "real necessity" requirement for hiring Special Counsel when employed for the legislative branch. Why should there be such a change? In effect, this Bill discards the present "check and balance" we need in our representative form of government, to prevent "improvident conduct by the legislative and executive branches." In addition, the Bill creates an ill-conceived process by allowing the County Council to employ Special Counsel "without express limitation." In a couple of ways, the Bill inaccurately, and misleadingly defines "without express limitation" to include "the council's legislative, primary, and imperative authority is absolutely binding on a court of competent jurisdiction" and "without the concurrence, agreement, or assent of the corporation counsel or any member of the executive branch of the County of Hawai'i." First, we do not know whether such authority will be binding in all situations. And Second, there is no current legal requirement that this County Council needs "the concurrence, agreement, or assent of the corporation counsel or any member of the executive branch of the County" to employ Special Counsel; it is the County Council that has the authority to hire, by a 2/3 rds vote, Special Counsel — not the corporation counsel, nor any member of the executive branch. III. Unnecessary Confusion The Corporation Counsel is the chief legal advisor and legal representative of all County agencies, the County Council and all officers and employees in matters related to their official powers and duties. (Emphasis added.) The Corporation Counsel represents the County, as a whole. The attorneys that I have worked with during these twelve years at the Office of the Corporation Counsel have demonstrated a commitment to provide the best legal advice and representation to the County, the County Council, and the employees and officials of this County. More importantly, those attorneys are committed also to preserving the integrity of the legal and lawful processes that benefit all residents of this island community. Surely, there will be times that the attorneys in the Office of the Corporation Counsel will be clear, direct and forceful with the opinions. However, they will not support anything that is, or has the appearance of being, illegal, unsafe or unethical. (Emphasis added.) 3 Hence, any legal opinion by the Office of the Corporation Counsel will be consistent, and will not change because of who requests a legal opinion. IV. Conclusion This Bill is unnecessary at this time. There is no justification to increase the cost of government through this Charter amendment vehicle. It lacks transparency, and it appears whimsical in nature. And it creates unnecessary confusion as to what would be the duties of the Corporation Counsel and the proposed Staff Attorneys as to the representation of the County, as a whole. I urge each member of this County Council to consider voting "no" for this bill. Thank you for your time and consideration on this matter. Respectfully submitted, JOSEPH K. KAMELAMELA Attachment: Bill 152 (Draft 04). 4 COUNTY OF HAWAII STATE OF HAWAII BILL NO. 152 (DRAFT 4) ORDINANCE NO. 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 Hawaii 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 Hawaii 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 Hawaii 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. [(a)]( 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. [(KR) 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. cd) The council may hire its own staff attorneys pursuant to Section 46-32 of the Hawai`i Revised Statutes. Furthermore: al Staff attorneys shall be appointed positions and report to the county clerk. (2) Staff attorneys may advise the council independently of the corporation counsel without express limitation. (3) By a two-thirds vote of its entire membership, the council may authorize staff attorneys 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. (4) In the event that 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. fel By a two-thirds vote of its entire membership, the council may authorize the employment of special counsel without express limitation. Furthermore: lU 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. 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: 2 (1) The council if it decides to employ special counsel for its ownpurpose; 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. f is e .] The council may, by two-thirds vote of its entire membership, authorize the employment of special counsel for the executive branch 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. (b) The council 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 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 Hawaii,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. 3 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. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAI`I , Hawai`i Date of Introduction: Date of 1S`Reading: Date of 2nd Reading: Date of 3rd reading: Effective Date: REFERENCE, Comm. 482.9 • 4