Hawaii Corporation Counsel Lincoln Ashida Resigning From County of Hawaii

In an email memo sent to Hawaii County Employees today, Corporation Counsel Lincoln Ashida has announced his intention to leave the County of Hawaii to join the Law Offices of Torkildson Katz Moore Hetherington & Harris as their Senior Counsel beginning May 1, 2014.

Mitch Roth and Lincoln Ashida share a table at the recent Pahoa "Rock the Vote" event.

Mitch Roth and Lincoln Ashida share a table at the Pahoa “Rock the Vote” event.

About Torkildson Katz Moore Hetherington & Harris :

Shortly after its founding in 1947, Torkildson, Katz, Moore, Hetherington & Harris quickly developed into one of Hawaii’s premier business-oriented law firms. Since that time, the firm has grown to serve our clients’ needs, not only in Hawaii, but also in Asia, the Pacific, and on the U.S. Mainland. Our firm is committed to providing the highest quality legal services while leveraging the depth of our experience and the breadth of our specialized expertise. Our firm is poised to provide top-quality legal services to Hawaii affiliated businesses. The firm maintains significant practices focused on corporate and business planning, real estate, health care, education law, labor and employment law representing management, housing and public accommodation discrimination, commercial and complex litigation, tax planning, immigration law, government relations and non profit law. The firm represents a broad base of clients ranging from large multi-national corporations, to closely-held corporations, partnerships, families, and individuals.

Here is a list of attorneys that work for that office:

Special Interest Legislation Introduced by Councilwoman Margaret Wille

Councilwoman Margaret Wille sent out a newsletter yesterday and she had the following special interest legislation that she is introducing at the upcoming council meetings on March 12th and March 13th.

margaretwille

Department of Environmental Management to provide a comprehensive overview of its solid waste programs – Comm. 169 (9:45 am 3/12/13)

I am requesting this presentation so that the Council is not asked to approve solid waste contracts on a piecemeal –case by case basis – without first having a comprehensive understanding of this important responsibility of County government.   

Urging the Mayor to Immediately Implement the West Hawai‘i School Impact Fee – Reso. 75 (10:45 am 3/12/13)

I am introducing this Resolution because of  Mayor Kenoi’s Administration’s on-going refusal to implement DOE’s West Hawaii School Impact Fee program.

Audit of the Police Department’s Receipt, Storage, and Disposal of Evidence – Reso.78  (1 pm 3/12/13)

I am requesting this audit to promote and reinforce trust in government and ensure that all evidence and confiscated property is being properly handled.

Corporation Counsel Conflict of Interest – Reso. 53   (9:20 am 3/13/13)

I introduced this resolution to address the conflict of interest of having one attorney (Corporation Counsel/Lincoln Ashida) have primary responsibility for simultaneously representing the Executive and the Legislative branches of the County government – and at the same time also being a member of the Mayor’s cabinet. A majority of the Council opposed having a separation of representation for the County Council, so this legislation has been forwarded to the full Council with a negative recommendation.

Commission Nominations-

Mr. Oliver “Sonny” Shimaoka of Council District 9 to the County of Hawai‘i Transportation Commission – Comm. 170 (9:15 am 3/12/13)

Other Legislation of Interest-

Report of Change Orders Authorized – Comm. 3.5 & 3.6 (1 pm 3/12/13)

There is concern about the large amount of overruns related to contracts with the County – some as high as 8 fold.  

Organic Waste Diversion 10 year contract – Reso 31 (9:20 am 3/13/13)

This is a request for authorization for a long-term contract about an important component of our solid waste program.

To view County Council & Committee TV, link here www.naleo.tv/tv-schedules/channel-52/ To follow state legislation link here www.capitol.hawaii.gov/

Margaret Wille – Council Member, District 9 – North & South Kohala, 64-1067 Mamalahoa Hwy, Kamuela, HI 96743,  PH: 808-887-2069; mwille@co.hawaii.hi.us

 

Videos From Monday’s Mayoral and Prosecuting Attorney Debates

On Monday evening at Kealakehe High School, debates were held between Mayor Kenoi and Candidate Harry Kim for the Hawaii County Mayor’s race.

Part I:

Part II:

The candidates for Hawaii County Prosecutor also debated on Monday:

Video’s from the KLEI youtube channel.

I’m still running the following polls:

TONIGHT – Mayoral and County Prosecutor Debates on the Radio

Mayor Candidates and County Prosecutor Candidates will debate tonight from 6 p.m. til 8:15 p.m. at the  Kealakehe High School Cafeteria and will be broadcast live on the radio at LAVA 105.3 fm. 

Candidates for Mayor,  Mayor Billy Kenoi and former Mayor Harry Kim, and Candidates for Prosecutor, Lincoln Ashida and Mitch Roth have agreed to attend.

Food sales by Kealakehe High Principal Wil Murakami and School Community Council at 5:15 p.m. featuring Chinese Chicken Salad and homemade cookies.

The moderator for tonight’s debates is Sherry Bracken.

Here are a couple polls that I’m running in these races:

Poll: Lincoln Ashida vs. Mitch Roth – Hawaii County Prosecuting Attorney

Now that the primary elections are over and no candidate for Prosecuting Attorney received more then 50% of the votes… we are left with two candidates to choose from for the 2012 Hawaii County Prosecuting Attorney race.

Who will you vote for Hawaii County Prosecutor in the 2012 General Elections?

Mitch Roth and Lincoln Ashida share a table at the recent Pahoa “Rock the Vote” event.

Candidate’s Forum Tonight at Aunty Sally’s Luau Hale

Candidate’s forum tonight, Tuesday July 10th at Aunty Sally’s Luau Hale from 5-9pm. We will have voter registration info, info tables from many different organizations, and light refreshments will be served.

At least 26 candidates have agreed to attend so far, including Wendell Ka’ehu’ae’a, Russell Ruderman, Bob Marx, John Carroll, Lorraine Rodero Inouye, Brittany Smart, Denny Coffman, Harry Kim, Dominic Yagong, Lincoln Ashida, Paul Dolan, Ken Goodenow, James Weatherford, Zendo Kern, Karen Eoff, Chelsea Yagong, and many MORE! Candidates will be making short speeches and will be available for informal talk story sessions. A town hall forum will begin at 7:30. Please bring your questions and a friend! Check this web site for more info http://7wiseideas.org/

Sponsored by Occupy Hilo, Pele Defense Fund, Puna Pono Alliance, Ohana Ho’opakele, Malu Aina, Aloha Uprising, Na Kupuna Moku o Keawe, Heiau o Lono, Na Koa Lohe o Ke Akua, and MKrug

Poll – Hawaii County Prosecutor Race

Well this years Hawaii County elections feature a race for the position of Hawaii County Prosecutor.

Mitch Roth and Lincoln Ashida share a table at the recent Pahoa “Rock the Vote” event.

From what I can see, the two front runners are Mitch Roth and Lincoln Ashida although Ocean View resident, lawyer Paul Dolan, has also filed to run for the position.

If the election was held today… who would you vote for?

Hawaii County Prosecuting Attorney Lincoln Ashida “The Commission (Police) cannot legally mete out discipline against police officers.”

So here is part of Hawaii County Prosecuting Attorney Lincoln Ashida’s response to a recent newspaper article.

“…The duties and roles of “police commissioners” differ from jurisdiction to jurisdiction.  In some mainland jurisdictions, police commissioners are paid, full time employees (in some places elected) who are vested with the authority to discipline police officers.  This is not the function of commissioners in Hawai‘i, and certainly not a responsibility the Commission could assume by simply changing its rules.

The Commission cannot legally mete out discipline against police officers. This is true for all four commissions statewide in all four counties. The legal reason for this is under our laws, only the employer may discipline public sector employees.  This is why the Commission’s responsibility is to investigate charges of misconduct, and then refer the case to the Chief (the employer) to conduct an internal investigation and mete out appropriate discipline…”

I’m not quite sure I understand this. What happens if the Chief happens to be in co-hoots with his officers?

But then Mr. Ashida goes on to say:

…If you have any concerns about our police department, ask your commissioner.  You will find like you their primary concern is helping build a stronger community…

Well someone correct me if I’m wrong… but we here in Puna haven’t had a commissioner for at least a year and a half that I can think of.

The County’s Lawsuit Against UniDev is Returned to State Court

From the Desk of Lincoln Ashida:

On December 24, 2009, the United States Federal District Court for the District of Hawai‘i entered an order recommending the County of Hawai‘i’s lawsuit filed against the developer of the Waikoloa Housing Project be returned (remanded) to the state court.  The County had made this request of the federal court after the developer, UniDev, had removed (transferred) the case to federal court.  Defendants in lawsuits often try to “remove” the case from state to federal court, since they attempt to avoid the jurisdiction and rules of the state court, which they generally believe are not favorable to them.

Earlier this year on July 1, 2009, the County filed this lawsuit against UniDev, alleging UniDev made false claims for payment against the County, intentionally made numerous false representations and provided false documentation that induced the County to provide funding for the workforce housing, and failed to obtain prior approval before entering into various consultant contracts.

The federal court also recommended the County’s request for attorney’s fees and costs in bringing this action to remand also be granted, finding that UniDev’s arguments for removal were “objectively unreasonable.”

The County of Hawai‘i is being represented by Assistant Corporation Counsel Katherine A. Garson and Deputy Corporation Counsel Laureen Martin.  Both attorneys are experienced litigators and members of our Fraud Division.

If you have any questions or comments regarding the above, please contact me at Lashida@co.hawaii.hi.us, or via telephone at (808) 961-8304, extension 118.  This message was posted on December 24, 2009, at 1:30 p.m.

P.S. I missed this while I went away somehow!

Money Paid Out and Collected by the County of Hawaii in 2008-2009

Lincoln Ashida

From the Desk of Lincoln Ashida:

The Office of the Corporation Counsel was asked to provide information about taxpayer money paid out in litigation cases in fiscal year 2008-2009.  We were also asked for information concerning efforts made over the past year in the collection of delinquent accounts for water, solid waste, and other service fees due the County.  This information will be included as part of the County’s annual report required by our laws.

The office settled six major lawsuits during the fiscal year for a total of $3,595,500.  The potential monetary liability exposure for these cases was $8,302,000.  The difference between the potential exposure and actual settlement amount was +$4,706,500 in favor of the County.

Two major cases were dismissed by court order (one case remains on appeal), and three cases were partially dismissed.

There were 65 claims for damages against the County investigated.  The total amount paid for all valid claims was $54,974.

What is the County doing to reduce its liability exposure in future years?  The brutal reality is any government body offering a wide range of services to the public will be exposed to a certain degree of liability. With over 2,300 employees and a number of direct services such as police, fire, solid waste, water, recreation and sanitation offered to the public, there will be times when injury occurs and the County will need to be held financially responsible.  As illustrated above, the $3.5 million incurred during the past fiscal year involved just six cases.  Suffice it to say these were major cases involving extraordinary factual circumstances and thankfully represent the exception and not the norm.  Mitigating future liability is addressed through the County’s Risk Management Division responsible for assessing what happened, how it can be avoided in the future, and what steps the County can take to address the risk factors.  To this end, the County welcomes input and recommendations from the public we serve whenever there are any concerns.  Please contact our office and we will make sure the Risk Management Division is notified.

With respect to collections on delinquent accounts owed the County, the total collected for the fiscal year totaled $4,317,833.  This represents actual cash in hand, and not promissory notes or other promises to pay in the future.  Special recognition goes to Deputy Corporation Counsel Molly Lugo who heads our collection unit and effort while balancing the rest of her legal work and caseload.

From the Desk of Lincoln Ashida on the County Sunshine Law Lawsuit

From the Desk of Lincoln Ashida:

Lincoln serious

Council Sunshine Law Lawsuit: Not a legal conflict, but a political conflict.

On July 23, 2009, Third Circuit Court Administrative Judge Ron Ibarra ruled on the West Hawai‘i Today’s motion for a temporary restraining order.  The WHT originally sued the Hawai‘i County Council, alleging they violated the State Sunshine Law (open meetings law) and sought to have the reorganization of the Council’s leadership voided, as well as all official action taken by the Council since the reorganization.  After the lawsuit was filed, the WHT filed an additional request with the Court, asking that an order be immediately issued preventing the Council from transacting any official business.

Judge Ibarra denied the WHT’s request for the immediate issuance of an injunction.  Instead, the Court ordered an injunction will issue at 6:00 p.m. on August 5, 2009.  Why this is significant is because the Council has scheduled a meeting the day before (August 4, 2009) and plans to revert back to the leadership lineup that was in place prior to June 16, 2009.  For all practical purposes, so long as the Council follows through on what was unanimously decided at its most recent Council meeting on July 22, 2009, Judge Ibarra’s order will be effectively moot, and there will be no need for the injunction.

During the briefing with the Council on July 22, 2009, a question was posed by two Council members why certain legal action was taken by our office in the defense of the Council in this lawsuit.  A recent newspaper article written by a WHT reporter (the same WHT that has sued the County) questioned whether our office had a legal conflict of interest in the representation of the many parties involved in this lawsuit.  The real question and issue should be focused on the Council members involved, and whether they have a political conflict that prevents them from fulfilling their fiduciary responsibility to the County they serve.

Copied below are our answers (in blue) to questions posed by the WHT reporter, many of which were omitted from their newspaper article:

My questions are of the “serve many masters” variety. How does a Corporation Counsel in general (and I guess you in particular) handle the demands of differing clients?

These demands can be significant.  The key is identifying the true “client.”  For example in the case of the Council, it is the Council as a whole that is the “organizational client” whose interest we are obligated to protect.  Individual members and their personal interests are not clients of the Corporation Counsel. Of course Council members take action (or inaction) on behalf of the organizational client we represent, but so long as they are not named as defendants in their personal capacity, there should be no conflict in our representing the organization, even if they have different views.  This is where it can be confusing for Council members, and I understand that.

In the recent Council reorganization discussion, the first thing we asked all Council members is to spend some time thinking whether they have a “personal view” about the reorganization, or a “personal interest.”  Anyone can have a view, and that doesn’t place you in conflict.  However if you have a personal interest that differs from the organizational client, the Council member may have a problem.

When the WHT filed their motion for the TRO, it was clear the interest of the organizational client Council was to oppose any order that would prohibit it from unduly performing their official duties. No Council member disagreed with that. The WHT targeted Chairman J Yoshimoto asserting he had willfully violated the Sunshine Law.  Had the Court found there had been a willful violation, it would be more likely to immediately grant the TRO, instead of delaying the implementation of the order as the Court eventually did.

In Court, we presented evidence on behalf of the Council that Mr. Yoshimoto disputed any allegation he had actually spoke with more than a quorum of members prior to his contacting Mr. Hoffmann. The statement of Mr. Hoffmann that contradicted Mr. Yoshimoto was already part of the record and the County stipulated (agreed) the Court could consider it.  This raised questions by Mr. Hoffmann and Mr. Yagong.  After discussing this with Mr. Hoffmann, he understood the legal need for the Council to take this position, and appreciates this had nothing to do with any assertion he was not telling the truth.  In fact, in discussing this with Mr. Hoffmann, he acknowledged that Mr. Yoshimoto never said he spoke with Mr. Ikeda and Ms. Nae`ole.  It was not unreasonable to conclude that even if that statement of “having five votes” was made, Mr. Yoshimoto correctly concluded Mr. Ikeda and Ms. Nae`ole would support him, as they have historically done in the past. I urge you to confirm this with Mr. Hoffmann; there appears to be some severe public confusion and misunderstanding that Mr. Hoffmann reported that Mr. Yoshimoto in fact said he actually spoke to Mr. Ikeda and Ms. Nae`ole.  This is simply not true.

In the case of Mr. Yagong, he questioned whether there was preferential treatment for Mr. Yoshimoto.  This raises more concern regarding a conflict of interest on his part.  The question each Council member needs to ask is “What outcome do I want to see in this lawsuit?”  If the answer is a finding of a willful violation against any of its members, then there is a problem.  This is because the actions of any member will be construed as the actions of the Council, since all nine members were sued in their official capacities.  If any Council member is in a position where they are advocating for a result (or otherwise has a personal interest in the result) inconsistent with that of the Council as a whole, they need to carefully consider whether they are abiding by their fiduciary responsibility as a County officer.  I am not suggesting Mr. Yagong or any member is in conflict; but this is why we emphatically asked each member to take some time to think about it, and even discuss it with a private attorney if they wanted to.

So the short answer is there is no short answer.  Handling different “demands” of County clients can be difficult, but our Rules of Professional Conduct (Hawai‘i Supreme Court rules) guide us.

Would you say your 1st responsibility is to:
1) the public 2) the administration that hires you 3) the council 4) the council chair 5) the council majority?

Our first responsibility is to the public.  No question about that.  In fact the Rules of Professional Responsibility provide there is no attorney-client privilege with respect to government waste or abuse.

However what is not clearly understood by many is although we are public servants, the public at large is not our client.  The brutal reality is the judicial system in our country is an adversarial one with both sides of any conflict having the right to zealous legal representation.  Courts are called upon to oversee these disputes, and require both sides follow rules of practice and procedure that seek to discover the truth. The Council’s reorganization best exemplifies this. Those that are critical of the Council’s decision to reorganize also criticize our office for defending the actions of the majority vote of the Council.  They incorrectly conclude that since we are public servants, we somehow have a duty  to advocate the personal views of some members of the public.  I understand why they feel this way, and will never criticize anyone for having views.  But the reality is our job is to represent the majority vote (not members) of legally defensible Council action.  During the previous Council term, when other members of our Council comprised the majority, similarly our role was to advocate and defend the legally defensible actions taken by the majority vote of the Council.  This is something that happens all the time, I don’t recall ever hearing any criticism of the legal services provided by our office.  I suppose it is getting much more attention today since the conflicts between some Council members concerning the reorganization appear to be more political than legal.

The other entities you mention (administration, Council, Council chair, Council majority) are all part of the County of Hawai‘i.  This is the client (County of Hawai‘i) and our responsibility is to support the policies established by both the administration and Council, so long as they are legally defensible (note here these policies may not be “popular” with the public, but we do not have the prerogative to pick and choose which policies to legally protect).

The Council will often feel their interests are “secondary” to the administration, since the Corporation Counsel is appointed by the Mayor.  This is completely understandable.  The only way we can hope to show the Council’s legal interests are equally as important is through our actions.

Within the Council, we stress that it is the majority vote that we seek to protect (so long as it is legally defensible) and not the majority members. Of course much of the legislation that passes is done by whoever is in the majority, so it will naturally appear it is their “interest” that is being advocated vis-à-vis the other members.

The recent Council reorganization is the best example of this.  When the reorganization resolution passed, there did appear to be inadvertent violations of the Sunshine Law.  We advised (and the Council concurred) to put all contacts Council members had with one another on the record in order to mitigate any harm to the public. The Council was advised to move forward; we recognized had there been no lawsuit within 90 days of any opinion letter being filed by OIP, the actions of the Council would be protected from legal challenge.

The WHT lawsuit changed that.  In hindsight, it did the Council a big favor.  It caused this issue to come to a head sooner than later, and this will help the Council get back on track and return to doing the people’s business.  There will be no “90 days of uncertainty,” wondering if there will be a lawsuit challenging the actions taken by the reorganized Council. Any Council member can have a “personal view” that the reorganization was invalid or should not have been done.  No problem there.  The problem arises where a Council member has a “personal interest” contrary to the majority vote of the Council.  In the case of Mr. Hoffmann, there is no problem.  He may be called as a witness by the WHT in this case, and that is alright. He does not have a personal interest in the outcome of this lawsuit, and irrespective of his personal views, he does not actively advocate a position contrary to the position taken by the County in the lawsuit.

How do you prioritize that list?

There should be no “priority” between the administration and Council; their interests should be consistent—doing what is best for the people of our County.  In those instances where there may be a conflict with respect to the manner in which to achieve this objective, we do our best to avoid that conflict from materializing.  Much of my time is spent mediating as much as lawyering. However in those cases where the conflict exists, special counsel may be employed.  Trying to erect a “screening” procedure in our office (i.e., having two different attorneys assigned with one representing each side of the dispute), although well-intended, may not be practically possible and admittedly does little to ease the concerns of both clients.

do you also represent the clerk?

Yes, for his/her actions taken in the course and scope of his/her duties.

In this particular lawsuit, you are faced with 2 coucilmembers who have different recollections of a meeting. the third party to the conversation, the clerk, is likely to be called as a witness by one side or the other. can you represent all three? will someone in you office handle some of the burden? or does outside counsel play a part? Will you be recommending Mr Hoffmann in particular have a different attorney? (he said he is expecting t be talking with you today)

I think I covered this earlier.  The two different recollections is not legally significant for purposes of legal representation, and that does not place either Mr. Yoshimoto or Mr. Hoffmann in conflict.  Look at it this way: When I was a prosecutor, there were times in a case where a police officer may have had testimony or evidence that conflicted with the prosecution’s theory of the case.  The law calls this “exculpatory evidence.”  Often it will be the defense that would call these police officers as witnesses.  No problem.  And it is no problem since the police officer has no personal interest in the outcome of the case (in fact presumably his personal view and interest is that the prosecution should prevail).  The last trials I did as a prosecutor were the Pauline/Schweitzer cases involving the kidnap, rape and murder of Dana Ireland.  In those cases, the defense called many County police personnel as witnesses since they were alleging the DNA did not match the perpetrators and exonerated their clients.  Even if the DNA evidence (lack of sufficient sample for a match) conflicted with the wealth of other probative evidence the prosecution had, it didn’t place the County police officers in conflict such that independent counsel was necessary for them, or anything close to that.  Turning back to the Council’s reorganization scenario, this is why Council members have been asked and reminded to remember it is the Council as an organization that is the client we represent, and not the personal interests of its individual members.

would you agree with Mr. Hoffmann that this is an area the charter Commission might look at when it offers amendments to the charter?

Absolutely.  It is something that should constantly be looked at.  But as long as we are talking about this, I think everyone should be aware of some of the unintended consequences.  These include (1) lengthy and expensive litigation (when multiple lawyers are involved, invariably there will be legal conflict that may be drawn out over years), and (2) the mistake some Council officers and employees may make in believing they have a “personal”’ attorney.

But beyond that, I think it is important the Charter Commission take a close look at this issue and hear as much input as possible.  I think they could benefit from hearing from other jurisdictions around our State and country that deal with these potential conflicts from time to time.  Former County Clerk (and present Charter Commission member and UH Law Professor) Casey Jarman had an excellent suggestion concerning some changes to the Charter involving Corporation Counsel.  Admittedly at first I told her I thought the attendant financial costs were too great, but I am reconsidering and thinking her suggestions may be some the Commission should consider. Either way, what is most important is public awareness and information.  We need to do a better job with that and let the public know why legal decisions are made.

anything else you want to add is appreciated.

If you have any questions or comments regarding the above, please contact me at Lashida@co.hawaii.hi.us, or via telephone at (808) 961-8304, extension 118.  This message was posted on

July 27, 2009, at 7:45 a.m.

Interesting Emails at Lincoln Ashida’s Office

The other day I posted:

Lincoln Ashida on the West Hawaii Today Lawsuit and the Council

Well the link to internal memo wasn’t working at the time.  It is now available to the public and reads as follows:

From: Rodillas, Martha
To: “Dawn.M.Shimabukuro@hawaii.gov”
Cc: Ashida, Lincoln
Subject: FW: Hawai`i County Council Reorganization
Date: Tuesday, June 23, 2009 4:14:13 PM

Good Afternoon Dawn:

Hope this email finds you doing well! Please see email below from Corporation Counsel Lincoln Ashida. Could you kindly forward this to the assigned attorney in your office who is handling this matter? Please feel free to contact me if you need any further information. Thank you for your time.

Aloha,
Martha
Martha A. Rodillas
Private Secretary to
Lincoln S.T. Ashida
Corporation Counsel
County of Hawaii
PH: 808-961-8251
E-mail: Mrodilla@co.hawaii.hi.us

From: Ashida, Lincoln
Sent: Tuesday, June 23, 2009 4:09 PM
To: Rodillas, Martha
Subject: Hawai`i County Council Reorganization

Dear OIP,
Thank you for allowing the County of Hawai‘i to respond to the three complaints submitted to OIP concerning the recent reorganization of leadership of the Hawai‘i County Council. I have been asked by the Hawai‘i County Council to respond on behalf of the Council.

Background

On June 16, 2009, the Hawai‘i County Council at a regularly scheduled meeting considered three resolutions concerning the reorganization of the Council leadership.

In sum, the two resolutions that eventually passed via majority vote accomplished the following:

1. The Council Vice Chair responsibility was transferred from Pete Hoffmann to Emily Nae`ole.
2. Council committee chairmanships were redistributed among all nine members.

Members of the public who testified at the Council meeting expressed dissatisfaction with the reorganization, alleging (1) the removal of Mr. Hoffmann from the vice chairmanship and transfer of Dominic Yagong and Brenda Ford away from the Finance and Public Works committees represented retribution for their recent disagreement with other Council members concerning the County’s budget, and (2) that the reorganization was an attempt to centralize power in the “East” (primarily the Hilo districts).

During the meeting, allegations that the Sunshine Law had been violated by some members of the Council were raised by the public as well as some Council members.

When the County Clerk was called upon to provide an opinion as to what should be done concerning these allegations, he recommended each Council member place on the record the nature of the contact they had had with one another. When our office was called upon to reflect upon this recommendation, we concurred that under the circumstances and given the limited information available at the time, this would be the wisest course in order to work towards a “cure” of any possible violation.

The former leadership of the Office of Information Practices had advised our office in previous reorganizations and similar issues that a possible “cure” for inadvertent Sunshine Law violations would be to place all contacts on the record so the public is afforded the benefit of knowing what transpired outside of a properly noticed meeting (assuming these contacts were required to be held at a properly noticed meeting and were not subject to an exception under HRS Chapter 92).

Matters placed on record by Council members

We understand OIP was provided a DVD copy of the Council meeting of June 16, 2009. After being requested by the Council to assist in this response to OIP, I questioned each Council member individually as to their recollection of what contacts they had with one another, and what was placed on the record on June 16. Some Council members have responded to me and others have not. We recommend you verify the contents of the DVD recording against the following short summary:

1. Guy Enriques. Mr. Enriques indicated he along with Mr. Onishi approached
Mr. Yoshimoto within the past few weeks in order to discuss a reorganization
of the Council. In related media reports, Mr. Enriques indicated he may have
discussed the issue of leadership generally with Mr. Ikeda, but that occurred
prior to the present reorganization effort.
2. Dennis Onishi. Mr. Onishi indicated he along with Mr. Enriques approached
Mr. Yoshimoto within the past few weeks in order to discuss a reorganization
of the Council. Mr. Onishi indicated he spoke with Mr. Greenwell on Friday,
June 12, 2009.
3. J Yoshimoto. Mr. Yoshimoto indicated he was approached by Mr. Enriques and Mr. Onishi within the past few weeks in order to discuss a reorganization of the Council. Mr. Yoshimoto indicated that on Wednesday, June 10, 2009, he met with Mr. Hoffmann to discuss the reorganization.
4. Pete Hoffmann. Mr. Hoffmann indicated that on June 10, 2009, Mr.
Yoshimoto requested to meet with Mr. Hoffmann in the Waimea Council Office in an attempt to obtain Mr. Hoffmann’s support of the proposed reorganization.
5. Donald Ikeda. Mr. Ikeda did not have contact with any Council member
concerning the present reorganization.
6. Emily Nae`ole. Ms. Nae`ole did not have contact with any Council member
concerning the present reorganization.
7. Brenda Ford. Ms. Ford indicated she learned of the proposed reorganization sometime after June 10, 2009. Upon learning of this, she contacted Mr. Hoffmann and learned that Mr. Yoshimoto had approached Mr. Hoffmann after Mr. Yoshimoto met with Mr. Enriques and Mr. Onishi. Ms. Ford subsequently contacted Mr. Yagong and Mr. Greenwell to discuss the reorganization.
8. Kelly Greenwell. Mr. Greenwell indicated that on June 10 or 12, 2009 (he is not certain), Mr. Onishi contacted him and relayed he (Mr. Onishi) would be assuming chairmanship of the Finance Committee, that the number of
committees would be reduced from nine to five, and there would be an
increase in Mr. Greenwell’s responsibilities with intergovernmental affairs.
9. Dominic Yagong. Mr. Yagong did not make any statement.

The above factual summaries do not change our opinion that there was an
inadvertent violation of the Sunshine Law.

Council Members Enriques, Onishi, and Yoshimoto were permitted to discuss this reorganization as the Sunshine Law allows less than a quorum of a board’s members (here up to 4) to discuss the board’s leadership. Unbeknownst to Messrs. Enriques and Onishi, Mr. Yoshimoto contacted Mr. Hoffmann. Unbeknownst to Messrs. Enriques and Yoshimoto, Mr. Onishi contacted Mr. Greenwell.

Matters were complicated when Ms. Ford learned of the reorganization and contacted Mr. Hoffmann. According to Ms. Ford, she learned Mr. Hoffmann discussed the reorganization with Mr. Yoshimoto, who had discussed the matter with Messrs. Enriques and Onishi. Ms. Ford then brought what amounted to the 5th and 6th Council members into the discussion when she called Messrs. Yagong and Greenwell.

Focusing on a cure

No doubt the Council is entitled to reorganize their leadership as they deem
appropriate.

In communications received from your office, we note OIP has periodically referred to local media reports and premised some questions based on representations contained therein. Although these media reports may provide a general recitation of events, we respectfully caution OIP to independently corroborate these representations, since some reports we have seen contain unfortunate editorial innuendo weaved into the reporting of factual events.

One report suggested this reorganization of the Council leadership represented an effort by the “East side” Council members to “seize power” over their “West side” counterparts. This divisive assertion ignores the fact all West side Council members retain the chairmanship of at least one Council committee, unlike previous Councils where members from the East side were excluded from such responsibility. It is important to note here that Mr. Onishi’s resolution that was allegedly discussed with Mr. Greenwell that proposed to reduce the number of committees from nine to five did
not pass and in fact was withdrawn by Mr. Onishi. Although we fully respect the right of all persons to form their own conclusions and voice their opinions, we believe the salient inquiry by OIP is limited to whether there has been a violation of the Sunshine Law with respect to the legislation that was actually heard and passed.

Arguably, the reorganization of the Council leadership may have been a matter that could have been placed on the Council agenda via amendment on the day of the meeting. In an abundance of caution, and in an effort to allow full disclosure to all parties involved (despite Council leadership being an internal matter), a decision was made by the Council majority to notice the proposed changes on the agenda. Further, there was no guarantee OIP would similarly agree that this was purely an internal matter not of reasonably major importance that did not affect a significant number of people as the statute requires. In sum, the Council majority “took the high
road” and embarked upon the most conservative course in this  reorganization.

Since the complaint filed by Ms. Ford alleges a violation of the Sunshine Law based on her claim that the agenda was posted too late, we thought it important to stress that the County included this reorganization on the agenda in an abundance of caution. Since one of the critical inquiries will be the HRS Chapter 92 criteria that it is a matter of reasonably major importance affecting a significant number of people, it is important for the County to point out the changes involved with this reorganization are
relatively minor and the “major” issue being played out is the media is a perceived “power struggle” between the “East versus the West,” an issue not relevant for purposes of the Sunshine Law. As history of our Council has shown, leadership and majorities are based upon relationships between Council members, and not where they are from. In fact, it has been the members of the “North” and “South” districts of our island (i.e., Hāmākua and Ka‘ū) who have made the difference with respect to the makeup of Council leadership, whether the predominant number of members have hailed from the East or West side.

A final note with respect to Ms. Ford’s complaint. Please review the record. Ms. Ford asserts the following:

When I challenged the Council Members regarding Sunshine Law violations and the solicitation of votes, Mr. Lincoln Ashida, Corporation Counsel, was requested to come forward. He explained that in a previous Sunshine Law violation (Gary Safarik) that “open meetings disclosure” “cured” the violation. Briefly, he stated that more than a quorum might discuss reorganization of Council Committee Chairmanships without violating the Sunshine Law.

I do not recall stating that “more than a quorum might discuss reorganization” as that is not a correct recitation of Hawai‘i law. There appears to have been confusion on Ms. Ford’s part as to the permissible interaction of two members versus four members (where leadership is discussed). I apologize that I was not more clear so that Ms. Ford could properly understand.

Based on the above, the County submits whatever inadvertent violation of the Sunshine Law committed by Ms. Ford or other members was not willful or malicious.
Turning to a cure, the on-the-record disclosure made by each Council member followed by an individual inquiry of each Council member by our office revealed no further inadvertent (or willful) violations; thus the present record is factually accurate.

The County submits no further action is necessary.

We thank OIP for the assistance they are providing our County. We appreciate the working relationship we have with OIP and look forward to hearing your comments with respect to the Hawai‘i County Council’s position.

Lincoln S. T. Ashida
Corporation Counsel
County of Hawai`i
Hilo Lagoon Centre, Ste. 325
101 Aupuni Street
Hilo, Hawai`i 96720
Tel. (808) 961-8304, x118
FAX (808) 961-8622
Email: Lashida@co.hawaii.hi.us
Website: www.co.hawaii.hi.us/cc/home.htm

———————————-

The original draft of this can be found here.

Lincoln Ashida on the West Hawaii Today Lawsuit Against County Council

From the Desk of Lincoln Ashida:

Lincoln Ashida

The West Hawai‘i Today’s lawsuit against the Hawai‘i County Council. On July 10, 2009, the West Hawai‘i Today newspaper filed suit against the Hawai‘i County Council and all nine Council members in their official capacity, alleging a violation of Hawai‘i’s “Sunshine Law.”  The lawsuit is based on the Council’s reorganization of some leadership positions at their June 16, 2009 meeting in Kona.  The lawsuit alleges some Council members engaged in a series of “serial communications” that circumvented the State’s Sunshine Law, and had the net effect of allowing the Council members to discuss the reorganization outside of a properly noticed meeting.

The State of Hawai‘i’s Sunshine Law is commonly referred to as the “open meetings law;” it requires all boards under its jurisdiction to transact official business at a properly noticed meeting.  The law prohibits informal meetings to discuss official business between more than two board members.

One exception to the general “two member” rule is the discussion of the board’s leadership.  For nine-member boards like our Council, the law permits up to four members to privately discuss leadership “without limitation or subsequent reporting.”  This means unlike the permitted “two member” rule, the Sunshine Law allows up to four Council members to discuss how they will vote on a particular measure concerning the future leadership of their board.

The West Hawai‘i Today’s lawsuit seeks three basic things:

  1. A declaration from the Court that there was a Sunshine Law violation;
  2. A declaration from the Court that the reorganization was invalid; and
  3. Reasonable attorney’s fees and costs.

Our office also confirmed with the West Hawai‘i Today’s attorney, Robert Kim, Esq., that the newspaper also seeks to have all official actions taken by the reorganized Council and committees declared invalid.  We thank Mr. Kim for his candor and providing the Council a “heads up” on the remedies their lawsuit seeks.  In my many dealings with Mr. Kim, he has consistently demonstrated he is the finest example of a lawyer gentleman and his civility is much appreciated.

At the request of the Office of Information Practices (OIP) and with the consent of the Hawai‘i County Council, the Corporation Counsel responded to three complaints filed with OIP concerning the reorganization of the leadership of the Council and its standing committees.  You may read the full text of the County’s email response here.  At the request of OIP, since time was of the essence, they sought a response from the Council as soon as possible.

Inadvertent violations of the Sunshine Law

Unfortunately, inadvertent violations of the Sunshine Law by board members when discussing leadership changes is common.  OIP’s recent legal opinion concerning “serial communications” has dramatically (and properly) limited the extent that board members may discuss board business.  Prior to the “serial communications” opinion, two board members would routinely discuss board business.  Once that discussion was completed, they would move on to discuss the same board business with another board member, and so on.  OIP correctly opined that such “serial communications” violated the intent of the Sunshine Law by essentially allowing more than two board members to discuss board business.

However you can see how the discussion of leadership changes (where up to four members may participate) may be problematic for board members.  Since they are not limited to discussing the matter with just two members, unless they know who the other board member discussed the matter with, inadvertent violations of the Sunshine Law may frequently occur.

So where did that leave our Council on June 16?  Instead of retreating into a recess or attempting to “defer” the matter to another day, the Council moved forward to determine what occurred and to seek a possible remedy or cure.  The Sunshine Law provides no guidance with respect to “what to do” when possible violations have occurred.  In prior discussions with the former leadership of OIP, the remedy of placing the nature of the contacts on the record was viewed as a way of mitigating any violation.  This is exactly what was done by the present Council on June 16.  Each Council member was asked to place on the record who they spoke with to discuss the reorganization.  This is how we learned of the seven members being involved either directly or serially as discussed above.  Although this effort may fall short of a “cure” since the violation had already occurred, it nonetheless served as an attempt by the Council to mitigate the harm caused by the violation by placing into the public record all contacts they had with one another concerning the reorganization.

Of course, OIP will ultimately decide to what extent the Sunshine Law was violated, and the range of remedies available to the Council and public.  One possible extreme is a finding that the actions of the Council were willful.  This would subject the Council to possible criminal prosecution.  Although unlikely, it serves as a very important reminder to all board members of the sanctity of the Sunshine Law and the need to respect the public’s right to participate in the official affairs of their government.

Having now the benefit of hindsight, and having read the lawsuit filed by the West Hawai‘i Today, we have the following observations concerning the highly publicized Council meeting of June 16:

  1. The Council’s “coup.” Some local media sources have described the actions of the Council majority on June 16 as a “coup.”  Merriam-Webster defines “coup” as “a brilliant, sudden, and unusually highly successful stroke or act.”  We surmise these media sources really intended to infer there was a “coups d`etat,” defined as “a sudden decisive exercise of force in politics.”  What definition most accurately describes the actions of the Council on June 16 will most likely be determined by the future of the present majority, their initiatives and their ability to craft meaningful legislation for the benefit of all island residents.
  2. The Sunshine Law encourages self-reporting of violations. Historically there has been some valid criticism of the Sunshine Law lacking “teeth” in enforcing violations.  Absent the provision calling for criminal prosecution where there are willful violations, there are no civil remedies such as the imposition of fines or even the setting aside of actions taken by the board (with the exception of a lawsuit being filed within the statutorily mandated time, as West Hawai‘i Today has done).  However this absence of an immediate civil penalty has the effect of encouraging board members to admit violations of the Sunshine Law and in turn, provides the public with information they would not ordinarily have.  This is a good thing.  An example of this occurred at the June 16 Council meeting.  All Council members were asked in public and on the record to disclose the contacts they had with one another, and they did so.  Now we recognize there may be some criticism that not all members were candid, or did not describe the extent of their contact with one another, or that they should not have violated the Sunshine Law in the first place.  We cannot and do not endeavor to control what some may think or believe. The option the Council followed was not to retreat into recess or defer discussion of the allegations, but instead to individually ask all members to place on the record who they discussed the proposed reorganization with.  When considering the extreme option of having the Council members make no statement and simply allowing the OIP to conduct an investigation devoid of facts, it appears the route followed by the Council was preferable.

What does the Council need to do now?

Within 20 days after service of the lawsuit on the County, our office will be filing a response to the West Hawai‘i Today’s lawsuit in Court.  Since the lawsuit seeks to invalidate all post-reorganization actions taken by the Council, a decision was made by the Council to cancel the committee meetings scheduled for July 21, 2009.  This will allow attorneys from our office to properly brief the Council at its regularly scheduled meeting on July 22, 2009 with respect to the specifics of this lawsuit, and the ramifications of the Council moving ahead in taking official action while the lawsuit is pending.

There is no “unringing of the bell”

Some public criticism has focused on the discussion of the Council on June 16 once possible violations were revealed by them.  On the one extreme, there are some who believe the violations were willful and the only possible “cure” is the criminal prosecution of the offending Council members.  As with all matters involving our local government, every citizen is entitled to their opinion, and that right will always be respected.  However before there is a rush to judgment and conviction, respect for the adjudicatory process and hearing all sides of any controversy is imperative and strongly urged.

In the case of the Council’s reorganization, there can be no “unringing of the bell.”  Assuming a violation is found, this harm to the public is the basis upon which much of the present vocal criticism is premised.

On June 16, after the Council placed all of their contacts on the record, that was the extent of what they could do.  Had no lawsuit been filed, upon expiration of ninety days from the date of OIP’s opinion, Council business would have continued based on the reorganization.  This is not uncommon.  When boards subject to the Sunshine Law commit inadvertent violations, often the contacts that are the basis of the violation are placed on the record by board members.  Assuming the public is satisfied with this remedy, the board proceeds without the need to take any other formal action.

The filing of West Hawai‘i Today’s lawsuit dramatically changes things.  Since the lawsuit seeks the invalidation of the reorganization, the Court will now be asked to determine to what extent any Sunshine Law violation invalidated the reorganization and any subsequent official action taken by the Council.  The Court may very well find there was an inadvertent violation and allow the reorganization to stand.  Similarly the Court may find there was an inadvertent violation, but based on the harm to the public, the reorganization is invalid.  The Court could further order subsequent official actions of the reorganized Council are invalid.

These (and the other possible) outcomes are something outside the ultimate control of the West Hawai‘i Today and the Council.  For the Council, their present charge must be to move forward with the people’s business in a responsible manner while being cognizant of the legal challenges that they face.  This may include a collective decision by the Council to hear the reorganization resolutions again, as well as all resolutions and bills heard, deliberated and decided by the Council and its committees on July 7 and 8.

The danger of public advocacy based on misinformation

A remarkable written public statement concerning the Council’s response to OIP’s inquiry, made by member of the public and brought to our attention was this:

Sadly the joke of the day is the report prepared by Corporation Counsel Lincoln Ashida, submitted to the Office of Information Practices (OIP). His report was written in response to OIP’s inquiry about a possible violation of the Sunshine Law resulting from the private interactions of certain council members planning the ouster of council members Ford and Yagong as Chairs of certain council committees and of Pete Hoffmann from his officer position as council Vice Chair. Lincoln Ashida’s “coup report” does not identify any willful violation of the Sunshine Law and instead argues in favor of absolving the council members of any wrongdoing.

The suggestion that the attorney for the Council should advocate that his clients willfully violated the Sunshine Law (thereby subjecting them to criminal prosecution) is something we would expect from laypeople unfamiliar with the Hawai‘i Rules of Professional Conduct.  What was truly astounding was the above statement was made by an attorney who has been licensed to practice in Hawai‘i since 2006.

The very heart of the Hawai‘i Supreme Court’s rules governing attorney conduct in Hawai‘i says “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” This is further embodied in Rule 3.1 of the Hawai‘i Rules of Professional Conduct, which states in pertinent part (emphasis supplied) that “A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”

As has been repeatedly pointed out in the media, the finding of a willful violation of the Sunshine Law by Council members may subject them to criminal prosecution with a resulting jail sentence.  It is disingenuous for any lawyer with any knowledge of Hawai‘i’s rules of ethics to assert that an attorney should “throw their client under the bus” for the sake of currying favor with polarized public sentiment.  The adversarial system contemplates, and our ethics rules demand that attorneys conduct themselves in a manner consistent with having both sides of any dispute bring all of their arguments forward so that a court or other fact-finding body may come to an informed decision.

The argument by this lawyer is similar to the uninformed criticism I heard when I served this County as a prosecutor.  Public defenders are public servants who are charged with representing individuals accused of criminal acts.  I sometimes heard the criticism of them, “How can they represent crooks,” by a portion of the public that believed all law offenders should bypass the judicial process and proceed straight to jail.

This is not to suggest our citizens cannot have these views and voice their opinions.  However attorneys in our State have a greater responsibility.  Hawai‘i Supreme Court Chief Justice Ronald Moon has been a tireless advocate for the need of all attorneys in Hawai‘i to do their part to improve the image of the legal profession.  The Chief Justice’s charge to all of us has gone beyond promoting the aspirational requirement of pro bono service contemplated in our ethics rules, but extends to ensuring the rules of civility and fair dealing are strictly enforced.  To this end, lawyers should not knowingly publicly advocate a “duty” on the part of Corporation Counsel that is diametrically repugnant to the core responsibility a lawyer has of zealous representation in the adversarial system.

This is also not to suggest in any way that the Corporation Counsel would ever further any effort that would not be consistent with the best interests of the government or public.  We are well aware of our obligation under Rule 1.13 of the Rules of Professional Conduct.  Had there been any indication the acts of any Council member were willful with respect to a violation of the Sunshine Law, appropriate action would have been taken.  In the present case, by having the Office of Information Practices conduct an independent review and analysis, we have complied with part (f)(3) of the rule by “advising that a separate legal opinion on the matter be sought and considered.”

In our weekly message of April 21, 2008 (you can read it here), we explained the duty attorneys have to their clients, and why under our laws the public at large is not the client, despite our roles as public servants.  All of this may not change someone’s opinion about how things “should be.”  However we hope this has provided adequate background and reasons as to why the Corporation Counsel is required to take certain legal positions on various issues.  The critical review and commentary of the actions of elected and appointed public servants is important for a strong democracy.  However irresponsible and inflammatory statements made by an attorney advocating a position contrary to the requirements of the Hawai‘i Rules of Professional Conduct is contrary to the Chief Justice’s vision of improving the image of the legal profession.

It is an honor to serve all the people of the County of Hawai‘i.  As ever, if you have any questions on the above, please contact me via email at Lashida@co.hawaii.hi.us, or telephone at (808) 961-8304, extension 118.  This message was posted on July 15, 2009 at 2:00 p.m.

County Responds to Lawsuit Over 2008 Procurement Dispute

Media Release

The County of Hawai‘i today received a complaint filed in the Third Circuit Court by HMP Inc. claiming breach of contract and a violation of the State procurement code.  The lawsuit asks the court to order the County not to terminate its contract with HMP to provide paving material, and to prevent the County from “disqualifying (HMP) from future bids.”  The lawsuit also seeks “loss profits,” but fails to state the amount lost or a factual or legal basis for making this claim.

“HMP’s lawsuit is very weak in both law and facts,” said Corporation Counsel Lincoln Ashida.

This dispute arose in 2008 after the County awarded a contract to HMP to provide paving material for work being done on Saddle Road. The County’s contract with HMP was a “price term agreement,” meaning under the terms of the agreement, for the period of the contract, HMP was obliged to supply usable material to the County.  In turn the County was obligated to purchase the material from HMP.

After a County employee determined the material delivered by HMP was not usable, the County sought usable material from another company so the job could move forward. HMP’s attorney complained about this substitution, and the County investigated the claim. Negotiations with representatives of HMP followed.

HMP’s lawsuit claims “(HMP) submitted a request to resolve the breach of the terms and conditions of the…contract.” This suggests the County did not attempt to negotiate a reasonable resolution of this dispute, but the lawsuit fails to mention the offers of a fair settlement the County made, Ashida said.

HMP’s lawsuit also lists as “facts” allegations such as “a rumor” “heard…” by HMP employees as the basis for its current claims.  The County will ask the Court to dismiss this lawsuit as failing to state a basis upon which any relief may be granted, Ashida said.

The case also has been turned over to the Corporation Counsel’s Fraud Division, Ashida said. The County’s attorneys will determine whether it may be appropriate for the County to file a cross-claim alleging false claims made by HMP and their attorney.

Lincoln Ashida on “Council Pay Raises”

Here’s another one from the desk of Lincoln Ashida:

Lincoln serious

Council pay raises. On Tuesday, July 7, 2009, the Hawai‘i County Council Committee on Finance voted down a resolution that sought to recommend the County’s Salary Commission reconsider their earlier action in 2008 that provided for a 22% pay increase for all nine Council members.  The introducer of the measure, Council Member Dominic Yagong, was commended for his forward thinking.  Our office also commended him for following the lead of Mayor Billy Kenoi, who earlier this year voluntarily took a one-day-per-month “furlough” and mandated his appointed office staff do the same.  Mayor Kenoi recognized the cost savings to the County would obviously not solve the County’s budgetary shortfalls, but would serve as a representation of leadership from the County’s top executive.

Although what was primarily reported in the media were the sentiments of some Council members who felt their pay was fair and necessary for their sustenance, much of the discussion focused on the desire of the majority of Council members not to “meddle” in the affairs of the Salary Commission and thereby “politicize” the salary process.

Here is a more detailed summary of the discussion as well as a recommendation made by our office:

  1. The De-politicization of the Salary Commission. Via Charter amendment in 2000, the voters in our County amended our Charter to delete any requirement that the salaries set by the County’s Salary Commission be approved or otherwise ratified by the Mayor or Council.  This significant amendment was viewed as a positive step toward removing the “politics” from the setting of salaries for the County’s top officers.  Some Council members felt any official communication from the Council to the Salary Commission would again “politicize” the process.  This is because Salary Commission members (all volunteers from our community) may feel pressured to follow direction from the Council on a publicly popular position, while their legal charge is to only consider the setting of salaries consistent with compensation in the public and private sectors.
  2. Sometimes “You can always get what you want….” I could not resist the Rolling Stones reference.  Despite Mr. Yagong’s resolution not passing, there is a very simple way for him and other Council members to achieve the very same result without the involvement or concurrence of the Salary Commission.  After all, there would be no guarantee the Salary Commission would agree with such a Council recommendation, since their charge under the law does not include the consideration of payment sources or the ability of the County to fund any pay increases.
    1. a. Following our Mayor. Mayor Kenoi’s furlough of himself and his appointed staff for one day a month for an entire year amounted to a “pay cut.”  Last week, in a much publicized case on Oahu, First Circuit Court Judge Karl Sakamoto granted an injunction sought by employer unions against Governor Linda Lingle.  Judge Sakamoto’s order prevents the Governor from unilaterally “furloughing” civil service employees without first bargaining with the unions.  The Judge’s order notes that a furlough is the functional equivalent of a “pay cut.”  Although the term “furlough” has been widely used, it is not an accurate description. In the case of our Mayor, there will be no loss in service to the public.  In other words, the Mayor and his staff will continue to come to work each and every day, but be simply paid one day less per month. Council members, as elected (exempt) public officers, can do the very same thing.

b. Different Council members, different means. Council member salaries presently differ based on their years of service on the Council.  Council members differ with respect to other income they may or may not have, and other personal financial circumstances.  The taking of “furloughs” by Council members (like our Mayor) will allow them to determine how much they can afford to have their pay cut without placing themselves in personal financial jeopardy.  We verified with the fiscal staff of the County Clerk’s Office as well as with the County of Hawai‘i’s Department of Human Resources that these “furloughs” could be implemented immediately (even retroactively).  In sum, Council members may individually achieve what Mr. Yagong’s resolution sought, and bypass the Salary Commission while accommodating the unique financial circumstances of each Council member.

c. The public is not “furloughed.” As discussed above, all of this may easily be achieved without any loss in services being delivered to the public.  Council members will continue to serve as they presently do.  Their willingness to make a personal financial sacrifice will be much appreciated and recognized as Council members doing their part in following the excellent example set by our Mayor.

Lincoln Ashida: Hawaii County Sues UniDev

Lincoln Ashida
From the desk of Hawaii County Corporate Council Lincoln Ashida:

In September of 2004, the County issued a request for proposal for the Waikoloa Employee Housing Project, seeking an experienced developer to plan, design and construct 1,000 affordable homes for people employed in businesses in our South Kohala district (primarily hotel and other visitor industry employees).  The homes were to be built on County-owned land in Waikoloa Village.  The successful bidder UniDev responded to the County’s request stating “UniDev brings complete financing capabilities to each of its projects through its financing relationships with Citigroup and Fannie Mae.  This allows the company to provide pre-development, construction and operating funds secured by the land and the future development.  The project sponsor (County) is required only to commit the land and the approvals and entitlements necessary to permit construction of the project to proceed.”

In 2005, UniDev made this further representation:  “This entire transaction can be structured such that the County, in its sole discretion, will have no continuing obligations or liabilities;…UniDev will provide, through our financing partners, 100% of the financing for this project; UniDev’s financing arrangements for this project will be non-recourse to the County…”

Based on the above and other similar representations made by UniDev, the County awarded UniDev the project.  Despite their promises and legal commitment to obtain financing, UniDev failed to do so, requiring the County to allocate approximately $40 million in taxpayer money to pay for the infrastructure in order to further this much needed project for our island residents.

This past Monday the County on behalf of our taxpayers sued UniDev in Third Circuit Court.  One of the charges is for “false claims” under Hawai‘i State law.  UniDev submitted claims for payment to the County, knowing they were false or fraudulent.  The County also sued UniDev alleging intentional misrepresentation, negligent misrepresentations and fraudulent inducement based on their claim they could obtain the necessary financing.  The County alleges UniDev knew it could not obtain this financing yet made these representations to the County in order to induce the County to award this project to them.

In our lawsuit, the County seeks an order from the Court directing UniDev to pay civil penalties three times the amount of damages, special and general damages, punitive damages, and the County’s attorney fees and costs.

Although the County is very disturbed our residents who need affordable housing on the West side of our island will not be able to enjoy home ownership as promised by UniDev, the County looks forward to having all of the facts and evidence that substantiate the County’s claims in its lawsuit brought into the public domain.  As the County’s Office of Housing and Community Development moves forward to build these homes, the Corporation Counsel anxiously awaits the opportunity to have UniDev held legally accountable for its actions and to reimburse our taxpayers accordingly.

As ever, if you have any comments or questions on the above or any matter, please feel free to email our office at Lashida@co.hawaii.hi.us, or call me at (808) 961-8304, extension 118.  This message was posted on July 1, 2009, at 1:00 p.m.

Lincoln Ashida: “What is the Legal Difference Between a Voter Initiative and an Ordinance?”

From the Desk of Lincoln Ashida:

Lincoln serious

During the recent lively Hawai‘i County Council debate concerning the two-year suspension of payments into the Public Access, Open Space and Natural Resources Preservation Fund, a question asked was whether voter initiatives enjoy greater legal recognition and protection than ordinances passed by the Council.  This question was asked in the context of arguments made that voter initiatives should not be subject to amendment by the County’s legislative body.

The short answer is there is no legal difference.  Voter initiatives once passed, become ordinances with no greater or less recognition than ordinances (laws) passed by our Council.  This means they are subject to amendment and repeal or other modification as any other local law.

In the 2008 general election our Hawai‘i County Charter was amended to provide voter initiatives that become ordinances cannot be amended unless there is a two-thirds vote of the Council.  This amendment applies to voter initiatives passed after the 2008 general election, so it did not apply to the amendments made by the Council to the Public Access, Open Space and Natural Resources Preservation Fund ordinance.  However, the 2008 amendment to the Charter makes clear the will of the voters is to extend greater recognition and protection to voter initiatives compared to Council-passed ordinances.  This is a positive step in our democratic process that affords our voters an active role in public policy formulation at the County government level.

For those in County government responsible for overseeing our public elections, this means even greater care must be deployed in ensuring proper information is provided to the public.  From distributing public information reciting “pros and cons” to crafting neutral ballot language, voter education is critical.  Luckily, our County is blessed with a very effective County Clerk and a very efficient Elections Division.  As the opportunity for greater public involvement in the County government process grows, our County legislative branch is up to the challenge of ensuring all members of our island community are informed.

As ever, if you have any comments or questions on the above or any matter, please feel free to email our office at Lashida@co.hawaii.hi.us, or call me at (808) 961-8304, extension 118.  This message was posted on June 16, 2009, at 10:20 a.m.

Lincoln Ashida: Why Negligent Homicide Suspects are Normally Released Pending Further Investigation

From the Desk of Hawaii Corporation Counsel Lincoln Ashida:

Why negligent homicide suspects are normally released pending further investigation. A very sad story was reported in our local media over the past weekend, where a one year-old child was killed in a traffic collision. The news report says the driver of a pickup truck ran a red light and collided into a vehicle occupied by the one year-old child. The Police are attributed as saying “speed and alcohol were factors in the crash.” The driver of the pickup truck is reported to have a DUI conviction from 21 years ago. The driver of the pickup truck was arrested, but not immediately charged and released pending further investigation.

Some have wondered why the driver was released without charges. Unfortunately, some in our community who have written anonymous responses to the newspaper article have already concluded this is the product of police ineptitude or corruption

More here

P.S. Mr. Ashida, is there a reason why your blog is formatted so “Fred Flinstone” like?

Hawaii Corporation Counsel: County Internet Records, Not “Scandal”

The following is cut and pasted from the “Desk of Lincoln Ashida“:

County internet records, not “scandal”

Lincoln Ashida

On April 17, 2009, we explained why the County’s internet use records must remain confidential while an ongoing investigation is being conducted into allegations of inappropriate use. Monitoring of County employee internet use has been an ongoing effort for some time. Unfortunately, this process became publicly known as the “County internet scandal” when a Council member opted to report to the media that he had not been granted access to the individual reports for each County department. Sharing of confidential and sensitive information within the County is done on a “need to know” basis. In fact, the internet use reports for our County have not even been shared with the Mayor, but only with the department head of each County department or agency, per the requirements of the County’s existing policy. The Council member averred that his unsubstantiated claim of internet abuse (i.e., excessive web surfing during work hours) had a direct relationship to a lack of productivity, and this was an issue that should be addressed by the Council in their review of the County’s operating budget.

A review of the records from the major departments in our County reveals no evidence of widespread illegal or highly inappropriate internet use. For those isolated cases where there has been inappropriate use, department heads are authorized to conduct their own internal investigation and mete out discipline where appropriate. This is exactly why there were objections to having the Council member peruse these reports. Representatives of the legislative branch are not the appointing or supervising authority of administration employees (and vice versa), and lack jurisdiction to mete out discipline if warranted. You may view the Corporation Counsel’s internet use records for the calendar year 2008 here.

Earlier this week, a summary report on internet use for 2008 was sent to each department head. The department head must decide whether there is any information in these reports that must be redacted before they are released publicly. For example, the Civil Defense Agency has already pointed out that a secure website periodically accessed by them through the Fire Department (this site is identified by a numeric code) contains highly sensitive information and should not be released for fear of creating unwarranted widespread public panic since the information contained therein may not be the most current or updated. It is not a matter of playing “hide the ball.” It is a matter of making sure the County executes its responsibility of ensuring only credible information is released to the public in a timely manner, and to prevent “hackers” and other persons with nefarious interests to create public panic.

Once any redactions to these summaries are completed, the reports will be available to the public for their inspection and review.

Having accepted the Council member’s recommendation, the County’s Department of Data Systems is also compiling detailed reports for the top internet users in each department. These separate reports are not all completed. They will be forwarded to the respective department head for review. The department head may then review the reports and conduct additional investigation if warranted. If it is determined the nature of the sites visited and/or their duration are inappropriate, discipline may be meted out to the employee, along with other corrective action. The reason this must be done on a case-by-case basis is there may be a legitimate work-related reason for visiting certain sites, or for using the internet for extended periods of time. The productivity of the particular employee will also be a factor. Is the employee getting their work done or are they asking for overtime? The software used by the County has its natural limitations; it can only tell you what sites were visited and for how long the internet was being accessed; it can never tell you whether the employee was actively navigating the internet during those times (the internet could have been minimized on their screen) or what else the employee may have been doing. To this end, there is no substitute for each department having appropriate accountability safeguards such as supervision, timesheets, and progress monitoring.

If discipline is meted out by a department head, the detailed internet use records for that particular employee may be withheld from public inspection. State law allows the employer to withhold this information since it involves the significant privacy interest of the employee.

If no discipline is meted out, the detailed report should be released, together with any redactions consistent with protecting the identity of secured sites as explained above.

When will all this happen? Data Systems reports the individual summaries take anywhere between 5-8 hours per employee to run. But since this is an ongoing process, and we recognize and respect the request for information made by the Hawai‘i Tribune-Herald newspaper, the reports will be released once the department head has an opportunity to determine whether discipline is warranted.

When I was a youngster in the 1980’s, “Scandal” was a rock band I listened to on MTV. More appropriately Merriam-Webster defines scandal as “loss of or damage to reputation caused by actual or apparent violation of morality or propriety.” Perhaps an even more appropriate definition by Merriam-Webster is “malicious or defamatory gossip.” The rush to judgment by some in the local media in labeling this investigation as a “scandal” was made without responsible attention to the establishment of underlying facts to support such a claim.

As ever, if you have any comments or questions on the above or any matter, please feel free to email our office at Lashida@co.hawaii.hi.us, or call me at (808) 961-8304, extension 118. This message was posted on June 3, 2009, at 2:00 p.m.

Hawaii Corporation Counsel Lincoln Ashida on “What is a Furlough?”

The following is from Lincoln Ashida’s “Blog“:

Recent discussion in our media have included the possibility of furloughs for County of Hawai‘i employees. What is a furlough? The term “furlough” does not appear in the collective bargaining agreements (union contracts) for the employees of the major unions our County employs. Merriam-Webster defines “furlough” as “a leave of absence from duty granted especially to a soldier.”

Suffice it to say what proponents of employee furloughs for the County envision are days County employees don’t have to come to work, and consequently the County will not have to pay them, leading to a cost savings. However it is not as simple as that.

First of all, it’s important to distinguish between County officers and County employees. Officers are either elected or appointed and serve at will. For example, the Mayor, Prosecutor, Council members, and department heads are County officers. “Employees” as that term is used when referring to proposed furloughs covers those persons whose wages are bargained for and who have rights under their respective collective bargaining agreement. The appointing authority of the officers may order furloughs at any time. For example, Mayor Billy Kenoi has already directed each officer in the Mayor’s Office to be furloughed one day a month for an entire year. Although the cost savings will be far from enough to make up for any budget shortfall caused by the Legislature’s proposed reduction in the TAT contribution to our County, every little bit helps, and it is leadership by example.

For union employees, furloughs are much more problematic.

While litigating a recent labor case on behalf of our County, I had the opportunity to research and learn about the civil service system and merit principle that is at the heart of government employment in Hawai‘i. In a recent decision, our Hawai‘i Supreme Court recognized the merit principle as being fundamental to the recruitment and hiring of qualified individuals to serve in the public sector. The vast majority of positions in our County require the applicants to meet certain minimum qualifications, and to pass a written test to determine whether they are able to perform the job, and to gauge their qualifications vis-à-vis other applicants. This merit principle effectively ensures only qualified individuals are hired in the government service. In turn, they are afforded a number of rights found in their collective bargaining agreements as authorized by our State Legislature.

The collective bargaining agreements (contracts) between the County and the worker unions are something that are negotiated and agreed upon on a statewide level. If the County is to “furlough” its employees for any period of time, the contract requires the parties to follow a very specific process.

Whether you support furloughs for our County employees or not is a personal decision. There are legitimate arguments on both sides and ultimately it will be the State Legislature’s decision regarding our TAT contribution that will for all practical purposes dictate whether employee furloughs must be pursued.

As ever, if you have any comments or questions on the above or any matter, please feel free to email our office at Lashida@co.hawaii.hi.us, or call me at (808) 961-8304, extension 118. This message was posted on May 1, 2009, at 1:30 p.m.