Honorable Robert Bunda

President of the Senate

Twenty-First State Legislature

Regular Session of 2001

State of Hawaii

Sir:

Your Committees on Judiciary and Ways and Means, to which was referred S.B. No. 441 entitled:

beg leave to report as follows:

The purpose of this measure is to enable the Department of Hawaiian Home Lands (DHHL) to hire its own attorneys.

Your Committees received testimony in support of the measure from the Office of Hawaiian Affairs. Testimony in opposition was submitted by the Attorney General (AG). The DHHL provided comments on the measure.

Your Committees find that there are instances in which the DHHL's legal interests diverge from that of the State of Hawaii. In such instances, representation by the AG, whose overall purpose is to represent the State of Hawaii in legal matters, compromises the DHHL's and its beneficiaries' interests.

Your Committees believe that the DHHL should have the authority to hire its own attorney independent from that of those attorneys provided by the AG in order to ensure that the interests of the Department's beneficiaries are vigorously upheld.

Your Committees are particularly concerned about the possible setting of policy for the DHHL by the AG. At the hearing on this measure your Committees were made aware of a recent AG opinion that in effect set DHHL policy. An attorney hired by the DHHL might not have gone so far so as to set policy.

Your Committees note that while the DHHL complimented the AG on the quality of its services, it expressed a preference that the AG physically locate its deputies assigned to the DHHL in the DHHL offices, in the interests of promoting consultation and decision making.

It is not the intent of your Committees that the DHHL seek outside counsel in all circumstances, considering the expense involved although legal representation (including the AG) is paid from a special DHHL fund rather than from the State's general fund. The DHHL should use its discretion to hire outside counsel, generally in instances of a clear conflict of interest, matters possibly affecting policy, or litigation.

As affirmed by the records of votes of the members of your Committees on Judiciary and Ways and Means that are attached to this report, your Committees are in accord with the intent and purpose of S.B. No. 441 and recommend that it pass Third Reading.