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On Politics Richard Borreca |
A war and upcoming
election pose problem
for politician-soldiersHawaii is joining the ranks of states like Wyoming, Utah, Oregon, Vermont and Iowa, where the call to duty means sending National Guard troops to the war in Iraq.
While wishes of godspeed and safe return go with all the troops, the departure next month for an 18-month rotation raises a question for the politicians left behind.
What if one or more of Hawaii's three elected politicians who are in the Reserve -- Honolulu City Councilman Charles Djou and state Reps. Mark Takai and Tulsi Gabbard Tamayo -- are called to duty overseas?
Djou is in the Army Reserve and hasn't yet been called; Takai says his duties with staff headquarters for the 29th Brigade make him "undeployable;" leaving a question only about Tamayo.
Both Takai and Tamayo are now on the mainland performing their regular two weeks of required active duty training. Tamayo's office said there has been no final word on whether she would be going. If she does, what happens to her campaign and service in office?
Tamayo has filed for re-election and if successful would serve in the 2005 and 2006 Legislature with annual meetings of 60 days.
If Tamayo is called up, presumably it would be for an 18-month tour starting next month, meaning she would miss the entire 2005 session and be available for only the last month or so of the 2006 session.
State law says legislative vacancies are to be filled by an appointment from the governor and the appointee must be of the same political party.
But exactly how long someone must be gone before the seat goes vacant is not addressed in state law. Interestingly, there is hardly any law anywhere in the country on what happens when an elected public servant is called to active duty.
Looking at the issue from a city perspective, Djou asked the Office of Council Services to check it out. Researchers found that even though the city declares an office vacant if a Council member moves out of the district for 60 days, it is not thought to apply if you are on military service.
But there is little past law to rely upon. Several of the cases come from World War II service, and that was a declared war -- unlike the action today in Iraq.
"We believe that a good argument can be made that a Honolulu City Council member called to temporary active duty in the U.S. Army, even if for the duration of a declared war or state of emergency, would not be found to have vacated his or her Council office," the Office of Council Services opinion read.
The curve ball in this legal reasoning is that the Uniformed Services Employment and Reemployment Act requires that those in the guard who are called for active duty are owed their jobs back when they return.
City researchers failed to find any case law regarding how the USERRA applies to elected officials on active duty, but they speculated that the job bounces back to the official upon return from duty -- as long as "you return prior to the end of your current Council term."
If Tamayo does go to war, it makes for some interesting political questions for both herself and her voters.
See the Columnists section for some past articles.
Richard Borreca writes on politics every Sunday in the Star-Bulletin. He can be reached at 525-8630 or by e-mail at rborreca@starbulletin.com.