New Ethics Complaint names Corporation Counsel, Dept. Director, and five Council Members

To start here are several documents that explain and support an ethics complaint that was filed by Christopher Fishkin (see PDF below).

Mr. Fishkin is the writer and host of Maui Real News, a weekly news feature airing on Akaku and online, produced by Maui Causes.

Because this complaint has been submitted just to the Maui Ethics Board it draws short of characterizing criminal acts, as the board will not entertain anything criminal. The criminal acts associated with this particular case are being presented to Maui’s Prosecutor, Don Guzman and to the FBI.

First, here’s the live link to the 2018 Maui Causes petition with nearly 400 signatures demanding the County Council repeal the bogus language inserted into Maui’s Title 18 as a result of Public Works and Corporation Counsel hijacking the 2015 Upcountry Water Bill.

Click for PDF of Petition

This past week the Council finally acknowledged in a new bill sent as Committee Report 19-100 Click for PDF that the language manufactured by Public Works and Corp Counsel was not consistent with the intent of the bill that was passed in 2015. Rather than vote to remove the bogus language when they had the chance last week, 5 of the 9 Council Members voted to return the bill to committee and so are prolonging the harm that is being done to taxpayers, as commercial developers continue to be awarded free roadway improvement exemptions that no one voted to give them.

Prolonging that ongoing harm was the catalyst for today’s ethics complaint.

The back and forth of the 2015’s bill language is just the top level of today’s complaint.

Matters are further complicated in several important ways:

Dept Corp Counsel Jennifer Oana has been advising the Council on the new bill to remove the unlawful language that she herself wrote in 2015. Ms.Oana is conflicted in this role, which should be played by a legislative attorney from Council Services rather than anyone from Corp Counsel, least of all Ms. Oana herself.

Ms. Oana is further conflicted in that she and other members of Corp Counsel, Department Directors, as well as past Council Member Elle Cochran, have all been named in lawsuit brought forth in 2017 by a private citizen, Eric Poulsen, over the refusal of all to retract and reconcile the bogus language when it was first discovered in 2016.

Numerous times of late, Deputy Corp Counsel John Holiona, Director of Corporation Counsel Moana Lutey, past Public Works Director David Goode, Council Member Alice Lee and others, have testified in Council sessions that the suit brought by Eric Poulsen was “dead”, when in fact it is not.

On June 21, 2019, Corp Counsel wrote Mr. Poulsen (2 Lot CC Settlement Response.PDF) stating a settlement agreement he proposed would not be passed on to the Council for consideration because his case has been “disposed” of by the court.  Click for PDF

First, Judge Rhonda Loo’s ruling against Mr. Poulsen’s action cited only a 90-day claim limitation to Sunshine violations with regard to the Council hearings on the 2015 Upcountry Water Bill.

Loo completely ignored the fact, which the Council has now expressly confirmed, that the bogus language manufactured by Public Works and Corp Counsel was fundamentally different from the stated intention of the original bill. That’s a violation County Rule 4(D) and has absolutely nothing to do with Sunshine.

Judge Loo’s rulings are commonly overturned on appeal.

More importantly, Judge Loo’s ruling, made in February of 2018, was never filed as a Judgment by Corp Counsel, which in itself is a violation of the Hawaii Rules of Professional Conduct for licensed attorneys. Without that filing, Pulse’s case is actually still active. Regardless, Corp Counsel’s characterization to Poulsen, who is Pro Se, that his case was ‘disposed of” because of a judge’s single ruling is absurd and extraordinary disingenuous of Poulsen’s rights to appeal.

At our urging, Council Member Kelly King on Aug 20th inquired as to the status of Mr. Poulsen’s case (PAF 19-260a.pdf) and miraculously after months of denying Mr. Poulsen his constitutional rights, on Aug 21, Corp Counsel finally moved to file Judge Loo’s ruling. Click for PDF. Mr. Poulsen can’t file his appeal until Corp Counsel files Judge Loo’s ruling and he’s vowed to follow on their heels.

Long-standing patterns of abuse:

Secret infrastructure exemptions awarded to developers is an established pattern of abuse in Maui County dating back to 1974 with the origination and writing of thousands of “Three-lot-or-less Deferral Agreements” for which, to this day, the County has never created a mechanism to collect upon. A deferral with no intent to collect is secretly an exemption.

Maui Causes has a petition with nearly 2000 signatures on that issue and the associated abuse of SMA Minor Permits to facilitate avoiding environmental protections of our shoreline in violation of the Federal Coastal Zone Management Act.

At our urging, then Council Member Don Guzman authored a bill to encourage Maui County’s Independent Auditor to assess the viability of collecting the tens, if not hundreds of millions of dollars deferred in the thousands of agreements which Corp Counsel was finally forced to stop writing in 2007. That audit is ongoing today.

It’s remarkable that in Council testimony last week, members of the development community openly defended the bogus language inserted into Title 18 by Public Works and Corp Counsel, saying specifically that the Two-Lot Subdivision Exception they illicitly manufactured was intentionally intended to replace the “Three-lot-or-less Deferral Agreements” which were taken away in 2007. That’s exactly what I’ve always believed about the bait and switch of the 2015 Upcountry Water Bill and to have that validated in Council testimony was extraordinary.

The next step will be to demand that the Department of the Corporation Counsel recuse themselves from advising and representing the Ethics Board regarding Mr. Fishkin’s complaint. Since Corp Counsel is named in the complaint, an independent special counsel must be appointed. If not, we’ll be forced to file an ethics complaint against the Ethics Board itself, as just happened on the Big Island.

It’s our belief all this paints a picture of racketeering among past and current Corp Counsel, Department Directors, Council Members and Private Developers, intended to defraud the public by intentionally and secretly shifting developer’s infrastructure costs onto the backs of Maui’s taxpayers.

However we can assist anyone in telling this story please don’t hesitate to ask. We’re armed with reams of documentation and referrals to knowledgeable professionals to interview.

Mahalo for your time and consideration.

Sam Small
Director, Maui Causes
(973) 271-0788

Ethics complaint file stamped