DOBOR of­fi­cial files ethics com­plaint against county pros­e­cu­tor

Hawaii Tribune Herald - - COMMUNITY - By NANCY COOK LAUER Email Nancy Cook Lauer at ncook-lauer@west­hawai­ito­

An ethics com­plaint against County Pros­e­cu­tor Mitch Roth is bring­ing to the sur­face years of sub­merged ac­cu­sa­tions and coun­ter­ac­cu­sa­tions be­tween local boaters and the state Di­vi­sion of Boat­ing and Ocean Recre­ation.

The com­plaint, filed Oct. 31 with the county Board of Ethics by DOBOR Ad­min­is­tra­tor Ed Un­der­wood, ac­cuses Roth of us­ing his post to fur­ther pri­vate in­ter­ests when he tes­ti­fied dur­ing an Oct. 28 state Board of Land and Nat­u­ral Re­sources hear­ing.

“I’m used to the pub­lic get­ting up­set,” Un­der­wood said Tues­day. “I ac­cept that. What I can­not ac­cept is an elected pub­lic of­fi­cial — a county pros­e­cu­tor — claim­ing I’m cor­rupt and I’m re­tal­ia­tory with ab­so­lutely no ev­i­dence, with­out hav­ing the courtesy to talk to me first. I was com­pletely blind­sided by this whole thing.”

Af­ter fail­ing to muster a quo­rum to con­sider the is­sue Tues­day, the Ethics Board sched­uled a Feb. 14 hear­ing for the com­plaint.

At is­sue at the Land Board was local char­ter Capt. Wil­liam Mur­taugh’s re­quest for a con­tested case hear­ing af­ter DOBOR re­fused to re­new his com­mer­cial boat ramp per­mit at Keauhou Bay. Mur­taugh had ques­tioned DOBOR’s al­lo­ca­tion of moor­ings since 2012, and he claims the loss of his per­mit, as well as other ac­tions, were in re­tal­i­a­tion.

Roth launched a crim­i­nal in­ves­ti­ga­tion into the ac­cu­sa­tions of fa­voritism and re­tal­i­a­tion in the local DOBOR of­fice. Roth said he tes­ti­fied dur­ing the Land Board hear­ing as a pri­vate per­son, not a county pros­e­cu­tor. He paid his own way to Honolulu and took an­nual leave, he said. Nor was he rep­re­sent­ing Mur­taugh.

“I be­lieve there is cor­rup­tion,” Roth told the Land Board, ac­cord­ing to a record­ing of the meet­ing. “Peo­ple be­lieve there is re­tal­i­a­tion.”

Roth said Tues­day he couldn’t sit idly by while Mur­taugh was de­nied a con­tested case hear­ing, which he thinks is a con­sti­tu­tional right be­fore the state takes away your liveli­hood. He went to the meet­ing in de­fense of jus­tice, he said.

“Be­cause this mat­ter came to me in my of­fi­cial role as the prose­cut­ing at­tor­ney, I ex­plained that I was so em­ployed, how­ever, that I was not there in my of­fi­cial ca­pac­ity,” Roth said in a re­sponse to the ethics com­plaint. “Fur­ther­more, at no time did I take any com­pen­sa­tion for my tes­ti­mony.”

He told the Land Board he found ev­i­dence of an al­tered doc­u­ment that mis­stated the size of Mur­taugh’s son’s boat as a jus­ti­fi­ca­tion for deny­ing him a moor­ing, a tar­geted au­dit of Mur­taugh’s gross re­ceipt state­ments af­ter he com­plained, a staff rec­om­men­da­tion against a con­tested case hear­ing to get his per­mit back and other ac­tions, some of which were told to him by other DOBOR staff.

Roth said he sent let­ters to state Depart­ment of Land and Nat­u­ral Re­sources Chair­woman Suzanne Case and the state at­tor­ney gen­eral’s of­fice, ask­ing for an in­ves­ti­ga­tion. In re­sponse, Case asked for the names of staffers who spoke to Roth. Roth re­fused to give Case the names, say­ing they could be legally pro­tected whis­tle-blow­ers.

“We have looked into this,” Case told the Land Board. “Just to make it crys­tal clear, we don’t tol­er­ate cor­rup­tion.”

Case did not re­turn a fol­low-up phone call by press time Tues­day.

“There is noth­ing we can con­firm right now,” at­tor­ney gen­eral’s of­fice spokesman Joshua Wisch said Tues­day.

Through the years, about a half-dozen boaters also com­plained to West Hawaii To­day, but re­fused to be iden­ti­fied in sto­ries be­cause of their stated fear of re­tal­i­a­tion.

Un­der­wood said the fears are un­founded.

“There’s a com­plete open line of com­mu­ni­ca­tion,” he said. “They can go all the way up the chain if they think there’s some wrong­do­ing go­ing on.”

That’s not al­ways been the case for Mur­taugh. Un­der­wood blasted him in an Oct. 29, 2013, email that was copied to dozens of in­di­vid­u­als in the pub­lic and pri­vate sec­tors, in­clud­ing state leg­is­la­tors.

“You have com­plained ev­ery step of the way,” Un­der­wood said in ref­er­ence to on­go­ing work to re­place moor­ings to pro­tect coral. “You are not en­ti­tled to moor in Keauhou Bay. It is a state re­source and you have the priv­i­lege of moor­ing in the bay and the obli­ga­tion to en­sure that you do not dam­age the nat­u­ral re­source. … I will not be re­spond­ing to your emails any longer be­cause it’s ob­vi­ous that you cur­rently do not have any­thing of sub­stance to of­fer.”

Land Board mem­ber Stan Roehrig, a Hilo at­tor­ney, used the let­ter as an ex­am­ple of the bad blood that’s ex­isted for long time be­tween Un­der­wood and Mur­taugh. Roehrig, the only Land Board mem­ber vot­ing to al­low a con­tested case hear­ing, said it looked like Un­der­wood was “pick­ing on” Mur­taugh.

LAURA RU­MIN­SKI/ West Hawaii To­day

The Keauhou boat ramp is used by com­mer­cial and pri­vate par­ties on Tues­day.



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