Section 20.02D of the Kaua‘i Charter, known as the Code of Ethics, prohibits county officers and employees from representing private interests before county agencies and is an unlikely candidate for prominence.
The Kaua‘i Board of Ethics, responsible for the administration of the code, has had in recent years only five cases involving its application. Yet in a period of over 18 months, the board has not finally resolved any of these cases — although two of them were mooted by the resignation of the persons involved from their offices. The performance by the board in its handling of the five cases is a distressing illustration of its dysfunctional nature.
While the board itself has some responsibility for this dismal record, the real problem is deeper.
When the first of the cases arose by the request in early 2008 from an attorney member of a county commission for an advisory ruling by the board regarding his representation of private clients at county agency meetings, the board requested assistance from the Office of the County Attorney on the matter.
The attorney’s response in a March 2008 letter was that 20.02D was ambiguous and it should be considered together with certain County Code sections dealing principally with conflicts of interest. Faced with this essentially useless advice, the board gave the requesting attorney a “pass” without explaining the basis for its action.
Three of this year’s 20.02D cases arose from complaints heard at the board’s June 4 meeting concerning testimony by commission members at county agencies. The board asked the new county attorney for a review of the 2008 opinion and to provide his opinions on three related questions.
The attorney gave a delayed response in a Sept. 3 letter offering some additional discussion but expressing the same views as stated in the March 2008 letter and only a partial response to one of the other three questions.
The crux of the matter is that the county attorney has concluded based on his reading of the section and without any other evidence or rationale that the section’s meaning is ambiguous. A number of citizen witnesses have, however, testified that both the language of the section and its intent are clear. One member of the board has declared that the county attorney view is an insult to his intelligence.
Beyond his unsupported finding of ambiguity, the county attorney has failed to give the board any helpful guidance as to what they should do if, as he has instructed them, they are to obey his interpretation. The sole clue he provided was that the board should not read 20.02D in a vacuum and supposedly relevant County Code sections should be considered. This far-from-straightforward advice is essentially meaningless.
At the September board meeting, a proposal was offered to ask the county attorney to explain his position. The proposal was defeated by a 4-to-3 vote of the board.
(Editor’s note: The proposal included questions provided by the author, following public testimony and the receipt of a written communication from the author.)
So the dysfunctional board has disabled itself from seeking further clarifying advice from the county attorney and is groping for what to do. A possibility is that the board might consult with another lawyer who could be better qualified. But in real life, on Kaua‘i, this won’t happen.
One board initiative that has promise is to issue what is now labeled a declaratory order but could be better considered as an interpretive ruling to express how the board intends in the future to treat situations involving 20.02D.
Such an order would require a majority of the often disharmonious board to agree on the meaning of 20.02D terms such as “private interests” and “appear.” The fate of the proposed ruling will most likely depend on whether some members of the board will be willing to emerge from the protective cover they have used to date to avoid explaining their vote in the first 20.02D matter considered.
The deputy county attorney assigned to the board has declared that order adoption must be preceded by a public hearing, but has not otherwise rained on it.
It is expected that the county attorney who has caused this paralysis of the Ethics Board is pleased by the present condition. It may serve the political objectives of the person to whom he reports, but he has failed in the performance of the duties of the office he holds.
To serve the public welfare and the citizens of our county which is his ultimate responsibility his duty as county attorney, he should offer to his clients, the officers and managers of this county, responses to their inquiries for legal assistance that provide a fair analysis of the relevant law and then an objective guidance on its application to the actual situation presented.
When our county attorney commands obedience by his clients to the legal pronouncements he issues and they are defective or unintelligible, the process fails. One member of the board has stated that the gap between what the county attorney has said regarding 20.02D and a reasonable interpretation of the applicable law is unbridgeable. Unfortunately, he seems to be right and the function of the Ethics Board has been critically impaired.
The headline of the article in The Garden Island reporting on the September Ethics Board meeting had it about right when it called the debate (or its absence) at the meeting “weirder and weirder.”
It is unfortunate and ironic that the current impasse is precluding the board’s performance of its duties stated in our charter to assure “a high standard of integrity and morality in our government service.”
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.
