Tuesday, October 13, 2009


SAME OLD TAIL: We’re still in limited typing mode and working on another story so today here’s a preview of Horace Stoessel’s latest letter to the editor dissecting the latest machinations of the Kaua`i Board of Ethics (BOE)- words with which we most stridently agree.


How will the Board of Ethics extract itself from the awkward position it now occupies?

In June the board dismissed three ethics complaints based on Charter 20.02D pending its receipt of and concurrence with an opinion from the county attorney. One member, without whose vote one complaint could not have been dismissed, later said that he was mistaken when he voted in favor of dismissing the complaint, asserting that 20.02D prohibits attorneys serving on boards/commissions from appearing before county agencies in behalf of their clients. Have the complaints been dismissed or not?

In September the board took a similar provisional action in response to a request for an advisory opinion, only this time the board, contrary to its actions on the complaints, told the requester to stop appearing before the Council until it determined the right way to administer 20.02D.

The chairperson says that the solution lies in reaffirming the position taken by the board in March, 2008, when the board gave an attorney permission to continue representing clients before county agencies and purportedly based its decision on a legal opinion from the county attorney.

This proposed solution relies on two questionable assumptions: that a county attorney opinion must be accepted as authoritative regardless of its content and that this particular opinion justified the board’s decision.

The first assumption overlooks the fact that the charter designates the county attorney as the county’s chief legal adviser, not its only adviser, and the fact that the county frequently employs highly-paid legal advisers from Honolulu . If the board has questions about the quality of legal advice received from the county attorney it has the right, if not the duty, to seek a second opinion from a qualified neutral party. It does not have a right to turn over its decision-making role to the county attorney in blind faith.

The second assumption is simply mistaken. Even if the opinions received by the board since March, 2008 were flawless (which they are not), they still do not justify the board’s 2008 decision or provide guidance in the cases now awaiting a final decision by the board. The opinions merely conclude that 20.02D cannot be read in a vacuum without specifying what statutory and circumstantial details should fill the presumed vacuum.

I believe the solution is for the board to affirm the plain meaning of 20.02D and to justify any exceptions it makes to applying it in the pending cases.

Horace Stoessel

No comments: