HOUSE OF REPRESENTATIVES

H.C.R. NO.

192

TWENTY-THIRD LEGISLATURE, 2006

H.D. 1

STATE OF HAWAII

S.D. 1

   


HOUSE CONCURRENT

RESOLUTION

 

REQUESTING THE ATTORNEY GENERAL TO APPOINT A SPECIAL DEPUTY ATTORNEY GENERAL TO INDEPENDENTLY AND IMPARTIALLY INVESTIGATE THE KALOKO RESERVOIR DAM COLLAPSE.

 

WHEREAS, the Kaloko reservoir dam breach on March 14, 2006, on the island of Kauai, resulted in the loss of seven lives, massive flooding, and extensive property damage; and

WHEREAS, the people of Hawaii and, more specifically, the residents of Kilauea, Kauai, deserve and expect a complete and thorough investigation into the facts and circumstances that led to the tragic events of the Kaloko reservoir dam breach; and

WHEREAS, the Department of the Attorney General, immediately after the incident, launched an investigation related to the Kaloko reservoir dam failure and hired consultants and experts to collect information and evidence and to review the engineering and legal issues related to the incident; and

WHEREAS, in the aftermath of this tragic event, there have been numerous media and citizen reports making claims and accusations about both the acts and omissions of 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 failure; and

WHEREAS, whether real or perceived, the State's ability to investigate the incident may appear to be compromised by these claims and accusations which jeopardize the credibility of such a thorough investigation; and

WHEREAS, in view of the fact that the Kaloko reservoir was privately owned and the State of Hawaii was responsible for regulating the dam, there is a question as to who may be held liable for the breach; and

WHEREAS, the State is preparing for possible litigation, as evidenced by the emergency appropriations submitted by the Governor in House Bill No. 970, House Draft 1, Senate Draft 1; and

WHEREAS, House Bill No. 970, House Draft 1, Senate Draft 1, currently provides an appropriation to the Attorney General to, among other things, "conduct an independent investigation regarding reservoir failures"; and

WHEREAS, 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; and

WHEREAS, when dealing with the potential legal issues that may ensue over the Kaloko reservoir dam breach, the Attorney General may find itself in the position of not only prosecuting or suing a state agency, but defending it as well; and

WHEREAS, the investigation of the Kaloko reservoir dam breach, conclusions about its cause, and possible subsequent legal actions to place responsibility for it should not be jeopardized or mired in conflict of interest charges; and

WHEREAS, the Legislature believes that invoking a process to select an independent counsel to investigate the Kaloko reservoir dam breach similar to how the United States Office of the Independent Counsel is selected would ameliorate a potential conflict of interest of the Attorney General; and

WHEREAS, the United States Office of the Independent Counsel is an independent prosecutor distinct from the Attorney General of the United States Department of Justice that provided reports to the United States Congress under Title 28 of the United States Code, Section 595; and

WHEREAS, in 1978, the United States Congress determined to curb the powers of the United States President and other senior executive branch officials due in part to the Watergate scandal and related events such as the "Saturday Night Massacre"; and

WHEREAS, in response to these scandals, the United States Congress drafted the Ethics In Government Act, creating a special prosecutor (later changed to the independent counsel) position, which could be used by Congress or the Attorney General to investigate individuals holding or formerly holding certain high positions in the federal government and in national Presidential election campaign organizations; and

WHEREAS, the special prosecutor/independent counsel, who was appointed by a special panel of the United States Court of Appeals for the District of Columbia, could investigate allegations of any misconduct, with an unlimited budget and no deadline, and could be dismissed by only the Attorney General or a panel of three federal judges; and

WHEREAS, 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; and

WHEREAS, under the Independent Counsel Reauthorization Act of 1994, United States Attorney General Janet Reno had Donald C. Smaltz appointed as an Independent Counsel by the United States Court of Appeals for the District of Columbia on September 9, 1994, to "investigate to the maximum extent authorized by law" whether the United States Department of Agriculture Secretary Mike Espy "committed a violation of any federal criminal law . . . relating in any way to the acceptance of gifts by him from organizations or individuals with business pending before the Department of Agriculture."; and

WHEREAS, Independent Counsel Smaltz was also given jurisdiction to investigate "other allegations or evidence of violations of any federal criminal law by organizations or individuals developed during the course of the investigation of Secretary Espy and connected with or arising out of that investigation."; and

WHEREAS, the Legislature believes that utilizing a process that is similar to the federal process of appointing an independent counsel would be in the best interests of the State, the victims of the Kaloko reservoir dam breach, and the pursuit of justice; and

WHEREAS, however, there are two types of investigations that may be conducted, one being a criminal investigation and the other a civil investigation; and

WHEREAS, the Legislature believes that at this time, the investigation of any criminal charges should remain with the prosecutors and a civil investigation conducted by a special deputy attorney general is appropriate; and now, therefore,

BE IT RESOLVED by the House of Representatives of the Twenty-third Legislature of the State of Hawaii, Regular Session of 2006, the Senate concurring, that the Attorney General is requested to appoint, notwithstanding the special deputy attorney general process established under section 28-8(b), Hawaii Revised Statutes, a special deputy attorney general to conduct a civil but not a criminal investigation according to the following procedures:

(1) The Speaker of the House of Representatives and the Senate President are requested to convene a Special Deputy Attorney General Selection Committee to be composed of:

(A) The Speaker of the House of Representatives or the Speaker's designee, with no conflict of interest or appearance of a conflict of interest;

(B) The House Minority Leader or the Minority Leader's designee, with no conflict of interest or appearance of a conflict of interest;

(C) The President of the Senate or the President's designee, with no conflict of interest or appearance of a conflict of interest;

(D) The Senate Minority Leader or the Minority Leader's designee, with no conflict of interest or appearance of a conflict of interest;

(2) The Attorney General is requested to consult with the Special Deputy Attorney General Selection Committee when establishing the qualifications and duties of the special deputy attorney general who will be responsible for conducting a civil investigation of the Kaloko reservoir dam breach;

(3) The Special Deputy Attorney General Selection Committee, in consultation with the Attorney General, is requested to compile and submit a list of at least five well-qualified attorneys who are willing to serve, who are willing to accept reasonable compensation for their service, who have no conflict of interest and whose law firms have no conflict of interest, and who are not currently representing parties adverse to the State in litigation and whose law firms are not concurrently representing parties adverse to the State in litigation, and are recommended by the Special Deputy Attorney General Selection Committee for appointment by the Attorney General as the special deputy attorney general responsible for conducting a civil investigation of the Kaloko reservoir dam breach; and

(4) The Attorney General is requested to appoint the special deputy attorney general responsible for conducting a civil investigation of the Kaloko reservoir dam breach from the list of names recommended by the Special Deputy Attorney General Selection Committee; and

BE IT FURTHER RESOLVED, that, with regard to the Kaloko reservoir dam breach, the special deputy attorney general is requested to independently and with impartiality:

(1) Investigate the role and possible culpability of the State of Hawaii;

(2) Investigate the role and possible culpability of the County of Kauai;

(3) Investigate the role and possible culpability of the private landowners;

(4) Investigate the role and possible culpability of other yet to be identified parties;

(5) Recommend legislation or government actions that could help prevent another tragedy; and

(6) Make such other recommendations, as he or she believes appropriate;

BE IT FURTHER RESOLVED that the Attorney General is requested to ensure that the special deputy attorney general responsible for investigating the Kaloko reservoir dam breach possesses all the powers usually and customarily provided to a deputy attorney general under chapter 28, Hawaii Revised Statutes, and any other state law applicable to the inherent powers vested in a deputy attorney general;

BE IT FURTHER RESOLVED that the Attorney General is requested to report the findings of the special deputy attorney general responsible for conducting a civil investigation of the Kaloko reservoir dam breach to the Legislature 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; and

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Governor, the Attorney General, the Speaker of the House of Representatives, the President of the Senate, and the Mayor of the County of Kauai.

Report Title:

Kaloko Reservoir Dam Collapse; Investigation