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Innocent until proven guilty

In the hue and cry over Councilman Arthur Brun’s difficulties, there have been voices insisting he be removed from office, even before he is convicted of anything.

The Kaua‘i County Charter, which is the governing document for the structure of county government, provides for the removal of elected public officials.

It says that conviction of a felony results in immediate forfeiture of office. Just being charged with crimes is not sufficient, and in my view it should not be. There needs to be a court determination that you have actually done what you are charged with.

How do other legislative bodies deal with this? Letʻs look at the governing documents.

The Congress of the United States has the authority under the U.S. Constitution to expel members of either house for any reason, by a two-thirds vote of that house (Article 1, Section 5.) While there is no guidance on reasons for removal, the Congressional Research Service says it has generally been for disloyalty to the nation, or for “conviction of a criminal statutory offense which involved abuse of one’s official position.”

The Hawai‘i State Legislature (Article III, Section 12) provides the Legislature with similar expulsion power, requiring a two-thirds vote. The state Constitution cites as reasons for punishing members, “misconduct, disorderly behavior or neglect of duty of any member.”

The Kaua‘i County Charter does not give the council itself removal power. It says councilmembers forfeit their office if they move out of the county or if they are convicted of a felony.

In some ways, the Kaua‘i Charter presents a tougher standard than either the state or federal governments. No vote of the council is required for removal on conviction of a felony. A councilmember is automatically removed on felony conviction. Any felony conviction.

But before conviction? The suggestion that a sitting government officials should be removed before conviction is problematic. The presumption of innocence and the right to defend oneself at trial are fundamental to our form of government.

The council has the authority to “judge the qualifications of its members,” but that charter language is vague about what it can do about a councilman whose qualifications are determined inadequate. The council certainly has the authority to strip a member of any leadership position and committee assignments, but it does not appear to have the power to remove councilmembers from the seats to which the voters have elected them.

The language of the charter could certainly be changed, but any charter amendment, whether initiated by petition, by the County Council or by the Charter Review Commission, but still would need approval by the voters in the November General Election — the same election that will seat a new County Council.

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Jan TenBruggencate is a Lihu‘e resident. This is his personal view.
Source: The Garden Island

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