Kauai County Attorney Rampant

SUBHEAD: Kauai County Attorney oversteps his bounds with Ethics Board.  

image above: The wig on an English barrister was symbol his social status. A practice abandoned in America.

By Walter Lewis, Special on 5 September in The Garden Island - http://www.kauaiworld.com/articles/2009/09/05/opinion/kauai/doc4aa21cf08e813086741325.txt At the August 13th meeting of the Kaua‘i Ethics Board, County Attorney Al Castillo, in disregard of the approved procedure for that meeting, appropriated three agenda items and launched into a roughly 30-minute patronizing lecture to the board as to its role and authority and the role and authority of the County Attorney under the County Charter.

 In his discourse, he asserted that the charter specifies that the County Attorney is the chief legal adviser of the offices and agencies of the county on matters related to their powers and duties. He advised that the board must comply with his opinions. When one board member asked if he meant “should” instead of “must,” he bridled and stated that he was not going to debate his position in the open meeting and taking the retreat that is well practiced by our County Council and others, he suggested that any discussion should be held in an executive session. But he who is presumably omniscient in legal matters seemed to overlook that debating the law is not one of the eight avenues listed in Section 92-5 of the Sunshine Law as an allowable basis for an executive meeting.

Continuing on his set path he alluded to the agenda item regarding criteria for public release of opinions but never identified any and veered off into a discussion of various types of communications from the County Attorney’s office as including opinions of law that are not confidential and advice that may or may not be designated as confidential. His delineations between opinions and advice were vague and inconclusive and not helpful to his audience. He did acknowledge that these communications are subject to the attorney-client privilege, and that the privilege may be waived by the client.

 A question arose about whether Mr. Castillo would respond to the board’s request for his position on the opinion issued by his office last year on the interpretation of Section 20.02D of the charter. Without acknowledging that the request was for his written reply, he stated that he “almost” agreed with the opinion although he never explained what that meant and then he specifically disclaimed that he would provide any written comment. All in all, his peremptory manner and his disdainful treatment of the board members was a disquieting performance. For the citizens in the audience, his conduct was shocking. One citizen submitted a letter to The Garden Island calling Mr. Castillo’s demeanor “dictatorial.”

Reviewing Mr. Castillo’s pronouncements, the most troublesome was his contention that he is the legal adviser of the board and it “must comply with his opinions” with the threat that if they do not, they must face the consequences. He apparently believes that his prime duty is to those who appointed him and not to serve his clients. Such a belief is not sustainable. Lawyers are not known for their unanimity on legal matters and for any lawyer to claim he is omnipotent is pretentious and unwarranted. Yet Mr. Castillo is decreeing that our county agencies must accept his opinions “or else.”

The law is similar to the practice of medicine. Although all lawyers and doctors have education and experience in their fields, no one has expertise in all areas. Typically, each year our county incurs more costs to retain counsel on matters considered beyond the competence of the county attorney staff than it does to meet the payroll of the County Attorney’s office. When our county officers and employees question the reliability of a county attorney office opinion what they should have is something similar to the right of a “second opinion” in general usage in the medical profession. Our charter says the County Attorney is the chief legal adviser, not the exclusive one. Opinions from the County Attorney’s office are not generally released to the public. I have only seen one. Traditionally legal opinions recite the relevant facts, offer a discussion of the applicable law and then a conclusion.

The opinion I have seen as to Charter Section 20.02D was woefully organized. It provided an incorrect statement of the legal principles that should be applied and then it mandated the view that the charter section should be read in conjunction with Kaua‘i county ordinances totally failing to express a conclusion as to the results of such a reading. If this opinion is representative of the opinion output of the County Attorney’s office, it is deeply troublesome. An illustration of the ambiguities and problems of the points discussed by the County Attorney at the Ethics Board meeting and the sorry consequences of the failure to make public county attorney opinions recently played out in our Charter Review Commission.

There, the County Attorney’s office had issued an opinion of law relating to the county manager system and asserted it must be treated as confidential. An effort by one commission member to make the opinion publicly available was rejected by the commission, deferring to the confidentiality assertion by the County Attorney and bowing to his mandate that his opinions must be obeyed. This occurred despite the County Attorney’s Ethics Board statement that opinions of law are not confidential and the clear right of the commission to waive the privilege. Even worse was the fact that discussion about attorney opinions release was conducted in executive session.

Mr. Castillo may well have interpersonal skills. But his arrogant and insulting style at the Ethics Board meeting seemed disparaging and unpleasant to its members. His pontifications were akin to a dressing down of mischievous children. If the man has humility, it was not readily apparent. The County Attorney’s duties are important to our county. For the well-being of its people, I urge that Mr. Castillo review his role and consider how he might improve the interactions necessary to properly perform his designated function.

 •Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.

See also:
Ea O Ka Aina: Kauai's Napoleonic Advisor 8/23/09


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