WHO PUT THE OVERALLS IN MRS. MURPHY’S CHOWDER?:

WHO PUT THE OVERALLS IN MRS. MURPHY’S CHOWDER?: Much has been said and written the allegedly “illegal” pay raise received by County Clerk Peter Nakamura, including our detailing last Monday of a December 1 memo from Councilperson Tim Bynum explaining how Nakamura received the maximum allowable raise despite the lack of the required approval by his “appointing authority,” the Kaua`i County Council.

But while some have intimated that Nakamura might have perpetuated the fraud himself, when all the evidence is examined the inevitable conclusion is that he couldn’t have done it without a violation of the Kaua`i County Charter, the salary resolution and most importantly the Code of Ethics by former Council Chair Kaipo Asing.

According to Charter Section 29.03 after the Salary Commission’s resolution becomes law:

The respective appointing authority may set the salary of an appointee at a figure lower than the figure established by ordinance for the position.

And so, Salary Resolution No. 2009-2 authorizes a pay increase for the county clerk, deputy county clerk provided that the Director of Personnel receives:

1) a memo from the appointing authority at least thirty (30) days prior to the increase certifying that the appointee’s performance has been evaluated pursuant to procedures established by the Director of Personnel;

2) a copy of the appointee’s completed performance evaluation evidencing that the appointee has met or exceeded job requirements for the appraisal period; and

3) based on the evaluation results, the appointing authority’s recommendation on whether a proposed increase should be granted.

As stated in the county charter (Sect 5.1A) the appointing authority for the county clerk is the full council, not the council chair. But according to Bynum’s letter the council never performed this evaluation or made any recommendation so any letter sent to the director of personnel would necessarily be fraudulent and make the pay raise illegal.

Councilperson JoAnn Yukimura concurred saying in an interview that “(t)here is no record, to my knowledge, of a council recommendation of this pay raise.”

Neither Bynum nor Yukimura say exactly how the pay raise came about but, given the evaluation process and all the required paperwork surrounding the implementation of the raise, there are really only three possibilities.

The first and least likely is that the director of personnel, on his own, fabricated the memo from the appointing authority certifying the evaluation of Nakamura’s performance, the copy of his evaluation and the recommendation itself and forged the required signatures

The second is that Nakamura did the same.

But both of those are so unlikely as to be patently absurd.

That leaves the third and only possible explanation: that former Chair Kaipo Asing completed and signed off on all three- as he would have had the council actually completed the evaluation- and forwarded them to the director of finance in violation of the charter and salary commission resolution.

The same goes for the “cashing in” of Nakamura’s vacation time that Bynum refers to in his memo which states that:

Over the last several years, without the knowledge of the Council body, the Clerk accepted and was paid unused vacation time.

According to a knowledgeable source within the county:

The general rule by which a county employee may be authorized to accept cash payment in lieu of vacation is as follows: Whenever an employee’s accumulated vacation credit exceeds ninety (90) working days the employee shall receive cash payment in lieu of vacation to the extent of the excess if, upon investigation by the county director of finance, it is found that the excess vacation credit resulted from the employee’s inability to be allowed vacation time off because of orders of the employee’s appointing authority; otherwise the employee shall automatically forfeit the excess. (emphasis added)

Again, unless either Nakamura or the director of personnel forged documents, it appears that Asing signed off on the vacation time without the approval of the full council.

According to county charter Section 20.02E:

No officer or employee of the county shall... (u)se his official position to secure a special benefit, privilege or exemption for himself or others.

If Asing indeed took it upon himself to act for the council without consultation, it’s hard to imagine a case that could be a more blatant word-for-word violation of that section of the Kaua`i County Code of Ethics.