A former County Council apparently hired a special attorney without legal authority to do so.
A former County Council apparently hired a special attorney without legal authority to do so.
That attorney is still acting as a consultant to the county under an apparently invalid contract.
Corporation Counsel Lincoln Ashida in October 2009 asked the Hawaii County Council to approve a special counsel to do work relating to the 1250 Oceanside Partners performance bonds. Five members of that council voted to concur with Ashida’s recommendation to hire the special counsel, attorney Scott Mackinnon, according to the action agenda available on the council’s online records system.
The initial contract capped the payment to Mackinnon to $25,000. An amended contract in 2010 increased the cap to $75,000. Ashida said he has recently seen emails from Mackinnon on the bond settlement case with 1250 Oceanside Partners.
A review of invoices show the county has paid about $72,000 to date, with the most recent payment Feb. 17.
Ashida said the council would have to have approved the $50,000 supplemental contract. Council Chairman Dominic Yagong said he did not recall the measure coming before the council.
Then Council Chairman J Yoshimoto, Ka‘u Councilman Guy Enriques, South Kona Councilwoman Brenda Ford and Hilo Councilmen Dennis Onishi and Donald Ikeda voted to concur with corporation counsel’s request. One council member, Yagong, voted against the measure. North Kona Councilman Kelly Greenwell was listed as excused from the vote. Kohala Councilman Pete Hoffmann and Puna Councilwoman Emily Naeole were absent.
Ashida said Thursday the county charter requires six votes to hire special counsel.
“For purposes of special counsel, two-thirds of the membership to which the board is entitled” must approve the request, Ashida said. “It’s six no matter what.”
It is stipulated in the Hawaii County Charter Chapter 2, Section 6-5.5 “Special Counsel. The council may, by two-thirds vote of its entire membership, authorize the employment of special counsel for any special matter presenting a real necessity for such employment.”
Ashida said he did not remember specifics of the Oct. 7, 2009, meeting. After reviewing documents pertaining to the vote, he noted his office received a memo from Yoshimoto indicating the council had concurred with Ashida’s recommendation. That memo, which Ashida provided to West Hawaii Today, did not list the number of votes.
Regardless of Yoshimoto’s memo, Ashida or a deputy corporation counsel attorney should have spoken up after the vote, to point out the measure failed. Ashida was looking into the situation Thursday.
“I’m not denying a mistake was made,” he said. If a mistake was made, “it needs to be fixed. There is a means to go back.”
That means, he added, is the ratification process, in which the council essentially takes a re-vote on the measure, to ensure the measure was properly approved.
Later Thursday, Ashida noted that Mackinnon never litigated for the county. It may mean Mackinnon did not act as special counsel, but more like a consultant, he added.
Yoshimoto agreed. He said he didn’t recall a specific conversation about needing five or six votes, but if Mackinnon wasn’t taking corporation counsel’s place in court, the six-vote requirement may not have applied.
“The question becomes whether we need to define what special counsel means,” Yoshimoto said.
West Hawaii attorney Francis Jung said the issue was likely a moot point, because the attorney had already begun work on the case.
“How did they do it without six votes?” Jung asked. “You’ve got me.”
Entering the contract without the proper council authorization created an illegal contract, he added.
“Theoretically, you’ve got a case because this is an action without the authority of the County Council,” Jung said. “As a practical matter, you want them to finish it.”
Prior to a vote Wednesday on a similar special counsel request, County Clerk Jamae Kawauchi reminded council members of the six-vote requirement. That measure failed.
Kawauchi declined to comment on the 2009 vote, because she was not the clerk at that time.
Kenneth Goodenow was.
“I can’t believe I would have allowed that,” Goodenow said late Thursday. “Just looking at the action sheet and the communication, a conclusion whether it was a mistake or not can’t be made.”
He cited the unrelated issue that a request to enter executive session requires two-thirds of the number of council members present at the meeting.
After being contacted Thursday afternoon, Yagong said the meeting transcript showed five affirmative votes and one no vote.
“I had my staff review the DVD (of the meeting) to confirm,” he said late Thursday.
Yagong said Greenwell had been recused from voting. West Hawaii Today reported earlier in 2009 Greenwell owned property at Hokulia.