Lawyers for Hawaii island Mayor Billy Kenoi will argue in Hilo Circuit Court today that the indictment charging him with theft, tampering with government records and making a false statement under oath in connection with his misuse of a county credit card should be thrown out.

The mayor has been under fire since March 2015, when West Hawaii Today began reporting he was using his purchasing card, or pCard, for personal expenditures including an $892 tab at a Honolulu hostess bar, a surfboard, a bicycle, lavish dining and travel. The mayor’s total expenditures on the card from the time he took office in 2009 until 2015 amounted to $129,000. Kenoi said he reimbursed the county at least $31,000 for personal charges, much of it in the wake of media reports before he was indicted.

Oahu Circuit Judge Dexter Del Rosario will hear the motions to dismiss the case and consider other motions, including whether county attorneys must turn over 40 emails sought by the state Attorney General’s Office.

Kenoi was indicted on March 23 by a grand jury 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.

If he does not prevail, Kenoi will be the first sitting mayor in the state since former Honolulu Mayor Frank Fasi to be tried on criminal charges. His trial is scheduled for Oct. 10.

In one of four motions filed by Kenoi’s attorneys, he claims the Attorney General’s Office intentionally leaked “privileged and secret information to its chosen media partner — Hawaii News Now and its reporter Rick Daysog,” citing his exclusive reports.

The attorneys argued that the alleged release of confidential information violated Kenoi’s constitutional right to due process and to a fair and impartial grand jury proceeding.

“It served to unfairly prejudice Kenoi in the eyes of grand jurors, as well as the Third Circuit Community members who could potentially serve as trial jurors,” attorney Todd Eddins said in court documents.

Eddins cited the news station’s reports that the AG’s office was offering a plea deal; that theft charges would be investigated by a Hilo grand jury; and reports of who would be giving testimony and when they would testify.

The state in court documents called the claim “bold and sensational allegations,” arguing Hawaii courts have never dismissed an indictment on the basis of pre-indictment publicity. The state also says the motion fails to explain how the publicity would prevent a grand jury from being fair and impartial.

The state said it has no knowledge of anyone divulging information resulting in media leaks, and attached sworn statements to its opposition document from its deputy attorneys general and investigators.

Grand jury proceeding dates and the identity of witnesses were well known by various individuals and agencies outside the department, the state said.

“The defendant himself held a press conference where he reported that he routinely engaged in personal spending on his pCard,” and “openly admitted that this conduct spanned over a seven-year period,” the state said.

A motion that the mayor’s right to fair and impartial grand jury proceedings was denied claims that media coverage had “not been limited to fact-reporting,” and included “negative editorializing and blog commentary.”

Media coverage “has also routinely focused on scandalous details and uncharged conduct,” including expenditures at places “described as ‘hostess bars,’” the mayor’s attorneys argued.

Eddins said Kenoi reimbursed the county three months after accruing an $892 Club Evergreen tab in 2010, and that a $400 expenditure at Camelot Restaurant & Lounge was erroneous and canceled.

Eddins argued that the mayor’s due process rights were denied because as “Chief Executive Officer of the Big Island” he is responsible for promoting Hawaii island as a place friendly to business, hosting functions on the island and elsewhere, and entertaining and showing appreciation to dignitaries, organizations, officials, community leaders, county workers and volunteers.

Eddins said former county Finance Director Nancy Crawford testified before the grand jury that county credit cards were not intended for personal purchases for county employees, but department heads and “the Mayor himself could authorize personal purchases” that could be later reimbursed.

Kenoi’s right to due process was violated because he was indicted and arrested before it was explained to him what the county defined as personal versus county-public expenses; when reimbursements should be made; or the precision required for description of purchases on supporting documentation, his attorneys said.

The state said Kenoi is charged with violating criminal laws, not county policies and procedures, and is trying to muddy the waters by asserting the indictment was based on the latter. Kenoi knew when he reimbursed the county which were personal expenses and he admitted to putting personal charges on his pCard for years; some of the expenditures were erroneously characterized as official business; and Kenoi chose to evade payment until formal media demands were made for his pCard spending records, the state said.

In motions filed by the state, Del Rosario will consider whether the county must turn over the 40 emails it says are protected by attorney-client privilege. The Hawaii County corporation counsel represents county employees but is not, in this case, representing the mayor, who has retained his own private attorneys.

State vs. Billy Kenoi – Aug. 30