Ethics Board takes big steps

LIHU‘E — With a new member sworn in, a new chair elected and a new year underway, the Kaua‘i Board of Ethics last week made dramatic strides toward resolving long-standing conflict-of-interest issues.

The board approved an interpretive rule that would define some key terms left unclear by Charter Section 20.02D, which bars county officials from appearing on behalf of private interests before county boards, commissions and agencies. The board also received clarification from a deputy county attorney on why that section is read in conjunction with the County Code and it dismissed three complaints of violations of 20.02D eight months after they were filed.

“We beat this poor horse to death,” newly elected Chair Sally Motta said at Thursday’s meeting, pleased that the board’s years-long debate over 20.02D appears to be approaching its final chapter.

Deputy County Attorney Mona Clark summarized her office’s position on the interplay of 20.02D and Section 3-1.7 of the County Code by saying that 20.02D cannot possibly be interpreted literally, specifically pointing to its proscription against appearances before county agencies like the Department of Finance that, unlike boards and commissions, have no public hearings and deal with only ministerial requests.

She said such an interpretation was “clearly not the intent” of the Charter’s framers and therefore rendered the section moot as it is “absurd on its face because it’s so overly broad.” Clark said the ambiguity caused by that absurdity requires clarification provided by the Code of Ethics.

Some did not agree with Clark’s explanation or share Motta’s feeling of relief.

“I’m disappointed because I really hoped you were going to come here today and ‘bridge the gap,’” Board Secretary Paul Weil said, referencing a term that had been a focal point of e-mail banter between himself and County Attorney Al Castillo earlier this year. “You’ve come a little closer, but not a heck of a lot.”

Written testimony from Walter Lewis, Horace Stoessel and Glenn Mickens also criticized the position, which was espoused in written opinions that Weil has continually described as “fatally flawed.”

Clark’s rationalization in open session and further discussion in executive session led the board to dismiss three complaints filed in May 2009 by then-Ethics Board member Rolf Bieber against then-colleague Judy Lenthall and Ethics Board Vice Chair Mark Hubbard as well as then-Cost Control Commissioner Lorna Nishimitsu.

Mayor Bernard Carvalho Jr.’s replacement of Bieber and Lenthall — who were both forced to recuse themselves from all executive sessions and all votes regarding the complaints — with Brad Nagano and Warren Perry proved to be key. Nagano, sworn in earlier in the meeting, cast the deciding vote as the motion passed 4-1 over the objections of Weil after months of failed attempts.

Perry was not in attendance because he was in court, Office of Boards and Commissions Administrator John Isobe said.

Looking forward

After officially dismissing three complaints that had dominated its agenda in 2009, the board looked forward to wrapping up the 20.02D debate in 2010.

The final draft of a proposed interpretive rule — which still needs to go through a public hearing process and is not yet written in stone — differs from its most recent iteration in that it included a “carve-out” that, according to language authored by Weil, would exempt non-governmental organizations “whose primary purpose or mission is to provide eleemosynary services.”

Such wording would not exempt political parties and religious, educational and other entities eligible for tax-exempt status under 501(c)3 of the Internal Revenue Code “even though they may secondarily provide charitable services,” the proposed rule states.

The change came in stark contrast to a previous draft authored by Hubbard and ignored advice from Clark, who had told the board in past meetings that the term “private interest” should be defined broadly to include any organization outside of government. Weil said he weighed the issue in favor of encouraging participation in boards and commissions.

The carve-out, if adopted as currently written, would likely not cover the Kaua‘i Chamber of Commerce, for which Motta serves as treasurer and membership chair, or the Kaua‘i Planning and Action Alliance, for which Hubbard serves as treasurer, as those organizations have as their primary missions something other than charity.

However, the YWCA of Kaua‘i, for which Ethics Board member Leila Fuller serves as director of Fund Development, and the Kaua‘i Food Bank, for which Lenthall serves as executive director, could be exempted, depending on the board’s interpretation of Weil’s definition.

While Hubbard and Motta are volunteers on their organizations’ boards of directors, Fuller and Lenthall are on staff for their organizations and are compensated for their work, a distinction that the interpretive rule, as currently written, does not address.

Weil said in a brief interview following the meeting that language that would not exempt county officers who are paid by non-governmental organizations, even those organizations that qualify as “eleemosynary,” could be added by the board following the public hearing.

After a failed motion by Hubbard to approve the interpretive rule without the new carve-out language, Weil’s motion to approve the rule as written passed.

Because next month’s meeting, scheduled for Feb. 11, falls within 30 days of January’s meeting, proper public notice for the public hearing cannot be arranged. The board did not specify a date for the public hearing, but it is expected that the public hearing will be held at the board’s March meeting. Agendas are designed by the board’s chair.

The board also deferred action on an accompanying proposed bill for an ordinance that would require action by the Kaua‘i County Council, presumably until after the interpretive rule change process draws to a close.