Friday, February 15, 2008

GOW MUCH IS THAT CRONY IN THE WINDOW?

HOW MUCH IS THAT CRONY IN THE WINDOW?: The cesspool of Kaua`i politics overflowed it’s honey wagon Thursday as the historically ethically-challenged Kaua`i Ethic Commission’s Chair Mark Hubbard admitted has violated the same County Charter provision he was asked to rule upon.

As reported today http://www.kauaiworld.com/articles/2008/02/15/news/news03.txt Hubbard, a long time honcho at missionary land-baron Grove Farm, admitted he routinely violates charter section 20.02D, which states in part that “no officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency.”

Former State Senator and now shill for the Board of Realtor’s Jonathan Chun is now sitting in the newly-perpetual Charter Commission even though he just single-handedly convinced his crony Councilwoman JoAnn Yukimura to sell us all down the river by allowing all the vacation rental currently in our residential neighborhood to stay there forever, despite state and county laws forbidding it.

Hubbard is a chartered member of the new generation of the old boys and if this administration and council doesn’t protect their cronies, what exactly DO they do. Just the recorded and verified illegal ex-parte conversations that have gone on between Mayor Bryan Baptiste or Council Chair Kaipo Asing and the EC in the Ching/Furtado/Lum/KPD case could fill a blogpage. When you add the administration’s staff and other councilmembers, were they to be all to be documented this cheap Chihuahua would have to pay extra to publish all of those.

Hubbard’s pooh-poohing of the law is just par for the Municipal Course. He fits in well with the very un-ethical culture of the county. “why we’ve been doing it that way since the 50’s” culture that has to be dragged kicking and screaming into a world of open governance.

He’s just the latest and greatest EC chair taking over for Sandy Helmer whose legendary antics were recently documented.
Despite three requests in the last four years, the OIP has refused to take complaints about simply the agendas of the EC, which don’t list subjects much less specifics of any case. In practice the public has not even been allowed into their meetings until that became too absurd even for Kaua`i recently.

Community watchdogs and legendary “nitpickers” Glenn Mickens, Ken Taylor Horace Stoessel, Walter Davis and Ed Coll have been challenging the Commission brining up the blatant violation by Chun who actual asked for a ruling.

Both Mickens and Stoessel vehemently challenged that Friday as well as elements of the TGI story (look for them under “comments”). Hubbard and Food Bank Leader Judy Lenthall who often has to lobby for money from governmental boards commissions or agencies

Lenthall’s work is that of our local Mother Teresa and Chun may be the current devil himself on Kaua`i but that isn’t the point. Our island’s constitution document has a great prohibition for just the reason it’s there- to keep a small clique of wealthy landowners from being on the “peoples’ boards and commissions- the place where normal every day people serve to keep us in touch with our community.

In theory. Hubbard is only the latest to find himself finding out that the way things worked can’t still be the way things work now.

Asing- or “Uncle Chair”, as newbie haole councilmember Tim Bynum has been heard to call him during session- has mastered the “I am the law” art that passes for governance on Kaua`i and hizzonah does too. The administration has made hide-the-roll-of-documents into a fun game where no one responds unless you sue them.. and then they wonder why their legal bills are so high.

And that was how Jonathan Chun extorted them into allowing vacation rentals in residential neighborhoods.


Oh, Chun is a former deputy County Attorney, under Yukimura. Can you say revolving door? Same faces, new jobs. Same money- yours

And you wonder why that in fact is EXACTLY what the charter means.

99.9% of the people are eligible to serve on boards and commissions on this island. But they are filled by the same people whether in business or government... this week.

But don’t worry there’s no crisis... nothing to see here. The Kaua`i County Attorney- or “Judge” as Asing calls him- will instruct his minions to say whatever they have to say but say it in secret.

And you know what? the real judge just let them “intertwine”
http://www.kauaiworld.com/articles/2008/02/11/news/news02.txt
anything they want to say surreptitiously. If Mel Rapozo says “fire that bastard Kimo and I hate KC Lum” all in one sentence, why, how can you possibly sort that out?

And she just walked along alone
her guilt so well concealed,
and muttered underneath her breath,
nothing is revealed.

10 comments:

by Andy Parx said...

CORRECTIONS AND CLARIFICATIONS

I hope The Garden Island will print the following corrections and clarifications to the 2/15/08 front page story, “Ethics Chair: Chun ‘left in limbo’.”

The story incorrectly identified me as an attorney. I may add that I do not accept the widely held view that only attorneys can construct reasonable and/or legally sound interpretations of the charter. In fact, I know of three “after-the-fact” situations (such as the Chun case involves) in which the opinion issued by the county attorney’s office was seriously flawed.

The Ethics Board cannot determine whether Jonathan Chun should relinquish his seat on the Charter Commission. It can only tell him whether or not he has violated the charter by appearing in behalf of private interests before the planning department and the council. If it determines that he has violated charter section 20.02D, which prohibits such activity by any county officer, the Board can file impeachment charges against him.

If Chun is “in limbo” it is by his own choice, since he recused himself from the Charter Commission. Moreover, the length of time it will take the Ethics Board to issue an advisory opinion will be much shorter than the time it took Chun to decide he needed an advisory opinion. He was appointed to the commission almost a year ago and acted as chair of the commission for four months while appearing in behalf of private interests on multiple occasions before asking for the Board’s opinion. By contrast, in nearly all cases those seeking advisory opinions ask for them before engaging in questionable activity.

The issue is not about conflict of interest and I, for one, have not alleged that Chun’s activities resulted in a conflict of interest. The issue is whether he has violated the charter.

The Board’s answer to Chun must have a statutory basis. If the charter provides that basis, as I believe it does, it is neither necessary nor permissible to invoke county ordinances (section 3-1.7 of the county code), as the basis for answering Chun. The code is irrelevant in any event because it deals with conflicts of interest and is intended to amplify the charter provision (section 20.01) that establishes “a high standard of integrity and morality in government service.” The code cannot be used to provide exceptions to the specific prohibition in charter section 20.02D.

By the same token, the Board cannot cite as precedents cases in which its decision was based on the conflict of interest section of the county code.

Horace Stoessel

by Andy Parx said...

To The Forum:(from Glenn Mickens

First, I want to compliment the Garden Island for covering the Board Of Ethics meeting---their article of 2/15 "Ethics Chair: Chun left in limbo" It is refreshing to know that our paper is keeping the public informed as the to real happenings of our government in action or inaction, take your pick.

The comments by Ethics Board members as reported in this article need further examination.

The article reported on an Ethics Board hearing held to consider the application of County Charter Section 20.02 D which reads: “No officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency” to a Charter Review Commission member who is an attorney representing clients before county bodies.

The Ethics Board has the duty of enforcing the Charter provisions. But one Board member accused the charter of being almost “ the level of absurdity”. That does not seem to be a responsible attitude for someone with her duties.

Despite testimony by members of the public that the terms of the Charter provision were clear and unambiguous, Ethics Board chair Mark Hubbard claimed that “room for interpretation” is needed. He ignores the legal mandate that laws are to be accepted as written unless they are ambiguous or incomplete. His apparent problem arises from a view that earlier decisions by the Ethics Board on conflict of interest questions should limit the plain language of the charter provision. But the question involved is not conflict of interest – it is applying Section 20.02 D. Mr. Hubbard also seems confused by saying he finds the word “represents” in the law although it is not and concerns about his earlier conduct.

The Board is seeking an opinion from the County Attorney’s office on the matter. Will the public be left in the dark as to its content or will the Board act responsibly and release it? We will wait and see.

by Andy Parx said...

Horrace Stoessel's prior written testimony

Points to be discussed by Horace Stoessel with the Board of Ethics at their 2/14/08 meeting in connection with Jonathan Chun’s request for an advisory opinion (RAO 08-002):



The Board’s answer to Jonathan Chun’s request for an advisory opinion must be based on statutory authority.


The Board’s answer must be based on charter section 20.02D for the following reasons:


a. As the county’s governing document, the charter is the starting point for handling all county statutory issues.



b. Article 20 in the charter establishes the county’s code of ethics and is accordingly the starting point for handling all ethical issues.



c. Section 20.02D provides a clear and unambiguous answer to Mr. Chun’s request for an advisory opinion. Note: the wording of Mr. Chun’s request closely parallels the wording of 20.02D.



d. Section 20.02D, like other subsections of section 20.02, expresses an unqualified prohibition. No ordinance, rule, precedent, practice, or “interpretation” can be used to limit or establish exceptions to the plain meaning of the prohibition.



The Board’s answer cannot be based on county code section 3-1.7 for the following reasons:


The county code is supplemental to the charter. Nothing in the code can validly contradict or supersede the charter.


Section 3-1.7 offers specific examples of how to apply the general provision set forth in charter section 20.01. It cannot be used to contravene, modify, or “soften” the unqualified prohibition set forth in charter section 20.02D.


Section 3-1.7 deals with conflicts of interest. Mr. Chun’s request for an advisory opinion is not an inquiry about conflict of interest (and I am not aware that his previous violations of 20.02D represent a conflict of interest).


It follows that in answering Mr. Chun the Board cannot cite as precedents previous decisions of the Board based on section 3-1.7.


4. Conclusion based on the foregoing evidence: The Board can fulfill its duty only by informing Mr. Chun that the activity described in his request for an advisory opinion is prohibited by charter section 20.02D. To advise otherwise would place the Board in jeopardy of violating its own charter mandate to enforce the county’s code of ethics.

Manawai said...

Am I missing something here? You say that the "charter section 20.02D, which states in part that “no officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency.” Okay...but commission memebers are not officers or employees of the County. They are unpaid volunteers. correct? So the prohibition does NOT apply to them.

Andy Parx said...

Board and commission members are most definately- by defination and according to both OIP and Kaua`i County Attorney opinions- "officers" of the County.

They are even "sworn in" before they are seated. That's why they are subject to Ethics Commission control as witnessed during the Michael Ching Witch hunt.

Charley Foster said...

My question mirrors Manawai's assertion, though mine is more in the form of a question than an assertion: Are Charter Review Commission members officers/employees? The whole issue would seem to hinge on it. What OIP and County Attorney opinions say so?

Andy Parx said...

I’d have to root around for the exact OIP and KCA opinions but it came up here as to applicability for rules on personnel privacy rights for board and commission member and the public availability of their application forms. Kusaka’s CA Hartwell Blake had tried to have it both ways but the OIP not only treats board and commissioners as officer- which a plain reading of the Charter would seem to indicate (admittedly never a sure thing on Kaua`i)- but apparently as employees (in other matters and wordings of law and ad rules) even if they are unpaid.

I believe the original OIP opinion dates back to the mid 90’s and relates to neighborhood boards on O`ahu. but OIP opinions, though on-line, are difficult to search (and “advisories” are not published, only official opinions) and KCA opinions are unavailable anywhere to anyone unless you’re lucky enough to have filched a hard copy on a day they were distributing them (my copy of Hartewell’s is probably in a box of paper somewhere).

At any rate I don’t think anyone in county government is arguing that board and commission members are not subject to ethics provisions in the charter in either intent or practice- otherwise Mike Ching would still be a police commissioner and KC Lum would be Chief.

Andy Parx said...

This should clear it up for ya Charley:

ARTICLE XXIII
GENERAL PROVISIONS
Section 23.01. Definitions.
D. The term "officer" shall include the following:
2) Any person appointed as administrative head of any agency of the county or as a member of any board or commission.
.

Andy Parx said...

And finally,
From the Kaua`i County Ethics Guide

III . Who must follow the Kaua`i County Ethics Code ?
Generally, the ethics regulations apply to all elected or appointed officers and most
appointed or civil service employees. This includes full time, part time or contract
employees and members of boards or commissions, whether they are paid or volunteers.

Charley Foster said...

That DOES clear it up. Thank you very much. I'm satisfied. Clearly the Charter section applies in Chun's case. I'm with you, then. The Charter seems pretty clear on its face. I don't buy these arguments that it somehow results in "absurd" consequences.