Bill 2491 – still intriguing

Since its introduction in the Kauai County Council in June, Bill 2491 to regulate the use of pesticides and testing of genetically modified organisms has been a focal point for many Kauai residents. It has received more public attention than any other recent piece of legislation.

On Oct. 16, after making numerous amendments which reduced its impact, including eliminating the moratorium on GMOs, the bill was adopted by the council by a 6 to 1 vote. One of the favorable votes was by Councilwoman Nadine Nakamura who on Nov. 1 became the county’s managing director.

The mayor, who before passage of the bill had sought a deferral of its enactment to permit further study, vetoed the bill on Oct. 31. His veto message thoughtfully stated that while he supported the intent of the bill, the council lacked authority to enact most of its provisions and that he did not believe the bill was legally valid.

He accompanied the veto message with a 66-page “opinion” document from the Office of the County Attorney. The document offered no unqualified opinion as to the validity of the measure, and found no judicial precedent directly supporting its views. Instead, it stated a “likelihood” of invalidity and an enumeration of issues on which legal “challenge” might occur.

The public release of the “opinion” was castigated by several citizens who argued  it would provide comfort and assistance to those who might seek overturn of the bill in litigation. Their concern is frivolous. Any reasonably competent attorney for an opponent of the bill could readily identify the issues and authority stated in the “opinion.”

While the advice given by all lawyers to their clients relating to a contested proceeding that is pending or threatened should remain confidential, advice by government lawyers as to the state of the law on a particular subject should be publicly disclosed. It was entirely fitting and proper that the opinion given as to the legality of Bill 2491 should be known by our citizens. Too many of the opinions of our county attorney’s office remain secret.

A feature of the function of the Office of the County Attorney, however, should be noted. He is appointed by the mayor and reports to the mayor. While perhaps it should be otherwise, his views generally support the wishes of the mayor.

When there is a conflict between the mayor and another government agency, such as the council, the potential for opinion-slanting exists. An intriguing sideline is that the county attorney has stated that county agencies must accept the attorney’s opinion or accept the consequence that the county will not defend them against legal actions arising from their failure to conform to the opinion. The council could engage special counsel for itself on major matters (at taxpayer expense), but typically it does not. The mayor will face a dilemma as to whether to support implementation of the new law or the position of the county attorney.

In its haste to proceed to please a host of active proponents, the council disregarded one protective step it could have taken. The County Charter provides in Section 4.02 D that every ordinance shall embrace but one subject. Pesticides and GMOs are clearly two different subjects. The council could have readily divided Bill 2491 into two separate bills and avoided the likely claim for violation of the charter for its present form.

With the departure from the council of Ms. Nakamura, the number of council members serving was reduced to six. Five council votes are required to override a mayoral veto. Although the initial response of council members favoring the bill was that it would be inappropriate to ask a person who had not participated in the extended consideration of the content of the bill to be a deciding vote for its enactment, when it became apparent that only four favorable votes could be expected from persons serving on the council, raw politics entered and the council chose to appoint a replacement for Ms. Nakamura before voting on the override. In doing so they disregarded the usual precedent of selecting the candidate who had the eighth-most votes among those in the last election (the well-qualified Mr. KipuKai Kualii) and instead appointed a handpicked safe nominee who could be expected to add the necessary one vote to override the veto. Without intending any disrespect for the person chosen, the maneuvering for a one-time objective was shameful.

The predictable happened. On Nov. 16 the mayor’s veto was overridden by a 5 to 2 vote. The concept of the new law may well be meritorious, but the crafting of its terms by the council was imperfect. We will now wait to see if the anticipated initiation of litigation challenging the new law will occur.

Walter Lewis writes a regular column for The Garden Island.

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