Guzman cites ongoing friction with Victorino

Mayor seeking to remove prosecutor; council to decide

DON GUZMAN — “I refused to resign”

WAILUKU — Maui County Mayor Michael Victorino is seeking to remove Prosecuting Attorney Don Guzman because he allegedly raised his voice during a meeting to reprimand a deputy prosecutor, amid a backdrop of disagreements between Guzman and Victorino in recent months, Guzman said Friday.

“I’m saddened by Mayor Victorino’s decision to seek my removal as prosecuting attorney,” Guzman said. “I was called to serve the people of Maui County and asked to bring justice to victims of crime and to ultimately improve the safety of our islands, and I believe that my leadership in the department has made a significant difference.

“My priorities are to create a more efficient and organized operational structure for the department and establish programs and projects that will assist our community.”

Guzman said he has been on vacation leave for a couple of weeks, with First Deputy Prosecuting Attorney Robert Rivera serving as acting prosecutor.

Victorino appointed Guzman to the position heading the Office of the Prosecuting Attorney in March 2019 after the County Council didn’t approve the reappointment of former Prosecuting Attorney John D. Kim.

Under the Maui County Charter, the prosecuting attorney may be removed by the mayor with the approval of the County Council.

The mayor’s resolution seeking Guzman’s removal will be heard at 9 a.m. Thursday by the council Governance, Ethics and Transparency Committee.

Leading up to the mayor’s decision to remove Guzman, he and Victorino “have not seen eye to eye on many issues,” Guzman said.

He said that a week after his appointment was confirmed by the County Council, Victorino wanted Guzman to sign a resignation letter with the date left blank.

“I refused to pre-sign the resignation letter because that would circumvent the charter, causing checks and balances to be ignored and denying the council its authority and power,” Guzman said. “Such a maneuver would allow the mayor to usurp the council’s charter authority to make the final decision as per removal of the director, thereby resulting in a facade that there is a balance of power.

“Such a pre-signed resignation creates unilateral power in the mayor, which is contrary to the charter’s intent to maintain checks and balances of power.”

Guzman was a council member when the County Charter was amended in 2016 to add the provision that the prosecuting attorney may be removed by the mayor “with the approval of the council.”

That provision also applies to the removal of the corporation counsel and water director, Guzman said.

He said he has been told by other county directors and deputy directors that they were required to sign resignation letters with a blank date, even though council approval isn’t needed to remove those directors or approve the deputy directors.

“Therefore, the question is why would Mayor Victorino require these directors and deputy directors to execute pre-signed resignations with blank dates when he already has full rein to remove them without council approval?” Guzman said. “It’s all about power and control, creating an environment where these directors and deputy directors are at the absolute control of the mayor and serve at the pleasure of the mayor without the ability to challenge or question the mayor, which could lead to favoring the will of the mayor over their fiduciary duties under the charter, as well as the responsibility to the public interest.

“This is not how Maui County government was designed to function under the charter.”

He said directors and deputy directors are at risk of being removed by a pre-signed resignation if they fall out of favor or don’t adhere to the mayor’s orders or commands.

“In my opinion, this power-and-control method holds them hostage because they would not have a claim for wrongful termination in the ordinary course like other employees, and they would be without the ability to claim unemployment to provide for their families until they acquire a new job because of their resignation,” Guzman said. “The dilemma that these pre-signed resignations cause is a choice between what is appropriate under their charter fiduciary duties to run their department and make decisions for the public interest versus challenging the mayor or working with the council, which could put them at risk of resignation.”

Guzman said he heard Victorino, in a radio ad Thursday, asking residents not to vote for a charter amendment that would create a managing director-run form of government because government shouldn’t be run like a business.

“The fact that he required pre-signed resignations of the directors and deputy directors is exactly the kind of tactics used in businesses to create power and control over their employees and create a unilateral environment,” Guzman said.

He said he doesn’t believe Gov. David Ige and other county mayors require directors and deputy directors to pre-sign resignations with blank dates.

“I am truly concerned,” Guzman said.

He said Victorino ordered that the mayor’s choice serve as first deputy prosecuting attorney, even though the charter gives the prosecuting attorney power to appoint all deputy prosecuting attorneys.

Other conflicts surfaced during the COVID-19 pandemic when police issued more than 2,000 citations for violations of the governor’s and mayor’s public health emergency rules.

“The mayor ordered that 100 percent of the cases be brought to trial regardless of whether there was adequate evidence to prosecute,” Guzman said. “I refused to follow his order and proceeded to dismiss 38 percent or more cases because there were defective citations and insufficient evidence to prove the case beyond a reasonable doubt.”

In July, when Guzman joined the mayor, council members and others for a blessing of the Maui Lani roundabout, a project that Guzman had advocated for as a council member, Victorino yelled at Guzman for wearing an orange polo shirt, he said. “He then ordered me to never wear any orange-colored shirts at any government-sponsored functions or events,” Guzman said.

Guzman supporters were known as ‘Ohana Orange, and orange was the theme color for Guzman’s campaigns for the County Council’s Kahului residency seat, as well as for mayor in 2018, when he ran against Victorino and former Council Member Elle Cochran.

In August, when a prosecutor’s office employee tested positive for COVID-19, Guzman said he wanted to shut down the department for a few days to deal with employees’ concerns and panic and to work with the state Department of Health “because there were no set procedures in place by the mayor to handle COVID-positive employees.”

Guzman said he coordinated with the 2nd Circuit Court administrative judge so the Judiciary could accommodate a closing of the office.

“However, the mayor became very upset with me and ordered that the department remain open and employees must continue to work regardless of whether I had permission by the Judiciary to close down,” Guzman said.

Since becoming head prosecutor, Guzman said he has asked the mayor for more work space for employees who are “packed in like sardines” in the prosecutor’s office building, making it difficult to apply social distancing measures. Guzman said he didn’t hear back from the mayor or his staff.

“So when we had the COVID-positive situation in the office, I requested a shutdown but the mayor denied my request,” Guzman said. “And this may have contributed to the stress and panic in my department. Health and safety was my priority and when disruption occurs, then my job becomes even more challenging to counterbalance the panic and stress for our employees.”

“Now, the mayor is seeking to remove me from the position because I allegedly raised my voice during a reprimand meeting with one of my deputy prosecuting attorneys,” Guzman said.

He said he couldn’t disclose other details about the allegation.

Asked if the mayor wanted to respond to Guzman’s comments, Maui County spokesman Brian Perry said, “Due to the sensitive nature of personnel matters, the mayor is unable to comment on the allegations made by Mr. Guzman.”

“As in any termination of employment, this is a very serious matter and was not taken lightly,” Perry said by email Friday. “Ultimately, based on the County Charter, the decision will rest with the council.”

When Guzman became prosecuting attorney, he said employees were overworked with 70 percent of office positions filled. He said he has done extensive recruiting to fill all positions for deputy prosecutors and the investigation unit, along with adding clerical support staff positions, hiring a new victim witness program director and creating new positions in the victim support unit.

“In a very stressful environment dealing with criminal cases, I focused on creating a more positive and healthy culture for our employees in the department to enhance their quality of life,” Guzman said. He said that included an employee fitness and health program incorporating exercise, yoga and meditation.

He has encouraged deputies and staff to be more involved in community volunteer activities, including sign-waving during Domestic Violence Awareness Month and National Drunk Driving Awareness Month.

In June, Guzman established the prosecutor’s Vehicular Homicide and Road Safety Unit, the first in the state to focus on prosecution in traffic fatality cases after 23 people were killed in crashes on Maui County roads last year. He worked with police, Mothers Against Drunk Driving and victims’ families to start the unit, receiving county funding for a position for a new deputy prosecutor.

Guzman also started an Elderly Abuse Unit to “work on abuse and financial exploitation crimes that impact our kupuna.”

With a $1.5 million appropriation from the County Council, Guzman said he is working on completing a Children’s Peace Center that would include various agencies and help children who are victims of sexual assault. Another plan is to use a $200,000 appropriation to remodel the office basement for a training conference room.

He noted that Maui County is the only county in the state that has a prosecuting attorney appointed by the mayor. The prosecuting attorney is elected in the other three counties.

“I refused to resign and chose to take this matter to the council because I feel that they represent the people from each district in the county,” Guzman said.

* Lila Fujimoto can be reached at lfujimoto@mauinews.com.


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