At the Sept. 21 County Council meeting the public got a rare glimpse of the work product of the County Attorney’s office. It was an informative insight.
The opinion surfacing at the Sept. 21 council meeting related to the issue of a Salary Commission resolution as to certain officers and employees. The opinion turned on the meaning of the word “shall” in the County Charter as it applied to the time for adoption by the council of the Salary Commission’s findings. The opinion cites two cases relating to statutes, not charters, which permit interpreting the word as directory rather than mandatory when it is not unjust to do so. The logical extension of this judicial activism would allow the word “black” to be interpreted as meaning “white” if in the judgment of the interpreter no injustice resulted. Such a substitution of the views of the author for the stated language of the legislative body cheapens the opinion and brings into question its reliability and it damages the reputation of the office and the quality of its other opinions.
The County Attorney’s office is established by the County Charter which provides that its head — the county attorney — shall be the chief legal adviser of all agencies, including the council and all employees in matters relating to their powers and duties. It is the practice of the office that its written opinions are typically prepared by a deputy county attorney and approved by the county attorney. These opinions are given to management employees privately and to county boards and commissions in executive sessions at their meetings. Citizens are informed that this blanket of secrecy occurs so that potential claimants against the county do not learn of the advice and strategies of county offices and agencies.
A couple of years ago the question arose as to the need for this universal secrecy being afforded to advice from the County Attorney’s Office. It was pointed out that elsewhere except in litigation or claims contexts legal advice from government attorneys was made publicly available. The council considered the matter at one or two of its meetings, but the iron will of the county attorney prevailed and there remains no regular public access to county attorney opinions.
In recent years several county attorney opinions have escaped into the public domain. One attempted to formulate an interpretation of the Ethics Code contained in the charter and was routinely dismissed by the Board of Ethics. Another expressed a view to the Charter Commission that a county manager system would be unlawful without any real logical support and contrary to an opinion offered by the State Attorney General. These episodes also did not enhance public regard for the quality of opinions issued by the county attorney.
Most opinions from the County Attorney’s Office never become known to the public as well as having their content remaining undisclosed. For several years leading up to the 2008 general election the Charter provided in Section 3.07 that with the exception of consultation with the county attorney on claims, council meetings would be open to the public. When the council persisted in having executive sessions on other matters council members assured citizens that they had an opinion from the county attorney justifying such sessions. Though disclosure was often promised the opinion, if one existed, was never made publicly available.
This year the council has been considering Bill 2410 which would return to the Planning Commission the authority which had been removed from it in a 2008 Charter Amendment to process approvals for Transient Accommodation Units. The amendment required in such case that the growth rate for such TAUs would be limited to 1.5 percent per annum. The bill nominally adhered to the 1.5 percent criteria, but exempted from its coverage over 4,600 potential units that the council found to be in “Existing Projects”. The justification for the exemptions provided in the bill and the compliance of the bill with the charter terms would each need to rely on legal opinions. Despite requests for their release, and the importance of the conclusions they express, the council, which has the power to waive any privilege in legal advice given, adopted the bill and defiantly continued to shroud such opinions from public view.
The county attorney is appointed by the mayor and serves at his pleasure. In the performance of this service he is prone to remind his listeners of his charter designation as the chief legal adviser and representative of all county agencies including the council, and all employees and he has been known to bludgeon his audience with the information that they must follow his advice or accept personal responsibility if they do not. A monopoly of power is seldom beneficial in any society as it usually leads to abuses. Our county attorney should recognize that interrupting and bullying citizens at council and other meetings and failing to inform the public of legal analysis affecting the conduct of our legal affairs is counterproductive and will not further either the interests of justice or the purposes of his sponsor.
The county government exists to serve the interests of its citizens. There are times when the County Attorney’s Office must protect county officials against the claims of citizens and others, but in the formulation of public policy disclosure of legal advice received is imperative.
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.