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UPDATED 10/6/11 11:15 a.m.

A Hawaii charter school is paying a private attorney to defend one of its employees against ethics charges from the state, an expenditure on the part of taxpayers that has the state ethics commission office crying foul.

The same public charter school also hired the same attorney to represent the school, even though charges were never brought against it.

What started two years ago as a straightforward conflict of interest case against an employee of a Hilo-based charter school has now snowballed into what may well become a textbook example of how not to run a public agency.

In 2009, Hilo-based hired attorney Ted Hong to represent William Eric Boyd, an administrative assistant at the school. He and his wife also own a business that, among other things, provides lunch services to the school.

Boyd had been charged with 26 counts of ethics violations. Allegations included that he submitted requests for payment to the school on behalf of his wife’s company, and signed off on requests for payment on behalf of the school. He also allegedly used half of the school’s rented booth at the for his for-profit business at no cost.

Charter Schools: Public vs. Private

It’s turned into a tangled web of legal cases. The school and Boyd are suing the ethics commission director and the Charter School Review Panel and its chair. At the heart of the matter: Is a public school operating under a charter with the state a public agency? And, as such, are its employees subject to state ethics law?

State law establishes charter schools , and their local school boards, like all public boards, are required to and make the meeting minutes available to the public.

Still, that’s being disputed by Connections PCS. The Hawaii State Ethics Commission and the attorney general’s office say charter schools are indeed public agencies, but Ted Hong, an attorney for Connections PCS, disagrees. And they could battle it out in court, but for one problem: If the attorney general is correct, then Hong has no business representing the school.

Why It Matters

The Ethics Commission at first assumed Hong represented Boyd, the school employee. During the commission’s investigation, though, it became evident that Hong represented not only Boyd, but other employees at the charter school. When commissioners asked who was paying the attorney, Hong said he is paid to represent Connections PCS and all of its employees — even though the Ethics Commission never leveled charges at the school or its other employees.

There are two problems with this. It would be a violation of the state constitution for the school to employ Hong to defend Boyd, which prohibits the use of .

And assuming Connections PCS is a public agency, state law requires the school to receive to hire a private attorney, because public agencies are by law automatically represented by the attorney general’s office.

Finally, as part of the current legal entanglement, Hong and the school have refused to provide proof that they received such a waiver.

A June 28 letter from the Ethics Commission to Hong states that “it is unclear whether you are authorized to represent Connections Public Charter School aka Connections New Century Charter School (‘Connections School’).

“We asked that Connections School provide us with documentation or other evidence that it is authorized to retain a private attorney. We told you that, according to the Department of the Attorney General (the ‘Attorney General’), a public charter school, as an entity of the State of Hawaii, is represented by the Attorney General and cannot retain a private attorney without specific approval, signed by the Governor. See Haw. Rev. Stat. .”

Instead of providing the documents, Hong on Aug. 25 filed lawsuits against Ethics Commission Director Les Kondo and the Hawaii Charter School Review Panel. The documents ask the court to rule that Boyd is not a public employee and therefore not subject to state ethics requirements. He also sought a temporary restraining order against Kondo and a request for a preliminary injunction to stop the investigation, which the court rejected.

Hong told the Honolulu Star-Advertiser last month that if the court rules that charter school employees are not public employees, “that’s really going to cement the autonomy of charter schools to chart their own destiny. This case to me has a huge implication.”

Eroding Public Confidence

It is unclear how much Hong is being paid, because he has not disclosed the amount to the Ethics Commission, claiming in the lawsuits that to do so would violate attorney-client privilege.

UPDATED But Connections PCS made it clear it will spare no expense to win Boyd’s ethics case when it offered to pay a settlement fee on his behalf. ¹ (The Ethics Commission asked the Charter School Review Panel in July whether the school even has the right to do so.)

Kondo, the ethics commission director, told Civil Beat money matters less than principle when it comes to potential ethics violations.

“From our perspective, the amount of money involved doesn’t matter,” he said. “The perception is what matters. It’s the perception of corruption that erodes public confidence.”