... SAME AS THE OLD BOSS

... SAME AS THE OLD BOSS: When we last reported on “pay-raise-gate”- the scandal regarding the illegal pay raise that County Clerk Peter Nakamura received via a brief memo written by former Kaua`i County Council Chair Kaipo Asing, rather than following the evaluation and reporting process proscribed by the rules of the Salary Commission- we relied on a confusing local newspaper account that seemed to say that the confidential personnel memo was released by mayoral assistant Beth Tokioka.

But now we are finally in possession of a key document in the saga- a so-called “Media Statement” written and distributed by current Council Chair Jay Furfaro to various media outlets.

Although the article states that:

(i)n a “media statement” last week, Furfaro said Bynum voted in favor of measures concerning Nakamura’s pay raise twice, once when receiving the commission’s communication and again when approving the FY11 budget

it never made clear whether this was merely a verbal statement or the detailed one page manuscript attached to 21 pages of supporting documents Furfaro provided, including the memo from Asing.

The article also said that:

A memo from the council chair to the personnel director seems to back up (Councilperson JoAnn Yukimura’s) claim (that a the Salary Commission mandated process was not followed) ... The memo does not indicate that there was any attachment that could contain the evaluation required by the rules. County spokeswoman Beth Tokioka confirmed Wednesday that there was no evaluation attached to the memo.

Although many interpreted that to mean that Tokioka revealed the memo- which was part of Nakamura’s confidential personnel file- it was in fact the last document provided in Furfaro’s “Media Statement” packet.

The Statement provides the basis for the contention that the council’s acceptance of the original Salary Commission Resolution (2009-2) was sufficient to serve as the formal process for the evaluation of Nakamura saying:

Under Section 29.03 of the Kaua`i County Charter, the Salary Commission adopts a resolution setting forth the salaries of various elected and non-elected County officers and employees. The resolution is then forwarded to the Mayor and the Council. The Council may, by a vote of not less than five members, reject all and any selected portion of the resolution. (Section 29.03 is attached hereto).

On August 25, 2009, the Salary Commission transmitted the Resolution No. 2002-2 to the County Council. (Transmittal and Resolution No. 2009-2 are attached hereto). The Resolution was placed on the September 23, 2009 Council agenda. Councilmember Tim Bynum seconded the motion to receive the Resolution, meaning that the Council would not be rejecting any portion of the Resolution, including the line item that set the County Clerk’s salary. (Relevant portions of the minutes of the September 23, 2009 Council meeting are attached hereto).

The Statement doesn’t however even mention the Salary Commission mandated, formal evaluation process to actually set the exact amount of the salary (within a proscribed “range”) and effectuate the raise, which the council must follow as the “appointing authority” for the county clerk- separate from its function regarding the Salary Commission Resolution as provided in the county charter.

According to the resolution- and the Salary Commission rules- that process includes providing the Director of Personnel with:

- A memo from the officer’s or employee’s appointing authority at least 30 days prior to the increase certifying that appointee’s performance has been evaluated pursuant to procedures established by the personnel director.

- A copy of the officer’s or employee’s completed performance evaluation evidencing that the appointee has met or exceeded job requirements.

- Based on the evaluation, the appointing authority’s recommendation on whether a proposed increase should be granted.

The mention of Bynum’s “second” is apparently designed to question why Bynum has been one of the two council voices- along with Councilmember JoAnn Yukimura- to question the process, by making it personal- apparently trying to say that, if you buy the false premise that accepting the Salary Commission’s recommendation is enough to effectuate Nakamura’s raise, Bynum’s second would make his raising of issues with the process duplicitous.

It ignores of course that many times people second a motion for discussion purposes and that a second in no way requires one to vote for the motion according to Roberts Rule of Order.

The statement goes on to describe the process that Asing did use in supplanting the correct procedure saying.

The Council Chair Kaipo Asing circulated evaluations forms prepared by the Director of Personnel. I filled out the evaluation and I know that Mr. Nakamura was also evaluated by Councilmember Derek Kawakami and Mr. Bynum. While I cannot disclose the contents of the evaluation because it is a personnel matter, I am confident that Mr. Nakamura met the requirements for his raise. Council Chair Asing sent a memorandum to the Director of Personnel indicating that Mr. Nakamura met the criteria and was entitled to his salary. (A copy of the memorandum is attached hereto).

The Statement further states that:

On April 1, 2010, Mr. Bynum submitted written testimony to the Salary Commission. In the testimony, he stated that, “Currently, the County Clerk, County Auditor and Prosecutor all have salaries greater that the Mayor” and asked the Salary Commission to adjust the salaries. (A copy of the testimony is attached hereto). Mr. Bynum appeared before the Salary Commission and testified that the salaries should be adjusted not because of any concern about the Clerk’s performance, but because it was improper for the clerk, auditor and persecutor to have higher salaries than the mayor (a copy of the minutes are attached hereto).

It’s not clear what the relevance of this might be other than to again try to use the false premise to personally discredit Bynum.

Finally Furfaro makes one more reach, this time with a paragraph saying

On May 26, 2010, the County Council unanimously approved Bill No. 2356, Draft 1, which again included a line item that set the County Clerk’s salary. (Relevant portions of Bill No 2356 are attached hereto). As you can see from the record of the votes cast, Mr. Bynum voted for approval of this bill.

That one is particularly silly considering that the council negotiates line items in the budget for weeks on end and, although no one supports every single line, in the end the “compromise” package is usually passed unanimously- as Furfaro has himself stated publicly on occasion.

The 21 pages of documents in the packet include:

- Article XXIX of the County Charter regarding the Salary commission

- The memorandum communicating the resolution from the Salary Commission

- The Resolution itself (five pages)

- Minutes of the September 23, 2009 council meeting regarding the resolution including a conversation with County Attorney Al Castillo regarding the process for “receiving” the resolution so as to make it effective or for rejecting it by the vote of at east five councilmembers, as provided in County Charter Article XXIX (seven pages)

- The FY 2010-11 Budget Ordinance with a county clerk salary line item and certification page (three pages)

-Bynum’s testimony, with cover letter, to the Salary Commission (two pages)

-Asing’s one paragraph memo to Director of Personnel Malcolm Fernandez, in violation of both the rules for effectuating the county clerk’s raise and the County Code of Ethics (as discussed in our coverage linked above)

What is most distressing in all this is that rather than coming forward and recommending that the proper process be followed and declaring that Asing’s memo was done in violation of the law or at least “done in error,” he chose to defend Asing’s actions and declare that it was “close enough for government work” as the expression goes, supplanting fully extraneous material- which included an invasion of privacy in releasing the contents of Nakamura’s personnel file- and attempting to personally discredit one of the two councilmembers who acted as “whistleblowers.”

This is not the type of leadership the people of Kaua`i want or deserve.

We call on Furfaro to either rectify this by complying with the law and scheduling the proper agenda items to conduct the proper evaluation - even though the timeframe violation cannot be overcome- or, if he continues to stonewall and obfuscate, to resign his post as Chair.

And, if he will not resign as chair we ask the other six councilmembers to remove him.

We also call on the county prosecutor and the Kaua`i Board of Ethics (BOE) to investigate this matter.