LIHU‘E — It has been almost a year since the police chief has been back at work, after being suspended for nearly six weeks by the mayor. But Mayor Bernard Carvalho Jr.’s action of toppling the authority of the Kaua‘i
LIHU‘E — It has been almost a year since the police chief has been back at work, after being suspended for nearly six weeks by the mayor. But Mayor Bernard Carvalho Jr.’s action of toppling the authority of the Kaua‘i Police Commission is still costing taxpayers.
The Kaua‘i County Council on Wednesday morning emerged from an executive session that lasted more than two hours to unanimously approve up to $20,000 in continued special counsel to Carvalho in a civil case against the commission.
So far, the money approved by the council in the matter adds up to $75,000. And according to at least one council member, the outcome of the appeal could push the case further to the Hawai‘i Supreme Court, which could amount to additional expenses.
The money will go toward representing Carvalho in an appeal that the commission filed in response to an earlier 5th Circuit Court ruling that the mayor has authority to discipline or suspend the police chief.
In the earlier case, the council had approved up to $55,000 in private attorney fees for both parties combined. However, the commission’s appeal may cost less to taxpayers this time around, since the commission’s attorney is now working pro bono (free of charge for the public good), according to commentary from council members.
County Attorney Al Castillo said that because the Office of the County Attorney represents the administration and the several boards and commissions, it would be a conflict if his office represents the mayor, thus the need for special counsel.
Commission vs. Carvalho
On Feb. 1, 2012, Carvalho suspended Kaua‘i Police Department Chief Darryl Perry for seven days, and after that he put Perry on administrative leave.
The commission then unanimously voted to put Perry back on his post by Feb. 22. But Carvalho refused to reinstate Perry, and said the chief was still on administrative leave. It wasn’t until March 12 that Carvalho shook hands with Perry and officially reinstated him.
The Kaua‘i County Charter states that the mayor has direct supervision over all departments, “except as otherwise provided.”
The charter also states the police chief “shall be appointed by the Police Commission,” and may be removed by the commission only after being given a written statement of the charges against him and a hearing before the commission.
Castillo’s opinion at the time was that the charter does give the mayor the power to suspend the police chief.
“The bottom line is, I am the chief executive for the County of Kaua‘i, and I am ultimately responsible for the day-to-day operations of all administrative county departments and divisions,” Carvalho said on Feb. 2, 2012.
The commission did not agree with Carvalho, and eventually took the challenge to the 5th Circuit Court. Subsequently, the council incrementally approved up to $55,000 to be used in private attorney fees for both parties combined.
On Oct. 30, Chief Judge Randal Valenciano ruled the mayor is the CEO of the county, and as such has the authority over all departments, unless the charter provides language in the alternative.
Then-Commission Chair Ernest Kanekoa Jr. said he was “obviously” disappointed with the court’s decision.
A month later, on Nov. 30, the commission by a 5-2 vote decided to appeal Valenciano’s ruling. In response to the commission’s decision, it was Carvalho’s turn to say he was “extremely disappointed.”
Appealed decision
Councilman Tim Bynum said this is at least the third mayor that has authority-related conflicts with the commission.
Bynum’s personal belief was that the charter doesn’t have a “very clear message” and could be interpreted either way, and that he was under the impression that Valenciano’s ruling would end this latest debate.
When the commission voted to appeal Valenciano’s ruling back in November, Carvalho said he had spoken with commissioners prior to the ruling, when the matter was first raised, and they said they would stand by the 5th Circuit Court decision.
“It’s disturbing to me that I can no longer depend on the word of some of the commissioners,” Carvalho said in November. “An appeal will add cost, which the taxpayers of Kaua‘i will ultimately pay, to this already costly exercise.”
Councilman Mel Rapozo said many decisions are overturned in the Intermediate Court of Appeals.
“Imagine if the 5th Circuit Court was the end,” Rapozo said.
The issue affects all commissions in all counties, he said.
Council Chair Jay Furfaro also said it would affect all counties, and that’s why it’s important to “get it right.”
A clear law, he said, is important to the democratic process.
“I will support this money as well,” he said.
This article should state Mayor Bernard Carvalho Jr. put Police Chief Darryl Perry on administrative leave. A previous version of this article stated that Perry was put on administrative leave without pay.
