HomeMy WebLinkAboutComm No 0001.07 - CC Response - Authority to Discipline Fire Chief and PersonnelHarry Kim
Mayor
Joseph K. Kamelarnela
Corporation Counsel
Renee N. C. Schoen
Assistant Corporation Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 Aupurii Street, Suite 325 • Hilo, Hawaii 96720 • (808) 961-8251 • Fax (808) 961-8622
Attorney -Client Communication: Confidential And Privileged
Not To Be Publicly Disclosed, Divulged or Disseminated
September 28, 2018
Honorable Douglass Shipman Adams Chairman
and Members of the Hawaii County Charter Commission
County of Hawaii
25 Aupuni Street
Hilo, HI 96720
Re: Request Information on County Charter Article VII, Chapter 4,
Section 7-4.6; Relating to the Powers, Duties and Functions
Of the Fire Commission
Dear Chairman Adams and Commission Members:
Thank you for your correspondence of August 27, 2018, and the opportunity to provide
responses regarding the roles of the Fire Commission and Mayor, if any, in applying
disciplinary action towards the Fire Chief and personnel in the Hawaii Fire Department
(HFD).
Short Answers
1. Section 7-4.6, Hawai'i County Charter (HCC), does not provide that the Fire
Commission has the authority to investigate and discipline the Fire Chief.
2. Under Section 7-4.6, HCC, the Fire Commission does not have the authority to
investigate and apply disciplinary action towards personnel in the HFD.
3. The Mayor does not have the authority to discipline the Fire Chief.
4. The County Charter (Charter) should be amended to provide clarity that the Fire
Commission has the authority to discipline. One suggested amendment to clarify
the Fire Commission's authority in disciplining the Fire Chief is to add a provision
in Section 7-4.3, HCC, that provides:
The fire chief may be disciplined by the fire commission. Any motion to
discipline the fire chief must contain a statement of reasons, and the
commission shall not vote to discipline the fire chief unless the fire chief
Hawaii County is an Equal Opportunity Employer and Provider
Comm. No. 1.7
Honorable Douglass Shipman Adams Chairman
and Members of the Hawaii County Charter Commission
September 28, 2018
Page 2 of 3
has been given an opportunity to respond to the statement of reasons at a
hearing before the commission.
Duties and Responsibilities of the Mayor
The Charter empowers the Managing Director (under the control and direction of the
Mayor) to supervise the administrative functioning of the Fire Department. See
Article VI, Chapter 1, Section 6-1.3, HCC.
"Supervise" means "to direct and inspect the performance of." The American Heritage
Dictionary (Second College Edition). The term "Administrative Functions" means
matters relating to the management of a department, See, e.g., Rules Committee of
Superior Court of Connecticut v. Freedom of Information Com'n, 472 A.2d 9, 192
(1984), including the hiring of personnel, and management and control of property, See,
e.g., State ex rel. Steele v. Board of Ed. of Fairfield, 40 So.2d 689 (1949). The
management of the Fire Department is defined by the powers, duties and functions of
the fire chief, See Section 7-4.4, HCC, with oversight by the Fire Commission but
"neither the commission nor its members shall interfere in any way with the
administrative affairs of the department," see Section 7-4.6, HCC.
However, the Charter does not provide any legal basis for the Mayor to appoint,
discipline or remove the Fire Chief. In addition, under the Charter, the Mayor does not
have the authority to investigate and apply discipline on personnel at the HFD.
Duties and Responsibilities of the Fire Commission
The Charter provides that the Fire Commission has the authority to appoint and remove
the fire chief. Section 7-4.3(a), HCC, provides:
The fire chief shall be appointed by the fire commission and may be removed by
the fire commission at its sole discretion.
But the Charter is silent as to whether the Fire Commission has the authority to
discipline the Fire Chief.
The Charter does not provide the Fire Commission the authority to investigate and
apply disciplinary action upon personnel in the HFD. Although the Fire Commission
cannot impose disciple on a HFD personnel, it can hear citizens' complaints pursuant to
Section 7-4.6(f), HCC, that states that the fire commission shall:
(f)
Hear complaints of citizens concerning the department or its personnel
and, if necessary, make recommendations to the fire chief on appropriate
corrective actions.
Honorable Douglass Shipman Adams Chairman
and Members of the Hawaii County Charter Commission
September 28, 2018
Page 3 of 3
However, state law mandates that matters concerning the discipline of public
employees shall be through the collective bargaining agreements and in compliance
with other relevant state statutes. See Chapters 76 (Civil Service Law), 78 (Public
Service) 89 (Collective Bargaining in Public Employment). State law does not authorize
the Mayor or Fire Commission to investigate and impose discipline on personnel in the
HFD.
Authority to Remove Should include the Authority to Discipline
While the Mayor is the head of the executive branch and has certain supervisory
authority over the Fire Chief, the pertinent Charter provisions places the Fire
Commission between the Fire Chief and the Mayor as to the issue whether the Fire
Commission, rather than Mayor, has the authority to discipline the Fire Chief. The
Mayor has the power, among other things, to appoint members to the Fire Commission
with the confirmation of the County Council. But the Charter gives the Fire Commission
the power to appoint and remove. Within the Fire Commission's power to remove
should be the implied power to suspend and/or otherwise discipline the Fire Chief.
See Kauai Police Com'n ex rel. Iona v. Carvalho, 138 Hawaii 287, 378 P.3d 1003
(2016) (Intermediate Court of Appeals of Hawaii held that the County Charter vested
the police commission, rather than mayor, with authority to suspend or otherwise
discipline the police chief).
Despite our office's legal opinion that the authority to remove should include the
authority to discipline, we would recommend that a provision is added to Section 7-4.3,
HCC, that states:
The fire chief may be disciplined by the fire commission. Any motion to
discipline the fire chief must contain a statement of reasons, and the
commission shall not vote to discipline the fire chief unless the fire chief
has been given an opportunity to respond to the statement of reasons at a
hearing before the commission.
Should you have any further questions about our office, please contact me or Assistant
Corporation Counsel, Renee Schoen.
Respectfully submitted,
JOSEPH K. KAMELAMELA
Corporation Counsel
JKK:clf