LIHU‘E — The Kaua‘i County Office of the Prosecuting Attorney’s offender diversionary program was cleared this week of wrongdoing by special outside counsel. The counsel was hired by the Office of the County Attorney to render an opinion on the
LIHU‘E — The Kaua‘i County Office of the Prosecuting Attorney’s offender diversionary program was cleared this week of wrongdoing by special outside counsel.
The counsel was hired by the Office of the County Attorney to render an opinion on the legality of the OPA running “Productive Optimism Helps All Kaua‘i Unite,” or POHAKU, a diversionary program accused of not operating within county rules.
“The prosecutor did and does have the authority to establish the POHAKU program and diversionary programs generally,” stated Special Counsel Gary M. Slovin in his opinion released Tuesday.
POHAKU is described as a culturally appropriate diversion program for non-violent offenders. It was created by the OPA as a remedy for underfunded judiciary programs and an alternative to the traditional criminal justice process.
Participants are given the opportunity to give back to the community in a meaningful way by attending a personal responsibility class and performing culturally-based community service. Upon successful completion of the program, their cases are dismissed.
The primary concerns of the county attorney and some County Council members had to do with Strategic Justice Partners (SJP). The California-based company operates POHAKU along with alternative sentencing, diversion and early release programs for municipalities across the country.
County Budget and Purchasing Director Ernest Barreira, in the Department of Finance, said via email in June that the county does not have a contract in place with SJP. This prompted some County Council members to question if OPA had violated the state procurement code in contracting with SJP.
The opinion of the special counsel concluded that “implementation of the program did not violate the state procurement code.”
County Attorney Alfred Castillo said the special counsel notes that this is perhaps a “gray area that is not explicitly dealt with by the state procurement code nor does special counsel deny that an argument could be made that the procurement code applies.”
He said the opinion suggested that a memorandum of understanding between SJP and OPA is advisable to ensure responsibilities and parameters are laid out clearly.
Castillo said the legal analysis is an assessment of special counsel appointed to defend the OPA, and not a decision. He disagreed with the assessment that procurement laws were not violated as alleged by an internal procurement investigation conducted by the Department of Finance.
The Office of the County Attorney had issued its own legal opinion in April, which questioned OPA’s authority to run programs, refer participants or charge fees. This effectively halted diversion programs including Drug Court, Teen Court and POHAKU, according to OPA.
The OPA was informed by county administration that only POHAKU was in question, Castillo said. The other diversionary programs could and should continue to follow proper procurement procedures.
Some council members expressed concern that participants were paying SJP via credit card to participate. They felt the process might exclude some people who could not afford it.
Addressing the county attorney’s allegation that fees might be unconstitutional, Slovin wrote in his opinion that “case law is quite clear that the establishment of such a fee is legitimate.”
Other concerns involved First Deputy Prosecuting Attorney Jake Delaplane’s role as the registered agent for SJP. The appearance seemed to be outside the role of a public agency, said one council member.
Slovin wrote in his opinion that he saw “no evidence that the first deputy made any personal gain from this position.” He said it is natural for staff of a prosecutor’s office to administer any aspect of the criminal justice system.
Castillo said the opinion recommended against positions that create an appearance of impropriety even if none exist, and that no one in the OPA should occupy such a position.
According to Delaplane, the OPA refers an offender to the program that is run by SJP. The contract is between them and not with the county.
It is not unlike a court referral to drug treatment, where the agreement is between the offender and the facility, not the county, he said. It is the responsibility of the offender and the program to make sure everything is run according to terms and conditions.
Delaplane said OPA is involved as a bridge between SJP and partnering organizations, and ensures offender compliance as the extent of its involvement. SJP handles interviews and oversight of teachers, work sites and partners.
Slovin’s opinion said the approach of using Hawaiian cultural values as a means of instilling a positive perspective in the minds of offenders is legitimate. He urged a timely resolution of the issues or risk a prolonged controversy that impedes implementation of a pilot program that appears to have value.
“Diversionary programs have become an integral part of the overall criminal justice system,” said Slovin’s opinion. “This is a unique program whose goal is consistent with modern criminal justice practice in the sense that it was an attempt to find a way to prevent offenders from repeating offenses.”
County Attorney Shaylene Iseri-Carvalho said the diversion programs are about “positivity when facing adversity, and having the courage to make meaningful life changes.
“Too many have been hurt by losing the opportunity to participate in these helpful programs, but the damage stops today,” Iseri-Carvalho said. “Effective immediately, we will re-launch our referrals to these programs that promote justice, unity and healing throughout the community.”
The conclusion of Slovin’s opinion states that the finance director may have a different view, and Castillo said this view is recognized in Hawai‘i Revised Statutes as the authority on procurement matters.
“It is noteworthy that, although the prosecuting attorney asserts in the release that her office has been ‘cleared’ in this matter, that decision is ultimately up to the agencies that are investigating POHAKU,” Castillo said.
∫ Tom LaVenture, staff writer, can be reached at 245-3681 (ext. 224) or by emailing tlaventure@thegardenisland.com.
