In 2008 the Kauai citizens approved by a substantial vote an amendment to the County Charter to establish the Office of the County Auditor. The amendment was intended to create an independent agency within the county government to examine the
In 2008 the Kauai citizens approved by a substantial vote an amendment to the County Charter to establish the Office of the County Auditor. The amendment was intended to create an independent agency within the county government to examine the funds, accounts, affairs and operations of county offices and agencies and to report instances or patterns of inefficiencies, waste or improprieties. The OCA was not given any enforcement powers as to its findings. Over 10 months after its enactment Mr. Ernesto Pasion was unanimously chosen by the council as the county auditor.
Since its inception, OCA has completed six audits and has been commended for excellence in its work product by the Association of Local Government Auditors. However, audits are sometimes prickly and criticism of delinquencies is not always well received. While most of the county’s offices and agencies that were audited accepted the OCA findings as constructive, some findings ruffled feathers. One audit made in 2012, relating to fuel consumption, found that the mayor may have appropriated gasoline for personal use and inferred criminal misconduct. Predictably this disturbed him. While the county auditor reports to the county council and was removed from the mayor’s direct control, doubtless words of the mayor’s displeasure were given to the council.
Thereafter the powers that be were engaged in curtailing the power of the OCA and hobbling and stifling its function.
The initial action to this end occurred in the county budgeting in the spring of this year. Cuts totaling 32 percent of the 2012 OCA budget were made by the mayor and the council. The OCA has a small staff and the budget reduction crippled badly the ability of the office to perform its function.
Then the council began what it termed a “review” of the OCA engaging a firm of investigators for its purposes. The review omitted entirely any examination of the audits made, instead focusing entirely on Mr. Pasion’s alleged leadership deficiencies. The county auditor was given a brief opportunity to comment on the proposed findings of the investigators. Thereafter the council held a series of executive sessions to consider the matter. All of these secret sessions are a form of a star chamber proceedings from which the county auditor and his counsel were excluded.
Under the terms of the charter amendment by which the OCA was formed the county auditor can be removed by the council only for cause during his six-year term. The charter does not contain any provision authorizing disciplinary action by the council.
Nevertheless, the council, claiming its powers should be “extrapolated,” last month offered its “determination” of the performance of the county auditor. Although the “determination” made no comment on the scope or quality of the audits performed, the standard by which the OCA could best be judged, it found the work of the county auditor deficient and imposed disciplinary sanctions.
The “findings of fact” by the council seemed to be principally based on the investigation by the retained consulting firm and were trivial in nature. All are disputed by the county auditor. One “finding” may be illustrative. It was a conjectural belief as to what the county auditor might have done to prevent employee EEOC claims. A belief is not a finding of fact.
The disciplinary sanction imposed was inconsequential — a week’s suspension with pay — and was made by closed proceedings that denied the county auditor the basic rights that should be enjoyed by all who are accused of misconduct — the opportunity to confront the accuser and to be heard to refute assertions made and have judgment made by an impartial body. The council action seems particularly questionable as the power of the council under the charter to exact disciplinary measures is highly dubious.
On Nov. 25, the county auditor filed a civil action against the county in the Fifth Circuit Court.
Use of litigation in public affairs is regrettable, but it may be the only recourse for Mr. Pasion to present his position in a Forum that should be fair and equitable. It appears that our Kauai public officials have reacted to embarrassing disclosures about potential misconduct by attempting to intimidate a conscientious public servant engaged in performing his function to report governmental abuses. Should this be the case, Mr. Pasion is entitled to be fully vindicated for the harassment and unjustified pressure and claims and sullying of his reputation to which he has been subjected.
And as our Kauai officials have pursued to such an extended extent these efforts to curb an honest employee from his path to discover ways our county government may be disserving us and perhaps abusing the public trust they have been given, we should wonder if it is done because of fear of further discoveries and demand that the county auditor function be restored to full budget and effectiveness to protect us against these risks.
Walter Lewis writes a regular column for The Garden Island.
