Armed with a letter from county Corporation Counsel Joe Kamelamela, an oral assurance from the state attorney general and his own understanding of the law based on readings provided by the state Office of Disciplinary Counsel, county Prosecuting Attorney Mitch Roth told the Board of Ethics on Wednesday he’s confident there would be no conflict of interest if he prosecuted protesters arrested on Maunakea.
Roth, who turned 30 cases over to the attorney general pending the board’s opinion, said the question of the appearance of a conflict, or his ability to be impartial under the principle of procedural justice, is more difficult to define, but he thinks he meets those requirements as well.
“Believe it or not, what you come up with here will probably be discussed in law schools across the country when it comes to ethics,” Roth told the board. “I believe you’ll find there is no appearance of impropriety, and if there is, it is so far removed, it wouldn’t be a problem.”
The board took the matter under advisement and is expected to come up with a finding at next month’s meeting, said Chairman Rick Robinson.
At issue is the employment of Roth’s 22-year-old son at the Jet Propulsion Laboratory, administered by the California Institute of Technology, and Roth’s wife’s employment at Subaru Telescope, operated by the National Astronomical Observatory of Japan. The two organizations are among six partners in the Thirty Meter Telescope project.
In addition, Roth’s wife’s employer is the Research Corporation of the University of Hawaii, which is attached to the university for administrative purposes. The university, through its master plan and its appointed Maunakea Management Board, manages the Maunakea Science Reserve, where the mountain’s 13 telescopes are located.
Also, Roth said, he’s on the board for The Success Factory’s NexTech STEM Programs, which received a grant from TMT’s THINK fund, that donates $1 million annually for science, technology, engineering and math programs for youth.
Just three members of the five-member Board of Ethics were present for the discussion Wednesday, which was scheduled after Roth asked for an opinion. Roth divested himself of the cases and asked for the opinion after the Associated Press wrote an article questioning his personal connections.
Board members quizzed Roth about his role and several asked if his office could handle the cases, even if he stepped aside. David Wiseman, a former judge, asked if the prosecutor’s office could set up what’s known in the legal profession as a “Chinese Wall,” where attorneys on opposing sides of a case are sequestered from learning details of the other’s strategies.
“Is it your position by stepping aside the whole office has to step aside?” Wiseman asked.
Those arrested were charged with obstructing a governmental operation, a misdemeanor. Roth, who’s elected countywide, said it’s his duty under the county charter and also under his oath of office to prosecute cases on the island. He said he’s prepared to have his first deputy prosecute the cases if he, personally, is advised not to.
“We believe there are going to be more cases,” Roth said.
Board member Nan Sumner-Mack had questions along a similar vein.
“I applaud your coming here because I think it’s an exceedingly good time to have a discussion about this. … The tensions in this community are so great,” said Sumner-Mack. “It’s not anything against you personally … I think you have the community’s support and trust. … If you recuse yourself do you have someone else to proceed with the prosecution?”
Section 2-84 of the county ethics code states, “No officer or employee shall take any official action directly affecting … a business or undertaking in which the employee knows or has reason to know that a brother, a sister, a parent, an emancipated child or a household member has a substantial financial interest.”
The $1.4 billion TMT project has been delayed, and access to the Maunakea summit blocked, since July 15 as protesters, who call themselves kia‘i, or protectors, block construction vehicles from ascending the mountain, which some Native Hawaiians consider sacred.
Email Nancy Cook Lauer at ncook-lauer@westhawaiitoday.com.
