Council sends Iseri-Carvalho to Board of Ethics

LIHU‘E — After many deferrals over several weeks, the Kaua‘i County Council on Wednesday voted in favor of Council Vice Chair JoAnn Yukimura’s request for council approval to ask the county Board of Ethics for an investigation of POHAKU, a diversion program offered by the county Office of Prosecuting Attorney.

At the crux of the matter is the question whether OPA, headed by County Prosecutor Shaylene Iseri-Carvalho, benefited from a contract with Strategic Justice Partners, a for-profit Mainland company which provides diversion programs. If true, it could mean a potential violation of the Kaua‘i County Charter.

“We are not making any statement as to whether or not there is a violation, we are just handling it over (to the Board of Ethics) saying ‘please investigate it,’” Yukimura said.

Council members Mel Rapozo and KipuKai Kuali‘i were the only ones who voted against Yukimura’s request, saying it was redundant.

“This is a duplication of efforts; this matter, as far as I’m concerned, is being addressed,” Rapozo said at Wednesday’s meeting.

Kuali‘i said the move was premature, unprecedented, not prudent and unnecessary.

“I think we shouldn’t be jumping the gun for whatever motivation,” he said.

However, that was not the opinion of County Attorney Al Castillo. He said the way he could answer, without reaching confidential information, on whether the OPA was already being investigated by the board, was that Wednesday’s agenda item was related to ethical concerns rather than a procurement issue.

Meanwhile, Iseri-Carvalho confirmed Thursday that an ethics investigation involving procurement issues has already been initiated by the board, saying OPA received a subpoena for documents May 23.

Deputy County Prosecutor Jake Delaplane said Wednesday that there were 19 separate items asked by the board, and OPA had all the answers ready but one, which they would provide soon.

Iseri-Carvalho also thought the council’s request on Wednesday was redundant, but to her it had an ulterior motive.

“There is not going to be a separate investigation, it’s already done,” she said. “What they did was a bull-(expletive deleted) thing in public, because it was already done and they knew it. They just wanted to make it public because the Board of Ethics’ thing wasn’t public, that’s all.”

Iseri-Carvalho doesn’t know who asked the board for the initial investigation, although she said she was 99.99 percent sure it was the work of Councilman Tim Bynum and/or Yukimura, because the county Finance Department told her the investigation was initiated after a request by “council members.”

Bynum denies it was him. He said Friday that he had no idea until recently that the Board of Ethics was already investigating Iseri-Carvalho.

Yukimura also denied she sent a previous request for the board to investigate OPA. She said the council was not aware of an ongoing investigation, and when council members asked Castillo whether OPA was being investigated, he did not answer.

Besides, the request approved Wednesday was sent long ago, she said, adding that Rapozo and others delayed deliberations and action for more than a month, and someone else may have sent an investigation request to the board while the council kept deferring the issue.

‘Politically motivated’

To get into the POHAKU program — which stands for Productive Optimism Helps All Kaua‘i Unite — defendants pay a $200 fee to Strategic Justice Partners (SJP), according to Delaplane. The same applies to any other program offered by other agencies, he said.

Bynum said Wednesday that he has concerns that the POHAKU website directs payments to a private business and the council has not been provided with a copy of the contract between OPA and the business, SJP.

Iseri-Carvalho said there is no written contract with SJP, and that is the norm with all providers of diversion programs who offer services such as alternative to violence classes, sex offender treatment, drug programs and other classes.

Some of those providers include the YWCA, the Salvation Army and other nonprofits as well as other for-profits. Other counties in Hawai‘i have the same procedures; they don’t have written contracts with those types of service providers, she said.

“This is a totally politically motivated (move) to try to mar the reputation of prosecutor’s (office),” Iseri-Carvalho said. “What we’ve been doing with POHAKU is the same thing that we’ve done with every other program. … We don’t have a single contract with any other service provider, none of them.”

If the lack of a written contract represents a violation of the charter, she said, then OPA would have violated the charter in every other instance.

Iseri-Carvalho’s term is up at the end of this year, when voters will decide whether to keep her in office or elect Deputy County Attorney Justin Kollar for her position.

She said Bynum wants her out of office as retaliation for prosecuting him on a zoning violation (the attorney general took Iseri-Carvalho off the case and later dismissed it) and also for prosecuting Bynum’s son last year on a case related to the theft of fishing equipment.

Bynum denies the politically motivated charges brought by Iseri-Carvalho, saying he is just doing his due diligence as a council member.

“County officials take an oath to uphold the Constitution of the United States, the Constitution of the State of Hawai‘i and the Kaua‘i County Charter,” he said. “ I have been told by all county attorneys that have held the office since I became a council member that when a question regarding a potential violation of the charter is raised, the council has a duty to see that an appropriate inquiry is being held — the Board of Ethics is an appropriate body for such inquiry.”

Yukimura also denied any political motivation for the request.

Under the charter, the council has budget and oversight responsibilities with respect to county operations, Yukimura said.

“The council has the responsibility to make sure that the monies appropriated through the budget process are properly used and the programs are properly implemented, and not exposing the county to lawsuits and liability,” she said.

Whenever questions are raised, regardless of by whom, the council needs to seek answers, said Yukimura, adding that the council asks questions often of the mayor and other department heads, including the prosecutor.

“That is all I was trying to do — fulfill my duty as a council member,” she said.

Contract issue

Iseri-Carvalho said OPA had almost 50 community meetings on POHAKU.

“We met with hundreds of community members, we met with the Judiciary, we met with the Department of Public Safety, we met with the judges, we met with the defense attorneys, we met with the Hawai‘i Bar Association, we met with everybody,” she said. “If we were doing anything illegal, why would we bring it to the Judiciary, which we did multiple times?”

Bynum, however, said there are potential procurement issues because, maybe, other agencies should have been allowed on a bid to provide services for POHAKU.

The program was created after a bad-check restitution program offered by former County Prosecutor Craig De Costa fizzled out. De Costa served 12 years in the position before going into private practice in 2008, when Iseri-Carvalho took office after running unopposed.

While in office, De Costa signed a three-year contract with a now-defunct company, according to Iseri-Carvalho. In the first year of the contract, the company gave OPA 4 percent of its $150 program fees, 6 percent in the second year and 8 percent in the third year. In 2008, before he left office, De Costa signed a new, five-year contract, according to Iseri-Carvalho.

When Iseri-Carvalho first took office at the end of 2008, she said she had no idea of such a contract, and that when she found out, she stopped it because of legal issues, even though the contract was to run until 2013.

“Craig signed a contract directly with that company, without going to Finance (Department), without going through procurement, and collected the monies,” said Iseri-Carvalho, adding that defendants who signed up for the program wrote checks to the prosecuting attorney, who got percentages of those checks.

SJP history

Adding to the many pieces of the puzzle, the company which had a contract with OPA while De Costa was in office employed Kurt Berris in a management position, according to Iseri-Carvalho.

Iseri-Carvalho said that company does not exist anymore as it went bankrupt, but Berris is still dealing with OPA — he has ownership in SJP.

However, OPA dealt with SJP payments in a different way than De Costa did with Berris’ former employer. The deposits were made directly to SJP rather than in OPA’s name, according to Iseri-Carvalho.

One of the issues raised by Bynum was a potential charter violation if OPA benefits from a contract.

He said he had concerns with “the use of county address as the address for the registered agent of a private business.”

The board should investigate to find out if SJP is using OPA staff as agents and to find out if there are any potential benefits for the staff or agency, Bynum said.

Iseri-Carvalho said SJP used OPA’s address because the company is based on the Mainland and needed a local address.

“If you had your house in Minnesota, you need to have a person on the island to accept your mail or be a contact person,” she said. “That’s all that our address is provided for.”

De Costa criticized

Iseri-Carvalho said De Costa provided a county address for the former program, but also required defendants to deposit their money directly into a mailbox in the name of the prosecuting attorney, with no other party involved.

“That is illegal conduct, there is no question in my mind, and that’s why we stopped execution of those terms,” said Iseri-Carvalho, explaining that it’s illegal to collect money in exchange for dismissing a person’s case, “and that’s what Craig (De Costa) was doing.”

She said all the council members know about this, and that she is sure the issue was discussed in one of the several executive sessions at the council, but when she wanted to talk about it on the floor, there was a problem.

“JoAnn (Yukimura) has got to be so full of (expletive deleted), because we received absolutely no money, and they know that Craig (De Costa) received monies because they saw the contract, but they don’t want to bring out Craig’s stuff because they’re only out to target our office because it’s an election year and they want Justin Kollar to win because that’s their candidate,” she said.

Yukimura, who is running for re-election to the council this year, said she does not get involved in supporting other candidates during the primaries.

“The campaign of Justin Kollar was the last thing on my mind when I began asking questions about the POHAKU Project,” she said. “I began asking questions about the POHAKU Project because it is part of my job as a council member.”

Iseri-Carvalho said she knows she did nothing wrong, but De Costa “definitely did something wrong,” and that was the reason she wanted to have an attorney present while talking about it in previous council meetings.

“Because we didn’t want to implicate Craig unnecessarily,” said Iseri-Carvalho, adding that now the council is trying to blame her administration for all that De Costa did while in office.

Despite laying so many claims on De Costa, Iseri-Carvalho softened her blame of him.

“I don’t think he did it intentionally, I think he needed money for their office,” she said.

A message was left Friday with staff at De Costa’s law firm. De Costa did not return a request for comment by press time.

Special counsel

Weeks ago, the council approved funds for the Board of Ethics and OPA to retain special counsel.

Delaplane said attorney Gayle Ching has been assigned to the board, but as of Wednesday, OPA had yet to receive an attorney.

At Wednesday’s meeting, Castillo told the council OPA had an assigned attorney. On Thursday, Iseri-Carvalho sent an email to Castillo, disputing his statement at the council chambers. She said she contacted Chief Procurement Officer Ernie Barrera on Wednesday, and tape-recorded him telling her several times saying he could assure her there was no contract.

Now she is threatening to file a complaint against Castillo and Deputy County Attorney Mona Clark “for lying to the council.”

An earlier email exchange between Castillo and Iseri-Carvalho indicates attorney Gary Slovin was assigned to OPA, but Iseri-Carvalho says she has never received a copy of an award letter confirming it. Castillo said in the email exchange it was his understanding the award letter was sent to Slovin.

Iseri-Carvalho also complained that OPA was not involved in the discussion of the contract or the scope of services, something she says other agencies have told her is the norm.

Yukimura said Saturday that it has been “extremely disappointing” to see Iseri-Carvalho and Delaplane “resist answering legitimate questions” posed by the council, and even asking for an attorney.  

“No other department head in my memory has asked for an attorney when questioned about their budget or the implementation thereof,” Yukimura said. “That suggests that there is something to hide.”

The public, she said, has the right to know how public monies are used and how public operations are run, and part of “doing it right” is following ethics laws.  

“Based on information in the public record, it was our responsibility to ask the Ethics Board to look into this matter,” Yukimura said.

A roll call vote Wednesday sent Yukimura’s request to the Board of Ethics, five weeks after it was first brought to the council’s agenda, and more than two months after POHAKU first began being scrutinized at several executive sessions.

Yukimura said Wednesday at the council chambers that the current council members are paying more attention than ever to ethics.

“The council plays a very important oversight function and I think it is our responsibility to stand for the high standards of ethics,” she said. “If there are possible violations, I think it is appropriate for us to inquire with the ethics board.”