State Auditor Les Kondo faces ‘illegal’ act or prosecution

State Auditor Les Kondo told a House committee investigating his handling of two critical audits that a subpoena required him to commit an illegal act or face a possible charge of criminal contempt.

In a letter dated Tuesday, Kondo told the eight members of a special House committee of inquiry that he needed more time to respond to a subpoena issued to him on September 29 and to obtain outside legal advice, as the state attorney general would be “responsible for pursuing any charges of criminal contempt against me and other employees.” The Attorney General and his office cannot serve as a prosecutor while defending us in criminal contempt proceedings. There is a legal conflict between the Attorney General and his office to represent me and other employees. “

Kondo, a lawyer and former head of the State Ethics Commission, wrote that “the summons duces tecum presents me with an impossible choice: either to comply with the summons, thereby committing an act unlawful and contrary to the law. ethics, or fail to comply with them and risk a charge of criminal contempt. . “

“As the Committee is already aware, our audit working papers are confidential under the law. 1) The state code of ethics also prohibits me (and other employees in the office as well as former employees) from disclosing the information contained in these working papers. 2) Notwithstanding these unambiguous statutory provisions, the subpoena duces tecum orders the production of documents before October 13, 2021, which are not related to the stated – and therefore legal – objective of the Committee and include confidential working documents. And, under the Committee’s rules, I risk being charged with criminal contempt for complying with the state Code of Ethics and other state laws, ”Kondo wrote.

“The committee’s tactics – clearly intended to put pressure on me and others – are legally and ethically unacceptable, especially in light of the objective and scope of the investigation set out in the resolution of the Room 164. In view of Hobson’s choice, we are presented by the committee – and especially with the possibility of criminal prosecution – we are obliged to retain the services of a lawyer to represent me and other employees, s ‘they are called to testify.

The House Inquiry Committee was formed to investigate Kondo and his office’s handling of two separate and critical audits of state land management by the Agribusiness Development Corp. and the Special Land and Development Fund of the Ministry of Lands and Natural Resources.

Unlike typical legislative committee hearings, the unusual ‘Chapter 21’ investigative hearing involves witnesses who have been subpoenaed to testify under oath and – particularly in Kondo’s three appearances – reminded that they have the right to be assisted by a lawyer. All witnesses except Kondo have testified so far accompanied by a lawyer.

Kondo concluded his two-page letter by writing:

“To be clear, we are not asking the Committee to stop or otherwise delay its legitimate work of following up on audits of the Special Land and Development Fund of the Ministry of Lands and Natural Resources and the Agribusiness Development Corporation. Now that the Committee demands that we act in violation of state law or risk being charged with criminal contempt, we must simply exercise our right to be represented by counsel and ask that the Committee allow us to do. We intend to retain the services of a legal advisor as quickly as the Public Procurement Code allows and we hope to be able to do so within 30 days.

During a House Committee of Inquiry hearing on Wednesday, the Speaker and House Majority Leader Della Au Belatti – who is also a lawyer – said she will need to consider the issues raised in the letter from Kondo before answering.

She also issued additional subpoenas, added more days for hearings, and said the number of documents that have been subpoenaed has doubled – from over 12,000 pages initially to over 24,000 now. “Informal talks” were also conducted, she said.

Hearings began on September 13 and are scheduled to end on October 28, followed by a report in November before the next legislative session.

Whether the House Inquiry Committee finds wrongdoing in the way Kondo or his office handled audits, the first four weeks of hearings served to amplify critical audit findings, which is likely to prompt to legislate the next session to resolve land management issues. to ADC and DLNR.

State Representative David Tarnas (D, Kaupulehu-Waimea-Halaula) – a member of the committee and chairman of the House Water and Land Committee – told the Honolulu Star-Advertiser on Tuesday that any bills targeting the findings of the DLNR’s Special 2019 audit The Land and Development Fund would likely come before their committee, and they might be able to draft the legislation on their own.