From the Desk of Lincoln Ashida Archives

COUNTY OF HAWAI'I
OFFICE OF THE CORPORATION COUNSEL

From the Desk of Lincoln Ashida Archives

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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