A LITTLE LIGHT DOG WAGGING

A LITTLE LIGHT DOG WAGGING: Last Thursday the Kaua`i Board of Ethics (BOE) finally and unexpectedly released the county attorney opinion that had apparently caused them to ignore the plain reading of the ethics section of the county charter in favor of the subordinate county code provisions on ethics

It confirms the suspicions we expressed in our three part series on the “Unethical Culture” (see left rail) of the BOE- that somehow, despite a strict ban in the charter on county officials- including board and commission (B&Cs) members- appearing on behalf of private interests before other B&Cs, the opinion lets the tail wag the dog by giving legitimacy to provisions of subservient law that seek to contradict the charter.

And indeed in the second paragraph of the opinion it says

Section 20.02(D) of the Charter reads: "No officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency." On its face, this language appears to be a complete prohibition, preventing any officer or employee from acting for the benefit of any private interest before a county agency, board or commission.

But the next sentence is key to the disconnect, penned by former Deputy CA Margaret Sueoka who, perhaps not so coincidentally, was recently fired by Castillo and has filed a discrimination complaint against the county over the firing.

She wrote:

The language of the Code elaborates upon the Charter provision, and identifies more specifically those types of conduct which would constitute conflicts of interest

And there lies one of the “fatal flaws” apparently cited by BOE member Paul Weil, according to Michael Levine’s article on the meeting in the local paper.

The language of the “code” or ordinance, does not “elaborate” on the charter- which is what an ordinance is supposed to do- but rather, at best is silent on the charter provision and if applied, would contradict the charter.

As we discussed on our three part series Section 3-1.7 of the county code details many specific conflict of interest situations that are strictly prohibited. But the code specifically says these are based on Charter Section 20.01 which bans acts to confer special benefits on one’s self or others among other things.

In fact the code does not even mention 20.02(D) specifically anywhere, leaving unaddressed the matters brought up by what Sueoka admitted is a strict prohibition,.

The opinion seeks to use the state constitution and out-of-state court rulings to say that the charter and code must be read together and while that is true it’s the relevant sections of each that must be read together.

It would sort of be like reading a strict charter prohibition on robbing banks and saying because it isn’t addressed in the dog leash ordinance, bank robbery is ok.

But, even of there were a confluence of the specific conflicts in the code and the strict prohibitions of the charter, just because there are specifically described “conflict of interest” prohibitions in the code does not make the code a complete list of actions banned in the charter and in fact that contention is never made in the code.

Also on Thursday the BOE called on Castillo to look at the opinion with an eye toward “withdrawing it, affirming it, or modifying it” according to Levine’s article. But it appears our hopes for an honest legal look at the provisions from Castillo might have been dashed if comments from Castillo are indicative of his intentions.

Instead of addressing the legal ramification of the plain reading of 20.02(D) and the existing CA opinion Castillo seems infatuated with the political ramifications.

He’s quoted by Levine as saying

“What does this legal mumbo jumbo mean?” Castillo said when discussing the issue less than an hour before the board released the opinion. “To me, what this means is, to read Section 20.02 by itself would give an unwarranted chilling effect to contributing members of our society who desire to volunteer their time and their expertise to help this county become a better place.”

In the interview, (BOE Member and Food Bank ED Judith)Lenthall said it was not fair that she be expected to give up the rights of a private citizen, including the right, for example, to challenge a property tax assessment.

That “right” as we said before is not being challenged by anyone. What is being challenged in a complaint filed by fellow BOE member Rolf Bieber is the privilege of sitting on a county board that may in fact sit in judgment of a county councilperson while she is also asking the council for money for the Food Bank.

“That’s where I drew the line regarding the absurdity of just sticking to 20.02,” Castillo said. “That’s why we’re saying that the County Charter and the County Code should be read in conjunction because to do otherwise would create absurd results.”

It appears that Castillo is buying into the tail “wagging the dog” interpretations by saying that because the law has results that are perhaps politically uncomfortable, it is up to him to issue a quasi-judicial “opinion” to correct that “absurdity” rather than doing it legislatively- by ordinance if possible or by changing the charter.

The reason for this attempt to hijack the political process may be that last fall the citizens were asked to exempt board and commission members from the onus of 20.02(D) but that measure was soundly defeated.

After the citing of the legal need to read the code and charter together the opinion goes on to make one of its more absurd arguments regarding “intent”.

It cites the charters of Maui and Hawai`i counties saying

as we can see from the Charters of Maui and the Big Island, the effect of reading our Charter and Code provisions together is to achieve the same basic scope as those of the Charters of these other Counties.

This is a another “fatal flaw”, coming from a 1976 letter from then CA Michael Belles as the council debated and later passed Sect. 3 of the county code.

The flaw becomes immediately apparent because it then quotes the charters of those others counties which are substantially different from ours on Kaua`i. Theirs start out with the same type of prohibitions as 20.02(D) but go on to say

An officer serving the county without compensation, however, may appear for compensation in behalf of private interests before county agencies other than the one on which the officer serves and other than those agencies that have the power to review the actions of the agency on which the officer serves or to act on the same subject matter as the agency on which the officer serves.

If the intent in the Kaua`i Charter was to do that they obviously would have done it- and could easily have done it as the other counties did. The fact that they didn’t include the language shows if anything a desire for a higher ethical standard than the other counties.

Perhaps by wrongly reading some intent that wasn’t there the council that passed the code on Kaua`i sought to make believe that provision was in the charter. But wishing doesn’t make them suddenly appear in the charter- only an illusionist can do that.

An email that arrived today from BOE watchdog Horace Stoessel states it clearly and unambiguously

He states:

Like the charters of Maui and Big Island , the Kaua’i County Charter prohibits members of government from appearing in behalf of private interests before County agencies. But whereas the other charters exempt members of boards and commissions from having to comply with the prohibition, our Charter Section 20.02D does not exempt them.

Last year the Charter Commission proposed exempting board/commission members from having to comply with 20.02D. The voters rejected the proposed charter amendment.

No matter how much Castillo- and apparently last year’s Charter Commission- wishes that the Kaua`i Charter read differently the strict prohibition remains in place today and will for at least the next year and a half.

The code addresses only specific concrete conflicts of interest that are specifically banned and then, as it states, based only on the “special favors” provisions in 20.01 of the charter. Nowhere does it say it is an exclusive list and nowhere does it address the prohibitions of 20.02(D) which are included to ensure Kaua`i officials conduct business with the highest possible level of ethics.

20.02(D) is signed to avoid even the appearance of the type of impropriety that could result in a tit-for-tat approval by a member of one B&C, of a request from a member of another B&C- who would then presumably be tempted to turn around and approve the request of a member of the first B&C.

The Kaua`i provision is specifically to remove those temptations.

County attorney options have as close to the effective weight of an actual judicial ruling as one can get. All county entities are expected to abide by them as if they were case law and indeed can lose protections against lawsuits if they don’t.

They become the de facto “law of the land” and can only be challenged by going to an actual judge or having them reversed by, most likely, a subsequent CA.

It is the responsibility of the county attorney to opine only on the law and to separate out the political considerations and notify the political entities that the have two choices- to either change or abide by the law as it stands.

It is not the bailiwick of the County Attorney to make those political decisions for elected officials by attempting to read into the law what should be or what they would like to see in the law.

That right is reserved for the political apparatus of the county- the council and mayor.

Castillo would do well to remember the fact that 99% of the residents of Kaua`i would never have the types of conflicts that people like the Bieber-complaints-cited Lenthall, Mark Hubbard and Lorna Nishimitsu because 99% of Kaua`i residents never appear “on behalf of” others before county entities and only occasionally if at all, appear as themselves.

The availability of that 99% for county service is the blind spot in Castillo’s claim that the law, as it stands, yields “absurd results”. Indeed it is the opposite of absurd- it denotes the highest of ethical standards are expected of those that serve the county.

Castillo’s “absurdity” claim is valid only if one is intent on supplanting government by the people and- more importantly OF the people- with a handful of revolving-door, paternalistic oligarchs.

Unethical culture- Government service with a personal “touch”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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