(PNN) Unethical culture- Government service with a personal “touch”- Part 3

Unethical culture- Government service with a personal “touch”

Part three- Deep Thoughts- a “Handy” Diversion.

One would think that a member of any ethics board or commission would be a proponent of the highest ethical standard. But on Kaua`i, as we’ve noted in the first two parts of this report, the three prime officers of our Board of Ethics have been in violation of the plain reading of the charter’s section 20.02(D) prohibitions on those “employees and officers” who “appear on behalf of a private interest” before an “agency board or commission” while serving on any of the county’s boards or commissions.

We detailed two recent cases- those of Dee Crowell of the water board and Jonathan Chun of the charter commission- where the BOE apparently chose to simply ignore those provisions of the charter and claim that, because the ordinance (Kaua`i County Code [KCC] Section 3) didn’t detail the prohibitions in the charter’s section 20.02(D) they didn’t have to be enforced, in violation of the supremacy principles expressed in the US Constitution.

So what was behind the thinking of those two chairs of the BOE- Mark Hubbard and Lei Fuller- and the secretary, Judith Lenthall, who are in apparent violation?

After the Crowell and Chun rulings clearing them of violating the charter, a group of citizens were outraged. Horace Stoessel, Bruce Pleas, Walter Lewis, Glenn Mickens and others were outraged and told the board so during and after the discussions.

(Note: In part 2 we said there was no apparent discussion of the Crowell decision at a BOE meeting. The minutes reveal the matter was decided at their 12/07 meeting. We apologize for the oversight).

In response past and current Chair Mark Hubbard – who has also served as chair of another board embroiled in discretionary controversy, the state Burial Council of Kaua`i- wrote and presented the BOE with a long and extremely revealing “memo” at their 4/08 meeting .

We will examine it here in detail.

We do so because the rambling letter reveals the mental machinations of a man- and board- trying his best to twist the meanings of words by isolating and equivocating them trying every rationale- whether valid or simply laughable- to clear others who were seeking to exonerate themselves and so, by precedent, Hubbard, Fuller and Lenthall from their apparently prohibited activities.

The letter, the contents of which was supported by the other BOE members according to the minutes of the 4/08 meeting, reveals what appears to be a basic lack of ethical standards and ability to make ethical judgment calls with an unbiased eye on the BOE’s part and an inability or unwillingness to apply the “to be liberally construed” provision of the Code of Ethics contained in KCC section 3.1.

We will excerpt the letter here and reprint it in full at the end of this article, Because we received only a paper version we had to type it in manually and although we read and re-read it a few times it may contain a typo or three, which we apologize for in advance.

After saying he represents only himself Hubbard actually admits that the board was seemingly oblivious to the section 20.02(D) prohibitions in the Crowell case saying:

When the board discussed Dee Crowell’s request for an advisory opinion in late 2007, I do not remember any discussion of how 20.02D might impact the opinion. I only remember referencing the County Code, section 3-1.7{d}. The board concluded that a Board of Water Commission appointee is not precluded from acting in a representative capacity before other County agencies and departments as long as he complied with code section 3-1.7.

He then says that during the Chun case:

I saw 20.02D for the first time in the light of its plain language and was shocked to realize that I had been on the Ethics board for several years (I have served at least one term prior to my current term without being aware of this issue. I guess it should not be surprising as I believe that this issue has been seldom if ever raised in the 40+ years of the Charter’s existence.

Amazingly he actually admits to apparently never having read the charter section on ethics or at least not giving it any thought before that time. He even admits that on reading the plain meeting he found himself in apparent violation.

But the next paragraph begins to show how his own prejudices- and conflict- clouds his own thinking. He says he:

talked with a former Ethics board member who said it could simply be interpreted to mean that no employee or officer could appear “wearing the hat of their office: in behalf of private interests before any agency, board or commission. This sounded reasonable to me.

Nowhere does any provision of charter, law or rule mention this “hat wearing” construction of Hubbard’s.

But rather than leave it at that he proceeds to try to deconstruct the key phrase and reconstruct it using alternative dictionary definitions of the words that take the words out of context of “appear on behalf of a private interest”

First he separates out the word “appear” from “on behalf of” saying

The word “appear”, particularly when used with the word “before” means “to come formally before an authoritative body”. Another definition is to “come into view, become visible”.

It’s called equivocation, not, as he says earlier being “exact, specific, rational and literal”. “Appear on behalf of” is never a phrase that uses “appear” to mean simply come into view but is rather in the sense that an attorney “appears on behalf” of a client.

Then he continues to work on the words “on behalf of” trying to also separate them from appear” and redefine so it, saying it

can mean in support of, in the interest of, for the benefit of, as a representative of, in defense of. It is my belief, in hearing testimony by Walter Lewis and Horace Stoessel, that they believe that the primary meaning and possibly the only relevant meaning in the context of 20.02D is “as a representative of”. again, I maintain that there are different interpretations here.

To isolate them from appear is to falsify the plain meaning of the phrase by taking them out of context. to read them together is to give them plain meaning

Finally he deconstructs a “private inertest” and tries to pull it out of context saying

“Private interests”, by dictionary definition, means “intended for or restricted to the use of a particular person, group or class”. Yet, I heard Walter Lewis state in his testimony that he felt that the meaning in 20.02D did not include “personal interest” but only the interest of another person or entity. That jives with the above interpretation of behalf = represent. Here again, we have different interpretations.

Whatever Walter Lewis said or didn’t say is irrelevant. In addition to there being a huge difference between a private and public interest (we’ll get to that later) it also removes the two words from the context of the whole phrase.

Hubbard uses this later to say that renewing his driver’s license would seem to be prohibited by this phrase but he ignores the fact that one does not “appear on behalf of” one’s self but rather appears AS one’s self. One cannot refer to one’s self in the third person except as a poetic affectation. When one says “I’m appearing on behalf of myself” it is usually with a note of sarcasm and elicits a chuckle because of course one is just “appearing”, not on behalf of someone by him or herself

He also ignores the fact that renewing a driver’s license is not discretionary as we discussed earlier.

But if those “examples” are troublesome his next few paragraphs are even more telling of his grasping at straws constructed of whole cloth, to combine two phrases.

He says:

The above detail is only to point out that most of us interpret the meaning of 20.02D to make it reasonable to us. I maintain that the board can also interpret the meaning of 20.02D in order to most closely find and identify conflicts of interest.

As we said before, there are separate sections dealing with real and direct conflicts. 20.02(D) is a prohibition on a list of prohibitions in order to avoid potential or perceived conflicts of interest

But next he makes the fatal error, that destroys any relevance of any of his arguments no matter how convoluted and contorted. He writes

If one looks at Code section 3-1.7 (c), (d), and (e), it is apparent that the County Council intended to interpret the meaning of 20.02D when it enacted the code.

Each section of the KCC section 3 notes the charter provision from which it is derived if indeed it is derived from the charter. But 3-1.7 only mentions section 20.01, not 20.02 much less 20.02(D)- which as we said before is not specifically mentioned in the ordinance- leaving the ordinance “silent” on the matter and so leaving the charter provision to stand as the only guide in the matter.

So with blatantly wrong premises in hand Hubbard attempts to list specific cases that could be rationalized using his irrational construct.

The part that stands out here is that if the "appear on behalf of a private interest” phrase is read with plain meaning, all of these “examples” provide areas where application is simple and direct. Only when pretzel logic and wordsmithing – along with a personal interest in making the provision meaningless- is used do they become cloudy.

After the driver’s licenses example Hubbard list others.

Here are some of the most contorted.

While I was on the salary commission and ethics board, I represented Grove Farm at the Real Property Division for agricultural dedications. Did I appear? Some say no since I did not go before a group. While I did not appear before the appeals board, would that have been any different than my dealings with the agency in getting agricultural dedications approved? Was there any conflict of interest?

As we said before he attempts to use the magician’s definition of “appear” rather than the lawyer’s.

While Allan Smith was a member of the Salary Commission, I am sure he appeared before the County Council, Planning Department, Public Works, Water Department and Planning Commission as a representative of Grove Farm. Is there any conflict here? This merits some discussion as the Salary Commission has no influence over any other board or commission, with whom Mr. Smith was also dealing.

As we said before, it doesn’t matter if it’s the same board. Hubbard again tries to conflate the conflict of interest provisions with the prohibitions which are based on potential for conflicts when even the ordinance does not list charter 20.02 as the basis for KCC 3-1.7.

Some planners in the Planning Department do drafting work as side employment. The department ethics rules, which the ethics board has approved, allows these planners to bring their work to the department for approval as long as they do not review their own work. They can also walk their plans through other departments with no restrictions (on their own time, of course). Is this appearing before an agency?

This is outrageous if it’s truly happening in our county- not that we doubt it does. People who work in the planning department should certainly not be allowed to seek outside employment where they come to their co-workers for approval of their projects. The prohibition of “work on their own plans” as the only violation is, in itself, a violation of all ethical principles that few if any can’t see is an unethical practice. The questions “what happens when you have to approve the plans of someone who just approved your plan” is almost to silly to have to ask.

Again it makes one ask if someone who can’t see this should even be on an ethics board much less the chair. As does the next one that says

Judy Lenthall appeared last year before the County Council representing the Food Bank. Is that a “private interest”? Did she appear as a board of ethics member?

Again it doesn’t matter if she is wearing a hat or any other finagling apparel . And of course the food bank is a private interest- for profit and not for profit isn’t a charter criteria and there are no “exceptions” for doing “good work”.

A planning commissioner is an architect who represents clients before various county agencies. The board of ethics opines that he cannot represent clients before the planning department, yet may do so before other departments in the county.

If they do they apparently have no basis for doing so.

But finally Hubbard comes upon one important exception- the first amendment "free speech" rights of an individual who seeks to speak in the “public” interest as one on a general law or measure before the county councilor planning commission.

In addition between not being able to distinguish between a private and a personal interest he has trouble with the difference between a private and a public interest

Next he says

A councilmember testifies in favor of a development project before the Planning Commission. Happens all the time. Is that “in behalf of”? A councilmember testifies against a development project before the Planning Commission. Happens all the time. Any difference? What about any employee or officer testifying in favor of a project before the Planning Commission? Don’t we all have the right of free speech and doesn’t the sunshine law to allow us to speak at a meeting? I believe yes and yes, but I must appear as an individual, not a board of ethics member.

Here there is that “public interest” component. What Hubbard attempts to do is to separate out the words “private” and “interest” and reconstruct them giving them a different reading. The word “interest” in the phrase “appear on behalf of a private interest” is one that denotes a direct or even indirect financial or otherwise tangible interest yet Hubbard again seeks to deconstruct and reconstruct in order to evade the plain meaning of the phrase.

In any case the first amendment trumps the county charter under supremacy principles and receives the highest protection from the courts whereas “private interests” do not.

Hubbard’s final evasion is to try to conflate 20.02(D) with 20.02(E) and claim they must be read together.

He writes

An objection by Horace Stoessel and others to the board’s opinions is that they feel my interpretation totally guts the intent of 20.02D and that there would be no examples of violation of 20.02D using my interpretation. I used some examples of an officer or employee using his official position to apply undue influence for a private interest. The objection to this was that section 20.02E covered that and so the meaning of 20.02D was being distorted by the board.


Let’s look at 20.02D and E.

20.02D – “No officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”

20.02E – “No officer or employee of the county shall use his official position to secure a special benefit, privilege or exemption for himself or others.”

Here he implies that only situations that violate the second provision also violate the first, which is simply not what the prohibition list in 20.02 says.

Finally he gives it his last and best misinterpretational effort concluding that somehow the person in question is “ok” as long as they claim they are not “wearing the hat” of the board they sit on based on his equivocal and out of context use of the word “appear”.

If I tried to put my interpretation of 20.02D into words, it would be “No officer or employee of the county shall appear in the capacity of his county position on behalf of private interests before any board, commission or agency. I think that is an appropriate use of the word “appear”. In the dictionary definition, examples given are that you appearing in court as the attorney, at the witness, or as the client. So, it is not just the individual appearing, but appearing in a certain capacity. I maintain this is a little different from 20.02E and use an example to demonstrate the difference.

Hubbard’s letter serves to show not just how his own personal prohibited actions drove his “logic” but how the appointing and approving authorities- the mayor and council- aren’t doing their due diligence in appointing people like him in the first place.

But he isn’t the only one.

At the same 4/08 meeting a memo- also reproduced in whole at the end of this piece and also typed out- from Lenthall was presented. It highlights how, in these people’s minds, it is possible to make these kinds of claims.

She apparently went back to the original charter commission- the one that wrote the charter in the 60’s.

She write to Hubbard

Hi Mark,

HOORAY! In fact, EUREKA! Mystery solved re. Intent of the Code of Ethics issue. Here’s the scoop:

In 1964, work first started on a Kaua`i Charter. A Charter Commission was established in 1965 and in 1966 they had a pretty solid draft that the Commission eventually approved. They seemed to have spent a lot of time trying to reinvent the wheel in 1965, but eventually they called upon the example charters from several mainland cities. The city that they eventually plagiarized the most was Salem, Oregon. And Salem Oregon has the same language that interests us.

Really that’s all you need to know if you read it carefully. But the original charter commission- made up of many attorneys who, like those today, “appeared on behalf of” all sorts of private interests but wanted to serve on the boards and commissions that approve their projects so they tried to insert all sorts of language that would allow them to do so.

She dug up some documents that indicate, not some kind of “original intent”- as she apparently would like to believe- but those thoughts rejected in favor of the ultimately voter-approved provisions.

These might have been some things that some wanted to include to allow their potential conflicts to stand as long as there was no quid pro quo apparent. But the important part is that they were not included in the charter, most likely not as some kind of oversight but for good reason..

She wrote

Since 1968, the language we currently see in our Code of Ethics (for those sections that interest us for the moment) has been identical. No changes. Thus, the intent of this language has to be found sometime in 1965-1966 (I’m assuming that this went to a public vote in 1967? I don’t know).

So, I got the minutes from their discussion about this and here it goes:

1964

Code of Ethics DRAFT PROPOSAL (NOTE: This is a typed sheet with lots of internal corrections and hand-written notes on it). This is NOT the Charter Commission people’s work yet, but elected leaders?)

1. Nothing contained herein shall preclude the acceptance of contributions for election campaigns.
2. Full disclosure in writing to appointing authority or council, to be of public record, of such interests, at any time that such conflict becomes apparent.
3. No outside employment, business or professional activity which may impair his independence of judgment in exercise of official duties, or might induce him to disclose confidential information, or which is otherwise inconsistent or incompatible with or which interferes with the proper discharge of official duties.
4. Council to disclose interest in writing prior to vote.

Lenthall also seems to rely on the ordinance that as we said is actually silent as to the 20.02 prohibitions and then tries to divine some kind of “intent” from the proposed provisions even though. as she notes, they were rejected.

She goes on to say

So, the above was the original start of this issue. This draft was sent to the newly formed Charter Commission who promptly rejected it (and a LOT more), The Charter Commission apparently felt that THEY were supposed to be the crafters of this document. The first Charter Commission in Kaua`i discussed the code of ethics stuff at their April 19th and April 26, 1966 meetings, and they flushed out the section we’re interested in.

Though she’s not clear about who “they” are it’s presumably the council although the words “code of ethics” refer to both KCC section 3- passed by the council after the charter- and the charter section 20 itself.

She then apparently cites some other proposed but rejected language to show it should have been included or indicates some kind of intent, even though it also was never included.

April 19, 1966 info:

I need to scan and attach this whole page because it’s too much to write. Briefly, it says if you get PAID in whole or part by the County, (NOTE: This would exclude Board volunteers!), you can’t represent private interests before any agency. Then it says:

This section shall not be construed:

to prohibit any officer or employee from being affiliated with, employed by or representing a person, firm or corporation whose direct and indirect interest in business dealings with the county forms an insubstantial part of its total business, provided that he has not been retained for the purpose of appearing before the whole agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency.
to prohibit any officer or employee from appearing before any agency upon matters only incidentally part of the employment provided that he has not been retained for the purpose of appearing before the agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency;

Her interpretation again indicates how her compromised position has compromised any objectivity in the matter, further writing

The jist (sic) of the above is that I think they were trying to REALLY define stuff to be important and payment can’t be contingent on the action of the agency...
.
To me, the intent of the original crafters (1964) was a) disclose; b) don’t mess with anything that could impair your independent judgment. I’ll buy BOTH of those intents. The 2nd version again tries to a) disclose; and b) establish an importance factor to the matter; but muddies the waters with the WHOLE AGENCY language. What? It’s OK to meet before PART of the agency?

Unfortunately, ALL this deliberation got reduced to the VERY simplistic phrase, “Thou shalt not appear before any agency” because this was the copied language from Salem, Oregon. this was the language that was eventually approved for the County’s FIRST charter, and the language which has remained ever since 1968.

But the point is, I think I’m clear now in the intent, and I think it makes sense.

It might “make sense” if you are trying to construct some rationale for violating the plain reading of a law of which you are in violation.

It might “make sense” if you forget about the fact that they apparently rejected the provisions because they were simply so unethical that they thought they’d better go to a generally accepted standard of ethics rather than insert one cooked up in a paternalistic backroom by representatives of plantations seeking to implement watered down ethics laws and allow themselves carte blanche to concoct public policy to their own benefit.

But if all that isn’t troublesome enough, the fact that she is in a compromised position has clouded her judgment even on such issues as stealing from the county.

She finally says

Alas, there is NOTHING on “don’t use county property for personal use” because that too appears to be a copied section with ABSOLUTELY no wiggle-room. Seems to me that if we use the original crafters logic, a level of importance or value might be tried to using county property for person use, before we get every mislaid paper clip, phone call, vehicle person errand, etc. before the Board of Ethics.

The much abused “paper clip” example has been used by thieves to discredit the law since paper clips were introduced to offices.

It all points to the self-distorted mindset of the Kaua`i Board of Ethics that attempts to reduce all ethical provisions- except for direct self-dealing transaction and observable quid pro quos- to absurdity through disingenuous self-serving, out-of-context word manipulation and faulty logic, combined with an intentional misreading and just plain untrue claims.

Many see this debacle as a reason for re-writing the ethics provisions in the charter and county code. But other than amending the county code to reiterate the charter provisions there is little that needs clarifying to those who approach the issues raised before the BOE with a clear mind and without being in violations of those provisions they are sworn to uphold.

But it is hard to really blame the appointed individuals and hold them wholly responsible. If the county council and the mayor had bothered to read the laws they were sworn to uphold, they wouldn’t be appointing those few in the community who routinely appear on behalf of private interest before agencies, board and commissions to those very board and commissions, especially the one that determines complicity with the law.

Like Caesar’s wife the BOE members should be beyond reproach, and certainly not guilty of the laws they are supposed to uphold.

But there may be one provision that needs to be enacted. At present, according to county and state law the place to file a complaint would be... yes, the Kaua`i Board of Ethics.

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Mark Hubbard’s Perspective of Kauai County Charter Section 20.02D (in full)

The issue of Charter Section 20.02D has been bothering me for about a year now and I wish to give you some history and mostly my rationale for my current personal position on the interpretation of section 20.02 D. The below views and statements are mine personally and are not to be attributed to the Board of Ethics or any other member of that board.

When the board discussed Dee Crowell’s request for an advisory opinion in late 2007, I do not remember any discussion of how 20.02D might impact the opinion. I only remember referencing the County Code, section 3-1.7{d}. The board concluded that a Board of Water Commission appointee is not precluded from acting in a representative capacity before other County agencies and departments as long as he complied with code section 3-1.7.

In early 2008, the issue of section 20.02 came up in regard to Jonathan Chun’s request for an advisory opinion regarding his representing clients before various County agencies and departments. Several members of the public, including Horace Stoessel, maintained private interests before any board, commission or agency. I saw 20.02D for the first time in the light of its plain language and was shocked to realize that I had been on the Ethics board for several years (I have served at least one term prior to my current term without being aware of this issue. I guess it should not be surprising as I believe that this issue has been seldom if ever raised in the 40+ years of the Charter’s existence.

Another reason for my being bothered by this language is that I like to be exact, specific, rational and literal. I talked with Horace Stoessel who I had previously served with on the Salary Commission and for whom I have considerable respect. I also talked with a former Ethics board member who said it could simply be interpreted to mean that no employee or officer could appear “wearing the hat of their office: in behalf of private interests before any agency, board or commission. This sounded reasonable to me as a way of fitting the board’s opinion regarding Dee Crowell and many other examples in apparent conflict with a plain language interpretation of 20.02D. Yet, Horace and others felt that the broad has no authority to “narrow: the language of 20.02D, as it is the Charter and the voice of the people. The board ended up saying that Jonathan Chun could in fact represent private interests in front of boards and commissions other than the Charter Review Commission, of which he was a member.

The controversy is still around as evidenced by Horace’s email. What continues to concern me is how am I able to reconcile a myriad of situations which can be seen to conflict with a plain language interpretation of 20.02D.

It is my current belief that the board has the right to interpret 20.02D. This is based on my observation that everyone who has opposed the board’s opinions in this matter (with possible exception of Bruce Pleas) has in fact interpreted 20.02D in their own way (as I will indicate below).

Let us look specifically at the language and some examples. The language says that “no officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”

- “Officer or employee” covers all county employees, elected officials, appointees and board and commission members. No one seems to have different interpretations of this term.


- The word “appear”, particularly when used with the word “before” means “to come formally before an authoritative body”. Another definition is to “come into view, become visible”. Here there are different interpretations. Many would say that getting one’s driver’s license is not “appearing” before the Finance Department. I won’t disagree.

- The word “behalf”, often used as “in behalf of” or “on behalf of”, can mean in support of, in the interest of, for the benefit of, as a representative of, in defense of. It is my belief, in hearing testimony by Walter Lewis and Horace Stoessel, that they believe that the primary meaning and possibly the only relevant meaning in the context of 20.02D is “as a representative of”. again, I maintain that there are different interpretations here.

- “Private interests”, by dictionary definition, means “intended for or restricted to the use of a particular person, group or class”. Yet, I heard Walter Lewis state in his testimony that he felt that the meaning in 20.02D did not include “personal interest” but only the interest of another person or entity. That jives with the above interpretation of behalf = represent. Here again, we have different interpretations.

- “board, commission or agency” means, by Charter definition, “any office, department, board, commission or other governmental unit of the county”. This would include the County Council. I have seen no disagreement on this interpretation to date.

The above detail is only to point out that most of us interpret the meaning of 20.02D to make it reasonable to us. I maintain that the board can also interpret the meaning of 20.02D in order to most closely find and identify conflicts of interest.

If one looks at Code section 3-1.7 (c), (d), and (e), it is apparent that the County Council intended to interpret the meaning of 20.02D when it enacted the code.

Let’s look at several examples of how a broad interpretation of 20.02D can affect many actions that have occurred in the past and are occurring today, without any claim of conflict of interest or ethical misconduct. While I mention individual names and companies in the some cases, it is only that I know of these and to give a clear example, yet I am sure that there are a myriad of other similar examples that I do not know personally about.

- I go to the Finance Dept to renew my driver’s license. Am I appearing before them? Is it a private interest?

- While I was on the salary commission and ethics board, I represented Grove Farm at the Real Property Division for agricultural dedications. Did I appear? Some say no since I did not go before a group. While I did not appear before the appeals board, would that have been any different than my dealings with the agency in getting agricultural dedications approved? Was there any conflict of interest?

- While Allan Smith was a member of the Salary Commission, I am sure he appeared before the County Council, Planning Department, Public Works, Water Department and Planning Commission as a representative of Grove Farm. Is there any conflict here? This merits some discussion as the Salary Commission has no influence over any other board or commission, with whom Mr. Smith was also dealing.

- Councilmember Mel Rapozo appeared before the Ethics board to seek an opinion about his company’s successful bid to deliver subpoenas for the County. Of note is that he stated that he was appearing not as a councilmember, but as the owner of his business. This was at the same meeting when members of the public were objecting to Jonathan Chun’s representing clients in front of other commissions. At the same Ethics board meeting, Councilmember Shaylene Iseri-Carvalho spoke in favor of Mel’s company contract. When I asked if any of them thought that Mel or Shaylene’s appearance before us violated 20.02D, no one spoke up. In fact several said it was appropriate. This still bothers me as I see no difference between the actions of Jonathan and the actions of Mel and Shaylene when it comes to section 20.02D.

- Some planners in the Planning Department do drafting work as side employment. The department ethics rules, which the ethics board has approved, allows these planners to bring their work to the department for approval as long as they do not review their own work. They can also walk their plans through other departments with no restrictions (on their own time, of course). Is this appearing before an agency?

- Judy Lenthall appeared last year before the County Council representing the Food Bank. Is that a “private interest”? Did she appear as a board of ethics member?

- Any officer or employee goes before the Planning Commission for a permit for his own property. This happens on a regular basis. Is this “in behalf of private interests”? More often, they go to the Planning Department and Public Works Department for building permits. Many times, they will walk the permits through. I have done that. Is this “appearing before”?

- A planning commissioner is an architect who represents clients before various county agencies. The board of ethics opines that he cannot represent clients before the planning department, yet may do so before other departments in the county.

- A County solid waste worker wants to bid on a competitive proposal by the county within his own department. He comes before the Ethics board to ask for an opinion. Is he appearing in behalf of private interests?

- A councilmember testifies in favor of a development project before the Planning Commission. Happens all the time. Is that “in behalf of”? A councilmember testifies against a development project before the Planning Commission. Happens all the time. Any difference? What about any employee or officer testifying in favor of a project before the Planning Commission? Don’t we all have the right of free speech and doesn’t the sunshine law to allow us to speak at a meeting? I believe yes and yes, but I must appear as an individual, not a board of ethics member. I believe there is a difference. Jonathan Chun is on the Charter Review Commission. He represents clients in front of the Planning Commission and County Council. Is there a conflict of interest?

I hope you can imagine that there are many more examples. I see no conflict of interest or inherent violation of ethical conduct in any of the above examples.

Judy Lenthall did some research into the history of the language of 20.02 and the intent behind 20.02D. I attach her email for your interest. While her research gives an indication of the intent of the charter language, I will never be sure of the intent since it was done in the mid-sixties and I was not there. I do have one indication of the intent and that is section 20.04 (Disclosure) which states that included in the disclosure must be “the names of persons represented before government agencies”. Why would this disclosure be required if one was prohibited from representing private interests?

An objection by Horace Stoessel and others to the board’s opinions is that they feel my interpretation totally guts the intent of 20.02D and that there would be no examples of violation of 20.02D using my interpretation. I used some examples of an officer or employee using his official position to apply undue influence for a private interest. The objection to this was that section 20.02E covered that and so the meaning of 20.02D was being distorted by the board.

Let’s look at 20.02D and E.
20.02D – “No officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”
20.02E – “No officer or employee of the county shall use his official position to secure a special benefit, privilege or exemption for himself or others.”
If I tried to put my interpretation of 20.02D into words, it would be “No officer or employee of the county shall appear in the capacity of his county position on behalf of private interests before any board, commission or agency. I think that is an appropriate use of the word “appear”. In the dictionary definition, examples given are that you appearing in court as the attorney, at the witness, or as the client. So, it is not just the individual appearing, but appearing in a certain capacity. I maintain this is a little different from 20.02E and use an example to demonstrate the difference.

- The mayor goes to the building department and asks the department to issue his friend a pending permit right away. In my opinion, this would be undue influence and a violation of ethics and 20.02D. It might not be a violation of 20.02E as a permit being issued is not necessarily a special benefit, privilege or exemption.

As a final bit of information, I looked through all the board of ethics opinions since 1976. I only found 5 that related to appearing before boards, commissions or agencies. Two opinions, in 1999 and 2005, stated that an officer or employee could testify or appear before boards commissions or agencies in a personal capacity, but no in their county capacity. Three opinions, two in 2007 and one in 2008, allowed board or commission members to represent private interests before boards, commissions and agencies other than their own. These last three opinions, by the way, were made by the same board of ethics, which included myself, Judy Lenthall, Leila Fuller and Bob Farias.

I agree with Horace that the County’s Guide to Ethical Issues has an example which can be considered contrary to the Jonathan Chun and Dee Crowell opinions. I suggest a remedy that I am sure Horace would object to and that is to delete this example from the handbook. We can in the near future review the entire handbook and may be able to address section 20.02D in a clear manner. Yet, we should delete the example of page 7 now,

Sincerely,
Mark Hubbard
2-23-09
Attachment: email from Judy Lenthall dated 5-14-08

_______________

Judith Lenthall memo (in full)

Hi Mark,

HOORAY! In fact, EUREKA! Mystery solved re. Intent of the Code of Ethics issue. Here’s the scoop:

In 1964, work first started on a Kaua`i Charter. A Charter Commission was established in 1965 and in 1966 they had a pretty solid draft that the Commission eventually approved. They seemed to have spent a lot of time trying to reinvent the wheel in 1965, but eventually they called upon the example charters from several mainland cities. The city that they eventually plagiarized the most was Salem, Oregon. And Salem Oregon has the same language that interests us.

Since 1968, the language we currently see in our Code of Ethics (for those sections that interest us for the moment) has been identical. No changes. Thus, the intent of this language has to be found sometime in 1965-1966 (I’m assuming that this went to a public vote in 1967? I don’t know).

So, I got the minutes from their discussion about this and here it goes:

1964

Code of Ethics DRAFT PROPOSAL (NOTE: This is a typed sheet with lots of internal corrections and hand-written notes on it). This is NOT the Charter Commission people’s work yet, but elected leaders?)

5. Nothing contained herein shall preclude the acceptance of contributions for election campaigns.
6. Full disclosure in writing to appointing authority or council, to be of public record, of such interests, at any time that such conflict becomes apparent.
7. No outside employment, business or professional activity which may impair his independence of judgment in exercise of official duties, or might induce him to disclose confidential information, or which is otherwise inconsistent or incompatible with or which interferes with the proper discharge of official duties.
8. Council to disclose interest in writing prior to vote.

So, the above was the original start of this issue. This draft was sent to the newly formed Charter Commission who promptly rejected it (and a LOT more), The Charter Commission apparently felt that THEY were supposed to be the crafters of this document. The first Charter Commission in Kaua`i discussed the code of ethics stuff at their April 19th and April 26, 1966 meetings, and they flushed out the section we’re interested in.

April 19, 1966 info:

I need to scan and attach this whole page because it’s too much to write. Briefly, it says if you get PAID in whole or part by the County, (NOTE: This would exclude Board volunteers!), you can’t represent private interests before any agency. Then it says:

This section shall not be construed:

to prohibit any officer or employee from being affiliated with, employed by or representing a person, firm or corporation whose direct and indirect interest in business dealings with the county forms an insubstantial part of its total business, provided that he has not been retained for the purpose of appearing before the whole agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency.
to prohibit any officer or employee from appearing before any agency upon matters only incidentally part of the employment provided that he has not been retained for the purpose of appearing before the agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency;

The jist (sic) of the above is that I think they were trying to REALLY define stuff to be important and payment can’t be contingent on the action of the agency. What is a little confusing is the “you can’t be retained to appear before the whole agency.” What do you think that means?

To me, the intent of the original crafters (1964) was a) disclose; b) don’t mess with anything that could impair your independent judgment. I’ll buy BOTH of those intents. The 2nd version again tries to a) disclose; and b) establish an importance factor to the matter; but muddies the waters with the WHOLE AGENCY language. What? It’s OK to meet before PART of the agency?

Unfortunately, ALL this deliberation got reduced to the VERY simplistic phrase, “Thou shalt not appear before any agency” because this was the copied language from Salem, Oregon. this was the language that was eventually approved for the County’s FIRST charter, and the language which has remained ever since 1968.


But the point is, I think I’m clear now in the intent, and I think it makes sense.

Alas, there is NOTHING on “don’t use county property for personal use” because that too appears to be a copied section with ABSOLUTELY no wiggle-room. Seems to me that if we use the original crafters logic, a level of importance or value might be tried to using county property for person use, before we get every mislaid paper clip, phone call, vehicle person errand, etc. before the Board of Ethics.

So the question I have now is what do I do with this info? Turn it over to Barbara? Can I give it to the guy that seems to have the biggest beef about this language? What?

In any even, I am finally satisfied about the intent and if given this information BEFORE, I would NOT have abstained from my vote.

IMUA!

Aloha,

Judy

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.

---------

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.

RUBBING THE SPOTS OFF THE DALAMATION

RUBBING THE SPOTS OFF THE DALAMATION: So what do you do when those vested with the ability to enforce ethics laws have the ethics of a weasel? What do you do when the laws they are charged with enforcing are subject to their questionable ethics?

Are we talking about the ethically challenged Dan Mollway and the way he as head of the State Ethics Commission shrugged off the apparent intentional lies in their illegal lack of reporting of lobbying expenditures by the Superferry that were once again reported by the AP today?

Nope- we’re back to the masters of the absurd, the Kaua`i board of ethics.

As we’ve reported one, two, three, four times in the past two months their idea is- and I am not making this up- since Kaua`i ethics laws are routinely widely and blatantly violated they should not have to enforce them especially since most of them are also violating the same laws.

And now, as if to purposely make their Henry VIII “I am the law” reasoning a bit more Kafkaesque, they want to change the Ethics law- and of course not enforce it in the mean time using any kind of absurd construction to excuse their essentially illegal behavior.

Section 20.02 of the Kaua`i Charter (page 43) clearly sets out what is and isn’t allowed. But the Kaua`i Board of Ethics (BOE) reasons that since they themselves are in violation there must be something wrong with the law, not their activities that violate it .

And therefore they shouldn’t enforce the laws, though they are clearly set up to be the determining body as to the interpretation of Section 20 that empowers them and defines their powers.

One of their claims is a new one on us. They want us to believe that the sentence that says “No officer or employee of the county shall... (u)se county property for other than public activity or purpose.” bans them from using the county golf course, even though the law specifically says “other than public activity or purpose” which playing golf clearly is.

Another is complaining that the law prohibits a county employee from taking home and appropriating “a paper clip”. Well, yes- as a matter of fact it does. And technically that would be stealing. but how does that make the law absurd, which is what they claim? Shall we make a list of how serious stealing must be to require enforcement? Seems this might be a subject for philosophy of criminology class and way above their pay grade.

We couldn’t possibly sum up the current state of Fellini-movie-like, intentionally self-serving, ridiculous behavior better than the monthly testimony from government watchdog Horace Stoessel who has persisted in his simple analysis and search for sanity.

We’re probably going to be asked to change the ethics law via a ballot this November if the ethically-challenged head of the Charter Commission, Jonathan Chun has his way. This apparent quid pro quo comes after the BOE cleared Chun of blatant ethics violations recently because that would have meant some of them were in violation of the same law.

Don’t fall for it.

First we present Stoessel’s testimony to the BOE for their meeting this Wednesday and then in a letter from him to the County Council begging them to put the matter on their agenda and intercede by upholding statements made by Chair Kaipo Asing made in 2006 regarding the need to enforce our ethics code.

Section 20.02 appears below the two documents for readers’ convenience.

----------------

TO: Kaua'i County Board of Ethics
FROM: Horace Stoessel
SUBJECT: Testimonies
DATE: May 5, 2008

Ladies and Gentlemen:

In keeping with the board's protocol, I am submitting written testimonies and plan to appear in person at the May 8 meeting of the board.

With reference to agenda item IV b (the board's letter to the Charter Commission), in my opinion the board's request for clarifications is misleading and flawed. As to "clarifying" charter section 20.02D, the commission is proposing by one means or another to exempt board and commission members from the requirements of the section via charter amendment(s). The board, on the other hand, apparently thinks everyone should be exempted. To do so would not clarify the section but would effectively eliminate it from the Code of Ethics. In any case, both the commission and the board are talking about radically altering the section, not clarifying it.

The board's request to "clarify" 20.02F raises several questions. What is the origin of the request? Does it stem from a complaint the board has trouble resolving? What kind of clarification is the board looking for? If the board is seeking a charter amendment, why does the board not propose the amendment for the commission's consideration?

On its face, the request to clarify 20.02F looks like a request for someone else to do the work of the board. The application of a charter section to a particular set of circumstances is the board's main task with respect to all six subsections of 20.02. Because these subsections represent unconditional prohibitions, the board's task is to decide if any exception to a given prohibition is reasonable and ethically defensible--otherwise, the prohibition applies without exception.

I suggest that no charter amendment or rule can adequately provide a list of possible exceptions to an unconditional prohibition and thus relieve the board of its ethical decision-making task. I suggest further that exceptions to unconditional prohibitions should occur rarely and in accordance with recognized ethical guidelines. In that connection, has the board formulated a policy or set of guidelines to assist you in administering these unconditional prohibitions?

In my opinion, the most serious flaw in the letter is the statement that 20.02F "does not match the current practice." The board draws the conclusion that since the charter does not match current practice, the charter should be changed. This attitude displaces the authority of the charter with the authority of current practice and contradicts the fact that the board's responsibility is to administer the Code of Ethics, not to subordinate it to current practice.

The matter would be different if the board is prepared to show that current practice represents an ethical standard superior to 20.02F and therefore should be codified in place of 20.02F. As it is, the board merely cites a few far-fetched and questionable scenarios apparently designed to show that 20.02F is absurd and unenforceable, but mentions no cases in which it would apply and offers no definition of "current practice."

With respect to agenda item IV c (questions I sent to the board on April 21), I point out that a discussion of the questions with the public can occur on level ground only if the board is willing to make public Jonathan Chun's request for an advisory opinion and to explain and defend the statutory basis for your advisory opinion to Chun which you have so far kept secret.

Looking beyond my specific questions to the issue of policy and process, I find two questions. How can you administer the Code of Ethics if you do not understand the Code of Ethics? And, what training does the county provide to equip you to administer the Code of Ethics?

I continue to ask the council to call for a public accounting from the board primarily because I believe the board is not administering section 20.02 in a responsible and reasonable way and secondarily because I believe the board has not handled its interactions with the public responsibly. I will send you by separate e-mail a copy of my most recent letter.

In closing, I offer this personal note. For me, the starting point for a dialogue with government agencies is the statement in the Sunshine Law that in a democracy government agencies exist to aid the people in the formation and conduct of public policy. I feel that too often what I encounter with agencies is almost the opposite--a defensiveness rooted in a determination to avoid admitting a mistake at all costs and a retreat into authoritarianism and secrecy that forestalls democratic discussion and debate as well as improvements in government processes.

In my experience mistakes are almost always correctible, but they cannot be corrected if they are not first acknowledged. I feel that I am waiting for someone to acknowledge that mistakes have been made and to take appropriate corrective actions OR to offer convincing evidence that no mistakes have been made and no corrections are needed. I have not seen the board doing either.

Yours for responsible government,

Horace Stoessel

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TO: KAUA’I COUNTY COUNCIL CHAIRMAN KAIPO ASING
FROM: HORACE STOESSEL
SUBJECT: ACCOUNTABILITY
DATE: May 5, 2008

Dear Chairman Asing,

Please accept and docket this communication as a formal complaint.

You spoke as follows in the June 15, 2006 council meeting:

“This Council has worked tirelessly to keep an honest and open dialogue with the community trying to make the best, honest, and reasonable decisions for the general public. All of the every day actions of all government employees, volunteers, elected and appointed officials, and the others must be held accountable to the highest standards of ethics, integrity, and morality. Doing anything less will in my opinion certainly lead to chaos and certain collapse of the entire health, safety, and welfare of the County.”

I believe that action by the Council is imperative if the high standard you laid out is to be upheld. There is substantial evidence to indicate that the Board of Ethics is not administering the Code of Ethics in a responsible and reasonable way.

Specifically, the board’s activities call into question its ability and/or willingness to responsibly administer Section 20.02, which is the most stringent part of the code and exemplifies the stated purpose of the code “to establish a high standard of integrity and morality in government service.”

In addition to evidence I sent earlier to the Council I call attention to a letter the board sent to the Charter Commission on April 21 in which it advocates, first, formally rescinding Section 20.02D by exempting everyone from the prohibition against appearing in behalf of private interests before any county agency. (The Charter Commission has proposed exempting only members of boards and commissions.) The Board of Ethics had already arbitrarily bypassed the section in at least two advisory opinions it issued.

Secondly, with reference to Section 20.02F, which prohibits the use of county property for other than public activity or purpose, the board states that the literal interpretation of 20.02F “does not match the current practice” (as if the charter is supposed to conform to current practice rather than the reverse) and then adds: “Two examples of a literal interpretation may point this out. First, any employee who recycles a County paperclip and uses it for his/her personal use might be considered to be in violation of this section. Further, any County employee who plays golf at the County golf course or rents the convention center might also be considered in violation of this section.”

The board has offered no example of a situation to which either 20.02D or 20.02F would apply, choosing instead to dredge up far-fetched and questionable examples to show that the sections are absurd and unenforceable and to provide a kind of reverse justification for the board’s mistaken rulings.


I am sending to the Council by separate e-mail a letter I sent to the Board of Ethics discussing in greater detail the board’s treatment of Section 20.02D and the public.

Letters like the ones I have sent to government agencies and the newspaper touch the surface of this important public policy issue. Only the Council can give the matter the full public airing it deserves and call for the board to give an accounting of its policies and procedures. In light of Chairman Asing’s statement and the available facts, can the Council do anything less?

Thank you for your attention.

Horace Stoessel

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Section 20.02. No officer or employee of the county shall:

A. Solicit, accept or receive, directly or indirectly, any gift,
whether in the form of money, service, loan, travel, entertainment,
hospitality, thing or promise or in any other form, under
circumstances in which it can reasonably be inferred that the gift is
intended to influence him in the performance of his official duties
or is intended as a reward for any official action on his part.

B. Disclose information which, by law or practice, is not
available to the public and which he acquires in the course of his
official duties or use such information for his personal gain or for
the benefit of anyone.

C. Acquire financial interest in business enterprises which he
may be directly involved in official action to be taken by him.

D. Appear in behalf of private interests before any county
board, commission or agency.

E. Use his official position to secure a special benefit,
privilege or exemption for himself or others.

F. Use county property for other than public activity or
purpose.

CAN’T YOU SMELL THAT?

CAN’T YOU SMELL THAT?: The Board of Ethics (BOE) is meeting this Thursday and as usual the agenda promises a fun-filled theater of the absurd. All the “regulars” will all be there and you couldn’t find a better morning’s entertainment.

Just show up at 9 a.m. at Liquor Conference Room on 1st Floor of the Mo‘ikeha Building.

For a preview of one item here’s a piece titled “Fair Treatment” from BOE watchdog Horace Stoessel.

If a person had been treated like the Board of Ethics and county attorney’s office have treated Charter Section 20.02D, how would the person feel?

During the last year and a half the board, relying on legal opinions, has (1) given Jonathan Chun permission to continue representing clients before county agencies even though 20.02D prohibits such activities by officers of the county, and (2) dismissed three ethics complaints filed by Rolf Bieber alleging violations of 20.02D.

Note: According to Charter Section 20.05G, the complaints could not be upheld as long as the Chun decision remains in force.

I have followed the process closely. There has been no shortage of statements from the board and attorney’s office aimed at proving that 20.02D cannot possibly mean what it says, or that the County Code amends or modifies the language of 20.02D, or that 20.02D is unfair and leads to absurdities and therefore should not be enforced.

County officers pledge to support and defend the charter. Bearing that fact in mind, I tried to remember statements I had heard or read from the board and the attorney’s office supporting and defending 20.02D. I couldn’t think of a single example.

20.02D appears in an executive session item on the board’s agenda for July 9 related to the ethics complaints dismissed by the board on June 4. The notice for executive session reads in part: “…to consider a communication from the County Attorney clarifying the opinion he gave to the Board on June 4, 2009 and providing the substantive basis for that opinion regarding Charter §20.02 D, County Code 3-1.7 and prior Attorney’s opinion dated March 5, 2008.”

Following the executive session the board will publicly “ratify” matters from the session. Since the board has already approved Chun’s actions and dismissed the complaints, can we reasonably expect the board or the attorney to “support and defend” 20.02D on July 9?

In case you missed it, check out our three part series on the BOE, titled “Unethical Culture- Government Service with a Personal ‘Touch’” linked on the left rail or click here for other PNN/gw? coverage of the circus.

WE KNOW WHAT THE PAPER’S FOR

WE KNOW WHAT THE PAPER’S FOR: One of the most unprofessional things in journalism seems to be a favorite practice of local newspaper editor Adam Harju- the self serving if not inaccurate “Editor’s note” tacked onto letters to the editor.

Friday’s publication of a letter from community activist Horace Stoessel on the idiotic miscarriage of justice that is the Kaua`i Ethics Commissions and their decision to somehow let Jonathan Chun get away with a blatant conflict of interest is another example- perhaps the worst yet.

Although Harju buys ink by the barrel and could put his own misguided and often false statements in his own editorial or column- or even a blog- he prefers to spew his lack of acumen in these little digs at the letter writer before the letter- not even after as is customary.

Usually, if there’s is anything from the editor in a letter to the editor it’s a clarification not a comments on the letter. But even that is discouraged. You almost never see it.... except as a regular feature of Harju’s publication.

Any Journalism student gets it- if you’re going to print a letter, print it- don’t comment on it. Especially in the letters column.

This time he has the nerve to say

Editor’s note: This letter discusses one resident’s queries as to the chair of the Kauai County Charter Commission Jonathan Chun’s perceived conflict of interest in his representation as an attorney for private entities in business dealings with the county. Both the County Attorney and the Board of Ethics have made determinations that Chun’s roles are proper.

The fact is that the county attorney may or may not have made such determination- no one knows because no one has seen one. If Harju has one, he has a scoop, even based on his own newspaper’s coverage. And the mealy mouth defense of a friend of the paper’s biggest advertisers isn’t just a coincidence... all ofthis, as we’ve said before in this space.

It amuses us no end how Harju insists on comments in some his community’s letter but seems to let other totally absurd drivel to be spewed in the letter column- all sorts of blatant falsehoods regularly appear in the letter columns from people who have some bizarre idea of how government works or some other misperception based on ignorance.

Perhaps Harju just isn’t bright enough or hasn’t lived here long enough to know a fact from a fantasy but at least he should maintain silence rather than speaking and removing all doubt as to how much of oblivious of the facts he is since he rpeortedly spends his time while he’s here surfing rather doing his job.

And please read Horace’s excellent letter which is spot on and 100% factual- which we present here as a guest editorial, uncensored and un-lied about.

The chairman’s recent letter stated that “based on the Board of Ethics’ March 13 decision on Jonathan Chun’s request for an opinion, the Board will not be taking further action on your request to file impeachment charges against Mr. Chun.”

My request stipulated that it would be withdrawn if Chun resigned or was removed from the Charter Commission.

The board’s decisions leave major questions unanswered. The overarching question is why the board did not apply the plain meaning of charter section 20.02D to the plain set of facts which demonstrate that before Jonathan Chun asked for an advisory opinion he repeatedly violated the section by appearing on behalf of private interests before county agencies.

This question leads to others. For example: Why did the board create a process of secrecy and control by deferring a response to Chun, asking for an opinion from the County Attorney’s office, keeping the opinion secret, and refusing to say by what authority it allowed Chun to continue violating the plain meaning of 20.02D?

Did the board resort to secrecy and control because it was unable to refute the testimony from members of the public in support of 20.02D? I, for one, offered a carefully reasoned argument that the board did not even attempt to address.

If board members believe that the legal opinion they received justifies their decision, why are they unwilling to exercise their authority to release the opinion to the public? The opinion apparently did not convince one member who abstained from the vote allowing Chun to continue his activities.

Is the board willing to take the responsibility for effectively eliminating 20.02D from the charter? I contend that if 20.02D does not apply in a case as clear-cut as Chun’s, it will probably never apply.

Do board members understand that all six subsections of section 20.02 unconditionally prohibit certain activities, collectively erect a fire wall between private interests and the public interest, and are not limited in scope to direct conflicts of interest? The issue in Chun’s case is not that he had a conflict of interest but that he violated the plain meaning of 20.02D. His fellow attorney on the Charter Commission understands the point because he has proposed amending the charter to exempt board and commission members from the requirements of 20.02D.

Did the board decide in effect to cover Chun’s tracks in order to cover its own tracks rather than making a principled decision? In a similar case in December 2007 the board gave former county planning director Dee Crowell permission to seek permits from county agencies in behalf of his current employer. In that case the board unjustifiably ignored and bypassed 20.02D and based its decision on the “Conflicts of Interest” section in the county code. In addition, Chairman Mark Hubbard acknowledged that upholding the plain meaning of 20.02D would mean that he had violated the section in the past.It should be noted that Crowell is in the clear because (a) the Water Board requested an opinion about his future activities while he was still a nominee and (b) section 20.05G clears him of any subsequent violations of 20.02D since he was following the advice of the board. 20.05G does not clear Chun of violations he committed before asking for an advisory opinion.

How does the board justify the motion allowing Chun to continue his activities? According to the minutes, the motion was made “relative to information in the Code of Ethics and the Charter.” What information? The motion reflects a lack of understanding that the Code of Ethics is in the Charter, cites no specific provisions, and conceals the fact that the board bypassed 20.02D.

I had questions like these in mind when I asked the mayor and council, who appoint board members and share the responsibility with them to enforce the Code of Ethics, to call for a public accounting from the board.

No one has acknowledged receiving my request, much less that my concerns would be addressed.To me, the silence and secrecy do not accord with the stated purpose of the Code of Ethics “to establish a high standard of integrity and morality in government service” (section 20.01).

As representatives of the people charged with administering the code, what do you think and, if I may put it so, do you have the courage to discuss these questions in a public setting?

Horace Stoessel
Kapa`a

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.

CHASING ANOTHER TALE

CHASING ANOTHER TALE: This week’s Kaua`i Board of Ethics (BOE) meeting promises to be more of the same- a few hours of attempts to act unethically, cover-up past lapses of ethics by board members and hide everything else they do from the public, along with yet another attempt to strip the county charter’s ethics provisions of it’s conflict-of-interest section.

Testimony by designated BOE watchdog and “nitpicker” Horace Stoessel arrived in our inbox this morning and it’s too important to let it wait for later this week, if only so that perhaps it will motivate some to clear their calendar for this Thursday morning and show up, preferably with pitchforks and torches.

The first thing Stoessel addresses is a little item at the end of the agenda- an “executive session” closed to the public which is listed on the agenda as

ES-3: CONSULTATION WITH ATTORNEY
Discussion and consultation with the County Attorney regarding the process for releasing County Attorney opinions and is there a need for consistency throughout the County.

Horace wrote:

The primary fact confronting the public for months, now stretching into years, is that county agencies are not releasing opinions even though the authority and responsibility for releasing them resides with client agencies. Indeed, focusing on process and the need for uniformity has served as a prime excuse for not releasing opinions and not holding open discussions.

“Months” is an understatement since the refusal to acknowledge any public function to the office of the county attorney (CA) goes back to the beginning of Mayor Bryan Baptiste’s administration when he appointed Lani Nakazawa to the post and she redefined the job to eliminate any public component and only serve her “clients”- defined as county government officials and personnel.

At first that meant that any release of official written “opinions” had to be through the entity that asked for and got the opinion.

And that was, at first, routinely done.

But with the election of now former Councilmembers Mel Rapozo and Shaylene Iseri Carvalho things changed in most part due to two related matters- an “investigation” of the Kaua`i Police Department the two cooked up and the council approved (but never officially executed after the council used the BOE to purge Police Chief KC Lum) and a matter known as the infamous “ES-177” where Rapozo. a former scandal-plagued KPD officer apparently said way too much behind closed doors about police matters and the then-upcoming investigation.

This led to a full clamp down on public release of all correspondence- even formal opinions on matters of law- from the CA’s office to the council.

Whereas before opinions were either released by the CA or by a councilmember if he or she originally sought it, an informal policy was used to release the opinions only after a “council approval”, where a majority vote was used at least once.

When Councilmember Tim Bynum came on board and tried to get the council to vote on the release of some of these opinions- as most councilmembers publicly promised to do- Chair Kaipo Asing and then member, now Vice Chair, Jay Furfaro claimed that before the vote there had to be a written formal policy for how the vote would be conducted and what percentage the affirmative vote had to be- just a majority, two-thirds or even unanimous.

This little ploy has now become the “de rigor” delaying tactic, not just for the council but for all boards and commissions on the island, This has especially benefited the BOE which has not just withheld opinions but constantly flouted the sunshine and open records laws, even codifying illegal activity in their administrative rules.

But that wasn’t enough of a delaying scheme to stand up forever and now, after a couple of years of playing Alphonse and Gaston the BOE came under pressure to simply enact a policy for the release of CA opinions.

Enter John Isobe, director of boards and commissions, a post created by a charter amendment in 2006 supposedly to oversee and assist commissioners and board members in fulfilling their duties.

Isobe- a long time entrenched member of the revolving-door old boys and girls network- has used his position to make sure that those citizen members did things the way they’ve always done things and not rock the boat.

In service of continuing the delay, Isobe has suggested that an individual board or commission should wait on creating a policy for CA releases until, as the agenda for ES-3 says, the question “is there a need for consistency throughout the County?” is answered.

The agenda promises to rehash an even more absurd but related matter- the attempt by the BOE to gut the county charter of the conflict of interest provisions in Section 20.02(D) of the county charter that prohibits board and commission members from representing private interest before the county, including of course boards and commissions... including the county council.

Seems some of the BOE members are still in blatant conflict of that pesky little provision.

Apparently is wasn’t enough of a rebuke to both the BOE and the charter commission when voters overwhelmingly rejected dropping the charter provision in 2008, because on the agenda this week is this item:

Letter of March 25, 2009 from Charter Review Commission requesting input from the Board of Ethics as to whether Section 20.05 D (2) of the Kaua`i County Charter should be amended and, if yes, suggestions on how it should be amended.

For years the 20.02(D) conflict provisions were just ignored by the well connected who routinely went before the council and county boards and commissions seeking, for example, things like zoning or even grants of money from the council or development projects’ approval permits from the planning commission, while serving on other boards of commissions.

But in 2007-8 a member of the charter commission, former state senator and attorney Jonathan Chun, was routinely appearing before the council representing the Board of Realtors on the vacation rental bill before the council at the time.

Chun then made a fatal error of judgment when he actually asked the BOE for a ruling on whether he was in violation of 20.02(D)

Stoessel’s testimony tells the story from there in what he calls “The Case Of 20.02D”

The issue of the County Attorney opinion related to Jonathan Chun’s request for an advisory opinion has been outstanding for more than a year. It may represent the only time the Board of Ethics has sought a legal opinion before issuing an advisory opinion. It is also interesting that the Board issued an advisory opinion involving similar circumstances just three months previously in which the Board felt no need to ask for a legal opinion or to meet in executive session.

Once the Board emerged from executive session in March, 2008 a motion was made and approved to allow Mr. Chun to continue the activities referenced in his request for an advisory opinion. The motion as approved failed to meet even the minimum test for public disclosure because it cited no statutory basis for the decision, instead making a vague and misleading reference to information in the Code of Ethics and the Charter.

The Board also refused to release the legal opinion it purportedly used to justify its decision. When I asked the Board to justify keeping the opinion secret, the chairman replied, “I do not intend to answer that, Horace. It could be that I don’t know; it could be that I just don’t wish to answer that question.”

But the BOE’s utter refusal to enforce the law- or state why- was only the beginning.

Chun wasn’t the only one engaged in this practice.

In fact then BOE Chair, now Vice Chair Mark “Mother” Hubbard was a vice president at land baron Grove Farm and he and his brethren- many also serving on boards and commissions- routinely made requests from the county council and administrative boards and commissions on behalf of themselves and/or clients.

BOE member Judy Lenthall is the Executive Director of the Kaua`i Food Bank which just received another grant from the county council this year after she appeared before them hat in hand.

Oh and by the way, the BOE has also cleared Furfaro, Asing, Rapozo and other council members from potential conflicts in the past.

So in appreciation for the clean bill of health for Chun’s apparently “dead on arrival” clearance, Chun turned around and, as a member of the charter commission, put a measure on the ballot to just eliminate that pesky 20.02(D) from the charter.

Stoessel’s testimony takes it up from the Chun decision:

In succeeding months the Board encouraged the Charter Commission to offer a charter amendment exempting all county personnel from having to comply with 20.02D rather than exempting only board/commission members. However, the commission restricted the scope of its proposed amendment to board/commission members and the amendment was then rejected by the voters in November, 2008. Their rejection revived questions about the Board’s handling of 20.02D and the March, 2008 legal opinion.

For my part as a responsible member of the public, I am still waiting for the Board to respond directly to the formal argument I offered in February, 2008 in support of basing a response to Jonathan Chun on 20.02D and to additional information I have since cited in support of that argument. The public has been prevented from further commenting directly on the Board’s actions by the Board’s failure to cite a statutory basis for its decision in the Chun case and its refusal to release the legal opinion.

The Board postponed discussion of 20.02D at the March meeting, and seemed to me to indicate that both 20.02D and the March, 2008 opinion would appear on the agenda for April. Did I miss something, or was I justified in being surprised that neither appears on the April agenda?

If it is within the scope of ES-3 (or the last item under BUSINESS), I would like to see the Board vote to release the March, 2008 legal opinion now. Failing that, I ask the Board to place on the May agenda a vote on releasing the opinion and a discussion of 20.02D. In view of the fact that the Board’s last formal statement regarding 20.02D was an expressed desire to exempt all county personnel from having to comply with it, I would like to hear what effect the November vote has had on the thinking of the Board.

So would we. If you’d like to know too go on down there and ask them.

The BOE meeting is at 9:00 A.M. this Thursday, April 9, 2009 in the Liquor Conference Room on the first floor of the Mo`ikeha Building in Lihu`e (the complex where the planning commission meets and where you get your car registered and drivers’ license renewed).