Did voters know what they were doing when they passed a charter amendment requiring the chief of the Department of Environmental Management to have an engineering degree or a degree in a related field?
Did voters know what they were doing when they passed a charter amendment requiring the chief of the Department of Environmental Management to have an engineering degree or a degree in a related field?
That question is at the heart of a motion filed by the attorney for former South Kona/Ka‘u Councilwoman Brenda Ford, who is asking 3rd Circuit Court Judge Ronald Ibarra to reconsider his May 26 ruling that Mayor Billy Kenoi and the County Council had discretion to put Bobby Jean Leithead Todd in that position without the engineering or similar degree seemingly required by the county charter.
Kona attorney Michael Matsukawa, representing Ford, acknowledged it’s rare for a judge to reconsider a ruling, but he thinks it’s the best move, considering the ramifications. He’s argued an engineering degree or a degree in a related field are among the minimum qualifications for the position.
“As written, the court’s ruling deprives the voters of their choice by saying that the voters did not understand the question that they had voted upon and therefore let municipal officers decide the charter amendment’s meaning,” Matsukawa said in his reconsideration motion. “Further, the court’s ruling could, in the future, be applied to other circumstances where the voters’ intent on a charter amendment or initiative comes into question.”
Voters in 2010 amended the county charter to add the requirement for “an engineering degree or a degree in a related field” to the position requirements for the environmental management director. Leithead Todd, an attorney, has a bachelor’s degree in English.
Kona attorney Robert Kim, representing Leithead Todd, argued the mayor is vested with the power to appoint and the council has checks and balances over the decision of the mayor. The council confirmed Leithead Todd based upon the legal opinion of then-corporation counsel Lincoln Ashida, who told council members they have the discretion to determine what “related field” meant.
Ibarra noted in his 15-page ruling that both sides agreed the charter language is ambiguous. Ibarra also agreed with that, but said because Ford’s side did not meet its burden of proof that Kenoi or the council abused its discretion, then he need not rule on whether a law degree is a degree “in a related field” to engineering.
“In viewing the evidence in the light most favorable to the petitioner, the petitioner has not raised or presented any evidence that there exists a genuine issue of material fact relating to whether the County Council or the mayor abused their discretion in interpreting the charter,” Ibarra said in his order.
Kim said in his response Wednesday to the reconsideration motion that no new ground was being plowed by Matsukawa’s motion, so it should be denied.
“These arguments were raised, considered and rejected by this honorable court. … Unless petitioner is claiming this honorable court manifestly misunderstood the facts and/or law, the petitioner should not be allowed to re-argue the case,” Kim said in his response. “Based on this record, petitioner merely seeks a ‘second bite at the apple,’ except this time she will ‘turn up the volume.’”
Ibarra quoted extensively from the transcripts of the 2009-10 Charter Commission in forming his ruling. The commission debated what kind of degree would be related to engineering, and then decided not to make it more specific but to leave it to the County Council’s interpretation.
Leithead Todd occupied the director post under a previous mayor before the charter language was changed. She left that post to lead the Planning Department under 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.
Email Nancy Cook Lauer at ncook-lauer@westhawaiitoday.com.