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Home My WebLink AboutCOM 1142.005 2014-2016 PiCnu&QL Coua'i. H42 2 Murashige, Laura From: Edmund W.K. Haitsuka <ehaitsuka@carlsmith.com> Sent: Friday, November 11, 2016 5:41 PM To: Council Testimony Subject: Written Testimony on Bill No.254 Attachments: EWH Misc Files - Its to Dru Kanuha re testimony as to Bill 254.pdf Please find attached my written testimony as to Bill No. 254 which is scheduled to be heard at the November 16, 2016 meeting. EDMUND W.K. HAITSUKA Partner I Car!smith Ball LLP . " Smith Bali A.LIWTED LIAaltM LAW A.tAMEA1111P- 75-1000 Henry Street, Suite 209 Kailua-Kona, HI 96740 Tel: 808.329.6464 Fax: 808.329.9450 Honolulu • Hilo • Kona • Maui • Los Angeles • c� ^, ti w warismi corn Download V-Card ,te .= IRViPORTANT/CONFIDENTIAL: l"his message from the law firm of Carlsmith Bag LLP,A Limited Liability' Law Partnership, contains information which may be confidential: ? rivile, ea and/or exempt from disclosure under applicable law. If you :are p g- �� " P pp not the addressee (or authorized to receive for the addressee),you are :- hereby notified that the copying, use or distribution of any information or materials transmitted in or with this message is strictly piahibited. If you received this message in error, please immediately notify me(the sender) by replying to this email,then promptly destroy the original message. "I hank you. Comm. No, Ito S Ref. To: ' CV'. .- Ref. Date a 1.621 • 1 EDMUND W.K. HAITSUKA 75-357 NANI KAILUA DRIVE, KAILUA-KONA, HI 96740•(808)640-8384♦EHAITSUKA(a.AOL.COM November 11,2016 SUBMITTED ELECTRONICALLY Mr. Dru Mamo Kanuha Chair and Presiding Officer Hawai'i County Council 25 Aupuni Street Hilo, HI 96720 Re: Bill No. 254 Relating to Appointment of Personnel to the Office of the Corporation Counsel Dear Chair Kanuha: Please consider this letter my testimony in opposition to Bill No. 254. Bill No. 254 attempts to make the appointment or discharge of deputy corporation counsel subject to the approval of the Mayor and the Hawai'i County Council ("Council"). Based upon the reasons set forth below, Bill No. 254 should not be passed. The separation of powers doctrine is embodied in the United States Constitution, the Hawai'i State Constitution and the Hawaii County Charter("Charter"). Hawai'i Insurers Council v. Lingle, 120 Hawai'i 51, 69, 201 P.3d 564, 582 (2008); City Council v. Fasi, 52 Haw. 3, 5, 467 P.2d 576, 578 (1970). The doctrine is intended "to preclude, a commingling of essentially different powers of government in the same hands and thereby prevent a situation where one department would be controlled by, or subjected, directly or indirectly, to, the coercive influence of either of the other departments." Pray v. Judicial Selection Comm'n of State, 75 Haw. 333, 353, 861 P.2d 723, 732(1993). Consistent with the separation of powers doctrine, Section 3-1 of the Charter states as follows: The legislative powers of the county;shall be vested in the county,council. Its primary function shall be legislation and public policy formulation, as distinct and separate from the executive administration of 'county government. (emphasis added). Similarly, Section 4-1 of the Charter provides that: The executive powers of the county shall be vested in and exercised by the executive branch, which shall be headed by the mayor, and administered by the managing director, except as otherwise provided by this chapter. (Emphasis added). Mr. Dru Mamo Kanuha Chair and Presiding Officer Hawai'i County Council Page 2 The Department of the Corporation Counsel is addressed in Chapter 5 of the Charter. In that regard Section 6-5-1 of the Charter states that "[t]here shall be a department of the corporation counsel consisting of the corporation counsel, assistant corporation counsel and the necessary staff." Under Section 6-5-2, the Corporation Counsel is "appointed by the mayor, confirmed by the council and may be removed by the mayor with the approval of the council." Section 6-5-4 provides that the "assistant corporation counsel shall be appointed by the corporation counsel and may be removed by the corporation counsel." Deputy corporation counsel is not specifically mentioned in Chapter 5 of the Charter, except in Section 6-5-6, which states that "the term of office of the corporation counsel, assistant corporation counsel and deputies shall be co-terminous with that of the mayor". The powers and duties of agency heads, such as the Corporation Counsel, are further described in Section 4-5 of the Charter. Pursuant to subsection(a), agency heads have the power to: Appoint and remove a deputy\or assistant and a private secretary and such positions shall be exempt from civil service laws and classifications.' (Emphasis added). Bill No. 254 conflicts with the Charter because it is clear that the Charter gives the power to appoint deputy corporation counsel to the Corporation Counsel without the approval of the Mayor and the Council. It also conflicts with the Charter to the extent that the Charter requires the term of office of all deputy corporation counsel to terminate with the term of office of the Mayor, regardless of Mayor or Council approval. Thus Bill No. 254's attempt to require the approval of the Mayor and the Council for the appointment and discharge of deputy corporation counsel plainly violates the express provisions of the Charter and the Council's involvement in the process would further violate the separation of powers doctrine. The enactment of Bill No. 254 in response to the alleged actions of a certain incoming Corporation Counsel is not proper legislation. Legislation that is passed to address a particular situation could have unintended consequences and results. See, e.g. HRPT Property Trust v. Lingle, 715 F.Supp.2d 1115 (D. Haw. 2010) (statute which was specifically enacted to address certain lease negotiations was deemed to be in violation of contract and equal protection clauses of the United States Constitution). In any event, if the Council deems the incoming Corporation Council unfit to serve, the Council's remedy would be to deny his confirmation and not limit his powers by improper legislation. Pursuant to Section 76-77(3)of the Hawaii Revised Statutes,deputy corporation counsel positions are exempt from civil service law. Mr. Dru Mamo Kanuha Chair and Presiding Officer Hawai'i County Council Page 3 Finally, the effect of Bill No. 254 would be impractical and inappropriate. Section 13-3 of the Charter states that: No appointing authority shall appoint any person to any office or position which is exempt from civil service laws until satisfied by proper investigation that the person to be appointed is fully qualified by experience and ability to perform the duties of that office or position. This Charter provision would require the Mayor and the Council to properly assess and investigate each and every prospective deputy corporation candidate to determine whether the candidate is fully qualified for the position. The incoming Mayor and most of the Council members are not attorneys and they should not be devoting their limited time and resources to undertake such assessments and investigations. Rather, since all of the candidates will be attorneys, the assessments and investigations should be conducted by the Corporation Counsel who is an attorney and who will be supervising and working with the successful candidates. As for the discharge of deputy corporation counsel,the Mayor and the Council shouldnot be making decisions as to whether the discharge of a deputy corporation counsel is proper or appropriate. Employment law is very complex and should be left to the professionals, especially when it involves attorneys. In closing, the Council should be aware that I neither support nor am against the incoming Mayor or Corporation Counsel. My primary purpose in submitting this testimony is to ensure that the Council does not violate the law and act hastily by enacting Bill No. 254. Thank you for the opportunity to comment on Bill No. 254. I unfortunately will not be able to attend the second reading of the bill on November 16, 2016. However, please do not hesitate to contact me should you, your staff or other members of the Council have any questions regarding the above. Very truly yours, Edmund W.K. Haitsuka EWH/ewh