•Questions linger Questions linger Dear Chair Fuller: The action taken at the Sept. 10 meeting of your Ethics Board to release publicly the opinion of the County Attorney’s Office relating to County Charter Section 20.02D should be warmly applauded. The
•Questions linger
Questions linger
Dear Chair Fuller: The action taken at the Sept. 10 meeting of your Ethics Board to release publicly the opinion of the County Attorney’s Office relating to County Charter Section 20.02D should be warmly applauded.
The state Sunshine Law declares “In a democracy, the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. … Therefore … it is the policy of this state that … the action of governmental agencies shall be conducted as openly as possible.” Making the opinion available to the public is a welcome step toward openness. The practices of our County Attorney’s Office lag badly those of other counties and of state legal offices which routinely make opinions on matters of law public. The opinion dated Sept. 3, 2009, had been stamped as confidential and it took a courageous determination by your board for its release. The people are grateful to you.
According to The Garden Island coverage, the opinion itself was described by board members variously as “wonderful” and “defective.” These statements were summations and do not illuminate the content of the opinion to the public. It is the purpose of this letter to summarize and comment on the terms of the opinion. The opinion and its conclusion do not survive thoughtful analysis.
Section 20.02D says “No officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency.” Seldom have 21 words generated so much controversy.
The current story begins at the February 2008 meeting of your board when it considered the request by Jonathan Chun for an advisory opinion as to whether his representation of private clients before county agencies violated Section 20.02D. The board then concluded that “because of the complexity of the matter” it would seek an opinion from the county attorney as to “the intent of Section 20.02D and (County Code Section) 3-1.7.”
The role of attorneys for government office clients should be, in responding to their consultations for advice, to provide a digest of the applicable law and, where feasible, guidance as to the specific matter under consideration. In the opinion at hand this mission was not accomplished. The opinion was incomplete in its review of applicable law and it failed to provide meaningful guidance.
The September 2009 opinion to be discussed replaced an earlier opinion of March 2008. It is not necessary to discuss the earlier opinion.
Although the request from your board sought advice as to the intent of 20.02D and 3-1.7, the opinion misstated that request and then contended that the board was really inquiring whether provisions in the County Code (Sections 3-1.1 through 3-1.11) affected 20.02D. This distortion of the request by the county attorney is unwarranted and adversely affected the value of the advice.
The opinion then embarked properly on a modest discussion of the law applicable to 20.02D and a lengthy review of the County Code provisions. The discussion is appropriate, the emphasis is not.
The legal analysis in the opinion is incomplete and is clearly oriented to support a result adverse to the implementation of 20.02D even though the conclusion was vague.
A major deficiency is that the opinion ignores the general rule that statutes are to be liberally construed with a view to effecting their objectives and the promotion of justice. Instead the opinion asserts that 20.02D is ambiguous and then argues it could be construed to reach absurd results. Both contentions are of concern.
In effect the opinion argues without specifics that the meaning of 20.02D taken as whole is ambiguous. However, the sense of 20.02D is quite clear although a couple of its terms — “private interests” and “appear” — may require some clarification. Ambiguity pertains to whether the meaning of a term or concept is unknowable while clarification pertains to a perfecting of the meaning.
HRS 1-15 says that where the words of a law are ambiguous, then a construction that leads to an absurdity shall be rejected. Unless the law is ambiguous the absurd result construction cannot be invoked, but having assumed 20.02D ambiguity without proof, the opinion proceeds to offer two far-fetched illustrations of what it considers absurd results. The illustrations hinge on the notions that a person cannot act on his own behalf and that seeking a ministerial act by an agency is equivalent to appearing before a meeting or hearing of the agency. Both illustrations are without merit.
The opinion mentions at some length the County Code provisions. While there is a rule that laws shall be construed “in pari materia” i.e. what is clear in one statute may be called upon to explain what is doubtful in another, the opinion offers no example of a County Code provision that is useful in explaining the meaning of Section 20.02D. Two points should be noted. First, all five of the recent cases before your Board have involved persons who are members of county boards or commissions. The county code provisions may not be applicable to such persons as they are only applicable to employees and council members. Second, the conduct sought to be enjoined in the Charter is fundamentally different than that of Section 3-1.7 and other provisions of the Code which mainly involve conflict of interests or compensation issues.
The opinion then tenders its enigmatic conclusion. Having posited that the language of 20.02D is ambiguous and could lead to absurd results, the opinion offers as its centerpiece conclusion that the Code Sections must be read “in conjunction with the Charter provisions”. The provisions of the subsequently enacted and inferior ranking County ordinances could hardly be of value in deciding the intent of 20.02D (the actual inquiry) and they did not offer a clue how they could be of value in its interpretation. So how does the opinion conclusion assist your board? I doubt that the board is better off with the opinion than without it. The stated conclusion is simply an evasion by the county attorney of his duty to respond to the obvious real life issues which have in fact been presented whether a board or commission member may lawfully appear at county agency meetings on behalf of private interests.
A question has arisen as to the power of the council to adopt interpretations or clarifications of Section 20.02 charter provisions. Charter Section 20.04D empowers the council to adopt provisions that supplement the code. If this is construed a limitation, I would doubt the council power to enact ordinances that purport to explain rather than extend the charter provisions. I would also wonder why they would want to.
In summary, 20.02D is not a model of clarity. An explanation of its terms could be useful. But its essential meaning is readily apparent and it should be given effect.
Walter Lewis, Princeville
