(PNN) Unethical culture- Government service with a personal “touch”- Part 3

Unethical culture- Government service with a personal “touch”

Part three- Deep Thoughts- a “Handy” Diversion.

One would think that a member of any ethics board or commission would be a proponent of the highest ethical standard. But on Kaua`i, as we’ve noted in the first two parts of this report, the three prime officers of our Board of Ethics have been in violation of the plain reading of the charter’s section 20.02(D) prohibitions on those “employees and officers” who “appear on behalf of a private interest” before an “agency board or commission” while serving on any of the county’s boards or commissions.

We detailed two recent cases- those of Dee Crowell of the water board and Jonathan Chun of the charter commission- where the BOE apparently chose to simply ignore those provisions of the charter and claim that, because the ordinance (Kaua`i County Code [KCC] Section 3) didn’t detail the prohibitions in the charter’s section 20.02(D) they didn’t have to be enforced, in violation of the supremacy principles expressed in the US Constitution.

So what was behind the thinking of those two chairs of the BOE- Mark Hubbard and Lei Fuller- and the secretary, Judith Lenthall, who are in apparent violation?

After the Crowell and Chun rulings clearing them of violating the charter, a group of citizens were outraged. Horace Stoessel, Bruce Pleas, Walter Lewis, Glenn Mickens and others were outraged and told the board so during and after the discussions.

(Note: In part 2 we said there was no apparent discussion of the Crowell decision at a BOE meeting. The minutes reveal the matter was decided at their 12/07 meeting. We apologize for the oversight).

In response past and current Chair Mark Hubbard – who has also served as chair of another board embroiled in discretionary controversy, the state Burial Council of Kaua`i- wrote and presented the BOE with a long and extremely revealing “memo” at their 4/08 meeting .

We will examine it here in detail.

We do so because the rambling letter reveals the mental machinations of a man- and board- trying his best to twist the meanings of words by isolating and equivocating them trying every rationale- whether valid or simply laughable- to clear others who were seeking to exonerate themselves and so, by precedent, Hubbard, Fuller and Lenthall from their apparently prohibited activities.

The letter, the contents of which was supported by the other BOE members according to the minutes of the 4/08 meeting, reveals what appears to be a basic lack of ethical standards and ability to make ethical judgment calls with an unbiased eye on the BOE’s part and an inability or unwillingness to apply the “to be liberally construed” provision of the Code of Ethics contained in KCC section 3.1.

We will excerpt the letter here and reprint it in full at the end of this article, Because we received only a paper version we had to type it in manually and although we read and re-read it a few times it may contain a typo or three, which we apologize for in advance.

After saying he represents only himself Hubbard actually admits that the board was seemingly oblivious to the section 20.02(D) prohibitions in the Crowell case saying:

When the board discussed Dee Crowell’s request for an advisory opinion in late 2007, I do not remember any discussion of how 20.02D might impact the opinion. I only remember referencing the County Code, section 3-1.7{d}. The board concluded that a Board of Water Commission appointee is not precluded from acting in a representative capacity before other County agencies and departments as long as he complied with code section 3-1.7.

He then says that during the Chun case:

I saw 20.02D for the first time in the light of its plain language and was shocked to realize that I had been on the Ethics board for several years (I have served at least one term prior to my current term without being aware of this issue. I guess it should not be surprising as I believe that this issue has been seldom if ever raised in the 40+ years of the Charter’s existence.

Amazingly he actually admits to apparently never having read the charter section on ethics or at least not giving it any thought before that time. He even admits that on reading the plain meeting he found himself in apparent violation.

But the next paragraph begins to show how his own prejudices- and conflict- clouds his own thinking. He says he:

talked with a former Ethics board member who said it could simply be interpreted to mean that no employee or officer could appear “wearing the hat of their office: in behalf of private interests before any agency, board or commission. This sounded reasonable to me.

Nowhere does any provision of charter, law or rule mention this “hat wearing” construction of Hubbard’s.

But rather than leave it at that he proceeds to try to deconstruct the key phrase and reconstruct it using alternative dictionary definitions of the words that take the words out of context of “appear on behalf of a private interest”

First he separates out the word “appear” from “on behalf of” saying

The word “appear”, particularly when used with the word “before” means “to come formally before an authoritative body”. Another definition is to “come into view, become visible”.

It’s called equivocation, not, as he says earlier being “exact, specific, rational and literal”. “Appear on behalf of” is never a phrase that uses “appear” to mean simply come into view but is rather in the sense that an attorney “appears on behalf” of a client.

Then he continues to work on the words “on behalf of” trying to also separate them from appear” and redefine so it, saying it

can mean in support of, in the interest of, for the benefit of, as a representative of, in defense of. It is my belief, in hearing testimony by Walter Lewis and Horace Stoessel, that they believe that the primary meaning and possibly the only relevant meaning in the context of 20.02D is “as a representative of”. again, I maintain that there are different interpretations here.

To isolate them from appear is to falsify the plain meaning of the phrase by taking them out of context. to read them together is to give them plain meaning

Finally he deconstructs a “private inertest” and tries to pull it out of context saying

“Private interests”, by dictionary definition, means “intended for or restricted to the use of a particular person, group or class”. Yet, I heard Walter Lewis state in his testimony that he felt that the meaning in 20.02D did not include “personal interest” but only the interest of another person or entity. That jives with the above interpretation of behalf = represent. Here again, we have different interpretations.

Whatever Walter Lewis said or didn’t say is irrelevant. In addition to there being a huge difference between a private and public interest (we’ll get to that later) it also removes the two words from the context of the whole phrase.

Hubbard uses this later to say that renewing his driver’s license would seem to be prohibited by this phrase but he ignores the fact that one does not “appear on behalf of” one’s self but rather appears AS one’s self. One cannot refer to one’s self in the third person except as a poetic affectation. When one says “I’m appearing on behalf of myself” it is usually with a note of sarcasm and elicits a chuckle because of course one is just “appearing”, not on behalf of someone by him or herself

He also ignores the fact that renewing a driver’s license is not discretionary as we discussed earlier.

But if those “examples” are troublesome his next few paragraphs are even more telling of his grasping at straws constructed of whole cloth, to combine two phrases.

He says:

The above detail is only to point out that most of us interpret the meaning of 20.02D to make it reasonable to us. I maintain that the board can also interpret the meaning of 20.02D in order to most closely find and identify conflicts of interest.

As we said before, there are separate sections dealing with real and direct conflicts. 20.02(D) is a prohibition on a list of prohibitions in order to avoid potential or perceived conflicts of interest

But next he makes the fatal error, that destroys any relevance of any of his arguments no matter how convoluted and contorted. He writes

If one looks at Code section 3-1.7 (c), (d), and (e), it is apparent that the County Council intended to interpret the meaning of 20.02D when it enacted the code.

Each section of the KCC section 3 notes the charter provision from which it is derived if indeed it is derived from the charter. But 3-1.7 only mentions section 20.01, not 20.02 much less 20.02(D)- which as we said before is not specifically mentioned in the ordinance- leaving the ordinance “silent” on the matter and so leaving the charter provision to stand as the only guide in the matter.

So with blatantly wrong premises in hand Hubbard attempts to list specific cases that could be rationalized using his irrational construct.

The part that stands out here is that if the "appear on behalf of a private interest” phrase is read with plain meaning, all of these “examples” provide areas where application is simple and direct. Only when pretzel logic and wordsmithing – along with a personal interest in making the provision meaningless- is used do they become cloudy.

After the driver’s licenses example Hubbard list others.

Here are some of the most contorted.

While I was on the salary commission and ethics board, I represented Grove Farm at the Real Property Division for agricultural dedications. Did I appear? Some say no since I did not go before a group. While I did not appear before the appeals board, would that have been any different than my dealings with the agency in getting agricultural dedications approved? Was there any conflict of interest?

As we said before he attempts to use the magician’s definition of “appear” rather than the lawyer’s.

While Allan Smith was a member of the Salary Commission, I am sure he appeared before the County Council, Planning Department, Public Works, Water Department and Planning Commission as a representative of Grove Farm. Is there any conflict here? This merits some discussion as the Salary Commission has no influence over any other board or commission, with whom Mr. Smith was also dealing.

As we said before, it doesn’t matter if it’s the same board. Hubbard again tries to conflate the conflict of interest provisions with the prohibitions which are based on potential for conflicts when even the ordinance does not list charter 20.02 as the basis for KCC 3-1.7.

Some planners in the Planning Department do drafting work as side employment. The department ethics rules, which the ethics board has approved, allows these planners to bring their work to the department for approval as long as they do not review their own work. They can also walk their plans through other departments with no restrictions (on their own time, of course). Is this appearing before an agency?

This is outrageous if it’s truly happening in our county- not that we doubt it does. People who work in the planning department should certainly not be allowed to seek outside employment where they come to their co-workers for approval of their projects. The prohibition of “work on their own plans” as the only violation is, in itself, a violation of all ethical principles that few if any can’t see is an unethical practice. The questions “what happens when you have to approve the plans of someone who just approved your plan” is almost to silly to have to ask.

Again it makes one ask if someone who can’t see this should even be on an ethics board much less the chair. As does the next one that says

Judy Lenthall appeared last year before the County Council representing the Food Bank. Is that a “private interest”? Did she appear as a board of ethics member?

Again it doesn’t matter if she is wearing a hat or any other finagling apparel . And of course the food bank is a private interest- for profit and not for profit isn’t a charter criteria and there are no “exceptions” for doing “good work”.

A planning commissioner is an architect who represents clients before various county agencies. The board of ethics opines that he cannot represent clients before the planning department, yet may do so before other departments in the county.

If they do they apparently have no basis for doing so.

But finally Hubbard comes upon one important exception- the first amendment "free speech" rights of an individual who seeks to speak in the “public” interest as one on a general law or measure before the county councilor planning commission.

In addition between not being able to distinguish between a private and a personal interest he has trouble with the difference between a private and a public interest

Next he says

A councilmember testifies in favor of a development project before the Planning Commission. Happens all the time. Is that “in behalf of”? A councilmember testifies against a development project before the Planning Commission. Happens all the time. Any difference? What about any employee or officer testifying in favor of a project before the Planning Commission? Don’t we all have the right of free speech and doesn’t the sunshine law to allow us to speak at a meeting? I believe yes and yes, but I must appear as an individual, not a board of ethics member.

Here there is that “public interest” component. What Hubbard attempts to do is to separate out the words “private” and “interest” and reconstruct them giving them a different reading. The word “interest” in the phrase “appear on behalf of a private interest” is one that denotes a direct or even indirect financial or otherwise tangible interest yet Hubbard again seeks to deconstruct and reconstruct in order to evade the plain meaning of the phrase.

In any case the first amendment trumps the county charter under supremacy principles and receives the highest protection from the courts whereas “private interests” do not.

Hubbard’s final evasion is to try to conflate 20.02(D) with 20.02(E) and claim they must be read together.

He writes

An objection by Horace Stoessel and others to the board’s opinions is that they feel my interpretation totally guts the intent of 20.02D and that there would be no examples of violation of 20.02D using my interpretation. I used some examples of an officer or employee using his official position to apply undue influence for a private interest. The objection to this was that section 20.02E covered that and so the meaning of 20.02D was being distorted by the board.


Let’s look at 20.02D and E.

20.02D – “No officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”

20.02E – “No officer or employee of the county shall use his official position to secure a special benefit, privilege or exemption for himself or others.”

Here he implies that only situations that violate the second provision also violate the first, which is simply not what the prohibition list in 20.02 says.

Finally he gives it his last and best misinterpretational effort concluding that somehow the person in question is “ok” as long as they claim they are not “wearing the hat” of the board they sit on based on his equivocal and out of context use of the word “appear”.

If I tried to put my interpretation of 20.02D into words, it would be “No officer or employee of the county shall appear in the capacity of his county position on behalf of private interests before any board, commission or agency. I think that is an appropriate use of the word “appear”. In the dictionary definition, examples given are that you appearing in court as the attorney, at the witness, or as the client. So, it is not just the individual appearing, but appearing in a certain capacity. I maintain this is a little different from 20.02E and use an example to demonstrate the difference.

Hubbard’s letter serves to show not just how his own personal prohibited actions drove his “logic” but how the appointing and approving authorities- the mayor and council- aren’t doing their due diligence in appointing people like him in the first place.

But he isn’t the only one.

At the same 4/08 meeting a memo- also reproduced in whole at the end of this piece and also typed out- from Lenthall was presented. It highlights how, in these people’s minds, it is possible to make these kinds of claims.

She apparently went back to the original charter commission- the one that wrote the charter in the 60’s.

She write to Hubbard

Hi Mark,

HOORAY! In fact, EUREKA! Mystery solved re. Intent of the Code of Ethics issue. Here’s the scoop:

In 1964, work first started on a Kaua`i Charter. A Charter Commission was established in 1965 and in 1966 they had a pretty solid draft that the Commission eventually approved. They seemed to have spent a lot of time trying to reinvent the wheel in 1965, but eventually they called upon the example charters from several mainland cities. The city that they eventually plagiarized the most was Salem, Oregon. And Salem Oregon has the same language that interests us.

Really that’s all you need to know if you read it carefully. But the original charter commission- made up of many attorneys who, like those today, “appeared on behalf of” all sorts of private interests but wanted to serve on the boards and commissions that approve their projects so they tried to insert all sorts of language that would allow them to do so.

She dug up some documents that indicate, not some kind of “original intent”- as she apparently would like to believe- but those thoughts rejected in favor of the ultimately voter-approved provisions.

These might have been some things that some wanted to include to allow their potential conflicts to stand as long as there was no quid pro quo apparent. But the important part is that they were not included in the charter, most likely not as some kind of oversight but for good reason..

She wrote

Since 1968, the language we currently see in our Code of Ethics (for those sections that interest us for the moment) has been identical. No changes. Thus, the intent of this language has to be found sometime in 1965-1966 (I’m assuming that this went to a public vote in 1967? I don’t know).

So, I got the minutes from their discussion about this and here it goes:

1964

Code of Ethics DRAFT PROPOSAL (NOTE: This is a typed sheet with lots of internal corrections and hand-written notes on it). This is NOT the Charter Commission people’s work yet, but elected leaders?)

1. Nothing contained herein shall preclude the acceptance of contributions for election campaigns.
2. Full disclosure in writing to appointing authority or council, to be of public record, of such interests, at any time that such conflict becomes apparent.
3. No outside employment, business or professional activity which may impair his independence of judgment in exercise of official duties, or might induce him to disclose confidential information, or which is otherwise inconsistent or incompatible with or which interferes with the proper discharge of official duties.
4. Council to disclose interest in writing prior to vote.

Lenthall also seems to rely on the ordinance that as we said is actually silent as to the 20.02 prohibitions and then tries to divine some kind of “intent” from the proposed provisions even though. as she notes, they were rejected.

She goes on to say

So, the above was the original start of this issue. This draft was sent to the newly formed Charter Commission who promptly rejected it (and a LOT more), The Charter Commission apparently felt that THEY were supposed to be the crafters of this document. The first Charter Commission in Kaua`i discussed the code of ethics stuff at their April 19th and April 26, 1966 meetings, and they flushed out the section we’re interested in.

Though she’s not clear about who “they” are it’s presumably the council although the words “code of ethics” refer to both KCC section 3- passed by the council after the charter- and the charter section 20 itself.

She then apparently cites some other proposed but rejected language to show it should have been included or indicates some kind of intent, even though it also was never included.

April 19, 1966 info:

I need to scan and attach this whole page because it’s too much to write. Briefly, it says if you get PAID in whole or part by the County, (NOTE: This would exclude Board volunteers!), you can’t represent private interests before any agency. Then it says:

This section shall not be construed:

to prohibit any officer or employee from being affiliated with, employed by or representing a person, firm or corporation whose direct and indirect interest in business dealings with the county forms an insubstantial part of its total business, provided that he has not been retained for the purpose of appearing before the whole agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency.
to prohibit any officer or employee from appearing before any agency upon matters only incidentally part of the employment provided that he has not been retained for the purpose of appearing before the agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency;

Her interpretation again indicates how her compromised position has compromised any objectivity in the matter, further writing

The jist (sic) of the above is that I think they were trying to REALLY define stuff to be important and payment can’t be contingent on the action of the agency...
.
To me, the intent of the original crafters (1964) was a) disclose; b) don’t mess with anything that could impair your independent judgment. I’ll buy BOTH of those intents. The 2nd version again tries to a) disclose; and b) establish an importance factor to the matter; but muddies the waters with the WHOLE AGENCY language. What? It’s OK to meet before PART of the agency?

Unfortunately, ALL this deliberation got reduced to the VERY simplistic phrase, “Thou shalt not appear before any agency” because this was the copied language from Salem, Oregon. this was the language that was eventually approved for the County’s FIRST charter, and the language which has remained ever since 1968.

But the point is, I think I’m clear now in the intent, and I think it makes sense.

It might “make sense” if you are trying to construct some rationale for violating the plain reading of a law of which you are in violation.

It might “make sense” if you forget about the fact that they apparently rejected the provisions because they were simply so unethical that they thought they’d better go to a generally accepted standard of ethics rather than insert one cooked up in a paternalistic backroom by representatives of plantations seeking to implement watered down ethics laws and allow themselves carte blanche to concoct public policy to their own benefit.

But if all that isn’t troublesome enough, the fact that she is in a compromised position has clouded her judgment even on such issues as stealing from the county.

She finally says

Alas, there is NOTHING on “don’t use county property for personal use” because that too appears to be a copied section with ABSOLUTELY no wiggle-room. Seems to me that if we use the original crafters logic, a level of importance or value might be tried to using county property for person use, before we get every mislaid paper clip, phone call, vehicle person errand, etc. before the Board of Ethics.

The much abused “paper clip” example has been used by thieves to discredit the law since paper clips were introduced to offices.

It all points to the self-distorted mindset of the Kaua`i Board of Ethics that attempts to reduce all ethical provisions- except for direct self-dealing transaction and observable quid pro quos- to absurdity through disingenuous self-serving, out-of-context word manipulation and faulty logic, combined with an intentional misreading and just plain untrue claims.

Many see this debacle as a reason for re-writing the ethics provisions in the charter and county code. But other than amending the county code to reiterate the charter provisions there is little that needs clarifying to those who approach the issues raised before the BOE with a clear mind and without being in violations of those provisions they are sworn to uphold.

But it is hard to really blame the appointed individuals and hold them wholly responsible. If the county council and the mayor had bothered to read the laws they were sworn to uphold, they wouldn’t be appointing those few in the community who routinely appear on behalf of private interest before agencies, board and commissions to those very board and commissions, especially the one that determines complicity with the law.

Like Caesar’s wife the BOE members should be beyond reproach, and certainly not guilty of the laws they are supposed to uphold.

But there may be one provision that needs to be enacted. At present, according to county and state law the place to file a complaint would be... yes, the Kaua`i Board of Ethics.

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Mark Hubbard’s Perspective of Kauai County Charter Section 20.02D (in full)

The issue of Charter Section 20.02D has been bothering me for about a year now and I wish to give you some history and mostly my rationale for my current personal position on the interpretation of section 20.02 D. The below views and statements are mine personally and are not to be attributed to the Board of Ethics or any other member of that board.

When the board discussed Dee Crowell’s request for an advisory opinion in late 2007, I do not remember any discussion of how 20.02D might impact the opinion. I only remember referencing the County Code, section 3-1.7{d}. The board concluded that a Board of Water Commission appointee is not precluded from acting in a representative capacity before other County agencies and departments as long as he complied with code section 3-1.7.

In early 2008, the issue of section 20.02 came up in regard to Jonathan Chun’s request for an advisory opinion regarding his representing clients before various County agencies and departments. Several members of the public, including Horace Stoessel, maintained private interests before any board, commission or agency. I saw 20.02D for the first time in the light of its plain language and was shocked to realize that I had been on the Ethics board for several years (I have served at least one term prior to my current term without being aware of this issue. I guess it should not be surprising as I believe that this issue has been seldom if ever raised in the 40+ years of the Charter’s existence.

Another reason for my being bothered by this language is that I like to be exact, specific, rational and literal. I talked with Horace Stoessel who I had previously served with on the Salary Commission and for whom I have considerable respect. I also talked with a former Ethics board member who said it could simply be interpreted to mean that no employee or officer could appear “wearing the hat of their office: in behalf of private interests before any agency, board or commission. This sounded reasonable to me as a way of fitting the board’s opinion regarding Dee Crowell and many other examples in apparent conflict with a plain language interpretation of 20.02D. Yet, Horace and others felt that the broad has no authority to “narrow: the language of 20.02D, as it is the Charter and the voice of the people. The board ended up saying that Jonathan Chun could in fact represent private interests in front of boards and commissions other than the Charter Review Commission, of which he was a member.

The controversy is still around as evidenced by Horace’s email. What continues to concern me is how am I able to reconcile a myriad of situations which can be seen to conflict with a plain language interpretation of 20.02D.

It is my current belief that the board has the right to interpret 20.02D. This is based on my observation that everyone who has opposed the board’s opinions in this matter (with possible exception of Bruce Pleas) has in fact interpreted 20.02D in their own way (as I will indicate below).

Let us look specifically at the language and some examples. The language says that “no officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”

- “Officer or employee” covers all county employees, elected officials, appointees and board and commission members. No one seems to have different interpretations of this term.


- The word “appear”, particularly when used with the word “before” means “to come formally before an authoritative body”. Another definition is to “come into view, become visible”. Here there are different interpretations. Many would say that getting one’s driver’s license is not “appearing” before the Finance Department. I won’t disagree.

- The word “behalf”, often used as “in behalf of” or “on behalf of”, can mean in support of, in the interest of, for the benefit of, as a representative of, in defense of. It is my belief, in hearing testimony by Walter Lewis and Horace Stoessel, that they believe that the primary meaning and possibly the only relevant meaning in the context of 20.02D is “as a representative of”. again, I maintain that there are different interpretations here.

- “Private interests”, by dictionary definition, means “intended for or restricted to the use of a particular person, group or class”. Yet, I heard Walter Lewis state in his testimony that he felt that the meaning in 20.02D did not include “personal interest” but only the interest of another person or entity. That jives with the above interpretation of behalf = represent. Here again, we have different interpretations.

- “board, commission or agency” means, by Charter definition, “any office, department, board, commission or other governmental unit of the county”. This would include the County Council. I have seen no disagreement on this interpretation to date.

The above detail is only to point out that most of us interpret the meaning of 20.02D to make it reasonable to us. I maintain that the board can also interpret the meaning of 20.02D in order to most closely find and identify conflicts of interest.

If one looks at Code section 3-1.7 (c), (d), and (e), it is apparent that the County Council intended to interpret the meaning of 20.02D when it enacted the code.

Let’s look at several examples of how a broad interpretation of 20.02D can affect many actions that have occurred in the past and are occurring today, without any claim of conflict of interest or ethical misconduct. While I mention individual names and companies in the some cases, it is only that I know of these and to give a clear example, yet I am sure that there are a myriad of other similar examples that I do not know personally about.

- I go to the Finance Dept to renew my driver’s license. Am I appearing before them? Is it a private interest?

- While I was on the salary commission and ethics board, I represented Grove Farm at the Real Property Division for agricultural dedications. Did I appear? Some say no since I did not go before a group. While I did not appear before the appeals board, would that have been any different than my dealings with the agency in getting agricultural dedications approved? Was there any conflict of interest?

- While Allan Smith was a member of the Salary Commission, I am sure he appeared before the County Council, Planning Department, Public Works, Water Department and Planning Commission as a representative of Grove Farm. Is there any conflict here? This merits some discussion as the Salary Commission has no influence over any other board or commission, with whom Mr. Smith was also dealing.

- Councilmember Mel Rapozo appeared before the Ethics board to seek an opinion about his company’s successful bid to deliver subpoenas for the County. Of note is that he stated that he was appearing not as a councilmember, but as the owner of his business. This was at the same meeting when members of the public were objecting to Jonathan Chun’s representing clients in front of other commissions. At the same Ethics board meeting, Councilmember Shaylene Iseri-Carvalho spoke in favor of Mel’s company contract. When I asked if any of them thought that Mel or Shaylene’s appearance before us violated 20.02D, no one spoke up. In fact several said it was appropriate. This still bothers me as I see no difference between the actions of Jonathan and the actions of Mel and Shaylene when it comes to section 20.02D.

- Some planners in the Planning Department do drafting work as side employment. The department ethics rules, which the ethics board has approved, allows these planners to bring their work to the department for approval as long as they do not review their own work. They can also walk their plans through other departments with no restrictions (on their own time, of course). Is this appearing before an agency?

- Judy Lenthall appeared last year before the County Council representing the Food Bank. Is that a “private interest”? Did she appear as a board of ethics member?

- Any officer or employee goes before the Planning Commission for a permit for his own property. This happens on a regular basis. Is this “in behalf of private interests”? More often, they go to the Planning Department and Public Works Department for building permits. Many times, they will walk the permits through. I have done that. Is this “appearing before”?

- A planning commissioner is an architect who represents clients before various county agencies. The board of ethics opines that he cannot represent clients before the planning department, yet may do so before other departments in the county.

- A County solid waste worker wants to bid on a competitive proposal by the county within his own department. He comes before the Ethics board to ask for an opinion. Is he appearing in behalf of private interests?

- A councilmember testifies in favor of a development project before the Planning Commission. Happens all the time. Is that “in behalf of”? A councilmember testifies against a development project before the Planning Commission. Happens all the time. Any difference? What about any employee or officer testifying in favor of a project before the Planning Commission? Don’t we all have the right of free speech and doesn’t the sunshine law to allow us to speak at a meeting? I believe yes and yes, but I must appear as an individual, not a board of ethics member. I believe there is a difference. Jonathan Chun is on the Charter Review Commission. He represents clients in front of the Planning Commission and County Council. Is there a conflict of interest?

I hope you can imagine that there are many more examples. I see no conflict of interest or inherent violation of ethical conduct in any of the above examples.

Judy Lenthall did some research into the history of the language of 20.02 and the intent behind 20.02D. I attach her email for your interest. While her research gives an indication of the intent of the charter language, I will never be sure of the intent since it was done in the mid-sixties and I was not there. I do have one indication of the intent and that is section 20.04 (Disclosure) which states that included in the disclosure must be “the names of persons represented before government agencies”. Why would this disclosure be required if one was prohibited from representing private interests?

An objection by Horace Stoessel and others to the board’s opinions is that they feel my interpretation totally guts the intent of 20.02D and that there would be no examples of violation of 20.02D using my interpretation. I used some examples of an officer or employee using his official position to apply undue influence for a private interest. The objection to this was that section 20.02E covered that and so the meaning of 20.02D was being distorted by the board.

Let’s look at 20.02D and E.
20.02D – “No officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”
20.02E – “No officer or employee of the county shall use his official position to secure a special benefit, privilege or exemption for himself or others.”
If I tried to put my interpretation of 20.02D into words, it would be “No officer or employee of the county shall appear in the capacity of his county position on behalf of private interests before any board, commission or agency. I think that is an appropriate use of the word “appear”. In the dictionary definition, examples given are that you appearing in court as the attorney, at the witness, or as the client. So, it is not just the individual appearing, but appearing in a certain capacity. I maintain this is a little different from 20.02E and use an example to demonstrate the difference.

- The mayor goes to the building department and asks the department to issue his friend a pending permit right away. In my opinion, this would be undue influence and a violation of ethics and 20.02D. It might not be a violation of 20.02E as a permit being issued is not necessarily a special benefit, privilege or exemption.

As a final bit of information, I looked through all the board of ethics opinions since 1976. I only found 5 that related to appearing before boards, commissions or agencies. Two opinions, in 1999 and 2005, stated that an officer or employee could testify or appear before boards commissions or agencies in a personal capacity, but no in their county capacity. Three opinions, two in 2007 and one in 2008, allowed board or commission members to represent private interests before boards, commissions and agencies other than their own. These last three opinions, by the way, were made by the same board of ethics, which included myself, Judy Lenthall, Leila Fuller and Bob Farias.

I agree with Horace that the County’s Guide to Ethical Issues has an example which can be considered contrary to the Jonathan Chun and Dee Crowell opinions. I suggest a remedy that I am sure Horace would object to and that is to delete this example from the handbook. We can in the near future review the entire handbook and may be able to address section 20.02D in a clear manner. Yet, we should delete the example of page 7 now,

Sincerely,
Mark Hubbard
2-23-09
Attachment: email from Judy Lenthall dated 5-14-08

_______________

Judith Lenthall memo (in full)

Hi Mark,

HOORAY! In fact, EUREKA! Mystery solved re. Intent of the Code of Ethics issue. Here’s the scoop:

In 1964, work first started on a Kaua`i Charter. A Charter Commission was established in 1965 and in 1966 they had a pretty solid draft that the Commission eventually approved. They seemed to have spent a lot of time trying to reinvent the wheel in 1965, but eventually they called upon the example charters from several mainland cities. The city that they eventually plagiarized the most was Salem, Oregon. And Salem Oregon has the same language that interests us.

Since 1968, the language we currently see in our Code of Ethics (for those sections that interest us for the moment) has been identical. No changes. Thus, the intent of this language has to be found sometime in 1965-1966 (I’m assuming that this went to a public vote in 1967? I don’t know).

So, I got the minutes from their discussion about this and here it goes:

1964

Code of Ethics DRAFT PROPOSAL (NOTE: This is a typed sheet with lots of internal corrections and hand-written notes on it). This is NOT the Charter Commission people’s work yet, but elected leaders?)

5. Nothing contained herein shall preclude the acceptance of contributions for election campaigns.
6. Full disclosure in writing to appointing authority or council, to be of public record, of such interests, at any time that such conflict becomes apparent.
7. No outside employment, business or professional activity which may impair his independence of judgment in exercise of official duties, or might induce him to disclose confidential information, or which is otherwise inconsistent or incompatible with or which interferes with the proper discharge of official duties.
8. Council to disclose interest in writing prior to vote.

So, the above was the original start of this issue. This draft was sent to the newly formed Charter Commission who promptly rejected it (and a LOT more), The Charter Commission apparently felt that THEY were supposed to be the crafters of this document. The first Charter Commission in Kaua`i discussed the code of ethics stuff at their April 19th and April 26, 1966 meetings, and they flushed out the section we’re interested in.

April 19, 1966 info:

I need to scan and attach this whole page because it’s too much to write. Briefly, it says if you get PAID in whole or part by the County, (NOTE: This would exclude Board volunteers!), you can’t represent private interests before any agency. Then it says:

This section shall not be construed:

to prohibit any officer or employee from being affiliated with, employed by or representing a person, firm or corporation whose direct and indirect interest in business dealings with the county forms an insubstantial part of its total business, provided that he has not been retained for the purpose of appearing before the whole agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency.
to prohibit any officer or employee from appearing before any agency upon matters only incidentally part of the employment provided that he has not been retained for the purpose of appearing before the agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency;

The jist (sic) of the above is that I think they were trying to REALLY define stuff to be important and payment can’t be contingent on the action of the agency. What is a little confusing is the “you can’t be retained to appear before the whole agency.” What do you think that means?

To me, the intent of the original crafters (1964) was a) disclose; b) don’t mess with anything that could impair your independent judgment. I’ll buy BOTH of those intents. The 2nd version again tries to a) disclose; and b) establish an importance factor to the matter; but muddies the waters with the WHOLE AGENCY language. What? It’s OK to meet before PART of the agency?

Unfortunately, ALL this deliberation got reduced to the VERY simplistic phrase, “Thou shalt not appear before any agency” because this was the copied language from Salem, Oregon. this was the language that was eventually approved for the County’s FIRST charter, and the language which has remained ever since 1968.


But the point is, I think I’m clear now in the intent, and I think it makes sense.

Alas, there is NOTHING on “don’t use county property for personal use” because that too appears to be a copied section with ABSOLUTELY no wiggle-room. Seems to me that if we use the original crafters logic, a level of importance or value might be tried to using county property for person use, before we get every mislaid paper clip, phone call, vehicle person errand, etc. before the Board of Ethics.

So the question I have now is what do I do with this info? Turn it over to Barbara? Can I give it to the guy that seems to have the biggest beef about this language? What?

In any even, I am finally satisfied about the intent and if given this information BEFORE, I would NOT have abstained from my vote.

IMUA!

Aloha,

Judy

(PNN) Unethical culture- Government service with a personal “touch”- Part 2

The following is the second in a three-part series of articles regarding reported apparent violations of the Kaua`i County Charter by the Kaua`i County Board of Ethics. Much of the report is based on BOE related documents PNN has recently obtained.

(PNN) Unethical culture- Government service with a personal “touch”

Part Two - The Long and Winding Road to Inertia.

Section XX (20) of the Kaua`i County Charter is called the “Code of Ethics” and is the main document that guides ethical conduct of government employees and officials in the county.

The county also has a law called the “Code of Ethics” contained in Chapter 3 Article 1 of the Kaua`i County Code.(KCC).

The Board of Ethics (BOE)- created by the charter- also has “administrative rules”, also known as “ad rules” that detail administrate procedures for the board.

A “charter” is a document that is like a constitution, usually for local or municipal governments. The county and the various states have constitutions. Locales have charters and they serve the same purpose- to give, in broad terms, guidelines for creating ordinances or laws that implement the charter.

Laws must be in compliance and conform with charters, not the other way around. If a conflict exists, the charter “trumps” the law.

Similarly, ad rules- a creation of the state through Chapter 91 of Hawai`i Revised Statutes- must conform to both the code and the charter.

But the Kauai` Board of Ethics (BOE) ad rules, as they stand right now, give the BOE the right to seemingly select either the charter or the code using the term “or” rather than “and” when addressing the issue.

And the BOE hasn’t been shy about conveniently selecting one or the other over the years in applying “situational ethics” to cases presented to them by the public and the various and sundry county employees and/or officials.

An examination of 106 cases the board has dealt with dating back to August of 1976 shows that some decisions are based on the charter, some on the code and some on both.

The problem is that while the code deals only with a flesh-out of direct conflicts there is nothing pertinent to conflicts of interest in the charter about “direct” conflicts except for disclosures and there is noting at all in KCC Chapter 3 Article 1 regarding the prohibitions in Section 20.02(D) of the Charter telling “employees or officers” they may not “appear on behalf of private interests” before other county entities

The code deals with things like gifts, confidential information, fair treatment, contracts, requirements of disclosure, restrictions on post employment and, most importantly for our purposes, conflicts of interest in Section 3-1.7.

The Conceits of Interest section says

“(a) “No employee shall take any official action directly effecting:
(1) A business or other undertaking in which he has a substantial financial interest or
(2) A private undertaking in which he is engaged as a legal counsel, advisor, consultant, representative or other agency capacity.”

The only exceptions are for a department head who is “unable to disqualify himself” or “a member of a board, commission or committee whose participation is necessary in order to constitute a quorum”.

It then goes on to prohibit all kind of “direct” conflicts, where an “employee or councilman” would be exercising direct discretionary consideration of a request in which he has an interest. But is entirely silent when it comes to the prohibition in the charter’s article 20.02(D) prohibitions

The charter does have a section 20.04 that deal with “Disclosures” that says

“Any member of the council or any board or commission who knows he has a direct personal financial interest in any proposal pending before the body of which he is a
member shall disclose such interest to such body”

It goes on to discuss recusal in the matter but only as pertains to disclosure of “direct” conflicts and in no way negates the other parts of Section 20.

Other than that the discussion of direct vs. indirect and potential vs. real conflicts is fully a construction of the code, not the charter.

But just because “direct” conflicts are banned in the code doesn’t make them the exclusive kind of conflict that is forbidden, as the charter states.

Also “significant” referring to an amount, doesn’t appear in charter section 20 and is also a construction of the code.

The combination of the code’s lack of any reference to 20.02(D), the ad rules mention of adhering to the “charter OR code” and the code’s detail of only “direct” and “significant” amounts in considering conflicts, all make for an easy way for the BOE to ignore the provisions of the charter..

And they haven’t been shy, especially lately, about exercising this questionable discretion.

That penchant, as far as we can glean from reading the minutes of the board’s meetings along with looking at the recent decisions, is most likely supported by whatever is contained in the secret county attorney’s opinion that the board refuses to release, as we described yesterday.

It apparently looks at the code in isolation from the charter and says that if it doesn’t violate the code it is not a violation of the “Code of Ethics”. It seemingly directs the BOE to consider only the conflicts that are listed in the code which has limited conflicts to “direct” and “significant” types, where the charter does not contain this language at all.

That has led to the leap in logic which says that if it is not prohibited in the code, it is not prohibited at all, no matter what the charter says.

In a logical solecism, this would be like saying in the broad class of “animals” there exists “pigs” and then to conclude if an animal is not a pig, it is not an animal.

Two cases over the past year or so have highlighted this penchant for ignoring the charter in order to clear those who have apparently violated Section 20.02(D) of the charter.

The first came to the BOE strangely enough via a memo, dated Dec. 5, 2007 to Office of Boards and Commissions Administrator John Isobe from the Chair of the BOE,. Leila Fuller, in a “Request for an Advisory Opinion Regarding Potential Conflict Situations”

She asks “whether a member of a county board or commission may represent his/her employer or company before a County department and/or commissions?”

Then she goes into some “background” regarding the appointment of former planning Director Dee Crowell who now sits on the Board of Water Supply while working as “Vice President of Land Development for The Resort Group”.

“As part of his work Mr. Crowell may be required to personally meet with departmental staff regarding zoning and other permitting issues... as well as represent his company before the Planning Commission and or County Council. In either case is Mr. Crowell precluded from meeting with administrative department staff and/or appearing before the Planning Commission/County Council on behalf of his employer? (emphasis added) wrote Fuller, not Crowell himself.

But even more ominous than Fuller’s seemingly advocating for an individual who may be in conflict with the ethics laws of the county is her last sentence.

“(The opinion requested) will also provide guidance in determining whether future appointees with similar situations are relatively clear from potential conflicts”, Fuller concludes implying what side she will come down on when the matter comes before the board.

In a contested BOE hearing that made headline a few years back, Police Commission chair Michael Ching was accused of essentially being an advocate for eventual police chief, KC Lum, because he had favored Lum during the commission’s selection process.

How Fuller’s advocating for Crowell for a “special privilege” – not just during deliberations but before they even began- is not a similar circumstance is not apparent.

The Crowell decision was delivered to Isobe in a letter darted December 31, 2007 signed by Fuller, Vice Chair Mark Hubbard and Secretary Judy Lenthall. It said”

“The Board of Ethics finds that the County Charter and County Regulations regarding ethics do no preclude Mr. Crowell from acting in a reprehensive capacity before other County agencies and departments besides the Board of Water and the Water Department so long as he complies with Sect 3-1.7 (Conflicts of Interest) of the County Regulations.”.

But strangely enough there is no mention of any BOE meeting where they would have made this determination in any record of the BOE other than the letter. As a matter of fact, it is not even listed among the 106 cases where advisory opinions were either sought or rendered.

The next case was the one we discussed briefly in part 1 of this report regarding Attorney Jonathan Chun.

This time it was Chun himself soliciting an advisory opinion. In a letter dated January 30, 2008 Chun writes saying he is “serving as chair of the Kauai County Charter Commission” and cites charter section 20.02(D).

He also notes that “(a)s a private attorney I have appeared before the County Planning Commission and the County Liquor Commission. Since my appointment to the charter Commission I have appeared before the County Planning Commission and the County Council”

Chun then attempts a lawyerly ploy to direct the BOE to what he sees as a redeeming technicality.

He points to KCC “Section 3-1.7(e) which states that no “employee shall assist any person or business or act in a representative capacity before a County agency for a contingent compensation in any transaction involving the county’ (emphasis his)”.

He later says “(m)y work before any county agency is done on a hourly basis and not on a contingent fee”.

This almost laughable equivocation of the word contingent- even going to the length of using the term “contingent fee” rather than the usual “contingency fee”- ignores the fact that the word is used in the code to denote a fee that is contingent on performing the actions before the agency, board or commission and not about how the representative’s payment is structured.

But then he goes on to his main point that the KCC’s Section 3.17 only forbids representation “if he has official authority over that county agency” leaving out the previously cited the prohibition in 20.02(D).

The decision? The list of advisory opinions says:

“Relative to information in the Code of Ethics and Charter, Board finds that appointee may continue to appear as a private attorney before other County agencies on behalf of his clients. Dissenting opinion noting abstention based on taking 20.02(D) at face value or with a broad interpretation.”

That dissenting abstention was reportedly from Secretary Lenthall. In a letter describing her apprehension she foreshadows, for the first time in writing, the contentions she, Fuller and Hubbard would later expound upon- that 20.02(D) read strictly would prohibit her from things like applying for a camping permit or testifying as a private individual before a the council or planning commission on a law that would affect her business.

But she also asks “(a)m I required to forgo my responsibilities to the Food Bank (a private non profit corporation) because I serve on the Board of Ethics?”

20.02(D) apparently provides that answer-she must resign from one or the other..

The current ad rules that call for selectively applying either the code of the charter is up for review by the BOE. The new proposed rules are wide ranging and seemingly give the board even more discretionary powers regarding processing of complaints, allowing them to reject cases out of hand, decide them without even having a hearing, and includes a clause to let them not allow any testimony from the complainant.

And although HRS Chapter 91 on ad rules compels a lengthy process with public hearings for changing even a comma, the BOE is talking about just changing the rules willy-nilly because they aren’t “significant changes”.

One of the proposed new rules is to change the “or” to an “and” in the definition of the “Code of Ethics” so it’s not the charter “or” the county code but both taken together on which they base their decisions.

The precedent was set with the Chun case. But how would the board justify their decision?

Look to this space for part three- Deep Thoughts- a “Handy” Diversion.

CHASING ANOTHER TALE

CHASING ANOTHER TALE: This week’s Kaua`i Board of Ethics (BOE) meeting promises to be more of the same- a few hours of attempts to act unethically, cover-up past lapses of ethics by board members and hide everything else they do from the public, along with yet another attempt to strip the county charter’s ethics provisions of it’s conflict-of-interest section.

Testimony by designated BOE watchdog and “nitpicker” Horace Stoessel arrived in our inbox this morning and it’s too important to let it wait for later this week, if only so that perhaps it will motivate some to clear their calendar for this Thursday morning and show up, preferably with pitchforks and torches.

The first thing Stoessel addresses is a little item at the end of the agenda- an “executive session” closed to the public which is listed on the agenda as

ES-3: CONSULTATION WITH ATTORNEY
Discussion and consultation with the County Attorney regarding the process for releasing County Attorney opinions and is there a need for consistency throughout the County.

Horace wrote:

The primary fact confronting the public for months, now stretching into years, is that county agencies are not releasing opinions even though the authority and responsibility for releasing them resides with client agencies. Indeed, focusing on process and the need for uniformity has served as a prime excuse for not releasing opinions and not holding open discussions.

“Months” is an understatement since the refusal to acknowledge any public function to the office of the county attorney (CA) goes back to the beginning of Mayor Bryan Baptiste’s administration when he appointed Lani Nakazawa to the post and she redefined the job to eliminate any public component and only serve her “clients”- defined as county government officials and personnel.

At first that meant that any release of official written “opinions” had to be through the entity that asked for and got the opinion.

And that was, at first, routinely done.

But with the election of now former Councilmembers Mel Rapozo and Shaylene Iseri Carvalho things changed in most part due to two related matters- an “investigation” of the Kaua`i Police Department the two cooked up and the council approved (but never officially executed after the council used the BOE to purge Police Chief KC Lum) and a matter known as the infamous “ES-177” where Rapozo. a former scandal-plagued KPD officer apparently said way too much behind closed doors about police matters and the then-upcoming investigation.

This led to a full clamp down on public release of all correspondence- even formal opinions on matters of law- from the CA’s office to the council.

Whereas before opinions were either released by the CA or by a councilmember if he or she originally sought it, an informal policy was used to release the opinions only after a “council approval”, where a majority vote was used at least once.

When Councilmember Tim Bynum came on board and tried to get the council to vote on the release of some of these opinions- as most councilmembers publicly promised to do- Chair Kaipo Asing and then member, now Vice Chair, Jay Furfaro claimed that before the vote there had to be a written formal policy for how the vote would be conducted and what percentage the affirmative vote had to be- just a majority, two-thirds or even unanimous.

This little ploy has now become the “de rigor” delaying tactic, not just for the council but for all boards and commissions on the island, This has especially benefited the BOE which has not just withheld opinions but constantly flouted the sunshine and open records laws, even codifying illegal activity in their administrative rules.

But that wasn’t enough of a delaying scheme to stand up forever and now, after a couple of years of playing Alphonse and Gaston the BOE came under pressure to simply enact a policy for the release of CA opinions.

Enter John Isobe, director of boards and commissions, a post created by a charter amendment in 2006 supposedly to oversee and assist commissioners and board members in fulfilling their duties.

Isobe- a long time entrenched member of the revolving-door old boys and girls network- has used his position to make sure that those citizen members did things the way they’ve always done things and not rock the boat.

In service of continuing the delay, Isobe has suggested that an individual board or commission should wait on creating a policy for CA releases until, as the agenda for ES-3 says, the question “is there a need for consistency throughout the County?” is answered.

The agenda promises to rehash an even more absurd but related matter- the attempt by the BOE to gut the county charter of the conflict of interest provisions in Section 20.02(D) of the county charter that prohibits board and commission members from representing private interest before the county, including of course boards and commissions... including the county council.

Seems some of the BOE members are still in blatant conflict of that pesky little provision.

Apparently is wasn’t enough of a rebuke to both the BOE and the charter commission when voters overwhelmingly rejected dropping the charter provision in 2008, because on the agenda this week is this item:

Letter of March 25, 2009 from Charter Review Commission requesting input from the Board of Ethics as to whether Section 20.05 D (2) of the Kaua`i County Charter should be amended and, if yes, suggestions on how it should be amended.

For years the 20.02(D) conflict provisions were just ignored by the well connected who routinely went before the council and county boards and commissions seeking, for example, things like zoning or even grants of money from the council or development projects’ approval permits from the planning commission, while serving on other boards of commissions.

But in 2007-8 a member of the charter commission, former state senator and attorney Jonathan Chun, was routinely appearing before the council representing the Board of Realtors on the vacation rental bill before the council at the time.

Chun then made a fatal error of judgment when he actually asked the BOE for a ruling on whether he was in violation of 20.02(D)

Stoessel’s testimony tells the story from there in what he calls “The Case Of 20.02D”

The issue of the County Attorney opinion related to Jonathan Chun’s request for an advisory opinion has been outstanding for more than a year. It may represent the only time the Board of Ethics has sought a legal opinion before issuing an advisory opinion. It is also interesting that the Board issued an advisory opinion involving similar circumstances just three months previously in which the Board felt no need to ask for a legal opinion or to meet in executive session.

Once the Board emerged from executive session in March, 2008 a motion was made and approved to allow Mr. Chun to continue the activities referenced in his request for an advisory opinion. The motion as approved failed to meet even the minimum test for public disclosure because it cited no statutory basis for the decision, instead making a vague and misleading reference to information in the Code of Ethics and the Charter.

The Board also refused to release the legal opinion it purportedly used to justify its decision. When I asked the Board to justify keeping the opinion secret, the chairman replied, “I do not intend to answer that, Horace. It could be that I don’t know; it could be that I just don’t wish to answer that question.”

But the BOE’s utter refusal to enforce the law- or state why- was only the beginning.

Chun wasn’t the only one engaged in this practice.

In fact then BOE Chair, now Vice Chair Mark “Mother” Hubbard was a vice president at land baron Grove Farm and he and his brethren- many also serving on boards and commissions- routinely made requests from the county council and administrative boards and commissions on behalf of themselves and/or clients.

BOE member Judy Lenthall is the Executive Director of the Kaua`i Food Bank which just received another grant from the county council this year after she appeared before them hat in hand.

Oh and by the way, the BOE has also cleared Furfaro, Asing, Rapozo and other council members from potential conflicts in the past.

So in appreciation for the clean bill of health for Chun’s apparently “dead on arrival” clearance, Chun turned around and, as a member of the charter commission, put a measure on the ballot to just eliminate that pesky 20.02(D) from the charter.

Stoessel’s testimony takes it up from the Chun decision:

In succeeding months the Board encouraged the Charter Commission to offer a charter amendment exempting all county personnel from having to comply with 20.02D rather than exempting only board/commission members. However, the commission restricted the scope of its proposed amendment to board/commission members and the amendment was then rejected by the voters in November, 2008. Their rejection revived questions about the Board’s handling of 20.02D and the March, 2008 legal opinion.

For my part as a responsible member of the public, I am still waiting for the Board to respond directly to the formal argument I offered in February, 2008 in support of basing a response to Jonathan Chun on 20.02D and to additional information I have since cited in support of that argument. The public has been prevented from further commenting directly on the Board’s actions by the Board’s failure to cite a statutory basis for its decision in the Chun case and its refusal to release the legal opinion.

The Board postponed discussion of 20.02D at the March meeting, and seemed to me to indicate that both 20.02D and the March, 2008 opinion would appear on the agenda for April. Did I miss something, or was I justified in being surprised that neither appears on the April agenda?

If it is within the scope of ES-3 (or the last item under BUSINESS), I would like to see the Board vote to release the March, 2008 legal opinion now. Failing that, I ask the Board to place on the May agenda a vote on releasing the opinion and a discussion of 20.02D. In view of the fact that the Board’s last formal statement regarding 20.02D was an expressed desire to exempt all county personnel from having to comply with it, I would like to hear what effect the November vote has had on the thinking of the Board.

So would we. If you’d like to know too go on down there and ask them.

The BOE meeting is at 9:00 A.M. this Thursday, April 9, 2009 in the Liquor Conference Room on the first floor of the Mo`ikeha Building in Lihu`e (the complex where the planning commission meets and where you get your car registered and drivers’ license renewed).

HOW MUCH IS THAT CRONY IN THE WINDOW REDUX

HOW MUCH IS THAT CRONY IN THE WINDOW REDUX: The absurd lawlessness of the bill to allow transient vacation rentals on Ag land- as we described on Friday- will be front and center at Wednesday’s council meeting but if past is prologue we fully expect another bit of illegal activity to emanate from the testimony seat..

Attorney Jonathan Chun should be parking his butt in that little chair sometime in the afternoon and by doing so will violate a county charter provision that Kaua`i voters refused to remove in November.

Chun, a lobbyist for the Kaua`i Board of Realtors who was extremely influential in passing the bill last summer that grandfathered illegal TVRs, is also a member of the Kaua`i Charter Commission that, believe it or not, tried to slip the provision past voters so that Chun could continue to lobby the council while serving on a board or commissions.

The charter passage in question, 20.02(d) is quite simple and reads

Section 20.02. No officer or employee of the county shall:...
D. Appear in behalf of private interests before any county board, commission or agency.

We’ve covered this absurd little dance extensively in the past along with the machinations of both Chun and Ethic’s Board Chair Mark Hubbard and detailed their places high up on the flow chart of Kaua`i cronyism and revolving-door paternalism that characterizes Kaua`i county government.

But while we’ve come to expect this kind of behavior from Chun, this Wednesday will also see a similar violation of 20.02(D) by one of the most selfless, truly-bighearted individuals in pubic service on Kaua`i- Food Bank Executive Director and also a member of the Ethics Board, Judy Lenthall.

Communication C2009-38 is a letter from Lenthall asking for agenda time “to provide a mid-year status report concerning the $58,000 grant authorized by the Kaua`i county Council for the Kaua`i Food Bank’s Food Stamp Outreach Program (July 1, 2008-June 30, 2009)”.

She goes on in the letter to advocate for making sure that hungry eligible people- many who are seniors and many who are reluctant to take government assistance- to sign up for the Food Stamp program.

She also talks about lobbying the legislature this year to eliminate the “assets-testing” provisions that are in our state food stamp law- as most other states have done- which often ban homeowners from the program... as if they could eat their house.

While all are laudable goals and her work is some of the most important on the island, she none-the-less is in blatant violation of the law by “(a)ppear(ing) in behalf of private interests before a... county board, commission or agency.” while serving on the Board of Ethics.

The solution to all these kinds of conflicts of interest are obvious- if your job involved lobbying county boards and commissions, don’t serve on one.

But although we pointed this conflict out to Lenthall this year she continues to serve two masters.

We all appreciate Lenthall’s tireless work feeding the hungry and there could be no better fit for the Food Bank’s ED position. But it’s about time for her- and more so Chun- to resign from their county volunteer positions if they are going to continue to appear before the council hat in hand or advocate for changes in law.

It’s up to the council which approves board and commission members and whose members routinely appear before the Ethics Board as well as other boards and commissions, to put a stop to these blatant violation of the law by either confronting these people when they come to testify or, if they refuse to abide by the law, removing them from their county positions.

TO LIVE INSIDE THE LAW YOU MUST BE DISHONEST

TO LIVE INSIDE THE LAW YOU MUST BE DISHONEST: There will be changes to the Kaua`i County Council committee memberships proposed at Wednesday’s council meeting.

If passed, Tim Bynum will replace Lani Kawahara on the new Economic Development/Housing Committee and Kawahara will replace Dickie Chang on the Planning Committee.

The change will give the three supporters of Jay Furfaro a voting majority on the all important planning panels after complaints that they were shut out of a majority on any of the seven committees by the four members who supported Chair Kaipo Asing.

Although all council members are technically members of all committees, voting members are limited to five each according to council rules. The other two sit ex-officio.

And while there are five bills on the council’s agenda tomorrow, despite reports to the contrary, there is no bill to allow vacation rentals on agricultural lands.

The blogs are all a twitter after a post at Realtor Ronnie Margolis’ blog, saying that

In a letter from Nov. 28th, Councilman Jay Furfaro introduced legislation that was drafted by Joanne Yukimura, former council person who lost her bid for Kauai mayor. The legislation provides for the continuing of vacation rentals in ag land.

That set off a chain of postings and phone calls beginning with a pointer-post by property rights lawyer Charley Foster to ballyhooing the claim on his Planet Kaua`i blog, That spurred Joan Conrow to send out an Eclectic alarm which seems to have caused Councilpersons Lani Kawahara and Tim Bynum to contact “farmer Jerry” of KauaiEclectic fame (who in real life is Wailua farmer Jerry Ornalles) to ask his mana`o about the various ag bills that are “floating around”.

But despite all the panty-bunching there is in fact no such bill on the agenda nor was one “introduced” by the previous council on November 28, when a special council meeting was held with only two executive sessions regarding two different lawsuits on the agenda.

Margolis does his best to make believe there is one though and claims to have a letter from Council Vice Chair Jay Furfaro

Margolis wrote

In the letter Furfaro notes,"since Ordinance No. 864 regulating single family vacation rentals was signed into law by Mayor Bryan Baptiste on March 7, 2008, the financial system of our country has been thrown into major upheaval, with far reaching consequences for our hard-hit visitor industry in Hawai`i. In a recent briefing of the County Council, Kaua`i Visitor Bureau Executive Director Sue Kanoho said that the Kaua`i Visitors Bureau and the Hawai`i Tourism Authority are now focusing on visitors who CAN come to Kaua`i, as opposed to those who WANT to come."

Whether there is such a “letter” is anyone’s guess but Margolis actually posted the make-believe bill which contains almost identical language the purported letter from Furfaro.

The “Findings and Purpose” in the official looking but undated and unnumbered ” bill”- which lacks both the county seal and the required tabulation of votes for “first reading” that would indicate legitimacy- as posted by Margolis says:

The Council of the County of Kaua‘i hereby finds that recent unprecedented events have caused major upheaval in the national and world economy, producing a significant eduction (sic) in visitor arrivals to Kaua‘i and a negative impact on Kaua‘i’s economy, small businesses and families. These events include volatile oil prices and the financial disaster caused by the subprime mortgage crisis and failure of long standing financial institutions. In a briefing of the County Council on October 1, 2008, Kaua‘i Visitor Bureau Executive Director Sue Kanoho reported that Kaua‘i Visitors Bureau and the Hawai‘i Tourism Authority are now focusing on visitors who CAN come to Kaua‘i, as opposed to those who WANT to come. Some of the visitors who can come to Kaua‘i want to stay in single family transient vacation rentals in rural settings.

Margolis ends by saying what you’d expect to hear from a realtor seeking to do some kind- anykine- business these days, what with the non-existent market:

This legislation is also meant to help farmers who need to provide housing to their farm workers by renting the housing that is on the land they are working. Hopefully, this will relieve some stress for those who work the land and provide local-grown food, and help their cash flow in these recessionary times.

The fact is that vacation rentals on ag land are specifically banned by state law (HRS Section 205) and there’s not thing-one Kaua`i can legally do about that despite the search for loopholes by real estate lobbyist attorney Jonathan Chun during the discussion of the recently passed Transient Vacation Rentals (TVR) bill that grandfathered existing TVR’s in non-Visitor Destination areas as designated in the General Plan.

So what does this “bill” seek to do? Ah those devilish details.

It actually calls for existing owners of TVR’s on ag land to come to “non-enforcement agreements” with the planning director.

That right folks. In the proud Kaua`i tradition of “if you don’t like the law just ignore it” they want to go one step further and actually pass a bill instructing the planning department to ignore the law.

Preambles (purposes and findings) aside, the actual language the Margolis’ “law” would change with this monstrosity is:

(e) In cases in which a single-family transient vacation rental located on land designated “Agricultural” by State law does not qualify for a nonconforming use certificate under Sec. 8-17.10(d), the following shall apply: upon a finding by the Planning Director that the applicant has met the requirements of Sec. 8-17.10(c), except for the requirement of a “farm dwelling” under HRS, Chapter 205-4.5, the Planning Department may enter into an enforcement agreement with applicant agreeing not to enforce this ordinance’s prohibition against single-family transient vacation rentals without nonconforming use certificates in non-VDA areas, provided that the enforcement agreement contains, at a minimum, provisions to which all parties agree that:

(1) no rights existing at time of enactment of this ordinance will be extinguished or diminished during the non-enforcement period, nor shall new rights be created during this non-enforcement period, and neither the applicant nor the County shall be deemed to have waived existing rights or made any admissions as to existing rights by entering into said enforcement agreement; and

(2) the enforcement agreement shall terminate upon identification of Kaua‘i’s agricultural lands of importance to the State pursuant to HRS Chapter 205 or identification of agricultural lands of importance to the County and adoption of ordinance(s) regulating said lands, or the owner has D:2008-1427A/lki obtained a special permit under HRS Section 205-6 or March 15, 2011, whichever comes first; and

(3) upon expiration of the enforcement agreement, if the subject dwelling unit is located on lands designated “Agricultural” by State or county law, the applicant, owner, successor, or permitted assigns shall abide by the laws that apply to said lands, or if the subject dwelling unit is located on lands designated other than “Agricultural” by State and County law, or has received a special permit under HRS 205-6, a nonconforming use certificate shall be issued therefor by the Planning Department.

What is really going on of course is that this is happening with a background of the developer’s best friend- the “identification of important agricultural lands” study now being conducted on Kaua`i at the state’s behest.

And, although it was originally passed to identify “important” lands, in a developer’s and realtor’s wet dream the study has morphed into identifying unimportant ag lands so they can be taken out of ag and developed.

But despite the fact that it’s been 30 years since the original mandate to “identify important ag lands” and that no one knows what will happen when and if they are ever identified, this would allow what the state law doesn’t allow by telling our planning director to just ignore their illegality until such time.

Anyone can write a “bill” and given the right software can make it appear official. We suspect that IF this bill is “floating around at the council” (where any expressed commitment to support it by council members would be illegal according to the Sunshine Law) and is being considered at the behest of Yukimura, the odds are that Chun’s fingerprints are all over it.

Chun’s testimony was constantly greeted with breathlessness acquiesced by Yukimura who, during the debacle. sought his counsel. It was instrumental in formulating a bill that resulted in allowing the “grandfathering” of illegal TVR’s in non VDA areas, instead of enforcing the state law against them

Incidentally Chun did all this lobbying by breaking the law himself by not consistently identifying himself before the council as a paid lobbyist for the Board of Realtors, as provided for in HRS Chapter 97 and Council Resolution 2007-2 on council rules.

Another bill (#2294) is up for a 1:30 p.m. public hearing (and has passed first reading) on the agenda tomorrow and does deal with TVR’s. It is one that tightens up and defines some permitting requirements for those seeking to have their illegal yet somehow grandfathered TVR’s in non-VDA areas.

It deals with signs and inspections and comes after the planning department failed to even start the process to create HRS Chapter 91 administrative rules for permitting since the bill passed.

Also on the public hearing agenda is a bill (#2292) that a lot of home owners will greet with enthusiasm and is probably long over due. It would make it so that those appealing their assessments for property tax purposes would only need to show the assessor was off by 10% instead of the current 20% in order to appeal the assessment amount.

There are also bills for first reading,

-one extending the deadline to apply for the new Kuleana Land Exemption from Dec. 31 to Feb. 13,

-one to rezone some residential (R-1) land in Po`ipu to Neighborhood Commercial (the land is adjacent to other Neighborhood Commercial land) and

-one to appropriate $85,000 hire a professional recruitment firm for $65,000 and pay $20,000 for advertising to recruit new police officers.

The meeting starts at 9 a.m. in the council chambers at the Historic county Building on Rice St. in Lihu`e.

DOWN IN THE DARK MY BONE MILL ROLLS

DOWN IN THE DARK MY BONE MILL ROLLS: From yesterday’s Kaua`i Burial Council meeting comes news via the local newspaper that ding-dong the wicked witch has resigned the chair because “life’s too short to put up with some of the things we put up with at the burial council.”

An odd choice of words indeed from Mark “Ainokea” Hubbard, the post around which the current revolving door of cronyism in Kaua`i government revolves, as we’ve detailed.

He has given up his post saying

“I was willing to run the meetings, but it’s not good to have a haole as the chair. You need to have a Hawaiian, a kupuna, to command some respect,” Hubbard said. “People were looking at council with disrespect just because I was the chair.”

Gee, ya think?

The fact is disrespect for Hubbard goes a lot deeper than his ethnicity- a contempt he has earned though his disrespectful actions toward the Kanaka community as well as the community at large.

The veep at Grove Farm- the old land-robbing plantation outfit that has been a prime actor in the genocide of the Hawaiian people for a century- still sits at the head of the Kaua`i (Lack of any Discernable) Ethics Board where he has refused to enforce the ethics law.

He actually tried to change the charter to allow him and his cronies to openly abuse their positions on the various board commissions and the county council this year.

But the defeat of the measure guarantees... well probably nothing.

Hubbard and his gang of disingenuous dullards are so bored of ethics that they have feigned ignorance- and of course have refused to release a county attorney’s opinion- as to what the law means when it says members of boards and commissions can’t represent private interests before other boards, commissions and administrative agencies

Despite Hubbard’s contention that the law is “too broad” and would cause those who serve to not be able to get a drivers’ license he schizophrenically admitted that the clause actually did do something by proposing an amendment to remove the clause from the charter that forbids conflicts.

The board actually cleared another good old boy, attorney Jonathan Chun- the chair of the Charter Commission that approved the proposed charter change- of ethics charges for extensively representing the Board of Realtors before the county council on the vacation rental bill earlier this year.

But despite the re-iteration of the law by the populace don’t expect Hubbard to change his ways should any complaint be filed when Chun appears before the Planning Commission at next week’s meeting representing another client

The Burial Council meeting itself was apparently an affair to remember in Hubbard’s absence, according to reporter Joan Conrow who described some real shenanigans in the infamous “capping” of the Naue kupuna iwi.

Apparently Mike Dega, the head of the contracted “archeological field crew”- i.e. construction workers- took it upon themselves to put a concrete slab over the ancestral bones, saying neither he nor state Archeologist Nancy McMahon approved the measure.

The real news- perhaps the only good thing in all of this- is that the cap, which from previous descriptions of the process we concluded actually encased the bones, was rather what was described as something similar to a “sewer cover” three feet above the bones which could be removed without disturbing the actual iwi.

But the unbelievable insensitivity in the description of the “caps” aside it remains to be seen if the Planning Commission will withdraw the permits because apparently Burial Council “approval” is one of the conditions for the “house” that developer Joe Brescia is trying to build on top of the cemetery.

One thing that seems to stick out like a skeletal hand reaching out from the ground is that the Planning Commission condition gives actual power to the Burial Council while the state- which created the body- treats them as advisory.

There doesn’t seem to be any law or rule against a county agency giving a state advisory council actual power for county purposes. But, according to the newspaper article Planning Commission Chair Steve Weinstein “(e)ven a violation would not guarantee revocation, as other mitigation measures can be considered.”

Translation? “We’ll probably do what we do whenever someone does something illegal- we’ll allow them to do it anyway if it’s in our power to do so- and sometimes even if it’s not.”

Another question is, based on our analysis yesterday of the new General Plan enforcement charter provision, one the planning department hasn’t dealt with at all- is Brescia’s “house” a “tourist accommodation” that would fall under the new law taking the power of approval away from the Planning Department?

If so, the processing of anything having to do with it should cease immediately if it is to comply with the law.

Although Brescia claims it is merely a huge single family residence Brescia’s other “houses” in the area have been serving as vacation rentals for years.

of course that presumes that anyone in Kaua`i county government even cares whether their activities meet legal requirements and standards..

As our friend Ace commented yesterday

Andy, Andy, Andy. You are ignoring the zeal with which the Planning Commission and the County Council tend to overlook such pesky things as laws, ordinances and charter amendments. One should not be surprised to see these folks do whatever they want and wait to be called on it. To which they will predictably respond, "So sue me".

Just more porridge to fill the Minotaur’s bowl.

HOW MUCH IS THAT CRONY IN THE WINDOW?- REDUX

HOW MUCH IS THAT CRONY IN THE WINDOW?- REDUX : After yesterday’s analysis of the ridiculous attempt to trick voters into allowing the county council to change the law and exclude the public from public meetings you would think nothing could top that for Minotaur, “do what’s wrong as long as he can”, depravity.

But if so, you wouldn’t have read another doozy- one that would remove standard ethics restrictions for those serving on local boards and commissions.

At least the question on this one is pretty straight forward it asks

Should the Kauai County Charter be amended to expressly permit county board and commission members to appear on behalf of private interests before any county board, commission or agency except the board or commission on which they serve?

We detailed the story at least one two three four five six times going back to February about how the Ethics Board and its Chair Mark Hubbard refused to enforce the county charter provision that says “no officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency.”

But since Hubbard does this all the time as a vice president of the huge, land-rich Grove Farm Corporation he decided that the law was “absurd” and refused to enforce it against attorney Jonathan Chun.

The Ethics Board cleared Chun of charges that he quite obviously violated the ethics provision by appearing before the county council representing the Board of Realtors during the recent approval of an ordinance regarding vacation rental while at the time serving as chair of a county commission.

And what commission would that be? Why the Charter Commission who put this piece of garbage on the ballot.

So let’s get this straight- Hubbard’s Ethics Board clears Chun for some ungodly reason and then Chun turns around and tries to get the voters to remove the ethics law and allow himself, Hubbard and others to lobby the people who appointed them..

You can read some of Hubbard’s convoluted reasoning in refusing to enforce the ethics laws in some our past articles and by following the links there to some local newspaper accounts, especially How much is that crony in the window? and On the gravy train:

They also describe why this kind of ubiquitous ethics provision is standard stuff everywhere else but here on ethically-challenged Kaua`i.

And while you’re at it you can follow some of Hubbard’s and his cronies’ corruption-laced connections in Ah, The Smell Of Plantation Lunas in The Morning

And then vote no and send a message that these corporate crooks can’t use their revolving door positions to screw us considerably more than they can now.

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The next Charter amendment we’ll look at today is an interesting one..

It asks

Should the Kauai County Charter be amended to require that the two candidates who receive the highest number of votes in the primary election for the office of the mayor and prosecuting attorney, regardless of whether a candidate receives a majority of the votes cast at the primary election, run in the general election?

On the surface the “50% plus 1 run-off” system Kaua`i has now seems to be a fair and democratic enough way to determine the winner if we are going to use a “two separate run-off elections” system to begin with

Actually the best of all systems is “Instant Runoff Voting” where you vote only once, rank all the opponents and the lowest vote getters are eliminated round by round and their second, third, fourth (and so on).choice is counted until someone gets 50%. It’s used all over the country and is gaining popularity all the time.

But pols locally are generally living in the mid-20th century when it comes to elections so we have to settle for a 50 some-odd year old “innovation”- the non-partisan, two-round runoff with the two top vote getting candidates in September’s “primary” going on to November.

Under the current law if a candidate gets “50% plus one” votes in the primary the election is complete, as happened by two votes when Bryan Baptiste won the mayor’s race in September of 2006.

The problem is that statistics show that voter turnout in these primaries is dismally lower than- often not even half- the turnout in November . Here in Hawai`i the top of the ticket in November is always either a presidential or gubernatorial election- along with legislative races- which draw many more people to the polls.

This change would make it so that no matter how many votes they get in the primaries the “top two” would go on to the November election.

Although theoretically it shouldn’t matter, in realty it does. And the argument that having only one election would “save money” doesn’t hold water since it doesn’t eliminate an entire election it just eliminates one race from a ballot that is being printed anyway, containing partisan state and national races

If you agree that the elections gain legitimacy when more people are voting, this one is a no-brainer “yes” and “top two” is a change for the better.

YOU CAN’T SMELLTHAT?

YOU CAN’T SMELLTHAT?: Rachel Gehrlein’s rather confused report today in the local paper about Monday’s Charter Commission (CC) meeting reports both a deferral and a “moving forward” of the controversial County Manager proposal being considered,

Thought the article lacks cohesion and continuity, as if written by the specter of Lester Chang, it does characterize and quote CC Chair Jonathan Chun this way:.

Commission Chair Jonathan Chun said he still didn’t see the need for the proposed amendment.

“What is the problem we are trying to solve?” Chun said. “No one, in my mind, has said what the problem is.

"Every time the question is asked, different answers are given, Chun said.

Maybe because so may things are broken and more are breaking all the time so like the procrastinating unhandy homeowner with the house that’s falling apart, every time you ask “what’s the problem” you get “a different answer”

So let’s assume for argument sake the quote and surrounding material is accurate. It brings up an interesting question

Are you friggin insane Jonathan or just a disingenuous liar trying to squelch the measure for some ulterior motive... because we know you’re not an idiot?

We haven’t exactly been on the County Manager conga line ourselves although we are starting to come around with Walter Lewis and Walter Briant’s specific proposal, even though the proposal itself is extremely problematic and poorly written, disregarding the 89 state laws that would have to be changed to accommodate the lack of an administrative “mayor”

But there are no problems with Kaua`i County government and the strong mayor system that makes every department head job a political appointee, Jonathan? Have you seen these bozos? Have you noticed how mayors are eaten alive when they try to get each new “temp” at the helm to get the department “we-bes” (we be here when you got here we be here when you go) to actually do anything differently?

Have you seen these people give what is laughingly called testimony before the council? Or were you just engulfed by “the fog” as they call it when mumbling incompetents who got their job by campaigning or collecting bundles of cash for the mayor try play their shell games.

The game typically goes like this.

Department head: “Oh I can’t answer that, Wendel has to tell you.”

Councilperson: Where’s Wendel?”

“He’s not here today”

“OK we’ll defer to next week and you get Wendel here”

Wendel comes in next week but no Department head and Wendel says “well I have to ask the department head for more information”

“Where’s he?”

“He’s out of town today”

“OK we’ll defer until next week”

Next meeting there’s the department head but no Wendel

“Wendel’s on vacation”

Finally they get Wendel and the department head there on the same day but either
A) They now say Clayton- who isn’t there- has the real information or
B) The department head testifies, then Wendel testifies and then when they want to get back to the department head he’s
1) left for lunch,
2) left for a meeting or
3) taken a plane to Honolulu

And on and on until the council gives up and moves on to the next calamity caused by an incompetent political appointee department head comes up on the agenda.

For god sake look at Ian Costa. He practically invented “the fog” as the unqualified de facto head of Public Works where he caused the grading and grubbing crisis a while back.

As Baptiste’s top bulldog during the campaign the barely-qualified. huge land-owner has taken an already traditionally incompetent Planning Department and driven it into the ground.

He’s got millions appropriated and set aside for unstarted planning studies and development plans and his rubber stamp planners and befuddled and sycophantic Planning Commission can’t even properly deny a permit the one time they try, getting sued for their incompetence to the point where the County Attorneys had to throw up their hands and settle for the worst development possible.

Then there’s- he’s baaaack- the latest whiplash-of-the-revolving-door largess recipient Wally Rezentes Jr. who can’t seem to get the hang of line-item budgeting so he ignores it since the council is still reeling over the “program based budget” system he officiated over during the Kusaka administration.

He quit the first time when the level of corrupt spending got so out of hand the Mayor was leasing luxury cars from her campaign manager at inflated prices and the Council only found out they gave her the money for it when they saw her driving around in it.

The patronage system we have today actually created jobs that didn’t exist for the truly unqualified like Bernard Carvalho. He preeminently glad-handed every voter he could find during Baptiste’s first Mayoral run and cashed in on his football fame to get appointed as a quasi department head in an insane, hybrid cant-decide-what-it-is Community Assistance conglomeration of Public Works, Planning and a couple of other departments. Then the voters created a Parks and Recreation department for him to screw up.

Guess who’s really responsible for the dog path fiasco? Try Bernard whose “task force” apparently just illegally made the pronouncement that the path was now a park (where dogs are illegal), neglecting to follow the state administrative rules law. He’s the same guy who put together the “task force” to put the teen rehab center in the old dog pound near the culturally iconic salt pans in Hanapepe creating a virtual lynch mob when people found out.

And what about the biggest plum of all- the Conventional Hall manager... a do nothing position that pays well and usually employs the mayor’s best buddy to collect perks and kickbacks by doling out favors under an ambiguous rate sheet system that never undergoes any scrutiny because it’s a separate world over there.

We don’t even want to talk about Public Works, the worst mess of all where the Kusaka and then Baptiste couldn’t even find a crony to fill the position for half of each’s administration.

And once they found a young bright and qualified sucker to take the job they beat down poor Donald Fujimoto into another cover-up artist and administration apologist.

He recently refused to answer Council questions regarding the illegal and crumbling Pono Kai sea wall without going into an illegal executive session even though all the illegalities had been thoroughly discussed in open session previously.

Seem like he’s learned well and will probably be moving on through the revolving door as soon as it’s convenient, which should be soon with a new mayor coming on board.

If Jonathan is not seeing the lack of professionalism in this and every administration and the level of corruption within each department as a problem he’d better either take off the rose colored glasses or quit the Charter Commission so we can find someone who has a little firmer grasp on reality.

We’re not saying the county Manager will do anything to change all of this. What it would do is theoretically make the administrative department heads subject to hiring and firing based on whether the job is getting done since the county manager’s job would be similarly held or lost.

Also, although the manager would be beholden to the political whims of the Council, what it would do in essence is put the decision-making out in the open since the Council would have some control over how the money is spent and a little better chance at getting truthful and transparent testimony out of department heads and other administrative personnel.

And it would take some of those secret decision-making sessions and “task forces” that aren’t subject to the sunshine law and put them, if not under it a little closer to it’s umbrella by having their testimony a little more compellable in open session.

But the critics are right in that if we do have “a” county manger system that it be “the” county manager system that is appropriate and acceptable to the people whom it serves.

It will indeed be an upheaval of political culture if not politics itself to have a new governance system.

The proposal from the two Walters is a start but it doesn’t seem ready for prime time and the deadline is a-comin’ well before we can be sure it’s the right one and one that’s even applicable to state laws.

The problems cited in the article as described by various politicians all have to do with this point- fully discussing and vetting the proposal and allowing the Charter Commission to focus on doing the job they are supposed to be doing in studying and vetting systems, compiling data, holding hearings and getting ready to present a full-formed. fully-discussed, fully “right for Kaua`i” proposal for the 2010 election ballot.

It’s time for people like Jonathan to stop feigning ignorance, acknowledge the mess this county’s government is in, much of it due to the patronage system that has evolved under our strong mayoral system.

Jonathan himself has certainly been employed by it long enough to know not only where the bodies are buried but how they got there.

It’s how, not why Jonathan. You’re almost all alone out on that limb. Whether there is a “how” that will be acceptable can only be found if we look for it.

Anyone with your brains knows what the problems are so don’t play dumb with us