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 Lei Fuller. Show all posts
Showing posts with label Lei Fuller. 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, June 22, 2009
(PNN) COUNTY PUBLIC FINANCIAL DISCLOSURES TO BE PUBLICLY DISCLOSED
COUNTY PUBLIC FINANCIAL DISCLOSURES TO BE PUBLICLY DISCLOSED
(PNN)-- Public disclosure of financial information required by state law of certain county officials will now be subject to public review according to a letter to all board and commission members from Executive Assistant and Administrator of the Office of Boards and Commissions, John Isobe.
The Hawai`i State Constitution’s "Code of Ethics” Article XVI states that
financial disclosure provisions shall require all elected officers, all candidates for elective office and such appointed officers and employees as provided by law to make public financial disclosures.
That has apparently never been the case on Kaua`i where the Board of Ethics (BOE) has for decades routinely received the pubic disclosures in executive session where they have redacted whatever they consider to be sensitive and/or personal and financial information as defined in the Universal Information Practices Act’s (UIPA) section 92F-14(6).
As a matter of fact, the very financial information meant to be reviewed for violations of conflict of interest provisions by the board so they can stop the conflict from occurring appear to be the ones that have been hidden from the public so as not to embarrass those required to file.
According to the County Charter, Article XX, the “mayor, councilpersons, all department heads and deputies, members of boards and commissions and the purchasing agent” are specifically required to publicly make public financial disclosures. All others may file a confidential disclosure.
According to Isobe’s letter
At its meeting on June 4, 2009, the Board of Ethics received a ruling from the Count (sic) Attorney's Office that all Disclosure Statements required to be filed with the Board are public record and must be released if requested by a member of the public.
When releasing this information, we have been instructed to only remove your personal information such as mailing address and contact phone number. For this reason, please be advised that any financial information will NOT be protected as defined under Section 92F-14(6), Hawaii Revised Statutes. (emphasis not added).
The warning is a apparently stunning admission that previously they were not “released if requested by a member of the public” and “financial information (was) protected”.
Two witnesses independently offered that the color went out of Isobe’s shocked-expression face when the board revealed the change of opinion in open session
According to the state constitution’s Code of Ethics:
financial disclosure provisions shall require all elected officers, all candidates for elective office and such appointed officers and employees as provided by law to make public financial disclosures... All financial disclosure statements shall include, but not be limited to, sources and amounts of income, business ownership, officer and director positions, ownership of real property, debts, creditor interests in insolvent businesses and the names of persons represented before government agencies.
The practice of not disclosing public disclosures is rooted in the county ordinance and BOE rules, both also called the Code of Ethics, which conflict with the more authoritative county charter and state constitution.
Currently the administrative rules of the BOE say
3.1 WHO TO FILE
All elected and appointed officers and employees, who are elected or appointed by officers elected pursuant to law or by County agencies and who have discretionary, executive or policy making powers and responsibilities shall be required to file the disclosure pursuant to Article XX the Code of Ethics
3.2 CONFIDENTIAL INFORMATION
Disclosures filed with the Board are confidential and the Board shall not release the contents thereof except as required by law except as provided under HRS 92F-14 (6).
But a new proposed change, based in part on what the county attorney has apparently told the BOE in a June 4 executive session meeting would reverse that 180 degrees and, if passed, the rules would read
RULE 3: DISCLOSURE REQUIREMENTS
3.1 WHO MUST FILE
The mayor, councilpersons, all department heads and deputies, members of boards and commissions and the purchasing agent (3/12/09) shall be required to file the disclosure pursuant to the Code of Ethics
3.2 PUBLIC INFORMATION
Disclosures filed with the Board are public record.
The matter was brought to the attention of the board beginning in March through the efforts of a handful of public watchdogs including Horace Stoessel, Glenn Mickens, Ed Coll, Walter Lewis and, especially Rob Abrew who persisted in researching and presenting the documentation that led to the new policy after BOE member Rolf Briber insisted the board pay attention to the pubic testimony.
Abrew and the others questioned why the disclosure forms were being reviewed in executive session in the first place rather than going having them go straight to public purview.
At first members of the board listed an evolving series of seemingly innocuous reasons for the secrecy, none of which indicated any changes to the substantive financial disclosures were made by the board.
But at the April 4 BOE meeting Bieber brought the matter up and the minutes indicate that what went on in executive sessions on financial disclosures was anything but innocuous.
The minutes say:
Chair (Leila) Fuller explained that the Disclosures are reviewed in Executive Session for the purpose of checking for potential conflict of interest but in those Disclosures are personal financial information that may not want to by mistake open the door for something. After they are approved in Executive Session they become a public document so the public has access to those documents once they are approved but the confidential and private information that should not be public knowledge is redacted when a member of the public requests a copy of the disclosure,
Mr. (Paul) Weil asked if they were not public documents from the beginning, the public has access to them even before we have approved or accepted them. Chair Fuller said they have no reason to be a public document before they are accepted. Mr. Weil asked to be directed to the Code that says they are not public documents until the Board has accepted them. Attorney Clark referenced HRS 92-F 14. Staff noted it was a public document except where provided under HRS 92-F 14 (6) which lists items that would be redacted before anyone looks at them.
This was the first admission by a BOE member that financial disclosures were being changed at all much less to avoid “opening the door” by disclosing too much financial information regarding conflicts of interest.
Resistance has been high to changing the rules, first proposed earlier this year, primarily by Fuller and former Chair Mark Hubbard.
Previously reasons they offered for executive session receipt of the disclosures had included making sure they were “complete” and were not “incorrect” since, they said, filers might not realize what they are filing, despite the fact in fling they are required to notarize an “affidavit”.
The further minutes reflect a desperation to find reasons to resist complete public disclosure of the completed public disclosure forms.
Mr. Bieber said his point at minimum was they have a better relationship with the public regarding this. Chair Fuller asked Mr. Bieber how he proposed (the Board) do that. Mr. Bieber said maybe there was another way they could go over the Disclosures, perhaps a packet with Disclosures in them instead of spending time in the meeting in Executive Session doing that. Chair Fuller cautioned against that because if they were to get the Disclosures in a packet that is just that many more pieces of document that are out in the public in case their briefcase gets lost or misplaced and likened it to a State computer with sensitive information on it that got misplaced or lost.
Reached for comment Bieber, said in an email:
Change in application of Disclosure Law has been long overdue for the County employees and officers of Kauai. The Board of Ethics is finally conforming to State Law properly within its Rules.
I am proud to say this came from the public. I simply moved the Board of Ethics to continue to provide the public hearing arena to maintain open dialog. Ethics agreed.
Substantial credit for this change in important Disclosure Law application goes to the public individuals who testified to bring more sunshine into County government operation, a small yet substantial victory for much needed open government and democracy on Kauai.
According to Abrew, at the June 4 meeting after an executive session on the matter the board returned armed with a new county attorney’s opinion requiring the change in policy although he could not say which whether they met with new County Attorney Al Castillo or one of his deputies.
While the written opinion has not been released as yet, the BOE has been the only board or commission to release a county attorney’s opinion in many years and it could be released at their July meeting.
The public is still awaiting a promised new opinion on the enforcement of the prohibition of board and commission members appearing on behalf of private interests before other boards and commissions, as contained in the county charter’s section 20.02(d).
For more information on the BOE read PNN’s three part investigative series Unethical culture- Government service with a personal “touch”
Read Part 1- Bored of Ethics on the Board of Ethics?Read Part 2- The Long and Winding Road to InertiaRead Part 3- Deep Thoughts- A “Handy” Diversion
(PNN)-- Public disclosure of financial information required by state law of certain county officials will now be subject to public review according to a letter to all board and commission members from Executive Assistant and Administrator of the Office of Boards and Commissions, John Isobe.
The Hawai`i State Constitution’s "Code of Ethics” Article XVI states that
financial disclosure provisions shall require all elected officers, all candidates for elective office and such appointed officers and employees as provided by law to make public financial disclosures.
That has apparently never been the case on Kaua`i where the Board of Ethics (BOE) has for decades routinely received the pubic disclosures in executive session where they have redacted whatever they consider to be sensitive and/or personal and financial information as defined in the Universal Information Practices Act’s (UIPA) section 92F-14(6).
As a matter of fact, the very financial information meant to be reviewed for violations of conflict of interest provisions by the board so they can stop the conflict from occurring appear to be the ones that have been hidden from the public so as not to embarrass those required to file.
According to the County Charter, Article XX, the “mayor, councilpersons, all department heads and deputies, members of boards and commissions and the purchasing agent” are specifically required to publicly make public financial disclosures. All others may file a confidential disclosure.
According to Isobe’s letter
At its meeting on June 4, 2009, the Board of Ethics received a ruling from the Count (sic) Attorney's Office that all Disclosure Statements required to be filed with the Board are public record and must be released if requested by a member of the public.
When releasing this information, we have been instructed to only remove your personal information such as mailing address and contact phone number. For this reason, please be advised that any financial information will NOT be protected as defined under Section 92F-14(6), Hawaii Revised Statutes. (emphasis not added).
The warning is a apparently stunning admission that previously they were not “released if requested by a member of the public” and “financial information (was) protected”.
Two witnesses independently offered that the color went out of Isobe’s shocked-expression face when the board revealed the change of opinion in open session
According to the state constitution’s Code of Ethics:
financial disclosure provisions shall require all elected officers, all candidates for elective office and such appointed officers and employees as provided by law to make public financial disclosures... All financial disclosure statements shall include, but not be limited to, sources and amounts of income, business ownership, officer and director positions, ownership of real property, debts, creditor interests in insolvent businesses and the names of persons represented before government agencies.
The practice of not disclosing public disclosures is rooted in the county ordinance and BOE rules, both also called the Code of Ethics, which conflict with the more authoritative county charter and state constitution.
Currently the administrative rules of the BOE say
3.1 WHO TO FILE
All elected and appointed officers and employees, who are elected or appointed by officers elected pursuant to law or by County agencies and who have discretionary, executive or policy making powers and responsibilities shall be required to file the disclosure pursuant to Article XX the Code of Ethics
3.2 CONFIDENTIAL INFORMATION
Disclosures filed with the Board are confidential and the Board shall not release the contents thereof except as required by law except as provided under HRS 92F-14 (6).
But a new proposed change, based in part on what the county attorney has apparently told the BOE in a June 4 executive session meeting would reverse that 180 degrees and, if passed, the rules would read
RULE 3: DISCLOSURE REQUIREMENTS
3.1 WHO MUST FILE
The mayor, councilpersons, all department heads and deputies, members of boards and commissions and the purchasing agent (3/12/09) shall be required to file the disclosure pursuant to the Code of Ethics
3.2 PUBLIC INFORMATION
Disclosures filed with the Board are public record.
The matter was brought to the attention of the board beginning in March through the efforts of a handful of public watchdogs including Horace Stoessel, Glenn Mickens, Ed Coll, Walter Lewis and, especially Rob Abrew who persisted in researching and presenting the documentation that led to the new policy after BOE member Rolf Briber insisted the board pay attention to the pubic testimony.
Abrew and the others questioned why the disclosure forms were being reviewed in executive session in the first place rather than going having them go straight to public purview.
At first members of the board listed an evolving series of seemingly innocuous reasons for the secrecy, none of which indicated any changes to the substantive financial disclosures were made by the board.
But at the April 4 BOE meeting Bieber brought the matter up and the minutes indicate that what went on in executive sessions on financial disclosures was anything but innocuous.
The minutes say:
Chair (Leila) Fuller explained that the Disclosures are reviewed in Executive Session for the purpose of checking for potential conflict of interest but in those Disclosures are personal financial information that may not want to by mistake open the door for something. After they are approved in Executive Session they become a public document so the public has access to those documents once they are approved but the confidential and private information that should not be public knowledge is redacted when a member of the public requests a copy of the disclosure,
Mr. (Paul) Weil asked if they were not public documents from the beginning, the public has access to them even before we have approved or accepted them. Chair Fuller said they have no reason to be a public document before they are accepted. Mr. Weil asked to be directed to the Code that says they are not public documents until the Board has accepted them. Attorney Clark referenced HRS 92-F 14. Staff noted it was a public document except where provided under HRS 92-F 14 (6) which lists items that would be redacted before anyone looks at them.
This was the first admission by a BOE member that financial disclosures were being changed at all much less to avoid “opening the door” by disclosing too much financial information regarding conflicts of interest.
Resistance has been high to changing the rules, first proposed earlier this year, primarily by Fuller and former Chair Mark Hubbard.
Previously reasons they offered for executive session receipt of the disclosures had included making sure they were “complete” and were not “incorrect” since, they said, filers might not realize what they are filing, despite the fact in fling they are required to notarize an “affidavit”.
The further minutes reflect a desperation to find reasons to resist complete public disclosure of the completed public disclosure forms.
Mr. Bieber said his point at minimum was they have a better relationship with the public regarding this. Chair Fuller asked Mr. Bieber how he proposed (the Board) do that. Mr. Bieber said maybe there was another way they could go over the Disclosures, perhaps a packet with Disclosures in them instead of spending time in the meeting in Executive Session doing that. Chair Fuller cautioned against that because if they were to get the Disclosures in a packet that is just that many more pieces of document that are out in the public in case their briefcase gets lost or misplaced and likened it to a State computer with sensitive information on it that got misplaced or lost.
Reached for comment Bieber, said in an email:
Change in application of Disclosure Law has been long overdue for the County employees and officers of Kauai. The Board of Ethics is finally conforming to State Law properly within its Rules.
I am proud to say this came from the public. I simply moved the Board of Ethics to continue to provide the public hearing arena to maintain open dialog. Ethics agreed.
Substantial credit for this change in important Disclosure Law application goes to the public individuals who testified to bring more sunshine into County government operation, a small yet substantial victory for much needed open government and democracy on Kauai.
According to Abrew, at the June 4 meeting after an executive session on the matter the board returned armed with a new county attorney’s opinion requiring the change in policy although he could not say which whether they met with new County Attorney Al Castillo or one of his deputies.
While the written opinion has not been released as yet, the BOE has been the only board or commission to release a county attorney’s opinion in many years and it could be released at their July meeting.
The public is still awaiting a promised new opinion on the enforcement of the prohibition of board and commission members appearing on behalf of private interests before other boards and commissions, as contained in the county charter’s section 20.02(d).
For more information on the BOE read PNN’s three part investigative series Unethical culture- Government service with a personal “touch”
Read Part 1- Bored of Ethics on the Board of Ethics?Read Part 2- The Long and Winding Road to InertiaRead Part 3- Deep Thoughts- A “Handy” Diversion
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.
--------------
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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