UNFAIR TO MIDDLING

UNFAIR TO MIDDLING: We’d been wondering when we’d hear from Rolf Bieber himself telling the long sad story of his public service on the Board of Ethics (BOE) and his abominable treatment by just about everyone in the county administration for trying to do the job he was sworn to do- an unforgivable act on Kaua`i.

Bieber’s letter to the editor in today’s local newspaper cites his saga, chapter and verse, naming names of everyone involved from Mayor Bernard Carvalho to County Attorney Al Castillo, the rest of the BOE members, the members of the county council and assorted king’s-uniform-bedecked bureaucrats and sycophants, all carrying the kings sword.

Bieber writes that his taking of the

oath to preserve the Charter soon aligned me against BOE colleagues, mayoral appointees, the Office of Boards and Commissions (OBC), the County Attorney (CA) and apparently Mayor Carvalho himself, who inexplicably refused to reappoint me to the board for a second term.

But, although the unrivaled plodding cronyism of a politically-tone-deaf Carvalho has set the tone for this administration’s corruption as never before, it could not have been accomplished without Office Boards and Commissions (OBC) administrator John Isobe.

Bieber writes that

Mr. Isobe would on several other occasions try inappropriately to influence me — once, when I requested public documents that could expose members of the administration and commissions he asked that I not share the documents with anyone, and later calling me to meet in his office “to see how things were going” but to actually express his desire for the BOE to reach a “super-majority or unanimous-vote only for release of County Attorney opinions to the public.”

The irony in all this is that it was in fact the same good governance activists that Bieber thanks for their support at the end of the letter who were among those who helped create Isobe’s job.

When the “original” Charter Commission- the one appointed in 2004 under the “every 10 years” provision in the charter- proposed a slew of amendments for the ’06 election, one that all agreed would go a long way toward repairing the apparently broken board and commission system on Kaua`i was the creation of the OBC.

The problems the commission found were due to the lack of guidance from the administration as most newly appointed B&C members were just thrown into their position with no idea what they were doing there.

The thought was that an office of B&Cs would provide the necessary support with training and a one-stop central place for commissioners and board members to go with questions as to how to do their jobs correctly and ethically.

But, as we all find out sooner or later, you can write good legislation and charter provisions until you’re blue in the face but if corrupt-minded individuals dedicated to obedience and cronyism are elected and those elected appoint more of the same to administrative posts there’s little that will work the way it’s supposed to.

Rather than facilitating the B&C members in their quest to uphold their oath Isobe has intervened to make sure they serve the political goals of the mayor.

We can tinker with- or even fully rewrite- the Kaua`i County Charter. But if we continue to elect self-aggrandizing boobs like Carvalho with a “give the new guy a chance” and “how bad could he be” attitude we will, as Bieber says, keep finding out what we knew already... “together we can’t”

One more note- Bieber writes:

In April of 2009, Castillo told me he had meetings with Kauai Circuit Court Judge Randal Valenciano on several occasions concerning 20.02 (D)

Huh? But April of 2009 the controversy over 20.02(D) had been well underway for years with dueling “interpretations” making the matter ripe for an eventual 5th Circuit Court lawsuit.

We certainly deserve an explanation from both Castillo and Valenciano on this apparent breach of ethics.

LOOK OUT KID, THEY KEEP IT ALL HID

LOOK OUT KID, THEY KEEP IT ALL HID: Tomorrow is restocking day for Kaua`i Boards and Commissions (B&Cs), as the county council will quasi-secretly- in an open meeting that won’t be televised- prepare to rubber stamp twenty new B&C members, selected not as much for their expertise as for their ability to bend over when the administration demands it.

As we wrote a couple of weeks ago, rather than televise these interviews the council prefers to spend the money to televise themselves patting each other on the back for presenting “certificates” honoring everyone and anyone that accomplished some minor feat, especially those with big families who vote.

We also told readers about a charter provision prohibiting a majority of any particular board from being members of any one political party and how it may take on new meaning with the slew of new members of the Democratic Party- a number that, according to one democrat in the know, went from 38 to around 4,000 on Kaua`i- that joined to vote in the Obama-Clinton “primary” held by the party last year.

In light of Mayor Bernard Carvalho’s big show of joining the Democratic Party last year and his well document penchant for selecting political cronies and sycophants to B&Cs you’d think the council would look carefully for that when confirming his nominations so as not to run afoul of the law.

But while the “application” to be a B&C member asks about party affiliation apparently the council isn’t privy to the official list of members of political parties on Kaua`i even though they are sworn to uphold the county charter.

As a mater of fact, we’ve learned that as of the date of the agenda posting, the council apparently did not have the applications in their possession- and we have no reason to believe that will change by the official confirmation time.

But even worse is that when these people file before the council tomorrow the council will definitely not have the basic information these people will swear to in their public disclosure forms that list potential conflicts of interest as well as financial information

That’s because, by tradition, those disclosure forms aren’t given to the council at all much less before the interviews but rather go to the Board of Ethics (BOE), which until recently had never publicly released any of the public disclosure statements.

The councilmembers will try to tell us they are doing their job thoroughly when they interview the 20 prospective B&C members tomorrow – as they have in the past- saying “trust us” rather than showing us.

But the question remains- how can they possibly say they do a thorough job of vetting these nominees when they don’t have any of the basic documents needed to do so.

Though the interviews are tomorrow, the actual appointments will happen during the regular council meeting Wednesday, when council watchdog Rob Abrew has told us he will challenge the council on both the issue of party membership and the lack of disclosure forms.

We fully expect the council to follow their usual M.O. and fully ignore Abrew with, at best, a “thank you- next?” and at worst a double-talking, intimidation, “how dare you impugn our integrity” attack after Abrew is sent back to his seat.

The council loves to blame the administration when any boondoggle or other B&C related corrupt scheme is revealed- usually by member of the public at televised meetings- and make up some cockamamie story about why they are blameless.

We’d estimate that at least 50% of the corruption on Kaua`i involves the active or passive complicity of people like those who will be interviewed tomorrow and confirmed Wednesday. Remember that and the council’s “ainokea” actions next time they whine that they have no control and “it’s the administration” that is responsible for B&C activity .

For the record, here are the twenty interviewees:

BOARD OF REVIEW:
•Lisa Wilson -Term ending 12/3112012
•Russell Kyono -Term ending 12/3112011 (replacing Richard Koenig Jr.)

BOARD OF WATER SUPPLY:
•Roy Asao Oyama -Term ending 12/3112012

BUILDING BOARD OF APPEALS:
Dennis Aquino, Fire designation -Term ending 12/3112011
Gerald T. Nakasone, At-Large -Term ending 12/3112012
Lawrence J. Dill, Engineer designation -Term ending 12/3112012

BOARD OF ETHICS:
Warren Perry -Term ending 12/3112012
Brad Nagano -Term ending 12/3112012

CIVIL SERVICE COMMISSION:
Roy Morita -Term ending 12/3112012

COST CONTROL COMMISSION:
•Lawrence Chaffin, Jr. -Term ending 12/3112010 (replacing Nadine Nakamura)
•Dirk Apao -Term ending 12/3112012
•Linda Faye Collins -Term ending 12/3112011 (replacing Lorna A. Nishimitsu)

FIRE COMMISSION: ·Jan Rudinoff -Term ending 12/3112012
•Basilio Fuertes, Jr. -Term ending 12/3112012

LIQUOR CONTROL COMMISSION:
•Gerald Shigemi Matsunaga -Term ending 12/3112012

PLANNING COMMISSION:
•Camilla Chieko Matsumoto, At-large designation -Term ending 12/3112012

POLICE COMMISSION:
Rowena Tachibana -Term ending 12/3112012
George Tiffany -Term ending 12/3112012

SALARY COMMISSION:
•Charles King -Term ending 12/3112011 (replacing Tom Cooper)
•Sheri S. Kunioka-Volz -Term ending 12/3112010 (replacing Dawn Murata)
•William Dahle -Term ending 12/3112012

CHOPPED LIVER?

CHOPPED LIVER?: In the two newspaper city of Honolulu bloggers like Ian Lind and the King of the Rats Larry Geller often refer to a two newspaper mornings when what the news is depends on what paper you read.

Lately, with the addition of editors/reporters Mike Levine and Nathan Eagle, when those two paper moments involve the local Kaua`i newspaper, the local version usually shows a lot more enterprise that the O`ahu take.

But the reporting skills of the dynamic duo far outshine their human resources proficiency as evidenced by their recent hiring of “the worst journalist in the world” or at least the island- Paul Curtis to cover the police and courts beat.

Put it all together and you have drop-in, malihini, part-time, Honolulu Advertiser correspondent Diana Leone answering the $64,000 question that Curtis ignores in dueling reports on the fact that the state will not fight an Advertiser records request to release at least the settlement amount- if not the settlement particulars- the state must pay in the Ka Loko Dam tragedy settlement.

The question left burning after reading Curtis’s report is “what about Kaua`i County?” which was, if anything, not just negligent like the state but apparently complicit in covering up some of the grading and grubbing violations of the fiendish Jimmy Pflueger.

While Curtis- under a patently false headline of State settlement in Ka Loko suit unsealed (it hasn’t been unsealed yet but will be soon)- fails to even mention anything about the county settlement- which is equally subject to state open records laws- Leone reports that in addition to the record request for the state settlement,

The (Advertiser) also demanded that Kaua`i County, the only other public entity involved in the settlement, reveal its promised payment amount, but the county has not yet done so. Kaua`i County Attorney Al Castillo didn't respond to a request for comment yesterday.

Once the state information is obtained, The Advertiser will revisit asking Kaua`i County to make its payment amount public, said Advertiser attorney Jeff Portnoy.

The state and county shares should never have been sealed, Portnoy said.

But what neither discussed is why the records requests apparently failed to include anything asking for any information on findings or admissions of culpability on the part of either the state or county.

Anyone following the case will remember that, although the state was supposed- and failed- to inspect the dam, much of the law that was flouted by Pflueger was that of the county’s grubbing and grading ordinance, one that had been recently strengthened after Pflueger’s previous crimes in Pila`a and Ka Loko.

People have also have heard the allegations that the county, in the persons of Mayor Maryann Kusaka and her Department of Public Works personnel- Wally Kudo, Cesar Portugal and then-DPW chief and current Planning Director Ian Costa- actively protected Pflueger when Kusaka directed the three to back off on any investigation and enforcement.

And whether Kusaka indeed directed them as a member of the DPW has sworn, their negligence and reluctance to investigate is a matter of record in testimony before the county council prior to the dam break.

It would be interesting to see what if anything was stipulated in this settlement but for some reason the myopic corporate press is apparently only interested in reporting the bottom line, not getting down to the matter of responsibility.

That might take a little work in explaining the whole story, something a he-said-she-said, one-day–story, mainstream press has no interest in doing.

Don’t count on there being anyone who will reveal the criminal culpability or prosecute those involved at either the state or county level. The dollar amount will have to intimate culpability and the truth will be left to speculation.

No one tried to say a thing
When they carried him out in jest
Except of course, the little neighbor boy
Who carried him to rest
And he just walked along alone
With his guilt so well concealed
And muttered underneath his breath
"Nothing is revealed"

PARADISE LOST

PARADISE LOST: We don’t do this often but it’s a slow news time as far as county government is concerned so we were thumbing through some off island blogs today and came across a series of posts from prolific Big Island blogger Damon Tucker containing family pictures and narratives of Yap in Micronesia from 1965-7.

As Tucker’s intro says,

In 1961, my mother, Su Rowe Tucker, moved to Pahala, on the Big Island where her father and mother (My Grandparents) Dr. P.E. (Ted) Rowe and Elizabeth (Betty) Rowe were the Physician/Surgeon for the private Pahala Hospital run by C. Brewer Corp.

In 1965, Dr. Rowe (my grandfather) was hired for two years by the US Federal Government to run the Yap Hospital from 1965 to 1967. In 1966, my mom and my two uncles, Bob and Mike Rowe, went to visit them in Yap.

The posts evoke mixed feelings showing an indigenous culture and a Michener-like juxtaposition with the fish-out-of-water westerners.

It’s a simple lifestyle that a short 40-plus years ago was apparently reminiscent of Hawai`i in the late 18th and early 19th century and it’s hard not to feel both wistful and angry that neither exists anymore today.

Part I: Introduction
Part II: Who
Part III: Moms Tale of Arrival
Part IV: A Yapese Party
Part V: The Homes and Structures of Yap
Part VI: Quotes from the Diary (Part A) – “I managed to get away from Antonio…“
Part VII: Quotest from the Diary (Part B) - “… Now our soda is out of the refrigerator and the baby is in it.”

CHASING THE WHITE RABBIT

CHASING THE WHITE RABBIT: It’s anyone’s guess what participants will show up at the January meeting of the Board of Ethics (BOE). Certainly Rolf Bieber won’t be sitting on the inside of the rail but more importantly, the results of the meeting may depend on which deputy county attorney shows up- Mona Clarke who showed some signs of honest lawyering in her last appearance or Mauna Kea Trask who has proved adept at wielded the kings sword of evasion and deceit.

But the one person we know will be there is Horace Stoessel whose pen-knife wielding on the subject of charter section 20.02(d) is zeroing in on a death by a thousand cuts through his bulldog tenacity at stabbing away at Trask’s and his mentor County Attorney Al Castillo’s rapiers of jabberwocky.

Here’s Sir Stoessel’s latest parry in anticipation of January’s joust. Meet ya on the other side.

THE PRIMACY OF THE CHARTER OVER THE COUNTY CODE

TO: Kaua`i County Board of Ethics
FROM: Horace Stoessel
SUBJECT: The Primacy of the Charter Over the County Code
DATE: 12/28/09

I ask that this communication be placed on the January agenda of the Board of Ethics.

I believe it is essential for the Board of Ethics to ensure that its members are in agreement about the primacy of the Charter over the County Code , and specifically the primacy of 20.02D over 3-1.7, lest the confusion and conflict of the last two years be repeated in the future.

The confusion and conflict are rooted in two unsupportable assumptions.
First, the assumption that 20.02D is applicable only to the extent allowed by the three subsections of 3-1.7. Second, the broader assumption that the County Code is equal, or even superior, in authority to the Charter and can be used to limit or disregard charter provisions.

Both assumptions contradict the basic principles that ordinances are subordinate to charter provisions and that ordinances may only supplement charter provisions, not limit or preempt them.

It will be useful to review the point at which the two assumptions came into play. Upon receiving a request for an advisory opinion from Charter Commissioner Jonathan Chun in February 2008 as to whether he could appear as a private attorney before other County agencies on behalf of his clients, the board asked the county attorney for an opinion regarding the scope of 20.02D and 3-1.7(c), (d) and (e).

Instead of answering the board’s question directly, the legal opinion first misinterpreted the question to mean “whether these provisions of the Code have the effect of modifying the language” of 20.02D (emphasis added). It then offered the following inconclusive advice: “In conclusion, it is this office’s opinion that provisions in Section 3-1.7 of the Code serve to articulate and elaborate on the intent of the Code of Ethics, and they must be read in conjunction with the Charter provisions. In other words, Section 20.02D may not be read in a vacuum.”

Since the County Code is subordinate to the Charter it would have been more accurate to conclude that 3-1.7 cannot be read in a vacuum.


To determine the scope of these provisions means to delineate their applicability. The board already knew that Chun’s actions were not prohibited by the three subsections of 3-1.7 because it had issued an advisory opinion based solely on 3-1.7 just two months earlier in a comparable case, so it was looking for an answer about the applicability of 20.02D.

The short answer to the board’s question is that the three subsections of 3-1.7 differ in scope from each other, that all of them contain limitations on their applicability, and that all are narrower in scope than 20.02D, which expresses no limitations on its applicability. Therefore, reading the provisions in conjunction with each other leads to the conclusion that 3-1.7 was inapplicable in the Chun case and that 20.02D prohibited his appearing in behalf of his clients before county agencies.

The board overlooked the fact that the county attorney had not answered its question. It obviously accepted the attorney’s unfounded claim that 3-1.7 can modify the language of 20.02D. It then made a leap from the attorney’s conclusion that it must read the provisions in conjunction with each other to its own conclusion that Chun could continue representing his clients before other agencies. The net effect was that the board reached its conclusion by reading 3-1.7 in a vacuum.

Although the County Code links 3-1.7 to Charter 20.01, not to 20.02D, there is no harm in treating the three subsections of 3-1.7 as complementary to 20.02D. Harm comes when the subsections are utilized to restrict the applicability of 20.02D, and that is what happened in the Chun case.

The cure for two years of confusion and conflict is for the board to keep clearly in mind the primacy of the Charter over the County Code .



ADDENDUM: The second opinion received by the board begins and ends with language similar to the language of the first opinion. However, it differs in arguing that a “strict construction” reading of 20.02D would lead to absurd results. It does not claim or try to prove that basing a response to Jonathan Chun’s request for an advisory opinion on 20.02D would be an absurd result.

As we reported previously, case law in no uncertain terms states that if an interpretation of a provision yields “absurd results” it is the interpretation, not the statute, that must be discarded. But nothing goes as given at the BOE where the red queen has declared “execution first, trial later” and men on the chessboard are constantly getting up and telling you where to go.

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And in case you didn’t notice, another piece of the November chessboard is in place with Mel Rapozo’s announcement that, with open offices galore and ego-addled councilmembers eager to play musical chairs in no short supply, he will be taking the politically safe road this fall by running for county council, ending speculation that his notorious reach-exceeding grasp would cause him to seek higher office again.

We are ecstatic that, in fact, we will have Mel to kick around again but even happier that, for all his foibles, we may see someone on the council willing to occasionally mention the naked emperor and we can’t wait to see him move the personnel department and bike path scandals back on the council’s front burner.

SNIFFIN’ IT OUT

SNIFFIN’ IT OUT: For the neophyte, reading the county charter is a MEGO (my eyes glaze over) experience. But once the committed nitpicker reads it and then attends or even just watches council and/or board and commission meetings for a while it can be cause for a lightbulb-going-on flashback.

So it was that our friend Rob Abrew- who has exposed quite a few irregularities recently- came across a passage that may be applicable, especially of late.

Here’s his testimony to the council regarding the slew of board and commission nominees they have been asked to confirm lately.

Aloha Council Members

Today we are here to review the Mayors selected applicants to become members of various Boards and Commissions of the County of Kauai. Many of the applicants before you, you all ready know as friends, business associates and fine citizens of the County of Kauai. This process is not about judging these fine citizens as members of the community, but do these recommend appointments follow the process as stated in The County of Kauai Charter as approved by the citizens.

Section 23.02 Boards and Commissions

This section of the Charter lets us know how the Mayor appoints the applicants and how the Council approves this appointment.

In my opinion only two items would be need to reviewed by the Council in order for the applicant to be approved.

These two requirements would be :

23.02 D Each commissioner shall be, at the time of his appointment, a duly qualified resident elector of the county.

It is my understanding that the applicant tells us this on the form submitted to you for review

23.02 E No more than a bare majority of the members of any board or commission shall belong to the same political party.

It is also my understanding that the application asks the applicant if they are a member of a political party.

In C2009-393 received in the County Clerk's office on 12/04/2009 from the Mayor via John Isobe,

Executive Assistant, asks for the Council's favorable consideration and conformation of the following appointments to various Boards and Commissions. At the end of the communication Mr. Isobe states that the application forms are attached.

I believe the application would give the Council some of the information needed to assure that the applicant meets the requirements that the Charter asks for but, the communication does not give the Council the information as need in 23.02 E ….the political make up of the various Board or Commission.

If the applicant in their application tells the Council they are a member of a political party, how would the Council know, if they approve the applicant they would not violate section 23.02 E of the charter.?

I have looked for a public document that shows the public the political make up of the various Boards and Commissions. I have not found any document here today that would give the Council and the public the information needed to approve an applicant that tells us they are a member of a political party. Please request all the information needed to move the applicants forward in a timely matter.

Many discussions in the public lately has been about the way our county government functions and how separation of powers are necessary. The issue before you today is a perfect example of how a check and balance form of government works.

Mahalo for you time

Rob Abrew

Abrew was instrumental in instigating the recent compliance with the law by Isobe and the Board of Ethics in releasing the public disclosure statements filed by prospective B&C members. The release of them was actuated through a filing by reporter Mike Levine who has posted them as they are received at the web site of the local newspaper.

As some may know, membership in a political party in Hawai`i is strictly the province of the party itself and very few people actually join parties by “signing a card”. So not only was the information hard or impossible to obtain in the past but the chances that “a bare majority” of a board or commission would come from one party was probably slim or none.

But last year when Barack Obama and Hillary Clinton were battling it out for the Democratic nomination for president the Democratic Party signed up tens of thousands of new members statewide, with membership being a prerequisite for voting in their “primary”- which was actually just a poorly conducted internal party function not affiliated with the state elections.

We don’t have the information yet but it should be interesting to see whether any of the boards and commissions have more than a bare majority that are members of the newly expanded Democratic party.

One of the problems might be verifying with the party whether they are or are not actually members. There’s no law that we know of that they must disclose their list. But since supplying false information on the application is a criminal offense we would expect- even if we wouldn’t assume- the applicants to be truthful.

We’ll keep you up on Abrew’s latest quest. But knowing the administration’s response to these kinds of things- we can only imagine what kind of naked dodge the county attorney might come up with in defining “bare majority”- we expect it to be anything but a walk in the park.

STRAW MAN STRONG MAN

STRAW MAN STRONG MAN: The great talking-past-each-other debate on the “proposed” county manager (CM) system between retired former Judge Al “let ‘em go” Laureta and county watchdog Glenn “hope springs eternal” Mickens continued in the letters to the editor column of the local newspaper today with “Yogi” Mickens “it’s better because it’s better” response to Alfred E. Laureta’s “what, me worry?” demand to know “what’s broken” in Kaua`i county government.

As we’ve said before while we aren’t exactly on the CM conga line we certainly can articulate what the some of the problems are and have done so especially in the past month or so albeit in a cursory manner.

We hope to try to get into some more detail as to what doesn’t work and what kind of specific changes to the charter would be appropriate to address those impediments to good governance over the next few weeks.

But another letter today, this one from Democratic party leader Linda Estes, brings up an issue that has been bandied about although, from Estes letter, it apparently is largely misunderstood.

Everyone we’ve heard speak on the matter contends that Kaua`i has a “strong mayor” system. But Estes makes an argument that in fact:

Kaua`i has a weak mayor form of government because the mayor cannot appoint several of the department heads. Civil Service, Police, Fire, Water, Planning and Liquor are critical departments in county government and the mayor, at this time, cannot appoint the people to head those departments. If he cannot appoint them, how can he hold them responsible for the operation of their departments?

The proposal to put those departments under the direct authority of the mayor should be on the 2010 ballot. Then, if it passes, the people of Kaua`i can decide at a later date if they prefer a county manager or a strong mayor form of government.

First of all the term “strong mayor” derives from what the mayor’s powers are as opposed to those of the county council’s- the traditional balance of power between legislative and administrative branches of government.

The strongest parts of the mayor’s powers on Kaua`i stem from the total ban on any interference by the council in administrative matters enshrined in our charter.

The only way the council can compel the mayor or his/her appointees to appear and answer questions is under one provision that requires the council to launch an official investigation to do so. Otherwise, as we detailed recently, the administration can refuse to even explain how it plans to spend- or in fact did spend- the money the council appropriated or acted upon a piece of legislation passed by the council.

That’s why you see the words “requests the presence of the administration to discuss...” on council agendas.

Another strength of our administrative branch is the power to appoint almost every single member of the administration- except for the county attorney and those that, as Estes points out, are appointed by a board or commission - without confirmation by the council.

Here too the mayor, as most all administrators do, naturally has more power than the council since he selected the members of those boards and commissions (B&Cs) for the most part and the council can only disapprove them. As a matter of fact the council cannot even remove them without the mayor asking that they be removed.

There are some B&Cs where the mayor and council each appoint three members each and those members select one more. But, illustratively, it should be remembered that the original charter did not have this provision and it only arose because of the strength of the mayor... it’s an example of how the original charter was designed to provide for an extremely strong mayor.

There are other provisions that strengthen the mayor’s power as opposed to those of the council but essentially the mayor has a thumb on the balance of power everywhere except for appropriating money or passing ordinances.

Even there there is diminished accountability and, as we’ve seen, administrative rules promulgated by the administration sometimes carve out loopholes in ordinances that are less than specific- some that actually conflict with the law- leaving the council the option of liking it or lumping it... or suing the administration in court, as happened in the “constitutional” budget crisis during the Yukimura administration

The six departments that Estes cites are the exceptions and were set up that way because those specific departments it was thought would be the most subject to political interference and members of the public should be entrusted to make the hiring and firing decisions- with the “check” on their power being that they are appointed and confirmed by elected officials.

But few can argue that that system has worked well. What has happened in practice is that because the department heads have no set terms after which they must face re-approval or renewal of their contracts it becomes almost impossible for a board to remove them.

As a matter of fact there is no procedure for removal of the appointee in the administrative rules any of board with appointment power.

With the staggered three year terms and a two term limits for B&C members after a while few of any of those who appointed the department heads are on the current board and the employee becomes the boss and in fact mentors the members and advises them when they meet.

As a matter of fact, some members have no idea that they are empowered to remove the department head if they want to. And most wouldn’t know how to do it if they did.

Estes suggests that putting them under the mayoral appointment system would solve that problem. But then we’re right back where we started with politics playing a large part in the hire, no council approval and of course a lack of continuity when administrations change- which, when these appointing B&Cs were originally set up, could have been every two years.

But rather than throw out the baby with the bathwater a few fixes might be in order.

The first is a set term for board-appointed department heads. A charter provision calling for a standard contract length- say three years although it could be otherwise- along with a template for a required re-evaluation and re-hire protocol would go a long way to re-imbue the members with a sense that they are indeed in charge.

A charter provision could be somewhat detailed or leave the fleshing out to an ordnance and administrative rules. But right now there is no standard and these department heads become entrenched serving for decades without so much as an opportunity for their appointing authority to really look at their job performance without appearing to be “making waves” or “rocking the boat”- something that, on Kaua`i almost insures they will not be serving on B&C’s very long as the recent Rolf Bieber episode so clearly demonstrates.

Other than the police department we can’t think of a B&C that ever removed a sitting department head... or even attempted to do so. And technically the police commission didn’t do that either, causing the political free for all surrounding Chief KC Lum’s “removal” (he actually retired).

But the contention that Kaua`i has a weak mayor system and that strengthening it is the answer is to cherry pick one “exception that proves the rule” and use it to define the whole system rather than taking a broad perspective when examining the charter and how it plays out in reality.

A charter amendment calling for all mayoral appointments to be confirmed by the council would go a long way toward equalizing the balance of power along with a modification of the strict no-interference clause. Many jurisdictions allow for subpoena power for the legislative branch without launching a formal investigation- and in fact legislative approval of all department heads is the norm across the country.

As we’ve said before, with a requirement for a certain educational and experiential standard and council approval the current charter provision for the Administrative Assistant (AA) could become the very “county manager” that proponents seek. Perhaps the addition of an independent panel that would submit of list of possible hires would be a wise addition to the process of selection of the AA.

We’ll try to get into more specific problems with the charter and possible fixes over the next month or so but suffice to say that the same ends that the CM proponents seek could be accomplished through narrower targeted amendments to the structure expressed in the charter without scaring the b’jeezus out of a citizenry that may be adverse to a “rewrite” of the charter” and/or “eliminating the mayor”- both things that amount to “experiments” and rightly make voters apprehensive.

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We’ll be playing with our new chew toys and a bit intermittent over the next two week. If we’re not here, we’re there- so there, hear?