Kauaʻi Bill 2491 vetoed

After taking the maximum time allowed the mayor vetoed Kauaʻi Bill 2491 (PDF link) yesterday in a move that surprised many, releasing a 76 page report detailing the decision (PDF link) containing the mayorʻs statement for release, the transmittal from the council to the mayor upon passage of the bill, and the until now secret legal opinion on the bill from the county attorneyʻs office.

“I have always said I agree with the intent of this bill to provide for pesticide use disclosure, create meaningful buffer zones and conduct a study on the health and environmental issues relating to pesticide use on Kaua‘i,” stated the Mayor. “However, I believe strongly that this bill is legally flawed. That being the case, I had no choice but to veto.”

I am hardly qualified to assess the legal opinion but regardless of those details what I would very much like to understand is how the process broke down here. Specifically, since the bill was introduced four months ago (June 26) and from the beginning was clearly a major public issue for the county, why didn't the county attorney, the mayor, and the council work together to draft something that met the technical legal requirements of the intended goals which the mayor says he supports?

The council worked with attorneys as well as the mayor throughout the process so the possibilities seem to be:

1. The council was never advised how they might fix the supposed legal flaws.
2. The council was advised but refused to accept suggested changes for legal purposes.
3. It is impossible to achieve the goals of Bill 2491 at the county level.

The county attorney opinion consists of four sections - an Introduction, Legal Issues, Specific Challenges, and a short Conclusion. Why is there no Suggested Amendments section? Just as one example, there is an issue related to the bill assigning enforcement responsibility to the Office of Economic Development: surely the opinion could have recommended to the council a more suitable department to handle implementation.

The legal opinion released is stamped as confidential: what are the consequences of publicizing the opinion?

1. Does this effectively subvert the council overriding the veto because now the county is in a much compromised position should it enact the bill, having disclosed all the potential flaws and anticipated legal attacks it fears?
2. Did the mayor unilaterally leak the confidential document to support his veto, or consult with if not get approval of the county attorney and/or county council (who had already decided against disclosure)?

The mayor concludes: “I would like to state that, despite this veto, I absolutely believe that the spirit of 2491 will be implemented on Kauai in accordance with applicable federal, state and county laws and regulations,” he wrote to the council. “It would be my preference to achieve the goal through cooperation and understanding, instead of through adversarial legal action.” Isn't a veto adversarial?

See Kauaʻi Eclectic blog coverage of the veto and the response for more details.

Given the mayor's statement of agreement with intent I have to conclude that either county government is either incompetent to write legislation, so encumbered by state and federal law as to be completely disempowered, or both. Kauaʻi seems to have a record for bungling popularly supported initiatives and getting into legal hot water, possibly causing more damage than good. Another example would be management of vacation rentals (Transient Vacation Rental) as documented in the Abuse Chronicles also at Kauaʻi Eclectic which I believe has been through three iterations becoming increasingly dysfunctional.

I believe we have some good people on the council so is the problem that the system itself is broken, too many layers, too risk averse, with too much complexity?