February 26, 2008

(Editor’s note: In light of current events having to do with Wailea 670, we’ve decided to re-print this article from our archives, purely as background information. - JW)

In baseball, drug treatment programs and felony courts, the rules are “three strikes and you’re out.”
If there were a “three flip-flops” rule in politics, some of our elected representatives would certainly be “out” – and County Councilmember Mike Molina would be one of them.

In the Makena Resort/Ethics Board issue, in the Councilmember Jo Anne Johnson/Ethics Board matter, and on the subject of open government, Molina has done a reversal and voted – or not voted – in opposition to his own prior statements.
 
Last year Molina voted in committee to approve the controversial Makena Resort project.

When the rezoning request came to the full Council, the question of a possible conflict of interest on his part arose during public testimony. In order to resolve the question Molina asked for a ruling from the Ethics Board regarding his part-ownership of property near the resort development.

During a January interview with Haleakala Times, Molina claimed to be willing to accept any Ethics Board ruling, saying, “Whatever decision the Board makes, I will certainly abide by that.”

Instead, when the Board ruled unanimously that it would give an appearance of impropriety for him to vote, Molina called their decision “unusual,” and chose to contest it.

He implied that a different outcome would have occurred if Deputy Corporation Counsel Brian Moto had remained at the meeting instead of being replaced by Deputy Counsel Madelyn D’Enbeau, and stated that the board “may have caved into pressure from people lobbying them.”

Molina then chose to challenge the decision, bringing in an attorney and an Oahu land appraisal company. He asked the Board not to make a political decision based on appearances and conjecture, but to make one based on facts.

One of the facts involved in this matter was the uncovering of Molina’s land ownership through a family trust by a private citizen, Sean Lester.

It was not on the financial disclosure form elected officials are required to complete, although it should have been. When first questioned about his failure to list the property, Molina claimed to have forgotten about his interest in the land.

Item 7 on the form asks officials to list “Real property interests of any kind in Maui County, including personal residence.” If the property is “owned by a business entity, hui or partnership,” they must indicate the name of the entity and general partner. Elected officials “certify under penalty of perjury” that the financial disclosure is “a true, correct and complete statement.”

“According to the law, the trust owns the land and not myself per se,” said Molina in a subsequent interview. “So there is an important difference there. My understanding is, because it's a trust and there is no money coming from the property, there is no requirement on my part to disclose that,” he said.

As yet, Molina has not been held accountable for that clear violation of financial disclosure laws – a violation that calls for perjury charges, if appropriate.

When asked for his thoughts on if there is a conflict of interest, Molina said “My feeling is as long as I’m not receiving any compensation from the applicant, I believe it’s a whole separate issue.”

Lester was surprised Molina supported the rezone after strong campaign statements about overdevelopment, saying, “It didn’t make sense that he took a 180 degree shift.”

During public testimony in Council chambers, when Lester accused Molina of a conflict of interest, Molina asked if Lester had any evidence of wrongdoing to present. Lester attempted to respond but was interrupted by Molina’s demand to “Just answer my question – yes or no?”

Molina has said that he based his approval on Makena Resort’s “solid reputation as a corporate citizen and their good working relationship with the county.” If the project were not allowed to proceed at this point, Molina said, “To me, it’s like changing the rules of the game. It’s an issue of fairness.”

In a recent interview, Molina used some strong language to describe those citizens who feel he has a conflict of interest. “It’s McCarthyism,” he said, comparing their complaints to the Communist witch-hunting of the 1950’s. “They’re out there to smear me.”

Last month the Ethics board – which has since lost four of the original members and had three new ones appointed under controversial circumstances – voted 7-1 to reverse their original decision.

Molina will not reveal the final price of his successful challenge (It may cost Johnson $15,000 in lawyer fees to defend herself against ethics charges) but has stated. “Put it this way – the family vacation is now on hold.”
A matter of principle or political convenience?

When asked in January why he was unwilling to recuse himself on the Makena Resort vote, Molina stated “If I’m being asked to take my vote out, then you’re also taking the people out of the vote.” When it was pointed out during a later interview that many times councilmembers have recused themselves for one reason or another, he replied, “My feeling is if I’m not willing to make a vote on a tough issue, then why be in office? I, for one, feel I was put there to make decisions and look for what I feel is in the best interests of Maui County.”

Just last month, however, Molina recused himself from voting on Johnson’s request for special counsel to defend herself before the Ethics Board. His stated reason – because his request for a second opinion on the Makena conflict of interest question was still pending before the board, he felt it “would be inappropriate to vote on any matter related to the Ethics Board.”

That directly conflicts with an earlier statement Molina made regarding recusal as a general principle – “For me, as long as I’m not breaking the law, that's my main concern. If I’m breaking any law by voting, I then would abstain.”
The matter of Johnson’s request for special counsel was completely unrelated to the Ethics Board ruling and subsequent challenge by Molina.
 
His recusal, along with Councilmember Riki Hokama’s vote against the request, meant that there was not enough support to defend a fellow councilor against anonymous complaints that still remain undisclosed to the public.
The charges against Johnson have been described by other Councilmembers as “unprecedented,” “political in nature,” “very wrong,” “looks and smells like a rat,” and “an all-time low in Maui politics.” Every member has commented on the serious nature of this matter, one that will impact all elected officials in the future.

In essence, Molina has invoked the right of the people to his representation in a land use issue despite the appearance of a conflict of interest, but refused to represent the people in a politically charged ethics question with serious, long-term implications.

Will the voters get to choose?
Early this month Molina voted (along with Hokama) against a resolution intended to increase citizen participation in government.

Under current law, residents can place an initiative on the ballot only by gathering signatures of 20 percent of Maui’s registered voters - 14,600 signatures – in a 30-day period. The council ultimately passed the proposal that would change petition requirements to 20 percent of actual voters – about 8,600 signatures over a six-month period.

The proposed amendment doesn’t really diminish the effort required to place an initiative on the ballot, as the pool of actual voters is much smaller than the number of registered voters. It would, however, allow for a reasonable amount of time to gather those signatures.

Molina’s reason for keeping the current standard was that it had never been tested. “Instead of changing it, I’d rather see if there’s a problem with it first,” he said.

As someone who needed to collect signatures to qualify for his candidacy in the first place, Molina must know that gathering 14,000 signatures in 30 days is an almost impossible task – which is probably why it has never been tried on Maui – yet he claims not to see any problem with that requirement.

During the January Haleakala Times interview, Molina stated “When I was teaching social studies, I would always encourage young people to get involved in the process of government.” He also said that he encourages public input and community based decision-making.

Campaign ads in 2000 for Molina include statements like the following – “By supporting a comprehensive grass-roots process, we can identify and preserve our unique environment.” Voter initiatives are a prime example of direct community involvement, yet Molina voted against making that process more accessible to the public.
To make matters worse, the council wasn’t voting to change the charter itself – they were simply deciding if the initiative proposal should be placed on the November ballot for voters to decide. In effect, Molina made a conscious choice to deny voters the right to decide if they want better access to the process of making the laws of the land.

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Rob Lafferty