Panel votes to seek special counsel

Members want legal opinion on mayor’s interim appointments

WAILUKU -- The Maui County Council may spend up to $30,000 to seek special counsel to have a judge issue an order regarding the mayor's interim appointments of rejected department heads.

The council's Governance, Ethics and Transparency Committee voted 6-3 Thursday to recommend approval of a resolution to employ special counsel. The resolution now heads to the full council for approval.

Voting in favor of the measure was the resolution's author, Vice-Chairwoman Keani Rawlins-Fernandez, as well as Chairwoman Kelly King, Tasha Kama, Tamara Paltin, Shane Sinenci and committee Chairman Mike Molina with reservations.

Those voting against the recommendation were members Riki Hokama, Yuki Lei Sugimura and Alice Lee.

The issue came to light after the council in February denied three directors -- David Goode for public works, John D. Kim as prosecuting attorney and William Spence as housing director. Mayor Michael Victorino then placed the directors back in their positions on an interim basis until replacements could be found.

The Maui County Charter says that a nominee "shall not continue in office if the council denies the appointment." The mayor then has 60 days to submit a new name. However, the section does not say who can lead those departments in the meantime.

Victorino had said he was not "exploiting a loophole in the County Charter" and that it was a "temporary appointment to ensure ongoing quality public services."

He also suggested at the time, that perhaps a charter amendment is needed to clear up ambiguities, but it would be up to the council to propose one.

Rawlins-Fernandez at the time disagreed with Victorino's decision, along with King.

Rawlins-Fernandez pointed to the charter section that says nominees "shall not continue in office" once disapproved.

King said the mayor's action "appears to contradict the council's specific intent" when it proposed the charter amendment allowing the council to confirm the mayor's nominees.

In a March 7 letter to the council, corporation counsel said that the mayor does have the authority to appoint on a temporary basis the same individual who has been disapproved by the council as the administrative head of the department.

In response to some council members suggesting a charter amendment to help solve the issues, King on Thursday suggested getting a legal conclusion from a judge on "which one is right" first.

And if that doesn't work out, then the council could look at a charter amendment and put the onus on the public, King said.

But, she also noted, "I think we need a legal opinion as soon as possible."

Rawlins-Fernandez said at the meeting that the council needs to take a stance on the issue and that the administration should not be allowed to "usurp our authority under the charter which is very clear."

Those in favor of getting a judge's opinion said they wanted a clear answer to help prevent the situation from occurring again. They also noted that they would have to wait until the next election for a charter amendment, while a court decision would come faster.

But Council Member Lee questioned what would happen if the council received a decision it did not like.

She wondered if appeals would be filed, which would raise the cost to the taxpayers.

Hokama felt the issue was "moot" with none of the rejected directors still in office and rather wanted to see the issue solved with a charter amendment so it would be "black and white."

* Melissa Tanji can be reached at mtanji@mauinews.com.