tag:blogger.com,1999:blog-8687811041357332327.post-84684753560326330772009-11-24T15:48:00.003-10:002010-03-17T10:02:27.158-10:00Andy Parx has <a href="http://parxnewsdaily.blogspot.com/2009/11/pnn-boes-weil-calls-cas-2002d-opinion.html">another in his worthwhile series of posts</a> on the ongoing controversy over Kauai County Charter's ethics provision that no officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency. <br /><br /><a href="http://planetkauai.blogspot.com/2009/09/on-sunday-garden-island-linked-to.html">Recall</a> the recent county attorney opinion that asserted that the provision leads to results just too absurd to comply with, and must therefore be read in conjunction with more lenient county ordinances so that officers, employees, etc <i>can</i> in fact appear on behalf of private interests.<br /><br />Leaving aside the point that an honest reading of the provision simply does not lead to absurd results, and that the ordinance in question doesn't actually apply to the controversial section, what troubles me about the County Attorney's assertion is that it appears to rest on a fundamental misapprehension of the hierarchy of law represented by charters and ordinances. It is axiomatic that a county charter is the fundamental law and that ordinances that fail to conform to charters are what in the federal context would be called "unconstitutional."<br /><br />However, it's one thing to assert a legal proposition, and another to back it up with legal authority. As luck would have it, the other day I ran across the case of <a href="http://scholar.google.com/scholar_case?case=4511976846810272400&amp;q=823+P.2d+742&amp;hl=en&amp;as_sdt=2002"><i>Fasi v. City Council of City and County of Honolulu</i></a>, 72 Haw. 513, 823 P.2d 742 (Haw. 1992), in which the Hawaii Supreme Court stated unequivocally that "[a] basic tenet of municipal corporation law is that an ordinance which conflicts with an express provision in a charter is invalid."<br /><blockquote>The proposition is self-evident that an ordinance must conform to, be subordinate to, not conflict with and not exceed the charter, and can no more change or limit the effect of the charter than a legislative act can modify or supersede a provision of the constitution of the state. Ordinances must not only conform with the express terms of the charter, but they must not conflict in any degree with its object or with the purposes for which the local corporation is organized.<br /></blockquote>This applies whether or not a charter provision led to "absurd results." The only remedy in such a case would be to amend the charter. It is certainly not permissible to alter a charter's clear requirements by resort to a contrary ordinance.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/8687811041357332327-8468475356032633077?l=planetkauai.blogspot.com' alt='' /></div>charley fostercfosterlaw@gmail.com0