EVERYBODY’S LAUGHING, EVERYBODY’S HAPPY

EVERYBODY’S LAUGHING, EVERYBODY’S HAPPY: County Attorney (CA) Al “The Nebbish” Castillo surprised a select few with his apparent agreement with the ACLU- Hawai`i opinion about illegality of the Prosecutor Shaylene Iseri-Carvalho/KPD/anti-drug office-sponsored, anti-marijuana rally last week.

Others suspect though that perhaps his opinion had less to do with the issue at hand than it did with the long standing feud between Castillo and Iseri ever since both took office over two years ago. The infamous game of musical chairs at the time has left the county with a bunch of ex-prosecutors in the CA’s office and vice versa which may be why Castillo took the opportunity to stick it to Iseri.

But at the same council meeting where Iseri and Councilmember Mel Rapozo held their “Reefer Madness” cotillion, Castillo was busy doing his best Louis Quarorze impression, once again interrupting the council to remind them who, in reality, L'Etat c'est.

The issue at hand was a complicated one that has been doggedly pursued by activist Horace Stoessel even since January’s inaugural meeting fiasco over the evaluations of appointed officials, including the county clerk.

Stoessel has become a resource extraordinaire on the subject for the council, having sat on the Salary Commission and after spending years to emerge as an expert on the subject- as well as others- as it relates to the county charter.

So after Stoessel’s “three minutes times two” were up the council had many questions and was trying to ascertain his opinion on who should be responsible for writing into law the process for evaluations.

It’s all very esoteric but suffice it to say that it had gone on for quite a while when, like a petulant child piping up during a “grown-up conversation” Castillo couldn’t take it any more.

His first interruption was, as if they needed it, to “direct” the council to “stop”, saying Stoessel was well past his three minutes and was- gasp - actually engaging with them during deliberations- something former Chair Kaipo Asing invented and then promptly banned in order to take the public out of the public participatory process.

He was pretty much ignored and the council was finally getting to the nitty gritty of whether the council actually had the authority to dictate a system for evaluating administration appointees when Councilmember JoAnn Yukimura asked if she had properly understood Stoessel’s “legal conclusion” on a fine point.

That was just too much for Castillo who loudly protested that a “legal conclusion by anyone but the county attorney is irrelevant” and that it was “really improper” for Stoessel to reflect back on his time with the salary commission.

As Castillo spoke, the camera showed a clearly agitated Yukimura, rolling her eyes and shaking her head in disbelief. Then Council Chair Jay Furfaro tried to calm things reminding Castillo that he, Furfaro, was the chair and was “acting like any good manager,” likening it to seeking input from a valued employee whose knowledge and experience was essential to the conversation.

That brought back some decorum and discussion continued with a clearly agitated Castillo keeping his peace. But when it became apparent that the council was going to take Stoessel’s testimony to heart, the Sun King couldn’t control himself any more screeching out “I am the County Attorney” and then blathering on about how he should be consulted and boo-hoo-hoo and blah-blah-blah.

So tune in again next week folks for the comedic stylings of Iseri and Castillo and their ensemble of rotating attorneys. You can’t go wrong and well, the price is right... if you ignore the fact that your taxes paying for it.

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.

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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.

STILL ON PATROL

STILL ON PATROL: The recent decision by the Kaua`i Board of Ethics (BOE) to enforce the conflict-of-interest prohibitions as expressed in the county charter’s section 20.02(D) was an important first step in reforming what has evolved into a traditionally ethically-challenged political tool of administrations and councils.

And apparently members of the public aren’t going to rest on their laurels if Horace Stoessel’s communication asking the BOE to “schedule three reviews that I believe will serve the public interest as well as the board’s interest, with a brief rationale for each” is any indication.

Although Stoessel’s requests are matters that the BOE needs to examine until they come under a less political and more independent template and appointment system - similar to that of the State Ethics commission- any reforms may be merely akin to shifting deck chairs on the Titanic until the charter review commission decides (or a group of citizens petitions) to deal with the really problematic charter sections like the one governing the BOE’s structure.

That said, here’s Horace’s request:

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TO: Chairperson Sally Motta and members of the Board of Ethics
FROM: Horace Stoessel
SUBJECT: Request for Reviews
DATE: March 30, 2010

The purpose of this communication is to ask the Board of Ethics to schedule three reviews that I believe will serve the public interest as well as the board’s interest, with a brief rationale for each.

1. A review of the board’s Guide to Ethical Issues (2004), with a view to making appropriate revisions. Aside from routine corrections such as recognizing the creation of the Office of Boards and Commissions Administrator, potentially confusing references to the Code of Ethics need correcting. In the last paragraph of page one, for example, the Code is referred to as “these ordinances,” while the examples listed on pages 4-8 routinely cite the County Code ahead of the Charter—a practice that should be reversed.

2. A review of Chapter 3 Article 1 of the County Code in light of Charter Section 20.04D, with a view to recommending changes per 20.05D(5). In 1971 the Council enacted Section 25, entitled “ETHICS,” consisting of slightly more than two double-spaced pages. In 1976 the section was replaced with approximately six single-spaced pages entitled “CODE OF ETHICS.” It is reasonable to assume that the new title and expanded contents made it easy for people to assume that Chapter 3 Article 1, rather than Charter Article XX, contains the code of ethics. The title of 3.1 should be changed to something like “Supplements to the Code of Ethics,” and the contents should be reviewed in light of the requirement that ordinances should be necessary supplements to the code. For example, is mere repetition of sections from Article XX justified by 20.04D?

3. A review of the relationship between the Board of Ethics and the administration in light of the board’s authority and responsibility per Article XX, the job description of the Boards and Commissions Administrator (Charter Section 7.06 adopted in 2006), and the County Attorney’s role (Charter Section 8.04). The board is not a part of the administration, but the fact that the Boards and Commissions Administrator and the County Attorney are appointed by the Mayor and serve the board can lead to the perception that the board is just another part of the administration. One key issue is whether the board has the right to seek outside counsel when it deems such counsel is needed.

I request that this communication be placed on the board’s April 9 agenda.

CHASING THE WHITE RABBIT

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

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

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

THE PRIMACY OF THE CHARTER OVER THE COUNTY CODE

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

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

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

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

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

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

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

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


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

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

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

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

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



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

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

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

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

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).

DOGGIE DADA

DOGGIE DADA: Much has been written in the past two days about the “new” county attorney’s opinion regarding the county charter’s section 20.02(d) that prohibits any “officer of employee of the county (from) appear(ing) in behalf of private interests before any county board, commission or agency.”.

Two articles in the local paper (one linking to a pdf copy of the opinion) and an editorial laid out many of the absurdities of trying to say that, because reading the law in one somewhat absurd interpretation could lead to absurd results- like preventing someone from getting a water meter or a driver’s license- the whole law should not be enforced.

Then there’s the letter to the editor from Horace Stoessel who analyzes the opinion further and delineates the problems with the opinion. And of course blogger and attorney Charley Foster also got straight to the point once again.

We won’t rehash what they said. But though each is spot on as to what they do present, each fails to look at what the opinion, penned by Deputy County Attorney Mauna Kea Trask, actually says, especially regarding what if anything is new about it as compared to one penned over a year ago.

Of course as the newspaper article points out the opinion is still “fatally flawed” in trying to allow the county ordinance to be read “with” the charter even though the ordinance, which conflicts with the charter, must adhere to the charter not override it. In addition just because the ordinance covers some situations of conflict-of-interest doesn’t mean it covers all of them, another apparent contention.

We say apparent because the opinion goes into great detail about what the ordinance says but then abruptly ends without attempting to show it’s relationship to the charter or the conclusion.

In fact, as Stoessel writes, the ordinance never mentioned 20.02 much less provision "d" and rather only deals with 20.01.

Trask is apparently either an incredibly bad attorney or is disingenuously trying to support a forgone conclusion by presenting a wordy opinion that says nothing directly related to the matter at hand, selectively picking and choosing citations to twist the law to it.

The fatal flaw is contained early in the opinion when Trask cites HRS §1-16 which states that "laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called in aid to explain what is doubtful in another."

The problem with that is that under other provisions he conveniently omits, it applies under the supremacy doctrine- flowing from federal to state to local and giving constitutional documents supremacy over legislation at each level- which means that laws of the same jurisdictional level must be read together but when one law trumps another the lower law is null and void. In other words charter provisions must be read equally together but when comparing a charter provision to a county ordinance the charter always rules if they conflict.

But the one “new” citation when compared to the prior opinion is an actual HRS (state law) provision that deals with the oft cited circumstance of alleged “absurd results” of applying a law in a strict construction manner.

Trask writes that:

HRS §1-15 states, "Where the words of a law are ambiguous:
(1) The meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.
(2) The reason and spirit of the law, and the cause which induced the legislature to enact it, may be considered to discover its true meaning.
(3) Every construction which leads to an absurdity shall be rejected."

The key is number three. Even though he tries to define “public interest” to be the opposite of private interest rather than personal interest- a matter we went into in depth in previous posts- even under his interpretation the law simply says that any time any constriction of a law yields an absurd result that specific result of that specific application is to be discarded.

So if the law were to prohibit one from getting a driver’s license the law simply does not apply in that specific circumstance.

This finally undermines the arguments of some on the board- specifically Mark Hubbard, Lei Fuller and to some extent Judy Lenthall- that because there might be absurd results in some contrived situations the whole law should be discarded including the blatant potential conflicts-of-interest violations that the law was designed to eliminate.

That should at least, if nothing else, end the raising of the red herring of the “absurd results”- the one Hubbard has clung to saying that because he could be denied a building permit he should be allowed to violate the law by appearing before county entities on behalf of a private interest.

While that solves one big impediment to enforcement of the charter it does leave one big question. Even though normal rational people would be able to tell these absurd results from those that are not absurd the three BOE members listed above have all been in violation of the real not-so-absurd provisions and so have been reluctant to essentially rule against themselves by fairly judging the applicability.

One of the contentions has been that non-profit 501(c)3 organizations should not be included because they “do good in the community”, something we have discussed and shown to be bogus in many situations at least according to those who oppose the goals of certain non-profits. For instance the Chamber of Commerce and the Sierra Club might not see the other one as doing good or benefiting the community.

But attorney-blogger Foster points out another reason by saying that non-profits often appear- as in Lenthall’s case as the Executive Director of the Kaua`i Food Bank- to ask for funds. He says that because there are limited funds for non-profits in government coffers, the “favor” of one non-profit over another is exactly what the charter provision envisions and is one of the main reasons it is included.

At this point unless the three obstructionist BOE members drop their silly self-interested positions and stop blocking enforcement, they are themselves guilty of another provision in the same charter section that prohibits using their positions to gain favor or grant special privileges for themselves or others.

The only problem there is, as we stated before, the BOE is the entity that is designated to hear any complaint like that. And presumably they would be the ones to determine what is and isn’t an absurd result of application.

As we said before as long as they, as a quasi judicial county entity, keep obstructing justice the courts may be the only resort for the community.

REAL OPTIONS

REAL OPTIONS: As our readers- and anyone who’s seen a council meeting lately- know, one of the more power-drunk county officials is often demented County Attorney (CA) Al Castillo who last week thought it was within his purview to order someone testifying before the council to remove his hat.

Castillo is the latest in line of CA’s that have acted as political hacks and stooges for the council and mayor, following in the “law is what we say it is” footsteps of Hartwell Blake, Matthew Pyun and Lani Nakazawa who is currently serving Mayor Bernard Carvalho as his own private attorney and political “advisor”.

We’ve called for a charter amendment to elect the county attorney since the current 10-year-long charter review commission (CRC) first met in 2004 but it has escaped their radar screen due partially to the fact that the post-2006 members don’t seem capable of walking and chewing gum at the same time except for regurgitating an old seven-time rejected amendment for four-year council terms and other assorted Titanic seating-chart tinkering.

Today we received an advance copy of a letter from CRC watchdog Horace Stoessel making the case for an elected CA with a particularly pithy set of choices.

Here it is.

OPTIONS

The county charter provides for the county attorney to be appointed by the mayor, with council approval, and to serve as the county’s chief legal adviser and legal representative.

The charter also mandates that the Charter Commission “study and review the operation of the county government under this charter” and propose amendments to the charter that it deems necessary or desirable.

Based on my observations of government operations and study of the charter, if the commission honors its mandate it has two options for proposing amendments regarding the county attorney’s office.

If the commission wants to bring the operations of the office into line with the charter, it should propose that the county attorney, like the prosecuting attorney, be elected for a four-year term, thereby freeing the office from having to serve not one but two political masters who are sometimes at odds with each other.

However, if the commission deems that the proper course is to bring the charter into line with current practice, it should propose adding a phrase to make the charter read, “chief legal adviser, legal representative, and political enforcer.”

For reasons too obvious to require spelling out, I favor a proposal for a four-year elected term.

Horace Stoessel

GOW MUCH IS THAT CRONY IN THE WINDOW?

HOW MUCH IS THAT CRONY IN THE WINDOW?: The cesspool of Kaua`i politics overflowed it’s honey wagon Thursday as the historically ethically-challenged Kaua`i Ethic Commission’s Chair Mark Hubbard admitted has violated the same County Charter provision he was asked to rule upon.

As reported today http://www.kauaiworld.com/articles/2008/02/15/news/news03.txt Hubbard, a long time honcho at missionary land-baron Grove Farm, admitted he routinely violates charter section 20.02D, which states in part that “no officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency.”

Former State Senator and now shill for the Board of Realtor’s Jonathan Chun is now sitting in the newly-perpetual Charter Commission even though he just single-handedly convinced his crony Councilwoman JoAnn Yukimura to sell us all down the river by allowing all the vacation rental currently in our residential neighborhood to stay there forever, despite state and county laws forbidding it.

Hubbard is a chartered member of the new generation of the old boys and if this administration and council doesn’t protect their cronies, what exactly DO they do. Just the recorded and verified illegal ex-parte conversations that have gone on between Mayor Bryan Baptiste or Council Chair Kaipo Asing and the EC in the Ching/Furtado/Lum/KPD case could fill a blogpage. When you add the administration’s staff and other councilmembers, were they to be all to be documented this cheap Chihuahua would have to pay extra to publish all of those.

Hubbard’s pooh-poohing of the law is just par for the Municipal Course. He fits in well with the very un-ethical culture of the county. “why we’ve been doing it that way since the 50’s” culture that has to be dragged kicking and screaming into a world of open governance.

He’s just the latest and greatest EC chair taking over for Sandy Helmer whose legendary antics were recently documented.
Despite three requests in the last four years, the OIP has refused to take complaints about simply the agendas of the EC, which don’t list subjects much less specifics of any case. In practice the public has not even been allowed into their meetings until that became too absurd even for Kaua`i recently.

Community watchdogs and legendary “nitpickers” Glenn Mickens, Ken Taylor Horace Stoessel, Walter Davis and Ed Coll have been challenging the Commission brining up the blatant violation by Chun who actual asked for a ruling.

Both Mickens and Stoessel vehemently challenged that Friday as well as elements of the TGI story (look for them under “comments”). Hubbard and Food Bank Leader Judy Lenthall who often has to lobby for money from governmental boards commissions or agencies

Lenthall’s work is that of our local Mother Teresa and Chun may be the current devil himself on Kaua`i but that isn’t the point. Our island’s constitution document has a great prohibition for just the reason it’s there- to keep a small clique of wealthy landowners from being on the “peoples’ boards and commissions- the place where normal every day people serve to keep us in touch with our community.

In theory. Hubbard is only the latest to find himself finding out that the way things worked can’t still be the way things work now.

Asing- or “Uncle Chair”, as newbie haole councilmember Tim Bynum has been heard to call him during session- has mastered the “I am the law” art that passes for governance on Kaua`i and hizzonah does too. The administration has made hide-the-roll-of-documents into a fun game where no one responds unless you sue them.. and then they wonder why their legal bills are so high.

And that was how Jonathan Chun extorted them into allowing vacation rentals in residential neighborhoods.


Oh, Chun is a former deputy County Attorney, under Yukimura. Can you say revolving door? Same faces, new jobs. Same money- yours

And you wonder why that in fact is EXACTLY what the charter means.

99.9% of the people are eligible to serve on boards and commissions on this island. But they are filled by the same people whether in business or government... this week.

But don’t worry there’s no crisis... nothing to see here. The Kaua`i County Attorney- or “Judge” as Asing calls him- will instruct his minions to say whatever they have to say but say it in secret.

And you know what? the real judge just let them “intertwine”
http://www.kauaiworld.com/articles/2008/02/11/news/news02.txt
anything they want to say surreptitiously. If Mel Rapozo says “fire that bastard Kimo and I hate KC Lum” all in one sentence, why, how can you possibly sort that out?

And she just walked along alone
her guilt so well concealed,
and muttered underneath her breath,
nothing is revealed.

SAME OLD TAIL

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


FROM AWKWARD TO UPRIGHT

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

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

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

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

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

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

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

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

Horace Stoessel

JAWS OF DEFEAT/SAY IT AIN’T SO

JAWS OF DEFEAT: About a week or so back we got a thus-far-unpublished letter to the editor from Horace Stoessel, the father of the 20.02(D) controversy- the man who first had the temerity to ask the Kaua`i Board of Ethics (BOE) to enforce the charter.

In it he surprisingly said he would compromise and support the “carve out” exemption for charitable organizations when county officials appear on behalf of private interests before county boards, commissions and agencies in order to get the rest of the provision enforced.

So today’s news that the Ethics Board has (had a) change of heart and voted to uphold the law after all the silliness of the past couple of years came as something of a shock.

Even Mark Hubbard who fought the hardest to make a mockery of the law voted for it although, according to reporter Mike Levine he still has remnant schizophrenic, double-talking tendencies in refusing to admit the past rulings clearing Hubbard and others were a mistake.

And of course, as the people’s champion former BOE member Rolf Bieber told Levine the proof will be in the pudding since, as we’ve seen, just because a clear statue exists it doesn’t mean people with conflicts will do what Hubbard suggested in saying exactly what we’ve written dozens of times:

(W)ith this interpretive rule, it’s now different than we’ve voted in the past, and I would have been in error in going before the County Council. I should not do that again, or I should quit my position on the Board of Ethics. I have a choice.”

It’s certainly a black eye for the gang of administration stooges at County Attorney Alfred “E. what me worry” Castillo’s office who didn’t even bother to do enough research to turn up the state ethics commission letter that convinced the BOE that they didn’t have any cover to continue to carve out exemptions or create “absurd result” excuses for their illegal activities.

Throughout the whole debacle people have asked basically “what the heck is the difference?.. it’s not as if this will magically clean up the corrupt, old boy network of the board and commission system”.

No it won’t. They will still try to make sure that if you wear the kings uniform you carry the kings sword. We’ve spoken to four people currently serving as a mayoral appointees who confirm that board and commission chief John Isobe made sure that they “support the mayor” before getting an appointment.

But it will shake out the most conflicted- those with an obvious reason to play the “one hand washes the other”, revolving-door game.

It also gives heart to those who still believe that a small, dedicated, persistent group- in this case Bieber, Stoessel, Rob Abrew and Glenn Mickens who did what most or can’t do... show up- can effect change even if it is incremental. Their success couldn’t have come about without Levine’s detailed news coverage and others like Charley Foster and Joan Conrow whose blog posts helped keep the issue before the public.

If they’re anything like us, these people do battle with the entrenched cronies not for the rare victory like this but for the fight itself because they have trouble living with themselves if they don’t.

As the Happy Camper might say, “hats off”, “kudos” and “three cheers” for them the real service-oriented citizens of Kaua`i.

----------

SAY IT AIN’T SO: Speaking of Levine it looks like the inevitable is about to come to pass. According to John Temple, the editor of “Peer News”, the nascent online Hawai`i news venture (thanks to Ian Lind for the heads up):

I’m happy to report that we’ve now hired the editorial team that will launch our new news service for Honolulu and Hawaii...

(T)he reporter hosts at Peer News will include:

Mike Levine, currently a reporter and assistant news editor at The Garden Island newspaper on Kauai. Mike has worked as a journalist on Kauai for a couple of years, after picking lettuce and acting as a tour guide there. He also worked for Fodor’s to update the Kauai section of the 2010 Hawaii Guidebook and Kauai Guidebook 3rd Edition. Mike worked as a news desk editor and writer at NBA.com before moving to Kauai. He’s a graduate of Lehigh University and the rare reporter to have majored in journalism and minored in material science and engineering.

We’re not sure if this means Mike will be leaving the local newspaper and apparently he will still be covering Kaua`i even if he does. But a statewide news services is unlikely to cover the detail of local Kaua`i news that his reporting has provided.

---------

We’ve off for the weekend tracking how soon we’re eliminated from the basketball pool. We’ll be back with a tear-stained entry Monday.

(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.

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


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