Legal dispute presents ethical conflicts for county

The Kauai County Charter provides for the appointment and the removal of the police chief by the Police Commission. The charter is silent as to disciplinary action against the police chief. Several years ago, the mayor, displeased by the chief’s failure to act as the mayor wished, sought his suspension.

The commission demurred, saying that only it had the power to discipline the chief. Litigation was commenced to resolve this dispute. Recently after nearly $100,000 of legal expenses which are borne by our taxpayers, the Hawaii Intermediate Court of Appeals upheld the position of the commission.

The decision conforms to the nearly universal practice in governmental bodies and in business organizations that disciplinary proceedings are the duty of the employee’s immediate supervisor. The decision also reflects the reasonable inference that as the commission has the power to remove the chief it should also have the lesser power to discipline him.

But the mayor wants to appeal the Intermediate Court opinion to the Hawaii Supreme Court and the parties are asking the council for $45,000 of further funding to prolong the dispute. Of the $45,000 amount, the mayor wants two-thirds. At its July 20 meeting, the council split equally as to allowance of the requested further funding and the matter was deferred.

The situation portrays both the mayor and the council at their worst. The mayor, whose duties include the enforcement of applicable laws, has been tolerant of known illegalities by the transfer station employees which under his authority he attempted to cover up for the fines assessed.

Isn’t it anomalous that a person who tolerates lawlessness should have extended powers over the chief whose charter-stated powers include the enforcement and prevention of violations of laws?

The aspiration to extend mayoral powers in the circumstances seems greedy and egotistical. The council is apparently mired in an election year atrophy, unwilling or unable to act to resolve matters that should be decided.

The illustrations of this paralysis include the abrupt termination of consideration of the proposal to adopt a council-manager system of government for the county and the failure to allow the county’s voters to have the opportunity to decide whether such a change would be beneficial.

Also, the council after duly noting the administration’s illegality and cover up in regard to the transfer station deficiencies, has failed to take the investigative and corrective action to prevent future irregularities. And then the council refused to allow county voters to consider a proposal to fund and perform badly needed road work.

The funding request to allow the dispute between the mayor and the Police Commission provides the council with another opportunity to kick the can down the road and further burden our taxpayers.

A legal dispute between two county functions presents ethical conflicts which sharply limit the county attorney’s office and mostly preclude its use.

In my view, although the council would be abbreviating the litigation process it has to date supported, the Intermediate Court of Appeals decision is logical and eminently defensible and should be allowed to remain in effect. This can be accomplished by simply allowing the time to appeal expire.

The mayor, of course, has the right to appeal even if the council does not provide funding, but it would be unlikely that he would do so. Another point for consideration is that with the busy Supreme Court calendar it may not wish to hear the case and even if it does, the mayor could well be out of office when a decision is reached.

If we are going to continue to have a mayor-council form of government for our island, it is critical that both of these parties properly perform their functions and act respectfully and amicably toward one another.

Is it too much to hope that this will occur?

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Walter Lewis is a retired attorney who lives on Kauai and writes a regular column for The Garden Island.

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