Saturday, December 27, 2008

KPD Blue- Chapter 21: The Ethics Board and Michael Ching

KPD Blue

By Anthony Sommer

Chapter 21: The Ethics Board and Michael Ching

The Kauai Ethics Board is not the champion of the public interest and scourge of rotten politicians and bureaucrats that its name implies.

Quite the opposite.

The Ethics Board is a cudgel the mayor wields to smite public officials who criticize him. For starters, the board is made up entirely of the mayor’s cronies.

Ethics boards, where they exist in jurisdictions on the mainland, have their own staff and their own lawyers and their own office space outside the government complex.

They operate at “arms length” from the government. Their independence is the sole source of their credibility.

The Hawaii State Ethics Board is not beholden to any one politician. It is appointed by a commission whose members are selected by a variety of elected officials who often have competing interests.

But at the county level in Hawaii, ethic board members are appointed solely by the mayor; a system guaranteed to be abused by unethical mayors.

In 2007, the Hawaii Legislature passed a bill requiring the ethics commissions of the four counties to adopt the state’s method of choosing ethics commissioners to insure similar independence.

For the counties in general and Kauai in particular, the bill was a major step toward giving their ethics boards a touch of badly needed credibility.

The bill received zero attention in the media.

“Government news is boring” is the mantra of editors. Best stick to helicopter crashes, shark bites, and celebrities making fools of themselves.

Bryan Baptiste, who very much wanted to keep the Kauai Ethics Board as his personal hammer for exacting revenge on political enemies, urged Gov. Linda Lingle to veto the bill.

She did. But it appeared headed for an override vote, and the mayor of Kauai again leaped into action.

Baptiste lobbied legislators to not override Lingle’s veto. They didn’t. The override never even came up for a vote.

Kauai County Ethics Board members remain the mayor’s appointed stooges.

On Kauai, the Board of Ethics has neither independence nor credibility. The board exists to give the impression that county government has integrity, but the reality is just the opposite.

On Kauai, the board’s staff is a part of and physically located in the mayor’s office.

Every complaint to the Board of Ethics comes through the mayor’s office and there is no mechanism preventing the mayor or his staff from seeing every one of them before the board does.

Considering the complaints it receives invariably are about the mayor or members of his administration, it might seem wise to put them at least in some other office, if only for appearance’s sake.

And the Board of Ethics’s legal advice is provided by the county attorney, who is appointed by the mayor to represent him and his department heads, exactly the same people named in the complaints filed by citizens.

Isn’t there a conflict of interest somewhere in there?

Not on Kauai.

Consider the Ethics Board and its investigation of Police Commission Chairman Mike Ching.

The Ethics Board case was entitled “in re: Michael Ching” but the real target, and everyone knew it, was K.C. Lum, who never was the subject of any ethics complaint.

In fact, Lum never was accused anywhere by anyone of doing anything illegal or unethical. His only crime was in being an outsider.

So Baptiste had to figure out a way to back door his effort to get rid of Lum.

Baptiste turned to County Attorney Lani Nakazawa.

Throughout her tenure as Kauai County attorney, Nakazawa was very careful to give all her opinions to county officials verbally, rather than in writing, which would leave a paper trail (assuming, in the first place, anyone ever obtains access to the records, which she made sure was impossible without a long and expensive court fight).

According to county records, the Ethics Board complaint against Ching was filed by Lt. Scott Yagihara, who filed a similar complaint against Police Commission Vice-Chairwoman Carol Furtado.

Yagihara, in fact, soon was littering the County Building with complaints. It became clear he was nothing but an errand boy for Bryan Baptiste.

Furtado called it “another witch hunt” by the mayor and Council.

Mike Ching, a very successful Hanalei businessman who owns and runs a shopping center founded by his father, was the chairman of the Kauai Police Commission when it chose K.C. Lum both as acting chief and later as permanent chief.

It became fairly clear that somewhere in the year-long process to find a replacement for George Freitas, Ching began to favor Lum as the best candidate.

There is nothing in the law to prevent a member of any commission from taking a position on an issue and trying to convince fellow commissioners to do the same.

But there is a Kauai County Ethics Rule forbidding a county official from using their government position to benefit themselves or their friends.

The ethical prohibition was aimed at instances such as Mayor Maryanne Kusaka quadrupling her own travel budget so she could lease a car from her campaign manager. Or, Kusaka using her county-financed television show to
promote her best friend’s new subdivision.

The Ethics Board thought that was just fine.

But what if a member of a county commission tries to convince fellow commissioners to vote a certain way? That’s why commissions have multiple members and have meetings to debate issues and try to sway fellow members.

Unless, in doing so, you piss off the mayor.

Then the Ethics Board responded to a complaint from a KPD officer (Lt. Yagihara) who never had any personal involvement in the issue or personal knowledge of the allegations he made.

In fact, Yagihara never was called as a witness (odd, because he was in theory the complainant and supposedly a victim of the unethical behavior) at the Ethics Board hearing on the allegations against Ching.

Ching’s case went to a hearing officer, E. John McConnell, a retired judge from Maui. He conducted a hearing on Nov. 18, 2005.

On Feb. 23, 2006, McConnell issued his “Findings of Fact and Conclusions of Law” and a separate and much shorter Hearing Officer’s Report.

In the end, McConnell found Ching had violated the county’s Ethics Code but had NOT broken any laws or violated the County Charter.

Specifically, he found Ching used his position to benefit Lum by supporting Lum’s candidacy.

But the retired judge added an important caveat that later would be ignored by Baptiste and the County Council.

McConnell noted in his finding that many people would regard Ching promoting Lum for police chief as a normal part of the political process and his finding could be appealed.

When a judge says that, he is asking to have the issue appealed in court because he really isn’t certain himself.

Ching never appealed. Again, it was a question of a private individual with limited resources going against Kauai County with unending resources and a clear willingness to spend as much public money as they needed to win in a courtroom.

McConnell also found that Ching had improperly lobbied the head of the police union on Kauai, Officer Bryson Ponce, to support Lum for chief.

To this day, Ching insists it was the other way around and that Ponce lobbied him.

Ching agrees the two did chat at a table outside a restaurant in Ching’s shopping center. But he says he absolutely did not solicit the union’s support.

But what’s really important is this:

McConnell’s findings in the Ching case in no way conclude that Lum was illegally appointed police chief because Ching, although he marginally violated an ethics rule, in no way broke the law.

But that was enough for Baptiste to get rid of Lum, and he did so in a very strange manner.

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