Michael Levine

The Garden Island

LIHU‘E — With the county Charter Review Commission set to hold a public meeting tonight to discuss the merits of a switch to a county manager governmental system, the Office of the County Attorney on Tuesday released its formal opinion on the legality of such a proposal.

The opinion, which was provided by Deputy County Attorney Mauna Kea Trask to the Charter Review Commission and Chair Sherman Shiraishi on July 31, was released to the public three weeks after the commission voted 4-0 at its Oct. 26 meeting to do so.

“(I)t is the opinion of the Office of the County Attorney that the proposed form of council-county manager form of government is not legal under the Hawai‘i State Constitution and the general laws of the state of Hawai‘i,” the opinion states, and “even if the proposed council-county manager form of government was legal any pros of such a system would be greatly outweighed by the cons.”

Last month, Trask said in a phone interview that in general a county manager system is problematic but “not impossible” depending on details of the language, calling his office’s position on the matter “proposal specific.”

He said “the county manager and the fact that it is illegal is mentioned nowhere” in the Hawai‘i Constitution and declined to point to any particular law that would bar such a system of government.

However, the opinion authored in July was in response to a specific proposal, attached to the document. The opinion said the proposal raised concerns about separation of powers and checks and balances, saying the Kaua‘i County Council is “expressly forbidden to interfere with the administrative processes delegated to the mayor,” citing Section 3.18 of the Kaua‘i County Charter.

“The most illustrative example of this checks and balances system within the county … (is) the mayor’s veto power,” the opinion states. “The veto power is an essential executive tool as it is one of the only instruments available that checks the legislator’s power to enact laws, and thus maintains a balance in government.

“The Office of the County Attorney notes that the proposed amendment … would delete section 4.03 from the charter, thus removing any form of veto power that would maintain either a check or balance on the council,” the opinion says.

The document continues to say that Section 46-1.5 of the Hawai‘i Revised Statutes states that each county’s charter “shall establish the county executive, administrative and legislative structure and organization,” a phrase that “is interpreted by the County Attorney’s office to require each county within the state to have specific separation of powers between the executive and legislative branches, which the proposed council-county manager system form would not have.”

“The proposed amendment would be contrary to both the text and the intent of the State Constitution and the general laws of Hawai‘i, and therefore illegal,” the opinion’s legal analysis concludes.

The opinion then goes on to weigh the pros and cons of the proposal, disagreeing with statements that the current mayoral system lacks adequate prerequisites, accountability and continuity, interferes with the council, encourages politics and is inefficient.

To view the 19-page document — six pages of legal analysis, four pages of pros and cons and the nine-page proposal — in its entirety and to view other government documents requested and received by The Garden Island, visit www.kauaiworld.com/sunshine.

The commission’s unanimous vote to release the opinion came with the caveat that it should be done in compliance with a not-yet-announced county attorney policy on procedures for releasing opinions provided to all boards and commissions. It is unclear if the Office of the County Attorney has completed its policy. Attempts to reach three different attorneys in the office for clarification Tuesday were unsuccessful.

What comes next

As part of the public education process, the commission is set to hold a public meeting at 6 p.m. tonight at the War Memorial Convention Hall in Lihu‘e, said Barbara Bennett, the lone member of the Charter Review Commission’s County Governance Committee, at the Oct. 26 meeting.

Topics will include an overview of state and county government structure and relationship, the role of county government in Hawai‘i, and Kaua‘i county government as defined by charter and process for changing it, according to an event flyer she produced.

Panelists will include University of Hawai‘i William S. Richardson School of Law Kudo Professor David Callies, former City and County of Honolulu Charter Commission member John P. Whalen and retired Honolulu Advertiser writer Jan TenBruggencate, the flyer states. The event will be moderated by veteran news reporter and former KUAI radio executive Bill Dahle and Kaua‘i Planning and Action Alliance President and CEO Diane Zachary.

Bennett said her final report to the full commission would take place at the monthly meeting on Monday and would incorporate information from tonight’s public meeting.

An agenda for the regular monthly meeting, required by the state Sunshine Law to be published for the public six calendar days in advance of the meeting, was not available on the county Web site by press time Tuesday.

• Michael Levine, assistant news editor, can be reached at 245-3681 (ext. 252) or mlevine@kauaipubco.com.