Monday, January 30, 2012

ON A WING AND A PRAYER

ON A WING AND A PRAYER: We've all read them- national newspaper stories that attempt to make sense of a local story but instead make a mess of it.

"Parachute journalism" isn't easy but can be downright impossible when the story you're looking for isn't really there but the author is determined to pound that square peg into an existing round hole.

We came across just such a piece at the popular "Truthout" website this weekend. It's a very strange- and skewed- little article on the supposed "Occupy movement" on Kaua`i by Michelle Fawcett Ph.D., an adjunct professor in the Media, Culture and Communications Department at New York University who "is currently traveling across the US covering the Occupy movement."

For those who might have missed it when the Occupy Wall Street movement came to Kaua`i last year in its nascent days, after a fairly well-attended sign-holding rally in front of Safeway and an attempt a few days later to actually occupy the county building lawn overnight- where attendees kind of drifted away before they rolled up the sidewalks at 9 p.m.- things kind of fizzled.

We speculated that it might be because, if you're not homeless, a transient or working six jobs, you are, almost by definition, among the very privileged just to live on Kaua`i. Living here permanently means you're apt to be in the 90th percentile of the "99%." On Kaua`i the 1% is more like 75% (to pull some numbers out of our butt).

But that didn't stop Fawcett who somehow dug up a few FOB North Shore malahini who assured her the Kaua`i version of the Occupy Wall Street movement is alive and well here and that "we" are planning on permanently occupying the County Building lawn.

As to the controversy over naming a group "occupy" in the islands - what with the overthrow in 1893 and the military occupation that persists to this day - it somehow feels insulting to the real ongoing occupation. Instead of the "Occupy with Aloha" name that had been adopted by those who organized and participated in those events last year, somehow she came up with the "Occupy Movement" moniker.

But at least she tried, circling around the sovereignty issue by interviewing the Reinstated Hawaiian Government's Kane Pa- although it was apparent she didn't really "get" the irony involved in new haole group occupying a "country" that another haole group has been occupying for more than a century.

Fawcett first introduces us to her sources, writing

Members of Occupy Kapaa on Kauai, Toni Liljengren, 54, and Andy Fitts, 57, are transplants to the northernmost island they now call home. Toni, a lomi lomi massage therapist, relocated over 20 years ago, while Andy, director of a local Tibetan peace park and a real estate developer, and his wife are more recent arrivals. Speaking over lunch in a sun-washed café, both warned of an imminent global "systems shift."

Where do you start with the oxymoronic absurdity of a North Shore real estate developer as spokesperson for a non-existent "Occupy Kapa`a" group?

At least the writer kind of got the idea that there's a sustainability movement here, albeit presenting it as a self-contained part and parcel of the local "Occupy" movement- as if it all just occurred to us last October as a result of the establishment of the original "Occupy Wall Street" outpost, about a quarter-mile from Fawcett's NYU campus.

So what will Liljengren and Fitts do "when da boat no more come?" Liljengren says:

"I feel really safe on Kauai. There's fish. There's fruit. This is a very sustainable place. It's probably one of the best places to be at the time of the collapse."

Toni is confident she can survive a crisis because she already barters for food, shelter and chelation therapy. While Andy is more wary, he concludes that a systems shift will "bring out the best in everyone because all the intelligence will be called upon. It will be survival time. Everyone will be scrambling for a new paradigm. But it will be a wonderful time because people will actually stop sleepwalking."


So we'll all be okay just the way things are now- no gardens (and no land for them), little or no large scale sustainable crop agriculture, prime Ag land broken up into gentlemen’s estates, everyone working 11 jobs in the all-pervasive tourism industry- because there'll be plenty of free fish and fruit trees for Toni and Andy expects everyone to be so "awake" and "aware" that they apparently won’t need food or fuel anymore.

Yeah we'll live on love. Or better still we'll become "breatharians."

There's a certain rare skill to airlifting into town and jumping right in journalistically- one that many try but few master. Not everyone is a Tony Sommer, a Denis Wilken or a Mike Levine. But even more difficult is doing it for a "one-off." And it's even harder still if you came with a thesis and the facts on the ground don't jibe with those you thought you'd find.

The solution is to change your theory, instead of trying to change what you find on the ground, Mr. Jones.

Friday, January 27, 2012

JUST A MOTION AWAY

JUST A MOTION AWAY: Our high school Economics class had us bored to tears. For a red diaper baby in the midst of the late 60's "revolution" it held little relevance. But we do remember one thing- the way Mr. Voorhies would ask questions of our equally narcoleptic classmates and, when no one raised their hands, he would rub his thumb across his other four fingers, indicating the inevitable answer to every question in economics... money.

Perhaps it has stuck with us because every time we see the Hawai`i State Legislature, or any legislative body in the country for that matter, propose some inane and out-of-touch piece of legislation- many times either in opposition to pervasive public opinion or presenting a version of the ideal that is so watered-down you can actually hear it gurgling as it goes down for the third time- we leap to the conclusion that the answer as to "why" can be summed up with Mr. Voorhies' gesture.

So when we heard that rather than ban those one-time-use, white, plastic grocery bags like Kaua`i and Maui have done, the bill streaking through the legislature aims to simply put a 10 cent fee on them- to go to 25 cents if it doesn't decrease the use significantly.

At first blush we assume it was, as usual, the "money in the system" from both the supermarkets and plastic bag makers that was the proverbial fly in the ointment.

But the reality is that the reason why the corporate media is framing any controversy over the bill as whether in fact to institute a fee and if so how much it should be, is that our own people have sold us down the river once again.

Rather than look at how incredibly beautiful the roadsides, beaches and, everything else looks on Kaua`i and Maui now that everything isn't draped in white plastic and advocate for a total ban statewide, according to Civil Beat:

Sierra Club director Robert Harris told the House Committee on Energy and Environmental Protection Thursday that a fee — which would be charged to consumers at the checkout counter — has worked to reduce plastic bag use in other areas.

Harris was among those testifying on House Bill 2260. Environmental groups, including The Nature Conservancy and Surfrider Foundation, as well as government department heads and even major supermarkets, testified in support of the bill.


The important part that tells you something is wrong is that last part- it wasn't just the environmental group but "even major supermarkets, testified in support of the bill."

Now we get the "strange bedfellows" aspect of politics. Many times we have to question our own sanity when we find ourselves agreeing on some issue with various and sundry fascists, war mongers and general all-around creeps and cretins.

But that isn't the case here.

Way too often, especially in "the Aloha State," those who put themselves out as allies in the fight to stop despoilment in the name of progress in the islands abandon the fight to enact effective legislation in favor of compromising our environment before the fight even begins.

The thought process, as we've been told in similar circumstances in the past, is that the good fight isn't worth fighting this time. We've been admonished by the leadership of the above listed groups that certain battles aren't worth fighting and scoring political points for the organization on "this one" is more important than staking out the "perfect" so that the final "good" will be just a little better when all is said and done.

The way politics is supposed to work is that you stake out your perfect position and either win over the other side or find a happy medium. But lately- whether it's the Hawai`i environmental groups or the national Democratic Party, the position taken going into negotiations is already compromised to the extent that the final measure is inevitably horrific.

It isn't the money itself in many of these situations. Rather it's the acknowledging- and therefore condoning- of the fear from legislators over the use of that money to challenge them at election time that creates the defeatist attitude of progressive organizations these days.

Yes- getting all money out of politics is the ultimate solution to our broken political system. But if we give up before we begin, we're giving that money exponentially more power than it already has.

Thursday, January 26, 2012

POLITICAL THEATER ON RYE... WITH MUSTARD PLEASE

POLITICAL THEATER ON RYE... WITH MUSTARD PLEASE: What with all the fun and games of the Iseri-Bynum circus of the absurd, the status and functionality of the Victim-Witness Program (VWP), the meat of the recent political sandwich, hasn't really received much press.

As we reported two weeks ago (January 12) according to a scathing letter to the Kaua`i County Council by Erin Wilson, a terminated Victim-Witness Counselor at the Office of the Prosecuting Attorney (OPA, the program is now dysfunctional due to the requirement that all communications with outside agencies and the world in general be channeled through Prosecutor Shaylene Iseri-Carvalho, the lack of communications between those performing VWP services and many other issues such as the 17 new faces at the OPA since Iseri came into office.

According to the agenda for last Thursday's council meeting, Council Vice Chair JoAnn Yukimura asked Iseri to come before the council to discuss "the status of the Victim-Witness Program and OPA." And when Councilmember Tim Bynum recused himself due to Iseri's prosecution of him for alleged zoning violations at his home- as we detailed yesterday- Yukimura took over the questioning that, according to Bynum, had been suspended in 2009 when then Chair Kaipo Asing stopped it.

But not before Iseri, trying to direct the show, dragged up her whole department to blow smoke up everyone's butts after demanding that Wilson be questioned, spurring Chair Jay Furfaro to remind her that he was the one running the show.

Instead Yukimura asked for current VWP employee Dianne Gauspohl-White to come up to tesfy. She pretty much backed up most of Wilson's complaints although saying she could only speak from her perspective.

At first Yukimura's questioning elicited mostly red-faced rage, bluster and misdirection on Iseri's part, complaining how she and her staff had to take valuable time to present information they had supposedly already presented.

But after Iseri's right hand man First Deputy Prosecutor Jake DelaPlane- who continually throughout the session pulled her butt out of the sling she had created through her own belligerence- did a PowerPoint presentation with lots of numbers and statistics but almost nothing on the VWP, the questioning of Iseri by Yukimura began, mostly based on Wilson's allegations.

Things were going along swimmingly (not) with Iseri parrying Yukimura's questions with non-responsive "answers" and continual reminders that she had already presented the requested material, when Yukimura finally asked the right questions and hit a jackpot of an answer.

"The Victim Witness Program no longer exists" Iseri told a stunned council.

Seems that Iseri has instituted a program called "vertical prosecution." Formerly deputy prosecutors were assigned to individual courts, not to individual cases. That meant that many times an attorney got the case for the first time when he showed up to court after a case had, for example, been moved from district to circuit court or from the court of one judge to another.

"Vertical prosecution" (VP) is a system where each case is assigned to one attorney who takes it from beginning to end, usually sorted by subject matter- drugs, violent crime, domestic, white collar crime etc.- supposedly creating attorneys with expertise in a certain area.

It actually sounds like a good and long overdue practice.

Under VP each individual attorney has a "team" assigned to him or her- a law clerk, and now, a Victim-Witness (VW) counselor.

And in Iseri's office that apparently has come to mean that there's no cross communication anymore between the various VW employees.

According to White and Wilson, VW employees are now tasked by the attorney who almost exclusively assigns them tasks like calling specific victims and witnesses to let them know about court dates, changes in case status and those kinds of things.

Apparently the actual "counseling" part has fallen through the cracks and not only that but the only victims and witnesses contacted by the counselors are those the attorney on the team tells them to call- and then only to communicate matters regarding the case status.

It used to be that VW employees met every month, traveled to conferences and did a lot of evaluation of whether and how services were being delivered to VWs. But that is a thing of the past with VP where counselors are now "team members" whose actions are dictated by either the attorneys in charge of the team or Iseri herself.

Whereas vertical integration is growing in popularity in the offices of prosecutors and district attorneys across the country- and, according to Councilmember and Iseri ally Mel Rapozo, is by far the most popular management scheme- robust victim witness counseling can wind up being be sacrificed.

Especially if a megalomaniacal, puerile, petty, vindictive, ego-driven prosecutor is the one running the show.

The rest of Yukimura's questioning revealed that, despite requests from the council that statistics and information be presented in an intelligible manner and one that addresses questions the council has- like how all the monies from the various VW programs from the county state and federal governments are actually spent- they are embedded in spread sheets and long narratives where there's little or no possibility of extracting the pertinent information.

It all ended up with DelaPlane- who had taken over much of the question-answering after Iseri's patented self-righteous, rage-filled and spittle-spewing attacks on the questions and questioner became self-defeating- promising to put the statistics in meaningful formats for the new budget... and, importantly, to provide the evaluation forms that victims and witnesses have filled out for those entities providing the grants, which had never been provided to the council previous to the request.

We can expect a repeat performance during the budget hearings starting in March when the OPA presents its budget. But more importantly we just may get some of the issues aired during this year's election campaign where current Deputy County Attorney for the Kaua`i Police Department (KPD), Justin Kollar, is challenging Iseri for the Prosecutor's job.

Iseri won her first and only term as prosecutor in 2008 running unopposed, leaving her position on the county council after four years there.

Although the community has suffered in all this, personally we can't be too distressed with the Bynum matter, the victim witness program questions and other brewing debacles promise that this summer will be anything but a dull one in this space.

So thank you Shay- you're a columnist's dream. So much so that we're torn between supporting Justin for the sake of the community or you for being the gift that keeps on giving.

Wednesday, January 25, 2012

BUT WAS IT BASMATI OR LOCAL-KINE STICKY?

BUT WAS IT BASMATI OR LOCAL-KINE STICKY?: Only on Kauai could we have a scandal that revolves around whether having a rice-cooker in the wrong room constitutes a zoning violation.

That's because "Rice-cooker-gate" is a direct result of what happens when a dysfunctional planning department and an ego-maniacal prosecutor collude to "bring down" a councilmember.

The matter- into which we've been delving for the past year or so- has finally spilled over into the local newspaper with an article yesterday that scratched the surface of the prosecution of Councilmember Tim Bynum by Prosecuting Attorney Shaylene Iseri-Carvalho, after the release of various documents and a back and forth between Iseri and Bynum on the matter.

Despite Iseri's denial of any ill-feeling between the two, the feud between her and Bynum goes back to their days together on the council when she and Councilmember Mel Rapozo were allies and sided with then-Chair Kaipo Asing in the infamous days when Bynum and Asing butted heads with all of them over Asing's paternalistic leadership of the council involving issues of process, staffing, introduction of measures and other issues.

Iseri was then elected prosecuting attorney in 2008.

According to a complaint form we've obtained dated 3/26/10 Bynum was alleged to have an "illegal dwelling multi family" unit at his home which is on agriculturally zoned land.

The problem is that, under "Complainer/Requester" the form notes "*wants to remain anonymous!" (the asterisk and exclamation marks are written on the form)

The complaint has two initializations, one for "inspector" and another for "assigned by" but who they actually are is not readily apparent. However what is known is that, according to Bynum's press release that followed an email from Iseri to current Council Chair Jay Furfaro sent just before last Wednesday's council meeting where Iseri appeared on a budgetary matter related to the Victim Witness program:

Apparently, sometime prior to April 2010 a trespasser entered onto my property, looked into my windows and observed a rice cooker and a refrigerator in the family room.


That someone is apparently Planning Inspector Sheilah Miyake who was CCed in a series of memos between Iseri and then Planning Director Ian Costa and has been identified by numerous reliable sources close to the investigation as being the "trespasser."

On April 7, 2010, Iseri wrote to Costa:

We received information to corroborate an anonymous complaint dated March 2.6, 2010 that was sent to the Planning Department and our office, that Councilmember Tim Bynum was renting out his house, or a portion thereof. Can you let me know if renting out a portion of his residence is ill~gal given his land status, and what ordinance/statute would he be violating by doing so? Please advise.

Costa wrote back, CCing Miyake, saying

Sorry for delay Shaylene.

The CZO really doesn't prohibit renting portions of structures. Even the issue of "lock-outs" is not addressed.

The CZO does not dictate where locks are permitted and not permitted (thank goodness!). The issue would be whether the area, in question creates a "multi-family" dwelling. What was permitted is a "single-family" dwelling based on "one kitchen". If a second kitchen (area used for the preparation of food) is present, then a violation would exist for an illegal "multi-family" dwelling unit.

I understand Sheila has been assisting and monitoring .......let me know if we can be of further assistance.


Despite Iseri's previous contention that actions on the complaint was initiated by the planning department alone, her memo indicates that now she says the complaint was sent to both planning and the prosecutor's office. She also seems to say that she and Miyake worked together to get the "rice cooker" information that was arguably obtained illegally via Miyake's trespassing.

In a comment on our November 5, 2010 report on Bynum's denial of allgations, Iseri wrote"

Mr. Parx,

Your statements are completely erroneous. I was never involved in the investigation of Tim Bynum's violations. The entire investigation was conducted by the Planning Department.

The memo seems to indicate that it was Iseri who initiated the action in conjunction with Miyake and without Director Costa's prior involvement. It also shows that Costa essentially confirms what people have been told at planning previous to this incident- that a "second kitchen" is what makes it illegal. And, as everyone is told, it is a stove that constituted what a "kitchen" was.

But Iseri wasn't to be stopped by the prior definition of a kitchen by planning. Apparently when Miyake told her she saw a "rice cooker" on the counter when she sneaked onto Bynum's property without his permission- or even asking- Iseri saw her opening and decided that, despite what planning had said ever since the CZO was established in the early 70's, now any device- presumably even a toaster or coffee maker- is a "kitchen."

The most hilarious part of all this is Iseri's continuing contention that there is no feud or even animosity between her and Bynum. Anyone who ever watched those council sessions where she butted heads with Bynum would have no doubt she despises Bynum.

So as to who made the complaint? Well we can't say for sure but for some reason former Chair Kaipo Asing has taken an unusual interest in Bynum's cases, showing up to Bynum's court dates and last week's council meeting where, if Bynum had not recused himself, sparks between Iseri and Bynum would surely have flown.

Was it Asing? Was it Iseri's ally Mel Rapozo whose animosity toward Bynum is thinly, if at all, disguised? Some seem to think the latter is the case but so far Rapozo's name hasn't come up in any documents.

The answer is apparently another question- does it really matter which of them it was? To think that there was no collusion in the matter would strain credulity.

Another question is what will happen when these people are put under oath. We understand that new Planning Director Mike Dahilig is privy to the whole story and even if the others were thinking of perjuring themselves, his testimony would surely be straightforward, the thinking being that Dahilig, a former deputy county attorney, isn't going to lie under oath for anyone.

A final question is why Iseri's office is even prosecuting the case and why she hasn't recused herself and her office by letting the state attorney general's office take it over. It would seem, given the history between Iseri and Bynum, recusal would be a no brainer.

Also, Iseri's email was stamped with a big "Confidential" across the top and the original did not contain any redactions. But under the Sunshine law she has no apparent right to say an email to the council is confidential. All emails to councilmembers are considered public documents.

We'll leave it there for today. Below are the full texts of Iseri's letter asking for Bynum's recusal last Wednesday and Bynum's "press release" that followed this weekend. It should be noted that there may be misprints in Iseri's email. First of all, names of those involved are redacted and second we had to use optical character recognition software to get it in "text" form. There may be redactions that are not noted so the sentences may seem disjointed. But you'll get the gist of it.

----#---

Iseri's letter to Council Chair Jay Furfaro CCed to all councilmembers except Bynum.

January 19, 2011

TO: Council Chair Jay Furfaro

FR: Prosecuting Attorney Shaylene Iseri-Carvalho

RE: Conflict Notice Regarding Councilmember Timothy Bynum

This communication serves as a notice to the Council regarding a conflict of interest between Councilmember Timothy Bynum and the Office of the Prosecuting Attorney. This conflict arises from several incidents involving Councilmember Bynum and employees in our office, as well as the pending criminal case filed by our Office against Councilmember Bynum in November 2011.

1. Bynum's Inappropriate Confrontation Of Deputy Prosecuting (redacted)

On September 28, 2011, Councilmember Timothy Bynum attended a court proceeding with his son, David Bynum, at the 5th Judicial Circuit Courthouse in Lihu`e. After the hearing, Mr. Bynum stood outside the courtroom door in the public hallway and confronted Deputy Prosecuting Attorney (redacted) regarding David's case. As (redacted) exited the courtroom, Mr. Bynum stated directly to (redacted) "Do you think justice was done? This was because [expletive] Shaylene doesn't like me and is out to get me." (Redacted) was standing nearby and also witnessed the confrontation.

According to the Kaua`i County Charter section 3.07(D)

The council may, upon an affirmative vote of at least two-thirds of its entire membership, suspend without pay for not more than one month any member for disorderly or contemptuous behavior in its presence. The presiding officer or the council by a majority vote may expel any other person who is guilty of disorderly, contemptuous or improper conduct at any meeting.

While this section deals with disorderly and contemptuous conduct that occurs in the presence of the Council, it is also instructive as to the appropriate conduct expected from Councilmembers in their dealings with county employees as well as the general public.

Additionally, Section 3.18 of the Kaua`i County Charter states:

Except for the purpose of investigative inquiries under Section 3.17, the council or its members, in dealing with county employees, or with county officers who are subjected to the direction and supervision of the mayor, shall deal solely through the mayor. and neither the council nor its members shall give orders to any such employee or officer either publicly or privately. Any willful violation of the provisions of this section by a member of the council shall be sufficient grounds for an action for his removal from office.

Clearly, Councilmember Bynum did not handle this situation appropriately. If Mr. Bynum had questions or concerns about the case, the appropriate course of action would have been to communicate those to the elected Department Head, which is me, rather than confronting one of our Deputies, who, in fact, was not assigned to handling the case. This confrontation clearly illustrates the undue bias Mr. Bynum harbors toward both me personally, as well as the Office of the Prosecuting Attorney. As such, Mr. Bynum must recuse himself from any matter before the Council involving the Office of the Prosecuting Attorney.

2. Bynum's inappropriate confrontation of (redacted)

Before coming to work at the OPA (redacted) was employed by (redacted) as (redacted). She applied to the OPA as a (redacted) and was offered the job in (redacted) . After accepting the position (redacted), who had turned in her 2 week notice (redacted) was confronted by Councilmember Bynum in her office. Bynum stated that he was concerned because it was well known that he and Shaylene did not 'get along' and adamantly believed that the only reason Shaylene hired her was to 'get back at him.' These statements and allegations continued for a prolonged period, leaving (redacted) to feel uncomfortable and offended.

Councilmember Bynum's inappropriate confrontation with (redacted) regarding her employment at the OPA demonstrates Mr. Bynum's continued undue bias toward me and my office. This bias and proclivity to engage in inappropriate conduct with OPA employees further establishes the need to have Mr. Bynum precluded from participating in any matters relating to the operations of the OPA.

3. Bynum's Pending Criminal Case


On November 9, 2011, the OPA filed a criminal complaint in the District Court of the Fifth Circuit against Timothy Bynum, alleging 4 counts of violations of the Kaua`i County Code. Each Count is a misdemeanor offense, punishable by up to one year in jail and a $2,000.000 fine for each. This means that if convicted, Bynum could face up to 4 total years imprisonment and $8,000.00 in fines. There have already been two motion hearings on the case, in which Mr. Bynum has been represented by a private attorney. At each hearing, First Deputy Prosecutor Jake Delaplane represented the State and made all arguments on behalf of the State. Councilmember Bynum's criminal case clearly establishes a conflict with the OPA. He has a clear financial interest in the operations of the OPA, as he would directly benefit if the OPA's operations were negatively impacted by any action of the Council. By virtue of being a criminal defendant, he has a vested interest in ensuring that the OPA not operate at peak efficiency. In accordance with Article )0( of the Kaua`i County Charter, this financial interest clearly prohibits Bynum from participating in any matter relating to the OPA that comes before the Council. Further, because Councilmember Bynum is represented by an attorney in his criminal case, our office is prohibited from having direct contact with Bynum without his attorney present; as such contact would violate Bynum's 6th Amendment Right to Counsel and could result in dismissal of his case. Bynum's paranoid belief that the actions taken by our office were calculated personal attacks against him is without any merit and is completely baseless. The criminal case against his son was investigated by the Kaua`i Police Department and referred to our office for prosecution. The case initiated against Councilmember Bynum was investigated by the Planning Department and referred to our office for criminal prosecution. The contact with (redacted) was solely initiated by Councilmember Bynum. Her decision to apply to the OPA and our decision to hire her was purely based on (redacted) exceptional experience and qualifications.

For the above stated reasons, Councilmember Bynum has a clear conflict of interest with the Office of the Prosecuting Attorney and should not be allowed to participate in any Council proceedings involving the OPA. It is our hope that the Council will address this situation in a timely and appropriate manner. Feel free to contact me with any questions regarding this matter.

SHAYLENE ISERI-CARVALHO
PROSECUTING ATTORNEY

---------

Bynum's Press Release

I was elected to legislate for the county and to provide oversight of various government agencies and offices. Among these is the Office of the Prosecuting Attorney (OPA).

However, the OPA has recently filed criminal zoning violations against me and I must now defend those in Court. Since I was charged, the County Prosecutor has now cited those same charges as a basis for having me recused from all legislative oversight over her office. Out of an over abundance of caution I agreed to recuse myself from the January 19th meeting.

Likewise, I believe that it would be appropriate for the Kauai Prosecuting Attorney to be recused from prosecuting my case and allow the Attorney General's office to properly evaluate this case. I believe that this would be the best assurance of a fair proceeding and a fair process that is certain to be governed by the rule of law.

The Prosecuting Attorney states in a Jan 19 letter that her criminal prosecution is not personal, and was a routine matter “investigated by the Planning Department and referred to our office for criminal prosecution.” What I have learned is that as early as April 2010, the Prosecuting Attorney asked the Planning Director in an email for a legal basis on which to prosecute me. I am attaching a copy of emails between the Prosecuting Attorney and then-Planning Department Head Ian Costa. These e-mails establish that the Prosecuting Attorney was involved in the matter before Planning even investigated the “anonymous complaint” and that this was not just a routine Planning Department investigation.

In her email, the Prosecutor refers to an "anonymous" complaint. Apparently, sometime prior to April 2010 a trespasser entered onto my property, looked into my windows and observed a rice cooker and a refrigerator in the family room.

I hope that through the court-process I will be able to ascertain the identity of this trespasser and learn how this person was able to anonymously commence a criminal investigation - especially when I have previously been assured by the Planning Department that my house was properly permitted. I also hope to find out who, if anyone in government authorized sending someone to peer into the windows of my family home. I believe that the trespasser should be prosecuted, but thus far his or her identity appears to have been protected. The documents provided to my defense attorney so far only state that he or she "wishes to remain anonymous".

Finally, just minutes prior to the January 19, 2012 Special Council Meeting, the Prosecuting Attorney sent a letter marked confidential demanding my recusal. The letter was sent to all Council Members except for me. I was allowed to read the letter in the presence of the County Attorneys but I was not given a copy.

I am now informed that the Prosecuting Attorney intends to release to the public this letter she stamped “confidential.” The letter misrepresents conversations I had with two individuals I have long respected and have had a cordial professional relationship with for years.

The intended subject matter of the January 19 Council Meeting was a valid examination of concerns raised by a number of citizens regarding the Victim Witness program, the reported backlog of cases, finance issues and the high turnover / vacancies of Deputies. Council member Joann Yukimura instigated the request. Anyone who follows the Council knows that this type of oversight agenda item is common and a legitimate Council responsibility.

Additional information regarding the alleged zoning violation:

In 2005, at times there were 4 generations of my family (7 people total) living in my home (my father, myself and my wife, my son, my daughter, our grandson and his mother). We decided to do an addition to our home. We wanted to create a living space that was integrated. We constructed two bedrooms, a bathroom and family room. The addition also included a ramp because my elderly father was increasingly having difficulty negotiating the steps to the front door much less the stairs to the second story where the existing bedrooms were located.

When the drawings were done I took them to the County Planning department and the Building division for informal review. I was told everything was fine as long as no stove was installed. Subsequently we submitted the plans to the County for formal review and approval. The plans were approved after being circulated to and approved by various departments including the Planning department.

We hired a contractor and built according to the plans. The County sent inspectors during construction including a final inspection after which we were issued a certificate of occupancy. The addition is exactly as it was when “final inspection” occurred; nothing has been added or deleted. No installed cooking facilities have ever existed in the addition. Our home has one kitchen; every person that has ever resided in our home has used the one kitchen.

Friday, January 20, 2012

DISINFECTANT APLENTY

DISINFECTANT APLENTY: The subject of open meetings and records- and of course the related Sunshine Laws- has always been near and dear to us. Nothing gets our blood boiling more than attempts by councilmembers across the state who try to claim it prevents them from doing their job, especially when they misrepresent restrictions on interactions with each other, even after the Office of Information Practices (OIP) tells them where "the line" is.

The typical complaint goes something like "I can't even go to dinner and talk to a fellow councilmember about the weather without violating the Sunshine Law." The fact is that there are "permitted interactions." They include allowing two members to talk about anything unrestricted as well as other bright lines of what can and can't be discussed unless it is done in a properly agendaed meeting.

But the main thing is- to perhaps oversimplify- that you can't talk about a matter of public policy that is- or is likely to be- before the body. And you can't use serial communications to avoid the ban.

So it irked us a little to see fellow champion of open governance journalist-blogger Ian Lind's comment on a proposed clarification of the law proposed by OIP.

After discussing the permitted interactions rules he wrote:

The result has been what I consider some absurd results, including the notion that circulating draft bills for signatures prior to introduction would somehow violate the law, despite the fact that it has nothing at all to do with whether the bill will become law or not.

Wow. As it turns out, a case we filed against Kaua`i County Council Chair Jay Furfaro for just such an infraction- apparently circulating a proposed bill to all other councilmembers at the time and even asking for "support" for it- was recently addressed by OIP and the only fact that prevented it from being an "unpermitted interaction" is that, according to then County Clerk Peter Nakamura, the cover letter and draft bill were never actually sent to other councilmembers, only addressed to them.

Otherwise, OIP said, it would have violated the sunshine law.

And that's as it should be. If you want to talk about the content of a bill, do it in public. It has nothing to do with the actual passing of the bill but rather the deliberations which eventually yield those pesky details that the bill will contain. It's called "deliberating toward a decision" and it includes all stages of public policy making from the drafting through the discussion and finally to the passage.

So how do you talk to your fellow councilmembers about proposed legislation? The answer may be contained in a notice for a "workshop" the Kaua`i Council has scheduled for next Tuesday January 24 at 9 a.m. at the Kaua’i Civil Defense Agency- Emergency Operating Center, 3990 Ka’ana Street, Suite 100

According to the notice:

A facilitated workshop is scheduled to set goals that the Kaua’i County Council would like to see achieved in the next few years and to discuss issues pertaining thereto that could include:

So far, so good. Sounds like they are finally "getting it" and want to let the public in at the planning stage rather than springing matters on us as a "done deal."

But then, to our astonishment, the agenda list 41, count 'em 41, subjects they intend to discuss, each subject so broad that each individual item could spur hours of discussion. We've listed them at the end of this post.

That also means that if the public wanted to testify on each one, assuming they'd be given the usual six minutes to speak on each, just one person could sit there for just over fours hours... although, because all 41 are listed under one agenda item they might decide to give only one six minute time allotment for all of them. That of course would leave about nine seconds a subject.

We did ask OIP for a down and dirty opinion of the sufficiency of the agenda and were told that it looked okay, although they did not address the public testimony aspects.

But the upshot is that rather than complain that they are prevented from discussing proposed legislation, this format- not with 41 subjects but with let's say with just one or two- is the way it's supposed to work. You put it on an agenda for discussion and have that discussion in public, not behind closed doors.

That's the irksome part of all this. What those who would allow these kinds of things to be done in private are saying is that, because it is a little more hassle to put a subject on the agenda and discuss it in public, we should chuck the whole concept of discussing public policy in open session and allow pols to collude behind closed doors.

The message we should be sending officeholders is this: although you apparently think that the council is your own little private fiefdom where you are a god of lawmaking unto yourself, you are, in fact, in the line of work of deciding public policy with the key word being "public." If you want to make decisions by yourself, go into the private sector and then you can make all the decision about selling your widgets as privately as you want to.

But if you want to hold public office you'd better get used to discussing public policy with that pesky public listening to the deliberations that go into your decision making.

Is that asking too much? Apparently yes.

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The following is the list of subjects to be discussed at the workshop:

1. Drug abuse prevention and treatment and interdiction of illegal drugs
2. Traffic congestion relief/multimodal integrated transportation system
3. Open space acquisition! preservation, including coastal and Mauka lands and access
thereto
4. Tourism, including sustainable tourism
5. Economic development
6. Island-wide information technology & management systems
7. County information technology & management systems
8. Agriculture & biotechnology
9. Solid waste management, Materials Recovery Facility (MRF), recycling programs, and recycling facilities
10. Military
11. Voter registration
12. 2012 State Legislative issues, including Transient Accommodations Tax (TAT)
13. Real property tax system
14. Town planning
15. Affordable housing
16. County budget; Operating and Capital Improvement Projects (CIP)
17. Containment of sprawl and protection of open spaces and vistas
18. Subdivisions, grading and drainage
19. Small businesses
20. Sustainability and sustainable communities
21. Park planning, development and maintenance
22. Planning issues; General Plan Update, Development Plans, Comprehensive Zoning Ordinance, Special Management Areas
23. Community outreach
24. Energy self-sufficiency, renewable energy, and renewable energy projects
25. County infrastructure
26. Preservation of “places of the heart”
27. Bikeways
28. Underground utilities
29. County as a model—”Walking the Talk”
30. County efficiency and cost control
31. Elderly programs & outreach
32. Youth programs & outreach
33. Timeshare
34. Bed & Breakfast and Transient Vacation Rentals regulations
35. Wastewater systems
36. Water systems
37. Public safety issues; police, fire and civil defense
38. Risk management
39. Public transportation
40. Intra-governmental relations
41. County Human Resource Management

Thursday, January 19, 2012

FORE

FORE: Back in the days of rampant resort development on Kaua`i- as if they ever ended- many of us thought that, in an attempt to keep it simple for voters, we should ask only one question of council candidates that year: "Do you play golf?"

In the 80's and early 90's it seemed like every resort- from the Hyatt at Maha`ulepu to Chris Hemmeter's Westin- depended on having a golf course to make them "viable"- or at least that's what they tried to tell the council and planning commission.

But at the time, before there were a gazillion golf courses on the island all "designed" by the top names in golf, there was what is still called "the jewel" of the county's Parks and Recreation system: the Wailua Golf Course.

It was once named one of the top municipal golf courses in the country and was not just meticulously maintained- all by one old guy with a green thumb, infinite energy and love of golf and golfers- but it broke even, paying for itself through round and cart fees and the proceeds from the "19th hole" concession.

So the council, in it's infinite wisdom, decided that since it was self-supporting it should be funded using what's called an "enterprise fund"- a separate account, set up in perpetuity for an operation that's supposed be self-supporting.

The problem is that the old maintenance guy retired and the irrigation system rusted out and the council started throwing money into things like a new drip irrigation system (that never did work right) and outside consultants.

But they never did get the same results and now the "self-supporting" golf course costs around an extra half-a-million dollars each year- subsidized from the general fund- in order to operate.

Over the past few years the council has tried everything from raising fees for each round to lowering the fees to get more people to play more rounds, especially tourists. When they tried "adjusting" the fees for local youth and seniors it caused enough of an outcry that any further thought of actually making local people pay to play golf was permanently back-burnered.

The only place to look for revenue ended up being that "19th hole"- the restaurant, bar and "pro shop."

So last spring the council was thrilled when local attorney and former Prosecutor Mike Soong and his friend, bail bondsman Darrell Horner, opened the incredibly tone-deafly-named Jailhouse Pub & Grill- so monikered because it sits across from the Kaua`i County Correctional Center.

Councilmembers proclaimed this to be just the thing that was going to save the golf course- or at least somehow save the "enterprise fund" aspect of it and maybe put a dent in the half-million dollars of taxpayer money being pumped into the "enterprise fund" every year.

Oh, why?.. didn't you hear? The Jailhouse Pub & Grill is now "officially closed" according to their phone message. The sign is gone and the door is locked. Pau already.

According to an article in the local newspaper just last May:

Late last year, Mike Soong learned the county was seeking bids to fill the space for its former bar “Par for the Course.” By February they were awarded the contract and a 7-year-lease.

Seems they didn't even make it seven months.

This whole fiasco just further shines a light on the absurd conundrum that is the Wailua Golf Course. If the county doesn't charge enough per round they will not be able to get it to break even. And if they raise the price to where it will pay for itself people, especially the tourists who pay the higher fees, will say to themselves "for that kind of money I'd rather go to one of the resort golf courses" which are meticulously maintained by the resorts- and which the resorts subsidize as they would any "essential" amenity.

The "clubhouse" was never designed to- and never will- pay for the difference between what the county can charge for a round of golf and what it costs to keep the place "well maintained," a condition that any golfer will tell you, is anything but the case these days despite millions in capital improvements and outside groundskeeping consultants. That "investment" in this "jewel" has only add to the increasing negative balance of the "enterprise fund" at a rate that makes ever catching-up impossible.

We're not sure whether it was the name or what but the quick opening and closing of the Jailhouse Pub and Grill indicates that the council's last best hope for the golf course "breaking even" was a pipe dream to begin with.

It's certainly time to, if nothing else, give up on the enterprise fund and get real with the taxpayers. Right now a handful of golfers are running the show proving that nothing really ever changes at the county building.

Maybe people don't mind throwing that half-million bucks at a run-down facility that only serves a small fraction of a population that is desperate for more recreational facilites and in severe need of money for maintaince to keep the existing ones clean and operating.

But the council needs to at least start being honest enough to ask.

Wednesday, January 18, 2012

IT'S NEWS TO ME

IT'S NEWS TO ME: It only took a decade or so, which anywhere else might be seen as a snail's pace. But here on Kaua`i when it "only" takes a dozen to get the government follow the law your first thought is that it's miraculous that they complied at all.

When a long list of nominees for various boards and commissions were scheduled for interviews a week ago Tuesday we had little hope of seeing them on television. After all, it took over five year of complaining on our part to even get the Office of Information Practices (OIP) to tell the council to end the practice of holding the interviews in secret executive sessions and then another few years for the paternalistic then-Council Chair, Kaipo Asing, to actually comply.

But it took still a few more years before the council allowed the interviews to be video-recorded claiming they didn't have the money to do so- even though they paid to caption and televise up to an hour a week of those "grip and grin" certificates and awards that they present to auntie and uncle every time they sneeze and to every sports team that came in anywhere but last in Honolulu... especially around election time.

Now, after some dribs and drabs of individual interviews interspersed with council meetings over the last year or so, the yearly appointments- and more importantly reappointments- of a slew of board and commission members was actually televised last week.

And guess what? It actually produced news of sorts, although you wouldn't know it from perusing the local newspaper, probably because you had to actually be paying attention to both the interviews and the way government works around here to find it.

The biggest news came from outspoken Planning Commissioner Jay Kimura who has ascended to chair this year. Kimura is the one who, when you watch the planning commission meetings, is continually shaking his head in disbelief over the fact that transient vacation rentals (TVRs) can be put on agricultural lands in the first place, denouncing the way the permits for all types of TVRs are approved willy-nilly regardless of compliance with the law and generally kvetching about the lack of enforcement of TVR regulations for both existing permit holders and those for who have been rejected but continue to operate.

The news is that anyone who was wondering at the time exactly what happened in executive session when former Planning Director Ian Costa left his post under investigation by the FBI can wonder no more whether he resigned or was actually fired by the planning commission.

Mayor Bernard Carvalho Jr. was certainly circumspect about the circumstances, probably because he has since "hired" Costa- or at least told his former campaign manager Director of the Department of Parks and Recreation Lenny Rapozo to hire Costa- as a deputy director under Rapozo.

During Kimura's questioning Councilmember Tim Bynum directly asked Kimura "during your tenure the planning director changed. That was a decision of the board, correct?"

Kimura simply answered "Yes."

Bynum continued the questioning as to whether Kimura was happy with the new Director, former Deputy County Attorney Mike Dahilig, to which Kimura replied that he would "rather keep my opinion to myself," even though his disgust with Dahilig's lack of enforcement and lax attitude toward TVR permitting in general hasn't been very well disguised at planning commission meetings.

But now we do know that Costa was fired- as if there was really any doubt until now in the minds of any but the most rabid of Carvalho sycophants. Oh- that and, according to Rapozo, the "fact" that state attorney general is "going over the approved 'TVRs on ag land' permits"... whatever that means.

Another bit of major news is that Board and Commission Director John Isobe has "retired" and been replaced by former state House Representative from 1992-1993, Paula Ishii Morikami (D-12th District) who is apparently now the latest politically-connected apparatchik to join the Carvalho administration.

Isobe's "retirement" has yet to be formally announced but it came up during the interview with former District Court Judge Calvin Morishige who has been nominated to be on the Kaua`i Board of Ethics.

One bit of news of sorts that Morishige made was to say, in response to questions from Councilmember Mel Rapozo, that his opinion was that county attorneys who advise boards and commissions actually do just that and only that- advise them.

"Their opinion is only their opinion- the decision is up to the board," he told the council.

Now anywhere else in the world this would not be news. But under the Carvalho administration, County Attorney Al Castillo’s opinions are to be followed blindly by all. And if they are not, board and commission members have been threatened with the withholding of county representation should they be sued for their official actions, according to a lengthy discourse on the subject by Rapozo.

This has been especially true with the Ethics Board where commissioners have actually battled deputy county attorneys to get them to change their written opinion rather than make a ruling that would treat their advise as, well, advice as opposed to a dictum.

There was probably more news but it was really hard to stay awake through all the fawning and phoney praise for both the nominees and Carvalho for his wonderful choices... alternating with the occasional grinning through gritted teeth by both councilmembers and appointees, holding back what they really wanted to say.

It kind of makes you wonder what "news" might have come up behind closed doors for all those years where they didn't have to watch what they were saying. But then again current councilmembers are new at this "conducting the public’s' business in public" stuff, especially when it comes to having to interact with those who have seen the corruption of the Carvalho administration up close and personal and then allowing them to discuss it on TV.

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(Sorry for any flubs today- our editor's computer is down.)

Friday, January 13, 2012

GOO-GOO-GA-JOOB

GOO-GOO-GA-JOOB: Apparently all is not well on the SS Minnow.

Seems the Skipper's "little buddy" went temporarily insane and deviated from the script prompting a dressing down for daring to do so on Wednesday's "episode."

It was just before lunch when the Skipper, played by Kaua`i County Council Chair Jay Furfaro, had another of his patented, blowhard, conniption fits of pomposity chiding Gilligan, played by local newspaper government reporter Leo Azambuja, for daring to write something that wasn't pre-approved by Furfaro.

Never known for his knowledge of- or adherence to- the Sunshine Law, Furfaro has continued the tradition of his predecessor, Kaipo Asing, in abusing the law to stifle discussion he doesn't like by arbitrarily and capriciously deciding that such discussions are not "sticking to the agenda item," as the law requires.

The fact that the law is supposed to be liberally construed towards openness never comes into the discussion.

So in typical fashion, Furfaro decided on Wednesday that, despite the fact that it wasn't on the agenda, he was going to discuss the appointment of long-time council "fixer," Rick Watanabe, to the position of County Clerk. And since it wasn't on the agenda he announced he was using what he calls "personal privilege"- a term invented some years ago that loosely translates to "illegal but I'm going to do it anyway" - to talk about it anyway.

Saying "I'd like to congratulate ourselves," he described a supposedly "wide search" that yielded more than 20 candidates in what he and other councilmembers praised as a process that was "historic" for its "openness," despite the fact that none of the names of the 20- nor the 5 finalists- has been or is planned on being released, making the process, for all intents and purposes, the same as always- a backroom deal discussed exclusively in closed-door executive session.

But the real howler was when, saying he had prepared a "press release" regarding the appointment, he actually chided Azambuja for having the nerve to include information that wasn't in his press release in the article in the paper announcing Watanabe's appointment.

Calling it an "editorial" Furfaro lit into "the media" saying "you should print the press release as such," and presumably no other unapproved information along with it.

Azumbuja had the nerve to point out that, before the appointment was announced, Watanabe had said he wasn't interested in the job.

Oh- and he want into a long explanation of the various salaries involved including not just Watanabe's now as County Clerk but the salary cut taken by former County Clerk Peter Nakamura who according to the article is now making $29,420 less in his new job as a "senior planner" in the planning department after he was apparently fired by the council following a series of public allegations of misconduct, a harassment lawsuit and a string of executive sessions to discuss his "job performance."

For the record Nakamura says he chose to take the new job at an almost $30,000 pay cut. Councilmembers have essentially refused to discuss the end of Nakamura's tenure saying it was a "personnel matter" and to do so would violate Nakamura's privacy.

Furfaro insisted that Watanabe had "changed his mind" about the clerk job saying "heck, even (Republican candidate for President Mitt) Romney changes his mind," chiding the media by saying he is always available for press inquires.

Furfaro has consistently refused to answer our email queries for the past three-and-a-half years.

But, being so presumptuous and pompous as to think that the press is there to be his own personal megaphone aside, the Sunshine Law violation is not just blatant but the apparent irony of Furfaro's violation in cutting off councilmembers for speaking "off agenda"- as we described above- and then claiming some kind of personal privilege to do the same, is lost on only one person- Furfaro.

In a followup to yesterdays PNN's news coverage of charges of mismanagement by and maltreatment of employees of Prosecutor Shaylene Iseri-Carvalho, we mentioned an Office of Information Practices (OIP) ruling that, a year and a half after the incident, ruled that then Chair Kaipo Asing was wrong to have cut off Councilmember Tim Bynum when he questioned Iseri in May of 2009.

We have since been directed to OIP Memo 11-7 which says that:

To the extent that Requester’s line of questioning wouhttp://www.blogger.com/img/blank.gifld have related to whether other sources of funds existed for the VOCA program so that the grant monies did not need to be used for that program, we believe that the line of questioning would have been reasonably related to the agenda item and thus would not have violated the Sunshine Law... (B)ased upon our review of the May 6 meeting minutes we believe that the nexus that Requester subsequently drew between the agenda item and his line of questioning was sufficient under the Sunshine Law to have allowed questioning reasonably related to whether other sources of funds precluded the need to apply the grant monies to the VOCA program.

We point this out because it is archetypical of the type of thing that Furfaro- despite his protestations to the contrary- has continued to allow and even use himself to stifle discussion.

Although the extent of his abuse of the provision in the Sunshine Law that says that discussions must pertain to an agenda item hasn't risen to the heights used by Asing during his notorious 2009-10 feud with Bynum over process and rules, since becoming chair upon the electoral ouster of Asing, Furfaro has, over and over, allowed Councilmember Mel Rapozo- who, along with his political ally Iseri, is a political enemy of Bynum's- to interrupt Bynum and try to stop whatever Bynum is saying that Rapozo doesn't want said in public... especially criticism of Iseri.

It all comes down to something that, on Kaua`i, has been ignored and even apparently intentionally flouted ever since council meetings have been televised when it's convenient in order to prevent certain potentially embarrassing information from reaching the public.

The Declaration of Policy and Intent- the very first paragraph of the Sunshine Law, HRS Chapter 92-1 says, in part,

The formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible. To implement this policy the legislature declares that:

(1) It is the intent of this part to protect the people's right to know;
(2) The provisions requiring open meetings shall be liberally construed; and
(3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.


If we had our druthers that statement would be made into a poster and hung on the wall in the council chambers. Or perhaps tattooed on each councilmembers forehead so that they would see it every time they looked at each other.

But rather, every councilmember has at times bemoaned the existence of the Sunshine Law, especially the part that prevents more than two of them them from discussing public policy behind closed doors.

There's a reason for that provision. It's there so that members of the public are privy to discussions that lead to the laws that govern our lives.

We have yet to hear a good explanation for why we should allow this to be done in "back rooms"- smoke-filled or not- other than that it would be "easier" and that people would be more likely to speak up if they know no one is watching.

Exactly.

Listen up elected and appointed government officials. Maybe you didn't get the memo. This is not your own private little fiefdom. It is government and you are determining public policy and people deserve to hear ALL of the thoughts and reasoning that go into your decision-making so that they can determine whether you are the one they want representing them when passing the legislation that rules their lives.

They want to know that your reasons indicate you are serving for the greater good- not for your uncle's wallet. And we want to know you can articulate how you reached your decision. As your math teach used to say: show your work.

If it is "politically embarrassing" or something you'd rather people didn't hear you say, perhaps you shouldn't say it.

It's the height of hypocrisy to cut off councilmembers for speaking "off agenda" with some obviously convoluted, strict interpretation of what the agenda item is and then claim you have "personal privilege" to talk about anything you damn well please between agenda items.

When it comes to convincing our seven stranded castaways of all this, well, let's just say it's an uphill climb.

Thursday, January 12, 2012

(PNN) PROSECUTOR ISERI UNDER FIRE FOR MISMANAGEMENT AND MALTREATMENT OF EMPLOYEES OF VICTIM WITNESS PROGRAM

(PNN) PROSECUTOR ISERI UNDER FIRE FOR MISMANAGEMENT AND MALTREATMENT OF EMPLOYEES OF VICTIM WITNESS PROGRAM; LETTER TO COUNCIL FROM LAID-OFF COUNSELOR CHARGES PROGRAM IS INEFFECTIVE, IN DISARRAY

(PNN) 17.

That's the answer usually given by former and current employees at the Office of the Prosecuting Attorney (OPA) to many of the questions as to why there are so many charges of mismanagement and ill-treatment of employees in Prosecutor Shaylene Iseri-Carvalho's office.

That's because 17 is the number of "Deputy Attorneys who had been hired and either terminated or left on their own accord from OPA" according to a scathing letter to the Kaua`i County Council by Erin Wilson, a former Victim Witness Counselor at the OPA.

Wilson's letter- which is published here in full (below at the end of this article)- was submitted as testimony on a communication at yesterday's (January 11, 2012) council meeting. The communication asked for Iseri to come before the council to discuss "the status of the Victim Witness Program and Office of the Prosecuting Attorney."

The matter was deferred for two weeks until January 25 however because Iseri submitted a letter saying she was "sick," according to Council Chair Jay Furfaro.

The issues Iseri will discuss in two weeks, according to the agenda, include:

1) Case backlog caused by furloughs.
2) Funding - how utilized and whether sufficient to address concerns.
3) Levels of staffing and level of service for the Victim Witness program.
4) Caseload open, closed and pending


The issue dates back to May 6, 2009 according to Councilmember Tim Bynum when Iseri was summoned to appear before the council to answer the same questions but never did because, Bynum said the minutes of that meeting show, he was cut off from his line of questioning by then Council Chair Kaipo Asing.

Asing claimed Bynum's questioning of Iseri was a Sunshine (open meetings) Law violation because it was off the subject of the agenda. However according to Bynum, more than a year later the Office of Information Practices (OIP), which oversees the Sunshine Law, ruled his line of questioning did not violate the law.

Bynum famously feuded with Asing over many matters of council process and rules during Asing's tenure and is currently involved in a well-known, long-standing feud with Iseri dating back to her days on the council with Bynum.

Until yesterday the latest chapter in the conflict has been what Bynum claims is his malicious, first-of-its-kind prosecution by Iseri for a permitting violation, apparently spurred by Bynum having had a rice cooker in a family room of his home which, Iseri claims, is a zoning violation because technically, with the presence of a sink, it created a unpermitted separate living unit.

Wilson spoke of the number "17" by saying:

After asking many employees at OPA why the delay on the above referenced case and others I had been assigned to, I was consistently referred to one number...17. This number was significant because there had been 17 Deputy Attorneys who had been hired and either terminated or left on their own accord from OPA. 17 was a significant number because the prosecutor’s office is a relatively small office to begin with. 17 was a significant number because all of these 17 former employees had left the office since the current OPA Leadership was elected into office. Most importantly, 17 was a significant number because it answered some of my questions about why a large backlog of cases had either sat for long periods of time without victims being contacted, defendants being indicted, or passed on from deputy to deputy through the revolving door at OPA.

Some of the allegations in Wilson's letter are that:

- NOTHING could be done without the direct approval and oversight of the elected prosecutor. In fact, office staff received an email from the Prosecutor’s Office leadership, stating that staff was not to send emails to any outside agencies unless discussed with the OPA leadership prior to sending. Furthermore, OPA Leadership asked to be cc’ed on all other emails to outside agencies.

- The process by which OPA would receive completed investigations and then assigned to the appropriate Deputy and Victim Witness Counselor was ambiguous. The time frame with which the assignment would take place was even more vague and varied week to week. Sometimes cases would be reviewed by the Prosecutor and assigned to a Deputy Attorney and Victim Witness Counselor right away. Other times, as I found out with my caseload, would take months upon months before even being assigned to a Deputy or Counselor for any action to be taken.

- In a letter to County Council dated January 19, 2011 regarding furloughs, the Elected Prosecutor, Shaylene Iseri-Carvalho, states that as a result of furloughs,

'OPA, the sole agency to file the criminal documents with the court and/or prepare for hearings, wasn’t able to accomplish its duties in a number of cases because there was insufficient staff to prepare them in an expedited and timely manner.'

I beg to differ. I would suggest instead, it is the constant revolving door of employees that has caused a tremendous backlog of cases at OPA. Even the office letterhead is constantly changing and currently reflects that about half of the Deputies that were listed on the above referenced letter, dated January 19th, 2011, have left OPA within the past year. All, I would suggest, to the detriment of Kauaiian families and community.

- The elected prosecutor demoted the former Victim Witness Director, Diana Gausepohl-White and effectively eliminated the Director position altogether. What did this mean for the Victim Witness program? It meant that our Victim Witness program no longer had a leader in Victim Witness services to provide oversight of day to day operations and management of the program. It also resulted in drastic changes in the scope of services that Victim Witness Counselors were allowed to offer... After the Victim Witness Director position was eliminated, these components of our comprehensive program diminished or ceased to exist.

- The current OPA Leadership also promotes the perception that Victim Witness Counselors have little importance within the office and are perceived as such by many of the attorneys, clerks, and other staff at OPA.

- I am no longer employed with the Prosecutor’s Office as I was informed on November 9th that I was being laid off and my position as Victim Witness Counselor was being eliminated from the office due to “lack of work”. This “lack of work” described in the letter that OPA gave me is in stark contrast to the much needed Victim Witness Counselor that the elected prosecutor requested monies for, in her letter (just a few months ago) to County Council dated June 13th, 2011. Despite this “lack of work” the office has hired several people including a Receptionist, a Process Server, two (2) Law Clerks, and a Law Office Assistant position which was created for the previous Secretary--all since my last day of employment, November 23rd, 2011. Furthermore, OPA has done nothing to preserve my employment despite that the County of Kauai Employee Handbook (page 17) Layoff Policy states that they will give 90 days’ notice prior to instilling a Reduction in Workforce or Layoff. I am certain that the victims who call OPA on a daily basis requesting an update on their case status or the victims of the most recent surge of crime on Kauai, could have used the services I provided as a Victim Witness Counselor.


At yesterday's meeting, while Bynum was trying to give the history of the issues being aired before the council and the Asing/Sunshine Law/OIP matter, Councilperson Mel Rapozo, famously an extremely close ally and employee of Iseri's, tried to stop Bynum from speaking by claiming the statement he was making violated the Sunshine Law, interrupting Bynum twice and appealing to Furfaro to stop Bynum.

After getting huffy at the notion that he was being accused of ducking the issue- even though Bynum said no such thing- Furfaro allowed Bynum to finish his statement.

Rapozo serves summonses for Iseri's office despite a ban on councilmembers doing more than $500 worth of work for the county. He and Iseri have thus far successfully circumvented the provision by breaking the contracts up into parcels of less than $500 each and also have claimed that Rapozo is the only one on the island who can do the work based on the fact that no one else bid on it.

Part of the intent of the law is to make sure that councilmembers cannot use their power to intimidate others from bidding on a contract upon which the councilmember is bidding.

Council Vice Chair JoAnn Yukimura- who sent the communication to the council requesting Iseri's presence- referred to Wilson's letter and asked that staff contact former Victim Witness Director, Diana Gausepohl-White and request that she be present to testify at the January 25 meeting.

Iseri is up for reelection this year and will face current Deputy County Attorney with the Kaua`i Police Department, Justin Kollar.

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Erin Wilson's letter to the Kaua`i County Council


Date: January 10, 2012

To: Jay Furfaro, Chair
Joann Yukimura, Vice Chair
Tim Bynum
Dicky Chang
KipuKai Kuali’i
Mel Rapozo
Nadine Nakamura

From: Erin Wilson, Former Victim Witness Counselor at OPA
Re: Council Meeting Agenda Item C 2012-08

First of all let me say thank you for your time and providing an opportunity for public comment on the Office of the Prosecuting Attorney (OPA) and Victim Witness Program (VWP) at your meeting today. I believe my circumstance is unique to any other and I appreciate the opportunity to share some of my experiences with you in hopes that you will consider what I have to say as an opportunity to improve services at OPA and the Victim Witness Program.

I am a single mom who moved to Kauai in August 2011 from Colorado with my 6 year old son because I was offered a position as a Victim Witness Counselor at the Office of the Prosecuting Attorney. This was in my mind, a dream job, where I could use my passion for helping others, advocating for victims of crime. Within a few days of working, I was assigned to work on the most serious of crimes including murder, negligent homicide, assault, robbery, theft, etc. In this position, my responsibilities included making contact with victims to find out how they were coping, finding out what their needs are, helping victims apply for Crime Victim Compensation, finding local resources, getting victims registered for SAVIN (a victim notification system), and let victims know about other civil remedies. Most importantly, my job was to listen to our victims.

I quickly learned at OPA that NOTHING could be done without the direct approval and oversight of the elected prosecutor. In fact, office staff received an email from the Prosecutor’s Office leadership, stating that staff was not to send emails to any outside agencies unless discussed with the OPA leadership prior to sending. Furthermore, OPA Leadership asked to be cc’ed on all other emails to outside agencies. I was very surprised by this as I had not worked in such an environment where communication with related agencies (agencies we interface with) was restricted in such a manner.

The process by which OPA would receive completed investigations and then assigned to the appropriate Deputy and Victim Witness Counselor was ambiguous. The time frame with which the assignment would take place was even more vague and varied week to week. Sometimes cases would be reviewed by the Prosecutor and assigned to a Deputy Attorney and Victim Witness Counselor right away. Other times, as I found out with my caseload, would take months upon months before even being assigned to a Deputy or Counselor for any action to be taken.

In one case that was assigned to me, there were several victims of a violent crime. Prior to making initial contact with the victims, I reviewed the police reports so as to be fully prepared when I contacted the victims and their families, being fully aware of what happened. What I was unable to prepare for was the anger and frustration these families felt when I met with them the first time in our office and learned that after 17 months, I was the first person to contact them from the Prosecutor's Office. In those 17 months, none of the victims or their families had been contacted by anyone at the Prosecutor’s office to offer condolences (there had been a death resulting from the crime) or inform the families about their rights to Victim Witness services, Crime Victim Compensation, or any other related community services that they were entitled to. It was not that the Deputies or Victim Witness Counselors were not working hard on their caseloads, but rather, the victims’ receipt of services could have occurred much earlier in this case and many others, had the case(s) been assigned by OPA Leadership in a timelier manner. Many of the cases I came across had sat waiting for screening and prosecution or declination for long periods of time. Cases had sat for so long that in some situations, the statute of limitations had run out on certain counts of crimes and the defendants could no longer be charged, leaving victims helpless.

After asking many employees at OPA why the delay on the above referenced case and others I had been assigned to, I was consistently referred to one number...17. This number was significant because there had been 17 Deputy Attorneys who had been hired and either terminated or left on their own accord from OPA. 17 was a significant number because the prosecutor’s office is a relatively small office to begin with. 17 was a significant number because all of these 17 former employees had left the office since the current OPA Leadership was elected into office. Most importantly, 17 was a significant number because it answered some of my questions about why a large backlog of cases had either sat for long periods of time without victims being contacted, defendants being indicted, or passed on from deputy to deputy through the revolving door at OPA.

In a letter to County Council dated January 19, 2011 regarding furloughs, the Elected Prosecutor, Shaylene Iseri-Carvalho, states that as a result of furloughs,

“OPA, the sole agency to file the criminal documents with the court and/or prepare for hearings, wasn’t able to accomplish its duties in a number of cases because there was insufficient staff to prepare them in an expedited and timely manner.”

I beg to differ. I would suggest instead, it is the constant revolving door of employees that has caused a tremendous backlog of cases at OPA. Even the office letterhead is constantly changing and currently reflects that about half of the Deputies that were listed on the above referenced letter, dated January 19th, 2011, have left OPA within the past year. All, I would suggest, to the detriment of Kauaiian families and community.

There was another significant factor that limited the scope of Victim Witness Services at OPA. The elected prosecutor demoted the former Victim Witness Director, Diana Gausepohl-White and effectively eliminated the Director position altogether. What did this mean for the Victim Witness program? It meant that our Victim Witness program no longer had a leader in Victim Witness services to provide oversight of day to day operations and management of the program. It also resulted in drastic changes in the scope of services that Victim Witness Counselors were allowed to offer. For example, before the Director position was eliminated, the VWP offered services such as Outreach programs, crime scene support upon request, alliances with multiple community agencies. After the Victim Witness Director position was eliminated, these components of our comprehensive program diminished or ceased to exist. Another downfall to eliminating the Director position was the inability to maintain relationships with agencies that the VWP interfaces with on Kauai, in the state of Hawaii (ex. Victim Witness Coordinator meetings) as well as nationwide organizations such as National Organization for Victim Advocacy (NOVA). These former relationships made our Victim Witness program at the Prosecutor’s Office stand out among others in the Pacific region.

Losing the Victim Witness Director at OPA, we also lost accountability for an equitable distribution of workloads among the Counselors. For example, each Counselor is assigned to certain types of cases such as Property, Crimes Against Persons, Firearms, etc. without regard to the intensity of the case or the needs of the victims and witnesses. The current OPA Leadership also promotes the perception that Victim Witness Counselors have little importance within the office and are perceived as such by many of the attorneys, clerks, and other staff at OPA. For example, in one conversation I had with a Deputy Attorney at OPA, two Victim Witness Counselors were referred to as “worthless.” In a separate conversation I had with a Prosecutor, it was stated that ‘Victim Witness Counselors were not needed because deputy attorney’s already make contact with their victims, without the help of a Counselor.’ Based on my experience working at OPA, I disagree. Furthermore, the notion that the Deputy Prosecuting Attorneys have the same job responsibilities as a Victim Witness Counselor, is misleading.

Other responsibilities of the Victim Witness Director that also took a backseat included the onboarding of new Counselors, ongoing training of new skills, knowledge of trends in the field, and ensuring that advocates took turns attending national conferences.
I am no longer employed with the Prosecutor’s Office as I was informed on November 9th that I was being laid off and my position as Victim Witness Counselor was being eliminated from the office due to “lack of work”. This “lack of work” described in the letter that OPA gave me is in stark contrast to the much needed Victim Witness Counselor that the elected prosecutor requested monies for, in her letter (just a few months ago) to County Council dated June 13th, 2011. Despite this “lack of work” the office has hired several people including a Receptionist, a Process Server, two (2) Law Clerks, and a Law Office Assistant position which was created for the previous Secretary--all since my last day of employment, November 23rd, 2011. Furthermore, OPA has done nothing to preserve my employment despite that the County of Kauai Employee Handbook (page 17) Layoff Policy states that they will give 90 days’ notice prior to instilling a Reduction in Workforce or Layoff. I am certain that the victims who call OPA on a daily basis requesting an update on their case status or the victims of the most recent surge of crime on Kauai, could have used the services I provided as a Victim Witness Counselor.

I request of you today, to re-evaluate the Victim Witness Program and consider that victims are not being served in this community in the full scope that they should be served, due to the changes and restraints that the elected prosecutor is putting on the Counselor’s abilities to communicate with local agencies and organizations, conduct outreach to victims, and serving victims in a timely manner through the prosecution of crimes. I believe that the County of Kauai has excellent resources to support the victims of our community. My hope is that my words will be a starting point for restoring the full scope of the Victim Witness Program back to its intended purpose for our victims, community, and ohana.

Sincerely,

Erin Wilson

Tuesday, January 10, 2012

SILENT BUT DEADLY

SILENT BUT DEADLY: We're old enough to remember when there were still "water closets"- those big boxes installed way up on the wall above toilet bowls that, when you pulled the chain, released a torrent of water so noisy that everyone in the restaurant had to pause conversation until the sound of the flash flood had subsided.

When the W/Cs were removed, their replacements were still loud but at least they weren't conversation halters. And now of course we have the ultra-silent modern toilets that barely make a sound.

But for the most silent flush of all, you had to attend last Wednesday's Economic Development Committee meeting of the Kaua`i County Council.

For those who are new to these pages, it was all part of the latest "Gush and Flush" as we've come to call them- sessions where councilmembers fall all over themselves to throw money at Kaua`i Visitor's Bureau and associated events, first gushing over what a great job Director Sue Kanoho is doing and then promising to flush another hundred grand or so down into the cesspool of tourism promotion.

No matter what the economy has done to our "biggest industry" in recent years- biggest only if you count all the money that never sees the shores of Kaua`i- it's always a wonder to behold what a great job Kanoho has done with the money the council appropriated, even though there has never been a verified connection between each flush and the council's subsequent gush.

Two years ago Kanoho told the council how "down is the new up" followed by "flat is the new up" last year. And of course with occupancy up and numbers of direct flights to Kaua`i increasing, Kanoho and her county overseer, Economic Development Chief George Costa, were all too ready to breath in the wondrous air of success even though they, as always, couldn't show any correlation between whatever the figures are and the taxpayer money spent on promotion.

And, as they are wont to do, the council couldn't contain themselves at the election-year-news that their foresight in appropriating the money was rewarded with such rousingly successful promotions.

The council of course knows someone is watching occasionally so this time they conveniently failed to post the agenda on-line until the Monday before the meeting so that not only wasn't the agenda item in the local newspaper but those who get the agenda via an emailed link didn't get it until Tuesday. That meant that nitpickers Glenn Mickens and Ken Taylor, who have been trying to publicly point out all of this for years, didn't even know there was a meeting much less the subject of it.

There was one attempt to counterbalance the obscene self-congratulatory proceedings by Gusher-In-Chief, Councilperson JoAnn Yukimura, who asked for proof that increases in occupancy were somehow correlated with the million dollars in "stimulus money" the council threw at KTA over the last couple-a few-years or so.

And, as if Yukimura didn't know the answer, Kanoho was all too happy to inform her that those numbers were "proprietary."

"So I shouldn't be happy to see high occupancies because they aren't real?" asked Yukimura.

Kanoho hemmed and hawed and was about to launch into one of her patented ebullient doubletalk explanations when Yukimura baled her out to let her know that she was only questioning the occupancy numbers because they had to be accurate or any semblance of validity for purposes of the newly-enforceable general plan- due for update this or next year- would be a joke.

Well, at least she seems to have a firm grasp of the obvious.

Usually one gush and flush is enough for one day but since they had gone to all the trouble of making sure no one knew what was on the agenda, they also revisited the cash they have been throwing at The Kaua`i Marathon for many years... money that, we were apparently assured at the last meeting, wouldn’t be forthcoming anymore.

Anyone expecting what was said six months ago by councilmembers to be repeated again without someone sitting there at the testimony table and reminding them of it was sorely disappointed. Apparently, the $120,000 that was off again, on again, off again is now on again, pending approval at budget time when the appropriation won't stand out like a sore thumb among all the rest of the cash thrown at the county's woes.

Actually- and we're somewhat guilty of burying the lede here- there was a bit of news from the meeting from Councilmember Mel Rapozo who somehow got to bring up the subject of the Wailua Golf Course. Unbelievably enough, in the year 2012, they don't take credit cards.

Yet increasing the number of rounds played by tourists has been the focus of the council and administration for a decade as the amount of taxpayer money the county has had to use to subsidize the supposedly self-sustaining golf course has grown almost every year in that time to around a half-million bucks in this year's budget.

Rapozo pointed out how many, himself included, use ONLY credit cards when they travel and don't ever use ATMs because they doesn't trust them.

Kanoho then announced that the county had finally, at great expense, gotten an ATM machine at the course. But that doesn't help people who want to book a round from the mainland and it really doesn't help those without a debit card because the amount charged for a "cash advance" on credit cards can be exorbitant.

Kanoho at first claimed that they now take credit cards only to be told by Rapozo that staff had called that very morning to verify that credit cards were still not welcome at the golf course.

The way the gush and flush works best is when no one bothers to challenge it. Only then does the modern silent toilet work to cover-up the stench of the way we throw money at tourism without any indication it does thing-one to bring more visitors here... assuming indiscriminate urging of Kaua`i visitation is what we want in the first place rather than cultivating a niche in a directed, precise- and of course verifiable- manner.

There's a well known hoax that claims that the flush commode was invented by a man named Crapper. But those who think that's the biggest lie in potty history have never been to an economic development session of the Kaua`i County Council.

Thursday, January 5, 2012

YOU CAN'T GET THERE FROM HERE

YOU CAN'T GET THERE FROM HERE: "Math is hard" as the talking Barbie told us a decade or so ago to maker Mattel’s chagrin after the backlash by those concerned that the message that it sent to young girls was that it's okay to throw their math homework under the bus if they found it a little difficult- that and the fact that it's expected they would find it too arduous because, well, they are "only girls."

But when it comes to not following the law because it is "too hard" it's not usually an excuse for non-compliance. The defendant who claims it was tough not to kill his next-door neighbor because "he needed killin'" doesn't usually stand much of a chance in court.

But then those who think difficulty in following the law makes flouting it a bad idea have probably never been to Hawai`i where, more often than not, even the judges find degree of difficulty an excuse for being lenient.

So it was that, baffling to almost everyone, the Hawai`i state Reapportionment Commission came back with a plan last year that said that, despite the fact the Article IV Sect 4 of the Hawai`i State Constitution explicitly banned the use of non-residents in setting the boundaries of state legislative districts, they would include them because to exclude them was just way too hard.

When the Hawai`i Supreme Court ruled unanimously yesterday that the commission needed to redraw the districts with the constitution in mind it was indeed stunning when, according to the pay-walled Honolulu Star Advertiser "former state Judge Victoria Marks, the commission's chairwoman, said the panel will come up with a new plan, but said it is unclear how many non-permanent residents will be excluded."

Uh Virginia, apparently the number is... um, carry the seven... er, divide by negative eleven...ALL OF THEM.

But the quote that followed was, if possible more "in your face, Supreme Court." The article says that:

(Marks) said if the commission follows two proposals eliminating about 73,000 and 80,000 non-permanent residents, it could come up with a new plan quickly.

But if the commission cannot adopt those numbers or must consider the figure of 120,000 non-permanent residents the challengers request, it would be like "starting completely anew" and could pose problems meeting deadlines for this year's election.

Stunning indeed. Not only has the former judge decided that it would take a supreme court ruling to get her to follow the law but that she still apparently will be taking on the disgraced Barbie persona by trying to finagle non-compliance with a "math is hard" excuse.

For those who have failed to follow the issue, it's not a differentiation without a difference. O`ahu has enough military and students to give them an extra senate district that, if the constitution were to be respected, would otherwise go to the Big Island.

The deadline for commission action is February 1 when, by law, pols are supposed to be able to "pull papers" for office... assuming there is a list of offices for which they may run.

Sometime you've got to wonder. Unless you've lived in the islands long enough to just throw up your hands and decide that wondering itself is just too damn hard.

Wednesday, January 4, 2012

YOU DON'T HAVE TO GO HOME BUT YOU CAN'T STAY HERE

YOU DON'T HAVE TO GO HOME BUT YOU CAN'T STAY HERE: We could say we've been lazy. We could say we've been spending mornings writing other things. We could say that there's no politics going on with everyone away on vacation.

Anything to avoid one of our least favorite of journalistic foibles- reporting that "nothing happened" yesterday.

It's usually best expressed by the TV reporter doing a "remote" from the scene of the big traffic accident and telling the anchor that "nothing's going on right now" sweeping her arm, pointing out all the "nothing" behind her.

"But you should have seen it a few hours ago." Yes- we should have. But you're not showing us that. You're standing there showing us a big bunch of "nothing" because, well, it's TV and everyone else does it.

Then there's the cub reporter who comes back to the editor and with a lede of "Nothing happened at the council meeting today."

"Nothing?" the editor asks, before eliciting the fact that indeed "something" happened- the story behind why nothing "happened."

But our award today goes to our favorite whipping boys and girls at the local newspaper, this time in the personage of Sports Editor Tyson Alger who, even though arguably not a true "news" reporter, could be expected to have some idea of the journalistic precept of reporting the news in an active way... even if the story itself is nothing to write home about.

Of course we can't expect Renée Haines, the new editor at the local paper, to start actually reading the copy that goes into her publication. It's apparently too much of a tradition to allow unfiltered- and unedited- copy to appear in the paper's pages.
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And so it was that when Alger was assigned this week's "Talk Story"- the local version of the "man on the street/question of the week" piece of pap/filler he decided that satisfactory answers to "Did you make a new years resolution?" include "no."

As a matter of fact, all four of them were essentially "no," the answers reading:
“I forgot to do one this year.”
“Nope.”
“I didn’t this year because I never keep them.”
“I haven’t done one because I’ve been busy traveling.”

We especially like the last one as if somehow resolutions made while traveling are exempt from taking effect when you return.

It appears that it's just the ultimate form of laziness... either that or Tyson was obviously pissed at getting the assignment and so instead of either pushing his subjects- or finding people who DID make a resolution- he came back with a report that "nothing happened."

So don't complain that we've neglected this space in favor of trying to work on a long-form tome some mornings; after four years (this month) at this we could always tell the same story again or get back up on an all-too-familiar soapbox that even those who agree with us are weary of.

Just be glad we didn't just say that nothing happened... or at least we found a cute way to say it.