LIHUE — The Attorney General’s Office said it won’t get involved in a statute dispute centered around whether the mayor should have to vacate office. The state office told The Garden Island it couldn’t offer an opinion on the issue,
LIHUE — The Attorney General’s Office said it won’t get involved in a statute dispute centered around whether the mayor should have to vacate office.
The state office told The Garden Island it couldn’t offer an opinion on the issue, as it only gives legal advice to public officials. The proper recourse in the statutory dispute between two attorneys would be for a party to file a complaint with the police department, it said.
“That particular investigation is something our department is deferring to the police department,” said Anne Lopez, special assistant to the AG’s office. “The police department can proceed with what they think is best.”
The police department would then file the complaint with the prosecutor’s office, if it felt the issue warranted a court’s ruling.
“The complaint has to come from the police department,” she said.
The issue stems from a dispute between two attorneys over the interpretation of Hawaii Statute 78-9.
Honolulu-based lawyer Richard Wilson said he is prepared to file a complaint on the matter because he alleges Mayor Bernard Carvalho Jr. violated the statute during an audit investigation two years ago.
“I would suspect, at some point in time, it’s going to go to the courts,” he said.
The statue deals with public officials who willfully refuse to answer a court, judge, board or officer’s questions regarding the government, property or affairs of the state or any other political subdivision.
Carvalho invoked his Fifth Amendment right against self-incrimination during a 2012 interview regarding a county gas card audit investigation, according to county spokeswoman Beth Tokioka.
Statute 78-9 calls for officials to vacate office, if they refuse to testify or answer questions on the government’s affairs.
But Carvalho’s attorney, Eric Seitz, said the statute gives the mayor a right to invoke the Fifth.
Even so, he called the statue an outdated relic straight out of the McCarthy era that unconstitutionally opens the door to public witch hunts, which is how he classified Wilson’s claim.
“That’s the genesis, that’s the basis of these,” he said of the statute. “To be used as weapons to go after people when they don’t have any legit grounds for doing so.”
Statute 78-9 states that governmental personnel who refuse to testify about governmental property or affairs when called to “on the grounds that the person’s answer would tend to incriminate the person, or refuses to testify or to answer any such questions without right, the person’s term or tenure of office or employment shall terminate.”
Seitz pointed to the part that says, “without right.”
The mayor, or anyone else, has the right to invoke their Fifth Amendment protection. Besides, he added, the mayor was never subpoenaed during the gas card audit investigation but invoked his self-incrimination right during an interview. There is courtroom protocol to follow should a subpoena be refused.
The county agreed with Seitz.
“Mayor Carvalho was and continues to be more than willing to respond to questions of the county auditor in a civil investigation,” County spokeswoman Beth Tokioka wrote in an email about the mayor invoking his right after an investigator conducting the interview in 2012 offered Carvalho the opportunity to do so. “The mayor — like every other citizen of this country, including public servants — cannot be stripped of basic rights afforded by the U.S. Constitution by way of state statute.”
The audit from which the dispute stems was published by County Auditor Ernie Pasion and implied that Carvalho and other county employees illegally used county fuel for personal use. The AG’s Office found no basis for a criminal investigation.
Pasion has since filed a suit against the county alleging retaliation after his office conducted the investigation.
About two weeks ago, Wilson, representing Kauai resident Michael Sheehan, told Carvalho he had to leave office in a letter circulated to state and county officials and media outlets because of the alleged statute violation.
He countered Seitz’s argument about the phrase “without right” in the statute by pointing to the commas in the sentence.
By placing a comma after the self-incrimination definition, it separates that definition from “without right,” so the phrase doesn’t apply to invoking the Fifth Amendment. That means, Wilson said, that invoking the Fifth is an infraction all by itself. especially because it is specific to government officials dealing with government affairs.
“You’re elected dude, if you’re not going to tell us, get out,” Wilson said. “That’s part of the public trust.”
Both attorneys said a lawsuit would be unprecedented because there isn’t a history of lawsuits involving the statute to draw upon.
Carvalho declined to comment on the issue, but Seitz said he would be prepared to defend his stance in court.
“If they want to take action, file a lawsuit, then we’ll take the appropriate action,” he said.
