LIHU‘E — With another legal opinion from the county attorney in hand, the Board of Ethics on Thursday took steps toward putting its months-long debate on County Charter Section 20.02D to rest. But some big questions about the controversial conflict
LIHU‘E — With another legal opinion from the county attorney in hand, the Board of Ethics on Thursday took steps toward putting its months-long debate on County Charter Section 20.02D to rest. But some big questions about the controversial conflict of interest provision were unresolved.
The board went into just two of its six scheduled executive sessions — attempts to convene the other four were shot down as some board members were forced to recuse themselves from voting — but one of the closed-door sessions featured a lengthy discussion between Deputy County Attorney Mauna Kea Trask and members who had questions about a new opinion he authored.
The opinion — which was signed by County Attorney Al Castillo and released to the public by the board as it waived its attorney-client privilege by a 5-2 vote later in the meeting — earned varying degrees of praise from members on both sides of the 20.02D debate.
Vice Chair Mark Hubbard, who was among those against whom a complaint was filed earlier this year, described the opinion as “wonderful.”
Secretary Paul Weil said Trask did “a far better job than has been done in the past,” saying the document was well-researched, well-articulated and more “lawyer-like” than its predecessor, which was rejected by the board in July.
“Contrary to belief, we do care about the public,” Trask said in asking that the board allow him the opportunity to explain his work in an executive session. He said he was not trying to prevent the board from making its decision, promising “nothing nefarious.”
The new document authored by Trask referenced Sections 1-15 and 1-16 of the Hawai‘i Revised Statutes in arguing that ambiguity can be diffused by using one law to “explain what is doubtful in another.”
“The language of 20.02D appears to be a complete and unambiguous prohibition, preventing any officer or employee from acting ‘in behalf’ of any private interest before any county board, commission or agency,” the opinion says. “However, the application of such a strict constructionist reading of 20.02D would clearly lead to an absurd result.”
The document then cites as an example the possibility that any county employee would be barred from seeking a water meter when building a home.
“Therefore … this strict reading of 20.02D must be rejected because it produces an absurd result even though no ambiguity seems to be present,” the opinion says, later noting that “Section 20.02D of the charter can and should be read in concert with the County Code of Ethics contained in Chapter 3, Article 1 of the Kaua‘i County Code.”
Trask wrote that the County Attorney’s Office believes provisions in the County Code “serve to articulate and elaborate on the intent of Charter Code of Ethics, and they must be read in conjunction with the charter provisions.
“In other words, Section 20.02D may not be read in a vacuum,” the opinion concludes.
The board later deliberated on whether it should adopt the opinion or request a new one to address some areas of concern.
“I want to see it done right so we can put this whole thing to rest and never deal with it again,” Weil said. If the board accepts the letter, “some future board or the public will look at that and think that’s really the law and it’s not. … I think we’d be laughed at.”
Weil said that while the opinion was an improvement, he stood by his previous description that it is “fatally flawed.”
Others disagreed. Robert Farias made a motion to receive the letter “with great appreciation to the county attorney,” and Chair Leila Fuller also spoke highly of the work.
Two attempts to receive the opinion failed, once after a 3-3 stalemate vote in which Weil abstained, and once after a motion failed to gain a second.
“It’s a damn good letter,” Fuller said. “When is everyone going to be happy?”
Rolf Bieber, whose complaints against Hubbard, Ethics Board member Judy Lenthalll and Cost Control Commissioner Lorna Nishimitsu sparked the discussion four months ago, pushed for further clarification.
“We owe it to Ethics Boards of the future to hash this out and get it right,” he said.
To view the opinion in its entirety, as well as other public government documents requested by TGI, visit http://www.kauaiworld.com/sunshine.
