Viewpoint: Mediation a proportional act to resolve mayor-council conflict

I, like many of Maui’s citizens, have been following with interest the controversy surrounding the demolition of the Old Wailuku Post Office. My impression (and maybe yours) is the trajectory of these events has the executive and legislative branches of government locked in an escalating series of responses that will preoccupy their attention for the foreseeable future.

Even within the County Council there is a difference of opinion on how the situation surrounding the demolition unfolded, as evidenced by Viewpoints from Council Members Mike White (The Maui News, May 26) and Don Couch (The Maui News, July 13).

As chair of the Cost of Government Commission and former member of the Charter Commission, I believe that government must operate within the law and procedures outlined by the County Charter and the Maui County Code. However, I also understand that our institutions are designed and operated by fallible individuals and not divine beings – perfection is for another life. Somewhere between these two observations lies a “middle ground” where government leaders can work out their differences, examine their performance, and do better in the future.

The council Committee on Policy and Intergovernmental Affairs in a 5-4 vote decided to investigate a “potential misuse of county funds.” Council Member Couch has suggested that the county auditor take up the issue. Subsequently, the mayor proposed a more exacting process of doing business with the council. Each response appears reasonable – depending on where you are in this dilemma.

The official council investigation raises the specter of multiple independent counsels being hired at county expense for those in the administration being subpoenaed. In addition, the council may yet hire an independent counsel after its investigation. Moreover, no timetable is set to end the investigation, leaving it open to sap valuable time and resources.

The auditor has been on the job less than a month and is working to establish a base of operations. There are employees to hire, training to be completed, and procedures needed to determine audits. This alternative is premature under the circumstances.

Finally, the punctilious communication process with the council suggested by the administration might bring county business to a grinding halt.

I believe there is another approach that would provide the council with the information it deserves and also secure a measure of respect and collaboration between these two branches of government. I would ask both sides to consider a proportional response.

A proportional response can be defined as an action that improves performance and accountability in a manner that achieves those objectives while matching the character of the infraction. The aim of a proportional response is not to overreact.

My initial thought on a proportional response was to use the services of the state ombudsman; however, I discovered that mayors and county councils are exempt from investigation by this office.

I then called the Center for Alternative Dispute Resolution of the Hawaii State Judiciary to find out if they have been asked to mediate disputes between branches of county government, or if there was any law barring their participation in such a process. From my conversation, there is nothing that would prevent the county from soliciting their services.

I think you see where I am going with this. A professional mediation process would allow: issues to surface, alternative behaviors and procedures to be determined, and lines of cooperation and communication to be re-established.

The weakness in my argument is that the process would probably not determine if the mayor and/or members of his administration violated the County Charter by knowingly authorizing a payment or incurring an obligation in violation of a county ordinance. This is true. However, I am making a simple (and perhaps naive) assumption that all the individuals on both sides of this issue are honorable and believe they are acting in the public good. At present, I see no indication that either side is self-indulgent or out for personal or political gain.

I am optimistic that the County Council and the administration will be able to work out their differences, without excessive spending and delaying action on other county business. To both sides: In this case, a proportional response is required.

* Frank R. De Rego Jr. is chairman of the Cost of Government Commission.