BY JIM DOOLEY AND MALIA ZIMMERMAN – The personal attorney for Kauai Mayor Bernard Carvalho Jr. angrily denounced efforts by Police Chief Darryl Perry and outgoing Prosecutor Shaylene Iseri-Carvalho to charge the mayor for alleged theft of more than $5,000 of county gasoline.
“As far as I am concerned, there is no criminal liability of any kind whatsoever,” said Eric Seitz, Carvalho’s lawyer.
Seitz said Iseri-Carvalho and Perry are pursuing groundless charges against Carvalho.
Iseri-Carvalho lost her re-election campaign this month and has just weeks left in office. Both she and Perry have had very strained relations with Carvalho and his administration.
Seitz said that David Minkin, a private attorney retained by the Kauai Auditor to investigate the mayor’s use of county gasoline, is “outraged” that his findings are being used to pursue criminal charges against the mayor, Seitz said.
Minkin’s law firm, McCorriston Miller Mukai MacKinnon, was hired by the county auditor’s office to conduct an independent investigation of gasoline usage on Kauai.
“It was an impeccable investigation,” Seitz said. “They recommended that there be no criminal charges whatsoever.”
Minkin could not be reached for comment this weekend.
But his firm’s report, submitted to the auditor in May of this year, said, “Mayor Carvalho’s use of County fuel demonstrates questionable fiscal policies that range from poor accounting to a possible breach of public trust.
“Further,” the report continued, “the lack of legal authority for the Mayor to use County resources (fuel) for personal purposes, such as commuting to and froM work, evidences a misappropriation of County property with resultant possibility of criminal liability.”
And the County’s failure to report Carvalho’s gasoline usage as a job “fringe benefit” raised questions about possible tax liabilities, the report said.
But the report cautioned that before a determination of criminal conduct could be made, further investigation needed to be made into whether Carvalho had guilty intent when he used the gasoline.
“Law enforcement authorities are equipped with the necessary investigative and subpoena power to accomplish this task, which is well beyond the scope of work undertaken buy this firm,” the report said.
“The logical referrals are the Kauai Police Department and the Kauai Prosecutor’s Office,” said the report.
The independent investigators noted that he auditor had “concerns” about “potential conflicts of interest in the Police Department and Prosecutor’s Office.”
But it went on to say that any decision about such conflicts had to be made by those agencies and not the auditor.
“In an abundance of caution, the matter should also be brought to the attention of the State of Hawaii Department of the Attorney General as this department has both investigative and prosecutorial capabilities,” the report said.
The question of possible tax liabilities should be referred to the Kauai Department of Finance, said the report.
“If the County fails to take any corrective action regarding the taxing issues, the Auditor’s Office may also be required to make appropriate reports to the Hawaii Tax Department and the Internal Revenue Service,” the report said.
Minkin’s report also noted that previous Kauai mayors have been allowed to use county gasoline in their personal vehicles.
“Numerous individuals interviewed during this investigation indicated this (gasoline) usage is a known practice that dates back to multiple prior mayors,” investigators at a Honolulu law firm reported to the Kauai County Auditor in May.
But no one interviewed by the investigators could cite “appropriate legal authority” for the practice, the report said.
“A clear and articulated policy regarding the Mayor’s fuel usage should be promulgated to avoid the historical usage of fuel by the Mayor without the proper and appropriate authorization,” said the investigators.
Iseri-Carvalho’s office obtained a grand jury indictment this week against Coounty official Janine Rapozo on charges that she helped Carvalho misappropriate county gasoline in 2009 and 2010.
Carvalho was not indicted and a warrant for his arrest issued by the Police Department has not been served because two Kauai judges refused to sign the document.