One of the responsibilities of a Councilmember is the appointment of the County Clerk, and I take this responsibility most seriously. The Clerk is the department head of the “legislative department” of the county. He plays a central role in the spirit and standard of performance for all county government. The Clerk has a fundamental impact on the Council’s ability to perform its duties.
The County Clerk provides the services to Council members that enable us to do our jobs. The job of the Council is to improve life on Kaua`i through the passage of laws and resolutions, including the County Budget. The Council also performs oversight, investigative, eminent domain, salary-setting and audit responsibilities as part of the “checks and balances” of local government. Two separate and important functions of the Clerk are to conduct elections and be the custodian of all legislative and other county records.
The Council’s appointment of the County Clerk is a critical fiduciary duty that affects public money, property, operations and customer servicing. This appointment deserves and demands due diligence and fair process.
I am aware of Peter Nakamura’s many excellent qualifications. When I was mayor, I appointed Peter head of the Housing Agency; he did a commendable job. Later, under my administration, the Planning Commission appointed Peter as Planning Director. I appreciate and acknowledge his skills and gifts, which are considerable.
However, we are obligated to look at a candidate’s whole record, not just their gifts and strong points. Regretfully, I am not able to support the appointment of Peter Nakamura as County Clerk at this time for two reasons.
First, due to a ruling by the County Attorney, those of us who are newly elected and not incumbents have not had time to perform the required due diligence. Until a few minutes past my swearing-in today as a Councilmember, I have not had access to critical information, including personnel files and relevant executive session minutes. Neither have I had access to the County’s legal or human resources advice and counsel—critical pieces of due diligence. The County Attorney opined that I could not have access to the information or counsel until I became an
officer of the county by being sworn in.
Second, there are issues which due diligence requires be cleared up before I can vote for Mr. Nakamura. The most serious is a 2009 pay raise that Mr. Nakamura accepted which he knew, or should have known, was not legal. It may be that the former Chair of the Council acted improperly and against Mr. Nakamura’s will and advice. However, knowing the law and how to properly establish pay raises is Mr. Nakamura’s job, and I believe Mr. Nakamura must be held personally responsible for accepting what appears to be an illegal pay raise. It would have been illegal to allow such a pay raise for a subordinate, but to allow an illegal pay raise to personally benefit him brings up serious ethical implications.
By law, a pay raise for a department head in 2009 required a recommendation from the appointing body. The Clerk’s appointing body is the County Council. There is no record, to my knowledge, of a council recommendation of this pay raise. A vote, taken at a properly noticed meeting is the only way the Council can make a decision. Others may have been responsible for this error, but I believe Mr. Nakamura also bears responsibility, which he failed to exercise with sound discretion in accepting the pay raise. Sound discretion is a fundamental criteria of performance. When Mr. Nakamura took office, he took an oath to uphold the law — this is a fundamental duty of the County Clerk.
I hate to raise these issues, but because other council members want to proceed without allowing other avenues of due diligence prior to a vote, the matter is before the Council today, and I must exercise my vote to the best of my ability and to my best understanding of my duty and responsibility as a Councilmember.
(An executive search with an interim appointment would allow us all the necessary time, as well as the help of an objective third party, to do due diligence, but there does not appear to be the votes to approve such a process. An executive search is well worth the money. It saves taxpayers money in the long run by selecting managers who know how to provide cost-effective operations, avoid lawsuits and take proactive action. The County Council set a precedent by appropriating $50,000 for the executive search that resulted in the appointment of Police Chief Darryl Perry who, incidentally, was bypassed in the prior chief selection process that did not use an executive search.)
