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Independent investigator to be named soon

Leaders at the state Legislature will be coming up with a list of candidates, one of whom will be picked by the state attorney general to conduct a civil investigation into the Ka Loko Reservoir dam break.

In a measure that was passed last week by both the House and the Senate, state Attorney General Mark Bennett will select a special deputy attorney general from a list of at least five attorneys. The list will be generated by a committee made up of the House’s speaker and minority leader, the Senate’s president and minority leader, or their designees.

The measure to get a special deputy attorney general to conduct a civil investigation was introduced by Rep. Hermina Morita, D-North Kaua‘i.

She said last week that the list of candidates would probably not be generated within the next week or so.

The Legislature is scheduled to wrap up its 2006 session Thursday.

Morita pointed out that the special deputy should not have conflicts of interest.

“We looked at all angles about how do you get somebody from the outside (to investigate),” she said.

Morita indicated that the idea to have a special deputy attorney general to conduct a civil investigation was taken from the federal level. At the federal level, Congress implemented a process of appointing an independent counsel, which could be used by Congress or the U.S. attorney general to conduct investigations.

According to the measure, the criminal investigation into the Ka Loko dam break would be handled by the state Attorney General’s Office.

Morita said that the investigation into the dam break is going to be closely monitored by the Legislature. She also said that there are options that the legislators could look into.

“One of the things we could ask for at a later date is a legislative investigation. And if people disagree with the criminal case, then what we can do is go to the Disciplinary Counsel of the (state) Judiciary,” she said.

The Office of Disciplinary Counsel investigates complaints against lawyers and recommends appropriate discipline to the state Supreme Court.

Under the measure, which is called House Concurrent Resolution 192, the legislative committee, along with the state attorney general, will look to see if the attorney-

candidates have conflicts of interest, or if their law firms have conflicts of interest.

According to the resolution, the special deputy attorney general will independently and impartially investigate the role and possible culpability of the state, the county, and the private owners of Ka Loko Reservoir.

The resolution calls for the special deputy attorney general to see if other parties could be identified and held responsible, and make recommendations to the Legislature or to other government agencies to prevent another tragedy.

The resolution shows that the state attorney general’s deadline to report the special deputy’s findings to the Legislature will be concurrent with the start of the 2007 session.

According to the resolution, the state attorney general launched a criminal investigation soon after the dam broke March 14.

However, there have been numerous media and citizen reports making claims and accusations against the state, the county and the dam’s private landowners that may have caused, contributed to, or exacerbated the conditions leading to the Ka Loko dam breaking.

The resolution shows that if the claims are real or perceived, the state’s ability to investigate the incident may appear to be compromised by these claims and accusations that could jeopardize the credibility of the criminal investigation.

Also, the resolution shows that since the reservoir was privately owned and the state was responsible for regulating the dam, there is a question as to who may be held liable for the break.

Because the state may be held liable, the state attorney general may find itself in the position of not only prosecuting or suing a state agency, but defending it as well, according to the resolution.

• Cynthia Kaneshiro, staff writer, can be reached at 245-3681 (ext. 252) or ckaneshiro@kauaipubco.com

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