HomeMy WebLinkAbout2002-03 Prohibited Political Activities J+ZV Oi M
O �
Harry Kim
�'•'M `�W, Lincoln S.T.Ashida
Mayor •' '• Corporation Counsel
=" Gerald Takase
Assistant Corporation Counsel
(fauldfir of Palualil,
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 •Hilo,Hawaii 96720-4262•(808)961-8251 •FAX(808)961-8622
June 7, 2002
MEMORANDUM Corporation Counsel Opinion No. 2002-03
TO: OFFICE OF THE MAYOR
FROM: LINCOLN S. T. ASHIDA
Corporation Counsel
RE: Prohibited Political Activities
In light of recent media publicity concerning the prosecution of former Honolulu City and
County Councilwoman Rene Mansho, we recommend issuance of the following opinion
and advisory concerning prohibited political activities.
Our office encourages any County employee to contact our office for clarification of any
matter contained in this memorandum, of if there are any questions regarding
questioned activities.
Chapter 11, Hawai f Revised Statutes
Chapter 11 of the Hawaii Revised Statutes (hereinafter "HRS") governs elections in the
State of Hawaii. Particular attention should be paid to Sections 11-191, et. am., which
govern campaign contributions, fundraising, and reporting requirements.
Department of Civil Service Information Sheets
The Department of Civil Service often circulates an information sheet for posting to all
departments, covering political activities. This is an excellent resource which provides
guidance to all County employees on permissible and prohibited activities.
A copy of their most recent information sheet is attached for your reference.
Hawai I County Code of Ethics
Article 15, Sections 2-79, et. sea., of our Hawaii County Code contains our code of
ethics. All County officers and employees, whether elected, appointed, or civil service,
should familiarize themselves with this provision of the Code.
In addition to disciplinary penalties provided by the Code, there is the possibility of
criminal prosecution, as illustrated in Mansho's case.
State of Hawai f v. Rene M. Mansho
Enclosed is a copy of the Complaint and plea form in State of Hawai f v. Rene M.
Mansho. A "complaint" is the document which formally charges a criminal defendant
with a crime or crimes. The plea form indicates what charges a criminal defendant
pleads guilty to. Although the attached letter to the plea form indicates it is
"confidential," the plea form and attachments become public records, since our laws
require all prosecutorial activities (with the exception of juvenile cases and grand jury
proceedings) be conducted in open court.
Defendant Mansho was prosecuted and convicted of two felonies, Theft in the First
Degree, and Theft in the Second Degree. Both felonies are punishable by up to 10 and
5 years in prison, respectfully. Both felonies are also "probationable" offenses. It will
be up to the judge to determine what sentence Mansho receives. She faces the
possibility of either probation or 10 years in prison (but not both) at her upcoming
sentencing hearing. Even if Mansho is granted probation by the Court, she may serve
a jail term as a condition of her probation. Again, this is wholly discretionary with the
court.
Count I of the Complaint alleges Mansho, in a continuing course of conduct, utilized her
council staff members to perform campaign-related tasks, while on City and County
"work time." The prosecution utilized expert consultants to calculate the total amount of
public funds misappropriated during the stated time period. This total was well in
excess of the $20,000 threshold for the class B felony offense of Theft in the First
Degree.
Count II of the Complaint alleges Mansho utilized monies from her campaign fund
(which legally belongs to the State of Hawai`i), for the payment of private expenses,
such as her cellular telephone bill. The total misappropriated over the stated time
period was in excess of$300, the threshold amount for the class C felony offense of
Theft in the Second Degree.
This case illustrates many important points:
• Our criminal laws provide the statute of limitations may be tolled (suspended)
where fraud is an element of the offense. The statute of limitations is a law in
our state which says after the passage of a certain period of time (from the date
the crime was committed), the prosecution cannot charge you with a crime.
However, the law also says in cases where some "fraud" was committed by he
perpetrator, "the clock stops running," and the prosecution is given additional
time to bring charges. In Mansho's case, many of her activities were conducted
in a fraudulent (secret) manner. Thus, as seen in Count II of the Complaint, the
prosecution was able to go as far back as 1994 to capture the misconduct.
• The Hawaii Penal Code has applicable provisions which cover political
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misconduct. HRS Section 11-229 does not act as the exclusive penal section for
prosecution, nor does it act as a bar to the prosecution of any other penal
offense. In other words, HRS Section 11-229, which is a misdemeanor, is not
the most severe charge a criminal defendant can face for misappropriation of
public funds. As seen in the Mansho case, she was charged with and pled guilty
to two felonies.
The bottom line illustrated in this case is political appointees work for, and are paid for
by the taxpayers. It is a potentially hazardous misnomer that political appointees work
for the elected or appointed candidate.
In addition to the prosecution of the elected or appointed official, his/her subordinates
(i.e., staff members) also face the possibility of prosecution for the misappropriation of
government funds, based upon the same penal theory.
Laws governing political activities in our state should be interpreted broadly, to prohibit
any questionable activity. Any private interest must be properly distinguished from the
public interest all government employees are entrusted to serve.
Restrictions are not limited to elected and appointed officials and Political"
activities
It is important to understand the misappropriation of government funds and resources
may not occur exclusively in political activities, and is not limited to elected or appointed
officials.
Since elected officials have specific reporting requirements, such as campaign
spending, civil servants often mistakenly believe they are less scrutinized and that there
are no laws which sanction them for "immoral" activities. Complacency and comfort
often sets in; persons may think and feel "no harm, no foul," or that "no one will know or
turn me in."
Civil servants are subject to all laws in our state, and are treated no differently. Thus, a
civil service employee, who during work time, repeatedly and over a prolonged length of
time, engages in private activities through the use of County time and resources (e.g.,
use of copy machine, computer equipment, etc.), may be subject to investigation,
sanction, and possible prosecution for the theft of public funds. The advent and
prevalence of e-mail as a preferred means of communication presents similar questions
in this regard.
Please understand the law does provide the prosecution with some discretion with
respect to whether charges should be brought. Our County Prosecutor's Office
adheres to the National Prosecution Standards.
The bottom line is to understand what the law says (and prohibits), and use good
judgment and discretion. Understand the taxpayers fund our salaries and equipment,
-3-
and neither should be abused.
As the Mansho cases illustrates, a continuing pattern and practice of such
misappropriation can and will result in significant sanction.
Encls.
S: Departments/Corporation Counsel/CC Opinion 2002-03 5-3-02/LSAmr
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C MS of�4y
Michael R.Ben,SPHR
}Stephen K.Yamashiro ��: DircctorofPersonnel
Mayor ` ', 1
Rodney T.Kaido
y `
r Of. ► Deputy Director of Personnel IA
Gtzunfu1 Jaf �AZ61ttt
DEPARTMENT OF CIVIL SERVICE
Hilo Lagoon Centre,101 Aupuni Street,Suite 133,Hilo,Hawaii %720-4260
Phone(808)961-8361 • Fax(808)961-8617 • TDB(808)961-8619
MEMORANDUM 00-48
TO: All Departments gency Heads
FROM: Michael R. Ben, r for of Personnel
DATE: August 11, 2000
SUBJECT: Candidate Campaign Walk-through
During every campaign season, we receive inquiries from County departments
as to the County's policy on candidate campaign walk-throughs.
In keeping with past administrations' practices, candidate campaign walk-
throughs are allowed. However, these walk-throughs are subject to the
following:
• Candidates shall be allowed to walk through the department for the purpose
of introducing themselves to employees.
a
• in order to minimize disruptions to work operations, the candidate shall limit
his/her stay for this purpose only.
• Sit down discussions with individual employees or groups of employees during
work hours or on work premises is prohibited.
• Only the candidate requesting a walk-through shall be allowed to do so;
representatives of the candidate are not afforded this privilege.
• No supervisory employees shall escort candidates through the department.
• Candidate walk-throughs shall be prohibited at the County Building during
the period absentee voting and voting is being conducted.
Questions on this matter should be directed to Rodney Kaido at ext. 8361.
Michael R. Ben,SPHR
Stephen K.Yamashiro Director of Personnel
Mayor \ /
Rodney T.Kaido
�
10 Deputy Director of Personnel
(9L1UUfV Of C'U funili
DEPARTMENT OF CIVIL SERVICE
Hilo Lagoon Centre,101 Aupuni Street,Suite 133,Hilo,Hawaii %720-4260
Phone(806)961-8361 • Fax(808)961-8617 • TDD(808)961-8619
Memorandum No. a0-47
To: All Department an gency Heads
From: Michael R. Ben, it ct of Personnel
Dat*: August 4, 2000
Subj:ct: Political Activities
Please post the attached information sheet on all of your employee bulletin
boards. The information is pertinent to all of our employees, whether they are in
civil service or not.
If there are any questions concerning political activities, please call our office at
961-8361.
Attachment
PLEASE POST
INFORMATION ON POLITICAL ACTIVITIES
A. EMPLOYEES IN CIVIL SERVICE (For employees in Federally aided programs, see
What you MAY do: What you MAY NOT do (§76-91, HRS):
1. Express your opinions on all political subjects 1. Use your official authority or influence for the
and candidates and vote as you choose. purpose of interfering with an election or
affecting the result thereof.
2. Be a member of any political party,
organization, or club. 2. Use your official authority or influence to
coerce the political action of any person or
3. Make voluntary contributions to any political party.
organization, provided such contribution is
not solicited, given, or received in a building 3. Be obliged to contribute to any political fund
occupied in the discharge of official duties or to render any political service, nor shall you
by any public officer or employee. be removed or otherwise prejudiced for
refusing to do so.
4. Be an officer of a precinct club or a political
convention. 4. Solicit or receive any political contributions
from any:
5. Be a member of a County,State, or central
or executive committee, or a political party. a. Officer or employee.
b. Person In any State or County building.
6. Be a delegate to a political party convention. c. Person receiving any benefit under any law
of the State appropriating funds for relief
7. Carry signs for political candidates on your or public assistance.
automobile which Is parked on government
property during working hours. 5. Discriminate in favor of or against any officer
or employee on account of any political
8. Be a candidate for elective public office contribution.
but cannot electioneer during duty hours.
S. EMPLOYEES WHO WORK IN FEDERALLY AIDED PROGRAMS (5 U.S.C. §1501-1508)
Federal law ("Hatch Act") applies to the political activities of County employees who perform
duties in connection with an activity financed in whole or in part by Federal loans or grants. in
addition to the prohibitions mentioned under item "A"above, you MAY NOT be a candidate for
elective political (partisan) office.
C. OTHER OFFICERS/EMPLOYEES OR CANDIDATES FOR ELECTIVE OFFICE (§76-92, HRS)
This section includes guidance to employees or officers who are not in the civil service or who
may be candidates for public political office.
D. INDIVIDUAL RESPONSIBILITY
Each officer and employee is responsible for refraining from prohibited political activity. If in
doubt as to whether any political activity is prohibited, employees should request a
determination in writing from their department or the Department of Civil Service before
engaging in the activity.
MAY-03-2002 FR I 09:05 AM FAX N0. P. 02 'y
ST CIRCUIT COL
S TAi 7
ILC C!
PETER R. CARLISLE 2209 r
Prosecuting Attorney 1601 APR 17 ah $' 39
RANDAL K. O. LEE 2858
Deputy Prosecuting Attorney
City and County of Honolulu R. HIG A
1060 Richards Street
Honolulu, Hawaii 96813 (;�� R K
Ph : 523-4516
FAX: 527-6483
Attorneys for State of Hawaii
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAII 1 - 0 7 43
STATE OF HAWAII ) CR. NO.
V. ) COUNT I:
THEFT IN THE FIRST DEGREE
RENE M. MANSHO, ) (S 708-830.5 (1) (a) , H.R.S.)
(01160784)
Defendant. ) COUNT II :
THEFT IN THE SECOND DEGREE
(S 708-831 (1) (b) , H.R.S. )
e (02044896)
COMPLAINT
COMPLAINT
The undersigned Deputy Prosecuting Attorney of the City and
County of Honolulu, State of Hawaii charges:
COUNT I.: On or about the 1st day of April, 1989, to and
including the 31st day of December, 2000, in the City and County
of Honolulu, State of Hawaii, RENE M. MANSHO, did obtain or exert
control over the property of the City and County of Honolulu, to
wit, money, the value of which exceeds Twenty Thousand Dollars
($20, 000 .00) , by deception, with intent to deprive the City and
County of Honolulu of the property, thereby committing the
MAY-03-2002 FRI 09:05 AM FAX NU, r, ud
ti
offense of Theft in the First Degree, in violation of Section
708-830 . 5 (1) (a) of the Hawaii Revised Statutes.
COUNT II ; On or about the ist day of January, 1994, to and
including the 315t day of August, 2000, in the City and County Of
Honolulu, State of Hawaii, RENE M. MANSHO, dial obtain or exert
control over the property of the State of Hawaii, to wit, money
from the Friends of Rene Mansho, the value of which exceeds Three
Hundred Dollars ($3oo .00) , by deception, with intent to deprive
the said State of Hawaii of the property, thereby committing, the
offense of Theft in the Second Degree, in violation of Section
708-831 (l) (b) of the Hawaii Revised Statutes.
Dated at Honolulu, Hawaii. : April 16, 2002 .
STATE OF HAWAII
By PETER B. CARLISLE
Prosecuting Attorney
uty Prosecuting Attorney
City and County of Honolulu
2
MAY-03-2002 FRI 09;05 AM FAX N0. N. U4
STATE OF HAWA GUILTY PLEA CASE NUMBER:
II �]
CIRCUIT COURT OF THE I NO CONTEST PLEA CR. NO. 02-1-0743
FIRST CIRCUIT (Xj MOTION TO DEFER
STATE OF HAWAII vs. (Defendant)
R>JN>✓ M. MANSHO
pate of Birth: 5-28-49 Defendant's Age: Education(Last Grade Completed): college
CHARGE(S)MRS: MAXIMUM IMPRISONMENT/FINE: REPORT NUMBER(S):
Theft in the First Degree 10 yzs. /$25, 000 01160784
HAS E 708-830 .5 (1) (x)
Theft in the Second Degree 5 yrs./$10,000 02044896
HAS 6 708-831 (1) (b)
Extended erm o Imprisonment: —Mandatory Minimum Term of Imprisonment:
N/A N/A
1. My mind is Gear. I have not taken any medication,alcohol,or illegal drugs within the last 48 hours. I am not
sick. 1 speak.read,write,and understand the English language or this document has been read to me or has
been interpreted for me.
2. 1 have received a written copy of the original charge(s)in this case. The charge(s)has/have been explained to
rne. I understand the original charge($)against me. I told my lawyer all of the facts I know about the case. My
lawyer explained the government's evidence against me,my possible defense($),and the facts which the
government must prove In order to convict me.
3. 1 understand the reduced charge(s)with which the government has agreed to charge me,instead of the original
charge(s). (Applicable only If original charge has been reduced.)
4. 1 plead of my own free will. No one is pressuring me or threatening me or any other person to force me to
plead. I am not taking the blame or pleading to protect another person from prosecution.
5. 1 know 1 have the right to plead not guilty and have a speedy and public trial by Jury or by the court I know in a
trial the government is required to prove my guilt beyond a reasonable doubt. -1 know 1 can see,hear,and
question witnesses who testify against me,and that 1 may call my own witnesses to testify for me at trial. I
understand I have the right to take the stand to testify and I have the right not to testify at trial. I know by
pleading I give up the right to the any pre-trial motions,and I give up the right to a trial and may be found guilty
and sentenced without a trial of any kind. I also give up the right to appeal anything that has happened In this
case to date.
6. 1 understand that the court may impose any of the following penalties for the offense($)to which I now plead:
the maximum term of imprisonment, any extended term of imprisonment,and any mandatory minimum term of
Imprisonment specked above;consecutive terms of imprisonment(if more than one charge):restitution;a fine;
a fee and/or assessment;community service,probation with up to one year of imprisonment and other terms
and conditions.
( I Prosecutor Defendant ( ]Defense Counsel Aduit probation Division
MAY-03-2002 FRI 09:05 AM FAX CIO,
F7,U CASE NUMBER:ILTY/NO CONTEST PLEA(Continued) CR. No. 02-1-0743
[ ] i plead no contest because, after discussing all the evidence and receiving advice on the law from my
lawyer, 1 do not want to contest the charge(s)against me.
J I plead guilty because,after discussing ail the evidence and receiving advice on the law from my
lawyer, I believe that 1 am guilty.(Give a brief statement of the fads that establish the defendant's guilt
as to each offense to which the defendant is entering a plea pursuant to the requirements of HRS§§
701-114,701-115,702-205,and 702-208,as amended.)
I take responsibility for the use of City staff time for
non--City activities and the use of campaign monies for
non--campaign expenditures.
[xJ 1 move to defer acceptance of my plea. I understand that if the Court denies my motion,the Court will
then find and adjudge me guilty upon this plea,and impose sentence.
8, 1 have not been promised any kind of deal or favor or leniency by anyone for my plea,except that I have been
told that the government has agreed as follows(if none,write`None"):
See Exhibit "A" attached.
[xJ I know that the court is not required to follow any deal or agreement between the Government and me.
1 know that the court has not promised me leniency.
( ] The court has agreed to follow the plea agreement pursuant to Rule 11,Hawai'(Rules of Penal
Procedure.
9. I further state that(if none,write"None':
None
10, 1 know that,if I am not a citizen of the United States,a conviction or a plea of guilty or no contest,whether
acceptance of my plea Is deferred or not,may have the consequences of deportation,exclusion from admission
to the United States,or denial of naturalization under the laws of the United States.
11. I am signing this Guilty/No Contest Plea form after I have gone over all of it with my lawyer. 1 know I will not be
permitted to withdraw my plea.I am signing this form in the presence of my lawyer. I have no complaints about
my lawyer and I am satisfied with what he/she has done,for me.
DATE pEFENDANTS SIGNATURE
0 -2 -)-A .
CERTIFICATE OF COUNSEL
I certify that I have read and explained fully this Guilty/No Contest Plea document to the defendant and bolleve he/she understands
this document in its entirety. The statements contained in this document conform with my understanding of the defendant' and
position 1 believe the defendant's plea is made voluntarily and with an intelliigent understanding of the nature of the charg e(s)
possible consequences. The defendant signed this Guilty/No Contest Pica form in my resence.
DATE A FOR DEFENDANT 51 TU
I acknowledge that the Judge questioned me Por noncontest open
nd court derstood this fort FILM III dPM COUKI
that I knew what I was doing in pleading guilty
before I signed it. P a 2
DATE SIGNATURE OF DEFENPANT
0 4-)-57- (signad in open court after questioning)
NAME OF JUDGE +�
GAIL 0, NAKATANi
KOSHIBA AGENA & KUBOTA Alrorneys Al Law
2600 Pawhi Towcr
April 11, 2002 1001 Bishop Sheet
Honolulu,Hawaii 96813
Telephone(809)523-3900
Facsimile 08; 526-9829
PERSOYAL AND CON MENTIAL
Peter B. Carlisle, Esq,
Prosecuting Attorney
Dept. of the Prosecuting Attorney
1060 Richards St.
Honolulu, Hawaii 96813
Re; State v Rene Manshp
Dear Mr. Carlisle;
This letter confirms my understanding of our latest telephone conversation regarding
the plea agreement by and between Rene Mansho ("Defendant Mansho'� and the State of Hawaii
("the State"),
The agreement will consist of;
1. Defendant Mansho agrees to waive indictment in Honolulu Police Report Number
0 1-1607 84 et al. to the Criminal Offenses of Theft in the First Degree and Theft in
the Second Degree.
2. Defendant Mansho agrees to plead guilty to the Criminal Offenses of Theft in the
First Degree and Theft in the Second Degree, The State will take no action on the
remaining criminal charges,which include Forgery in the Second Degree,RICO and
Money Laundering.
3. Defendant Rene Mansho agrees to pay $25,000.00 towards restitution.
4. The State will acknowledge that Defendant Mansho has already paid $40,000.00
towards restitution and shall be free at sentencing to request the remaining amount
of unpaid restitution,
5. The State will not file for an extended term nor seek consecutive terms of
imprisonment.
6. Both the State and the Defendant are free to argue their respective positions at
sentencing.
7. No waiver of a Pre-Sentence Report.
EXHIMTW
MAY-03-2002 FRI 09;06 AN FAX N0. Y ��
Peter 1R.Carlisle,Esq.
April 11,2002
Page 2
8, Court must Rule 11 the agreement.
Thank you for your help in resolving this difficult matter.
Very truly yours,
James E.T. K,oshiba
for
KOSHIBA AGENA &KUBOTA
JETK:sh