Council challenges its legal office
A dispute over privacy revisits the issue of which city attorneys represent the board
A dispute has raised the issue of which attorneys represent the City Council.
The Corporation Counsel's Office, which is under Mayor Mufi Hannemann, says its lawyers are the Council's attorneys. But the Council's research arm, the Office of Council Services, says its attorneys can also serve as Council attorneys.
Some on the Council say they prefer that members of the Corporation Counsel -- who are part of the administration -- not sit in on their closed-door deliberations.
Deputies with the Corporation Counsel's Office have traditionally briefed Council members on pending legal cases, given recommendations on how to proceed and then left as the Council debated what to do on a case.
But earlier this year, the corporation counsel began requiring a deputy to sit in on Council deliberations and voting, in order to satisfy requirements of the open-meetings law -- better known as the Sunshine Law -- that allows a "board" to meet in a closed-door session "to consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities and liabilities."
The Corporation Counsel's Office believes, however, that only attorneys from that office qualify as "the board's attorney" under the current law.
Corporation Counsel Carrie Okinaga declined to comment, citing attorney-client privilege, but she indicated that her office's position could be gleaned from the opinion.
Diane Hosaka, Office of Council Services director, disagreed, saying her office "is of the opinion that the attorneys with the Office of Council Services also serve as attorneys for the board (i.e., the Council)."
As a result, she opined, the attorneys in her office can sit in place of the deputy corporation counsels, so that the Sunshine Law is not violated and "a deputy corporation counsel need be present during the voting portion of the closed meeting."
Some on the Council say that the current dispute boils down to a matter of trust, with some members having concerns that what they have discussed in private will be shared with the mayor, who appoints the corporation counsel, especially when the two branches of government disagree.
This is not the first time the Council has raised concerns on the corporation counsel's representation.
Two years ago, Councilman Charles Djou introduced measures that called for either the corporation counsel to be an elected position or to have the city create an elected district attorney who would handle both criminal or civil cases.
The idea of making the corporation counsel an elected and not an appointed position, Djou said, aims to make the city's civil attorney more independent and less attached to the executive branch.
The measures came about when the Council and then-Mayor Jeremy Harris took different legal positions on issues that included the budget.
Djou said the issue is not limited to whoever is the sitting mayor or corporation counsel, because the conflicts are inherent and have come up under the administrations of both Harris and Hannemann.
"There is always going to be this level of tension," he said, and his idea of making the corporation counsel more independent would help resolve that.
Another solution would be to change the City Charter. But a proposed Charter amendment that would have specified that the Office of Council Services could serve as the Council's legal advisers and representatives is stalled in the Charter Commission.
