Monday, August 09, 2010
Deja vu—Sen. Bobby Bunda may not have resigned prior to filing for Lt. Governor race
by Larry Geller
In a letter to Senate President Colleen Hanabusa dated July 14, 2010, Senator Robert Bunda expressed his intent to resign his senate seat prior to his run for Lieutenant Governor. His letter begins:
I am writing to inform you of my intent to resign my seat in the State Senate on July 16, 2010 and to file for ·the office of Lieutenant Governor.
This was the only letter sent to me in response to a public record request for letters to the Senate Clerk and to the Office of Elections.
In contrast, Senator Gary Hooser’s letter, dated July 16, /2010, is an explicit statement of resignation:
As required by law in order to file and run for election to the Office of Lieutenant Governor, I hereby submit my resignation from the Hawaii State Senate effective immediately.
Both letters are reproduced below and can be downloaded.
Deja vu? Two years ago, on August 1, 2008, the Honolulu City Clerk ruled that Kirk Caldwell did not formally withdraw from his state House seat before filing for the City Council election. These things do matter. [Update: see comments. Caldwell similarly filed an intent to witdraw, according to the newspaper report.]
If in fact Bunda did not resign from his District 22 Senate seat, then it follows that he still holds it. In that case, his seat would not be contested in a special election, since it is not vacant. Currently, candidates for that seat are:
Charles A. Aki (R)
Donovan Dela Cruz (D)
Gerald T. Hagino (D)
Michael T. Lyons (D)
Michael Y. Magaoay (D)
Dela Cruz, it should be noted, gave up his run for Honolulu Mayor and switched to the Senate race. Magaoay has presumably resigned from his House seat. If so, both would be out of public office.
The Hawaii State Constitution, article 2, section 7, requires that in order to be "eligible as a candidate" for another state office, a state elected official must resign:
Any elected public officer shall resign from that office before being eligible as a candidate for another public office, if the term of the office sought begins before the end of the term of the office held.
Senator Bunda ran uncontested in 2008. There are two more years remaining in his term of office, and so the Constitution requires that he resign to be eligible for another office.
The letters on file with the Senate Clerk and the Office of Elections are posted below. If your browser doesn’t properly display them, try downloading a copy. Clicking on “Fullscreen” at the top will make them easier to read.
Bunda's choice of the phrase "intent tp resign" is a rather thin reed to support a "Bunda is not resigned" claim. Hooser is more explicit, but I would judge Bunda's letter sufficient.
Was/is Bunda still being paid his Senate salary after July 16? Is Bunda still working out of a Senate office? Is Bunda still attending Senate hearings and special sessions as a member of the Senate? Was Bunda's name called during the roll call votes at special session?
I reckon the answer to all those questions is "no." However, if I am wrong on any of those counts, then maybe you're on to something.
This is why we have lawyers. I'm just presenting some evidence.
But suppose someone sends a letter to a grocery store saying, "On July 16 I intend to rob your store." July 16 comes and goes and there is no robbery. Should the person be arrested for robbing the store?
But bringing the issue back to resignations, Kirk Caldwell also filed an "intent to resign" but it didn't fly:
Caldwell's campaign verbally informed the City Clerk's Office on July 22 of his intent to withdraw from the House race, De Costa said in her ruling. The Clerk's Office informed the state elections office of the withdrawal by phone and e-mail that day, and was told that the withdrawal was proper and Caldwell could file for the City Council seat.
Caldwell submitted his formal written withdrawal from his House race on July 23.
The next day, the Elections Office gave formal notice to the state Democratic Party that Caldwell had withdrawn on July 23.
Based on that declaration by the Elections Office, De Costa said her office "reluctantly" found that Caldwell technically had not resigned on Tuesday and was in two races at once. [Star-Bulletin, Clerk disqualifies Caldwell from run for City Council, 8/2/2008]
This is NOT analogous to your "intent to rob the grocery store," though.
Bunda wrote that he intended to resign ... and (I presume, barring evidence to the contrary) Bunda executed his intention by not serving as a Senator after July 16.
This is not like the Caldwell situation, either. Resigning from office and resigning from a CAMPAIGN for office are "officiated" by two different authorities. It is NOT up to the City Clerk to decide when someone is resigned from the Hawaii Senate. If the Senate Clerk says that Bunda's resignation was/is valid, then by what authority could the City Clerk overrule her?
Another difference form Caldwell's situation is that Bunda would not be a candidate in two races at once.
Bunda says his intent to resign on July 16th two days after the letter. Bunda would have had to do some other things on July 16th to resign. Did he?
Apparently not, or at least according to the Senate Clerk and the Office of Elections. The Office of Elections confirmed to me in an email that they have no more than what they sent me (the letter posted in the article).
The Senate Clerk keeps the official Senate records, so it is safe to go by that, I think.
I posted one of the other letters I received (from Sen. Hooser) to illustrate the difference.
If Bunda did not do something further on July 16th, to affect a resignation, then he is still a Hawaii Senator and can no longer be in the Lt. Governor's election. I'm assuming he must have done something formal on July 16th to consumate the resignation.
Larry, have you asked (or will you ask) the Senate Clerk directly if Bunda is resigned, if his office is vacated, if he is being paid, etc?
Doug, I was told his office has been cleaned out, he is not being paid, but the Senate Clerk does not have a letter saying "I resign", just the one I posted. I asked for all letters and sent a followup to ask if that was it. I don't think the Senate Clerk has anything to do with pay or offices, just keeping the documents.
There is a Senate Accounting office that handles payroll. Try ask them.
Anyway, does the Clerk consider Bunda "resigned" or not? If she says he is resigned, then I don't see how this goes anywhere. [shrug]
I mean, what's one more name on that too-crowded LG ballot, anyway? Heh. I reckon Brad (and maybe you?) support Hooser, but it's not as if Bunda's going to be winning over (m)any Hooser supporters...
I am a Hooser supporter. If I were to approach this matter simply in terms of whether it helps my favored LG candidate, Let me say quite clearly, I want Bobby Bunda to stay in the race as he is much more likely to draw votes from Norm Sakamoto than from Gary.
Having said that, I agree with Larry (and Brad) that Bunda's letter does not, in my view, constitute a resignation. I doubt anyone would take it to court, but I think Brad is correct. Unless Bunda followed this letter up with an explicit resignation, I could see a court saying he is disqualified from the LG race.
Given the timeline, and the resulting mess, I doubt it will happen.
Just as Calvin Say's residency problem will not result in his disqualification. At least with Bunda, it is an unintentional failure to comply with the law. Speaker Say has had plenty of time to come into compliance with the law, but has not done so, confident no one will call him on it.
It's perhaps a secondary issue--but if a letter comes in that isn't quite a resignation, couldn't someone have pointed it out to him? Not that anyone has an obigation to do that, of course. Skipping that, for a moment--didn't anyone involved in elections notice? If they did, they might have said, "but you need to resign first...".
So part one is that it looks like Bunda may not have resigned. Part two, if that is the case, then the system failed to take note of it, and it should have. Someplace. IMHO, of course.
I just don't see Bunda being disqualified. I'm sure he had the requisite number of signatures, paid the fee, filed on time, etc.
Furthermore, this situation is not like Caldwell's, i.e. a candidate working in concert with another politician in trying to slip under the wire at (or after) the last minute into an unopposed "contest" that he could have essentially "won" that very day. Bunda made it no secret that he intended to run for LG months ago. Bunda filed his papers and ceased serving as a Senator. There are many other candidates for LG. Denying Bunda a place on the ballot would be a strange, anti-democratic outcome, in my opinion. ...even though I would never vote for Bunda!
Are you three suggesting that if/when Bunda loses he will then step forward and say, "the joke's on you folks, I never resigned my Senate seat?" Get real.
I love how Bunda's letter is addressed to "The Colleen Hanabusa"! Did he intend "The Honorable Colleen Hanabusa" or some other dis/honorific? Seems like this letter is full of "intent" problems.
More seriously, you and Doug are throwing around words like "resign" and "withdraw" a tad too imprecisely. An elected offical whose term ends at the next election does not have to resign to run (according to an AG opinion that has held sway for some time). Thus, Norm Sakamoto remains a senator while he runs for LG because his term is up this fall. Similarly, Kirk Caldwell did not have to resign to run for City Council because his term, like every other mwember of the House expired that year (2008).
The problem there was that the law prohibits being a candidate for two offices at once. He had filed for reelection to his House seat but changed his mind once Ann Kobayashi jumped into the mayor's race. His withdrawal (NOT his resignation) did not precede (or was not effective prior to) his filing for City Council and that filing itself was defective (rquisite number of signature problems). He screwed up on both counts.
However, Bunda and Hooser were mid-term and were, thus, required to resign to run for LG.
Well, I will try to do better. Yes, Bunda and Hooser had to withdraw because they still have time on term, as you said. Hooser did withdraw.
Did you catch that now a challenge has been filed to Bunda's run for LG? So I guess this could get sorted out soon.