Monday, March 23, 2009

GETTING THE LIES OF THE LAND

GETTING THE LIES OF THE LAND: Somewhere in the bowels of the County Attorney’s office, where the special layering of confidentiality obscure all other secrets, presumably sits a hush-hush file whose surreptitiousness is of the utmost clandestine nature.

We can only presume that an examination of that file would reveal the details of not only all the reasons why the county doles out big bucks to “special counsels” in Honolulu to litigate our lawsuits, but why they lose every time.

This year however even the $1.2 million dollars appropriated in last year’s budget wasn’t enough to satisfy the beast and apparently they have already gone though that and are asking the council for an additional $300,000 to cover the overspending.

But even that may not be enough because according to the budget submitted by Mayor Bernard Carvalho they have already spent a whopping $1,575,587 this fiscal year- $75,587 more than the total they would have in the budget if Bill #2307, appropriating the $300,000, passes.

That $300,000 is just slightly less than the $337,169 spent all last year meaning for some reason we’ve spent $1,238,418 more this year than last because none of the eight attorneys in the office are competent enough. And that’s just through March 15 with certainly more to come by the June 30 end of the fiscal year

So where is all that money going? Well, that’s the biggest secret of all. Because although the council must publicly approve each expenditure “up to” a certain amount each for specific case, the information on how much is actually spent is of course, a secret.

But there are clues and one on this week’s agenda points the finger toward a common target of lawsuits- the often absurd and unruly determinations made by our various administrative boards and commissions.

These boards and commissions are the repository, not for the best and the brightest or those who benevolently give themselves to public service but rather for the most part, for hacks and cronies of the mayor who seek to at best pad their resumes or at worst make decisions to financially benefit other cronies who sit on other boards with whom they do business every day in the community.

And they do so by flouting rules- if indeed rules exist- and making quite blatant arbitrary and capricious rulings that baffle the members of the public who have experienced their handiwork and walk away with a bad taste in their mouths for so-called due processes of Kaua`i county government.

The cases in point this week are two lawsuit listed as “Claims” on this Wednesday’s county council agenda, filed against the Liquor Commission - one of the most secretive and entrenched in the county- over the denial of a liquor permit to well known local businessman James “JJ” Jasper.

According to one of two similar suits Jasper filed, the commission made their decision without any of the due process required by law- due process that should be contained in administrative rules in accordance with HRS Chapter 91 but, typically on Kaua`i don’t even exist or don’t properly- or legally- address the conduct of adjudicatory functions of many of them.

The suit paints a picture of a commission that didn’t even notify him of the hearing or the result, denied him any of the records and in fact secretly met in violation of open hearing and meeting laws. The commission then let the long time Director of the Liquor Control Eric Homna spin his tale and also act as the commissions attorney in secret executive session, and finally made their determination based solely on Homna’s contention, refusing to allow Jasper to present and cross examine witnesses or have other rights under state laws regarding contested case hearings.

This echoes the complaints of many others when interacting with the various boards and commissions.

The case of the Board of Ethics is even worse. Not only have they been operating without rules that adhere to state law for years they have actually encoded the arbitrary and capriciousness of their decision making process in the rules they do have,

They are apparently seeking to change their rules but the new draft just gives them not just the current power to make arbitrary secret decisions but the power to not even take cases or acknowledge them if they so decide. And even if they do they can suspend due processes like the ability to call witnesses and hear from the complainant when they make their decisions.

And they are currently plotting to pass the new rules without even holding the public hearing that HRS 91 requires.

The Ethics Board, as PNN has reported in the past, has been engaged in a battle to somehow ignore the provisions in the county charter in sections 20,02(d) which prohibit members of boards and commissions from appearing before other boards and commissions on behalf of private parties.

And at their last meeting, after failing to get voters to take the provision out of the charter last November, Board Chair Mark Hubbard- a Grove Farm executive- attempted to take the 20.02(D) provisions out of the “Guide to Ethics” the county publishes for it’s employees, board members and other officers at the last meeting according to Ethics Board watchdog Horace Stoessel.

No telling how much they are costing the county in lawsuits over the years but it doesn’t appear it will get any better unless new county Attorney Al Castillo reverses another of those “secret opinions” that seemingly allow the board to ignore 20.02(d) and reins in the other lawlessness.

Another den of baffling inequity is the Board of Review (BOR) which determines cases of property tax appeals.

Quite revealing was the testimony of realtor Mike Dyer and others during a recent hearing on a bill to try to change the BOR process- a bill that the council has deferred until next September when it will probably then again procrastinate long enough to make it “too late for this year” as they did last month after discussing the bill for months earlier.

Dyer described the experience he and many other have had of getting decisions denying their appeals without any rhyme or reason usually just rubber stamping the county assessor’s determination with a process that allows the BOR to arbitrarily make rulings with no supporting documentation for their decision.

That has been the common hallmark of almost all others of the adjudicatory boards and commissions on Kaua`i- decisions are made without any explanation or justification.

That has led to some of the most costly lawsuits, especially against the all powerful planning commission which has caused to county to lose three lawsuits this year and probably will again in the future unless they start documenting their decisions.

Perhaps the most infamous was the recent decision regarding the new resort in Waipouli when all they needed to do, according to a separate suit by 1000 Friends attorney Dan Hempey, was file a “finding of fact” on the issues that went into making their determination,

But instead they just make their determination without “officially” finding the facts, causing the judge in the lawsuit that followed to say the commission’s decision was voided - that after spending oodles of cash on a “special counsel” whose bungling of the case caused the county to lose out on normally routine givebacks from the developer in addition to the lawyer’s fees.

Similar was the case of the “Monkey Pod Tree” development in Koloa and the bottled water case where the incompetence of the boards and commissions caused their decisions to be voided in the courts when the usual gaggle of less than competent lawyers the county routinely hires did their usual long, drawn-out, losing job.

And you can bet more and more of these cases will be coming up as developers learn they can get what they want in court because of the incompetence of the staff in properly arming their boards and commission with competent and adequate administrative oversight- rather than the hacks and cronies who populate the offices of the departments and Mayor’s office itself- as well as representation by competent attorneys

People thought that in passing a charter amendment in 2006 establishing an office of Boards and Commissions to administrate the various entities, some semblance of competence would be established. But instead then Mayor Bryan Baptiste appointed a crony of cronies, long time county insider John Isobe to the post who continues in the job under Carvalho.

According to members of the public who watch and bull dog the various boards, Isobe has worked tirelessly to treat the public as a nuisance that must be dealt with through secrecy. treating them like the proverbial mushrooms- kept in the dark and fed plenty of manure.

Many on Kaua`i just ignore all this and think well, it doesn’t really effect them. But money changes everything and if they knew how much this attitude was costing them through lawsuits and other payoffs and paybacks to the revolving-door, chamber-of-commerce crowd, perhaps their attitude would differ.

2 comments:

Leonard said...

The Liquor Commission denied JJ ANOTHER liquor license because a comfortable majority of voters living within the legally defined boundaries opposed it. The signatures and voter rolls were presented at a public meeting as was an opportunity to challenge them. In this instance at least, the Commission was following both the law and the will of the people whose lives were most likely to be adversely effected by the granting of a license.

Andy Parx said...

You’re absolutely right Leonard and I probably should have expounded upon that. But the decision may actually be overturned due to the incompetent and illegal way the commission conducted it’s business. That’s the shame of all these kinds of decisions- most, like with the planning commission, are actually within their purview and good decisions for the community.But due to incompetence and corruption we, the county, are getting sued- often successfully.