Tuesday, August 14, 2012

Musings: Ethically Speaking

It's so nice to have a lovely cool, rainy morning, keeping the taro green and giving my buckwheat cover crop a little boost. And it was so nice to check The Garden Island today and actually see some news to go with what a man yesterday described as all the “opportunistic articles” — aka press releases — that usually fill the site.

Most noteworthy is the Board of Ethics finding that Councilman KipuKai Kualii, who also works for the YWCA, does indeed have a conflict of interest in matters related to county funding for his employer.

Still, until we see the actual advisory opinion, it's a little unclear from both the newspaper article and this recap of the meeting exactly what the conflict covers:

Letter dated 7/25/12 from Councilmember KipuKai Kualī‘i requesting an advisory opinion from the Board of Ethics as to whether he has a conflict of interest if he participates in County Council agenda items as it relates to the YWCA of which he is an employee as well as to recent and future budget matters involving the Office of the Prosecuting Attorney’s VOCA program, and the Office of Economic Development of which both fund some level of the YWCA’s programs. (By a vote of 7:0, the Board found that KipuKai Kualī‘i does have a conflict participating in and/or voting on County Council agenda items as it relates to the VOCA program and OED programs in conjunction with the YWCA; the County Attorney to provide an Advisory Opinion)

To me, it's kind of an ethical no-brainer, which is why I found it a little troubling that KipuKai didn't actually believe there was a conflict, even though he did recuse himself from voting on certain budget line items. Plus he waited until July 25 to seek an opinion from the BOE, and did so only because Councilwoman JoAnn Yukimura had made a complaint.

I've always liked Kipu Kai. I voted for him the first two times he ran and even contributed $25 to his campaign earlier this year. But I was disturbed when I saw him discussing and voting on issues that involved the Office of Prosecuting Attorney, its POHAKU program and Prosecutor Shaylene Iseri-Carvalho.  I don't know if he felt pressured by his boss, Renae Hamilton, who is a staunch Shay supporter, or if he is loyal to Shay himself. But I didn't think it was right for him to be voting on matters that involve an agency that gives his employer money.

The paper quotes a statement from KipuKai in which he says he sought the opinion out of “an abundance of caution.” It appears, in light of the BOE's action, it appears his caution was not abundant, but prudent.

Additionally, the paper reported that the BOE didn't take action on the Council's request to investigate POHAKU. However, it wasn't until the third paragraph that this reason was revealed: an investigation is already under way. The BOE also made it clear that Walter Lewis, who opined at great erroneous length about POHAKU in Sunday's paper, didn't know what he was talking about regarding how an ethics complaint can be initiated.

Which leads me other falsehoods promulgated by Lewis, as well as an“Anonymous” in the comment section of this blog. Namely, that the appointment of Special Counsel for the OPA is “not complete," and so BOE action should be delayed, and that Special Counsel Gary Slovin was hired only to write an opinion and was then dismissed by County Attorney Al Castillo.

In fact, according to county spokeswoman Beth Tokioka:

There should be no reason they [OPA] wouldn't have access to their special counsel, which is the firm Goodsill Anderson Quinn and Stifel. The contract is still in force and we have received no invoices to date so presumably there is still funding left. If for some reason OPA has chosen to sever their relationship with the firm would probably be a question for Shay or Jake [Delaplane, first deputy].

I asked her to please forward them my inquiry. 

Getting back to the ethics investigation into POHAKU, the Aug. 8 BOE special agenda included an executive session related to “Special Counsel Motion to Compel compliance with a Subpoena Duces Tecum issued by the Board of Ethics.”

Yes, the OPA was withholding information from the investigator. But I've learned Special Counsel for BOE and OPA —  more proof OPA does have representation — worked it out  without having to go to court.

Which leads me to how the Office of Information Practices yesterday had to again order OPA to respond to my request for public records. This is the third time OIP has had to step in and direct OPA to comply with the law. To me, that speaks volumes about the way Shay does business —  no qualms about flouting the law and needlessly costing agencies and people time and money.

Specifically, I'm seeking “All expenditures for accessories identified explicitly or implicitly with OPA’s POHAKU diversion program, including, but not limited to, orange and black T-shirts, orange and blacks hopping bags, orange and black hand-held fans, pens, baggies of Hawaiian salt and bracelets, as well as OPA POHAKU booth fees for the County Farm Fair in August 2011.”

Shay and Jake have claimed no county money was spent on POHAKU. So how were these items purchased? Meanwhile, Shay has repeatedly claimed that she and POHAKU were “cleared” by Slovin's opinion. If it's all good, then Shay and Jake should kick down the expenditure info and let us decide for ourselves.

Along those lines, I asked Jake for a copy of Slovin's opinion when I first heard it was out. But rather than provide it, so that we could read it for ourselves, OPA chose to write a press release spinning the information. It was only after the County Attorney rebutted the release, and TGI had already printed a story using the spun info, that the opinion was released. 

And finally, attorney Charley Foster, who was recently hired by the OPA to write press releases and handle appeals, has had a recent string of pro-Shay posts on his blog. I wonder if it's included in the 60 to 70 hours that Shay requires her deputies to work each week, or if he's just giving her a little bonus.


Anonymous said...

The Board of Ethics refused to review POHAKU issue because there is no ethics issue to investigate. It looks legit. Sorry Joan, you're wrong on this one. Zing!

Anonymous said...

From http://www.kauaieclectic.blogspot.com/2012/06/council-asks-for-ethics-probe-of.html

Rapozo agreed. “I'm under the impression this matter has already been forwarded to the Board of Ethics so I would agree it's duplicative and not necessary for this body because it's already being addressed in that capacity.”

Joan Conrow said...

Boy, the denial runs deep. A BOE investigation into POHAKU is already under way.

Anonymous said...

Kipukai used to work for OPA. So did Mel. Both should recuse themselves from any Council matters involving OPA, shouldn't they?

Anonymous said...

Just because Shay's Mel's boss and Kipukai's employer gets money from Shay doesn't mean there's a conflict. This is Shay World.

Anonymous said...

God the bullshit runs deep and far. Its ridiculous. Get rid of the whole lot and bring in new blood.

Anonymous said...

If Mel is still being paid by OPA - then why, OH why, is he allowed to vote on ANY OPA bill/request/funding?

Anonymous said...

Who says he is being paid by OPA? You better check your sources becuase they don't know what the hell they talking about!

Anonymous said...

Who says he is being paid by OPA? You better check your sources becuase they don't know what the hell they talking about!

August 14, 2012 3:43 PM

trippy - you can't read or spell...because if you could - you would understand that IF is a conditional statement...and BECAUSE is not spelled the way you tried....

Anonymous said...

Mel says he's being paid by OPA.

Anonymous said...

Why has TGI been printing headlines/stories that end up supporting Shay yet as you dig further, the story ends up changing. Hum I wonder why?

Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...

If one goes down, all will go down.

Vote for KOLLAR

Vote for Hooser, Yukimura, Bynum, Furafaro (he is starting to see the light).

Let the people Vote for a county manager position (not someone from Kauai).

Kauai needs a FBI office.

Let's End the Corruption of Kauai's Mafia

Anonymous said...

Yes these same dirt bags has been trying to set me up for some years and they will use anybody to do their evil deeds. ANYBODY (Crackheads and all)!!!!!!

Anonymous said...

Jake Delaplane is an example of a person not from Kauai that is easily manipulated and now his professional conduct is in question.

Sometimes you have to wonder if the master of the bootlickers are leading them off of a cliff.

Anonymous said...

Looks like Charley's doing PR work full time.

Anonymous said...

I read Charley Foster's analysis of the procurement code's applicability to the arrangement between OPA and Strategic Justice Partners. Now I know why he's writing press releases for Shay instead of practicing law.

Charley writes:
"Waikīkī Windriders refers specifically to HRS § 103D-102, which states that the Procurement Code “shall apply to all procurement contracts made by governmental bodies whether the consideration for the contract is cash, revenues, realizations, receipts, or earnings, any of which the State receives or is owed; in kind benefits; or forbearance…”
“Consideration” in contract law refers to the thing – the reason or motive – that induces a party to enter into the contract: the money you pay in exchange for a car, for instance. It is required, in fact, for there to exist a contract. That is why the procurement code requires consideration in the first place.
Incidental costs for promotional purposes do not constitute consideration creating a contract, and proof that moneys were spent for promotion isn’t going to get this case around the law laid out in Waikīkī Windriders."

Charley overlooks the phrase "in kind benefits", which is defined as benefits provided for free or at a reduced cost. In this case, the oral contract required OPA to provide the following "in kind beneftis":
-deputy prosecutors screening cases to determine which defendants would be eligible for SJP's diversion program
-deputy prosecutors advising defendants of the benefits of SJP's diversion program
-deputy prosecutors giving defendants bank slips and instructing defendants to deposit the application fee into SJP's account
-OPA's marketing the program on SJP's behalf, which included:
-approximately 50 community meetings attended by Shay and her staff
-providing a booth at the Farm Fair
-purchasing and distributing Pohaku orange and black T-shirts, orange and black shopping bags, orange and black hand-held fans, pens, baggies of Hawaiian salt and bracelets

There may be other in kind benefits that OPA provided to SJP, but, as Joan has learned, Shay will not voluntarily disclose what should be public information.

Charley's perspective is limited (to put it kindly) and no doubt colored by the fact that Shay would fire him if his press releases/blog posts said anything critical of his boss.

The real problem is that Shay apparently claims that there is no written contract between SJP and OPA or the County. A written contract would clearly set forth SJP's and OPA's respective obligations. An oral contract allows Shay and her minions to maintain that the terms are whatever they say it should be.

Anonymous said...

So Shay and POHAKU are just friends with "in kind" benefits?