CEFARTMENT CF THE CORPORATION COUNSEL

CITY AND COUNTY OF HONOLULU
530 SOUTH KING STREET, ROOM 110 * HONOLULU, HAWAII 9681...
Memo to Charles W. Gall, Esq., Chair,
and Members of the Ethics Commission
October 25, 2013
Page 2

3.

From COR’s point o...
Memo to Charles W. Gall, Esq., Chair,
and Members of the Ethics Commission
October 25, 2013
Page 3

perform all other serv...
Memo to Charles W. Gall, Esq., Chair,
and Members of the Ethics Commission
October 25, 2013
Page 4

response to the client...
Memo to Chartes W. Gall, Esq., Chair,
and Members of the Ethics Commission
October 25, 2013
Page 5

or an appearance befor...
Memo to Charles W. Gall, Esq., Chair,
and Members of the Ethics Commission
October 25, 2013
Page 6

the Commission under R...
Memo to Charles W. Gall, Esq., Chair,
and Members of the Ethics Commission
October 25, 2013
Page 7

(2) Communication with...
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Attachment 10.25.13 (1)

  1. 1. CEFARTMENT CF THE CORPORATION COUNSEL CITY AND COUNTY OF HONOLULU 530 SOUTH KING STREET, ROOM 110 * HONOLULU, HAWAII 96813 PHONE: (8081 768-5193 * FAX: 1808) 768-5105 * INTERNET: wiwficnoh4Iu.Ov KIRK CALDWELL DONNA Y, L. LEONG MAYO P COPPOR4 ON COUNSEL SHERYL L. NICHOLSON FIRST DEPUTY CORPORATION COUNSEL October 25, 2013 TO: CHARLES W. GALL, ESQ., CHAIR AND MEMBERS OF THE ETHICS COMMISSION FROM: DONNA Y. L. LEONG. CORPORATION COUNSEL SUBJECT: RELATIONSHIP BETWEEN THE ETHICS COMMISSION AND THE DEPARTMENT OF THE CORPORATION COUNSEL This memorandum responds to the memoranda from the Executive Director and Legal Counsel to the Ethics Commission (“ED”) dated April 26, 2013 and September 9, 2013, regarding the “role [of the Department of the Corporation Counsel].., in Commission matters.” In particular, the ED has made the following inquiries: 1. Is it the policy of the Department of the Corporation Counsel (“COR”) for its deputies to give ethics advice to City officers and employees? a. b. If so, is the advice considered attorney-client privileged? c. 2. If so, under what circumstances? Does COR maintain records showing who asked for ethics advice, who responded, the content of the response, etc? Is it the policy of COR for its deputies to represent City officers or employees if the o,fficer or employee is the subject of an Ethics Commission investigation? a. If so, under what circumstances? b. If so, is the representation considered attorney-client privileged?
  2. 2. Memo to Charles W. Gall, Esq., Chair, and Members of the Ethics Commission October 25, 2013 Page 2 3. From COR’s point of view, what is the role of COR in advising the Commission on non-ethics mailers or issues? 4. What is the role of the COR deputy assigned to advise the Commission when its staff attorneys are prohibited from advising the Commission under Rule 5.10, Rules of Procedure of the Ethics Commission, that is, after a finding of probable cause of a violation by the Commission is a specific case? a. To what extent, if at all, will the assigned deputy’s advice reflect the concerns of the administration, COR or other agencies? Initially, we would like to thank the ED for giving COR this opportunity to advise the Commission as to the powers, duties and functions given and assigned to COR under the Revised Charter of the City and County of Honolulu 1973 (2000 ed.) (“RCH” or the “Charter”). While we regret the time that has passed since the initial inquiry was made, which was just short of one month after I was nominated and before I was confirmed by the City Council, given the significance of the inquiries and COR’s responses in establishing the relationship between the Commission and COR, we felt it important to carefully consider the issues before responding. The Powers, Duties and Functions of the Department of the Corporation Counsel. The general powers, duties and functions of COR are set forth in RCH Chapter 2 (Department of the Corporation Counsel), § 5-203: Section 5-203. Powers, Duties and Functions The corporation counsel shall serve as the chief legal adviser and legal representative of all agencies, the council and all officers and employees in matters relating to their official powers and duties. Except as otherwise provided by federal or state law, the determination whether a matter relates to official powers and duties shall be made by the corporation counsel and shall include, among other things, consideration of case law applicable to the concept of course and scope of employment. The corporation counsel shall represent the city in all legal proceedings, except as otherwise provided in this charter. The corporation counsel shall —
  3. 3. Memo to Charles W. Gall, Esq., Chair, and Members of the Ethics Commission October 25, 2013 Page 3 perform all other services incident to the office as may be required by this charter or by law. By the express terms of the Charter, COR is mandated to provide legal counsel and advice to all City agencies, the City Council and all officers and employees of the City in all matters relating to their official powers and duties. While your first inquiry asks whether it is “the policy of the Department of the Corporation Counsel (“COR”) for its deputies to give ethics advice to City officers and employees,” we believe the question you are asking is this: “Does COR have the power and duty to advise the City’s officers and employees in all matters relating to their official powers and duties, including, without limitation, RCH Article Xl titled, ‘Standards of Conduct’?” Our response to that question is “Yes”; RCH § 5-203 provides that COR “shall serve as the chief legal adviser and legal representative of all agencies, the council and all officers and employees in matters relating to their official powers and duties.” (Emphasis added.) Such advice may pertain to the United States Constitution, the Constitution of the State of HawaN, other state or federal laws, the RCH and the other laws, rules and regulations of the City and County of Honolulu, including, without limitation, the above-cited RCH Article Xl titled, “Standards of Conduct.” The Attorney-Client Relationship is Founded on Confidentiality and Trust. As you are aware, the attorney-client relationship is founded on the principle of confidentiality. ABA Model Rule 1.6. Model Rule 1 .6 Comment [2] states: “A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. This contributes to the trust that is the hallmark the client-lawyer relationship.’ Hawaii Rules of Professional Conduct of (“HRPC”) Rule 1.6. ... This principle is applicable to governmental lawyers and their clients. Hui Malama Ama 0 Ko’olau v. Pacarro, 4 Haw. App. 304,313-114,66 P.2d 177 (1983). Where COR provides legal counsel and advice to its clients, including the Council or any officer or employee of the City, on any mailer relating to their official powers and duties, including those related to applicable standards of conduct, COR’s counsel and advice are confidential and privileged communications that fall within the attorney-client privilege. Under the HRPC rules, a client’s request for legal advice to the client’s attorney, and the attorney’s
  4. 4. Memo to Charles W. Gall, Esq., Chair, and Members of the Ethics Commission October 25, 2013 Page 4 response to the client, are confidential and protected by the attorney-client privilege. Accordingly, any request for legal counsel and advice from COR by any City officer or employee, and any response from COR to that client, are confidential and constitute attorney-client communications, which are protected by the attorney-client privilege. There is no exception to these principles with regard to ethics laws, unless the attorney believes disclosure is necessary to prevent a public official or public agency from committing an illegal or fraudulent act. HRPC Rule 1 .6(4)(5). COR’s Role in Matters Before the Ethics Commission. Your second and third inquiries are related to each other, and so the following responds to both of them. RCH Section 11-1 07 authorizes the Ethics Commission to hold hearings and to conduct investigations concerning the application of, and to render advisory opinions with respect to, RCH Article Xl, “Standards of Conduct.” By its very nature, a breach of the Standards of Conduct would appear to be outside of the “course and scope of employment.” Henderson v. Professional Coatings Corp., 72 Haw. 387, 392, 819 P.2d 84 (1991). That being the case, and although there are other situations in which the factual allegations, based upon which the Ethics Commission is conducting the investigation, would be deemed to fall within the “course and scope of employment” of the subject City officer or employee, COR has determined, in general, that it will refrain from representing a City officer or employee in their individual capacity in addressing such factual 1 allegations. Having said that, COR also has determined that its decision not to so represent the individual City officer or employee in addressing the factual allegations does not mean that COR’s duty to advise the City’s officers and employees in matters relating to their official powers and duties is nullified in such a proceeding. Rather, if legal assistance is requested by a City officer or employee with regard to matters relating to the official powers and duties of City officers and employees during the course of such an investigation (for example, the Ethics Commission requests an interview in connection with an investigation 1 COR may counsel a City officer or employee that the officer or employee may wish to consider retaining private counsel to represent his/her individual interests. Furthermore, if an officer or employee is a member of a public employee union, he/she may be entitled to union representation, and COR may advise him/her to consider such union representation.
  5. 5. Memo to Chartes W. Gall, Esq., Chair, and Members of the Ethics Commission October 25, 2013 Page 5 or an appearance before it in a proceeding), the officer or employee can request COR’s legal assistance. COR retains the power to advise its clients in order that the City’s overall interests are protected, while being mindful that COR does not intend to interfere with, nor obstruct, the investigation or the Commission’s proceedings in anyway. COR’s clients include the executive branch and its departments and agencies, the City Council, the boards and commissions, and any City officer or employee. The subject matters of COR’s advice would include interpretation of the Charter, the Revised Ordinances of Honolulu, the rules and regulations implementing the same, and the power, authority and procedures of the various agencies, boards and commissions. Accordingly, COR may advise its clients, including the Ethics Commission, if COR determines that its counsel and advice, or presence with a City officer or employee in any Commission proceeding, are necessary or desirable to ensure that the Commission’s proceedings and procedures are in accordance with (a) the Commission’s jurisdiction granted under the Charter, (b) the Commission’s duly adopted rules of practice and procedure, (c) COR’s interpretation of applicable laws, including the Standards of Conduct, and (d) fundamental principles of ethics in public ilfe: to treat all people equally, fairly, and impartially. Further, COR would encourage the Commission to refer legal 2 issues to COR that are outside of the Commission’s jurisdiction, such as questions about procurement, land use, environmental laws, personnel and so forth to assist the Commission with the legal analysis of the underlying law for its ethics proceedings. COR has a form of Request for Legal Services that we would ask the Commission to use. The inquiry as to the confidential relationship between COR and COR’s clients has been addressed in response to the first inquiry. COR as the Legal Advisor to the Ethics Commission. The fourth inquiry has been phrased as follows: “What is the role of the COR deputy assigned to advise the Commission when its staff attorneys are prohibited from advising 2 is coR’s practice to have separate deputies attend and provide counsel at administrative hearings or meetings. One would advise the board or commission, and the other would advise a City department or agency appearing before the board or commission. State v. Klattenhoff, 71 Haw. 598 (1990).
  6. 6. Memo to Charles W. Gall, Esq., Chair, and Members of the Ethics Commission October 25, 2013 Page 6 the Commission under Rule 5.10, Rules of Procedure of the Ethics Commission, that is, after a finding of probable cause of a violation by the Commission is a specific case? a. To what extent, if at all, will the assigned deputy’s advice reflect the concerns of the administration, COR or other agencies?” Ethics Commission Rule 5.10 provides: 5.10 Ex Parte Communications In any matter pending where the commission has found probable cause: a. No person shall communicate privately regarding the facts or contentions of the case with any member of the commission or designee unless specifically allowed by law or these rules; b. No commissioner or designee shall communicate privately regarding the facts or contentions of the case with any party, witness, counsel or representative for a party or a witness unless specifically allowed by law or these rules; and c. All written and oral ex parte communications received by any commissioner or designee containing facts or contentions in a matter where probable cause has been determined by the commission, that are known or believed to be unauthorized at the time of receipt, shall be immediately sent to all interested parties to the proceeding and made an official part of the record. d. The following classes of ex parte communications are authorized: (1) Communication that relates solely to matters which a commissioner or designee is authorized to dispose of on an ex parte basis;
  7. 7. Memo to Charles W. Gall, Esq., Chair, and Members of the Ethics Commission October 25, 2013 Page 7 (2) Communication with counsel or staff for the commission or designee relating solely to matters of practice and procedure; (3) Communication had after adequate notice and opportunity for all parties to participate; and (4) Communication with counsel for the commission or designee other than the legal counsel to the commission. [Eff 1 (Imp: RCH Sec. 11-107; ROH Secs. 3-6.3 through 3-6.7). (Emphasis added.) Pursuant to Ethics Commission Rule 5.10.d(4), COR, as counsel for the Commission, may continue to counsel and advise the Commission, including on an ex parte basis, even after the Commission has found probable cause. As indicated above, the role of the Deputy Corporation Counsel assigned to the Ethics Commission would be to advise the Ethics Commission as to COR’s interpretation of the Charter, the ordinances, and the Ethics Commission Rules and not about the specific facts or contentions of the specific case. A second Deputy Corporation Counsel would, upon request of any of COR’s clients, advise the Ethics Commission of COR’s interpretation of the same and other considerations that, in the overall interest of the City, COR believes the Commission should properly consider in rendering its decision on the ethics issue. On behalf of the Department of the Corporation Counsel, we look forward to working with the Ethics Commission to ensure that the laws of the City and County of Honolulu are interpreted correctly and implemented in a fair, just and equitable manner. DONNA Y. L. LEONG Corporation Counsel DYLL:ey 13-02737/305552

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