One of the least understood functions of our county government is that of the County Attorney’s Office. Under the Charter the lawyers employed there provide various services of legal nature for county officials. They are engaged in determining the executive sessions taken by the county council and other county agencies. They review the proposals for amendments to our charter. They determine how the county will be represented in litigations and claims.
But the bulk of their work is cloaked in secrecy. When Lani Nakazawa was county attorney she decreed that all expressions from the office to county officials were subject to the attorney client privilege and thus out of public view. While the privilege in such communications could implicitly be waived by the “client” no clarification was ever given as to the identity of the client or as to how the privilege could be waived.
Ms. Nakazawa’s thesis, which is continuing to be observed by the nearly invisible present county attorney, significantly overstates the legal scope of the attorney client privilege. Firstly, the communication is only privileged if it is given in a consultation about a legal matter. A lawyer’s advice on how to pave roads or balance a budget is not privileged. Secondly, a legal communication must be given privately. If it is issued with a party other than the client present or it becomes public it is no longer privileged. Advice aiding a client to violate a law may also be unprivileged.
It needs to be recognized that a lawyer’s opinion is just that. It is a conclusion by one individual about the state of law on a particular point. It may or may not be an accurate assessment of the law. Courts regularly disagree with positions stated by lawyers. But our county officials without reservation accept county attorney opinions and advice and do not seek the second opinion that is routinely employed by medical patients.
The issue has arisen about making the opinions of county lawyers publicly available. Our state Sunshine Law declares that opening up governmental processes to public scrutiny is the only viable and reasonable method of protecting the public interest. When our county council or other agency relies on undisclosed legal advice to make a determination the public has been deprived of a vital link in the process.
A recent article in The Garden Island points up inquiries about the county attorney’s office. A threshold question appears to be the distinction between a legal opinion of general applicability and advice given on a specific controversy. Maintaining secrecy about advice of counsel given for a particular negotiation or litigation is generally justified until the matter is resolved. But state law and one Hawaiian county mandate that interpretative opinions about the law, particularly in prospective applications, should be made publicly available. Kaua‘i government officials have resisted this practice and as usual there are muddled excuses for their position and quibbling about specifics.
A further question that has been raised in our county council is whether an opinion is to be released by the lawyers or only by the county agency to whom the opinion is provided. At the state level that decision is made by the attorney general’s office. Discussion of this point by the county council showed that our council members are skittish about informing the public and wanted to approve any opinion release. One council member was reported as saying that he wanted a unanimous vote of the council to release an opinion because each council member is a client. On that he was in error as in a case of an opinion given to the council, the client is the council and not the individual members. However, this point will doubtless be sifted at great length.
At nearly every meeting of the County Council one or more secret executive sessions are held presumably to consult with lawyers in the county attorney’s office on claims. In a number of cases the notice of the meeting as prepared by county lawyers is legally defective but the council members don’t seem to care about violating the charter so long as they can blame the lawyers and appear to welcome having discussions out of sight of the public.
Another instance where the secretive nature of the county attorney’s office is in play relates to its “assistance” to county boards and commissions. The Charter Review Commission submits proposed charter amendments to the office for review. The nature of the review is not specified. Sometimes the office responds and other times it does not, leaving the proposal twisting in the wind. A recent matter before the Ethics Board was given to the office for its review. A response was presumably received but the board chair neither confirmed nor denied and gave no indication whether it was taken into account in its decision.
Each year the county attorney asks for and usually receives a financial budget allowance for retaining outside counsel for litigation and certain other matters. Because of the large costs the county incurs for legal representation the budget amount is consistently inadequate. Citizens never find out the very substantial sums the county incurs for legal services the county attorney’s office should but evidently is unable to supply. Such costs are usually much greater than the County Attorney Office salaries. Our county paper sought to obtain a schedule of amount and time frame of legal costs being incurred. After repeated requests a delayed response was finally provided but the information did not furnish a meaningful conclusion.
Our citizens apparently have a boundless capacity to take abuse. Each year the county incurs massive costs for legal services — the nature of which is largely undisclosed. If our county officials cared about the costs of our government and the quality of the performance of the County Attorney’s Office, they should be thoroughly examined. Do you think that this will ever happen?
• Walter Lewis is a resident of Princeville and writes a bi-weekly column for The Garden Island.
