Saturday, November 1, 2008

KPD Blue- Chapter 13 : Kaipo Asing

KPD Blue

By Anthony Sommer

Chapter 13 : Kaipo Asing

For a decade and a half, Kauai County Council member Bill “Kaipo” Asing was the hero of the small band of “good government” activists on Kauai: A reformer and a smiter of mayors.

Asing cast a bright light into the dark corners of Kauai County government.

The old Asing was the picture of a passionate minority leader, of the loyal opposition, of the independent politician with no ties to special interests (he never spent more than $100 on any campaign).

Asing’s own probing of county government’s shortcomings was the equal of any investigative journalist.

In one instance, his digging—literally—discovered a pipe serving a fire hydrant at a county dump was not the standard high-capacity, high-volume hardware usually associated with fire fighting. Instead, it was the diameter of the water pipes in a residential home.

Someone in county government had installed a cheap substitute and probably pocketed the difference. The loser was the Kauai Fire Department when the dump caught fire. Typically, though, there was no investigation by the county to follow up on Asing’s allegations. There never is. The fingers might all point to the top.

One of the real failings of Kauai County government is its inability to understand the checks and balances built into American democracy.

There is supposed to be friction between the mayor and the council and the courts and the press.

On Kauai there are no checks or balances. Everyone— including the lapdog press—signs on before any votes are taken. The Council passes a bill, the mayor signs it, the reporters sing its praises.

If it is challenged in court (highly unlikely), the judge blesses it.

In his days as the “Conscience of the County Council,” Kaipo Asing was the only one willing to say the emperor was naked.

When Maryanne Kusaka was mayor, she was Asing’s favorite target during his televised long-winded “chalk talks” on government ineptitude and corruption at the blackboard during Council meetings.

In turn, Kusaka and her department heads did not conceal the special loathing they reserved only for Asing. But a funny thing happened when the County Council handed Asing the gavel in 2002. The position was vacated when Ron Kouchi left the Council to run for mayor.

In the blink of an eye, Chairman Asing transformed into a petty tyrant, a champion of closed-door deal-making, and a close ally of newly-elected Mayor Bryan Baptiste in Baptiste’s campaign to purge the Kauai Police Department of haole influence.

The activists who show up at every Council meetings to rail against county government all, without exception, adored Kaipo Asing.

For many years, Asing had been saying the things they would say if they could get a seat on the Council. The instant Asing became Council chairman, everything changed.

The rants Asing formerly aimed at mayors and department heads suddenly were pointed at activists and journalists.

The mere holding of power rather than actually using it for anything constructive appeared to be sufficient reward for Asing. Perhaps he felt he earned it for his many years of being the outsider. He guarded it jealously.

In his first year as chairman, the Council did little at its meetings except approve the minutes of the prior meeting.

When asked about the inaction of the Council, Asing pointed at the mayor and said (correctly) that Baptiste hadn’t asked for a single bill during that year. In 2006, Asing was elected to his 12th term on the Council and his third term as Council chairman.

Between January 2003 and July 2005, the first two and a half years of Asing’s chairmanship, the Kauai Council conducted more than 140 executive sessions, according to activist Ray Chuan, who keeps score.

That’s an average of 58 executive sessions per year. In the last two years of Ron Kouchi’s chairmanship, the Council averaged 20 executive sessions a year. sing had almost tripled the number of executive sessions.

The result was a war between Kauai County and the state Office of Information Practices (OIP), the agency charged with interpreting Hawaii’s open meetings and public records laws.

Sadly (although it is clear the politicians want it this way), the OIP has no enforcement powers. If it orders a government agency to open a meeting or its file cabinets, there is nothing the OIP can do if the agency refuses. It is often said that Hawaii has the best open government laws and the worst enforcement of those laws in the United States.

Under state law, the state Attorney General’s Office is supposed to file lawsuits when the OIP is ignored. In practice, Republican Gov. Linda Lingle’s appointed Attorney General Mark Bennett refused to do anything to enforce the open meetings and public records laws unless a private citizen has first taken the agency to court and won.

In keeping the Council chamber door and the file cabinets locked, Asing was ably abetted by County Clerk Peter Nakamura, a career bureaucrat whose main tactic is to ignore legitimate requests for county records as if they never had been made.

Alternatively, Nakamura charges huge sums for “staff” time to retrieve public records.

When the OIP ordered Nakamura to turn over the 140-plus executive session minutes to two private citizens, Nakamura finally did so and billed them $2,886.75 for “staff time” to look up public records.

In most jurisdictions, a reporter or private citizen wanting to look through government files is pointed to the file cabinets and turned loose, often with a sarcastic “Knock yourself out.” comment from the chief bureaucrat in charge.

Not on Kauai.

On Jan. 11, 2005, an OIP attorney told the Kauai County Council staff that the Council would be violating the law if it went ahead with closed-door confirmation hearings for a roster of Baptiste appointee to boards and commissions. An hour later, Asing thumbed his nose at the OIP and went ahead with the secret sessions.

The previous month, Councilwoman (and former Mayor) JoAnn Yukimura asked OIP for an opinion as to whether closed-door confirmation hearings were legal.

In early January, OIP Director Les Kondo said he was informing Yukimura that the hearings had to be public.

On the morning of January 11, OIP attorney Lorna Aratani told Council staff the planned hearings later that day would violate the law.

“I told them the hearings should not be done in executive session,” she said in an interview that day. “I told them a written opinion was being drafted and the OIP’s conclusion would be the same as the verbal opinion I was giving them. “If they insisted on something in writing, I could have written ‘No Executive Session’ on a piece of paper and faxed it to them,” she said.

The Council ran 18 Baptiste appointees through the closed confirmation hearings that day.

Nine days later, on Jan. 20, 2005, the County Council met in what became the highly controversial Executive Session 177. (As a means of identifying them, executive sessions were numbered).

ES 177 was all about the Council investigating the KPD. The OIP later ruled ES 177 was illegal and ordered the county to make the minutes public.

On April 14, 2005, the OIP answered a request for an opinion from Police Commission Chairman Mike Ching, who was one of the subjects of the ES177 meeting. After reviewing the secret transcript, the OIP noted: “It appears a significant portion of that meeting involved discussion of whether the Council should in fact be considering ES 177 in an executive meeting and what specific matter the Council was considering in ES 177.”

The OIP ruled that debate should have taken place in public before the Council voted on going into ES 177. “The situation raises the question of how the council can vote to discuss a particular issue in executive session when the particular issue has not been identified,” the OIP opinion said.

The second question was whether the matters addressed in ES 177 fit into one or more of the eight specific reasons in state law that allow executive sessions.

The OIP opinion states:

“Prior to convening ES 177, the county attorney represented to OIP that the executive session would include discussions related to sensitive ongoing investigations involving the Federal Bureau of Investigation and the State Attorney General.

“It was further represented that these ongoing investigations involved confidential informants and undercover officers.

“It was asserted that discussions regarding these investigations in a public forum would jeopardize the investigations.

“Based upon the representations made by the county attorney, OIP indicated that it did not appear to be inappropriate for the Council to convene an executive meeting.”

Well, guess what? The county attorney lied. There were no “ongoing investigations” discussed.

The OIP opinion goes on to say:

“Upon reviewing the ES 177 minutes there is no indication that the Council considered or discussed any such investigations described by the county attorney.”

The OIP said the minutes show the Council discussed three investigations:

• An investigation being conducted by the County of Kauai Ethics Board.

• A KPD investigation that had been turned over to the Kauai county prosecutor.

• A proposed investigation into the termination of a KPD recruit.

The exception to the public meeting law that the county attorney claimed allowed the Council to go into executive session involves “sensitive matters related to public safety or security.”

The OIP concluded:

“It is OIP’s opinion that the actual matters discussed by the Council in ES 177 fall short of constituting ‘related to public safety and security.’ Therefore, it is OIP’s opinion that the matters discussed and decided on therein should have been done so in a public meeting.”

The Kauai County attorney claimed the executive session also was legal under a provision in the law that allows a board to go into closed-door meetings “to consult with its attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities and liabilities.” The Kauai County attorney uses this boilerplate for every executive session conducted by every Kauai county board or commission.

In the sole instance where executive session minutes for a closed County Council meeting “to consult with the board’s attorney” were obtained (through the lawsuit filed by the author of this book), the vast majority of the discussion had nothing to do with consulting with the board’s attorney.

It’s very likely (there’s no way to know for sure with minutes that remain eternally sealed) that “consulting with the board’s attorney” is simply a Kauai County attorney smokescreen to hide many, many illegally closed meetings on Kauai.

From the OIP opinion on ES 177, that certainly was true in this closed meeting:

“In reviewing the ES 177 minutes, it is OIP’s opinion that only an extremely limited portion of the discussion that occurred during ES 177 can reasonably fall within the attorney-client privilege.

“It is our strong recommendation that the Council act to immediately remedy its violation of the Sunshine Law (the public meetings statute) by making public the ES 177 minutes, subject only to the redaction of those limited portions which constitute attorney-client privilege communications.”

At Asing’s (and County Attorney Lani Nakazawa’s) urging, the Kauai County then sued the OIP in an effort to keep the transcript sealed.

Here was an amazing (everywhere except on Kauai) situation: A county government was suing the state to keep public documents from the public.

Even more amazing (but not surprising), the court on Kauai sided with the County. It ruled that items involving attorney-client privilege between the Council and the county attorney were so intermingled with the non-privileged parts of the transcript that it was impossible to determine what was public and what wasn’t.

The OIP appealed to the State Intermediate Court of Appeals where a decision still is pending. Even if the OIP eventually wins, the transcripts will be several years old and of little news value. But that’s what the Kauai County attorney was hoping for when she sued the OIP.

There are many, many government attorneys outside of Kauai County who would stand up in those instances and say to their client: “No! You can’t do that! It’s wrong!”

Neither Kauai County Attorney Lani Nakazawa nor any of her staff attorneys appeared to have had that brand of moral fiber. They believed it was their jobs to make the county’s illegal acts look legal, even if they knew the law had been violated.

1 comment:

Wallace S. Cochran said...

https://www.youtube.com/watch?v=O6HT1NucP6c