HILO — County Prosecutor Mitch Roth was cleared Tuesday of allegations he violated the county ethics code when he testified about perceived corruption in the Department of Land and Natural Resources at an Oct. 28 Land Board hearing in Honolulu.
HILO — County Prosecutor Mitch Roth was cleared Tuesday of allegations he violated the county ethics code when he testified about perceived corruption in the Department of Land and Natural Resources at an Oct. 28 Land Board hearing in Honolulu.
The county Board of Ethics voted 3-0, with one member abstaining, to dismiss the charge levied by a state official, based on a lack of probable cause. The complaint was filed by DLNR’s Division of Boating and Ocean Recreation Administrator Ed Underwood.
Underwood said Roth used his position as an elected official to further private interests when he testified during Keauhou Bay charter Capt. William Murtaugh’s request for a contested case hearing after DOBOR refused to renew his commercial boat ramp permit.
“He alleged corruption. He alleged retaliation on the part of me and my staff with no documentation to back up these allegations,” Underwood said. “It was very clear he was testifying as the Hawaii County prosecutor.”
Underwood said he’s also filed a complaint with the state Judiciary’s Office of Disciplinary Counsel, which investigates ethical issues of attorneys and violations of the Judiciary’s rules.
Roth said he was acting as a private individual at the hearing, not a county prosecutor. He said he took vacation time and flew to Honolulu at his own expense.
The Ethics Board found that Roth had both the constitutional right as an individual and the right granted in the county charter as a prosecuting attorney, to address the Land Board about his concerns. As far as the Ethics Board is concerned, Roth could have used county time and expenses for the trip.
The county charter states, the county prosecutor may “research, evaluate, and make recommendations regarding crime, crime prevention and the criminal justice system to the governor, the Legislature, the Judiciary, the council, the mayor, the Hawaii Police Department and other criminal justice agencies, or the general public, as the prosecuting attorney deems appropriate.”
The board said there was no proof Roth gained any unwarranted privilege or financial return from testifying.
“There has been no evidence that Mr. Roth in any way was engaged or was representing or was doing anything in any way for Mr. Murtaugh,” said board member Ken Goodenow. “It seems clear to me there’s no conflict of our code.”
Murtaugh said Roth didn’t represent him at the hearing.
“He wouldn’t even take a piece of fresh fish off my boat,” Murtaugh told the Ethics Board.
Roth had said at the Land Board hearing that he was testifying as an individual, while acknowledging he gained some of his information in his role of prosecutor.
“I wasn’t representing him. I was representing the truth,” Roth told the Ethics Board. “If we don’t stand up as a people, as a government, to right wrongs, what does that say about us?”
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. Murtaugh suspected favoritism and 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.
Puna resident Jon Olson said he knows the feeling.
“It’s small-scale corrupt. … Boats came and went, but my number never changed,” Olson said in testimony. “Someone suggested I had to have something else in that envelope if I wanted that number to change.”
Roth had launched a criminal investigation into the accusations of favoritism and retaliation in the local DOBOR office. He said Tuesday he’s turned the investigation over to the state attorney general and is working with that office. A spokesman for the attorney general did not respond for comment by press time Tuesday, but said last month there was nothing the office could confirm.
Roth 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 DLNR Chairwoman Suzanne Case asking for an investigation.
“Chair Case asked Mr. Roth twice via email for more information. No response was ever received,” a DLNR spokesman said in an email Tuesday.
Roth said Case asked only for the names of those reporting problems, and he refused to give them because they could be legally protected whistleblowers.
“We have looked into this,” Case told the Land Board at the time. “Just to make it crystal clear, we don’t tolerate corruption.”