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HomeMy WebLinkAboutComm No 0001.08 - CC Response - Serve Legislative and Executive BranchesHarry Kim Mayor Joseph K. Kamelamela Corporation Counsel Renee N. C. Schoen Assistant Corporation Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo, Hawai'i 96720 • (808) 961-8251 • Fax (808) 961-8622 October 1, 2018 Attorney Client Communication: Confidential And Privileged Not To Be Publicly Disclosed, Divulged or Disseminated Honorable Douglass Shipman Adams Chairman and Members of the Hawai'i County Charter Commission County of Hawai'i 25 Aupuni Street Hilo, HI 96720 Dear Chairman Adams and Commission Members: RE: Request Information on County Charter Article VI, Chapter 5, Section 6-5.3; Relating to the Powers, Duties, and Functions of the Corporation Counsel Thank you for your correspondence of August 27, 2018, and the opportunity to provide responses relating to the powers, duties, and functions of the Corporation Counsel in accordance with Section 6-5.3, Hawaii County Charter (HCC). 1. Short Answers 1. There are no inherent conflicts that inhibit the Office of the Corporation Counsel from advising both the Legislative and Executive Branches of County government. 2. In accordance with Section 6.5, HCC, the County Council, by two-thirds vote of its entire membership, may authorize the employment of Special Counsel "for any special matter presenting real necessity for such employment" including to address any alleged conflict of interest. 3. The Charter provisions properly address potential conflict of interest matters arising out of the duty of the Corporation Counsel to 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." COMM. NO. 1.8 Hawaii County is an Equal Opportunity Employer and Provider Honorable Douglass Shipman Adams Chairman and Members of the Hawai'i County Charter Commission October 1, 2018 Page 2 of 5 11. Office of the Corporation Counsel A. Chief Legal Advisor and Legal Representative For almost 50 years, the Corporation Counsel has been the Chief legal advisor and legal representative of the Council, County and its officers and employees. Section 6 of the 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. The corporation counsel shall be an attorney licensed to practice and in good standing before the Supreme Court of the State of Hawaii. Section 6-5.3 of the Charter further states: 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. The language of the current Charter provision, that explicitly states that the Corporation Counsel also advise and represent "all county agencies, the council and all officers and employees," is similar to the language in the Hawai'i Revised Statutes ("HRS"), that sets for the duties and responsibilities of the Attorney General of the State of Hawaii. Under Section 26-7, HRS, the Attorney General administers and renders "state legal services, including furnishing of written opinions to the governor, legislature, and such state departments and officers as the governor may direct," and "represent[s] the State in all civil actions in which the State is a party." From a governmental organizational perspective, the public interest would be best served by determining the lawfulness of a particular course of action taken by the officers and employees of the governmental entity. There is also a public benefit in having a legal department, representing the interest of the governmental entity, which would include its different branches, departments and officers and employees, provide one legal opinion with its varying courses of action, if any. The best way to protect the interest of the public would be to have one legal department provide its legal opinion based on legal research, analysis and proposed courses of actions. Honorable Douglass Shipman Adams Chairman and Members of the Hawai'i County Charter Commission October 1, 2018 Page 3 of 5 B. Creation of the Powers, Duties, and Functions of the Corporation Counsel In 1968 and 1969, the County's Charter Commission ("Charter Commission"), studied and discussed the best form of governance for the County while considering the duties and responsibilities of the Corporation Counsel. The Charter Commission determined that the work of the Corporation Counsel is administrative in nature. See Charter Commission Minutes of the February 22, 1969, meeting at 32-34. And its members recognized that there is a "complicated and complex system of law" that would be handled and managed by the Corporation Counsel. Id. The Charter Commission further emphasized that the appointment by the Mayor and confirmation by the Council would provide adequate governmental checks and balances, since the Corporation Counsel is their legal advisor and legal representative as well. Id.; Charter Commission Minutes of the March 3, 1968 meeting and Charter Commission Minutes of the January 3, 1968, meeting at 19-20. C. Corporation Counsel's General Duties as a Governmental Lawyer In general, "a lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents." Rule 1.13(a), Hawai'i Rules of Professional Conduct ("HRPC"). However, when the client is a governmental organization, as stated in Rule 1.13, comment [7], HRPC: [D]efining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult Although in some circumstances the client may be a specific agency, it is generally the government as a whole. A lawyer representing an organization may also represent any of its officers or other constituents, subject, however to Rule 1.7, HRPC (Conflict of Interest: General rule), pertaining to conflict of interest. Rule 1.13(e), HRPC. Rule 1.13(f), HRPC, states, in part: If a government lawyer knows that an officer, employee or other person associated with the government is engaged in action, intends to act or refuses to act in a matter related to the lawyer's representation that is a violation of a legal obligation to the government or the public, or a violation of law which reasonably might be imputed to the government, the lawyer shall proceed as is reasonably necessary in the best interest of the government or the public. (Emphasis added.) Honorable Douglass Shipman Adams Chairman and Members of the Hawai'i County Charter Commission October 1, 2018 Page 4 of 5 The current Charter provision recognizes that the Corporation Counsel owes duties to the County government as a whole when it states: "The corporation counsel shall be the chief legal advisor and legal representatives of all county agencies, the council and all officers and employees in matter related to their official powers and duties." D. Corporation Counsel Provides Only One Legal Opinion In accordance with the Charter, it is expected that the Corporation Counsel will not support anything that is, or has the appearance of being, illegal, unethical or unsafe. Just as important, any legal opinion by the Corporation Counsel will be consistent, and will not change because of whom, Council or Mayor, requests a legal opinion. On any legal matter, the Corporation Counsel provides only one and the same legal opinion to all County employees and officials. So, there is no inherent conflict of interest that inhibit the Office of the Corporation Counsel from advising both the Legislative and Executive Branches of County government. III. Special Counsel Charter Provision Section 6-5.5 of the HCC 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 provision, with few limited exceptions, the Council approves the hiring of Special Counsel by the required two-thirds vote of the entire membership of Council. (Emphasis added.) See also Maui County Council v. Thompson, 84 Hawai'i 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). The Council must determine whether (1) there is a special matter and (2) a real necessity of employment of Special Counsel. The County Council can approve Special Counsel by a two -third 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. Moreover, the County Council can approve by a two -third vote the hiring of Special Counsel where there is a perceived conflict of interest where an opinion from the Corporation Counsel may be contrary to the opinion of the County Council. Charter Commission Minutes of the April 13, 1968 Meeting, at 9. Honorable Douglass Shipman Adams Chairman and Members of the Hawai'i County Charter Commission October 1, 2018 Page 5 of 5 During the past eighteen (18) years, the County Council, as a whole, has twice requested the authorization to retain special counsel because of an opinion that was contrary to the opinions of members of the of the County Counsel. In one request in 2011, 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 two -third votes (that is, 6 votes). In 2017, the County Council, by a unanimous vote, approved a resolution which authorized the retention of special counsel because the council members disagreed with the Mayor's decision to terminate the compost service agreement with Hawaiian Earth Recycling ("HER"). However, the County Council never hired special counsel because it and the Mayor shared the following common interests: HER to continue providing enhanced mulching; the compost facility was not to be constructed at the Hilo landfill site; the compost facility was a necessary worthwhile project; and the service agreement was to be revised and amended. On September 19, 2018, the County and HER executed the final revised and amended service agreement. Given the above -stated background information, the Special Counsel provision in Section 6-5.6 of the Charter has mitigated situations of potential conflicts. Should you have any further questions about our office, please contact me or Assistant Corporation Counsel, Renee Schoen. Respectfully submitted, Digitally signed by Cathy Ferreira Date: 2018.10.01 10:48:06 -10'00' JOSEPH K. KAMELAMELA Corporation Counsel JKK:clf