SAY NO MORE; I CAN SAY NO MORE: Incomprehensible.
The word can apply to any number of things - if not most anything- when it comes to government and politics on Kaua`i. Usually it can be used to describe the account of council meetings when the local newspaper's Leo Azumbuja sets digit to keyboard.
But in the case of his Thursday account of Wednesday's Committee of the Whole meeting- one held to "fix" an imbalance in the county's budget- one can give poor Leo a pass because his unintelligible account was only slightly more unintelligible than the meeting itself.
Don't bother to watch the meeting in order to try and find out what happened to cause the council to give preliminary approval to bills 2241 and 2242 in an attempt to rectify the fact that the county's budget apparently isn't balanced- or for that matter in order to figure out why no one knew it wasn't balanced until well after it was passed- or for that matter how much is- or isn't- "missing," depending on who you ask.
All the words were there- spoken at the meeting and dutifully reported by Azumbuja: "encumbrances"... "a million dollars"... "capital improvement"... "administration"... "adolescent drug treatment center"... "budget deliberation process." It's just that neither watching nor reading put them in any sensible and coherent order so as to tell the story of what the heck was going on.
It took a few days and talking to a few sources close to county government to figure out the whole story but here's what the whole meshugaas was apparently about.
Seems that the long anticipated and even longer delayed adolescent drug treatment center was funded (again) as part of the county's recent bond float. But actually locating and designing the facility has been a political football that was one of those "now you see it now you don't" items in this year's capital improvement project (CIP) budget.
A couple-or-few years back when Mayor Bernard Carvalho Jr. finally (again) "told" the community where it was to be located, those in the Lihu`e residential area of Isenburg Tract- a predominantly Japanese neighborhood named for a German family that was voted off the island after World War 1- didn't take too kindly to the announcement and took a decidedly NIMBY attitude toward it.
So to oversimplify a long story and make it short on top of that, when this year's budget was on the table, the council either (depending on who you talk to) told the mayor, or wrote it in the budget document that the mayor couldn't actually "encumber" the money until the council actually saw the plans for the center including a buy-in by the Isenberg residents.
Encumbering the money is a process whereby the actual dollars are, for lack of a better word, reserved for the specific project by the administration. At that point, it is, for all intents and purposes, considered spent.
And apparently that's exactly what the mayor did- encumber a half a million dollars for "phase one" of the project which included sighting and design.
So even though the council had told him not to do anything until hizzonah came back to them with "da plan"- and that meant before he encumbered the money- he decided to do it anyway. In other words even though the money was in the bond fund, it wasn't in the budget to be "encumbered" in the first place.
It's hard to say what the legality of all this is. County Attorney Al Castillo refused to say anything in open session even though Council Chair Jay Furfaro swore up and down the charter that nothing illegal happened- that even though the county charter says the budget must be balanced and quite obviously this year's budget wasn't. And even though the mayor "spent" the money that wasn't there. And even though during a recent debate current Prosecuting Attorney Shaylene "Go to your homes- nothing to see here" Iseri-Carvalho- who is running what looks like a losing battle for re-election- has sworn she will prosecute a million dollar theft of county money.
Castillo also warned the council not to talk about the adolescent drug treatment center because somehow it wasn't "on the agenda."
Supposedly the two bills will put the money where it belongs and everyone will live happily ever after.
According to the newspaper article the mayor's mouthpiece, Beth Tokioka, has seemingly blamed the council saying “(t)he imbalance was caused in part by errors in Mayor Bernard Carvalho Jr.’s March 15 initial and May 8 supplemental budget submission, which were not detected and addressed during the budget deliberation process.”
No one particularly wants anything to be perfectly clear because this is an election year and each councilmember's political ass is on the musical chairs line- one that's due to leave two people without seats when the music stops on November 6.
They're just lucky to have Azambuja on the job to make sure that the lack of any clarity and acumen at the meeting was reported with Leo's usual lack of grasp of the matter at hand.
Don't ya just love this town?
Showing posts with label Al Castillo. Show all posts
Showing posts with label Al Castillo. Show all posts
Monday, September 3, 2012
Sunday, July 1, 2012
(PNN) OIP RULES ASING HELD '09 EXECUTIVE SESSION ILLEGALLY; MEETING WAS KEY IN CHALLENGE TO ABUSE OF POWER CHARGES AGAINST FORMER CHAIR WHICH LED TO H
OIP RULES ASING HELD '09 EXECUTIVE SESSION ILLEGALLY; MEETING WAS KEY IN CHALLENGE TO ABUSE OF POWER CHARGES AGAINST FORMER CHAIR WHICH LED TO HIS OUSTER.
(PNN) A key Kaua`i County Council Executive Session (ES) held more than two years ago was not "allowed under the Sunshine Law," according to a "Memorandum Opinion" issued by the Office of Information Practices (OIP) on Friday (June 29, 2012).
The June 4, 2009 ES was a major skirmish in the war between former Council Chair Kaipo Asing and Councilmembers Tim Bynum and Lani Kawahara over Asing's secrecy and dictatorial rule- a war which led eventually to the end of Asing's decades long political career when he was unseated in the 2010 election.
The opinion stated that:
In appropriate circumstances, a board may go into an unanticipated executive session with its attorney to discuss its ability to add an item to its agenda, so long as the board does not discuss the underlying item proposed to be added. See HRS § 92-5(a)(4) (Supp. 2011).
However, given the length of the executive session and the fact that the County Attorney publicly announced his advice on whether the proposed item could be added to the agenda by vote, OIP infers that the discussion was not limited to advice on that legal question. Because the Council failed to rebut that inference by explaining what discussion occurred during the executive session and why it properly fell within an executive session purpose, and failed to provide any evidence or arguments to meet its burden to justify the executive session, OIP cannot find that the executive session was allowed under the Sunshine Law.
As PNN reported on June 5 2009 the OIP had previously warned that holding such an ES would be a violation of the state open meetings or "Sunshine Law" (HRS 92). In the article PNN also detailed issues over Asing's abuses of power according to essays by Bynum and Kawahara. The essays were posted at their kauaiinfo.org web site which the two used to post documents and information on Asing's penchant for secrecy and, in the dust-up at hand, his use of ambiguous council rules to block Bynum from introducing measures before the council.
The opinion itself says that:
Requester (Bra Parsons) asked for an investigation into whether the Kauai County Council (Council) violated the Sunshine Law by holding an executive session to discuss a motion to add an item to the agenda for its meeting held on June 3, 2009 (the Meeting). Unless otherwise indicated, this opinion is based solely upon the facts presented in Requester’s e mail correspondence dated June 4, 2009 and attached materials. Although OIP requested the Council’s position on Requester’s complaint, including a detailed explanation of the events in question, in letters dated June 5 and December 2, 2009, the Council did not submit its position or any factual explanation of the events. OIP thus takes the factual accounts in materials submitted by Requester, and any reasonable inference therefrom, as uncontested. Requester relied primarily on the facts presented in an article in The Garden Island newspaper: Michael Levine, Following the Rules.
Levine's article, upon which OIP attorney Jennifer Brooks said she based most of the opinion, describes the meeting, saying:
With the only two avenues of adding an item to the agenda — with Asing’s initial or through a floor motion — effectively closed off, Asing, who finished fourth in voting in November’s election behind Vice Chair Jay Furfaro, newcomer Derek Kawakami and Bynum, has essentially vested in himself a preemptive veto power even surpassing that held by Mayor Bernard Carvalho Jr. in that Asing’s decisions cannot be overridden by a supermajority vote and that his decisions are shielded from public view.
After Bynum made the motion at the outset of Wednesday’s meeting, Asing moved the discussion to the end of the agenda.
Five hours later, after dealing with the six-page agenda, Asing said Section 92-7(d) of the Hawai‘i Revised Statutes precluded the council from voting on or even discussing Bynum’s resolution because it is of “reasonably major importance and action thereon by the board will affect a significant number of persons.”
Bynum provided to his fellow council members and the public a May 15 e-mail correspondence between himself and state Office of Information Practices staff attorney Jennifer Brooks in which she told him his proposed resolution “does not appear to be of reasonably major importance or to affect a significant number of people” and “appears suitable to be added to the agenda by a 2/3 vote, and the council would be acting in good faith in so adding it.”
Castillo said the unanticipated matter should be discussed in executive session to protect the council from potential liability. After a 5-2 vote approving the secret session — Bynum and Lani Kawahara dissented — the council closed its doors for about an hour.
When it reconvened, Castillo told the council “the proposed resolution encroaches upon the duties of the chairman as the presiding officer of the council. Therefore it is of reasonably major importance. The way that the council is run affects all of the people in this county.”
“The people of Kaua‘i did not have an opportunity to know what was placed on the agenda. That’s the reason for the Sunshine Law,”Castillo said, adding that there are rules in place to govern how much time must elapse between the public posting of the agenda and the meeting to which it applies.
After Asing called the meeting back to order and ended discussion by quickly adjourning it to comply with Castillo’s advice, the chair was asked if there were plans to include Bynum’s resolution on the agenda for the next meeting.
“No,” he said.
When asked if there was any reason why it would not be, as there is now enough time to bring the council into compliance with the Sunshine Law by posting the agenda item in advance of the June 16 meeting, Asing said, “Nothing especially.”
“I am just following the rules of the council,” he said.
Readers can access additional PNN coverage of the matter via Parx News Daily archives from 2009. Some key posts include:
Tuesday, June 9, 2009: (PNN) OIP OPENS INVESTIGATION OF COUNCIL’S EXECUTIVE SESSION ON DENYING AGENDA ACCESS TO COUNCILMEMBERS
Wednesday, June 10, 2009: DON’T LET GO, DON’T LET GO
Thursday, June 11, 2009: DARKNESS, DARKNESS
Friday, June 12, 2009: ON AND ON, ON AND ON, ON AND ON
Monday, June 15, 2009: A DAY AT THE RACES
Wednesday, June 17, 2009: (PNN) KAWAHARA, BYNUM OUTMANEUVER ASING, NAKAMURA; DISCUSSION OF RULE CHANGES PUT ON FUTURE AGENDA.
Thursday, June 18, 2009: SAME OLD DOG, SAME OLD TRICK:
Because the OIP opinion is not (yet) available on line we are posting the entire "Statement of Reasons for Opinion" below:
Requester asked for an investigation and enforcement action against the Kauai County Council based on various news reports of the Meeting. Specifically, Requester questioned whether the Council’s executive session held to discuss a motion to add an item to its agenda was proper under the Sunshine Law.
At the time of the Meeting, the Council’s Rule 10 allowed any member to introduce any bill or resolution, but required bills and resolutions to be initialed by the Council Chair before being placed on an agenda. Certain members complained that the Council’s then-Chair would not initial bills and resolutions they requested, thus preventing those items from being placed on the Council’s agenda. One of the members thus affected, Tim Bynum, brought a motion during the Meeting to add to the Meeting’s agenda a resolution to amend Rule 10 to clarify that the Council Chair could not use the initialing requirement to indefinitely postpone hearing bills or resolutions requested by a Council member. The Chair moved discussion on Mr. Bynum’s pending motion to the end of the Meeting’s agenda.
When the Council reached the end of its agenda five hours later, the Chair, supported by County Attorney Al Castillo (County Attorney), stated that Mr. Bynum’s motion to add a resolution clarifying Rule 10 to the agenda could not be voted on because the issue was of reasonably major importance and action thereon would affect a significant number of persons. Mr. Bynum responded by sharing an e-mail dated May 15, 2009, from OIP Staff Attorney Jennifer Brooks, which advised that the proposed resolution did “not appear to be of reasonably major importance or to affect a significant number of people,” that it “appear[ed] suitable to be added to the agenda by a 2/3 vote,” and that the Council “would be acting in good faith in so adding it.”
The County Attorney then advised the Council, which still had not voted on the motion to add an item to its agenda, to discuss the motion in executive session to protect the Council from potential liability. The Council voted 5-2 in favor of going into executive session, apparently for the purpose of consulting with its attorney, and then went into a closed session for about an hour. When the public meeting reconvened, the County Attorney announced that “the proposed resolution encroaches upon the duties of the Chairman as the presiding officer of the Council. Therefore it is of reasonably major importance. The way that the council is run affects all of the people in this County.” The meeting was adjourned shortly thereafter, with no vote having been taken on the motion. As an initial matter, OIP notes that the e-mail setting forth OIP’s advice did not put the Council under any obligation to add the item to its agenda. An item may be added to a filed agenda only with “a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons.” HRS § 92-7(b) (Supp. 2011). Thus, even if an item was qualified to be added to a Council agenda because it was not of reasonably major importance and action on it would not affect a significant number of persons, the Council’s failure to add the item to its agenda would not violate the Sunshine Law because it was up to the board to decide whether to add the item, and there was no vote to do so. OIP further notes that the c-mailed advice given to Mr. Bynum is consistent with the informal advice OIP has given in other situations regarding a board’s ability to add an alteration to the board’s internal procedures to an agenda by vote: the persons affected by a change to the Council’s rules regarding a member’s ability to place an item on the agenda would be only the nine Council members, who do not represent a significant number of persons when compared to the Council’s entire constituency.
Requester argues that the Council’s filed agenda stated that the Council can hold an unanticipated executive session “on any agenda item,” and based on that, Requester questions whether the executive session was proper when the issue being discussed was not an agenda item itself but instead was whether the Council could place an item on the agenda. The Sunshine Law anticipates that items may be added to an agenda and that an executive session not anticipated in advance need not be listed on a board’s agenda. $HRS § 92-7 (providing that notice of an executive session necessary only “when anticipated in advance” and explaining the requirements for adding an item to an agenda that has already been filed). Moreover, while section 92-5(b), HRS, bars a board from discussing matters not directly related to purposes listed in section 92-5(a), HRS, one of the permitted purposes for an executive session is “[t]o consult with the board’s attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities, and liabilities.” HRS § 92-5(a) (5). OIP therefore believes that in appropriate circumstances, a board may go into an unanticipated executive session with its attorney to discuss its ability to add an item to its agenda, so long as the board does not discuss the underlying item proposed to be added.
The question remaining to be resolved is whether the Council’s executive session discussion was, in fact, limited to consultation with the County Attorney regarding the Council’s ability to add the proposed item to its agenda by vote. As mentioned above, despite having been asked to provide its position on the complaint, including a detailed explanation, the Council did not provide any explanation of what it actually discussed during the executive session. OIP is required to receive and resolve complaints under the Sunshine Law, and in doing so to strictly construe the exceptions to the open meeting requirement against closed meetings. HRS §S 92-1 and 92F-42(18) (Supp. 2011). Thus, when a member of the public complains to OIP that a Council executive session was not in compliance with the Sunshine Law, the Council has the burden to justify that executive session to OIP. See id. In this case, the Council failed to meet its burden when it provided no response to OIP.
Additionally, the facts presented by Requester raise a reasonable inference that the executive session discussion was not limited to the apparent topic for which it was called, which was consultation with the County Attorney regarding the Council’s ability to add a proposed item by vote. In the public portion of the meeting, the Chair and County Attorney had already announced their conclusions on the question the board was supposedly considering, when they stated that Mr. Bynum’s motion to add a resolution clarifying Rule 10 to the agenda could not be voted on and the proposed resolution could not be added to the agenda because the issue was of reasonably major importance and action thereon would affect a significant number of persons. The County Attorney repeated his opinion when the Council emerged from the executive session, which suggests that neither the Council nor the County Attorney was primarily concerned with protecting the County Attorney’s advice on the question of whether the Council could add the proposed item to its agenda by vote. The length of the executive session, approximately an hour, also suggests that the Council’s discussion was not limited to that fairly straightforward legal question.
From the length of the session and the fact that the County Attorney’s advice was publicly announced, OIP infers that the Council’s discussion was not limited to consultation with the County Attorney regarding the Council’s ability to add the proposed item to its agenda by vote. Because the Council failed to rebut this inference by explaining what discussion occurred during the executive session and why it properly fell within an executive session purpose, and did not in any way attempt to meet its burden to justify the executive session, OIP cannot conclude that the executive session was allowed under the Sunshine Law.
(PNN) A key Kaua`i County Council Executive Session (ES) held more than two years ago was not "allowed under the Sunshine Law," according to a "Memorandum Opinion" issued by the Office of Information Practices (OIP) on Friday (June 29, 2012).
The June 4, 2009 ES was a major skirmish in the war between former Council Chair Kaipo Asing and Councilmembers Tim Bynum and Lani Kawahara over Asing's secrecy and dictatorial rule- a war which led eventually to the end of Asing's decades long political career when he was unseated in the 2010 election.
The opinion stated that:
In appropriate circumstances, a board may go into an unanticipated executive session with its attorney to discuss its ability to add an item to its agenda, so long as the board does not discuss the underlying item proposed to be added. See HRS § 92-5(a)(4) (Supp. 2011).
However, given the length of the executive session and the fact that the County Attorney publicly announced his advice on whether the proposed item could be added to the agenda by vote, OIP infers that the discussion was not limited to advice on that legal question. Because the Council failed to rebut that inference by explaining what discussion occurred during the executive session and why it properly fell within an executive session purpose, and failed to provide any evidence or arguments to meet its burden to justify the executive session, OIP cannot find that the executive session was allowed under the Sunshine Law.
As PNN reported on June 5 2009 the OIP had previously warned that holding such an ES would be a violation of the state open meetings or "Sunshine Law" (HRS 92). In the article PNN also detailed issues over Asing's abuses of power according to essays by Bynum and Kawahara. The essays were posted at their kauaiinfo.org web site which the two used to post documents and information on Asing's penchant for secrecy and, in the dust-up at hand, his use of ambiguous council rules to block Bynum from introducing measures before the council.
The opinion itself says that:
Requester (Bra Parsons) asked for an investigation into whether the Kauai County Council (Council) violated the Sunshine Law by holding an executive session to discuss a motion to add an item to the agenda for its meeting held on June 3, 2009 (the Meeting). Unless otherwise indicated, this opinion is based solely upon the facts presented in Requester’s e mail correspondence dated June 4, 2009 and attached materials. Although OIP requested the Council’s position on Requester’s complaint, including a detailed explanation of the events in question, in letters dated June 5 and December 2, 2009, the Council did not submit its position or any factual explanation of the events. OIP thus takes the factual accounts in materials submitted by Requester, and any reasonable inference therefrom, as uncontested. Requester relied primarily on the facts presented in an article in The Garden Island newspaper: Michael Levine, Following the Rules.
Levine's article, upon which OIP attorney Jennifer Brooks said she based most of the opinion, describes the meeting, saying:
With the only two avenues of adding an item to the agenda — with Asing’s initial or through a floor motion — effectively closed off, Asing, who finished fourth in voting in November’s election behind Vice Chair Jay Furfaro, newcomer Derek Kawakami and Bynum, has essentially vested in himself a preemptive veto power even surpassing that held by Mayor Bernard Carvalho Jr. in that Asing’s decisions cannot be overridden by a supermajority vote and that his decisions are shielded from public view.
After Bynum made the motion at the outset of Wednesday’s meeting, Asing moved the discussion to the end of the agenda.
Five hours later, after dealing with the six-page agenda, Asing said Section 92-7(d) of the Hawai‘i Revised Statutes precluded the council from voting on or even discussing Bynum’s resolution because it is of “reasonably major importance and action thereon by the board will affect a significant number of persons.”
Bynum provided to his fellow council members and the public a May 15 e-mail correspondence between himself and state Office of Information Practices staff attorney Jennifer Brooks in which she told him his proposed resolution “does not appear to be of reasonably major importance or to affect a significant number of people” and “appears suitable to be added to the agenda by a 2/3 vote, and the council would be acting in good faith in so adding it.”
Castillo said the unanticipated matter should be discussed in executive session to protect the council from potential liability. After a 5-2 vote approving the secret session — Bynum and Lani Kawahara dissented — the council closed its doors for about an hour.
When it reconvened, Castillo told the council “the proposed resolution encroaches upon the duties of the chairman as the presiding officer of the council. Therefore it is of reasonably major importance. The way that the council is run affects all of the people in this county.”
“The people of Kaua‘i did not have an opportunity to know what was placed on the agenda. That’s the reason for the Sunshine Law,”Castillo said, adding that there are rules in place to govern how much time must elapse between the public posting of the agenda and the meeting to which it applies.
After Asing called the meeting back to order and ended discussion by quickly adjourning it to comply with Castillo’s advice, the chair was asked if there were plans to include Bynum’s resolution on the agenda for the next meeting.
“No,” he said.
When asked if there was any reason why it would not be, as there is now enough time to bring the council into compliance with the Sunshine Law by posting the agenda item in advance of the June 16 meeting, Asing said, “Nothing especially.”
“I am just following the rules of the council,” he said.
Readers can access additional PNN coverage of the matter via Parx News Daily archives from 2009. Some key posts include:
Tuesday, June 9, 2009: (PNN) OIP OPENS INVESTIGATION OF COUNCIL’S EXECUTIVE SESSION ON DENYING AGENDA ACCESS TO COUNCILMEMBERS
Wednesday, June 10, 2009: DON’T LET GO, DON’T LET GO
Thursday, June 11, 2009: DARKNESS, DARKNESS
Friday, June 12, 2009: ON AND ON, ON AND ON, ON AND ON
Monday, June 15, 2009: A DAY AT THE RACES
Wednesday, June 17, 2009: (PNN) KAWAHARA, BYNUM OUTMANEUVER ASING, NAKAMURA; DISCUSSION OF RULE CHANGES PUT ON FUTURE AGENDA.
Thursday, June 18, 2009: SAME OLD DOG, SAME OLD TRICK:
Because the OIP opinion is not (yet) available on line we are posting the entire "Statement of Reasons for Opinion" below:
Requester asked for an investigation and enforcement action against the Kauai County Council based on various news reports of the Meeting. Specifically, Requester questioned whether the Council’s executive session held to discuss a motion to add an item to its agenda was proper under the Sunshine Law.
At the time of the Meeting, the Council’s Rule 10 allowed any member to introduce any bill or resolution, but required bills and resolutions to be initialed by the Council Chair before being placed on an agenda. Certain members complained that the Council’s then-Chair would not initial bills and resolutions they requested, thus preventing those items from being placed on the Council’s agenda. One of the members thus affected, Tim Bynum, brought a motion during the Meeting to add to the Meeting’s agenda a resolution to amend Rule 10 to clarify that the Council Chair could not use the initialing requirement to indefinitely postpone hearing bills or resolutions requested by a Council member. The Chair moved discussion on Mr. Bynum’s pending motion to the end of the Meeting’s agenda.
When the Council reached the end of its agenda five hours later, the Chair, supported by County Attorney Al Castillo (County Attorney), stated that Mr. Bynum’s motion to add a resolution clarifying Rule 10 to the agenda could not be voted on because the issue was of reasonably major importance and action thereon would affect a significant number of persons. Mr. Bynum responded by sharing an e-mail dated May 15, 2009, from OIP Staff Attorney Jennifer Brooks, which advised that the proposed resolution did “not appear to be of reasonably major importance or to affect a significant number of people,” that it “appear[ed] suitable to be added to the agenda by a 2/3 vote,” and that the Council “would be acting in good faith in so adding it.”
The County Attorney then advised the Council, which still had not voted on the motion to add an item to its agenda, to discuss the motion in executive session to protect the Council from potential liability. The Council voted 5-2 in favor of going into executive session, apparently for the purpose of consulting with its attorney, and then went into a closed session for about an hour. When the public meeting reconvened, the County Attorney announced that “the proposed resolution encroaches upon the duties of the Chairman as the presiding officer of the Council. Therefore it is of reasonably major importance. The way that the council is run affects all of the people in this County.” The meeting was adjourned shortly thereafter, with no vote having been taken on the motion. As an initial matter, OIP notes that the e-mail setting forth OIP’s advice did not put the Council under any obligation to add the item to its agenda. An item may be added to a filed agenda only with “a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons.” HRS § 92-7(b) (Supp. 2011). Thus, even if an item was qualified to be added to a Council agenda because it was not of reasonably major importance and action on it would not affect a significant number of persons, the Council’s failure to add the item to its agenda would not violate the Sunshine Law because it was up to the board to decide whether to add the item, and there was no vote to do so. OIP further notes that the c-mailed advice given to Mr. Bynum is consistent with the informal advice OIP has given in other situations regarding a board’s ability to add an alteration to the board’s internal procedures to an agenda by vote: the persons affected by a change to the Council’s rules regarding a member’s ability to place an item on the agenda would be only the nine Council members, who do not represent a significant number of persons when compared to the Council’s entire constituency.
Requester argues that the Council’s filed agenda stated that the Council can hold an unanticipated executive session “on any agenda item,” and based on that, Requester questions whether the executive session was proper when the issue being discussed was not an agenda item itself but instead was whether the Council could place an item on the agenda. The Sunshine Law anticipates that items may be added to an agenda and that an executive session not anticipated in advance need not be listed on a board’s agenda. $HRS § 92-7 (providing that notice of an executive session necessary only “when anticipated in advance” and explaining the requirements for adding an item to an agenda that has already been filed). Moreover, while section 92-5(b), HRS, bars a board from discussing matters not directly related to purposes listed in section 92-5(a), HRS, one of the permitted purposes for an executive session is “[t]o consult with the board’s attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities, and liabilities.” HRS § 92-5(a) (5). OIP therefore believes that in appropriate circumstances, a board may go into an unanticipated executive session with its attorney to discuss its ability to add an item to its agenda, so long as the board does not discuss the underlying item proposed to be added.
The question remaining to be resolved is whether the Council’s executive session discussion was, in fact, limited to consultation with the County Attorney regarding the Council’s ability to add the proposed item to its agenda by vote. As mentioned above, despite having been asked to provide its position on the complaint, including a detailed explanation, the Council did not provide any explanation of what it actually discussed during the executive session. OIP is required to receive and resolve complaints under the Sunshine Law, and in doing so to strictly construe the exceptions to the open meeting requirement against closed meetings. HRS §S 92-1 and 92F-42(18) (Supp. 2011). Thus, when a member of the public complains to OIP that a Council executive session was not in compliance with the Sunshine Law, the Council has the burden to justify that executive session to OIP. See id. In this case, the Council failed to meet its burden when it provided no response to OIP.
Additionally, the facts presented by Requester raise a reasonable inference that the executive session discussion was not limited to the apparent topic for which it was called, which was consultation with the County Attorney regarding the Council’s ability to add a proposed item by vote. In the public portion of the meeting, the Chair and County Attorney had already announced their conclusions on the question the board was supposedly considering, when they stated that Mr. Bynum’s motion to add a resolution clarifying Rule 10 to the agenda could not be voted on and the proposed resolution could not be added to the agenda because the issue was of reasonably major importance and action thereon would affect a significant number of persons. The County Attorney repeated his opinion when the Council emerged from the executive session, which suggests that neither the Council nor the County Attorney was primarily concerned with protecting the County Attorney’s advice on the question of whether the Council could add the proposed item to its agenda by vote. The length of the executive session, approximately an hour, also suggests that the Council’s discussion was not limited to that fairly straightforward legal question.
From the length of the session and the fact that the County Attorney’s advice was publicly announced, OIP infers that the Council’s discussion was not limited to consultation with the County Attorney regarding the Council’s ability to add the proposed item to its agenda by vote. Because the Council failed to rebut this inference by explaining what discussion occurred during the executive session and why it properly fell within an executive session purpose, and did not in any way attempt to meet its burden to justify the executive session, OIP cannot conclude that the executive session was allowed under the Sunshine Law.
Friday, May 25, 2012
OFF THE DEEP END
OFF THE DEEP END: Nobody questions whether rats will desert a sinking ship. But how long they will wait before doing so probably depends on the circumstances. But when one starts, the rest usually follow
Obviously they can't take too long, which is why at least two councilmembers decided they'd waited long enough to abandon the SS P.O.H.A.K.U and they'd be damned if they were going down with Captain Spittle of Malaprop.
Councilmember Nadine Nakamura was backpedaling like Michael Jackson on steroids. She apparently didn’t like her political prospects should she let stand as her final word on the subject her recent vote to allow Kaua`i Prosecuting Attorney Shaylene Iseri Carvalho to run out the clock. And Chair Jay Furfaro also smelled trouble should he do the same.
Even Kipukai Kuali`i and Dickie Chang silently went along with the program, leaving only Iseri's first Mate Mel Rapozo standing on the deck.
For those who thought last week's vote to pass the Office of the Prosecuting Attorney's (OPA) budget without any resolution to Iseri's scandalous refusal to answer until she got a county-paid special counsel to represent her was going to be the last word on the subject, guess again.
Because Wednesday (go to 9:24:20), after Yukimura introduced a measure to ask the Board of Ethics (BOE) to look into the matter and read a statement written by Bynum (see below) detailing Iseri's misdeeds (Bynum was absent due to the imminent birth of his first grandchild), it became apparent that continuing to allow Iseri to get away with alleged crimes and misdemeanors was a bad idea if they expected to get reelected.
Before Bynum's statement was read, Iseri's First Mate, Councilmember Mel Rapozo, had attempted to defuse potential defections by launching into a "my-my, it's enough to give a lady the vapors" spiel, tying to claim that he'd never seen anything like this level of scrutiny in his political career- seemingly forgetting about his own politically motivated crusade to oust former Chief of Police KC Lum.
He then announced that, anyway, the administration had "launched an inquiry" into the whole matter.
But when Yukimura read Bynum's statement and "corrected" Rapozo by saying the administration was looking into the procurement improprieties but not the general ethics charges, it became apparent that no one was going to stay aboard with Mel and Shay.
Bynum's statement read:
On April 11, 2012 the Council met in executive session on matters that included the POHAKU program. An Executive Session was posted for a briefing related to POHAKU on April 18, 2012. On April 18th Deputy County Attorney Mona Clark responded to members questions in open session. Ms. Clark indicated that the information was time sensitive stating “I think it is important that the Council has as much information as possible, as soon as possible.” Council member Yukimura asked if there were possible liabilities for the Council that could increase if additional time went by. The answer was yes. In spite of this, a majority of the Council voted to delay the discussion for two weeks. On May 2, 2012 the briefing was finally held. However no action was taken.
I have concerns (Bynum continued) among them are:
- The use of county address as the address for the registered agent of a private business.
- The fact that the Pohakuprogram.com website directs payment to a private business and the Council has not been provided with a copy of any contract with that business.
- The Prosecutor has refused to answer questions from the Council related to the Pohaku program until the County provides her special Counsel for legal representation.
Subsequently we heard that the POHAKU program had stopped operating, however Ms. Iseri-Carvalho said last Tuesday May 15, on the Council floor “our office can internally run the P.O.H.A.K.U program, which we will continue to do almost immediately.” As of yet no one is looking into the possible Charter violations. After what, in my opinion, is too much delay the posting for this body to take appropriate action is finally here before us today.
County officials take an oath to uphold the Constitution of the United States, The Constitution of the State of Hawai‘i and the Kaua‘i County Charter. I have been told by all the County Attorneys that have held the office since I became a Council member that when a question regarding a potential violation of the Charter is raised the Council has a duty to see that an appropriate inquiry is held. The Board of Ethics is an appropriate body for such an inquiry. So I will obviously support this motion.
But rather than outright supporting the call for an ethics referral, Furfaro announced that, at the request of County Attorney Al Castillo, he would support a deferral to either June 6 or 13 until the administration’s "inquiry" was finished.
But it was Nakamura who really started the stampede to the exits when she said she would essentially support the ethics referral saying she would "support the bullet points" contained in Bynum's statement. That caused the other two rats present to get caught up in the stampede and Kuali`i and Chang went along with the deferral since there were not only apparently not enough votes to defeat it but enough to approve, if not the referral to the BOE, then at least the deferral until June.
We'll see what the "inquiry" comes up with but for now there appears to be a growing awareness among councilmembers that, whether the local newspaper is covering the scandal or not, people have been following the story on TV and on-line. And if councilmembers want to maintain a spot on their own SS Council it may be time to abandon Iseri's leaky little POHAKU putt-putt.
Obviously they can't take too long, which is why at least two councilmembers decided they'd waited long enough to abandon the SS P.O.H.A.K.U and they'd be damned if they were going down with Captain Spittle of Malaprop.
Councilmember Nadine Nakamura was backpedaling like Michael Jackson on steroids. She apparently didn’t like her political prospects should she let stand as her final word on the subject her recent vote to allow Kaua`i Prosecuting Attorney Shaylene Iseri Carvalho to run out the clock. And Chair Jay Furfaro also smelled trouble should he do the same.
Even Kipukai Kuali`i and Dickie Chang silently went along with the program, leaving only Iseri's first Mate Mel Rapozo standing on the deck.
For those who thought last week's vote to pass the Office of the Prosecuting Attorney's (OPA) budget without any resolution to Iseri's scandalous refusal to answer until she got a county-paid special counsel to represent her was going to be the last word on the subject, guess again.
Because Wednesday (go to 9:24:20), after Yukimura introduced a measure to ask the Board of Ethics (BOE) to look into the matter and read a statement written by Bynum (see below) detailing Iseri's misdeeds (Bynum was absent due to the imminent birth of his first grandchild), it became apparent that continuing to allow Iseri to get away with alleged crimes and misdemeanors was a bad idea if they expected to get reelected.
Before Bynum's statement was read, Iseri's First Mate, Councilmember Mel Rapozo, had attempted to defuse potential defections by launching into a "my-my, it's enough to give a lady the vapors" spiel, tying to claim that he'd never seen anything like this level of scrutiny in his political career- seemingly forgetting about his own politically motivated crusade to oust former Chief of Police KC Lum.
He then announced that, anyway, the administration had "launched an inquiry" into the whole matter.
But when Yukimura read Bynum's statement and "corrected" Rapozo by saying the administration was looking into the procurement improprieties but not the general ethics charges, it became apparent that no one was going to stay aboard with Mel and Shay.
Bynum's statement read:
On April 11, 2012 the Council met in executive session on matters that included the POHAKU program. An Executive Session was posted for a briefing related to POHAKU on April 18, 2012. On April 18th Deputy County Attorney Mona Clark responded to members questions in open session. Ms. Clark indicated that the information was time sensitive stating “I think it is important that the Council has as much information as possible, as soon as possible.” Council member Yukimura asked if there were possible liabilities for the Council that could increase if additional time went by. The answer was yes. In spite of this, a majority of the Council voted to delay the discussion for two weeks. On May 2, 2012 the briefing was finally held. However no action was taken.
I have concerns (Bynum continued) among them are:
- The use of county address as the address for the registered agent of a private business.
- The fact that the Pohakuprogram.com website directs payment to a private business and the Council has not been provided with a copy of any contract with that business.
- The Prosecutor has refused to answer questions from the Council related to the Pohaku program until the County provides her special Counsel for legal representation.
Subsequently we heard that the POHAKU program had stopped operating, however Ms. Iseri-Carvalho said last Tuesday May 15, on the Council floor “our office can internally run the P.O.H.A.K.U program, which we will continue to do almost immediately.” As of yet no one is looking into the possible Charter violations. After what, in my opinion, is too much delay the posting for this body to take appropriate action is finally here before us today.
County officials take an oath to uphold the Constitution of the United States, The Constitution of the State of Hawai‘i and the Kaua‘i County Charter. I have been told by all the County Attorneys that have held the office since I became a Council member that when a question regarding a potential violation of the Charter is raised the Council has a duty to see that an appropriate inquiry is held. The Board of Ethics is an appropriate body for such an inquiry. So I will obviously support this motion.
But rather than outright supporting the call for an ethics referral, Furfaro announced that, at the request of County Attorney Al Castillo, he would support a deferral to either June 6 or 13 until the administration’s "inquiry" was finished.
But it was Nakamura who really started the stampede to the exits when she said she would essentially support the ethics referral saying she would "support the bullet points" contained in Bynum's statement. That caused the other two rats present to get caught up in the stampede and Kuali`i and Chang went along with the deferral since there were not only apparently not enough votes to defeat it but enough to approve, if not the referral to the BOE, then at least the deferral until June.
We'll see what the "inquiry" comes up with but for now there appears to be a growing awareness among councilmembers that, whether the local newspaper is covering the scandal or not, people have been following the story on TV and on-line. And if councilmembers want to maintain a spot on their own SS Council it may be time to abandon Iseri's leaky little POHAKU putt-putt.
Saturday, May 19, 2012
BLOWING CHUNKS
BLOWING CHUNKS: It seems appropriate that sewage is once again spilling into the ocean at Nawiliwili. After all, all that crap being generated up the hill in Lihu`e this week had to go somewhere.
People all over town were asking "do you smell that?" on Tuesday and it didn't take an olfactorally-advanced detective to discover the source as being the Kaua`i County Council Chambers.
That was when our seven stilted servants once again turned to the budget for what, from all indications, appears to be the biggest criminal enterprise on Kaua`i these days- the Office of the Prosecuting Attorney (OPA). Those who have been under a pohaku might want to read up on OPA Godmother Shaylene Iseri-Carvalho and her P.O.H.A.K.U. program.
And another great must-read, blow-by-blow account of Tuesday's session is available via Joan Conrow for anyone who doesn't have the time to watch the debacle... although the latter is well worth the investment of an hour (start about an hour in) if just for the comedic value.
No one expected much in the way of discussion regarding evil mastermind Iseri's all-purpose now-you-see-it-now-you-don't combination misdemeanor diversion program/reelection campaign tool. She's been busy lawyering up and taking the fifth so to no one's surprise, with the aid of her Council(hench)man Mel Rapozo and his refuse-to-recuse sidekick Kipukai Kuali`i, her council nemesis Tim Bynum and his second JoAnn Yukimura once again failed to get any "answers" to the same kinds of questions all the other department heads had to answer in order to receive their yearly budget appropriation.
Lesser Iseri sycophants Council Chair Jay Furfaro, and Councilmembers Dickie Chang and Nadine Nakamura managed to help shut things down out and keep the relevant allegations of crimes and misdemeanors from the public's ears and eyes, running out the clock without any repercussion to the budget... and of course the local newspaper has been too busy promoting flower shows, defunct food banks and poisonous GMO corn to notice the P.O.H.A.K.U. mess.
But while the council busied itself exploring new corners and crevices on the other side of the looking glass, it might well have been County Attorney Al Castillo who stole the show.
This week's prize for "Most Convoluted Abuse of the Law" goes once again to the program "Legal Opinions From Al's Ass," the show that asks the statutory question "did he really just say that?"
This time Castillo actually told Yukimura that the council can't appropriate "line items" in the budget- specific amounts designated for specific uses like a salary for a certain position or a piece of equipment or furniture.
Despite the fact that that's what a line-item budget does by definition, Castillo told the assembled that to restrict department heads as to what the money can be used for would be violate "the separation of powers" and be "interfering with the administration."
After a few "let me get this straight" questions, Yukimura simply gave up, flabbergasted by the notion that a department head like Iseri can now take all money appropriated for her department and spend it on anything her black little heart desires.
Finally things got as curiouser as they could get when Nakamura revealed that, according to the finance director, the P.O.H.A.K.U. was either "pau" or "suspended". But attempted verification of that information apparently depended on how many times one asked the question, so the council spent the next half hour asking over and over until Iseri herself got up and told them it wasn't really pau or suspended but rather being run internally in her office.
By that point everyone was thoroughly confused and befuddled, but it didn't really matter because that was when Furfaro ruled the clock had officially run out, apparently because the only part of the day that matters to Furfaro was beckoning: lunch.
The next move in this monkey chess game will be played at this coming Wednesday's council meeting when, the council will consider the following agenda item:
C 2012-170 Communication (05/17/2012) from Councilmember Yukimura, requesting Council approval of her request that the Board of Ethics conduct an investigation of whether violations of the Code of Ethics have occurred in connection with the creation and operation of the POHAKU Program and related matters.
In addition, the matter is listed for an executive session.
And speaking of wasting time, get ready to once again to vote on a charter amendment that would give these clods four-year terms.
The claim by councilmembers is that "we can't get anything done in two years." But the message from the voters has been "we're not sure we want you to 'get anything done.' If there was a way to give you two month terms, we'd probably go for that."
It's not like Kaua`i voters haven’t said "no freakin' way" way too many times to keep track of over the past few decades. Yet the council is once again apparently going to ask the electorate to approve doubling the time between elections. The last time we said "no" was in 2006 when we also passed "term limits" of eight years.
If you get a chance watch the "debate," do so with an eye toward the unmitigated arrogance and sense of entitlement.
The assumption that these office are theirs once they are elected is palpable. Talk of "slots opening up" when the "eight-years are up" is bandied about with no sense of the fact that they have to run for re-election every two years.
The voters will no doubt reject four-year terms once again and the council will no doubt try again in a few years. If anything, we'd probably pass a charter amendment to prohibit the council from asking us more than once every 20 years.
But if you're looking for the obvious source of the sewage spill it might be the latest "big flush" of $120,000 into the Kaua`i Marathon. Every year it's been the same thing- for no apparent reason the taxpayers have been forced to shovel wads of cash into the event with promises that "this will be the last year." Only it hasn't been and apparently never will be since this year's appropriation seems to be circling the drain with little opposition from council members.
That money could go a long way if it were to be spread wisely among the charitable non-profits that serve the island's neediest. But instead it's shunted directly into the coffers of hotel owners, airlines and other off-island entities, soon to be converted into campaign contributions. Supposedly a few dollars will trickle-down to local businesses and service industry employees, but no one is really quite sure how that works, and council members didn't seem interested in asking any questions so they weren't told too many lies.
It is an election year after all. It can only get worse.
People all over town were asking "do you smell that?" on Tuesday and it didn't take an olfactorally-advanced detective to discover the source as being the Kaua`i County Council Chambers.
That was when our seven stilted servants once again turned to the budget for what, from all indications, appears to be the biggest criminal enterprise on Kaua`i these days- the Office of the Prosecuting Attorney (OPA). Those who have been under a pohaku might want to read up on OPA Godmother Shaylene Iseri-Carvalho and her P.O.H.A.K.U. program.
And another great must-read, blow-by-blow account of Tuesday's session is available via Joan Conrow for anyone who doesn't have the time to watch the debacle... although the latter is well worth the investment of an hour (start about an hour in) if just for the comedic value.
No one expected much in the way of discussion regarding evil mastermind Iseri's all-purpose now-you-see-it-now-you-don't combination misdemeanor diversion program/reelection campaign tool. She's been busy lawyering up and taking the fifth so to no one's surprise, with the aid of her Council(hench)man Mel Rapozo and his refuse-to-recuse sidekick Kipukai Kuali`i, her council nemesis Tim Bynum and his second JoAnn Yukimura once again failed to get any "answers" to the same kinds of questions all the other department heads had to answer in order to receive their yearly budget appropriation.
Lesser Iseri sycophants Council Chair Jay Furfaro, and Councilmembers Dickie Chang and Nadine Nakamura managed to help shut things down out and keep the relevant allegations of crimes and misdemeanors from the public's ears and eyes, running out the clock without any repercussion to the budget... and of course the local newspaper has been too busy promoting flower shows, defunct food banks and poisonous GMO corn to notice the P.O.H.A.K.U. mess.
But while the council busied itself exploring new corners and crevices on the other side of the looking glass, it might well have been County Attorney Al Castillo who stole the show.
This week's prize for "Most Convoluted Abuse of the Law" goes once again to the program "Legal Opinions From Al's Ass," the show that asks the statutory question "did he really just say that?"
This time Castillo actually told Yukimura that the council can't appropriate "line items" in the budget- specific amounts designated for specific uses like a salary for a certain position or a piece of equipment or furniture.
Despite the fact that that's what a line-item budget does by definition, Castillo told the assembled that to restrict department heads as to what the money can be used for would be violate "the separation of powers" and be "interfering with the administration."
After a few "let me get this straight" questions, Yukimura simply gave up, flabbergasted by the notion that a department head like Iseri can now take all money appropriated for her department and spend it on anything her black little heart desires.
Finally things got as curiouser as they could get when Nakamura revealed that, according to the finance director, the P.O.H.A.K.U. was either "pau" or "suspended". But attempted verification of that information apparently depended on how many times one asked the question, so the council spent the next half hour asking over and over until Iseri herself got up and told them it wasn't really pau or suspended but rather being run internally in her office.
By that point everyone was thoroughly confused and befuddled, but it didn't really matter because that was when Furfaro ruled the clock had officially run out, apparently because the only part of the day that matters to Furfaro was beckoning: lunch.
The next move in this monkey chess game will be played at this coming Wednesday's council meeting when, the council will consider the following agenda item:
C 2012-170 Communication (05/17/2012) from Councilmember Yukimura, requesting Council approval of her request that the Board of Ethics conduct an investigation of whether violations of the Code of Ethics have occurred in connection with the creation and operation of the POHAKU Program and related matters.
In addition, the matter is listed for an executive session.
And speaking of wasting time, get ready to once again to vote on a charter amendment that would give these clods four-year terms.
The claim by councilmembers is that "we can't get anything done in two years." But the message from the voters has been "we're not sure we want you to 'get anything done.' If there was a way to give you two month terms, we'd probably go for that."
It's not like Kaua`i voters haven’t said "no freakin' way" way too many times to keep track of over the past few decades. Yet the council is once again apparently going to ask the electorate to approve doubling the time between elections. The last time we said "no" was in 2006 when we also passed "term limits" of eight years.
If you get a chance watch the "debate," do so with an eye toward the unmitigated arrogance and sense of entitlement.
The assumption that these office are theirs once they are elected is palpable. Talk of "slots opening up" when the "eight-years are up" is bandied about with no sense of the fact that they have to run for re-election every two years.
The voters will no doubt reject four-year terms once again and the council will no doubt try again in a few years. If anything, we'd probably pass a charter amendment to prohibit the council from asking us more than once every 20 years.
But if you're looking for the obvious source of the sewage spill it might be the latest "big flush" of $120,000 into the Kaua`i Marathon. Every year it's been the same thing- for no apparent reason the taxpayers have been forced to shovel wads of cash into the event with promises that "this will be the last year." Only it hasn't been and apparently never will be since this year's appropriation seems to be circling the drain with little opposition from council members.
That money could go a long way if it were to be spread wisely among the charitable non-profits that serve the island's neediest. But instead it's shunted directly into the coffers of hotel owners, airlines and other off-island entities, soon to be converted into campaign contributions. Supposedly a few dollars will trickle-down to local businesses and service industry employees, but no one is really quite sure how that works, and council members didn't seem interested in asking any questions so they weren't told too many lies.
It is an election year after all. It can only get worse.
Sunday, April 15, 2012
DRIVING MR. CRAZY
DRIVING MR. CRAZY: It's been almost a dozen years since the first in a line of Kaua`i county attorneys began a new interpretation regarding just exactly whom they serve.
And it's been almost a dozen years that we've been waiting for a Kaua`i County Charter amendment that would put some kind of "public component" back into the job.
But even though a proposed charter amendment is in the pipeline it appears it's only going to make things worse.
Of course that is predictable considering the source.
Councilperson Mel Rapozo can always be counted upon to make muddy political waters even murkier. This time he's outdone himself with a pair of Resolutions, #'s 2012-22 and 2012-23 (neither of which is apparently available on-line), that, rather than put the Office of the County Attorney (CA) as far outside the reach of politics as is possible in county government, will insure that petty disagreements between future councils and administrations grow to Hatfield and McCoy proportions.
The first, Resolution 2012-22 is not actually directly related to the county attorney. But it is a result of the original event that begat the short-circuiting smoke currently emanating from the ears adjacent to Rapozo's decidedly less-than-legal mind.
The "reso" stems from Mel's head-scratching and seemingly meaningless obsession over last year's "late" salary commission (SC) proposal. It spawned a CA opinion that explained what "shall" meant in the context of the SC section of the charter, saying it was "administrative" rather than "directional" and citing some judicial rulings to that affect.
It basically said "give it a rest Mel."
But them's fightin' words to the Baboozster.
Rapozo decided to go to circuit court for a "ruling" but Judge Randall Valenciano essentially said the same thing as the CA had said. So now Mel has decided to take his obsession to the voters and, in Resolution 2012-22 he proposes to put the matter before the voters.
The rest of the council seems less than enthusiastic and at the second and potentially final reading last Wednesday they deferred the measure "Proposing A Charter Amendment Relating To Definitions Of 'Shall', 'Must', And 'May.'"
Oh joy... we can hardly wait to see how those terms will be defined in the "Mel Rapozo Legal Dictionary." We wouldn't want to depend on Black's when we can get it straight from the horse's read end.
But Mel wasn't done. After proposing to redefine legal terms with a Rapozian slant, he's decided that it was the dastardly-brilliant legal mind of Mayor Bernard Carvalho, Jr. that concocted well-known Philadelphia Lawyer, CA Al Castillo's opinion on the matter.
As a result of Mel's fixation he came up with "Resolution No. 2012-23 "Proposing A Charter Amendment Relating To The Establishment Of The Office Of The Council Attorney" which would apparently divide the CA's office in two giving both the administration and the council their own independent county attorneys.
The pertinent parts of the current charter under "Article VIII- County Attorney" say:
Section 8.02. Appointment and Removal. The county attorney shall be appointed and may be removed by the mayor, with the approval of the council....
Section 8.04. Powers, Duties and Functions. The county attorney shall be the chief legal adviser and legal representative of all agencies, including the council, and of all officers and employees in matters relating to their official powers and duties, and he shall represent the county in all legal proceedings. He shall perform all other services incident to his office as may be required by law.
But perhaps because he operates like them, Rapozo sees a political ghostie and ghoulie behind every door of the county's administrative offices and wants to enshrine his suspicions about Castillo's "opinions" by altering the county's overriding legal document, the charter, in his own image.
To understand how things got to this point- other than by simply saying "Mel got elected"- we need to go back to the history and evolution of the the functioning of the CA's office.
In 2001, then-newly-elected Mayor Bryan Baptiste hired current county "good-old-girl" Lani Nakazawa to her first-of-many positions with the county. She succeeded former Mayor Maryanne Kusaka's CA, Hartwell Blake, who rarely opined on anything other than how comfortable he was spending most of his years in the job sleeping under the air conditioner in the back of the council chambers.
Although the charter section on the CA is silent on anything relating to serving the public, before Nakazawa took office, CA's generally thought of the job as one that, while advising county administrative personnel as well as the council, publicly opined on questions of law regarding the county's charter, ordinances and administrative rules and routinely released those opinions to the public. .
He- yes of course they had all been "he's"- did it as part of what they saw as an implied "public component" of the CA's job.
When the 2006 Charter Review Commission (CRC) had its first confab one appointee was the former CA under then-Mayor JoAnn Yukimura, Michael Belles.
We attended that first meeting of the panel which was comprised of many surprisingly open-to-change appointees. In addition to testifying about our own experiences with shortcomings of the charter, we spoke to Belles during a break.
He asked what the one item was that we would most like see tackled. Our answer was "a total reorganization of all of Article VIII: County Attorney" especially parts regarding the "Appointment and Removal" and "Powers, Duties and Functions," excerpted above.
We explained the problems under Nakazawa which had included the fact that her strict reading of the section meant that she saw no public element to her job serving only county employees and officials- and never releasing any opinions unless her "clients" released them.
We even suggested that the CA become an elected position, thereby solving many of the problems created by conflicts between the mayor and council- or any two county entities for that matter.
Belles was surprised at the turn of events since his time as CA and said that during his tenure he would have "never imagined" that there was no "public component" to the job. As a matter of fact, he told us, he couldn't remember ever not releasing any of his or his offices opinion's of law.
A proposed amendment regarding the Office of the County Attorney's (OCA) never made it on any CRC list- it wasn't exactly a sexy issue and probably way too "inside baseball" for the public and maybe even the CRC. It wasn't even on commission members' radar screens.
They eventually put around a dozen-and-a-half amendments before the voters after narrowing it down from more than 30 original proposals so as to make citizen deliberation and decision-making manageable at election time.
But nothing on the OCA.
Ever since Nakazawa's reign, every county attorney has refused to release to the public opinions regarding interpretation of laws, especially those requested by the council. Add to that a council scheme to avoid releasing them until some convoluted, much debated, "process" for doing so was in place- something which the council under former-Chair Kaipo Asing quite mysteriously (yeah, right) could never figure out how to do- and of course no opinions were ever released.
That set up years of "Star Chamber" activities where not only couldn't they tell the public what the opinions were but the council would go into closed door "executive sessions (ES)" to even discuss what they were going to be discussing.
This year, under new Council Chair Jay Furfaro and after a years-on-end attempt by Councilmember Tim Bynum to just get the matter on the agenda under Asing, not only has a process been set up but opinions have even allegedly been "released."
But that's a big "allegedly."
Because damned if anyone has been able to get copies of the opinion or even find out if they have actually been released because the votes to release them have either been done in ES or, if they have actually been voted upon in open session, it's been done after the TV cameras have ceased to roll.
We still have not been able to get a copy of- or even figure out if it's available- the infamous opinion which, quite apparently, is actually at the heart of the Rapozo's discontent... the one that apparently says the mayor, not the police commission, has the authority to "discipline" or "suspend" the chief of police.
It's a perfect example of the continued dysfunction. The question of the release of that opinion was on the council's ES agenda for weeks on end only to stop appearing in March. Despite having asked numerous people who should be in the know, we still haven't been able to get a straight answer to the question of whether it's now a public document- much less get a copy of it if it is.
Oh sure- everyone including the Sultan of Brunei has referred to what the opinion supposedly says. But just try to get more than that out of anybody.
Today we're stuck with a definition of the appointment and duties of the CA that were written over 40 years ago at and for a time when the size of county government was probably less than a tenth of that of today. And the potential for political machination in- and so politicization of- the Office of the CA has grown exponentially along with that growth.
Throw one Mel Rapozo into the mix and something's gotta give.
Unfortunately the lack of political visionaries sitting around the council table- or at least ones willing to publicly spar with Mel over the matter- has enabled the original squeaky wheel to be poised to get all the grease.
And, as we intimated above, don't expect the CRC to tackle it. Chair Sherman Shiraishi has fully defeated the purpose of the CRC by coming before the council to ask them what they think each and every proposal the CRC is considering, effectively cutting the three ways of getting a charter amendment on the ballot- by citizen petition, by council resolution or by the CRC placing it there- down to two.
It looks like the council and mayor are going to "throw a rod" on the County's Truck-of-State long before anyone even bothers to look under the hood much less tackle a proper engine rebuild with what's best for the public in mind.
There's only one place that vehicle is being driven... and that's nuts.
And it's been almost a dozen years that we've been waiting for a Kaua`i County Charter amendment that would put some kind of "public component" back into the job.
But even though a proposed charter amendment is in the pipeline it appears it's only going to make things worse.
Of course that is predictable considering the source.
Councilperson Mel Rapozo can always be counted upon to make muddy political waters even murkier. This time he's outdone himself with a pair of Resolutions, #'s 2012-22 and 2012-23 (neither of which is apparently available on-line), that, rather than put the Office of the County Attorney (CA) as far outside the reach of politics as is possible in county government, will insure that petty disagreements between future councils and administrations grow to Hatfield and McCoy proportions.
The first, Resolution 2012-22 is not actually directly related to the county attorney. But it is a result of the original event that begat the short-circuiting smoke currently emanating from the ears adjacent to Rapozo's decidedly less-than-legal mind.
The "reso" stems from Mel's head-scratching and seemingly meaningless obsession over last year's "late" salary commission (SC) proposal. It spawned a CA opinion that explained what "shall" meant in the context of the SC section of the charter, saying it was "administrative" rather than "directional" and citing some judicial rulings to that affect.
It basically said "give it a rest Mel."
But them's fightin' words to the Baboozster.
Rapozo decided to go to circuit court for a "ruling" but Judge Randall Valenciano essentially said the same thing as the CA had said. So now Mel has decided to take his obsession to the voters and, in Resolution 2012-22 he proposes to put the matter before the voters.
The rest of the council seems less than enthusiastic and at the second and potentially final reading last Wednesday they deferred the measure "Proposing A Charter Amendment Relating To Definitions Of 'Shall', 'Must', And 'May.'"
Oh joy... we can hardly wait to see how those terms will be defined in the "Mel Rapozo Legal Dictionary." We wouldn't want to depend on Black's when we can get it straight from the horse's read end.
But Mel wasn't done. After proposing to redefine legal terms with a Rapozian slant, he's decided that it was the dastardly-brilliant legal mind of Mayor Bernard Carvalho, Jr. that concocted well-known Philadelphia Lawyer, CA Al Castillo's opinion on the matter.
As a result of Mel's fixation he came up with "Resolution No. 2012-23 "Proposing A Charter Amendment Relating To The Establishment Of The Office Of The Council Attorney" which would apparently divide the CA's office in two giving both the administration and the council their own independent county attorneys.
The pertinent parts of the current charter under "Article VIII- County Attorney" say:
Section 8.02. Appointment and Removal. The county attorney shall be appointed and may be removed by the mayor, with the approval of the council....
Section 8.04. Powers, Duties and Functions. The county attorney shall be the chief legal adviser and legal representative of all agencies, including the council, and of all officers and employees in matters relating to their official powers and duties, and he shall represent the county in all legal proceedings. He shall perform all other services incident to his office as may be required by law.
But perhaps because he operates like them, Rapozo sees a political ghostie and ghoulie behind every door of the county's administrative offices and wants to enshrine his suspicions about Castillo's "opinions" by altering the county's overriding legal document, the charter, in his own image.
To understand how things got to this point- other than by simply saying "Mel got elected"- we need to go back to the history and evolution of the the functioning of the CA's office.
In 2001, then-newly-elected Mayor Bryan Baptiste hired current county "good-old-girl" Lani Nakazawa to her first-of-many positions with the county. She succeeded former Mayor Maryanne Kusaka's CA, Hartwell Blake, who rarely opined on anything other than how comfortable he was spending most of his years in the job sleeping under the air conditioner in the back of the council chambers.
Although the charter section on the CA is silent on anything relating to serving the public, before Nakazawa took office, CA's generally thought of the job as one that, while advising county administrative personnel as well as the council, publicly opined on questions of law regarding the county's charter, ordinances and administrative rules and routinely released those opinions to the public. .
He- yes of course they had all been "he's"- did it as part of what they saw as an implied "public component" of the CA's job.
When the 2006 Charter Review Commission (CRC) had its first confab one appointee was the former CA under then-Mayor JoAnn Yukimura, Michael Belles.
We attended that first meeting of the panel which was comprised of many surprisingly open-to-change appointees. In addition to testifying about our own experiences with shortcomings of the charter, we spoke to Belles during a break.
He asked what the one item was that we would most like see tackled. Our answer was "a total reorganization of all of Article VIII: County Attorney" especially parts regarding the "Appointment and Removal" and "Powers, Duties and Functions," excerpted above.
We explained the problems under Nakazawa which had included the fact that her strict reading of the section meant that she saw no public element to her job serving only county employees and officials- and never releasing any opinions unless her "clients" released them.
We even suggested that the CA become an elected position, thereby solving many of the problems created by conflicts between the mayor and council- or any two county entities for that matter.
Belles was surprised at the turn of events since his time as CA and said that during his tenure he would have "never imagined" that there was no "public component" to the job. As a matter of fact, he told us, he couldn't remember ever not releasing any of his or his offices opinion's of law.
A proposed amendment regarding the Office of the County Attorney's (OCA) never made it on any CRC list- it wasn't exactly a sexy issue and probably way too "inside baseball" for the public and maybe even the CRC. It wasn't even on commission members' radar screens.
They eventually put around a dozen-and-a-half amendments before the voters after narrowing it down from more than 30 original proposals so as to make citizen deliberation and decision-making manageable at election time.
But nothing on the OCA.
Ever since Nakazawa's reign, every county attorney has refused to release to the public opinions regarding interpretation of laws, especially those requested by the council. Add to that a council scheme to avoid releasing them until some convoluted, much debated, "process" for doing so was in place- something which the council under former-Chair Kaipo Asing quite mysteriously (yeah, right) could never figure out how to do- and of course no opinions were ever released.
That set up years of "Star Chamber" activities where not only couldn't they tell the public what the opinions were but the council would go into closed door "executive sessions (ES)" to even discuss what they were going to be discussing.
This year, under new Council Chair Jay Furfaro and after a years-on-end attempt by Councilmember Tim Bynum to just get the matter on the agenda under Asing, not only has a process been set up but opinions have even allegedly been "released."
But that's a big "allegedly."
Because damned if anyone has been able to get copies of the opinion or even find out if they have actually been released because the votes to release them have either been done in ES or, if they have actually been voted upon in open session, it's been done after the TV cameras have ceased to roll.
We still have not been able to get a copy of- or even figure out if it's available- the infamous opinion which, quite apparently, is actually at the heart of the Rapozo's discontent... the one that apparently says the mayor, not the police commission, has the authority to "discipline" or "suspend" the chief of police.
It's a perfect example of the continued dysfunction. The question of the release of that opinion was on the council's ES agenda for weeks on end only to stop appearing in March. Despite having asked numerous people who should be in the know, we still haven't been able to get a straight answer to the question of whether it's now a public document- much less get a copy of it if it is.
Oh sure- everyone including the Sultan of Brunei has referred to what the opinion supposedly says. But just try to get more than that out of anybody.
Today we're stuck with a definition of the appointment and duties of the CA that were written over 40 years ago at and for a time when the size of county government was probably less than a tenth of that of today. And the potential for political machination in- and so politicization of- the Office of the CA has grown exponentially along with that growth.
Throw one Mel Rapozo into the mix and something's gotta give.
Unfortunately the lack of political visionaries sitting around the council table- or at least ones willing to publicly spar with Mel over the matter- has enabled the original squeaky wheel to be poised to get all the grease.
And, as we intimated above, don't expect the CRC to tackle it. Chair Sherman Shiraishi has fully defeated the purpose of the CRC by coming before the council to ask them what they think each and every proposal the CRC is considering, effectively cutting the three ways of getting a charter amendment on the ballot- by citizen petition, by council resolution or by the CRC placing it there- down to two.
It looks like the council and mayor are going to "throw a rod" on the County's Truck-of-State long before anyone even bothers to look under the hood much less tackle a proper engine rebuild with what's best for the public in mind.
There's only one place that vehicle is being driven... and that's nuts.
Tuesday, November 15, 2011
TIME
TIME: Normally when Kaua`i Councilmember Mel Rapozo goes on a crusade it's like watching the proverbial broken clock that's right twice a day.
That's usually because of the babooze factor that addles Rapozo, making his penchant for political expediency obvious to all.
So when, according to the local newspaper, he decided to go to court to show that the word "shall" always means "must" when it appears in legislation no one expected him to be right.
For those who have missed the seemingly idiotic argument last month, the county charter specifies that that Salary Commission's resolutions setting administration salaries "shall be adopted by resolution of the commission and forwarded to the mayor and the council on or before March 15."
Although the charter doesn't say so in so many words, it's apparent that the provision is there is in order for the salaries to be set when the yearly budget process begins.
But when the commission tried to present a supplemental resolution to cut administrative salaries this past August Rapozo tried to nix the reso because, he said "shall means shall."
But County Attorney Al Castillo, always one to make sure Mayor Bernard Carvalho- at whose behest the Salary Commission submitted the resolution- gets his way, told the council that the word "shall" can mean "may" when it is used in a "directory" manner.
Now our first thought was that the whole matter was really stupid because the fact is that it's always before March 15- in this case March 15 of 2012. But we also suspected that Castillo, who shares a case of "broken clock syndrome" with Rapozo, might be pulling a fast one because with two broken clocks the odds are increased that something is going to be amiss.
Yesterday, upon the news that Rapozo was going to go to court, attorney-blogger Charley Foster sought to clarify the fact that yes indeed the word "shall" could be used in a discretionary manner, according to previous court rulings.
The problem for Castillo- who certainly has access to the same law books as Foster does- is that in order for "shall" to be used in a non-mandatory way it must meet a "three pronged test" according to the courts.
The term three (or any number really) pronged test means that the subject must meet all three conditions to be true. And apparently the passage in question doesn't meet any of them.
Citing State v. Shannon, 185 P.3d 200 (Haw. 2008), Forster noted that the Hawaii Supreme Court listed the three conditions, saying:
First, “shall” can be read in a non-mandatory sense when a statute’s purpose “confute[s] the probability of a compulsory statutory design.” [Id.] at 676, 619 P.2d at 102. Second, “shall” will not be read as mandatory when “unjust consequences” result. Id. Finally, “the word `shall’ may be held to be merely directory, when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to the individual, by giving it that construction.
The word confute means "to prove to be false, invalid, or defective; disprove." So the first means that basically it would have to make the whole passage contradictory to interpret it as "must." That doesn't seem to be the case here because it is clear that the deadline anticipates the budget process when the salaries are to be appropriated.
So already it doesn't meet the three prong test.
The second certainly isn't true- there is no injustice in submitting the reso before March 15. It many thwart the mayor's political will but that's not part of the test here.
Finally there is certainly a "benefit sacrificed." The benefit of "salaries" is being altered so the last test isn't met either.
As happens on occasion, even though Rapozo is just playing political games here, he is baled out by an equally politically motivated Castillo who pulled the "directory" ploy out of his butt and thought Rapozo would just go away when he brought out the legal mumbo jumbo.
It's doubtful that Rapozo was aware of the three prong test and just lucked out in that, when he goes to court, he will now be armed with Foster's little side research project.
But then you never know who's gonna win out when the battle of the tiny-yet-devious brains pits two such evenly matched opponents.
That's usually because of the babooze factor that addles Rapozo, making his penchant for political expediency obvious to all.
So when, according to the local newspaper, he decided to go to court to show that the word "shall" always means "must" when it appears in legislation no one expected him to be right.
For those who have missed the seemingly idiotic argument last month, the county charter specifies that that Salary Commission's resolutions setting administration salaries "shall be adopted by resolution of the commission and forwarded to the mayor and the council on or before March 15."
Although the charter doesn't say so in so many words, it's apparent that the provision is there is in order for the salaries to be set when the yearly budget process begins.
But when the commission tried to present a supplemental resolution to cut administrative salaries this past August Rapozo tried to nix the reso because, he said "shall means shall."
But County Attorney Al Castillo, always one to make sure Mayor Bernard Carvalho- at whose behest the Salary Commission submitted the resolution- gets his way, told the council that the word "shall" can mean "may" when it is used in a "directory" manner.
Now our first thought was that the whole matter was really stupid because the fact is that it's always before March 15- in this case March 15 of 2012. But we also suspected that Castillo, who shares a case of "broken clock syndrome" with Rapozo, might be pulling a fast one because with two broken clocks the odds are increased that something is going to be amiss.
Yesterday, upon the news that Rapozo was going to go to court, attorney-blogger Charley Foster sought to clarify the fact that yes indeed the word "shall" could be used in a discretionary manner, according to previous court rulings.
The problem for Castillo- who certainly has access to the same law books as Foster does- is that in order for "shall" to be used in a non-mandatory way it must meet a "three pronged test" according to the courts.
The term three (or any number really) pronged test means that the subject must meet all three conditions to be true. And apparently the passage in question doesn't meet any of them.
Citing State v. Shannon, 185 P.3d 200 (Haw. 2008), Forster noted that the Hawaii Supreme Court listed the three conditions, saying:
First, “shall” can be read in a non-mandatory sense when a statute’s purpose “confute[s] the probability of a compulsory statutory design.” [Id.] at 676, 619 P.2d at 102. Second, “shall” will not be read as mandatory when “unjust consequences” result. Id. Finally, “the word `shall’ may be held to be merely directory, when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to the individual, by giving it that construction.
The word confute means "to prove to be false, invalid, or defective; disprove." So the first means that basically it would have to make the whole passage contradictory to interpret it as "must." That doesn't seem to be the case here because it is clear that the deadline anticipates the budget process when the salaries are to be appropriated.
So already it doesn't meet the three prong test.
The second certainly isn't true- there is no injustice in submitting the reso before March 15. It many thwart the mayor's political will but that's not part of the test here.
Finally there is certainly a "benefit sacrificed." The benefit of "salaries" is being altered so the last test isn't met either.
As happens on occasion, even though Rapozo is just playing political games here, he is baled out by an equally politically motivated Castillo who pulled the "directory" ploy out of his butt and thought Rapozo would just go away when he brought out the legal mumbo jumbo.
It's doubtful that Rapozo was aware of the three prong test and just lucked out in that, when he goes to court, he will now be armed with Foster's little side research project.
But then you never know who's gonna win out when the battle of the tiny-yet-devious brains pits two such evenly matched opponents.
Wednesday, September 28, 2011
PAY THE LADY
PAY THE LADY: Kaua`i County Council meetings are generally political exercises with long-winded, often well-deserved finger pointing at a stumble-bum mayor and his ever expanding cadre of appointed dimwitted cronies being the rule rather than the exception.
So it was no surprise that the subject of paying them all resulted in a few of the wilder politically-tinged sessions, with each councilmember unable to agree with any of the others on what the biggest issue was but all agreeing there's something rotten in the state of Lihu`e.
We've yet to view yesterday's finale to the latest chapter in the continuing saga regarding the most recent Salary Commission resolution where it was allowed to become law, if (always a big if) the local newspaper article is to be believed.
But anyone who has paid attention over the years knows that the debacle of political gamesmanship in every nook and cranny of Kaua`i government is the result of an ironic and iconic self-lit exploding cigar.
The subject of any legislative body's salaries is always a touchy subject. Kaua`i was no different and decades back the Salary Commission (SC) was created to take some of the pressure off the council so they could get a raise without really proposing one.
The only problem was that even with a recommendation from the SC, the council still had to ultimately vote to raise their own salaries. They tried some tinkering over the years, once to change the county charter to make any raise take effect only after the next election. But that didn't do any good because everyone knew that the incumbents were reelected over and over.
So throughout the 90's and into the 2000's, the council's, the mayor's and all other appointed officials' salaries remained the same because the council couldn’t stand the political heat associated with raising them. The council's salary for what was turning into a full time job as the island grew, was stuck at $28,000 and $32,000 for the chair. Some of their clerks were getting almost twice that.
It got to the point where civil service workers in many departments were getting paid a lot more than the department heads. In one case the salary for the County Engineer- the head of the Public Works Department- was so low he quit to take a civil service job in the behemoth department, leaving the job open for many years because no one who was qualified would take it.
Finally a solution was proposed. In an "experiment to take the politics out of the process," as it was called, the SC resolution wasn't advisory any more but would automatically take effect unless five or more members of the council voted stop it.
But really it was just an illusory change and although the smoke and mirror machines were fully engaged, people saw- or at least the council assumed the people saw, which is the same thing- that the council was still, in essence, in charge of either accepting or rejecting their own raises.
Though the first few raises went through with minimal grumbling because voters accepted the "salary inversion" excuse cited above, no one foresaw that the exponentially ballooning pay raises contained in the multiple-year resolutions would become outrageous when things like "furlough Fridays" and 5% pay cuts came about after the bottom fell out of the free enterprise system.
All of a sudden the whole process had to be reversed and the council was faced with a "yes means no and no means yes" situation where allowing the current resolution to pass would actually be giving out pay cuts and voting to reject the reso would allow raises to go into effect.
That's where the incompetence of the local newspaper comes in because none of the council members trusted reporter Leo Azambuja to correctly report the story so each councilmember, with visions of "Council Votes For Pay Raise Resolution" headlines, came up with his or her own excuse for why they were voting against the reso.
Some cited the March 15 date in the charter by which the resolution "shall" be forwarded to the council. One cited the apparent ethical violation allowing Boards and Commissions Administrator John Isobe to write the actual resolution lowering everyone's salary but giving himself a raise. Another claimed that the mayor directed the whole thing, charging impropriety through interference with the supposedly independent SC. Still another complained about the fact that the budget didn’t reflect the resolution even though the amounts were actually less than the salaries appropriated in the budget.
It got so wild that, in an unprecedented move, County Attorney Al Castillo took the hot seat and gave off-the-cuff verbal legal advice, trying to placate councilmembers' various phoney finaglings, with often conflicting and confusing opinions... made all the more perplexing when Castillo's deputy Mona Clarke sat in and gave even more advice, much of which was at odds with Castillo's counsel.
It's no wonder that the the council couldn’t even actively decide to "receive" the reso, essentially killing it and had to kill it via a reported tie vote which had the same effect of receiving it but without the full set of fingerprints.
Meanwhile any changes to Article XXIX of the charter regarding the Salary Commission isn't even on the radar screen of the Charter Commission which is contemplating asking voters once again to remove the prohibition on board and commission members from asking for money, favors and otherwise lobbying the council, planning commission and other boards and commissions... even though the same amendment was soundly rejected in 2010.
If campaign money is the mother's milk of politics then the actual salaries of elected officials is the meat and potatoes. But either way there's bound to a nice buffet spread to enable the expected politically-motivated food fight when next year's salary resolution hits the council floor.
So it was no surprise that the subject of paying them all resulted in a few of the wilder politically-tinged sessions, with each councilmember unable to agree with any of the others on what the biggest issue was but all agreeing there's something rotten in the state of Lihu`e.
We've yet to view yesterday's finale to the latest chapter in the continuing saga regarding the most recent Salary Commission resolution where it was allowed to become law, if (always a big if) the local newspaper article is to be believed.
But anyone who has paid attention over the years knows that the debacle of political gamesmanship in every nook and cranny of Kaua`i government is the result of an ironic and iconic self-lit exploding cigar.
The subject of any legislative body's salaries is always a touchy subject. Kaua`i was no different and decades back the Salary Commission (SC) was created to take some of the pressure off the council so they could get a raise without really proposing one.
The only problem was that even with a recommendation from the SC, the council still had to ultimately vote to raise their own salaries. They tried some tinkering over the years, once to change the county charter to make any raise take effect only after the next election. But that didn't do any good because everyone knew that the incumbents were reelected over and over.
So throughout the 90's and into the 2000's, the council's, the mayor's and all other appointed officials' salaries remained the same because the council couldn’t stand the political heat associated with raising them. The council's salary for what was turning into a full time job as the island grew, was stuck at $28,000 and $32,000 for the chair. Some of their clerks were getting almost twice that.
It got to the point where civil service workers in many departments were getting paid a lot more than the department heads. In one case the salary for the County Engineer- the head of the Public Works Department- was so low he quit to take a civil service job in the behemoth department, leaving the job open for many years because no one who was qualified would take it.
Finally a solution was proposed. In an "experiment to take the politics out of the process," as it was called, the SC resolution wasn't advisory any more but would automatically take effect unless five or more members of the council voted stop it.
But really it was just an illusory change and although the smoke and mirror machines were fully engaged, people saw- or at least the council assumed the people saw, which is the same thing- that the council was still, in essence, in charge of either accepting or rejecting their own raises.
Though the first few raises went through with minimal grumbling because voters accepted the "salary inversion" excuse cited above, no one foresaw that the exponentially ballooning pay raises contained in the multiple-year resolutions would become outrageous when things like "furlough Fridays" and 5% pay cuts came about after the bottom fell out of the free enterprise system.
All of a sudden the whole process had to be reversed and the council was faced with a "yes means no and no means yes" situation where allowing the current resolution to pass would actually be giving out pay cuts and voting to reject the reso would allow raises to go into effect.
That's where the incompetence of the local newspaper comes in because none of the council members trusted reporter Leo Azambuja to correctly report the story so each councilmember, with visions of "Council Votes For Pay Raise Resolution" headlines, came up with his or her own excuse for why they were voting against the reso.
Some cited the March 15 date in the charter by which the resolution "shall" be forwarded to the council. One cited the apparent ethical violation allowing Boards and Commissions Administrator John Isobe to write the actual resolution lowering everyone's salary but giving himself a raise. Another claimed that the mayor directed the whole thing, charging impropriety through interference with the supposedly independent SC. Still another complained about the fact that the budget didn’t reflect the resolution even though the amounts were actually less than the salaries appropriated in the budget.
It got so wild that, in an unprecedented move, County Attorney Al Castillo took the hot seat and gave off-the-cuff verbal legal advice, trying to placate councilmembers' various phoney finaglings, with often conflicting and confusing opinions... made all the more perplexing when Castillo's deputy Mona Clarke sat in and gave even more advice, much of which was at odds with Castillo's counsel.
It's no wonder that the the council couldn’t even actively decide to "receive" the reso, essentially killing it and had to kill it via a reported tie vote which had the same effect of receiving it but without the full set of fingerprints.
Meanwhile any changes to Article XXIX of the charter regarding the Salary Commission isn't even on the radar screen of the Charter Commission which is contemplating asking voters once again to remove the prohibition on board and commission members from asking for money, favors and otherwise lobbying the council, planning commission and other boards and commissions... even though the same amendment was soundly rejected in 2010.
If campaign money is the mother's milk of politics then the actual salaries of elected officials is the meat and potatoes. But either way there's bound to a nice buffet spread to enable the expected politically-motivated food fight when next year's salary resolution hits the council floor.
Thursday, September 15, 2011
HOOK, LINE AND STINKER
HOOK, LINE AND STINKER: During the last month we've used the bill (#2149) to allow camping at Lydgate Park as a kind of case study of the long-practiced and well-honed dance of the headless chickens used by the last three Kaua`i administrations- especially in the Department of Public Works (DPW) and the now spun-off Department of Parks and Recreation (DP&R)- to run out the clock on county council oversight of various and sundry mismanagement schhemes.
But the manner in which DP&R Director Lenny Rapozo's final "rope-a-dope" performance yielded a split decision in favor of the bill's passage last Wednesday, gave a whole meaning to "don't ask me- I'm only in charge here."
Of course Rapozo's use of "the fog" and the "I not here" method of administrative oversight could not have been accomplished without council allies willing to look the other way at the misrepresentations and outright lies as well as the lack of any semblance of competency of Rapozo and his underlings.
After months of non-answers to "the eight questions" that had been repeatedly asked, in writing, of Rapozo, the bill was moved out of committee to the full council where last Wednesday despite the fact that there were amendments pending and it was no where near ready for a vote... something that has inflamed Chair Jay Furfaro's hair on many an occasion in the past.
Rapozo appeared after handing in the alleged answers just that morning, claiming he never had the questions- many of which had been sent in writing months ago- until the previous Friday. And, much to Furfaro's chagrin, they hadn’t even been distributed to councilmembers yet.
The old bait and switch made an appearance too. Seems the originator of "the fog" himself, perennial county appointee Ian Costa who now serves as Rapozo's deputy, had unexpectedly shown up instead of Rapozo the week before with Rapozo conveniently on the mainland, allowing Rapozo to claim he had no idea what had happened the previous week.
As we've previously described, it's a classic move Costa developed during the year-long "Developers Gone Wild," grubbing and grading hearings before the council in the 90's which exposed the early misdeeds of Jimmy Pflueger preceding the deadly Ka Loko Dam break for which Pflueger is scheduled to stand trial for murder later this or next year.
The session began with Council Chair Jay Furfaro waving around what a real plan would look like, taken from a Virginia Beach Virginia campground saying "can you kokua me... this is what I'm looking for Lenny."
The questions dealt with almost everything imaginable from lack of a sufficient number of toilets to insufficient staffing for maintenance and security and were seemingly at least partially a result of there being no written plan to make sure the professed "work-class facility" would even be run in an organized and coherent manager.
But try as he might, Furfaro could not get a commitment from Rapozo to put together such a plan by the time camping was scheduled to begin, 60 days after the passage of the bill.
Finally after twenty minutes of trying to get such a commitment from Rapozo, Furfaro demonstrated the council's archetypical part in the avoidance scheme by declaring Rapozo's "no" to be a "yes."
Of course the run-around can't properly function without an administration shill. The role was made for Councilmember Tim Bynum whose "don't confuse me with the facts" rhetoric, previously honed on the issue of the bike path, consisted of declaring the questions to have been answered already- whether they were or not- and calling all criticism of the not-ready-for-prime-time "plan" to be too "meticulous."
This left an opening for Councilmember Mel Rapozo to perform one of his classic ape-like chest beating routines consisting of lines like "That's our job, to be meticulous... guilty as charged."
But perhaps the most Kafkaesque scene in the melodrama played out over the issue of the "fishermen" who have traditionally frequented the area since, well, forever.
As championed by Councilperson Kipukai Kuali`i the council went back and forth, working to make sure fishers could go to the campground and essentially camp out while fishing without really being official campers.
Of course the task was impossible on its face. How do you allow people to stay overnight in the campground, in their tents, as long as they leave their fishing poles stuck in the sand with the line in the water- as described by Kuali`i- and then distinguish who is actually camping without a permit and who is simply fishing.
The council has been asking Lenny Rapozo- and Costa- for the actual metes and bounds of the camping area rather than providing the cruddy little map with dotted lines that had been made part of the bill. Mel Rapozo- an ex-cop- described the absurdity of the prosecution going to court with such a map and how any good attorney could raise enough questions to make it unenforceable.
The answer apparently was simply, as stated by many, that the standard was "we know who is camping and who is fishing."
Oh great. The island isn't sufficiently wracked with charges of "reverse racism" by the increasing number of uptight, malahini mainlanders who can't distinguish between the word "haole" as used descriptively and the more provocative "stupid f-ing haole." Now we have an area where the line between campers and fishermen is going to be- at least in their eyes- as much a factor of the shade of their skin as anything else.
County Attorney Al Castillo didn't really help by hemming and hawing and finally maintaining that it didn't matter what the law said as long as there was "sufficient notice" in the form of signage to tell the users what made a fisherman a fisherman and what made a camper a camper.
As if.
Finally, the answer was to be as ambiguous as possible and the council inserted language that allows "fishermen" to "fish" any place in the campgrounds where there isn't an actual designated camp site.
However all this probably doesn't matter one whit because, it was revealed, the county's park rangers are never there between 10:30 p.m. and 4 a.m. leaving enforcement of the unenforceable provision an academic matter anyway.
The bill passed with Kuali`i and Mel Rapozo voting against it and now it's up to the DP&R to promulgate administrative rules- which promise to be as vague as the bill- in the next two months and decide which parts of the campground to "open for camping" with no real idea of what is going to happen, in a classic Kaua`i County "ready, fire, aim" manner.
But whatever happens you can bet dollars to donuts that we haven't heard the end of the seven-year saga, especially when the first "you're not fishing, you're camping- I can tell by the color of your skin" ticket is issued.
-------
Note- We're working with a new editor whose schedule is malleable so, although we intend to keep to the 1 p.m. press time, there may be days when it is decidedly later.
But the manner in which DP&R Director Lenny Rapozo's final "rope-a-dope" performance yielded a split decision in favor of the bill's passage last Wednesday, gave a whole meaning to "don't ask me- I'm only in charge here."
Of course Rapozo's use of "the fog" and the "I not here" method of administrative oversight could not have been accomplished without council allies willing to look the other way at the misrepresentations and outright lies as well as the lack of any semblance of competency of Rapozo and his underlings.
After months of non-answers to "the eight questions" that had been repeatedly asked, in writing, of Rapozo, the bill was moved out of committee to the full council where last Wednesday despite the fact that there were amendments pending and it was no where near ready for a vote... something that has inflamed Chair Jay Furfaro's hair on many an occasion in the past.
Rapozo appeared after handing in the alleged answers just that morning, claiming he never had the questions- many of which had been sent in writing months ago- until the previous Friday. And, much to Furfaro's chagrin, they hadn’t even been distributed to councilmembers yet.
The old bait and switch made an appearance too. Seems the originator of "the fog" himself, perennial county appointee Ian Costa who now serves as Rapozo's deputy, had unexpectedly shown up instead of Rapozo the week before with Rapozo conveniently on the mainland, allowing Rapozo to claim he had no idea what had happened the previous week.
As we've previously described, it's a classic move Costa developed during the year-long "Developers Gone Wild," grubbing and grading hearings before the council in the 90's which exposed the early misdeeds of Jimmy Pflueger preceding the deadly Ka Loko Dam break for which Pflueger is scheduled to stand trial for murder later this or next year.
The session began with Council Chair Jay Furfaro waving around what a real plan would look like, taken from a Virginia Beach Virginia campground saying "can you kokua me... this is what I'm looking for Lenny."
The questions dealt with almost everything imaginable from lack of a sufficient number of toilets to insufficient staffing for maintenance and security and were seemingly at least partially a result of there being no written plan to make sure the professed "work-class facility" would even be run in an organized and coherent manager.
But try as he might, Furfaro could not get a commitment from Rapozo to put together such a plan by the time camping was scheduled to begin, 60 days after the passage of the bill.
Finally after twenty minutes of trying to get such a commitment from Rapozo, Furfaro demonstrated the council's archetypical part in the avoidance scheme by declaring Rapozo's "no" to be a "yes."
Of course the run-around can't properly function without an administration shill. The role was made for Councilmember Tim Bynum whose "don't confuse me with the facts" rhetoric, previously honed on the issue of the bike path, consisted of declaring the questions to have been answered already- whether they were or not- and calling all criticism of the not-ready-for-prime-time "plan" to be too "meticulous."
This left an opening for Councilmember Mel Rapozo to perform one of his classic ape-like chest beating routines consisting of lines like "That's our job, to be meticulous... guilty as charged."
But perhaps the most Kafkaesque scene in the melodrama played out over the issue of the "fishermen" who have traditionally frequented the area since, well, forever.
As championed by Councilperson Kipukai Kuali`i the council went back and forth, working to make sure fishers could go to the campground and essentially camp out while fishing without really being official campers.
Of course the task was impossible on its face. How do you allow people to stay overnight in the campground, in their tents, as long as they leave their fishing poles stuck in the sand with the line in the water- as described by Kuali`i- and then distinguish who is actually camping without a permit and who is simply fishing.
The council has been asking Lenny Rapozo- and Costa- for the actual metes and bounds of the camping area rather than providing the cruddy little map with dotted lines that had been made part of the bill. Mel Rapozo- an ex-cop- described the absurdity of the prosecution going to court with such a map and how any good attorney could raise enough questions to make it unenforceable.
The answer apparently was simply, as stated by many, that the standard was "we know who is camping and who is fishing."
Oh great. The island isn't sufficiently wracked with charges of "reverse racism" by the increasing number of uptight, malahini mainlanders who can't distinguish between the word "haole" as used descriptively and the more provocative "stupid f-ing haole." Now we have an area where the line between campers and fishermen is going to be- at least in their eyes- as much a factor of the shade of their skin as anything else.
County Attorney Al Castillo didn't really help by hemming and hawing and finally maintaining that it didn't matter what the law said as long as there was "sufficient notice" in the form of signage to tell the users what made a fisherman a fisherman and what made a camper a camper.
As if.
Finally, the answer was to be as ambiguous as possible and the council inserted language that allows "fishermen" to "fish" any place in the campgrounds where there isn't an actual designated camp site.
However all this probably doesn't matter one whit because, it was revealed, the county's park rangers are never there between 10:30 p.m. and 4 a.m. leaving enforcement of the unenforceable provision an academic matter anyway.
The bill passed with Kuali`i and Mel Rapozo voting against it and now it's up to the DP&R to promulgate administrative rules- which promise to be as vague as the bill- in the next two months and decide which parts of the campground to "open for camping" with no real idea of what is going to happen, in a classic Kaua`i County "ready, fire, aim" manner.
But whatever happens you can bet dollars to donuts that we haven't heard the end of the seven-year saga, especially when the first "you're not fishing, you're camping- I can tell by the color of your skin" ticket is issued.
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Note- We're working with a new editor whose schedule is malleable so, although we intend to keep to the 1 p.m. press time, there may be days when it is decidedly later.
Monday, May 9, 2011
WALAGAIN
WALAGAIN: One of the problems with the "new" charter provision- passed in 2008- requiring recusals by councilmembers from matters that cause conflicts-of-interest, is that unless the councilmember acknowledges that conflict there is apparently nothing anyone can do about it.
Of course the council could pass an ordinance detailing a process by which someone- anyone- might challenge a councilmember if he or she fails to acknowledge it but for now the only process that might be used would be to go the the notoriously "Wenokea" Board of Ethics (BOE) and ask.
Of course by the time they act the council very well may have dealt with the matter.
As we reported last Monday Dickie Chang's involvement with the Kaua`i Marathon prompted his recusal from involvement with controversial Bill # 2404 which would appropriate another $150,000 for the Kauai Marathon.
But while Chang apparently sent the BOE a copy of his communication to the council stating that he would be recusing himself, it was not accompanied with a request for a ruling as to whether he indeed has a conflict.
That, according to the Code of Ethics, would set a precedent and cause Chang to look carefully at his other business relationships to all the other entities that do business with the county, likely to come before the council.
So when the marathon money bill came up for a public hearing last Wednesday although Chang indeed left the room for it, he also left a slew of questions as to whether the bill legitimately came to have a public hearing held in the first place.
When the bill came up for "first reading"- the introductory vote that starts any bill on it's way to becoming an ordinance- Chang was predictably one of the "aye" votes.
What was unusual in that vote was that, whereas first readings are generally perfunctory actions done in order to get matters before the council, Councilperson Mel Rapozo actually voted "no" saying the county is too broke to be continuing to support the event, now planning it's third race.
Other councilmembers said that, although they were inclined not to support the bill they would vote "yes" only because all bills deserve "yes" votes on first reading so that people can provide testimony and the council can give the measure "due consideration"... a "tradition" that is often ignored when it's convenient for individual councilmembers.
But Chang's vote remains an illegality- a vote for the charter-required "first reading" of a bill from which he has recused himself.
Was the vote valid? Does the council have to re-introduce the bill and have it go through its first reading without Chang?
Apparently so but no one on the council seemed concerned in the least.
And that's not all.
It was noted by a member of the public at the bill's public hearing that, in addition to the $150,000, the Kaua`i Marathon has a line item in the county's FY2011-12 budget- currently under consideration- for another $120,000.
But when the public hearing for the budget came up Wednesday there was Chang at the table despite the fact that the additional marathon money was, in part, at issue.
We tell the story just to show how positively clueless Chang is when it comes to conflicts between his close relationships with the tourism industry, his promotional "Wala`au" TV program, and his job as councilmember.
Last week we asked
does Chang truly get it?
Apparently not judging by his fast and free treatment of the line between his day job and his job as one who appropriates all monies the county spends.
Take for example one of the presumably paid advertisements that regularly appears on Wala`au from Garden Isle Disposal (GID) advertising the "Kaua`i Recycles" program, which provides those bins across the island where people can recycle their glass, plastic and newspapers.
GID doesn't just collect recyclables because out of concern for the planet or out of the goodness of their hearts- the county appropriates money to pay them for their services every year via the annual budget.
And part of the contract requires that GID provide publicity and education to let people know how, where and what to recycle.
As a graphic in the commercial notes:
The Kaua`i Recycles program is a project of the County of Kaua`i... operated by Garden Isle Disposal.
That means that, as you've probably figured out, Chang first voted to appropriate the money for the commercials and then pocketed a good chunk of it as sole proprietor of Wala`au.
Sweet deal, Dickie.
First of all, of course Chang didn't bat an eye regarding GID when the budget came up, presumably with this year's appropriation to GID's for the "Kaua`i Recycles" program.
But we were positively floored when, at the end of the meeting there was Chang listening to County Attorney Al Castillo come up to the hot seat and read off the following request for an executive session:
ES-486 Pursuant to Haw. Rev. Stat. sections 92-4 and 92-5(a)(4), and Kaua'i County Charter section 3.07(E), the purpose of this executive session is to provide Council with a briefing and request for authority to settle claim filed against the County by Garden Isle Disposal on February 23, 2011, and related matters.
So let's get this straight Dickie. Your sponsor- whose payments provide your livelihood in an amount set by you- is suing the county and you see nothing wrong with voting on whether to settle a suit that they've filed with the county.
We're not quite sure what the claim is about but it may well be connected to GID's biggest- perhaps only- involvement with the county, the contract for the Kaua`i Recycles program.
Chang's action in acknowledging the marathon conflict has apparently opened a door that he wishes would have remained closed. The question though is where are the other councilmembers?
You'd think that one of them would have said something- either to Chang privately or, if that failed, by bringing it up when the agenda item is called. That of course is in lieu of introducing some effectuating legislation giving teeth to the charter provision passed over two years ago.
Yeah right- that's gonna happen. In a town where businesses - both for and not for profit- are as corruptly intertwined and insularly governed as this one, any urge to rock the gravy boat is stifled by the incredible mess it would make on the council's dinner table.
Of course the council could pass an ordinance detailing a process by which someone- anyone- might challenge a councilmember if he or she fails to acknowledge it but for now the only process that might be used would be to go the the notoriously "Wenokea" Board of Ethics (BOE) and ask.
Of course by the time they act the council very well may have dealt with the matter.
As we reported last Monday Dickie Chang's involvement with the Kaua`i Marathon prompted his recusal from involvement with controversial Bill # 2404 which would appropriate another $150,000 for the Kauai Marathon.
But while Chang apparently sent the BOE a copy of his communication to the council stating that he would be recusing himself, it was not accompanied with a request for a ruling as to whether he indeed has a conflict.
That, according to the Code of Ethics, would set a precedent and cause Chang to look carefully at his other business relationships to all the other entities that do business with the county, likely to come before the council.
So when the marathon money bill came up for a public hearing last Wednesday although Chang indeed left the room for it, he also left a slew of questions as to whether the bill legitimately came to have a public hearing held in the first place.
When the bill came up for "first reading"- the introductory vote that starts any bill on it's way to becoming an ordinance- Chang was predictably one of the "aye" votes.
What was unusual in that vote was that, whereas first readings are generally perfunctory actions done in order to get matters before the council, Councilperson Mel Rapozo actually voted "no" saying the county is too broke to be continuing to support the event, now planning it's third race.
Other councilmembers said that, although they were inclined not to support the bill they would vote "yes" only because all bills deserve "yes" votes on first reading so that people can provide testimony and the council can give the measure "due consideration"... a "tradition" that is often ignored when it's convenient for individual councilmembers.
But Chang's vote remains an illegality- a vote for the charter-required "first reading" of a bill from which he has recused himself.
Was the vote valid? Does the council have to re-introduce the bill and have it go through its first reading without Chang?
Apparently so but no one on the council seemed concerned in the least.
And that's not all.
It was noted by a member of the public at the bill's public hearing that, in addition to the $150,000, the Kaua`i Marathon has a line item in the county's FY2011-12 budget- currently under consideration- for another $120,000.
But when the public hearing for the budget came up Wednesday there was Chang at the table despite the fact that the additional marathon money was, in part, at issue.
We tell the story just to show how positively clueless Chang is when it comes to conflicts between his close relationships with the tourism industry, his promotional "Wala`au" TV program, and his job as councilmember.
Last week we asked
does Chang truly get it?
Apparently not judging by his fast and free treatment of the line between his day job and his job as one who appropriates all monies the county spends.
Take for example one of the presumably paid advertisements that regularly appears on Wala`au from Garden Isle Disposal (GID) advertising the "Kaua`i Recycles" program, which provides those bins across the island where people can recycle their glass, plastic and newspapers.
GID doesn't just collect recyclables because out of concern for the planet or out of the goodness of their hearts- the county appropriates money to pay them for their services every year via the annual budget.
And part of the contract requires that GID provide publicity and education to let people know how, where and what to recycle.
As a graphic in the commercial notes:
The Kaua`i Recycles program is a project of the County of Kaua`i... operated by Garden Isle Disposal.
That means that, as you've probably figured out, Chang first voted to appropriate the money for the commercials and then pocketed a good chunk of it as sole proprietor of Wala`au.
Sweet deal, Dickie.
First of all, of course Chang didn't bat an eye regarding GID when the budget came up, presumably with this year's appropriation to GID's for the "Kaua`i Recycles" program.
But we were positively floored when, at the end of the meeting there was Chang listening to County Attorney Al Castillo come up to the hot seat and read off the following request for an executive session:
ES-486 Pursuant to Haw. Rev. Stat. sections 92-4 and 92-5(a)(4), and Kaua'i County Charter section 3.07(E), the purpose of this executive session is to provide Council with a briefing and request for authority to settle claim filed against the County by Garden Isle Disposal on February 23, 2011, and related matters.
So let's get this straight Dickie. Your sponsor- whose payments provide your livelihood in an amount set by you- is suing the county and you see nothing wrong with voting on whether to settle a suit that they've filed with the county.
We're not quite sure what the claim is about but it may well be connected to GID's biggest- perhaps only- involvement with the county, the contract for the Kaua`i Recycles program.
Chang's action in acknowledging the marathon conflict has apparently opened a door that he wishes would have remained closed. The question though is where are the other councilmembers?
You'd think that one of them would have said something- either to Chang privately or, if that failed, by bringing it up when the agenda item is called. That of course is in lieu of introducing some effectuating legislation giving teeth to the charter provision passed over two years ago.
Yeah right- that's gonna happen. In a town where businesses - both for and not for profit- are as corruptly intertwined and insularly governed as this one, any urge to rock the gravy boat is stifled by the incredible mess it would make on the council's dinner table.
Monday, April 25, 2011
PROSECUTE THIS
PROSECUTE THIS: When county furloughs were ended earlier this year in conjunction with their end, the office of Prosecutor Shaylene Iseri Carvalho lobbied the county council to include some money for them to "catch up" on what they called a furlough-caused backlog of cases.
As we wrote on February 8:
For those who missed the circus, when furloughs were first discussed Mayor Bernard Carvalho assured the council the “public safety employees” would not be furloughed.
But, long story short, they were- including non-sworn officers in the Kaua`i Police Department (KPD), which caused all kinds of constipation as the prosecutor’s office, already backed up by the furloughs in the state courts, had to begin letting people loose- people KPD had arrested- because they couldn’t process them as fast as the law required.
After a huge fight over whether money for the prosecutor’s office to “catch up” on the backlog- supposedly created by furloughs- was truly “related to furloughs” (as the bill’s “purpose” stated) the money was included in the bill.
Well although, as we wrote, the lifeguards were denied back pay in the money bill- even though "public safety" related jobs were supposed to be exempt- Iseri got her money.
But we failed to report a little wrinkle in the proceedings.
When the original request was made it was claimed that while the attorneys in the office were working during the furlough period they were unable to get the needed support to be able to go through the cases and now would have to work overtime to clear the backlog.
That, the council was told, was what the money was for.
But after that claim had rolled around in the minds of councilmembers through the public hearing and a couple of committee meetings a light bulb seemed to go off in the mind of Councilmember Tim Bynum who asked a very basic question.
"Wait- aren't the prosecutors on salary?"
This set off some verbal scrambling because salaried people don't get paid for overtime. After some hemming and hawing the council was told that the extra money would be going for overtime pay for the support staff in the prosecutor's office to get the paperwork done and enable the individual prosecutors to catch up.
But even though Iseri had essentially misrepresented the need for the "catch-up" money, the new explanation seemed to hold water and of course it was a matter of the public's safety so the money for the staff overtime was appropriated.
So why do we bring this up now?
Because, after a three month investigation, PNN has learned that shortly after the bill passed Iseri instituted a new cost cutting policy, telling the support staff that the doors to the office would be locked promptly at 5 p.m. every day and no overtime would be paid.
Many sources describe the Kaua`i prosecutor's office as "a mess". They say that virtually all the long-time prosecutors have either been fired or were "quitted"- as in "you can't fire me, I quit"- along with career support staff. The newbies are all inexperienced attorneys, fresh out of law school, imported from the mainland, with no knowledge of the local community much less courtroom experience. There is only one attorney that is a long time Kaua`i resident left in the office.
The same goes for staff where employees with decades of experience have quit in disgust. One precipitating episode was that when Iseri took over in 2008, in order to "keep and eye on" everything, she took the offices of many staff members away and put them all in partitioned cubicles in a main area, and then used the vacated offices for "storage."
Also, according to multiple sources, Iseri fired one attorney when the attorney announced she was pregnant and needed legally mandated maternity leave. That cost the county a cool $30,000 after County Attorney Al Castillo quickly settled the resulting EEOC complaint after the council's equally prompt approval since the unlawful termination case was so outrageously obvious.
But those matters pale in comparison to something we've heard about from multiple sources who are in positions to know.
Apparently Iseri recently sat her "team" down and issued orders that certain local attorney's clients are not to be offered plea bargains.
If this is true- and we have no reason to believe it is not- it would be an outrageous violation of not just the code of professional conduct for attorneys but a severe violation of the public's trust that our prosecutor runs her office in the name of justice, not the petty vendettas and personal power grabs that appear to be Iseri's hallmark.
But all is not lost. We've been hearing all over town that Deputy County Attorney Justin Kohler who works with the Kaua`i Police Department (KPD) is telling anyone who will listen that he is going to oppose Iseri in 2012 and, as a result, people say that Iseri will try to return to the county council in next year's election.
Those are just the things we can verify to our satisfaction from sources close to the prosecutor's office who fear retribution if we were to use their names. There are other stories that are single sourced- even though the sources are reliable- and we've been unable to confirm them. Others that would burn your ears off cannot be told due to the privacy concerns of the principles.
We have urged all our sources to come forward and file complaints with the Hawai`i State Bar and/or the Office of the Attorney General, as appropriate.
This reign of terror must end.
As we wrote on February 8:
For those who missed the circus, when furloughs were first discussed Mayor Bernard Carvalho assured the council the “public safety employees” would not be furloughed.
But, long story short, they were- including non-sworn officers in the Kaua`i Police Department (KPD), which caused all kinds of constipation as the prosecutor’s office, already backed up by the furloughs in the state courts, had to begin letting people loose- people KPD had arrested- because they couldn’t process them as fast as the law required.
After a huge fight over whether money for the prosecutor’s office to “catch up” on the backlog- supposedly created by furloughs- was truly “related to furloughs” (as the bill’s “purpose” stated) the money was included in the bill.
Well although, as we wrote, the lifeguards were denied back pay in the money bill- even though "public safety" related jobs were supposed to be exempt- Iseri got her money.
But we failed to report a little wrinkle in the proceedings.
When the original request was made it was claimed that while the attorneys in the office were working during the furlough period they were unable to get the needed support to be able to go through the cases and now would have to work overtime to clear the backlog.
That, the council was told, was what the money was for.
But after that claim had rolled around in the minds of councilmembers through the public hearing and a couple of committee meetings a light bulb seemed to go off in the mind of Councilmember Tim Bynum who asked a very basic question.
"Wait- aren't the prosecutors on salary?"
This set off some verbal scrambling because salaried people don't get paid for overtime. After some hemming and hawing the council was told that the extra money would be going for overtime pay for the support staff in the prosecutor's office to get the paperwork done and enable the individual prosecutors to catch up.
But even though Iseri had essentially misrepresented the need for the "catch-up" money, the new explanation seemed to hold water and of course it was a matter of the public's safety so the money for the staff overtime was appropriated.
So why do we bring this up now?
Because, after a three month investigation, PNN has learned that shortly after the bill passed Iseri instituted a new cost cutting policy, telling the support staff that the doors to the office would be locked promptly at 5 p.m. every day and no overtime would be paid.
Many sources describe the Kaua`i prosecutor's office as "a mess". They say that virtually all the long-time prosecutors have either been fired or were "quitted"- as in "you can't fire me, I quit"- along with career support staff. The newbies are all inexperienced attorneys, fresh out of law school, imported from the mainland, with no knowledge of the local community much less courtroom experience. There is only one attorney that is a long time Kaua`i resident left in the office.
The same goes for staff where employees with decades of experience have quit in disgust. One precipitating episode was that when Iseri took over in 2008, in order to "keep and eye on" everything, she took the offices of many staff members away and put them all in partitioned cubicles in a main area, and then used the vacated offices for "storage."
Also, according to multiple sources, Iseri fired one attorney when the attorney announced she was pregnant and needed legally mandated maternity leave. That cost the county a cool $30,000 after County Attorney Al Castillo quickly settled the resulting EEOC complaint after the council's equally prompt approval since the unlawful termination case was so outrageously obvious.
But those matters pale in comparison to something we've heard about from multiple sources who are in positions to know.
Apparently Iseri recently sat her "team" down and issued orders that certain local attorney's clients are not to be offered plea bargains.
If this is true- and we have no reason to believe it is not- it would be an outrageous violation of not just the code of professional conduct for attorneys but a severe violation of the public's trust that our prosecutor runs her office in the name of justice, not the petty vendettas and personal power grabs that appear to be Iseri's hallmark.
But all is not lost. We've been hearing all over town that Deputy County Attorney Justin Kohler who works with the Kaua`i Police Department (KPD) is telling anyone who will listen that he is going to oppose Iseri in 2012 and, as a result, people say that Iseri will try to return to the county council in next year's election.
Those are just the things we can verify to our satisfaction from sources close to the prosecutor's office who fear retribution if we were to use their names. There are other stories that are single sourced- even though the sources are reliable- and we've been unable to confirm them. Others that would burn your ears off cannot be told due to the privacy concerns of the principles.
We have urged all our sources to come forward and file complaints with the Hawai`i State Bar and/or the Office of the Attorney General, as appropriate.
This reign of terror must end.
Thursday, February 24, 2011
EVERYBODY’S LAUGHING, EVERYBODY’S HAPPY
EVERYBODY’S LAUGHING, EVERYBODY’S HAPPY: County Attorney (CA) Al “The Nebbish” Castillo surprised a select few with his apparent agreement with the ACLU- Hawai`i opinion about illegality of the Prosecutor Shaylene Iseri-Carvalho/KPD/anti-drug office-sponsored, anti-marijuana rally last week.
Others suspect though that perhaps his opinion had less to do with the issue at hand than it did with the long standing feud between Castillo and Iseri ever since both took office over two years ago. The infamous game of musical chairs at the time has left the county with a bunch of ex-prosecutors in the CA’s office and vice versa which may be why Castillo took the opportunity to stick it to Iseri.
But at the same council meeting where Iseri and Councilmember Mel Rapozo held their “Reefer Madness” cotillion, Castillo was busy doing his best Louis Quarorze impression, once again interrupting the council to remind them who, in reality, L'Etat c'est.
The issue at hand was a complicated one that has been doggedly pursued by activist Horace Stoessel even since January’s inaugural meeting fiasco over the evaluations of appointed officials, including the county clerk.
Stoessel has become a resource extraordinaire on the subject for the council, having sat on the Salary Commission and after spending years to emerge as an expert on the subject- as well as others- as it relates to the county charter.
So after Stoessel’s “three minutes times two” were up the council had many questions and was trying to ascertain his opinion on who should be responsible for writing into law the process for evaluations.
It’s all very esoteric but suffice it to say that it had gone on for quite a while when, like a petulant child piping up during a “grown-up conversation” Castillo couldn’t take it any more.
His first interruption was, as if they needed it, to “direct” the council to “stop”, saying Stoessel was well past his three minutes and was- gasp - actually engaging with them during deliberations- something former Chair Kaipo Asing invented and then promptly banned in order to take the public out of the public participatory process.
He was pretty much ignored and the council was finally getting to the nitty gritty of whether the council actually had the authority to dictate a system for evaluating administration appointees when Councilmember JoAnn Yukimura asked if she had properly understood Stoessel’s “legal conclusion” on a fine point.
That was just too much for Castillo who loudly protested that a “legal conclusion by anyone but the county attorney is irrelevant” and that it was “really improper” for Stoessel to reflect back on his time with the salary commission.
As Castillo spoke, the camera showed a clearly agitated Yukimura, rolling her eyes and shaking her head in disbelief. Then Council Chair Jay Furfaro tried to calm things reminding Castillo that he, Furfaro, was the chair and was “acting like any good manager,” likening it to seeking input from a valued employee whose knowledge and experience was essential to the conversation.
That brought back some decorum and discussion continued with a clearly agitated Castillo keeping his peace. But when it became apparent that the council was going to take Stoessel’s testimony to heart, the Sun King couldn’t control himself any more screeching out “I am the County Attorney” and then blathering on about how he should be consulted and boo-hoo-hoo and blah-blah-blah.
So tune in again next week folks for the comedic stylings of Iseri and Castillo and their ensemble of rotating attorneys. You can’t go wrong and well, the price is right... if you ignore the fact that your taxes paying for it.
Others suspect though that perhaps his opinion had less to do with the issue at hand than it did with the long standing feud between Castillo and Iseri ever since both took office over two years ago. The infamous game of musical chairs at the time has left the county with a bunch of ex-prosecutors in the CA’s office and vice versa which may be why Castillo took the opportunity to stick it to Iseri.
But at the same council meeting where Iseri and Councilmember Mel Rapozo held their “Reefer Madness” cotillion, Castillo was busy doing his best Louis Quarorze impression, once again interrupting the council to remind them who, in reality, L'Etat c'est.
The issue at hand was a complicated one that has been doggedly pursued by activist Horace Stoessel even since January’s inaugural meeting fiasco over the evaluations of appointed officials, including the county clerk.
Stoessel has become a resource extraordinaire on the subject for the council, having sat on the Salary Commission and after spending years to emerge as an expert on the subject- as well as others- as it relates to the county charter.
So after Stoessel’s “three minutes times two” were up the council had many questions and was trying to ascertain his opinion on who should be responsible for writing into law the process for evaluations.
It’s all very esoteric but suffice it to say that it had gone on for quite a while when, like a petulant child piping up during a “grown-up conversation” Castillo couldn’t take it any more.
His first interruption was, as if they needed it, to “direct” the council to “stop”, saying Stoessel was well past his three minutes and was- gasp - actually engaging with them during deliberations- something former Chair Kaipo Asing invented and then promptly banned in order to take the public out of the public participatory process.
He was pretty much ignored and the council was finally getting to the nitty gritty of whether the council actually had the authority to dictate a system for evaluating administration appointees when Councilmember JoAnn Yukimura asked if she had properly understood Stoessel’s “legal conclusion” on a fine point.
That was just too much for Castillo who loudly protested that a “legal conclusion by anyone but the county attorney is irrelevant” and that it was “really improper” for Stoessel to reflect back on his time with the salary commission.
As Castillo spoke, the camera showed a clearly agitated Yukimura, rolling her eyes and shaking her head in disbelief. Then Council Chair Jay Furfaro tried to calm things reminding Castillo that he, Furfaro, was the chair and was “acting like any good manager,” likening it to seeking input from a valued employee whose knowledge and experience was essential to the conversation.
That brought back some decorum and discussion continued with a clearly agitated Castillo keeping his peace. But when it became apparent that the council was going to take Stoessel’s testimony to heart, the Sun King couldn’t control himself any more screeching out “I am the County Attorney” and then blathering on about how he should be consulted and boo-hoo-hoo and blah-blah-blah.
So tune in again next week folks for the comedic stylings of Iseri and Castillo and their ensemble of rotating attorneys. You can’t go wrong and well, the price is right... if you ignore the fact that your taxes paying for it.
Tuesday, February 22, 2011
GET SMART
GET SMART: Though there’s been a deafening cone of silence over County Attorney Al Castillo’s response to the Hawai`i Chapter of the American Civil Liberties Union’s (ACLU) letter that led to the cancellation of the county’s anti marijuana rally last Thursday, PNN has learned that Castillo has apparently opined that the ACLU was correct in telling the county that using county resources for the activities is illegal.
And to no one’s surprise Prosecutor Shaylene Iseri-Carvalho is none too pleased and has written two nasty letters to Castillo saying so.
Although we weren’t able to obtain Castillo’s “confidential” letter- which was addressed to Iseri, each individual council member, the Kaua`i Police Department (KPD) Chief Darryl Perry as well as three administration honchos- it is obvious from Iseri's responses, which were also “cced” to Mayor Bernard Carvalho, that Castillo supported the ACLU’s position.
In response to Castillo’s original email Iseri wrote
Subject: RE: Anti-Drug Rally Scheduled for February 17, 2011
Aloha Al,
It is quite unfortunate that you chose to send out an email with that tone. You are violating all of the county employees’ rights who chose to attend the rally on their own time. You are suppressing their First Amendment rights and your actions should not be condoned. I will be submitting a letter to the oversight body to review your actions. I have already received calls about you and other County officials that are prohibiting people from attending, even after work hours. Please stop doing this, as I believe, this exposes the county to significant liability.
Further, please be aware that your Deputy County Attorney, on county time, testified on a televised Council meeting with you present, to strongly oppose these same bills, that “other county officials” you make reference to in the press release, exposed the county to significant liability. Yet, I don’t see any reference to your office taking responsibility for its use of county resources to oppose legislation. You were present at the Council meeting and said ABSOLUTELY NOTHING. There is absolutely no authority for the County Attorney’s Office to testify in criminal matters. Let’s call a spade a spade. It is inappropriate to place blame when your office is guilty of the same actions. We are one County and to try to place blame when you were present when all this was happening is totally inappropriate, unprofessional and not in the County’s best interests.
Mahalo,
Shay
But the ACLU did not say that there was anything wrong with employees using their own time and resources to lobby on legislation. In fact they said the opposite in their original letter writing:
At the outset, we note that the American Civil Liberties Union ("ACLU") has long advocated for individual free speech rights, regardless of the content of that speech. Additionally, the ACLU supports and defends the right of government officials and employees to comment on issues in their personal capacities. The issue with the upcoming Rally is not about the individual police officers, prosecuting attorneys and other county employees expressing their viewpoints, it is about the potential use of public resources (including time and labor of County employees) to do so.
The ACLU letter came the same day as the council meeting- which we described yesterday and presumably did not address the presentation made there.
After a response, also confidential, from Castillo, Iseri not only admitted that her office wrote the press release that the ACLU used to point out the illegality of Iseri’s actions, but gives a detailed description of who else acted in the same vein, writing:
Al,
If you haven’t done your total investigation, let it be clear that our office prepared the “draft” release. The “draft” release was provided to KPD to review. It was Beth Tokioka that reviewed it, edited it, and sent it onward. Beth even took the liberty of making amendments to include a quote from Theresa Koki that was never in our initial draft release. Theresa Koki was never presented the release, and never made any quotes because I specifically had asked her about it when the release was amended . It was very clear to me that once we mentioned that Jake had prepared the release, you then took the position to blame KPD and OPA, because of quotes in the release. I find it very sad that because of the unprofessional manner in which this matter was handled at your doing, what started out as a great act of collaboration between KPD, the Administration and the Prosecutor’s Office, has turned into a chaotic event.
Shay
So what did the ACLU say?
Before the passage on employees actions on their own as private citizens they wrote:
Re: February 17 Anti-Drug Rally
Dear Chief Perry and Mr. Castillo:
We write to raise serious legal concerns about the Anti-Drug Rally scheduled for tomorrow, February 17, 2011 ("Rally"). In short, we believe that Kauai County employees are acting outside the scope of their limited, delegated authority, thus exposing the County to litigation. See Rees v. Carlisle, 113 Hawai`i 446, 153 P.2d 1131 (2007). Consequently, we recommend that you cancel or postpone the Rally to allow for further discussion.
1- Factual Background
As we understand it, the Kauai Police Department, the Prosecuting Attorney and others are sponsoring the Rally to "raise awareness and inform the community about the dangers associated with pending marijuana legislation." Kauai Police Department News Release, February 12, 2011. The News Release quotes Prosecuting Attorney Shaylene Iseri-Carvalho, speaking in opposition to specific pieces of legislation currently pending before the Hawaii State Legislature, as stating that `"[i]f passed, these measures will result in increased violent crime, economic crisis and a rise in marijuana usage among our children.'" Id. Finally, the News Release unequivocally states that "Nine police chiefs and prosecuting attorneys from each of the four counties stand united against this dangerous legislation." Id. (emphasis added). Thus, it cannot be disputed that the overriding purpose of the Rally is to persuade constituents to lobby legislators to vote against the pending bills, HB 1169 and SB 58.
The main case that the ACLU cites in its “Legal Background” is Rees v. Carlisle, saying that:
In 2002, the ACLU of Hawaii Foundation ("ACLU of Hawaii") filed suit on behalf of journalist Robert Rees against County Prosecutor Peter Carlisle. The gravamen of the case concerned Carlisle's improper use of public funds to actively advocate in favor of and campaign for the passage of a state constitutional amendment, Senate Bill No. 996 of 2002 ("amendment" or "Question 3"). It was undisputed that Carlisle used public resources for this purpose. The ACLU of Hawaii argued, inter alia, that: (a) neither the City Charter nor Hawaii Revised Statutes ("HRS") § 2840.6 authorized Carlisle's expenditure of public funds to engage in partisan political campaigning; and (b) any law that purported to grant such authority would run afoul of a myriad of constitutional rights, including free association, free speech and the fundamental right to vote.
In 2007, the Hawaii Supreme Court held that "neither the Revised Charter of Honolulu nor HRS § 28-10.6 authorize the prosecuting attorney to advocate for a proposed constitutional election[.]" Rees v. Carlisle, 113 Hawai`i 446, 456, 153 P.2d 1131, 1141 (2007). Based on this holding, the Court declined to reach the constitutional issues. A copy of this decision is attached for your ready reference.
The case seems to go way beyond the incident at hand, going to the very heart of a government employee using office time and/or resources to lobby for or against any legislation- a common practice of police and prosecutors statewide.
In a section called “Neither the Police Department Nor the Prosecutor Is Empowered to Use Public Funds to Advocate for a Particular Legislative Result” the letter says that:
The powers of the Police Department and the Prosecutor are set forth by the County of Kauai Charter, Article XI and IXA, respectively. Notably absent from these articles is any language that authorizes either the Police Department or the Prosecutor to spend public resources to educate the public about issues relating to crime research, prevention and education. Cf. H.R.S. §28-10.6 (authorizing the state Attorney General to spend public resources in this regard); R.C.H. 8-104(e-i) (passed post-Rees to authorize the Honolulu Prosecutor to do the same).
First, the plain language of the County of Kauai Charter limits the authority of the Prosecutor to prosecuting crimes. County of Kauai Charter, Article IXA, Sec. 9A.03. It is well-settled that the Prosecutor's powers and functions are limited to those expressly accorded to his office by the statute creating it. 63A Arri.Jur.2d, Prosecuting Attorneys § 20 (1984). 1 The County of Kauai Charter similarly limits the authority of the Police. County of Kauai Charter, Article XI, Section 11.05. 2 There is no statutory or other Given the similarity in language in Kauai's County Charter and the pre-2007 Honolulu County Charter, court decisions affecting the Honolulu Prosecutor are analogous to the situation now presented by the Kauai County Prosecutor. Honolulu's Department of the Prosecuting Attorney was established in Article VIII of the Revised Charter of Honolulu ("R.C.H.") of 1973 (1983). "Unless otherwise specifically provided by statute, his powers and functions are limited by § 8-105 [now § 8-104] of the Charter to the prosecution of criminal offenses against the laws of the State and the ordinances and rules and regulations of the city." Marsland v. Pang, 5 Haw. App. 463, 472, 701 P.2d 175, 184 (1985) (noting that the county prosecutor only "has been delegated the primary authority and responsibility for initiating and conducting criminal prosecutions within his county jurisdiction").
Furthermore, this limitation on the Prosecutor's powers also eviscerates any argument that engaging in the Rally is germane to the Prosecutor's function. Thus, as fully set forth infra wider Abood v. Detroit Board of Education, 431 U.S. 209 (1977), and its progeny, the conduct of the Police Department and Prosecutor's Office constitutes forced speech in violation of the First Amendment of the U.S. Constitution and Article I, §4, of the Hawaii Constitution.
2 Notably, the Charter empowers the Police to engage in "traffic safety education." "It is a general principle of statutory construction that when 'Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Barnhart v. Sigtnon Coal Co., Inc., 534 U.S. 438, 452, 122 S.Ct. 941, 951, 151 L.Ed.2d 908, 922 (2002) (citing Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17, 24 (1983)). Where the County wanted to provide the authority that grants the Police Department of the Prosecutor the power to expend public resources to educate the public on criminal justice issues.
Consequently, Rees V. Carlisle, 113 Hawaii 446, 153 P.2d 1131 (2007) is directly on point: neither Kauai's Prosecutor nor Police Department may engage in the type of activity proposed by tomorrow's Rally.
The ACLU letter goes onto say that not only are the actions of the county illegal but it exposes the county to liability. In a section marked “Using Public Resources to Fund the Rally and Associated Events Could Expose the County to Liability Under the First Amendment” they say that:
Such openly biased speech by public officials raises serious First Amendment questions. In the words of Justice Black: Probably no one would suggest that Congress could, without violating [the First] Amendment, pass a law taxing workers, or any persons for that matter (even lawyers), to create a fund to be used in helping certain political parties or groups favored by the Government to elect their candidates or promote their controversial causes.
Compelling a man by law to pay his money to elect candidates or advocate laws or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against. The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the Government commands.
After a long passage describing various federal and Supreme Court of the US cases that support that, the ACLU letter concludes by saying:
Given the serious legal concerns about tomorrow's Rally, we would recommend that such Rally be canceled or postponed to allow for further discussion. A moderate delay will not hamper the legislative process on the contested bills given that HB 1169 appears to be dead and SB 58 has not yet been scheduled for hearing before the Senate Judiciary Committee.
Thank you in advance for your time and attention to this matter. If you have any questions or comments in the interim, please feel free to contact me at 383-8287 or Iperrin(at)acluhawaii)dot)org or Daniel Gluck, Senior Staff Attorney, at 522-5908 or dgluck(at)acluhawaii(dot)org.
Sincerely,
Lois K. Perrin
Legal Director
The fact that Castillo has apparently supported the ACLU’s position now makes it a controlling opinion that the county must follow in the future. We hope that county employees will remember this when they use their position and time and resources to testify and seek to influence legislation in the future.
And to no one’s surprise Prosecutor Shaylene Iseri-Carvalho is none too pleased and has written two nasty letters to Castillo saying so.
Although we weren’t able to obtain Castillo’s “confidential” letter- which was addressed to Iseri, each individual council member, the Kaua`i Police Department (KPD) Chief Darryl Perry as well as three administration honchos- it is obvious from Iseri's responses, which were also “cced” to Mayor Bernard Carvalho, that Castillo supported the ACLU’s position.
In response to Castillo’s original email Iseri wrote
Subject: RE: Anti-Drug Rally Scheduled for February 17, 2011
Aloha Al,
It is quite unfortunate that you chose to send out an email with that tone. You are violating all of the county employees’ rights who chose to attend the rally on their own time. You are suppressing their First Amendment rights and your actions should not be condoned. I will be submitting a letter to the oversight body to review your actions. I have already received calls about you and other County officials that are prohibiting people from attending, even after work hours. Please stop doing this, as I believe, this exposes the county to significant liability.
Further, please be aware that your Deputy County Attorney, on county time, testified on a televised Council meeting with you present, to strongly oppose these same bills, that “other county officials” you make reference to in the press release, exposed the county to significant liability. Yet, I don’t see any reference to your office taking responsibility for its use of county resources to oppose legislation. You were present at the Council meeting and said ABSOLUTELY NOTHING. There is absolutely no authority for the County Attorney’s Office to testify in criminal matters. Let’s call a spade a spade. It is inappropriate to place blame when your office is guilty of the same actions. We are one County and to try to place blame when you were present when all this was happening is totally inappropriate, unprofessional and not in the County’s best interests.
Mahalo,
Shay
But the ACLU did not say that there was anything wrong with employees using their own time and resources to lobby on legislation. In fact they said the opposite in their original letter writing:
At the outset, we note that the American Civil Liberties Union ("ACLU") has long advocated for individual free speech rights, regardless of the content of that speech. Additionally, the ACLU supports and defends the right of government officials and employees to comment on issues in their personal capacities. The issue with the upcoming Rally is not about the individual police officers, prosecuting attorneys and other county employees expressing their viewpoints, it is about the potential use of public resources (including time and labor of County employees) to do so.
The ACLU letter came the same day as the council meeting- which we described yesterday and presumably did not address the presentation made there.
After a response, also confidential, from Castillo, Iseri not only admitted that her office wrote the press release that the ACLU used to point out the illegality of Iseri’s actions, but gives a detailed description of who else acted in the same vein, writing:
Al,
If you haven’t done your total investigation, let it be clear that our office prepared the “draft” release. The “draft” release was provided to KPD to review. It was Beth Tokioka that reviewed it, edited it, and sent it onward. Beth even took the liberty of making amendments to include a quote from Theresa Koki that was never in our initial draft release. Theresa Koki was never presented the release, and never made any quotes because I specifically had asked her about it when the release was amended . It was very clear to me that once we mentioned that Jake had prepared the release, you then took the position to blame KPD and OPA, because of quotes in the release. I find it very sad that because of the unprofessional manner in which this matter was handled at your doing, what started out as a great act of collaboration between KPD, the Administration and the Prosecutor’s Office, has turned into a chaotic event.
Shay
So what did the ACLU say?
Before the passage on employees actions on their own as private citizens they wrote:
Re: February 17 Anti-Drug Rally
Dear Chief Perry and Mr. Castillo:
We write to raise serious legal concerns about the Anti-Drug Rally scheduled for tomorrow, February 17, 2011 ("Rally"). In short, we believe that Kauai County employees are acting outside the scope of their limited, delegated authority, thus exposing the County to litigation. See Rees v. Carlisle, 113 Hawai`i 446, 153 P.2d 1131 (2007). Consequently, we recommend that you cancel or postpone the Rally to allow for further discussion.
1- Factual Background
As we understand it, the Kauai Police Department, the Prosecuting Attorney and others are sponsoring the Rally to "raise awareness and inform the community about the dangers associated with pending marijuana legislation." Kauai Police Department News Release, February 12, 2011. The News Release quotes Prosecuting Attorney Shaylene Iseri-Carvalho, speaking in opposition to specific pieces of legislation currently pending before the Hawaii State Legislature, as stating that `"[i]f passed, these measures will result in increased violent crime, economic crisis and a rise in marijuana usage among our children.'" Id. Finally, the News Release unequivocally states that "Nine police chiefs and prosecuting attorneys from each of the four counties stand united against this dangerous legislation." Id. (emphasis added). Thus, it cannot be disputed that the overriding purpose of the Rally is to persuade constituents to lobby legislators to vote against the pending bills, HB 1169 and SB 58.
The main case that the ACLU cites in its “Legal Background” is Rees v. Carlisle, saying that:
In 2002, the ACLU of Hawaii Foundation ("ACLU of Hawaii") filed suit on behalf of journalist Robert Rees against County Prosecutor Peter Carlisle. The gravamen of the case concerned Carlisle's improper use of public funds to actively advocate in favor of and campaign for the passage of a state constitutional amendment, Senate Bill No. 996 of 2002 ("amendment" or "Question 3"). It was undisputed that Carlisle used public resources for this purpose. The ACLU of Hawaii argued, inter alia, that: (a) neither the City Charter nor Hawaii Revised Statutes ("HRS") § 2840.6 authorized Carlisle's expenditure of public funds to engage in partisan political campaigning; and (b) any law that purported to grant such authority would run afoul of a myriad of constitutional rights, including free association, free speech and the fundamental right to vote.
In 2007, the Hawaii Supreme Court held that "neither the Revised Charter of Honolulu nor HRS § 28-10.6 authorize the prosecuting attorney to advocate for a proposed constitutional election[.]" Rees v. Carlisle, 113 Hawai`i 446, 456, 153 P.2d 1131, 1141 (2007). Based on this holding, the Court declined to reach the constitutional issues. A copy of this decision is attached for your ready reference.
The case seems to go way beyond the incident at hand, going to the very heart of a government employee using office time and/or resources to lobby for or against any legislation- a common practice of police and prosecutors statewide.
In a section called “Neither the Police Department Nor the Prosecutor Is Empowered to Use Public Funds to Advocate for a Particular Legislative Result” the letter says that:
The powers of the Police Department and the Prosecutor are set forth by the County of Kauai Charter, Article XI and IXA, respectively. Notably absent from these articles is any language that authorizes either the Police Department or the Prosecutor to spend public resources to educate the public about issues relating to crime research, prevention and education. Cf. H.R.S. §28-10.6 (authorizing the state Attorney General to spend public resources in this regard); R.C.H. 8-104(e-i) (passed post-Rees to authorize the Honolulu Prosecutor to do the same).
First, the plain language of the County of Kauai Charter limits the authority of the Prosecutor to prosecuting crimes. County of Kauai Charter, Article IXA, Sec. 9A.03. It is well-settled that the Prosecutor's powers and functions are limited to those expressly accorded to his office by the statute creating it. 63A Arri.Jur.2d, Prosecuting Attorneys § 20 (1984). 1 The County of Kauai Charter similarly limits the authority of the Police. County of Kauai Charter, Article XI, Section 11.05. 2 There is no statutory or other Given the similarity in language in Kauai's County Charter and the pre-2007 Honolulu County Charter, court decisions affecting the Honolulu Prosecutor are analogous to the situation now presented by the Kauai County Prosecutor. Honolulu's Department of the Prosecuting Attorney was established in Article VIII of the Revised Charter of Honolulu ("R.C.H.") of 1973 (1983). "Unless otherwise specifically provided by statute, his powers and functions are limited by § 8-105 [now § 8-104] of the Charter to the prosecution of criminal offenses against the laws of the State and the ordinances and rules and regulations of the city." Marsland v. Pang, 5 Haw. App. 463, 472, 701 P.2d 175, 184 (1985) (noting that the county prosecutor only "has been delegated the primary authority and responsibility for initiating and conducting criminal prosecutions within his county jurisdiction").
Furthermore, this limitation on the Prosecutor's powers also eviscerates any argument that engaging in the Rally is germane to the Prosecutor's function. Thus, as fully set forth infra wider Abood v. Detroit Board of Education, 431 U.S. 209 (1977), and its progeny, the conduct of the Police Department and Prosecutor's Office constitutes forced speech in violation of the First Amendment of the U.S. Constitution and Article I, §4, of the Hawaii Constitution.
2 Notably, the Charter empowers the Police to engage in "traffic safety education." "It is a general principle of statutory construction that when 'Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Barnhart v. Sigtnon Coal Co., Inc., 534 U.S. 438, 452, 122 S.Ct. 941, 951, 151 L.Ed.2d 908, 922 (2002) (citing Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17, 24 (1983)). Where the County wanted to provide the authority that grants the Police Department of the Prosecutor the power to expend public resources to educate the public on criminal justice issues.
Consequently, Rees V. Carlisle, 113 Hawaii 446, 153 P.2d 1131 (2007) is directly on point: neither Kauai's Prosecutor nor Police Department may engage in the type of activity proposed by tomorrow's Rally.
The ACLU letter goes onto say that not only are the actions of the county illegal but it exposes the county to liability. In a section marked “Using Public Resources to Fund the Rally and Associated Events Could Expose the County to Liability Under the First Amendment” they say that:
Such openly biased speech by public officials raises serious First Amendment questions. In the words of Justice Black: Probably no one would suggest that Congress could, without violating [the First] Amendment, pass a law taxing workers, or any persons for that matter (even lawyers), to create a fund to be used in helping certain political parties or groups favored by the Government to elect their candidates or promote their controversial causes.
Compelling a man by law to pay his money to elect candidates or advocate laws or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against. The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the Government commands.
After a long passage describing various federal and Supreme Court of the US cases that support that, the ACLU letter concludes by saying:
Given the serious legal concerns about tomorrow's Rally, we would recommend that such Rally be canceled or postponed to allow for further discussion. A moderate delay will not hamper the legislative process on the contested bills given that HB 1169 appears to be dead and SB 58 has not yet been scheduled for hearing before the Senate Judiciary Committee.
Thank you in advance for your time and attention to this matter. If you have any questions or comments in the interim, please feel free to contact me at 383-8287 or Iperrin(at)acluhawaii)dot)org or Daniel Gluck, Senior Staff Attorney, at 522-5908 or dgluck(at)acluhawaii(dot)org.
Sincerely,
Lois K. Perrin
Legal Director
The fact that Castillo has apparently supported the ACLU’s position now makes it a controlling opinion that the county must follow in the future. We hope that county employees will remember this when they use their position and time and resources to testify and seek to influence legislation in the future.
Thursday, February 17, 2011
COME HELL OR HIGH BONG WATER
COME HELL OR HIGH BONG WATER: No one seems to know for sure what will happen this afternoon when the appointed time for Councilmember Mel Rapozo’s and County Prosecutor Shaylene Iseri-Carvalho’s anti-marijuana rally comes around.
But only two things seem certain at press time- a bunch of counter demonstrators will likely show up and so will Mel Rapozo.
The rest is a subject for the Babooze Comedy Hour starring the Keystone Cops.
The curtain opened with Act 1 this morning at 10:36 when the Kaua`i Police Department (KPD) issued the following fishy sounding press release.
Anti-drug rally cancelled
LĪHU'E – An anti-drug rally that was scheduled at 4 pm this afternoon in front of the Historic County Building has been cancelled due to the threat of flash flooding for Kaua`i County.
A flash watch is in effect for Kaua`i and Ni`ihau through tomorrow morning.
The rally was planned to raise awareness and inform the community of the pending marijuana legislation now being considered by the state Legislature.
It’s not clear if anyone bought that excuse after our article yesterday exposed the use of county resources to plan the rally and an order from Iseri that attendance was “mandatory” for her staff attorneys and, ahem, strongly encouraged for the rest of the staff... with a suggestion that they “rearrange” their “schedule” to attend.
But in Act 2, at 12:23 p.m.- less than couple of hours after the first release- it disappeared from the county’s press release page, replaced with the following release, this one from the office of County Attorney Al Castillo:
Update on anti-drug rally
LĪHU'E – County officials said this morning that they received a complaint from the American Civil Liberties Union (ACLU) regarding the anti-drug rally that was scheduled at 4 pm this afternoon in front of the Historic County Building.
“We are in receipt of the ACLU complaint and my office is reviewing it,” said County Attorney Alfred Castillo.
The rally was cancelled due to the complaint and for safety concerns due to the threat of flash flooding for Kaua`i County.
A flash watch is in effect for Kaua`i and Ni`ihau through tomorrow morning.
The rally was planned to raise awareness and inform the community of the pending marijuana legislation now being considered by the state Legislature.
Oh to be a fly on the wall to witness all that went into that release.
But Act 3 was on it’s way and at 1 p.m. a “Breaking News” update appeared at the local newspaper’s web site from new cops and court reporter Jessica Musicar with a headline of “Rapozo: Anti-drug rally still a go”
Musicar wrote:
Is it canceled or isn't it?
Whether an anti-drug rally will be held at 4 p.m. remains unclear, as the county and a member of its council have indicated conflicting answers.
Kaua`i County Council member Mel Rapozo, who said he originally scheduled the rally, plans to show up at the historic County Building with other participants, regardless of the county's notice of cancellation. The rally was intended to raise awareness and inform the community about pending marijuana legislation under consideration by the state Legislature.
This morning, however, the county canceled the rally, citing a weather warning. It later noted this afternoon in a press release that the cancellation is also tied to a complaint from the American Civil Liberties Union.
Rapozo said he is upset that the county was hiding behind the weather.
"To use the weather as an excuse is unacceptable," Rapozo said. "The reason for the cancellation wasn't the weather. It was the ACLU's concerns."
Although the county has not specified the nature of the complaint, stating only that County Attorney Alfred Castillo is reviewing it, Rapozo said the organization took issue with the county using public resources to host the rally.
Acting as a citizen of the county, rather than a councilman, Rapozo added he will be at the rally with church and youth groups...
We can see it now. Since county employees and any solicited attendees- like the island’s pastors and their minions who Rapozo urged to attend- most likely had heard about the “official” cancellation and the counter demonstrators- especially those who read the local newspaper on-line where, in the comments column, the protest was originally organized- probably either haven’t heard or heard Rapozo will be there, we expect to see Mel facing down a group of pissed off citizens.
.
But in all seriousness canceling the anti-pot-party after a complaint from the ACLU cannot be allowed to be where this ends. We urge a full investigation by at least the attorney general’s office if not the FBI- since of course KPD and the prosecutor are the alleged “perps”- as well as ethics complaints against Chief Darryl Perry whose underlings organized the KPD’s involvement, Councilmember Rapozo and, especially, Prosecuting Attorney Iseri... all of whom are or should be well aware of the laws.
It’s high time to take a page from the prosecutor’s playbook and make an example of those involved so that this type of thing never happens again.
But only two things seem certain at press time- a bunch of counter demonstrators will likely show up and so will Mel Rapozo.
The rest is a subject for the Babooze Comedy Hour starring the Keystone Cops.
The curtain opened with Act 1 this morning at 10:36 when the Kaua`i Police Department (KPD) issued the following fishy sounding press release.
Anti-drug rally cancelled
LĪHU'E – An anti-drug rally that was scheduled at 4 pm this afternoon in front of the Historic County Building has been cancelled due to the threat of flash flooding for Kaua`i County.
A flash watch is in effect for Kaua`i and Ni`ihau through tomorrow morning.
The rally was planned to raise awareness and inform the community of the pending marijuana legislation now being considered by the state Legislature.
It’s not clear if anyone bought that excuse after our article yesterday exposed the use of county resources to plan the rally and an order from Iseri that attendance was “mandatory” for her staff attorneys and, ahem, strongly encouraged for the rest of the staff... with a suggestion that they “rearrange” their “schedule” to attend.
But in Act 2, at 12:23 p.m.- less than couple of hours after the first release- it disappeared from the county’s press release page, replaced with the following release, this one from the office of County Attorney Al Castillo:
Update on anti-drug rally
LĪHU'E – County officials said this morning that they received a complaint from the American Civil Liberties Union (ACLU) regarding the anti-drug rally that was scheduled at 4 pm this afternoon in front of the Historic County Building.
“We are in receipt of the ACLU complaint and my office is reviewing it,” said County Attorney Alfred Castillo.
The rally was cancelled due to the complaint and for safety concerns due to the threat of flash flooding for Kaua`i County.
A flash watch is in effect for Kaua`i and Ni`ihau through tomorrow morning.
The rally was planned to raise awareness and inform the community of the pending marijuana legislation now being considered by the state Legislature.
Oh to be a fly on the wall to witness all that went into that release.
But Act 3 was on it’s way and at 1 p.m. a “Breaking News” update appeared at the local newspaper’s web site from new cops and court reporter Jessica Musicar with a headline of “Rapozo: Anti-drug rally still a go”
Musicar wrote:
Is it canceled or isn't it?
Whether an anti-drug rally will be held at 4 p.m. remains unclear, as the county and a member of its council have indicated conflicting answers.
Kaua`i County Council member Mel Rapozo, who said he originally scheduled the rally, plans to show up at the historic County Building with other participants, regardless of the county's notice of cancellation. The rally was intended to raise awareness and inform the community about pending marijuana legislation under consideration by the state Legislature.
This morning, however, the county canceled the rally, citing a weather warning. It later noted this afternoon in a press release that the cancellation is also tied to a complaint from the American Civil Liberties Union.
Rapozo said he is upset that the county was hiding behind the weather.
"To use the weather as an excuse is unacceptable," Rapozo said. "The reason for the cancellation wasn't the weather. It was the ACLU's concerns."
Although the county has not specified the nature of the complaint, stating only that County Attorney Alfred Castillo is reviewing it, Rapozo said the organization took issue with the county using public resources to host the rally.
Acting as a citizen of the county, rather than a councilman, Rapozo added he will be at the rally with church and youth groups...
We can see it now. Since county employees and any solicited attendees- like the island’s pastors and their minions who Rapozo urged to attend- most likely had heard about the “official” cancellation and the counter demonstrators- especially those who read the local newspaper on-line where, in the comments column, the protest was originally organized- probably either haven’t heard or heard Rapozo will be there, we expect to see Mel facing down a group of pissed off citizens.
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But in all seriousness canceling the anti-pot-party after a complaint from the ACLU cannot be allowed to be where this ends. We urge a full investigation by at least the attorney general’s office if not the FBI- since of course KPD and the prosecutor are the alleged “perps”- as well as ethics complaints against Chief Darryl Perry whose underlings organized the KPD’s involvement, Councilmember Rapozo and, especially, Prosecuting Attorney Iseri... all of whom are or should be well aware of the laws.
It’s high time to take a page from the prosecutor’s playbook and make an example of those involved so that this type of thing never happens again.
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