Response to Ethics Commission charges

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TED H. S. HONG 3569 Attorney at Law 101 Aupuni Street, Ste. 1014 A-3 P. 0. Box 4217 Hilo, HI 96720 Telephone No. 808.960.3156 Facsimile No. 808/933.1919 [email protected]

Attorney for Respondent WILLIAM ERIC BOYD

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HAWAII STATE ETHICS COMMISSION

STATE OF HAWAII

HAWAII STATE ETHIC COMMISSION, ) )

CHARGE NO. 1 0-Cg-4

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Complainant, ) )

vs. ) )

WILLIAM ERIC BOYD, ) )

Respondent. )

RESPONDENT'S ANSWER TO CHARGEANDFURTHERSTATEMENT OF ALLEGED VIOLATION DATED APRIL 18, 2012; REQUEST FOR FORMAL AND CONTESTED HEARING; REQUEST FOR OPEN HEARING; CERTIFICATE OF SERVICE

RESPONDENT'S ANSWER TO CHARGE AND FURTHER STATEMENT OF ALLEGED VIOLATION DATED APRIL 18, 2012

COMES NOW Respondent, WILLIAM ERIC BOYD (hereinafter referred to as

"Respondent") by and through his undersigned counsel and hereby submits his Answer to the

Charge dated October 20, 2010, and Further Statement of Alleged Violation dated April18, 2012

pursuant to Section 84-31, Hawaii Revised Statues (hereinafter referred to as "HRS") and

Section 21-5-2( c), Hawaii Administrative Rules (hereinafter referred to as "HAR"), as follows:

FIRST DEFENSE-ADMISSIONS AND DENIALS (Charge dated October 20. 2010)

1. Respondent admits the allegations set forth in paragraphs 1, 5, 7, 8, 11, of the

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Charge.

2. Respondent denies the allegations set forth in paragraphs 2, 4, 6, 9, 10, 12, 13, 14,

15, 16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29,30,31,32,33,34,35,36,37,38,39,4~

41,42,43,44,45,46,47,48,49,50,51,52,53,54,55,56,57,58,59,60,61,62,63,64,65,66,

67,68,69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79,80,81,82,83,84,85,86,87,88,91,92,and93

of the Charge.

3. Respondent denies any and all other allegations contained in the Charge that were

not previously addressed herein.

SECOND DEFENSE-WITHOUT KNOWLEDGE OF INFORMATION (Charge dated October 20, 2010)

4. Respondent, is without knowledge or information sufficient to form a belief as to

the truth of the allegations set forth in paragraphs 3, 89, and 90 of the Charge and hereby denies

the same.

THIRD DEFENSE-LACK OF JURISDICTION (Charge dated October 20, 2010)

5. Pursuant to Sections 302B-7( c) and 302B-9(a), HRS, the Hawaii State Ethics

Commission has no jurisdiction-over employees ofNew Century Public Charter Schools.

FOURTH DEFENSE- FAILURE TO STATE A CLAIM (Charge dated October 20, 2010)

6. The Charge fails to state a claim upon which relief may be granted.

FIFTH DEFENSE -VIOLATION OF SUBSTANTIVE AND PROCEDURAL DUE PROCESS (Charge dated October 20. 2010 and Further Statement of Alleged Violation

dated April18, 2012)

7. Complainant, its Chairperson, Vice Chairperson, Commissioners, Executive

Director and representatives and employees have violated the Respondent's substantive and

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procedural due process of law, including but not limited to:

a. Conducting an investigation after charges had already been filed against

the Respondent;

b. Failing to allow Respondent's counsel to adequately represent and

defend him during forced and compelled interrogations by Complainants;

c. Unlawfully invading the Attorney-Client Privilege between

Respondent's counsel and Respondent;

d. Complainant, its Chairperson, Vice Chairperson, Commissioners,

Executive Director and representatives and employees are fundamentally and

legally incapable of hearing or rendering a fair, impartial decision on the charges

in this matter as they have been unlawfully briefed by the Complainant, its

Executive Director and its counsel, about the substance of the charges against the

Respondent, and predetermined the Respondent's guilt in the present matter.

e. The Complainant, its Chairperson, Vice Chairperson, Commissioners,

Executive Director and representatives and employees have predetermined the

Respondent's guilt by: (1) filing the charges against the Respondent on October

20, 2010; (2) allowing Complainant's counsel to conduct further investigation

after the charges had been filed and the Respondent having formally answered the

October 20, 2010 charges; (3) exploiting the Respondent's Answer to the October

20 I 0 charges by delaying any hearing to wrongfully use their investigative powers

to counter the Respondent's defenses; (4) delaying any hearing on the charges in

the present matter until the Complainant, its Chairperson, Vice Chairperson,

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Commissioners, Executive Director and representatives and employees

manipulated a change in the laws applicable to State employees to negate the

Respondent's defenses to the original October 20, 2010 charge; (5) after

successfully manipulating the Legislature to change the law to negate the

Respondent's defenses, the Complainant, its Chairperson, Vice Chairperson,

Commissioners, Executive Director and representatives and employees filed a

second set of charges reflected in the Further Statement of Alleged Violation.

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8. That such actions deprived the Respondent of a legally cognizable defense.

9. The Complainant, its Chairperson, Vice Chairperson, Commissioners, Executive

Director and representatives and employees have been engaged in a pattern, practice and

conspiracy to deprive the Respondent ofhis constitutional right to due process of law, including

but not limited to a fair, impartial and unbiased hearing on the October 20, 2010 charges and the

further charges filed on April18, 2012, in violation of Title 42 U.S.C., Sec. 1983.

10. That the Further Statement ofViolation dated April18, 2012, was brought

resulting from a conspiracy between the Complainant, its Chairperson, Vice Chairperson,

Commissioners, Executive Director and representatives and employees to single out, punish and

retaliate against the Respondent for having filed a civil action against the Complainant and

Executive Director and make hold the Respondent out as an example to any and all future State

employees not to oppose or challenge the Complainant in any manner.

11. That the Complainant, its Chairperson, Vice Chairperson, Commissioners,

Executive Director and representatives and employees have been engaged in a pattern, practice

and conspiracy of manipulating the charges and law in order for an improper purpose including

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but not limited to, engaging in a discriminatory pattern, practice and conspiracy to engage in a

discriminatory action against the Respondent including by manipulating the charges and law

against the Respondent in order to force the Respondent to plead guilty to the present charges or

find the Respondent automatically guilty of the present charges without regard to the

Respondent's defenses and evidence.

12. That the Complainant, its Chairperson, Vice Chairperson, Commissioners,

Executive Director and representatives and employees have been engaged in a pattern, practice

and conspiracy of depriving the Respondent of due process to have a hearing held in a timely

manner, in violation of its own rules and regulations and that as a result of the Complainant, its

Chairperson, Vice Chairperson, Commissioners, Executive Director and representatives and

employees intentional delay in setting the public hearing concerning the charges in the present

matter, the Respondent has been deprived of his constitutional right to adequately defend himself

due to the passage of time and is unconstitutionally prejudiced because the memories of

witnesses have faded, evidence has been lost and the Complainant, its Chairperson, Vice

Chairperson, Commissioners, Executive Director and representatives and employees have been

engaged in a pattern, practice and conspiracy of refusing to produce any statement ofwitnesses,

and transcripts of forced interrogations made under oath or any evidence that the Respondent can

use to defend himself or adequately prepare his defense.

SIXTH DEFENSE-ADMISSIONS AND DENIALS (Further Statement of Alleged Violation dated April18. 2012.

13. Respondent denies the allegations set forth in paragraphs I.A.l and 2; I.B.3, 4, 5,

6, 7; II.A.8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, II.B.l9, 20, 21, 22, 23, 24, 25, 26, 27, 28;

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III.A.29, 30, 31, 32, 33, 34, 35, 36, 37, III.B.39, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51,

and 52 of the Further Statement of Alleged Violation dated April18, 2012.

14. Respondent denies any and all other allegations contained in the Further

Statement of Alleged Violation dated April18, 2012 that were not previously addressed herein.

SEVENTH DEFENSE-WITHOUT KNOWLEDGE OF INFORMATION (Further Statement of Alleged Violation dated Aprill8, 2012.)

15. · Respondent, is without knowledge or information sufficient to form a belief as to

the truth of the allegations set forth in paragraphs I.A.l and 2; I.B.3, 4, 5, 6, 7; II.A.8, 9, 10, 11,

12, 13, 14, 15, 16, 17, 18, II.B.l9, 20, 21, 22, 23, 24, 25, 26, 27, 28; III.A.29, 30, 31, 32, 33, 34,

35, 36, 37, III.B.39, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, and 52 ofthe Further

Statement of Alleged Violation dated Apri118, 2012 and hereby denies the same.

EIGHTH DEFENSE-LACK OF JURISDICTION (Further Statement of Alleged Violation dated Aprill8, 2012.)

16. Pursuant to Sections 302B-7( c) and 302B-9(a), HRS, the Hawaii State Ethics

Commission has no jurisdiction over employees ofNew Century Public Charter Schools.

17. The 20 12 law that makes employees of Charter Schools "state employees" may

not be enforced retroactively.

NINTH DEFENSE- FAILURE TO STATE A CLAIM ((Further Statement of Alleged Violation dated April18. 2012.)

18. The Further Statement of Alleged Violation dated April 18, 2012 fails to state a

claim upon which relief may be granted.

TENTH DEFENSE- VIOLATION OF REGULATIONS (Charge dated October 20, 2010 and Further Statement of

Alleged Violation dated Aprill8, 2012)

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19. That the Complainant has exceeded the time to bring the Charge dated October

20,2010 and Further Statement of Alleged Violation dated April18, 2012.

20. That the Complaint,, by and through its officers, agents, representatives and

employees, violated Chapter 84, HRS and Title 21, chapters 1 through and including 6, HAR by

filing the Further Statement of Alleged Violation dated April 18, 2012, without any legal

authority or following proper procedures.

PRAYER FOR RELIEF

WHEREFORE, Respondent, WILLIAM ERIC BOYD, prays that the Commission:

(a) Find that the Complainant, by and through its officers, agents, representatives and

employees, have deprived the Respondent of his constitutional due process rights and dismiss the

Charge dated October 20, 2010 and the Further Statement of Alleged Violation dated April18,

2012;

(b) Find that the Complainant, by and through its officers, agents, representatives and

employees, have deprived the Respondent of his constitutional due process rights and dismiss the

Charge dated October 20, 2010 and the Further Statement of Alleged Violation dated April 18,

2012 were brought for an improper purpose and dismiss the charges;

( c) Find that the Complainant, its Chairperson, Vice Chairperson, Commissioners,

Executive Director and representatives and employees are incapable of hearing, deciding or

rendering an impartial, unbiased and objective manner and/or decision and dismiss the charges

against the Respondent;

( d) Find that the Commission has no jurisdiction over New Century Public Charter

Schools and its employees and may not retroactively apply any new laws as an excuse to ensnare

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the Respondent and find him guilty of the present charges;

(e) Find that the Complainant, its Executive Director, its officers, agents and employees

wrongfully delayed the hearing in the present case depriving the Respondent of his constitutional

protections to adequately prepare his defense due to the passage of time and was

unconstitutionally prejudiced because the memories of witnesses have faded, evidence has been

lost and the Complainant, its Chairperson, Vice Chairperson, Commissioners, Executive Director

and representatives and employees have been engaged in a pattern, practice and conspiracy of

refusing to produce any statement of witnesses, and transcripts of forced interrogations made

under oath or any evidence that the Respondent can use to defend himself or adequately prepare

his defense

(f) Find that Respondent, WILLIAM ERIC BOYD did not violate Chapter 84, HRS;

(g) Find that the Complainant, its Executive Director, its officers, agents and employees

violated the Respondent's substantive and procedural due process rights by unlawfully

discriminating against the Respondent;

(h) Find that the Complainant, its Executive Director, its officers, agents and employees

conducted the present investigation in a grossly negligent and unprofessional manner which rose

to the level of violating the Respondent's substantive and procedural due process rights;

(i) In the alternative, find that actions set forth in the Charge were de minimus and fail to

rise to the level of any violation of Chapter 84, HRS;

case;

G) Find that the Respondent, WILLIAM ERIC BOYD acted at all times in good faith;

(k) Award Respondent, WILLIAM ERIC BOYD any fees and costs arising from this

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(1) Award Respondent, WILLIAM ERIC BOYD any other relief within its discretion, and

that is equitable;

(m) Initiate proceedings to terminate the continued employment of the Executive

Director, Stanley Chong, Esq., and any other officers, agents, representatives and employees who

actively participated in the present case, for their grossly negligent mishandling of the present

charges and investigation against the Respondent, including but not limited to a violation of the

Respondent's substantive and procedural due process rights, in exchange for the Respondent

waiving any future litigation against the Complainant, its Chairperson, Vice Chairperson,

Commissioners, Executive Director and representatives and employees in their individual

capacities.

DATED: Hilo, Hawaii, May 8, 2012.

~{{Lfj ;;;~ Attorney at Law


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STATE OF HAWAII


CHARGE NO. 10-Cg-4

Complainant, ) )

REQUEST FOR FORMAL AND CONTESTED HEARING

vs. ) )


Respondent. )

REQUEST FOR FORMAL AND CONTESTED HEARING

COMES NOW Respondent, WILLIAM ERIC BOYD (hereinafter referred to as

"Respondent") by and through his undersigned counsel and hereby requests that the hearing on

the Charge and the Further Statement of Alleged Violation, dated April 18, 2012, in the present

case be a formal and contested case hearing pursuant to Chapter 91, HRS and 21-5-5, 21-5-6 and

21-5-7, HAR.

DATED: Hilo, Hawaii, May 8, 2012.

xl:/2(~/)/H Attorney at Law


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HAW Ali STATE ETHICS COMMISSION

STATE OF HAWAII


Complainant, ) )

vs. ) )

WILLIAM ERJC BOYD, ) )

Respondent. )

CHARGE NO. 10-Cg-4

REQUEST FOR OPEN HEARING

REQUEST FOR OPEN HEARING

COMES NOW Respondent, WILLIAM ERJC BOYD (hereinafter referred to as

"Respondent") by and through his undersigned counsel and hereby requests that the hearing on

the Charge and the Further Statement of Alleged Violation, dated April 18, 2012 in the present

case be open to the public and news media pursuant to Section 21-5-6, HAR, to demonstrate the

Complainant, its Chairperson, Vice Chairperson, Commissioners, Executive Director and

representatives and employees: (1) grossly negligent mishandling of the investigation, Charge

and Further Statement of Alleged Violation dated April IS, 2012; (2) the deprivation ofthe

Respondent's substantive and procedural due process rights by the Complainant, the

Chairperson, Vice Chairperson, Commissioners, Executive Director and representatives and

employees inability to conduct, hold and decide the charges against the Respondent in a fair,

objective and impartial manner; (3) how the Complainant, its Chairperson, Vice Chairperson,

Commissioners, Executive Director and representatives and employees have prejudged the issues

in the present case; and (4) how the Complainant, its Chairperson, Vice Chairperson,

Commissioners, Executive Director and representatives and employees attempt to punish the

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Respondent through discriminatory and unlawful actions in violation of federal and state

constitutional protections.

DATED: Hilo, Hawaii, May 8, 2012

Attorney at Law


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STATE OF HA WAil


Complainant, ) )

vs. ) )


Respondent. )

CHARGE NO. 10-Cg-4

CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE

"'.. ,. : ...

I HEREBY CERTIFY that on this date I caused a true and correct copy of the foregoing

document to be served on the following persons by facsimile or U.S. mail, postage prepaid (as

indicated below) to their respective addresses:

STANLEY K. W. CHONG, ESQ. Hawaii State Ethics Commission American Savings Bank Tower 1 001 Bishop Street, Suite 970 Honolulu, Hawaii 96813

Attorney for Complainant HA WAil STATE ETHICS COMMISSION

DATED: Hilo, Hawaii, May 8, 2012

~{)!JJ{h Attorney at Law


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Response to Ethics Commission charges