Citizens not always best served by county attorney

Under the terms of the Kaua‘i county charter the Office of the County Attorney is to represent the county in all legal proceedings and the county attorney, the head of the office, is to be the chief legal adviser and representative of all county agencies, including the council, and of all officers and employees in matters related to their official duties. The county attorney declares that his advice is to be followed by all county agencies.

The principal duties of a lawyer are to provide advice as to the law as it relates to a subject matter and to provide advocacy to a client in the event of a controversy. Because of the inclinations of county officials to pursue in certain circumstances paths that are not in conformity with the law and the willingness of the county attorney and his deputies to accommodate them, a pattern of instances exists where the interests of our citizens have not been served.

The politicalization of the office begins with his (or her) appointment by the mayor and confirmation by the council. This structure means that the county attorney is reporting to the mayor and secondarily the council rather than the people of the county to whom he would be accountable if he were elected as is the prosecuting attorney. Let us consider some illustrations.

The seven-person Ethics Board was established by our charter to provide guidance to county personnel on compliance with the County Code of Ethics which was formulated to achieve a high standard of integrity and morality by such personnel in their service. A couple of years ago the board was asked to consider requests as to the allowability of representation of private persons or organizations by county employees at county agencies. The terms of charter section 20.02 D of the Code of Ethics which states that no officer of employee shall appear in behalf of private interests before a county agency seemed to invalidate such representations. The county attorney’s office gave an opinion to the board that was unconvincing and  essentially meaningless, saying that in construing 20.02 D the board should also consider certain county code provisions. After a running dialogue the board wisely disregarded the opinion and adopted a rule against the legality of such representations. This year the board was asked to review the legal propriety of Planning Department employees drawing plans for hire by private parties. County code section 3-1.7 (d)  prohibits county employees from assisting any person or business for compensation before any county agency of which he is an employee. The staff attorney regularly assigned to the board had opined orally  that the section’s restriction was absolute. The employees indicated their intent to meet to discuss the position with the county attorney’s office and the board had requested information about such discussions. But when the matter came before the board in August the staff attorney was absent and it was advised unconvincingly that no meeting had occurred.

For many years the county charter required all proceedings of the County Council to be open except for matters relating to claims against the county. This restriction did not sit well with our council and over objections by citizens the council regularly went into executive sessions on a variety of other matters. The citizens were told that that this process was approved by the county attorney, but neither the council members nor the county attorney offered any specific justification for the stated conclusion. The result of the county attorney support for this often-unwarranted secrecy is that policy issues were being discussed away from citizen attention and contrary to the purpose of the state sunshine (open-meetings) law. In 2008 the council brokered an amendment to our charter broadening its allowable secret sessions. Our County Council members have recently been pressured by landed interest patrons to allow transient-vacation rentals on county agricultural land. The state attorney general had issued a specific opinion prohibiting such use. However, the county attorney office ignored such opinion and actively aided the council action in enacting the transient-vacation-rental-on-agricultural-land ordinance (which was later signed into law by the mayor).

Other illustrations could be offered as to potential deviations by the county attorney office from recognized standards for legal service. But they would be cumulative and the point has been made.

As previously noted the county attorney has mandated that county agencies must accept and apply opinions from his office. However, the quality of guidance from his office has not earned or justified the exclusive and absolute adherence he seeks. More broadly it appears that there is a serious question whether expressions from the county attorney office represent considered examinations of the law or rather are a pandering to an explicit or assumed accommodation to the preferences of the administration or the council. It appears inescapable that the orientation of the work of the county attorney’s office is to support the wishes of our county officials whether or not it may serve the interests of the people of the county. While in many cases the interests of our officials coincide with those of our citizens, that is not always the situation. And in such cases it is a matter of substantial concern if the paramount force directing county attorney actions is not the best interests of our citizens. An important remedial step would be if the county attorney would sublimate any political responsibilities to county officials to the professional standards and responsibilities he has as a practicing lawyer. History does not suggest that this will happen.

• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.