The operation of the county attorney’s office has for some time been of concern to observers of our county government. The apprehensions were enhanced when the county attorney appointed by Mayor Baptiste decreed that all expressions by her office were
The operation of the county attorney’s office has for some time been of concern to observers of our county government. The apprehensions were enhanced when the county attorney appointed by Mayor Baptiste decreed that all expressions by her office were covered by attorney-client privilege and should not be made public unless the receiving county officials waived the privilege.
The county attorney then constructed a set of issues designed to prevent any such waiver. The end result is that members of the public in Kaua‘i have no information about the legal advice that county officials are getting.
This condition was spotlighted by the song and dance that occurred at the County Council until recently about whether the council was lawfully acting when it went into executive sessions in apparent violation of Section 3.07 of the County Charter, which permitted such sessions only when related to claims against the county.
Despite steady questioning for over two years by members of the public requesting the justification for such meetings, deputy county attorneys declared that the sessions being held were lawful, but did not offer any explanatory opinion for this conclusion, and council members said they had received favorable advice from the Office of the County Attorney, but it was covered by attorney-client privilege and they were uncertain about whether the privilege could be nullified so it could not be disclosed.
The Charter Review Commission of 2006 was asked to consider a proposal to establish in Kaua‘i a county manager system under which the mayor’s executive powers and duties would be transferred to a person educated and trained in the management of local government affairs.
Although inquiry was made to the county attorney’s office as to whether there were legal impediments to this program, no answers were given. The proposal for the system again arose in the Charter Review Commission in 2008, and the commission held an executive session in July of that year to considerate it.
Minutes of this executive session have entered the public domain. Rarely does this ever happen. Although the state sunshine law contemplates that the executive meeting minutes should be released when to do so would not frustrate the purposes of the meeting, the county just never quite gets around to it.
The minutes report that an attending deputy county attorney offered some comments at the meeting which were intended to indicate, but not resolve, concerns about the legality of the proposal. Despite the passage of two years from the original request, the attorney said that the proposal raised several issues that the county attorney’s office has not been able to address in a timely manner and that they run very deep and extensive.
He stated that one of the issues is whether or not the Hawai‘i Constitution would allow for the counties to have a government that does not have a separate executive, legislative and administrative branch of government. Even for an attorney, that statement is unacceptably obtuse.
The deputy offered the issue whether the Hawai‘i Constitution mandates all counties to be the same, he then expressed the problem whether the Constitution requires the counties to mirror the state form of government, and went on to express concerns about a potential ballot question. He even suggested that the proposal might be in conflict with county ordinances, while well knowing that a Charter provision would supersede conflicting ordinance terms.
All in all it was a performance calculated to avoid any pronouncement of an opinion and instead generate a pattern of doubt. Is this the role that lawyers in the county attorney’s office should be playing?
Another instance where the secrecy of county attorney opinions is troublesome occurs in respect of decisions by the Kaua‘i Board of Ethics allowing County officers and members of County Boards and Commissions to appear in behalf of private interests before county agencies, despite a specific provision (Section 20.02D) of the County Charter prohibiting such appearances. The Ethics Board says it has received a “confidential” opinion from the county attorney favorable to allowing them.
In the face of numerous requests for the board to waive privilege and disclose the opinion, it has irresponsibly failed to do so. Even the failure of county agencies to have a uniform standard to opinion disclosures was lamely used as an excuse.
The aberrations mentioned should be reviewed and changed to conform to sound public policy. The duty of the county attorney’s office is to be the chief legal adviser and representative of all county agencies in relation to their powers and duties and to represent the county in legal proceedings.
It is entirely appropriate that advice given by the office to county officials should be subject to the attorney-client privilege and its confidentiality preserved when such advice relates to a litigation or a claim where the strategy of the county needs protection.
However, where the advice given is as to the state or condition of the law on a subject under consideration by the County Council or a county board or commission, there is no legitimate basis for nondisclosure of the information being provided to the public. Opinions of the state’s Attorney General of this type are routinely published and so should those of our county attorney. The state’s sunshine law well expresses the principle involved.
It says “In a democracy, the people are vested with the ultimate decision-making power. Government agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny is the only viable and reasonable method of protecting the public’s interest.”
Our new county attorney and our county officials should heed and conform their practices to implement these wise words.
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.
