Board of Ethics should follow the code
by Walter Lewis
Section 20.02 of the Kauai County Charter sets forth the code of ethics to govern the conduct of officers and employees of the county. The members of the Board of Ethics have been appointed to serve as a quasi-judicial body to hear complaints of violations of the code and to opine and interpret the code. Their function also includes proposing revisions of the code that may be appropriate to assure its effectiveness.
In recent months the determinations made by the board have strayed far beyond the judicial role given by the charter. They have disregarded the clear terms of the code and substituted unexplained and unjustified deviations. This course has served to diminish and mock the stated purpose of the code — a standard to provide integrity and morality in government service.
The efforts of the chair are illustrative. Rather than attempting to carry out the purpose of the code, he seems to have been trying to find remote theoretical instances where the application of the code might be arguable and then to extrapolate them to vitiate the coverage of the code. The objective of the board should instead be to support the provisions of the code and their purpose. For example, Charter Section 20.02 D prohibits employees or officers of the county from appearing before a county agency “in behalf of private interests” and the chair claimed that this provision would prohibit an employee or officer from seeking a driver’s license at the motor vehicle agency. In similar vein Section 20.02 F prohibits county employees and officers from using county property for other than public purposes and the chair argued that the section would prohibit an officer or employee from recycling a paper clip. Since the jurisdiction of the board is limited to actual cases and not whimsical possibilities the chair’s erratic meanderings should not warrant serious attention, but they prevent the board from performing its proper function.
Incident to a 2008 request for an advisory opinion concerning Section 20.02 D, the board sought the opinion of the County Attorney’s office, but then failed to disclose its content and when it issued its ruling offered no explanation of the basis for the decision it made. A peremptory statement cannot responsibly be called an advisory opinion when it gives the public no insight as to the rationale used by the board and offers no guidance for similar questions that may occur in the future. When the chair was asked to explain its decision to withhold information about the County Attorney’s office opinion his response was “It could be that I don’t know. It could be that I just don’t want to answer that question.” Public servants should be held to a higher standard.
Charter Section 20.05 D (5) says that a function of the board is to propose code revisions “to assure its effectiveness.” This language clearly does not authorize proposals to reduce or eliminate its coverage. In an April 21 letter from the chair to the Charter Review Commission he requested the commission “clarify” subsections of Charter Section 20.02. One “clarification” sought was to remove county employees from the prohibition of Section 20.02D where the employee “needs” to represent private interests before a county agency. It is not evident how any such need would ever arise. Obviously the purpose was not clarification of the provision, it was to extinguish it. It would be irrational to claim that such a change would make the code more effective. Significantly, the board has failed to offer any proposal as to how the code might be altered to more effectively carry out its purpose.
The comment made by the chair in the April 21 letter to the Charter Review Commission as to the other “clarification” that in some situations the code does not match current practice discloses a perplexing view that a pattern of conduct rather than the terms of the code should control in measuring standards of integrity and morality. If we are to live under a rule of law the converse should be true. Unless and until a law is amended or terminated it should be applied in accordance with its terms and inconsistent conduct should not be sanctioned. Interestingly the chair never explained what current practice may be and how it did not match the terms of the code.
The ethics code was designed for the worthy goal of encouraging county employees and officers to maintain high standards of integrity and morality in the performance of their functions and to avoid the appearance of impropriety. The code was adopted as part of the original county charter and has never been amended or challenged. The code should be administered by the board in the spirit of achieving its purpose instead of trying to imagine picayune or inconsequential instances where some issue might be presented. Perhaps the failures of the board should have been anticipated. In 2006 the voters adopted an amendment to the charter to establish an administrator to train board and commission members on their responsibilities. There is no indication such training has occurred. With appropriate training the ethics board members could reorient their thinking and carry out their intended function. If they persist in their present course they are not serving the public interest and should be replaced.
• Walter Lewis is a resident of Princeville and writes a bi-weekly column for The Garden Island.