Woman wearing glasses
Maui County Council Chairperson Alice Lee. Photo courtesy County of Maui

Maui County Council Chairperson Alice Lee is trying to secure a meeting with Mayor Richard Bissen to discuss potential changes to his Third Emergency Proclamation, Lee said Friday night. The changes would involve increasing consultation with the Council on matters involving Lāhainā as well as returning certain appropriations powers to the body, Lee said.

At least one attorney who works for the Office of Council Services, which advises the County Council, has also raised questions about the constitutionality of Bissen’s Third Proclamation, Maui Times has learned.

Bissen issued the Third Proclamation on Aug. 15, a week after wildfires began burning Upcountry, Kīhei and in Lāhainā, the latter of which utterly devastated the town, killing at least 115 people and displacing thousands of residents. More than two weeks after the fire, hundreds of people are still unaccounted for.

The Lāhainā fire damaged or destroyed more than 2,200 structures, 86% of them residential. It also completely destroyed the town’s historic district.

The Third Proclamation, which is in effect for 60 days, granted the mayor considerably more powers than his first two. Most notably, this included the power to “suspend any County law that impedes or tends to impede, or that may be detrimental to, the expeditious and efficient execution of, or conflict with, emergency functions.”

The Third Proclamation suspended provisions in both the Maui County Code and the Maui County Charter, including a provision that granted the County Council the ability to pass emergency appropriations—a serious curtailing of the body’s role in budget-making.

The portion of the Third Proclamation that suspends charter provisions is possibly unconstitutional, according to an Aug. 16 memo from the Office of Council Services that was obtained by Maui Times.

The memo, written one day after Bissen issued the proclamation by Richard E. Mitchell, an attorney with the Office of Council Services, states that the Mayor’s power to suspend portions of the county charter “is qualified under the Constitution.”

In his memo, Mitchell also noted that given “that the Council’s budgeting role is fundamental to the County’s structure and organization, it can be argued the Mayor’s suspension of the Council’s power to pass emergency appropriations appears to be in violation of the Constitution’s superior clause.”

Mitchell added in his memo that he had contacted the Corporation Counsel’s office to discuss his concerns. Mitchell did not respond to an inquiry requesting comment. The Corporation Counsel’s office and a spokesperson for Mayor Bissen also did not respond to requests for comment.

Consultations between the County Council, a legislative body that directly represents the people of Maui County, and the Mayor, who is an administrator that runs county departments and operations, have also curtailed following the wildfires that began burning around Maui, Lee said.

For instance, the council did know Bissen was issuing the Third Proclamation until it happened, Lee said. Nor was the council aware of Bissen’s decision to sue Hawaiian Electric on Aug. 24, alleging that the utility was negligent and responsible for starting the Aug. 8 fires, Lee said.

“The proclamation said we didn’t have to be consulted,” Lee said.

Lee said that she met with Mayor Bissen on Aug. 18 to discuss her concerns. “It was a positive, cordial meeting,” Lee said. This wasn’t surprising, given that the County Council hasn’t really objected to anything he’s done during his eight months as mayor, Lee added.

Bissen said he issued the emergency proclamations because of the need to move quickly with recovery operations, Lee said. “His concern was timing,” Lee added, saying she understood that it was not his intent to purposely exclude the council from participating in Lāhainā’s recovery.

Lee conceded that the council’s deliberations, with its need for properly noticed agendas and public testimony, could take “quite long,” she said. That said, the council also had emergency powers outlined in the county charter, though they were not as quick as the mayor’s, Lee said.

Lee said Bissen told her that he was open to making “adjustments” to the Third Proclamation, she said.

“We would like to have input, if not approval, of what is coming down the pike,” Lee said.

Lee said she is trying to set up another meeting with Bissen to discuss the Third Proclamation, but hasn’t yet been successful. “He’s pulled in so many directions,” Lee said.

Lee added that she also doesn’t like the idea of Bissen extending the Third Proclamation another 60 days after it expires in October. During the COVID-19 pandemic, then-Mayor Mike Victorino also issued an emergency proclamation, and that was extended every 60 days for a long time, Lee said.

Victorino finally ended the COVID-19 emergency proclamation two years after he first issued it.

“We feel extending the proclamation another 60 days is not necessary and I’d like to talk to [Mayor Bissen] about that,” Lee said.

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