Charter, legal opinions appear ambiguous on mayor’s powers

Complications arise over rejected department head appointments

Ever since Mayor Michael Victorino appointed three rejected department heads to temporary positions, County Council members and the administration have been split over one main question -- does the mayor have the power to do that?

According to two recent legal opinions from corporation counsel, it's complicated.

The charter says that the mayor has 60 days after taking office to appoint his director nominees. The council then has 60 days to confirm or deny them. If the council rejects a nominee, the charter says that person "shall not continue in office" and gives the mayor another 60 days to find a replacement. However, the charter does not say who must run the department in the meantime and does not say what happens if the mayor fails to nominate someone within 60 days.

To muddle matters even more, an earlier section of the charter gives the mayor authority "to appoint, on a temporary basis, an administrative head of any department," which is what Victorino used to justify his decision.

In a Feb. 21 memo to council Chairwoman Kelly King, corporation counsel seemed to side with the council's understanding that once the mayor receives a certified copy of a resolution denying a nominee, "the disapproved nominee should vacate the subject office." The memo also said that once a disapproved nominee leaves the department, the deputy director or first deputy would be in charge. If the deputy position is also vacant, the mayor can appoint someone temporarily. And, unless the charter changes, the council does not have the power to appoint a director if the mayor fails to do so within 60 days of a denial.

But when asked if the mayor could temporarily appoint department heads rejected by the council, corporation counsel said yes, in a memo sent to King on Thursday.

"It is our position that each subsection stands alone and can be read in a way that neither renders the other meaningless," the memo said, addressing the seeming conflicts in the charter. "Courts are bound to give effect to all parts of a statute."

The memo pointed out that the section that says a disapproved nominee "shall not continue in office" also does not explicitly prohibit that same person from being appointed as a temporary or interim director.

And, the section that allows the mayor to temporarily appoint a department head does not specifically limit or restrict this power in any way, which is why corporation counsel thinks Victorino was within his rights to appoint the interim directors.

The ambiguity of the two legal opinions -- and concerns over conflict of interest -- is why the council wants to hire outside legal representation. On Friday, the council referred to the Governance, Ethics and Transparency Committee a resolution that would allow the body to hire special counsel to look into the matter and get a ruling from a judge. But, the longer term solution, council members say, is to change the charter and close the loopholes that this inaugural round of director confirmations has begun to expose.

* Colleen Uechi can be reached at cuechi@mauinews.com.