From the Desk of Lincoln Ashida Archives

COUNTY OF HAWAI‘I
OFFICE OF THE CORPORATION COUNSEL

From the Desk of Lincoln Ashida

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Graphic of ulu (Hawaiian breadfruit) print

The County’s lawsuit against UniDev is returned to State court. On December 24, 2009, the United States Federal District Court for the District of Hawai‘i entered an order recommending the County of Hawai‘i’s lawsuit filed against the developer of the Waikoloa Housing Project be returned (remanded) to the state court. The County had made this request of the federal court after the developer, UniDev, had removed (transferred) the case to federal court. Defendants in lawsuits often try to “remove” the case from state to federal court, since they attempt to avoid the jurisdiction and rules of the state court, which they generally believe are not favorable to them.

Earlier this year on July 1, 2009, the County filed this lawsuit against UniDev, alleging UniDev made false claims for payment against the County, intentionally made numerous false representations and provided false documentation that induced the County to provide funding for the workforce housing, and failed to obtain prior approval before entering into various consultant contracts.

The federal court also recommended the County’s request for attorney’s fees and costs in bringing this action to remand also be granted, finding that UniDev’s arguments for removal were “objectively unreasonable.”

The County of Hawai‘i is being represented by Assistant Corporation Counsel Katherine A. Garson and Deputy Corporation Counsel Laureen Martin. Both attorneys are experienced litigators and members of our Fraud Division.

If you have any questions or comments regarding the above, please contact me at Lashida@co.hawaii.hi.us, or via telephone at (808) 961-8304, extension 118. This message was posted on December 24, 2009, at 1:30 p.m.

What really happened with the West Hawai‘i Today’s lawsuit against the Hawai‘i County Council. On October 13, 2009 the West Hawai‘i Today and County entered into a settlement agreement disposing of all allegations and claims made by the newspaper against the Hawai‘i County Council. The WHT earlier sued the Council, claiming the Council had violated Hawai‘i’s “Sunshine Law” since more than four members of the Council discussed the possible reorganization of leadership in June of 2009 outside of an officially noticed meeting. The WHT also claimed more than two Council members participated in an April 2009 trip to Oahu to lobby State legislators; the WHT alleges that during this trip “official board business” was discussed and agreements were made to submit and pass legislation once the councilors returned to the Big Island.

In my previous service to our community as a prosecutor, I was involved in many cases followed and reported by our local media. As previously expressed in past website messages, no doubt it is difficult for reporters (through no fault of their own) with limited legal background and limited column space to sometimes accurately and completely report on legal events. Public misinformation is further proliferated through thoughtless and inaccurate public commentary found throughout the internet. We noted at least one blogger was someone who held themselves out as an attorney and was offering “commentary.” As all competent trial attorneys know, actual knowledge of the crucial details of a case is necessary in order for credible and accurate commentary to be offered. If not, misrepresentations and misinformation grow legs and begin to walk around as facts. This case was no different.

The original allegation

On June 18, 2009, the attorney for the West Hawai‘i Today filed a formal complaint with the State of Hawai‘i Office of Information Practices, alleging that the Sunshine Law had been violated. In its “statement of facts,” the newspaper stated as follows:

During the discussions, several council members referred to a meeting between Council Chair J Yoshimoto, County Clerk Kenneth Goodenow and Pete Hoffmann, in which Yoshimoto apparently told Hoffmann he “had five votes to make the measures pass” even without Hoffmann’s support. Hoffmann provided an account of this conversation. That conversation took place Wednesday, June 10.

This complaint to OIP was premised on the erroneous belief there was discussion among the “five majority members.” The following heated exchange occurred at the June 16, 2009 meeting of the Council:

MS. FORD: Excuse me, am I going to be allowed to comment without interruption?

MR. GOODENOW: The Rules say that you should speak on the merits or demerits of the bill –

MS. FORD: I am.

MR. GOODENOW: I think we are straying from –

MS. FORD: I don’t think we are because we have a Sunshine Law violation here and we have some untruths being spoken to different Council Members in order to round up the votes. And now I find out that five of you have agreed to these resolutions before we even got our boards or, at least, before I got my board.

The allegation Mr. Yoshimoto spoke with at least four other Council members was further proliferated in WHT’s court documents. This was stated and repeated in court documents filed on July 10, 2009, July 15, 2009, and July 16, 2009.

The unfortunate injustice is this misinformation was not stopped when it should have been. As the WHT loaded up to attack the Council Chair for his apparent “admission” he spoke with four other Council members, the County was placed in the position of having to defend individual Council members from threats made by the WHT that they would be seeking a criminal prosecution. On September 2, 2009, in notifying the County the WHT intended to amend their complaint to include the allegations involving the Oahu trip, their attorney notified me via email as follows:

Based on the newly discovered information I will be making a referral of the matter to the Attorney General and Prosecuting Attorney. I will copy you on those referrals as soon as they are completed.

Hoffmann NEVER said Yoshimoto spoke with four others

In defending against the WHT’s request for a temporary restraining order, the County submitted to the Court an affidavit from Mr. Yoshimoto stating he did not “tell, suggest, imply, or infer to Mr. Hoffmann that (he) had five votes to pass the subject reorganization resolutions.” There was some criticism from the public as well as two Council members who at the time questioned why an affidavit from Mr. Hoffmann was not included. This discussion with the Council was occurring in open session, and it would have been legally and ethically improper for me to respond publicly.

Here is a copy of Mr. Hoffmann’s affidavit. As you can see, Mr. Hoffmann makes clear Mr. Yoshimoto never said he spoke with any other Council member other than Dennis Onishi and Guy Enriques. If this statement of “having five votes” was made (either by Mr. Yoshimoto or Mr. Hoffmann), it was a simple recognition that Mr. Yoshimoto did not need to speak with Council Members Donald Ikeda and Emily Nae`ole, as it was likely they would support the proposed reorganization.

Thus the WHT’s case with respect to allegations Mr. Yoshimoto “spoke with four others” had no factual basis. What was left was their allegation the total number of Council members involved in the discussion (whether for or against the reorganization) exceeded four. This meant at least one of the “minority members” of the Council would have to be part of the “serial communication” in order for their lawsuit to stick.

After it was revealed what Mr. Hoffmann would say if called to testify, the WHT amended their lawsuit a second time to include the allegations that the “majority members” violated the Sunshine Law while on their trip to the State Legislature.

Why were private attorneys necessary for some Council members?

When the WHT attorney threatened in writing to make a “referral of the matter to the Attorney General and the Prosecuting Attorney,” our office was ethically obliged to consult with another County client, the Office of the Prosecuting Attorney, to determine if they would waive any conflict of interest if we continued to represent individual Council members with respect to issues related to their possible criminal misconduct. Although the likelihood of a criminal prosecution under these facts was remote at best, we followed our responsibility under the Hawai‘i Rules of Professional Conduct. After consultation, the Prosecuting Attorney administration refused to waive conflict. What this meant was the Corporation Counsel would not be allowed to represent individual Council members with respect to their potential criminal liability exposure.

Some will say in hindsight this was a waste of time and money. The County will be required to pay the legal fees and costs of the private attorneys hired. However this action was necessitated by threats made by the WHT (it is our understanding such a referral was never made). The threat was made before the commencement of the evidentiary hearing in Court where the WHT had subpoenaed all nine Council members. This is why it was necessary to have private counsel on board for individual Council members, and not “wait to see what happens.” On September 10, 2009, we notified each Council member in writing as to the WHT’s threats and the Prosecuting Attorney’s decision to not waive any conflict of interest.

So was there a Sunshine Law violation prior to the first reorganization attempt?

The WHT claims victory in their paper and boasts of the “landmark ruling” since the Court issued a temporary restraining order. No doubt this order motivated the Council to undo their reorganization (and provides the basis for the payment of a portion of the WHT attorney fees); the County does not dispute that. However the simple fact is it was an order of limited duration (this is why it is called “temporary” and why an evidentiary hearing on the preliminary and permanent injunction is required by Court rule). Further, the order never came into effect so as to “block” any action of the Council, since the Council undid their reorganization prior to the effective date of the order. The hearing on the preliminary injunction (which would have led to a definitive judicial finding of whether the Council violated the Sunshine Law) was halted because of this settlement.

The WHT initiated settlement negotiations in this case, not the County. Their initial offer of October 1, 2009 required the County to admit there was a Sunshine Law violation in the June 16 reorganization effort, and pay all attorney fees and costs. This was rejected by the County on October 9, 2009.

The County’s offer of settlement dated October 9, 2009 required a complete dismissal of all claims with prejudice, and the payment of only a portion of the WHT’s attorney fees. This was accepted by the WHT on October 12, 2009.

So will we ever know if there was a Sunshine Law violation? OIP continues their investigation. It is very possible they may find a Sunshine Law violation occurred, but as we submitted from the inception of this case, any violation was inadvertent. Then again, they may find no violation, since there is no evidence at any one time more than four members of the Council who discussed the reorganization were either “for” or “against” the measure. There is a reason their opinion is taking so long. It is an unsettled area of the law and no OIP or Attorney General legal opinions exist. It is a “case of first impression” for the Sunshine Law.

In any event, the setting aside of the action taken, or redoing the action (as the Council had done in this case) is the only practical “remedy” found in Hawai‘i’s Sunshine Law. This was done early on by the Council (before the TRO came into effect); this is the reason the Court granted the County’s motion to dismiss a portion of the WHT lawsuit as moot. There was no other “pound of flesh” the WHT could extract from the Council majority.

When interviewed by a WHT reporter on October 13, 2009, I asked the County be given a fair chance to express its reaction to the settlement of this lawsuit. I indicated a balanced playing field was necessary for the public benefit, and expressed my reservations since the recent article on the Brenda Ford lawsuit written by a Hawai‘i Tribune-Herald reporter appeared in the WHT, but with all of my comments eliminated.

What was not reported in the WHT article about the WHT case was our observation this lawsuit revealed this was not an “East Hawai‘i versus West Hawai‘i” or “Majority versus Minority” issue. In order for a Sunshine Law violation to stick, it was clear members from both East and West Hawai‘i, as well as from the “majority” and “minority” factions of the Council were necessarily involved in discussions. In a time of public divisiveness this was a very important development. In my recent observations and discussions with the Council, I find their “on camera” and “in the heat of the meeting” actions somewhat more theater than malice towards one another. Their non-meeting interaction with one another differs dramatically and is professional and warm.

I was also asked by the WHT reporter what I believed the Council learned from this experience. I always look for the positive in things; even difficult and trying circumstances present learning opportunities for the future. Again what was not reported was my observation that the litigation process, although at times difficult for many members, had the product of galvanizing the entire Council. Whether East or West or majority or minority, the Council understands its successes in the future will be the direct result of their willingness to cordially and professionally interact with one another, whether they agree or disagree on contentious County issues. This by far is the best development in this case. A recent WHT editorial talks about “winning” or “losing” the lawsuit. This bravado is not important for the County. What is important is the recognition the only party we should fight for is the community we all serve. To this end this settlement that brings an end to the litigation and serves as the catalyst for healthier Council relations in the future will indeed serve the people.

Money paid out and collected by the County in 2008-2009. The Office of the Corporation Counsel was asked to provide information about taxpayer money paid out in litigation cases in fiscal year 2008-2009. We were also asked for information concerning efforts made over the past year in the collection of delinquent accounts for water, solid waste, and other service fees due the County. This information will be included as part of the County’s annual report required by our laws.

The office settled six major lawsuits during the fiscal year for a total of $3,595,500. The potential monetary liability exposure for these cases was $8,302,000. The difference between the potential exposure and actual settlement amount was +$4,706,500 in favor of the County. Of the $3,595,500 in settlement for the fiscal year, $3.4 of it is attributable to one case.

In the aforementioned case, a Department of Environmental Management tractor trailer was traveling northbound on Queen Ka‘ahumanu Highway when a small pickup truck slowed to turn into an access road to Kiholo Beach Park. The County driver was unable to slow and stop, striking the rear of the pickup truck causing it to careen across the highway where it impacted with a Ford F-150. The driver of the Ford F-150 had medical expenses totalling approximately $368,000.00, but will incur potential future medical costs. He has since returned to work in almost a full capacity but has significant loss of function of his legs and foot. The $3.4 million will be paid over time with the last installment due in 2012.

Two other major cases were dismissed by court order (one case remains on appeal), and three cases were partially dismissed.

There were 65 claims for damages against the County investigated. The total amount paid for all valid claims was $54,974.

What is the County doing to reduce its liability exposure in future years? The brutal reality is any government body offering a wide range of services to the public will be exposed to a certain degree of liability. With over 2,300 employees and a number of direct services such as police, fire, solid waste, water, recreation and sanitation offered to the public, there will be times when injury occurs and the County will need to be held financially responsible. As illustrated above, the $3.5 million incurred during the past fiscal year involved just six cases, with one case accounting for $3.4 million of the total. Suffice it to say these were major cases involving extraordinary factual circumstances and thankfully represent the exception and not the norm. Mitigating future liability is addressed through the County’s Risk Management Division responsible for assessing what happened, how it can be avoided in the future, and what steps the County can take to address the risk factors. To this end, the County welcomes input and recommendations from the public we serve whenever there are any concerns. Please contact our office and we will make sure the Risk Management Division is notified.

With respect to collections on delinquent accounts owed the County, the total collected for the fiscal year totaled $4,317,833. This represents actual cash in hand, and not promissory notes or other promises to pay in the future. Special recognition goes to Deputy Corporation Counsel Molly Lugo who heads our collection unit and effort while balancing the rest of her legal work and caseload.

Council Sunshine Law Lawsuit: Not a legal conflict, but a political conflict. On July 23, 2009, Third Circuit Court Administrative Judge Ron Ibarra ruled on the West Hawai‘i Today’s motion for a temporary restraining order. The WHT originally sued the Hawai‘i County Council, alleging they violated the State Sunshine Law (open meetings law) and sought to have the reorganization of the Council’s leadership voided, as well as all official action taken by the Council since the reorganization. After the lawsuit was filed, the WHT filed an additional request with the Court, asking that an order be immediately issued preventing the Council from transacting any official business.

Judge Ibarra denied the WHT’s request for the immediate issuance of an injunction. Instead, the Court ordered an injunction will issue at 6:00 p.m. on August 5, 2009. Why this is significant is because the Council has scheduled a meeting the day before (August 4, 2009) and plans to revert back to the leadership lineup that was in place prior to June 16, 2009. For all practical purposes, so long as the Council follows through on what was unanimously decided at its most recent Council meeting on July 22, 2009, Judge Ibarra’s order will be effectively moot, and there will be no need for the injunction.

During the briefing with the Council on July 22, 2009, a question was posed by two Council members why certain legal action was taken by our office in the defense of the Council in this lawsuit. A recent newspaper article written by a WHT reporter (the same WHT that has sued the County) questioned whether our office had a legal conflict of interest in the representation of the many parties involved in this lawsuit. The real question and issue should be focused on the Council members involved, and whether they have a political conflict that prevents them from fulfilling their fiduciary responsibility to the County they serve.

Copied below are our answers (in blue) to questions posed by the WHT reporter, many of which were omitted from their newspaper article:

My questions are of the "serve many masters" variety. How does a Corporation Counsel in general (and I guess you in particular) handle the demands of differing clients?

These demands can be significant. The key is identifying the true “client.” For example in the case of the Council, it is the Council as a whole that is the “organizational client” whose interest we are obligated to protect. Individual members and their personal interests are not clients of the Corporation Counsel. Of course Council members take action (or inaction) on behalf of the organizational client we represent, but so long as they are not named as defendants in their personal capacity, there should be no conflict in our representing the organization, even if they have different views. This is where it can be confusing for Council members, and I understand that.

In the recent Council reorganization discussion, the first thing we asked all Council members is to spend some time thinking whether they have a “personal view” about the reorganization, or a “personal interest.” Anyone can have a view, and that doesn’t place you in conflict. However if you have a personal interest that differs from the organizational client, the Council member may have a problem.

When the WHT filed their motion for the TRO, it was clear the interest of the organizational client Council was to oppose any order that would prohibit it from unduly performing their official duties. No Council member disagreed with that. The WHT targeted Chairman J Yoshimoto asserting he had willfully violated the Sunshine Law. Had the Court found there had been a willful violation, it would be more likely to immediately grant the TRO, instead of delaying the implementation of the order as the Court eventually did.

In Court, we presented evidence on behalf of the Council that Mr. Yoshimoto disputed any allegation he had actually spoke with more than a quorum of members prior to his contacting Mr. Hoffmann. The statement of Mr. Hoffmann that contradicted Mr. Yoshimoto was already part of the record and the County stipulated (agreed) the Court could consider it. This raised questions by Mr. Hoffmann and Mr. Yagong. After discussing this with Mr. Hoffmann, he understood the legal need for the Council to take this position, and appreciates this had nothing to do with any assertion he was not telling the truth. In fact, in discussing this with Mr. Hoffmann, he acknowledged that Mr. Yoshimoto never said he spoke with Mr. Ikeda and Ms. Nae`ole. It was not unreasonable to conclude that even if that statement of “having five votes” was made, Mr. Yoshimoto correctly concluded Mr. Ikeda and Ms. Nae`ole would support him, as they have historically done in the past. I urge you to confirm this with Mr. Hoffmann; there appears to be some severe public confusion and misunderstanding that Mr. Hoffmann reported that Mr. Yoshimoto in fact said he actually spoke to Mr. Ikeda and Ms. Nae`ole. This is simply not true.

In the case of Mr. Yagong, he questioned whether there was preferential treatment for Mr. Yoshimoto. This raises more concern regarding a conflict of interest on his part. The question each Council member needs to ask is “What outcome do I want to see in this lawsuit?” If the answer is a finding of a willful violation against any of its members, then there is a problem. This is because the actions of any member will be construed as the actions of the Council, since all nine members were sued in their official capacities. If any Council member is in a position where they are advocating for a result (or otherwise has a personal interest in the result) inconsistent with that of the Council as a whole, they need to carefully consider whether they are abiding by their fiduciary responsibility as a County officer. I am not suggesting Mr. Yagong or any member is in conflict; but this is why we emphatically asked each member to take some time to think about it, and even discuss it with a private attorney if they wanted to.

So the short answer is there is no short answer. Handling different “demands” of County clients can be difficult, but our Rules of Professional Conduct (Hawai‘i Supreme Court rules) guide us.

Would you say your 1st responsibility is to:
1) the public 2) the administration that hires you 3) the council 4) the council chair 5) the council majority?

Our first responsibility is to the public. No question about that. In fact the Rules of Professional Responsibility provide there is no attorney-client privilege with respect to government waste or abuse.

However what is not clearly understood by many is although we are public servants, the public at large is not our client. The brutal reality is the judicial system in our country is an adversarial one with both sides of any conflict having the right to zealous legal representation. Courts are called upon to oversee these disputes, and require both sides follow rules of practice and procedure that seek to discover the truth. The Council’s reorganization best exemplifies this. Those that are critical of the Council’s decision to reorganize also criticize our office for defending the actions of the majority vote of the Council. They incorrectly conclude that since we are public servants, we somehow have a duty to advocate the personal views of some members of the public. I understand why they feel this way, and will never criticize anyone for having views. But the reality is our job is to represent the majority vote (not members) of legally defensible Council action. During the previous Council term, when other members of our Council comprised the majority, similarly our role was to advocate and defend the legally defensible actions taken by the majority vote of the Council. This is something that happens all the time, I don’t recall ever hearing any criticism of the legal services provided by our office. I suppose it is getting much more attention today since the conflicts between some Council members concerning the reorganization appear to be more political than legal.

The other entities you mention (administration, Council, Council chair, Council majority) are all part of the County of Hawai‘i. This is the client (County of Hawai‘i) and our responsibility is to support the policies established by both the administration and Council, so long as they are legally defensible (note here these policies may not be “popular” with the public, but we do not have the prerogative to pick and choose which policies to legally protect).

The Council will often feel their interests are “secondary” to the administration, since the Corporation Counsel is appointed by the Mayor. This is completely understandable. The only way we can hope to show the Council’s legal interests are equally as important is through our actions.

Within the Council, we stress that it is the majority vote that we seek to protect (so long as it is legally defensible) and not the majority members. Of course much of the legislation that passes is done by whoever is in the majority, so it will naturally appear it is their “interest” that is being advocated vis-`-vis the other members.

The recent Council reorganization is the best example of this. When the reorganization resolution passed, there did appear to be inadvertent violations of the Sunshine Law. We advised (and the Council concurred) to put all contacts Council members had with one another on the record in order to mitigate any harm to the public. The Council was advised to move forward; we recognized had there been no lawsuit within 90 days of any opinion letter being filed by OIP, the actions of the Council would be protected from legal challenge.

The WHT lawsuit changed that. In hindsight, it did the Council a big favor. It caused this issue to come to a head sooner than later, and this will help the Council get back on track and return to doing the people’s business. There will be no “90 days of uncertainty,” wondering if there will be a lawsuit challenging the actions taken by the reorganized Council. Any Council member can have a “personal view” that the reorganization was invalid or should not have been done. No problem there. The problem arises where a Council member has a “personal interest” contrary to the majority vote of the Council. In the case of Mr. Hoffmann, there is no problem. He may be called as a witness by the WHT in this case, and that is alright. He does not have a personal interest in the outcome of this lawsuit, and irrespective of his personal views, he does not actively advocate a position contrary to the position taken by the County in the lawsuit.

How do you prioritize that list?

There should be no “priority” between the administration and Council; their interests should be consistent—doing what is best for the people of our County. In those instances where there may be a conflict with respect to the manner in which to achieve this objective, we do our best to avoid that conflict from materializing. Much of my time is spent mediating as much as lawyering. However in those cases where the conflict exists, special counsel may be employed. Trying to erect a “screening” procedure in our office (i.e., having two different attorneys assigned with one representing each side of the dispute), although well-intended, may not be practically possible and admittedly does little to ease the concerns of both clients.

do you also represent the clerk?

Yes, for his/her actions taken in the course and scope of his/her duties.

In this particular lawsuit, you are faced with 2 coucilmembers who have different recollections of a meeting. the third party to the conversation, the clerk, is likely to be called as a witness by one side or the other. can you represent all three? will someone in you office handle some of the burden? or does outside counsel play a part? Will you be recommending Mr Hoffmann in particular have a different attorney? (he said he is expecting t be talking with you today)

I think I covered this earlier. The two different recollections is not legally significant for purposes of legal representation, and that does not place either Mr. Yoshimoto or Mr. Hoffmann in conflict. Look at it this way: When I was a prosecutor, there were times in a case where a police officer may have had testimony or evidence that conflicted with the prosecution’s theory of the case. The law calls this “exculpatory evidence.” Often it will be the defense that would call these police officers as witnesses. No problem. And it is no problem since the police officer has no personal interest in the outcome of the case (in fact presumably his personal view and interest is that the prosecution should prevail). The last trials I did as a prosecutor were the Pauline/Schweitzer cases involving the kidnap, rape and murder of Dana Ireland. In those cases, the defense called many County police personnel as witnesses since they were alleging the DNA did not match the perpetrators and exonerated their clients. Even if the DNA evidence (lack of sufficient sample for a match) conflicted with the wealth of other probative evidence the prosecution had, it didn’t place the County police officers in conflict such that independent counsel was necessary for them, or anything close to that. Turning back to the Council’s reorganization scenario, this is why Council members have been asked and reminded to remember it is the Council as an organization that is the client we represent, and not the personal interests of its individual members.

would you agree with Mr. Hoffmann that this is an area the charter Commission might look at when it offers amendments to the charter?

Absolutely. It is something that should constantly be looked at. But as long as we are talking about this, I think everyone should be aware of some of the unintended consequences. These include (1) lengthy and expensive litigation (when multiple lawyers are involved, invariably there will be legal conflict that may be drawn out over years), and (2) the mistake some Council officers and employees may make in believing they have a “personal”’ attorney.

But beyond that, I think it is important the Charter Commission take a close look at this issue and hear as much input as possible. I think they could benefit from hearing from other jurisdictions around our State and country that deal with these potential conflicts from time to time. Former County Clerk (and present Charter Commission member and UH Law Professor) Casey Jarman had an excellent suggestion concerning some changes to the Charter involving Corporation Counsel. Admittedly at first I told her I thought the attendant financial costs were too great, but I am reconsidering and thinking her suggestions may be some the Commission should consider. Either way, what is most important is public awareness and information. We need to do a better job with that and let the public know why legal decisions are made.

anything else you want to add is appreciated.

If you have any questions or comments regarding the above, please contact me at Lashida@co.hawaii.hi.us, or via telephone at (808) 961-8304, extension 118. This message was posted on

July 27, 2009, at 7:45 a.m.

The West Hawai‘i Today’s lawsuit against the Hawai‘i County Council. On July 10, 2009, the West Hawai‘i Today newspaper filed suit against the Hawai‘i County Council and all nine Council members in their official capacity, alleging a violation of Hawai‘i’s “Sunshine Law.” The lawsuit is based on the Council’s reorganization of some leadership positions at their June 16, 2009 meeting in Kona. The lawsuit alleges some Council members engaged in a series of “serial communications” that circumvented the State’s Sunshine Law, and had the net effect of allowing the Council members to discuss the reorganization outside of a properly noticed meeting.

The State of Hawai‘i’s Sunshine Law is commonly referred to as the “open meetings law;” it requires all boards under its jurisdiction to transact official business at a properly noticed meeting. The law prohibits informal meetings to discuss official business between more than two board members.

One exception to the general “two member” rule is the discussion of the board’s leadership. For nine-member boards like our Council, the law permits up to four members to privately discuss leadership “without limitation or subsequent reporting.” This means unlike the permitted “two member” rule, the Sunshine Law allows up to four Council members to discuss how they will vote on a particular measure concerning the future leadership of their board.

The West Hawai‘i Today’s lawsuit seeks three basic things:

1. A declaration from the Court that there was a Sunshine Law violation;

2. A declaration from the Court that the reorganization was invalid; and

3. Reasonable attorney’s fees and costs.

Our office also confirmed with the West Hawai‘i Today’s attorney, Robert Kim, Esq., that the newspaper also seeks to have all official actions taken by the reorganized Council and committees declared invalid. We thank Mr. Kim for his candor and providing the Council a “heads up” on the remedies their lawsuit seeks. In my many dealings with Mr. Kim, he has consistently demonstrated he is the finest example of a lawyer gentleman and his civility is much appreciated.

At the request of the Office of Information Practices (OIP) and with the consent of the Hawai‘i County Council, the Corporation Counsel responded to three complaints filed with OIP concerning the reorganization of the leadership of the Council and its standing committees. You may read the full text of the County’s email response here. At the request of OIP, since time was of the essence, they sought a response from the Council as soon as possible.

Inadvertent violations of the Sunshine Law

Unfortunately, inadvertent violations of the Sunshine Law by board members when discussing leadership changes is common. OIP’s recent legal opinion concerning “serial communications” has dramatically (and properly) limited the extent that board members may discuss board business. Prior to the “serial communications” opinion, two board members would routinely discuss board business. Once that discussion was completed, they would move on to discuss the same board business with another board member, and so on. OIP correctly opined that such “serial communications” violated the intent of the Sunshine Law by essentially allowing more than two board members to discuss board business.

However you can see how the discussion of leadership changes (where up to four members may participate) may be problematic for board members. Since they are not limited to discussing the matter with just two members, unless they know who the other board member discussed the matter with, inadvertent violations of the Sunshine Law may frequently occur.

So where did that leave our Council on June 16? Instead of retreating into a recess or attempting to “defer” the matter to another day, the Council moved forward to determine what occurred and to seek a possible remedy or cure. The Sunshine Law provides no guidance with respect to “what to do” when possible violations have occurred. In prior discussions with the former leadership of OIP, the remedy of placing the nature of the contacts on the record was viewed as a way of mitigating any violation. This is exactly what was done by the present Council on June 16. Each Council member was asked to place on the record who they spoke with to discuss the reorganization. This is how we learned of the seven members being involved either directly or serially as discussed above. Although this effort may fall short of a “cure” since the violation had already occurred, it nonetheless served as an attempt by the Council to mitigate the harm caused by the violation by placing into the public record all contacts they had with one another concerning the reorganization.

Of course, OIP will ultimately decide to what extent the Sunshine Law was violated, and the range of remedies available to the Council and public. One possible extreme is a finding that the actions of the Council were willful. This would subject the Council to possible criminal prosecution. Although unlikely, it serves as a very important reminder to all board members of the sanctity of the Sunshine Law and the need to respect the public’s right to participate in the official affairs of their government.

Having now the benefit of hindsight, and having read the lawsuit filed by the West Hawai‘i Today, we have the following observations concerning the highly publicized Council meeting of June 16:

1. The Council’s “coup.” Some local media sources have described the actions of the Council majority on June 16 as a “coup.” Merriam-Webster defines “coup” as “a brilliant, sudden, and unusually highly successful stroke or act.” We surmise these media sources really intended to infer there was a “coups d`etat,” defined as “a sudden decisive exercise of force in politics.” What definition most accurately describes the actions of the Council on June 16 will most likely be determined by the future of the present majority, their initiatives and their ability to craft meaningful legislation for the benefit of all island residents.

2. The Sunshine Law encourages self-reporting of violations. Historically there has been some valid criticism of the Sunshine Law lacking “teeth” in enforcing violations. Absent the provision calling for criminal prosecution where there are willful violations, there are no civil remedies such as the imposition of fines or even the setting aside of actions taken by the board (with the exception of a lawsuit being filed within the statutorily mandated time, as West Hawai‘i Today has done). However this absence of an immediate civil penalty has the effect of encouraging board members to admit violations of the Sunshine Law and in turn, provides the public with information they would not ordinarily have. This is a good thing. An example of this occurred at the June 16 Council meeting. All Council members were asked in public and on the record to disclose the contacts they had with one another, and they did so. Now we recognize there may be some criticism that not all members were candid, or did not describe the extent of their contact with one another, or that they should not have violated the Sunshine Law in the first place. We cannot and do not endeavor to control what some may think or believe. The option the Council followed was not to retreat into recess or defer discussion of the allegations, but instead to individually ask all members to place on the record who they discussed the proposed reorganization with. When considering the extreme option of having the Council members make no statement and simply allowing the OIP to conduct an investigation devoid of facts, it appears the route followed by the Council was preferable.

What does the Council need to do now?

Within 20 days after service of the lawsuit on the County, our office will be filing a response to the West Hawai‘i Today’s lawsuit in Court. Since the lawsuit seeks to invalidate all post-reorganization actions taken by the Council, a decision was made by the Council to cancel the committee meetings scheduled for July 21, 2009. This will allow attorneys from our office to properly brief the Council at its regularly scheduled meeting on July 22, 2009 with respect to the specifics of this lawsuit, and the ramifications of the Council moving ahead in taking official action while the lawsuit is pending.

There is no “unringing of the bell”

Some public criticism has focused on the discussion of the Council on June 16 once possible violations were revealed by them. On the one extreme, there are some who believe the violations were willful and the only possible “cure” is the criminal prosecution of the offending Council members. As with all matters involving our local government, every citizen is entitled to their opinion, and that right will always be respected. However before there is a rush to judgment and conviction, respect for the adjudicatory process and hearing all sides of any controversy is imperative and strongly urged.

In the case of the Council’s reorganization, there can be no “unringing of the bell.” Assuming a violation is found, this harm to the public is the basis upon which much of the present vocal criticism is premised.

On June 16, after the Council placed all of their contacts on the record, that was the extent of what they could do. Had no lawsuit been filed, upon expiration of ninety days from the date of OIP’s opinion, Council business would have continued based on the reorganization. This is not uncommon. When boards subject to the Sunshine Law commit inadvertent violations, often the contacts that are the basis of the violation are placed on the record by board members. Assuming the public is satisfied with this remedy, the board proceeds without the need to take any other formal action.

The filing of West Hawai‘i Today’s lawsuit dramatically changes things. Since the lawsuit seeks the invalidation of the reorganization, the Court will now be asked to determine to what extent any Sunshine Law violation invalidated the reorganization and any subsequent official action taken by the Council. The Court may very well find there was an inadvertent violation and allow the reorganization to stand. Similarly the Court may find there was an inadvertent violation, but based on the harm to the public, the reorganization is invalid. The Court could further order subsequent official actions of the reorganized Council are invalid.

These (and the other possible) outcomes are something outside the ultimate control of the West Hawai‘i Today and the Council. For the Council, their present charge must be to move forward with the people’s business in a responsible manner while being cognizant of the legal challenges that they face. This may include a collective decision by the Council to hear the reorganization resolutions again, as well as all resolutions and bills heard, deliberated and decided by the Council and its committees on July 7 and 8.

The danger of public advocacy based on misinformation

A remarkable written public statement concerning the Council’s response to OIP’s inquiry, made by member of the public and brought to our attention was this:

Sadly the joke of the day is the report prepared by Corporation Counsel Lincoln Ashida, submitted to the Office of Information Practices (OIP). His report was written in response to OIP's inquiry about a possible violation of the Sunshine Law resulting from the private interactions of certain council members planning the ouster of council members Ford and Yagong as Chairs of certain council committees and of Pete Hoffmann from his officer position as council Vice Chair. Lincoln Ashida's "coup report" does not identify any willful violation of the Sunshine Law and instead argues in favor of absolving the council members of any wrongdoing.

The suggestion that the attorney for the Council should advocate that his clients willfully violated the Sunshine Law (thereby subjecting them to criminal prosecution) is something we would expect from laypeople unfamiliar with the Hawai‘i Rules of Professional Conduct. What was truly astounding was the above statement was made by an attorney who has been licensed to practice in Hawai‘i since 2006.

The very heart of the Hawai‘i Supreme Court’s rules governing attorney conduct in Hawai‘i says “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” This is further embodied in Rule 3.1 of the Hawai‘i Rules of Professional Conduct, which states in pertinent part (emphasis supplied) that “A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”

As has been repeatedly pointed out in the media, the finding of a willful violation of the Sunshine Law by Council members may subject them to criminal prosecution with a resulting jail sentence. It is disingenuous for any lawyer with any knowledge of Hawai‘i’s rules of ethics to assert that an attorney should “throw their client under the bus” for the sake of currying favor with polarized public sentiment. The adversarial system contemplates, and our ethics rules demand that attorneys conduct themselves in a manner consistent with having both sides of any dispute bring all of their arguments forward so that a court or other fact-finding body may come to an informed decision.

The argument by this lawyer is similar to the uninformed criticism I heard when I served this County as a prosecutor. Public defenders are public servants who are charged with representing individuals accused of criminal acts. I sometimes heard the criticism of them, “How can they represent crooks,” by a portion of the public that believed all accused law offenders should bypass the judicial process and proceed straight to jail.

This is not to suggest our citizens cannot have these views and voice their opinions. However attorneys in our State have a greater responsibility. Hawai‘i Supreme Court Chief Justice Ronald Moon has been a tireless advocate for the need of all attorneys in Hawai‘i to do their part to improve the image of the legal profession. The Chief Justice’s charge to all of us has gone beyond promoting the aspirational requirement of pro bono service contemplated in our ethics rules, but extends to ensuring the rules of civility and fair dealing are strictly enforced. To this end, lawyers should not knowingly publicly advocate a “duty” on the part of Corporation Counsel that is diametrically repugnant to the core responsibility a lawyer has of zealous representation in the adversarial system.

This is also not to suggest in any way that the Corporation Counsel would ever further any effort that would not be consistent with the best interests of the government or public. We are well aware of our obligation under Rule 1.13 of the Rules of Professional Conduct. Had there been any indication the acts of any Council member were willful with respect to a violation of the Sunshine Law, appropriate action would have been taken. In the present case, by having the Office of Information Practices conduct an independent review and analysis, we have complied with part (f)(3) of the rule by “advising that a separate legal opinion on the matter be sought and considered.”

In our weekly message of April 21, 2008 (you can read it here), we explained the duty attorneys have to their clients, and why under our laws the public at large is not the client, despite our roles as public servants. All of this may not change someone’s opinion about how things “should be.” However we hope this has provided adequate background and reasons as to why the Corporation Counsel is required to take certain legal positions on various issues. The critical review and commentary of the actions of elected and appointed public servants is important for a strong democracy. However irresponsible and inflammatory statements made by an attorney advocating a position contrary to the requirements of the Hawai‘i Rules of Professional Conduct is contrary to the Chief Justice’s vision of improving the image of the legal profession.

It is an honor to serve all the people of the County of Hawai‘i. As ever, if you have any questions on the above, please contact me via email at Lashida@co.hawaii.hi.us, or telephone at (808) 961-8304, extension 118. This message was posted on July 15, 2009 at 2:00 p.m.

UPDATE (July 16, 2009): Attorneys for the West Hawai‘i Today have indicated they will be filing an Amended Complaint to their lawsuit, seeking an injunction against the Council from taking further official action under their reorganized form. This case has been assigned to Third Circuit Court Administrative Judge Ronald Ibarra, and a hearing on the plaintiff’s motion for an injunction should be scheduled and heard within the next few days.

This message was posted on July 16, 2009 at 9:30 a.m.

Council pay raises. On Tuesday, July 7, 2009, the Hawai‘i County Council Committee on Finance voted down a resolution that sought to recommend the County’s Salary Commission reconsider their earlier action in 2008 that provided for a 22% pay increase for all nine Council members. The introducer of the measure, Council Member Dominic Yagong, was commended for his forward thinking. Our office also commended him for following the lead of Mayor Billy Kenoi, who earlier this year voluntarily took a one-day-per-month “furlough” and mandated his appointed office staff do the same. Mayor Kenoi recognized the cost savings to the County would obviously not solve the County’s budgetary shortfalls, but would serve as a representation of leadership from the County’s top executive.

Although what was primarily reported in the media were the sentiments of some Council members who felt their pay was fair and necessary for their sustenance, much of the discussion focused on the desire of the majority of Council members not to “meddle” in the affairs of the Salary Commission and thereby “politicize” the salary process.

Here is a more detailed summary of the discussion as well as a recommendation made by our office:

1. The De-politicization of the Salary Commission. Via Charter amendment in 2000, the voters in our County amended our Charter to delete any requirement that the salaries set by the County’s Salary Commission be approved or otherwise ratified by the Mayor or Council. This significant amendment was viewed as a positive step toward removing the “politics” from the setting of salaries for the County’s top officers. Some Council members felt any official communication from the Council to the Salary Commission would again “politicize” the process. This is because Salary Commission members (all volunteers from our community) may feel pressured to follow direction from the Council on a publicly popular position, while their legal charge is to only consider the setting of salaries consistent with compensation in the public and private sectors.

2. Sometimes “You can always get what you want….” I could not resist the Rolling Stones reference. Despite Mr. Yagong’s resolution not passing, there is a very simple way for him and other Council members to achieve the very same result without the involvement or concurrence of the Salary Commission. After all, there would be no guarantee the Salary Commission would agree with such a Council recommendation, since their charge under the law does not include the consideration of payment sources or the ability of the County to fund any pay increases.

a. Following our Mayor. Mayor Kenoi’s furlough of himself and his appointed staff for one day a month for an entire year amounted to a “pay cut.” Last week, in a much publicized case on Oahu, First Circuit Court Judge Karl Sakamoto granted an injunction sought by employer unions against Governor Linda Lingle. Judge Sakamoto’s order prevents the Governor from unilaterally “furloughing” civil service employees without first bargaining with the unions. The Judge’s order notes that a furlough is the functional equivalent of a “pay cut.” Although the term “furlough” has been widely used, it is not an accurate description. In the case of our Mayor, there will be no loss in service to the public. In other words, the Mayor and his staff will continue to come to work each and every day, but be simply paid one day less per month. Council members, as elected (exempt) public officers, can do the very same thing.

b. Different Council members, different means. Council member salaries presently differ based on their years of service on the Council. Council members differ with respect to other income they may or may not have, and other personal financial circumstances. The taking of “furloughs” by Council members (like our Mayor) will allow them to determine how much they can afford to have their pay cut without placing themselves in personal financial jeopardy. We verified with the fiscal staff of the County Clerk’s Office as well as with the County of Hawai‘i’s Department of Human Resources that these “furloughs” could be implemented immediately (even retroactively). In sum, Council members may individually achieve what Mr. Yagong’s resolution sought, and bypass the Salary Commission while accommodating the unique financial circumstances of each Council member.

c. The public is not “furloughed.” As discussed above, all of this may easily be achieved without any loss in services being delivered to the public. Council members will continue to serve as they presently do. Their willingness to make a personal financial sacrifice will be much appreciated and recognized as Council members doing their part in following the excellent example set by our Mayor.

It is truly an honor to serve the people of the County of Hawai‘i. As ever, if you have any comments or questions on the above or any matter, please feel free to email our office at Lashida@co.hawaii.hi.us, or call me at (808) 961-8304, extension 118. This message was posted on July 8, 2009, at 4:30 p.m.

The Waikoloa Workforce Housing Project. In September of 2004, the County issued a request for proposal for the Waikoloa Employee Housing Project, seeking an experienced developer to plan, design and construct 1,000 affordable homes for people employed in businesses in our South Kohala district (primarily hotel and other visitor industry employees). The homes were to be built on County-owned land in Waikoloa Village. The successful bidder UniDev responded to the County’s request stating “UniDev brings complete financing capabilities to each of its projects through its financing relationships with Citigroup and Fannie Mae. This allows the company to provide pre-development, construction and operating funds secured by the land and the future development. The project sponsor (County) is required only to commit the land and the approvals and entitlements necessary to permit construction of the project to proceed.”

In 2005, UniDev made this further representation: “This entire transaction can be structured such that the County, in its sole discretion, will have no continuing obligations or liabilities;…UniDev will provide, through our financing partners, 100% of the financing for this project; UniDev’s financing arrangements for this project will be non-recourse to the County…”

Based on the above and other similar representations made by UniDev, the County awarded UniDev the project. Despite their promises and legal commitment to obtain financing, UniDev failed to do so, requiring the County to allocate approximately $40 million in taxpayer money to pay for the infrastructure in order to further this much needed project for our island residents.

This past Monday the County on behalf of our taxpayers sued UniDev in Third Circuit Court. One of the charges is for “false claims” under Hawai‘i State law. UniDev submitted claims for payment to the County, knowing they were false or fraudulent. The County also sued UniDev alleging intentional misrepresentation, negligent misrepresentations and fraudulent inducement based on their claim they could obtain the necessary financing. The County alleges UniDev knew it could not obtain this financing yet made these representations to the County in order to induce the County to award this project to them.

In our lawsuit, the County seeks an order from the Court directing UniDev to pay civil penalties three times the amount of damages, special and general damages, punitive damages, and the County’s attorney fees and costs.

Although the County is very disturbed our residents who need affordable housing on the West side of our island will not be able to enjoy home ownership as promised by UniDev, the County looks forward to having all of the facts and evidence that substantiate the County’s claims in its lawsuit brought into the public domain. As the County’s Office of Housing and Community Development moves forward to build these homes, the Corporation Counsel anxiously awaits the opportunity to have UniDev held legally accountable for its actions and to reimburse our taxpayers accordingly.

As ever, if you have any comments or questions on the above or any matter, please feel free to email our office at Lashida@co.hawaii.hi.us, or call me at (808) 961-8304, extension 118. This message was posted on July 1, 2009, at 1:00 p.m.

What is the legal difference between a voter initiative and an ordinance? During the recent lively Hawai‘i County Council debate concerning the two-year suspension of payments into the Public Access, Open Space and Natural Resources Preservation Fund, a question asked was whether voter initiatives enjoy greater legal recognition and protection than ordinances passed by the Council. This question was asked in the context of arguments made that voter initiatives should not be subject to amendment by the County’s legislative body.

The short answer is there is no legal difference. Voter initiatives once passed, become ordinances with no greater or less recognition than ordinances (laws) passed by our Council. This means they are subject to amendment and repeal or other modification as any other local law.

In the 2008 general election our Hawai‘i County Charter was amended to provide voter initiatives that become ordinances cannot be amended unless there is a two-thirds vote of the Council. This amendment applies to voter initiatives passed after the 2008 general election, so it did not apply to the amendments made by the Council to the Public Access, Open Space and Natural Resources Preservation Fund ordinance. However, the 2008 amendment to the Charter makes clear the will of the voters is to extend greater recognition and protection to voter initiatives compared to Council-passed ordinances. This is a positive step in our democratic process that affords our voters an active role in public policy formulation at the County government level.

For those in County government responsible for overseeing our public elections, this means even greater care must be deployed in ensuring proper information is provided to the public. From distributing public information reciting “pros and cons” to crafting neutral ballot language, voter education is critical. Luckily, our County is blessed with a very effective County Clerk and a very efficient Elections Division. As the opportunity for greater public involvement in the County government process grows, our County legislative branch is up to the challenge of ensuring all members of our island community are informed.

County internet records, not “scandal.” On April 17, 2009, we explained why the County's internet use records must remain confidential while an ongoing investigation is being conducted into allegations of inappropriate use. Monitoring of County employee internet use has been an ongoing effort for some time. Unfortunately, this process became publicly known as the “County internet scandal” when a Council member opted to report to the media that he had not been granted access to the individual reports for each County department. Sharing of confidential and sensitive information within the County is done on a “need to know” basis. In fact, the internet use reports for our County have not even been shared with the Mayor, but only with the department head of each County department or agency, per the requirements of the County’s existing policy. The Council member averred that his unsubstantiated claim of internet abuse (i.e., excessive web surfing during work hours) had a direct relationship to a lack of productivity, and this was an issue that should be addressed by the Council in their review of the County’s operating budget.

A review of the records from the major departments in our County reveals no evidence of widespread illegal or highly inappropriate internet use. For those isolated cases where there has been inappropriate use, department heads are authorized to conduct their own internal investigation and mete out discipline where appropriate. This is exactly why there were objections to having the Council member peruse these reports. Representatives of the legislative branch are not the appointing or supervising authority of administration employees (and vice versa), and lack jurisdiction to mete out discipline if warranted. You may view the Corporation Counsel’s internet use records for the calendar year 2008 here.

Earlier this week, a summary report on internet use for 2008 was sent to each department head. The department head must decide whether there is any information in these reports that must be redacted before they are released publicly. For example, the Civil Defense Agency has already pointed out that a secure website periodically accessed by them through the Fire Department (this site is identified by a numeric code) contains highly sensitive information and should not be released for fear of creating unwarranted widespread public panic since the information contained therein may not be the most current or updated. It is not a matter of playing “hide the ball.” It is a matter of making sure the County executes its responsibility of ensuring only credible information is released to the public in a timely manner, and to prevent “hackers” and other persons with nefarious interests to create public panic.

Once any redactions to these summaries are completed, the reports will be available to the public for their inspection and review.

Having accepted the Council member’s recommendation, the County’s Department of Data Systems is also compiling detailed reports for the top internet users in each department. These separate reports are not all completed. They will be forwarded to the respective department head for review. The department head may then review the reports and conduct additional investigation if warranted. If it is determined the nature of the sites visited and/or their duration are inappropriate, discipline may be meted out to the employee, along with other corrective action. The reason this must be done on a case-by-case basis is there may be a legitimate work-related reason for visiting certain sites, or for using the internet for extended periods of time. The productivity of the particular employee will also be a factor. Is the employee getting their work done or are they asking for overtime? The software used by the County has its natural limitations; it can only tell you what sites were visited and for how long the internet was being accessed; it can never tell you whether the employee was actively navigating the internet during those times (the internet could have been minimized on their screen) or what else the employee may have been doing. To this end, there is no substitute for each department having appropriate accountability safeguards such as supervision, timesheets, and progress monitoring.

If discipline is meted out by a department head, the detailed internet use records for that particular employee may be withheld from public inspection. State law allows the employer to withhold this information since it involves the significant privacy interest of the employee.

If no discipline is meted out, the detailed report should be released, together with any redactions consistent with protecting the identity of secured sites as explained above.

When will all this happen? Data Systems reports the individual summaries take anywhere between 5-8 hours per employee to run. But since this is an ongoing process, and we recognize and respect the request for information made by the Hawai‘i Tribune-Herald newspaper, the reports will be released once the department head has an opportunity to determine whether discipline is warranted.

When I was a youngster in the 1980’s, “Scandal” was a rock band I listened to on MTV. More appropriately Merriam-Webster defines scandal as “loss of or damage to reputation caused by actual or apparent violation of morality or propriety.” Perhaps an even more appropriate definition by Merriam-Webster is “malicious or defamatory gossip.” The rush to judgment by some in the local media in labeling this investigation as a “scandal” was made without responsible attention to the establishment of underlying facts to support such a claim.

Why negligent homicide suspects are normally released pending further investigation. A very sad story was reported in our local media over the past weekend, where a one year-old child was killed in a traffic collision. The news report says the driver of a pickup truck ran a red light and collided into a vehicle occupied by the one year-old child. The Police are attributed as saying “speed and alcohol were factors in the crash.” The driver of the pickup truck is reported to have a DUI conviction from 21 years ago. The driver of the pickup truck was arrested, but not immediately charged and released pending further investigation.

Some have wondered why the driver was released without charges. Unfortunately, some in our community who have written anonymous responses to the newspaper article have already concluded this is the product of police ineptitude or corruption. Oscar Wilde once said “By giving us the opinions of the uneducated, journalism keeps us in touch with the ignorance of the community.” I am not that cynical, and believe all citizens are entitled to their opinions based upon their previous interactions with the police and other personal experiences in their lives. However for those persons who are genuinely interested in the procedural requirements of the law and why certain actions are taken by our police, I am hoping the following explanation based on my professional experience will allow them to form their own opinions.

Under Hawai‘i law, the crime of Negligent Homicide requires proof of two distinct facts: (1) Operation of a vehicle in a negligent manner, and (2) operation of a vehicle while under the influence of alcohol. Since it is a crime, the government is required to prove guilt “beyond a reasonable doubt,” which is the highest burden of proof provided for in our laws. It is erroneous to conclude no test of the suspect’s blood for blood alcohol content was conducted. Under Hawai‘i law, anytime there is a death that arises from a motor vehicle collision, the government may compel a suspect to provide a blood sample. However an analysis of this blood sample does not occur instantaneously, and must be properly tested by a qualified laboratory.

The release of Negligent Homicide suspects is not unusual. If the suspect were held in custody, the Constitution and case law require a preliminary hearing (mini-trial) to be held within 48 hours. This does not give the government enough time to (1) have the suspect’s blood properly tested, (2) have an autopsy conducted (cause of death must also be proven beyond a reasonable doubt; the government must prove a nexus between the collision and death, and prove that the death was not brought about by some other superseding or intervening factor), (3) locate witnesses and ensure their testimony is consistent with establishing “negligence,” and (4) obtain the services of a collision reconstruction expert to conclusively determine the behavior of the vehicles, including speed. If the government is required to forge ahead because the suspect is in custody, the prosecution runs the risk of having the case dismissed with prejudice, meaning charges may never be brought.

This is because the 5^th Amendment to our federal Constitution protects suspects from double jeopardy. The 5^th Amendment also provides for a speedy trial. If charges are brought immediately, the government would have only 6 months to try the suspect. Given the need for a thorough investigation and trial preparation, this may not be enough time for the prosecution to properly put a case together. It is not as simple as filing charges and then having a trial. In criminal cases, a significant portion of the work that is not normally reported by the media is the discovery process and pretrial motions process. Further, the 5^th Amendment also requires a judicial determination of probable cause before someone may be bound over for trial in a felony case. Since the Grand Jury in our judicial circuit does not meet every day, holding a person in custody before this probable cause determination would violate their constitutional rights.

No doubt this is a very emotional case. However, holding a person in custody may not be the wisest course when the required follow-up investigation cannot be concluded within the 48-hour time period mandated by our laws. Allowing the police and prosecutors time to complete their work, presenting the case to a Grand Jury to obtain a true bill of indictment, and then having the suspect arrested and held for trial strengthens the criminal case while protecting the rights of the accused.

The difficulty our local media sometimes have in reporting on legal events. Court documents are sometimes hard to read and understand. For non-lawyers, it seems lawyer memos and orders by judges speak in some form of “code.” Sometimes this is true. In my Introduction to Legal Systems class I teach at the University of Hawai‘i at Hilo, one of the things we cover is how the law loves tradition and loathes dramatic change. This is evident in everything ranging from the legal doctrine of “precedent” courts are required to follow, to the required skirts for women and ties for men that are part of “courtroom attire.” One of my favorite quotations is by Henry Ward Beecher, who said “Laws like clocks, must be occasionally cleansed, wound, and set to true time.” Mr. Beecher’s great words notwithstanding, the “code” spoken by lawyers and judges are the necessary result of legal terms having very exact and particular meaning.

Concerns arise when reporters in our local community who may not be as experienced as others, report on legal events. When a news article is written by reading and reporting on a court judgment only, it is very difficult to accurately and completely report it as news given the print space limitations, time constraints, and the need to say it “in simple English.” What is also required to provide full and balanced coverage is a review of all court documents filed to date.

A recent article written about the pending lawsuits filed by former Hawai‘i County Council Member Stacy Higa against the United States Equal Employment Opportunity Commission and the County of Hawai‘i is a good example. In this article, it was reported as follows:

“A federal district judge dismissed a lawsuit that former county Councilman Stacy Higa filed against the head of the U.S. Equal Employment Opportunity Commission. Higa's lawsuit against Hawaii County and Corporation Counsel Lincoln Ashida for allegedly failing to represent him properly is still pending in the state court system.”

What is not clearly reported is the Federal Court also dismissed the lawsuit against the County (Corporation Counsel) as well. In the Federal Court case, the County “joined” the effort of the EEOC lawyers in seeking a dismissal. This was done to save our taxpayers money. Since we are required to have special counsel (private attorneys) represent the County in these cases, we wanted to keep our legal fees low. We accomplished this by having the EEOC lawyers conduct the majority of research and writing, and to have our attorneys simply “join” the County in their effort.

In the State court case, only the County has been sued. This is because Hawai‘i State courts have no jurisdiction over the EEOC.

But reading the above passage would lead a reasonable person to conclude that (1) Higa’s lawsuit against the EEOC was tossed out, and (2) Higa’s lawsuit against the Corporation Counsel was not. Although technically somewhat correct, I think seeing the broader picture would provide the public a better understanding of what happened and why, and the effort taken by the County to spare taxpayer funds even in the face of contentious litigation.

The County is not a traditional business. In challenging economic times, a recurring question asked by many is, “Why isn’t the County run like a business?” There is some validity to this sentiment, although the County by virtue of the nature of services it provides does not fit within a traditional business model.

A positive work ethic is something valuable in both the private and public employment sectors, as is a desire to provide excellent customer service. In private business, poor customer service results in the customer not coming back and going elsewhere. For government services, the public does not have this choice, but government workers must nonetheless commit to providing the very best possible service. Here the golden rule should guide County employees: Do unto others as you have others do unto you.

In recent years, through the committed effort of the County’s Department of Human Resources, County employees have been afforded training in customer service. Department heads in the County have also taken the challenge and have committed to ensuring their employees demonstrate the highest level of courtesy and service to the public we serve. We recognize this is a work in progress, and the end result will not appear overnight. But through continued and vigilant emphasis, the County is working to provide customer service that will become the standard by which all other businesses may be measured. Is this an unrealistic ambition? For County employees, we are calling upon them to take on this challenge.

Unlike private business however, the County does not provide services based on a supply/demand model, or based on an individual’s ability to pay. When a member of our community is in distress and calls for an ambulance, they are served, no matter what their financial ability. The County paramedic doesn’t ask for a credit card or “cash only” before deciding whether to offer emergency medical services. The same goes for firefighters responding to a house fire, police responding to victims who need assistance, and the many other County services we all sometimes take for granted. If a true supply/demand model was part of government service, only the wealthy could afford those services related to life and health. This is why it is important for the County not to be run like a traditional business. This ensures the vast majority of our population who may not have the most financial wealth are guaranteed needed services.

Our Fire Department’s present practice in not seeking reimbursement for rescue expenses is an excellent example of this. Although the County has an ordinance in place that allows the County to seek reimbursement for expenses incurred by the County in performing search and rescue missions, the County rarely (if at all) seeks this reimbursement. The Fire Department believes seeking reimbursement would serve as a disincentive for persons and family members to call for assistance if someone is lost or in need of emergency assistance. Here the present Fire Department administration has made a commitment that the value of a human life should not be an economic decision.

When a private business faces an increase in operating costs, they can look to either reduce the size of their expenses or increase the cost of their product. The County also goes through this analysis when there is an increase in operating costs (many of which are outside the control of the County). After looking to reduce expenses, the only option left for the County is to (1) increase property taxes (the main source of revenue for the County), or (2) charge for services. As evidenced above, charging for basic services tends to prejudice and discriminate against those persons with limited financial means. Raising taxes is never politically popular, although necessary at times.

The present balanced budget submitted by Mayor Billy Kenoi to the Hawai‘i County Council takes all of the above into account. It reduced the size of government, maintained the present level of services being delivered to our citizens, does not include any provision for charging for individual services, and does not raise taxes. This budget has been described by many as “balanced and fair.” Looking at the alternatives discussed above, the fairness is enjoyed by everyone in our County, irrespective of financial means.

What is a furlough? Recent discussion in our media have included the possibility of furloughs for County of Hawai‘i employees. What is a furlough? The term “furlough” does not appear in the collective bargaining agreements (union contracts) for the employees of the major unions our County employs. Merriam-Webster defines “furlough” as “a leave of absence from duty granted especially to a soldier.”

Suffice it to say what proponents of employee furloughs for the County envision are days County employees don’t have to come to work, and consequently the County will not have to pay them, leading to a cost savings. However it is not as simple as that.

First of all, it’s important to distinguish between County officers and County employees. Officers are either elected or appointed and serve at will. For example, the Mayor, Prosecutor, Council members, and department heads are County officers. “Employees” as that term is used when referring to proposed furloughs covers those persons whose wages are bargained for and who have rights under their respective collective bargaining agreement. The appointing authority of the officers may order furloughs at any time. For example, Mayor Billy Kenoi has already directed each officer in the Mayor’s Office to be furloughed one day a month for an entire year. Although the cost savings will be far from enough to make up for any budget shortfall caused by the Legislature’s proposed reduction in the TAT contribution to our County, every little bit helps, and it is leadership by example.

For union employees, furloughs are much more problematic.

While litigating a recent labor case on behalf of our County, I had the opportunity to research and learn about the civil service system and merit principle that is at the heart of government employment in Hawai‘i. In a recent decision, our Hawai‘i Supreme Court recognized the merit principle as being fundamental to the recruitment and hiring of qualified individuals to serve in the public sector. The vast majority of positions in our County require the applicants to meet certain minimum qualifications, and to pass a written test to determine whether they are able to perform the job, and to gauge their qualifications vis-`-vis other applicants. This merit principle effectively ensures only qualified individuals are hired in the government service. In turn, they are afforded a number of rights found in their collective bargaining agreements as authorized by our State Legislature.

The collective bargaining agreements (contracts) between the County and the worker unions are something that are negotiated and agreed upon on a statewide level. If the County is to “furlough” its employees for any period of time, the contract requires the parties to follow a very specific process.

Whether you support furloughs for our County employees or not is a personal decision. There are legitimate arguments on both sides and ultimately it will be the State Legislature’s decision regarding our TAT contribution that will for all practical purposes dictate whether employee furloughs must be pursued.

Why investigative reports must remain confidential. A recent media article discussed a Council Member’s request to obtain information from the County’s Department of Data Systems concerning alleged internet abuse by County employees. The Department of Data Systems declined to provide the Council Member the records, explaining that an ongoing investigation into this alleged abuse is ongoing. Unfortunately, subsequent blog entries and even an editorial written by a journalist professional characterized the conduct of County employees as pervasive. We understand how erroneous conclusions can be drawn based upon the fact the County cannot make these records public at this time.

Investigation into internet abuse in the County began in mid-2008 and has been ongoing. One employee has already been disciplined and his case remains pending with an administrative agency. There are other potential cases that remain under investigation. This is what the County can disclose at the moment:

1. The records compiled by the Department of Data Systems are highly sensitive, and have not been shared outside of their department with any County department, agency or person, other than on a need to know basis. This is because many County officer and employees (including the Council) may be called as witnesses in future cases.

2. If the records are released prior to formal charges (administrative or criminal) being filed, the integrity of the case and investigation may be compromised. When I served as a prosecutor, such unlawful premature release of information would be cause for dismissal or other disciplinary action.

3. These records will ultimately be released, once all investigations are completed.

Some may wonder what the harm is if these records reveal only past internet sites visited. The reason this could harm future cases and the County is because:

1. The investigation includes sites currently being visited in order to establish trends. This also involves forensic examination of hardware and downloading of saved content.

2. Disclosing the records would identify particular individuals who may not be eventually charged administratively or criminally.

No doubt the public is entitled to view these records. The sole issue is one of timing. Once the investigations are completed and final decisions are made on administrative and criminal charges, the records will be released. The County is committed to conducting and completing thorough investigations in all allegations involving employee misconduct. We are also committed to being fair to all persons involved in the investigation, and not do anything that would jeopardize its integrity.

“Shared sacrifice.” There have been many recent articles in our local media concerning the budgetary shortfall the County of Hawai`i government faces. According to our laws, the Mayor must submit a balanced budget to the Council before the start of every fiscal year. With the pending legislation before the Hawai`i State Legislature that would place a moratorium on the transfer of the Transient Accommodation Tax (“TAT”) to the counties, our County is looking at an additional $18 million shortfall for fiscal year 2009-2010 alone.

Unfortunately, recent media headlines have focused on shortsighted and uninformed opinions concerning the ways the County could trim its budget. This has had the unfortunate effect of proliferating the unfair stereotyping of our public servants and causing unnecessary divisiveness in our communities. Threatening workers they will lose their jobs or creating unsubstantiated hysteria concerning internet use serves no productive purpose and is counterproductive to the need for communities to come together and share the burden of the economic downturn.

Mayor Billy Kenoi has been very vigilant and proactive in his effort to meet this budgetary shortfall. In fact, on the very day he took office on December 1, 2008, there was an immediate suspension of hiring for all non-essential positions. Having carefully examined the County’s workforce prior to officially taking office, Mayor Kenoi ensured only those positions directly affecting the public health and safety (such as Fire and Police) would be filled.

Mayor Kenoi also mandated immediate cost-saving measures by requiring all County departments to make 5% across-the-board cuts to their present budgets, and reduce their budgets by an additional 10% for the next fiscal year.

Many members of Mayor Kenoi’s cabinet also took substantial salary cuts. The above are just a sampling of the many things that never got reported in the media but were done in an effort to meet the financial challenges of the economic downturn.

On the Council side, Chairman J Yoshimoto has been a leader in looking at ways the legislative branch of our County government could reduce costs. He has quietly and without drawing bravado to himself proposed reductions to various accounts managed by the Council while not eliminating Council meetings in West Hawai`i and continuing to provide services that allow the public to participate in their government.

All this occurred while there was no reduction in services to the public, and no increase in taxes or user fees.

This highlights the most significant difference between public service and private business. Unlike private business, where the motive is to “make a profit,” public service is focused solely on the delivery of services. These services are delivered no matter what economic conditions exist, and are afforded to everyone fairly irrespective of financial capacity. If you need police assistance, or if you call for an ambulance from our Fire Department, you will not be asked whether you have the means to “pay for it.” If government were run as a true business as some have suggested, market demand would dictate the cost of services to the public. Thankfully you never need to ask, “How much is it worth to save a life before you call the Police or Fire Department?” No matter what, your County government is always there to serve.

In times of economic challenge, we as a community can only persevere if we work together and share in the sacrifice. Balancing the budget on the backs of County employees alone will not solve the budget shortfall, and in fact creates greater long range problems. The Mayor’s budget is fair and balanced. It ensures the continued and uninterrupted delivery of services to the public without the need for an increase in taxes.

A famous adage reads, “The true test of a man’s character is not when he is faced with adversity, but when he is given power.” It is easy for opportunistic politicians to criticize others or to look for scapegoats to rally public support for themselves during trying economic times.

However the sound and effective policies and proposals implemented by our Mayor and Council Chair have demonstrated our County is in good hands. The road to recovery begins right now, and we are fortunate to have Mayor Kenoi and Chairman Yoshimoto at the helm.

When does the County hire “special counsel?” Under our laws, the Corporation Counsel is authorized to hire “special counsel” whenever there is a genuine need. Each year many lawyers and law firms send in applications to the County offering their legal services for fee. Recently an unfortunate and inaccurate editorial in one of our local newspapers regarding a reduction in the County’s budget contained the following statement:

What is at hand is a reduction in services, but not people. We will have the same number of employees delivering fewer services. That makes no sense, logically or fiscally. Already there is an ambient question among many in our community: What do all these government employees do? When the county is sued, we hire outside attorneys. When we need to figure out solid waste, we hire outside consultants. When we need to plan a public park, we hire outside planners. What do all the county "planners," "engineers" and "experts" do that we must rely upon "outside" talent? Are county workers that untalented? If so, let the blood-letting ensue.

If in fact there is “an ambient question among many in our community” why the Corporation Counsel hires special counsel, we appreciate this opportunity to explain why.

First of all, over the past eight years, this office has hired special counsel in only nine cases. For the majority of these cases, special counsel was legally required since there was a conflict of interest for the Corporation Counsel to serve as the attorney. The editorial cited above makes the inflammatory inference that Corporation Counsel lawyers somehow abdicated their responsibility in not representing the County. This is nonsense. A simple review of the special counsel contracts (these are public government records available to anyone who asks) would readily reveal the conflict of interest was the sole reason why special counsel was legally and ethically required.

Our office agrees if there is a question why government funds are spent for a certain purpose it should be asked and promptly answered. We welcome the opportunity to provide our community the facts they deserve. However inaccurate and inflammatory newspaper editorials that do not provide the public the whole picture divide our community and do little to educate the community that our office is committed to serving.

Support for our Police. Recent media articles appearing in our local West side newspaper have brought into question the actions of our police in enforcing public drinking in the Kailua-Kona business area. The incident in question involved our police arresting two persons who were observed drinking beer near the Kailua Pier. Unfortunately, “the spin” that critics of our police put on this incident led our public to believe this was heavy-handed police enforcement against two elderly women, and that “a warning” would have been more appropriate.

In the County of Hawai`i, unlike some jurisdiction on the mainland, public consumption of intoxicating beverages is not permitted. Through a cooperative effort between retail merchants and residents in the Kailua-Kona area, our police formed a special task force to “clean up” the area through increased police presence and law enforcement. As a result, violent crime has gone down in the area over the past six months, and business employees have commended our police and say they are no longer afraid to walk to their cars late at night. Police Chief Harry Kubojiri recently said he is very appreciative of the thanks and positive feedback he has gotten from the Kailua-Kona business community, and pledges to continue working with all communities on our island to develop innovative programs such as this which do not require any additional funding, but creative reallocation of existing police resources.

In the present case, the two arrestees were not “tourists sipping cocktails” as some police critics have erroneously inferred. Proper police procedure was followed in the making of a lawful and peaceful arrest, which provides for the safety of both the officer and the arrestee.

Critics of our police are entitled to their opinion; no question about that. However before the majority of law-abiding and supportive members of our community are unfairly prejudiced by one-sided and inaccurate media reports and publications, anyone with any doubts or questions should contact the Police Department’s public information officer for “the straight scoop.”

It’s all about the service. Challenging economic times require many businesses and families to make necessary adjustments to their budgets and to review and revise their spending priorities. The County of Hawai`i government is no exception. On our island, the significant majority of our County revenues come from the collection of real property taxes. These monies pay for fire and police service, roads, parks, and many other services provided throughout our community. Some recent editorials and letters to the editor (including blog entries) in our local newspapers seem to imply the County is immune from these hardships, and its officers and employees are not sensitive to the reduction in revenues and economic downturn.

“Doing more with less” is not simple rhetoric under Mayor Billy Kenoi’s administration, but a mandate for all departments to follow. A hiring freeze has been implemented to ensure only essential County employees that have a direct effect on the public health and safety will be hired. All County departments have been asked to cut 5% from their present fiscal year budgets and another 10% from their operating budgets for next fiscal year. Unlike private business, the County cannot “reduce hours” or “cut services.” The public demands and rightfully expects that the County continue to provide services that the County is responsible for dispensing. No matter that real property tax valuations and collections may be down; County government cannot let basic services get “reduced” no matter what the external economic conditions.

No doubt some of the criticism directed at government workers in the past has some validity. As with any large organization with thousands of employees, there will always be problem areas where belt tightening is warranted. We make no excuse for that. However under the new leadership of both the mayoral administration and Council, attitudinal shifts by County officers and employees will be expected. “Treat the taxpayers’ money like your own” will be the guiding value to ensure each County officer and employee under the new leadership is truly a steward of our hard-earned money.

Your County government is served by many fine individuals who have committed their lives and careers to serving their community. Many have foregone the opportunity for financial wealth in the private sector, or have passed on opportunities to work on the mainland or elsewhere. It really is about the service, and that is something that we can pledge to each of you, no matter what the economic conditions are.

What are “contingency relief funds?” Many of you have heard of the “contingency relief fund” account that is held and administered by the Hawai`i County Council. When you review a meeting agenda for the Council, or watch Council meeting proceedings on television, you see County funds ranging from small to large amounts transferred from the Council’s account to various County departments. Many of these funds ultimately find their way to private nonprofit groups in our community.

Where do these funds come from? The funds are allocated each year from the County’s general fund account to the Council. The primary source of revenue for our County is real property tax revenues. The amount of the contingency relief fund account varies from year to year; in leaner years, the fund has been zero. A few years ago, the fund was $2.7 million. The Mayor, through the Finance Department, makes a recommendation each year as to how much money should be placed in this fund. When the Council reviews the budget (which is an ordinance) they may increase or decrease this amount. When the budget is returned to the Mayor, he may sign it into law, allow it to become law without his signature, or veto it. If six members of the Council agree, they may override the Mayor’s veto. It is this process of “checks and balances” that ensures full community input and a thoughtful discussion and deliberation of the best use of our valuable taxpayer funds.

What are these funds used for? Council members throughout the years should be commended for their effort in helping our community in proposing legislation to release funds into our community. Historically, contingency relief funds were used to pay for unanticipated shortfalls in department budgets. For example, if an electronic scoreboard at one of our County parks broke during the County’s fiscal year, and there were not funds allocated during that year for a replacement, the Council member from the district may be asked to release funds to purchase a new scoreboard.

In recent years however, recognizing the importance of public-private partnerships in our communities, contingency relief funds have been released to private nonprofits who work together with our County departments to further County programs and projects. This includes Neighborhood Watch programs, anti-domestic violence and anti-sexual assault initiatives, and “Grad Nites” for our local high school seniors, just to name a few. Our laws simply require that the nonprofit organization be a 501c(3) organization, and that the organization furthers a County program or project.

The generous spirit of Christmas. The holiday season is a time for many of us to reflect upon the past year, to give thanks for our friends and family, and to look optimistically ahead at what the New Year will bring. However for many in our community, the holiday season is a time of continuing financial struggle and uncertainty. Not having a place to live, enough food to eat, or clean clothes for the kids to go to school are just some of the challenges too many in our community face every day.

This year the Office of the Corporation Counsel began what will be an annual office tradition. Office team members were asked to reach deep into their hearts, cupboards and closets to find donations of food, clothing and personal hygiene items for Hilo's emergency homeless shelter run by the Office of Social Ministries. Donations were also sought for brand new toys for kids living at the shelter.

On the Friday before Christmas, office team members delivered four full van loads of goods to the shelter. Donations of food items, good clean clothing, and brand new personal hygiene products will go a long way in helping needy families get back on their feet. Brand new toys will help make Christmas special for the children as it should be.

Kahiau is the Hawaiian word that means "selfless giving without the expectation of return." The Corporation Counsel family was happy to be a small part of making Christmas a little brighter for families in need.

No pay raise for the new Police Chief. A Stephens Media news report that ran in both the Hawai`i Tribune-Herald and West Hawai`i Today on separate days reported that the new incoming Police Chief would receive a substantial pay raise even before taking office. The article gave the clear impression that the County of Hawai`i Salary Commission, after hearing input from the Hawai`i Police Commission, increased the pay for the new Chief far beyond what he would have made once he assumed that office. Blog entries from readers for both articles clearly reveal this was the (mis)impression provided by this incomplete news report.

The truth is the Salary Commission adjusted the salary of the new Chief to the exact amount the Chief’s position makes, and nothing more. In other words, the new Chief received no raise as inferred in the article, but simply what pay was already allocated and previously approved for the Chief’s position. This adjustment required no increase in the Police Department’s budget; in other words, there was no additional burden placed on our taxpayers. Had the Salary Commission not made this adjustment, the new Chief would have taken a substantial pay cut in order to assume the responsibilities of Chief.

Unfortunately, due to the existing pay plan for appointed officers in our County, the present Human Resources Director is of the opinion that seniority, years of service and exemplary performance as a public servant are not relevant for determining starting pay in an appointed County position. In other words, County officers can be promoted into top positions and be required to take a substantial pay cut.

Now, there are some who may still believe that “you knew how much the job paid when you applied for it,” and that if it requires a pay cut, so be it. We fully respect those persons who believe this salary inversion problem is really no problem at all. However our concern in this matter centers solely on the misimpression given the newspaper readers in our community, and the mistaken belief our Chief sought a pay raise beyond what was already allocated in the County’s budget for that position.

What happens when misinformation gets repeated in the media? At a recent public hearing in Hilo held by the Hawai`i Police Commission to receive testimony on the two police chief finalists, a member of the public stated he was upset the Commission “only advertised this job on the Big Island.” This sentiment was repeated by another public speaker and drew groans of affirmation from many in attendance. The Commission did an excellent job maintaining the decorum of the hearing by promoting uninhibited public input by not arguing with or otherwise embarrassing any person who offered public testimony.

A reporter from the Hawai`i Tribune-Herald, one of Hawai`i Island’s two daily newspapers was present and reported these statements in an article that appeared the next day on November 19, 2008. I assume this reporter left the meeting early in order to meet his press deadline and did not have the opportunity to verify this statement made by an uninformed member of the public. No doubt our local reporters are very busy meeting their deadlines and work under other stressors. As a result, this misinformation has taken on a life of its own; a review of recent blog entries and letters to the editor generated by this article have many upset at the Police Commission, Police Department and County, drawing criticism about the chief selection process, and accusing the County of not opening this position up to persons outside of the Hawai`i County Police Department.

It was unfortunate this reporter did not stay for the entire meeting, or did not attempt to independently verify the accuracy of this representation (or did not point out clearly in his article that this was only the opinion of a testifier, and not corroborated by the Police Commission or other County authority).

Hawai`i County’s police chief vacancy was advertised statewide. This was done by placing advertisements in our County’s two dailies, the Hawai`i Tribune-Herald and the West Hawai`i Today, two newspapers with statewide circulation. The Police Commission even paid an extra monetary fee to have this vacancy listed on the Tribune-Herald’s “Top Job” section at the newspaper’s website.

In fact, there was an applicant from the mainland, but he was deemed ineligible for the position, since he was not a Hawai`i resident. State law requires all appointees to be residents of the State of Hawai`i for at least one year before they accept an appointment. This is a requirement of our State law, and applicable to all of the four counties.

The suggestion there was a concerted effort to recruit only from within the Hawai`i County Police Department is simply not true. The fact of the matter is only four applications were received despite the position being advertised for three consecutive weeks in two newspapers and on the Tribune-Herald’s website.

No doubt transparency is absolutely critical in order for government to maintain the public trust. To this end, government often relies on our local media to accurately report matters of importance to our community members, and to not lead the public to believe as fact the uninformed opinion of a single testifier.

What happens when the Council passes laws that are “unenforceable?” There has been significant discussion in our media concerning the enforceability of two new Hawai`i County laws. On November 4, 2008, the voters of our County passed the “lowest law enforcement priority” initiative that mandates that our police make the adult possession of marijuana the lowest law enforcement priority. This initiative also prevents the police from accepting federal and state monies earmarked for drug eradication and anti-drug education. On November 13, 2008, the Hawai`i County Council overrode Mayor Harry Kim’s veto of the “GMO” bill. This legislation prevents the genetic modification of taro and coffee in our County; an issue that created divisiveness in our community from those opposed to genetic modification versus proponents of GMO research.

After the laws passed, questions turned to enforceability. With respect to the marijuana initiative, concerns regarding the federal and state preemption remain. “Preemption” is the legal doctrine that generally provides that local county laws will always be subservient to federal and state laws that conflict with it. Since marijuana in any quantity remains illegal under both federal and state law, arguably the County cannot pass any law that would prevent the police from enforcing it. In fact, an argument could be made that it would necessarily result in the police violating their oath of office to simply “look the other way” in an effort to enforce the County initiative.

Yet another issue with the marijuana initiative is the doctrine of the separation of powers. Generally speaking, the legislative branch cannot direct the day to day operations of executive branch departments. The argument goes that the legislature effectively engages in law enforcement by passing a law that tells the police what laws to enforce aggressively and what laws to make “a low priority.” Our office has opined that “you cannot do via initiative what you could not do via ordinance.” Thus it is arguable that an initiative that goes too far, like an ordinance that goes too far, may be void as it violates the separation of powers doctrine.

With respect to the GMO bill, our office has opined that the Council was within its authority to pass this legislation. Federal and state law had not preempted any County effort in regulating this activity. The issue of concern is enforceability. How do our police and prosecutors enforce this ban? With the burden of proof in criminal cases being “beyond a reasonable doubt,” there is no question some degree of scientific verification and/or corroboration will be necessary in order for this law to have “teeth” via enforcement.

No doubt the above two issues have been very contentious for some involved. Despite differing views on these and many issues, I think we all agree we are fortunate to live and work in a democracy that allows for all views to be heard and for matters to be placed before our voters. No matter what side of the fence you may be on, we can all agree to civilly disagree. Although some may disagree with the outcome, there must be respect for the process.

As the legal representative of our County government, our pledge is to always respect the will of our voters and to work with our client County departments to implement all legal laws. As indicated above, implementation may not be possible in all cases given legal constraints. It may take the determination of a court via a lawsuit (this we welcome) for there to be any movement towards final legal determination.

If you have any questions or comments concerning this article or any matter, please feel free to email our office at Lashida@co.hawaii.hi.us, or call me at (808) 961-8304, extension 118. This message was posted on November 18, 2008, at 12:30 p.m.

The search for a new Chief of Police has begun. The Hawai`i Police Commission has begun the process of searching for Hawai`i County’s new Police Chief, with the announced retirement of Police Chief Lawrence Mahuna effective December 31, 2008. Under County law, the nine-member citizen board has the sole authority to hire and fire the Chief of Police.

The Police Commission encourages all persons who are interested in applying for this position to submit an application to the Police Commission office in Hilo. The Commission has scheduled a series of public hearings around our island to allow interested persons from our community to provide input on any of the applicants. The Commission has scheduled these public hearings at night to allow the working community to attend and provide their testimony. Also, the Commission will allow testimony in closed session (closed to the public) to encourage candid input. These public hearings will be held in November and December 2008.

The County of Hawai`i has been well served by Chief Mahuna. Under his leadership, significant accomplishments have been realized in the area of increased crime prevention, community policing, national accreditation, the police cadet program, and overall transparency and the restoration of the public trust.

How does the Council decide who will be its Chair? After the General Election on November 4, 2008, all nine Hawai`i County Council seats will be officially filled with the terms of all members to begin at 1:00 p.m. on December 1, 2008. People often ask how it is that the Council selects its chairperson, and how can they organize before December 1 while complying with the State Sunshine Law?

Hawai`i’s Sunshine Law requires all government boards (like our Council) to conduct its business in the open and to allow public participation in the process. To this end, no more than two board members may meet in private at any given time, and even then their discussion is limited to “talk only,” and no promises or commitments may be made. One exception to this general rule is meeting for purposes of discussing and organizing the leadership of the board. When this happens, up to four Council members may meet in private to discuss things like who will be chair, and who will be the chair of certain Council committees. This is why the public often knows well in advance of the first Council meeting (held at 1:00 p.m. on the first Monday of December following the General Election) who the chair will be.

Is this a good law? Yes and no. On the one hand, there is the argument that all discussions and decision making should occur in the public forum. On the other hand, this exception allows the minority faction of a board to meet in private to discuss leadership issues without allowing the majority to control the discussion and decision making.

Practically all legislative bodies in the modern world have a “majority” and a “minority.” Often, these lines are drawn across political party lines, such as republicans and democrats. In Hawai`i County, all County elections are “nonpartisan,” meaning there is no requirement to declare a political party. For this reason, a political majority is often comprised of those persons who share similar philosophies or who simply get along and trust one another. Advocates of the majority/minority system say this is an expedient and efficient way of getting things done. With an identified majority, there will be the necessary votes to initiate and pass needed legislation. Critics say this type of “you scratch my back, I’ll scratch yours” is patent political corruption, and each member of the board should have the courage to vote their conscience, irrespective of what the vote count is.

One thing is certain if there is a decided “split” Council without a supermajority (at least six members): There is a slight imbalance in favor of the administration (Mayor) with respect to the separation of powers. Without six votes, the Council is without power to override a mayoral veto. This means the mayor will have the power to effectively kill any legislation brought forward by the Council.

As you can see, the “system” of laws in our County does present the possibility for confrontation between Council members and the mayor. However to the credit of our sitting Council members and our Mayor, a commitment to civility has prevailed. Although there are times Council members have spirited disagreements as they discuss contentious issues, or there is open disagreement with the administration (Mayor) as to policies or priorities, at the end of the day, there is respect for the right of everyone to voice their opinion and to execute their respective duties. Although County government officials are sometimes criticized for what is described as “in-fighting” or other conflict, there is no question as to their commitment and desire to work towards a better Hawai`i Island.

Fire Inspector cleared of any wrongdoing by Board of Ethics. On October 8, 2008, the Hawai`i County Board of Ethics considered a charge of ethical misconduct brought by the former manager of a now defunct Hilo nightclub against Fire Inspector Robert Perreira. As the evidence at the Board of Ethics hearing revealed, the Hilo establishment had a long history of various Fire Code and Building Code irregularities where the County attempted to assist them to come into compliance. After considering the evidence, the Board found Perreira had not violated the Code of Ethics as claimed by the former club manager. In fact, evidence at the hearing revealed Perreira was not even working on the particular night he is alleged to have engaged in official “misconduct.” Further, the Board heard from Fire Chief Darryl Oliveira, who produced numerous letters from local business owners who had previously worked with Fire Inspector Perreira, attesting to his professional behavior. Chief Oliveira testified before the Board he has never received any complaints in the past concerning Perreira’s work performance and conduct when dealing with the public.

As public servants, we recognize there will be times we need to make hard decisions that may not be welcomed by some members of the public. In matters related to the public health and safety such as our Fire Code and Building Code, we believe the vast majority of the public we serve recognize this and expect no less.

Unfortunately, often the allegations of government misconduct are prominently reported in the newspapers but the follow up end result is not. This is not necessarily the fault of our local media; they are charged with covering a wide range of issues and stories, and are often confronted with manpower shortages as well. However as shown in the present case, unfortunate allegations tend to tarnish the reputation of exemplary public servants when the public is not informed of its outcome.

Granted there are cases where there has been misconduct found on the part of County employees. A check of the records of the Board of Ethics (these are public records) reveals the Board has been very diligent in recent years in investigating charges of misconduct, and finding violations where they do exist. Thankfully these instances are infrequent, and the Board is quick to issue corrective guidance to the County employee involved.

The Board of Ethics is a citizen board staffed with five volunteers who come from different parts of our island, and from various backgrounds. Their function is to independently and fairly investigate allegations of ethical misconduct on the part of County employees, and to make a decision whether there has been a violation of the Code of Ethics. They take their responsibility very seriously.

If you have any questions concerning this article or any matter, please feel free to email our office at Lashida@co.hawaii.hi.us, or call me at (808) 961-8304, extension 118. This message was posted on October 14, 2008, at 8:45 a.m.

The difference between an administrative investigation and police investigation. It was recently reported in our local media that a Violence in the Workplace investigation was recently completed concerning an incident that occurred between two Council members. A police investigation was also conducted into these alleged threats that were made by one Council member and directed to another. The public may wonder, “How can the County Clerk (who conducted the administrative investigation) say there was enough evidence of a threat, but the prosecutor says there wasn’t?”

This is because the “burden of proof” in each investigation is separate. The Clerk, who conducted the administrative investigation, is required to determine whether by “preponderance of the evidence” there is enough evidence to show that the threat happened. “Preponderance of the evidence” means that it is “more likely than not” that something happened. Lawyers sometimes say you have to prove that it happened by “51%” of the evidence.

However in police investigations that are sent to the Prosecuting Attorney, the burden of proof is “beyond a reasonable doubt.” This is the highest standard of proof recognized in our judicial system. We are fortunate that our County is served by an honorable Prosecuting Attorney, Jay Kimura, who has consistently and without exception executed his duties to the highest standards of our ethics and laws. Jay never does the “popular thing” for the sake of politics but instead always does the “right thing.” His attorneys who review cases ensure that there is sufficient proof to prove guilt beyond a reasonable doubt before any charges are filed.

This is why sometimes (like in this case) you see two different conclusions for the same incident. It doesn’t mean there is inconsistency, it means both sides (the administrative and criminal) are required to follow different standards of proof.

Plastic bag ban not sacked yet. Despite the recent veto of the Council bill seeking to ban non-biodegradable plastic bags in our County, both the County administration (Mayor’s Office) and the Council continue to work on a new bill that addresses many of the concerns raised in both the Mayor’s veto as well as by our citizens during public testimony when the original bill was deliberated by the Council. Working together, it is hoped the County will have a good bill that when signed into law will help our fragile environment, be fair to businesses, and promote recycling and other sustainability initiatives our County needs. Bobby Jean Leithead-Todd, Director of the Department of Environmental Management and Council Member Bob Jacobson from District 6 have been working very hard in putting this bill together.

If you have any questions concerning this law, please feel free to email our office at Lashida@co.hawaii.hi.us, or call me at (808) 961-8304, extension 118. This message was updated on September 29, 2008 at 2:20 p.m.

Acting Mayor Kaetsu vetoes plastic bag ban bill. This afternoon (September 19, 2008), the Office of the Mayor delivered a veto message to the Hawai`i County Council, vetoing the proposed legislative ban on plastic bags. In the veto message, Acting Mayor Dixie Kaetsu states in pertinent part as follows:

There are two reasons for this veto. First, there are concerns specific to this bill. They relate to certain provisions in the bill and how the bill was handled in regards to public involvement. Second is a more philosophical issue about whether this is the right way to address the environmental problems caused by plastic bags when they are not disposed of properly.

The specific concerns with Bill 326 Draft 2 that led to this veto action follow:

· Non-profit organizations: no opportunity for input – Bill 326 Draft 2 was passed without the public having a full understanding of what “businesses” would be affected by this measure. I watched a recording of the Council’s discussion at its August 27 meeting where this bill passed second and final reading. It was made clear in the discussion that non-profit organizations such as churches, schools, community groups and sports teams will also be prohibited from using plastic bags at their fundraisers.

It was also clear that until the August 27 meeting, even some Council members were not aware of this impact on non-profit organizations. Not realizing that this bill would apply to them, non-profit groups did not provide comments and input before the bill’s passage.

On August 1, 2007, Mayor Kim wrote to the Council in another veto message:

“It has always been the goal and policy of this administration to ensure that whenever any major policy changes are pursued, a forum of some sort is to be conducted to allow those who would be affected an opportunity to air their concerns.”

Since non-profit organizations would be impacted by this bill, and it was not clear to all that they would be impacted, efforts should have been made to solicit input from these organizations before adoption.

· Small business impacts – While supermarkets and larger retail chains are not happy about the impact this bill will have on costs to their customers, they have said they will accept it and live with it. It is our small businesses that will be most harmed by the higher cost of paper bags. Our small businesses already have a difficult time competing in the marketplace and cannot take advantage of the same economies of scale in purchasing as the larger stores. Small businesses that would be negatively impacted include vendors at farmers’ markets, swap meets, and flea markets. It is noted that this bill would even make it illegal to place goods purchased at garage sales into reused plastic bags.

These impacts are an unreasonable burden on small businesses.

· Effective date – Bill 326 Draft 2 provides that the ban on plastic bags at point of sale becomes effective one year after the bill is approved, that is September 2009. This is not long enough for retailers, especially small businesses, and consumers to prepare to implement this ban. One local source of plastic and paper bags for about 650 small business customers provided an example of how this effective date can impact smaller companies. One customer recently placed an order for custom printed plastic bags. To obtain a reasonable unit cost, the customer ordered a quantity that will probably last at least a year and a half. The bags are still in transit, and if a ban takes effect in one year, this small business will be out money it can ill spare for bags it cannot legally use after September 2009. Compare this to the larger stores where most if not all of them will be able to use up their present stock within a year. Smaller stores, to take advantage of the economies of scale, are more likely to purchase and have on hand an excess of plastic bags extending beyond a year’s supply.

A review of the effective date of measures in other jurisdictions shows that with the exception of San Francisco, a longer transition time has been generally allowed. (For your information, San Francisco’s ban became effective in six months for supermarkets and in 12 months for pharmacies. However, the SF ban only applies to supermarkets with gross annual sales in excess of $2 million, and retail pharmacies with at least five locations under the same ownership within the city of San Francisco. No small businesses are subject to the ban.)

· Penalties – It is felt that the fine and community service penalty proposed in Bill 326 Draft 2 is too high. A more reasonable penalty provided in the pioneering San Francisco law, for example, is a fine not exceeding $100 for the first violation, up to a $500 fine for the third violation within a single year.

In addition, as discussed at the August 27 Council meeting, the penalty section refers to “persons” being penalized, not “businesses.” According to Corporation Counsel, this could result in any person employed by a business being cited under this section. For example, in the case of a supermarket, a clerk bagging the groceries in plastic bags could be cited and fined rather than the responsible management of the store. While this may seem an unlikely possibility, it could happen under the bill as written.

A third issue with the penalty section is that it provides for fines collected under the section to be deposited in the County’s Public Access, Open Space and Natural Resources Fund. Bill 326 Draft 2 provides that upon conviction, a person is sentenced to pay the fine and/or perform community service. Being “convicted” implies that this is a matter that will be taken up at District Court. Fines collected by the Court are kept by the State of Hawai‘i and are not available to the County.

· Location in the Hawai‘i County Code – Bill 326 Draft 2 amends Chapter 20 of the Hawai‘i County Code, which deals with refuse and solid waste. Since the bill does not ban plastic from landfills or transfer stations, but rather bans the retail distribution of plastic bags, there is a question whether this is the appropriate section of the Code for such a provision. Instead, it might have been better placed in Chapter 14, General Welfare.

If you have any questions concerning this bill, please feel free to email our office at Lashida@co.hawaii.hi.us, or call me at (808) 961-8304, extension 118. This message was updated on September 19, 2008 at 5:10 p.m.

Welcome to our message for the week of September 15, 2008.

Councilman Higa files a lawsuit against the County. As you may have read in our daily newspapers, Councilman Stacy Higa from Council District 4 filed two lawsuits last week related to the ongoing Melissa Chang EEOC case. In the lawsuit filed in State Circuit court, Mr. Higa essentially claims the Corporation Counsel failed to provide him legal counsel in the Chang case (the Corporation Counsel represented the County of Hawai`i and not Mr. Higa personally, since he was never a named party in that case). In the Federal Court case, Mr. Higa is seeking declaratory relief by asking the Court to set aside an earlier decision by a federal administrative law judge, and preventing the County from possibly settling the EEOC case.

We did not go into detail with the media in responding to these allegations. Councilman Higa is a sitting member of the Hawai`i County Council, and we did not believe it appropriate to comment on the merits of his claims in the midst of a contested mayoral election where he is a candidate. As we instruct our staff, he is owed respect as a County officer, notwithstanding these lawsuits filed against our County.

“Plastic or……” This Thursday is the deadline for the Mayor to sign or veto the recently passed ban on plastic bags on Hawai`i Island. The Hawai`i County Council recently passed a bill that would prohibit retailers and other vendors of goods to issue non-biodegradable plastic bags at the point of sale. This bill drew considerable debate and testimony as it wound itself through the legislative lawmaking process before our Council. Everyone agrees protecting our fragile environment is the responsibility of all of us. However as with many laws that are considered by our lawmakers, there are unintended consequences and other non-apparent issues that need to be considered prior to the enactment of the law.

If you have any comments regarding any of the above, or wish to have any County issue or question addressed, please email me at Lashida@co.hawaii.hi.us. We will try to respond to you directly, or place and informational post in this weekly message column.

Happy Week of September 8, 2008!

Sixth Annual Statewide Municipal Attorneys Training Conference a success. The Sixth Annual Statewide Municipal Attorneys Training Conference, hosted by the County of Hawai`i Office of the Corporation Counsel and held August 20-22, was a huge success. The annual conference, which brings together attorneys, mayor representatives, Council representatives, department heads and other management personnel from all four Counties, has become the premier training in the State of Hawai`i for government officers. Our program this year featured Dr. Kimo Alameda of Hilo who presented on “Cultural Service is Customer Service.” Dr. Alameda’s lively discussion encouraged the understanding and appreciation of the many cultural differences that make Hawai`i so unique and wonderful. Instruction seminars included Waste to Energy proposals, Community Facilities District financing, and Litigation and Counseling & Drafting roundtables. We also had a special presentation by a Bank of Hawai`i economist on the state of Hawai`i’s economy, as well as a 2008 legislative update by Hawai`i State Legislature President Colleen Hanabusa.

Through the generosity of Laserfiche. a hands-on computer lab with 15 laptop computers was set up to deliver training to all county personnel on paperless document imaging and management. The finance directors from all four counties also collaborated with our office to hold their second annual meeting as part of our Sixth Annual conference.

As ever, if you have any questions concerning our County government, or if our office can assist you in heading you in the right direction to get any information or service, please contact me at (808) 961-8304, extension 118, or via email at Lashida@co.hawaii.hi.us. Take care and have a wonderful week!

Aloha! Welcome to our message for the week of August 18, 2008.

Marijuana initiative on the November ballot. As you may have read and heard in the local media over the past few days, the Council last Wednesday via a 5-4 vote overrode the determination of the County Clerk, and decided that the voters in November will decide whether marijuana possession under certain circumstances should be “the lowest law enforcement priority” in our County.

Adam Lehmann, a very nice and respectful person, was the coordinator of “Project Peaceful Sky,” a group seeking to have our police and prosecutors make marijuana possession by adults in certain circumstances the “lowest priority” for both enforcement and prosecution. The initiative also prohibits the County from accepting federal and state funds earmarked for marijuana eradication and interdiction programs, such as anti-drug education at our schools.

Unfortunately for Lehmann, his intended message of seeking to have our law enforcement agencies make the enforcement of drugs like ice a higher priority got blurred in the debate. This is because this initiative drew public testimony from persons who were critical of our police, and who otherwise spoke about the State’s medical marijuana law, which remains unaffected by this initiative.

The public is encouraged to study this issue carefully. If you have any questions concerning this bill, please contact our office or email me at Lashida@co.hawaii.hi.us.

Take care and have a great week!

Aloha! Welcome to our message for the week of July 21, 2008.

Deadline for filing for elective office is tomorrow! Tomorrow (June 22) is the filing deadline for all candidates seeking elective office in the State of Hawai`i. This year for our County government, there will be an election for Mayor, all nine Council seats, and our Prosecuting Attorney. A few years back, our Charter was amended to provide that all elections in our County are “non-partisan.” What this means is seats are not pegged to any political party (Democrat, Green, Republican, etc.), and candidates are not required to declare their political party. The primary election will be held on September 20, 2008. The general election will be held on November 4, 2008. In races where there is only one candidate running, that candidate (assuming he receives at least one vote) is deemed elected at the primary election, and he/she does not need to run in the general election. For those races where there are two candidates, the candidate receiving the most votes in the primary election is deemed to have won the election, and there is no general election. In races where there are three or more candidates, it gets a little more complicated. If any one candidate receives 50% of the vote, plus at least one additional vote, he/she is deemed the winner of the election at the primary, and there is no general election. However, assuming that does not happen, then the top two vote-getters advance to the general election, and the candidate receiving the most votes will then be deemed the winner. The terms of the present Mayor, Council members and Prosecuting Attorney will end at 12:00 noon on December 1, 2008. At 1:00 p.m. on December 1, the new Mayor, Council members and Prosecuting Attorney officially begin service in their respective office.

Many people ask us whether present sitting County elected officials must “resign to run” for elective office. The answer is, “it depends.” It depends on the type of office that elected official is seeking, and when the term of his/her present office ends. As an example, two Council members, Stacy Higa and K. Angel Pilago, are seeking election as Mayor of our County. Since their present Council terms end before the mayoral term they are seeking begins, they do not have to resign their present Council office. However, for those elected officials in our State seeking to run for an office that beings before their present elective term ends, they do need to resign their present office upon them filing their official nomination documents with the Office of Elections.

Aloha! Welcome to our message for the week of July 14, 2008.

Lawsuits and claims against the County. Both the Hawai`i Tribune-Herald and West Hawai`i Today ran articles over the past few days about the monies expended by the County over the past eight years in settling lawsuits. Although the vast majority of comments received commended the County in keeping these expenditures relatively low, there was one comment questioning the dollar amount of claims paid out. The County of Hawai`i employs over 2,300 employees who provide a variety of services to our public. These services range from the design and maintenance of our roads, to lifeguards at our beaches, police and fire service, park maintenance, and hazard mitigation, to name just a few. These services are provided through our real property tax revenues; there is no “use fee” charged the public for the vast majority of these services. If you look closely at the newspaper article, the majority of the monies paid out were limited to just a handful of cases. In cases where the County was legally responsible, reasonable settlements were achieved, and measures to prevent recurrence of any future liability were undertaken. The County, like any large company providing direct service to the public, will always run the risk of liability exposure. No matter how much care is taken in providing for the safety of the community, there will always be that one or two incidences from time to time where the County will be responsible for paying damages on a claim. When considering the alternative of eliminating liability would be the discontinuance of service to our residents, it becomes clear the County’s effort in focusing on mitigating damage and future liability instead of simply cutting off services to our public is much preferred.

That being said, we as a County can always do better. As the legal representative of the County, our attorneys focus on a vision of zero-liability for our client departments. This utopian vision motivates us to work with our client departments to continue providing the best service for our citizens in a safe manner, while also limiting the liability exposure inherent in any enterprise dealing directly with the consuming public. Make no mistake about this—we do not simply “live with” the liability the County pays for. We always learn from the many cases that are filed against the County (even those we win), and look at ways to have our client departments serve our community better.

Aloha! Welcome to our message for the week of July 7, 2008.

County documents at your fingertips. The County of Hawai`i has begun the implementation and integration of Laserfiche. document imaging software throughout many County departments and agencies. Laserfiche. allows a County department to scan a paper document and save it in electronic form. These electronic documents are then housed in a searchable repository and may be retained permanently, without wear or damage to the official record. In addition to the benefits to our County employees in the management of their files, Laserfiche. provides the public with the convenience of being able to review and obtain records on line. As an example, clicking on the legal opinions link at our website will take you to many opinions authored and issued by our office. The Hawai`i County Council has also integrated the Laserfiche. system into their work, and Council documents are now available for the public to review prior to the Council or Committee meetings.

As with all new technology, there may be bugs that need to be worked out, as well as an adjustment period for our County employees who will be using this new tool. With the County’s commitment to move forward with this aggressive technology, we will better serve the public, and provide community members information in a timely manner.

Would you like to serve your County as a board or commission member? There are a number of present vacancies on some very important County boards and commissions. For example, we have vacancies in selected districts on the Planning Commission, Police Commission, Water Board, Salary Commission, and Public Access Open Space and Natural Resources Preservation Commission (PONC). We also have some vacancies on our Board of Ethics. If you are interested in serving, please complete an application by clicking on this link: http://www.hawaii-county.com/mayor/boards_&_commissions.htm.

Many of our board and commission members have commented they found their service to be rewarding, and have enjoyed meeting different people from around our beautiful island. Membership on a County board or commission also provides you the unique opportunity of learning more about our County government, as well as having a role in shaping the future quality of life for all our island residents.

Mayor’s veto of County’s Operating Budget stands. The Council on June 30, 2008 sought to override Mayor Harry Kim’s veto of the operating budget for the County for fiscal year 2008-2009. After lengthy discussion, the override attempt by the Council failed. Voting in favor of the override were Council Members Pete Hoffmann, Angel Pilago, Brenda Ford, Bob Jacobson and Dominic Yagong. Opposing the override were Council Members Donald Ikeda, Stacy Higa, Emily Nae`ole and J Yoshimoto. Veto overrides require a “supermajority” or 6 votes.

Special Counsel hired for County in Waikoloa Workforce Housing project. The Office of the Corporation Counsel awarded a special counsel contract to the law firm of McCorriston Miller Mukai and MacKinnon of Oahu last week. We had previously obtained the consent of the Hawai`i County Council to hire special counsel to assist our attorneys in possible litigation stemming from the Waikoloa Workforce Housing project, and to ensure proper protection of the County’s interests. The contract amount is $150,000, and our attorneys are charged with working together with the McCorriston attorneys as co-counsel. The McCorriston law firm was selected from a number of other law firms that had indicated a willingness to serve as special counsel. In the litigious world we live in today, it simply makes sense for the County to seek out attorneys in our legal community who possess specialized skill and experience in specific areas of practice, on a case-by-case and on an as needed basis. For this particular housing project, it was important for the County to hire attorneys with experience in this area of the law.

Aloha! Welcome to our message for the week of June 16, 2008.

Mayor vetoes County’s Operating Budget. As you all have read in our local newspapers, Mayor Harry Kim has vetoed the Hawai`i County Council’s amended version of the Operating Budget for Fiscal Year 2008-2009. According to our laws, a balanced budget must be in place come July 1, the beginning of the County’s fiscal year. The Mayor vetoed the budget primarily because of his belief that the Council’s expectations with respect to the “fund balance” were not realistic. The fund balance is the money from all County departments, agencies and projects that is left over after the end of the current fiscal year that is “carried over” into the following fiscal year budget. What happens now? The Council may schedule a special session before June 30, 2008 in order to consider an override of the Mayor’s veto. In order for the Council to do this, they need six (out of nine) votes, or a “super majority.” If the Council is not successful in overriding the Mayor’s veto, then the Mayor’s original budget becomes law.

Thank you! Over the past months, we have received many telephone calls, emails, and other communications from grateful members of our community commending the work of our legal staff. Our staff understands and appreciates the trust the community has placed in us as public servants, and we work hard every day to never let the public down. Thank you to all of you who are so kind and took the time to acknowledge us.

Aloha! Welcome to our message for the week of June 9, 2008.

Summer Fun training completed. One of the many good things our County does that rarely gets reported in our local print media are the child care programs sponsored by our Department of Parks and Recreation. With work, financial and other demands placed on many young parents, affordable child care can be a nightmare for many families. Our Summer Fun programs are something many people take for granted; you know--we all went to these summer programs when we were kids growing up here in Hawai`i. For a very nominal fee, our keiki are provided good care during the day, complete with a healthy lunch. This care includes many fun excursions, as well as exposure to many cultural activities and events. This week, Deputy Corporation Counsel Renee Schoen completed training for about 80 Summer Fun workers. The training covered many aspects of avoiding liability and protecting the best interests of both the children and the County. Our office cares for our County clients and works hard to make sure they receive the best instruction possible, even if they are part-time or seasonal employees. Our County cares about its people, and is happy to make these helpful and healthy programs available to our keiki and their families.

Budget sent to the Mayor. The County of Hawai`i’s operating budget for fiscal year 2008-2009 (beginning July 1, 2008), passed out of the Council and has been delivered to the Mayor for his review. As we reported earlier, the Mayor has three options. (1) The Mayor may sign the budget as is, and it will automatically become law. (2) The Mayor may do nothing. If this happens, the budget becomes law without his signature. (3) The Mayor may veto the budget. If the budget is vetoed, it will be returned to the Council for a possible veto override. Our laws require a “super majority” vote of six (out of nine) Council members in order to override the Mayor’s veto. The Mayor has ten days in order to make his decision.

Aloha! Welcome to our message for the week of June 2, 2008.

Welcome to our new legal interns. Our office welcomes three legal interns to our office for the summer.

Madeline Reed just completed her second year of instruction at the William S. Richardson School of Law at the University of Hawai`i at Manoa. Madeline, originally from Berkeley, California, is now a Hilo resident.

Cheryl Shitabata recently completed her first year at the University of the Pacific McGeorge School of Law. Cheryl is a native of North Hilo, and a graduate of Waiakea High School.

Kelci Paiva just graduated from Colorado State University with a degree in Political Science. Kelci, a Hilo native, will enter law school this fall at Florida Coastal in Jacksonville, Florida.

Each year, the Office of the Corporation Counsel seeks to recruit law students and college students who wish to work in a law office and develop their legal skills under the mentorship of our fifteen attorneys and legal staff. If you or someone you know is interested in a position, please contact Deputy Corporation Counsel Brandon A. K. Gonzalez (bgonzale@co.hawaii.hi.us) who oversees our legal intern program.

The cost of marked specialized Police cars. There has been recent criticism of the County and Hawai`i Police Department concerning the purchase of specialized patrol vehicles. The marked police car initiative was one advocated for years by the West Hawai`i Crimestoppers. After a joint County-community task force examined this issue, the Police Department purchased these new vehicles. Unfortunately, the Police Department administration has not had the opportunity to publicly respond to the criticism concerning the cost of these vehicles. The Police Department administration will be briefing the Hawai`i Police Commission at their next meeting on June 20, 2008, beginning at 9:00 a.m., at the King Kamehameha Hotel in Kailua-Kona. Many of the misconceptions and misinformation concerning the cost of these vehicles will be addressed at this meeting.

On a related note, a concerned citizen submitted the following statement in a local newspaper blog entry: “I have REPEATEDLY called the Corporation Counsel, and sent over 100 letter (sic) to police, mayor, feds, etc...” The citizen was outraged concerning the cost of the police vehicles. The attorneys and staff of our office are committed to providing our County clients and the public the very best service. To this end, our staff understands and appreciates the need to always provide to the public we serve any information we are legally and ethically able to share. If anyone ever has any problems concerning obtaining information, or feel they are getting “the runaround” from any County department or agency, please feel free to contact me (Lashida@co.hawaii.hi.us). I would be more than happy to assist any of our citizens and hopefully get them headed in the right direction.

Aloha! Welcome to our message for the week of May 26, 2008.

Budget time for the County of Hawai`i. There have been recent media reports concerning the proposed operating budget for the County of Hawai`i for the upcoming fiscal year 2008-2009, and whether amendments made to the County’s budget by the Council can be properly funded. Here is a link to a letter sent to the Council by Finance Director William Takaba, expressing the administration’s concerns:

Fund Balance Message to Council

Mr. Takaba’s letter contains an excellent question and answer section that provides answers to many frequently asked questions by the public. As ever, if you have any follow-up questions or comments, please feel free to contact me anytime at Lashida@co.hawaii.hi.us, or by calling me at (808) 961-8304, extension 118.

Take care, and have a great week!

Aloha! Welcome to our message for the week of May 19, 2008.

The Sunshine Law and Government Records Law. Our office recently completed our annual training for all new board and commission members on the State Sunshine Law and Government Records Law. Our office hosts this training annually, with four training sessions; two in Hilo and two in Kona. This year, the trainings were well attended by new board and commission members, existing board and commission members who were interested in a refresher, and County personnel who work with our boards and commissions.

One of the many excellent questions raised was how many board members may communicate about board business outside of a properly noticed meeting. The answer is two. No more than two members of a board may discuss board business (matters that are before the board for official action or are reasonably anticipated to come before the board in the near future), so long as no commitment to vote is sought. By way of example, this means two members of the Council may discuss official Council business privately, so long as (1) they don’t discuss the matter with any other member of the Council, and (2) they do not promise to vote a certain way, or seek a commitment from the other Council member to vote a certain way.

Like many of our laws that regulate the conduct of government officers and employees, the Sunshine Law is “self regulating.” This means it is incumbent on all County officers and employees to not only abide by the letter but also the spirit of the Sunshine Law. To this end, our attorneys consistently advise our County clients to err on the side of caution, and do nothing that would serve to compromise the trust of the public. There is a famous adage in the law that goes, “If it seems wrong, it probably is.” With the Sunshine Law, with the public trust at stake, this is very good advice indeed.

If you have any questions about our Sunshine Law or Government Records Law, please feel free to contact me. We will do our best to answer your questions. My email address is Lashida@co.hawaii.hi.us, and my direct telephone number is (808) 961-8304, extension 118. Take care, and have a wonderful week.

Aloha! Welcome to our message for the week of May 12, 2008.

Salaries of County government officers. There have been recent editorials and letters in both the West Hawai`i and East Hawai`i newspapers concerning the Hawai`i County Salary Commission’s decision to increase the salary for Council members. A statement by a concerned citizen caught my attention. This citizen (who opposed the salary increase for Council members) criticized the Mayor, Council, Salary Commission members, and categorized Commission members as “bureaucrats.”

In 2000, the voters of the County of Hawai`i amended the Hawai`i County Charter to provide that the Salary Commission would operate independent of the Mayor and Council. Previous to this major change, Council approval was necessary for any salary increase (or decrease) for a County officer. The voters adopted this change in large part as an effort to “de-politicize” the process, and allow the Salary Commission to act free of influence from either the administration or Council.

Salary Commission members are non-paid citizen volunteers from our community. They have no “hidden agenda” or ulterior purpose other than to perform their duties consistent with the requirements of our Charter; to ensure that the salary and benefits of County officers “have a reasonable relationship to compensation in the public and private sectors.”

There are presently four vacancies on the nine-member Salary Commission. We are looking for dedicated and concerned citizens from Council Districts 4 (Hilo), 5 (Puna), 6 (Ka`u) and 7 (South Kona) to serve as Salary Commissioners. If you are interested in serving on this Commission, please fill out the application form below and email to Lashida@co.hawaii.hi.us. We will make sure you are considered for nomination to this very important County commission.

Take care, and have a wonderful week!

Application - Hawaii County Boards and Commissions

Aloha! Welcome to our message for the week of May 5, 2008.

What is the difference between the Charter and the Hawai`i County Code? The Hawai`i County Charter is much like a constitution for our County. State law allows all four counties (Hawai`i, Maui, Kauai and Honolulu) to create their own charter. The Charter organizes our County government into two distinct branches; the administration (headed by the Mayor) and the legislature (the Hawai`i County Council). The Council is responsible for the formulation of general policy for our County. They do this by crafting and passing legislation (our laws). These laws, called “ordinances,” become part of the Hawai`i County Code, the collective laws of our County.

On the other hand, the administration is responsible for carrying out and enforcing the laws passed by the Council. The doctrines of “separation of powers” and “checks and balances” ensures that both branches of our County government perform their specific functions, while providing built-in safeguards that prevent one branch from overreaching its authority into the jurisdiction of the other. Our County supports the “strong mayor, strong council” doctrine. This doctrine promotes the harmonious working relationship between the two branches, and encourages County officers and employees in both branches to work together to further the common good of our island community.

Since our Charter is much like a constitution, amending it is not easy. Only our voters may amend the Charter. The Council is required to pass an ordinance authorizing the amendment of the Charter. A “super majority” (6 Council votes) is required to allow the voters the opportunity to seek changes to the Charter. The bill must go through three public readings before the Council. Once on the ballot, the majority number of votes cast on the particular measure is necessary for the Charter amendment to pass. The Mayor is not involved in this process.

The process for amending the Hawai`i County Code is different. Council members introduce bills (ordinances) that require two public readings. A bare majority (5 Council votes) is required to pass a bill, unless it is a bill seeking to amend the County’s budget, which requires a super majority (6 Council votes). Once a bill passes through the Council, the Mayor has three options: The Mayor may (1) sign the bill into law, (2) veto the bill, or (3) do nothing.

If the Mayor does nothing, the bill becomes law without his/her signature. Sometimes mayors do this as a way of indicating they do not necessarily agree with the legislation passed by the Council, but do not feel a veto is appropriate.

If the Mayor vetoes the bill, the Council has the opportunity to override the veto. They may do this by garnering a super majority (6 Council votes). If the Mayor’s veto is overridden, the bill becomes law.

As we describe in our FAQ section of this website, our office cannot ethically dispense legal advice to the public at large. However, our office is always more than willing and happy to provide the public we serve general information concerning our County government, or steer you in the right direction to get your questions answered. I invite you to contact me via email at Lashida@co.hawaii.hi.us, or at (808) 961-8304, extension 118, if I may ever be of service to you. Take care, and have a great week!

Aloha! Welcome to our message for the week of April 28, 2008. We hope you all will have a wonderful and healthy week.

To appeal or not to appeal. As we discussed in our messages below for the weeks of April 7 and 21, the case of Melissa Chang v. County of Hawai`i, Hawai`i County Council has consumed significant headlines and discussion in our local media. The public often asks when does the County decide to appeal a ruling adverse to it, and who is responsible for that decision? To appeal a trial or appellate court decision, or the decision of an administrative law tribunal such as the forum utilized in this case, a “notice of appeal” must generally be filed within a specified period of time following the entry of the decision. In cases involving our County, these notices are generally filed routinely so long as our attorneys have a good faith belief as to the existence of an issue appropriate for appeal.

In some cases, courts have held that failing to take the necessary steps to file an appeal may subject an attorney to discipline as this may constitute ineffective assistance of counsel. Of course, many cases that are appealed do not run a full appellate course. Negotiations normally ensue as there are risks for all parties involved in a case, in the event an appellate court or tribunal reviews the proceedings of the lower court. In this particular case, although it is the decision of the Corporation Counsel to file the notice of appeal, it will be the Council who will ultimately make final decisions with respect to pursuing the appeal to its end, or negotiating a settlement.

Our office takes very seriously our responsibility of being stewards of the taxpayer’s money. For this reason, the Council will be carefully briefed and only responsible recommendations will be made with respect to the future course of this case. One citizen in a local media blog feared this case may take a similar course as the William Silva v. County of Hawai`i rigged police promotions case, which occurred prior to the present mayoral and Council administrations. No doubt these fears may be justified, assuming this case is not followed carefully and prudently. However, our commitment to our taxpayers and County, as in all cases, is to zealously defend our County coffers while being fair and just to all legitimate claimants.

Finally, the same blogger asked whether this Chang case will incur significant legal expense, like the Silva case. The answer is no. In the Silva case, the State Supreme Court determined there was a conflict of interest between the named defendants, and this necessitated the hiring of numerous special counsel (private attorneys) to defend each defendant (including the County). This is not the case here. Our attorneys are scheduled to handle the entire defense of this case. Our attorneys are salaried professionals, who are not paid overtime or any additional compensation for working beyond “normal work hours.”

Legal assistance for those in need. Our Hawai`i Supreme Court rules recommend all attorneys in our State provide pro bono legal service to the community, particularly for those persons who may not otherwise be able to afford to hire a lawyer. I am happy to report Corporation Counsel attorneys in our County take this charge very seriously, and provide pro bono service to clients so long as there is no conflict with the County. Our attorneys also serve on many private non-profit boards in our community and donate their time and share their expertise with kahiau. One board I serve on is Volunteer Legal Services Hawai`i. VLSH is committed to recruiting attorney volunteers in our community to provide legal representation in all types of non-criminal cases for those members of our community who cannot afford an attorney. If you or someone you know needs a lawyer, but cannot afford to hire one, please call the VLSH offices toll free on Oahu at (800) 839-5200. Assuming you qualify, VLSH will locate an attorney to represent you or take your case free of charge.

The staff of the Office of the Corporation Counsel feel very grateful we have the opportunity to serve our public. Our core value commitments of professionalism, accountability and teamwork guide us in everything we do, everyday. If you have any comments, or if you need assistance from our office in guiding you in the right direction in our County, please email me at Lashida@co.hawaii.hi.us, or call (808) 961-8304, extension 118. Please have a safe and wonderful week!

Aloha! This has been a busy week in the County of Hawai`i, so we are updating you with some significant developments that occurred before our Hawai`i County Council at its most recent meeting on Tuesday, April 22, 2008.

Bill 270: A proposed Charter amendment seeking to create an Office of Police Oversight and Complaints. As reported in our message for the week of April 14, 2008, Councilman Bob Jacobson (Council District 6) earlier introduced legislation seeking to amend our Charter to create an Office of Police Oversight and Complaints. Since this was a proposed Charter amendment, three separate readings on three separate days is required by our laws. At the Council meeting on April 22 (first reading), the majority of the Council voted against this bill. The Council also agreed to waive the attorney-client privilege with respect to our legal analysis and recommendations concerning this bill. Click on this link to view our opinion:

04-07-08 Bill 270 - Ordinance to initiate Charter Amendment to Article III, VII and XIII relating to the establishment of a Office of Police Oversight and Complaints

Bill 209: Authorizing the Board of Ethics to impose fines for violations of the County Code of Ethics. The Council unanimously voted to approve Bill 209, which amends our County Code and Code of Ethics, and gives the Board of Ethics the authority to levy fines up to $1,000 against County officers and employees who are found to have violated the Code of Ethics. This was the second and final reading of this bill, so it will now go to the Mayor for his signature or veto. However, prior to exercising this authority to the fine, the ordinance requires the Board of Ethics to develop rules for the administering of the fines. The bill also limits applicability of the law to County “officers;” persons like the Mayor, Council Members, the Prosecuting Attorney, department heads and their deputies, all County attorneys, and board and commission members.

The County’s Code of Ethics governs all County officers and employees, as well as former employees in limited circumstances. It seeks to promote the highest standard of conduct by all County personnel in their delivery of services to the public. Our office provides legal and clerical support to the five-member board (all community volunteers). If you have any questions regarding the Board, or if you wish to file a complaint, please feel free to contact our office or me directly.

Bill 257: A proposed Charter amendment seeking to revise the initiative and referendum process. One of the important rights our citizens enjoy is the right of initiative and referendum. This allows citizens to petition our government to have laws passed or repealed at the ballot. No doubt the present process in our Charter may at times be confusing. Through the effort of the League of Women Voters and other concerned citizens, a new and improved process has been presented to the Council. On April 22 the Council approved this bill at its third and final reading. The voters of our County will now be asked at the next election whether it is their will to amend our Charter to adopt this new process, or allow the existing process to remain in our laws.

Bill 262: A proposed Charter amendment seeking to reorganize the County Clerk’s Office, and establish an Independent Audit Function. Due to a proposed amendment to this bill, the Council decided to hold this bill over for another reading. If the Council eventually passes this bill, the voters of our County will determine whether there should be an Independent Audit Function within the County’s legislative branch. What is contemplated is the Legislative Auditor, whose duties have historically been one of assisting the Council in the drafting of legislation, will now take on an independent audit function. Transparency in government is crucial in establishing and maintaining the public trust. To this end, providing for an office that acts independent of both the administration and Council, and who is tasked with reviewing both operational and fiscal management and procedures within all County departments, agencies, boards and programs, will promote this trust.

Bill 224: The Council overrides the Mayor’s veto of the smoking ban at all County parks and facilities. The Council garnered the sufficient number of votes to override Mayor Harry Kim’s veto of the smoking ban at all County parks and facilities. Since the Mayor’s veto has been legally overridden, the ordinance immediately becomes law. Smoking is now prohibited at all County parks and facilities.

As ever, if I may be of assistance to you in any way, or provide you information about our County or head you in the right direction, please email me at Lashida@co.hawaii.hi.us, or call me at (808) 961-8304, extension 118. Have a great rest of the week!

Aloha and welcome to our message for the week of April 21, 2008.

The Council’s request to be briefed on the Melissa Chang case. As reported last week in our local print media, Council Member Dominic Yagong (District 1) has requested the Corporation Counsel schedule an executive meeting (closed to the public) to discuss Melissa Chang v. County of Hawai`i, Hawai`i County Council. In response to this request, our office issued the following letter today:

Melissa Chang v. County of Hawaii - Hawaii County Council

The setting of Council agenda items is within the discretion of its chair. If this matter is scheduled in the upcoming weeks at a meeting of our Council, our office will be prepared to brief them on this case.

As we reported previously, the Administrative Law Judge’s order imposing the Federal Privacy Act prevents any of the parties from discussing the contents of the records of this case publicly. However, as we note in our letter, this does not prevent our office from discussing the case with the Council, since they are the client. Further, the Hawai`i Rules of Professional Responsibility mandate that attorneys keep their clients reasonably informed on material developments in cases, upon request of the client.

Shouldn’t the information be shared with the public, since the taxpayers are the client? Understandably, one of the common misconceptions in public sector law is that “the public is the client.” This is not legally correct. In the County of Hawai`i, we consider the entire County as an organizational client. Individual County officers and employees, acting within the course and scope of their employment are our clients who we share information with under the protection of the attorney-client privilege. This privilege is necessary to promote and cultivate frank discussion on matters at a deliberative stage. The privilege is also necessary since we often discuss with our County clients certain liabilities that may unnecessarily expose our County to financial loss if such information is made public. However, our attorneys and staff all understand very clearly that the public we serve, although not legally considered “clients,” are owed the highest degree of competence in our representation of the County. As public servants, we must understand the public trust is dependent on the transparency of our local government and the need to have the County’s business done openly as much as legally and ethically possible. To this end, we often encourage our County clients to waive the privilege in matters that if released, would not compromise the interests of the County. Thankfully, many of our County clients share in this belief, and with the advent of the internet, information concerning our County that was not historically disclosed to the public is readily available to our citizens.

We also recognize court orders and other laws sometime restrict the ability of the County to share information publicly. As attorneys, this is something we must honor. However, under our laws, once the reason for the sealing of records or an executive meeting no longer exists, or with the passage of time or the extinguishing of a significant privacy interest, the records of a case or matter generally become public. Further, the County cannot expend funds without information concerning the amount being made public. For these reasons, although information may be generally withheld during the early stages of any case due to court orders or statutory laws, the information will generally become public in the near future.

Aloha and welcome to our message for the week of April 14, 2008.

Independent Police Auditor. Last week the Hawai`i County Council Committee on Public Works and Intergovernmental Relations voted 5-2 in opposition to a Charter amendment that would create an Office of Police Oversight and Complaints. This proposal was brought forward by Council Member Bob Jacobson, who alleged the current system of police misconduct investigations and oversight was inadequate. Presently, citizens who have complaints against police officers or the police department may bring their complaints forward in one of two ways. They may make a complaint directly to the Police Department administration (the complaint is then investigated by the Internal Affairs Division), or they may make a complaint to the Hawai`i Police Commission (these complaints are investigated by the Commission, with the assistance of the Internal Affairs Division). What was not widely reported in the media nor discussed before the Council was the fact that pursuant to State law, each Police Department in our State must make an annual report to the State Legislature detailing the number of police misconduct cases and the discipline meted out. A recent report highlighted the fact the County of Hawai`i has the highest per capita number of police officers who were terminated and disciplined; this is not due to the number of “bad cops” in our department, but representative of the commitment by our Police Chief Lawrence Mahuna in the prompt and thorough investigation of misconduct cases, and his willingness to mete out appropriate discipline. In sum, the majority of the Council believed the present system, although not perfect, is working effectively, and the Commission is on the right track in incorporating improvements to make their system better. If you or someone you know has a complaint against a police officer or the Police Department, you may make a complaint in person at your local police station, or file a complaint with the Police Commission. The Police Commission is located in the Hilo Lagoon Centre, 3^rd Floor, 101 Aupuni Street in Hilo. Their telephone number is (808) 961-8412. Since I provide direct legal support to the Commission, please feel free to contact me if you like (Lashida@co.hawaii.hi.us), and I can assist you with filing a complaint.

Independent Legislative Auditor. A proposed Charter amendment that did pass second reading (three readings are required) before our Council last week was an effort to amend our laws to create an Independent Legislative Auditor. This proposal would mandate that the Legislative Auditor conduct performance and financial audits of all County departments, agencies and entities that receive County funds. This is an excellent step in the right direction to promote transparency in County government and to promote accountability. If this measure passes during the 2008 election (a majority of votes cast must approve all Charter amendments), the present Office of the Legislative Auditor will “transform” into an auditing office. Presently, the Legislative Auditor assists Council members with the research and drafting of legislation. Their new audit duties will be a significant departure from their present responsibilities, but a welcome part of regaining and maintaining the trust of the public we all serve.

Aloha and welcome to our message for the week of April 7, 2008.

Individual privacy rights and the media. The April 5, 2008 edition of our local papers included a story concerning a sexual harassment complaint filed by a County employee against a sitting Council member. When our office was contacted for comment, we could not make any substantive statement, as there is an order by a federal administrative law judge sealing the records of this case. No doubt this may be very frustrating for members of the interested public. It is also very frustrating for the attorneys in our office, as these second-hand and “confidential sources” in many cases often provide incorrect or misleading information. In this particular case, the bottom line is our attorneys were not given a choice whether to release information or not. As attorneys licensed in Hawai`i, we are obliged to comply with the Hawai`i Rules of Professional Conduct and to obey all orders of our courts. The records of this case were sealed upon request of the complainant and her attorney. Until such time the federal administrative judge lifts his order, or our office is directed by some other tribunal to do otherwise, we must respect and honor the court’s decision. For a more thorough analysis of our position that was conveyed to the Hawai`i Tribune-Herald, please click on the PDF file below:

11-30-07 Letter to Newton Chu from Lincoln Ashida re HTH request

The duty to defend our County officers and employees. In cases where County officers or employees are sued or claims are made against them for workplace misconduct against subordinate employees, the County will generally always be named as the responsible party. This is because complainants normally allege the County is under obligation to provide a workplace free of intimidation. This is a requirement of all employers, and a responsibility our County takes very seriously. Members of the public often ask whether the County would be financially responsible for the payment of any damages, in the event after all appeal processes conclude the County was to be found responsible. The answer is yes. This is because under our laws in the United States, the employer (the County) is responsible under the legal doctrine called respondeat superior. This well recognized doctrine says that the employer is responsible for the actions of its employees who were acting within the course and scope of their duties. In order for an employee to be “outside their duties,” the departure must be significant. Further, under American law, in order to prevent employers from “claiming ignorance,” our courts generally require the employer to answer for the actions of its employees. Some members of the public often suggest the County should seek personal reimbursement from those individual officers or employees who may be found responsible to have created a hostile work environment. Under our laws, this is not permitted, as the law requires employees be legally defended, so long as their actions were within the course and scope of their employment. As cited above, all attorneys in our State are required to honor the law. No doubt many in our community may disagree with the law, and question its wisdom. Unfortunately, attorneys are not free to cavalierly disregard those laws or regulations they may disagree with. Proper redress for the public in such cases is an appeal to your lawmakers to change the law.

Aloha and welcome to our message for the week of March 31, 2008.

Briefings by the Mayor with the Hawai`i County Council concerning lava flow activity. It was reported recently in the local media that the Big Island Press Club had awarded its annual “Lava Tube” award to the Mayor and Hawai`i County Council based on an informational briefing convened by the Mayor on August 21, 2007. The reason this information briefing was sought by Mayor Kim was due to the misinformation being circulated in the community concerning the recent volcanic activity and lava flow, and that some Council members were receiving calls from their constituents, asking about potential dangers. Mayor Kim recognized the importance of having our County leaders briefed on the most updated information, and to prevent the dissemination of misinformation to the public. The Press Club criticized our Mayor and Council, alleging that the State Sunshine Law had been violated by this informational briefing, since official meeting procedures like the posting of an agenda and providing advance notice had not been given. Immediately after the Press Club had voiced its objections in August 2007, the County Clerk and our office embraced the Press Club’s request to the State Office of Information Practices to investigate this matter and to opine whether the Sunshine Law had been violated. Instead of waiting until the State agency charged with Sunshine Law interpretation could weigh in on this matter, the Press Club publicly awarded this dubious Lava Tube distinction to the Mayor and Council. Earlier this month, the OIP released its opinion, finding the Mayor and Council had not violated the law, and that the informational briefing was perfectly legal.

To the credit of the Hawai`i Tribune-Herald, a follow-up story was written to properly inform the public of the OIP’s decision, and to possibly cure any earlier impression given by the Lava Tube award that the Mayor and Council had somehow violated the law. Our office commends the Press Club and Tribune-Herald for bringing this issue forward. Ironically, Mayor Kim’s desire to promptly brief all Council members to ensure that accurate information would be released to the public by our County leaders was the very basis upon which the Press Club launched its complaint, claiming that this prompt action by Mayor Kim and our Council that did not violate our law somehow contributed to government secrecy. What is also not reported in the media is that Mayor Kim has afforded the media unprecedented access to the Civil Defense Agency’s Central Command Center, to the point of allowing members of the press to witness firsthand and report on meetings between federal, state and county officials that would otherwise not be reported.

The Sunshine Law is a very important part of our laws that regulate boards and commissions in our local government. This law ensures that all meetings of boards and commissions (including our Council) that deal with the board’s official business are properly noticed so that the public can have a meaningful opportunity to participate. In some cases, the County of Hawai`i has gone above and beyond the requirements of the law in order to afford the public an opportunity to participate. In addition to providing the public with videotaped and captioned programming of all Council committee and full Council meetings, as well as videoconferencing from Kona, Hilo and Waimea to enhance the public’s ability to participate in their County government, our County Clerk has embarked upon an aggressive project that will allow the public to view Council proceedings in “live time.”

For further information about the Sunshine Law that may not be reported in the mainstream media, or if you have any concerns about any County board or commission, please contact me at (808) 961-8304, extension 118, or via email at Lashida@co.hawaii.hi.us. Our County’s commitment to you the taxpayer is we will always follow the law, and will do nothing to undermine your trust in our County government.

Solid Waste Advisory Committee. State law (HRS Section 342G-22) requires each county to form a Solid Waste Advisory Committee (SWAC) composed of representatives from citizen organizations, industry, the private solid waste industry operating within the county, the private recycling or scrap material processing industry operating within the county, the county coordinator, and any other persons deemed appropriate by the mayor. This committee is required to review the County’s integrated solid waste management plan. If you or someone you know is interested in applying for appointment to this committee, please contact the Department of Environmental Management at cohdem@co.hawaii.hi.us to request an application form, or simply contact our office at Lashida@co.hawaii.hi.us

Aloha and welcome to our message for the week of February 4, 2008.

Proposed smoking ban at all County parks and recreational facilities. On Tuesday, February 5, 2008, the Hawai`i County Council Committee on Public Safety and Parks and Recreation will consider Bill 224, seeking to amend our County Code by banning the smoking of cigarettes or tobacco products or the use of any tobacco product at all County parks and recreational facilities. In 2007, the Council amended the County’s anti-smoking law to include Kahalu`u Beach Park. This new legislation proposed by Council Member J Stanley Yoshimoto (District 3), seeks to similarly ban all cigarette smoking and tobacco products at all County parks and recreational facilities island-wide. The Committee meeting begins at 9:30 a.m. at the Council Room in Hilo. For the public’s convenience, videoconferencing will be available in Kona and in Waimea.

Proposed Amendments to Geothermal Relocation Program Allow Broader Use of Geothermal Royalties. On Tuesday, February 5, 2008, the Hawai`i County Council Committee on Finance will consider Bill 225, proposed by Council Member Emily Nae`ole, which would amend our County Code by revising the Geothermal Relocation Program. Under the legislation, the special fund currently designated for geothermal relocation of displaced residents could also be used for “community benefits” in the Puna District, such as road improvements, land acquisition, and parks and recreational facility needs. The geothermal relocation fund is primarily fed with the geothermal royalties that our County receives each year from the State Department of Land and Natural Resources. The Committee meeting is scheduled to begin at 10:45 at the Council Room in Hilo. One of our newest attorneys, Molly Lugo, worked very closely with Council Member Nae`ole’s staff in crafting a bill that would be legally sound and meet the current needs of the area residents.

Proposed ban on panhandling. On Wednesday, February 6, 2008, the Hawai`i County Council will hear at first reading Council Member Emily Nae`ole’s (District 5) proposed island-wide ban on panhandling. Earlier media reports indicated Councilwoman Nae`ole initiated this legislation in response to requests from constituent business owners in the Puna district who expressed concern over excessive panhandling. The existing ordinance, successfully introduced years earlier by former Councilwoman Bobby Jean Leithead-Todd, prohibits panhandling in the downtown Hilo area. Councilwoman Nae`ole’s proposed bill seeks to expand this prohibition County-wide. When this bill was first heard in Committee two weeks ago, there was concern raised by one Council member regarding the constitutionality of the bill. Amendments made to the original bill will hopefully address these concerns and provide a fair and enforceable bill for all our island residents. The Council meeting begins at 8:30 a.m. However, bills for first reading like the panhandling bill will not be heard until 10:30 a.m.

Pro bono is good for our community. In an effort to promote the donation of time and service to those less fortunate in our community, Hawai`i Supreme Court Chief Justice Ronald Moon challenged all attorneys in Hawai`i to look into their hearts and provide pro bono legal service. In 2005, Corporation Counsel attorneys accepted this challenge and began staffing Neighborhood Legal Clinics in Hilo. These monthly clinics allow citizens in our community who qualify access to an attorney to discuss legal problems or issues they face in their life. Often, understanding your legal rights and responsibilities or knowing where to turn for services can make all the difference in the world. If you or anyone you know could benefit from free legal service, please call Volunteer Legal Services Hawai`i toll free on Oahu at (800) 839-5200. Subject to qualifying, Volunteer Legal Services Hawai`i may refer you to one of their pro bono attorneys or enroll you in one of the upcoming Neighborhood Legal Clinics.

If you have any questions or comments, please contact me at (808) 961-8304, extension 118, or via email at Lashida@co.hawaii.hi.us. Take care, and have a wonderful week!

Week of January 28, 2008.

Hawai`i Police Commission. The Hawai`i Police Commission completed its evaluation of Police Chief Lawrence K. Mahuna at the Commission’s last meeting on January 18, 2008 in Kamuela. Our Hawai`i County Charter requires the Commission to evaluate the Chief at least annually, and send a report to the Mayor, Managing Director and Council. The evaluation was transmitted from the Commission to the Mayor, Managing Director and Council early last week. If you would like to see a copy of this evaluation, please contact the Police Commission office at 961-8412, or email me at Lashida@co.hawaii.hi.us.

Boards and Commissions. There are still vacancies on some County boards and commissions, and the County is actively seeking qualified volunteers. If you feel you could contribute in helping make our island community a better and stronger place, please consider volunteering for a board or commission. Go to the County’s website at http://co.hawaii.hi.us/, and click on the board/commission link to read about all of our boards and commissions. The vacancy information however is not updated, so if you have questions about specific board or commission vacancies, please contact me.

Hawai‘i County is an Equal Opportunity Provider and Employer