LIHU‘E — The Kaua‘i Board of Ethics put the finishing touches on its year-long conflicts of interest debate Thursday, unanimously voting to define a key term broadly and without exemptions, giving the County Charter maximum impact and placing firm ethical
LIHU‘E — The Kaua‘i Board of Ethics put the finishing touches on its year-long conflicts of interest debate Thursday, unanimously voting to define a key term broadly and without exemptions, giving the County Charter maximum impact and placing firm ethical limits on the behavior of county officers.
After a public hearing earlier in the morning meeting at the Mo‘ikeha Building, Vice Chair Mark Hubbard led the charge to approve an interpretive rule to clarify the board’s position on Charter Section 20.02D, which bars county officials from appearing on behalf of private interests before county boards, commissions and agencies.
“I think it’s about time. I’m glad it finally got done. People are wondering, ‘How are you going to interpret this? How are we going to behave in the future?’” said Hubbard, who earlier this year was cleared of a May 2009 complaint that he had appeared before the Kaua‘i County Council in behalf of the Kaua‘i Planning and Action Alliance in apparent violation of 20.02D. “I think this will help.”
Previous decisions downplaying 20.02D, including advisory opinions from the Office of the County Attorney that said applying the law could lead to “absurd” results, caused a muddled board position on the section’s applicability and led some county volunteers to resign their posts over the confusion.
Asked what advice he would offer to county volunteers who want to know what Thursday’s vote means for them, Hubbard said, “I would tell them, with this interpretive rule, it’s now different than we’ve voted in the past, and I would have been in error in going before the County Council. I should not do that again, or I should quit my position on the Board of Ethics. I have a choice.”
Board Secretary Paul Weil, who had originally crafted language that would have carved out an exemption for those county officials representing not-for-profit “eleemosynary” (charitable) organizations, seconded Hubbard’s motion to approve the rule sans carve-out, crediting his change of heart to an outpouring of public opposition and a 2003 letter authored by the State Ethics Review Commission.
The letter, provided unsolicited by Sen. Les Ihara (D-Kapahulu, Kaimuki, Palolo) to The Garden Island last month and included in the Ethics Board’s March packet, said serving even as an uncompensated director of a non-profit corporation does create a “financial interest” because Hawai‘i Revised Statutes define that term to include directorship in a “business,” and define business to include a corporation, whether operated for profit or not.
“The term ‘financial interest’ pertains, of course, to having an actual monetary interest in a business, and so forth, but also includes situations where one is not receiving actual compensation or monetary gain, but the ‘interest’ in the matter is so strong as to reasonably have a possible effect upon one’s decision-making as a state official,” the letter says.
The letter identifies fiduciary responsibilities and the potential for a lawsuit as financial interests not generally considered by the general public.
“While such service may appear to be merely the providing of volunteer services as a good citizen, in reality, under the law, there are substantial and real financial interests that a member of the board of directors of a non-profit corporation has, whether the individual is compensated or not,” the letter concludes.
Weil said Monday that the letter contains “good reasoning, much better than anything we’ve received from our own counsel,” a shot at the Office of the County Attorney which Weil has said in the past provided “fatally flawed” opinions that failed to “bridge the gap” between 20.02D and the County Code.
Asked by Weil if the letter had been researched or considered in previous opinions or advice to the board, Deputy County Attorney Mona Clark said she had been previously unaware of it.
The board voted 5-0 in favor of the amended interpretive rule, which now defines “private interest” to be “all persons and entities other than governmental bodies.” Board members Leila Thompson and Brad Nagano were absent.
Weil said he was “greatly influenced” by public testimony, and said there is time in the future to add exemptions if board members want to do so, but he did not want that issue to stand in the way of progress.
“I had made up my mind fairly early that the carve-outs weren’t worth risking the rest of the measure,” he said. “If I thought that it would have been strongly possible to pass the overall measure while including the carve-out, I would not have” agreed to remove it.
Weil said the board’s new official stance on 20.02D does not necessarily mean that the complaints against Hubbard, former board member Judy Lenthall and former Cost Control Commissioner Lorna Nishimitsu would have been sustained, as each case has its own unique factors and the board had “manifold reasons” for voting to move forward without reprimanding the three.
“There is no simple answer. It’s a bit more complex than that, and unfortunately the public in general tries to be simplistic,” he said.
Former board member Rolf Bieber, who filed the three complaints last year, testified in favor of the rule without the carve-out, and said Monday that while he is pleased with the board’s actions, he remains skeptical.
“Really the proof will be when the board will be faced with a complaint of 20.02, how the board will respond. It’s fine that they incorporated this new administrative rule, but the way I feel about it is I will wait and see how the rule and law is applied,” Bieber said. “Will the board follow through with the application of the law and rule?”
Hubbard said he would have voted to uphold the complaint against himself had he been given the chance because “I was wrong” to violate the charter when he represented KPAA at the council, but said previous rulings like the one in 2008 to clear former Charter Review Commissioner Jonathan Chun of a similar charge were not mistakes.
“That was the interpretation back then, that was reasonable, that was what a group of people decided,” Hubbard said. “This is what another group of people are deciding, and we’re moving forward. I have changed my mind, but I don’t think I was necessarily in error or (had the) wrong interpretation.
“I think there is not a conflict with me appearing before the County Council on behalf of KPAA, but the charter says we shouldn’t do it, so we won’t, and we’ll see what happens,” Hubbard said.
• Michael Levine, assistant news editor, can be reached at 245-3681 (ext. 252) or mlevine@kauaipubco.com.
