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Council to review legality of renaming rejected heads

Committee to look into hiring of outside counsel, charter change

By Colleen Uechi 5 min read

WAILUKU -- The Maui County Council is looking to get an outside legal opinion on whether the mayor has the power to appoint interim department directors who have been disapproved as permanent appointees by the council.

On Friday, the council voted to send the issue to the Governance, Ethics and Transparency Committee, which will discuss whether to hire an outside attorney and to seek a ruling from a judge.

The disagreement between the mayor and council arose when Mayor Michael Victorino announced on Feb. 25 that he had decided to temporarily appoint three rejected directors to their old positions while he sought their replacements.

Former Prosecuting Attorney John D. Kim was appointed until March 1, Housing and Human Concerns Director William Spence was appointed until March 17, and Public Works Director David Goode was appointed indefinitely. Victorino said the Maui County Charter gave him the authority to do so; council leadership disagreed.

On Friday, Council Vice Chairwoman Keani Rawlins-Fernandez hoped to fast-track a resolution that would allow the council to hire outside legal representation. She pointed out that the clock was already ticking on the mayor's next appointments. Sending the item to committee could delay the council's chance to hire an outside attorney and render any future legal opinion moot.

But other council members disagreed and said the issue needed to go to committee.

"I think part of the discussion in committee would be helpful, because I think one of the things that we should be considering is a charter amendment," said Council Member Riki Hokama, adding that because of the county procurement process, it could take weeks or a month to hire an attorney.

Council Chairwoman Kelly King sided with Hokama.

"If we try to litigate this in court, it's going to be way beyond the point where we actually have new appointees named anyway," she said. "And so my preference is to look at how we can clarify the charter."

Rawlins-Fernandez said she agreed that "a long-term fix is needed via charter amendment." But, that wouldn't happen until the next election, and in the meantime she worried that the same problem could happen again -- the council disapproves a nominee and the mayor reappoints him or her temporarily.

"That's why I feel that our council should push forward in getting a judge's decision, because as you've seen, we've gotten conflicting opinions from our corporation counsel, and by moving forward now in anticipation of the next confirmation process, we'll be better prepared in knowing what is allowed by the mayor."

Before the council voted, King asked Rawlins-Fernandez if the intent was to go to court against the administration with the special counsel.

"By hiring legal counsel, we could rely on their expertise," Rawlins-Fernandez said. "One legal option is quo warranto in getting the judge's opinion on this matter."

Deputy Corporation Counsel Jeffrey Ueoka explained that "quo warranto" would basically mean going to court to ask the judge "for a declaratory action showing cause for what happened." The costs would depend on how much the council would pay attorneys to go through with a lawsuit.

Rawlins-Fernandez said she spoke to Office of Council Services attorneys, but that they didn't have the resources to put together a case for the council.

Council members ended up voting 6-3 against waiving the council's rules and skipping the committee stage with Rawlins-Fernandez, Tamara Paltin and Shane Sinenci on the losing side. The item will be heard in the Governance, Ethics and Transparency Committee before going back to the full council. The body cannot hire outside legal representation until it adopts the resolution by a two-thirds vote (at least six in favor).

The few testifiers who addressed the issue on Friday supported the efforts to hire special counsel.

"Someone's been vetted by the very process we voted to have in the last election," said Henry Lindo Jr., who testified remotely from Molokai. "And it's disapproved for permanent appointment. How can their temporary reappointment be beneficial? And what does that say about the integrity of our charter and the process?"

Testifier Kai Nishiki was also in favor.

"This council is receiving legal counsel that contains conflict of interest," Nishiki said. "Because Corp Counsel is advising the mayor, and the mayor has the authority to fire Corp Counsel. . . . They could opine in favor of their boss."

On Friday, the council also voted to:

• Refer to the Governance, Ethics and Transparency Committee the issue of Bank of America's commitment to provide $150 million in loans for Native Hawaiians on Hawaiian homelands.

• Refer to the Governance, Ethics and Transparency Committee the proposal to limit oral testimony at council to no more than three agenda items at one time. Testifiers currently are allowed three minutes per agenda item. The measure would allow testifiers to speak on other items once all testifiers have had their chance.

• Refer to the Economic Development and Budget Committee the issue of salary increases for department directors, deputies, the county auditor and Bargaining Unit 3 positions, which include lifeguards, inspectors and clerks.

• Waive committee review of budget adjustments to the Department of Fire and Public Safety, which was facing a shortfall due to the West Maui fires and other recent disasters. The item will be up for second reading at the next council meeting.

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

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