Tuesday, September 15, 2009


DOGGIE DADA: Much has been written in the past two days about the “new” county attorney’s opinion regarding the county charter’s section 20.02(d) that prohibits any “officer of employee of the county (from) appear(ing) in behalf of private interests before any county board, commission or agency.”.

Two articles in the local paper (one linking to a pdf copy of the opinion) and an editorial laid out many of the absurdities of trying to say that, because reading the law in one somewhat absurd interpretation could lead to absurd results- like preventing someone from getting a water meter or a driver’s license- the whole law should not be enforced.

Then there’s the letter to the editor from Horace Stoessel who analyzes the opinion further and delineates the problems with the opinion. And of course blogger and attorney Charley Foster also got straight to the point once again.

We won’t rehash what they said. But though each is spot on as to what they do present, each fails to look at what the opinion, penned by Deputy County Attorney Mauna Kea Trask, actually says, especially regarding what if anything is new about it as compared to one penned over a year ago.

Of course as the newspaper article points out the opinion is still “fatally flawed” in trying to allow the county ordinance to be read “with” the charter even though the ordinance, which conflicts with the charter, must adhere to the charter not override it. In addition just because the ordinance covers some situations of conflict-of-interest doesn’t mean it covers all of them, another apparent contention.

We say apparent because the opinion goes into great detail about what the ordinance says but then abruptly ends without attempting to show it’s relationship to the charter or the conclusion.

In fact, as Stoessel writes, the ordinance never mentioned 20.02 much less provision "d" and rather only deals with 20.01.

Trask is apparently either an incredibly bad attorney or is disingenuously trying to support a forgone conclusion by presenting a wordy opinion that says nothing directly related to the matter at hand, selectively picking and choosing citations to twist the law to it.

The fatal flaw is contained early in the opinion when Trask cites HRS §1-16 which states that "laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called in aid to explain what is doubtful in another."

The problem with that is that under other provisions he conveniently omits, it applies under the supremacy doctrine- flowing from federal to state to local and giving constitutional documents supremacy over legislation at each level- which means that laws of the same jurisdictional level must be read together but when one law trumps another the lower law is null and void. In other words charter provisions must be read equally together but when comparing a charter provision to a county ordinance the charter always rules if they conflict.

But the one “new” citation when compared to the prior opinion is an actual HRS (state law) provision that deals with the oft cited circumstance of alleged “absurd results” of applying a law in a strict construction manner.

Trask writes that:

HRS §1-15 states, "Where the words of a law are ambiguous:
(1) The meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.
(2) The reason and spirit of the law, and the cause which induced the legislature to enact it, may be considered to discover its true meaning.
(3) Every construction which leads to an absurdity shall be rejected."

The key is number three. Even though he tries to define “public interest” to be the opposite of private interest rather than personal interest- a matter we went into in depth in previous posts- even under his interpretation the law simply says that any time any constriction of a law yields an absurd result that specific result of that specific application is to be discarded.

So if the law were to prohibit one from getting a driver’s license the law simply does not apply in that specific circumstance.

This finally undermines the arguments of some on the board- specifically Mark Hubbard, Lei Fuller and to some extent Judy Lenthall- that because there might be absurd results in some contrived situations the whole law should be discarded including the blatant potential conflicts-of-interest violations that the law was designed to eliminate.

That should at least, if nothing else, end the raising of the red herring of the “absurd results”- the one Hubbard has clung to saying that because he could be denied a building permit he should be allowed to violate the law by appearing before county entities on behalf of a private interest.

While that solves one big impediment to enforcement of the charter it does leave one big question. Even though normal rational people would be able to tell these absurd results from those that are not absurd the three BOE members listed above have all been in violation of the real not-so-absurd provisions and so have been reluctant to essentially rule against themselves by fairly judging the applicability.

One of the contentions has been that non-profit 501(c)3 organizations should not be included because they “do good in the community”, something we have discussed and shown to be bogus in many situations at least according to those who oppose the goals of certain non-profits. For instance the Chamber of Commerce and the Sierra Club might not see the other one as doing good or benefiting the community.

But attorney-blogger Foster points out another reason by saying that non-profits often appear- as in Lenthall’s case as the Executive Director of the Kaua`i Food Bank- to ask for funds. He says that because there are limited funds for non-profits in government coffers, the “favor” of one non-profit over another is exactly what the charter provision envisions and is one of the main reasons it is included.

At this point unless the three obstructionist BOE members drop their silly self-interested positions and stop blocking enforcement, they are themselves guilty of another provision in the same charter section that prohibits using their positions to gain favor or grant special privileges for themselves or others.

The only problem there is, as we stated before, the BOE is the entity that is designated to hear any complaint like that. And presumably they would be the ones to determine what is and isn’t an absurd result of application.

As we said before as long as they, as a quasi judicial county entity, keep obstructing justice the courts may be the only resort for the community.

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