I LOVE YOU- NOW CHANGE

I LOVE YOU- NOW CHANGE: To say Kapa`a in the 70's was a sleepy little town is to do a injustice to repose.

Town proper consisted of the Olympic Cafe, Ding's Bar and Cash and Mrs. Cash Kubayama's liquor store. The rest of the storefronts were pretty much closed up although a hippie head shop opened up where the old bank had been, followed by a couple of other somnambulent establishments like the fertilizer store that sold imported bat guano to the pot growers.

But down past Tony Rapozo's anything-you-wanted-upstairs and the strip of sidewalked businesses like Pono Market, on the mauka side of the "highway"- across from where Pono Kai was being built by coked-out haole construction workers- was what everyone called the "fake gas station."

There were two pumps where the Kodani Building now stands but it was apparent that no one wanted to sell anyone gas, although if you wanted a safety check Gary would come out and hand you the stickers in exchange for the buck-and-a-half or whatever they were charging in those days... kind of like it was a public service.

Well it it didn't take long for a niele newcomer to find out that there was a 24/7/365 gambling operation in the back. And with a little more inquiry it wasn't hard to discover that it was under the protection of "Kauai's Finest" at KPD... especially what with the ever-present patrol car parked out front.

So what brought this up? Well, these youthful memories come courtesy of a little "aside" in today's CivilBeat.com article about how "(a) top union official says he was fired after he refused to kill other union members who were critical of his boss"... in posts on Facebook.

Under the headline "Lawsuit: Hawaii IBEW Chief Wanted Hitman To Take Out His Enemies" the report says that:

The lawsuit was filed last week by Thomas Decano Jr., who says he was wrongfully terminated by Brian Ahakuelo, IBEW’s new business manager and financial secretary.

So what does this have to do with the fake gas station? What prodded our fond memory of the oldest established permanent non-floating crap game in Kapa`a?

Well about halfway down the page was this little piece of info:

Decano was also one of three Honolulu police officers who was arrested in 1975 for robbing a gambling operation on Kauai.

It was the talk of the town- and the island at the time. But the oddest part of all of it was that people of Kaua`i were outraged. No they weren't "shocked shocked" to find gambling at Rick's but rather at the thought that three Honolulu cops could and would fly over here and rob OUR card games at gun point.

And, more importantly, the word was that KPD just stood there and didn't do a thing.
We had our own little "Kaua`i mafia" in those days. It was a small but effective operation and as long as you didn't threaten them, they didn't threaten you. Actually they were pretty nice guys once you got to know them as we did, playing Mountain Ball at the old Kapa`a ball park a few nights a week.

But the idea that the Honolulu cops could come over here and rob our guys was an affront to local Kaua`i people's sense of local pride. There was still a sense that even though it was organized crime, it was OUR organized crime.

If it would have been someone on Kaua`i who tried to rob the game, people would have just thought he was crazy but it wouldn't have been an affront to our sensibilities.

In a way, if you can understand this attitude you can understand the Superferry protests.

There was a lot scuttlebutt about how some of our guys went over there and robbed some of their guys and even a rumor or two about some guys on both sides "disappearing"... after all, there's a big ocean out there between O`ahu and Kaua`i.

But that was just about the end for the fake gas station. It remained open for a while but the games were no longer full time, mostly because it was said that gamblers tended to shy away, afraid of another "scoop" by the big guys.

In a way, it seemed symbolic of the end of the age of isolation and indeed innocence on Kaua`i. Uncle Billy Fernandez made his fortune in the 70's building boom, and the Coconut Marketplace, Foodland and all the little strip malls between the post office and where Safeway was eventually built, were installed. There was actually somewhere closer than Kinipopo to buy beer when the Kubayama's closed for the evening. And while our all hippie-haole Mountain Ball team had been a shock to the system for many local people at the time- mostly because it meant that there were actually 10 of us living in Kapa`a, by the late 70's there were actually "integrated" teams.

Soon the traffic stopped moving as the mauka subdivisions multiplied and having a perpetual card game going on in the middle of Kapa`a these days would seem as out of place as Ding's bar.

But for many, the memory of the fake gas station makes us nostalgic for the days when everybody knew everybody and no one wanted to break anyone's rice bowl... even those of the local crime consortium.

After all, they were our mobsters and no Honolulu boys were going to come in here and mess with us.

I'M AFRAID I CAN'T DO THAT DAVE

I'M AFRAID I CAN'T DO THAT DAVE: He has no key, no badge, no gun... no office.

Yet, according to sources close to the Kaua`i Police Department (KPD) Police Chief Darryl Perry is back on the job today although his whereabouts inside police headquarters at any given moment is anybody's guess.

It all started late yesterday when Perry told the TV's Hawai`i News Now (HNN) that he was returning to work today based on unanimous instructions from the police commission Friday, despite a county attorney's opinion that reportedly gives Mayor Bernard Carvalho Jr. the authority to determine Perry's status after Perry was placed on leave on February 2.

But this morning HNN reported that:

Kauai Police Chief Darryl Perry was turned away from his office when he tried to return to work Wednesday morning in a power struggle with Mayor Bernard Carvalho.

Perry told a Hawaii News Now news crew that he was not allowed to receive his gun and badge and get access to his office Wednesday at police headquarters in Lihue just before 8 a.m.

"I ordered Assistant Chief Mark Begley to open my office and reissue my equipment. He stated to me that under direct orders from the mayor and the county attorney, that he is not to do that," Perry said in an interview at police headquarters.

"The police commissioners have expressed their opinion and also directed the issuance of equipment and my ID card and everything else that comes with it, my weapons. But they have refused," Perry said.

"Right now, I'm actually on duty, but I don't have any equipment with me. I can't get in to my office. I don't have access to my computer," he added.

As of press time we have learned Perry is still "at work" although still locked out of his office

This morning at 9:29:16 a.m. Carvalho's Director Of Communications Beth Tokioka issued a "Statement by Mayor Bernard Carvalho Jr. Regarding The Kaua`i Police Department," in which Carvalho claims that it was initially Perry's idea to be placed on leave and Carvalho initially disagreed.

In the release Carvalho tells the following story for the first time:

“First of all, I would like to state that it is still my belief, based on advice from legal counsel, that I have the authority to supervise the daily activities of the Chief and that I have acted within my authority for all actions taken regarding this matter. The members of the Police Commission have been advised of this as well.

“As you know, on February 2, I made an announcement that the Chief of Police had been placed on leave pending the outcome of the investigation of the complaint in question. I want to make it absolutely clear that this action was taken upon the request of the Chief. Initially, when the Chief made this request on January 30, I felt that there was no need to place him on leave and that he could continue to lead the department under certain conditions that would preserve the integrity of the compliant investigation. After I advised the Chief that I would not be placing him on leave, he sent an email to the Police Commission on that same day – January 30 - asking them to pressure me into placing him on leave. I am providing you with a copy of that email so that you can see how emphatically he felt about being placed on leave.

“After further discussions on January 31 and February 1, it was determined that the Chief’s concerns had merit, and that an appropriate course of action would be to place him on leave until the complaint was properly addressed. There has been public speculation and statements regarding the type of leave the Chief was placed on. Because this is a personnel matter, I will release no details on that aspect of this matter.

“On Sunday, February 19, I was informed by Police Commission Chair Ernie Kanekoa that the Commission wanted the Chief to return to the job as soon as possible. I listened to his reasons and, although the Chief had previously made a strong case for why he should be placed on leave in the best interests of all involved, I was willing to talk to the Chief and better understand the reasons for his change of heart. I asked that Ernie and the Chief be available to discuss this with me on Tuesday, February 21, at 3:00 pm. My intent was to determine if conditions could be agreed upon that would protect the interests of all involved in the complaint so that Chief Perry could return to work.

“It is important to remember - above all else - that I have been served with a complaint that involves Chief Perry and other high-ranking officials in the department. It is my legal responsibility - which I take very seriously - to ensure that complaint is handled properly.

“Unfortunately, yesterday afternoon Ernie advised us that the Chief, on advice of his attorney, would not meet with us. This meeting was very important before we could even consider bringing the Chief back to work. In earlier discussions I've had with the Chief on this matter, he expressed deep concerns about protecting the integrity of the investigation, the department, County of Kaua`i, and his personal interest with respect to further risk and exposure to himself and his family if he were to continue working while the complaint was being investigated. I had my own concerns for protecting the interests of all involved in the complaint. For those reasons, I feel it is very important to have a shared understanding of the terms under which the Chief could return to work while the complaint is being investigated. Unfortunately for all concerned, the Chief refused to meet and chose instead to communicate through the media.

That is certainly a different story- in fact the opposite of the one told by Perry, who said he asked to be allowed to work from home but it was Carvalho who insisted he be placed on leave.

Carvalho went on to state he was " disappointed in the way this has been handled over the past 24 hours," saying the department "is in capable hands" while reiterating that "the Charter gives me that authority and (I) have been advised as such by the County Attorney," and stating that "(t)he Chief even acknowledges this in his email of January 30."

Perry's January 30 email seems to confirm Carvalho's narrative. It is addressed to individual police commission members, the mayor and some of his senior advisers and community supporters as well as some of the KPD brass.

It reads, in full,

As you know, AC Quibilan and AC Asher were placed on administrative leave with pay at the closing of this business day pending the outcome of the investigations relating to hostile working environment complaints initiated by an officer.

Additionally, at this morning’s meeting I too was placed on notice by the Mayor for my involvement relating to the most recent complaint against AC Quibilan.

In order to protect the integrity of the investigation, the department, County of Kauai, and personal interest with respect to further risk and exposure to myself and family, I too was about to put myself on administrative leave with pay at the close of this business day. However, I was informed by KPD’s legal advisor, Justin Kollar, that I do not have the authority to do that.

Therefore, I am requesting that this body contact the Mayor’s Office as soon as is practical to have my request approved without delay.

In the interim, Deputy Chief Michael Contrades shall be the Acting Chief of Police and Assistant Chief Mark Begley will be the Acting Deputy Chief until further notice and/or modifications are made.

I will send a notification to All KPD at the end of the day and will be turning in my equipment immediately in accordance with policy and procedure.

Because I will not have access to departmental communications systems, you may contact me directly via my cell phone 351-5004, or by email perrys007@hawaii.rr.com.
Mahalo. Chief Perry
Darryl D. Perry
Chief of Police

 In not immediately launching an investigation when Officer Darla Abbatiello-Higa filed an internal "hostile work environment" complaint against Perry's assistant chiefs, Roy Asher and Ale Quibilan, there's no doubt that Perry's actions were a violation of county policy which has the force of civil law according to the Equal Employment Opportunity Commission (EEOC) rules.

That, according to sources familiar with the filing, is essentially what Abbatiello's January complaint- this time addressed to the mayor and police commission- said. It also, according to sources, complained that Perry indirectly tried to get the idea across that she might be jeopardizing her beloved work with youth and the Explorer Scouts if she didn't drop the October compliant.

As to Perry, like "Charlie on the MTA" he may never go "home" and his fate is still unknown. He may walk forever though the halls of the cop shop, he's the chief who never (actually) returned.

LEGALLY SCHMEGALLY

LEGALLY SCHMEGALLY: You'd think we'd have learned by now.

But because the lackluster MidWeek advertising rag- the one that's shoved in everyone's mailbox and overflows the trash cans at the Post Office on Tuesdays and Wednesdays- generally has so little relevant content past the puff pieces, we've been tossing them ourselves occasionally without skimming for the rare relevant content.

And in doing so, we'd have missed former Police Commissioner Tom Iannucci's impossibly befuddled and schizophrenic piece on the latest Kaua`i Police Department (KPD) sexual harassment debacle if it weren't for Kaua`i Eclectic's Joan Conrow, who herself only noticed it as she was throwing it out.

Calling Iannucci's tome"an obtuse piece," as she did, is an act of kindness.

Iannucci rambles on with vague analogies about hotel management and all you get out of it is that he- surprise surprise- is yet another troglodytic troll who thinks sexual harassment is best swept under the rug, calling Perry and the two suspended Assistant Chiefs, Ale Quibilan and Roy Asher "wrongly accused," having the unbelievable nerve to state:

Two wrongs don’t make a right. And a wrong may have truly occurred, but to what degree the whip should extend and whom it should consume comes into question, and the motives behind it....

These three officers are men who do care and, in my opinion, their actions and motives are being wrongly accused, and the quicker this is resolved, the better for our island and our department. I stand behind them and their integrity. But they are just the top tiers of a problem whose inception, whose roots are deeper in many different ways.

When all is stripped away and peeled back, we will have to ask: Did it really need to go this far, or was it just opportunity and ability to extend the whip and cause hurt for the sake of doing so? Maybe it will all be buried in legal findings and judgments, and we may never know.

As Perry's biggest supporter- and an ex-Marine with the well-known requisite attitude toward women that goes with it- Iannucci can be expected to take a "boys will be boys" attitude.

But Conrow? We're sure that that isn't the case, at least consciously. But could her admiration and staunch support for Perry be clouding her reasoning? Read on.

Conrow tells the story that we've heard, albeit second hand because the story is apparently being told by, guess who, Perry himself who, we understand, is the source of most of the anonymous quotes in the press since the day he was put on leave by Mayor Bernard Carvalho, Jr.

She re-tells Perry's cockamamie story about asking to work from home and instead being publicly disgraced by Carvalho who "illegally," according to many, put him on leave... all because Carvalho sees Perry as his biggest potential rival not just for power, as Iannucci would have us believe, but in his 2014 re-election bid.

She also adds a new wrinkle that was brought to our attention over the weekend and that is that current Acting Chief Michael Contrades is the son of Tommy Contrades, "whom the mayor already generously rewarded by creating especially for him the new, highly-paid position of managing the county's capital improvement projects," Conrow reports.

Although we have no direct knowledge of Conrow's source, she, unlike us, has a "hot-line" relationship with the chief as she has written many times. Perry would no sooner take a call from us than respond by-the-book to a sexual harassment complaint.

But she does tell two seemingly incongruous stories.

She first tells the story as to how, as we said a couple of weeks back,

It all started when Officer Darla Abbatiello-Higa reportedly rebuffed Quibilan's sexual advances, and he allegedly retaliated by making mean, sexually-oriented cracks to and about her in front of others, including the kids she works with in the Kauai Police Explorers program. She complained to Asher, who reportedly did nothing to separate the two — as is required under a rule in the county handbook — or chastise Quibilan, whose alleged harassment then reportedly worsened.

And she follows that by acknowledging that:

She next took her concerns to the chief, who allegedly twice tried to dissuade her from pursuing a formal EEOC complaint and allegedly expressed resistance at placing Asher and Quibilan on leave. Instead, he reportedly urged her to try to work things out internally.

That, right there, according to the county's own handbook on sexual harassment- as well as the EEOC's- is reason enough for suspending Perry and placing him on administrative leave. Instead, by law and policy, he should not have tried to get her to withdraw her complaint, as apparently he had been doing since she filed the complaint last October.

But then Conrow says that:

Dissatisfied with his response, Officer Darla then took the matter to the mayor, who reportedly directed Perry to put Asher and Quibilan on leave while the complaint was investigated, which Perry did. Now here's where politics rears its ugly head.

The chief then reportedly said that since the complaint involved him, he also should stay away from the cop shop, and would instead work at home.

Uh, well, actually no. Perry's misconduct in trying to dissuade Abbatiello made it mandatory that whomever was in charge formally suspend Perry for misconduct. It's called an attempted cover-up. Don’t forget either, the second complaint was also sent to the police commission which had failed to act before Carvalho took action. It was only after Perry was placed on leave that the commission scheduled a meeting, one for a Sunshine Law mandated six days later despite the fact that they could have acted under emergency provisions of the Law to meet immediately and confirm any action taken when the properly noticed meeting took place with the required six days notice.

The story that Conrow tells- which could only have come from Perry or Carvalho- and it's doubtful it was the latter- is that:

the mayor disagreed (with allowing him to work from home) and told Perry to come into the office. The two, who have long been at odds, reportedly argued, and Perry stood firm by his decision and stayed home. The mayor then suspended Perry without pay for seven days for insubordination, after which he was placed on paid leave with Asher and Quibilan, pending an investigation of Officer Darla's complaint.

Conrow first cites Carvalho's desire to put Contrades in as acting chief and then explains the politics behind Carvalho's move. As she sees it:

it was appropriate for Carvalho to take some immediate action when Officer Darla came directly to him. Not only was it appropriate, it was mandatory, from a staunch-the-bleeding legal standpoint.

But it was Carvalho's responsibility only to ensure that Officer Darla's complaint was appropriately handled once it came to his attention. It's really a stretch to say that his kuleana also included getting into a power struggle with his political enemy, the police chief, and ultimately suspending him.

Surely, once the chief placed Asher and Quibilan on leave, as he is authorized to do, he could have been allowed to take vacation, comp or personal leave until the police commission could be convened to sort out the issues that specifically involved him.

Instead, Carvalho took the opportunity to thuggishly grab power and mete out some political pay back against Perry. Unfortunately, by taking that particular approach he threw the police department and community into a tizzy, caused Officer Darla to be dragged into the spotlight by those seeking to make sense of the turmoil, possibly exposed the county to litigation by Perry, created a lot of ill will and made our island once again the subject of statewide derision.

As we said two weeks ago, it certainly fits the narrative across the island of the politically motivated Carvalho screwing the beloved Chief Perry for political gain.

It seems like Conrow is of two minds- one in which she says that Carvalho's action was "mandatory" and one in which he should have allowed Perry to "work from home,"

Has her belief in Perry has clouded her judgment?

Maybe. Because the real story as we've heard floating around is that Perry, Quibilan and Asher all threatened Abbatiello that if she didn't drop the October complaint she might just lose her beloved position in administrative services working with youth and heading up the police recruitment program with the Explorer Scouts (sorry to bury the lede). Maybe not in those stark terms but the general idea was broadcast loud and clear.

Either story cold be true. A vindictive, politically ruthless mayor seizing the opportunity to repay a supporter or a chief who is known to try to "smooth over" conflicts in order to "boost morale" going too far and violating the law- one that has cost the county millions already.

But the latter is the story that makes sense here, not the one that Iannucci is pushing on Perry's behalf and that Conrow wants desperately to believe- that Bernard's well known penchant for rewarding his friends and punishing his enemies has gone over the line and is threatening to destroy the reputation of the chief.

We could be wrong- but we doubt it.

DEALING WITH IT

DEALING WITH IT: Yesterday's shooting of Richard Ernest "Dickie" Louis was a classic "suicide-by-cop" according to sources close to Kaua`i Police Department (KPD).

Although most are tight-lipped as to the details of exactly how Louis was shot and killed, it wasn't hard to predict. Many say Louis had been making "they won't take me alive" types of statements for a year or more and yesterday that's the apparently way it played out.

Louis was convicted in early December almost four and a half years after an arrest for illegally cutting Koa in Koke`e which led to the discovery of "two rifles, ammunition and a shaving kit containing 23 grams of crystal methamphetamine, marijuana, paraphernalia and $3,541 in cash."

But though some of his family and friends are surely grieving for Louis whose slow downhill fall can be traced, sources say, by the evolution of his mug shots over the four and a half years, the biggest tradgedy is that for the officer or officers who went to work yesterday to do their job, went home last night with a weight on their psyches that will most likely haunt them the rest of their lives.

Oh sure there'll be counseling, although we understand that a counselor will have to be brought in from Honolulu because Kaua`i is thankfully small enough for "suicide by cop" to be a rarity.

We often get so busy with criticism of the few bad actors on the force- those who abuse their power jacking up sovereignty activists and native American Church members, the ones who can't seem to stop harassing female officers and department civilian employees and others still who can't seem to maintain the professionalism that asks them to walk a sometimes impossibly thin line between appropriate and inappropriate use of force- we can forget that the vast majority of sworn officers on Kaua`i are conscientious, just-plain working-class folks whose lives can suddenly be turned upside down through circumstances like those presented yesterday where they are forced to take a life in protecting us all.

Louis might have been one or the "bad guys" or could have been a good guy who fell under some bad influences, made some really bad choices, got involved with drugs... and, some say, didn't have the courage to "do the job" himself.

But there's a high likelihood that those who were forced to take his life were doing a job that we thank our stars for every time we are threatened, assaulted or robbed, when someone wraps their car around a telephone poll, when a tourist simply can't find their way to "lye-heh-you-eeee" or when we otherwise find ourselves in need of protection or service.

We know it will be a long hard road to emotional recovery for the officers at the scene yesterday. It always is. They are men and women, not rocks. And we know it's hard for many of them to read some of the things that others in the department do that reflects poorly on them.

That's going to happen again- we can't prevent it and if we didn't write about it we wouldn't be doing our job.

But there is one thing we can do. And that's to sometimes just say "thanks guys and gals" for being there when we need you.

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Due to circumstances beyond our- or theirs- control, we find ourselves, for the second time in a year, in need of someone who can do another impossible job- act as editor for our daily scribblings.

If you have any experience with wordsmithing- and dealing with a scribe who think every word is divinely influenced (not really but you may feel that way at times)- and can spare a short spell around noon on weekdays let us know at gotwindmills(at)gmail.com.

PRESUMPTUOUS ASSUMPTIONS

PRESUMPTUOUS ASSUMPTIONS: The outrage is palpable over the actions of Mayor Bernard Carvalho Jr. in placing ever popular Kaua`i Police Department (KPD) Chief Darryl Parry on leave pending investigation of a reported "hostile workplace" complaint by Officer Darla Abbatiello-Higa against Perry's two assistant Chiefs- Roy Asher and Ale Quibilan.

It fits the narrative- one we admit to perpetuating- of a pompous, politically-motivated. power-hungry mayor, yet again overstepping his authority and perhaps, as many have speculated, going after a potential 2014 political opponent with Perry's name being bandies about by many as the only person who could successfully challenge Carvalho for his job in two years.

But what if the narrative is wrong? What if there was misconduct on Perry's part in handling Abbatiello's complaint- actions that violated the county's own policies on how to handle a complaint?

One thing we can report is that, although Perry's first and only statement to the press- or at least on-the-record comment- stressed that he had "the utmost trust in the... decision-making" of Asher and Quibilan and that "they’re beyond reproach,” literally dozens of people will tell you that it is in fact Abbatiello that has a sterling reputation for being a "straight shooter" and beyond reproach.

And another dozen will tell you that they have no difficulty at all in believing that either Asher or Quibilan were the types who would think they are so "beyond reproach" that they could get away with harassing Abbatiello even after she had successfully sued the county for just such actions by other KPD officers and brass in the past.

It is certainly strange then that Perry's first reaction was to tell the local press he apparently fully supported his two assistants despite what had to be an extremely credible complaint from "Officer Darla" as she is affectionately known.

Remember that a hostile workplace complaint was filed internally by Abbatiello, reportedly against Asher, in October. That complaint seems to have been all but ignored and was apparently mishandled with, at minimum, no "separation" of Asher and Abbatiello as county policy calls for.

The county's 2010 edition of their "Policy Against Discrimination and Harassment" says that “(p)ending investigation, the investigator(s) shall take immediate and reasonable action to limit the work contact between employees where there has been a complaint of discrimination or harassment.”

Seemingly the fact that going up the chain of command in October- a chain that ends with Perry- met with no success led to Abbatiello's January 31 complaint, reportedly against Quibilan, being sent to both the police commission and the mayor.

While we're not privy to the contents of the complaint, the scenario that makes the most sense is that, after finding out about the complaint- and presumably its contents- Perry tried to stop the bleeding by placing Asher and Quibilan on leave. But he felt compelled to side with them against Abbatiello in a comment to the press even after being warned, according to the same article, not to comment on the matter.

So put yourself in Carvalho's place. Assuming the complaint included the fact that Perry had filed to act properly in the October complaint, the "beyond reproach" comment was too much for the politically-oriented Carvalho. But more importantly consider that the comment exacerbated the situation intimating that Officer Darla was a liar. Having the department head take sides against the complainant would be yet another violation of the sexual harassment guidelines.

And we're pretty sure Carvalho was reminded of all this by County Attorney Al Castillo who has also been under fire for allowing these sexual harassment suits to be mishandled and even ignored.

The fact that the complaint was addressed to the mayor left him in a place where, if he failed to act by putting Perry on leave- and not just allowing him to "work from home" as Perry claimed he had demanded- he would be doing what the county has done in similar sexual harassment complaints- at best just ignore them and worse put pressure on the complainant to drop the charges by allowing Perry's statement to stand as the county's only reaction to the complaint.

While we've gone back and forth on the subject of whether Carvalho had the authority to discipline the chief, it's a subject that has even received scrutiny in Honolulu with an exchange between blogger Ian Lind- who asserted Carvalho did not have the authority- and, in comments on the post, former local Kaua`i newspaper reporter and current "Civil Beat" correspondent Mike Levine.

Levine essentially said "not so fast" in pointing out that, while the authority might seem to be with the police commission which hires and fires the chief, it's a leap to say they are the only ones who can discipline the chief since there is no clear written authority to do so anywhere in the Kaua`i County Charter.

The most popular narrative on Perry in the community is that, after a recently reported 61 official grievances having been filed during the brief tenure of his predecessor KC Lum- who was essentially "quitted" for allowing "low morale" to spread through the department- Perry has been able to cut those grievances to a negligible level. But among those who thought Lum got a raw deal, the narrative is that the reason why there were so many grievances under Lum is that he was actually processing them by the book, encouraging an atmosphere where employees felt their complaints would actually be heard, causing the number to snowball not because of morale but because there was so much misconduct.

They say that the reason why the grievances have slowed to a trickle under Perry is that he has sought to "smooth things over" and either ignore the complaints until they went away or intervening and using his authority to intimidate complainants into withdrawing their complaints so as not to "make waves" and "rock the boat."

That, some say, has allowed some "bad apples" to remain in place and created a "don't bother to complain" atmosphere under Perry's permissive reign.

Is that the situation here? While we can speculate and even state that Perry's public handling of Abbatiello's latest complaint was in violation of the county's workplace policy- making them a violation of the law since the law requires employers to have a policy and stick to it- we have no direct evidence other than the public statements to believe one way or the other.

But if others, as they have in almost unanimity, want to speculate that Hizzonah is once again on the wrong end of an issue of process, they would be wise to consider that there is another narrative that, while it doesn't fit the observable past, may just have the quality of the proverbial broken clock- one that right at least twice a day.

WHY, WHY, WHY, DELILAH

WHY, WHY, WHY, DELILAH: One of the oddest things about the current Kaua`i Police Department complaints against Assistant Chief Roy Asher and is why the reported October complaint against Asher by Officer Darla Abbatiello-Higa seems to have fallen into a black hole while the January complaint against Quibilan spurred a full-fledged inquiry by Mayor Bernard Carvalho, Jr.

The reason may be the way the two complaints were filed.

According to an administration source the October complaint never reached the mayor's office in the first place but rather was filed internally and handled within KPD where an investigation was apparently launched. Whether that investigation is still active is unknown.

All we can say is that in January when the complaint was reportedly filed against Quibilan it was sent to both the Kaua`i Police Commission (KPC) and Carvalho.

The matter is on tomorrow's KPC agenda, scheduled for no less than three executive sessions. So why then did Carvalho feel the need to launch his own investigation and suspend Chief Darryl Perry, especially since there is nothing in the county charter that specifically gives the mayor the power to deal with the internal affairs of the department? In fact, the commission is designated as the entity that hires and fires and so, presumably, disciplines the chief although the "discipline" part is not specifically spelled out in the charter.

Apparently Carvalho found himself in an untenable position, especially given the likelihood that there will be yet another lawsuit involving, if not sexual harassment then certainly, "creating a hostile work environment" as has been reported is the subject of both complaints.

If he were to ignore the fact that the complaint was sent to him and wait for the commission to act, when the complaint was revealed and his name was on it he surely would have been accused of inaction in the face of this type of complaint. That's something of which the county has been accused over and over during the last decade plus, as multiple sexual harassment and hostile work environment cases have shown not only guilt but distinct attempts by the county to stonewall and even cover up the events by failing to launch timely investigations... or launch them at all.

Whether or not Carvalho's actions will be found to have been in violation of the ambiguous provisions in the charter, perhaps worse for him politically would have been to have it be known that the complaint was addressed to him and he failed to act post haste.

That being said all this criticism- such as a scathing editorial in Saturday's Honolulu Star Advertiser condemning Carvalho's attitude toward informing the public of some of the details that would not have violated anyone's privacy- could have been avoided by being a bit more open as to why he took the action he did.

The pay-wall protected editorial said, in part

Kauai residents have been left in the dark after Mayor Bernard Carvalho placed on leave the island's police chief and two assistant chiefs due to what he calls an "employee-generated complaint," which can mean just about anything. The mayor should provide more information about the allegations surrounding the three highest public officials entrusted with safeguarding the island's public safety...

The mayor added in a prepared statement, "It is standard procedure to keep all information relative to the complaint confidential while the investigation is in process. This is essential to safeguard the fairness of the process and the rights and privacy of all involved."

Of course, that depends on what the public already knows or soon will learn. When police chiefs were put on leave recently in other parts of the country, the mayors in each of those cases acknowledged the issues that already had been public knowledge: In Oklahoma, the chief's arrest on drug charges; in Texas, misuse of public funds; in Connecticut, sexual harassment; and at the University of California at Davis, pepper spraying students.

But in a small town in New Hampshire, residents are still left wondering why the police chief resigned Thursday, more than four months after he was put on paid leave that totaled $36,000.

Clearly, there is compelling reason for the public to know the circumstances under which their paid public officials are placed on leave. Kauai's situation is no different...

Mayor Carvalho read the statement to reporters that the "content of the complaint" will be kept secret "while the investigation is ongoing," but he would not say whether it would be made public afterward.

"This is not the first time an employee has been placed on leave pending the outcome of an investigation," he read, "and it should not be construed to be disciplinary in nature."

However, the police chief is more than your garden-variety county employee. Residents deserve to be advised about the nature of the allegations being made against the man who has been in charge of the county's law enforcement and his two top assistants.

But perhaps the most telling part of the editorial described what happened after Carvalho's press conference on Thursday where he read a prepare statement that revealed just about nothing.

Carvalho refused to answer questions by reporters on Thursday, directing them to his communications team. When asked whether that team would answer questions that day, he responded flippantly, "Welcome to Kauai." The county attorney has advised all county employees to remain silent, and Kauai police officers are telling reporters that they are under orders not to talk.

This just underlines not just Carvalho's inability to think and speak coherently on his own without displaying foot-in-mouth disease, but the amateurish nature of Carvalho's "communications team" which is headed by Beth Tokioka- the so-called "brains" behind the last three administrations.

Tokioka has no experience as a journalist and has gotten away with Carvalho's "Welcome to Kaua`i" attitude because the local newspaper has been, with rare periods of coherency, an administration lap dog.

All this does is to confirm the widely held view that Kaua`i is "a separate kingdom" where neither the ABCs of good public relations nor the rule of law apply.

It takes a shakeup of the proportions of the current debacle to get the attention of the outside press. The only problem is that when this story fades, so will the attention to the finger that Kaua`i mayors have been giving to the rest of the world for generations.

HORSESH*T OF A DIFFERENT COLOR

HORSESH*T OF A DIFFERENT COLOR: Stumblebums, troglodytes and mental midgets- oh my.

Those are just some of the words that come to mind over Mayor Bernard Carvalho Jr.'s "Goo-goo-ga-joob" response to charges he had no authority to place Kaua`i Police Department (KPD) Chief Darryl Perry on leave yesterday- an action reportedly taken after Assistant Chief Roy Asher and Ale Quibilan were the subject of a "creating a hostile work environment" complaint from- guess who- Officer Darla Abbatiello-Higa.

"Creating a hostile work environment" has cost the county millions and these guys are apparently still at it.

"Un-freakin'-believable," as one former Kaua`i official repeatedly yelled into the phone last night.

Perhaps the best line we heard yesterday came from "KPD Blue" author Anthony Sommer who wrote, regarding Carvalho, "maybe he just wants to keep the tradition of 'every Kauai mayor gets to fire one police chief' alive."

But if Asher and Quibilan are Neanderthals, it pales in comparison to Carvalho's "I am the Eggman, They are the Eggmen, I am the Walrus" statement that somehow the county charter gives him the right to place Chief Perry on leave.

Though he cites charter section 7.05, that section has 13 different provisions in it. But assuming the first one is the one to which he refers, it plainly begins with the phrase "unless otherwise provided" which, although Carvalho and real mayor Beth Tokioka disingenuously and conveniently chose not to read this part, means that the operable section, 11.04 supersedes 7.05(A). That's the section that says the police commission is the body empowered to hire and fire the chief and therefore apparently to whom he is responsible.

But not only is Carvalho tone deaf to the limits of his own authority, he apparently hasn't read the sunshine law either.

In his "statement" he explained that he contacted the chair and vice chair of the police commission and apparently discussed the matter with them. Since the mayor sits as a non-voting "ex-officio" member of all boards and commissions, this is a blatant violation of prohibitions on more than two members of a board discussing matters that are before that board, outside of a duly agendaed meeting.

The matter is on the police commission's agenda for a special "executive session" meeting next Tuesday.

Oh- and one last thing. Though the county has been tight-lipped about the type of leave Perry and the two assistant chiefs have been forced to take, one report may indicate it's not just some routine, non-disciplinary type.

Today's pay-walled Honolulu Star Advertiser reports that "(a)ll three were ordered to turn in their equipment."

You don't take away an officer's- or especially a chief's- gun and badge without some serious wrong-doing behind the action.

Another question that comes up is why if, as reported, the complaint against Asher was filed last October 24, it did not show up on the October, November, December or January police commission meeting agendas. It just goes to show how seriously the county continues to take charges like this.

We haven't been directly privy to the information that apparently came from either Abbatiello-Higa or Perry or both but it certainly wouldn’t be being spread by almost every media outlet in the state unless the source was unimpeachably "close to Abbatiello-Higa" or "has direct knowledge of the investigation" as they have characterized their source.

But the real issue is that even after efforts by current Councilmember Tim Bynum and former Councilperson Lani Kawahara to put an end to the sexual harassment that pervades the county offices, it continues.

A letter from the two dated October 13, 2010 states that the county "has repeatedly failed to respond appropriately to allegations of sexual harassment and a hostile work environment."

Yet the Carvalho administration hasn't done a thing other than have a few "training sessions." Many of the harassers- even some of those that cost the county big bucks- are still on the job in positions that actually ARE under the direct supervision of the mayor. Funny how he's willing to butt in where he's apparently forbidden by law to do so but when it comes to his own hand-picked cronies it's a "hand-off" policy that pervades.

If we didn't know better, we might think there was some kind of corruption going on in the administration.

WELL I WONDER, WONDER, WONDER, WONDER WHO

WELL I WONDER, WONDER, WONDER, WONDER WHO: The "fact" that Kaua`i Police Department (KPD) Chief Darryl Perry "is on leave" seems to be the only thing that is clear after chapter two of the latest departmental saga hit the streets.

Chapter one was the leave that was apparently forced on two assistant chiefs by Perry on Tuesday. But as to how Perry wound up on leave there seems to be about as much confusion in the press as there is silence on the part of the administration of Mayor Bernard Carvalho Jr.

The first report of Perry's "situation" came from a county press release last night and simply said:

As of this morning, Police Chief Darryl Perry is on leave and Deputy Police Chief Michael Contrades will serve as Acting Police Chief until further notice.

The local Kaua`i newspaper claims to have reached Perry who told them that indeed it was hizzonah who did the deed saying:

While the county offered no explanation in terse statements that were released Tuesday and Wednesday, Perry said late Wednesday that“the truth will come out,” and that the actions were brought about by the mayor’s office.

The pay-walled Honolulu Star Advertiser, while detailing some of the ways past chiefs have departed on less than friendly terms with the county apparently reached county KPD spokesperson Sarah Blane who told them "she was not told who placed Perry on leave."

Although the county claims it cannot say anything because it is a "personnel matter" the sunshine law says that, if appropriate in the specific case, the public's interest in the information can trump privacy concerns. That, however, would be a matter for the toothless Office of Information Practices (OIP) to determine and, even if they had fangs, they seem to work at glacial speeds.

So who dunnit?

Well if it was the mayor all we can say is "here we go again."

According to Section 11-4 of the Kaua`i County Charter

The chief of police shall be appointed by the police commission. He may be removed by the police commission only after being given a written statement of the charges against him and a hearing before the commission.

And while the power to place the chief on leave is not directly addressed, Police Commissions statewide are, according to state law, supposed to be autonomous in their dealings with the police chiefs.

But while it's not within Carvalho's powers to remove- or even place on leave- the chief, it's not for lack of wishing on his part. He has been engaged in a campaign to have the state law changed so that the chiefs of the police departments across the state would be hired and fired by the mayors, making the police commissions little more than advisory boards.

It may be of note that both Perry and the commission have gone on the record opposing Carvalho's would-be new law.

A perusal of the police commission's most recent agenda produces no recent "emergency" meeting where any executive session placing Perry on leave might have taken place and to do so would have violated the state sunshine law anyway which requires six days notice before a meeting can be held.

However this morning at 8:15 an agenda for a meeting scheduled for next Tuesday February 7- the first day one could be legally held- calls for no less than three "executive sessions."

The first, ES 5 reads in part

Pursuant to Hawai`i Revised Statutes, §92-4, 92-5(a) (2) and (4), the purpose of this Executive Session is for Mayor Bernard P. Carvalho Jr. to provide the Commission with a briefing regarding personnel and/or disciplinary actions related to notarized complaint filed with the Police Commission on 01/31/12, and for the Commission to further consider and discuss said personnel and/or disciplinary actions.

While it's not clear what "disciplinary action" Carvalho has taken it seems pretty clear it refers to placing Perry on leave because the next item, ES 6 reads

Pursuant to Hawai`i Revised Statutes, §92-4 and 92-5 (a) (4), the purpose of this Executive Session is for the Commission to consult with its attorney as to its powers, duties, privileges, immunities and liabilities as they relate to Section 11.04 of the County of Kaua'i Charter

Charter section 11-4 of course is the one cited above about the hiring and firing of the chief being the sole kuleana of the police commission.

The third item on the 2/7 agenda reads:

Pursuant to Hawai`i Revised Statutes, §92-4 and 92-5 (a) (4), the purpose of this Executive Session is for the Commission to consult with its attorney as to its powers, duties, privileges, immunities, and liabilities as they relate to Rule 6-1.f of the Rules of the Kaua'i County Police Commission.

But if you thought that would clarify what was going on you'll be sorely disappointed because Rule 6 is entitled "Control, Management And Direction Of The Department" and 6-1 is an incredibly long and list of the "Powers, Duties and Responsibilities of the Police Commission."

Although 6-1-3 does deal with "Investigation of Charge (sic)" it does not directly address what happens if the target of the investigation is the chief.

So what does it matter who put Perry on leave?

Well if past is prologue the county might just be in for another big settlement should Perry decide to sue for denying his rights under the charter.

To make a long story short, back when George Freitas was the chief and Maryanne Kusaka was the mayor- this during the time when Kusaka was allegedly covering up for her buddies with grubbing and grading violations by allegedly telling a Department of Public Works engineer to butt out when it came to Jimmy Pflueger and the Ka Loko Dam area that later burst during a storm killing seven people- Kusaka "removed" Freitas from his office.

She apparently got the long time secretary for Freitas and past chiefs to take his gun and badge from his desk and give it to her. There was a long list of serious charges made but when it was all over the only one the police commission upheld was that Freitas had given a ride to his girlfriend in his police car.

And in the end Freitas settled for a reported half-million dollar golden parachute and "retiring" from the force.

Hard to say what will happen tomorrow- or next Tuesday for that matter because the usual open session for decision making after executive sessions on complaint against KPD personnel is decidedly missing from the 2/7 agenda.

But one thing is clear- in his notorious quest for power Carvalho is certainly putting the county in jeopardy by usurping the commission's oversight.

FEELING KINDA SEASICK

FEELING KINDA SEASICK: We admit it- we have a hard time keeping up with the voluminous viewing of council meetings.

First of all, even if we do watch them "gavel to gavel" figuring out what the bleep is going on is often a fool's mission because the actual communications, reports, memos, bills, resolutions and the rest of the accompanying paperwork is still not available on line after years of promises from two different council chairs and even a budgetary appropriation for another staff member dedicated solely to this supposedly daunting task

So again it's time to ask how hard it is to take the packet of hard copies, already sorted and ready for replication and distribution to the public at the counter of Council Services, and scan and post them at the council's web site? Apparently it's beyond the capabilities of anyone who works there, although we suspect that it is, rather, a reluctance to actually let people know any more than they want us to know.

But it's not all due to the speed bumps and blind spots strategically placed on the information highway. We do get overwhelmed on occasion as it was earlier this year when the outside, independent auditors came in for their "report" to the council.

Yes, we missed the audit report. Somehow it quite literally put us to sleep as we remember it. Imagine that.

And so it was that later, last Wednesday well after the miller had told his tale, that we were taken aback when Director of Finance Wall Rezentes Jr.- or "Little Wally" as he is known around county government- took the hot seat to answer some 13 questions the council had for him regarding the findings in the charter-mandated audit.

Apparently, according to Councilmember Mel Rapozo, the audit showed that the "ending balance for vacation and sick leave were not matching the beginning balance for the next year." And, 90% of them were in the Personnel Department of Malcolm Fernandez.

"It's more than an anomaly" said Rapozo, "it's a trend.

"Obviously it's human error... we know that," he told Little Wally and the assembled, saying that there were "too many occurrences for it to be just a mistake.

"I want to make sure there's no evidence of fraud- that nobody's getting extra vacation and sick leave hours," Rapozo said.

But Rezentes couldn't say that was so, only that the amounts had been reconciled and that "Fernandez is taking corrective action." He admitted no one had really checked for wrongdoing or what really happened other than ascertaining, in response to a final question from Rapozo, that "somebody" did reconcile the numbers.

Rapozo seemed to indicate that there were 20 instances of "irreconciled" sick and vacation filings in the Personnel Department alone and let slip that that was "90%" of the total and, apparently there were "one or two" in- drum roll please- the Kaua`i Police Department (KPD).

That was last Wednesday. And, although "we ain't sayin', we're just saying" as they say, yesterday it was reported in the local newspaper that KPD Chief Darryl Perry has placed his two assistant chiefs, Roy Asher and Ale Quibilan, on leave "due to a 'personnel matter.'"

Oh, and of course neither the audit, nor the 13 questions- nor for that matter the written answers to the 13 questions that were apparently provided to the council by Rezentes- is posted on the county's web site.

OCCUPY THIS

OCCUPY THIS: One of the stranger aspects of the Occupy Kaua`i "rally" (for lack of a better term) last Saturday was the presence of Kaua`i Police Department (KPD) Chief Darryl Perry. But stranger than his mere presence is the way he has taken advantage of the local version of the movement to pump up his image in the media.

Not just his presence but his statements- that essentially he was there to protect the participants- were widely reported although he and his officers just stood by during the one thus-far-unreported incident. Just after the 11 a.m. start two state trucks came by packed with contra-flow "cone-droppers" who yelled at "protesters" to, among other slightly nastier things, stay out of the street, even though no one was obstructing traffic.

And obviously Perry's fellow officers didn't seem to care.

But Perry wasn't done with his use of the rally for personal PR purposes after Sunday's and Monday's TV and print offense.

Today a piece in the online "newspaper" Civil Beat appeared in the form of an "interview" with the Chief although it had Perry's own byline making it unclear if the "questions" were Civil Beat's (as the first question intimated) or Perry's own.

Anyway he took advantage to of the opportunity to say things like:

The “occupy” movement and civil unrest in general is a means to express displeasure and/or dissatisfaction with the current state of the political climate as it relates to government or corporate policy.

Growing up in the 1960s during the Vietnam Era, and being witness to local protest movements concerning Native Hawaiians, I can understand the frustration of individuals who feel that they are disadvantaged through no fault of their own or they need to stand up for others who are not able to do so on their own.

But don't for a minute think he was supporting the confrontational aspect of the movement pitting the "99%" of the people against the 1% that control most of the wealth in this country and county.

He went on to say:

This frustration appears to be global, but I believe what is unique about Hawaii in their appeal to the silent majority via demonstrations, is that we have great respect for each other which is based in our up-bringing of being pono. I want to make it clear, that this respect for one another is not racial and specific to one ethnicity, it is more culturally based, and as you know, Hawaii is a mixture of all races coming together and believing that we don’t check our values at the door for a cause or circumstances; that our integrity is always at the forefront of our actions.

Ah, the old plantation mentality appeal, essentially saying that we 99%ers just love to be exploited by the 1% and are too laid back to do anything but have our say and go back to our cruddy, exploitative, starvation-wage jobs.

Well we wonder how Perry and his KPD officers are going to react if a plan by the group "Occupy Kaua`i" comes to fruition.

According to a widely circulated email, members of the group met Monday evening and

after much thought and even more deliberation, we decided that we would do an actual "occupation" at the park near the county building beginning this Friday. We are going to have a meeting at the pavilion at Lydgate park on Thursday Oct. 20th at 7pm. We are going to go over our goals, concerns (we have somebody looking into legal issues), planning, logistics...etc. We will be having a potluck, so please bring something to share, but no big deal if you don't. Please inform anybody you know who may be interested in standing with the 99%.

Assuming the "legal" issues can be worked out, it will be interesting to see how Chief Perry and his force respond to the only actual "occupation" in the islands- what with the respect and permissiveness he's been expressing toward the group in the media this week.

DOIN' A BANG-BANG UP JOB

DOIN' A BANG-BANG UP JOB: Kaua`i police, weapons drawn, descended on the old Lihu`e courthouse today, firing at random.

And they will be all week if they act in accordance with a press release issued by the Kaua`i Police Department (KPD) yesterday afternoon that apparently somehow failed to make it into today's local newspaper.

Although according to the press release it's only an "official training" exercise using "blanks," with the total lack of notification of the populace at large we expect that if all goes as planned, people will be diving under cars or running in circles, hands to cheeks, shrieking at the top of their lungs in fright since no one in KPD thought to issue the release earlier or make sure people were properly informed.

The whole release reads:

Police to conduct training exercise this week

LĪHU`E – The Kaua‘i Police Department (KPD) will be conducting official training today through Thursday, between the hours of 7:45 a.m. and 4:30 p.m., at the former Fifth Circuit Court Building located on Umi Street in Līhu‘e.

The public may see officers in the vicinity of the building with weapons drawn. Please note that this is only training. No live munitions will be used, although the sounds of blank rounds may be heard.

KPD requests the public’s assistance in keeping a distance from, and not interfering with the training exercise.

Of course it would have helped if the Honolulu newspaper's on-line edition wasn't hidden behind their pay wall because in a tiny, buried, somewhat more sensational blurb in their "Newswatch" briefs they told people- well actually they told only their paid subscribers- that:

Police training on Umi Street will involve guns

The Kauai Police Department will be conducting realistic-looking training through Thursday at the former 5th Circuit Court Building on Umi Street in Lihue, the county said in a news release.

The public might see officers in the vicinity of the building with weapons drawn and might hear gunfire, but the rounds will be blank. The exercise began Monday and will run between 7:45 a.m. and 4:30 p.m.

Of course if people drop dead from a heart attack or do something stupid like get hit by a breadtruck after running out into traffic in a panic, there will be plenty of blame to go around since the local newspaper apparently had plenty of time and opportunity to get the news out by press time.

You would think with something as important as the fact those cops firing weapons in an apparent assault on a building in the central Lihu`e Civic Center area are, in fact, "only joking" would be something people would actually be informed about.

But noooo- not on Kaua`i. Apparently it's just another one for the "can't anyone here play this game?" file.

LESS FEAR, MORE LOATHING

LESS FEAR, MORE LOATHING: Though you'd never know it via statewide media, the biggest trial in years on the Big Island has not only the corporate Hawai`i Tribune Herald's attention but that of various news-blogs that have had blow by blow daily coverage by cannabis activist Matt Rifkin and others.

The two sides have rested in the trial of Rastafarian Rev. Nancy Harris of the Sacred Truth Mission on marijuana cultivation charges after Harris presented a defense based on her religious practice under the federal Religious Freedom Restoration Act.

But the trial took a turn yesterday that ought to concern not just journalists but everyone when Deputy Prosecutor Ricky Damerville subpoenaed Tiffany Hunt Edwards, a free lance journalist who hosts the Big Island Chronicle (BIC) "blog." and has reported for various Hawai`i Island publications including the Big Island Weekly (BIW).

Early yesterday Edwards wrote:

From newswoman to newsmaker — Deputy Prosecutor Ricky Damerville “rush” subpoenaed me to testify in the religious use of marijuana trial.

This is a first in my journalism career.

I’m to appear at Third Circuit Court this afternoon to testify in the trial of Nancy Harris who is accused of commercial promotion of marijuana and is using a religious marijuana defense.

At issue is my June 2009 coverage of the case, specifically a free-lance article I wrote for the Big Island Weekly.

Although the trial ended without Edwards testifying the subpoena itself appears to be a blatant violation of the Act 210, the Hawai`i State News Media Privilege law, commonly known as the reporters' "shield law."

As summed up in last year's legislative extension of the law:

Session Laws of Hawaii 2008 (Act 210), established a limited news media privilege against the compelled disclosure of sources and unpublished information to a legislative, executive, or judicial officer or body, or to any other person who may compel testimony.

What that means is that other than the actual article itself the provision of anything the reporter may have seen or heard, including facts recorded in notes, cannot be "compelled."

That type of wording has been interpreted to mean that reporters in jurisdictions that have such shield laws cannot be subpoenaed or "compelled to testify." The article speaks for itself.

Edwards, who herself has also been attending the trial and has written about it on her BIC web site, was not on the original list of witnesses. She told us that she had consulted with two attorneys before the subpoena was withdrawn but didn't say what she would have done had it not been canceled.

The point here is that the very issuance of a subpoena can only be seen as pure harassment on the part of Damerville, especially given that Rifkin's coverage at BIC has been supportive of Harris' defense as was Edwards 2009 BIW article.

While this incident may not be quite as egregious as the 2008 locked-door interrogation at the "cop shop" of journalist and blogger Joan Conrow by Kaua`i Police Department Deputy Chief Clayton Arinaga asking what she saw in covering the "Naue `Iwi" protests, it is equally as offensive to anyone who values a free press.

The law is there for a reason. Journalists should not be acting as volunteer police for many reasons. Not only would credibility- not to mention their safety- become an issue if people think reporters are simply the eyes and ears of the police, but in fact reporters are there to do a constitutionally protected job that requires them to occasionally grant anonymity to those sources who would never talk to reporters if they thought their identities were going to become public.

When police and prosecutors- people who are expected to know the law- ignore it, they can only be seen to be harassing and intimidating journalists causing them to have to think twice as to not just how but what they report.

Will Edwards file a complaint with the attorney general's office or the state bar? We certainly don't know yet but we certainly urge her to follow-up on this matter so as to make sure that it doesn't happen again.

COULD YOU REPEAT THAT FOR THE WEST COAST?

COULD YOU REPEAT THAT FOR THE WEST COAST?: We'd sure would have liked to be a fly on the wall at Hawai`i Island Police Department (HIPD) headquarters when officer James Waiamau got his chewing out, most likely not for what appears to be the actual beating and arrest of Damon Tucker- yeah, we're making a week of it and you'll see why- but for being so stupid as to pick a guy who has a fair-sized megaphone... a guy you'd think Waiamau would or should have known (although many think he and they knew exactly whom they were harassing).

Presumably, with the state-wide publicity and the official HIPD release saying it "recognizes the media and the public have every right to photograph police activity in a public place from a safe distance," you'd pretty much think that the cost of defending, much less settling, Tucker's probable lawsuit would have everyone on their best behavior, especially if a "photographing in public" incident comes up again.

Moreover you'd think that when they found out that they had a problem with the report number on Tucker's "Obstructing a Government Operation" summons that he received upon leaving the cell block, the officer they sent to give him the corrected paperwork would have some semblance of an idea of what to do and not to do if someone was there with a video camera.

But there it is- a video, shot by Big Island Video News' (BIVN) David Corrigan in which Officer K. Veincent orders Tucker to tell Corrigan to stop video taping.

Tucker was there for an interview with BIVN and apparently had agreed to meet up with Veincent there too... at the "scene of the crime." About five minutes into the piece a red late model Dodge Charger with a blue roof light pulls up and Tucker leans into the passenger window.

He then turns around, looks into the camera and says "He doesn't want you video taping- he doesn't see the reason why."

The first part is insane enough- police are presumed to have the "persuasive power" so an illegal request comes under harassment and misconduct. But the fact that Veincent presumes that the videographer has to have a reason to continue makes you wonder who the heck is in charge down at HIPD headquarters.

As to the rest of the interview- which was attended by Barbara Lively the legislative assistant to Hawai`i County Councilman Fred Blas- Tucker, visibly shaken during and after the meeting with Veincent, shows clearly where the beating and arrest took place as he goes through a "walking tour" of the chronology of the incident.

Then at the end of the piece, he can be seen fighting back tears and saying "as you can see I'm clearly across the street... The fight happened right over here (pointing) so I'm way far away from where the fighting was."

Judging by the official statement, somebody at HIPD clearly recognizes, if not what the right thing to do when an officer comes across someone taping their activities from a "safe distance" is, then at least what it's going to cost the county.

But Veincent quote possibly just put another "zero" at the right of the figure that Tucker will ultimately receive by continuing the harassment and intimidation.

We've been pretty critical of our own Kaua`i Police Department and some of the clearly knuckle-headed, bad policy and bad publicity actions over the years. But they've got a ways to go in the goon department to catch up with their brethren at the other end of the state.

FOURTH AND FORTY

FOURTH AND FORTY: The Office of Information Practices (OIP) has been taking it on the chin lately over what has been described ad nausium as their decision to "punt" to the courts on this issue of whether Governor Neil Abercrombie had to reveal the full list of his judicial nominees after he made the appointment.

For those who haven't been following the story Abercrombie's predecessors routinely released the list but he claims that doing so would result in attorneys' reluctance to apply, should their law firms or clients find out.

The story has been reported and analyzed in the mainstream and alternative press as well as blogs- both mainstream and alternative- culminating with a Honolulu Star Advertiser editorial today and all have one thing in common- they routinely miss the point in criticizing the OIP for not opining on the matter since, they say, the law appears to require them to do so.

Typical of the criticisms is today's post by S-A columnist/blogger Dave Shapiro who, in telling the saga thus far, writes:

The saga of Gov. Neil Abercrombie’s secrecy on the names of judicial candidates has taken a troubling new turn with his hand-picked director of the Office of Information Practices, Cheryl Kakazu Park, refusing to issue an opinion on whether state law allows the governor to keep secret the nominees given him by the Judicial Selection Commission.

Park said it’s a waste of time for OIP to become further involved because Abercrombie has said he’ll ignore any OIP opinion against him unless a court tells him he must abide.

Park’s “punt,” as one news story described it, isn’t surprising; her predecessor, Cathy Takase, was fired after ruling against Abercrombie with a letter reiterating a 2003 OIP ruling that the names must be released.

The troubling part is that the governor now has not only shut the public out of the process of selecting judges who wield great power over our lives, but has politicized the OIP in an unprecedented way that diminishes its credibility and relevance.

And the law seems to be clear as is set out in this passage from blogger Ian Lind's post on the subject:

In Section 92F-42, which sets out the powers and responsibilities of OIP, this is right there at the top of the list. Responsibility #1.

The director of the office of information practices: (1) Shall, upon request, review and rule on an agency denial of access to information or records, or an agency’s granting of access;

I added the bold type on the word “shall.” OIP shall rule on an agency’s denial of access. It doesn’t use the word “may,” which would have given OIP discretion on whether to issue a ruling. It doesn’t say that OIP shall rule except when it looks futile because an agency stubbornly insists that it has the right to do whatever it wants. It says, simply, OIP shall do this job. It’s #1 responsibility. Top of the list, top line priority.

Someone needs to go back to OIP and ask what legal authority they have to “punt” in this case, given what appears to be clear statutory language (emphasis Ian's).


The problem is that each and every one who has written on the subject has either failed to read or comprehend the operative sentence in the letter from Park:

Toward the end of her memo she simply writes that:

since the Hawaii Supreme Court's (ruling) in County of Kaua`i vs Office of Information Practices OIP has been issuing advisory opinions rather than determinations.

For those for whom the case doesn't ring a bell it revolves around the infamous Kaua`i County

Council executive session- ES 177- the tentacles of which not only chimed over and over in Kaua`i Police Deportment politics for years but was one of the major highlights of the tale told in the book KPD Blue (see right rail).

At the secret conclave, then and now-again Councilmember Mel Rapozo, who was present at the infamous lap dance party at KPD headquarters and lost his cop job because of it- went off on KPD personnel blasting Chief KC Lum and others in the department according to an OIP memo observed but not copied by PNN at the time.

After an "on camera" examination the OIP ordered the minutes of the meeting to be released but the county, in the person of County Clerk Peter Nakamura, acting on the orders of then Council Chair Kaipo Asing, refused and decided to sue in circuit court.

The problem, as far as the OIP was concerned, was that the OIP was set up, in part, just to avoid these kinds of inter-agency lawsuits and then Director Les Kondo fought the case tooth and nail to avoid having the OIP become a "toothless tiger".

He argued that the provision allowing parties aggrieved by the OIP to sue in circuit court was to provide due process to individuals who were denied access to records, not for agencies told to "give 'em up" to sue the OIP. And he presented not just the specific wording of the law but the legislative committee reports- which clearly stated stated as much- as evidence.

But, to perhaps over simplify, the Supreme Court (SC) didn't listen or didn't care what Kondo foresaw happening to the OIP.

They essentially ruled that the county was entitled to access to the courts if due process was to be served. They also ruled, somewhat bizarrely, that although the request was for the minutes of ES-177- a "record request" over which the law clearly gave OIP authority in HRS 92F- it was actually a suit regarding a meeting, which falls the Sunshine Law (HRS 92) where the OIP did not have the "final bite of the apple" authority.

That essentially meant ithat Kondo's argument was deemed irrelevant.

And now the chickens have come home to roost.

In dealing with the ruling the OIP has simply stopped handing down binding opinions as the law calls for and now simply issues "advisory opinions", all of which can be appealed to the circuit court by anyone, as the SC precedent said.

Kondo was almost apoplectic over what he saw as the end of the OIP and of course he was right. But the Hawai`i press still doesn’t get it.

The SC opinion is not entirely clear as to whether the case was decided on the minutes vs open meeting matter or the lack of due process, the latter seeming to be just to get around Kondo's argument and get to what they- and the C of K- saw as the meat of the issue at hand... the release of the ES-177 minutes.

The County may have won the case but people who value open government and records rue the day that the decision came down. And until our punditry class cuts through the clutter of the politics of the judicial appointment list case and recognize the roots of the OIP's action, we'll continue to be kept in the dark about the state of affairs in the OIP.

PROSECUTE THIS

PROSECUTE THIS: When county furloughs were ended earlier this year in conjunction with their end, the office of Prosecutor Shaylene Iseri Carvalho lobbied the county council to include some money for them to "catch up" on what they called a furlough-caused backlog of cases.

As we wrote on February 8:

For those who missed the circus, when furloughs were first discussed Mayor Bernard Carvalho assured the council the “public safety employees” would not be furloughed.

But, long story short, they were- including non-sworn officers in the Kaua`i Police Department (KPD), which caused all kinds of constipation as the prosecutor’s office, already backed up by the furloughs in the state courts, had to begin letting people loose- people KPD had arrested- because they couldn’t process them as fast as the law required.

After a huge fight over whether money for the prosecutor’s office to “catch up” on the backlog- supposedly created by furloughs- was truly “related to furloughs” (as the bill’s “purpose” stated) the money was included in the bill.

Well although, as we wrote, the lifeguards were denied back pay in the money bill- even though "public safety" related jobs were supposed to be exempt- Iseri got her money.

But we failed to report a little wrinkle in the proceedings.

When the original request was made it was claimed that while the attorneys in the office were working during the furlough period they were unable to get the needed support to be able to go through the cases and now would have to work overtime to clear the backlog.

That, the council was told, was what the money was for.

But after that claim had rolled around in the minds of councilmembers through the public hearing and a couple of committee meetings a light bulb seemed to go off in the mind of Councilmember Tim Bynum who asked a very basic question.

"Wait- aren't the prosecutors on salary?"

This set off some verbal scrambling because salaried people don't get paid for overtime. After some hemming and hawing the council was told that the extra money would be going for overtime pay for the support staff in the prosecutor's office to get the paperwork done and enable the individual prosecutors to catch up.

But even though Iseri had essentially misrepresented the need for the "catch-up" money, the new explanation seemed to hold water and of course it was a matter of the public's safety so the money for the staff overtime was appropriated.

So why do we bring this up now?

Because, after a three month investigation, PNN has learned that shortly after the bill passed Iseri instituted a new cost cutting policy, telling the support staff that the doors to the office would be locked promptly at 5 p.m. every day and no overtime would be paid.

Many sources describe the Kaua`i prosecutor's office as "a mess". They say that virtually all the long-time prosecutors have either been fired or were "quitted"- as in "you can't fire me, I quit"- along with career support staff. The newbies are all inexperienced attorneys, fresh out of law school, imported from the mainland, with no knowledge of the local community much less courtroom experience. There is only one attorney that is a long time Kaua`i resident left in the office.

The same goes for staff where employees with decades of experience have quit in disgust. One precipitating episode was that when Iseri took over in 2008, in order to "keep and eye on" everything, she took the offices of many staff members away and put them all in partitioned cubicles in a main area, and then used the vacated offices for "storage."

Also, according to multiple sources, Iseri fired one attorney when the attorney announced she was pregnant and needed legally mandated maternity leave. That cost the county a cool $30,000 after County Attorney Al Castillo quickly settled the resulting EEOC complaint after the council's equally prompt approval since the unlawful termination case was so outrageously obvious.

But those matters pale in comparison to something we've heard about from multiple sources who are in positions to know.

Apparently Iseri recently sat her "team" down and issued orders that certain local attorney's clients are not to be offered plea bargains.

If this is true- and we have no reason to believe it is not- it would be an outrageous violation of not just the code of professional conduct for attorneys but a severe violation of the public's trust that our prosecutor runs her office in the name of justice, not the petty vendettas and personal power grabs that appear to be Iseri's hallmark.

But all is not lost. We've been hearing all over town that Deputy County Attorney Justin Kohler who works with the Kaua`i Police Department (KPD) is telling anyone who will listen that he is going to oppose Iseri in 2012 and, as a result, people say that Iseri will try to return to the county council in next year's election.

Those are just the things we can verify to our satisfaction from sources close to the prosecutor's office who fear retribution if we were to use their names. There are other stories that are single sourced- even though the sources are reliable- and we've been unable to confirm them. Others that would burn your ears off cannot be told due to the privacy concerns of the principles.

We have urged all our sources to come forward and file complaints with the Hawai`i State Bar and/or the Office of the Attorney General, as appropriate.

This reign of terror must end.

JETTIN' TO THE PROMISED LAND

JETTIN' TO THE PROMISED LAND: Upon disembarking, many Kaua`i tourist have been heard to happily exclaim that they feel like they just stepped back in time.

And sometimes- not so happily for kama`aina- it feels like even the interisland airlines are actually running a time machine.

How else do you explain the fact that when we wrote about the bizarre anachronistic fear-mongering emanating from the the Kaua`i prosecutor's and police chief's offices that resulted in a semi-aborted "rally" against the scourge of the evil weed, some mainland and even O`ahu readers thought we might be fabricating the extent of the fanaticism.

So thanks goodness they also scheduled flights back to the 21st century- or the Honolulu equivalent.

As loath as we are to give them too much credit, it's apparent that, with a little backing and a little luck, Hawai`i legislators just might be ready to grow up and leave the naysayers mired in their own skewed, self-serving world.

Because, believe it or not, three key bills on marijuana reform have passed the senate, "crossed over," passed first reading on the house side and received committee referrals.

Of course they have a long way to go but never before have any similar measures even gotten out of committee much less crossed over.

The two medical marijuana bills are astounding enough. The first, SB175 SD2, remedies that counter-intuitive set-up contained in the original law that put the program in the Department of Public Safety- the state agency that administers the prison system- and places it where any medical program belongs- in the Department of Health (DOH). That means that, among other things, rather than the "list" of patients being available to law enforcement agencies they will now have to check the participation of individual patients with the DOH.

SB175 SD2 has passed the senate and first reading in the house and been referred to a joint committee of the Heath and Public Safety/Military Affairs and the Finance committee.

One political note: as if to prove how out of touch some on Kaua`i are, the only "no" vote in the senate was from our own Senator, Ron Kouchi, who somehow was elected this past November, perhaps because he has brown-nosed the good old boys' political machine for so long- and had a war chest to prove it- that no one chose to oppose him.

The second bill, SB1458 SB2, remedies other absurdities in the original law by creating a path to "medical marijuana compassion center license(s) for the sale of medical marijuana to qualified patients." It also creates a "medical marijuana cultivation license" and a "medical marijuana-infused products manufacturing license" which would all be further defined and regulated by the DOH through administrative rules- rules which would be subject to public hearings. And for all you fiscal conservatives out there it "(e)stablishes a fee for issuance and renewal of a license and a special marijuana sales tax."

It has also passed the senate and first reading in the house and has been referred to a joint committee of the Heath and Public Safety/Military Affairs and the Finance committee.

The third, SB1460 SD1, is the miracle legislation which "(e)stablishes a civil violation for possession of one ounce or less of marijuana that is subject to a fine of not more than $100, and establishes an adjudicatory structure for its enforcement." That means that even though it would still technically be "illegal," possession of less than an ounce would be treated like a traffic ticket, not a "crime."

SB1460 SD1 also has passed the senate and first reading in the house and will go to a joint committee of the Heath and Public Safety/Military Affairs and the Judiciary committee.

It goes without saying these days that keeping possession by adults of small amounts of marijuana illegal is not only draconian but is costing taxpayers dearly. The only ones who oppose this are apparently those who stand to keep reaping the benefits of appropriations and grants... as well as the cash cow of the forfeiture laws.

The only problem is that all three bills, if passed in their current form, wouldn't take effect until July 1, 2050.

Well, no one can say the legislature doesn't have a sense of humor.

AN UNSAVORY MORSEL

AN UNSAVORY MORSEL: We couldn’t have been more than two or three years old when we somehow became aware- we suspect it was via our fount of all knowledge in those days, Bug Bunny- that we had been missing out on a culinary treat called mock turtle soup.

Of course we immediately made the obvious inference- they were made from mock turtles.

We’d heard of and seen lots of kinds of turtles. Over the years we assumed that, as the case is many times, it was like places called “Bear Creek” that had no bears- it was “just the name of the turtle.”

Over the years Lewis Carroll did nothing to dissuade us from our presumptuous assumption and so a decade later a trip to a fancy restaurant and a bowl of weak broth with some soggy crackers made a, well, mockery of our postulation.

We had gotten what we had long craved only to find out it wasn’t at all what we really expected and wanted.

So it was a bit of deja vu for us today after tracking down the answer to a question that people have been asking us for a couple of months now- who the heck if Sarah Blane?

The answer- Blane is our very own mock turtle.

At first we feared the worst- that references to Blane as “Kaua`i county spokesperson” meant that our old friend Public Information Officer (PIO) Mary Daubert might be on the outs. But Daubert’s name continued to be preceded by the same title.

Observation yielded another of those assumptions- Blane’s name seemed to be attached to county press release emanating from the Kaua`i Police and Fire Departments.

Could it really be true? After years of complaints from the public and KPD chiefs that they needed their own embedded PIO in order to speak directly to the public- rather than having to filter everything through the mayor’s office and his or her PIO- KPD had their very own spokesperson?

After all, KPD is set up by charter to be an independent department with a police commission, not the mayor, doing the oversight. They don’t need to have the contents of each and every communication with the public filtered through the political whims of the mayor.

So, after a month or so of seeing Blane’s name attached to police and fire statements today we asked Mary “whassup?”

And, as if we couldn’t have predicted it, she wrote:

Sarah Blane is the newest member of Kaua`i County’s communications team. The other members of the team are Beth Tokioka, director of communications, and myself, public information officer. Sarah joined the Mayor’s office staff on Dec. 1 at the start of Mayor Carvalho’s first full term. Her title is public information assistant. She is responsible primarily for media communications for KPD and KFD, the county’s Facebook page, and assisting with community outreach efforts.

In an administration where even the smallest bit of PR minutia is carefully controlled we’d have to be as naive as a two year old searching for a delectable misnomer to think that any KPD spokesperson would be situated in KPD and answer to the chief.

We can only imagine how Chief Darryl Perry really feels about this after having had his, er, legs cut off while he was off island during the anti-marijuana rally fiasco with a deceptive press release going out on KPD letterhead under his name- a release that only hours later proved to be a lie in order to cover-up the fact that the rally was cancelled due to an ACLU compliant, not the weather.

So pity poor Sarah the county’s mock turtle. She aspires to be real meat but ends up nothing more than a mouthful of watery mush.

-----

We're taking a long weekend. Be back next week.

GET SMART

GET SMART: Though there’s been a deafening cone of silence over County Attorney Al Castillo’s response to the Hawai`i Chapter of the American Civil Liberties Union’s (ACLU) letter that led to the cancellation of the county’s anti marijuana rally last Thursday, PNN has learned that Castillo has apparently opined that the ACLU was correct in telling the county that using county resources for the activities is illegal.

And to no one’s surprise Prosecutor Shaylene Iseri-Carvalho is none too pleased and has written two nasty letters to Castillo saying so.

Although we weren’t able to obtain Castillo’s “confidential” letter- which was addressed to Iseri, each individual council member, the Kaua`i Police Department (KPD) Chief Darryl Perry as well as three administration honchos- it is obvious from Iseri's responses, which were also “cced” to Mayor Bernard Carvalho, that Castillo supported the ACLU’s position.

In response to Castillo’s original email Iseri wrote

Subject: RE: Anti-Drug Rally Scheduled for February 17, 2011

Aloha Al,

It is quite unfortunate that you chose to send out an email with that tone. You are violating all of the county employees’ rights who chose to attend the rally on their own time. You are suppressing their First Amendment rights and your actions should not be condoned. I will be submitting a letter to the oversight body to review your actions. I have already received calls about you and other County officials that are prohibiting people from attending, even after work hours. Please stop doing this, as I believe, this exposes the county to significant liability.

Further, please be aware that your Deputy County Attorney, on county time, testified on a televised Council meeting with you present, to strongly oppose these same bills, that “other county officials” you make reference to in the press release, exposed the county to significant liability. Yet, I don’t see any reference to your office taking responsibility for its use of county resources to oppose legislation. You were present at the Council meeting and said ABSOLUTELY NOTHING. There is absolutely no authority for the County Attorney’s Office to testify in criminal matters. Let’s call a spade a spade. It is inappropriate to place blame when your office is guilty of the same actions. We are one County and to try to place blame when you were present when all this was happening is totally inappropriate, unprofessional and not in the County’s best interests.

Mahalo,

Shay

But the ACLU did not say that there was anything wrong with employees using their own time and resources to lobby on legislation. In fact they said the opposite in their original letter writing:

At the outset, we note that the American Civil Liberties Union ("ACLU") has long advocated for individual free speech rights, regardless of the content of that speech. Additionally, the ACLU supports and defends the right of government officials and employees to comment on issues in their personal capacities. The issue with the upcoming Rally is not about the individual police officers, prosecuting attorneys and other county employees expressing their viewpoints, it is about the potential use of public resources (including time and labor of County employees) to do so.

The ACLU letter came the same day as the council meeting- which we described yesterday and presumably did not address the presentation made there.

After a response, also confidential, from Castillo, Iseri not only admitted that her office wrote the press release that the ACLU used to point out the illegality of Iseri’s actions, but gives a detailed description of who else acted in the same vein, writing:

Al,

If you haven’t done your total investigation, let it be clear that our office prepared the “draft” release. The “draft” release was provided to KPD to review. It was Beth Tokioka that reviewed it, edited it, and sent it onward. Beth even took the liberty of making amendments to include a quote from Theresa Koki that was never in our initial draft release. Theresa Koki was never presented the release, and never made any quotes because I specifically had asked her about it when the release was amended . It was very clear to me that once we mentioned that Jake had prepared the release, you then took the position to blame KPD and OPA, because of quotes in the release. I find it very sad that because of the unprofessional manner in which this matter was handled at your doing, what started out as a great act of collaboration between KPD, the Administration and the Prosecutor’s Office, has turned into a chaotic event.

Shay

So what did the ACLU say?

Before the passage on employees actions on their own as private citizens they wrote:

Re: February 17 Anti-Drug Rally

Dear Chief Perry and Mr. Castillo:

We write to raise serious legal concerns about the Anti-Drug Rally scheduled for tomorrow, February 17, 2011 ("Rally"). In short, we believe that Kauai County employees are acting outside the scope of their limited, delegated authority, thus exposing the County to litigation. See Rees v. Carlisle, 113 Hawai`i 446, 153 P.2d 1131 (2007). Consequently, we recommend that you cancel or postpone the Rally to allow for further discussion.

1- Factual Background

As we understand it, the Kauai Police Department, the Prosecuting Attorney and others are sponsoring the Rally to "raise awareness and inform the community about the dangers associated with pending marijuana legislation." Kauai Police Department News Release, February 12, 2011. The News Release quotes Prosecuting Attorney Shaylene Iseri-Carvalho, speaking in opposition to specific pieces of legislation currently pending before the Hawaii State Legislature, as stating that `"[i]f passed, these measures will result in increased violent crime, economic crisis and a rise in marijuana usage among our children.'" Id. Finally, the News Release unequivocally states that "Nine police chiefs and prosecuting attorneys from each of the four counties stand united against this dangerous legislation." Id. (emphasis added). Thus, it cannot be disputed that the overriding purpose of the Rally is to persuade constituents to lobby legislators to vote against the pending bills, HB 1169 and SB 58.

The main case that the ACLU cites in its “Legal Background” is Rees v. Carlisle, saying that:

In 2002, the ACLU of Hawaii Foundation ("ACLU of Hawaii") filed suit on behalf of journalist Robert Rees against County Prosecutor Peter Carlisle. The gravamen of the case concerned Carlisle's improper use of public funds to actively advocate in favor of and campaign for the passage of a state constitutional amendment, Senate Bill No. 996 of 2002 ("amendment" or "Question 3"). It was undisputed that Carlisle used public resources for this purpose. The ACLU of Hawaii argued, inter alia, that: (a) neither the City Charter nor Hawaii Revised Statutes ("HRS") § 2840.6 authorized Carlisle's expenditure of public funds to engage in partisan political campaigning; and (b) any law that purported to grant such authority would run afoul of a myriad of constitutional rights, including free association, free speech and the fundamental right to vote.

In 2007, the Hawaii Supreme Court held that "neither the Revised Charter of Honolulu nor HRS § 28-10.6 authorize the prosecuting attorney to advocate for a proposed constitutional election[.]" Rees v. Carlisle, 113 Hawai`i 446, 456, 153 P.2d 1131, 1141 (2007). Based on this holding, the Court declined to reach the constitutional issues. A copy of this decision is attached for your ready reference.

The case seems to go way beyond the incident at hand, going to the very heart of a government employee using office time and/or resources to lobby for or against any legislation- a common practice of police and prosecutors statewide.

In a section called “Neither the Police Department Nor the Prosecutor Is Empowered to Use Public Funds to Advocate for a Particular Legislative Result” the letter says that:

The powers of the Police Department and the Prosecutor are set forth by the County of Kauai Charter, Article XI and IXA, respectively. Notably absent from these articles is any language that authorizes either the Police Department or the Prosecutor to spend public resources to educate the public about issues relating to crime research, prevention and education. Cf. H.R.S. §28-10.6 (authorizing the state Attorney General to spend public resources in this regard); R.C.H. 8-104(e-i) (passed post-Rees to authorize the Honolulu Prosecutor to do the same).

First, the plain language of the County of Kauai Charter limits the authority of the Prosecutor to prosecuting crimes. County of Kauai Charter, Article IXA, Sec. 9A.03. It is well-settled that the Prosecutor's powers and functions are limited to those expressly accorded to his office by the statute creating it. 63A Arri.Jur.2d, Prosecuting Attorneys § 20 (1984). 1 The County of Kauai Charter similarly limits the authority of the Police. County of Kauai Charter, Article XI, Section 11.05. 2 There is no statutory or other Given the similarity in language in Kauai's County Charter and the pre-2007 Honolulu County Charter, court decisions affecting the Honolulu Prosecutor are analogous to the situation now presented by the Kauai County Prosecutor. Honolulu's Department of the Prosecuting Attorney was established in Article VIII of the Revised Charter of Honolulu ("R.C.H.") of 1973 (1983). "Unless otherwise specifically provided by statute, his powers and functions are limited by § 8-105 [now § 8-104] of the Charter to the prosecution of criminal offenses against the laws of the State and the ordinances and rules and regulations of the city." Marsland v. Pang, 5 Haw. App. 463, 472, 701 P.2d 175, 184 (1985) (noting that the county prosecutor only "has been delegated the primary authority and responsibility for initiating and conducting criminal prosecutions within his county jurisdiction").

Furthermore, this limitation on the Prosecutor's powers also eviscerates any argument that engaging in the Rally is germane to the Prosecutor's function. Thus, as fully set forth infra wider Abood v. Detroit Board of Education, 431 U.S. 209 (1977), and its progeny, the conduct of the Police Department and Prosecutor's Office constitutes forced speech in violation of the First Amendment of the U.S. Constitution and Article I, §4, of the Hawaii Constitution.

2 Notably, the Charter empowers the Police to engage in "traffic safety education." "It is a general principle of statutory construction that when 'Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Barnhart v. Sigtnon Coal Co., Inc., 534 U.S. 438, 452, 122 S.Ct. 941, 951, 151 L.Ed.2d 908, 922 (2002) (citing Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17, 24 (1983)). Where the County wanted to provide the authority that grants the Police Department of the Prosecutor the power to expend public resources to educate the public on criminal justice issues.

Consequently, Rees V. Carlisle, 113 Hawaii 446, 153 P.2d 1131 (2007) is directly on point: neither Kauai's Prosecutor nor Police Department may engage in the type of activity proposed by tomorrow's Rally.

The ACLU letter goes onto say that not only are the actions of the county illegal but it exposes the county to liability. In a section marked “Using Public Resources to Fund the Rally and Associated Events Could Expose the County to Liability Under the First Amendment” they say that:

Such openly biased speech by public officials raises serious First Amendment questions. In the words of Justice Black: Probably no one would suggest that Congress could, without violating [the First] Amendment, pass a law taxing workers, or any persons for that matter (even lawyers), to create a fund to be used in helping certain political parties or groups favored by the Government to elect their candidates or promote their controversial causes.

Compelling a man by law to pay his money to elect candidates or advocate laws or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against. The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the Government commands.

After a long passage describing various federal and Supreme Court of the US cases that support that, the ACLU letter concludes by saying:

Given the serious legal concerns about tomorrow's Rally, we would recommend that such Rally be canceled or postponed to allow for further discussion. A moderate delay will not hamper the legislative process on the contested bills given that HB 1169 appears to be dead and SB 58 has not yet been scheduled for hearing before the Senate Judiciary Committee.

Thank you in advance for your time and attention to this matter. If you have any questions or comments in the interim, please feel free to contact me at 383-8287 or Iperrin(at)acluhawaii)dot)org or Daniel Gluck, Senior Staff Attorney, at 522-5908 or dgluck(at)acluhawaii(dot)org.

Sincerely,
Lois K. Perrin
Legal Director

The fact that Castillo has apparently supported the ACLU’s position now makes it a controlling opinion that the county must follow in the future. We hope that county employees will remember this when they use their position and time and resources to testify and seek to influence legislation in the future.