Maui Council set to vote on top legal appointments: Mimi Desjardins and Andrew Martin

Maui County Council members are set to vote today on two resolutions to confirm Mayor Richard Bissen’s appointments for the county’s top two lawyers — Mimi Desjardins as corporation counsel and Andrew Martin as prosecuting attorney.

If the Council adopts the resolutions, Desjardins would succeed Corporation Counsel Victoria Takayesu and move up from the No. 2 position as first deputy to corporation counsel. Martin will retain a job he has held since January 2021.

Today’s vote will be unprecedented because it will be the first time an outgoing Council chooses the county’s legal leadership for the new term beginning Jan. 2. The timing is the result of a voter-approved Maui County Charter amendment that established the Independent Nomination Board, designed to address the chronic problem of vacancies on boards and commissions.

However, because the Nomination Board itself lacked a quorum, the panel failed to provide the mayor with a list of vetted nominees for his consideration. When the board misses its deadline, the Charter allows the mayor to make his own appointment within 30 days, without consulting the board. That put the mayor’s deadline at Nov. 3. Bissen sent the notices to the Council on Oct. 26.

During a Thursday meeting of the Council’s Government Relations, Ethics and Transparency Committee, council members had an opportunity to question both nominees in advance of today’s vote. Committee Chair Kauanoe Batangan said he did not intend to take a vote because the resolutions were posted for the next day’s full Council meeting, and he did not anticipate a committee report before then.

Administration support for Desjardins

Bissen told the committee Desjardins brings three decades of legal experience in roles including service as a Family Court judge, private practice attorney, deputy corporation counsel and most recently first deputy corporation counsel.

Bissen said Desjardins “has earned my trust and confidence” through her knowledge of the law, integrity, professionalism and handling of difficult challenges after the 2023 wildfires. He said she helped the administration navigate “unprecedented legal complexities” in supporting Lahaina’s recovery.

Managing Director Josiah Nishita expressed strong support for Desjardins’ confirmation and acknowledged some community concerns about the timing of her and Martin’s appointments.

“It is a little unusual for a former, the current body, to nominate and approve the appointments of a future term,” he said. “But, you know, unfortunately, that is the guidance that’s in the Charter on the process that has to be followed.”

The Independent Nomination Board interviewed candidates but lost its quorum after a resignation and a recusal and never sent the mayor a list, he said.

Desjardins told the committee she has practiced law in Maui County for 37 years, beginning as a prosecutor and public defender, and has worked with four mayors.

Questions on the department

Council Chair Alice Lee asked Desjardins how the department can advise both the Council and the administration. Desjardins said she would represent “everyone in the county equally.” She said the department separates attorneys who help draft administration bills from those who advise the committee reviewing them, and that it focuses on legality rather than policy.

Council Member Gabe Johnson asked about staffing. Desjardins said the department has about 24 attorneys, including two vacancies in the counseling and drafting division, and that she plans to seek a new litigator in next year’s budget. She said she hopes Takayesu will serve as her first deputy, and that Takayesu has committed to staying through the wildfire litigation before she retires.

Council Member Tamara Paltin and Batangan pressed her on accountability for deputies who give incorrect advice on the Sunshine Law, workload distribution, mentoring and deputies who exceeded appropriations for special counsel. Desjardins said the department uses annual reviews and training, and plans to add contract language requiring special counsel to alert the department when retainers are 75% spent. She said overruns are not a recurring problem.

Asked how to avoid outgoing officials picking their successors in the future, Desjardins said the only fix is amending the Charter and that the public needs better education on the issue. She said she was surprised by the number of blank votes on this year’s ballot question on the Independent Nomination Board.

Desjardins addresses 2013 resignation as family judge

Council Member Tamara Paltin asked Desjardins whether there was anything she wanted to disclose or explain about her past “that may come out.”

Desjardins asked whether Paltin was referring to what happened while she was in the Judiciary in 2013. She said she had considered raising it in her opening remarks and decided instead to address it if asked. She said the matter also came up in 2017, when she was appointed a legislative attorney with the Office of Council Services.

She said that while on the bench, she made “a terrible judgment error” that cost her career as a judge.

“I didn’t wait for somebody to tell me that I had to leave,” Desjardins said. “I immediately recognized that what I had done was a terrible error. And I paid some very heavy consequences for that. And it took me many years of my own sort of self, beating myself up over this.”

Desjardins said the experience made her “absolutely a better lawyer” and taught her to resist outside pressure when giving legal advice, saying sometimes “you have to say no.” She said she had no disciplinary action against her before or after, in 37 years of practice. She did not describe what happened, and members did not press for details.

Batangan said he believes people can change and that those who have paid their debt should be allowed to move on. Council Vice Chair Yuki Lei Sugimura thanked Desjardins for addressing the matter, saying she had been asked to request an executive session on it. Lee said “no one’s perfect” and that what matters to her is the overall picture.

What the 2013 report said

According to a May 2013 Maui News report, Desjardins pleaded no contest to one count of tampering with a government record. The report said prosecutors alleged she signed probable cause paperwork listing a time of 1 p.m. when she had arrived at the Wailuku police station at 2:25 p.m., and that a detainee was held about seven hours longer than allowed. Prosecutors said she signed 10 such records.

Her attorney argued that police and prosecutors had held the detainee beyond the 48-hour limit, and he and other attorneys questioned why she was the only person prosecuted. Deputy Attorney General Christopher Young said the state’s investigation was complete and the person who could have been charged was charged.

She was ordered to pay $2,000 to the state’s general fund, required to perform 300 hours of community service and given a deferral that would keep a conviction off her record if she remained arrest- and conviction-free for one year.

Supreme Court suspension

The Hawaiʻi Supreme Court suspended Desjardins from practicing law for 120 days in an Aug. 21, 2014, order. Acting under its authority to discipline judges and oversee the practice of law, the court found she improperly altered 10 probable cause documents, conduct it described as involving “dishonesty and deceit.”

In mitigation, it noted she had a clean disciplinary record, immediately admitted she was wrong, cooperated with the investigation and expressed remorse.

The order said the chief justice placed her on paid administrative leave March 15, 2013. She resigned by letter April 16, effective May 1, then amended it to take effect April 23, the day the criminal complaint was filed. It also said a 2nd Circuit court dismissed the criminal case April 24, 2014, after she paid the fine and completed her community service.

Her statement to the committee that she had no disciplinary action against her before or after the 2013 incident appears to conflict with the order.

County response

Maui County spokesperson Laksmi Abraham said in an email to Maui Now that the Maui News report accurately reflects the circumstances of the 2013 matter. Desjardins completed the terms of her deferred plea, the case was dismissed and the matter was expunged from her record, Abraham said. Desjardins stands by her statements to the committee and her 2017 disclosure, and has nothing to add, Abraham said.

Abraham sent her statement before Maui Now asked about the Supreme Court’s suspension order. Maui Now emailed questions to Desjardins on Thursday about the 2013 matter and asked Abraham about the order Friday morning. A response is pending.

Public testimony

Lisa Darcy, founder of Share Your Mana, said she has reservations about Desjardins stemming from the original 2022 Safe Parking pilot program. She urged the Council to take seriously times when problems “could have been corrected and needed to be corrected and weren’t.”

Testifier Travis Liggit did not oppose Desjardins personally but raised concerns about the county’s position in a contested case over a wastewater permit, saying it could set a precedent weakening bacteria monitoring requirements.

Prosecutor appointment

Batangan asked Martin about his Oct. 13 statement disputing Maui Police Chief John Pelletier’s claims that Mayor Bissen was under criminal investigation, and about how he would keep the prosecuting attorney’s office independent.

“You were put in a very tricky political situation,” Batangan said.

Martin said the statement “wasn’t a political statement. It was a statement to set the record straight.” He said he believed the chief’s press conference days earlier violated professional standards for how law enforcement discusses investigations.

Martin said he thought “very long and hard” about whether to issue it. He said he knew a statement that was not true had been made publicly, and that a prosecutor’s ethical responsibility is “to do the right thing.” Had he stayed silent, he said, “I would have felt like a coward.”

On independence, Martin said that under the Charter, a confirmed prosecuting attorney can’t be removed unless both the mayor and the Council agree, and that this protection is where independence comes from. He said that once confirmed, he does not take direction on investigations from either the administration or the Council.

Martin said he is the only appointed county prosecutor in Hawaiʻi other than the state Attorney General, and that he believes the appointment system works best.

Paltin asked Martin about his plan for the county’s share of opioid settlement funds. She said the funds have been routed to the prosecuting attorney’s office so far, and that she wasn’t sure the mayor would keep doing that.

Martin said the settlement pays out over about 18 years and that the money isn’t restricted like grant funds, so the county has no deadline to spend it. He said the county’s balance is just under $1 million, and that he has not simply spent it on prosecutor purposes. Martin said he has proposed to the administration that the county seek community input on how to use the money and combine it with applications for state settlement funds, which he said is the most effective strategy.

In an opening statement, Bissen said Martin is an “exceptional attorney, a dedicated public servant, and most importantly, a person of tremendous integrity and character.”

“What I particularly respect about Andy is that he leads by example, despite the demands of overseeing a department of approximately 90 professionals,” said the mayor, a former prosecuting attorney and 2nd Circuit Court judge. “He continues to personally prosecute some of the most difficult and sensitive criminal cases, including those involving children sexual assaults and homicide. He understands that behind every case are real people, families and lives that are forever changed.”

Martin said his priorities include renovating the department’s 24 North Church Street offices, expanding diversion programs and holding a domestic violence symposium in the spring.

In the last six years leading the department, Martin said he’s most proud of seeing how deputy prosecuting attorneys have been recognized for the work they’ve been doing in setting standards for excellence and accountability.

Martin received broad support from deputy prosecutors.

Deputy Prosecuting Attorney Brandon Paredes said Martin is dedicated to victim-centered prosecution, to seek justice with aloha.

“These words are much more than a model,” Paredes said. “They embody the values that guide our work as prosecutors. They remind us that as we seek truth and justice, we must do so with aloha, with compassion, dignity, respect, and genuine concern for our victims, their families, and our community. Mr. Martin understands that behind every police report, every criminal charge, and every court proceeding, there are real people whose lives have been profoundly affected by crime.”

What’s next

The full Council takes up both resolutions today, with the meeting now underway with public testimony. If the Council does not act by Nov. 25, the nominations are deemed approved under the Charter.

For information on how to testify, visit www.mauicounty.us/testify.

Editor’s note: Maui Now reporter Brian Perry served as director of communications under former Mayor Michael Victorino from January 2019 to December 2022. As deputy corporation counsel, Desjardins assisted Perry in preparing Maui County responses to news media requests for public records under the Uniform Information Practices Act.