(PNN) BOE’S WEIL CALLS CA’S 20.02(D) OPINION “LOUSY LAWYERING”

BOE’S WEIL CALLS CA’S 20.02(D) OPINION “LOUSY LAWYERING”: (PNN) -- In a stunningly blunt couple of letters written in mid September, Board of Ethics member, attorney Paul Weil, scathingly attacked and belittled both a county attorney opinion regarding the conflict of interest provisions of the controversial county charter section 20.02(D) and County Attorney Al Castillo’s behavior and professional abilities.

In the document- released to the public and posted at the local newspaper’s web site by reporter Michael Levine-.Weir calls the latest opinion “lousy lawyering” and states that “(n)either you nor the Board should twist the law to accommodate or solve such "problems"

Weil had previously called the opinion “fatally flawed.” The letters apparently followed a meeting between Castillo and Weil at Weil’s home.

Weil wrote to Castillo that after the meeting he expected Castillo to come to the next BOE meeting but instead Castillo sent his deputy Mauna Kea Trask.

He wrote:

I really expected that, as I had suggested, you might withdraw the (opinion) letter and make proper revisions along the lines of our discussion.

Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!

As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!

The first letter from Weir to Castillo lays out his disappointment that Trask seemed unaware of their meeting and goes on to detail the specific problems with the opinion as well as Weir’s disappointment in Castillo’s absence from the BOE meeting.

But rather than address Weir’s specific questions regarding the opinion, Castillo’s reply merely explained why he wasn’t there and put the onus on Weir to “tweak” the opinion. That was followed up by Weir’s second more detailed and more apparently exasperated reply.

Rather than excerpt and/or try to characterize the exchange further, since we have no space constraints we will reprint all three letters “(e)ntered into the record by Board of Ethics Member Paul Weil at the 10/15/09 Board of Ethics Meeting” here.

For background information click on the appropriate link to PNN coverage of county charter provision 20.02(D) and the BOE including our three part series linked on the left rail.

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From: Paul Weil
Sent: Friday, September 11, 2009 8:41 AM
To: Alfred Castillo Jr.
Cc: Leila Fuller
Subject: Opinion Letter
Good morning, Al:

I was disappointed that Mr. Trask was not familiar with, and stated, in effect, that he was barely aware of our meeting and extended conversation. Regrettably, I believe that the waters are only further muddied.

I realize that you, some of the Administration, and some members of the BOE would simply like to get this matter behind them. But it wont simply go away unless and until you properly close the serious gap in the Opinion.

Chairwoman Fuller expressed to me that she was pleased with the opinion because it said in writing what your predecessor had told the Board in leading to their opinion in the Chun matter. I still cannot reach that suggested conclusion.

Assuming, arguendo, that you are correct in concluding that the Charter provision and the Code Section must be read together, I am simply unable to find legal support for the conclusion recited in Mr. Trask's opinion, which you endorsed.

As I told you, I have read and re-read the provisions and simply cannot make that leap. It is incumbent upon you or your office to provide definitive information and guidelines.

Simply put, why, if at all, does 20.02D not apply to an Attorney who is a member of a Board or Commission, representing a private client or interest before another Board or agency? How, if at all, does 3-1.7 or any other section of the Code provide an exception? If you can properly answer those questions and bridge the flaw and gap, you may be able to convince me and the properly restless public. I would hate to think that, once again, you (and some members of the BOE) start with a desired conclusion and then work to justify the result.

I ask again that you explicitly and with specificity explain how you make that leap. Whether or not a fee is fixed or contingent, there is an obvious Conflict of Interest in such representation. Dancing around the issue wont make it go away. I'm sure that you would hate to see some citizen or group test the issue in Court.

I’ll be happy to discuss.

PAUL

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Sent: Friday, September 11, 2009 3:59 PM
To: Paul Well
Subject: RE: Opinion Letter
Paul,
Thank you for your hospitality. Well, after I visited with you I had to rush back to Lihu`e to meet with the Mayor. The meeting with the Mayor took more than 2 hours. I got home about 6:45 p.m. I was exhausted and did not want to pack. I woke up at 4:30 a.m. because I had to be at the Lihu`e Airport at 5:15 a.m. I had a meeting with my deputy in Honolulu at 7:30 p.m. The HGEA arbitration hearing started at 9:00 a.m. I called Mauna Kea and Mona to brief them on how we should handle the day with Ethics. I also mentioned to both of them that I sat down with you the day before.

There may be a few areas in which we may tweak. I do not know whether or not we will be able to meet your expectations and the standards that you require. I'm curious? How would you bridge the gap?

al

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From: Paul Weil
Sent: Saturday, September 12, 2009 12 29 PM
To: 'Alfred Castillo Jr '
Subject: RE Opinion
Aloha, Al.
I'm glad that I deferred responding to your email. One should never respond when disappointed, frustrated, or angry. I was all three.

Sorry that you had a bad day Thursday, but mine was, in many ways, worse. Particularly when compared to Wednesday when I felt that we had enjoyed a candid and productive meeting, sharing ideas as we continued to strive for the welfare and benefit of the people of Kauai. I had been especially heartened by your expressions of agreement in many areas as I reviewed with you the latest iteration of an Opinion letter from your office and pointed out the shortcomings and errors in the document. I stated to you and I said publicly that this letter is a far superior product to that produced by your predecessor and/or by your office in the past. But, as we discussed at length, and as I publicly stated, it still falls far short.

Nor do I understand why the letter, which was prepared in late June, was not delivered until early September! Ripening did not make it any better.

There are those who have publicly stated that you had previously tried to "co-opt" me. I now believe that they may have been right. But, following the old adage of "fool me once, shame on you; fool me twice, shame on me", it won’t happen again. Nor can I be bullied, intimidated or coerced. You see, I am not seeking any separate personal benefit from my volunteer service. I am not and will not be a candidate for any office or appointment. I will respond appropriately the next time anyone from your office again insults me or patronizes me, publicly or otherwise, as Mr. Trask again did at the BOE meeting.

I appreciate that you apologized to me for your statements and actions at the prior Board meeting. I urge you to attend the next BOE meeting and apologize to the entire Board. I really expected that, as I had suggested, you might withdraw the letter and make proper revisions along the lines of our discussion.

Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!

As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!

• Unfortunately, you did not instruct them to provide what I was led by you to believe was the open candor that I felt you tried to show during our meeting at my home. None was shown at the Board meeting. It may be good politics, but it's lousy lawyering. The Board and the County are entitled to better.

I realize that you feel some pressure. As you told me, the mayor and John Isobe are concerned because four Board or Commission members have resigned, allegedly because of actions by the BOE. I can only respond, so be it. Neither you nor the Board should twist the law to accommodate or solve such "problems".

You go on to state that "/ do riot know whether or not we will be able to meet your expectations and the standards that you require". Let's be clear; these are not MY expectations and standards. They are the proper expectations and standards imposed upon you as County Attorney. They are, quite properly, the expectations and standards of the citizens of Kauai.

You then state that "there may be a few areas in which we may tweak," Did you laugh as you wrote that one, Al knowing full well that "tweaking a few areas" falls far short of really correcting the admitted distortions and omissions in the document?

I hope that your "tweaking" will include removing the suggested illustrations of absurdities which, themselves, are simply even more absurd, since they ignore the fact that a meeting with a water dept. clerk or a police officer, both of whose duties are ministerial to be performed within the scope of rules and regulations promulgated by the governing agency, is not an "appearance" before that governing agency. The clerk or police officer has no discretionary or policymaking authority, is performing a purely ministerial function, and there cannot be a conflict of interest under such circumstances. Trying to stretch that far simply discredits and makes suspect other assertions in the Opinion. It may be correctable by proper further "tweaking" of the definitions. Leaving them in as illustrations would likely mislead the Board, the Council and others in the future. As we discussed and as you had agreed, they are, simply, wrong.

Further, The Opinion fails to specifically address the three questions submitted by the Board at its August meeting and previously set forth in my July 24 m email to Mr. Trask with a cc to you.

(a)whether a charitable non-profit organization providing eleemosynary* services to our community is a "private interest" within the meaning of the Code (this does not include unions, political organization, PACS, or other non-profits which are not based upon charitable purposes);

(THIS ONE IS PARTIALLY, THOUGH NOT DIRECTLY OR COMPLETELY, ANSWERED IN THE LATEST OPINION LETTER).

(b) whether the County Council can adopt legislation clarifying the issues in the Chun case for others who might be similarly situated in the future or if this would be an improper attempt to amend the Charter;

(WE DISCUSSED THIS POSSIBLE APPROACH BUT THE BOE NEEDS THE REQUESTED SPECIFIC OPINION FROM YOU ON WHETHER AND HOW THIS CAN BE DONE. I ALSO REALIZE THAT THE COUNCIL MAY NOT BE WILLING TO HANDLE WHAT COULD BE A CONTROVERSIAL MATTER.)

(c) the affect, if any, of the voters' rejection of the Charter Commission's proposed Amendment at the last election. I have restrained from going public with these thoughts and concerns other than those expressed at the Board meeting and in my email exchanges and discussion with you. I fear that the same may not be said about your office. However, this exchange of emails is not subject to any Privilege since it is all addressed to me individually. I waive any such privilege, if one actually exists, since it would belong to me and not to you or the BOE. I therefore invite you to provide copies to the Mayor, to Mr. Isobe and to others as may be appropriate. Just let me know so that I can be sure that my remarks are unexpurgated and unedited.

Lastly, you use the old ploy of trying to dump the problem on my side of the field by asking how I would bridge the gap! I think that you must be aware that the chasm created by your predecessor and perpetuated by your office is too deep and too wide to be bridged by trying to cover it with sand, as your predecessor tried and as you have been doing. The simple answer is, it cannot be done without either changing the Charter (which was defeated by the voters) or by adopting clarifying legislation if, in fact, that can legally be done in a fashion which can withstand judicial scrutiny, all as discussed above.

Your attempts to follow your predecessor's lead and blow it away with a ruling that concludes that the Charter provision and the existing purported codification in Sections 3-1 et seq. just doesn't get you there. Neither you nor Mr. Trask have undertaken to show us how reading any of those sections with the Charter provision brings the result you so fondly desire. Instead, your office again provides broad generalities and unsupportable declaratory conclusions without regard to proper cogent legal standards. Rather, you leave it in the dictatorial or parental mode of "I said it, so it must be right"!

Once again, I'll be happy to discuss and to try to further assist in any way reasonably possible. It's up to you. None of this will simply go away.
PAUL

*eleemosynary [adj] generous in assistance to the poor; "a benevolent contributor"; "eleemosynary relief"; "philanthropic contributions"