Hawaii Revised Statutes Section 78-9 provides in substance that if a county or state employee invokes the privilege against self incrimination contained in the Fifth Amendment of the federal constitution in a matter involving government affairs or property, the position
Hawaii Revised Statutes Section 78-9 provides in substance that if a county or state employee invokes the privilege against self incrimination contained in the Fifth Amendment of the federal constitution in a matter involving government affairs or property, the position of the employee is automatically terminated. This expression of state law and policy imposes on government employees the same standard that is generally applicable in the private sector.
In 2010, the county auditor initiated an audit of fuel usage by county employees (the fuel audit) which found believed irregularities had occurred. Incident to the audit an investigation was launched, the results of which were not publicly disclosed. I am advised that the transcript of the investigation records on Feb. 1, 2012, the mayor, with representation by the county attorney, invoked the self-incrimination privilege.
Exposing governmental misconduct has its price. Last year, the auditor’s budget was reduced by about 32 percent by the mayor and the council and the council conducted a series of about 20 executive sessions to consider discipline or termination of the auditor. Near the end of last year the auditor filed a complaint in a lawsuit seeking damages for these actions which were claimed to be wrongfully retaliatory. The case is pending. In the complaint, it claimed that incident to investigation under the fuel audit, a person readily identifiable as the mayor and another unnamed county employee had invoked the self-incrimination privilege.
Two government watchdog citizens made the connection and on Jan. 13 wrote the mayor inquiring if the privilege claim in the auditor complaint was accurate and, if so, did he believe that Section 78-9 applied to his conduct. They twice received a reply from the mayor’s office that the matter was being “researched” without further information.
The procedure for implementation of the termination prescribed in section 78-9 is set forth in Section 78-10. It calls for the officer of the body before whom the invocation occurs to file a certification of the facts with applicable parties on receipt of which the person refusing to testify shall be removed from office.
On Jan. 28, the two citizens wrote the necessary parties for the section 78-10 proceedings, requesting the taking of the appropriate steps.
On Jan. 31, Richard Wilson, an attorney for another county resident, wrote the mayor and advised that unless he promptly resign, the procedural requirements of section 78-10 would be undertaken to implement section 78-9. No resignation has occurred and I am informed that Mr. Wilson is proceeding.
The claims asserted have been addressed by two attorneys acting for the mayor. The county attorney, Alfred Castillo, representing the mayor in his official capacity wrote the two citizens on Jan. 29 stating section 78-9 is “arguably not applicable to the situation in question and may be unconstitutional.” It is notable that the county attorney did not offer any denial of the invocation of the privilege and failed to provide any citation of authority for his contentions. Somewhat stranger is a Feb. 1 news release by the mayor’s personal attorney, Eric Seitz, who stated that “recent attacks on (the mayor) regarding a county fuel audit are unfounded and politically motivated” and “nothing more than an attempt to discredit a popular, honest and effective politician at the outset of a re-election campaign.”
The release was obviously oriented to issues arising as to mayoral fuel usage and it never mentioned the mayor’s conduct which triggered the adduction of section 78-9. The mayor’s office has, as noted, also failed to deny the mayor’s invoking the Fifth Amendment.
An objective appraisal of the situation is difficult. Clearly, if the contentions made are well-founded, the mayor’s service is effectively over and his continuance in office can only be until his resignation or the procedural steps to remove him are completed. To date, the responses made in defense of the mayor are quite limited. If the facts are as alleged that after due notice and being represented by counsel, the invocation of the privilege by the mayor occurred, it would appear that the mayor’s legal position would essentially depend on the dubious contention that a long established state law is unconstitutional.
Assuming the mayor does not resign and seeks re-election and no definitive judicial resolution of the section 78-9 issue occurs, the ultimate test may well be the views of those in the electorate.
Absent any mayoral denial about pleading the Fifth Amendment, in the court of public opinion Mr. Carvalho’s re-election prospects may depend on whether the terms of Section 78-9 are viewed as an inconsequential impediment on the electoral process or whether there will be public acceptance of the view that a county servant who publicly pledged he would not burden the county with his personal car expenses and did so and then sought to avoid responsibility by pleading the Fifth Amendment protection should be permitted to remain in public office.
It will be most interesting to observe future developments.
• Walter Lewis is a Lihue resident who writes a regular column for The Garden Island.
