A Better Kauai As mandated by the state Constitution, the Kaua‘i County Charter contains in Article XX a Code of Ethics “to establish a high standard of integrity and morality in government service.” Also created was a Board of Ethics
A Better Kauai
As mandated by the state Constitution, the Kaua‘i County Charter contains in Article XX a Code of Ethics “to establish a high standard of integrity and morality in government service.”
Also created was a Board of Ethics with the function of considering complaints of violations of the code, rendering advisory opinions or interpretations as to the application of the code and reviewing disclosure statements required by the code.
In 2008, Jonathan Chun, an attorney member of the Charter Review Commission, filed a request for an opinion relating to his representation of clients before county agencies. This watershed request caused the board to consider the provisions of Section 20.02D of the code which provides that a county officer (a commission member is considered an officer) shall not “appear in behalf of private interests before any county board, commission or agency.”
As attention to this section had been long dormant, the board consulted the county attorney for advice. The administration, having apparently decided that such representations should be permitted, issued a cryptic opinion that noted a literal application of the section could have unintended results. Without giving the matter adequate thought, the board ruled that the attorney’s practices were permissible.
In the 2008 general election a ballot measure was soundly rejected by the voters that would have exempted boards and commission members from the restrictions in Section 20.02D. Obviously the voters felt that the standards of the section should apply to all persons engaged by the county and that the Chun case had been wrongly decided.
In 2009 two new members were appointed to the board — Rolf Bieber for a one-year term and Paul Weil for three years. With their advent some important changes occurred.
A perceptible increase in the board’s recognition of the absence of transparency in its meetings was evidenced by its decisions to conduct a greater part of its meetings in open sessions instead of executive sessions.
The historical pattern for the Board had been to receive opinions from the County Attorney’s Office in its executive sessions and to conform to the direction that the communication was “confidential” with the result that the public was never informed about the content of the legal opinions. Overcoming resistance from the county attorney, the board acted to release three opinions to the public.
In 2009 complaints were filed alleging violations of Section 20.02D by three board or commission members, two of whom were on the Ethics Board. Again the board solicited advice from the County Attorney’s Office and in September an opinion was received which was more elaborate than the earlier opinion but was comparable in substance.
Although labeled as “fatally flawed” by a board member (I concur), despite requests no written clarifications have been offered by the county attorney. The three complaints were first conditionally and then finally dismissed but the mystery remained as to what, if any, impact Section 20.02D should have.
Faced with the absence of any specific legal expression about the application that should be given to Section 20.02D, the board set about framing and adopting a rule that would state the clarifications in the charter language that it believed should be made.
This initiative aroused the antagonism of the County Attorney’s Office, which at the December board meeting argued that such a rule would be invalid and proposed using an ordinance to state the board’s views.
Meanwhile, back at the ranch, the term of Rolf Bieber and another board member were expiring at 2009 year end. Bieber unsuccessfully requested the mayor to reappoint him. On inquiry as to the mayor’s reasons, he was told that the mayor wanted more “balance” for the board.
Reading between the lines it appears that “balance” was a misnomer and what the administration was concerned about was the emergence of independent thinking by members and losing control over the board. So the mayor chose to use his appointing authority to get members who would be more likely to conform to his wishes.
These events are of fundamental concern because the membership in this board, which has jurisdiction over morality and integrity of county officials, should similarly to the state law clearly be composed by persons “selected in a manner which assures their independence and impartiality.”
With the board now having two new members, the board’s agenda at its January 2010 meeting included both an interpretive rule and a bill for an ordinance about Section 20.02D.
The underlying issue at stake in these items is whether the board would continue to exercise independent judgment in its decisions by issuing its rule or whether the function of the board would be subordinated to the policies of the administration as implicit in the ordinance. At the meeting with one of the two new members absent and the other abstaining the board took no definitive action on either item.
At its February meeting the board will again need to contemplate this vital question whether the board shall maintain its Charter-conferred entitlement to determine questions as to the compliance of county officers and employees with the terms of the Code of Ethics or whether these matters will be subject to the wishes of the administration.
If you believe it important that the morality of our government should be protected, I would urge you to make your views known. Having a climate of ethical integrity may well be vital to better management of the other matters before our county government.
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.
