BRASS TACKS

BRASS TACKS: Much like eggs eaten three days ago making their reappearance in an unanticipated belch, local newspaper reporter Leo Azambuja is back and filing disjointed “day late and a dollar short” stories, not the least of which is Sunday’s attempt to make up for saying that Councilpersons Tim Bynum and JoAnn Yukimura "gave no reason” for asking that County Clerk Peter Nakamura not be reappointed at the inaugural meeting.

But in light of the elephant in the room- Nakamura’s harassment of former Deputy County Attorney Margaret Hanson which apparently cost the county $250,000 in settling an EEOC case- one line in the story speaks volumes:

Repeated attempts to reach Nakamura for comment failed prior to press time. Phone messages and a message left in person at the council services office in Nawiliwili Friday were not returned.

Though we’ve been attacked for reporting the story no one else will touch, the dearth of denials goes a long way toward corroboration.
Although the actual documents are “confidential” the reports continue to roll in from people who tell of the workplace harassment of Hanson after she and Nakamura broke off their “relationship”... although many-even most- say that the allegation made by some of physical violence on Nakamura’s part may be incorrect.

The quarter-million-dollar settlement by the county is apparently what’s at the unspoken heart of the two memos sent out by Bynum and Yukimura in an attempt to start a professional search for a county clerk.

Another quote in the newspaper story from Yukimura seems to confirm something that doesn’t meet the eye is up:

(Yukimura) also said she didn’t have access to the county’s legal or human-resources advice and counsel.

“The county attorney (Al Castillo) opined that I could not have access to the information or counsel until I became an officer of the county by being sworn in,” she said.

Because of the short time to review those documents, Yukimura said she did not have enough time to perform the required due diligence before voting for the clerk.

The obvious question this raises is why are the other four councilmembers so apparently unconcerned?

We’ll get to that analysis another day but suffice to say Nakamura has shown his ability to protect councilmembers from themselves through selective release of documents and other manipulations from which each, as charter members of “the club,” intend to benefit or have benefited.

Today, since no one else has, we’re going to concentrate on the serious charges made in Bynum’s memo going over our experiences with Nakamura and county procedures and laws in that context.

Bynum’s letter (in full) is in italics.

After long and serious consideration of the issues, I have decided that I will not be voting for Peter Nakamura to be reappointed as County Clerk this term. At a prior meeting I recommended that the Council appoint one of our capable current staff as an interim County Clerk and conduct an open search for the best-qualified candidate available to lead Council Services. Had we gone this route, Mr. Nakamura could have applied as a candidate in the search process.

While I recognize Mr. Nakamura’s talents, contributions and strong work ethic, there are, in my opinion, unresolved issues. The following are among those that led to my decision.

UIPA

The Uniform Information Practices Act is State law and requires that an agency provide a response to requests for public documents within ten business days. The Clerk has repeatedly failed to respond as required by law in the required time frame and, in a number of instances, has completely ignored the request and not responded at all. For example, a UIPA request for documents was made by Council members on May 26, 2009 and no response was received until July 8, 2009, and then only after follow-up memos from the Council members and an admonition from the County Attorney.

We’ve submitted no less than a dozen official documents requests that were fully ignored by Nakamura. While council services staff are usually forthcoming with regular public documents many times they are not under instructions from Nakamura.

At first we were unaware of the process for dealing with being ignored. Eventually we found out that the government official in charge of the record has 10 days by law to respond to a written request.

But if the official decides to ignore you your only option is to go to the toothless tiger of the Offices of Information Practices (OIP), which will usually fire off a letter to the denying official. Then, when that’s ignored another letter... and another... and another... until everyone just gives up.

Even when he does finally respond Nakamura has become a master of stonewalling giving excuse after excuse often dragging out cases for years.

Bynum then asks a question we asked a few months back- what ever happened to documents the local newspaper’s ace reporter Mike Levine requested which were similarly ignored during his Levine’s all-too-short stint here and, of course, once he left.

As another example, The Garden Island on their web site (http://thegardenisland.com/app/sunshine ) lists records requests made to various County departments, all of which were responded to within the timeline required by State law, except for those requests filed with the County Clerk. The requests made to Council Services were all ignored and not responded to at all. Other members of the public have informed me that their UIPA request for documents have gone unanswered.

That last sentence the understatement of the year.

Records

The Kaua`i County Charter requires the Clerk to “take charge of, safely keep and dispose of all books, papers and records which may properly be filed in his office and keep in separate files all ordinances, resolutions and regulations and cumulative indices of the same, or exact copies thereof, enacted or adopted by the council.”

One of the Clerk’s important responsibilities is to keep the County Code up-to-date. One can do a Google search of any Hawai`i county, except Kaua`i, and easily find an updated code. Not only can the public not find the Kaua`i County Code online, an up-to-date codified version has not been available in any form since 2006.

If we had a nickel for every time we’ve written about this, it wouldn’t amount to as much as we would have if we had one for every time we’ve had to tell someone shocked neophyte that there is not only no on-line version of our local county code- the laws of the island- but that it’s virtually impossible to get hard copies of them at the clerks office, since you have to ask for them by number and there’s no way to find out the number since there’s no available index.

Ordinances passed since 2006 are simply shoved loose in the back of the file so the actual pre-2006 code is incorrect unless it’s cross-referenced with every “loose” ordinance

We’re not surprised at all that there hasn’t been a codified version available since 2006, especially since there wasn’t even a codified version of the county charter available for many years until it was recently compiled, apparently by the county attorney’s office since the clerk- who is responsible for doing it- couldn’t seem to get it together.

If you requested a copy of the charter since 2002 the amendments were - yup - shoved in loose at the end, often unnumbered and in a different font.

When Council members sought electronic minutes of Council meetings, the Clerk informed Council members in writing that he “had difficulty locating electronic copies of Council meeting minutes” and that “extensive agency efforts have been required to search for and prepare the records for copying.” This response and other instances related to key Council records have raised alarms about the integrity of Council records and led to the submission to the Clerk of the following written inquiry in July 2009: “Is it the case then that our key public documents exist only on paper in the Historic County building? Is it the case that our office documents are not backed up on the County network? Is it the case that we are not availing ourselves of the backup capabilities provided by the County IT department? Does this not leave an unacceptable risk that these key public documents could be lost completely?” There has been, to this date, no response to this written inquiry and my concerns about the integrity of County records remain.

It’s simply unbelievable that this kind of thing has been going on. Yet it’s also our experience and that of many others we’ve spoken to. It’s apparently why there was such blowback when it became time to put all this stuff on-line last summer.

What Bynum leaves out is that according to Eric Knutzen, the county’s IT director, he’s been ready to go, literally for years, saying it’s a matter of will on the part of the clerk and council.

That’s why the mutual admiration society of Nakamura and former Chair Kaipo Asing functioned so well- each had an interest in keeping the public in the dark.

But as to the Nakamura salary issues rather than reading the newspaper version or other recent charicterizations, you may want to read what Bynum actually wrote to understand why some were calling it illegally done.

Salary Issues

The County Charter requires that department head salaries be determined by the Salary Commission. The County Clerk is a Department head. By Salary Commission resolution, requirements for department head raises include: 1) “employee’s completed performance evaluation evidencing that the appointee has met or exceeds job requirements” and 2) “the appointing authority’s recommendation on whether a proposed increase should be granted”.

Although neither criterion was met, the County Clerk received a pay raise in December 2009.

Other department heads and the mayor did not receive a salary increase in December 2009 due to economic conditions. This has led to a situation where the clerk’s current salary at $114,848.00 is higher than that of the Mayor’s.

The key here is that, while the salary commission okays a raise it only authorizes a range of salary. The actual salary is awarded based on the recommendation of the appointing authority, based on their evaluation.

But with the council-clerk relationship the council serves two different functions. First, they have a bite at the apple of the salary commission’s recommendation which they can either reject or, through inaction, implicitly approve without really approving.

But then they are also the “appointing authority” so they are responsible for going through the evaluation process to set the actual salary. That’s what never happened, yet Nakamura got his raise- one to the highest level of the “range” set by the commission- anyway.

Then there’s the kicker.

Over the last several years, without the knowledge of the Council body, the Clerk accepted and was paid unused vacation time. This is contrary to the County’s policy and practice with other County employees. Unused vacation time pay paid to the clerk is in the neighborhood of $50,000.00. The funds were apparently available without a separate appropriation because of salary surpluses in the Council Services budget resulting from vacancies. (Positions have remained unfilled for extended periods of time. Example: In the FY06-07 budget, a clerk typist position was added by a unanimous vote of the Council. Despite repeated Council requests and promises from the Clerk made in each budget cycle, the position remains unfilled four years later.)

We know many county employees who would love to have gotten this kind of deal. Many have also accumulated a huge bundle of vacation time and were forced to take it or lose it. One way around it has been to “use” it right before they retire so in essence the last “X” number of weeks- or, more usually, months- of employment are actually vacations.

But we’ve never heard of a county employee being allowed to just take the money and run. And certainly not without authorization of their boss... in this case, the council

Bynum’s letter concludes:

The Garden Island opined in November of this year, “When the council goes to organize itself, we also hope the members do their due diligence to ensure the current county clerk and the individuals holding other key positions are still the most appropriate choices for those jobs.”

This position I am taking and observations I have made are a result of my process of due diligence and the belief that this course of action is in the best interest of the County and its citizens.

Finally, since there’s been so much written about Yukimura’s “motion” to conduct an executive search, we will post her memo below in full.

PROPOSAL RE SELECTION OF THE COUNTY CLERK

TO: Kaua`i County Councilmembers-elect

FROM: Councilmember-elect JoAnn A. Yukimura

DATE: November 22, 2010

Motion: That the Council secure the assistance of an Executive Search firm and with such assistance, create and follow an executive search process for selecting the County Clerk that clearly defines the leadership and management skills, knowledge and qualities required and preferred for the position of County Clerk, solicits applications and evaluates the candidates for ultimate selection by the Council.

Background: By job description, the Clerk is equivalent of a Department Head. Department Heads constitute the highest level of administration in the County, next to the Mayor and Managing Director. Department heads are extremely important to the quality of operations and performance of any corporation, whether private or public. If our goal as County leaders is to support the “highest standards of government performance and service,” we have a responsibility to select the best possible candidate for the position of County Clerk.

Rationale:

1. An executive search is a business “best practice” that will increase the chances of finding the best qualified person. It will minimize the “politics” and focus instead on qualifications.

2. As an open, competitive process, it will provide the best choices available.

3. It will increase accountability.

4. By adopting such a process, the Council will demonstrate its commitment to the highest standards of government performance and service.

5. The Council will be using a process used successfully by the Police Commission; it produced a Police Chief, who, most people agree, is a capable leader and manager.

6. It will help to professionalize the County, which means it could enable the County to achieve some of the goals of a County Manager system within the existing “strong mayor” form of government.

7. An executive search process will be fair to the existing County Clerk. The executive search will not remove him from his position because his current position ends at noon on December 1, 2010. The process will allow him to apply for the new position, and if he chooses to apply he will arguably have an advantage by having served in previous years. If he is selected as the best of the candidates, the process will still be worthwhile in bringing greater clarity between the Council and the Clerk as to expectations, goals and the evaluation process to be followed. There will also likely be a greater appreciation and awareness of the qualifications and gifts that the present County Clerk has to offer because of the process he would have gone through.