State Attorney General Mark Bennett has agreed, in principle, to appoint a special deputy to investigate any civil liability by the state, Kaua'i County or private landowners in the fatal breach of the Kaloko dam.

Bennett would select the deputy from a list recommended by the state Legislature and would potentially share information that his office has already gathered into the March 14 dam failure that killed seven people in Kilauea. The deputy would have a degree of autonomy to pursue a civil investigation but would still be under Bennett's overall direction. The deputy would report any findings to Bennett and the Legislature.

Bennett will continue to have exclusive control over any potential criminal investigation involving Kaloko, and his office would prosecute if any alleged crimes are discovered.

The agreement, reached between Bennett and state lawmakers over the past few days, represents concessions from both sides about how to properly investigate the tragedy. Lawmakers are expected to give initial approval to a resolution outlining the agreement this afternoon.

Several lawmakers, responding to people who lost family, friends or property to the flooding after the breach, had called for an independent probe because of the appearance of a conflict of interest for Bennett in investigating other state agencies. Some were also concerned that Bennett had worked at the same law firm as William McCorriston, the attorney for retired auto dealer Jimmy Pflueger, who owns property around Kaloko. McCorriston has said there should be an independent investigation because he believes Bennett has targeted Pflueger to "get the state off the hook."

CONFLICT DENIED

Bennett has said he does not have a conflict and that his office is capable of conducting a fair and thorough investigation. But he said yesterday he understands the perception among some about the appearance of a conflict and said a special deputy looking into the civil matters related to Kaloko could be good for the state.

"I want them to be independent, because I want them to come out with something that the public will have confidence in," Bennett told lawmakers at a conference committee hearing on the resolution.

Kaua'i lawmakers, who have been leading the calls for an independent probe, said they are satisfied with the agreement given the time constraints to act before the session ends in two weeks. Lawmakers had considered the creation of an independent counsel, modeled after the expired federal law that was used to investigate former President Clinton, but decided that it would take new legislation that would be difficult to pass quickly. They also suggested a new oversight panel that would have had more control over the special deputy and immediate access to any evidence the deputy uncovered, but Bennett resisted.

The resolution being drafted now would have state Senate and House leaders provide Bennett with a list of possible deputies who are qualified to lead an investigation and do not have any conflicts of interest with Kaloko or the state. The deputy, along with investigating Kaloko, will also likely be urged to recommend any changes to state laws or regulations that might prevent future dam failures.

"Basically, we're going to live with this," said state Sen. Gary Hooser, D-7th (Kaua'i, Ni'ihau), who had publicly asked Bennett to step aside. "We have to work within the confines of our legislative capacity."

MORE INVESTIGATIONS?

State Rep. Hermina Morita, D-14th (Kapa'a, Hanalei), said she knows many on Kaua'i were demanding a more independent probe and would be disappointed by the compromise. But she said she wanted to assure them that lawmakers could order another investigation next session if the special deputy does not work.

"If the Legislature is not satisfied, we can do our own investigation," Morita said.

Bennett, in prepared testimony to lawmakers, also wrote that the Legislature could form its own investigative committee on Kaloko that would have no ties to the attorney general's office. The committee, which would have subpoena power, could be similar to the panel that investigated state spending to comply with the Felix consent decree on special education.

Robert Wolaver and Michelle Carroll, who live in Kilauea, wrote lawmakers to say that any investigation that involves Bennett's office will appear tainted because of the alleged conflicts. "Something is dreadfully wrong with this situation and if not corrected those responsible for the deaths of seven innocent loved ones and millions of dollars in damages may not be brought to justice," they wrote.

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.