LIHU‘E — More than five months after Board of Ethics member Rolf Bieber filed complaints against three county officers for apparent violations of Charter Section 20.02D, the board has yet to clearly identify its position. “This gets weirder and weirder
LIHU‘E — More than five months after Board of Ethics member Rolf Bieber filed complaints against three county officers for apparent violations of Charter Section 20.02D, the board has yet to clearly identify its position.
“This gets weirder and weirder as we go along,” Bieber said at the board’s regular monthly meeting Thursday at the Mo‘ikeha Building in Lihu‘e.
He said he is “still perplexed” by the board’s actions, which included a number of items related to 20.02D.
The debate started with a communication to the board in which North Shore resident Walter Lewis questioned the legal opinion received from the Office of the County Attorney last month that reinforced an earlier opinion claiming that 20.02D must be read in conjunction with Section 3-1.7 of the Kaua‘i County Code, thereby allowing officers and employees of the county to appear on behalf of a private interest before other county agencies.
Specifically, Lewis criticized a section of the opinion referencing Hawai‘i Revised Statutes Section 1-15, which states that “Where the words of a law are ambiguous … every construction which leads to an absurdity shall be rejected.”
Deputy Attorney Mona Clark said 20.02D is “ambiguous on its face,” an assertion that Bieber said “insults my intelligence” because “the law is plain and reads plainly.”
Board Secretary Paul Weil, who has in the past described the logic employed by the Office of the County Attorney as “fatally flawed,” said he was “astonished” that Vice Chair Mark Hubbard — also treasurer of the Kaua‘i Planning and Action Alliance and one of the targets of the May complaints — could be satisfied with the opinion.
In a combative September e-mail exchange between himself and County Attorney Al Castillo that he provided to his colleagues Thursday, Weil complained of “lousy lawyering” and asked Castillo to amend the opinion to “close the serious gap.”
Attached to the three-page letter from Lewis were two questions asking that the county attorney advise how any county ordinances “provide guidance in interpreting the intent or application” of 20.02D and how an attorney who is a board or commission member representing private interests before a county agency would violate 20.02D provisions.
After a motion to forward the questions to the county attorney failed by a 3-4 vote with Bieber, Weil and Judy Lenthall — executive director of the Kaua‘i Food Bank and another complaint target — voting in favor, Weil said it was “a sad, sad day and a very poor result.”
A debate on the future of the board’s stance on conflicts of interest — a declaratory order authored by Hubbard — was called off after Clark told board members that adopting such an order, which she termed an “interpretive rule,” would require a full rulemaking procedure that involves public hearings.
Before the deferral to the November meeting, they decided they would look at the declaratory order in pieces, Lenthall saying the “two stumbling blocks” seem to be definitions of “appear” and “private interests.” Clark said her concern is the definition of “private interests.”
The board was unable to secure enough votes to move into any of the six executive sessions on the agenda. On five of those, the failures were due to a lack of a quorum after Chair Leila Fuller left the meeting for another pressing appointment and Bieber, Hubbard and Lenthall had to recuse themselves from voting on four matters because of their personal involvement in the issues.
Earlier, former Charter Review Commissioner Jonathan Chun — a private attorney whose request for an advisory opinion in early 2008 started the current firestorm surrounding 20.02D and whose resignation last month underscores the continuing confusion — returned to the Board of Ethics to ask whether members of the Kaua‘i Workforce Investment Board are subject to the county Code of Ethics.
While KWIB members are appointed by Kaua‘i Mayor Bernard Carvalho Jr. under an agreement with the state, according to a letter from Chun to the board, KWIB was not provided for in either the charter or any county ordinance. Office of Boards and Commissions Administrator John Isobe told the board that KWIB members are not confirmed by the Kaua‘i County Council.
For that reason, KWIB members are not subject to the Code of Ethics, the board decided by a 6-0 vote. Bieber abstained, saying he believes Chun is no longer a county employee or officer and does not qualify to request advice from the board.
To read Weil’s e-mail to Castillo, Lewis’ communication and questions and other requested government documents, visit www.kauaiworld.com/sunshine.
• Michael Levine, assistant news editor, can be reached at 245-3681 (ext. 252) or mlevine@kauaipubco.com. Paul C. Curtis, staff writer, can be reached at 245-3681 (ext. 224) or pcurtis@kauaipubco.com.
