Sunday, Aug. 14, 2022 |
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Reminiscent of President Reagan’s famous call to Soviet Premier Gorbachev to “tear down that wall,” the County Ethics Board adopted at its May 14 meeting a resolution ending the wall of silence that had surrounded a March 8, 2008 County Attorney opinion concerning Section 20.02(D) of the Kaua‘i County Charter.
That opinion had arisen from a request by Jonathan Chun, a county commission member, for an advisory opinion from the board as to his representation of private interests before county agencies. Several days after the opinion, the Ethics Board gave Chun “a pass” for his appearances, but its reasoning and the opinion itself were kept secret.
The board’s action for the opinion public release did not come until 14 months after its issuance and gave the public its first look at the secrecy surrounding the board’s decision-making processes.
The initial paragraph of the attorney’s opinion accurately cited the language of Section 20.02(D) and noted the absolute nature of the prohibition of conduct it stated. The opinion then degenerated.
It is not the purpose of this article to make a detailed examination of the arguments made in the three-plus page opinion, but it is to be observed that the opinion failed to recognize that the purpose of the Charter code of ethics provisions is not only to preclude improprieties but also to preclude the appearance of improprieties.
The opinion ignored the hierarchy of laws. The County Charter is the supreme county law — it can supersede or amend ordinances, but the converse cannot occur. Yet the opinion cited approvingly an earlier deputy county attorney letter expressing the notion that the charter could be “amended by ordinance.”
The opinion misstated a provision in Hawai‘i statutes concerning construction of laws and omitted two cogent rules of construction:
(1) When the law is ambiguous, the intent of its authors may be examined, when the law is clear its words speak for themselves; and
(2) If intent is relevant, it is found in the law and decisions existing at the time of enactment, not in subordinate laws subsequently enacted.
The opinion then concludes indecisively with the comment that Section 20.02(D) of the Charter may not be read in a vacuum, and its terms must be read in conjunction with ordinances dealing with conflicts of interest. The opinion contained no reference to Chun’s conduct that generated the request for the opinion.
While the opinion inferred a solution for the Chun request, it never stated one. One new member of the Ethics Board, a semi-retired attorney, has declared the opinion to be “fatally flawed.” The Ethics Board motion made to release the 2008 opinion to the public also contained a request that that opinion should be reviewed and affirmed, amended or withdrawn
If the quality of opinions emanating from the County Attorney’s office are illustrated by the opinion discussed, our county officials have received a wealth of misinformation which has influenced their decisions and the public has been kept in the dark about both the content of the opinions rendered and the impact they have had on county decision making.
This opinion review request will present a test for our new County Attorney, Al Castillo. While he was not serving when the 2008 opinion was written, his preliminary comments made at the May 14 meeting reported by The Garden Island reflected an inherent prejudice when he questioned the policy of Section 20.02(D) and declared that it is necessary to read the Charter and the Code in conjunction because to do otherwise would “create absurd results.”
When he gives the matter deeper thought, he should find first that the Charter Section 20.02(D) and the Kaua‘i Code Sections 3-1.7(c),(d) and (e) treat two distinct and different subjects. The code sections deal with conflicts of interest involving a County Councilmember or employee assisting others where the councilmember or employee has an interest in the matter.
The Charter, on the other hand, provides that a county officer or employee (including commission members) may not himself or herself appear on behalf of others before county agencies. The Charter provision does not examine whether the county officer or employee has any conflict of interest, it simply declares that the officer or employee may not appear before county agencies.
There is an obvious difference between assisting others when one has a conflict and personally appearing before an agency. He should also find that the rules of statutory construction previously mentioned require his analysis of the Charter terms instead of the code provisions. We must be content to wait and see what Castillo concludes.
On May 11, a member of the Ethics Board filed a formal complaint against two other members of the Board and one member of the Cost Control Commission alleging violations of Section 20.02(D) of the Charter by their appearance before county agencies in behalf of private interests. These filings will require a revisiting of the issues of the opinion discussed.
The response by one member of the Ethics Board to the complaint about his testimony reported in The Garden Island on May 12 is intriguing. While acknowledging his appearance before the council on behalf of the Kaua‘i Planning and Action Alliance, he contended that in making such appearance he was wearing the hat of the Alliance and not that of the Ethics Board.
This mysterious compartmentalization is not legally recognizable. One cannot be a different person because of one’s haberdashery.
In any case, it is to be hoped that events described will serve to bring to an end the era when the public is deprived of learning the nature of the legal advice its servants are receiving. We should no longer have the decision making of our county officials on policy matters shrouded in secrecy when legal issues are present.
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.
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