Hawaii Revised Statutes Section 78-9 provides that if a government employee – state or county – invokes the constitutional privilege against self incrimination in any matter involving government property or affairs, such employee’s position or office is terminated. Last month my column reported that in a lawsuit filed by our county auditor it had been alleged that the mayor had made such an invocation incident to an investigation made pursuant to a fuel audit, and that two watchdog citizens had made inquiry to the mayor concerning this allegation. I am advised that the mayor has now admitted that on or about Feb. 1, 2012 he did seek such constitutional protection.
The language of the statute is quite clear and applying the law should mandate that the mayor vacate his office. However, the mayor has given no indication that he intends to take this step. His lawyer in his official capacity as mayor, county attorney Al Castillo, was present when the Fifth Amendment privilege was invoked and he may well have been unaware at that time of the existence of Section 78-9. Castillo has now asserted that the statute may be unconstitutional. He has offered no reason supporting such a contention and such a claim is rather hollow in the case of a long established law when neither reason nor citation is given as its basis.
The two citizens have pursued their inquiry into the situation. They have written the county council pointing out that the council has the duty to select an interim mayor if the office has become vacant and requested that the matter be placed on the council agenda for consideration. The council chair, Jay Furfaro, who is responsible for the council’s agenda, has to date without explanation failed to take any action on the request or otherwise on the matter.
However, following his learning of the issue, council member Gary Hooser wrote to the Hawaii Attorney General requesting an opinion about the applicability of the statute to the mayor’s conduct. The response he received was that the Attorney General’s office could not because of statutory limitations offer an opinion, but it suggested that an opinion might be sought from the Kauai County Attorney or prosecuting attorney. Given the involvement by the county attorney in the episode and the fact that the prosecuting attorney only has jurisdiction over criminal matters, the suggestion appears futile.
Section 78-9 contemplates that the county officer responsible for the proceedings in which the invocation of privilege occurs will issue a certificate to the county finance director confirming the conduct of the employee so that termination of compensation payments shall occur. The county auditor is the cognizant officer to issue the certificate in this instance but as yet he has not. It may be that he is concerned about whether such action could adversely affect his lawsuit. I would submit, though, that if he has an official duty to perform, his personal position should not be a controlling consideration.
Mr. Richard Wilson, a Honolulu attorney for a North Shore resident, is also interested in the mayoral behavior. On Feb. 1, 2014 he wrote the mayor and advised that if he had not vacated his office by Feb. 5, 2014 he would initiate proceedings for termination of his position. I am advised that he is proceeding to obtain the certification that is required by Section 78-10 to implement the provisions of Section 78-9.
As above noted, the provisions of Section 78-9 are quite clear — if a state or county employee invokes the Fifth Amendment in the described circumstances his position is to be vacated and the mayor’s action is also quite clear — he invoked the Fifth Amendment in the described circumstances. As this situation must now be recognized by the mayor, he has two and only two honorable choices. First, he certainly should be able to seek a judicial adjudication which upholds any legal defenses he may believe he has. Second, he may resign. As the law imposes no other sanction than termination of position a resignation surely accomplishes what the law requires.
But it cannot be right for the mayor, the person who under the Kauai Charter has the duty to enforce our laws, to disregard the very reasonable contentions made that Section 78-9 should be applied to his conduct and to act as though nothing has happened. The rule of law is precious to our society and no one should be above the law. In the circumstances simply continuing in office and avoiding his duty is not the ethical or responsible course. It will be regrettable if a potentially abrasive citizen lawsuit is needed to be the ultimate step to obtain a resolution of this matter.
• Walter Lewis is a Lihue resident and regular contributor to The Garden Island.