Conflict-of-interest charge leveled over Ka Loko case


POSTED: Thursday, November 13, 2008

The owner of a Kauai dam that burst and killed seven people in 2006 wants Hawaii's attorney general removed from grand jury proceedings he convened to look into possible criminal charges stemming from the accident.

Ka Loko Dam owner James Pflueger claims Attorney General Mark Bennett's investigation conflicts with his interest to defend the state, which could potentially be held liable in an upcoming civil trial for allegedly failing to properly inspect the dam.

Pflueger's attorney, Bill McCorriston, said yesterday he fears his client - who has been suspected of blocking a spillway that prevents dams from overflowing - will be targeted by Bennett as he tries to shift blame from the state.

“;We think we are being scapegoated. We think we are being singled out for obvious reasons,”; McCorriston said. “;What we are calling for is somebody fair and impartial.”;

Bennett, a former law partner of McCorriston, denied having a conflict of interest.

“;Since the Ka Loko Dam tragedy occurred, I have led the state's criminal investigation into this matter with one and only one goal: to determine whether criminal charges are legally and factually warranted and appropriate,”; he wrote in a statement.

In a motion filed yesterday in Circuit Court, McCorriston seeks to have Bennett replaced by an independent investigator. He noted the Ka Loko grand jury begins Tuesday, three months before a civil trial into its collapse is set to get under way.

Lawsuits have been brought by family members of victims in the flooding caused by the breach and property owners against Pflueger, the state and others. They are scheduled for much of 2009 in Circuit Court in Lihue.

The dam near Kilauea collapsed on March 14, 2006, unleashing millions of gallons of water that swept away two homes and killed seven people.

State Sen. Clayton Hee said a neutral person should be appointed to oversee the grand jury to “;remove any discussion or any appearance of impropriety on behalf of the state.”;

“;People lost their lives,”; said Hee (D, Kahuku-Kaneohe).

U.S. Rep. Neil Abercrombie said the Ka Loko incident “;is an ideal case for an independent counsel”; given that the state's oversight of the dam has been questioned.

“;Clearly the state and or perhaps other governmental entities are going to be subject to some kind of legal inquiry in regard to responsibility and liability,”; he said. “;It is going to create the appearance of conflict regardless of their intention.”;

The grand jury, convened in July by the attorney general's office, has subpoenaed more than a dozen people, including a construction crew, employees of Pflueger, former Kauai Mayor Maryanne Kusaka and other island residents.

A report by state Special Deputy Attorney General Robert Godbey said the dam's breach was likely caused by water overflowing the top of the dam, but experts hired by Pflueger's attorneys contend it failed because it was old.

Yesterday, McCorriston charged that the state attempted to cover up its alleged failure to inspect the dam. He showed an e-mail in which Peter Young, former director of the state Department of Land and Natural Resources, reportedly told his staff on Feb. 14, 2006, that they should not have announced a suspension of flood and dam safety activities.

Young declined comment yesterday and referred questions to the attorney general's office. Bennett refused to discuss the e-mail.