On scenarios after a councilmember is arrested

Like almost everyone on Kauai, I was shocked when I saw the news pertaining to Councilmember Arthur Brun’s Tuesday arrest.

My email, text messages and FaceBook accounts lit up and stayed lit up late into the night with people basically asking all the same questions: “What happens next?” and “Will Councilmember Brun be removed from office, and if so, when?” and “If he is removed or resigns, what is the process to replace him?”

My first reaction was ‘whoa,’ hold on a moment. Councilmember Brun deserves his day in court. While the news that is rolling out does indeed look very bad, there may be another side to the story. Or not.

In any case, it behooves all to take a deep breath and let the police and the prosecutor do their work, and let Councilmember Brun tell his side of the story.

We need to hear his side of the story and remember he is innocent until proven guilty. However, if the police report is accurate, what occurred is damning and totally unacceptable conduct for any public official, elected or otherwise.

Given the severity of what was described in the official county announcement, and given the additional information coming out in other statewide media — it seems the County Council now finds itself in an untenable situation.

A sticky wicket, as they say, in the complex vernacular of politics.

Councilmember Brun will need to naturally focus on his own personal situation, his health, and his family and friends. The council needs to focus on the council and as a whole needs to determine what action they will take in response to the developing situation.

They may act and speak as individuals, and or offer a formal council response.

Every statement, whether formal or informal, should and will be prefaced by, “If Councilmember Brun did what they said he did…then (fill in the blank)”.

So I will continue under this premise. If the councilmember did what the police are saying he did, the following, per the Kauai Charter, are the legal options available to the council and to the people of Kauai.

Disclaimer: I am not a lawyer.

It is my understanding that Councilmember Brun may be charged with a crime or crimes and then either be released on bail or held in jail if he cannot afford bail — pending a court appearance. Then, it is up to the lawyers, and of course the courts. The councilmember will have his defense lawyer and the county will be represented by Prosecutor Justin Kollar. Typically, the prosecutor will prosecute, and or strike a “plea deal” to lesser charges (avoiding the time, expense and uncertainty of a trial).

It is important to remember — the incidents reported are allegations of a crime/crimes and there has been no legal finding of guilt of any crime at this point.

Bottom line:

The Kauai County Charter does not include a provision allowing for the prompt or easy removal of a councilmember except for felony conviction or if the councilmember does not reside in the county.

There are provisions to remove any elected official via impeachment, but that process requires a petition signed by 5% of voters registered in the last election (which means approximately 2,250 VERIFIED signatures) AND it requires petitioners to pay their own legal fees.

There are also provisions allowing “recall,” but this only applies to the mayor and the prosecutor.

In short, the removal of a councilmember is not easy, nor straightforward.

But this is not to say the Kauai County Council is powerless in this situation.

The council could propose and pass a resolution demanding/requesting that a councilmember resign, and listing the reasons and justification. This would involve a public hearing and a public vote, and all the unpleasant political implications that might entail.

Likewise, the ethics commission could possibly take similar action in response to a public ethics complaint.

One would think the pressure put upon any councilmember under these circumstances would be unbearable and thus they would voluntarily resign, and focus on the other issues and challenges facing them.

However, should the councilmember decide not to resign, the only option left would be for a citizen’s petition and impeachment process. This would involve private citizens collecting signatures and hiring their own lawyers to follow the impeachment procedures outlined in the County Charter.

The second half of the question pertains to replacing a councilmember when they resign or are removed from office. The bottom line is a Kauai resident who can get four votes from the remaining six councilmembers will fill the slot and be a councilmember until the existing term ends.

The process that has occurred in the past involves the council announcing the vacancy, accepting applications, and conducting interviews. This is mostly done in private executive sessions. Then at some point a majority of councilmembers (4) during the executive session discussions will come to a general agreement on a certain individual. Next, a public hearing will be scheduled, public testimony will be given, and a public vote taken.

Whether or not “the next-highest vote-getter in the most recent election” is an obligatory choice is not a rule, nor required. If the vacancy occurs immediately following an election, this logic may make sense, but otherwise the county would seem to be best served by opening up the process to the public at large.

Given this incoming councilmember may be the “swing vote” between what some perceive to be a council divided 3/3, this process, should it occur, will be an interesting one. In theory, the addition of a new councilmember could create a new faction of four and thus restructure the council leadership structure.

But that is only in theory. Knowing full well that this is a possibility, the present Chair Arryl Kaneshiro and Vice Chair Ross Kagawa will of course only support a new councilmember who they know will support them remaining in their positions. And I am absolutely sure they do not have to look too far to get that additional vote to protect their interests.

But me thinks we are getting ahead of ourselves here. In the days ahead, more facts will come out and the Kauai police and/or the prosecutor will take action, or perhaps not.

Until then, the members of the council must decide their public position on this political earthquake of an incident.

You can be sure, the public will be waiting for the council to act. After all, that is what we elected them to do.

•••

Gary Hooser formerly served in the state Senate, where he was majority leader. He also served for eight years on the Kauai County Council and was former director of the state Office of Environmental Quality Control. He serves presently in a volunteer capacity as board president of the Hawaii Alliance for Progressive Action (HAPA) and is executive director of the Pono Hawaii Initiative.

•••

Here’s what the charter says

Relevant or mostly relevant and thus interesting sections of the charter are here:

Section 3.04: “B. Any councilmember who removes said councilmember’s residence from the county or is convicted of a felony shall immediately forfeit the office.”

Section 3.07 “D. The council may, upon an affirmative vote of at least two-thirds of its entire membership, suspend without pay for not more than one month any member for disorderly or contemptuous behavior in its presence.” Note: This seems to apply to actions that occur only during a council meeting.

Section 23.13. Impeachment of Officers. “Any officer appointed or elected may be impeached for malfeasance, misfeasance, or nonfeasance in office. Such impeachment proceeding shall be commenced in the Fifth Circuit Court, State of Hawai‘i. The charge or charges shall be set forth in writing in a verified petition for impeachment signed by not less than 5 percent of the voters registered in the last general election, except as to charges filed by the ethics board. If the court sustains the charge or charges, such officer shall be deemed removed from office. The petitioners seeking the impeachment shall bear their own attorneys’ fees and other costs of such proceedings, except proceedings initiated by the ethics board, the cost of which shall be paid by the county.”

Section 27.01. Recall Procedure. “Any elected officer serving a four-year term as provided for in this charter may be removed from office by the voters of the county. The procedure to effect such removal shall be in accordance with this article. A petition demanding that the question of removing such official be submitted to the voters shall be filed with the county clerk. Such petitions shall be signed by currently registered voters numbering not less than 20 percent of the voters registered in the last general election.” (amended 1984)

Charter Section 3.05. Vacancy in Office. “In the event a vacancy occurs in the council, the remaining members of the council shall appoint a successor with the required qualifications to fill the vacancy for the unexpired term. If the council is unable to fill a vacancy within thirty days after its occurrence, the mayor shall make the appointment to such vacancy.”

7 Comments
  1. Debra Kekaualua October 31, 2019 8:50 am Reply

    Shock, not! Obviously hoose doesnt watch when this voted in regular no-show in council chambers. We know a lot more to these kinds of soap box activities, similar to the recent P.A. in Hono, and the stolen mailbox. There is in our kauai history where a mayor was incarcerated for tax issues, the first year he served. The entire shebang is about to be Exposed and it includes lots and lots of very sinister peeps going to ring hells bells for eternity!


  2. curious dog October 31, 2019 10:46 am Reply

    He willfully ran from KI PD & endangered their lives in the process. Public Safety comes 1st & our elected officials must remove him NOW. This is not negotiable.

    He will have his day in court but in the meantime, what’s best for ALL OF KAUAI, residents & tourists alike, is to remove him from office today.


    1. Debra Kekaualua October 31, 2019 12:37 pm Reply

      Good call curious dog! These COK peeps have been put “on notice” several times at several council meetings, but the most we receive i return is “we want to work with you”, on our terms, not Lahui. Im curious how this will play forward, cuz we know, the shadow knows, and this activity is imploding from DC to Kaua’i.


  3. Rev Dr. Malama October 31, 2019 1:58 pm Reply

    Nope, I’m not shocked! I am disappointed that the Convicted felon has gotten away with being elected more than once when the County Charter and public records clearly disallow felons to sit in office that is essentially a branch of law ENFORCEMENT!
    But as Debra continues to point out, the illegal insurgency doesn’t seem to pay attention to any rules of law…..
    It’s time for the Hawai’ian Kingdom to be reinstated. Here’s facts @
    HAWAIIANKINGDOM.ORG


  4. Robert Gordon November 2, 2019 3:34 am Reply

    Every individual is entitled to a fair representation and jury of his peers without bias.. That said, arrests of government officials from city council to Senator happen all too frequently. The one thing to remember.. those without some “influential friends” or money do have a leg up on most common folk. Just give this gentleman time to present his case in court. Thank You.


  5. Ben November 2, 2019 10:18 am Reply

    Interesting how people aren’t going nuts over this? If this guy was haole, everyone would be having a field day and attacking him!


  6. charlie chimknee November 8, 2019 11:00 pm Reply

    This is America, Presumed innocent…! ! ! Witnesses are often liars and idiots.

    This is America…lots of cops (Constables of Police) are liars, the public is often swayed by stupid “herd mentality”, cops tamper with evidence, they overcharge suspects to get a conviction forcing the cops’ victim, the suspect, to COP (Change of Plea), to avoid false imprisonment, and acquiesce to a lesser phony charge and pay a cheap fine. Cops not punished for lying. Cops nation wide steal $$$ and drugs in drug busts.

    It is highly unlikely our councilmember tried to run over the police person, or even hit the constable, much less with any intent…Police “overcharge”…! ! !

    Let’s hear from our councilman first even if it takes time past his current term, then re-elect or not.

    Look at the obvious “baloney” being thrown at our own President. As citizens we should be DEMANDING why Biden’s drug rehab son got a $50,000 a month job in the Ukraine 1/2 way around the world while traveling in Air Force 2 with our at the time Vice President of the USA. Quid pro quo….? Sounds like a payoff…

    Knowing why Kid Biden got $50K a month Board of Directors job out of the Blue…very suspicious as a bribe to Vice President Biden.

    And why Kid Biden got another Board Member job in China…out of the Blue, while traveling with his father who at the time was Vice President of the USA in our plane Air Force 2…and…

    Why Kid Biden got $1,500,000,000.00 ($1.5 Billion dollars (with a B) with no reason given for the Vice President’s son getting $1.5 Billion…was it really for Vice President Biden…as a payoff…a quid pro quo…all the while a $500 Billion / $35 Billoon Trade Deficit was favoring China…even though Presumed innocent, this payola should not have been swept under the carpet, Thank God our current President brought these now apparent payoffs to the taxpayers knowledge. Was the $1.5 Billion a bribe to keep rip off US / China bad trade deficit for America, to keep the Trade Deficit going onward…the update is that Trump is reversing the Trade Deficit which is denying China and many American corporations hundreds of billions of dollars…versus a $1.5 Billion payoff to the Biden’s.

    We as citizens demand to know Where’s the $1.5 Billion dollars? ..NO ONE DENIES Kid Biden got the money and he and Vice President Biden aren’t saying they did NOT get the money, and suspiciously the 2 of them are not saying where the $$$$$$ 1.5 Billion went or is hidden…Swiss Bank Account?…what’s this astronomical sum…payola…? but who got paid off, was it the Vice President and also the President of the USA, at that time Biden and Obama veep and pres…Where’s the $$$$$$ and who got it…Where’s their tax returns. Trumps are with the IRS.

    Our President is trying to find out about these 2 fake Kid Biden jobs at $50,000.00 a month for one and another a pay off of $1.5 Billion, and that enquiry by our President Trump, is not Quid Pro Quo, (Latin: This for That)…that is our President trying to get at the truth and see about this $$$ Fiasco as it appears to be Biden collusion with and bribery from foreign governments to continue the $500 Billon to $35 Billion Trade Deficit in China’s favor, and this sounds like a Biden bribery and a quid pro quo for Future trade deficit Favors…and that would be Biden and maybe Obama as traitors against our country…it is the duty of our MAGA President to protect us tax payers and find out at any cost why this corruption occurred…this is not an impeachable offense…it’s the current President’s job and sworn duty to protect us taxpayers…he is trying to get to the bottom of this. It sounds like a China / Biden Quid Pro Quo…bribery to maintain a trade deficit rip off against the USA…US Americans…! ! !

    So do not make haste to hang our councilman. Truth can take time.

    We know of an ordinary citizen falsely accused of forgery and theft waiting 3 years for the trial when the “Perry Mason” lawyer got one of the accusers to admit it was a FAKE criminal charge against this fellow citizen used in order to hide a $35,000 theft by the accuser and his “friends”. The accusers escaped criminal charges on the $35,000, and making false charges against the citizen.

    Don’t follow the herd stupidity, right or wrong, let truth prevail it can take years but innocent citizens deserve this legal protection. This is AMERICA…! ! !


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