Under the Kauai County Charter, the office of the county attorney is established to be the chief legal adviser of all county agencies, including the council, and to represent the county in all legal matters. The county attorney is appointed
Under the Kauai County Charter, the office of the county attorney is established to be the chief legal adviser of all county agencies, including the council, and to represent the county in all legal matters.
The county attorney is appointed by the mayor and, in practice, primarily serves the mayor. In most instances that is an acceptable arrangement, but when there is a conflict between the mayor and another agency, problems arise.
The difficulties are well illustrated by the position that developed regarding Bill 2491, which sought to regulate pesticides and genetically modified organisms. In that situation, the majority of the council favored the regulation proposed in the bill, but the mayor was concerned about its terms.
When the council adopted the bill, the mayor chose to veto it and he commissioned a 76-page opinion from the county attorney’s office, which identified numerous deficiencies in the bill and was submitted with his veto. The council overrode the mayor’s veto and the business organizations that were affected by the ordinance initiated lawsuits seeking to invalidate it.
Now the county is attempting to defend the new law and the county attorney, with a hopeless conflict of interest, must recuse himself and the county is required to obtain special counsel to represent it. And the county is in the difficult position of trying to defend the law with the adverse factor of the opinion available to the suing business organizations. Our county attorney, Mr. Castillo, seems insensitive to anticipating situations where conflicts are likely and avoiding them.
Almost from his outset in office, Mr. Castillo has generated controversy. Early on he stentoriously proclaimed to a county commission that it must accept his opinion. Opinions are not inviolate declarations on the law, they are merely one person’s conclusions. Requiring county agencies to conform to opinions believed by the agency to be incorrect or incomplete could seriously disserve the agency and the county.
The problems arising out of the county attorney’s involvement as to audits performed by the county auditor have been acute. When the fuel audit discovered irregularities in usage by employees, including the mayor, and an investigation was commissioned, the county attorney counseled the mayor to invoke the privilege against self incrimination.
At that time, it seems likely that Mr. Castillo was unaware of the existence of HRS 78-9 or its terms that specify that if a government employee takes the Fifth in a matter involving government affairs or property his position is to be vacated. That oversight may well be costly for the mayor. Then later when the powers that be sought to retaliate against the auditor for the embarrassment he had caused, the county attorney orchestrated over 20 council executive sessions to explore ways that the auditor might be disciplined or terminated for his work.
After application of Section 78-9 to the mayor’s conduct was raised, Mr. Castillo weakly contended that the Section might be unconstitutional without offering any support for his assertion.
An important segment of the county attorney’s function is to provide counsel for the county and for county officials acting in their official capacity either from his staff or by special counsel in lawsuits affecting the county.
A recent council meeting involving a lawsuit filed by council member Bynum in 2012 provided numerous illustrations alleging the failure by the county attorney to perform his duties in this regard and failure to recuse himself when conflict of interest conditions existed.
The council is not in a position to adjudicate such allegations but their frequency should not be ignored.
The multimillion dollar annual cost to the county of the legal services provided by the county attorney’s office and by special counsel under the supervision of the county attorney cannot be easily portrayed as many major matters have durations in excess of one accounting period and the amounts the county pays in settlements or judgments are not budgeted.
But I am advised that it is widely believed that costs could be considerably better controlled. As ever, it is the taxpayer who pays for unjustified overages.
All of us hope that our public servants will be competent as to their duties and have integrity.
A number parties I have spoken to have expressed substantial concern about the performance of the county attorney, but the mayor seems satisfied and until he has a different view, Mr. Castillo will remain in office.
• Walter Lewis is a Lihue resident who writes a regular column for The Garden Island.
