CHASING THE WHITE RABBIT

CHASING THE WHITE RABBIT: It’s anyone’s guess what participants will show up at the January meeting of the Board of Ethics (BOE). Certainly Rolf Bieber won’t be sitting on the inside of the rail but more importantly, the results of the meeting may depend on which deputy county attorney shows up- Mona Clarke who showed some signs of honest lawyering in her last appearance or Mauna Kea Trask who has proved adept at wielded the kings sword of evasion and deceit.

But the one person we know will be there is Horace Stoessel whose pen-knife wielding on the subject of charter section 20.02(d) is zeroing in on a death by a thousand cuts through his bulldog tenacity at stabbing away at Trask’s and his mentor County Attorney Al Castillo’s rapiers of jabberwocky.

Here’s Sir Stoessel’s latest parry in anticipation of January’s joust. Meet ya on the other side.

THE PRIMACY OF THE CHARTER OVER THE COUNTY CODE

TO: Kaua`i County Board of Ethics
FROM: Horace Stoessel
SUBJECT: The Primacy of the Charter Over the County Code
DATE: 12/28/09

I ask that this communication be placed on the January agenda of the Board of Ethics.

I believe it is essential for the Board of Ethics to ensure that its members are in agreement about the primacy of the Charter over the County Code , and specifically the primacy of 20.02D over 3-1.7, lest the confusion and conflict of the last two years be repeated in the future.

The confusion and conflict are rooted in two unsupportable assumptions.
First, the assumption that 20.02D is applicable only to the extent allowed by the three subsections of 3-1.7. Second, the broader assumption that the County Code is equal, or even superior, in authority to the Charter and can be used to limit or disregard charter provisions.

Both assumptions contradict the basic principles that ordinances are subordinate to charter provisions and that ordinances may only supplement charter provisions, not limit or preempt them.

It will be useful to review the point at which the two assumptions came into play. Upon receiving a request for an advisory opinion from Charter Commissioner Jonathan Chun in February 2008 as to whether he could appear as a private attorney before other County agencies on behalf of his clients, the board asked the county attorney for an opinion regarding the scope of 20.02D and 3-1.7(c), (d) and (e).

Instead of answering the board’s question directly, the legal opinion first misinterpreted the question to mean “whether these provisions of the Code have the effect of modifying the language” of 20.02D (emphasis added). It then offered the following inconclusive advice: “In conclusion, it is this office’s opinion that provisions in Section 3-1.7 of the Code serve to articulate and elaborate on the intent of the Code of Ethics, and they must be read in conjunction with the Charter provisions. In other words, Section 20.02D may not be read in a vacuum.”

Since the County Code is subordinate to the Charter it would have been more accurate to conclude that 3-1.7 cannot be read in a vacuum.


To determine the scope of these provisions means to delineate their applicability. The board already knew that Chun’s actions were not prohibited by the three subsections of 3-1.7 because it had issued an advisory opinion based solely on 3-1.7 just two months earlier in a comparable case, so it was looking for an answer about the applicability of 20.02D.

The short answer to the board’s question is that the three subsections of 3-1.7 differ in scope from each other, that all of them contain limitations on their applicability, and that all are narrower in scope than 20.02D, which expresses no limitations on its applicability. Therefore, reading the provisions in conjunction with each other leads to the conclusion that 3-1.7 was inapplicable in the Chun case and that 20.02D prohibited his appearing in behalf of his clients before county agencies.

The board overlooked the fact that the county attorney had not answered its question. It obviously accepted the attorney’s unfounded claim that 3-1.7 can modify the language of 20.02D. It then made a leap from the attorney’s conclusion that it must read the provisions in conjunction with each other to its own conclusion that Chun could continue representing his clients before other agencies. The net effect was that the board reached its conclusion by reading 3-1.7 in a vacuum.

Although the County Code links 3-1.7 to Charter 20.01, not to 20.02D, there is no harm in treating the three subsections of 3-1.7 as complementary to 20.02D. Harm comes when the subsections are utilized to restrict the applicability of 20.02D, and that is what happened in the Chun case.

The cure for two years of confusion and conflict is for the board to keep clearly in mind the primacy of the Charter over the County Code .



ADDENDUM: The second opinion received by the board begins and ends with language similar to the language of the first opinion. However, it differs in arguing that a “strict construction” reading of 20.02D would lead to absurd results. It does not claim or try to prove that basing a response to Jonathan Chun’s request for an advisory opinion on 20.02D would be an absurd result.

As we reported previously, case law in no uncertain terms states that if an interpretation of a provision yields “absurd results” it is the interpretation, not the statute, that must be discarded. But nothing goes as given at the BOE where the red queen has declared “execution first, trial later” and men on the chessboard are constantly getting up and telling you where to go.

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And in case you didn’t notice, another piece of the November chessboard is in place with Mel Rapozo’s announcement that, with open offices galore and ego-addled councilmembers eager to play musical chairs in no short supply, he will be taking the politically safe road this fall by running for county council, ending speculation that his notorious reach-exceeding grasp would cause him to seek higher office again.

We are ecstatic that, in fact, we will have Mel to kick around again but even happier that, for all his foibles, we may see someone on the council willing to occasionally mention the naked emperor and we can’t wait to see him move the personnel department and bike path scandals back on the council’s front burner.