by Andrew Walden
Is it an ethics violation if Mayor Harry Kim’s politically favored ‘protesters’ are allowed to break the law with impunity?
The Hawaii County Board of Ethics has been attempting to deal with that question for over a year now in response to an ethics complaint alleging that Mauna Kea protesters have been unethically allowed to get away with law violations at the blockade of the Mauna Kea Access Road.
On August 12, 2020, Hawaii County Counsel Joseph Kamelamela penned a 10-page legal opinion purporting to justify his refusal to grant the County Board of Ethics permission to hire an outside special counsel to conduct the ethics investigation.
Of course, most of Kamelamela’s assertions are rather obvious red herrings. Just for fun, see how many you can count.
On the bright side, Harry Kim won’t be mayor much longer. On Dec 7, 2020, Mitch Roth will be sworn in and he will be able to appoint a new County Corporation Counsel who is not already tied to an opinion justifying the Kim administration’s refusal to enforce the law against the Mauna Kea blockade.
Perhaps the new Corporation Counsel would be ideally suited to conduct the investigation without the need for outside counsel?
Meanwhile, here are the key excerpts from Kamelamela’s opinion.
(A link to the full text is below.)
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The Hawai'i County Board of Ethics ("Board") has requested that Special Counsel be hired to provide an opinion on the Board's initiation of an investigation into an alleged unfairness of the lack of enforcement of laws at a protest site or public sites on or near the Mauna Kea Access Road("MKAR"). The Office of the Corporation Counsel, through its deputies corporation counsel, has opined that the Board lacks authority or jurisdiction to conduct a hearing and/or investigation concerning the alleged lack of enforcement of laws at a protest site or other public sites on near the MKAR. Because the Board disagrees with the opinion of the Corporation Counsel, it now asserts a conflict of interest, and requests Special Counsel to resolve the disagreement.
For the reasons stated below, the Board's request for a Special Counsel is denied.
The Board is currently in the process of discussing the drafting of a resolution to conduct a hearing and/or investigation as to whether the Hawai'i County Code of Ethics is violated when a county officer or employee does not enforce the law at a protest site or other public sites on or near the MKAR on Hawai'i Island.
Moreover, this hearing and/or investigation involves the exercise of the First Amendment Rights by the citizens of this State of Hawai'i who have been peacefully protesting against the construction of the Thirty Meter Telescope on Mauna Kea.
II. QUESTION PRESENTED
Whether there is a real necessity to hire Special Counsel for the Board because it disagrees with the opinion of the Corporation Counsel that the Board has neither the authority nor the jurisdiction to pass a resolution to conduct a hearing and/or investigation regarding the alleged lack of enforcement of laws by County employees and officials at a protest site or other public sites near the MKAR.
Ill. SHORT ANSWER
The Board's disagreement with the opinion of the Corporation Counsel does not create a real necessity to hire Special Counsel in this matter….
…the Board's authority is to investigate the discharge of duties which is "to carry out or perform one's duties," not the perceived failure to discharge duties….
…The Board has no authority to investigate future action by the County Council to de-fund the police for any enforcement action relating to a peaceful protest on Mauna Kea. The Ethics Code does not include invalidation of ordinances or resolutions, prospective de-funding of County projects or services, or directives for the County Council for re-votes….
…The Board has no authority to investigate future executive action by a Mayor who considers the interests of all the stake-holders on Mauna Kea and seeks to find a path forward through dialogue rather than force….
…Clearly, it's the Chief of Police and his personnel, not the Board, that has the authority to plan and implement its operations in an event involving multiple dynamic situations to ensure peace and safety to the public, as a whole, on Mauna Kea….
…The Police Commission, not the Board, has oversight of the conduct of the Police Department and its members. Any action by the Board could be confusing and conflicting with the mission and goals of the Police Department and the Police Commission….
…The Board does not have jurisdiction over the MKAR because it is under the control and jurisdiction of the state Department of Transportation…. Furthermore, the Board does not have jurisdiction over the surrounding land near the MKAR because the land is owned by the State Department of Hawaiian Homelands and any violation of its rules and regulations is enforced by the State of Hawai'i.
…On December 27, 2019, the Hawai'i County Police Department issued a media release for the Daniel K. Inouye enhanced traffic enforcement update that indicated the department issued 8,324 citations and 78 people were arrested for 143 offenses from August 15, 2019 to December 18, 2019….. There is no question that the Hawai'i County Police Department has enforced the law on the Daniel K. Inouye Highway….
The Board cannot rule on issues involving a political question under the "political question doctrine." ….
Related: Is Allowing the Anti-Telescope Blockade Ethical?