Monday, April 13, 2009

Unethical culture- Government service with a personal “touch”

The following is the first in a three-part series of articles regarding reported apparent violations of the Kaua`i County Charter by the Kaua`i County Board of Ethics. Much of the report is based on BOE related documents PNN has recently obtained.

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

Part One- Bored of Ethics on the Board of Ethics?

The Kaua`i County Board of Ethics (BOE) has come under fire in recent years for turning a blind eye to one of the central government service prohibitions in the Kaua`i County Charter (Section 20.02(D)- one that prohibits an “officer or employee of the county”- including those appointed to a board and/or commission (B&C) - from.”(a)ppearing(ing) behalf of private interests before any county board, commission or agency”.

On it’s face the plain wording prohibits people who come to the county’s decision makers for discretionary considerations from, at the same time, “working” for the county, whether their position is paid or volunteer and whether or not their position is directly related to what they are asking for.

But since late 2007 the BOE has issued many “advisory opinions” clearing the way for those who serve on B&C’s to appear before the planning commission, county council and other B&C’s “on behalf of private interests” despite the fact that the provision apparently forbids such appearances.

Recently three members of the BOE itself- including the chair and vice chair- have solicited funding for their organizations from the county council, two making personal appearances, hat in hand, and one arranging for county funding as the “director of fund development” that received the money .

How did we get here? What possible basis for these decisions could there be?

Those are the questions that community members like Horace Stoessel have been asking for years and the answer they have been getting from the BOE is that there exists a “confidential” opinion from the office of the county attorney (CA) that addresses the matter. But that thus far the BOE has refused or has been unable to provide it or even it’s rationale to the public.

PNN has recently obtained documents that, while public record, have not been widely distributed and they will form much of the basis for this series.

While PNN is not in possession of the CA opinion the documents we do have seem to indicate that rather than adhere to and abide by the charter provisions, the opinion relies solely on an ordinance in the Kaua`i County Code, Chapter 3, Article 1, the county’s “Code of Ethics”, which spells out specific prohibitions that do not fully jibe with the charter provision.

What the code does that the charter doesn’t is to restrict the broad prohibitions in the charter to only those that are “direct” interactions and then only for a “significant” consideration or amount of money.

That means that as long as the employee or official is not soliciting his or her own department or B&C and the consideration is not of significant value, there is no prohibition, even though the plain reading of the charter would prohibit such solicitation.

In the next two parts PNN will first present the history of how we got here and then delve into details regarding the CA opinion and the law as well as provide analysis of the various official BOE advisory opinions clearing various B&C members. We’ll also take a look at some “unofficial” memos presented at meetings by BOE members in order to justify their actions.

The reason these prohibitions are there is to prevent corrupt actions by eliminating circumstances that amount to potential “conflicts of interest” (COI) where the actions of an individual not just do but even could conceivably lead to a special benefit not available to the general public.

COI’s are generally of two types: potential (or perceived) and actual. Both are equally important when considering prohibitions on actions and circumstances..

The charter provision prohibits those who come to the county and ask for a discretionary consideration- not one that the public is generally entitled to- from serving on other boards and commissions that exercise similar discretion.

That means that if you routinely appear, hat in hand, on behalf of private interests as part of your “job” – whether hired by a for-profit company or as a volunteer for a non-profit organization- you should not be sitting on a B&C. It’s that simple.

This prevents conflicts from occurring when a member of one board comes before another board while a member of that second board also comes before the first.

On Kaua`i, where the same faces ride the revolving-door between the public and private sector all while sitting on various boards and commissions, this is anything but a rare occurrence.

In the case of members of the BOE is it almost unavoidable, since they not only issue advisory opinions on potential conflicts for any and all employees and officials but are also responsible for processing the public disclosure forms submitted by many of them.

It’s certainly not a rare occurrence when members of a B&C comes before other B&C's- including and especially the council or planning commission, as the number of advisory opinions requested- as well as the number of obvious situations that call for an opinion but for which they aren’t sought- will attest.

The reason for the general prohibition is to avoid, to the extent possible, the circumstance where it must be decided whether there is an actual “quid pro quo”- literally getting something for something- in a “one hand washes the other” situation.

While there is a specific prohibition in the charter (20.02[C]) that forbids an employee or official from “(a)cquir(ing) financial interest in business enterprises which he may be directly involved in official action to be taken by him” the prohibition against “appearing on behalf of a private interest” additionally prevents the potential for two people corrupting of the discretionary decision-making process..

The general prohibition removes the temptation to achieve a “you do something for me, I’ll do something for you” deal which is often times so obvious to the two individuals involved that it doesn’t have to be discussed and therefore become a violation of the actual “tit for tat” that would be illegal.

One example of this occurred just last year and involved, ironically enough, the very charter provision that prohibits people that ask the county for special discretionary consideration from serving on B&C’s.

As PNN has reported Jonathan Chun, an attorney who sits on the charter commission- which has the power to place amendments to the charter on the ballot- routinely represents clients before the county council, as he did recently on behalf of the Board of Realtors regarding the bill to grandfather certain existing “vacation rentals while prohibiting new ones.”

He asked the BOE if he was violating the law and the BOE essentially okayed his appointment saying the law was ambiguous.

Then the BOE turned around and asked the charter commission to put a measure on the ballot to remove section 20.02(D) from the charter.

In the case of the county council at least two ethics complaints have been filed against them over the past few years and a few other councilmembers have apparent ethics problems that the BOE has to power to investigate even without a complaint.

Yet just in the last few weeks three members of the BOE have been soliciting money from the council.

On April 6 at a council budget hearing former Chair and now Vice Chair of the BOE Mark Hubbard- who has led the battle against enforcing the provision- appeared on behalf of the Kauai Planning & Action Alliance (KPAA) where he serves as Treasurer, asking that $15,000 of a $35,000 grant for his organization be restored after it was cut to $20,000 this year.

At the same meeting BOE member Judy Lenthall, Executive Director of the Kaua`i Food Bank came before the council to ask for a chunk of the county budget as she has done many times in the past while serving on the board.

And, as reported in the local newspaper, BOE Chair Leila Fuller, who “serves as YWCA’s director of fund development and contract manager” just received grant money from the county when new Prosecutor Shaylene Iseri-Carvalho “let go two victim witness advocates and transfer(ed) the grant money” to Fuller’s fund.
But it’s not just the BOE. Attorney. On April 1 Lorna Nishimitsu, who serves on a county commission, appeared before the council’s planning committee on behalf of the Kiki`ula Land corporation seeking a time extension on a Westside project.

And these are only this month’s examples...

As we’ll detail in our next reports, some- notably Hubbard, Lenthall and Fuller- have tried to twist the plain reading of the charter by equivocally redefining words to say that to “(a)ppear in behalf of private interests before any county board, commission or agency” could mean “applying for a drivers’ license” or “even playing a round of golf” if “appear before” means literally to “come into sight”

Their arguments also ignore the plain meaning of “appearing on behalf of” which denotes requesting discretionary consideration as opposed to applying or simply requesting non-discretionary services.

Given their own apparent violations of the law and shirking of their duties it is not an unfair question to ask if the individuals are engaging in a prosecutable offense or even whether a criminal conspiracy exists to trigger racketeering laws.

Ordinarily the process for starting such an investigation would be to file a complaint with- yup- the board of ethics.

Some- notably the most conflicted and those that appoint them- claim that they need to allow this now-prohibited double dealing because it seems to them “everyone has a conflict”. But that may just be the circles they run in, specifically those that populate the revolving door good old boys and girls.

But even if that proposition were valid, the law is currently on the books and the usual practice is to follow the law and try to change it- which they did... and they failed.

That also raises the question as to why, if they interpret the law to allow these situations, did they seek to change it last fall?

The truth is that there is certainly no shortage of people on Kaua`i who never come before government bodies on behalf of private interest. As a matter of fact, they are the vast majority. They simply either haven’t been asked or haven’t stepped forward because they fear their lack of membership in “the club” will preclude them from being chosen.

And as long as the law is ignored and the “well-connected” continue to be the only ones in this game of musical chairs, they’ll remain on the sidelines.

Watch for part 2- The Long and Winding Road to Inertia.

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