In these times of economic hardship when national unemployment is running at a 10-percent rate and on Kaua‘i it is over 8 percent, it is somewhat anomalous to consider issues arising from having multiple employment. But in recent months the
In these times of economic hardship when national unemployment is running at a 10-percent rate and on Kaua‘i it is over 8 percent, it is somewhat anomalous to consider issues arising from having multiple employment. But in recent months the county Ethics Board has been confronted with requests for advisory opinions relating to county employees who seek, in addition to their employment position with the county, to perform services for compensation for others.
While engaging to work for compensation beyond regular employment by the county is not prohibited, the Code of Ethics in the county charter and an ordinance adopted by the council contain provisions making engaging in certain work violative of county law.
Section 20.02 of the charter identifies the ethical standards that county officers and employees are to observe and Section 3-1.7 of the County Code defines prohibited conflicts of interest for them.
The initial requests this year to the Ethics Board on the outside-employment subject were made by the planning director at its May 2010 meeting with regard to four employees of the Planning Department engaged in drawing plans for applicants or potential applicants for permits.
Some history is relevant.
For undisclosed reasons in August 2009 Mayor Carvalho issued a directive to departments and agencies of the county for the stated purpose of ensuring “County compliance with the standards of conduct mandated by the Kaua‘i County Charter and the Kaua‘i County Code and to develop notification procedures relating to outside employment at any time a conflict may arise.” The directive then quoted the charter and code sections and went on to state the duties of the employees and the department or agency. Although the directive refers to both the charter and the code its substantive terms cover only the conflicts of interest set forth in the code.
The directive seems well-motivated but it has anomalies. It refers to county compliance with the laws but it is really employee compliance that is the target. Also the directive provides that the employee(s) involved should disclose the potential conflict position to his/her department head, who then will investigate and when appropriate, submit a request to the Ethics Board for a ruling. However, Rules 5.1(a) and (b) of the Ethics Board contemplate that requests to the board for interpretations and rulings are to be made by the employee or officer who is the real party in interest and therefore not by the department head. This contemplation is reinforced by the definition of an advisory opinion set forth in the Rule 1.2. It is dubious that the board has the lawful jurisdiction to process department-head requests.
The matter of Planning Department employees engaging their services for plan drawings had been previously considered by the Ethics Board in September and October 2002. At the Oct. 22, 2002 meeting after a somewhat-disjointed discussion, the board by a three-to-two vote voted against a motion requiring that drafting of plans for applicants by employees be discontinued. Although the minutes do not reflect the adoption of any counter motion, the Ethics Board chair on Oct. 25 advised the planning director that its Feb. 1, 2001 policy adequately covered the ethical issues and that the requests should be approved “as long as they comply with (the) 2-1-2001 policy.”
When the issue was revisited in 2010 the minutes of the May 2010 meeting show requests made by the planning director with respect to four Planning Department employees. The director reviewed the Planning Department policy and supplement regarding outside business work. Although the board rules specify that a request include applicable facts only a generic summary was provided. The deputy county attorney attending the meeting advised that County Code Section 3-1.7 (d) prohibition that no employee shall assist any person or business for a fee or other compensation on a transaction before the agency of which he is an employee was absolute. After discussion including a suggestion that the requests clarify the process involved the director withdrew the requests and advised of an intent to resubmit them the following month. However, the requests were not made for consideration at the June or July meetings.
The picture was complicated at the July 2010 Ethics Board meeting by a request made by a Water Department employee concerning his potential employment at a construction firm. There the board found that a conflict would be highly likely in the work described and ruled that the proposed engagement would be in violation of Section 3-1.7 (d).
At this writing it remains uncertain whether requests for an opinion will be resubmitted relating to the Planning Department employees, what the form of such requests will take, and what the views of the board on them will be.
It appears that in general our county administration is genuinely desirous of avoiding improprieties or appearance of improprieties relating to county employees providing services outside of their county employment to persons or businesses where there could be a breach of the code of ethics or a conflict of interests. But these good intentions are being thwarted by laws that that are not as clear as they might be, by a mayor’s directive that seems to provide an impermissible process for resolving potential infractions, and by an Ethics Board that in the past and perhaps now is unwilling to apply our charter and ordinances in accordance with their terms and intent. These should be solvable problems.
The Ethics Board has a valuable function in monitoring the ethical standards of county employees. It is important that the board fulfill its duties diligently. It is equally important that there is a public perception of the issues involved and support for the work the board does.
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.
