RUBBING THE SPOTS OFF THE DALAMATION

RUBBING THE SPOTS OFF THE DALAMATION: So what do you do when those vested with the ability to enforce ethics laws have the ethics of a weasel? What do you do when the laws they are charged with enforcing are subject to their questionable ethics?

Are we talking about the ethically challenged Dan Mollway and the way he as head of the State Ethics Commission shrugged off the apparent intentional lies in their illegal lack of reporting of lobbying expenditures by the Superferry that were once again reported by the AP today?

Nope- we’re back to the masters of the absurd, the Kaua`i board of ethics.

As we’ve reported one, two, three, four times in the past two months their idea is- and I am not making this up- since Kaua`i ethics laws are routinely widely and blatantly violated they should not have to enforce them especially since most of them are also violating the same laws.

And now, as if to purposely make their Henry VIII “I am the law” reasoning a bit more Kafkaesque, they want to change the Ethics law- and of course not enforce it in the mean time using any kind of absurd construction to excuse their essentially illegal behavior.

Section 20.02 of the Kaua`i Charter (page 43) clearly sets out what is and isn’t allowed. But the Kaua`i Board of Ethics (BOE) reasons that since they themselves are in violation there must be something wrong with the law, not their activities that violate it .

And therefore they shouldn’t enforce the laws, though they are clearly set up to be the determining body as to the interpretation of Section 20 that empowers them and defines their powers.

One of their claims is a new one on us. They want us to believe that the sentence that says “No officer or employee of the county shall... (u)se county property for other than public activity or purpose.” bans them from using the county golf course, even though the law specifically says “other than public activity or purpose” which playing golf clearly is.

Another is complaining that the law prohibits a county employee from taking home and appropriating “a paper clip”. Well, yes- as a matter of fact it does. And technically that would be stealing. but how does that make the law absurd, which is what they claim? Shall we make a list of how serious stealing must be to require enforcement? Seems this might be a subject for philosophy of criminology class and way above their pay grade.

We couldn’t possibly sum up the current state of Fellini-movie-like, intentionally self-serving, ridiculous behavior better than the monthly testimony from government watchdog Horace Stoessel who has persisted in his simple analysis and search for sanity.

We’re probably going to be asked to change the ethics law via a ballot this November if the ethically-challenged head of the Charter Commission, Jonathan Chun has his way. This apparent quid pro quo comes after the BOE cleared Chun of blatant ethics violations recently because that would have meant some of them were in violation of the same law.

Don’t fall for it.

First we present Stoessel’s testimony to the BOE for their meeting this Wednesday and then in a letter from him to the County Council begging them to put the matter on their agenda and intercede by upholding statements made by Chair Kaipo Asing made in 2006 regarding the need to enforce our ethics code.

Section 20.02 appears below the two documents for readers’ convenience.

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TO: Kaua'i County Board of Ethics
FROM: Horace Stoessel
SUBJECT: Testimonies
DATE: May 5, 2008

Ladies and Gentlemen:

In keeping with the board's protocol, I am submitting written testimonies and plan to appear in person at the May 8 meeting of the board.

With reference to agenda item IV b (the board's letter to the Charter Commission), in my opinion the board's request for clarifications is misleading and flawed. As to "clarifying" charter section 20.02D, the commission is proposing by one means or another to exempt board and commission members from the requirements of the section via charter amendment(s). The board, on the other hand, apparently thinks everyone should be exempted. To do so would not clarify the section but would effectively eliminate it from the Code of Ethics. In any case, both the commission and the board are talking about radically altering the section, not clarifying it.

The board's request to "clarify" 20.02F raises several questions. What is the origin of the request? Does it stem from a complaint the board has trouble resolving? What kind of clarification is the board looking for? If the board is seeking a charter amendment, why does the board not propose the amendment for the commission's consideration?

On its face, the request to clarify 20.02F looks like a request for someone else to do the work of the board. The application of a charter section to a particular set of circumstances is the board's main task with respect to all six subsections of 20.02. Because these subsections represent unconditional prohibitions, the board's task is to decide if any exception to a given prohibition is reasonable and ethically defensible--otherwise, the prohibition applies without exception.

I suggest that no charter amendment or rule can adequately provide a list of possible exceptions to an unconditional prohibition and thus relieve the board of its ethical decision-making task. I suggest further that exceptions to unconditional prohibitions should occur rarely and in accordance with recognized ethical guidelines. In that connection, has the board formulated a policy or set of guidelines to assist you in administering these unconditional prohibitions?

In my opinion, the most serious flaw in the letter is the statement that 20.02F "does not match the current practice." The board draws the conclusion that since the charter does not match current practice, the charter should be changed. This attitude displaces the authority of the charter with the authority of current practice and contradicts the fact that the board's responsibility is to administer the Code of Ethics, not to subordinate it to current practice.

The matter would be different if the board is prepared to show that current practice represents an ethical standard superior to 20.02F and therefore should be codified in place of 20.02F. As it is, the board merely cites a few far-fetched and questionable scenarios apparently designed to show that 20.02F is absurd and unenforceable, but mentions no cases in which it would apply and offers no definition of "current practice."

With respect to agenda item IV c (questions I sent to the board on April 21), I point out that a discussion of the questions with the public can occur on level ground only if the board is willing to make public Jonathan Chun's request for an advisory opinion and to explain and defend the statutory basis for your advisory opinion to Chun which you have so far kept secret.

Looking beyond my specific questions to the issue of policy and process, I find two questions. How can you administer the Code of Ethics if you do not understand the Code of Ethics? And, what training does the county provide to equip you to administer the Code of Ethics?

I continue to ask the council to call for a public accounting from the board primarily because I believe the board is not administering section 20.02 in a responsible and reasonable way and secondarily because I believe the board has not handled its interactions with the public responsibly. I will send you by separate e-mail a copy of my most recent letter.

In closing, I offer this personal note. For me, the starting point for a dialogue with government agencies is the statement in the Sunshine Law that in a democracy government agencies exist to aid the people in the formation and conduct of public policy. I feel that too often what I encounter with agencies is almost the opposite--a defensiveness rooted in a determination to avoid admitting a mistake at all costs and a retreat into authoritarianism and secrecy that forestalls democratic discussion and debate as well as improvements in government processes.

In my experience mistakes are almost always correctible, but they cannot be corrected if they are not first acknowledged. I feel that I am waiting for someone to acknowledge that mistakes have been made and to take appropriate corrective actions OR to offer convincing evidence that no mistakes have been made and no corrections are needed. I have not seen the board doing either.

Yours for responsible government,

Horace Stoessel

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TO: KAUA’I COUNTY COUNCIL CHAIRMAN KAIPO ASING
FROM: HORACE STOESSEL
SUBJECT: ACCOUNTABILITY
DATE: May 5, 2008

Dear Chairman Asing,

Please accept and docket this communication as a formal complaint.

You spoke as follows in the June 15, 2006 council meeting:

“This Council has worked tirelessly to keep an honest and open dialogue with the community trying to make the best, honest, and reasonable decisions for the general public. All of the every day actions of all government employees, volunteers, elected and appointed officials, and the others must be held accountable to the highest standards of ethics, integrity, and morality. Doing anything less will in my opinion certainly lead to chaos and certain collapse of the entire health, safety, and welfare of the County.”

I believe that action by the Council is imperative if the high standard you laid out is to be upheld. There is substantial evidence to indicate that the Board of Ethics is not administering the Code of Ethics in a responsible and reasonable way.

Specifically, the board’s activities call into question its ability and/or willingness to responsibly administer Section 20.02, which is the most stringent part of the code and exemplifies the stated purpose of the code “to establish a high standard of integrity and morality in government service.”

In addition to evidence I sent earlier to the Council I call attention to a letter the board sent to the Charter Commission on April 21 in which it advocates, first, formally rescinding Section 20.02D by exempting everyone from the prohibition against appearing in behalf of private interests before any county agency. (The Charter Commission has proposed exempting only members of boards and commissions.) The Board of Ethics had already arbitrarily bypassed the section in at least two advisory opinions it issued.

Secondly, with reference to Section 20.02F, which prohibits the use of county property for other than public activity or purpose, the board states that the literal interpretation of 20.02F “does not match the current practice” (as if the charter is supposed to conform to current practice rather than the reverse) and then adds: “Two examples of a literal interpretation may point this out. First, any employee who recycles a County paperclip and uses it for his/her personal use might be considered to be in violation of this section. Further, any County employee who plays golf at the County golf course or rents the convention center might also be considered in violation of this section.”

The board has offered no example of a situation to which either 20.02D or 20.02F would apply, choosing instead to dredge up far-fetched and questionable examples to show that the sections are absurd and unenforceable and to provide a kind of reverse justification for the board’s mistaken rulings.


I am sending to the Council by separate e-mail a letter I sent to the Board of Ethics discussing in greater detail the board’s treatment of Section 20.02D and the public.

Letters like the ones I have sent to government agencies and the newspaper touch the surface of this important public policy issue. Only the Council can give the matter the full public airing it deserves and call for the board to give an accounting of its policies and procedures. In light of Chairman Asing’s statement and the available facts, can the Council do anything less?

Thank you for your attention.

Horace Stoessel

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Section 20.02. No officer or employee of the county shall:

A. Solicit, accept or receive, directly or indirectly, any gift,
whether in the form of money, service, loan, travel, entertainment,
hospitality, thing or promise or in any other form, under
circumstances in which it can reasonably be inferred that the gift is
intended to influence him in the performance of his official duties
or is intended as a reward for any official action on his part.

B. Disclose information which, by law or practice, is not
available to the public and which he acquires in the course of his
official duties or use such information for his personal gain or for
the benefit of anyone.

C. Acquire financial interest in business enterprises which he
may be directly involved in official action to be taken by him.

D. Appear in behalf of private interests before any county
board, commission or agency.

E. Use his official position to secure a special benefit,
privilege or exemption for himself or others.

F. Use county property for other than public activity or
purpose.