It’s not a violation of the ethics code for a County Council member to serve as a reference for someone seeking a county job and then voting on that person’s confirmation, the Board of Ethics ruled Monday on a 3-1 vote.
At issue was Kohala Councilman Tim Richards’ endorsement of Public Works Director Ikaika Rodenhurst after being named in his official capacity as a reference for the position on Rodenhurst’s resume.
The Ethics Board acted on the petition by Cory Harden, who cited the fair treatment portion of the ethics code that says “No officer or employee shall use or attempt to use the officer’s or employee’s official position to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment, for oneself or others.”
Harden wanted the Ethics Board to invalidate the vote that confirmed Rodenhurst because Richards did not recuse himself. Had Richards done so, Rodenhurst’s confirmation to the $132,577 position would have failed, as four council members voted against it.
The question, she said, isn’t one of conflict of interest, but of fairness.
“It’s are you as a council member using your council member position to give preferential treatment to someone,” she said.
Harden maintained that a council member serving as a reference could circumvent the public process of vetting mayoral appointees.
“If this board rules that there is no problem, then, in the future, could all nine council members list themselves as references, in their official capacity, on a nominee’s resume, before any official vetting at a County Council meeting, and before concerns raised by the public were known?” she asked. “And could all nine then vote to confirm the nominee?”
Richards had sought advice from the county’s corporation counsel during the council meeting after a council member asked him to recuse himself since his name as councilman was on Rodenhurst’s resume. The county attorney, citing a different part of the ethics code governing conflicts of interest, told him he didn’t have to recuse himself.
Richards told the ethics board that he didn’t see the difference between his action and other council members recommending candidates for boards and commissions. It shouldn’t matter whether the position is a paid position or not, he said.
“I actually see it as an honor to serve as a reference,” Richards said, adding that by doing so, he was “completely transparent” in his support.
“Ultimately what I want to do is take this county forward,” Richards said. “We are elected to make decisions; sometimes they are not popular decisions, but we’re elected to make decisions.”
Commissioner Amy Self, a former deputy corporation counsel for the county, agreed that Richards’ actions made the vote more transparent. She didn’t see a violation.
“Had Mr. Richards not been listed as a reference, the vote would have been the same,” Self said in making a motion to dismiss the petition.
Self later in the meeting recused herself on a petition by a deputy corporation counsel seeking guidance on an unrelated ethics issue on the grounds she had recommended the attorney for the job.
Larry Heintz, the sole no vote on dismissing Harden’s petition, emphasized the importance in citizens having trust and confidence in their government. In comments repeatedly interrupted by Deputy Corporation Counsel Malia Hall, Heintz tried to reference fairness doctrines used in government manuals and by other boards and commissions, including at the University of Hawaii, where board members who serve as references are required to recuse themselves from the vote.
“It implies a bias, implies a judgment, an approval of the person and then the person was considered and then he votes,” Heintz said. “(It could be) considered the vote is tainted or biased or prejudged or not impartial.”
Hall said the ethics board could consider only the county ethics code, not ethics codes of others, in making its ruling.
