A judge will decide Friday whether Hawaii County attorneys must turn over 40 emails sought by the attorney general’s office in Mayor Billy Kenoi’s theft case involving alleged abuse of a county credit card.
The county’s corporation counsel has refused to turn over the emails, citing attorney-client privilege.
However, the client in question is not Kenoi, who has his own lawyers. The county attorneys say they are invoking the privilege on behalf of other county employees.
A judge will also decide on a number of other motions, including ones by Kenoi to dismiss the case on various grounds, including violation of his right to fair and impartial grand jury proceedings.
Friday’s hearing precedes Kenoi’s criminal trial, which is set for Oct. 10, less than two months before the mayor’s term ends on Dec. 5.
A grand jury indicted Kenoi March 23 on two counts of second-degree theft, two counts of third-degree theft, three counts of tampering with a government record and one count of making a false statement under oath.
In court documents, the state says the grand jury was presented with 15 of Kenoi’s county purchasing card, or pCard, transactions to substantiate the alleged crimes. In addition, grand jurors were shown 37 exhibits including receipts, bank records and calendar entries.
“More significantly, the majority of the receipts detailed an exorbitant amount of alcohol being purchased,” a court document filed by the state says.
The mayor admitted to unauthorized use of his pCard from the time he took office in 2009 until 2015. In all, he racked up more than $129,000 in charges, some for personal use including a 2010 $892 tab at a Honolulu hostess bar, a surfboard, a bicycle, lavish dining and travel. He said he has reimbursed the county at least $31,000 for all personal charges.
Todd Eddins, Kenoi’s attorney, filed several motions on Aug. 8 to have the case dismissed. One motion to dismiss two theft charges against Kenoi is “based on failure to provide adequate notice as to the terms of the charges,” according to court records.
In his response to one motion, Deputy Attorney General Kevin Takata said Kenoi “asserts that as mayor he possessed the legal authority to deviate from the county pCard procedures. … that as the executive of the county he independently determines the propriety of his spending.”
The county’s corporation counsel filed a motion Aug. 30 to invalidate a subpoena seeking attorney-client privileged material and “for an order requiring the return or destruction of privileged material inadvertently disclosed.”
They include emails between Kenoi, his then-executive assistant Peter Boylan, Corporation Counsel Molly Stebbins, Finance Director Deanna Sako, and other current and former county employees and county lawyers, mostly about pCards, pCard expenses and pCard procedures.
Deputy Corporation Counsel Steven Strauss said his office compiled a list of 40 emails protected by attorney-client privilege as a part of discovery in the case and has turned over more than 18,000 pages of documents to the attorney general.
The public “should not assume any damning or significant emails” are among the 40. Rather, “we assert it (privilege) for any emails” that are between attorney and client.
“We claim privilege because that’s our duty,” Strauss said.
As attorneys, he said his office represents county employees in their official capacity, but does not, in this case, represent the mayor because he has retained his own attorneys who can assert privilege on his behalf.
Fifteen of the emails are dated April 2, 2015, including five regarding messages from the Honolulu Star-Advertiser, a day after Kenoi held a news conference in Honolulu at the state Capitol explaining he used his pCard for personal expenditures because he didn’t have a personal credit card, and that he regularly paid the money back.
Kenoi said he paid back $7,500 to the county on March 31, 2015, two days after Big Island newspapers reported he used the credit card at a hostess bar.
Some emails date from 2009 and 2010, after West Hawaii Today reporter Nancy Cook Lauer began inquiring about the mayor’s spending.
The criminal case against Kenoi includes allegations that he charged a luncheon at the Hilo Yacht Club described as an “Office Strategic Planning Lunch-eon” that was actually a farewell luncheon for his executive assistant Kevin Dayton, who now works for the Honolulu Star-Advertiser; that beer and whiskey bought at Longs Drugs were not for a “Sam Choy’s Poke Contest Volunteer Application Event”; and that a lunch at the Volcano House Restaurant was not for “U.S. Conference of Mayors visitors.”
The state has filed applications to grant immunity for five witnesses: Finance Director Sako, former Finance Director Nancy Crawford, former Managing Directors Randy Kurohara and William Takaba, and former Executive Assistant Paulette Wilson.
Strauss said the record misstates that his office sought immunity for them.
“What we did ask is whether the attorney general expected or intended to offer immunity, but we did not request immunity on anybody’s behalf.”
If a witness accepts immunity when called to testify, that witness can be ordered under penalty of law to answer, and cannot invoke the Fifth Amendment, Strauss said.
Cook Lauer has also been subpoenaed to testify at trial.
After his arrest in March, Kenoi was freed on his own recognizance.
State vs. Billy Kenoi – Aug. 30
