Is the county attorney independent?

An office of significant importance to the County of Kaua‘i is that of the county attorney. The Kaua‘i Charter provides that the county attorney shall be “the chief legal advisor and legal representative of all agencies, including the council and of all officers and employees in matters related to their official powers and duties.”

The county attorney has a staff of deputies and, subject to council approval, retains outside counsel. Annually the county attorney is responsible for the expenditure of up to $10 million of county funds for legal services and amounts payable by the county as settlements and awards arising out of litigation and claims.

A noteworthy element of the county attorney function is the provision of opinions, written and oral, on legal matters to the county offices, boards, commissions and agencies. The position of the county attorney is that such opinions are confidential and privileged to the receiving party.

While certain legal opinions, especially those given incident to claims or litigations and those involving privacy considerations are justifiably immune from public disclosure, those related to interpretations of law with prospective application are elsewhere released as a matter of policy.

It is not the practice of the Kaua‘i Office of the County Attorney though to make a public release of any of its opinions, and it actively discourages their release by any of its “clients” by suggesting that a waiver of privilege must be in accordance with procedural steps that the county attorney has thus far failed to identify.

However, in keeping with the spirit and terms of the state Sunshine Law, on several recent occasions county boards and commissions have waived privilege and authorized the public release of county attorney opinions.

For several years, the County Council was relying on a dubious opinion as to the validity of executive sessions being held, but it elected never to make the opinion public. Recently an opinion letter about the legality of a county manager proposal being considered was released and it has received harsh criticism. The opinion was particularly egregious because it accompanied a political analysis of obvious partiality. Similarly an opinion relating to the interpretation of a provision in the County Code of Ethics lacking public support is now in the public domain.

One of the byproducts of the secrecy of county attorney opinions is the potential that an opinion is erroneous and the error will not be rectified. An attorney’s opinion is, after all, only a personal evaluation, and another attorney could well examine the same facts and law and reach a very different conclusion. An opinion that is adjustable after comments by qualified parties is much more likely to result in an appropriate interpretation of the law.

Another troublesome aspect of the county attorney situation is that the county attorney is appointed by and may be removed by the mayor. While the county attorney is nominally counsel for other county entities, he is really the mayor’s man and perhaps even his messenger boy.

Professional ethics require of a lawyer that he act solely for the interests of the client and refrain from any engagement that would be inconsistent with his duty to such client. Private law firms do not accept engagements to act on behalf of a prospective client whose interests may be in conflict with those of an existing client. However, the terms of the Kaua‘i Charter that the county attorney shall be the chief legal adviser of all government offices presents an impossible problem where one office has interests inconsistent with those of another.

Several years ago the county attorney initiated a lawsuit relating to the validity of the ‘ohana charter amendment regarding property taxes. Incredibly, the proceeding was brought by the county attorney in the name of the county as plaintiff with the mayor, the council and the finance director as defendants. A member of the county attorney office at times filed documents on behalf of both the plaintiff and the defendants.

Beyond the structural concerns, there are other matters. At the request of the County Council, the county attorney attends their meetings. It is, of course, appropriate that he should provide legal advice on request, but he goes further.

On occasions he has interfered with testimony of witnesses on grounds of relevance (relevance of testimony to an agenda item is a matter of fact not law) or in one instance because of the witness’ apparel. Such action is clearly the function of the chair whose authority is being superseded. The county attorney is a legal officer, not a parliamentarian or a sergeant at arms.

A reasonable question is whether our county would be better served if the county attorney were, as is the prosecuting attorney, an elected office rather than an appointed one. This would alleviate the present implicit allegiances to the mayor and his policies which are evident in the county attorney’s current practices. And it would remove one job from mayoral patronage.

But electing the county attorney is not a panacea. There are serious limitations on the electorate’s capability to evaluate between competing candidates the one who is most likely to successfully perform the duties of the office. The problem of potential conflicts of interests among the clients of the county attorney would persist.

The principal deficiencies of the present arrangement would be sharply improved if opinions emanating from the county attorney office would be limited to discussions of law rather than incorporating political messages and, recognizing the risks of error in any opinion, if the county attorney would make public and encourage clients to do the same all opinions except those requiring confidentiality because of subject matter or privacy considerations.

A more independent County Attorney’s Office would greatly benefit our county.

• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.