Ethics Board releases ‘flawed’ attorney opinion

LIHU‘E — Kaua‘i’s Board of Ethics took significant steps toward a more transparent government Thursday morning.

In open session, new County Attorney Al Castillo provided guidance regarding releasing to the public legal advice provided by his office, but after being advised to first establish a process to release county attorney opinions, the board instead waived attorney-client privilege and released a single controversial opinion.

Rendered in March 2008, the opinion provided the impetus for an advisory opinion allowing Charter Review Commission Chair Jonathan Chun to appear on behalf of private interests before county agencies in apparent violation of Charter Section 20.02(D).

The opinion, authored by former Deputy County Attorney Margaret Sueoka and approved by former County Attorney Matthew Pyun Jr., concluded that “provisions in Section 3-1.7 of the (Kaua‘i County) Code serve to articulate and elaborate on the intent of Code of Ethics, and they must be read in conjunction with the Charter provisions. In other words, Section 20.02(D) may not be read in a vacuum.”

Alternate interpretations of law had argued that the Charter superseded the County Code, meaning 20.02(D) should take precedence over 3-1.7. Had that been the case, Chun and other county employees and volunteers would likely have been stopped from representing private interests.

“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.”

He pointed to an example posited by Board of Ethics member Judith Lenthall in an interview with The Garden Island earlier this week after complaints were lodged against her and Board of Ethics Vice Chair Mark Hubbard by colleague Rolf Bieber for alleged violations of 20.02(D).

In the interview, 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’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.”

In originally arguing against its release, Board of Ethics member Paul Weil said Thursday that the opinion was “fatally flawed” and that he would prefer to instead get a new opinion either “withdrawing it, affirming it, or modifying it” from Castillo.

Weil’s wish may also be granted, as Bieber’s motion to release the opinion was amended to include language requesting that Castillo take another look at the issue. No board member voted against the amended motion; only Sally Motta abstained from voting because she said she had not had a chance to read the opinion in question.

However, Castillo’s opinion on the overlap between 20.02(D) and 3-1.7 could end up being a similar interpretation to what was provided 14 months ago.

While the Board of Ethics chose to move on its own to release the single opinion, Castillo’s office has been working on a “template” to be provided to Office of Boards and Commissions Administrator John Isobe that will set up the framework for other county agencies to release countless county attorney opinions to the public.

Lenthall said she was happy to have a “new sheriff in town.”

“Kaua‘i has a Code of Ethics which is meant to establish a high level of morality and integrity in our county government,” Castillo said. “The citizens of Kaua‘i need to be confident that their government provides equal and fair treatment for all people.”

• Michael Levine, assistant news editor, can be reached at 245-3681 (ext. 252) or via e-mail at mlevine@kauaipubco.com