REPLY HAZY, TRY AGAIN: We haven’t heard much about our crony-addled, bored of ethics, Board of Ethics (BOE) since local newspaper reporter Mike Levine left for a real job in journalism.
Levine’s coverage during the infamous “20.02(D)” debacle (see right rail for our three-part report) would have been nothing extraordinary in the rest of country but around here- especially lately- merely attending meetings and reporting accurately IS extraordinary by any measure.
Nowadays if it weren’t for a few dedicated “nitpicking” community watchdogs that darkest of black holes for ethical violations might go it’s merry ethically-challenged way.
Some might think that the BOE’s inability to read and apply simple ethics laws could indicate a distinct lack of literacy. For those Pollyannas, well, we have a few select scenic lookouts for sale.
The reality is that after Mayor Bernard Carvalho’s unceremonious dumping of BOE member (and current county council candidate) Rolf Bieber it became quite obvious that if you’re going to wear the king’s uniform you’d better carry the king’s sword.
So when members of the planning department decided it was okay for them to seek outside employment preparing permit applications for their fellow department employees’ to approve, instead of trying to stop the plainly unethical practice that the law forbids, Planning Director Ian Costa knew he could turn to the BOE for a some kind of tortured process whereby his underlings could continue their corrupt practices.
Horace Stoessel has been doing the job the local newspaper abandoned after Levine’s departure and today, without further comment, we present his latest report.
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YOUR GOVERNMENT AT WORK
I have attended meetings of the Board of Ethics for the better part of three years. I offer these comments for the information of those interested in a matter currently before the Board.
In May Planning Director Ian Costa requested an advisory opinion from the Board of Ethics regarding the outside employment of four departmental employees engaged variously in drafting, site inspection, architectural drawings, design and consultation.
Since then, in an end run around the Charter requirement that a request for advisory opinion must be answered within 30 days, the request has been withdrawn twice by mutual agreement between the Board and the Department, in each case to be resubmitted at a later date. The main reason given for the five-months-and-counting process was to allow Director Costa a chance to consult the County Attorney ’s office.
So far the County Attorney ’s office has participated in the Board’s process as follows:
In May Deputy County Attorney Mona Clark, who is regularly assigned to the Board, advised the Board that County Code Section 3-1.7(d) expresses an absolute prohibition against the activities referenced in the request for advisory opinion and told the Board that aside from enforcing the section its only option is to ask the Council to change the language of 3-1.7. The Board took no action based on her advice, arranging instead with Director Costa to withdraw the request and resubmit it later.
In July Attorney Clark volunteered to provide the Board with a (written) opinion if the Board requested it. The Board did not request it.
In August Director Costa’s request reappeared on the agenda, leading some of us in the public to believe that the way was clear for the Board to act on the request. However, County Attorney Al Castillo appeared long enough to tell the Board that Attorney Clark was in court and to apologize for his being unprepared to address the agenda item.
In July Board member Paul Weil had moved that the Board request the County Attorney to provide the Board with the same information provided to Mr. Costa. The motion was seconded by Warren Perry and unanimously adopted. That request also went unanswered in August.
In August it was agreed that Mr. Costa would resubmit the department’s request at the September 17 meeting.
Showing posts with label Paul Weil. Show all posts
Showing posts with label Paul Weil. Show all posts
Wednesday, August 25, 2010
Friday, December 18, 2009
(PNN) BIEBER TOSSED FROM ETHICS BOARD- SAYS CARVALHO. ISOBE “AFRAID AND ANGRY BECAUSE I DIDN’T DRINK THE KOOL-AID.”
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.”
(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.”
Monday, November 23, 2009
(PNN) BOE’S WEIL CALLS CA’S 20.02(D) OPINION “LOUSY LAWYERING”
BOE’S WEIL CALLS CA’S 20.02(D) OPINION “LOUSY LAWYERING”: (PNN) -- In a stunningly blunt couple of letters written in mid September, Board of Ethics member, attorney Paul Weil, scathingly attacked and belittled both a county attorney opinion regarding the conflict of interest provisions of the controversial county charter section 20.02(D) and County Attorney Al Castillo’s behavior and professional abilities.
In the document- released to the public and posted at the local newspaper’s web site by reporter Michael Levine-.Weir calls the latest opinion “lousy lawyering” and states that “(n)either you nor the Board should twist the law to accommodate or solve such "problems"
Weil had previously called the opinion “fatally flawed.” The letters apparently followed a meeting between Castillo and Weil at Weil’s home.
Weil wrote to Castillo that after the meeting he expected Castillo to come to the next BOE meeting but instead Castillo sent his deputy Mauna Kea Trask.
He wrote:
I really expected that, as I had suggested, you might withdraw the (opinion) letter and make proper revisions along the lines of our discussion.
Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!
As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!
The first letter from Weir to Castillo lays out his disappointment that Trask seemed unaware of their meeting and goes on to detail the specific problems with the opinion as well as Weir’s disappointment in Castillo’s absence from the BOE meeting.
But rather than address Weir’s specific questions regarding the opinion, Castillo’s reply merely explained why he wasn’t there and put the onus on Weir to “tweak” the opinion. That was followed up by Weir’s second more detailed and more apparently exasperated reply.
Rather than excerpt and/or try to characterize the exchange further, since we have no space constraints we will reprint all three letters “(e)ntered into the record by Board of Ethics Member Paul Weil at the 10/15/09 Board of Ethics Meeting” here.
For background information click on the appropriate link to PNN coverage of county charter provision 20.02(D) and the BOE including our three part series linked on the left rail.
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From: Paul Weil
Sent: Friday, September 11, 2009 8:41 AM
To: Alfred Castillo Jr.
Cc: Leila Fuller
Subject: Opinion Letter
Good morning, Al:
I was disappointed that Mr. Trask was not familiar with, and stated, in effect, that he was barely aware of our meeting and extended conversation. Regrettably, I believe that the waters are only further muddied.
I realize that you, some of the Administration, and some members of the BOE would simply like to get this matter behind them. But it wont simply go away unless and until you properly close the serious gap in the Opinion.
Chairwoman Fuller expressed to me that she was pleased with the opinion because it said in writing what your predecessor had told the Board in leading to their opinion in the Chun matter. I still cannot reach that suggested conclusion.
Assuming, arguendo, that you are correct in concluding that the Charter provision and the Code Section must be read together, I am simply unable to find legal support for the conclusion recited in Mr. Trask's opinion, which you endorsed.
As I told you, I have read and re-read the provisions and simply cannot make that leap. It is incumbent upon you or your office to provide definitive information and guidelines.
Simply put, why, if at all, does 20.02D not apply to an Attorney who is a member of a Board or Commission, representing a private client or interest before another Board or agency? How, if at all, does 3-1.7 or any other section of the Code provide an exception? If you can properly answer those questions and bridge the flaw and gap, you may be able to convince me and the properly restless public. I would hate to think that, once again, you (and some members of the BOE) start with a desired conclusion and then work to justify the result.
I ask again that you explicitly and with specificity explain how you make that leap. Whether or not a fee is fixed or contingent, there is an obvious Conflict of Interest in such representation. Dancing around the issue wont make it go away. I'm sure that you would hate to see some citizen or group test the issue in Court.
I’ll be happy to discuss.
PAUL
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Sent: Friday, September 11, 2009 3:59 PM
To: Paul Well
Subject: RE: Opinion Letter
Paul,
Thank you for your hospitality. Well, after I visited with you I had to rush back to Lihu`e to meet with the Mayor. The meeting with the Mayor took more than 2 hours. I got home about 6:45 p.m. I was exhausted and did not want to pack. I woke up at 4:30 a.m. because I had to be at the Lihu`e Airport at 5:15 a.m. I had a meeting with my deputy in Honolulu at 7:30 p.m. The HGEA arbitration hearing started at 9:00 a.m. I called Mauna Kea and Mona to brief them on how we should handle the day with Ethics. I also mentioned to both of them that I sat down with you the day before.
There may be a few areas in which we may tweak. I do not know whether or not we will be able to meet your expectations and the standards that you require. I'm curious? How would you bridge the gap?
al
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From: Paul Weil
Sent: Saturday, September 12, 2009 12 29 PM
To: 'Alfred Castillo Jr '
Subject: RE Opinion
Aloha, Al.
I'm glad that I deferred responding to your email. One should never respond when disappointed, frustrated, or angry. I was all three.
Sorry that you had a bad day Thursday, but mine was, in many ways, worse. Particularly when compared to Wednesday when I felt that we had enjoyed a candid and productive meeting, sharing ideas as we continued to strive for the welfare and benefit of the people of Kauai. I had been especially heartened by your expressions of agreement in many areas as I reviewed with you the latest iteration of an Opinion letter from your office and pointed out the shortcomings and errors in the document. I stated to you and I said publicly that this letter is a far superior product to that produced by your predecessor and/or by your office in the past. But, as we discussed at length, and as I publicly stated, it still falls far short.
Nor do I understand why the letter, which was prepared in late June, was not delivered until early September! Ripening did not make it any better.
There are those who have publicly stated that you had previously tried to "co-opt" me. I now believe that they may have been right. But, following the old adage of "fool me once, shame on you; fool me twice, shame on me", it won’t happen again. Nor can I be bullied, intimidated or coerced. You see, I am not seeking any separate personal benefit from my volunteer service. I am not and will not be a candidate for any office or appointment. I will respond appropriately the next time anyone from your office again insults me or patronizes me, publicly or otherwise, as Mr. Trask again did at the BOE meeting.
I appreciate that you apologized to me for your statements and actions at the prior Board meeting. I urge you to attend the next BOE meeting and apologize to the entire Board. I really expected that, as I had suggested, you might withdraw the letter and make proper revisions along the lines of our discussion.
Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!
As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!
• Unfortunately, you did not instruct them to provide what I was led by you to believe was the open candor that I felt you tried to show during our meeting at my home. None was shown at the Board meeting. It may be good politics, but it's lousy lawyering. The Board and the County are entitled to better.
I realize that you feel some pressure. As you told me, the mayor and John Isobe are concerned because four Board or Commission members have resigned, allegedly because of actions by the BOE. I can only respond, so be it. Neither you nor the Board should twist the law to accommodate or solve such "problems".
You go on to state that "/ do riot know whether or not we will be able to meet your expectations and the standards that you require". Let's be clear; these are not MY expectations and standards. They are the proper expectations and standards imposed upon you as County Attorney. They are, quite properly, the expectations and standards of the citizens of Kauai.
You then state that "there may be a few areas in which we may tweak," Did you laugh as you wrote that one, Al knowing full well that "tweaking a few areas" falls far short of really correcting the admitted distortions and omissions in the document?
I hope that your "tweaking" will include removing the suggested illustrations of absurdities which, themselves, are simply even more absurd, since they ignore the fact that a meeting with a water dept. clerk or a police officer, both of whose duties are ministerial to be performed within the scope of rules and regulations promulgated by the governing agency, is not an "appearance" before that governing agency. The clerk or police officer has no discretionary or policymaking authority, is performing a purely ministerial function, and there cannot be a conflict of interest under such circumstances. Trying to stretch that far simply discredits and makes suspect other assertions in the Opinion. It may be correctable by proper further "tweaking" of the definitions. Leaving them in as illustrations would likely mislead the Board, the Council and others in the future. As we discussed and as you had agreed, they are, simply, wrong.
Further, The Opinion fails to specifically address the three questions submitted by the Board at its August meeting and previously set forth in my July 24 m email to Mr. Trask with a cc to you.
(a)whether a charitable non-profit organization providing eleemosynary* services to our community is a "private interest" within the meaning of the Code (this does not include unions, political organization, PACS, or other non-profits which are not based upon charitable purposes);
(THIS ONE IS PARTIALLY, THOUGH NOT DIRECTLY OR COMPLETELY, ANSWERED IN THE LATEST OPINION LETTER).
(b) whether the County Council can adopt legislation clarifying the issues in the Chun case for others who might be similarly situated in the future or if this would be an improper attempt to amend the Charter;
(WE DISCUSSED THIS POSSIBLE APPROACH BUT THE BOE NEEDS THE REQUESTED SPECIFIC OPINION FROM YOU ON WHETHER AND HOW THIS CAN BE DONE. I ALSO REALIZE THAT THE COUNCIL MAY NOT BE WILLING TO HANDLE WHAT COULD BE A CONTROVERSIAL MATTER.)
(c) the affect, if any, of the voters' rejection of the Charter Commission's proposed Amendment at the last election. I have restrained from going public with these thoughts and concerns other than those expressed at the Board meeting and in my email exchanges and discussion with you. I fear that the same may not be said about your office. However, this exchange of emails is not subject to any Privilege since it is all addressed to me individually. I waive any such privilege, if one actually exists, since it would belong to me and not to you or the BOE. I therefore invite you to provide copies to the Mayor, to Mr. Isobe and to others as may be appropriate. Just let me know so that I can be sure that my remarks are unexpurgated and unedited.
Lastly, you use the old ploy of trying to dump the problem on my side of the field by asking how I would bridge the gap! I think that you must be aware that the chasm created by your predecessor and perpetuated by your office is too deep and too wide to be bridged by trying to cover it with sand, as your predecessor tried and as you have been doing. The simple answer is, it cannot be done without either changing the Charter (which was defeated by the voters) or by adopting clarifying legislation if, in fact, that can legally be done in a fashion which can withstand judicial scrutiny, all as discussed above.
Your attempts to follow your predecessor's lead and blow it away with a ruling that concludes that the Charter provision and the existing purported codification in Sections 3-1 et seq. just doesn't get you there. Neither you nor Mr. Trask have undertaken to show us how reading any of those sections with the Charter provision brings the result you so fondly desire. Instead, your office again provides broad generalities and unsupportable declaratory conclusions without regard to proper cogent legal standards. Rather, you leave it in the dictatorial or parental mode of "I said it, so it must be right"!
Once again, I'll be happy to discuss and to try to further assist in any way reasonably possible. It's up to you. None of this will simply go away.
PAUL
*eleemosynary [adj] generous in assistance to the poor; "a benevolent contributor"; "eleemosynary relief"; "philanthropic contributions"
In the document- released to the public and posted at the local newspaper’s web site by reporter Michael Levine-.Weir calls the latest opinion “lousy lawyering” and states that “(n)either you nor the Board should twist the law to accommodate or solve such "problems"
Weil had previously called the opinion “fatally flawed.” The letters apparently followed a meeting between Castillo and Weil at Weil’s home.
Weil wrote to Castillo that after the meeting he expected Castillo to come to the next BOE meeting but instead Castillo sent his deputy Mauna Kea Trask.
He wrote:
I really expected that, as I had suggested, you might withdraw the (opinion) letter and make proper revisions along the lines of our discussion.
Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!
As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!
The first letter from Weir to Castillo lays out his disappointment that Trask seemed unaware of their meeting and goes on to detail the specific problems with the opinion as well as Weir’s disappointment in Castillo’s absence from the BOE meeting.
But rather than address Weir’s specific questions regarding the opinion, Castillo’s reply merely explained why he wasn’t there and put the onus on Weir to “tweak” the opinion. That was followed up by Weir’s second more detailed and more apparently exasperated reply.
Rather than excerpt and/or try to characterize the exchange further, since we have no space constraints we will reprint all three letters “(e)ntered into the record by Board of Ethics Member Paul Weil at the 10/15/09 Board of Ethics Meeting” here.
For background information click on the appropriate link to PNN coverage of county charter provision 20.02(D) and the BOE including our three part series linked on the left rail.
--------------
From: Paul Weil
Sent: Friday, September 11, 2009 8:41 AM
To: Alfred Castillo Jr.
Cc: Leila Fuller
Subject: Opinion Letter
Good morning, Al:
I was disappointed that Mr. Trask was not familiar with, and stated, in effect, that he was barely aware of our meeting and extended conversation. Regrettably, I believe that the waters are only further muddied.
I realize that you, some of the Administration, and some members of the BOE would simply like to get this matter behind them. But it wont simply go away unless and until you properly close the serious gap in the Opinion.
Chairwoman Fuller expressed to me that she was pleased with the opinion because it said in writing what your predecessor had told the Board in leading to their opinion in the Chun matter. I still cannot reach that suggested conclusion.
Assuming, arguendo, that you are correct in concluding that the Charter provision and the Code Section must be read together, I am simply unable to find legal support for the conclusion recited in Mr. Trask's opinion, which you endorsed.
As I told you, I have read and re-read the provisions and simply cannot make that leap. It is incumbent upon you or your office to provide definitive information and guidelines.
Simply put, why, if at all, does 20.02D not apply to an Attorney who is a member of a Board or Commission, representing a private client or interest before another Board or agency? How, if at all, does 3-1.7 or any other section of the Code provide an exception? If you can properly answer those questions and bridge the flaw and gap, you may be able to convince me and the properly restless public. I would hate to think that, once again, you (and some members of the BOE) start with a desired conclusion and then work to justify the result.
I ask again that you explicitly and with specificity explain how you make that leap. Whether or not a fee is fixed or contingent, there is an obvious Conflict of Interest in such representation. Dancing around the issue wont make it go away. I'm sure that you would hate to see some citizen or group test the issue in Court.
I’ll be happy to discuss.
PAUL
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Sent: Friday, September 11, 2009 3:59 PM
To: Paul Well
Subject: RE: Opinion Letter
Paul,
Thank you for your hospitality. Well, after I visited with you I had to rush back to Lihu`e to meet with the Mayor. The meeting with the Mayor took more than 2 hours. I got home about 6:45 p.m. I was exhausted and did not want to pack. I woke up at 4:30 a.m. because I had to be at the Lihu`e Airport at 5:15 a.m. I had a meeting with my deputy in Honolulu at 7:30 p.m. The HGEA arbitration hearing started at 9:00 a.m. I called Mauna Kea and Mona to brief them on how we should handle the day with Ethics. I also mentioned to both of them that I sat down with you the day before.
There may be a few areas in which we may tweak. I do not know whether or not we will be able to meet your expectations and the standards that you require. I'm curious? How would you bridge the gap?
al
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From: Paul Weil
Sent: Saturday, September 12, 2009 12 29 PM
To: 'Alfred Castillo Jr '
Subject: RE Opinion
Aloha, Al.
I'm glad that I deferred responding to your email. One should never respond when disappointed, frustrated, or angry. I was all three.
Sorry that you had a bad day Thursday, but mine was, in many ways, worse. Particularly when compared to Wednesday when I felt that we had enjoyed a candid and productive meeting, sharing ideas as we continued to strive for the welfare and benefit of the people of Kauai. I had been especially heartened by your expressions of agreement in many areas as I reviewed with you the latest iteration of an Opinion letter from your office and pointed out the shortcomings and errors in the document. I stated to you and I said publicly that this letter is a far superior product to that produced by your predecessor and/or by your office in the past. But, as we discussed at length, and as I publicly stated, it still falls far short.
Nor do I understand why the letter, which was prepared in late June, was not delivered until early September! Ripening did not make it any better.
There are those who have publicly stated that you had previously tried to "co-opt" me. I now believe that they may have been right. But, following the old adage of "fool me once, shame on you; fool me twice, shame on me", it won’t happen again. Nor can I be bullied, intimidated or coerced. You see, I am not seeking any separate personal benefit from my volunteer service. I am not and will not be a candidate for any office or appointment. I will respond appropriately the next time anyone from your office again insults me or patronizes me, publicly or otherwise, as Mr. Trask again did at the BOE meeting.
I appreciate that you apologized to me for your statements and actions at the prior Board meeting. I urge you to attend the next BOE meeting and apologize to the entire Board. I really expected that, as I had suggested, you might withdraw the letter and make proper revisions along the lines of our discussion.
Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!
As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!
• Unfortunately, you did not instruct them to provide what I was led by you to believe was the open candor that I felt you tried to show during our meeting at my home. None was shown at the Board meeting. It may be good politics, but it's lousy lawyering. The Board and the County are entitled to better.
I realize that you feel some pressure. As you told me, the mayor and John Isobe are concerned because four Board or Commission members have resigned, allegedly because of actions by the BOE. I can only respond, so be it. Neither you nor the Board should twist the law to accommodate or solve such "problems".
You go on to state that "/ do riot know whether or not we will be able to meet your expectations and the standards that you require". Let's be clear; these are not MY expectations and standards. They are the proper expectations and standards imposed upon you as County Attorney. They are, quite properly, the expectations and standards of the citizens of Kauai.
You then state that "there may be a few areas in which we may tweak," Did you laugh as you wrote that one, Al knowing full well that "tweaking a few areas" falls far short of really correcting the admitted distortions and omissions in the document?
I hope that your "tweaking" will include removing the suggested illustrations of absurdities which, themselves, are simply even more absurd, since they ignore the fact that a meeting with a water dept. clerk or a police officer, both of whose duties are ministerial to be performed within the scope of rules and regulations promulgated by the governing agency, is not an "appearance" before that governing agency. The clerk or police officer has no discretionary or policymaking authority, is performing a purely ministerial function, and there cannot be a conflict of interest under such circumstances. Trying to stretch that far simply discredits and makes suspect other assertions in the Opinion. It may be correctable by proper further "tweaking" of the definitions. Leaving them in as illustrations would likely mislead the Board, the Council and others in the future. As we discussed and as you had agreed, they are, simply, wrong.
Further, The Opinion fails to specifically address the three questions submitted by the Board at its August meeting and previously set forth in my July 24 m email to Mr. Trask with a cc to you.
(a)whether a charitable non-profit organization providing eleemosynary* services to our community is a "private interest" within the meaning of the Code (this does not include unions, political organization, PACS, or other non-profits which are not based upon charitable purposes);
(THIS ONE IS PARTIALLY, THOUGH NOT DIRECTLY OR COMPLETELY, ANSWERED IN THE LATEST OPINION LETTER).
(b) whether the County Council can adopt legislation clarifying the issues in the Chun case for others who might be similarly situated in the future or if this would be an improper attempt to amend the Charter;
(WE DISCUSSED THIS POSSIBLE APPROACH BUT THE BOE NEEDS THE REQUESTED SPECIFIC OPINION FROM YOU ON WHETHER AND HOW THIS CAN BE DONE. I ALSO REALIZE THAT THE COUNCIL MAY NOT BE WILLING TO HANDLE WHAT COULD BE A CONTROVERSIAL MATTER.)
(c) the affect, if any, of the voters' rejection of the Charter Commission's proposed Amendment at the last election. I have restrained from going public with these thoughts and concerns other than those expressed at the Board meeting and in my email exchanges and discussion with you. I fear that the same may not be said about your office. However, this exchange of emails is not subject to any Privilege since it is all addressed to me individually. I waive any such privilege, if one actually exists, since it would belong to me and not to you or the BOE. I therefore invite you to provide copies to the Mayor, to Mr. Isobe and to others as may be appropriate. Just let me know so that I can be sure that my remarks are unexpurgated and unedited.
Lastly, you use the old ploy of trying to dump the problem on my side of the field by asking how I would bridge the gap! I think that you must be aware that the chasm created by your predecessor and perpetuated by your office is too deep and too wide to be bridged by trying to cover it with sand, as your predecessor tried and as you have been doing. The simple answer is, it cannot be done without either changing the Charter (which was defeated by the voters) or by adopting clarifying legislation if, in fact, that can legally be done in a fashion which can withstand judicial scrutiny, all as discussed above.
Your attempts to follow your predecessor's lead and blow it away with a ruling that concludes that the Charter provision and the existing purported codification in Sections 3-1 et seq. just doesn't get you there. Neither you nor Mr. Trask have undertaken to show us how reading any of those sections with the Charter provision brings the result you so fondly desire. Instead, your office again provides broad generalities and unsupportable declaratory conclusions without regard to proper cogent legal standards. Rather, you leave it in the dictatorial or parental mode of "I said it, so it must be right"!
Once again, I'll be happy to discuss and to try to further assist in any way reasonably possible. It's up to you. None of this will simply go away.
PAUL
*eleemosynary [adj] generous in assistance to the poor; "a benevolent contributor"; "eleemosynary relief"; "philanthropic contributions"
Thursday, July 16, 2009
TAKING THE CAKE, PAW PRINTS AND ALL
TAKING THE CAKE, PAW PRINTS AND ALL: Though we mentioned it yesterday we thought we’d delve into the latest massacre of the English language by a Board of Ethics (BOE) member in attempting to make a farce of the county charter provision banning county employees and board and commission members from appearing before other county agencies, boards and commissions on behalf of a private interest.
First there was Mark Hubbard’s delusional contention that his personal interest like getting a driver’s license would be banned using equivocational definitions of “private” and “interest” and separating each to change the meaning of the whole phrase which has a distinct meaning when the words are used together.
But yesterday reporter Mike Levine reported an, if possible, even more bizarre try at parsing the phrase out of existence when BOE member Paul Weil said essentially that if representing “a private interest” was banned that didn’t include non-profit organizations since they acted “in the public interest”.
Here’s what Levine wrote:
Weil said he voted in June to give (BOE Members Judy) Lenthall and (Mark) Hubbard passes on their apparent violations of the charter because they appeared in front of the County Council on behalf of nonprofit organizations that do work in the public interest, not fitting the description of a “private interest.”
Where to start, where to start...
First of all non-profits do not always act in the public’s interest such as trade organizations and many other types. They are in fact private entities as opposed to “the” public entity- the government. The juxtaposition of private sector and public sector aptly describes the difference with non-profits falling on the private side. Non-profits are not subject to governmental laws such as the sunshine law or procurement laws.
But much more important is the abuse of the language in equivocating the word “interest”.
According to the on-line hyperdictionary “interest” has no less than 10 distinct meanings, many totally unrelated to others.
#2 says: interest can mean:
[n] a reason for wanting something done; "for your sake"; "died for the sake of his country"; "in the interest of safety"; "in the common interest"
That is what “in the public interest” means
But #6 says it can mean:
[n] a right or legal share of something; a financial involvement with something; "they have interests all over the world"; "a stake in the company's future"
That is what “a private interest” is.
Weil is an attorney by trade and it shows. He uses one of the oldest shyster lawyer tricks in the book blurring equivocal meanings of a word to confuse and make a bogus point.
The phrase “a private interest”, is a concrete thing, as denoted by the use of the article “a”. As a phrase it means an entity as represented by the phrase, not necessarily the individual words- another trick of wordsmithing sometimes called false deconstruction and reconstruction.
“Acting in the public interest” uses a whole other definition of the word interest denoting a concept to be is acted upon. That’s represented by the prepositional phrase “in the”.
What are they going to come up with next?
In the somewhat distant past (maybe a decade or so) and in semi-related matters the county attorney tried to say that because board and commission members weren’t paid they weren’t “employees” of the county. But that was eventually struck down as the absurdity it was and those trying to foist it on government watchdogs gave up because that would have opened a whole other can of worms- one of which was that then they wouldn’t qualify for the privacy afforded employees.
We covered quite a few others in our three part report “Unethical Culture- Government Service With the Personal ‘Touch’”-
Part 1- Bored of Ethics on the Board of Ethics?Part 2- The Long and Winding Road to InertiaPart 3- Deep Thoughts- A “Handy” Diversion
Like an adolescent who just discovered argumentation based on language but isn’t quite literate enough to pull it off yet, they’ve tried to use it to avoid all sorts of things.
“Take out the trash? I am- we have a date Saturday night.”
“Is your bed made? Yes- and Serta did a very good manufacturing job”
But this latest is a real prize winner so to you, Paul Weil, we present this month’s “What Am I a Freakin’ Idiot?” Award.
Grand prize is your own easy chair at the old boys and girls Crony Club where, if you can negotiate the revolving door, you’ll get an all expenses unpaid stay in the lap of Board and Commission Chief John Isobe. There you can bullshit your way into a future well-paid position with the administration or council of your choice (as if there was ever going to be a choice) stonewalling information requests and spinning incompetence to your hearts delight.
You can pick up your trophy anywhere... just bend over.
First there was Mark Hubbard’s delusional contention that his personal interest like getting a driver’s license would be banned using equivocational definitions of “private” and “interest” and separating each to change the meaning of the whole phrase which has a distinct meaning when the words are used together.
But yesterday reporter Mike Levine reported an, if possible, even more bizarre try at parsing the phrase out of existence when BOE member Paul Weil said essentially that if representing “a private interest” was banned that didn’t include non-profit organizations since they acted “in the public interest”.
Here’s what Levine wrote:
Weil said he voted in June to give (BOE Members Judy) Lenthall and (Mark) Hubbard passes on their apparent violations of the charter because they appeared in front of the County Council on behalf of nonprofit organizations that do work in the public interest, not fitting the description of a “private interest.”
Where to start, where to start...
First of all non-profits do not always act in the public’s interest such as trade organizations and many other types. They are in fact private entities as opposed to “the” public entity- the government. The juxtaposition of private sector and public sector aptly describes the difference with non-profits falling on the private side. Non-profits are not subject to governmental laws such as the sunshine law or procurement laws.
But much more important is the abuse of the language in equivocating the word “interest”.
According to the on-line hyperdictionary “interest” has no less than 10 distinct meanings, many totally unrelated to others.
#2 says: interest can mean:
[n] a reason for wanting something done; "for your sake"; "died for the sake of his country"; "in the interest of safety"; "in the common interest"
That is what “in the public interest” means
But #6 says it can mean:
[n] a right or legal share of something; a financial involvement with something; "they have interests all over the world"; "a stake in the company's future"
That is what “a private interest” is.
Weil is an attorney by trade and it shows. He uses one of the oldest shyster lawyer tricks in the book blurring equivocal meanings of a word to confuse and make a bogus point.
The phrase “a private interest”, is a concrete thing, as denoted by the use of the article “a”. As a phrase it means an entity as represented by the phrase, not necessarily the individual words- another trick of wordsmithing sometimes called false deconstruction and reconstruction.
“Acting in the public interest” uses a whole other definition of the word interest denoting a concept to be is acted upon. That’s represented by the prepositional phrase “in the”.
What are they going to come up with next?
In the somewhat distant past (maybe a decade or so) and in semi-related matters the county attorney tried to say that because board and commission members weren’t paid they weren’t “employees” of the county. But that was eventually struck down as the absurdity it was and those trying to foist it on government watchdogs gave up because that would have opened a whole other can of worms- one of which was that then they wouldn’t qualify for the privacy afforded employees.
We covered quite a few others in our three part report “Unethical Culture- Government Service With the Personal ‘Touch’”-
Part 1- Bored of Ethics on the Board of Ethics?Part 2- The Long and Winding Road to InertiaPart 3- Deep Thoughts- A “Handy” Diversion
Like an adolescent who just discovered argumentation based on language but isn’t quite literate enough to pull it off yet, they’ve tried to use it to avoid all sorts of things.
“Take out the trash? I am- we have a date Saturday night.”
“Is your bed made? Yes- and Serta did a very good manufacturing job”
But this latest is a real prize winner so to you, Paul Weil, we present this month’s “What Am I a Freakin’ Idiot?” Award.
Grand prize is your own easy chair at the old boys and girls Crony Club where, if you can negotiate the revolving door, you’ll get an all expenses unpaid stay in the lap of Board and Commission Chief John Isobe. There you can bullshit your way into a future well-paid position with the administration or council of your choice (as if there was ever going to be a choice) stonewalling information requests and spinning incompetence to your hearts delight.
You can pick up your trophy anywhere... just bend over.
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