Monday, May 18, 2009

A LITTLE LIGHT DOG WAGGING

A LITTLE LIGHT DOG WAGGING: Last Thursday the Kaua`i Board of Ethics (BOE) finally and unexpectedly released the county attorney opinion that had apparently caused them to ignore the plain reading of the ethics section of the county charter in favor of the subordinate county code provisions on ethics

It confirms the suspicions we expressed in our three part series on the “Unethical Culture” (see left rail) of the BOE- that somehow, despite a strict ban in the charter on county officials- including board and commission (B&Cs) members- appearing on behalf of private interests before other B&Cs, the opinion lets the tail wag the dog by giving legitimacy to provisions of subservient law that seek to contradict the charter.

And indeed in the second paragraph of the opinion it says

Section 20.02(D) of the Charter reads: "No officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency." On its face, this language appears to be a complete prohibition, preventing any officer or employee from acting for the benefit of any private interest before a county agency, board or commission.

But the next sentence is key to the disconnect, penned by former Deputy CA Margaret Sueoka who, perhaps not so coincidentally, was recently fired by Castillo and has filed a discrimination complaint against the county over the firing.

She wrote:

The language of the Code elaborates upon the Charter provision, and identifies more specifically those types of conduct which would constitute conflicts of interest

And there lies one of the “fatal flaws” apparently cited by BOE member Paul Weil, according to Michael Levine’s article on the meeting in the local paper.

The language of the “code” or ordinance, does not “elaborate” on the charter- which is what an ordinance is supposed to do- but rather, at best is silent on the charter provision and if applied, would contradict the charter.

As we discussed on our three part series Section 3-1.7 of the county code details many specific conflict of interest situations that are strictly prohibited. But the code specifically says these are based on Charter Section 20.01 which bans acts to confer special benefits on one’s self or others among other things.

In fact the code does not even mention 20.02(D) specifically anywhere, leaving unaddressed the matters brought up by what Sueoka admitted is a strict prohibition,.

The opinion seeks to use the state constitution and out-of-state court rulings to say that the charter and code must be read together and while that is true it’s the relevant sections of each that must be read together.

It would sort of be like reading a strict charter prohibition on robbing banks and saying because it isn’t addressed in the dog leash ordinance, bank robbery is ok.

But, even of there were a confluence of the specific conflicts in the code and the strict prohibitions of the charter, just because there are specifically described “conflict of interest” prohibitions in the code does not make the code a complete list of actions banned in the charter and in fact that contention is never made in the code.

Also on Thursday the BOE called on Castillo to look at the opinion with an eye toward “withdrawing it, affirming it, or modifying it” according to Levine’s article. But it appears our hopes for an honest legal look at the provisions from Castillo might have been dashed if comments from Castillo are indicative of his intentions.

Instead of addressing the legal ramification of the plain reading of 20.02(D) and the existing CA opinion Castillo seems infatuated with the political ramifications.

He’s quoted by Levine as saying

“What does this legal mumbo jumbo mean?” Castillo said when discussing the issue less than an hour before the board released the opinion. “To me, what this means is, to read Section 20.02 by itself would give an unwarranted chilling effect to contributing members of our society who desire to volunteer their time and their expertise to help this county become a better place.”

In the interview, (BOE Member and Food Bank ED Judith)Lenthall said it was not fair that she be expected to give up the rights of a private citizen, including the right, for example, to challenge a property tax assessment.

That “right” as we said before is not being challenged by anyone. What is being challenged in a complaint filed by fellow BOE member Rolf Bieber is the privilege of sitting on a county board that may in fact sit in judgment of a county councilperson while she is also asking the council for money for the Food Bank.

“That’s where I drew the line regarding the absurdity of just sticking to 20.02,” Castillo said. “That’s why we’re saying that the County Charter and the County Code should be read in conjunction because to do otherwise would create absurd results.”

It appears that Castillo is buying into the tail “wagging the dog” interpretations by saying that because the law has results that are perhaps politically uncomfortable, it is up to him to issue a quasi-judicial “opinion” to correct that “absurdity” rather than doing it legislatively- by ordinance if possible or by changing the charter.

The reason for this attempt to hijack the political process may be that last fall the citizens were asked to exempt board and commission members from the onus of 20.02(D) but that measure was soundly defeated.

After the citing of the legal need to read the code and charter together the opinion goes on to make one of its more absurd arguments regarding “intent”.

It cites the charters of Maui and Hawai`i counties saying

as we can see from the Charters of Maui and the Big Island, the effect of reading our Charter and Code provisions together is to achieve the same basic scope as those of the Charters of these other Counties.

This is a another “fatal flaw”, coming from a 1976 letter from then CA Michael Belles as the council debated and later passed Sect. 3 of the county code.

The flaw becomes immediately apparent because it then quotes the charters of those others counties which are substantially different from ours on Kaua`i. Theirs start out with the same type of prohibitions as 20.02(D) but go on to say

An officer serving the county without compensation, however, may appear for compensation in behalf of private interests before county agencies other than the one on which the officer serves and other than those agencies that have the power to review the actions of the agency on which the officer serves or to act on the same subject matter as the agency on which the officer serves.

If the intent in the Kaua`i Charter was to do that they obviously would have done it- and could easily have done it as the other counties did. The fact that they didn’t include the language shows if anything a desire for a higher ethical standard than the other counties.

Perhaps by wrongly reading some intent that wasn’t there the council that passed the code on Kaua`i sought to make believe that provision was in the charter. But wishing doesn’t make them suddenly appear in the charter- only an illusionist can do that.

An email that arrived today from BOE watchdog Horace Stoessel states it clearly and unambiguously

He states:

Like the charters of Maui and Big Island , the Kaua’i County Charter prohibits members of government from appearing in behalf of private interests before County agencies. But whereas the other charters exempt members of boards and commissions from having to comply with the prohibition, our Charter Section 20.02D does not exempt them.

Last year the Charter Commission proposed exempting board/commission members from having to comply with 20.02D. The voters rejected the proposed charter amendment.

No matter how much Castillo- and apparently last year’s Charter Commission- wishes that the Kaua`i Charter read differently the strict prohibition remains in place today and will for at least the next year and a half.

The code addresses only specific concrete conflicts of interest that are specifically banned and then, as it states, based only on the “special favors” provisions in 20.01 of the charter. Nowhere does it say it is an exclusive list and nowhere does it address the prohibitions of 20.02(D) which are included to ensure Kaua`i officials conduct business with the highest possible level of ethics.

20.02(D) is signed to avoid even the appearance of the type of impropriety that could result in a tit-for-tat approval by a member of one B&C, of a request from a member of another B&C- who would then presumably be tempted to turn around and approve the request of a member of the first B&C.

The Kaua`i provision is specifically to remove those temptations.

County attorney options have as close to the effective weight of an actual judicial ruling as one can get. All county entities are expected to abide by them as if they were case law and indeed can lose protections against lawsuits if they don’t.

They become the de facto “law of the land” and can only be challenged by going to an actual judge or having them reversed by, most likely, a subsequent CA.

It is the responsibility of the county attorney to opine only on the law and to separate out the political considerations and notify the political entities that the have two choices- to either change or abide by the law as it stands.

It is not the bailiwick of the County Attorney to make those political decisions for elected officials by attempting to read into the law what should be or what they would like to see in the law.

That right is reserved for the political apparatus of the county- the council and mayor.

Castillo would do well to remember the fact that 99% of the residents of Kaua`i would never have the types of conflicts that people like the Bieber-complaints-cited Lenthall, Mark Hubbard and Lorna Nishimitsu because 99% of Kaua`i residents never appear “on behalf of” others before county entities and only occasionally if at all, appear as themselves.

The availability of that 99% for county service is the blind spot in Castillo’s claim that the law, as it stands, yields “absurd results”. Indeed it is the opposite of absurd- it denotes the highest of ethical standards are expected of those that serve the county.

Castillo’s “absurdity” claim is valid only if one is intent on supplanting government by the people and- more importantly OF the people- with a handful of revolving-door, paternalistic oligarchs.

2 comments:

charleyfoster said...

I admire and completely agree with your Scalia-esque reading of the charter. It would be interesting to see the issue before the court (I imagine standing would require someone arguably harmed by a county decision tainted by a violation of 20.02 bring suit). But then the court would probably side with the county anyway. At least it would be entertaining to see what gymnastics the court would be willing to perform to rationalize departing from the clear plain meaning of the charter.

Andy Parx said...

Believe it or not Charlie- and I haven’t reported this because it’s not germane yet - Castillo told “others” that he has met with Randall Valenciano on the subject. I chalked it up to consulting him as a former councilperson with knowledge county government- but now, given Al’s apparent lean toward upholding the opinion, I’m not so sure whether it not might be considered ex-parte communication on a potential future suit.

I hadn’t considered standing but isn’t there a public interest in stopping government corruption type of exemption in some cases when it comes to standing.