(BIVN) – Hawaiʻi County Prosecuting Attorney Mitch Roth went before the Board of Ethics on Wednesday, seeking an opinion as to whether or not he has a conflict of interest when it comes to prosecuting Thirty Meter Telescope opponents who have been (or will be) arrested for blocking the Mauna Kea Access Road.

In August, the Associated Press reported that Roth’s 22-year-old son works at the NASA Jet Propulsion Laboratory, which is managed by the California Institute of Technology. Caltech is a partner in the Thirty Meter Telescope project. Also, Roth’s wife works for Subaru Telescope on Maunakea, which is operated by the National Astronomical Observatory of Japan. The NAOJ is also a partner in the TMT project.

Neither his wife nor his son have any say “on what happens on the mountain,” Roth said.

“My wife’s job, like many [in] astronomy, she works for RCUH,” Roth said, “which is the Research Corporation of the University of Hawaiʻi. So, technically, I guess she’s a University of Hawaiʻi employee, although its the Research Corporation, and the University of Hawaiʻi does have management of the mountain.”

“The Attorney General did not give an official opinion,” Roth said, “although I did talk to her and she didn’t see there was a conflict. But the way the article was written, it gave the appearance that there may be a conflict.”

“I’ve done my research on this,” Roth told the board. “I can find no violation of our rules of professional responsibility. I’ve asked the Office of Disciplinary Council, the body that sees after attorneys. They gave me a written opinion non-opinion, basically saying that they can’t give me an opinion whether there is or is not one. They said maybe I should ask our local ethics committee.”

“Is there a conflict of interest?” Roth asked. “I don’t see one on the county ethics, I don’t see one in the state ethics, and/or is there the appearance of impropriety that would make it so that I could not supervise, or my office could not handle, these cases?”

Roth also wondered if his work on the board of NexTech, a 3-Day youth camp for advanced STEM learning, also constitutes a conflict.

“I think there’s a lot of reasons that people are protesting on the mountain,” Roth said. “I personally don’t think that science, technology, engineering, mathematics, and astronomy is something that most of these people are really against.”

Roth said that “because of the way that government officials are being looked at across the nation, I felt it was my responsibility to take the highest road possible, to come here and ask for a decision from this board.”

Roth Already Stepped Aside

On July 17, 38 people were arrested on the Mauna Kea Access Road for ” obstruction of government operations”. Roth says he already opted to “conflict out” of the initial cases. 

“For the time being, we said – look, let’s take the high road,” Roth told the Ethics Board. “We’ll take the whole office out. We believe there’s going to be more cases, and it’s not that I’m taking a position on what we should do; the Charter says you shall prosecute the cases.”

“The cases are going to be prosecuted. I think everybody should understand that,” Roth said. “Somebody is going to be prosecuting these cases.”

“What happens if one of these people up there is a victim of a crime?” Roth said of the TMT opponents. “Does that mean I have a conflict and I can’t prosecute that case? If one of the sheriffs, for example, assaults one of these people. Would I have to conflict that case?”

Corp Counsel Kamelamela Weighs-In

According to Prosecutor Roth, Hawaiʻi County Corporation Counsel Joe Kamelamela provided an opinion, and found no conflict of interest. Kamelamela’s opinion falls under attorney-client privilege, Roth said, but he had no problem sharing it with the board.

Roth said that in his opinion, Kamelamela cited another case that had to do with TMT, “and Judge [Riki May] Amano – who was the the arbiter of the [contested] case, where she had a membership at ʻImiloa [Astronomy Center], the how the group tried to make it seem that she could not be fair because of her membership at ʻImiloa,” Roth explained.

Commissioner Comments On Tension

“I applaud your coming here because I think this is a particularly good time to have a discussion about this,” said board member Nan Sumner-Mack.

“The tensions in this community are so great,” Sumner-Mack said. “I mean, I feel somewhat intimidated by the flags and so on, because I’m not – you know – I just don’t look Hawaiian.”

“It’s very confusing,” the board member said. “It’s very confusing for a lot of people.”

“I do think that the fate of workers of the telescopes it’s not just a matter perhaps of media attention,” Sumner-Mack said. “I happen to know somebody who’s been out of work now for two or three months, not getting any salary, because the road is blocked. This person is very much in sympathy with the cause, but nevertheless he’s not had the income and he’s hurting.”

Previous Cases In 2015

During Wednesday’s discussion, Roth was asked if he was aware of any other similar cases his office prosecuted.

“Absolutely,” Roth answered. “This is our second bout of this. We had a whole bunch of cases in 2015 that we prosecuted, and then there was a Supreme Court decision that changed the way the judges looked at those cases, and we had to just dismiss a bunch of those cases based on rulings
that we were getting from the bench.”

“There’s cases that we want to charge,” Roth said, speaking in general terms. “We want to go forward with, but we have an ethical burden. If we don’t believe we can prove the case beyond a reasonable doubt, we don’t charge.”

“Nobody wants to convict an innocent person,” Roth said.

Could Ethics Decision Impact Cases On Appeal?

“If this board found that there was no conflict, and you went ahead and prosecuted these cases,” asked Ethics Board chair Rick Robinson, “do you think that would give cause for people to appeal their cases?”

“Whatever you do, you live in America,” Roth answered. “You can get sued for anything. You could get sued, technically, for giving the opinion that you’re giving. That doesn’t mean they’re gonna win.”

“Could they appeal this? Absolutely,” Roth said. “Do I think they could win on appeal? Absolutely not. I don’t think that there is any grounds for them to win on that.”

The Ethic Board said they will take the matter under advisement and return with an informal opinion at a later date.