Hawaii County is asking a 3rd Circuit Court judge to allow it to intervene to help defend Bobby Jean Leithead Todd’s position as Environmental Management director after discovering that Councilwoman Brenda Ford’s petition challenging her relies on a relatively obscure legal premise that prevents the county from doing so.
Ford’s petition, “in the nature of quo warranto,” asks the court to compel Leithead Todd to come forward and justify her qualifications for her position. Quo warranto is most commonly used in Hawaii to challenge elected officials’ qualifications for office, if for example, they don’t live in their district. It also was tried unsuccessfully by the so-called “Birther” movement in challenging President Barack Obama’s birth certificate and citizenship and thus his qualification to be president.
Deputy Corporation Counsel Laureen Marten said the case law is clear from a Hawaii Supreme Court ruling on a Maui case that the county isn’t obligated to defend Leithead Todd in this type of action. But the county wants to be involved, she said, because “we have an interest in the outcome.”
She said the county on Friday filed a motion to intervene.
Leithead Todd has hired her own attorney, but she declined Wednesday to discuss the case or even provide her attorney’s name.
“I am hiring my own lawyer to represent me,” Leithead Todd said.
Judge Ronald Ibarra has set an 8:30 a.m. Oct. 9 hearing date on the case. The hearing will be in Kona.
In a petition filed Aug. 8, Ford’s attorney, Michael Matsukawa, cites the county charter’s requirement that the DEM director have “an engineering degree or a degree in a related field.”
“Since the respondent Bobby Jean Leithead Todd does not have an engineering degree or a degree in an engineering-related field, the respondent does not have the qualification required to hold the office of director of the Department of Environmental Management for the county of Hawaii,” the petition states.
Matsukawa did not return a phone message for comment on why he chose an action against Leithead Todd directly, rather than against the county or the mayor, who appointed her to the position.
The County Council, by a 6-3 vote, confirmed the appointment in July. Ford, North Kona Councilwoman Karen Eoff and Kohala Councilwoman Margaret Wille voted no.
The petition is seeking legal fees from Leithead Todd, in addition to a ruling that Leithead Todd be “restrained from performing the duties of that office.” If Leithead Todd, using her own attorney, wins the case, she in turn can ask the county to reimburse her legal fees.
Mayor Billy Kenoi had named Leithead Todd to the position in a Cabinet reshuffling earlier this summer.
Leithead Todd has a bachelor’s degree in English and a law degree from the William S. Richardson School of Law. She was director of the Department of Environmental Management for two years under former Mayor Harry Kim, before the charter was amended to require the engineering or related degree.
Leithead Todd was deputy corporation counsel for nine years, from 1987 to 1993 and from 2003 to 2007. She also served as the legislative auditor for the county and as a member of the County Council from 1996 to 2003. Most recently, she served as planning director since Kenoi’s election as mayor.
Kenoi said that the charter requirement for Environmental Management director is different from the requirement for Public Works director, which states that “the director shall be a registered professional engineer.”
But Charter Commission members, during discussions of the proposed engineering requirement for Environmental Management director, talked about related fields as being in hard technical sciences such as environmental science, according to the minutes for the Jan. 21, 2010, meeting. Eoff, who had served as secretary to the commission, said her recollection of the meetings led to her vote against confirming Leithead Todd.
Voters in 2010 passed the ballot amendment by a vote of 34,209 to 9,787.