Musings: Rock Bottom

Kauai Prosecutor Shaylene Iseri-Carvalho may be running afoul of the county code of ethics and state procurement law with the POHAKU program she launched last year.

Councilwoman JoAnn Yukimura said she was concerned about the prosecutor's relationship to Strategic Justice Partners, a restorative justice consulting company that is listed on the POHAKU website. A search of state business registration identifies Jake Delaplane, the first deputy prosecutor, as Strategic Justice Partner's agent, and its address as the Office of the Prosecuting Attorney.

“I think that's a violation of the ethics code because you're using public property for private use and there's a potential conflict that Jake would be their agent,” JoAnn told me during a break in yesterday's Council meeting.

Some people are given the choice of going through POHAKU to get their misdemeanor charges dropped. But they must pay $200 to register for the one-day class, and it appears the money is going to Strategic Justice Partners. 

JoAnn also had questions about how Strategic Justice Partners had come to provide services to POHAKU. In checking with the county Purchasing Department, I found it has no record of a request for proposal (RFP) related to the POHAKU program, and no contracts for services related to the POHAKU program.

“This is raising serious questions about the procurement process, especially because she's [Shay's] an attorney and the highest paid department level manager, so she should know,” JoAnn said.

County procurements are governed by HRS 103D, which generally requires competitive bidding. Violations can carry misdemeanor charges.

JoAnn had planned to ask Shay about POHAKU's operations during yesterday's budget hearing. But County Attorney Al Castillo advised against any inquiries related to the program, saying Shay's rights could be violated if she was questioned without having an attorney present.

So why does Shay even need legal representation — or as Al put it, someone to tell her which questions she should and should not answer — during a routine county budget hearing? Is she legally vulnerable? 

Other questions remain about the financial structure of the POHAKU program. In checking with the county Purchasing Department, there are no invoices and expenditures associated with POHAKU, which has been running since last year. It's also unclear exactly where the registration fees paid by the 49 participants to date have gone. People must deposit payment at Bank of Hawaii or pay on line. When I called the toll-free helpline on POHAKU's on-line registration form, I was directed to a voice mail that said I had reached Strategic Justice Partners and Resolve Class dot com.

The County Charter's Code of Ethics states: No officer or employee of the county shall: C. Acquire financial interest in business enterprises which he may be directly involved in official action to be taken by him. E. Use his official position to secure a special benefit,privilege or exemption for himself or others. F. Use county property for other than public activity or purpose.  

A violation can be grounds for suspension or removal from office. Shay is facing re-election this year.

The Council has had some inkling of problems since at least April 4, when Council Chair Jay Furfaro acknowledged in public session that he had asked the prosecutor to answer questions about POHAKU and a related grant program. Al also said he had received “a couple of confidential communications from the Council” about the program.

Yet the Council has repeatedly deferred executive sessions that were set precisely to fill everybody in.

Just this last Wednesday, the county attorney's office was practically begging the Council to accept a briefing on the issue, citing potential liability concerns. But even then a majority turned it down. Instead, they acquiesced to Shay and agreed with her request to put it off for two weeks.

Jay vowed there won't be any more deferrals, and JoAnn has already asked to have Shay come back and answer questions about POHAKU for the budget. But in light of the serious squelching that's already gone on, it's hard to imagine Shay will ever be asked these hard questions in a public forum — if at all.