BIEBER TOSSED FROM ETHICS BOARD- SAYS CARVALHO. ISOBE “AFRAID AND ANGRY BECAUSE I DIDN’T DRINK THE KOOL-AID.”
(PNN) -- They say Diogenes’ search for an honest man came up empty because there aren’t any.
Board of Ethics member Rolf Bieber found that out in spades this week. After a year of trying to bring some ethical standards to county government he was unceremoniously dumped from the Board of Ethics (BOE) by Mayor Bernard Carvalho with little or no explanation.
Bieber say that Carvalho cryptically told him via telephone that his application for a full BOE term wouldn’t be approved and when he asked why Carvalho responded with one word: “balance”
“I asked for clarification” Bieber told us in a telephone interview this morning. “Afterall, I feel like I am the balance.”
Bieber has a Monday morning appointment to get further clarification noting Carvalho also claimed “it’s not me”.
But Bieber thinks it’s pretty apparent why his service was rejected- his attempts to get others on the BOE, to enforce county charter provision 20.02(d) which prohibits county officials from appearing on behalf of private interests before county agencies, board and/or commissions- including some who have engaged in such activities
Bieber filed complaints against BOE members Mark Hubbard and Judy Lenthall who had appeared on behalf of Kauai Action and Planning Alliance and the Food Bank respectively, hat in hand, asking for money before the county council saying he felt like that was part of the job of a BOE member.
“I took an oath of office and I honored that oath. Mark and Judy were breaking the law so what was I supposed to do?” Bieber asks.
“If I have to get fired for dong my job under this administration maybe I need to run for office again next November so they can’t fire me.”
Bieber ran unsuccessfully for mayor against Carvalho in the 2008 “special” election after the death of Mayor Bryan Baptiste.
Bieber addressed the supposed “chilling effect” enforcing the charter would have on finding people to fill the volunteer slots on the many B&Cs, as cited by Board and Commissions (B&Cs) Administrator John Isobe and others.
Bieber says that “the concept that they can’t find people to fill these boards and commissions is a myth and I’m a prime example of that.
“People were aware I wanted to continue the work on the BOE. In November I had reapplied at the Boards and Commissions office for BOE and I made public statements that I was seeking a second term.
“Here we have a person who wants to serve, who has no conflicts, who’s being rejected by the administration. They’re saying they can’t find folks without conflicts of interest and I’m one who doesn’t and who wants to continue to serve and they’re rejecting me.”
One of the most controversial issues was what Bieber and fellow BOE member Paul Weil as a "fatally flawed" advisory opinion from current County Attorney Al Castillo and his Deputy Mauna Kea Trask that, despite the fact that it was "advisory" Castillo claimed was binding on the board.
The opinion would use the “Code of Ethic” ordinance to redefine 20.02(d) virtually out of existence, violating supremacy of law principles.
So why does Bieber think he was rejected, to be replaced with another county insider, former Deputy County Attorney Warren Perry who many believe to have been one of the prime behind-the-scenes movers in the firing of ex- Police Chief KC Lum- due to a BOE decision- and the installation of his brother, KPD Chief Darryl Perry, who was “runner-up” when Lum was appointed chief?
“All I can come up with is that they’re afraid and angry because I didn’t drink the Kool-aid.” he says.
Bieber does say though that he is genuinely thankful for his original appointment that came after his endorsement of Carvalho in the waning days of last years election after Bieber was eliminated in the first round.
“I appreciate the opportunity and there’s a lot of work left to be done. I want to continue it but for some reason they don’t want me to.”
As to what specifically he sees as problematic Bieber says “there’s a certain quality of openness that’s missing among many who serve on board and commissions”.
He cites an example of how, when a county worker he knows appeared before the board he felt compelled to disclose his friendship. But when BOE member Lei Fuller, who serves on the YWCA Board, heard Prosecutor Shaylene Iseri-Carvalho’s testimony before the BOE about a budget rearrangements in her department that would be a windfall for the “Y” she failed to note any conflict or even feel any need to disclose any potential or even appearance of a conflict of interest.
“That’s what I’m trying to bring to the BOE- a higher standard of ethics than we have now” he says.
“Hubbard doesn’t even believe in the concept of appearance of a conflict of interest- it’s another example of my ethical standard verses those of some of the other board members”.
Bieber did note that he thinks that, at least partially through his efforts, fellow BOE member Lenthall has apparently seen how the law applies to her and has not sought another term on the BOE so she can continue her work at the Food Bank without any ethical problems.
“I hope that if nothing else I’ve been able to raise these issues and maybe in the future appointments of those with obvious conflicts will be a thing of the past.”
Showing posts with label Judith Lenthall. Show all posts
Showing posts with label Judith Lenthall. Show all posts
Friday, December 18, 2009
Tuesday, September 15, 2009
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.
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.
Monday, July 20, 2009
DON’T ROLL OVER
DON’T ROLL OVER: It’s nice to see the local newspaper opining in the form of classic editorials again lately.
Sunday’s entry demanding County Attorney Al Castillo enforce the infamous Charter provision 20.02(d) which bans employees and officials from “appear(ing) in behalf of private interests before any county board, commission or agency”, was a commendable no-brainer.
In it they illuminated the dearth of neural interplay that went into Castillo’s bizarre opinion on the subject and the resultant Board of Ethics (BOE) actions clearing undeniably conflicted county officials- including two members of the BOE itself, Mark Hubbard and Judy Lenthall- even though Castillo himself said the law is “crystal clear”.
They wrote:
It’s Castillo’s job to ensure that the law — the County Code, Kaua`i Charter, Hawai`i Constitution and U.S. Constitution — is applied appropriately on our small island, and his continued misrepresentation of the law to the Board of Ethics on the matter of 20.02(d) is nothing short of a dereliction of duty...
In an interview this week with Michael Levine, Castillo... still tried to defend his office’s disregard of the county’s primary legal document...
Reading that made many of us who have been shaking our heads in disbelief, feel a little less alone, thinking it’s nice to know someone else “gets it”.
But then, as if to say “not so fast” the editorial made it apparent that they don’t, saying
Castillo told Levine he weighs adherence to the law against his “desire to allow for public participation” in government, and in an earlier appearance before the Board of Ethics said full application of 20.02(d) could lead to “absurd results.”
We think Castillo’s heart is in the right place. We agree that 20.02(d), if applied overzealously, could lead to absurdity. We agree that public participation in government is a noble aim. We aren’t advocating that Judy Lenthall be chastised for her public service with the Kaua`i Food Bank or that Mark Hubbard be run out of town for repping the Kaua`i Planning and Action Alliance....
It’s up to the Charter Review Commission to help fix the poorly worded section of the charter, and it’s up to them to outline what, if any, exemptions should be extended to those who do volunteer work in the public interest.
As we’ve said that’s a bunch of hogwash. “Chastising” Lenthall and Hubbard for their appearance on behalf of private interests is not the point. It’s their action in refusing to abide by the law and resign their BOE posts that is in need of chastising.
The law is fine just the way it is. As a matter of fact the enforcement of the law, as written, is a key to ending hold the revolving-door, old boys and girls network has on our boards and commissions.
The contention there could be “absurd results” in upholding the 20.02(d) only applies if one absurdly abuses the plain language of the charter.
As we’ve said before when the phrase “appearing on behalf of a private interest” is applied it does not include simply appearing- as one’s self- for a personal matter such as applying for a driver’s license. There is no problem with the law there. It’s only the equivocational use of the word “interest” that is absurd.
But the big problem is in the contention that because people “do good” they should be exempted through a charter amendment.
First of all, who is “doing good” is a matter of opinion.
But even if we all agree, it doesn’t matter whether one is “doing good” or appearing for a non profit. The potential for a quid-pro-quo, “one hand washes the other” result that the law foresees exists nonetheless.
When Ms. Lenthall or Mr. Hubbard appears before the county council on behalf of the food bank or KAPA and asks for money and then turns around and rules on the ethics of a county council member’s actions, his and her positions are compromised and such a person should not be serving on a board or commission, “good work” not withstanding.
That doesn’t mean that we think either of them will necessarily do something wrong. It means that we don’t want to put people in positions where their integrity has to be even questioned by virtue of the potential conflict of interest presented.
This goes for all board and commission members who make discretionary decisions. We can’t ask them to be above reproach if we put them in a position in which they are reproachable.
Like Caesar’s wife they should be beyond reproach.
Finally the contention that somehow those who have these conflicts are the only ones who can serve is perhaps the most absurd thing here. There are tens of thousands of Kaua`i citizens who can serve on boards and commissions without violating 20.02(d). There are tens of thousands have never and will never appear before a board or commission on behalf of a private “special” interest.
We don’t need to keep seeing the same few dozen conflicted faces over and over, rotating from board to board while they come hat in hand before other boards.
It’s not a matter of questioning their integrity. It’s a matter of them putting themselves in a position where their integrity is naturally in question by serving two masters.
The law is a good one. The law is a necessary one. The law is, in fact, exactly what’s needed most on Kaua`i. All we need is enforcement.
Sunday’s entry demanding County Attorney Al Castillo enforce the infamous Charter provision 20.02(d) which bans employees and officials from “appear(ing) in behalf of private interests before any county board, commission or agency”, was a commendable no-brainer.
In it they illuminated the dearth of neural interplay that went into Castillo’s bizarre opinion on the subject and the resultant Board of Ethics (BOE) actions clearing undeniably conflicted county officials- including two members of the BOE itself, Mark Hubbard and Judy Lenthall- even though Castillo himself said the law is “crystal clear”.
They wrote:
It’s Castillo’s job to ensure that the law — the County Code, Kaua`i Charter, Hawai`i Constitution and U.S. Constitution — is applied appropriately on our small island, and his continued misrepresentation of the law to the Board of Ethics on the matter of 20.02(d) is nothing short of a dereliction of duty...
In an interview this week with Michael Levine, Castillo... still tried to defend his office’s disregard of the county’s primary legal document...
Reading that made many of us who have been shaking our heads in disbelief, feel a little less alone, thinking it’s nice to know someone else “gets it”.
But then, as if to say “not so fast” the editorial made it apparent that they don’t, saying
Castillo told Levine he weighs adherence to the law against his “desire to allow for public participation” in government, and in an earlier appearance before the Board of Ethics said full application of 20.02(d) could lead to “absurd results.”
We think Castillo’s heart is in the right place. We agree that 20.02(d), if applied overzealously, could lead to absurdity. We agree that public participation in government is a noble aim. We aren’t advocating that Judy Lenthall be chastised for her public service with the Kaua`i Food Bank or that Mark Hubbard be run out of town for repping the Kaua`i Planning and Action Alliance....
It’s up to the Charter Review Commission to help fix the poorly worded section of the charter, and it’s up to them to outline what, if any, exemptions should be extended to those who do volunteer work in the public interest.
As we’ve said that’s a bunch of hogwash. “Chastising” Lenthall and Hubbard for their appearance on behalf of private interests is not the point. It’s their action in refusing to abide by the law and resign their BOE posts that is in need of chastising.
The law is fine just the way it is. As a matter of fact the enforcement of the law, as written, is a key to ending hold the revolving-door, old boys and girls network has on our boards and commissions.
The contention there could be “absurd results” in upholding the 20.02(d) only applies if one absurdly abuses the plain language of the charter.
As we’ve said before when the phrase “appearing on behalf of a private interest” is applied it does not include simply appearing- as one’s self- for a personal matter such as applying for a driver’s license. There is no problem with the law there. It’s only the equivocational use of the word “interest” that is absurd.
But the big problem is in the contention that because people “do good” they should be exempted through a charter amendment.
First of all, who is “doing good” is a matter of opinion.
But even if we all agree, it doesn’t matter whether one is “doing good” or appearing for a non profit. The potential for a quid-pro-quo, “one hand washes the other” result that the law foresees exists nonetheless.
When Ms. Lenthall or Mr. Hubbard appears before the county council on behalf of the food bank or KAPA and asks for money and then turns around and rules on the ethics of a county council member’s actions, his and her positions are compromised and such a person should not be serving on a board or commission, “good work” not withstanding.
That doesn’t mean that we think either of them will necessarily do something wrong. It means that we don’t want to put people in positions where their integrity has to be even questioned by virtue of the potential conflict of interest presented.
This goes for all board and commission members who make discretionary decisions. We can’t ask them to be above reproach if we put them in a position in which they are reproachable.
Like Caesar’s wife they should be beyond reproach.
Finally the contention that somehow those who have these conflicts are the only ones who can serve is perhaps the most absurd thing here. There are tens of thousands of Kaua`i citizens who can serve on boards and commissions without violating 20.02(d). There are tens of thousands have never and will never appear before a board or commission on behalf of a private “special” interest.
We don’t need to keep seeing the same few dozen conflicted faces over and over, rotating from board to board while they come hat in hand before other boards.
It’s not a matter of questioning their integrity. It’s a matter of them putting themselves in a position where their integrity is naturally in question by serving two masters.
The law is a good one. The law is a necessary one. The law is, in fact, exactly what’s needed most on Kaua`i. All we need is enforcement.
Monday, May 18, 2009
A LITTLE LIGHT DOG WAGGING
A LITTLE LIGHT DOG WAGGING: Last Thursday the Kaua`i Board of Ethics (BOE) finally and unexpectedly released the county attorney opinion that had apparently caused them to ignore the plain reading of the ethics section of the county charter in favor of the subordinate county code provisions on ethics
It confirms the suspicions we expressed in our three part series on the “Unethical Culture” (see left rail) of the BOE- that somehow, despite a strict ban in the charter on county officials- including board and commission (B&Cs) members- appearing on behalf of private interests before other B&Cs, the opinion lets the tail wag the dog by giving legitimacy to provisions of subservient law that seek to contradict the charter.
And indeed in the second paragraph of the opinion it says
Section 20.02(D) of the Charter reads: "No officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency." On its face, this language appears to be a complete prohibition, preventing any officer or employee from acting for the benefit of any private interest before a county agency, board or commission.
But the next sentence is key to the disconnect, penned by former Deputy CA Margaret Sueoka who, perhaps not so coincidentally, was recently fired by Castillo and has filed a discrimination complaint against the county over the firing.
She wrote:
The language of the Code elaborates upon the Charter provision, and identifies more specifically those types of conduct which would constitute conflicts of interest
And there lies one of the “fatal flaws” apparently cited by BOE member Paul Weil, according to Michael Levine’s article on the meeting in the local paper.
The language of the “code” or ordinance, does not “elaborate” on the charter- which is what an ordinance is supposed to do- but rather, at best is silent on the charter provision and if applied, would contradict the charter.
As we discussed on our three part series Section 3-1.7 of the county code details many specific conflict of interest situations that are strictly prohibited. But the code specifically says these are based on Charter Section 20.01 which bans acts to confer special benefits on one’s self or others among other things.
In fact the code does not even mention 20.02(D) specifically anywhere, leaving unaddressed the matters brought up by what Sueoka admitted is a strict prohibition,.
The opinion seeks to use the state constitution and out-of-state court rulings to say that the charter and code must be read together and while that is true it’s the relevant sections of each that must be read together.
It would sort of be like reading a strict charter prohibition on robbing banks and saying because it isn’t addressed in the dog leash ordinance, bank robbery is ok.
But, even of there were a confluence of the specific conflicts in the code and the strict prohibitions of the charter, just because there are specifically described “conflict of interest” prohibitions in the code does not make the code a complete list of actions banned in the charter and in fact that contention is never made in the code.
Also on Thursday the BOE called on Castillo to look at the opinion with an eye toward “withdrawing it, affirming it, or modifying it” according to Levine’s article. But it appears our hopes for an honest legal look at the provisions from Castillo might have been dashed if comments from Castillo are indicative of his intentions.
Instead of addressing the legal ramification of the plain reading of 20.02(D) and the existing CA opinion Castillo seems infatuated with the political ramifications.
He’s quoted by Levine as saying
“What does this legal mumbo jumbo mean?” Castillo said when discussing the issue less than an hour before the board released the opinion. “To me, what this means is, to read Section 20.02 by itself would give an unwarranted chilling effect to contributing members of our society who desire to volunteer their time and their expertise to help this county become a better place.”
In the interview, (BOE Member and Food Bank ED Judith)Lenthall said it was not fair that she be expected to give up the rights of a private citizen, including the right, for example, to challenge a property tax assessment.
That “right” as we said before is not being challenged by anyone. What is being challenged in a complaint filed by fellow BOE member Rolf Bieber is the privilege of sitting on a county board that may in fact sit in judgment of a county councilperson while she is also asking the council for money for the Food Bank.
“That’s where I drew the line regarding the absurdity of just sticking to 20.02,” Castillo said. “That’s why we’re saying that the County Charter and the County Code should be read in conjunction because to do otherwise would create absurd results.”
It appears that Castillo is buying into the tail “wagging the dog” interpretations by saying that because the law has results that are perhaps politically uncomfortable, it is up to him to issue a quasi-judicial “opinion” to correct that “absurdity” rather than doing it legislatively- by ordinance if possible or by changing the charter.
The reason for this attempt to hijack the political process may be that last fall the citizens were asked to exempt board and commission members from the onus of 20.02(D) but that measure was soundly defeated.
After the citing of the legal need to read the code and charter together the opinion goes on to make one of its more absurd arguments regarding “intent”.
It cites the charters of Maui and Hawai`i counties saying
as we can see from the Charters of Maui and the Big Island, the effect of reading our Charter and Code provisions together is to achieve the same basic scope as those of the Charters of these other Counties.
This is a another “fatal flaw”, coming from a 1976 letter from then CA Michael Belles as the council debated and later passed Sect. 3 of the county code.
The flaw becomes immediately apparent because it then quotes the charters of those others counties which are substantially different from ours on Kaua`i. Theirs start out with the same type of prohibitions as 20.02(D) but go on to say
An officer serving the county without compensation, however, may appear for compensation in behalf of private interests before county agencies other than the one on which the officer serves and other than those agencies that have the power to review the actions of the agency on which the officer serves or to act on the same subject matter as the agency on which the officer serves.
If the intent in the Kaua`i Charter was to do that they obviously would have done it- and could easily have done it as the other counties did. The fact that they didn’t include the language shows if anything a desire for a higher ethical standard than the other counties.
Perhaps by wrongly reading some intent that wasn’t there the council that passed the code on Kaua`i sought to make believe that provision was in the charter. But wishing doesn’t make them suddenly appear in the charter- only an illusionist can do that.
An email that arrived today from BOE watchdog Horace Stoessel states it clearly and unambiguously
He states:
Like the charters of Maui and Big Island , the Kaua’i County Charter prohibits members of government from appearing in behalf of private interests before County agencies. But whereas the other charters exempt members of boards and commissions from having to comply with the prohibition, our Charter Section 20.02D does not exempt them.
Last year the Charter Commission proposed exempting board/commission members from having to comply with 20.02D. The voters rejected the proposed charter amendment.
No matter how much Castillo- and apparently last year’s Charter Commission- wishes that the Kaua`i Charter read differently the strict prohibition remains in place today and will for at least the next year and a half.
The code addresses only specific concrete conflicts of interest that are specifically banned and then, as it states, based only on the “special favors” provisions in 20.01 of the charter. Nowhere does it say it is an exclusive list and nowhere does it address the prohibitions of 20.02(D) which are included to ensure Kaua`i officials conduct business with the highest possible level of ethics.
20.02(D) is signed to avoid even the appearance of the type of impropriety that could result in a tit-for-tat approval by a member of one B&C, of a request from a member of another B&C- who would then presumably be tempted to turn around and approve the request of a member of the first B&C.
The Kaua`i provision is specifically to remove those temptations.
County attorney options have as close to the effective weight of an actual judicial ruling as one can get. All county entities are expected to abide by them as if they were case law and indeed can lose protections against lawsuits if they don’t.
They become the de facto “law of the land” and can only be challenged by going to an actual judge or having them reversed by, most likely, a subsequent CA.
It is the responsibility of the county attorney to opine only on the law and to separate out the political considerations and notify the political entities that the have two choices- to either change or abide by the law as it stands.
It is not the bailiwick of the County Attorney to make those political decisions for elected officials by attempting to read into the law what should be or what they would like to see in the law.
That right is reserved for the political apparatus of the county- the council and mayor.
Castillo would do well to remember the fact that 99% of the residents of Kaua`i would never have the types of conflicts that people like the Bieber-complaints-cited Lenthall, Mark Hubbard and Lorna Nishimitsu because 99% of Kaua`i residents never appear “on behalf of” others before county entities and only occasionally if at all, appear as themselves.
The availability of that 99% for county service is the blind spot in Castillo’s claim that the law, as it stands, yields “absurd results”. Indeed it is the opposite of absurd- it denotes the highest of ethical standards are expected of those that serve the county.
Castillo’s “absurdity” claim is valid only if one is intent on supplanting government by the people and- more importantly OF the people- with a handful of revolving-door, paternalistic oligarchs.
It confirms the suspicions we expressed in our three part series on the “Unethical Culture” (see left rail) of the BOE- that somehow, despite a strict ban in the charter on county officials- including board and commission (B&Cs) members- appearing on behalf of private interests before other B&Cs, the opinion lets the tail wag the dog by giving legitimacy to provisions of subservient law that seek to contradict the charter.
And indeed in the second paragraph of the opinion it says
Section 20.02(D) of the Charter reads: "No officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency." On its face, this language appears to be a complete prohibition, preventing any officer or employee from acting for the benefit of any private interest before a county agency, board or commission.
But the next sentence is key to the disconnect, penned by former Deputy CA Margaret Sueoka who, perhaps not so coincidentally, was recently fired by Castillo and has filed a discrimination complaint against the county over the firing.
She wrote:
The language of the Code elaborates upon the Charter provision, and identifies more specifically those types of conduct which would constitute conflicts of interest
And there lies one of the “fatal flaws” apparently cited by BOE member Paul Weil, according to Michael Levine’s article on the meeting in the local paper.
The language of the “code” or ordinance, does not “elaborate” on the charter- which is what an ordinance is supposed to do- but rather, at best is silent on the charter provision and if applied, would contradict the charter.
As we discussed on our three part series Section 3-1.7 of the county code details many specific conflict of interest situations that are strictly prohibited. But the code specifically says these are based on Charter Section 20.01 which bans acts to confer special benefits on one’s self or others among other things.
In fact the code does not even mention 20.02(D) specifically anywhere, leaving unaddressed the matters brought up by what Sueoka admitted is a strict prohibition,.
The opinion seeks to use the state constitution and out-of-state court rulings to say that the charter and code must be read together and while that is true it’s the relevant sections of each that must be read together.
It would sort of be like reading a strict charter prohibition on robbing banks and saying because it isn’t addressed in the dog leash ordinance, bank robbery is ok.
But, even of there were a confluence of the specific conflicts in the code and the strict prohibitions of the charter, just because there are specifically described “conflict of interest” prohibitions in the code does not make the code a complete list of actions banned in the charter and in fact that contention is never made in the code.
Also on Thursday the BOE called on Castillo to look at the opinion with an eye toward “withdrawing it, affirming it, or modifying it” according to Levine’s article. But it appears our hopes for an honest legal look at the provisions from Castillo might have been dashed if comments from Castillo are indicative of his intentions.
Instead of addressing the legal ramification of the plain reading of 20.02(D) and the existing CA opinion Castillo seems infatuated with the political ramifications.
He’s quoted by Levine as saying
“What does this legal mumbo jumbo mean?” Castillo said when discussing the issue less than an hour before the board released the opinion. “To me, what this means is, to read Section 20.02 by itself would give an unwarranted chilling effect to contributing members of our society who desire to volunteer their time and their expertise to help this county become a better place.”
In the interview, (BOE Member and Food Bank ED Judith)Lenthall said it was not fair that she be expected to give up the rights of a private citizen, including the right, for example, to challenge a property tax assessment.
That “right” as we said before is not being challenged by anyone. What is being challenged in a complaint filed by fellow BOE member Rolf Bieber is the privilege of sitting on a county board that may in fact sit in judgment of a county councilperson while she is also asking the council for money for the Food Bank.
“That’s where I drew the line regarding the absurdity of just sticking to 20.02,” Castillo said. “That’s why we’re saying that the County Charter and the County Code should be read in conjunction because to do otherwise would create absurd results.”
It appears that Castillo is buying into the tail “wagging the dog” interpretations by saying that because the law has results that are perhaps politically uncomfortable, it is up to him to issue a quasi-judicial “opinion” to correct that “absurdity” rather than doing it legislatively- by ordinance if possible or by changing the charter.
The reason for this attempt to hijack the political process may be that last fall the citizens were asked to exempt board and commission members from the onus of 20.02(D) but that measure was soundly defeated.
After the citing of the legal need to read the code and charter together the opinion goes on to make one of its more absurd arguments regarding “intent”.
It cites the charters of Maui and Hawai`i counties saying
as we can see from the Charters of Maui and the Big Island, the effect of reading our Charter and Code provisions together is to achieve the same basic scope as those of the Charters of these other Counties.
This is a another “fatal flaw”, coming from a 1976 letter from then CA Michael Belles as the council debated and later passed Sect. 3 of the county code.
The flaw becomes immediately apparent because it then quotes the charters of those others counties which are substantially different from ours on Kaua`i. Theirs start out with the same type of prohibitions as 20.02(D) but go on to say
An officer serving the county without compensation, however, may appear for compensation in behalf of private interests before county agencies other than the one on which the officer serves and other than those agencies that have the power to review the actions of the agency on which the officer serves or to act on the same subject matter as the agency on which the officer serves.
If the intent in the Kaua`i Charter was to do that they obviously would have done it- and could easily have done it as the other counties did. The fact that they didn’t include the language shows if anything a desire for a higher ethical standard than the other counties.
Perhaps by wrongly reading some intent that wasn’t there the council that passed the code on Kaua`i sought to make believe that provision was in the charter. But wishing doesn’t make them suddenly appear in the charter- only an illusionist can do that.
An email that arrived today from BOE watchdog Horace Stoessel states it clearly and unambiguously
He states:
Like the charters of Maui and Big Island , the Kaua’i County Charter prohibits members of government from appearing in behalf of private interests before County agencies. But whereas the other charters exempt members of boards and commissions from having to comply with the prohibition, our Charter Section 20.02D does not exempt them.
Last year the Charter Commission proposed exempting board/commission members from having to comply with 20.02D. The voters rejected the proposed charter amendment.
No matter how much Castillo- and apparently last year’s Charter Commission- wishes that the Kaua`i Charter read differently the strict prohibition remains in place today and will for at least the next year and a half.
The code addresses only specific concrete conflicts of interest that are specifically banned and then, as it states, based only on the “special favors” provisions in 20.01 of the charter. Nowhere does it say it is an exclusive list and nowhere does it address the prohibitions of 20.02(D) which are included to ensure Kaua`i officials conduct business with the highest possible level of ethics.
20.02(D) is signed to avoid even the appearance of the type of impropriety that could result in a tit-for-tat approval by a member of one B&C, of a request from a member of another B&C- who would then presumably be tempted to turn around and approve the request of a member of the first B&C.
The Kaua`i provision is specifically to remove those temptations.
County attorney options have as close to the effective weight of an actual judicial ruling as one can get. All county entities are expected to abide by them as if they were case law and indeed can lose protections against lawsuits if they don’t.
They become the de facto “law of the land” and can only be challenged by going to an actual judge or having them reversed by, most likely, a subsequent CA.
It is the responsibility of the county attorney to opine only on the law and to separate out the political considerations and notify the political entities that the have two choices- to either change or abide by the law as it stands.
It is not the bailiwick of the County Attorney to make those political decisions for elected officials by attempting to read into the law what should be or what they would like to see in the law.
That right is reserved for the political apparatus of the county- the council and mayor.
Castillo would do well to remember the fact that 99% of the residents of Kaua`i would never have the types of conflicts that people like the Bieber-complaints-cited Lenthall, Mark Hubbard and Lorna Nishimitsu because 99% of Kaua`i residents never appear “on behalf of” others before county entities and only occasionally if at all, appear as themselves.
The availability of that 99% for county service is the blind spot in Castillo’s claim that the law, as it stands, yields “absurd results”. Indeed it is the opposite of absurd- it denotes the highest of ethical standards are expected of those that serve the county.
Castillo’s “absurdity” claim is valid only if one is intent on supplanting government by the people and- more importantly OF the people- with a handful of revolving-door, paternalistic oligarchs.
Tuesday, May 12, 2009
AND SO THE POOR DOG HAD NONE
AND SO THE POOR DOG HAD NONE: Our three part series on the Unethical Culture of some members of the Kaua`i Board of Ethics (BOE) detailed the cases of three members of that board who have and continue to violate the plain reading of the county charter’s Code of Ethics which prohibits members of boards and commissions from appearing on behalf of private interests before other boards and commissions, including the county council.
As we concluded. what was missing was that, in order to get the ball rolling to force them to either remove themselves from office or quit representing private interests was an actual complaint filed with the BOE.
So over the weekend, Rolf Bieber felt responsible as a BOE member to take matters into his own hands and file three complaints- two against his fellow BOE members Mark Hubbard and Judy Lenthall and one against attorney Lorna Nishimitsu who sits on the Cost Control Commission.
Bieber, who ran for mayor last fall, told us it wasn’t anything personal and that he respects the three immensely but that the board needed to move forward on the matter because, as it stands there was no enforcement whatsoever of the provision based on BOE decisions in other cases last and earlier this year.
His notarized complaints include the transcripts from the three county council meetings where the three represented private interests- Hubbard for the Kaua`i Action and Planning Alliance, Lenthall for the Kaua`i Food Bank and Nishimitsu for Kikia`ola Land Corporation.
Although none of them would comment for our series, that wasn’t the case when reporter for the local newspaper Michael Levine contacted them for comment on his story today regarding Bieber’s complaints.
And if anyone thought that perhaps Hubbard- the former Chair and now Vice Chair of the BOE- was in need of professional mental health after reading his ramblings in our article his comments to Levine certainly approximate the classic response of a paranoid schizophrenic.
There are apparently at least two Mark Hubbard’s existing nowhere but in Hubbard’s own mind depending on what covers the head that contains the various Hubbard’s.
In classic gibberish Hubbard told Levine:
“The way I read it (Section 20.02(D)) is very simple. When I was sitting there in front of the County Council, the hat I wore was Kaua`i Planning and Action Alliance. I made no representation, I was not considered, not looked upon as vice chair of Ethics. It had nothing to do with Ethics even though I am on that board.
“I didn’t appear as the Ethics person, I appeared as the treasurer of Kaua`i Planning and Action Alliance,” Hubbard said. “The Board of Ethics person wasn’t around. The treasurer of Kaua`i Planning and Action Alliance was around. Yes, it happens to be the same person.”
Hats? What awesome powers do bonnets bestow? They apparently give the wearer the ability to change identity like some kind of incognito emissary in a spy movie attempting to bamboozle his enemies.
Perhaps Hubbard has a secret collection of headwear that allows him to change personas whenever he chooses, much like Superman’s glasses can convince Lois Lane he’s actually mild mannered reporter Clark Kent.
One possible explanation is that it’s the good Mark Hubbard that selflessly appears on behalf of KPPA and his evil twin that sits on the BOE.
But we can only hope Hubbard guards his chapeau collection well lest they fall into the hands of those who do us harm. Imagine the problems it would pose for the courts if the criminal element could avoid prosecution by simply making the right choice at the haberdashers.
Good thing we can trust Hubbard not to abuse his Superhero status...uh he does belong to the Legion of Justice doesn’t he?... or does he simply have a hat for that.
He must have had Tom Terrific’s magic thinking cap to come up with what Levine reported he said next
Asked about the potential for the appearance of a conflict of interest if council members were to one day have to answer to the Board of Ethics, Hubbard said “there’s no such thing.”
“When people talk about the appearance of conflict of interest, to me, that has nothing to do with the Board of Ethics,” he said. “Is there a conflict of interest or isn’t there? There’s no such thing as appearance."
No such thing? Good thing the news hasn’t reached Kaua`i Mark because there 943,000 results for “appearance of a conflict of interest” at Google including the one at Wikipedia which starts off it’s “conflict of interest” entry by saying
A conflict of interest occurs when an individual or organization... has an interest that might compromise their reliability.
A conflict of interest exists even if no improper act results from it, and can create an appearance of impropriety that can undermine confidence in the conflicted individual or organization.
Ask yourself what you would do if appointed for a body that oversees ethics and deals with conflicts of interest. Would you not review what an appearance of conflict of interest actually is before you said it doesn’t exist?
Not our pal Mark- get this final gobbledy-gook
“There is no conflict because I went and asked the council for something. Their choice is to say yes or no. ... I could feel good about that, or bad about that, and I could act. I have some authority, I have a vote on the Board of Ethics. ... (but) I didn’t have a financial interest (in KPAA). That’s the charter and the county regs — it has to be financial.”
No financial interest? KPPA is one of the Kaua`i government’s favorite recipients of their largess, to be distributed to others for various planning projects at PPPA’s pleasure... quite the powerful position.
As a matter of fact, Levine’s article reports, Hubbard’s appearance was quite successful since an extra $14,500 appears in the supplemental budget that came after his “appearance on behalf of” KPPA.
The article also notes that Executive Director Lenthall got $20,000 more in the supplemental budget after her appearance on behalf of the Food Bank.
Lenthall for her part still clings to the inability to distinguish between a personal and private interest telling Levine:
Lenthall said it was unfair to her as an unpaid volunteer that she be expected to give up rights guaranteed to private citizens, citing as an example her right to appeal a property tax assessment, and said the language as currently written could discourage volunteers from helping the county, something she does “out of the goodness of my heart.”
What Lenthall fails to recognize is that it has nothing to do with the “goodness of her heart” and whether she wants to “help the county”. 99.9% of the residents of Kaua`i have and will never come before a board or commission asking for money or tangible considerations. The fact that a small handful of those who do populate these boards and commissions reflect the inherent moral bankruptcy and corrupt mindset of those who feed at the government trough is no coincident born of necessity.
The insinuation that Hubbard is not Hubbard at certain times or that there are multiple Hubbard’s stretches credulity to the breaking point, especially with the quasi-judicial nature of the BOE.
In any other judicial proceeding just the fact that a judge or juror even knows the defendant is cause for them to be excused from the proceedings.
The fact that Hubbard has ruled on the ethics complaints filed against member of the county council in the past makes his claim that he should be permitted to solicit funds from them the construction of an unethical if not criminal mind and one certainly not suited to sit on any county body much less the ethics board.
What are we- a bunch of freakin' idiots? You can certainly check off a big fat “yes” when it comes to what Hubbard and Lenthall think.
As we concluded. what was missing was that, in order to get the ball rolling to force them to either remove themselves from office or quit representing private interests was an actual complaint filed with the BOE.
So over the weekend, Rolf Bieber felt responsible as a BOE member to take matters into his own hands and file three complaints- two against his fellow BOE members Mark Hubbard and Judy Lenthall and one against attorney Lorna Nishimitsu who sits on the Cost Control Commission.
Bieber, who ran for mayor last fall, told us it wasn’t anything personal and that he respects the three immensely but that the board needed to move forward on the matter because, as it stands there was no enforcement whatsoever of the provision based on BOE decisions in other cases last and earlier this year.
His notarized complaints include the transcripts from the three county council meetings where the three represented private interests- Hubbard for the Kaua`i Action and Planning Alliance, Lenthall for the Kaua`i Food Bank and Nishimitsu for Kikia`ola Land Corporation.
Although none of them would comment for our series, that wasn’t the case when reporter for the local newspaper Michael Levine contacted them for comment on his story today regarding Bieber’s complaints.
And if anyone thought that perhaps Hubbard- the former Chair and now Vice Chair of the BOE- was in need of professional mental health after reading his ramblings in our article his comments to Levine certainly approximate the classic response of a paranoid schizophrenic.
There are apparently at least two Mark Hubbard’s existing nowhere but in Hubbard’s own mind depending on what covers the head that contains the various Hubbard’s.
In classic gibberish Hubbard told Levine:
“The way I read it (Section 20.02(D)) is very simple. When I was sitting there in front of the County Council, the hat I wore was Kaua`i Planning and Action Alliance. I made no representation, I was not considered, not looked upon as vice chair of Ethics. It had nothing to do with Ethics even though I am on that board.
“I didn’t appear as the Ethics person, I appeared as the treasurer of Kaua`i Planning and Action Alliance,” Hubbard said. “The Board of Ethics person wasn’t around. The treasurer of Kaua`i Planning and Action Alliance was around. Yes, it happens to be the same person.”
Hats? What awesome powers do bonnets bestow? They apparently give the wearer the ability to change identity like some kind of incognito emissary in a spy movie attempting to bamboozle his enemies.
Perhaps Hubbard has a secret collection of headwear that allows him to change personas whenever he chooses, much like Superman’s glasses can convince Lois Lane he’s actually mild mannered reporter Clark Kent.
One possible explanation is that it’s the good Mark Hubbard that selflessly appears on behalf of KPPA and his evil twin that sits on the BOE.
But we can only hope Hubbard guards his chapeau collection well lest they fall into the hands of those who do us harm. Imagine the problems it would pose for the courts if the criminal element could avoid prosecution by simply making the right choice at the haberdashers.
Good thing we can trust Hubbard not to abuse his Superhero status...uh he does belong to the Legion of Justice doesn’t he?... or does he simply have a hat for that.
He must have had Tom Terrific’s magic thinking cap to come up with what Levine reported he said next
Asked about the potential for the appearance of a conflict of interest if council members were to one day have to answer to the Board of Ethics, Hubbard said “there’s no such thing.”
“When people talk about the appearance of conflict of interest, to me, that has nothing to do with the Board of Ethics,” he said. “Is there a conflict of interest or isn’t there? There’s no such thing as appearance."
No such thing? Good thing the news hasn’t reached Kaua`i Mark because there 943,000 results for “appearance of a conflict of interest” at Google including the one at Wikipedia which starts off it’s “conflict of interest” entry by saying
A conflict of interest occurs when an individual or organization... has an interest that might compromise their reliability.
A conflict of interest exists even if no improper act results from it, and can create an appearance of impropriety that can undermine confidence in the conflicted individual or organization.
Ask yourself what you would do if appointed for a body that oversees ethics and deals with conflicts of interest. Would you not review what an appearance of conflict of interest actually is before you said it doesn’t exist?
Not our pal Mark- get this final gobbledy-gook
“There is no conflict because I went and asked the council for something. Their choice is to say yes or no. ... I could feel good about that, or bad about that, and I could act. I have some authority, I have a vote on the Board of Ethics. ... (but) I didn’t have a financial interest (in KPAA). That’s the charter and the county regs — it has to be financial.”
No financial interest? KPPA is one of the Kaua`i government’s favorite recipients of their largess, to be distributed to others for various planning projects at PPPA’s pleasure... quite the powerful position.
As a matter of fact, Levine’s article reports, Hubbard’s appearance was quite successful since an extra $14,500 appears in the supplemental budget that came after his “appearance on behalf of” KPPA.
The article also notes that Executive Director Lenthall got $20,000 more in the supplemental budget after her appearance on behalf of the Food Bank.
Lenthall for her part still clings to the inability to distinguish between a personal and private interest telling Levine:
Lenthall said it was unfair to her as an unpaid volunteer that she be expected to give up rights guaranteed to private citizens, citing as an example her right to appeal a property tax assessment, and said the language as currently written could discourage volunteers from helping the county, something she does “out of the goodness of my heart.”
What Lenthall fails to recognize is that it has nothing to do with the “goodness of her heart” and whether she wants to “help the county”. 99.9% of the residents of Kaua`i have and will never come before a board or commission asking for money or tangible considerations. The fact that a small handful of those who do populate these boards and commissions reflect the inherent moral bankruptcy and corrupt mindset of those who feed at the government trough is no coincident born of necessity.
The insinuation that Hubbard is not Hubbard at certain times or that there are multiple Hubbard’s stretches credulity to the breaking point, especially with the quasi-judicial nature of the BOE.
In any other judicial proceeding just the fact that a judge or juror even knows the defendant is cause for them to be excused from the proceedings.
The fact that Hubbard has ruled on the ethics complaints filed against member of the county council in the past makes his claim that he should be permitted to solicit funds from them the construction of an unethical if not criminal mind and one certainly not suited to sit on any county body much less the ethics board.
What are we- a bunch of freakin' idiots? You can certainly check off a big fat “yes” when it comes to what Hubbard and Lenthall think.
Tuesday, April 21, 2009
(PNN) Unethical culture- Government service with a personal “touch”- Part 3
Unethical culture- Government service with a personal “touch”
Part three- Deep Thoughts- a “Handy” Diversion.
One would think that a member of any ethics board or commission would be a proponent of the highest ethical standard. But on Kaua`i, as we’ve noted in the first two parts of this report, the three prime officers of our Board of Ethics have been in violation of the plain reading of the charter’s section 20.02(D) prohibitions on those “employees and officers” who “appear on behalf of a private interest” before an “agency board or commission” while serving on any of the county’s boards or commissions.
We detailed two recent cases- those of Dee Crowell of the water board and Jonathan Chun of the charter commission- where the BOE apparently chose to simply ignore those provisions of the charter and claim that, because the ordinance (Kaua`i County Code [KCC] Section 3) didn’t detail the prohibitions in the charter’s section 20.02(D) they didn’t have to be enforced, in violation of the supremacy principles expressed in the US Constitution.
So what was behind the thinking of those two chairs of the BOE- Mark Hubbard and Lei Fuller- and the secretary, Judith Lenthall, who are in apparent violation?
After the Crowell and Chun rulings clearing them of violating the charter, a group of citizens were outraged. Horace Stoessel, Bruce Pleas, Walter Lewis, Glenn Mickens and others were outraged and told the board so during and after the discussions.
(Note: In part 2 we said there was no apparent discussion of the Crowell decision at a BOE meeting. The minutes reveal the matter was decided at their 12/07 meeting. We apologize for the oversight).
In response past and current Chair Mark Hubbard – who has also served as chair of another board embroiled in discretionary controversy, the state Burial Council of Kaua`i- wrote and presented the BOE with a long and extremely revealing “memo” at their 4/08 meeting .
We will examine it here in detail.
We do so because the rambling letter reveals the mental machinations of a man- and board- trying his best to twist the meanings of words by isolating and equivocating them trying every rationale- whether valid or simply laughable- to clear others who were seeking to exonerate themselves and so, by precedent, Hubbard, Fuller and Lenthall from their apparently prohibited activities.
The letter, the contents of which was supported by the other BOE members according to the minutes of the 4/08 meeting, reveals what appears to be a basic lack of ethical standards and ability to make ethical judgment calls with an unbiased eye on the BOE’s part and an inability or unwillingness to apply the “to be liberally construed” provision of the Code of Ethics contained in KCC section 3.1.
We will excerpt the letter here and reprint it in full at the end of this article, Because we received only a paper version we had to type it in manually and although we read and re-read it a few times it may contain a typo or three, which we apologize for in advance.
After saying he represents only himself Hubbard actually admits that the board was seemingly oblivious to the section 20.02(D) prohibitions in the Crowell case saying:
When the board discussed Dee Crowell’s request for an advisory opinion in late 2007, I do not remember any discussion of how 20.02D might impact the opinion. I only remember referencing the County Code, section 3-1.7{d}. The board concluded that a Board of Water Commission appointee is not precluded from acting in a representative capacity before other County agencies and departments as long as he complied with code section 3-1.7.
He then says that during the Chun case:
I saw 20.02D for the first time in the light of its plain language and was shocked to realize that I had been on the Ethics board for several years (I have served at least one term prior to my current term without being aware of this issue. I guess it should not be surprising as I believe that this issue has been seldom if ever raised in the 40+ years of the Charter’s existence.
Amazingly he actually admits to apparently never having read the charter section on ethics or at least not giving it any thought before that time. He even admits that on reading the plain meeting he found himself in apparent violation.
But the next paragraph begins to show how his own prejudices- and conflict- clouds his own thinking. He says he:
talked with a former Ethics board member who said it could simply be interpreted to mean that no employee or officer could appear “wearing the hat of their office: in behalf of private interests before any agency, board or commission. This sounded reasonable to me.
Nowhere does any provision of charter, law or rule mention this “hat wearing” construction of Hubbard’s.
But rather than leave it at that he proceeds to try to deconstruct the key phrase and reconstruct it using alternative dictionary definitions of the words that take the words out of context of “appear on behalf of a private interest”
First he separates out the word “appear” from “on behalf of” saying
The word “appear”, particularly when used with the word “before” means “to come formally before an authoritative body”. Another definition is to “come into view, become visible”.
It’s called equivocation, not, as he says earlier being “exact, specific, rational and literal”. “Appear on behalf of” is never a phrase that uses “appear” to mean simply come into view but is rather in the sense that an attorney “appears on behalf” of a client.
Then he continues to work on the words “on behalf of” trying to also separate them from appear” and redefine so it, saying it
can mean in support of, in the interest of, for the benefit of, as a representative of, in defense of. It is my belief, in hearing testimony by Walter Lewis and Horace Stoessel, that they believe that the primary meaning and possibly the only relevant meaning in the context of 20.02D is “as a representative of”. again, I maintain that there are different interpretations here.
To isolate them from appear is to falsify the plain meaning of the phrase by taking them out of context. to read them together is to give them plain meaning
Finally he deconstructs a “private inertest” and tries to pull it out of context saying
“Private interests”, by dictionary definition, means “intended for or restricted to the use of a particular person, group or class”. Yet, I heard Walter Lewis state in his testimony that he felt that the meaning in 20.02D did not include “personal interest” but only the interest of another person or entity. That jives with the above interpretation of behalf = represent. Here again, we have different interpretations.
Whatever Walter Lewis said or didn’t say is irrelevant. In addition to there being a huge difference between a private and public interest (we’ll get to that later) it also removes the two words from the context of the whole phrase.
Hubbard uses this later to say that renewing his driver’s license would seem to be prohibited by this phrase but he ignores the fact that one does not “appear on behalf of” one’s self but rather appears AS one’s self. One cannot refer to one’s self in the third person except as a poetic affectation. When one says “I’m appearing on behalf of myself” it is usually with a note of sarcasm and elicits a chuckle because of course one is just “appearing”, not on behalf of someone by him or herself
He also ignores the fact that renewing a driver’s license is not discretionary as we discussed earlier.
But if those “examples” are troublesome his next few paragraphs are even more telling of his grasping at straws constructed of whole cloth, to combine two phrases.
He says:
The above detail is only to point out that most of us interpret the meaning of 20.02D to make it reasonable to us. I maintain that the board can also interpret the meaning of 20.02D in order to most closely find and identify conflicts of interest.
As we said before, there are separate sections dealing with real and direct conflicts. 20.02(D) is a prohibition on a list of prohibitions in order to avoid potential or perceived conflicts of interest
But next he makes the fatal error, that destroys any relevance of any of his arguments no matter how convoluted and contorted. He writes
If one looks at Code section 3-1.7 (c), (d), and (e), it is apparent that the County Council intended to interpret the meaning of 20.02D when it enacted the code.
Each section of the KCC section 3 notes the charter provision from which it is derived if indeed it is derived from the charter. But 3-1.7 only mentions section 20.01, not 20.02 much less 20.02(D)- which as we said before is not specifically mentioned in the ordinance- leaving the ordinance “silent” on the matter and so leaving the charter provision to stand as the only guide in the matter.
So with blatantly wrong premises in hand Hubbard attempts to list specific cases that could be rationalized using his irrational construct.
The part that stands out here is that if the "appear on behalf of a private interest” phrase is read with plain meaning, all of these “examples” provide areas where application is simple and direct. Only when pretzel logic and wordsmithing – along with a personal interest in making the provision meaningless- is used do they become cloudy.
After the driver’s licenses example Hubbard list others.
Here are some of the most contorted.
While I was on the salary commission and ethics board, I represented Grove Farm at the Real Property Division for agricultural dedications. Did I appear? Some say no since I did not go before a group. While I did not appear before the appeals board, would that have been any different than my dealings with the agency in getting agricultural dedications approved? Was there any conflict of interest?
As we said before he attempts to use the magician’s definition of “appear” rather than the lawyer’s.
While Allan Smith was a member of the Salary Commission, I am sure he appeared before the County Council, Planning Department, Public Works, Water Department and Planning Commission as a representative of Grove Farm. Is there any conflict here? This merits some discussion as the Salary Commission has no influence over any other board or commission, with whom Mr. Smith was also dealing.
As we said before, it doesn’t matter if it’s the same board. Hubbard again tries to conflate the conflict of interest provisions with the prohibitions which are based on potential for conflicts when even the ordinance does not list charter 20.02 as the basis for KCC 3-1.7.
Some planners in the Planning Department do drafting work as side employment. The department ethics rules, which the ethics board has approved, allows these planners to bring their work to the department for approval as long as they do not review their own work. They can also walk their plans through other departments with no restrictions (on their own time, of course). Is this appearing before an agency?
This is outrageous if it’s truly happening in our county- not that we doubt it does. People who work in the planning department should certainly not be allowed to seek outside employment where they come to their co-workers for approval of their projects. The prohibition of “work on their own plans” as the only violation is, in itself, a violation of all ethical principles that few if any can’t see is an unethical practice. The questions “what happens when you have to approve the plans of someone who just approved your plan” is almost to silly to have to ask.
Again it makes one ask if someone who can’t see this should even be on an ethics board much less the chair. As does the next one that says
Judy Lenthall appeared last year before the County Council representing the Food Bank. Is that a “private interest”? Did she appear as a board of ethics member?
Again it doesn’t matter if she is wearing a hat or any other finagling apparel . And of course the food bank is a private interest- for profit and not for profit isn’t a charter criteria and there are no “exceptions” for doing “good work”.
A planning commissioner is an architect who represents clients before various county agencies. The board of ethics opines that he cannot represent clients before the planning department, yet may do so before other departments in the county.
If they do they apparently have no basis for doing so.
But finally Hubbard comes upon one important exception- the first amendment "free speech" rights of an individual who seeks to speak in the “public” interest as one on a general law or measure before the county councilor planning commission.
In addition between not being able to distinguish between a private and a personal interest he has trouble with the difference between a private and a public interest
Next he says
A councilmember testifies in favor of a development project before the Planning Commission. Happens all the time. Is that “in behalf of”? A councilmember testifies against a development project before the Planning Commission. Happens all the time. Any difference? What about any employee or officer testifying in favor of a project before the Planning Commission? Don’t we all have the right of free speech and doesn’t the sunshine law to allow us to speak at a meeting? I believe yes and yes, but I must appear as an individual, not a board of ethics member.
Here there is that “public interest” component. What Hubbard attempts to do is to separate out the words “private” and “interest” and reconstruct them giving them a different reading. The word “interest” in the phrase “appear on behalf of a private interest” is one that denotes a direct or even indirect financial or otherwise tangible interest yet Hubbard again seeks to deconstruct and reconstruct in order to evade the plain meaning of the phrase.
In any case the first amendment trumps the county charter under supremacy principles and receives the highest protection from the courts whereas “private interests” do not.
Hubbard’s final evasion is to try to conflate 20.02(D) with 20.02(E) and claim they must be read together.
He writes
An objection by Horace Stoessel and others to the board’s opinions is that they feel my interpretation totally guts the intent of 20.02D and that there would be no examples of violation of 20.02D using my interpretation. I used some examples of an officer or employee using his official position to apply undue influence for a private interest. The objection to this was that section 20.02E covered that and so the meaning of 20.02D was being distorted by the board.
Let’s look at 20.02D and E.
20.02D – “No officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”
20.02E – “No officer or employee of the county shall use his official position to secure a special benefit, privilege or exemption for himself or others.”
Here he implies that only situations that violate the second provision also violate the first, which is simply not what the prohibition list in 20.02 says.
Finally he gives it his last and best misinterpretational effort concluding that somehow the person in question is “ok” as long as they claim they are not “wearing the hat” of the board they sit on based on his equivocal and out of context use of the word “appear”.
If I tried to put my interpretation of 20.02D into words, it would be “No officer or employee of the county shall appear in the capacity of his county position on behalf of private interests before any board, commission or agency. I think that is an appropriate use of the word “appear”. In the dictionary definition, examples given are that you appearing in court as the attorney, at the witness, or as the client. So, it is not just the individual appearing, but appearing in a certain capacity. I maintain this is a little different from 20.02E and use an example to demonstrate the difference.
Hubbard’s letter serves to show not just how his own personal prohibited actions drove his “logic” but how the appointing and approving authorities- the mayor and council- aren’t doing their due diligence in appointing people like him in the first place.
But he isn’t the only one.
At the same 4/08 meeting a memo- also reproduced in whole at the end of this piece and also typed out- from Lenthall was presented. It highlights how, in these people’s minds, it is possible to make these kinds of claims.
She apparently went back to the original charter commission- the one that wrote the charter in the 60’s.
She write to Hubbard
Hi Mark,
HOORAY! In fact, EUREKA! Mystery solved re. Intent of the Code of Ethics issue. Here’s the scoop:
In 1964, work first started on a Kaua`i Charter. A Charter Commission was established in 1965 and in 1966 they had a pretty solid draft that the Commission eventually approved. They seemed to have spent a lot of time trying to reinvent the wheel in 1965, but eventually they called upon the example charters from several mainland cities. The city that they eventually plagiarized the most was Salem, Oregon. And Salem Oregon has the same language that interests us.
Really that’s all you need to know if you read it carefully. But the original charter commission- made up of many attorneys who, like those today, “appeared on behalf of” all sorts of private interests but wanted to serve on the boards and commissions that approve their projects so they tried to insert all sorts of language that would allow them to do so.
She dug up some documents that indicate, not some kind of “original intent”- as she apparently would like to believe- but those thoughts rejected in favor of the ultimately voter-approved provisions.
These might have been some things that some wanted to include to allow their potential conflicts to stand as long as there was no quid pro quo apparent. But the important part is that they were not included in the charter, most likely not as some kind of oversight but for good reason..
She wrote
Since 1968, the language we currently see in our Code of Ethics (for those sections that interest us for the moment) has been identical. No changes. Thus, the intent of this language has to be found sometime in 1965-1966 (I’m assuming that this went to a public vote in 1967? I don’t know).
So, I got the minutes from their discussion about this and here it goes:
1964
Code of Ethics DRAFT PROPOSAL (NOTE: This is a typed sheet with lots of internal corrections and hand-written notes on it). This is NOT the Charter Commission people’s work yet, but elected leaders?)
1. Nothing contained herein shall preclude the acceptance of contributions for election campaigns.
2. Full disclosure in writing to appointing authority or council, to be of public record, of such interests, at any time that such conflict becomes apparent.
3. No outside employment, business or professional activity which may impair his independence of judgment in exercise of official duties, or might induce him to disclose confidential information, or which is otherwise inconsistent or incompatible with or which interferes with the proper discharge of official duties.
4. Council to disclose interest in writing prior to vote.
Lenthall also seems to rely on the ordinance that as we said is actually silent as to the 20.02 prohibitions and then tries to divine some kind of “intent” from the proposed provisions even though. as she notes, they were rejected.
She goes on to say
So, the above was the original start of this issue. This draft was sent to the newly formed Charter Commission who promptly rejected it (and a LOT more), The Charter Commission apparently felt that THEY were supposed to be the crafters of this document. The first Charter Commission in Kaua`i discussed the code of ethics stuff at their April 19th and April 26, 1966 meetings, and they flushed out the section we’re interested in.
Though she’s not clear about who “they” are it’s presumably the council although the words “code of ethics” refer to both KCC section 3- passed by the council after the charter- and the charter section 20 itself.
She then apparently cites some other proposed but rejected language to show it should have been included or indicates some kind of intent, even though it also was never included.
April 19, 1966 info:
I need to scan and attach this whole page because it’s too much to write. Briefly, it says if you get PAID in whole or part by the County, (NOTE: This would exclude Board volunteers!), you can’t represent private interests before any agency. Then it says:
This section shall not be construed:
to prohibit any officer or employee from being affiliated with, employed by or representing a person, firm or corporation whose direct and indirect interest in business dealings with the county forms an insubstantial part of its total business, provided that he has not been retained for the purpose of appearing before the whole agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency.
to prohibit any officer or employee from appearing before any agency upon matters only incidentally part of the employment provided that he has not been retained for the purpose of appearing before the agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency;
Her interpretation again indicates how her compromised position has compromised any objectivity in the matter, further writing
The jist (sic) of the above is that I think they were trying to REALLY define stuff to be important and payment can’t be contingent on the action of the agency...
.
To me, the intent of the original crafters (1964) was a) disclose; b) don’t mess with anything that could impair your independent judgment. I’ll buy BOTH of those intents. The 2nd version again tries to a) disclose; and b) establish an importance factor to the matter; but muddies the waters with the WHOLE AGENCY language. What? It’s OK to meet before PART of the agency?
Unfortunately, ALL this deliberation got reduced to the VERY simplistic phrase, “Thou shalt not appear before any agency” because this was the copied language from Salem, Oregon. this was the language that was eventually approved for the County’s FIRST charter, and the language which has remained ever since 1968.
But the point is, I think I’m clear now in the intent, and I think it makes sense.
It might “make sense” if you are trying to construct some rationale for violating the plain reading of a law of which you are in violation.
It might “make sense” if you forget about the fact that they apparently rejected the provisions because they were simply so unethical that they thought they’d better go to a generally accepted standard of ethics rather than insert one cooked up in a paternalistic backroom by representatives of plantations seeking to implement watered down ethics laws and allow themselves carte blanche to concoct public policy to their own benefit.
But if all that isn’t troublesome enough, the fact that she is in a compromised position has clouded her judgment even on such issues as stealing from the county.
She finally says
Alas, there is NOTHING on “don’t use county property for personal use” because that too appears to be a copied section with ABSOLUTELY no wiggle-room. Seems to me that if we use the original crafters logic, a level of importance or value might be tried to using county property for person use, before we get every mislaid paper clip, phone call, vehicle person errand, etc. before the Board of Ethics.
The much abused “paper clip” example has been used by thieves to discredit the law since paper clips were introduced to offices.
It all points to the self-distorted mindset of the Kaua`i Board of Ethics that attempts to reduce all ethical provisions- except for direct self-dealing transaction and observable quid pro quos- to absurdity through disingenuous self-serving, out-of-context word manipulation and faulty logic, combined with an intentional misreading and just plain untrue claims.
Many see this debacle as a reason for re-writing the ethics provisions in the charter and county code. But other than amending the county code to reiterate the charter provisions there is little that needs clarifying to those who approach the issues raised before the BOE with a clear mind and without being in violations of those provisions they are sworn to uphold.
But it is hard to really blame the appointed individuals and hold them wholly responsible. If the county council and the mayor had bothered to read the laws they were sworn to uphold, they wouldn’t be appointing those few in the community who routinely appear on behalf of private interest before agencies, board and commissions to those very board and commissions, especially the one that determines complicity with the law.
Like Caesar’s wife the BOE members should be beyond reproach, and certainly not guilty of the laws they are supposed to uphold.
But there may be one provision that needs to be enacted. At present, according to county and state law the place to file a complaint would be... yes, the Kaua`i Board of Ethics.
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Mark Hubbard’s Perspective of Kauai County Charter Section 20.02D (in full)
The issue of Charter Section 20.02D has been bothering me for about a year now and I wish to give you some history and mostly my rationale for my current personal position on the interpretation of section 20.02 D. The below views and statements are mine personally and are not to be attributed to the Board of Ethics or any other member of that board.
When the board discussed Dee Crowell’s request for an advisory opinion in late 2007, I do not remember any discussion of how 20.02D might impact the opinion. I only remember referencing the County Code, section 3-1.7{d}. The board concluded that a Board of Water Commission appointee is not precluded from acting in a representative capacity before other County agencies and departments as long as he complied with code section 3-1.7.
In early 2008, the issue of section 20.02 came up in regard to Jonathan Chun’s request for an advisory opinion regarding his representing clients before various County agencies and departments. Several members of the public, including Horace Stoessel, maintained private interests before any board, commission or agency. I saw 20.02D for the first time in the light of its plain language and was shocked to realize that I had been on the Ethics board for several years (I have served at least one term prior to my current term without being aware of this issue. I guess it should not be surprising as I believe that this issue has been seldom if ever raised in the 40+ years of the Charter’s existence.
Another reason for my being bothered by this language is that I like to be exact, specific, rational and literal. I talked with Horace Stoessel who I had previously served with on the Salary Commission and for whom I have considerable respect. I also talked with a former Ethics board member who said it could simply be interpreted to mean that no employee or officer could appear “wearing the hat of their office: in behalf of private interests before any agency, board or commission. This sounded reasonable to me as a way of fitting the board’s opinion regarding Dee Crowell and many other examples in apparent conflict with a plain language interpretation of 20.02D. Yet, Horace and others felt that the broad has no authority to “narrow: the language of 20.02D, as it is the Charter and the voice of the people. The board ended up saying that Jonathan Chun could in fact represent private interests in front of boards and commissions other than the Charter Review Commission, of which he was a member.
The controversy is still around as evidenced by Horace’s email. What continues to concern me is how am I able to reconcile a myriad of situations which can be seen to conflict with a plain language interpretation of 20.02D.
It is my current belief that the board has the right to interpret 20.02D. This is based on my observation that everyone who has opposed the board’s opinions in this matter (with possible exception of Bruce Pleas) has in fact interpreted 20.02D in their own way (as I will indicate below).
Let us look specifically at the language and some examples. The language says that “no officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”
- “Officer or employee” covers all county employees, elected officials, appointees and board and commission members. No one seems to have different interpretations of this term.
- The word “appear”, particularly when used with the word “before” means “to come formally before an authoritative body”. Another definition is to “come into view, become visible”. Here there are different interpretations. Many would say that getting one’s driver’s license is not “appearing” before the Finance Department. I won’t disagree.
- The word “behalf”, often used as “in behalf of” or “on behalf of”, can mean in support of, in the interest of, for the benefit of, as a representative of, in defense of. It is my belief, in hearing testimony by Walter Lewis and Horace Stoessel, that they believe that the primary meaning and possibly the only relevant meaning in the context of 20.02D is “as a representative of”. again, I maintain that there are different interpretations here.
- “Private interests”, by dictionary definition, means “intended for or restricted to the use of a particular person, group or class”. Yet, I heard Walter Lewis state in his testimony that he felt that the meaning in 20.02D did not include “personal interest” but only the interest of another person or entity. That jives with the above interpretation of behalf = represent. Here again, we have different interpretations.
- “board, commission or agency” means, by Charter definition, “any office, department, board, commission or other governmental unit of the county”. This would include the County Council. I have seen no disagreement on this interpretation to date.
The above detail is only to point out that most of us interpret the meaning of 20.02D to make it reasonable to us. I maintain that the board can also interpret the meaning of 20.02D in order to most closely find and identify conflicts of interest.
If one looks at Code section 3-1.7 (c), (d), and (e), it is apparent that the County Council intended to interpret the meaning of 20.02D when it enacted the code.
Let’s look at several examples of how a broad interpretation of 20.02D can affect many actions that have occurred in the past and are occurring today, without any claim of conflict of interest or ethical misconduct. While I mention individual names and companies in the some cases, it is only that I know of these and to give a clear example, yet I am sure that there are a myriad of other similar examples that I do not know personally about.
- I go to the Finance Dept to renew my driver’s license. Am I appearing before them? Is it a private interest?
- While I was on the salary commission and ethics board, I represented Grove Farm at the Real Property Division for agricultural dedications. Did I appear? Some say no since I did not go before a group. While I did not appear before the appeals board, would that have been any different than my dealings with the agency in getting agricultural dedications approved? Was there any conflict of interest?
- While Allan Smith was a member of the Salary Commission, I am sure he appeared before the County Council, Planning Department, Public Works, Water Department and Planning Commission as a representative of Grove Farm. Is there any conflict here? This merits some discussion as the Salary Commission has no influence over any other board or commission, with whom Mr. Smith was also dealing.
- Councilmember Mel Rapozo appeared before the Ethics board to seek an opinion about his company’s successful bid to deliver subpoenas for the County. Of note is that he stated that he was appearing not as a councilmember, but as the owner of his business. This was at the same meeting when members of the public were objecting to Jonathan Chun’s representing clients in front of other commissions. At the same Ethics board meeting, Councilmember Shaylene Iseri-Carvalho spoke in favor of Mel’s company contract. When I asked if any of them thought that Mel or Shaylene’s appearance before us violated 20.02D, no one spoke up. In fact several said it was appropriate. This still bothers me as I see no difference between the actions of Jonathan and the actions of Mel and Shaylene when it comes to section 20.02D.
- Some planners in the Planning Department do drafting work as side employment. The department ethics rules, which the ethics board has approved, allows these planners to bring their work to the department for approval as long as they do not review their own work. They can also walk their plans through other departments with no restrictions (on their own time, of course). Is this appearing before an agency?
- Judy Lenthall appeared last year before the County Council representing the Food Bank. Is that a “private interest”? Did she appear as a board of ethics member?
- Any officer or employee goes before the Planning Commission for a permit for his own property. This happens on a regular basis. Is this “in behalf of private interests”? More often, they go to the Planning Department and Public Works Department for building permits. Many times, they will walk the permits through. I have done that. Is this “appearing before”?
- A planning commissioner is an architect who represents clients before various county agencies. The board of ethics opines that he cannot represent clients before the planning department, yet may do so before other departments in the county.
- A County solid waste worker wants to bid on a competitive proposal by the county within his own department. He comes before the Ethics board to ask for an opinion. Is he appearing in behalf of private interests?
- A councilmember testifies in favor of a development project before the Planning Commission. Happens all the time. Is that “in behalf of”? A councilmember testifies against a development project before the Planning Commission. Happens all the time. Any difference? What about any employee or officer testifying in favor of a project before the Planning Commission? Don’t we all have the right of free speech and doesn’t the sunshine law to allow us to speak at a meeting? I believe yes and yes, but I must appear as an individual, not a board of ethics member. I believe there is a difference. Jonathan Chun is on the Charter Review Commission. He represents clients in front of the Planning Commission and County Council. Is there a conflict of interest?
I hope you can imagine that there are many more examples. I see no conflict of interest or inherent violation of ethical conduct in any of the above examples.
Judy Lenthall did some research into the history of the language of 20.02 and the intent behind 20.02D. I attach her email for your interest. While her research gives an indication of the intent of the charter language, I will never be sure of the intent since it was done in the mid-sixties and I was not there. I do have one indication of the intent and that is section 20.04 (Disclosure) which states that included in the disclosure must be “the names of persons represented before government agencies”. Why would this disclosure be required if one was prohibited from representing private interests?
An objection by Horace Stoessel and others to the board’s opinions is that they feel my interpretation totally guts the intent of 20.02D and that there would be no examples of violation of 20.02D using my interpretation. I used some examples of an officer or employee using his official position to apply undue influence for a private interest. The objection to this was that section 20.02E covered that and so the meaning of 20.02D was being distorted by the board.
Let’s look at 20.02D and E.
20.02D – “No officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”
20.02E – “No officer or employee of the county shall use his official position to secure a special benefit, privilege or exemption for himself or others.”
If I tried to put my interpretation of 20.02D into words, it would be “No officer or employee of the county shall appear in the capacity of his county position on behalf of private interests before any board, commission or agency. I think that is an appropriate use of the word “appear”. In the dictionary definition, examples given are that you appearing in court as the attorney, at the witness, or as the client. So, it is not just the individual appearing, but appearing in a certain capacity. I maintain this is a little different from 20.02E and use an example to demonstrate the difference.
- The mayor goes to the building department and asks the department to issue his friend a pending permit right away. In my opinion, this would be undue influence and a violation of ethics and 20.02D. It might not be a violation of 20.02E as a permit being issued is not necessarily a special benefit, privilege or exemption.
As a final bit of information, I looked through all the board of ethics opinions since 1976. I only found 5 that related to appearing before boards, commissions or agencies. Two opinions, in 1999 and 2005, stated that an officer or employee could testify or appear before boards commissions or agencies in a personal capacity, but no in their county capacity. Three opinions, two in 2007 and one in 2008, allowed board or commission members to represent private interests before boards, commissions and agencies other than their own. These last three opinions, by the way, were made by the same board of ethics, which included myself, Judy Lenthall, Leila Fuller and Bob Farias.
I agree with Horace that the County’s Guide to Ethical Issues has an example which can be considered contrary to the Jonathan Chun and Dee Crowell opinions. I suggest a remedy that I am sure Horace would object to and that is to delete this example from the handbook. We can in the near future review the entire handbook and may be able to address section 20.02D in a clear manner. Yet, we should delete the example of page 7 now,
Sincerely,
Mark Hubbard
2-23-09
Attachment: email from Judy Lenthall dated 5-14-08
_______________
Judith Lenthall memo (in full)
Hi Mark,
HOORAY! In fact, EUREKA! Mystery solved re. Intent of the Code of Ethics issue. Here’s the scoop:
In 1964, work first started on a Kaua`i Charter. A Charter Commission was established in 1965 and in 1966 they had a pretty solid draft that the Commission eventually approved. They seemed to have spent a lot of time trying to reinvent the wheel in 1965, but eventually they called upon the example charters from several mainland cities. The city that they eventually plagiarized the most was Salem, Oregon. And Salem Oregon has the same language that interests us.
Since 1968, the language we currently see in our Code of Ethics (for those sections that interest us for the moment) has been identical. No changes. Thus, the intent of this language has to be found sometime in 1965-1966 (I’m assuming that this went to a public vote in 1967? I don’t know).
So, I got the minutes from their discussion about this and here it goes:
1964
Code of Ethics DRAFT PROPOSAL (NOTE: This is a typed sheet with lots of internal corrections and hand-written notes on it). This is NOT the Charter Commission people’s work yet, but elected leaders?)
5. Nothing contained herein shall preclude the acceptance of contributions for election campaigns.
6. Full disclosure in writing to appointing authority or council, to be of public record, of such interests, at any time that such conflict becomes apparent.
7. No outside employment, business or professional activity which may impair his independence of judgment in exercise of official duties, or might induce him to disclose confidential information, or which is otherwise inconsistent or incompatible with or which interferes with the proper discharge of official duties.
8. Council to disclose interest in writing prior to vote.
So, the above was the original start of this issue. This draft was sent to the newly formed Charter Commission who promptly rejected it (and a LOT more), The Charter Commission apparently felt that THEY were supposed to be the crafters of this document. The first Charter Commission in Kaua`i discussed the code of ethics stuff at their April 19th and April 26, 1966 meetings, and they flushed out the section we’re interested in.
April 19, 1966 info:
I need to scan and attach this whole page because it’s too much to write. Briefly, it says if you get PAID in whole or part by the County, (NOTE: This would exclude Board volunteers!), you can’t represent private interests before any agency. Then it says:
This section shall not be construed:
to prohibit any officer or employee from being affiliated with, employed by or representing a person, firm or corporation whose direct and indirect interest in business dealings with the county forms an insubstantial part of its total business, provided that he has not been retained for the purpose of appearing before the whole agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency.
to prohibit any officer or employee from appearing before any agency upon matters only incidentally part of the employment provided that he has not been retained for the purpose of appearing before the agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency;
The jist (sic) of the above is that I think they were trying to REALLY define stuff to be important and payment can’t be contingent on the action of the agency. What is a little confusing is the “you can’t be retained to appear before the whole agency.” What do you think that means?
To me, the intent of the original crafters (1964) was a) disclose; b) don’t mess with anything that could impair your independent judgment. I’ll buy BOTH of those intents. The 2nd version again tries to a) disclose; and b) establish an importance factor to the matter; but muddies the waters with the WHOLE AGENCY language. What? It’s OK to meet before PART of the agency?
Unfortunately, ALL this deliberation got reduced to the VERY simplistic phrase, “Thou shalt not appear before any agency” because this was the copied language from Salem, Oregon. this was the language that was eventually approved for the County’s FIRST charter, and the language which has remained ever since 1968.
But the point is, I think I’m clear now in the intent, and I think it makes sense.
Alas, there is NOTHING on “don’t use county property for personal use” because that too appears to be a copied section with ABSOLUTELY no wiggle-room. Seems to me that if we use the original crafters logic, a level of importance or value might be tried to using county property for person use, before we get every mislaid paper clip, phone call, vehicle person errand, etc. before the Board of Ethics.
So the question I have now is what do I do with this info? Turn it over to Barbara? Can I give it to the guy that seems to have the biggest beef about this language? What?
In any even, I am finally satisfied about the intent and if given this information BEFORE, I would NOT have abstained from my vote.
IMUA!
Aloha,
Judy
Part three- Deep Thoughts- a “Handy” Diversion.
One would think that a member of any ethics board or commission would be a proponent of the highest ethical standard. But on Kaua`i, as we’ve noted in the first two parts of this report, the three prime officers of our Board of Ethics have been in violation of the plain reading of the charter’s section 20.02(D) prohibitions on those “employees and officers” who “appear on behalf of a private interest” before an “agency board or commission” while serving on any of the county’s boards or commissions.
We detailed two recent cases- those of Dee Crowell of the water board and Jonathan Chun of the charter commission- where the BOE apparently chose to simply ignore those provisions of the charter and claim that, because the ordinance (Kaua`i County Code [KCC] Section 3) didn’t detail the prohibitions in the charter’s section 20.02(D) they didn’t have to be enforced, in violation of the supremacy principles expressed in the US Constitution.
So what was behind the thinking of those two chairs of the BOE- Mark Hubbard and Lei Fuller- and the secretary, Judith Lenthall, who are in apparent violation?
After the Crowell and Chun rulings clearing them of violating the charter, a group of citizens were outraged. Horace Stoessel, Bruce Pleas, Walter Lewis, Glenn Mickens and others were outraged and told the board so during and after the discussions.
(Note: In part 2 we said there was no apparent discussion of the Crowell decision at a BOE meeting. The minutes reveal the matter was decided at their 12/07 meeting. We apologize for the oversight).
In response past and current Chair Mark Hubbard – who has also served as chair of another board embroiled in discretionary controversy, the state Burial Council of Kaua`i- wrote and presented the BOE with a long and extremely revealing “memo” at their 4/08 meeting .
We will examine it here in detail.
We do so because the rambling letter reveals the mental machinations of a man- and board- trying his best to twist the meanings of words by isolating and equivocating them trying every rationale- whether valid or simply laughable- to clear others who were seeking to exonerate themselves and so, by precedent, Hubbard, Fuller and Lenthall from their apparently prohibited activities.
The letter, the contents of which was supported by the other BOE members according to the minutes of the 4/08 meeting, reveals what appears to be a basic lack of ethical standards and ability to make ethical judgment calls with an unbiased eye on the BOE’s part and an inability or unwillingness to apply the “to be liberally construed” provision of the Code of Ethics contained in KCC section 3.1.
We will excerpt the letter here and reprint it in full at the end of this article, Because we received only a paper version we had to type it in manually and although we read and re-read it a few times it may contain a typo or three, which we apologize for in advance.
After saying he represents only himself Hubbard actually admits that the board was seemingly oblivious to the section 20.02(D) prohibitions in the Crowell case saying:
When the board discussed Dee Crowell’s request for an advisory opinion in late 2007, I do not remember any discussion of how 20.02D might impact the opinion. I only remember referencing the County Code, section 3-1.7{d}. The board concluded that a Board of Water Commission appointee is not precluded from acting in a representative capacity before other County agencies and departments as long as he complied with code section 3-1.7.
He then says that during the Chun case:
I saw 20.02D for the first time in the light of its plain language and was shocked to realize that I had been on the Ethics board for several years (I have served at least one term prior to my current term without being aware of this issue. I guess it should not be surprising as I believe that this issue has been seldom if ever raised in the 40+ years of the Charter’s existence.
Amazingly he actually admits to apparently never having read the charter section on ethics or at least not giving it any thought before that time. He even admits that on reading the plain meeting he found himself in apparent violation.
But the next paragraph begins to show how his own prejudices- and conflict- clouds his own thinking. He says he:
talked with a former Ethics board member who said it could simply be interpreted to mean that no employee or officer could appear “wearing the hat of their office: in behalf of private interests before any agency, board or commission. This sounded reasonable to me.
Nowhere does any provision of charter, law or rule mention this “hat wearing” construction of Hubbard’s.
But rather than leave it at that he proceeds to try to deconstruct the key phrase and reconstruct it using alternative dictionary definitions of the words that take the words out of context of “appear on behalf of a private interest”
First he separates out the word “appear” from “on behalf of” saying
The word “appear”, particularly when used with the word “before” means “to come formally before an authoritative body”. Another definition is to “come into view, become visible”.
It’s called equivocation, not, as he says earlier being “exact, specific, rational and literal”. “Appear on behalf of” is never a phrase that uses “appear” to mean simply come into view but is rather in the sense that an attorney “appears on behalf” of a client.
Then he continues to work on the words “on behalf of” trying to also separate them from appear” and redefine so it, saying it
can mean in support of, in the interest of, for the benefit of, as a representative of, in defense of. It is my belief, in hearing testimony by Walter Lewis and Horace Stoessel, that they believe that the primary meaning and possibly the only relevant meaning in the context of 20.02D is “as a representative of”. again, I maintain that there are different interpretations here.
To isolate them from appear is to falsify the plain meaning of the phrase by taking them out of context. to read them together is to give them plain meaning
Finally he deconstructs a “private inertest” and tries to pull it out of context saying
“Private interests”, by dictionary definition, means “intended for or restricted to the use of a particular person, group or class”. Yet, I heard Walter Lewis state in his testimony that he felt that the meaning in 20.02D did not include “personal interest” but only the interest of another person or entity. That jives with the above interpretation of behalf = represent. Here again, we have different interpretations.
Whatever Walter Lewis said or didn’t say is irrelevant. In addition to there being a huge difference between a private and public interest (we’ll get to that later) it also removes the two words from the context of the whole phrase.
Hubbard uses this later to say that renewing his driver’s license would seem to be prohibited by this phrase but he ignores the fact that one does not “appear on behalf of” one’s self but rather appears AS one’s self. One cannot refer to one’s self in the third person except as a poetic affectation. When one says “I’m appearing on behalf of myself” it is usually with a note of sarcasm and elicits a chuckle because of course one is just “appearing”, not on behalf of someone by him or herself
He also ignores the fact that renewing a driver’s license is not discretionary as we discussed earlier.
But if those “examples” are troublesome his next few paragraphs are even more telling of his grasping at straws constructed of whole cloth, to combine two phrases.
He says:
The above detail is only to point out that most of us interpret the meaning of 20.02D to make it reasonable to us. I maintain that the board can also interpret the meaning of 20.02D in order to most closely find and identify conflicts of interest.
As we said before, there are separate sections dealing with real and direct conflicts. 20.02(D) is a prohibition on a list of prohibitions in order to avoid potential or perceived conflicts of interest
But next he makes the fatal error, that destroys any relevance of any of his arguments no matter how convoluted and contorted. He writes
If one looks at Code section 3-1.7 (c), (d), and (e), it is apparent that the County Council intended to interpret the meaning of 20.02D when it enacted the code.
Each section of the KCC section 3 notes the charter provision from which it is derived if indeed it is derived from the charter. But 3-1.7 only mentions section 20.01, not 20.02 much less 20.02(D)- which as we said before is not specifically mentioned in the ordinance- leaving the ordinance “silent” on the matter and so leaving the charter provision to stand as the only guide in the matter.
So with blatantly wrong premises in hand Hubbard attempts to list specific cases that could be rationalized using his irrational construct.
The part that stands out here is that if the "appear on behalf of a private interest” phrase is read with plain meaning, all of these “examples” provide areas where application is simple and direct. Only when pretzel logic and wordsmithing – along with a personal interest in making the provision meaningless- is used do they become cloudy.
After the driver’s licenses example Hubbard list others.
Here are some of the most contorted.
While I was on the salary commission and ethics board, I represented Grove Farm at the Real Property Division for agricultural dedications. Did I appear? Some say no since I did not go before a group. While I did not appear before the appeals board, would that have been any different than my dealings with the agency in getting agricultural dedications approved? Was there any conflict of interest?
As we said before he attempts to use the magician’s definition of “appear” rather than the lawyer’s.
While Allan Smith was a member of the Salary Commission, I am sure he appeared before the County Council, Planning Department, Public Works, Water Department and Planning Commission as a representative of Grove Farm. Is there any conflict here? This merits some discussion as the Salary Commission has no influence over any other board or commission, with whom Mr. Smith was also dealing.
As we said before, it doesn’t matter if it’s the same board. Hubbard again tries to conflate the conflict of interest provisions with the prohibitions which are based on potential for conflicts when even the ordinance does not list charter 20.02 as the basis for KCC 3-1.7.
Some planners in the Planning Department do drafting work as side employment. The department ethics rules, which the ethics board has approved, allows these planners to bring their work to the department for approval as long as they do not review their own work. They can also walk their plans through other departments with no restrictions (on their own time, of course). Is this appearing before an agency?
This is outrageous if it’s truly happening in our county- not that we doubt it does. People who work in the planning department should certainly not be allowed to seek outside employment where they come to their co-workers for approval of their projects. The prohibition of “work on their own plans” as the only violation is, in itself, a violation of all ethical principles that few if any can’t see is an unethical practice. The questions “what happens when you have to approve the plans of someone who just approved your plan” is almost to silly to have to ask.
Again it makes one ask if someone who can’t see this should even be on an ethics board much less the chair. As does the next one that says
Judy Lenthall appeared last year before the County Council representing the Food Bank. Is that a “private interest”? Did she appear as a board of ethics member?
Again it doesn’t matter if she is wearing a hat or any other finagling apparel . And of course the food bank is a private interest- for profit and not for profit isn’t a charter criteria and there are no “exceptions” for doing “good work”.
A planning commissioner is an architect who represents clients before various county agencies. The board of ethics opines that he cannot represent clients before the planning department, yet may do so before other departments in the county.
If they do they apparently have no basis for doing so.
But finally Hubbard comes upon one important exception- the first amendment "free speech" rights of an individual who seeks to speak in the “public” interest as one on a general law or measure before the county councilor planning commission.
In addition between not being able to distinguish between a private and a personal interest he has trouble with the difference between a private and a public interest
Next he says
A councilmember testifies in favor of a development project before the Planning Commission. Happens all the time. Is that “in behalf of”? A councilmember testifies against a development project before the Planning Commission. Happens all the time. Any difference? What about any employee or officer testifying in favor of a project before the Planning Commission? Don’t we all have the right of free speech and doesn’t the sunshine law to allow us to speak at a meeting? I believe yes and yes, but I must appear as an individual, not a board of ethics member.
Here there is that “public interest” component. What Hubbard attempts to do is to separate out the words “private” and “interest” and reconstruct them giving them a different reading. The word “interest” in the phrase “appear on behalf of a private interest” is one that denotes a direct or even indirect financial or otherwise tangible interest yet Hubbard again seeks to deconstruct and reconstruct in order to evade the plain meaning of the phrase.
In any case the first amendment trumps the county charter under supremacy principles and receives the highest protection from the courts whereas “private interests” do not.
Hubbard’s final evasion is to try to conflate 20.02(D) with 20.02(E) and claim they must be read together.
He writes
An objection by Horace Stoessel and others to the board’s opinions is that they feel my interpretation totally guts the intent of 20.02D and that there would be no examples of violation of 20.02D using my interpretation. I used some examples of an officer or employee using his official position to apply undue influence for a private interest. The objection to this was that section 20.02E covered that and so the meaning of 20.02D was being distorted by the board.
Let’s look at 20.02D and E.
20.02D – “No officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”
20.02E – “No officer or employee of the county shall use his official position to secure a special benefit, privilege or exemption for himself or others.”
Here he implies that only situations that violate the second provision also violate the first, which is simply not what the prohibition list in 20.02 says.
Finally he gives it his last and best misinterpretational effort concluding that somehow the person in question is “ok” as long as they claim they are not “wearing the hat” of the board they sit on based on his equivocal and out of context use of the word “appear”.
If I tried to put my interpretation of 20.02D into words, it would be “No officer or employee of the county shall appear in the capacity of his county position on behalf of private interests before any board, commission or agency. I think that is an appropriate use of the word “appear”. In the dictionary definition, examples given are that you appearing in court as the attorney, at the witness, or as the client. So, it is not just the individual appearing, but appearing in a certain capacity. I maintain this is a little different from 20.02E and use an example to demonstrate the difference.
Hubbard’s letter serves to show not just how his own personal prohibited actions drove his “logic” but how the appointing and approving authorities- the mayor and council- aren’t doing their due diligence in appointing people like him in the first place.
But he isn’t the only one.
At the same 4/08 meeting a memo- also reproduced in whole at the end of this piece and also typed out- from Lenthall was presented. It highlights how, in these people’s minds, it is possible to make these kinds of claims.
She apparently went back to the original charter commission- the one that wrote the charter in the 60’s.
She write to Hubbard
Hi Mark,
HOORAY! In fact, EUREKA! Mystery solved re. Intent of the Code of Ethics issue. Here’s the scoop:
In 1964, work first started on a Kaua`i Charter. A Charter Commission was established in 1965 and in 1966 they had a pretty solid draft that the Commission eventually approved. They seemed to have spent a lot of time trying to reinvent the wheel in 1965, but eventually they called upon the example charters from several mainland cities. The city that they eventually plagiarized the most was Salem, Oregon. And Salem Oregon has the same language that interests us.
Really that’s all you need to know if you read it carefully. But the original charter commission- made up of many attorneys who, like those today, “appeared on behalf of” all sorts of private interests but wanted to serve on the boards and commissions that approve their projects so they tried to insert all sorts of language that would allow them to do so.
She dug up some documents that indicate, not some kind of “original intent”- as she apparently would like to believe- but those thoughts rejected in favor of the ultimately voter-approved provisions.
These might have been some things that some wanted to include to allow their potential conflicts to stand as long as there was no quid pro quo apparent. But the important part is that they were not included in the charter, most likely not as some kind of oversight but for good reason..
She wrote
Since 1968, the language we currently see in our Code of Ethics (for those sections that interest us for the moment) has been identical. No changes. Thus, the intent of this language has to be found sometime in 1965-1966 (I’m assuming that this went to a public vote in 1967? I don’t know).
So, I got the minutes from their discussion about this and here it goes:
1964
Code of Ethics DRAFT PROPOSAL (NOTE: This is a typed sheet with lots of internal corrections and hand-written notes on it). This is NOT the Charter Commission people’s work yet, but elected leaders?)
1. Nothing contained herein shall preclude the acceptance of contributions for election campaigns.
2. Full disclosure in writing to appointing authority or council, to be of public record, of such interests, at any time that such conflict becomes apparent.
3. No outside employment, business or professional activity which may impair his independence of judgment in exercise of official duties, or might induce him to disclose confidential information, or which is otherwise inconsistent or incompatible with or which interferes with the proper discharge of official duties.
4. Council to disclose interest in writing prior to vote.
Lenthall also seems to rely on the ordinance that as we said is actually silent as to the 20.02 prohibitions and then tries to divine some kind of “intent” from the proposed provisions even though. as she notes, they were rejected.
She goes on to say
So, the above was the original start of this issue. This draft was sent to the newly formed Charter Commission who promptly rejected it (and a LOT more), The Charter Commission apparently felt that THEY were supposed to be the crafters of this document. The first Charter Commission in Kaua`i discussed the code of ethics stuff at their April 19th and April 26, 1966 meetings, and they flushed out the section we’re interested in.
Though she’s not clear about who “they” are it’s presumably the council although the words “code of ethics” refer to both KCC section 3- passed by the council after the charter- and the charter section 20 itself.
She then apparently cites some other proposed but rejected language to show it should have been included or indicates some kind of intent, even though it also was never included.
April 19, 1966 info:
I need to scan and attach this whole page because it’s too much to write. Briefly, it says if you get PAID in whole or part by the County, (NOTE: This would exclude Board volunteers!), you can’t represent private interests before any agency. Then it says:
This section shall not be construed:
to prohibit any officer or employee from being affiliated with, employed by or representing a person, firm or corporation whose direct and indirect interest in business dealings with the county forms an insubstantial part of its total business, provided that he has not been retained for the purpose of appearing before the whole agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency.
to prohibit any officer or employee from appearing before any agency upon matters only incidentally part of the employment provided that he has not been retained for the purpose of appearing before the agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency;
Her interpretation again indicates how her compromised position has compromised any objectivity in the matter, further writing
The jist (sic) of the above is that I think they were trying to REALLY define stuff to be important and payment can’t be contingent on the action of the agency...
.
To me, the intent of the original crafters (1964) was a) disclose; b) don’t mess with anything that could impair your independent judgment. I’ll buy BOTH of those intents. The 2nd version again tries to a) disclose; and b) establish an importance factor to the matter; but muddies the waters with the WHOLE AGENCY language. What? It’s OK to meet before PART of the agency?
Unfortunately, ALL this deliberation got reduced to the VERY simplistic phrase, “Thou shalt not appear before any agency” because this was the copied language from Salem, Oregon. this was the language that was eventually approved for the County’s FIRST charter, and the language which has remained ever since 1968.
But the point is, I think I’m clear now in the intent, and I think it makes sense.
It might “make sense” if you are trying to construct some rationale for violating the plain reading of a law of which you are in violation.
It might “make sense” if you forget about the fact that they apparently rejected the provisions because they were simply so unethical that they thought they’d better go to a generally accepted standard of ethics rather than insert one cooked up in a paternalistic backroom by representatives of plantations seeking to implement watered down ethics laws and allow themselves carte blanche to concoct public policy to their own benefit.
But if all that isn’t troublesome enough, the fact that she is in a compromised position has clouded her judgment even on such issues as stealing from the county.
She finally says
Alas, there is NOTHING on “don’t use county property for personal use” because that too appears to be a copied section with ABSOLUTELY no wiggle-room. Seems to me that if we use the original crafters logic, a level of importance or value might be tried to using county property for person use, before we get every mislaid paper clip, phone call, vehicle person errand, etc. before the Board of Ethics.
The much abused “paper clip” example has been used by thieves to discredit the law since paper clips were introduced to offices.
It all points to the self-distorted mindset of the Kaua`i Board of Ethics that attempts to reduce all ethical provisions- except for direct self-dealing transaction and observable quid pro quos- to absurdity through disingenuous self-serving, out-of-context word manipulation and faulty logic, combined with an intentional misreading and just plain untrue claims.
Many see this debacle as a reason for re-writing the ethics provisions in the charter and county code. But other than amending the county code to reiterate the charter provisions there is little that needs clarifying to those who approach the issues raised before the BOE with a clear mind and without being in violations of those provisions they are sworn to uphold.
But it is hard to really blame the appointed individuals and hold them wholly responsible. If the county council and the mayor had bothered to read the laws they were sworn to uphold, they wouldn’t be appointing those few in the community who routinely appear on behalf of private interest before agencies, board and commissions to those very board and commissions, especially the one that determines complicity with the law.
Like Caesar’s wife the BOE members should be beyond reproach, and certainly not guilty of the laws they are supposed to uphold.
But there may be one provision that needs to be enacted. At present, according to county and state law the place to file a complaint would be... yes, the Kaua`i Board of Ethics.
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Mark Hubbard’s Perspective of Kauai County Charter Section 20.02D (in full)
The issue of Charter Section 20.02D has been bothering me for about a year now and I wish to give you some history and mostly my rationale for my current personal position on the interpretation of section 20.02 D. The below views and statements are mine personally and are not to be attributed to the Board of Ethics or any other member of that board.
When the board discussed Dee Crowell’s request for an advisory opinion in late 2007, I do not remember any discussion of how 20.02D might impact the opinion. I only remember referencing the County Code, section 3-1.7{d}. The board concluded that a Board of Water Commission appointee is not precluded from acting in a representative capacity before other County agencies and departments as long as he complied with code section 3-1.7.
In early 2008, the issue of section 20.02 came up in regard to Jonathan Chun’s request for an advisory opinion regarding his representing clients before various County agencies and departments. Several members of the public, including Horace Stoessel, maintained private interests before any board, commission or agency. I saw 20.02D for the first time in the light of its plain language and was shocked to realize that I had been on the Ethics board for several years (I have served at least one term prior to my current term without being aware of this issue. I guess it should not be surprising as I believe that this issue has been seldom if ever raised in the 40+ years of the Charter’s existence.
Another reason for my being bothered by this language is that I like to be exact, specific, rational and literal. I talked with Horace Stoessel who I had previously served with on the Salary Commission and for whom I have considerable respect. I also talked with a former Ethics board member who said it could simply be interpreted to mean that no employee or officer could appear “wearing the hat of their office: in behalf of private interests before any agency, board or commission. This sounded reasonable to me as a way of fitting the board’s opinion regarding Dee Crowell and many other examples in apparent conflict with a plain language interpretation of 20.02D. Yet, Horace and others felt that the broad has no authority to “narrow: the language of 20.02D, as it is the Charter and the voice of the people. The board ended up saying that Jonathan Chun could in fact represent private interests in front of boards and commissions other than the Charter Review Commission, of which he was a member.
The controversy is still around as evidenced by Horace’s email. What continues to concern me is how am I able to reconcile a myriad of situations which can be seen to conflict with a plain language interpretation of 20.02D.
It is my current belief that the board has the right to interpret 20.02D. This is based on my observation that everyone who has opposed the board’s opinions in this matter (with possible exception of Bruce Pleas) has in fact interpreted 20.02D in their own way (as I will indicate below).
Let us look specifically at the language and some examples. The language says that “no officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”
- “Officer or employee” covers all county employees, elected officials, appointees and board and commission members. No one seems to have different interpretations of this term.
- The word “appear”, particularly when used with the word “before” means “to come formally before an authoritative body”. Another definition is to “come into view, become visible”. Here there are different interpretations. Many would say that getting one’s driver’s license is not “appearing” before the Finance Department. I won’t disagree.
- The word “behalf”, often used as “in behalf of” or “on behalf of”, can mean in support of, in the interest of, for the benefit of, as a representative of, in defense of. It is my belief, in hearing testimony by Walter Lewis and Horace Stoessel, that they believe that the primary meaning and possibly the only relevant meaning in the context of 20.02D is “as a representative of”. again, I maintain that there are different interpretations here.
- “Private interests”, by dictionary definition, means “intended for or restricted to the use of a particular person, group or class”. Yet, I heard Walter Lewis state in his testimony that he felt that the meaning in 20.02D did not include “personal interest” but only the interest of another person or entity. That jives with the above interpretation of behalf = represent. Here again, we have different interpretations.
- “board, commission or agency” means, by Charter definition, “any office, department, board, commission or other governmental unit of the county”. This would include the County Council. I have seen no disagreement on this interpretation to date.
The above detail is only to point out that most of us interpret the meaning of 20.02D to make it reasonable to us. I maintain that the board can also interpret the meaning of 20.02D in order to most closely find and identify conflicts of interest.
If one looks at Code section 3-1.7 (c), (d), and (e), it is apparent that the County Council intended to interpret the meaning of 20.02D when it enacted the code.
Let’s look at several examples of how a broad interpretation of 20.02D can affect many actions that have occurred in the past and are occurring today, without any claim of conflict of interest or ethical misconduct. While I mention individual names and companies in the some cases, it is only that I know of these and to give a clear example, yet I am sure that there are a myriad of other similar examples that I do not know personally about.
- I go to the Finance Dept to renew my driver’s license. Am I appearing before them? Is it a private interest?
- While I was on the salary commission and ethics board, I represented Grove Farm at the Real Property Division for agricultural dedications. Did I appear? Some say no since I did not go before a group. While I did not appear before the appeals board, would that have been any different than my dealings with the agency in getting agricultural dedications approved? Was there any conflict of interest?
- While Allan Smith was a member of the Salary Commission, I am sure he appeared before the County Council, Planning Department, Public Works, Water Department and Planning Commission as a representative of Grove Farm. Is there any conflict here? This merits some discussion as the Salary Commission has no influence over any other board or commission, with whom Mr. Smith was also dealing.
- Councilmember Mel Rapozo appeared before the Ethics board to seek an opinion about his company’s successful bid to deliver subpoenas for the County. Of note is that he stated that he was appearing not as a councilmember, but as the owner of his business. This was at the same meeting when members of the public were objecting to Jonathan Chun’s representing clients in front of other commissions. At the same Ethics board meeting, Councilmember Shaylene Iseri-Carvalho spoke in favor of Mel’s company contract. When I asked if any of them thought that Mel or Shaylene’s appearance before us violated 20.02D, no one spoke up. In fact several said it was appropriate. This still bothers me as I see no difference between the actions of Jonathan and the actions of Mel and Shaylene when it comes to section 20.02D.
- Some planners in the Planning Department do drafting work as side employment. The department ethics rules, which the ethics board has approved, allows these planners to bring their work to the department for approval as long as they do not review their own work. They can also walk their plans through other departments with no restrictions (on their own time, of course). Is this appearing before an agency?
- Judy Lenthall appeared last year before the County Council representing the Food Bank. Is that a “private interest”? Did she appear as a board of ethics member?
- Any officer or employee goes before the Planning Commission for a permit for his own property. This happens on a regular basis. Is this “in behalf of private interests”? More often, they go to the Planning Department and Public Works Department for building permits. Many times, they will walk the permits through. I have done that. Is this “appearing before”?
- A planning commissioner is an architect who represents clients before various county agencies. The board of ethics opines that he cannot represent clients before the planning department, yet may do so before other departments in the county.
- A County solid waste worker wants to bid on a competitive proposal by the county within his own department. He comes before the Ethics board to ask for an opinion. Is he appearing in behalf of private interests?
- A councilmember testifies in favor of a development project before the Planning Commission. Happens all the time. Is that “in behalf of”? A councilmember testifies against a development project before the Planning Commission. Happens all the time. Any difference? What about any employee or officer testifying in favor of a project before the Planning Commission? Don’t we all have the right of free speech and doesn’t the sunshine law to allow us to speak at a meeting? I believe yes and yes, but I must appear as an individual, not a board of ethics member. I believe there is a difference. Jonathan Chun is on the Charter Review Commission. He represents clients in front of the Planning Commission and County Council. Is there a conflict of interest?
I hope you can imagine that there are many more examples. I see no conflict of interest or inherent violation of ethical conduct in any of the above examples.
Judy Lenthall did some research into the history of the language of 20.02 and the intent behind 20.02D. I attach her email for your interest. While her research gives an indication of the intent of the charter language, I will never be sure of the intent since it was done in the mid-sixties and I was not there. I do have one indication of the intent and that is section 20.04 (Disclosure) which states that included in the disclosure must be “the names of persons represented before government agencies”. Why would this disclosure be required if one was prohibited from representing private interests?
An objection by Horace Stoessel and others to the board’s opinions is that they feel my interpretation totally guts the intent of 20.02D and that there would be no examples of violation of 20.02D using my interpretation. I used some examples of an officer or employee using his official position to apply undue influence for a private interest. The objection to this was that section 20.02E covered that and so the meaning of 20.02D was being distorted by the board.
Let’s look at 20.02D and E.
20.02D – “No officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”
20.02E – “No officer or employee of the county shall use his official position to secure a special benefit, privilege or exemption for himself or others.”
If I tried to put my interpretation of 20.02D into words, it would be “No officer or employee of the county shall appear in the capacity of his county position on behalf of private interests before any board, commission or agency. I think that is an appropriate use of the word “appear”. In the dictionary definition, examples given are that you appearing in court as the attorney, at the witness, or as the client. So, it is not just the individual appearing, but appearing in a certain capacity. I maintain this is a little different from 20.02E and use an example to demonstrate the difference.
- The mayor goes to the building department and asks the department to issue his friend a pending permit right away. In my opinion, this would be undue influence and a violation of ethics and 20.02D. It might not be a violation of 20.02E as a permit being issued is not necessarily a special benefit, privilege or exemption.
As a final bit of information, I looked through all the board of ethics opinions since 1976. I only found 5 that related to appearing before boards, commissions or agencies. Two opinions, in 1999 and 2005, stated that an officer or employee could testify or appear before boards commissions or agencies in a personal capacity, but no in their county capacity. Three opinions, two in 2007 and one in 2008, allowed board or commission members to represent private interests before boards, commissions and agencies other than their own. These last three opinions, by the way, were made by the same board of ethics, which included myself, Judy Lenthall, Leila Fuller and Bob Farias.
I agree with Horace that the County’s Guide to Ethical Issues has an example which can be considered contrary to the Jonathan Chun and Dee Crowell opinions. I suggest a remedy that I am sure Horace would object to and that is to delete this example from the handbook. We can in the near future review the entire handbook and may be able to address section 20.02D in a clear manner. Yet, we should delete the example of page 7 now,
Sincerely,
Mark Hubbard
2-23-09
Attachment: email from Judy Lenthall dated 5-14-08
_______________
Judith Lenthall memo (in full)
Hi Mark,
HOORAY! In fact, EUREKA! Mystery solved re. Intent of the Code of Ethics issue. Here’s the scoop:
In 1964, work first started on a Kaua`i Charter. A Charter Commission was established in 1965 and in 1966 they had a pretty solid draft that the Commission eventually approved. They seemed to have spent a lot of time trying to reinvent the wheel in 1965, but eventually they called upon the example charters from several mainland cities. The city that they eventually plagiarized the most was Salem, Oregon. And Salem Oregon has the same language that interests us.
Since 1968, the language we currently see in our Code of Ethics (for those sections that interest us for the moment) has been identical. No changes. Thus, the intent of this language has to be found sometime in 1965-1966 (I’m assuming that this went to a public vote in 1967? I don’t know).
So, I got the minutes from their discussion about this and here it goes:
1964
Code of Ethics DRAFT PROPOSAL (NOTE: This is a typed sheet with lots of internal corrections and hand-written notes on it). This is NOT the Charter Commission people’s work yet, but elected leaders?)
5. Nothing contained herein shall preclude the acceptance of contributions for election campaigns.
6. Full disclosure in writing to appointing authority or council, to be of public record, of such interests, at any time that such conflict becomes apparent.
7. No outside employment, business or professional activity which may impair his independence of judgment in exercise of official duties, or might induce him to disclose confidential information, or which is otherwise inconsistent or incompatible with or which interferes with the proper discharge of official duties.
8. Council to disclose interest in writing prior to vote.
So, the above was the original start of this issue. This draft was sent to the newly formed Charter Commission who promptly rejected it (and a LOT more), The Charter Commission apparently felt that THEY were supposed to be the crafters of this document. The first Charter Commission in Kaua`i discussed the code of ethics stuff at their April 19th and April 26, 1966 meetings, and they flushed out the section we’re interested in.
April 19, 1966 info:
I need to scan and attach this whole page because it’s too much to write. Briefly, it says if you get PAID in whole or part by the County, (NOTE: This would exclude Board volunteers!), you can’t represent private interests before any agency. Then it says:
This section shall not be construed:
to prohibit any officer or employee from being affiliated with, employed by or representing a person, firm or corporation whose direct and indirect interest in business dealings with the county forms an insubstantial part of its total business, provided that he has not been retained for the purpose of appearing before the whole agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency.
to prohibit any officer or employee from appearing before any agency upon matters only incidentally part of the employment provided that he has not been retained for the purpose of appearing before the agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency;
The jist (sic) of the above is that I think they were trying to REALLY define stuff to be important and payment can’t be contingent on the action of the agency. What is a little confusing is the “you can’t be retained to appear before the whole agency.” What do you think that means?
To me, the intent of the original crafters (1964) was a) disclose; b) don’t mess with anything that could impair your independent judgment. I’ll buy BOTH of those intents. The 2nd version again tries to a) disclose; and b) establish an importance factor to the matter; but muddies the waters with the WHOLE AGENCY language. What? It’s OK to meet before PART of the agency?
Unfortunately, ALL this deliberation got reduced to the VERY simplistic phrase, “Thou shalt not appear before any agency” because this was the copied language from Salem, Oregon. this was the language that was eventually approved for the County’s FIRST charter, and the language which has remained ever since 1968.
But the point is, I think I’m clear now in the intent, and I think it makes sense.
Alas, there is NOTHING on “don’t use county property for personal use” because that too appears to be a copied section with ABSOLUTELY no wiggle-room. Seems to me that if we use the original crafters logic, a level of importance or value might be tried to using county property for person use, before we get every mislaid paper clip, phone call, vehicle person errand, etc. before the Board of Ethics.
So the question I have now is what do I do with this info? Turn it over to Barbara? Can I give it to the guy that seems to have the biggest beef about this language? What?
In any even, I am finally satisfied about the intent and if given this information BEFORE, I would NOT have abstained from my vote.
IMUA!
Aloha,
Judy
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