by Andrew Walden

Did Kauai Mayor Bernard P. Carvalho, Jr. automatically vacate his position by invoking his 5th Amendment right not to testify before an audit committee in an August, 2010 gas card investigation?

Anti-GMO activists are citing a little-used 1951 Hawaii Territory law designed to get rid of Communists or others who took the 5th when called to testify before McCarthy-era  investigative committees.

In a February 1 letter written on behalf of Kauai anti-GMO activist Michael Sheehan, Honolulu attorney Richard E Wilson claims “the former Mayor” triggered his own vacancy when he:

“…refused, following lawful notice, to answer questions asked of you regarding the ‘property and/or affairs’ of the County of Kauai on the ground that your answer would tend to incriminate you. More specifically, you refused on the advice of counsel to answer questions in connection with an investigation undertaken by the County Auditor regarding the Fuel Audit (‘gas card scandal’). Pursuant to Haw.Rev.Stat. §78-9, you are no longer the Mayor of Kauai.”

HRS 78-9, holds:

“If (an elected or appointed official) … willfully refuses or fails to appear before any court or judge, any legislative committee, or any officer, board, or commission, or having appeared refuses to testify or to answer any question regarding … the government, property or affairs of the State or of any political subdivision thereof … on the ground that the person's answer would tend to incriminate the person … the person's term or tenure of office or employment shall terminate and the office or employment shall be vacant….”

In response to an earlier letter, Kauai County Attorney Al Castillo January 29 writes: 

“It is our position that section 78-9 of Hawaii Revised Statutes is arguably not applicable to the situation in question, and may be unconstitutional.”

In a February 1 news release, Mayor Carvalho’s attorney Eric Seitz writes:

“This is old news, and curiously comes at a time when the Mayor is ramping up a re-election campaign,” stated Eric Seitz. “These allegations are without merit, and an examination of the facts will show the Mayor has done nothing wrong.”

The allegations surfaced in two letters sent to the Mayor and other county officials in recent weeks, alleging that he violated state law during an audit investigation that began in 2010.

“These are essentially the same allegations that were brought up two years ago by the Mayor’s political enemies – one of whom no longer holds office and we have heard may be considering a run for elective office again,” stated Seitz.

In April of 2012, County Auditor Ernie Pasion published an interim report regarding the ongoing fuel audit that implied that the mayor and other county employees may have illegally used county fuel. The attorney general’s office was asked to review the allegations against the mayor and found that there was no basis for further criminal investigation.

Immediately following her defeat in a re-election bid in November 2012, the county’s former prosecuting attorney, Shaylene Iseri-Carvalho, sought to arrest the mayor on charges relating to the fuel audit. However, she was unable to secure an arrest warrant due to the lack of probable cause. Prosecuting Attorney Justin Kollar, who took office in December 2012, has declined to pursue the matter.

“Multiple law enforcement entities have looked at this and said there is nothing there,” said Seitz. “We consider these letters to be nothing more than an attempt to discredit a popular, honest and effective politician at the outset of a re-election campaign.”

In a January 28, 2014 letter to numerous Kauai officials, anti-GMO activist Ken Taylor and Kauai resident Glenn Mickens helpfully point out that in the event of a vacancy, the County of Kauai Charter provides for the majority anti-GMO Council to select a new county mayor.  Taylor and Mickens earlier teamed up to write an October 31, 2012 letter accusing Castillo of ethics violations stemming from Castillo's investigation of Iseri-Carvalho’s office in the runup to the 2012 elections.

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LINK: Sheehan Letter

LINK: Mickens-Taylor letters

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