DOBOR official files ethics complaint against county prosecutor

HILO — An ethics complaint against County Prosecutor Mitch Roth is bringing to the surface years of submerged accusations and counter-accusations between local boaters and the state Division of Boating and Ocean Recreation.

The complaint was filed Oct. 31 with the county Board of Ethics by DOBOR Administrator Ed Underwood. He accuses Roth of using his post to further private interests when he testified at an Oct. 28 Board of Land and Natural Resources hearing.

“I’m used to the public getting upset,” Underwood told West Hawaii Today in a phone interview Tuesday. “I accept that. What I cannot accept is an elected public official — a county prosecutor — claiming I’m corrupt and I’m retaliatory with absolutely no evidence, without having the courtesy to talk to me first. I was completely blindsided by this whole thing.”

The Ethics Board scheduled a hearing on the complaint for Feb. 14, after failing to muster a quorum to consider the issue Tuesday.

At issue at the Land Board was local charter Capt. William Murtaugh’s request for a contested case hearing after DOBOR refused to renew his commercial boat ramp permit at Keauhou Bay. Murtaugh has been questioning DOBOR’s allocation of moorings since 2012, and he claims the loss of his permit, as well as other actions, were in retaliation.

Roth had launched a criminal investigation into the accusations of favoritism and retaliation in the local DOBOR office. Roth said he testified at the Land Board hearing as a private person, not a county prosecutor. He paid his own way to Honolulu and took annual leave, he said. Nor was he representing Murtaugh.

“I believe there is corruption,” Roth told the Land Board, according to a recording of the meeting. “People believe there is retaliation.”

Roth said Tuesday he couldn’t sit idly by while Murtaugh was denied a contested case hearing, which he believes is a constitutional right before the state takes away your livelihood. He went to the meeting in defense of justice, he said.

“Because this matter came to me in my official role as the prosecuting attorney, I explained that I was so employed, however, that I was not there in my official capacity,” Roth said in a response to the ethics complaint. “Furthermore, at no time did I take any compensation for my testimony.”

He told the Land Board he found evidence of an altered document that misstated the size of Murtaugh’s son’s boat as a justification for denying him a mooring, a targeted audit of Murtaugh’s gross receipt statements after he complained, a staff recommendation against a contested case hearing to get his permit back and other actions, some of which were told him by other DOBOR staff.

Roth said he sent letters to Department of Land and Natural Resources Chairwoman Suzanne Case and the state Attorney General’s Office, asking for an investigation. In response, Case asked for the names of staffers who spoke to Roth. Roth refused to give Case the names, saying they could be legally protected whistle blowers.

“We have looked into this,” Case told the Land Board. “Just to make it crystal clear, we don’t tolerate corruption.”

Case did not return a followup phone call by press time Tuesday.

“There is nothing we can confirm right now,” Attorney General’s Office spokesman Joshua Wisch said Tuesday.

Over the years, about a half dozen boaters have also complained to West Hawaii Today, but refused to be identified in stories because of their stated fear of retaliation.

Underwood said the fears are unfounded.

“There’s a complete open line of communication,” he said. “They can go all the way up the chain if they think there’s some wrongdoing going on.”

That’s not always been the case for Murtaugh. Underwood blasted him in an Oct. 29, 2013, email that was copied to dozens of individuals in the public and private sector, including state legislators.

“You have complained every step of the way,” Underwood said in reference to ongoing work to replace moorings to protect coral. “You are not entitled to moor in Keauhou Bay. It is a state resource and you have the privilege of mooring in the bay and the obligation to ensure that you do not damage the natural resource. … I will not be responding to your emails any longer because it’s obvious that you currently do not have anything of substance to offer.”

Land Board member Stan Roehrig, a Hilo attorney, used the letter as an example of the bad blood that’s existed for a long time between Underwood and Murtaugh. Roehrig, the only Land Board member voting to allow a contested case hearing, said it looked like Underwood was “picking on” Murtaugh.

For Murtaugh, the problem began in 2012 when he complained that some boat owners had been on a wait list for moorings for 10 or more years, yet people further down the list were granted moorings.

Things went downhill from there.

“I started getting a rude awakening of how the world works,” he said. “I couldn’t believe they’d be like that.”