LIHU‘E — The Kaua‘i Board of Ethics voted more than six months ago to clear three complaints alleging violations of the County Charter but will still have those unresolved items on its agenda and hanging over its collective head in
LIHU‘E — The Kaua‘i Board of Ethics voted more than six months ago to clear three complaints alleging violations of the County Charter but will still have those unresolved items on its agenda and hanging over its collective head in 2010.
A failed 3-1 vote to absolve Board Vice Chair Mark Hubbard of any wrongdoing once and for all at the Dec. 10 meeting “further complicated an already confused situation,” Office of Boards and Commissions Administrator John Isobe said in an e-mail this week.
The board had previously voted 4-0 on June 4 that Hubbard, Ethics Board colleague Judy Lenthall and former Cost Control Commissioner Lorna Nishimitsu had not violated Section 20.02D as had been alleged in complaints filed by Ethics Board member Rolf Bieber in May. The unanimous decision was pending the board’s receipt of a written opinion from County Attorney Al Castillo backing up what he told them that day in executive session.
Whether the board has ever “received” such an opinion is not as black and white as it might seem.
In July, the board rejected an opinion authored by Deputy County Attorney Mauna Kea Trask, with Board Secretary Paul Weil asking him to “go back to the drawing board.”
Also at that meeting, Weil defended his votes to clear Hubbard and Lenthall because their appearances before the Kaua‘i County Council were in behalf of nonprofits that do work in the public interest, but said he “made a mistake” in voting to clear Nishimitsu, an attorney who was alleged to have represented Kikiaola Land Co. before the council’s Planning Committee.
A month later, Castillo scolded the board for failing to follow advice from his office, telling them, “You must comply with the advisory opinion of the county attorney” and that the issue was “not subject for debate,” leading one member of the public to complain that Castillo was “posing as a dictator.”
In September, with a new opinion in hand, 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, and Hubbard described the new document as “wonderful.”
The opinion, like the ones that preceded it, concluded that “Section 20.02D may not be read in a vacuum” and instructed the board to look to Section 3-1.7 of the County Code for clarity — a position that Weil called “fatally flawed.”
Despite voting 5-2 to waive its attorney-client privilege and release the opinion to the public — it can be read in its entirety at www.kauaiworld.com/sunshine — the board again failed to receive it for the record.
Board member 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, but 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 in September. “When is everyone going to be happy?”
At the December meeting, Fuller contended that the board had in fact received the opinion, and a closer look at the minutes of the September meeting and discussions with the Office of the County Attorney have led Isobe to believe she may be correct.
“(I)t is clear that from a parliamentary perspective, both attempts by members of the board to receive the opinion offered by the County Attorney’s Office failed to get the requisite number of votes,” Isobe wrote in his e-mail. “However from a technical and legal perspective, the board could not have waived its attorney-client privilege or publicly released the opinion unless it took possession of the opinion (received or accepted the opinion).
“Therefore Chair Fuller’s contention … has merit because if the board did not take possession of the document, it would remain an ‘attorney work product.’ The board would have been required to get the consent of the county attorney in order to publicly release the document and there would be no need to waive the ‘attorney-client privilege,’” Isobe wrote.
“Given that the minutes clearly indicate unilateral action by the board to release the county attorney’s opinion and waive its attorney-client privilege, I assume that they took of possession of the document,” he wrote. “Please be aware that my assumption may not be the consensus opinion of all board members.”
Despite the possibility that the issue has already been legally resolved, Fuller continued to put the complaints on the board’s monthly agenda, usually in executive sessions that were not convened due to a dearth of eligible or willing members. However, the complaint against Hubbard, No. 09-002, was moved to December’s open session at his request.
After Lenthall was told she would not be able to vote because the complaint against her — 09-003, still in executive session — was too similar to the one up for discussion, Fuller, Farias and Sally Motta voted to clear Hubbard and Weil voting against the motion, killing it 3-1.
After a brief moment where it appeared Fuller believed the motion passed 3-1 and seemed relieved to have it off the board’s plate, Trask described the failure as bringing the process “back to square one.”
Weil said he could not proceed based on the opinion, frustratedly pleading with Bieber to “withdraw the damn complaints” and yelling heatedly at Fuller and Trask.
“The inference here is we have received an opinion that is acceptable to this board,” and we have not, Weil said.
“That’s what we think and our opinion is not going to change,” Trask shot back.
Isobe said he was unsure if the failed vote showed that board members intended to reverse their previous action in clearing Hubbard, ignore the prior action and move towards another option, or bring closure to the complaint based on the belief that the board did not take possession of the opinion, a problematic scenario in light of their release of the opinion.
“Our office is not in a position to speak on behalf of the Ethics Board,” Isobe wrote. “Therefore, it appears that the prudent course of action would be to bring this matter before the board at a future meeting in the hope that they will take appropriate action to clarify this complicated and confused situation.”
