POSTED: 26 April 2006 - 8:30am

Confidential Docs show Ching was exonerated

Chief Lum portrait as seem on the Kauai government website

Ethic Board, County Attorney quash Judge’s ruling denying “unfair process” charge in Police Chief’s appointment

by Andy Parx on 25 April 2006

(Parx News Network April 25) Former Police Commissioner Michael Ching was actually cleared of major ethics charges of creating an “ unfair process” in the hiring of police Chief KC Lum, according to retired Judge John McConnell, the hearings officer in the case.

But his words and rulings never reached the Kaua`i County Council due to a squelching of documents resulting in a cover-up by the Board of Ethics (BOE), the County Attorney’s (CA) office and, many are charging, the County Council.
PNN has obtained “confidential” documents that show what the BOE withheld from the Kaua`i County Council. They show that the Hearing’s Officer, respected, retired, Maui Judge John McConnell, refused to concur with the BOE’s major charges against Ching.

McConnell say that Ching’s two situational ethics violations did not lead to an unfair and therefore illegal, overall process in appointment of KC Lum as Kaua`i Police Chief .

The original Hearing Officer’s Report (HOR) was withheld by the BOE from the County Council during a Council meeting on 4/2/06 where the BOE presented the two violations against Ching for Council action.

Receipt of the HOR document-

the judges actual original ruling- is scheduled for this Wed.’s Council meeting when it may be “released” by the county even though it is already posted on-line.
But PNN has also obtained two other documents not on the Council agenda this week or on 4/2. The first is a transcript of a meeting between McConnell and the opposing lawyers in the case during the “reconsideration” process requested by Ching.

Despite press accounts and BOE statements to the contrary, it shows McConnell did not deny reconsideration and actually required changes in the wording of his report to make it clear that Ching did not violate his “fiduciary responsibilities” in the overall process of hiring Lum- as was originally charged.

The other document is the mysterious “Section D” referred to in the original HOR. It contains a liturgy of circumstantial evidence and quotes, mostly from disgraced, current Police Commissioner Leon Gonsalves.

Gonsalves has been cleared by the County Council of removal charges stemming from a racial and ethnic harassment and bias case after he called Lum, a Chinese American, “Hop Sing” in an email in 2004. Lum has an EEOC complaint/lawsuit pending.

According to the transcript of the reconsideration meeting, in rejecting Section D of the original BOE charges against Ching, McConnell stated “I do not think some vague fiduciary standard regarding the fairness of the process should be applied here and I did not include that in my findings.”

Deleted from the findings sought by the BOE and County Attorney’s office were references to the well known molestation of an exotic dancer in the police station by police officers, where Gonsalves actually alleged that KC Lum, the Lieutenant on duty at the time, attempted to cover up the matter.

According to media reports at the tim,e and other documentation, Lum was the one who turned in the officers. But he also owes his political opposition to the matter because one of the accused officers is now crusading County Councilman Mel Rapozo who blames Lum for “destroying the careers” of some of “good cops”, himself no doubt included.

Rapozo was cleared of the charges, supposedly on “a technicality” according to some in a position to know.

But he has now been the chief mover and shaker on the Council behind the “get rid of KC Lum” movement which includes Chair Kaipo Asing and freshman Shaylene Iseri-Carvalho whose aggressive prosecutorial tone and demeanor has brought some public servants close to tears, especially when the matter is Lum or KPD.

The BOE, apparently under the direction of County Attorney (CA) Lani Nakazawa, sent the council only sections A,B and C after the judge threw out section “D”, sending them without either the HOR, the transcript or Section D, effectively squelching the material exonerating Ching.

Section D sought to find that the appointment of Lum as Chief was tainted by actions of Ching. But McConnell ruled that Ching did not commit any illegal act, at least as far as any of the allegations or “proposed findings” in Section D, which contains a laundry list of assorted allegations against Ching, most of which were based on testimony provided by Gonsalves.

Nakazawa and the BOE apparently have claimed that there were “privacy concern” for the accusers and others and all BOE meetings on the matter have been closed to the public. But their agenda’s have not complied with the state open meeting “Sunshine Laws” (HRS 92) on executive sessions, which legally “trump” local charters, laws and rules.

Any examination of recent BOE agendas would shows plain non-compliance. In addition the law states, that matters of wide public interest trumps privacy concerns. In addition state law says that all contested hearings are open to the public, according to Ching’s lawyer.

The reconsideration meeting transcript specifically says that the BOE would receive the transcript with McConnell saying “the transcript of what we’ve said today I would hope I’ve been fairly clear” to the BOE.

Yet a March 23 memorandum and cover letter from the BOE to the Council purports the 4/2 submission represents the “Draft Order Denying Respondent Michael Ching's Motion For Reconsideration”. The final HOR- not the original one being received this week- is still due according to the 4/2 Council agenda, quoting the BOE.

But according to the reconsideration meeting transcript McConnell said that the order for reconsideration must contain a “modification of the findings” and agreed that therefore it could be said that reconsideration was “partially granted”.

The transcript was not included in the packet given to the council nor was “Section D” or the original HOR.

By law it seems the BOE has the right to decide whatever it wants to, regardless of the HOR. So at the 4/2 Council meeting the Council sought to take severe action against Ching as recommended by the BOE in the sole document submitted.

The BOE cover letter recommends a fine of $2,000 for Ching, a matter which has been a source of humor this week after it was learned and stated in the press that only criminal convictions can allow the council to fine people.

It also called for the termination of Lum’s contract as Chief despite McConnell’s express ruling that the overall process was not tainted by the two apparent minor violations against Ching.

Regarding the two violations McConnell admitted “(t)his is a difficult case. I’m sure many people would say Mr. Ching’s conduct is a normal part of the political process” adding “I could certainly understand an appeal.”

Though some council observers think the council may have had a part in the cover-up they appeared perplexed themselves when community watchdog Glenn Mickens read aloud from the section of McConnell’s original report that said “the evidence... does not establish any specific violation of Charter or Code” and that McConnell “declines to conclude that the findings of fact set forth in Section D”.

Mickens said he was quoting a letter to the Council by Lum whom, Mickens thought, was quoting a document in the case. But Mickens could not identity the HOR as the source of the passage at the time and neither apparently could the Council.

According to statements by Asing at the 4/2 Council meeting, the Council has appropriated $150,000 to hire Corlis Chang and the Honolulu law firm Goodsill, Anderson, Quinn and Stifel to prepare the BOE’s case for the CA’s office. Ching has had to pay his own lawyer in the case, Yuriko Sugimura of Bendet, Fidell, Sakai & Lee.

In the two minor charges that McConnell did apparently reluctantly sustain, the first was based on a “he said, she said” conversation over a cup of coffee Ching had with the head of SHOPPO, the police union, Brian Ponce, one of the “redacted” names in the complaint but one that has been identified in the press.

While Ponce remembers the meeting with Ching as a solicitation of support for Lum in the three way race for the Chief’s job, Ching has said he was merely asking whether the union was endorsing any candidate and asking what Ponce thought about Lum, his boss at the time at the Hanalei Police substation.

Even though it was apparent that, as happens many times, both left the meeting with different impressions of what was said, the judge found Ponce the more credible of the two and found this conversation to be an ethics violation finding Ching “used his position” to “benefit Lum”.

Neither the judge nor the brief- written by Chang for Nakazawa- explained what exactly was unethical even if Ching had done what was alleged in the complaint.

Nakazawa has apparently worked closely with the Chang and the County’s “hired guns” from O`ahu. She has requested the $150,000 to pay them even though the usual amount is $100,000 when the CA requests money for “outside council”. Council watchers agree this probably means they had gone through or were about to go over $100,000 and needed more money to pay Chang et. al.

Ching has been forced to pay for his own lawyer despite the fact that he is accused of actions done in his official capacity.

The second ethics matter Ching was found to have violated involved the appointment of Lum as “Interim Chief”, while the Commission decided between the three applicants for the job.
The charges actually seems to call all of the commissioners liars in alleging that they conspired to appoint Lum at a lunch break immediately before they were to vote on the interim chief. According to the document all of the commissioners said that nothing about the case was discussed at the lunch, which would have been a violation of the Sunshine Law.
There was a somewhat comical attempt to tarnish both Ching and Lum by saying there was no other way for Lum and Ching to have had the identical article from a San Francisco newspaper- one that each of them presented to the commission the day of the Interim Chief appointment, Ching having done so in a closed session- unless Chang gave it to Lum. The article was regarding appointing a candidate for permanent chief to interim chief in the SFPD.
But apparently the judge wasn’t an on-line researcher or he would have known that when people “Google” a very precise subject with the same parameters they often wind up with the same results, many time having one single article available in the top 95 listings.
In another rejected charge regarding the interim chief appointment process Gonsalves said that he walked over to Ching who was talking to another commissioner and thought he heard Ching say “KC Lum” but that they stopped talking the minute they knew he had heard them.

According to reports Ching has maintained his innocence but says he feels incredibly hurt by the whole experience after giving almost six years in public service. He feels that political considerations of the Council, Mayor, BOE and CA made him a target for some fanatical anti-Lum people, some of whom have been fighting the same battle in the police department for as long as Kaua`i has had one.

McConnell apparently agrees. In the reconsideration transcript he says “I would as the hearings officer I guess just add a caution to the commission that I do not think the Ethics Commissions should become some kind of super agency to review the actions of public officials.” adding “I’m, certainly not saying that the mere nomination and voting for Lum was a violation per se. I agree with (Ching’s lawyer) completely on that.”

The two other candidates for the job have had their names redacted from the Officer’s hearings report. As publicly revealed at Police Commission and Council meetings and in the press they are Sheila Ventura, a KPD officer and Daryl Perry a retired Honolulu Police Department Major who is an friend of Gonsalves and brother of influential Kaua`i attorney Warren Perry.

Attorney Perry’s testimony was responsible in a major way for convincing the Council not to remove Gonsalves as a Commissioner after Gonsalves wrote, in a personal email that was released to the public, that he would “throw up” if he had to go to “Hop Sing’s” (Lum’s) swearing-in ceremony as the new chief after the Police Commission, which is exclusively responsible for hiring and firing the chief, hired Lum as permanent chief in late 2004.
It is not known whether there is a final HOR forthcoming from the reconsideration meeting as directed by McConnell or if it will be or has been forwarded to the Council as promised by the BOE.

All three documents obtained by PNN are still apparently considered confidential by the CA at press time. The source of PNN’s documents has asked not to be identified. PNN has granted the request due to the legal implication of publicly distributing what the government feels are confidential documents even if the documents should legally be a matter of public record.

Judge McConnell and County Attorney Nakazawa have turned down press requests to publicly comment on the matter outside of their legal filings. Ching has referred questions to his attorney.

It is also not known at press time whether the Council will discuss in full the ramification of not having the original HOR (or new HOR) and whether they will ask the BOE why they did not send it with the original paperwork since it seems to contradict the BOE’s cover letter to their report.

It is also unknown whether the Council will even look at the twenty-seven, eight-by ten color glossy photos to be used as evidence against ... ur I mean the transcript of the reconsideration meeting and Section “D” which are not on the agenda.

The other two documents- the transcript of the reconsideration meeting and Section D- may be posed at soon but can be provided upon request from PNN. They should be available at Wednesday’s (4/26) County Council meeting which begins at 9am.
Additional reporting by Glenn Mickens .

Editors Note:Here are some links to articles about the Chief Lum scandal
Island Breath: Ray Chuan on Lum


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