The qualifications of county Environmental Management Director Bobby Jean Leithead Todd are again in question following an Intermediate Court of Appeals opinion Thursday that vacates a lower court judgment favoring her and kicks the case back to Circuit Court.
Leithead Todd and former County Councilwoman Brenda Ford, who filed the lawsuit, see a victory for their side in the 14-page opinion.
Ford said Thursday the lawsuit isn’t personal, that in fact she likes Leithead Todd. But she vowed to continue, saying the public has a right to qualified administrators.
“I’m hoping the county won’t waste one more minute of the public’s time, or one more dime of taxpayers’ money to appeal this further,” Ford said.
In the opinion written for the three-judge panel by Associate Judge Daniel R. Foley, the court concluded the burden of proof is on Leithead Todd to show her law degree meets the county charter requirements for an engineering degree or similar to lead the department. The lower court put the burden on Ford.
The requirement for an engineering degree or degree in a related field was written into the charter after it was proposed by the 2009-10 Charter Review Commission and approved by voters.
At issue, however, is whether the term “related field” is related to the degree requirements or the experience requirements. Leithead Todd points to language in the appellate opinion that says the degree relates to the experience requirements, not the degree requirements.
“It is clear that the commission intended to require the director of the Department of Environmental Management to hold a degree in engineering or a degree in a field related to the duties of the Department of Environmental Management,” the opinion stated. “Leithead Todd has the burden of proving that she is qualified for the office she holds.”
Leithead Todd had the director’s job under former Mayor Harry Kim before the charter language was changed. She left that post to lead the Planning Department under Mayor Billy Kenoi, from 2009 until December 2013, when she returned to Environmental Management.
The County Council, by a 6-3 vote, confirmed the appointment that year. Ford, North Kona Councilwoman Karen Eoff — who served as staff for the Charter Commission that added the ballot language — and Kohala Councilwoman Margaret Wille voted no.
“We remand this case to the circuit court to evaluate whether Leithead Todd’s law degree is a degree related to the duties of the Department of Environmental Management,” the appellate court opinion continues.
Ford filed suit against Leithead Todd in 2013. But 3rd Circuit Court Judge Ronald Ibarra ruled that Ford, represented by Kona attorney Michael Matsukawa, didn’t show that Kenoi or the County Council abused their discretion in approving Leithead Todd for the position.
Ibarra subsequently denied Ford’s motion to reconsider his ruling, so Ford appealed.
County taxpayers as of August 2015 had paid $61,091 for Leithead Todd’s legal bills. She was represented by Kona attorney Robert Kim, who couldn’t be reached for comment by press time Thursday. County Corporation Counsel is now representing Leithead Todd.
Ford is paying her own legal bills.
Because the Environmental Management director oversees permits, regulations, collections and the like, “it makes perfect sense to have someone with a legal degree run that department,” Leithead Todd said Thursday.
“(The appeals court) essentially sided with our position, but there wasn’t a specific finding (in the lower court),” Leithead Todd said. “I think we met the burden of proof. …. I don’t think that’s going to be an issue.”
The charter amendment reads: “the director shall have had a minimum of five years of administrative experience in a related field and an engineering degree or a degree in a related field.”
Ford thinks that language is clear.
“The voters knew what they were doing when they voted for the charter amendment,” she said. “We need to get the most competent people we can to help the county move forward expeditiously.”
Email Nancy Cook Lauer at ncook-lauer@westhawaiitoday.com.
