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Council confirms Lutey

Corporation counsel gets nay votes from chair, vice chair

Moana Lutey fields a question Tuesday before being confirmed as corporation council in a 7-2 vote. Some council members had concerns about the county’s continued involvement in the Lahaina injection wells case. The Maui News / MATTHEW THAYER photo

WAILUKU — Maui County Council approved the appointment of Moana Lutey as corporation counsel on Tuesday, with two opponents citing their concerns with the county’s position on the longstanding Lahaina injection well suit.

The council voted 7-2, with Council Chairwoman Kelly King and Vice-Chairwoman Keani Rawlins-Fernandez opposed. Shane Sinenci voted “yes” but said he had reservations.

This was a change from May 2, when Lutey received an 8-0 vote from the Council’s Governance, Ethics and Transparency Committee, with Member Riki Hokama excused.

King and Rawlins-Fernandez have suggested that the council settle the longstanding lawsuit over the Lahaina Wastewater Reclamation Facility injection wells that is headed for the Supreme Court. They say that if the county wins, the case could decimate the Clean Water Act, something they did not Maui to be responsible for.

But county attorneys have said potential consequences from settling the suit include potential future lawsuits, fines and the need for millions of dollars for infrastructure work to remove the treated wastewater — concerns that some council members have disputed.

A possible settlement stalled last week after the Governance, Ethics and Transparency Committee deadlocked in a vote over whether to recommend it.

On Tuesday, King pointed to language in that resolution that she felt gave the corporation counsel control over the final settlement agreement. (Those lines were deleted by the corporation counsel at the committee meeting after council members and testifiers raised concerns.)

But Lutey said on Tuesday that it was standard language and that attorneys “are not trying to usurp” anyone’s authority.

Rawlins-Fernandez also questioned how Lutey’s staff could maintain neutrality.

“The role of corporation counsel is to advise. I felt like I was fighting with corporation counsel (on) my point,” said Rawlins-Fernandez, who added that she felt council members “were being influenced” during a presentation that county attorneys gave to the governance committee last week.

“I felt that you were being persuaded to vote for one side,” Rawlins-Fernandez said.

Lutey responded that the attorneys give the pros and cons of various actions.

She said the cons may outweigh the positives at times, but that it’s the attorneys’ job to point out the worst-case scenarios.

But King said later that she hasn’t seen anything from county attorneys to explain what would happen if the county were to win the case.

Council Member Mike Molina, who chairs the governance committee and voted for Lutey, said he worked with her in his last term on the council and compared her job to that of council members, in which it’s impossible to please everyone.

He said focus should be on Lutey’s qualifications, which she had met.

“I put my faith in her. I will support Miss Lutey,” Molina said. “It’s not an easy position. You are going to get slammed any which way you go, like us council members.”

Sinenci, voted for Lutey with reservations, said much of what Lutey inherited is from past administrations and circumstances.

He said he would like to see changes so that corporation counsel is not always jumping into litigation and looks for other ways to solve issues.

Former Corporation Counsel Patrick Wong was confirmed by the council but resigned in April following his arrest on charges of abuse of a household member in March. The state attorney general’s office, which was handling the case, later declined to prosecute.

Lutey worked in the Department of Corporation Counsel for 18 years and has supervised the litigation section for 12 years. Prior to that, she was a county deputy prosecuting attorney from 1995 to 1999.

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

** This story originally published Wednesday, May 29, 2019, includes a correction.