I don't know, I tell them. It's my understanding that criminal intent is one of the elements required for successful prosecution. And Bernard Carvalho was reportedly doing what Bryan Baptiste, Maryanne Kusaka and possibly other mayors had done before him, which is to use a fuel card that was assigned to another county car to gas up his own vehicle.
Still, a May 1 report prepared by the Honolulu law firm of McCorriston Miller Mukai MacKinnon LLP, in response to the county Auditor's request for investigative assistance, states:
Mayor Carvalho's use of County fuel demonstrates questionable fiscal policies that range from poor accounting to a possible breach of public trust. Further, the lack of legal authority for the Mayor to use County resources (fuel) for personal purposes, such as commuting to and from work, evidences a misappropriation of County property with resultant possible criminal liability. The failure to report fuel, a fringe benefit, as income, is also contrary to Federal Tax Code.
Some $5,830 was charged to the fuel card in 2009 and 2010, the period covered by the audit, according to the report. It's unclear whether the card was still being used in 2011 and 2012.
The report goes on to state that the matter was initially brought to the County Council “and did not receive warranted attention,” which led to the law firm being brought in to investigate. The law firm recommended the issue be referred to KPD and the Office of Prosecuting Attorney, as well as the state Attorney General. It was recommended the tax issue be brought to the attention of the county Finance Department, and if necessary, state tax office and IRS.
The law firm also suggested that county officials should develop a clear policy regarding the mayor's fuel usage. If such usage is permitted, the report states, then a budget line item should be created to fund the allowance.
KPD and the OPA, as I have previously reported, did prepare an arrest warrant for the mayor shortly before the election, but the Circuit Court judges refused to sign it. Hawaii News Now reported that the AG's office declined to prosecute. I do not know why, but I've been told that one or more elements in the case were missing, perhaps criminal intent.
The report indicates that the county budgets for those years did include a monthly auto allowance for the mayor. However, the fuel card that Bernard allegedly used was assigned to another vehicle in the Transportation Agency fleet and was charged as an expense to that department, rather than his own office.
Meanwhile, as I reported last Thursday, the grand jury returned an indictment against Human Resources Manager Janine Rapozo, who allegedly issued the fuel card to the mayor when she was running the Transportation Agency. She is charged with felony theft and 21 misdemeanor charges of falsifying records, for allegedly failing to reconcile the transactions under procedures used for other vehicles. Her bail is $500 and arraignment is set for Nov. 27. Her attorney, former county Prosecutor Craig DeCosta, is quoted in today's The Garden Island saying that he plans to file a motion to dismiss the charges.
So yes, it does seem that things aren't quite on the up and up with the mayor's fuel use. Unfortunately, the mess has been further muddied by Prosecutor Shaylene Iseri-Carvalho. The timing of her actions certainly gives the distracting appearance of a political vendetta, especially when we're talking about matters that took place in 2009 and 2010.
Stymied in her attempt to take down her desired prey, the mayor, Shay instead went after a weaker member of the herd: Janine. Btw, though I thought Janine was hired by the mayor, who did bring in her husband, Lenny Rapozo, to run county parks, she actually dates back to the Kusaka regime.
Someone left a comment saying that County Auditor Ernie Pasion had tried to move more quickly, but he was hindered for months by County Attorney Al Castillo, who reportedly said he had no authority to investigate. However, when I asked Ernie if this was true, he replied, “No Comments.” I'd also been told that Ernie was directed to pursue the fuel audit by Shay and Councilman Mel Rapozo in an attempt to burn the mayor.
Ernie said he can conduct audits at the request of the public, individual Council members and the full Council by resolution. However, he said, “All of our audits (past and in process) have been self-initiated so far.”
When I first broke the gas theft story back in July, I got this comment from county spokeswoman Beth Tokioka:
We have participated in an audit of the County's fuel use system, which included questions about the Mayor's fuel use. The administration has cooperated fully with this audit. As explained to the auditors, the Mayor has followed fuel use practices that date back at least to the 1980's. We have not been apprised of the current status of this inquiry or its referral to another agency.
It seems that Janine is being asked to fall on her sword, when the mayor could've 'fessed up when things were first brewing and said, OK, this has been the practice, but let's just really check it out and see if it's fully legit. Because even if it was a decades-old practice, I think most people of conscience would see at least a small red flag waving if we were issued a card assigned to another vehicle and told to gas up. Wouldn't the reasonable question be, why don't I have my own fuel card, especially if I've been given a gas allowance?
County officials don't seem to understand that even the appearance of impropriety can be politically deadly.
In the meantime, I am trying to learn what evidence was presented to the Grand Jury in securing the indictment against Janine. I've also been told that both Shay and her first deputy, Jake Delaplane, used county vehicles to commute to and from work, which the investigator's report indicated was a no-no for the mayor. It's unclear whether the OPA fuel use was also investigated, as I have not been able to get a copy of the auditor's report. I requested it as a public record, but Ernie would not release audit files or investigative reports because "criminal investigations are still in progress."
In any case, it sounds like it's time to for the county to be a little more careful about its vehicles and fuel. Because when people are already making over $100,000 a year — far more than the average taxpayer on this island — I don't think it sits right with most voters to think they're also gassing up on the county dime, even if it's not technically a crime.