Friday, July 30, 2010

DON’T IT ALWAYS SEEM TO GO?

DON’T IT ALWAYS SEEM TO GO?: Well we might as well make a week of it.

After watching the disgusting display of lies and half truths as well as the attempts to complicate a simple matter in order to undo a previous attempt to legalize the illegal we’ll attempt to wrap it up with a “fact sheet” on the recently passed transient vacation rentals (TVRs) bill to refute many of the statements made by councilmembers on Wednesday.

First, the simple story which we’ve presented a few times regarding the legal issues.

Under state law HRS 205-6, “Special permit”:

(a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified.

This has always been the case even before the Kobayashi opinion and all through the years leading up to the passage of Ordinance 864 on March 7, 2008.

However no one- not anyone with a TVR on residential or ag land- has ever applied for, much less received one. Under questioning Wednesday two deputy county attorneys verified both the availability and lack of applications.

Therefore no one had a legally operating TVR previous to March 7, 2008 when the ordinance attempted to legalize existing TVRs- ones that had been operating without special use permits- in the residentially zoned land by creating a process for “grandfathering” them while banning new ones.

Wednesday’s law allowed TVR owners on agriculturally zoned land to apply for permits once again even though they had essentially been cut off on March 7, 2008 when none were legally operating with a special use permit from the planning commission.

Many councilmembers have attempted to make an issue of a case note on HRS 46-4 (all the way at the bottom).

It says:

"Lawful use" and "previously lawful", as used in this section and land use ordinance, respectively, refer to compliance with previous zoning laws, not the building codes or other legal requirements that may be applicable to the construction or operation of a structure. 86 H. 343 (App.), 949 P.2d 183.

Both county attorneys and councilmembers who cite this note on “county zoning” procedures and “grandfathering” often conflate building codes, which may not be used to amortize or phase out uses, and zoning issues which may be used to deny grandfathering.

The lack of a special use permit is a undoubtedly a zoning violation not a building code violation and this is the key point that makes the claim that this section requires the gutting of 864 and the establishment of a process for ag land TVRs, at best a mistaken notion at worst a disingenuous falsehood.

Don’t forget- it isn’t the structure that is illegal, it’s the use of the structure for a TVR without a special use permit that violates the law.

Based on this let’s look at some of Wednesday’s statements and their veracity. For our purposes half-truths and equivocal statements to convey confusion are considered false

1) This bill will not create any new TVRs

False. There are no existing TVRs because TVRs require a special use permit and, according to both planning and the county attorney’s office there are no permits. Though the structures exist the TVR status does not. Any that are approved now will therefore be “new”

2) This bill does not legalize TVRs on ag lands

False. Since there never were any legal TVRs on ag land and ordinance 864 essentially ended the possibility of obtaining new special use permits, if any permits are approved now there will be “new” TVRs on ag land. Without that permit they have always been in illegal use and should and could have been shut down by the planning department. In that they were illegal before the bill passed it does indeed “legalize” the use if the owners follow the special use permit.

3) This is about fairness

False. For years these TVRs have been operating illegally without special use permits, fouling residential neighborhoods and creating nuisances and taking agricultural lands out of farming, jacking up land values and driving legitimate farmers off their farms. In addition those who played by the rules are now shut out of being able to hold onto their farms with truly “accessory to farming” overnight accommodations under a legitimate ag tourism plan.

4) All we are doing is providing for due process

False. Due process must be “due” under law. The ag land TVR owners were provided due process until March 7 2008 and did not take advantage of it.

5) The planning department can be counted on to provide stringent oversight and the planning commission will reject most of them especially the more egregious of ag land TVRs.

False. The planning department under Director Ian Costa made a joke of Ordinance 864 approving residential TVRs willy-nilly in batches without required inspections, making the public scrutiny part of the process all but impossible to accomplish in a timely manner. The commission just approved a massive mansion as a “farm dwelling” recently and even joked about it. The true joke is the notion that the planning commission will provide tight scrutiny.

6) Passage of the bill will prevent lawsuits.

False. What they will do is prevent the “deep pocket” suits developers will file and substitute members of the public as plaintiffs. That makes the decision a purely financial one based on a knuckling under to extortion. If the county wanted to save money they should have brought this to the courts many years ago by shutting down the TVRs outside the visitor destination areas, waiting for one to sue and defending the suit. They could still do that today but rather than protect the public’s right to determine land use they have made a purely financial decision. And they still will most likely get sued when the first TVR on ag land is rejected by the planning commission, assuming the county attorneys allow the commission to do so and don’t try to similarly scare them with the possibility of a lawsuit should they reject a permit application.

There are probably others less consequential and political in nature but we’ll leave it there.

This will be our last word on this for a while- we hope... at least until the permits start being processed. But while we’ll move on to the next issue many others will not.

Perhaps worse than the result is the feeling among many who have become active and participated in the debacle of a process that they won’t ever bother getting involved in another issue because it’s simply too draining when we lose out to big money just because that money talks in county government.

Their future apathy is the real loss here.

Thursday, July 29, 2010

NOT BUT WITH A WHIMPER

NOT BUT WITH A WHIMPER: As if there was any doubt as to the outcome or the specifics the council passed an even more loophole ridden version of the TVR bill yesterday with (predictably) Dickie Chang and (disappointingly but not unpredictably) Lani Kawahara joining Jay Furfaro, Darryl Kaneshiro and bill author Tim Bynum voting “yea” and Derrick Kawakami and Chair Kaipo Asing voting in the negatory.

That information comes no thanks to the lazy dullard on the government beat at the local newspaper who apparently couldn’t stay up as late enough to file a story on the all important vote but Joan Conrow who “juggled work with time in the Council Chambers to see for myself how the vote on the transient vacation rental (TVR) bill went down,” filed her post at 11:16 last night.

The added poison to the already toxic legislation says, according to Conrow:

you don’t actually have to be engaged in bonafide farming, as evidenced by tax returns, to get approval for your TVR on agricultural land. You can still get a permit if the planning commission finds intensive agriculture is prohibited by the shape, size, topography, surrounding land uses OR — and this is today’s big giveaway — for any other reason.

And as far as “Mr. Wala`au”, also predictably Joan quoted Dickie Chang as saying “(w)hether it’s right or wrong, we need to move forward” saying that apparently “that answers the question of whether his private pau hana briefing by beer-bearing county attorneys had any effect on his decision. 'Cause he was against the bill before that little meeting.”

But the big question is whether this will really be the political game changer many are predicting.

There is palpable fury over this bill among not just the usual suspects but those who ordinarily don’t give politics a second thought except for every two years in November.

Many felt that they were sold down the river when the grandfathering bill was passed but thought that the restrictions and difficulty of the process- replete with provisions for public scrutiny- would serve to phase out the existing TVRs in residential areas.

But not only did the corrupt planning department refuse to follow the guidelines but the planning commission didn’t seem to care. And now instead of seeking to strengthen the bill the council has essentially torn it up and thrown in a plum giving the most egregious illegality- those TVRs on ag- a path to legality to boot.

Other than those who stand to gain financially it’s hard to find anyone- even among those who ordinarily support the land rape of Kaua`i- who has supported the mess.

So how will this shake out- or shake up Kaua`i politics?

The questions are first, will this be the end of the political careers of Furfaro and more importantly Bynum as many have vowed to make it and on the flip side will the animosity over Asing’s reign of terror and the disappointment over the misplaced hopes some had for Kawakami last election be negated by their somewhat meaningless votes?

Furfaro’s popularity has always been an enigma. But his vote wasn’t disappointing anyone. His unflinching support for tourism development has always been a hallmark of his tenure on the council. But his growing pomposity and ego driven bombast recently has become more and more irritating, at least for those who catch it on TV.

Is the anti incumbent feeling this year enough to push him out? Don’t count on it.

Bynum is the big question mark. Before the TVR debacle his growing popularity in supporting what was seen as Kawahara’s push for openness and free-flowing information allowed him to ride her ample coattails which many predicted would lead her near or to the top of the polling this year.

But with Kawahara out of the race after being beaten to a bloody pulp by the likes of Asing, Kawakami and Kaneshiro voters may not put as much stock in the need for Bynum’s “second” to what was perceived, rightly or wrongly, as the fight her “new blood” introduced into the council dynamic.

With “his” TVR bill, as well as other votes that are seen as hypocritical of his words on sustainability and land use in general, that may well be the defining issue upon which Bynum’s continued incumbency depends.

That leads to Chang who slipped in last time due to name recognition alone. But really his victory in ’08 was a numbers game- one that may again be the more important factor this November.

With two “vacancies” in ’08 there was a dearth of viable candidates to fill the two slots other than Kawahara. A virtual unknown, Kipukai Kuali`i even came close without any endorsements from the progressives that a social workers and organizer might have gotten if organizations like the Sierra Club- and admittedly observers like us- hadn’t put all their eggs in the Kawahara basket.

This year is quite the opposite. The two who created the vacancies- Mel Rapozo ad JoAnn Yukimura who both ran for mayor and lost- are back and are virtual shoo-ins for election.

But other than Nadine Nakamura- who despite having some good buzz is still is a question mark due to the wariness people have over her profession as a “planner”, which on Kaua`i may be a dirty word- and Rolf Bieber who has made a name for himself in taking on the administration and the corrupt ethics commission, viable candidates are few and far between.

Given Chang's negatives after two years of cluelessness Nakamura stands to take advantage and move into his slot.

But that may all be moot if Asing or Kawakami- or both- fall out of the top seven something that, although unlikely if you look at past elections, may be possible in a year when disgust with council incumbents has made dents in their usual bases of support.

The question for Furfaro and Bynum may not be their negatives as much as how effective a charge Bieber or Kuali`i can make and how far the once mighty have fallen.

We have few illusions. To quote John Lennon- and perhaps explain Kawahara’s decision that she’d had enough-

There’s room at the top they keep telling you still
But first you must learn to smile as you kill
A working class hero is something to be

Wednesday, July 28, 2010

BUST

BUST: After Joan Conrow’ report yesterday regarding the triple-teaming full court press by County Attorney Al Castillo’s deputies, it wasn’t surprising that the recipient of the home visit, Dickie Chang, called her at a quarter to seven this morning to give what she called his side of the story.

But as usual, Dickie’s motor mouth probably only got him in deeper kim chee and, perhaps unintentionally, telegraphed his vote.

The usually clueless Chang didn’t disappoint. Right off the bat he told Joan:

“It is true that the attorneys came over, but I didn’t think it was wrong," Dickie said. "I talked to the Chair [Kaipo Asing] about it. I told Jay [Furfaro]. I told everyone. They had their concerns, but I didn’t think I did anything wrong....

“I understand the sunshine law as it pertains to Council members. I just felt it [the meeting with attorneys] was harmless. Maybe that has something to do with my inexperience, but I am entitled to ask an attorney for their opinion.”

You do understand it Dickie? Apparently not since you were even warned by Furfaro and Asing- who are usually sunshine law challenged themselves- but went ahead with the meeting anyway.

Apparently Chang suspected and sensed something was wrong but blew off concerns, not even checking with the Office of Information Practices (OIP) to find out.

But perhaps more revealing is this quote:

“People need to understand this is normal within the county. Anybody can call and within six hours ask you to meet for an appointment. And when an agenda item is up for a vote, Public Works can call to meet with us, Planning, Public Safety.

As we said yesterday many suspect that the ban on “serial” communications to avoid the sunshine law’s prohibition of three or more councilmembers from deliberating toward a decision (outside the confines of a duly agendaed item at a meeting) is flouted all the time by councilmembers without a second thought.

But Chang confirms that this is “normal within the county”, explaining why many times items come up and every councilperson is already “on the same page” having essentially discussed the item via third parties in the administration.

Another quote was quite the head-scratcher. Asked about Mel Rapozo’s request for an investigation we reported yesterday.

“I don’t believe I did anything wrong and I don’t know what an investigation would uncover,” he said. “They weren’t trying to influence me, they were not influencing me, they were not telling me how to vote."

Then what the heck were they there for? To watch American Idol?

Either Dickie is too naive to know when he’s being lobbied and “influenced” or the trio just happened to call, stop by and get into a discussion of the bill.

What is it with these people that makes them seemingly incapable of adhering to the spirit – or sometimes letter- of the sunshine law and doing intra-county business in an open meeting in full public view?

Chang by the way has once again claimed that, for purposes of the ballot this year again. his nickname- according to law the name he is commonly called- is coincidentally the name of his business, “Wala`au”,

Finally his last quote reveals how he will vote today if the matter isn’t deferred again.

"I'm pissed off about this issue [vacation rentals] and a lot of other people are, too. But there needs to be a process. We've stopped the bleeding, but now we've got to set things right. It's like BP. You cap the well, but you've still got to clean up the mess. So we'll see how it goes today at Council."

Set things right?

Well, maybe it is like the gulf spill because if the bill is passed it will be a gusher of abuse of process and law, polluting the north shore and other areas for perhaps decades to come.

Tuesday, July 27, 2010

BOOM

BOOM: What, other than explosive, can you call Joan Conrow’s report today on our very own Kaua`i Beer Summit, with four- count ‘em four- deputy county attorneys, cold pack in hand, showing up at Councilperson Dickie Chang’s home to put the thumb screws on him to vote for the vacation rentals bill tomorrow.

According to Conrow

Upon hearing reports that Deputy County Attorney Mike Dahelig had called Councilman Dickie Chang at home one evening and asked if he wanted to have a beer, then showed up with a cold pack, followed thereafter by the separate arrivals of Deputy County Attorney Ian Jung and County Attorney Al Castillo and a discussion of the pending transient vacation rental bill, in which Dickie reportedly was told it was his duty to pass the measure because otherwise the county would be sued, I called Mike late yesterday afternoon and asked if it was typical for county attorneys to meet with Councilmembers at their homes and have conversations about bills before the Council.

But Joan didn’t leave it there and if that wasn’t disturbing- and potentially illegal and certainly of questionable ethics- enough she called Dahelig and he had some outrageous and memorable things to say about the clandestine confab outside of the council chambers where the council’s consultations with attorneys are supposed to take place.

“You are not the first person to make that inquiry of our office today,” Mike said. “What we did was not illegal. We’re the attorneys for all the Council members. And it’s like any other attorney and client. If they wish to talk with us, we are not going to dictate the venue they choose; we are not going to discern where the locale is. Our office does not engage in direct lobbying, but if there are legal concerns, we will discuss those matters with them.”

“But I heard that you called Dickie,” I said. “He didn’t call you.”

“We may even ask to sit down with Council members if we feel there is some confusion about the issue raised about them on the [Council] floor,” Mike said. “We’re going to advise and counsel, but never take any type of action to tell them how to vote. If we feel that there is some issues being raised that are not on point, we will raise issues with them. We do not go and say actually you have to vote a certain way.

Well that certainly is a strange interpretation of their job, especially considering that it’s been a rule of the council that the county attorney’s office does not represent individual councilpersons but the council as a whole- a rule used in order to squelch individual councilmembers' ability to divulge county attorney opinions without the approval of the whole body among other things.

We’ve talked to councilmembers who were denied access to county attorney advice and told to bring it up in executive session where the whole council could share in the answer.

But Conrow’s report wasn’t without a little hilarity. She asked Dahelig

“What about the beer?” I asked. “Is that just a guy thing, or what’s up with that?”

“Beer is not a substance that we’re not allowed to engage in,” Mike said. “In terms of what beverages we’re drinking, that’s not our job to be in a position to describe the circumstances of the meeting. As far as alcohol consumption, I can’t find anywhere that says it’s illegal.”

Somehow the tortured language of the reply reminds us of the famous Churchill quote saying “that is something up with which I shall not put”.

But back to the illegality. Joan said:

“Did you talk to any other Councilmembers?” I asked

"I’m not going to answer that, and I’m not going to discuss the nature of the conversation,” he said. “That’s privileged information [under attorney-client privilege].”

Here we go again. If indeed they had done the same thing with only one other councilperson it might not violate the sunshine law. But if a total of three were similarly consulted outside the confines of a duly agendaed or otherwise legally called executive session it would apparently violate the serial consultations provisions which forbid three or more councilmembers from deliberating toward a decision and especially discussing how they would vote and forbids using others to accomplish the same banned communications.

But the use of “attorney client privilege” when it comes to the open meetings provisions of the sunshine law was the subject of the infamous ES 177 case which we’re certainly not going to rehash here except to say the county won and now the Office Of Information Practices (OIP) is reluctant to challenge the council when attorney client privilege is concerned.

It may all hit the fan- although we wouldn’t be surprised to see it be either swept under the rug on Wednesday or if it does come up taken into executive session- at tomorrow’s meeting because, in the comments section of Joan’s article, former Councilperson and current council candidate Mel Rapozo wrote:

I have submitted a written request, through Council Chair Asing, that the Council defer this matter until these allegations can be investigated by an outside agency. This is a serious matter that should not be taken lightly. The County Attorney has a duty to represent all departments of the County, and should not be "taking sides" of either the Executive or Legislative branches of government.

There are certainly other issues here especially since the council as a whole is the client, not Chang. But as we’ve said the reign of current county Attorney Al Castillo continues to be punctuated with questionable ethics and a need to influence legislation in a manner that is way outside the bounds of the “powers, duties, privileges and liabilities” of the office of the county attorney.

Monday, July 26, 2010

IN THE DOG HOUSE

IN THE DOG HOUSE: The race is apparently on as November approaches.

No not any of those races but the council’s desperate mad dash to cater to the smallest and largest whims of developers large and small.

On this week’s agenda are the illegal vacation rentals bill (#2364, Draft 1) set to give oxymoronic (or just plain moronic) mini-developers of ag land the right to build mini-resorts on their mini ag condo lots despite clear state laws that restrict the county from doing so and the farm workers housing bill (#2318, Draft 3) that could, despite 11 “safeguards”, give medium size developers a foot in the door to added density.

But bringing up the rear is an unbelievable gambit (Bill # 2361) by maxi-developer Alexander and Baldwin (A&B) to get out from under an agreement to build and maintain "permanently-affordable, workforce” housing for 90 years which led to the rezoning of their Kukui`ula development in Po`ipu.

It was designed to take the load off the housing market for the new employees of Kukui`ula, mostly for the “gap group” making between 140 and 180% of the median income.

But despite the fact that the condition of zoning was part of a package of “givebacks” that led to the controversial rezoning a few years back, the council is poised to change the term before the housing can be sold at market prices to 25 years because A&B is now sniveling that it’s “unfair” that in the interim the county passed an affordable housing guideline bill that calls for less.

That’s bad enough but what has received less attention than the reduced time element is that fact that under the current agreement Kukui`ula is fully responsible for the housing for the 90-year “life” of the project and in addition there’s a provision that if they can’t
sell the housing at affordable prices they would have to rent it out their qualifying workers or, if no qualified buyers were available, to other workers.

Now, not only is the time of affordability going to be 25 years but the whole responsibility for the housing- including coming up with the money for the buybacks if people want to sell- will rest with the county which will also make a few bucks on the secondary sales although not really enough to make a difference according to the county housing agency which for some absurd reason is supporting the changes.

One of the opponents of the original project, the rezoning and now the reduced housing giveback has been Dr. Jack Lundgren who testified at last week’s planning committee meeting- where the bill remains for now- and gave a rundown of the history of the project and the reasons for his opposition.

Here’s his testimony which lays out the history of the project and reasons why he opposes the changes:

RE: Bill 2361, relating to Kukui`ula 90 year affordable housing.

Please retain the 90 year affordable 75 unit housing agreement that was made when A&B and Kukui`ula Development were granted changes in density to their project in Po`ipu five years ago.

When A&B first was granted rezoning from Agricultural to Resort/Residential back in the ‘80s, (reference their attorney at the time, Walton Hong,) they proposed that approximately 3400 units would be constructed for sale. These were to be marketed to local residents, not wealthy mainlanders and retirees. True, the homes were not to be truly “Affordable”, but they were aimed at middle class locals, like, perhaps, a firefighter and office worker, or construction worker and teacher. This was to be “Gap Group” housing. The idea was that the former housing that these people vacated would become available to other residents who might not yet afford Kukui`ula. This would thereby relieve the housing crunch.

Then about five years ago, A&B partnered with luxury developers from Arizona and formed Kukui`ula Development. They proposed a much less dense project of approximately 1500 units. It sounded good. Nobody wanted beautiful Po`ipu turned into an over-crowded, traffic-choked nightmare. The disadvantage was that now the housing created would be mostly for the very wealthy. Many are to be fancy, view-oriented estate homes, costing in the millions of dollars.

To offset the impact of this massive project, and to provide an increment of affordable housing for workers and for other local residents, Kukui`ula development agreed to construct housing near Port Allen. This was to be housing in the $250,000 to $400,000 range, not cheap, but perhaps manageable.

To assure that this housing be kept in the “Affordable” category, the developers and the Council agreed to the 90 year buy-back clause. This would prevent speculation that would occur if the units were allowed to go to market.

The additional benefit was that this housing was going to minimize traffic by keeping commuting workers closer to the project than they might otherwise be if they had to drive in from Hanama`ulu or Kapa`a. The council worked out a formula as to income and worker priorities. Again, this was all agreed to by the developers.

Now, with a downturn in the real estate market, the developers want to renege on the deal, and allow the affordable housing to go to market after 20 years. That’s not a good idea. We would lose the pool of affordable housing, and be right back where we started. Yes, the market may be slow now, but these things go up and down. As the economy recovers, housing again will become scarce and expensive.

Do we remember what it was like after Iniki? There was plenty of empty housing for sale in a down market. The market recovered, and prices soared.

I admire A&B and their commitment to the Hawaiian community and its young people. I appreciate their underwriting of Hawaii Public Television. If Kukui`ula Development is facing an economic hiccup due to previous business decisions and a slowed economy, perhaps adjustments can be made to the affordable housing development timeline requirement. But please, do not throw out the agreement that would keep the housing affordable for ninety years. We need that to be retained for the continuing health of our community.

A&B’s ridiculous claim that the current economy and housing market should be considered for a 90- or even 25- year project is obvious specious considering that by the time they start the project and get to the actual sales the economy and housing market will most likely not resemble today’s climate as past experience has shown.

And of course if they really wanted to delay it for a couple of years they should be asking for that not trying to bamboozle the dullards on the council.

Yet somehow this developer friendly council that hasn't turned down a developer request during it’s year and a half reign seems poised to do it again.

Many times over the past decade the “current” council members have blamed past councils for the lack of foresight especially when it comes to affordable housing such as the councils of the ‘80’s who approved resorts willy-nilly with virtually no housing requirements or those of the mid to late 90’s who, during the post-Iniki down market decided that we didn’t need to create any future affordable housing after landlords complained about diminishing prices for their rental creating the worst housing crunch in island history in the early to mid ‘00’s.

Don’t expect any of the current crop of glad-handers to cross A&B in a season when A&B routinely crosses their pals’ palms with campaign silver... 40 pieces of it to be exact.

Friday, July 23, 2010

BACK ON THE CHOPPING BLOCK

BACK ON THE CHOPPING BLOCK: We’ve spent the last day or so chuckling over the latest kafuffle caused by the same vague Hawai`i election laws that cause another “dance of the headless chicken” that surrounded the Kirk Caldwell affair last election- a matter we spent in inordinate amount of bandwidth on after the filing deadline in 2008.

It was the first of the numerous bizarre dust-ups caused by the then-new Chief Elections Officer Kevin “King” Cronin who thankfully has skulked back into the hole from whence he came after numerous Louis XIV-style “L'√Čtat, c'est moi" decisions.

But leave it to the legislature to fail to try to figure out how to write clear laws or the elections bureau to write clear administrative rules in the interim and now we have a whole new dance to enjoy.

As many have heard by now some slimy little Republican, David Hamman, a Princeville locksmith tried, apparently successfully, to game the system by filing and withdrawing his papers to challenge Representative Mina Morita in the 14th House District actually admitting he did it to extend the deadline so the party could pick a “candidate” after the filing deadline.

We put the word candidate in quotes because the definition of just what that may be is the bone of contention according to Morita who has blogged twice on the subject.

Apparently Scott Nago, the new Chief Elections Officer, is as challenged as his predecessor and okayed the switcheroo and today the Republicans did name a replacement, Harry R. Williams, a Kapa`a contractor.

But it comes down to whether Hamman was ever a candidate for the house because after withdrawing he filed his papers to run for the vacating seat of former State Senator and now Lt. Governor candidature Gary Hooser.

HRS 11-117 says

Withdrawal of candidates; disqualification; death; notice. (a) Any candidate may withdraw not later than 4:30 p.m. on the day immediately following the close of filing for any reason...

On receipt of the notice of death, withdrawal, or upon determination of disqualification, the chief election officer or the clerk shall inform the chairperson of the political party of which the person deceased, withdrawing, or disqualified was a candidate.

And HRS 118 says:

Vacancies; new candidates; insertion of names on ballots. (a) In case of death, withdrawal, or disqualification of any party candidate after filing, the vacancy so caused may be filled by the party....

(b) If the party fills the vacancy, and so notifies the chief election officer or clerk not later than 4:30 p.m. on the third day after the vacancy occurs... the name of the replacement shall be printed in an available and appropriate place on the ballot,


But Hawaii Administrative Rule (HAR) Chapter 3-173-1, defines “candidate” as “an individual who has qualified for placement on the ballot.”

And in Hawai`i no one may be a candidate for two offices.

Under the law apparently only Mina’s party- the Democrats- can file in 5th Circuit Court to overrule Nago’s decision but the point is that with two years to do so, neither the legislature or the elections bureau even attempted to change the law or rules to deal with the ambiguities and write some election laws that are clear and not wide open for manipulation and abuse with loopholes you could drive a Superferry through.

In an email today Morita said she is “still looking at all my options and working with the party” and as of press time we haven’t heard anything about a court filing. But unless and until the election laws regarding election filing deadlines gets a good hard look and some much needed clarifications and indeed changes are made we’ll be right back here in 2012.

Thursday, July 22, 2010

LOOK OUT KID, THEY KEEP IT ALL HID

LOOK OUT KID, THEY KEEP IT ALL HID: The patently illegal transient vacation rental bill passed out of the council planning committee at Wednesday’s Whine-a-Thon, as Joan Conrow so aptly put it today, our brain fut yesterday in saying it was up for final passage this week notwithstanding.

We’ll leave it to Joan’s hilarious-if-it-weren’t-so-pathetic, first-hand reporting to describe the chain of fools who paraded their self-interest before the council because for one brief shining moment we thought the council might actually discuss the blatant illegality- based on state law which they can only dream of changing- of not just ag land TVRs but all those not in proscribed visitor destination areas (VDAs).

Before the procession of TVR-owning snivelers filed up to the hot seat to ignore the law former councilperson and candidate this year Mel Rapozo’s laid out the various regulations in simple terms pointing out a new wrinkle in the Kobayashi opinion and how it applied to state land use laws.

Mel pointed out that Kobayashi essentially said that because TVRs weren’t listed in the county’s comprehensive zoning ordinance (CZO) among the unpermitted uses, they were permitted. But it also warned that it applied to only otherwise legal uses.

But, Rapozo said, HRS 205 does list permitted uses on ag land and not only don’t TVRs appear on the list one sections says that overnight accommodations are forbidden.

He went on to discuss many of the other legalities that don’t take an attorney to read and comprehend and he was so clear that councilmembers actually started to discuss them in open session for the first time rather than sweeping them under the executive session rug as County Attorney Al Castillo has insisted.

When Chair Kaipo Asing started to get into the meat of the legal issues, that was too much for Castillo who, as he is wont to do, unceremoniously interrupted him seeking to take the public policy discussion behind closed doors.

That was when Asing essentially told Castillo to fu*k off saying he was going to discuss his opinion in open session.

It was kind of astonishing especially in that Asing has duplicitously used Castillo’s through-the-looking-glass interpretation of the sunshine law for the last year and a half to halt discussion whenever it’s politically expedient.

But alas that discussion was short lived and once again the council went back to ignoring the law, with Planning Committee Chair Jay Furfaro parrying with anyone who tried to bring it up with his usual misinformation, misrepresentations and misdirections making sure that the message was clear- this is Kaua`i and we only acknowledge state and federal law when it suits us... and we’ve got the circuit court judges these days to back us up.

The bill passed out of committee by a 4-1 vote with Councilperson Derrick Kawakami in opposition and bill author Tim Bynum joining Darryl Kaneshiro and Furfaro in voting to approve it and Lani Kawahara remaining silent and so having her vote count as a “yes” due to council rules that say a silent vote is counted with the majority.

This bill will no doubt pass next Wednesday, most likely by a vote of 4-2 with Asing joining Kawakami and Dickie Chang and, yes, Lani Kawahara supporting Bynum Furfaro and Kaneshiro.

Which means of course that by rushing the measure into passage before November it will insure the two “lame ducks” on the council, Kaneshiro and Kawahara- who are likely to be replaced by two opponent former Councilmembers Rapozo and JoAnn Yukimura- will cast the deciding votes.

If that ain’t reason to sweep all the bums out this year, it’d be hard to know what is.

Wednesday, July 21, 2010

FOOT FAULT

FOOT FAULT: It’s not like we hadn’t heard the rumors over the past few months but seeing it in black and white (as it were) last night and reading Lani Kawahara’s aloha letter in today’s newspaper was still a kick in the gut.

Personally, though her decision is understandable, it’s still hard to take the fact that we’ll be going through another two years period of writing about self-serving blowhards without any breath of fresh air with which to compare and contrast it.

Despite what many think we have a lot of emotional investment in local government and politics so learning that the first real public- as opposed to self- servant on our council since Gary Hooser had indeed decided she couldn’t negotiate keeping her job as the Head Librarian at Kapa`a Library and her council seat.

There’s more than meets the eye in her statement that:

At this point in my life, I have decided to resume my service to the community as a librarian, facilitating access to information and lifelong learning. This was a very difficult decision to make.

The fact remains that what it came down to was choosing one or the other, especially after budget cuts and then furloughs caused the library to be short staffed.

We’ve taken on all the idiotic free-lunch wing-nuts who insist that elected officials- both statewide in the legislature and locally on our council- should be actually taking pay cuts rather than, as we’ve maintained, be given full time positions with salaries that are commensurate with the job.

There’s reasons aplenty for leaving- or not even venturing into the political arena but it shouldn’t have to be a decision as to whether one can afford to do so.

And there’s reason’s aplenty for paying for full-time legislators and chucking this part time scheme under which we’ve been laboring.

First ethically it is always a conflict of interest when someone in office has to take an “outside” job. Most- or we would venture to say all- must have an incredibly supportive boss to take off the time required to do the part time job. For state legislators that’s about four months straight and for councilmembers it’s at minimum a couple-a-three days a week- and weeks on end during budget times.

And no one in business is doing that for nothing.

That leaves the jobs to either the idle rich or those whose bosses gain an advantage from their employee’s status- just look at how many work as “consultants”, especially in the state legislature.

It also means that anyone else must make a choice often having to consider giving up a career in which they have invested decades in order to get a job that runs for two years at a stretch.

And do so at a severe cut in salary.

What that does is encourage the despised “career politician” because once you give up your job it’s often impossible to reclaim it.

We look down the list of council candidates and see either the same old faces that have failed us in the past or unknowns who are most likely clueless wanna-bes and can only think “you get what you pay for”.

The one notable exception is Rolf Bieber who, because he has a job that permits him to make his own hours, is the exception that proves the rule.

The literally poverty wages offered to our councilmembers and state legislators is responsible for the corrupt, ethics-free government we all bemoan.

Ain’t that a kick in an area just a little lower than the gut.

Tuesday, July 20, 2010

GRANDFATHERING, WHAT BIG TEETH YOU LACK

GRANDFATHERING, WHAT BIG TEETH YOU LACK: Tomorrow could well be a black-letter day in the history of land use on Kaua`i and that’s saying a lot.

The stripping of the guts of the Transient Vacation Rentals (TVR) ordinance passed in 2008 and moreover the lifting of the total ban on TVRs on agriculturally zoned land is poised for passage once again.

But the so called “facts” that have led to the current bill are apparently the result of a council that’s incapable of independent legislative thought and rather rely on County Attorney Al Castillo’s inept legal constructions to write legislation.

That construction relies on the infamous “Kobayashi opinion” which supposedly caused those who were operating TVRs to “rely” on that opinion saying TVRs in non visitor destination areas (VDA) were not illegal. But, as we, along with Caren Diamond and Barbara Robeson have asked more than a few times of councilmembers if these people honestly relied on that opinion, why didn’t any of them file for a required “use permit” with the planning department.

Recently a state attorney general’s opinion from August of 2009 has come to light which says that allowing TVRs on ag land are at least not something the county can deal with and that the decision rests with the state land use commission. And it says that even if the land use commission said yes it they would have to be part of a “ag tourism plan” for a “working farm”.

So which is correct? Well a recent post on attorney Charley Foster’s “Planet Kauai” blog from Professor Carl Christensen- who, according to Foster teaches Federal Indian Law, Historic Preservation Law, and Legal Practice at William R. Richardson School of Law- sheds some light on the subject.

First Christensen says that:

The problem with the "reliance" argument you offer is that no county official has the authority to issue a definitive interpretation of Chapter 205 that would be binding on the State or on members of the public, and under Brescia a landowner can't "reasonably rely" on assurances from an official who lacked the authority to make those assurances. The whole purpose of Chapter 205 was to CONSTRAIN the ability of county officials to approve land uses forbidden by the Legislature.

That agrees with the attorney general opinion but the next comment by Professor Christensen blows the Kobayashi opinion out of the water.

Primary responsibility for the interpretation of the statute lies with the LUC, not the counties. To oversimplify a bit: "Construction of a general statute by officials of a particular locality carries little weight since the construction must be general and uniform to be binding on all those affected by the law. So, where state laws are administered by separate local agencies in different communities, interpretation by such agencies carries little weight." 2B Sutherland Statutory Construction s. 49:5 (footnotes omitted). If the LUC says TVRs are legal on Ag District lands, that would carry weight with a reviewing court; a county official's opinion, not so much. And the case is even weaker where a landowner seeks not just to obtain judicial deference for a local official's interpretation of a statewide statute, but instead actually to estop enforcement of the statute by the government or the public (and today's decision by the Hawaii Supreme Court in the Ala Loop case emphatically refutes any claim that the public lacks the power to enforce Chapter 205). The counties have never liked Chapter 205 because its very purpose was to prevent them from allowing locally favored land uses that the Legislature has chosen to prohibit; giving preclusive effect to a county official's interpretation of Chapter 205 would allow the counties to ignore state law with impunity.

But the council has been relying on a section of Hawai`i Revised Statutes (HRS) that deals specifically with grandfathering and “amortization or phasing out of nonconforming uses”.

Although HRS 46-4 itself isn’t a lot of help, the case notes state that:

Grandfather protections afforded a property owner under this section and land use ordinance intended to prohibit new zoning ordinances from interfering with an owner's lawful uses of a building or premises under an existing zoning ordinance. 86 H. 343 (App.), 949 P.2d 183.

"Lawful use" and "previously lawful", as used in this section and land use ordinance, respectively, refer to compliance with previous zoning laws, not the building codes or other legal requirements that may be applicable to the construction or operation of a structure. 86 H. 343 (App.), 949 P.2d 183.

Now while the current TVR ordinance does include a section calling for TVRs to comply with building codes in order to have been lawfully operating and that section is apparently inoperable, the case note also states specifically that “(l)awful use... refer(s) to compliance with previous zoning laws”.

Since there is no record of anyone even filing for much less receiving a special use permit for a TVR, there aren’t any that were ever in “compliance with previous zoning laws”.

That means that when the current TVR ordinance banned all “new” TVRs, there actually were no “old” ones since none were legally existing at the time

Therefore there are none that are or were ever eligible for grandfathering, 46-4 being irrelevant to zoning violations.

And one more note- there is really no need to remove the “building violations” section from the ordinance since the standard “severability clause”- which says that if one section of the law is found to be illegal the others still apply- is part of the ordinance.

What is most galling about this simple analysis is that the public has been prevented from discussing any legalities on any matters before the council due to Castillo’s insistence that whenever pubic policy intersects with whatever Castillo decides are “legal issues” they be discussed behind closed doors- especially this issue which has had at least a dozen executive sessions since the first bill- now the ordinance- was introduced.

It’s become a theater of the absurd where the council refers to vague legalities and in fact are unceremoniously cut off by Castillo when anything like a rational discussion of the meat of the claimed “legal issues” comes up. And likewise the public has been forbidden from mentioning them under Castillo’s warped use of the sunshine law to stop discussion of public policy in open session.

The council under Castillo- because in essence he has appointed himself chair, interrupting anyone, including councilmembers, for any reason without recognition from the chair- has become a “Star Chamber” where we are not entitled to know the issues that have gone into the deliberations of the council and are not only not allowed to bring them up but the council is forbidden to answer them for fear of violating the secrecy of the executive sessions where the issues were actually aired.

The irony is that this very process of deliberating in executive session during the formulation of the original TVR bill is what led to the council-perceived need to revisit the issues because the legal issues were never aired in public where the people might have been able to know what the council was being told and raise the very issues that led to the supposedly flawed ordinance.

We gotta ask again- can’t anyone here play this game?

Monday, July 19, 2010

ONLY HALF BULL?

ONLY HALF BULL?: Deep in the darkest recesses of the Minotaur’s labyrinth when the light of day threatens to expose all, his minions scurry to defend the perimeters at every parry of the knights of illumination.

And last Wednesday, the news that that of death of the Minotaur was premature being still unknown, his minotaur-in-waiting performed his own dance of darkness as if to prove his worthiness to ascend to the throne

Council Chair Kaipo Asing indeed filed to run for another term last Thursday despite statements in 2008 that this term would be his last.

His filing came on the heels of another slaying of the oft promised and always delayed on-line, live streaming of meetings and posting of video and agenda-related documents.

The six month deferment was accomplished through the complicity of his always rely-a-bull 3-D’s who were joined by the clueless would-be king, Jay Furfaro, whose continued confusion over how the sunshine law actually works gave the excuse for essentially the defeat of another attempt by Councilpersons Tim Bynum and Lani Kawahara to get everyone to move off the dime and “git ’r done”

And though the local paper not only ran an article but an editorial each was, as usual, equally clueless as to the back story and Furfaro’s apparently inability to understand the basics of the state’s open meetings “sunshine” laws.

Furfaro’s confusion goes back to December of 2008 when we filed a complaint with the Office of Information Practices (OIP) after he was caught Red-Handed sending a letter to fellow councilpersons not just describing the then-new original bill calling for “non-enforcement agreements” for vacation rentals on ag land, but soliciting their support which is forbidden under any and all circumstances by law.

OIP opened a case, as we reported in Jan. of 2009 but rather than admit his blatant violation of the law Furfaro has been fighting it ever since, even somehow spending, as he said Wednesday, $1700 to do so.

The law is actually very simple. Pay attention Jay.

Councilmembers cannot discuss any matter either on an agenda or that might be on a future agenda with more than one other councilmember. And even then they cannot solicit or commit to a vote.

And, they can’t get around that by “serial one-on-one communications” or by going through a third party to do so.

The correct way to introduce anything they want to discuss is to put it on the agenda as either a communication or a bill or resolution. Otherwise it is forbidden to discuss it with more than one other member.

Once it is on the agenda the way to discuss it is to wait for the item to come up on the agenda and then say and do anything you want including introducing or even “floating” amendments to a bill.

But somehow Furfaro remains obstinate in his refusal to learn these simple procedures as evidenced by the fact that at this very meeting, during this very agenda item where he brought up his confusion in order to ask for the deferral, he referred to a 19 page letter he had sent to the Civil Service Commission regarding his thoughts on county furloughs- which the council has set for December discussion- and actually sent a copy of that letter to the rest of the council without putting it on the agenda.

All he would have had to do was send a communication with the 19 page letter to the council, have it placed on the agenda and it would have been legal. But as if to re-iterate his inability to understand a simple concept that all other council, boards and commissions in the state seem to have no trouble understanding, he just distributed it to councilmembers by placing it in their mailboxes.

Furfaro has even devised another attempted by-pass of the law lately calling for the “floating” of amendments to a bill at one committee meeting to be taken up at the next one but making them available only to the councilmembers and not to the public, according to discussion at Wednesday’s meeting.

Just as absurd were some of the other excuses used to delay implementation of the system- for which the contract has been signed and apparently all the protests have now been resolved.

What the resolution calls for in the posting of all the accompanying paperwork for all agenda items- not just the actual communications, bills and resolutions but the background documents pertaining to the item.

Right now “hard copies”- on paper- of all those are available to the public at council services as soon as the agenda is officially filed. And copies of each are made for councilpersons as part of their “packet” which they also receive when the agenda is filed.

According to sources at council services the copying machine there isn’t just some $39.99 Wal Mart special. It’s a fancy schmancy piece of work that not only makes copies but makes digital copies of each and can, with the push of a button can- drum roll please- even post them on line automatically.

But you would think that they needed a Manhattan project to figure out how to post them and then have to hire three more employees to push that bottom from the way Furfaro, Asing and Councilpersons Dickie Chang, Darryl Kaneshiro and Derrick Kawakami jumped at the chance to defer posting the documents- via the system which IT Division Chief Erik Knutzen told us a year and a half ago was ready to go- until they resolve the “county furloughs” issue and meet with staff to figure out how to push the button.... something they’ve had four years to do.

But there are no buttons at door to the labyrinth and distribution of information remains for now on a need-to-know basis.

Thursday, July 15, 2010

(PNN) COUNTY TO POT PATIENTS WITH HOUSING VOUCHERS: YOU ARE ‘SUBJECT TO TERMINATION’

COUNTY TO POT PATIENTS WITH HOUSING VOUCHERS: YOU ARE ‘SUBJECT TO TERMINATION’

(PNN) -- Certified medical marijuana patients who receive HUD Section 8 housing subsidies on Kaua`i “will be subject to termination... if it is found (they) have... marijuana” in their homes according to a letter sent to participants in the program Monday despite Obama administration statements that state laws regarding medical marijuana will be respected by the federal government.

PNN has obtained a copy of the unsigned letter from the Kaua`i County Housing Agency which states:

“The Housing Choice Voucher Program (Section 8 HUD) is a federal program and subject to Federal laws. Federal law trumps state laws. Therefore, under federal law any marijuana use in federally subsidized housing is prohibited. This applies to both current program participants and new applicants.”

The letter, entitled “Important Alert Regarding Medical Marijuana” says that the county agency which runs the federal program, “has received several questions regarding the use of medical marijuana in federally subsidized housing” before describing the provisions of the medical marijuana law passed by the legislature that became law in June of 2000.

It claims “HUD concludes that State laws purporting to legalize medical marijuana directly conflict with the admission and occupancy requirements of the Quality Housing and Work Responsibility act of 1998” and that “a state statute ‘is invalid to the extent that it actually conflicts with a... Federal stature,’” although it does not indicate what or who they are quoting in the last segment.

The letter does not make clear whether it is a federally or county generated directive.

While the list of medical marijuana certificate holders is supposed to be kept confidential it is administered by the state Department of Public Safety (DPS) and reportedly distributed to local police departments.

A list of users was “inadvertently” sent to a Hawai`i Island newspaper by a DPS official a few years back and confidentiality has been a problem according to testimony before the legislature this year.

Bills to move the medical marijuana program to the Department of Health and release names only upon request of local police departments was killed by the legislature last session and a bill to study the state’s program was vetoed by Governor Lingle earlier this month.

The letter does not say what constitutes being “found” to have marijuana or, if discovered, whether participation in the program is considered grounds for termination.

In October 2009 Attorney General Eric Holder announced formal guidelines for federal prosecutors in states that have enacted laws authorizing the use of marijuana for medical purposes.

The memorandum on the subject from Deputy Attorney General David W. Ogden was sent to United States Attorneys and reads in part:

As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.

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We’ll be taking tomorrow off and will be back Monday

Wednesday, July 14, 2010

WHAT’S HE BEEN SMOKIN’?

WHAT’S HE BEEN SMOKIN’?: Where- or more to the point who- do we blame for the impossibly contrived and deceitful “reefer madness” in an article by clueless police beat reporter Paul Curtis in today’s local paper.

We could start with Curtis himself for the unchallenged regurgitating of the equally clueless KPD officer Mark Ozaki’s presentation to a church group.

Not even the DEA itself claims that (t)hose hooked on the “new,” more-potent, quick-growing strains of Kaua`i marijuana are... break(ing) into homes and vacation rentals seeking money to fund their habits”

Habits? Oh nooo- they must be mainlining it nowadays Gertrude.

But that’s just for starters. Later Ozaki claims that “(w)hat used to take a year now takes less than a month as these new pot plants can go from seed to harvest in 28 days”.

A whole lot of medical pot patients would like to get their hands on those seeds especially if they grow a biologically ridiculous “strain... comprised of 60 to 70 percent tetrahyrdocannabinol, compared to less than 20 percent just a few years ago”.

Ooooo- dat's some sticky bud. Stop holding out on us Mark. If that’s da kine the cops smoke think what a great recruiting tool it’d be.

Perhaps Curtis is just warning us that this crap is actually what these people think is factual and that it’s being foisted on our kids who know of course all this is an over the top pack o’ lies and so assume whatever pinheads like Ozaki claim about deadly drugs like ice is equally fabricated.

But if so, where is the rebuttal- a staple of the usual “he said she said reporting”.

Curtis makes it worse with the tired old post hoc proctor hoc fallacy of “the gateway drug theory” which is belied by the fact that those at the top of the societal rung commonly use the sacred herb regularly.

Did you know that most pot smokers started out on mothers milk? And all of them breath oxygen?

We might blame Editor Nathan Eagle whose credibility at the helm of the paper has taken a nose dive since reporter Mike Levine left and ceased to keep him honest if not for the fact that Curtis is now the “assistant editor” who has no higher editor on days that Eagle is off.

We could say that this parochially backward and insidiously destructive mindset begins at the top with kindly old brain-dead Chief Darryl Perry and his merry men of mental midgets at the police commission who seems satisfied with presenting this D.A.R.E style drivel rather than putting officers on the beat to do other things... like maybe, oh, maybe, let’s say... solve murders or something.

Congrats all around for doing the impossible- making KPD even more of a laughing stock.

But really it begins and ends with our elected officials who haven’t got the guts to stop this kind of frittering away of resources on green harvest operations, busting medical users (as the article describes) and of course devoting a full-time officer on a short-staffed force to spread utter bull-sh*t to our kids and other equally gullible groups like churches and business groups.

With public pressure the council on the Big Island has taken matters into their own hands, cutting off funding for the choppers and forcing the police department to stop busting users.

Until we put some pressure on our council to buy a clue- and some political guts- we’ll continue to see this kind of drivel in our faces over coffee each morning.

Tuesday, July 13, 2010

GLAD WE DIDN’T STEP IN IT

GLAD WE DIDN’T STEP IN IT: A guy walking down the street at night comes upon another guy down on his hands and knees, searching the ground underneath a streetlamp. The second guy asks the first guy what he’s doing and he says he’s looking for his keys.

“Where’d you lose them?” he asks

“Down there in the middle of the block,” the first guy replies, pointing

“Then why are you looking here?”

“Because the light is better.”

Such is apparently the logic of new County Auditor Ernie Pasion who, if an article in the local newspaper has its facts straight- a big “if” these days with little lost boy Leo Azambuja on the government beat- has turned the best and brightest hope for shining a light on rampant administration corruption and incompetence via performance audits into a busy-work office rechecking old financial audits and assorted irrelevant minutia.

Rather than diving right into long standing, well documented, scandalous situations by examining departmental shortcomings- like the patronage system in the personnel office one of the subjects that the FBI has been investigating, or in public works where multifaceted corruption was instrumental in efforts that wound up in the creation of the office of the auditor itself and in the planning department where the director seems to be unable to enforce zoning laws to name a trio- Pasion, a long entrenched good old boy appointee of the council as Deputy County Clerk, has chosen things like auditing the work of the paid financial/fiscal auditors who present the council with yearly reports replete with required actions to rectify shortcomings, as required by law.

Rather than looking into the decades long scandal over discrepancies in the amount of asphalt used on our roads he’s going to look into one single “major road maintenance program performed in the previous year”.

The well reported performance problems and allegations of corruption in the Kaua`i Police Department (KPD) that triggered an attempt at council investigations in the past- and allegations that they continue today- is not on any list but the just completed fire station- which reportedly came in early and under budget- is scheduled for a look- see.

The fact that Pasion is quoted as saying he “will be analyzing implementation of the test projects, identifying successes and making recommendations when necessary” is more telling in what it doesn’t say- anything about identifying failures- than anything it does say... not to mention the “ making recommendation when necessary” part indicating that the likelihood of looking for, much less finding, anything that requires recommend changes wasn’t a likely part of the criteria for choosing a subject for audit.

The long and winding road to this latest attempt by the council to placate critics who bemoan their inability or unwillingness to hold administrations accountable while also assuring that shady administrative affairs are swept under the rug began more than a decade ago with the endless “Developers Gone Wild” hearings when the council decided to invoke section 3.17 of the county charter that enables the council to perform “investigations” in the only exception to the non-interference with administrative affairs clause provisions also in charter section 3.

But after first squabbling over how much money to appropriate then deciding which little trees in the Department of Public Works forest to investigate and finally a seemingly intentionally bungled attempt to set up rules for the investigation, many years later that effort morphed into a non-charter created in-house auditor.

After that one sat on the table unimplemented for another year or so the charter amendment creating a county auditor was finally proposed and accepted by voters- not as an independent much less elected position but as an office administratively attached to- and an individual appointed by- the council.

Worries about the lack of specific wording to stress performance audits and make sure the office was led by someone like take-no-prisoners State Auditor Marion Higa went unheard in the fake excitement over the false hope of holding the administration accountable.

So of course we are left with what appears to be a financial/fiscal auditor’s office and an auditor who has no accounting credentials whatsoever. Now they’re actually talking about hiring at least a CPA to do Pasion’s job for him.

What we’re stuck with is a financial rather than performance auditor of the already audited. The question is who is auditing the auditor?

Monday, July 12, 2010

YOU’D BETTER HURRY ‘CAUSE IT’S GOING FAST

YOU’D BETTER HURRY ‘CAUSE IT’S GOING FAST: Like the contents of Fibber Mcgee’s closet the Lepe`uli (Larsen’s) Beach Controversy spilled into its first recorded public forum at last Wednesday’s council meeting replete with hidden agendas, denials of racism, land grabs and lawyerly gaffs.

It all began suddenly when Mayor Bernard Carvalho conspired with the owner that’s been blocking access to the portion of the alaloa- a Hawaiian language word meaning “highway, main road, belt road around an island, along road” not the name of a trail itself as the newspaper reported- where it runs above the beach at Lepe`uli.

In seeking to throw a monkey wrench in owner Waioli Corporation’s lessee Bruce Laymon’s plans to cut off access to the alaloa and limit access to the beach Carvalho and Waioli Attorney Don Wilson sprung a “new access” easement agreement on the council just before the long July 4th/furlough Friday, four-day weekend and then tried to ram it though the council the following Wednesday.

The battle has finally gotten traction at the state level with a Department of Land and Natural Resources (DLNR) investigation of the whole matter including bogus claims by another Waioli attorney Lorna Nishimitsu and Laymon himself, first as to whether there is even a traditional trail portion from Anahola to Kilauea and later as to it’s location (see previous reports linked above).

But it became obvious that Waioli was trying to “donate” an easement via a trail that isn’t the official but overgrown county owned access at the south end of the beach but is right next to it, in order to convince the DLNR that there is access to the beach so it’s ok to block that portion of the alaloa, which has been in use “since time immemorial” according to everyone not associated with either Waioli or Laymon and his ranching operation.

The fear that the DLNR will soon find that the alaloa is a “prescriptive use” access has apparently struck so much fear in Waioli that they replaced Nishimitsu with Wilson, whose stammering, often contradictory and occasionally high pitched testimony before the council only served to make matters worse for Waioli

Wilson tried at times to deny the existence of the alaloa and later to perpetuate the confusion as to where it was before admitting under questioning by Councilpersons Tim Bynum and Lani Kawahara that yes, the alaloa did exist but echoing Laymon’s desire to stop access due to what’s been characterized as “nude campers leaving trash” at the beach- a characterization that has been taken by many to mean “haoles” especially after a slew of reports of rants by Laymon using that term pejoratively .

This is not the first attack on the alaloa. In the 90’s developer of Kealia Kai Tom McCloskey, whose Moloa`a Bay Ranch encompasses another portion of the trail just north of Moloa`a lost his battle to relocate the trail to the rocks below and the alaloa became a candidate for preservation by the state Na Ala Hele Commission before the state withdrew support and funding for the group and it fell apart.

At first Wilson tried to give the impression that the offer might go away if it wasn’t accepted by the council last Wednesday although later, after a break, he admitted that wasn’t the case.

Coincidentally the last time we remember anyone trying to rush through a Trojan Horse gift like this- one with a one day “take it now or lose it” rider- was McCloskey’s gift of the area above the area of the bike path north of Kealia which would have become a private beach with limited access had the deed been accepted "as is" the day it was introduced and set for fast tracking by then Mayor Maryanne Kusaka and then Councilperson Bryan Baptiste.

Then, as on Wednesday, the matter was deferred after some on the council smelled a rat.

Those records left by Na Ala Hele were apparently a taking off point Bynum and Kawahara used to show where the trail runs and the prior attempts to preserve it.

But what stood out was this bizarre argument by Laymon and Wilson along with one of Laymon’s employees that the gently sloping alaloa with it’s many easy side trials to the beach would somehow encourage the “trash” in the area, presumably left by these so-called naked campers even though much of the trash Laymon cleaned up in a beach clean up recently had been there for many decades.

The thinly veiled race card hung over the room as did Laymon’s apparent homophobic rage over clothing optional nature of the secluded beach- where his employees have been accused by witnesses of using binoculars to ogle naked women- as he ranted in code about maintaining access for “local people” while keeping others out, intimating that somehow local people including kupuna could and would navigate the steep new access while others would not.

But, as revered kupuna Richard and Linda Sproat’s daughter, attorney and UH Professor of Hawaiian Studies Kapua Sproat told the council the alaloa is legally protected under state laws as a prescriptive access for all that’s been in continual use as long as anyone can remember.

The DLNR investigation was initiated after the Office of Hawaiian Affairs responded to citizen’s complaints over Laymon’s Conservation District Area Use permit, especially complaints by the Kaua`i Group of the Sierra Club which has been trying to protect the alaloa segment for more than a decade as we’ve detailed during the past year.

What Waioli is doing backing Laymon in this is the one of the more baffling things about the whole matter. You would think they’d take advantage of the terroristic threatening he’s been accused of along with his historic utter disregard for grubbing and grading laws to try to revoke his lease and give it to someone sensitive to the community’s concerns.

Laymon still doesn’t get it. He tried to tell a story complaining that recently he was ready to just illegally bulldoze the old overgrown county owned access without a permit in a sensitive special management area and conservation district but was “threatened” with being reported to the authorities by those trying to preserve the area to somehow say he is being prevented from “helping”.

For the record Laymon denied being “a racist”

The area at Lepe`uli contains not just documented burials but documented evidence of a “ancient” Hawaiian village which have been disturbed by his ranching and fencing operations without a cultural study of the area.

Wilson wondered aloud why the alaloa is even part of the discussion complaining that this is “going on and on and on” for Waioli. But didn’t seem to notice the irony that it’s been their actions in allowing Laymon to garner community enmity by blocking access and perpetuating the race-baiting conflicts that has made put the issue before the council.

Waioli Corp used to have a good name in the community through it’s historic preservation mission and actions. Now that has seemingly gone out the window due to the blind spot they have for Laymon and Lepe`uli and the disregard for the historic and cultural nature of the alaloa and Lepe`uli in general.

If they had decided to say “ok- we’ll move our fence back and the pubic can have the alaloa and beach access- it would have cost them less in blood and treasure than this fight which now may not end for the community until the whole area becomes an historic and cultural preserve.

The question remains for Laymon and Waioli Corp– are “illegal activities” at Larson’s beach such as littering enough to block access? Even if so is the answer blocking access or enforcing the law? And if so, should we block access to all beaches where litter is found?

The public awaits answers to those questions and more as the council awaits the DLNR report and will take up the matter again on August 23.

Friday, July 9, 2010

WHICH WAY IS UP?:

WHICH WAY IS UP?: A friend of ours has a penchant for proclaiming “well this means the end of the world is coming soon” every time a bit of incongruous idiocy is performed by some government entity or official.

And our response is always to call him an “optimist” because in reality it never ends and in fact, the whirling sucking eddy caused by self-aggrandizing egoists will just keep on and on and on as we continue to slide indefinitely down the razor blade of life.

Latest case in point are reports of the decision by the local US Attorney to bust Roger Christie's "THC Ministry" on the Big Island along with 13 of his pakalolo promoting adherents even reportedly chartering a cargo plane to transport them all to Honolulu.

Don’t these sh*t-for-brains have anything better to do with our money than to worry about a bunch of pot smokers?

What kind of people get so riled up by the local Big Island ban on enforcement of pot laws that it keeps them up at night dreaming up ways to circumvent it?

While California stands poised to finally end prohibition through a ballot initiative officialdom in Hawai`i remains a backwater stuck in a reefer madness mentality that reeks of a money-grabbing scam to create busy-work for law enforcement no matter what society dictates.

Money for treatment and especially after care for methamphetamine abusers is conspicuously absent while we allow our pols to pour money down the toilet of interdicting innocuous herbs.

And even when people spend years to elect sensible local councils as the Big Island did the federal money trumps sensibility.

Perhaps worst of all may be the expected drivel from the beaten-down-before-they-begin crowd who will no doubt be crowing “well what do you expect- they threw it in the cops’ collective faces by openly claiming religious status- even opening a storefront in downtown Hilo”.

What do we expect?- how ‘bout a bit of freakin’ professionalism from those who are entrusted with wielding the judicial Sword of Damocles.

When it comes down to it, to jail a handful of hippies who worship at the peaceful alter of marijuana and allow a horde of repressive, oppressive genocidal, judeo-islamo-christian, fear-mongering snake oil salesmen to attach their toxic tax-free tentacles onto every facet of civilization is the utmost in moral societal hypocrisy.

Their and our friend’s oft-heard message that “the end is neigh” may be all that keeps these superstitious, magical-thinking adherents in their odd subconscious state of optimism. If so, it leaves us with the particularly gloomy thought that when all is said and done, hoping- or even working- for change may be the worst kind of pessimism of all.

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Update: Check out the details today in Joan Conrow’s update to our Wednesday post on the EEOC sexual harassment suit against ITT and PMRF - apparently the retaliation goes back to an article she wrote about the complainant three years ago

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Clarification: Councilperson Lani Kawahara voted with Councilperson Tim Bynum to use the county’s huge surplus to stop county furloughs which we reported on Tuesday.

Thursday, July 8, 2010

INSIDE OUTSIDE, USA

INSIDE OUTSIDE, USA: Back in the 70’s it was just a funny line from a movie. But as the years go by it’s become an epic inside joke that seems to pertain more and more one of our pet peeves- the “he said she said” nature of what passes for journalism in the 21st century corporate newsroom.

As the Blues Brothers are setting up to play the chicken-wire redneck bar someone proclaims that “we like BOTH kinds of music- country AND western.”

So when reporters go to BOTH sides- Democratic and Republican- it yields no less a bizarrely narrow Hobson’s Choice.

So it comes as no surprise that today’s article on the “compromise” Akaka Bill in the Honolulu Starvetizer neglects to ask any sovereignty much less independence advocates what they think about the fact that the new bill compromises away a measure that would give them the same rights that the rest of the country’s indigenous people have been so benevolently granted by their overlords.

It more or less like offering a turd sandwich and then removing the bread and mayo.

The effort to steal the kanaka maoli land base “one last time fair and square” is bad enough without having to depend on a newspaper- one with a legacy of that very theft- that ignores the rights of those being crushed once again by an occupying armed force hell bent on a final act of genocide and asks only the perpetrators what they think of it.

Now that we’re a one newspaper town we apparently have both kinds of journalism- crappy and none.

Wednesday, July 7, 2010

LET’S JUST VOTE ‘EM OFF THE ISLAND

LET’S JUST VOTE ‘EM OFF THE ISLAND: As we predicted two months ago the ACLU has immediately announced it’s filing suit on equal protection grounds after the also predicted veto of the civil unions bill by Governor Linda “Unified Command” Lingle.

It’s simply amazing that there are so many Neanderthals like those that Representatives Jimmy “Can’t Keep His Pants On” Tokioka and Roland “Ag Land Schmag Land” Sagum claimed to represent in voting against the bill.

But on Kaua`i the attitudes of a small group of committed bigots continues on their merry way to medieval days as also evidenced by the still rising number of sexual harassment suits and the growing number of governmental entitles that are involved.

You can add the feds to the list that includes the state judiciary and the county with the little hyped and buried news today (see last item) that:

The federal government has filed a sex discrimination lawsuit on behalf of a female firefighter employed at the Pacific Missile Range Facility on Kauai.

ITT Corp., a high-technology engineering and manufacturing company based in White Plains, N.Y., was named in the suit filed yesterday in U.S. District Court here by the U.S. Equal Employment Opportunity Commission.

The commission says the woman was sexually harassed and then retaliated against for complaining about the harassment.

It said male co-workers and supervisors repeatedly made overtly sexual remarks and watched sexually explicit television programs and videos at work in the woman's presence.

Just as no one is shocked that a bunch of religion-addled yahoos have foisted their insecurities about their own dysfunctional sex lives on those that can actually have a successful relationship with members of their own gender, no one is surprised that these same ass-wipes think it’s not just ok but their biblical right to harass women as if they were chattel.

It’s a shame we have to put up with these provincial pisants but getting them to change their psychopathic ways- especially in light of the way they are actually protected by all three braches of government on Kaua`i- tells us that we’ll probably just have to take care of them actuarially.

Tuesday, July 6, 2010

HI-HO HI-HO, IT’S OFF FROM WORK WE GO

HI-HO HI-HO, IT’S OFF FROM WORK WE GO: When Kaua`i Police Department (KPD) Chief Darryl Perry has a gripe against Mayor Bernard Carvalho’s administration he doesn’t have to look far for his lap dog Paul Curtis, police beat reporter for the local newspaper.

So following the first Kaua`i county “furlough Friday” Perry made sure Curtis got the message out loud and clear that, despite the fact that police officers and firefighters were spared furloughs supposedly to maintain public safety, because civilian employees were not spared “the vacancies (among KPD civilian personnel) coupled with the furlough days will have a negative impact on service delivery”.

But what was most interesting was not the article itself but the one comment on the article left at the paper’s web site which, unlike the usual bombastic drivel in the paper’s comment section, went right to the point in questioning county furloughs.

Francine1 said:

I was under the impression that Furloughs aren't supposed to be affecting Fire or Police Agencies.... I was informed by a former KPD Officer, who was also a former County Council member that the County of Kaua`i has a Budget Surplus. So I'm wondering why Mayor Carvalho felt the need for the Furloughs. Is it a monkey-see, monkey-do move; to follow the other Counties or is the County of Kaua`i really in that bad shape?You keep hearing how the Economy is rebounding on Kaua`i because Unemployment rates are dropping. With these latest County Furloughs, one would think not. We, the people of Kaua`i are not being told the true story.... Which leads one to believe it's all Politics and another way to screw the people who are supposed to be serving the Public.

Gee, ya think?

As a matter of fact, in a presentation made at one of the non-televised budget hearings and repeated in part in a later, televised meeting, councilperson Tim Bynum revealed that not only is there a surplus but there is a huge surplus and Kaua`i county is virtually awash with cash.

In governmental budgeting the widely accepted rule of thumb is that you need to keep a surplus of 15% above the appropriated budget. In other words if your budget is $150 million you should have $22.5 million in reserve for emergencies and in case other unforeseen contingencies come up.

But Kaua`i is projected to have fully 35% above the amount budgeted for 2010-11.

So why the furloughs?

Back in January Bynum began asking that the administration come before the council to inform them about what was going to happen if, as had been threatened, the legislature decided to “scoop” the usual payment from the transient accommodations tax (TAT) that the county receives in order to mitigate some of the expenses of services for visitors.

He also wanted to see generally what kind of fiscal shape we were in, all to get a head start on the then upcoming budget sessions in April, especially given the predicted “dire economic conditions”.

But he was blocked at every turn by both the administration which kept asking for delays and deferments and by the Chair of the Budget Committee Darryl Kaneshiro who, since it was his committee, kept allowing the deferrals.

This kept going on until April making the attempt to get the head start moot.

At the same time, as many will remember, Carvalho and the other county mayors went to the legislature to lobby for their share of the TAT, an effort that was eventually successful.

But what many may not remember is the public statements by leadership in both the house and senate to the effect that, while the state had been furloughing teachers and expected to start other furloughs for other state employees, the counties had no such plans and therefore didn’t seem to need the TAT.

That was when the mayors met secretly with the legislative leadership coming out of those meetings with their share of the TAT intact. And shortly after Carvalho announced furloughs for county employees.

You’d have to be a complete idiot to think there was no quid pro quo saying that in exchange for the TAT money, Kaua`i would furlough workers whether we needed to or not.

Francine1 ends her comment by saying

We, the people of Kaua`i are not being told the true story... Which leads one to believe it's all Politics and another way to screw the people who are supposed to be serving the Public... So who do you vote for when the election comes along? Because you don't really know who's telling you the truth or who's just telling you what they think you want to hear, just to get their vote. It's just another normal day on Kaua`i. Aloha!

Aloha indeed. Go forth and wonder no more.

Monday, July 5, 2010

(PNN) SPECIAL COMMITTEE NIXES COUNTY MANAGER PROPOSAL; SAYS NO TO NOV. BALLOT PLACEMENT

SPECIAL COMMITTEE NIXES COUNTY MANAGER PROPOSAL; SAYS NO TO NOV. BALLOT PLACEMENT

(PNN) -- The proposal for a county manager form of government on Kaua`i will not appear on the ballot this November if the Charter Review Commission follows the recommendation of its Special Committee on County Governance (SCCG).

According to the recommendation section of the SCCG’s Report to the Kauai County Charter Review Commission:

The Special Committee on County Governance, by unanimous vote, recommends against placing a measure for a Council-Manager form of government on the 2010 General Election ballot. The committee, accordingly, recommends the adoption of this report, and further recommends that the issue of a Council-Manager form of government be postponed indefinitely.

After five meetings and three public sessions held across the island, Chair Patrick Stack and members Joel Guy and Jan TenBruggencate ultimately decided that, in keeping with their charge according to the county charter itself, they could not place the matter before the voters despite what they called “frequent, long-term and. well-reasoned arguments in its favor by a small group of committed citizens”

According to the report:

The Special Committee was constrained by the authority given the Charter Review Commission under the existing Kaua`i County Charter. Section 24-03 of the County Charter contains this authority: "In the event the commission deems changes are necessary or desirable, the commission may propose amendments to the existing charter or draft a new charter which shall be submitted to the county clerk." (Emphasis added) This is a key point. The Charter Review Commission is not authorized, as many public testifiers suggested, to place an item on the ballot simply to allow voters to express their choice.

The committee found the key phrase to be “necessary or desirable” after they compiled an actual 78 page Proposal for a County Manager Form of Government based on a submission from a group called “Citizens Ad Hoc Committee for a County Manager System”.

The committee did note that, although the charter commission has to find the changes necessary or desirable there are two other ways to get charter amendments on the ballot- via citizen petition or via county council resolution, neither of which have the restrictions the commission does.

The proposal document was complied by the committee by going through the county charter, page by page and word by word, replacing the word “mayor” with “county manager” where applicable, giving instructions for designating the chair of the county council as the “mayor”, listing methodologies for the appointment of the manager and listing qualifications for the job as well other changes.
The document has not yet been cleared by the county attorney’s and attorney general’s offices according to the report which also notes that none of the committee members are attorneys. The report does not say whether it be submitted to those offices before it comes before the full charter commission for a vote.

Despite questions raised as to whether the meetings, and especially the document produced- were covered by the sunshine law, according to one of the members of the Citizens Ad Hoc Committee, Glenn Mickens, the Office of Information Practices told him that the committee’s activites were exempt from the open meeting law under section 92 2.5 as long as the full commission dealt with the report according to the sunshine law provisions.

The report describes the changes that were made in the proposal saying

(t)he draft charter proposed a county governance system in which citizens would elect six members of a County Council, and would separately elect a Mayor. The Mayor would sit as chair of the County Council and would have limited administrative authority.

The Mayor and County Council would together select a professional County Manager. The County Manager under this system would be charged with the administration of county affairs, including the appointment of department heads unless otherwise provided for in the Charter.

But while the committee noted that the majority of those that they heard from were opposed to putting the measure on the ballot, the report say that:

(w)e note that in passing, but counting votes is not the Special Committee's assignment.

An important measure is whether the proposed system passes legal muster, which requires an opinion. from the County Attorney and/or the state Attorney General. We have not received a legal opinion on this specific proposal. State law requires a "county executive, administrative and legislative structure."

That structure is required in two different parts of the law of our state: Article VIll of the state constitution and Hawaii Revised Statutes Section 46. But making legal determination is not our assignment.

The Charter Review Commission's authority and thus the Special Committee's authority under the County Charter is to "study and review the operation of the county" and to recommend changes that it feels are "necessary or desirable." Setting aside our own judgment is not within our authority. If the members of this Special Committee were to move forward an issue the committee members do not feel is necessary or desirable, simply to give voters a chance to make a selection, we would violate our oaths to defend the County Charter.

Our assignment is to determine, after our own honest, extensive and considered review, whether the proposed form of government is a better form of government for this county at this time, or if it represents a necessary change. If we believe that it is, then we should recommend putting it on the ballot. If not, we should not.

The “findings” section of the report weighs the current mayor-council and county manager systems and lists the benefits and limitations of both concluding by saying that:

(t)he Special Committee finds no fundamental flaws with the Council-Manager form of government, but does not find that it inherently superior to Kauai’s current form of government, and does not find that a change from the current system is necessary or desirable for the effective functioning of government.

The full finding section reads as follows:

The Special Committee on County Governance finds that a Council-Manager form of government is a viable means of governing a municipality. The Committee finds that the Council-Mayor form is also a viable system, and one with a long history in Hawaii and on Kaua`i. The Special Committee finds that a large majority of individuals testifying or otherwise providing information to the committee favor retaining the current Council-Mayor system, for a variety of reasons. One often repeated reason was to have a direct voice in the selection of the county administrator, rather than an indirect voice through selection of a county manager through a single Mayor-Council panel.

The Special Committee finds that a key argument for the Council-Manager form of government is that it provides for an administrator for the county who has specific education and experience in management. The Committee finds that such experience could also be mandated for a mayoral aide under the current Mayor-Council system.

The Special Committee finds that a County Manager would be unable to function with the flexibility envisioned by some proponents due to legal limitations on his/her authority. In part, this is because under existing state law and county charter provisions, a County Manager would not be able to appoint many of the county's chief department heads. State law requires the personnel director and liquor control department head to be appointed by commission, and county charter requires the planning director, water department manager and the police and fire chiefs to be appointed by commission. A Mayor is similarly limited in oversight.

The Special Committee finds that the County Manager system removes certain cheeks and balances from county government, including the veto power of a mayor over legislative measures, and the development of a recommended budget under an elected administrator and its approval by an elected legislative body.

The Special Committee finds no fundamental flaws with the Council-Manager form of government, but does not find that it inherently superior to Kauai’s current form of government, and does not find that a change from the current system is necessary or desirable for the effective functioning of government.

According to the Charter Review Commission section of the county web site no meetings of the commission are scheduled yet.