On scenarios after a councilmember is arrested

Like almost everyone on Kauai, I was shocked when I saw the news pertaining to Councilmember Arthur Brun’s Tuesday arrest.

My email, text messages and FaceBook accounts lit up and stayed lit up late into the night with people basically asking all the same questions: “What happens next?” and “Will Councilmember Brun be removed from office, and if so, when?” and “If he is removed or resigns, what is the process to replace him?”

My first reaction was ‘whoa,’ hold on a moment. Councilmember Brun deserves his day in court. While the news that is rolling out does indeed look very bad, there may be another side to the story. Or not.

In any case, it behooves all to take a deep breath and let the police and the prosecutor do their work, and let Councilmember Brun tell his side of the story.

We need to hear his side of the story and remember he is innocent until proven guilty. However, if the police report is accurate, what occurred is damning and totally unacceptable conduct for any public official, elected or otherwise.

Given the severity of what was described in the official county announcement, and given the additional information coming out in other statewide media — it seems the County Council now finds itself in an untenable situation.

A sticky wicket, as they say, in the complex vernacular of politics.

Councilmember Brun will need to naturally focus on his own personal situation, his health, and his family and friends. The council needs to focus on the council and as a whole needs to determine what action they will take in response to the developing situation.

They may act and speak as individuals, and or offer a formal council response.

Every statement, whether formal or informal, should and will be prefaced by, “If Councilmember Brun did what they said he did…then (fill in the blank)”.

So I will continue under this premise. If the councilmember did what the police are saying he did, the following, per the Kauai Charter, are the legal options available to the council and to the people of Kauai.

Disclaimer: I am not a lawyer.

It is my understanding that Councilmember Brun may be charged with a crime or crimes and then either be released on bail or held in jail if he cannot afford bail — pending a court appearance. Then, it is up to the lawyers, and of course the courts. The councilmember will have his defense lawyer and the county will be represented by Prosecutor Justin Kollar. Typically, the prosecutor will prosecute, and or strike a “plea deal” to lesser charges (avoiding the time, expense and uncertainty of a trial).

It is important to remember — the incidents reported are allegations of a crime/crimes and there has been no legal finding of guilt of any crime at this point.

Bottom line:

The Kauai County Charter does not include a provision allowing for the prompt or easy removal of a councilmember except for felony conviction or if the councilmember does not reside in the county.

There are provisions to remove any elected official via impeachment, but that process requires a petition signed by 5% of voters registered in the last election (which means approximately 2,250 VERIFIED signatures) AND it requires petitioners to pay their own legal fees.

There are also provisions allowing “recall,” but this only applies to the mayor and the prosecutor.

In short, the removal of a councilmember is not easy, nor straightforward.

But this is not to say the Kauai County Council is powerless in this situation.

The council could propose and pass a resolution demanding/requesting that a councilmember resign, and listing the reasons and justification. This would involve a public hearing and a public vote, and all the unpleasant political implications that might entail.

Likewise, the ethics commission could possibly take similar action in response to a public ethics complaint.

One would think the pressure put upon any councilmember under these circumstances would be unbearable and thus they would voluntarily resign, and focus on the other issues and challenges facing them.

However, should the councilmember decide not to resign, the only option left would be for a citizen’s petition and impeachment process. This would involve private citizens collecting signatures and hiring their own lawyers to follow the impeachment procedures outlined in the County Charter.

The second half of the question pertains to replacing a councilmember when they resign or are removed from office. The bottom line is a Kauai resident who can get four votes from the remaining six councilmembers will fill the slot and be a councilmember until the existing term ends.

The process that has occurred in the past involves the council announcing the vacancy, accepting applications, and conducting interviews. This is mostly done in private executive sessions. Then at some point a majority of councilmembers (4) during the executive session discussions will come to a general agreement on a certain individual. Next, a public hearing will be scheduled, public testimony will be given, and a public vote taken.

Whether or not “the next-highest vote-getter in the most recent election” is an obligatory choice is not a rule, nor required. If the vacancy occurs immediately following an election, this logic may make sense, but otherwise the county would seem to be best served by opening up the process to the public at large.

Given this incoming councilmember may be the “swing vote” between what some perceive to be a council divided 3/3, this process, should it occur, will be an interesting one. In theory, the addition of a new councilmember could create a new faction of four and thus restructure the council leadership structure.

But that is only in theory. Knowing full well that this is a possibility, the present Chair Arryl Kaneshiro and Vice Chair Ross Kagawa will of course only support a new councilmember who they know will support them remaining in their positions. And I am absolutely sure they do not have to look too far to get that additional vote to protect their interests.

But me thinks we are getting ahead of ourselves here. In the days ahead, more facts will come out and the Kauai police and/or the prosecutor will take action, or perhaps not.

Until then, the members of the council must decide their public position on this political earthquake of an incident.

You can be sure, the public will be waiting for the council to act. After all, that is what we elected them to do.

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Gary Hooser formerly served in the state Senate, where he was majority leader. He also served for eight years on the Kauai County Council and was former director of the state Office of Environmental Quality Control. He serves presently in a volunteer capacity as board president of the Hawaii Alliance for Progressive Action (HAPA) and is executive director of the Pono Hawaii Initiative.

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Here’s what the charter says

Relevant or mostly relevant and thus interesting sections of the charter are here:

Section 3.04: “B. Any councilmember who removes said councilmember’s residence from the county or is convicted of a felony shall immediately forfeit the office.”

Section 3.07 “D. The council may, upon an affirmative vote of at least two-thirds of its entire membership, suspend without pay for not more than one month any member for disorderly or contemptuous behavior in its presence.” Note: This seems to apply to actions that occur only during a council meeting.

Section 23.13. Impeachment of Officers. “Any officer appointed or elected may be impeached for malfeasance, misfeasance, or nonfeasance in office. Such impeachment proceeding shall be commenced in the Fifth Circuit Court, State of Hawai‘i. The charge or charges shall be set forth in writing in a verified petition for impeachment signed by not less than 5 percent of the voters registered in the last general election, except as to charges filed by the ethics board. If the court sustains the charge or charges, such officer shall be deemed removed from office. The petitioners seeking the impeachment shall bear their own attorneys’ fees and other costs of such proceedings, except proceedings initiated by the ethics board, the cost of which shall be paid by the county.”

Section 27.01. Recall Procedure. “Any elected officer serving a four-year term as provided for in this charter may be removed from office by the voters of the county. The procedure to effect such removal shall be in accordance with this article. A petition demanding that the question of removing such official be submitted to the voters shall be filed with the county clerk. Such petitions shall be signed by currently registered voters numbering not less than 20 percent of the voters registered in the last general election.” (amended 1984)

Charter Section 3.05. Vacancy in Office. “In the event a vacancy occurs in the council, the remaining members of the council shall appoint a successor with the required qualifications to fill the vacancy for the unexpired term. If the council is unable to fill a vacancy within thirty days after its occurrence, the mayor shall make the appointment to such vacancy.”