Ex-opponent says Guzman violated charter

WAILUKU – A county Board of Ethics complaint has been filed against Maui County Council Member Don Guzman for allegedly conducting private business on county time by assisting former mayoral candidate Neldon Mamuad in his last-minute bid to file his papers to run for office last month.

Kahului resident Alan Fukuyama, Guzman’s opponent in the last election, wrote a letter to the Board of Ethics on June 27 alleging Guzman is in violation of Section 10-4 of the Maui County Charter. It states that “no officer or employee of the county shall . . . use county property or personnel for other than public activity or purpose.”

In his letter, Fukuyama referred to a news report on June 25 in The Maui News that quoted Mamuad in a 2nd Circuit Court hearing on his candidacy status. Mamuad said Guzman notarized his political candidacy forms in the Kalana O Maui building during business hours.

Mamuad is a former part-time aide to Guzman and his former campaign chairman.

“Council Member Guzman should be subject to the penalties set forth under Section 10-5 of the Maui County Charter,” Fukuyama wrote.

Under Section 10-5, those who violate provisions of the section shall face a fine; elected officers may be removed through impeachment proceedings; nonelected officers or employees may be suspended or fired.

In the court hearing, 2nd Circuit Judge Peter Cahill ruled that Mamuad was ineligible to run for mayor for failing to turn in his candidate financial disclosure on time. The judge noted that Mamuad conducted personal business on county time by visiting Guzman, a council member, lawyer and a member of the bar association, to have his candidate documents notarized.

Guzman sent a letter to the Board of Ethics refuting Fukuyama’s claims. In an email Friday, Guzman said the complaint against him is “frivolous” and that he did not notarize Mamuad’s papers.

He added that Fukuyama’s allegation is based on one excerpt from a lengthy news article that was “speculative” and not deemed as factual in the context of the court hearing.

“It is unfortunate that Mr. Fukuyama’s accusations will require county time and taxpayers monies in order for the board to complete its vetting and decision-making process,” Guzman said. “We have so many major issues that need our time and efforts to resolve for the betterment of our community. However, I look forward to presenting the facts and the opportunity to speak with the board. I am confident that once the board is presented with the facts it will dismiss his frivolous complaint.”

Guzman was in New Orleans on Friday with most other County Council members attending the National Association of Counties annual conference. In his email, he said Fukuyama’s complaint may be political retaliation. The council member representing the Kahului residency district said that he reported “legitimate campaign spending violations” to the state Campaign Spending Commission, which required Fukuyama to amend his reports.

“It is sad to think that this complaint may have been generated for political retaliatory reasons, considering the fact that Mr. Alan Fukuyama was my opponent in the 2012 election, wherein I reported legitimate campaign spending violations against him,” Guzman said. “Currently, Mr. Fukuyama has joined my 2014 opponent’s campaign team (Joe Pontanilla) and is significantly involved in promoting his campaign.”

On Friday, Fukuyama confirmed that there was an error in one of his campaign spending reports in which his campaign forgot to note some purchased advertisements. He said the report was amended and there were no fines or penalties against him.

Fukuyama said he did not know where the complaint about his spending report came from. He added he was glad that the issue was pointed out to him and he had the chance to correct it and prevent the same error from occurring.

Fukuyama acknowledged that he and Pontanilla are friends and that he has known Pontanilla for a long time.

Guzman faces Pontanilla in the upcoming general election. Pontanilla is a former council member and currently an executive assistant for Mayor Alan Arakawa.

Pontanilla previously held the residency seat Guzman currently holds and had to give up the seat due to term limits. Pontanilla’s departure led to the 2012 general election faceoff between Fukuyama and Guzman. Guzman beat Fukuyama, garnering 23,415 votes to 14,903.

On Wednesday afternoon, the Board of Ethics discussed Fukuyama’s complaint in a closed-door executive session. Board attorney and Deputy Corporation Counsel Linden H. Joesting said in an email that new complaints are always heard in executive session unless the person against whom the complaint is addressed wants the information discussed in open session.

The case will be discussed again at the panel’s next meeting, in August, she said Thursday.

County attorneys did not release Fukuyama’s complaint or Guzman’s response letter despite several requests by The Maui News over the past week. The Maui News also filed a Freedom of Information Act request on July 3 to obtain Fukuyama’s letter. As of noon Friday, the county has not responded to the filing.

The Maui News received Fukuyama’s letter from its author. Fukuyama told The Maui News on Monday, days prior to releasing his letter, that his complaint was not a personal one; it was a matter of ethics.

“The whole thing bothers me. They could do that in the county building and get away with that, you cannot conduct private business in a public facility,” Fukuyama said.

The issue surrounding Guzman allegedly notarizing political papers on county time surfaced when Mamuad testified in 2nd Circuit Court late last month in his court battle to stay on the ballot in a run for Maui County mayor. In that case, Cahill affirmed Maui County Clerk Danny Mateo’s preliminary ruling that because Mamuad failed to file a legally required candidate financial disclosure on the June 3 nomination filing deadline, he is barred from running in the upcoming elections.

In the hearing, Mamuad testified about the steps he took to file his nomination papers June 3 at the county building. When clerks discovered that Mamuad did not get a form notarized, Mamuad said he went upstairs to the eighth floor of the Kalana O Maui building to see Guzman to notarize his form.

“In this situation, I did not notarize Mamuad’s nomination papers,” Guzman said.

He said that he was leaving his office for the day when Mamuad requested his assistance. Mamuad said he had forgotten to have his papers notarized and the clerk’s office was about the close.

“As a Notary Public, I felt that I had a duty to accommodate his request, and then I went downstairs to the clerk’s office to execute the document, but then the office doors were being closed at 4:30 p.m. and the deputy clerk told me ‘no need’ because the County Clerk Mateo, via his position will execute and complete the notarial act for Mr. Mamuad. Thus, the doors were locked behind me and I proceeded to leave the building to go home.”

Mamuad said in a written statement to The Maui News Friday that after he was sent on a “wild goose chase for a notary” Mateo eventually “graciously allows me to swear my oath in his presence.”

Mateo told The Maui News that Guzman had notarized Mamuad’s papers, but the papers did not have the required seal. Because Mamuad was in the clerk’s office before 4:30 p.m., the closing time, Mateo said that to process Mamuad’s filing papers he had Mamuad swear the oath in his presence.

Guzman did come down to the clerk’s office but the doors had already been locked for the day, Mateo said.

Guzman said that as a notary public he was required to fulfill Mamuad’s request. He quoted the law saying that a public notary “shall, as a government officer and public servant, serve all of the public in an honest, fair and unbiased manner.”

The council member said that he is “proud and honored to perform” his notary public duties for any member of the public that may request “such lawful and proper notarial act” and that he has not demanded or received any fees for such requests.

“I do not use my council office as a private business,” he said.

Guzman said his job as a council member is officially considered part time. He is also an attorney, and neither position is related to his being a notary public.

“The duties of a notary and a council member are consistent in that both are public servants and officers of the government and shall fulfill and execute the duties for public purpose,” he said.

According to the state of Hawaii Notary Public Manual, a notary public is a public officer whose functions include: administering oaths, witnessing the signing of documents, attesting to the identity of the signers of a document, noting protests and taking acknowledgments of documents.

In order to become eligible for a notary public commission in Hawaii, applicants must be U.S. citizens, or national or permanent resident aliens of the U.S. who diligently seek citizenship upon becoming eligible for U.S. citizenship. They must also be Hawaii residents and at least 18 years old, the manual said.

After approval of an applicant by the state attorney general, the applicant is required to take a written, closed-book examination covering statutory laws and rules that apply to notaries public, as well as practical aspects of a notary’s practice and a notary’s duties and responsibilities.

Guzman said he suspects that Fukuyama may have misunderstood Judge Cahill’s comments in The Maui News story. Guzman said it is clear from the news report and court transcripts that Cahill was referring to Mamuad’s personal filing of his nomination papers while he was still working on county time.

“It was a speculative statement that was never addressed, pursued or proven up as factual in the court case,” he said.

“Had this blurb been relevant, the findings would have disclosed the fact that Mr. Mamuad submitted his resignation from his county position in my office . . . prior to him going to the clerk’s office to file his nomination papers. Mr. Mamuad was no longer a county employee, he was an average citizen,” a member of the public attempting to file his nomination papers, Guzman said.

In the written statement, Mamuad echoed Guzman’s comments.

“These campaign opponents need to start picking less obvious operatives to carry out their dirty work,” Mamuad said. “After my review of Mr. Fukuyama’s ethics complaint, it is apparent to me that his claims are nothing more than politically motivated distractions. He takes speculative comments from the judge in open court that was published in The Maui News and uses them for a basis for an ethics complaint?”

Earlier this year, Mamuad became embroiled in the Arakawa’s administration’s investigation of a cyber-bullying complaint from police officer Keith Taguma, who alleged he was being harassed on the Facebook page, formerly known as TAGUMAWatch and currently MAUIWatch.

An investigation led to a determination that Mamuad had violated the county’s “Violence in the Workplace Action Plan.” He sought to appeal that ruling and a requirement that he enroll in an employee training program to address harassment and cyber-bulling, but he said he had no recourse but to file a lawsuit.

The lawsuit was settled out of court last month, with the county agreeing to pay $25,000 in attorneys’ fees and damages.

Mamuad has said his decision to run for mayor was not a personal vendetta against Arakawa.

* Melissa Tanji can be reached at mtanji@mauinews.com.