Innocent until proven guilty

In the hue and cry over Councilman Arthur Brun’s difficulties, there have been voices insisting he be removed from office, even before he is convicted of anything.

The Kaua‘i County Charter, which is the governing document for the structure of county government, provides for the removal of elected public officials.

It says that conviction of a felony results in immediate forfeiture of office. Just being charged with crimes is not sufficient, and in my view it should not be. There needs to be a court determination that you have actually done what you are charged with.

How do other legislative bodies deal with this? Letʻs look at the governing documents.

The Congress of the United States has the authority under the U.S. Constitution to expel members of either house for any reason, by a two-thirds vote of that house (Article 1, Section 5.) While there is no guidance on reasons for removal, the Congressional Research Service says it has generally been for disloyalty to the nation, or for “conviction of a criminal statutory offense which involved abuse of one’s official position.”

The Hawai‘i State Legislature (Article III, Section 12) provides the Legislature with similar expulsion power, requiring a two-thirds vote. The state Constitution cites as reasons for punishing members, “misconduct, disorderly behavior or neglect of duty of any member.”

The Kaua‘i County Charter does not give the council itself removal power. It says councilmembers forfeit their office if they move out of the county or if they are convicted of a felony.

In some ways, the Kaua‘i Charter presents a tougher standard than either the state or federal governments. No vote of the council is required for removal on conviction of a felony. A councilmember is automatically removed on felony conviction. Any felony conviction.

But before conviction? The suggestion that a sitting government officials should be removed before conviction is problematic. The presumption of innocence and the right to defend oneself at trial are fundamental to our form of government.

The council has the authority to “judge the qualifications of its members,” but that charter language is vague about what it can do about a councilman whose qualifications are determined inadequate. The council certainly has the authority to strip a member of any leadership position and committee assignments, but it does not appear to have the power to remove councilmembers from the seats to which the voters have elected them.

The language of the charter could certainly be changed, but any charter amendment, whether initiated by petition, by the County Council or by the Charter Review Commission, but still would need approval by the voters in the November General Election — the same election that will seat a new County Council.

•••

Jan TenBruggencate is a Lihu‘e resident. This is his personal view.

14 Comments
  1. Jake March 6, 2020 2:52 am Reply

    Ah, did not this fine “Born and Raised” product of Kauai have a previous felony conviction, before he was elected to the County Council by his biased voters???


  2. ruthann jones March 6, 2020 5:17 am Reply

    was this diatribe written by his former customer?


  3. WestsideResident March 6, 2020 6:11 am Reply

    _Absolutely innocent until proven guilty!
    Are we Russians? Charges mean not a thing, judge and jury!


  4. Patrick Flores March 6, 2020 7:05 am Reply

    This commentary by Jan Ten Bruggencate, speaks calm based on facts of law. The right outcome based on due process will take care of this matter.

    Patrick H Flores, Wailua Houselots


  5. Ginger Doll March 6, 2020 7:40 am Reply

    Arthur Brun was elected to serve the his constituents.
    He is charged with a crime.
    As a citizen, he has a right to remain silent.
    As a public official he owes us an explanation. Or he should resign.


  6. CSense March 6, 2020 7:41 am Reply

    Removal from office is not thrown in the slammer. Innocent until proven guilty doesn’t apply there. Holding office requires one command the respect needed to maintain said office.


  7. pointfisha March 6, 2020 8:50 am Reply

    Good point, and well said.

    Whatever our opinions may be, until there is a legitimate conviction we must remember that we form our views on hearsay that we get second-hand through media or word of mouth.

    Due process of law might be costly and cumbersome, but it protects everyone’s jobs and offices against the tides and violence of mob sentiment.


  8. Steve Martin March 6, 2020 8:58 am Reply

    Yes that is your personal opinion. If you were right which you are not and the case against him hasn’t collected the evidence that they have , then we would not be told what we have been told about the charges that have been made.I’ll gamble with the facts that he’s guilty as charged. Now it’s time to change the charter so this never takes place again. Now his lawyers job will be to try and get him 10 to 15 years in a FEDERAL PENITENTIARY instead of 20 years to life. I don’t feel sorry for people like this, he used his position to try and cover up his actions and if he did’nt do what he was charged with, then he wouldn’t have been arrested and told there will not be a chance for bail. Now if that isn’t enough to tell you that he is guilty nothing is.


  9. kaaona kipuka March 6, 2020 11:48 am Reply

    Laughable at best!!! All Mr. Brun is doing is prolonging the inevitable. He should just use whatever ounce of honor and/or integrity he has left and step down. I believe the voters of this county deserve that… KEEP KAUA’I IGNORANT 2020!!!


  10. LMat March 6, 2020 12:10 pm Reply

    His “difficulties”…?
    His wife and kids have difficulties right now… Trying to squelch the public’s outrage by using patronizing euphemisms is pretty pathetic Jan.
    Also, totally disagree with your entire pov.
    You state: “The state Constitution cites as reasons for punishing members, “misconduct, disorderly behavior or neglect of duty of any member.” As proven by a felony conviction…? Doesn’t sound like it. I think council members SHOULD have the power to vote for removal of a sitting council member, based on the exact offenses stated in the above quote. If we ONLY had the one incident of him running from the cops and then hitting a cop, that alone would be enough for removal.
    If he continues to remain on the council, he continues to collect a paycheck. Why? It’s obviously impossible for him to fulfill his duties sitting in a federal prison. He absolutely knows he should resign. He knows the public wants him to resign. He knows he’s making his family shame and making Kauai shame. And yet, he doesn’t resign. Why? I doubt it’s because he’s innocent. And if anybody thinks the county will somehow be able to collect whatever money he owes back…. good luck.
    There absolutely need to be a charter amendment. The remaining council members NEED to draft an amendment in time for voting this November. What else have they done to address this mess? Their prolonged silence and inaction, or, worse, their (and your) ridiculous attempt at stifling the justifiable outrage and anger at such deplorable actions from someone who should have been trusted, perpetuates and exacerbates the shame and disgrace Kauai county finds herself in.


  11. truth be known March 6, 2020 1:10 pm Reply

    Jan, thank you for your insightful article. Would it be possible to add an amendment to the County Charter whereby any council member arrested for a felony violation be suspended from Council activities until resolved? Since it is election year, this would be the ideal time to present such a measure for a vote. As you are apparently aware of the legal proceedings of our County Government, what are your suggestions?


  12. Citizen Cane March 6, 2020 2:14 pm Reply

    Maybe so, Mr TenBruggencate, but there have been instances where the trial is not much more than a pro forma reckoning for the accused— or cannot serve to erase documented and witnessed behaviors, particularly in cases involving public figures. Ill. Gov. Rod Blagojevich comes to mind, where among other things damning tapes were made public before trial—as have been transcripts of some of Mr Brun’s tapes. If we knew nothing else but that he fled the scene of an arrest after striking a cop with his car and then tossed out a bag of meth while being chased, coupled with a prior history of drug offense, community leaders such as the mayor and fellow council members should be calling for changes to the charter AND for Mr Brun’s resignation instead of citing rules that keep him on the county payroll. He should at very least be suspended without pay pending adjudication. Why not expend some energies to those ends instead of flogging a legal saw that wouldn’t amount to a hill of beans for an ordinary Joe who got caught running a drug ring inside of his place of employment? As I recall one of Brun’s campaign promises was to spearhead the setting-up of drug rehab centers for Kauai’s youth. Sounds like a good job for him once he’s done serving his sentence.


  13. Rev Dr Malama March 7, 2020 1:53 am Reply

    Isn’t Brun already a convicted felon from previous criminal justice determination? If so, why was he even elected?
    Missing the point of also no shows of many Council meetings…. these people take oaths to show up and do their job, not trapse off to Russia or out on a drug binge!
    Jan, your argument is an insult to the good and descent people of Kauai.


  14. drsurf March 9, 2020 8:24 am Reply

    How many meetings has/will this man miss?
    How many has he not be fully present for?


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