The Kauai County Council yesterday voted to ask the county Board of Ethics to investigate Prosecutor Shaylene Iseri-Carvalho's hallmark POHAKU court diversion program.
The vote was 5-2, with Councilmen Mel Rapozo and KipuKai Kualii in opposition. Councilwoman JoAnn Yukimura asked the Council to approve the investigation request after various irregularities were revealed regarding the POHAKU contract and structure.
The action followed nearly three months of deliberation and several closed sessions with County Attorney Al Castillo, who earlier reported that both the state Attorney General and county Finance Department are investigating Iseri-Carvalho and her program.
Still, Kualii termed the call for an ethics investigation “premature.” Kualii said he had asked Council staff to check into past instances of the Council as a whole making such a request to the Board of Ethics, but staff couldn't find anything for at least 10 years back.
“I think this is kind of an unprecedented move,” Kualii said. “I think the internal mechanism to determine if there is any impropriety is in mode and I don't think we should be jumping the gun for whatever motivation. I don't think it's prudent or necessary at this time.”
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.”
But both Yukimura and Councilman Tim Bynum said the Council is sworn to uphold the County Charter and so is duty-bound to refer the matter to the Board of Ethics.
“The Council plays a very important oversight function and I think it's our responsibility to stand for the highest standard of ethics,” Yukimura said. “I don't think it's of any matter that there hasn't been a referral before because I think this Council is paying a lot more attention to ethics than ever before,. And just because it didn't happen in the past doesn't mean it shouldn't have happened in the past.”
Rapozo, however, said the Council has been doing its duty by discussing the issue in executive session. “I don't think any of us have failed in our duty to uphold the charter. I think it's being addressed.”
Bynum said the Council had dragged its feet far too long, even after the County Attorney warned that delays could increase county liability. He also noted the ongoing investigation into possible violations of the state procurement law is separate from an inquiry into whether ethical lapses occurred.
Although Yukimura said the Council is “not making a statement on whether there is any violation,” Councilwoman Nadine Nakamura had previously supported deferring action on the issue, saying, “Once we get the [County Attorney's] report …. we can then determine what more needs to be done.”
By voting for the investigation now, after having received that report, it would seem to indicate a Council majority believes there is cause for concern. Under the Charter, ethics violations could result in a person being fined, suspended or even removed from office.
Nakamura asked Deputy County Attorney Mona Clark whether any investigations are currently underway within the State of Hawaii relating to the creation and operation of the POHAKU program. Clark hedged, saying ethics is separate from procurement.
“Is there an investigation going on in respect to procurement?” Nakamura pressed, noting that “a concern was raised that it sometimes hampers an investigation if there are two simultaneously going on. I just want to have some reassurance that is not going to be a problem here.”
At that point, Castillo intervened and said an ethics review would not interfere with any other investigation. In a previous executive session that was inadvertently broadcast, Castillo had urged the Council to refer the matter to the Board of Ethics.
Both Council Chair Jay Furfaro and Councilman Dickie Chang also voted to send the matter to the Board of Ethics. Neither commented publicly, aside from Furfaro asking whether Iseri-Carvlaho had secured the special counsel she requested. He was told she had.
The Council previously approved spending up to $15,000 on special counsel for Iseri-Carvalho, who charged the County Attorney's office with a conflict of interest and refused to answer questions about POHAKU until she was given her own attorney.