Dominic Yagong
I talked with Council Chairman Dominic Yagong on the phone this afternoon, following a press conference he called that I was not able to attend.
Yagong detailed what council members are expected to discuss at Friday’s special meeting, including legislation to address the lack of consistency with the Hawaii County Code and the Hawaii County Charter regarding to the Public Access Open Space and Natural Resources Preservation Fund along with the need for council members to obtain special legal counsel regarding the budget.
As you know, the mayor has vetoed the Council’s version of the budget, Bill 29, Draft 4. To support his veto, the mayor released an opinion from Corporation Counsel, which suggests at least one of council members’ amendments to the budget was illegal.
Corporation Counsel specifically takes issue with the fact that council members amended Bill 29 to create a “Council Adjusted Expense Account” and “inserted a ‘negative appropriation’ of $5.8 million.” Also, Corporation Counsel maintains that council members reducing the annual Public Access, Open Space and Natural Resources Conservation Fund contribution by $1 million without accompanying legislation “renders the reduction invalid.”
Yagong emphasized that, on June 30, council members will have an important decision to make, whether or not to override the mayor’s veto. they are in need of some legal advice and they feel like Corporation Counsel, having already rendered an opinion on the side of the mayor, is not in the position to give it.
“The Council is naked,” Yagong said. “We do not have representation. We can’t go to Corporation Counsel.”
Our situation in Hawaii County is unique, being that we have a Corporation Counsel that serves both the administration and the County Council. It is what our County Charter dictates, and it would take a Charter amendment to change that.
When everything is said and done, this conflict between Corporation Counsel and council members highlights the need for a Charter amendment, Yagong acknowledged.
As he said, “if you have a dispute with your neighbor, you don’t go out and hire the same lawyer as your neighbor.”
But for now the focus is on the fact that council members need legal advice they cannot get from Corporation Counsel.
“There was never any inclination from the mayor, finance director and Corporation Counsel through the entire budgetary process that what we were doing in their minds was illegal,” Yagong said. “It’s amazing that they would wait until the last minute in the budgetary process.
“They knew we don’t have any legal representation,” he said. “They’ve really put our backs against the wall. We have no choice” but to seek outside legal counsel.
Yagong noted that amendments from council members were first introduced on May 18. “Not one time did we hear from the mayor or finance director or Corporation Counsel.”
Yagong maintains that it was wrong for the mayor and his administration to defer payment of the General Accounting Standards Board Statement No. 45, which, in layman’s terms, is the pre-payment for future health care obligations of retired County workers.
As you know, council members’ amendments to the budget were largely to redirect funds to make a partial GASB payment.
Yagong believes the mayor “failed to gain support for his budget” and for the delay of the GASB payment, which the mayor has described as being akin to pre-paying a mortgage and has noted that the City and County of Honolulu is also deferring it’s GASB payment this year.
“I believe if he were to have taken it to a public forum, he would have lost,” Yagong said. “By taking it to the legal venue, now we’re talking about litigation, and nobody wins. It’s government litigation against government.”
Yagong noted that mayor has said council members never asked whether or not their actions were illegal. “That’s such a ridiculous thing to say. Corporation Counsel is there to give an opinion, whether it is solicited or not.”
Yagong has served on the Council, in all, for 12 years. In his mind, council members have always been at a “disadvantage” having Corporation Counsel serving two masters. He has had the feeling before that Corporation Counsel is “biased” in favor of the administration, being that the mayor hires and fires Corporation Counsel.
In the 12 years Yagong has served on the Council he has seen “nothing this big” in terms of Corporation Counsel accusing the council member of committing an illegal act, having not warned them in the process.
“Maybe it’s good this is happening,” Yagong said, noting the public discussion and possibly the Charter amendment that will result.
June 20th, 2011 at 11:47 pm
If the council proposes an amendment to the charter, do they have to wait ten more years or can they do it by council vote?
June 21st, 2011 at 12:12 am
I believe they vote to place it on the ballot in the next election
June 21st, 2011 at 5:27 am
I am confused by the procedure. Does this mean Kenoi and/or Ashida consent to being sued by outside counsel? And where is the funding coming from? Are fees capped or or is this to be an open-ended contract?
Further. has council corraled the requisite six votes to sustain three readings of the proposed charter amendmnt?
June 21st, 2011 at 5:29 am
I am confused by the procedure. Does this mean Kenoi and/or Ashida consent to being sued by outside counsel? And where is the funding coming from? Are fees capped or or is this to be an open-ended contract?
Further, has council corraled the requisite six votes to sustain three readings of the proposed charter amendmnt?
June 21st, 2011 at 6:28 am
Why didn’t the Council have the sense to get a legal opinion of their unusual legislation before they adopted it? Maybe they did but didn’t like the answer. Now Yagong wants to go shopping for another lawyer and we get to pay for it? Sheesh.
June 21st, 2011 at 7:25 am
If we the people are to be represented by a legislator for a district would it be fair to say that person should have some knowledge of what is legal? Here we have poli-tricks at it’s best and we the people are sucking on the hind teat.
The Lack
June 21st, 2011 at 8:14 am
Ashida’s quoted in WHT this morning accusing the council (his clients) of “shopping around for an attorney who agrees with them.” Leaving aside the question of whether publicly disparaging the integrity of your clients is consistent with an attorney’s ethical obligations, it isn’t hard to see why the council might feel that they’re unrepresented by counsel.
June 21st, 2011 at 8:17 am
Dom says: “if you have a dispute with your neighbor, you don’t go out and hire the same lawyer as your neighbor.”
______________________________________________________
This would be considered “mediation” and is a much less expensive way to resolve conflicts. Some of our council members would serve us better by waiting awhile before running for Mayor.
June 21st, 2011 at 9:15 am
What really frosts me is that no one is talking about the betrayal of the 2 percent fund. A vote to override the mayor’s veto is a vote to REDUCE the 2 percent fund by one million dollars. How wrong is that? Debbie Hecht has posted on her Web site the signed pledges by Angle Pilago, Fred Blas, Brittany Smart, Dominic Yagong and Pete Hoffmann PROMISING they will not reduce the 2 percent fund. Yet less than a year later, they are BREAKING that promise. If these people vote to override the mayor’s budget, or vote for ANY bill to reduce the 2 percent fund, I will oppose every one of them to best of my ability forever. How about some INTEGRITY, instead of POLITICS?
June 21st, 2011 at 9:43 am
Kaua`i County has a “county attorney” that serves both the administration and the council. I’m not sure about Maui.
June 21st, 2011 at 11:11 am
@Andy,
How does that work out in Kaua`i County?
June 21st, 2011 at 2:40 pm
The county council, and every single county board and commission, has assigned an attorney from the office of the corp. counsel. The attorney is there to offer legal advice. ‘Offer’ is the operative word. The attending corp. counsel is supposed to be proactive and speak up when there is a possibility that the council/board/commission is heading into potentially legally dangerous waters. I have been on the planning commission and am now serving on the redistricting commission, and we never were limited to asking the right questions – corp. counsel would ask for the floor and give advise or an opinion. Council members, like members of boards and commissions, are not expected to be attorneys and know all the legal nuances. That is why there is always a corp. counsel assigned to their meetings.
That said, the Office of the Corp. Counsel has lots of attorneys – Lincoln Ashida is not the only one. And just like attorneys in the private sector can be good friends and golfing buddies but still leave that relationship behind in the courtroom, so too can other county-paid attorneys defend and advise the county council against Ashida without putting their jobs in jeopardy or feeling a conflict of interest. I don’t feel comfortable hiring outside counsel. And yes, mediation should be the first step before escalating.
June 21st, 2011 at 3:55 pm
I think Dominic is right. I wouldn’t hire my neighbors’ attorney.
June 21st, 2011 at 4:12 pm
About as bad as you can imagine. Usually the administration exercises the control and the council is left out in the cold if there’s a conflict. Our county attorney (CA) is the only department head that needs council confirmation but (s)he can’t be removed unless the action is initiated by the administration. The CA has a large staff but of course since (s)he hires and fires them all any attempt to designate another attorney to take care of a conflict is window dressing.
One of the main problems has been an interpretation of our charter that has taken any public component out of the CA’s job since it’s not stated in the charter itself- it has evolved that all the CA does is to provide legal advice to the mayor and/or councilmembers. That means that all opinions are confidential and attorney-client protected, even matter of law. That makes it insane to try to follow the public policy that results for an opinion that councilpersons have but the people don’t.
That’s one of the main things we’ve been seeking to make clear in a charter amendment. We also have thought about making the position elected. But we’ve never been able to get either the council or our charter commission (which currently is sitting for a 10 year period) to even look at the problem.
All to say, that’s one of the least of the problems we have with our CA
June 21st, 2011 at 4:26 pm
Let’s play this to the next move. Say, for instance, the Council hires an attorney who “blesses” their budget. The council then overrides the veto. The County then has a problem: a budget declared illegal by the County’s attorney and declared legal by an outside attorney. What happens next? What position is the County in? No matter what they do they are in a legal trap: If the Mayor moves forward with the passed but declared illegal by the County’ attorney budget he puts the County in jeopardy. If he moves forward with the budget the administration generated what standing is there now to that budget?
Frankly, the Council – at this point – if it overrides the veto puts the County on very shaky grounds for operations. Would it not make more sense to allow the original budget to go into affect and then pass amendments to it (given that this is legal) as time moves along. If this is legal, the Council could signal the administration that it intends to make changes in coming sessions so to be prepared for them.
In any case, a council override is likely to only cause gridlock, further lawsuits and deeper mistrust by all the whole process. There are better ways to “save face” (if that is really what it is about) then to take on a fight in which all sides – and mostly the public – lose.
June 21st, 2011 at 4:55 pm
Maui County and City and County of Honolulu are also served by a Corporation Counsel that advises both Council and Mayor.
Council does have a County Clerk who is a lawyer, Jamae Kawauchi. That was the rationale for Yagong getting rid of the legal staff, Levi Hookano. Levi is currently working at the Richardson Law School.
If they are hiring an attorney, it usually indicates they are preparing to go to court. An opinion from an outside attorney doesn’t hold water as the charter sets up the Corp. Counsel as the chief legal officer for the county. An outside attorney is only of assistance if you take budget and decision to court for a judge to weigh in.
Under Charter, only Mayor can initiate amendments to the budget, not Council.
June 21st, 2011 at 5:53 pm
Having received the CC opinion, the council would be irresponsible to override the veto. They’ve been out maneuvered, with Ashida getting the assist.
June 21st, 2011 at 6:00 pm
Feliciano Says:
“…Under Charter, only Mayor can initiate amendments to the budget, not Council.”
things that make you go hmmmm?
June 21st, 2011 at 6:02 pm
I’ve read the CC opinion, and, no matter which lawyer the Council obtains, I don’t think there is a credible (much less a strong) argument to be made that the Charter allows for the Council to pass a budget with a “negative” appropriation in order to compel the Mayor to cut other, unspecified appropriations.
June 21st, 2011 at 6:52 pm
Ok, let’s put the shoe on the other foot for the sake of discussion. Say, Dominic is the mayor and Billy is council chair with a majority. You can bet that council, too, would be screaming for a second opinion.
June 21st, 2011 at 7:21 pm
Doc: not clear at all that it would work as you suggest. Dominic in particular has specialized in sniping. The Trib is his chief assistant. At the end of the day, though, Dominic presents no coherent picture of own.
June 21st, 2011 at 8:39 pm
What would a “Statesman” do, if he/she were a Councilmember right now?
June 21st, 2011 at 8:54 pm
I just feel like there is so much passive aggressiveness going on, and that just makes it all icky-political.
Granted, I haven’t been sitting through all the council members’ meetings, so I haven’t got the nuances.
And that is what they are, nuances.
Why didn’t council members call in the mayor while they were deliberating the budget? Talk frankly on the record, with cameras recording? Why didn’t the mayor walk in on council members as they were discussing these amendments and be the voice of reason? Why didn’t Corporation Counsel slip Dominic Yagong a note reading, “You are out of line.”
If we are going to define a “statesman” here, I would start with “the ability to be direct.” I guess I am partial and think of my father, a former City Councilman and state legislator, who looks people in the eyes and says exactly what is on his mind, even if it means ruffling feathers and hurting people’s feelings. He is by no means passive-aggressive, and I would say that his directness is an attribute in politics.
June 21st, 2011 at 9:02 pm
Plain and simple….as Dominic said, you cannot serve two masters…..this doesn’t happen anywhere else a nd yes Ashida could have said some thing so much earlier if he believed the Council was doing something illegal….not a word was said….all he is doing now is strumming the Mayor’s guitar……I support a second opinion…..
June 22nd, 2011 at 5:23 am
What the councilmen’s integrity? Take a look at the signed pledges by the councilmen that Debbie Hecht has posted here. They promised to preserve the 2 percent PONC land fund:
http://www.dhecht.com/
Last October Yagong, Blas, Ford, Hoffmann and Smart promised IN WRITING to restore and preserve the 2 percent fund. It is only June, and already they are breaking their word, they are already violating their written pledges, and anyone who cares to look can see the PROOF. They are shameless.
It is the council that is trying to cut the PONC. The mayor included full funding for the PONC in the mayor’s budget. If the council overrides the mayor’s veto, the PONC will be cut. If the Mayor’s veto stands, the PONC will be fully funded as it should be.
PLEASE contact your councilman and urge them to support the PONC by supporting the mayor’s veto.
June 22nd, 2011 at 6:43 am
Nobody seems to be asking ” how can it be fixed”? Nothing but posturing and politics.
If there’s a second opinion, what then? Then, at best, you have a question whether the budget is illegal. How could a responsible council proceed with that question hanging?
June 22nd, 2011 at 8:09 am
It is my contention that if the council dose not heed the advise of corporation counsel Lincoln Ashida saying there are legal repercussions in the amended budget they are making a foolish and potentially expensive [tax payer funded] move. The county can not back down from their position after stating there illegal properties in this amendment. By hiring outside counsel you are asking for a fight because you don’t like the game and that means expenses to the tax payers. Any outside attorney with an ounce of decency should explain to the council where the illegal actions lay. This they have already gotten from corporation counsel and to take this action any further is just plain foolishness and a waste of MY MONEY. I get very tired of watching our hired politicians bicker like little school girls, pull up your bootstraps and get the job done and stop blame game.
The Lack
June 22nd, 2011 at 9:08 am
If we don’t have money for the 2% fund, we sure as hell don’t have money for a stupid legal dispute between our elected officials.
June 22nd, 2011 at 10:12 am
Yagong say it’s the peoples budget, the Mayor says it’s the peoples budget so there is really only one master. It’s time they both stop fighting and do what’s best for the people.
The councils budget has a couple illegal issues and increases spending $44,000 more than the Mayor’s propsal. In addition the council would like to spend $8,000 more for special counsel plus the cost of holding the meeting. In my opinion that’s not what’s best for the people.
June 24th, 2011 at 2:48 pm
I was at the Council this morning…unfortunately, Fred Blas voted with the “3 amigos” (Onishi, Ikeda and Yoshimoto) Res 88-11 ended up 5-4, so it did not pass because they needed 6 votes…
I noticed Yagong hang his head after Fred voted “no” –
I’m disappointed too!
June 24th, 2011 at 3:16 pm
I liked that Mr. Yoshimoto suggested multiple opinions be sought if they were going to bother hiring counsel to provide opinion independently from corp counsel.
I loved that Ms. Ford cannot contain herself, morphing into rude character and accusations when speaking to Mr. Ashida. Outrageous, the best show in town!
Mr. Pilago’s questions showed ignorance but a high degree of respectable sincerity.
As was also pointed out: There’s nothing stopping council members from pursuing pro-bono review work from lists of many Attorneys before next Thursday.
Glad Mr. Blas showed fiscal responsibility, imho instead of going with the $8,000. for the Chairman’s already secured outside rep, Shari Broder.
If there’s a good argument to explain why Mr. Ashida’s opinions are in error, then start digging and doing your own homework for your fight, oh ye drafters of the vetoed budget!
June 24th, 2011 at 10:23 pm
So Yagong got rid of the attorney in the clerk’s office, and now is complaining about not having an independent attorney? Sounds like he made some short sighted staffing decisions that are now biting him in the @$$. I heard Yagong fired him right after he came back from active duty with the military. Talk about cold. Good job supporting the troops Yagong.
June 24th, 2011 at 10:50 pm
Former clerk Casey Jarman and former clerk Ken Goodenow were both lawyers too, and they kept the attorney on staff. Yagong’s rationale that Ms. Kawauchi is also an attorney doesn’t seem to have been a good one. I imagine it’s difficult to be an administrator and lawyer at the same time when your office isn’t in the business of law.
June 25th, 2011 at 8:20 am
The present clerk is an attorney…..obviously she did not see anything illegal about what the council did or if she did she did not speak up….we deserve a second opinion and Blas was led by his nose ……they are doing to him what the did to Naeole and because he is clueless about the budget he followed the mayors puppets…..sad…..work for the people Fred or you will be down the road like Emily and Guy…….I pray that an attorney will give their opinion pro bono….the Hilo 3 wasted $50000 by violating the sunshine law ….Yoshimoto has his nerve complaining about $8000 …..
June 25th, 2011 at 7:35 pm
Whoa Jan, that’s quite an accusation. The sunshine law violator in the re-org squabble was not ever named, but careful reading of all the documents will show you quite clearly it was not the mouths of the “Hilo 3″ that were ultimately the guilty parties.
WHT and the Trib never wanted to tell you that part of the story. It could have made them look bad to their bosses back in Vegas.
It’s like a game of Clue, and a smart person can deduce who did not do the actual sunshine law violation. Blame Reed Flickinger for making a rock fight out of some sand kicking and costing the County tons of legal money over the reorg debacle. It was West Hawaii Today who brought the lawsuit. And they failed on every attack…I think WHT leveled a total of three charges and missed on them all? Hopefully some attorney in the know will back me up on this…
Anyway, that whole thing was juvenile idiocy. You’re right to be pissed about the waste, and give the media credit for whipping you up over it. They paid to make it a bigger story and they paid for and scripted your reaction.
June 26th, 2011 at 4:57 am
It doesn’t take a rocket scientist to know that the council re-org was planned in violation of the Sunshine law….West Hawaii today does an excellent job of letting the public know what is going on unlike the Trib…..hats off to Flickenger…..we have an out of control administration who acts as though it is their way or the highway…..Blas will have one term as it is clear he is a follower rather than a leader and has no clue about budget issues….Emily will be back…she learned the hard way that she was being used by the Hilo 3 and I think she has a better understanding today about how government works…Fred is being led and has yet to explain his reason for not wanting a second opinion…..the Mayor’s budget defers paying the bills, lagging payrolls and will just put us further in the hole next year…..hope you sleep well Fred…..
June 26th, 2011 at 9:57 am
Tiff, please consider moderating such inflammatory rants.
@Jan: My opinion is WHT wasted taxpayers dollars over a council issue, an openly confessed transgression of the “sunshine law”. An accident. Taxpayers, open your wallets for all our friends the members of the Bar ASsociaTion. Period. Thanks millions, Reed!
Meanwhile, lets see how many lawyers offer up opinions before next Thursday, eh? Now we know if we get mayor Yagong we get Corp Counsel Broder, no? I’d rather have Mayor Naole, thank you very much.