Wednesday, July 15, 2009


LETTING LYIN’ DOGS LIE: We’ve been an unabashed fan of reporter Michael Levine whose clear informative prose in covering, first the police and courts beat and now county government, has been a breath of fresh air, joining now-Editor Nathan Eagle in bringing long needed professionalism and basic literacy to the local paper.

But today’s four-part report (here, here, here, and here) on last Thursday’s Board of Ethics (BOE) session was, in the parlance, off the hook. We struggled for days to make sense of three different reports from attendees and it was like the proverbial blind men describing the elephant.

The details of the “through the looking glass” session- with Levine playing Alice- are a must read for anyone who doubts the “incestuous” nature of the population of boards and commissions on Kaua`i (as Levine reports Cost Commission Chair Randy Finlay “acknowledged”). And it’s but the latest chapter in the associated Tales of the Minotaur’s Labyrinth.

One new wrinkle to the effort to butcher the language and make a mockery of critical reading skills came disappointingly from new BOE member Paul Weil who has usually been a breath of clean air on the board.

Weil is trying to interpret the infamous 20.02(d) charter provision banning board and commission (B &C) members from “appearing” before other Bs and Cs on behalf of “private interests”, using the word not as opposed to “personal interest” in the broad definition of a private interest, but by claiming that non-profit organizations operate in the “public interest”- a notion about non-profits that, even if it did apply, is patently absurd what with trade organizations and other private interest non-profits.

But that matter notwithstanding, one thing is clear- there is no longer doubt that any hope that new county Attorney Al Castillo might ignore those who butter his bread, lies face down in the dust bunnies in the corner of the maze.

To insist that an ordinance can change the plain reading of a charter provision is something that can only happen on Kaua`i where rule of law is notoriously a “wonderland” experience and “execution first, trial later” is the order of the day.

Yet despite original promises by Castillo that he would reverse such holdings, his position has now morphed into a validation of the crooked opinions of the past on the matter. Not only that but he didn’t even have the guts to do it himself and sent a henchman, new Deputy County Attorney Mauna Kea Track, to deliver the bad news.

The fact is that the ordinance- which like the controlling charter provision and the state constructional section on ethics- is confusingly called the "Code of Ethics"- is flawed, written by sycophants of the revolving-door, old boys and girls network, intentionally and illegally to reverse a charter provision barring them from doing their dirty work though quid pro quos and mutual handwashing.

The ones that would act to change that- the county council-certainly don’t seem like it’s even on their radar screen- they like it just the way it is and wouldn’t want to upset the ethical apple cart that routinely clears them of serious charges under absurd BOE rulings

Apparently the only avenue left is to have a judge strike down the ordinance since, even by Castillo’s own admission, it muddies a clear and controlling charter provision

Although we’ve been loath to report this fact because of dubious relevance it now seems more than relevant given Castillo’s 180. According to a reliable source Castillo has said he consulted with former Councilperson and current Circuit Court judge Randall Valenciano on the subject.

That apparently “ex-parte” communication seems to have changed Castillo’s mind because right after it he was quoted as worrying that if the charter provision is enforced “no one will be able to serve” citing that as an “absurd” result even though there are literally tens of thousand of people on the island who would have no problem meeting the standards.

And guess who would most likely hear a suit to enforce the notorious 20.02(d)? You got it- Valenciano, with the other 5th Circuit Judge Kathleen Watanabe (yes- we’ve finally started spelling it right) having set aside most of her calendar for the next year for the “Pflueger vs. everyone on gods formerly green earth” series of lawsuits.

But assuming that even Valenciano couldn’t dispute basic supremacy laws and if he does that that he would be reversed on appeal, the little red hen’s question stands out.... And who will file the suit?

“Not I” said the sustainability organization.

“Not I” said the land use non profit.

“Not I” said the beach clean-up brigade.

“Not I” said the coastal path enthusiasts.

“Not I” said the organic farmer.

“Not I” said the head in the said new-age “too spiritual to care” minions.

But you can be. If someone did file suit the refrain to the question of who will help me to enjoy the benefits of this now-functional, responsive, open government would be “I will, I will, I will, I will”

As always on Kaua`i the $64 question is “who will help...”. For some reason this island is unique in all the country in that no one seems care enough any more about good governance issues, at least enough to get some basic insane and illegal practices before the judiciary.

And guess what? As far as the council and administration are concerned, the name of the place is I like it like that.

The corporate elite routinely intimidates the council into actions that favor them with threats of a lawsuit.

Attorney for the Board of Realtors Jonathan Chun threatened suit last summer if the council didn’t flout the law in grandfathering apparent illegal vacation rental in residential areas and viola- vacation rentals in residential neighborhoods that were forbidden by controlling state law to start with.

And now suing in the public interest? Introducing... nobody.

It’s happening again right now with attorneys Lorna Nishimitsu and, disappointingly, Dan Hempey doing the same for owners of vacation rentals on ag land where state law specifically forbids “overnight accommodations” on ag land ancillary operations.

Yet the council seems poised to pass a bill to, if not give them illegal “use permits” as the planning commission recommended, actually require the planning department to enter into (get this) “non enforcement agreements”, as stated in the original council bill

Years ago citizens had some leverage when Kaua`i activist extraordinaire Ray Chuan’s "Limu Coalition" dared to file suit a few times and put the county on notice that someone was willing to challenge their patently illegal actions in court. He and the rest of the 90’s set of community advocates found out how easy it was to get positive injunctions and rulings regarding many of these absurd abuses perpetrated by county government.

That led to actions such as the opening of the access to “Queen’s Bath” where just the threat of a lawsuit by Limu-guys led to repeal of an action by the county engineer in closing the access.

But currently there seems to be no one who does anything but nibble around the edges when filing suit, such as 1000 Friends vs. County of Kaua`i suit which is still in court over the minutia surrounding the development across the street from Safeway. Even if they win it will little or nothing to change county policies although it could relatively slightly add some cost to the developers.

We’ve listed umpteen blatant abused of process over the last year and a half that are easily winnable in court, from the non enforcement of the citizen’s petition "enforcement of the General Plan" charter amendment to a slew of Sunshine Law violations with dozens of cases in between similar to the ethics situation where ordinances fly in the face of superior charter, state law and constructional provisions.

All have their root in a corrupt self-serving county attorney’s office that spins opinion out of whole cloth. Yet even with a now perpetual charter commission there has been no public advocacy- much less outcry- for changing the charter provisions for the county attorney to provide for a public component to the job or even- gasp- electing the CA to provide for autonomy.

No one seems motivated to dig into their pockets to file suit on these broad issues. Until we do, no amount of great reporting will do anything but cause more head shaking and a deeper sense of helplessness and apathy.

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