From the Desk of Lincoln Ashida:
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.
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