(PNN) Unethical culture- Government service with a personal “touch”- Part 2

The following is the second in a three-part series of articles regarding reported apparent violations of the Kaua`i County Charter by the Kaua`i County Board of Ethics. Much of the report is based on BOE related documents PNN has recently obtained.

(PNN) Unethical culture- Government service with a personal “touch”

Part Two - The Long and Winding Road to Inertia.

Section XX (20) of the Kaua`i County Charter is called the “Code of Ethics” and is the main document that guides ethical conduct of government employees and officials in the county.

The county also has a law called the “Code of Ethics” contained in Chapter 3 Article 1 of the Kaua`i County Code.(KCC).

The Board of Ethics (BOE)- created by the charter- also has “administrative rules”, also known as “ad rules” that detail administrate procedures for the board.

A “charter” is a document that is like a constitution, usually for local or municipal governments. The county and the various states have constitutions. Locales have charters and they serve the same purpose- to give, in broad terms, guidelines for creating ordinances or laws that implement the charter.

Laws must be in compliance and conform with charters, not the other way around. If a conflict exists, the charter “trumps” the law.

Similarly, ad rules- a creation of the state through Chapter 91 of Hawai`i Revised Statutes- must conform to both the code and the charter.

But the Kauai` Board of Ethics (BOE) ad rules, as they stand right now, give the BOE the right to seemingly select either the charter or the code using the term “or” rather than “and” when addressing the issue.

And the BOE hasn’t been shy about conveniently selecting one or the other over the years in applying “situational ethics” to cases presented to them by the public and the various and sundry county employees and/or officials.

An examination of 106 cases the board has dealt with dating back to August of 1976 shows that some decisions are based on the charter, some on the code and some on both.

The problem is that while the code deals only with a flesh-out of direct conflicts there is nothing pertinent to conflicts of interest in the charter about “direct” conflicts except for disclosures and there is noting at all in KCC Chapter 3 Article 1 regarding the prohibitions in Section 20.02(D) of the Charter telling “employees or officers” they may not “appear on behalf of private interests” before other county entities

The code deals with things like gifts, confidential information, fair treatment, contracts, requirements of disclosure, restrictions on post employment and, most importantly for our purposes, conflicts of interest in Section 3-1.7.

The Conceits of Interest section says

“(a) “No employee shall take any official action directly effecting:
(1) A business or other undertaking in which he has a substantial financial interest or
(2) A private undertaking in which he is engaged as a legal counsel, advisor, consultant, representative or other agency capacity.”

The only exceptions are for a department head who is “unable to disqualify himself” or “a member of a board, commission or committee whose participation is necessary in order to constitute a quorum”.

It then goes on to prohibit all kind of “direct” conflicts, where an “employee or councilman” would be exercising direct discretionary consideration of a request in which he has an interest. But is entirely silent when it comes to the prohibition in the charter’s article 20.02(D) prohibitions

The charter does have a section 20.04 that deal with “Disclosures” that says

“Any member of the council or any board or commission who knows he has a direct personal financial interest in any proposal pending before the body of which he is a
member shall disclose such interest to such body”

It goes on to discuss recusal in the matter but only as pertains to disclosure of “direct” conflicts and in no way negates the other parts of Section 20.

Other than that the discussion of direct vs. indirect and potential vs. real conflicts is fully a construction of the code, not the charter.

But just because “direct” conflicts are banned in the code doesn’t make them the exclusive kind of conflict that is forbidden, as the charter states.

Also “significant” referring to an amount, doesn’t appear in charter section 20 and is also a construction of the code.

The combination of the code’s lack of any reference to 20.02(D), the ad rules mention of adhering to the “charter OR code” and the code’s detail of only “direct” and “significant” amounts in considering conflicts, all make for an easy way for the BOE to ignore the provisions of the charter..

And they haven’t been shy, especially lately, about exercising this questionable discretion.

That penchant, as far as we can glean from reading the minutes of the board’s meetings along with looking at the recent decisions, is most likely supported by whatever is contained in the secret county attorney’s opinion that the board refuses to release, as we described yesterday.

It apparently looks at the code in isolation from the charter and says that if it doesn’t violate the code it is not a violation of the “Code of Ethics”. It seemingly directs the BOE to consider only the conflicts that are listed in the code which has limited conflicts to “direct” and “significant” types, where the charter does not contain this language at all.

That has led to the leap in logic which says that if it is not prohibited in the code, it is not prohibited at all, no matter what the charter says.

In a logical solecism, this would be like saying in the broad class of “animals” there exists “pigs” and then to conclude if an animal is not a pig, it is not an animal.

Two cases over the past year or so have highlighted this penchant for ignoring the charter in order to clear those who have apparently violated Section 20.02(D) of the charter.

The first came to the BOE strangely enough via a memo, dated Dec. 5, 2007 to Office of Boards and Commissions Administrator John Isobe from the Chair of the BOE,. Leila Fuller, in a “Request for an Advisory Opinion Regarding Potential Conflict Situations”

She asks “whether a member of a county board or commission may represent his/her employer or company before a County department and/or commissions?”

Then she goes into some “background” regarding the appointment of former planning Director Dee Crowell who now sits on the Board of Water Supply while working as “Vice President of Land Development for The Resort Group”.

“As part of his work Mr. Crowell may be required to personally meet with departmental staff regarding zoning and other permitting issues... as well as represent his company before the Planning Commission and or County Council. In either case is Mr. Crowell precluded from meeting with administrative department staff and/or appearing before the Planning Commission/County Council on behalf of his employer? (emphasis added) wrote Fuller, not Crowell himself.

But even more ominous than Fuller’s seemingly advocating for an individual who may be in conflict with the ethics laws of the county is her last sentence.

“(The opinion requested) will also provide guidance in determining whether future appointees with similar situations are relatively clear from potential conflicts”, Fuller concludes implying what side she will come down on when the matter comes before the board.

In a contested BOE hearing that made headline a few years back, Police Commission chair Michael Ching was accused of essentially being an advocate for eventual police chief, KC Lum, because he had favored Lum during the commission’s selection process.

How Fuller’s advocating for Crowell for a “special privilege” – not just during deliberations but before they even began- is not a similar circumstance is not apparent.

The Crowell decision was delivered to Isobe in a letter darted December 31, 2007 signed by Fuller, Vice Chair Mark Hubbard and Secretary Judy Lenthall. It said”

“The Board of Ethics finds that the County Charter and County Regulations regarding ethics do no preclude Mr. Crowell from acting in a reprehensive capacity before other County agencies and departments besides the Board of Water and the Water Department so long as he complies with Sect 3-1.7 (Conflicts of Interest) of the County Regulations.”.

But strangely enough there is no mention of any BOE meeting where they would have made this determination in any record of the BOE other than the letter. As a matter of fact, it is not even listed among the 106 cases where advisory opinions were either sought or rendered.

The next case was the one we discussed briefly in part 1 of this report regarding Attorney Jonathan Chun.

This time it was Chun himself soliciting an advisory opinion. In a letter dated January 30, 2008 Chun writes saying he is “serving as chair of the Kauai County Charter Commission” and cites charter section 20.02(D).

He also notes that “(a)s a private attorney I have appeared before the County Planning Commission and the County Liquor Commission. Since my appointment to the charter Commission I have appeared before the County Planning Commission and the County Council”

Chun then attempts a lawyerly ploy to direct the BOE to what he sees as a redeeming technicality.

He points to KCC “Section 3-1.7(e) which states that no “employee shall assist any person or business or act in a representative capacity before a County agency for a contingent compensation in any transaction involving the county’ (emphasis his)”.

He later says “(m)y work before any county agency is done on a hourly basis and not on a contingent fee”.

This almost laughable equivocation of the word contingent- even going to the length of using the term “contingent fee” rather than the usual “contingency fee”- ignores the fact that the word is used in the code to denote a fee that is contingent on performing the actions before the agency, board or commission and not about how the representative’s payment is structured.

But then he goes on to his main point that the KCC’s Section 3.17 only forbids representation “if he has official authority over that county agency” leaving out the previously cited the prohibition in 20.02(D).

The decision? The list of advisory opinions says:

“Relative to information in the Code of Ethics and Charter, Board finds that appointee may continue to appear as a private attorney before other County agencies on behalf of his clients. Dissenting opinion noting abstention based on taking 20.02(D) at face value or with a broad interpretation.”

That dissenting abstention was reportedly from Secretary Lenthall. In a letter describing her apprehension she foreshadows, for the first time in writing, the contentions she, Fuller and Hubbard would later expound upon- that 20.02(D) read strictly would prohibit her from things like applying for a camping permit or testifying as a private individual before a the council or planning commission on a law that would affect her business.

But she also asks “(a)m I required to forgo my responsibilities to the Food Bank (a private non profit corporation) because I serve on the Board of Ethics?”

20.02(D) apparently provides that answer-she must resign from one or the other..

The current ad rules that call for selectively applying either the code of the charter is up for review by the BOE. The new proposed rules are wide ranging and seemingly give the board even more discretionary powers regarding processing of complaints, allowing them to reject cases out of hand, decide them without even having a hearing, and includes a clause to let them not allow any testimony from the complainant.

And although HRS Chapter 91 on ad rules compels a lengthy process with public hearings for changing even a comma, the BOE is talking about just changing the rules willy-nilly because they aren’t “significant changes”.

One of the proposed new rules is to change the “or” to an “and” in the definition of the “Code of Ethics” so it’s not the charter “or” the county code but both taken together on which they base their decisions.

The precedent was set with the Chun case. But how would the board justify their decision?

Look to this space for part three- Deep Thoughts- a “Handy” Diversion.