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HomeMy WebLinkAboutCOM 1142.006 2014-2016 P/CDUM CL L 0,C1MN1. 1142 -17 November 14, 2016 Chair Dru Mamo Kanuha and Council Members of the tie '— Council Council of the County of Hawaii 25 Aupuni Street Hilo, Hawai'i 96720 Dear Chair Kanuha and Council Members of the Council of the County of Hawaii: Re: Bill 254 Bill 254 seeks to require approval by the County Council ("Council") of any "appointment or discharge" of a Deputy Corporation Counsel ("Deputy"). See Section 2(a) of Bill 254. Once a Corporation Counsel is appointed and approved by the Council,that Deputy shall remain in office until he or she resigns,retires, or is discharged. See Section 2(b) of Bill 254. If approved by the Council and signed by the Mayor, Bill 254 will violate Sections 4-5(a) and (b),6-5.1 and 6-5.6 of the Hawaii County Charter ("Charter"). Appointment of a Deputy There are no provisions in the Charter authorizing the Council (the Legislative Branch) to approve the appointment and removal of a Deputy in the Department of the Corporation Counsel. Instead,Article IV of the Charter sets forth the general provisions related to the executive branch and empowers its administrative heads to appoint and remove a deputy or assistant,a private secretary and their necessary staff. Sections 4-5(a) and (b) provide as follows: Subject to the provisions of this charter,the administrative heads of each agency or executive agency of the county shall have the power to: (a) Appoint and remove a deputy or assistant and a private secretary and such positions shall be exempt from civil service laws and classifications. No such appointment shall be made unless the positions have been created and appropriations therefore have been made by the council. (b) Appoint the necessary staff for which appropriations have been made by the council. Furthermore,Section 6-5.1,states that"[t]here shall be the department of the corporation counsel consisting of the corporation counsel, assistant corporation counsel and the necessary staff." So,the Charter states that the department head appoints the necessary staff for which appropriations have been made by the Council,and the Office of the Corporation Counsel consists also of the Deputies. Therefore,in the case there was Comm: No. L4a,lv Ref. Toa COUP r„b.- NOV?6201 any doubt,the Deputies are"staff'and must be appointed by the Corporation Counsel. Despite the clear language of Sections 4-5(a) and (b),and 6-5.1, Bill 254 removes from the executive branch,i.e.,Corporation Counsel,the sole discretion to appoint necessary Deputies,and instead attempts to give the Council joint authority over the appointment of Deputies. Accordingly, Bill 254 is contrary to the Charter. Term of Appointment Neither is there a provision in the Charter that authorizes the Council to allow a Deputy to remain in office until he or she resigns,retires or is discharged with approval by the Council. The Charter also sets forth the term of appointment for all attorneys within the Office of the Corporation Counsel as being co-terminous with the Mayor. Section 6- 5.6 provides as follows: Notwithstanding Section 13-8,the term of the corporation counsel,assistant corporation counsel and deputies shall be co-terminous with that of the mayor; provided that where a successor has not been appointed and confirmed,the corporation counsel shall continue in office pending such appointment and confirmation,but in no event shall the corporation counsel continue in office beyond three months,whether acting or otherwise. (emphasis added). Section 6-5.6 of the Charter specifically directs that the term of office of a Deputy is co-terminous,that is,having the same duration of time,with the current Mayor. Bill 254 is contrary to the Charter because it conflicts with the specific term of appointment for Deputies established by the Charter. Separation of Powers Bill 254 also violates the doctrine of separation of powers which states that the three branches of government,legislative,judicial,and executive,are distinct and separate from each other and that each branch must not encroach upon or exercise the powers of another branch. Springer v. Government of the Philippine Islands, 277 U.S. 189 (1927). This principle "is a general rule inherent in the American constitutional system,that,unless otherwise expressly provided or incidental to the powers conferred,"each branch cannot exercise or usurp the other branches' powers or functions. 277 U.S. 201. Embodied in the Charter is the principle of separation of powers. Legislative powers are vested in the County Council. See Article III,Section 3-1. The Council's primary function is legislation and public policy formulation. Id. The executive power is vested in and exercised by the executive branch,which is headed by the 2 Mayor. See Article !V, Section 4-1. Any powers and responsibilities reserved to the executive branch are therefore outside the scope of the legislative branch. The power and responsibility to appoint and discharge his or her staff is reserved to the Corporation Counsel via Sections 4-5(a) and (b), and 6-5.1 of the Charter. Therefore,allowing the Council to approve the appointment or discharge of the Deputies is outside the scope of its authority and in violation of the doctrine of separation of powers. Practical Need for Corporation Counsel to Appoint and Discharge Requiring Council approval will unnecessarily delay hiring and discharge of Deputies while politicizing the Office of the Corporation Council. And of a sensitive concern,it will also make personnel decisions,which should be private,very public and resulting in either embarrassment to the Deputies or cause the Corporation Counsel to keep Deputies whom are not able to satisfactorily perform their duties as attorneys in an ethical and professional manner. Thank you for your consideration of the contents in this letter as you deliberate on whether to approve Bill 254. Respectfully Submitted, Joseph K. Kamelamela 41-liwipolena Road Hilo, Hawai'i 96720 3