Mayor Carvalho and Gasgate

SUBHEAD: Did the Mayor violate the law using a county credit card? Did he disqualify himself from office by refusing to incriminate himself?

By Ken Taylor on 1 February 2014 in Island Breath -
(http://islandbreath.blogspot.com/2014/02/mayor-carvalho-and-gasgate.html)

[IB Publisher's note: The following is a compilation of a few emails recently submitted to us by Ken Taylor involving the controversy over an investigation of Kauai Mayor Carvalho in the possible misuse of a county gas credit card.]


Image above: A gift card for Shell gasoline. From (http://shellvzine.com/vpower/15/53).

Glenn Mickens and I read comments found on pages 7, 8, and 9 of this complaint in regard to a County Fuel Audit that indicated a high elected Kauai official was using a County gas credit card for personal vehicle use. Among other things the complaint said:

27. The Staff Aufitor's review revealed. among other things, that a certain high elected Official ("Official A") used a County gas card assigned to a seldom-used Transportation Agency vehicle to purchase fas for Official A's private vehicle. This meant that Official A was using the County resources and taxpayer's monies for what appeared to be a personal purpose.

There was concern that Official A's conduct was a violation of law.

See PDF here (http://www.islandbreath.org/2014Year/02/140201complaint.pdf).

Based on that document Glenn Mickens and I, Ken Taylor, analyzed Hawaii statute 78-9:

78-9 : Hawaii Statutes - Section 78-9: Failure to appear or testify, termination of employment. Search Haw. Rev. Stat. § 78-9 : Hawaii Statutes - Section 78-9: Failure to appear or testify, termination of employment. ·         Search by Keyword or Citation  If any person subject to sections 78-8 to 78-11, after lawful notice or process, wilfully 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 - (1) the government, property or affairs of the State or of any political subdivision thereof, or (2) the person's qualifications for public office or employment, or (3) the qualifications of any officer or employee of the State or any political subdivision thereof, on the ground that the person's answer would tend to incriminate the person, or refuses to testify or to answer any such question without right, - the person's term or tenure of office or employment shall terminate and the office or employment shall be vacant, and the person shall not be eligible to election or appointment to any office or employment under the State or any political subdivision thereof. To the extent that the State is without authority to require, under the constitution or laws of the United States, compliance by any public officer or public employee herewith, sections 78-8 to 78-11 shall not apply to the officer or employee, but the sections shall apply to the extent that they or any part thereof can lawfully be made applicable. [L 1951, c 177, §2; RL 1955, §5-4; HRS §78-9; gen ch 1985; am L 2001, c 83, §3]

See more at: (http://codes.lp.findlaw.com/histatutes/1/7/78/78-9#sthash.PJ2VowCE.dpuf)

Glenn Mickens and and I subsequently wrote a letter to Kauai Mayor Bernard Carvalho that read as followes:

TO THE HONORABLE MAYOR BERNARD CARVALHO 4444 RICE ST. STE LIHUE, HI 96766 ALOHA MAYOR CARVALHO: Section 78-9 of the Hawaii Revised Statutes provides that if after lawful notice or process an official appears before a court or an administrative body and fails to answer any question regarding government property or affairs of the State or any political subdivision on the grounds that the person's answer would tend to incriminate the person, the person's tenure in office shall terminate and the office or employment shall be vacant. It seems evident that our state intended that a county or state employee could invoke the privilege contained in our Federal constitution on a work related matter to seek to avoid criminal conviction but that such such invocation would result in termination of the employee's position. We are informed that after having been duly served you appeared pursuant to an investigation being made related to a Fuel Audit conducted by the Kauai County Auditor and on that occasion you refused to answer inquiry as to your conduct on the grounds that the answer would tend to incriminate you and that at such appearance you were represented by Mr. Alfred Castillo, Kauai County Attorney. If the information mentioned is inaccurate in any material respect or if you believe that the statute is inapplicable to your conduct, we are asking for your statement as to the reasons for your belief. Otherwise we will expect that you take action to comply with the provisions of HRS Section 78-9 in order that the Council may proceed in accordance with the terms of the Kauai County Charter to fill the vacancy in the mayoral office. A prompt response to this letter is requested. Respectfully yours, _________________________ Glenn Mickens _________________________ Ken Taylor

We did receive a reply to our letter from the Office of the Mayor which was as follows (http://www.islandbreath.org/2014Year/02/140201response.pdf):

From THE OFFICE OF THE MAYOR County of Kaua‘i, State of Hawai‘i 4444 Rice Street, Suite 235, Līhu‘e, Hawai‘i 96766 TEL (808) 241-4900    FAX (808) 241-6877 Bernard P. Carvalho Jr. Mayor Nadine K. Nakamura Managing Director Via Email: taylork021@hawaii.rr.com; glennruth2030@gmail.com January 16, 2014 Mr. Glenn Mickens Mr. Ken Taylor Dear Glenn and Ken: Mahalo for your letter dated January 14, 2014, regarding Section 78-9 of the Hawai‘i Revised Statutes. Please be advised the matter in question is being researched. We will respond to your questions once the research has been concluded. Best regards, Beth Tokioka Director of Communications C:    Bernard P. Carvalho, Jr., Mayor

Since then Michael Sheehan has responded to these events by requesting his lawyer, Richard E. Wilson, to write a letter to Mayor Carvalho. See (http://www.islandbreath.org/2014Year/02/140201formermayor.pdf):

From the Law Offices of Richard E. Wilson, LLC 850 Richards Street, Ste. 600 Honolulu, Hawaii 96813 Telephone: (808) 545-1311 Facsimile:  (808) 545-1388 February 1, 2014 Former Mayor Bernard Carvalho County of Kauai 4444 Rice Street, Ste. 235 Lihue, Hawaii 96766 Re: Haw.Rev.Stat. §78-9 Dear Former Mayor Carvalho: I correspond on behalf of my client, Michael G. Sheehan, a landowner and resident of Kauai.  Mr. Sheehan is very concerned about your actions and asked me to pen this letter. It is Mr. Sheehan’s understanding that in your capacity as Mayor of Kauai, you 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. Haw.Rev.Stat. §78-9 states as follows: If any person subject to sections 78-8 to 78-11, after lawful notice or process, wilfully 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 (1) the government, property or affairs of the State or of any political subdivision thereof, or (2) the person's qualifications for public office or employment, or (3) the qualifications of any officer or employee of the State or any political subdivision thereof, on the ground that the person’s answer would tend to incriminate the person, or refuses to testify or to answer any such question without right, the person’s term or tenure of office or employment shall terminate and the office or employment shall be vacant, and the person shall not be eligible to election or appointment to any office or employment under the State or any political subdivision thereof.  To the extent that the State is without authority to require, under the constitution or laws of the United States, compliance by any public officer or public employee herewith, sections 78-8 to 78-11 shall not apply to the officer or employee, but the sections shall apply to the extent that they or any part thereof can lawfully be made applicable. As Mayor at the time, you were a person subject to sections 78-8 to 78-11.  See, §78-8 (The persons subject to sections 78-8 to 78-11 are those elected to or appointed or employed in the government of the State or any county, or in any political subdivision thereof, or appointed to or employed in any office or employment any part of the compensation of which is paid out of public funds.)(emphasis added). The procedure for your removal is as follows: If any person subject to sections 78-8 to 78-11 refuses to appear or refuses to testify under any of the circumstances contemplated in section 78-9, the presiding judge or officer of the court or body before which the default or refusal occurs shall certify the fact thereof to the appointing or employing authority having cognizance of the person as a public officer or public employee and to the comptroller or other disbursing officer who issues warrants or checks to pay the person for the person’s services as a public officer or public employee.  If the default or refusal occurs before any court or body whose presiding judge or officer may not be required by the legislature to make and file such a certificate, then (1) the presiding judge or officer may make and file the certificate, and (2) the attorney general of the State, upon learning of the default or refusal, shall make and file the certificate if the presiding judge or officer of the court or body has not filed the same.  Upon receiving a certificate, (A) the appointing or employing authority  shall remove or discharge the person from office or employment, and (B) the comptroller or other disbursing officer shall make no further payments of public funds to the person, except to pay the person the salary, wages, bonus, or other compensation to which the person otherwise would be entitled if the person were voluntarily terminating the person’s office or employment on the day the order is served on the comptroller or other disbursing officer.  - Section 78-10. Your tenure as Mayor has ended. Mr. Sheehan’s sole question is how do you intend to proceed? You can acknowledge that you are no longer the Mayor of Kauai pursuant to §78-9, and so advise the Council.  That would be Mr. Sheehan’s preferred avenue.  At least you would be able to control the news release and leave 4444 Rice Street on your own terms.  The alternative is for Mr. Sheehan to obtain the relevant transcript, provide it to the Attorney General and then demand your removal in compliance with §78-10.  If you choose the latter, you will have no control over the situation and it will be a media circus.  Mr. Sheehan would, of course, advise the media that you refused to voluntarily leave which required him to seek your removal.  The choice is yours. If we do not hear from you by the close of business, February 5, 2014, we will proceed accordingly, and without further notice to you. Very truly yours, Richard E. Wilson REW/asa cc:    Michael G. Sheehan

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