STAND. COM. REP. NO. 3732

Honolulu, Hawaii

RE: H.C.R. No. 192

H.D. 1

S.D. 1

 

 

Honorable Robert Bunda

President of the Senate

Twenty-Third State Legislature

Regular Session of 2006

State of Hawaii

Sir:

Your Committee on Water, Land, and Agriculture, to which was referred H.C.R. No. 192, H.D. 1, entitled:

"HOUSE CONCURRENT RESOLUTION REQUESTING THE ATTORNEY GENERAL TO APPOINT A SPECIAL DEPUTY ATTORNEY GENERAL TO INDEPENDENTLY AND IMPARTIALLY INVESTIGATE THE KALOKO RESERVOIR DAM COLLAPSE,"

begs leave to report as follows:

The purpose of this measure is to request the Attorney General to appoint a special attorney general to independently and impartially investigate the Kaloko reservoir dam collapse.

Testimony in support of this measure was submitted by a Representative of the State House of Representatives; Sakai, Iwanaga, Sutton Law Group; and sixty-seven individuals. Comments were submitted by the Department of the Attorney General and one individual.

On March 14, 2006, the Kaloko reservoir dam breached on the island of Kauai resulting in the loss of seven lives, massive flooding, and extensive property damage. In the aftermath of this tragic event, there have been numerous media and citizen reports making claims and accusations about both the actions and inaction by the State, the county of Kauai, and the private landowners that may have caused, contributed to, or exacerbated the conditions leading to the Kaloko reservoir dam's failure.

Typically, the Attorney General, by law, is charged with the responsibilities of not only investigating and prosecuting criminal and civil actions on behalf of the citizens of the State, but also defending the State against such actions as well. Thus, there is a possibility that the Attorney General may find itself in the position of not only prosecuting or suing a state agency, but defending it as well.

At the federal level, Congress implemented a process of appointing an independent counsel, which could be used by Congress or the Attorney General to investigate individuals holding or formerly holding certain high positions within the federal government and in national Presidential election campaign organizations. As the United States President could not dismiss those investigating the executive branch, it was felt that the independence of the office would ensure impartiality of any reports presented to Congress.

Your Committee finds that after the Kaloko reservoir dam breached, this type of investigation appeared prudent and in the best interests of the State, the victims of the Kaloko reservoir dam breach, and the pursuit of justice. However, this type of action would require amendments to the current laws, a process that would have needed to be initiated in January or February 2006, before the dam failed. Based on these constraints, your Committee worked within the current laws to authorize an independent investigation of the Kaloko reservoir dam breach. Accordingly, this measure appoints a special deputy attorney general to independently and impartially investigate the Kaloko reservoir dam collapse.

After conferring with the Attorney General, your Committee amended this measure by:

(1) Clarifying that the special deputy attorney general conduct a civil but not a criminal investigation;

(2) Providing that the Special Deputy Attorney General Selection Committee be composed of:

(a) The Speaker of the House of Representatives or the Speaker's designee;

(b) The House Minority Leader or the Minority Leader's designee;

(c) The President of the Senate or the President's designee; and

(d) The Senate Minority Leader or the Minority Leader's designee;

(3) Providing that each of the committee members must not have any conflict of interest or appearance of a conflict of interest;

(4) Provide that the special deputy attorney general shall be appointed notwithstanding the special deputy attorney general process established under section 28-8(b), Hawaii Revised Statutes;

(5) Requesting the Attorney General to consult with the Special Deputy Attorney General Selection Committee when establishing the qualifications and duties of the appointee;

(6) Providing that the Special Deputy Attorney General Selection Committee, in consultation with the Attorney General, is requested to submit a list of at least five well-qualified attorneys;

(7) Providing that the Attorney General is requested to appoint the Special Deputy Attorney General;

(8) Requesting the Special Deputy Attorney General to recommend legislation or government actions that could help prevent another tragedy and make such other recommendations, as he or she believe appropriate;

(9) Providing that the Special Deputy Attorney General have all the powers usually and customarily provided to a deputy attorney general under chapter 28, Hawaii Revised Statutes;

    (10) Revising the deadline for the Attorney General to report the Special Deputy Attorney General's findings to not later than twenty days prior to the convening of the Regular Session of 2007 or as soon thereafter as the special deputy attorney general determines to be appropriate;

    (11) Requesting that a certified copy of the resolution be transmitted to the Speaker of the House of Representatives and the President of the Senate; and

    (12) Deleting the provision requesting that a certified copy of the resolution be transmitted to James Pflueger and the Mary N. Lucas Trust.

Your Committee has further amended this measure by:

(1) Clarifying that the Attorney General is charged, by law, with the responsibility of not only investigating and prosecuting criminal and civil actions on behalf of the citizens but defending the State against the same action as well;

(2) Detailing the background and history of the federal independent counsel appointment process and duties; and

(3) Making technical, nonsubstantive changes for clarity, consistency, and style.

As affirmed by the record of votes of the members of your Committee on Water, Land, and Agriculture that is attached to this report, your Committee concurs with the intent and purpose of H.C.R. No. 192, H.D. 1, as amended herein, and recommends its adoption in the form attached hereto as H.C.R. No. 192, H.D. 1, S.D. 1.

Respectfully submitted on behalf of the members of the Committee on Water, Land, and Agriculture,

____________________________

RUSSELL S. KOKUBUN, Chair