PAY THE LADY

PAY THE LADY: Kaua`i County Council meetings are generally political exercises with long-winded, often well-deserved finger pointing at a stumble-bum mayor and his ever expanding cadre of appointed dimwitted cronies being the rule rather than the exception.

So it was no surprise that the subject of paying them all resulted in a few of the wilder politically-tinged sessions, with each councilmember unable to agree with any of the others on what the biggest issue was but all agreeing there's something rotten in the state of Lihu`e.

We've yet to view yesterday's finale to the latest chapter in the continuing saga regarding the most recent Salary Commission resolution where it was allowed to become law, if (always a big if) the local newspaper article is to be believed.

But anyone who has paid attention over the years knows that the debacle of political gamesmanship in every nook and cranny of Kaua`i government is the result of an ironic and iconic self-lit exploding cigar.

The subject of any legislative body's salaries is always a touchy subject. Kaua`i was no different and decades back the Salary Commission (SC) was created to take some of the pressure off the council so they could get a raise without really proposing one.

The only problem was that even with a recommendation from the SC, the council still had to ultimately vote to raise their own salaries. They tried some tinkering over the years, once to change the county charter to make any raise take effect only after the next election. But that didn't do any good because everyone knew that the incumbents were reelected over and over.

So throughout the 90's and into the 2000's, the council's, the mayor's and all other appointed officials' salaries remained the same because the council couldn’t stand the political heat associated with raising them. The council's salary for what was turning into a full time job as the island grew, was stuck at $28,000 and $32,000 for the chair. Some of their clerks were getting almost twice that.

It got to the point where civil service workers in many departments were getting paid a lot more than the department heads. In one case the salary for the County Engineer- the head of the Public Works Department- was so low he quit to take a civil service job in the behemoth department, leaving the job open for many years because no one who was qualified would take it.

Finally a solution was proposed. In an "experiment to take the politics out of the process," as it was called, the SC resolution wasn't advisory any more but would automatically take effect unless five or more members of the council voted stop it.

But really it was just an illusory change and although the smoke and mirror machines were fully engaged, people saw- or at least the council assumed the people saw, which is the same thing- that the council was still, in essence, in charge of either accepting or rejecting their own raises.

Though the first few raises went through with minimal grumbling because voters accepted the "salary inversion" excuse cited above, no one foresaw that the exponentially ballooning pay raises contained in the multiple-year resolutions would become outrageous when things like "furlough Fridays" and 5% pay cuts came about after the bottom fell out of the free enterprise system.

All of a sudden the whole process had to be reversed and the council was faced with a "yes means no and no means yes" situation where allowing the current resolution to pass would actually be giving out pay cuts and voting to reject the reso would allow raises to go into effect.

That's where the incompetence of the local newspaper comes in because none of the council members trusted reporter Leo Azambuja to correctly report the story so each councilmember, with visions of "Council Votes For Pay Raise Resolution" headlines, came up with his or her own excuse for why they were voting against the reso.

Some cited the March 15 date in the charter by which the resolution "shall" be forwarded to the council. One cited the apparent ethical violation allowing Boards and Commissions Administrator John Isobe to write the actual resolution lowering everyone's salary but giving himself a raise. Another claimed that the mayor directed the whole thing, charging impropriety through interference with the supposedly independent SC. Still another complained about the fact that the budget didn’t reflect the resolution even though the amounts were actually less than the salaries appropriated in the budget.

It got so wild that, in an unprecedented move, County Attorney Al Castillo took the hot seat and gave off-the-cuff verbal legal advice, trying to placate councilmembers' various phoney finaglings, with often conflicting and confusing opinions... made all the more perplexing when Castillo's deputy Mona Clarke sat in and gave even more advice, much of which was at odds with Castillo's counsel.

It's no wonder that the the council couldn’t even actively decide to "receive" the reso, essentially killing it and had to kill it via a reported tie vote which had the same effect of receiving it but without the full set of fingerprints.

Meanwhile any changes to Article XXIX of the charter regarding the Salary Commission isn't even on the radar screen of the Charter Commission which is contemplating asking voters once again to remove the prohibition on board and commission members from asking for money, favors and otherwise lobbying the council, planning commission and other boards and commissions... even though the same amendment was soundly rejected in 2010.

If campaign money is the mother's milk of politics then the actual salaries of elected officials is the meat and potatoes. But either way there's bound to a nice buffet spread to enable the expected politically-motivated food fight when next year's salary resolution hits the council floor.

BEWARE THE IDES OF MARCH

BEWARE THE IDES OF MARCH: Reading the local newspaper for information is normally like drinking diet soda looking for nutrition. And when it comes to government beat reporter Leo Azambuja's dispatches, it's often as if someone slipped a Mickey in your drink.

But if a particularly complicated discussion takes place in the council chambers, readers will probably wind up with a can of dehydrated water.

Such was our little buddy's report on the Salary Commission resolution being considered by the council last Wednesday, mostly because the very basic prerequisite facts for understanding what happened were either missing, mentioned without any context or explanation, or placed at the very end of the article.

One such missing fact is that the way salaries for appointed and elected officials are designated in the Kaua`i County Charter is that our Salary Commission set "caps" for the amount and then the appointing authority in each case designates the actual salaries. And, most importantly, the council must actively reject the resolution from the commission with at least five votes or it is automatically deemed to have been passed.

Those few words might have made the article intelligible but the "automatic passage" fact was missing in action and the words "appointing authority" not only appear 1022 words into a 1330 word piece but just kind of float there like a bug in our aforementioned soft drink.

But really that's beside the point because the real news from the meeting- what should have been the "lede"- could be summed up in the headline: Rapozo Levels Ethics Charges Against Isobe In Pay Raise Flap.

In all fairness this is what did appear 217 words before the end of the article:

Rapozo said it was ironic that the person who crafted the resolution, Boards and Commissions Administrator John Isobe, was the only county official who would get a pay raise if the new resolution is approved. Isobe’s position is not listed in the new resolution.

Ironic? How about corrupt.

Rapozo actually detailed how, according to salary commission documents and minutes, the salary commission, under Chair Charley King of King Auto Center, decided to allow Isobe to draft the actual resolution to be sent to the council, supposedly freezing many executive salaries at a lower level than had been contained in the previous resolution.

But when the final reso showed up before the council the only one whose salary cap was actually raised rather than lowered was Isobe's.

But it got worse. In trying to deny that any funny business took place, Council Chair Jay Furfaro took the tactic of defending, not Isobe but King, saying his integrity was essentially beyond reproach.

But if Charley is cast in the role of Caesar's wife then Leo is a competent journalist.

King has been a chief Republican leader and fundraiser for decades on Kaua`i and was widely thought to be the most influential person in the administrations of former Mayors Maryanne Kusaka and Bryan Baptiste.

As to King's "ethics" one example that sticks in out mind is "Big Red Chrysler-gate."

Kusaka was known to like "nice things." When she first got elected she was discovered to be selling jewelry to people seeking favors from her- right out of her office- in order to support her own expensive habit.

But one thing she didn't have was a nice big luxury car. So when she showed up driving a big red top-of-the-line Chrysler New Yorker people started to ask questions.

Well it seems that when Kusaka took office she had suckered the council into what was called "program based budgeting." The conflicts with the prior council and then Mayor, now Councilmember, JoAnn Yukimura, were legendary. So, in those post-Rodney King "why can't we all just get along" days, she brought in Steven Covey of the infamous "7 Habits of Highly Manipulative Jerkwads" or something like that and held love fests with the legislators.

In a gesture of this spirit of Kumbaya, the council eliminated "line-item" budgeting- where every expenditure is specifically appropriated by the council- to this "program based" system where the council essentially threw a big old heap of money at each department with little or no accountability for what it was spent on.

And one of the biggest mounds of moolah was that for the mayor's office which included not only her staff's expenses and salaries but those of most of the "agencies" that aren't created by the county charter.

So, with what amounted to her own multi-million-dollar slush fund, rather than buy her own car and charge the county for official uses, Kusaka didn't just get the county to buy the car but actually leased the Chrysler at multiples of what the purchase would have cost taxpayers.

And who did she lease it from? Why of course her chief adviser and campaign contributor and bundler Charley King who also made out pretty well on the exorbitant terms of the lease.

And of course it was almost impossible to actually figure all this out because there was no real record of it- or at last none that were reported to the council which is the body responsible for overseeing the purse strings of the county. It took some loose lips in the administration and a bit of investigative work by Honolulu Star-Bulletin Bureau Chief Anthony Sommer- the author of KPD Blue (see left rail)- to break the story to the "shocked-shocked" councilmembers who promptly went back to line-item budgeting... at their earliest possible convenience.

We have to admit that the funniest part of all of this was Furfaro's Shakespearean "but Charley is an honorable man" routine. But the tragedy just may be that the Friends, Romans and Countrymen on the Ethics Board- overseen by (drum roll, please) John Isobe- will not probably be lending their ears to anything.

BUT WHAT'LL WE DO FOR EGGS?

BUT WHAT'LL WE DO FOR EGGS?: There's jokes and then there's jokes. Our sometimes feeble, often offensive, attempts at humor are at least fairly innocuous in the grand scheme of things.

But, as happens all too often in Hawai`i, when those who police the ethics of politicians become the foxes guarding the hen house, the political joke is on us.

Recently though, a whirling dervish of accountability has taken up residence as the Executive Director (ED) of the State Ethics Commission (EC), and those who thought state ethics laws had been suspended under former director Dan Mollway are having conniption fits.

Some of our readers may remember Les Kondo as the head of the Office of Information Practices (OIP) who fought the good fight to bad results in the infamous ES-177 case that eventually surgically removed the incisors that the legislature had apparently given the OIP.

And now, as the new ED of the EC, Kondo has upset the cushy apple cart of one of the most repulsive of unethical practices- one that calls lobbyists "stakeholders" and appoints them to these "task forces" to essentially write legislation regarding the same subject upon which they lobby.

We've written extensively about our Kaua`i County Charter provision 20.02(D) which prevents anyone from "(a)ppear(ing) in behalf of private interests before any county board, commission or agency" if they sit on a board or commission- or presumably a "task force"- regardless of the subject matter.

The state law does the same if there is a nexus between the job of the lobbyist and the board or commission's kuleana.

But although the law is supposed to cover all bodies appointed by the governor or legislature, whereas Mollway looked the other way, Kondo has now included these "task forces" in the same category as any state appointed body- which of course they are.

And guess what? Shockingly, politicians don't like it.

According to Derrick Depledge's Political Radar blog

State Senate President Shan Tsutsui and House Speaker Calvin Say have asked state Attorney General David Louie whether the state Ethics Commission is correct in defining members of task forces as state employees subject to the ethics code.

In their letter the two wrote:

If individuals from the private sector who participate in these panels are now to be considered “employees” of the State for the purposes of the Ethics Code, we are concerned with the chilling effect on both the Legislature’s ability to gather information and on the constitutional right of these individuals (and their actual employers) to petition government.

This stupid argument has been going on for a week or so in the press and the blogs but no one can come up with the obvious and simple solution to the quandary.

On Kaua`i we had some board and commission members- as a matter of fact some members of the ethics board itself- lobbying the county council for money for their non profits while others were representing developers seeking zoning and zoning permits before the council and planning commission respectively.

And then they'd turn around and rule on the ethics of activities of those granting them their requests.

And just like with the state, they argued that their "rights" to petition the government were being violated. But that ignores the elephant in the room- that sitting on a board commission or task force is not a "right" but a privilege and you can simply step down from your position and let someone who does not lobby other government bodies take your place.

But nooooo. For some reason these pustules on the butt of democracy have been permitted to shed their crocodile tears without anyone telling them to get their asses out of government if they are coming to the government, hat in hand... especially if the subject matter of their appointment is the same as their lobbying, as is true in the case of the state ethics law.

Do we really need to give the guy who is being paid to lobby an extra boost in his efforts by allowing him to skew the actual report upon which the legislature will depend to write legislation?

What- massive campaign contributions aren't enough? Is your bundling finger broken? Did the manapua store close and now legislative staffers are stuck with crummy donuts?

It's simply amazing in this state how politicians, who've been getting away with murder for years, react when a new sheriff that is apparently not on the take actually tries to enforce the law. Why you should have seen them (if you missed it) when Kondo told them they couldn't keep accepting expensive tickets to events if the event didn't have a nexus to their legislative jobs. You'd have thought he was ripping the lollypops out of their lyin' pie holes.

It's bad enough when, as is the case, corporate America has placed its greedy boot heel on the throat of the democratic process. We don't have to have to actually open wide- or bend over- and allow them to place the whole boot where they can do their damage from the inside out.

NOTHING TO SEE HERE

NOTHING TO SEE HERE: One thing that rampant county cronyism creates is a bunch of well-connected board and commission members whose qualifications are often as dubious as their conscientiousness.

When Charter Commission Chair Sherman Shiraishi showed up at last Wednesday's Council Committee of the Whole meeting to request the council's input on a "proposal to establish a permanent Charter Review Commission," it was the council that seemed befuddled as to why the commission is sitting for 10 years in the first place.

Seems that when the 2007-8 commission was empaneled for the then-usual "once every 10 years" assemblage there were so many proposals for changes to the charter that they had to limit the number that made it to the ballot to 15 from as many as 50 at one point, just so as not to overwhelm voters.

And that was without even touching the whole "county manager" mess or the apparent need for a slew of housekeeping changes.

As the session began a letter from Mayor Bernard Carvalho to the commission and council was produced raising the question as to why, if the commission was good to go until 2018, it was necessary to make it permanent now.

Well that was enough for Shiraishi to take his cue and all of a sudden, after months of charter commission meetings and weeks of council deferrals until Shiraishi could come to address the council, he instantly decided he agreed with the mayor after all.

Nope- no cronyism here... just good old independent thought.

But since Shiraishi and Board and Commissions Director John Isobe were there anyway the councilmembers decided to air some gripes about the charter and past amendments- whether they had any idea what they were talking about or not.

First up was Councilperson JoAnn Yukimura who has a special black place in her heart for the ease with which citizen's can petition for a charter amendment- a 5% of registered voters threshold. That came about after she initiated and led the court fight- where the county sued the county- against the "Proposition 13" style property tax amendment that passed overwhelmingly in the early 2000's, only to be overturned by the Hawai`i Supreme Court in a confused ruling that no one really understood.

She and others maintain that a county's charter is "like the federal or state constitutions" in that it should be hard to change since it is a guiding document. But the difference is that while the federal and state constitutions grant rights to citizens and delineate powers, local charters merely take the powers left over and delineate the structure of the legislative and executive branches and list the various departments, board and commissions and the like, describing their functions- nuts and bolts measures that occasionally need revision due to changes in the needs of the community.

But that's a philosophical matter that can be argued either way. What wasn't was Yukimura's bemoaning of the fact that the people of Kaua`i "still need education" after they rejected changes to the infamous anti-cronyism section 20.02(D) of the charter which prohibits members of boards and commissions from "(a)ppear(ing) in behalf of private interests before any county board, commission or agency."

It's a simple measure that stops perceptions of conflicts of interest before they start so that the "one hand washes the other" style of governance can be nipped in the bud.

It seems the charter commission has recently lost three of its members because they routinely represented clients before the council and planning commission and even though there are only a handful of such good old boys and girls on the island they have populated boards and commissions in droves. The county tried to ignore the provision for years even appointing conflicted individuals to the Ethics Board to rule for allowing the practice.

But when they finally tried to change the charter the voters rejected it and the Ethics Board was left with no other choice to finally issue an opinion enforcing the charter.

Of course there were nods of agreement around the council table as well as from Shiraishi and Isobe that indeed it is the voters who "don't get it."

Despite the need for things like reform of the county attorney section (we're the only island without a "corporation counsel") and a the transformation of the Department of Personnel Services into a modern Department Human Resources (another example of changing times leading to the need for changes to the charter) as well as a slew of needed housekeeping changes (like removing all the references to "he") councilmembers insist on the commission asking voters the same questions over and over (like four year council terms) even when they've been answered again and again... resoundingly.

Once again the trophy for the most dunderheaded performance of the day had to go to- who else- Chair Jay Furfaro.

Recently the council discovered that the Cost Control Commission (CCC) was taking the powers the charter gave them seriously, such as requiring the administration to submit bills to the council to carry out their recommendations within 30 days of their request. But despite the charter requirement, the administration had simply ignored three such requests in 2009.

That apparently got Furfaro looking through CCC documents where he noticed that they were discussing possible changes to the real property tax laws- something that Furfaro rarely fails to tell the public, whether it's on the agenda or not, that he is working on reforming.

Like a lion building up from a growl to a roar, Furfaro essentially asked what the heck the CCC was doing butting into the council's kuleana finally reading Section 3.10 from the charter:

Annual Budget and Capital Program. The council shall enact an annual budget ordinance, which shall include both the operational and capital expenditures for the fiscal year and the method of financing same. The council shall provide sufficient revenues to assure a balanced budget (emphasis his).

The council is in charge of property taxes, he bellowed, not the cost control commission.

Apparently Furfaro failed to read the charter's Section 28, regarding the CCC. Isobe, left with no choice but to defend the CCC- and so himself as the person in charge- then read 28.04 aloud:

The commission shall review personnel costs, real property taxes (emphasis added), travel budgets, contract procedures; review with the aim of eliminating programs and services available or more efficiently supplied by other governments or organizations; eliminate or consolidate overlapping or duplicate programs and services; scrutinize for reduction any county operation.

Furfaro hemmed and hawed and with a Ralph Kramden "hahmana-hamamana" quickly changed the subject but we were laughing too hard to hear what he said next.

What wasn't surprising at all was how quickly Shiraishi changed from the need for a perpetual charter commission to saying that there was barely any work to do as soon as the mayor told him what to think- and how fast the council agreed.

Because after all what's the good of being able to nominate and confirm a select set of yes men and women to board and commissions if they start to tell you no?

WALAGAIN

WALAGAIN: One of the problems with the "new" charter provision- passed in 2008- requiring recusals by councilmembers from matters that cause conflicts-of-interest, is that unless the councilmember acknowledges that conflict there is apparently nothing anyone can do about it.

Of course the council could pass an ordinance detailing a process by which someone- anyone- might challenge a councilmember if he or she fails to acknowledge it but for now the only process that might be used would be to go the the notoriously "Wenokea" Board of Ethics (BOE) and ask.

Of course by the time they act the council very well may have dealt with the matter.

As we reported last Monday Dickie Chang's involvement with the Kaua`i Marathon prompted his recusal from involvement with controversial Bill # 2404 which would appropriate another $150,000 for the Kauai Marathon.

But while Chang apparently sent the BOE a copy of his communication to the council stating that he would be recusing himself, it was not accompanied with a request for a ruling as to whether he indeed has a conflict.

That, according to the Code of Ethics, would set a precedent and cause Chang to look carefully at his other business relationships to all the other entities that do business with the county, likely to come before the council.

So when the marathon money bill came up for a public hearing last Wednesday although Chang indeed left the room for it, he also left a slew of questions as to whether the bill legitimately came to have a public hearing held in the first place.

When the bill came up for "first reading"- the introductory vote that starts any bill on it's way to becoming an ordinance- Chang was predictably one of the "aye" votes.

What was unusual in that vote was that, whereas first readings are generally perfunctory actions done in order to get matters before the council, Councilperson Mel Rapozo actually voted "no" saying the county is too broke to be continuing to support the event, now planning it's third race.

Other councilmembers said that, although they were inclined not to support the bill they would vote "yes" only because all bills deserve "yes" votes on first reading so that people can provide testimony and the council can give the measure "due consideration"... a "tradition" that is often ignored when it's convenient for individual councilmembers.

But Chang's vote remains an illegality- a vote for the charter-required "first reading" of a bill from which he has recused himself.

Was the vote valid? Does the council have to re-introduce the bill and have it go through its first reading without Chang?

Apparently so but no one on the council seemed concerned in the least.

And that's not all.

It was noted by a member of the public at the bill's public hearing that, in addition to the $150,000, the Kaua`i Marathon has a line item in the county's FY2011-12 budget- currently under consideration- for another $120,000.

But when the public hearing for the budget came up Wednesday there was Chang at the table despite the fact that the additional marathon money was, in part, at issue.

We tell the story just to show how positively clueless Chang is when it comes to conflicts between his close relationships with the tourism industry, his promotional "Wala`au" TV program, and his job as councilmember.

Last week we asked

does Chang truly get it?

Apparently not judging by his fast and free treatment of the line between his day job and his job as one who appropriates all monies the county spends.

Take for example one of the presumably paid advertisements that regularly appears on Wala`au from Garden Isle Disposal (GID) advertising the "Kaua`i Recycles" program, which provides those bins across the island where people can recycle their glass, plastic and newspapers.

GID doesn't just collect recyclables because out of concern for the planet or out of the goodness of their hearts- the county appropriates money to pay them for their services every year via the annual budget.

And part of the contract requires that GID provide publicity and education to let people know how, where and what to recycle.

As a graphic in the commercial notes:

The Kaua`i Recycles program is a project of the County of Kaua`i... operated by Garden Isle Disposal.

That means that, as you've probably figured out, Chang first voted to appropriate the money for the commercials and then pocketed a good chunk of it as sole proprietor of Wala`au.

Sweet deal, Dickie.

First of all, of course Chang didn't bat an eye regarding GID when the budget came up, presumably with this year's appropriation to GID's for the "Kaua`i Recycles" program.

But we were positively floored when, at the end of the meeting there was Chang listening to County Attorney Al Castillo come up to the hot seat and read off the following request for an executive session:

ES-486 Pursuant to Haw. Rev. Stat. sections 92-4 and 92-5(a)(4), and Kaua'i County Charter section 3.07(E), the purpose of this executive session is to provide Council with a briefing and request for authority to settle claim filed against the County by Garden Isle Disposal on February 23, 2011, and related matters.

So let's get this straight Dickie. Your sponsor- whose payments provide your livelihood in an amount set by you- is suing the county and you see nothing wrong with voting on whether to settle a suit that they've filed with the county.

We're not quite sure what the claim is about but it may well be connected to GID's biggest- perhaps only- involvement with the county, the contract for the Kaua`i Recycles program.

Chang's action in acknowledging the marathon conflict has apparently opened a door that he wishes would have remained closed. The question though is where are the other councilmembers?

You'd think that one of them would have said something- either to Chang privately or, if that failed, by bringing it up when the agenda item is called. That of course is in lieu of introducing some effectuating legislation giving teeth to the charter provision passed over two years ago.

Yeah right- that's gonna happen. In a town where businesses - both for and not for profit- are as corruptly intertwined and insularly governed as this one, any urge to rock the gravy boat is stifled by the incredible mess it would make on the council's dinner table.

WRONG PLACE, RIGHT TIME

WRONG PLACE, RIGHT TIME: Today’s 3 p.m. State Senate hearing of a bill (SB 1460) that would make “possession of one ounce or less of marijuana... a civil violation for that is subject to a fine of not more than $100” got some press today.

That joint hearing of the Senate Judiciary and Labor and Health Committees took up a measure that would not only decriminalize possession of less than an ounce but also eliminate a lot of other inappropriate and draconian penalties like requiring substance abuse treatment and eliminating any “intent to distribute” charges for simple possession of pakalolo.

(Update: SB1460 passed JDL/HTH 5-0 and now goes to Ways and Means [WAM])

Also on the agenda at the same meeting was a hearing on the much publicized bill (SB1458) which among other things would establish licensure for “medical marijuana compassion center license for the sale of medical marijuana to qualified patients.”

You can submit late testimony and track the two measures but for many the real action this year is in a bill being heard next week to transfer jurisdiction of medical marijuana from the Department of Public Safety to the Department of Health (DOH).

Bill SB175 would do what should have been done when the legislature first legalized medical cannabis- something done in all other states that allow the practice- instead of setting up the seeming contradictory placement of a legal use under a department that deals with illegal matters.

That has resulted in rules that provide lists of patients to be circulated and kept by law enforcement and allows for preemptive, warrantless raids on patients homes without probable cause and even an incident of the release of a list to the press on the Big Island.

The bill would require all new administrative rules under DOH and eliminate the absurd and potentially abusive oversight of the program by those who actually oppose medical marijuana.

This could be the year after an aborted attempt last session under former Governor Linda Lingle.

The bill is on the agenda for a joint hearing of the Senate’s Committee On Public Safety, Government Operations, And Military Affairs and the Committee On Health, next Tuesday, February 8 at 2:45 p.m. You can track the bill here.

Those wishing to testify can email it to PGMTestimony@Capitol.hawaii.gov, making sure to include the measure, date and time of the hearing.

Easier still is the automatic handy-dandy, fill-in-the-blank email page the Senate provides at http://www.capitol.hawaii.gov/emailtestimony/.
And some good news. Though it still has to get through the Senate Judiciary Committee, Senate Bill 174 has already quietly passed out of the Committee on Health. It would “(r)emoves marijuana and tetrahydrocannabinols from the schedule I controlled substances list and places them in the schedule III controlled substances list”.

-------

Update: Despite testimony in overwhelming support of the bill (which we detailed on Monday) to select county ethics board members from a list provided by an independent body from Common Cause Hawaii, The League Of Women Voters Of Hawai`i, Americans for Democratic Action/Hawai`i, Rolf Bieber, Larry Geller, Richard Spacer and PNN- and no testimony in outright opposition- HB468 was deferred after last Tuesday’s House Judiciary Committee.

However, the Senate Public Safety, Government Operations, and Military Affairs (PGM) Committee has scheduled a public hearing on the companion bill SB214 a week from tomorrow- Saturday 2/12- at 9:00AM. The senate is probably where the action will be on this one since it was introduced by six senators whereas the house version was introduced by only one representative.

If you sent testimony to the house please resend it to the Senate PMG committee at PGMTestimony@Capitol.hawaii.gov. If you didn’t, now is your chance. As always include the measure, date and time of the hearing. Or use the email page the Senate provides at http://www.capitol.hawaii.gov/emailtestimony/.

SOMEONE UP THERE IS LISTENING

SOMEONE UP THERE IS LISTENING: The mockery of ethics that is the Kaua`i Board of Ethics (BOE- just click the link for our coverage of their many foibles) has been a source of laughs-o-plenty for those like us who have a perverse sense of humor.

But that could end- or at least be curtained- if a bill in the state legislature, set for a hearing tomorrow (Tuesday, 2/1/11) at 2 p.m., passes this year.

County ethics board members are selected, not for their sense of ethical stridency but, often for being so personally conflicted that their decisions have to apply to themselves, necessitating twisted logic in clearing county officials and employees even when a child could see the ethical violations.

And of course they are appointed by the mayor and confirmed by the council- the very people upon whom they could potentially sit in judgment.

That would change if House Bill HB468 becomes law.

In proposing the law the bill explains that”

Article XIV of the Constitution of the State of Hawaii provides in pertinent part: "Ethics commissioners shall be selected in a manner which assures their independence and impartiality." Each member of the state ethics commission is appointed by the governor from a list of two persons nominated by the judicial council. The Hawaii supreme court appoints members of the judicial council, which does not include legislators. In contrast, members of the Honolulu ethics commission are appointed by the mayor and confirmed by the Honolulu city council, both of which are subject to oversight by the county ethics commission.

The legislature further finds that, in order to effectuate article XIV of the Hawaii State Constitution, the process for selecting members of county ethics commissions should not involve persons who are subject to regulation by ethics commissions.

The purpose of this Act is to provide standards for the selection of county ethics commissioners to ensure their impartiality and independence.

The bill “provides standards for the selection of county ethics commission members to ensure their impartiality and independence” by creating an independent body to select BOE nominees.

It proposes amending Chapter 46 of Hawaii Revised Statutes to say

(a) Each county shall cause to be adopted a charter amendment for the creation of an independent body that shall select members of the county ethics commission. Members of the independent body shall not be subject to confirmation by the county legislative body and shall not be subject to the jurisdiction of the ethics commission of their county. To ensure minimal involvement in the process by persons over which the commission has oversight, members of each county ethics commission shall be appointed:

(1) From a list of nominees selected by the independent body; or

(2) In accordance with comparable alternative selection methods as provided by county ordinance.

(b) Each county shall have a selection process in place that meets the criteria for any appointment made after the effective date of this part.

It also includes criteria for the independent body to use in their selections:

Character of county ethics commissioners. A county ethics commissioner shall be selected on the basis of integrity, impartiality, and independence, as reflected by, among other things, the background and experiences of the person and the absence of potential conflicts of interest; provided that county ordinance may provide for additional criteria.

While it won’t change who ultimately selects the board members- it’s kind of hard or even impossible to have appointment processes that fully omit elected officials- it will make the list of prospective nominees subject to public scrutiny and independent selection.

We are kind of concerned about the line that provides for a “comparable alternative selection methods as provided by county ordinance” and would like to see it, if not deleted, at least clarified so as to make it clear what “comparable” means.

Please take the time to send testimony even if it’s just one line saying “I support this bill.” Though you may not think so, they really do listen sometimes. And they certainly won’t if no one sends in any testimony.

Time is of the essence. Testimony should be emailed to JUDtestimony@capitol.hawaii.gov

Use the subject line: Testimony on HB 468, 2/1/11, 2 p.m., JUD Committee hearing

As with all House testimony make sure you include:
The testifier's name with position/title and organization;
The committee the comments are directed to;
The date and time of the hearing;
The measure number.

Few have forgotten the BOE and the KC Lum fiasco where a complaint by the chair of the council was used to railroad a police commissioner resulting in Lum’s departure.

And many remember what happened to Rolf Bieber who was refused re-appointment after trying to bring some ethical standards to the BOE.

Although this bill won’t solve all the problems with the BOE it would strengthen the independence of the board members and provide for public input on the selection as well as set standards for the independent body to use in their picks.

The companion Senate Bill SB214, has not yet scheduled for a hearing.

Also on the agenda for tomorrow’s meeting are two other bills of note that we whole-heartedly support.

HB 638 (Status) Relating To Elections:
Provides for instant runoff voting for all elections in which no primary election is held; authorizes the chief election officer or the county clerk to use the instant runoff voting method in special elections that would normally require a separate runoff election if no candidate received a majority of votes.

And one more, near and dear to our heart.

HB 640 (Status) Relating To Public Agency Meetings
Requires any action taken in an executive meeting be reported when the board reconvenes at the open meeting.

Testimony on these two can go to the same address, substituting the bill number in the subject line.

(PNN) COSTA FORCED OUT AS PLANNING DIRECTOR; EXPECTED TO RESIGN TUESDAY FOLLOWING ETHICS CHARGES.

COSTA FORCED OUT AS PLANNING DIRECTOR; EXPECTED TO RESIGN TUESDAY FOLLOWING ETHICS CHARGES

(PNN) -- Long time Kaua`i County Planning Director Ian Costa is expected to resign from his post at next Tuesday’s planning commission meeting after apparently being forced out following an executive session evaluation by the commission at it’s October 26 meeting.

This comes on the heels of an Board of Ethics (BOE) October 15 finding that, according to the minutes, various planning department officials’ “actions were in violation and not permitted under the (county’s) Code (of Ethics)” after they were found to have been performing outside work on projects that were then coming before the department for approval.

Although Costa was also discovered to have been moonlighting on projects under his jurisdiction he was not one of those found to have been in violation however he was thought to be the subject of an executive session at that meeting “to consider the evaluation dismissal or discipline of an employee or officer of the county relating to a complaint filed against the employee or officer”.

Following the BOE’s actions, at it’s October 26 meeting the planning commission held an executive session “to discuss matters pertaining to the Planning Director and, if necessary, to consult with the County’s legal counsel... pertain(ing) to the evaluation of the Planning Director”.

According to next Tuesday’s planning commission agenda they will first consider a “Letter (11/16/10) from Planning Director Ian K. Costa to Chairman Raco and Members of the Planning Commission offering his resignation as Director of Planning for the Commission’s acceptance”.

In addition they will consider a “Letter from Mayor Bernard P. Carvalho, Jr., ex-officio Planning Commission (11/17/10) member, to Chairman Raco and Members recommending that the Commission consider the appointment of Michael A. Dahilig as Director of Planning to serve in the interim”.

The planning commission is responsible for hiring and firing of the planning director according to the Kauai County Charter, which recently disappeared from the county’s web site.

Dahilig is currently a deputy county attorney who has a degree in urban planning although he apparently lacks the administrative experience required for the position under county charter provisions.

Dahilig has faced ethical questions of his own with a public outcry over his and other deputy county attorneys’ “beer summit” with Councilperson Dickie Chang last summer in which they visited Chang’s home one evening, “coldpack” in hand, to successfully lobby for his vote for a bill to allow transient vacation rentals on ag land.

Costa, a licensed architect, has been the planning director since Mayor Maryanne Kusaka’s administration when he came to the post after serving as the acting county engineer.

Though the planning officals’ action were found to be in violation of the charter’s code of ethics no charges will be brought because, according to the BOE minutes, they were relying on a 1991 BOE opinion which, the county charter says, excuses them.

LOOK OUT KID, THEY KEEP IT ALL HID

LOOK OUT KID, THEY KEEP IT ALL HID: Trying to decipher the few Kaua`i county documents that are available at the web site is kind of like doing a Sudoku puzzle. They somehow add up to something but it takes a lot of work to figure out exactly what the sum is.

But since we committed yesterday to filling in the blanks through the use of the clues the county left, we’ve gotten a hold a text copy of what appears to be the thus-far “secret” proposed county charter amendments (see pp 12-18) we’ll all be voting on on November 2.

Apparently, although there’s no indication that they were ever approved by the Charter Review Commissions, a September 3 letter from County Clerk Peter Nakamura to state Chief Elections Officer Scott Nago transmitted seven questions, in time for them to be included on the actual ballot.

While they appear to be “official” we’ll have to wait and see when and if they were approved, not that the county won’t go ahead with them illegally anyway if they weren’t.

We’ll go over them briefly here with deeper analysis to come.

The first is the same old question that’s been asked and answered- in the negative- innumerable times but for some reason it’s on the ballot again. The ballot question reads

"Shall the term of office for councilmembers be extended from two to four years with a limit of two consecutive four year terms?"

When will these people accept that we like being able to recall our council every two years. They’re unaccountable enough already without only having to worry about the what the electorate thinks every four years.

We want to see an amendment saying that you can’t propose the same amendment more than once every 10 years.

The second is a response to the call for a county manager and eliminates the position of administrative assistant and creates a position of “Managing Director”.

The question on the ballot will be:

"Shall the Mayor's Administrative Assistant, whose title shall be changed to Managing Director, be required to have appropriate job qualifications and perform certain duties?"

Here’s the exact language to be added to the charter, describing those “job qualifications” and “duties”

The mayor shall appoint and may remove a managing director. The managing director shall be a citizen of the United States not less than thirty (30) years of age and a resident elector of the county at least three years immediately prior to his appointment. The managing director shall have at least five years experience in an administrative or managerial position with at least a bachelor's degree from an accredited institution in public administration, business or a related field.

A. Powers, Duties and Functions. Except as otherwise provided and under the supervision of the Mayor, the managing director shall:

(1) Serve as the mayor's principal administrative aide.
(2) Oversee the administrative functioning of all administrative departments.
(3) Prescribe standards of administrative practice to be followed and evaluate the management and performance of all administrative departments under the director's oversight.
(4) Attend meetings of the council and its committees upon request and provide information and reports as they may require.
(5) Perform all other duties as required by the charter or assigned by the mayor.

B. The salary for the managing director shall be set pursuant to Article
XXIX of this Charter.

Better than nothing.

The third is a new one on us and we’ll have to take a good look at it to figure it out. The question on the ballot asks:

"Shall the Charter provisions relating to centralized purchasing and disposition of surplus property be changed to conform with State law?"

The wording contains many additions and deletions and can be viewed on p 15 of the pdf linked above.

Number four is pretty self explanatory and the ballot question will read:

"Shall the dollar limit without competitive bidding for contracts with County officers, employees or firms in which an officer or employee has a substantial interest, be increased from $500 to $1,000?"

On first blush unless someone can make a pretty good case for it anything that makes corruption easier- as this would by allowing people to get paid twice as much by the county without triggering a competitive bid- $1000 rather than the current $500. If anything what's been called “the $500 loophole”- with the law having been avoided through serial $500 contracts- should be being plugged.

Number five is pretty self explanatory and reads:

"Shall the County extend from six months to one year the timeframe prohibiting the County from entering into a contract with a former County employee or a firm that is represented by a former County employee, for those contracts where the former County employee participated in the subject matter while employed with the County?"

This sounds like an improvement although we’d like to see two years or more to stop the “revolving door” which is one of the most corrupt of practices in the county and elsewhere.

Sixth is an amendment that apparently plugs a loophole on disclosures and asks

"Shall any employee delegated to act on behalf of the Director or Deputy Director of Finance be required to file a disclosure statement with the County Board of Ethics?"

We’re not sure what the problem is but apparently some in the finance department can act for the director and don’t have to disclose their potential conflicts of interest. It sounds good but we’ll have to take a good look at it in total.

Finally number seven is one we’ve been expecting and we’re ready to fight tooth and nail. It asks:

"Shall the time in which the County Board of Ethics has to render advisory opinions be extended from 30 days to 45 days, which opinions shall be binding on the Board, unless changed or revoked by the Board?"

The incompetence and even malfeasance of the Board of Ethics (BOE) has been well documented in this space (see left bar for our special report or click the link above for all our coverage of the BOE).

Why can't they make their decisions in a timely manner? To increase the time allotment just gives them more time to fumble and futz around trying to misread the plain reading of the charter and law. If they need to call special meetings, so be it. If they don’t have enough people for a quorum, get people who can show up.

An extra 15 days won’t really help these people. Thirty days has been plenty for over 40 years and it’s only the appointees under this and the last administration that seem to have a problem getting these advisory opinions done promptly instead of throwing the person- and sometimes the county- into a crisis because they can't decide what the law says... or more often just don’t want to deliver the bad news or are in the same conflict themselves.

Well that’s the seven- read ‘em and weep. Maybe sometime before the election we’ll get the official word.

NEW BLOOD ON THE TRACKS

NEW BLOOD ON THE TRACKS: Today’s announcement that two- count ‘em two- actual college graduates with journalism degrees have been employed by the local newspaper comes as a shocking yet pleasant surprise... sort of.

While it’s nice to see real journalists hired- Vanessa Van Voorhis covering “business” and Andrea Frainier, “lifestyle”- it doesn’t change the fact that the more newsy government and police reporters are a little- or maybe a lot- less professional, although the government reporter Leo Azambuja has shown some improvement.

Though unfortunately that hasn’t led him to obtain the kind of expertise possessed his predecessor Mike Levine- no shame there- we still sometimes wonder whether he’s even trying.

In all fairness his editor Nathan Eagle could have made sure coverage of the ethically-challenged and oft incompetent Board Of Ethics (BOE) continued when Levine left for big city climes. But apparently neither Eagle nor Azambuja seem interested in covering BOE meetings and more importantly continuing Levine’s quest for BOE documents beyond replacing Levine’s name with Azambuja’s at their document-containing “Sunshine” web page.

But lucky live Kaua`i and not Bell California where the lack of citizen oversight led to obscene salaries for county officials.

Next time you see the trolls start criticizing our “nitpickers” remember that the only news we’ve been getting about the BOE lately has come from Horace Stoessel whose latest report on the BOE’s September 17 meeting- in the form of an as yet unpublished letter to the editor- describes the latest round of fear and loathing.

Here’s Horace’s report- see ya on the other side.

CREDIT WHERE CREDIT IS DUE

In May Deputy County Attorney Mona Clark advised the Board of Ethics that County Code Section 3-1.7(d) absolutely prohibits the kinds of outside employment referenced in requests for advisory opinions involving four members of the Planning Department.

At its meeting on September 17 the Board reviewed a written opinion from Attorney Clark repeating and expanding the advice she gave in May and concluding: “It is the County Attorney’s opinion that an employee cannot create a work product for a private employer which the employee would reasonably expect the employer to submit to the Planning Department without a violation of K.C.C. 3-1.7 occurring.”

The Board acted accordingly and continued to set an example for other agencies by releasing the privileged opinion, which is available from the Office of Boards and Commissions.

I wish I could say that the quality of the May-to-September process leading to the Board’s decision matched the quality of the decision itself and the principled advice it was based on. However, the process left a trail of unanswered questions.

In light of the Charter requirement that a request for advisory opinion must be answered within thirty days, I think the most obvious question is, why did it take so long for the Board to answer this request, especially when its answer was based on the same advice it received on day one?

A short letter like this cannot do justice to the question. Suffice to say that it leads to numerous other questions pertaining to policies (and lack of policies), procedures and communication (or lack of communication) involving the Mayor’s office and Planning, Personnel, and County Attorney offices as well as the Board of Ethics.

I do not question the motives or integrity of county employees. I do say that there is plenty of room for improving governmental processes. One way to improve the processes is for agencies and citizens to extend mutual respect to and expect mutual accountability from each other.

What Horace doesn’t mention here is that rather than doing their job in a timely manner the BOE’s notorious inability to read plain English has caused them to request that the charter commission- another body whose meetings have been unattended by local newspaper reporters since Levine left- submit a charter amendment to voters to give the BOE more time to futz around.

The announcement of this year’s charter amendments will be forthcoming presently but if this change, and one to allow the mayor to consolidate power by taking away the police, fire and planning commissions’ ability to hire and fire their respective department heads, are typical of their work this year an across the board “no” vote from the electorate would seem to be a no-brainer.

Whether the news that will allow people to make informed decisions on proposed charter changes will reach them through their “newspaper of record” is anyone’s guess.

But at least they’ll have timely and accurate information about who opened a new scissors and scotch tape store and whose baby lu`ua served the best malasadas in Waimea.

REPLY HAZY, TRY AGAIN

REPLY HAZY, TRY AGAIN: We haven’t heard much about our crony-addled, bored of ethics, Board of Ethics (BOE) since local newspaper reporter Mike Levine left for a real job in journalism.

Levine’s coverage during the infamous “20.02(D)” debacle (see right rail for our three-part report) would have been nothing extraordinary in the rest of country but around here- especially lately- merely attending meetings and reporting accurately IS extraordinary by any measure.

Nowadays if it weren’t for a few dedicated “nitpicking” community watchdogs that darkest of black holes for ethical violations might go it’s merry ethically-challenged way.

Some might think that the BOE’s inability to read and apply simple ethics laws could indicate a distinct lack of literacy. For those Pollyannas, well, we have a few select scenic lookouts for sale.

The reality is that after Mayor Bernard Carvalho’s unceremonious dumping of BOE member (and current county council candidate) Rolf Bieber it became quite obvious that if you’re going to wear the king’s uniform you’d better carry the king’s sword.

So when members of the planning department decided it was okay for them to seek outside employment preparing permit applications for their fellow department employees’ to approve, instead of trying to stop the plainly unethical practice that the law forbids, Planning Director Ian Costa knew he could turn to the BOE for a some kind of tortured process whereby his underlings could continue their corrupt practices.

Horace Stoessel has been doing the job the local newspaper abandoned after Levine’s departure and today, without further comment, we present his latest report.

-------

YOUR GOVERNMENT AT WORK

I have attended meetings of the Board of Ethics for the better part of three years. I offer these comments for the information of those interested in a matter currently before the Board.

In May Planning Director Ian Costa requested an advisory opinion from the Board of Ethics regarding the outside employment of four departmental employees engaged variously in drafting, site inspection, architectural drawings, design and consultation.

Since then, in an end run around the Charter requirement that a request for advisory opinion must be answered within 30 days, the request has been withdrawn twice by mutual agreement between the Board and the Department, in each case to be resubmitted at a later date. The main reason given for the five-months-and-counting process was to allow Director Costa a chance to consult the County Attorney ’s office.

So far the County Attorney ’s office has participated in the Board’s process as follows:

In May Deputy County Attorney Mona Clark, who is regularly assigned to the Board, advised the Board that County Code Section 3-1.7(d) expresses an absolute prohibition against the activities referenced in the request for advisory opinion and told the Board that aside from enforcing the section its only option is to ask the Council to change the language of 3-1.7. The Board took no action based on her advice, arranging instead with Director Costa to withdraw the request and resubmit it later.

In July Attorney Clark volunteered to provide the Board with a (written) opinion if the Board requested it. The Board did not request it.

In August Director Costa’s request reappeared on the agenda, leading some of us in the public to believe that the way was clear for the Board to act on the request. However, County Attorney Al Castillo appeared long enough to tell the Board that Attorney Clark was in court and to apologize for his being unprepared to address the agenda item.

In July Board member Paul Weil had moved that the Board request the County Attorney to provide the Board with the same information provided to Mr. Costa. The motion was seconded by Warren Perry and unanimously adopted. That request also went unanswered in August.

In August it was agreed that Mr. Costa would resubmit the department’s request at the September 17 meeting.

UNFAIR TO MIDDLING

UNFAIR TO MIDDLING: We’d been wondering when we’d hear from Rolf Bieber himself telling the long sad story of his public service on the Board of Ethics (BOE) and his abominable treatment by just about everyone in the county administration for trying to do the job he was sworn to do- an unforgivable act on Kaua`i.

Bieber’s letter to the editor in today’s local newspaper cites his saga, chapter and verse, naming names of everyone involved from Mayor Bernard Carvalho to County Attorney Al Castillo, the rest of the BOE members, the members of the county council and assorted king’s-uniform-bedecked bureaucrats and sycophants, all carrying the kings sword.

Bieber writes that his taking of the

oath to preserve the Charter soon aligned me against BOE colleagues, mayoral appointees, the Office of Boards and Commissions (OBC), the County Attorney (CA) and apparently Mayor Carvalho himself, who inexplicably refused to reappoint me to the board for a second term.

But, although the unrivaled plodding cronyism of a politically-tone-deaf Carvalho has set the tone for this administration’s corruption as never before, it could not have been accomplished without Office Boards and Commissions (OBC) administrator John Isobe.

Bieber writes that

Mr. Isobe would on several other occasions try inappropriately to influence me — once, when I requested public documents that could expose members of the administration and commissions he asked that I not share the documents with anyone, and later calling me to meet in his office “to see how things were going” but to actually express his desire for the BOE to reach a “super-majority or unanimous-vote only for release of County Attorney opinions to the public.”

The irony in all this is that it was in fact the same good governance activists that Bieber thanks for their support at the end of the letter who were among those who helped create Isobe’s job.

When the “original” Charter Commission- the one appointed in 2004 under the “every 10 years” provision in the charter- proposed a slew of amendments for the ’06 election, one that all agreed would go a long way toward repairing the apparently broken board and commission system on Kaua`i was the creation of the OBC.

The problems the commission found were due to the lack of guidance from the administration as most newly appointed B&C members were just thrown into their position with no idea what they were doing there.

The thought was that an office of B&Cs would provide the necessary support with training and a one-stop central place for commissioners and board members to go with questions as to how to do their jobs correctly and ethically.

But, as we all find out sooner or later, you can write good legislation and charter provisions until you’re blue in the face but if corrupt-minded individuals dedicated to obedience and cronyism are elected and those elected appoint more of the same to administrative posts there’s little that will work the way it’s supposed to.

Rather than facilitating the B&C members in their quest to uphold their oath Isobe has intervened to make sure they serve the political goals of the mayor.

We can tinker with- or even fully rewrite- the Kaua`i County Charter. But if we continue to elect self-aggrandizing boobs like Carvalho with a “give the new guy a chance” and “how bad could he be” attitude we will, as Bieber says, keep finding out what we knew already... “together we can’t”

One more note- Bieber writes:

In April of 2009, Castillo told me he had meetings with Kauai Circuit Court Judge Randal Valenciano on several occasions concerning 20.02 (D)

Huh? But April of 2009 the controversy over 20.02(D) had been well underway for years with dueling “interpretations” making the matter ripe for an eventual 5th Circuit Court lawsuit.

We certainly deserve an explanation from both Castillo and Valenciano on this apparent breach of ethics.

LOOK OUT KID, THEY KEEP IT ALL HID

LOOK OUT KID, THEY KEEP IT ALL HID: Tomorrow is restocking day for Kaua`i Boards and Commissions (B&Cs), as the county council will quasi-secretly- in an open meeting that won’t be televised- prepare to rubber stamp twenty new B&C members, selected not as much for their expertise as for their ability to bend over when the administration demands it.

As we wrote a couple of weeks ago, rather than televise these interviews the council prefers to spend the money to televise themselves patting each other on the back for presenting “certificates” honoring everyone and anyone that accomplished some minor feat, especially those with big families who vote.

We also told readers about a charter provision prohibiting a majority of any particular board from being members of any one political party and how it may take on new meaning with the slew of new members of the Democratic Party- a number that, according to one democrat in the know, went from 38 to around 4,000 on Kaua`i- that joined to vote in the Obama-Clinton “primary” held by the party last year.

In light of Mayor Bernard Carvalho’s big show of joining the Democratic Party last year and his well document penchant for selecting political cronies and sycophants to B&Cs you’d think the council would look carefully for that when confirming his nominations so as not to run afoul of the law.

But while the “application” to be a B&C member asks about party affiliation apparently the council isn’t privy to the official list of members of political parties on Kaua`i even though they are sworn to uphold the county charter.

As a mater of fact, we’ve learned that as of the date of the agenda posting, the council apparently did not have the applications in their possession- and we have no reason to believe that will change by the official confirmation time.

But even worse is that when these people file before the council tomorrow the council will definitely not have the basic information these people will swear to in their public disclosure forms that list potential conflicts of interest as well as financial information

That’s because, by tradition, those disclosure forms aren’t given to the council at all much less before the interviews but rather go to the Board of Ethics (BOE), which until recently had never publicly released any of the public disclosure statements.

The councilmembers will try to tell us they are doing their job thoroughly when they interview the 20 prospective B&C members tomorrow – as they have in the past- saying “trust us” rather than showing us.

But the question remains- how can they possibly say they do a thorough job of vetting these nominees when they don’t have any of the basic documents needed to do so.

Though the interviews are tomorrow, the actual appointments will happen during the regular council meeting Wednesday, when council watchdog Rob Abrew has told us he will challenge the council on both the issue of party membership and the lack of disclosure forms.

We fully expect the council to follow their usual M.O. and fully ignore Abrew with, at best, a “thank you- next?” and at worst a double-talking, intimidation, “how dare you impugn our integrity” attack after Abrew is sent back to his seat.

The council loves to blame the administration when any boondoggle or other B&C related corrupt scheme is revealed- usually by member of the public at televised meetings- and make up some cockamamie story about why they are blameless.

We’d estimate that at least 50% of the corruption on Kaua`i involves the active or passive complicity of people like those who will be interviewed tomorrow and confirmed Wednesday. Remember that and the council’s “ainokea” actions next time they whine that they have no control and “it’s the administration” that is responsible for B&C activity .

For the record, here are the twenty interviewees:

BOARD OF REVIEW:
•Lisa Wilson -Term ending 12/3112012
•Russell Kyono -Term ending 12/3112011 (replacing Richard Koenig Jr.)

BOARD OF WATER SUPPLY:
•Roy Asao Oyama -Term ending 12/3112012

BUILDING BOARD OF APPEALS:
Dennis Aquino, Fire designation -Term ending 12/3112011
Gerald T. Nakasone, At-Large -Term ending 12/3112012
Lawrence J. Dill, Engineer designation -Term ending 12/3112012

BOARD OF ETHICS:
Warren Perry -Term ending 12/3112012
Brad Nagano -Term ending 12/3112012

CIVIL SERVICE COMMISSION:
Roy Morita -Term ending 12/3112012

COST CONTROL COMMISSION:
•Lawrence Chaffin, Jr. -Term ending 12/3112010 (replacing Nadine Nakamura)
•Dirk Apao -Term ending 12/3112012
•Linda Faye Collins -Term ending 12/3112011 (replacing Lorna A. Nishimitsu)

FIRE COMMISSION: ·Jan Rudinoff -Term ending 12/3112012
•Basilio Fuertes, Jr. -Term ending 12/3112012

LIQUOR CONTROL COMMISSION:
•Gerald Shigemi Matsunaga -Term ending 12/3112012

PLANNING COMMISSION:
•Camilla Chieko Matsumoto, At-large designation -Term ending 12/3112012

POLICE COMMISSION:
Rowena Tachibana -Term ending 12/3112012
George Tiffany -Term ending 12/3112012

SALARY COMMISSION:
•Charles King -Term ending 12/3112011 (replacing Tom Cooper)
•Sheri S. Kunioka-Volz -Term ending 12/3112010 (replacing Dawn Murata)
•William Dahle -Term ending 12/3112012

SNIFFIN’ IT OUT

SNIFFIN’ IT OUT: For the neophyte, reading the county charter is a MEGO (my eyes glaze over) experience. But once the committed nitpicker reads it and then attends or even just watches council and/or board and commission meetings for a while it can be cause for a lightbulb-going-on flashback.

So it was that our friend Rob Abrew- who has exposed quite a few irregularities recently- came across a passage that may be applicable, especially of late.

Here’s his testimony to the council regarding the slew of board and commission nominees they have been asked to confirm lately.

Aloha Council Members

Today we are here to review the Mayors selected applicants to become members of various Boards and Commissions of the County of Kauai. Many of the applicants before you, you all ready know as friends, business associates and fine citizens of the County of Kauai. This process is not about judging these fine citizens as members of the community, but do these recommend appointments follow the process as stated in The County of Kauai Charter as approved by the citizens.

Section 23.02 Boards and Commissions

This section of the Charter lets us know how the Mayor appoints the applicants and how the Council approves this appointment.

In my opinion only two items would be need to reviewed by the Council in order for the applicant to be approved.

These two requirements would be :

23.02 D Each commissioner shall be, at the time of his appointment, a duly qualified resident elector of the county.

It is my understanding that the applicant tells us this on the form submitted to you for review

23.02 E No more than a bare majority of the members of any board or commission shall belong to the same political party.

It is also my understanding that the application asks the applicant if they are a member of a political party.

In C2009-393 received in the County Clerk's office on 12/04/2009 from the Mayor via John Isobe,

Executive Assistant, asks for the Council's favorable consideration and conformation of the following appointments to various Boards and Commissions. At the end of the communication Mr. Isobe states that the application forms are attached.

I believe the application would give the Council some of the information needed to assure that the applicant meets the requirements that the Charter asks for but, the communication does not give the Council the information as need in 23.02 E ….the political make up of the various Board or Commission.

If the applicant in their application tells the Council they are a member of a political party, how would the Council know, if they approve the applicant they would not violate section 23.02 E of the charter.?

I have looked for a public document that shows the public the political make up of the various Boards and Commissions. I have not found any document here today that would give the Council and the public the information needed to approve an applicant that tells us they are a member of a political party. Please request all the information needed to move the applicants forward in a timely matter.

Many discussions in the public lately has been about the way our county government functions and how separation of powers are necessary. The issue before you today is a perfect example of how a check and balance form of government works.

Mahalo for you time

Rob Abrew

Abrew was instrumental in instigating the recent compliance with the law by Isobe and the Board of Ethics in releasing the public disclosure statements filed by prospective B&C members. The release of them was actuated through a filing by reporter Mike Levine who has posted them as they are received at the web site of the local newspaper.

As some may know, membership in a political party in Hawai`i is strictly the province of the party itself and very few people actually join parties by “signing a card”. So not only was the information hard or impossible to obtain in the past but the chances that “a bare majority” of a board or commission would come from one party was probably slim or none.

But last year when Barack Obama and Hillary Clinton were battling it out for the Democratic nomination for president the Democratic Party signed up tens of thousands of new members statewide, with membership being a prerequisite for voting in their “primary”- which was actually just a poorly conducted internal party function not affiliated with the state elections.

We don’t have the information yet but it should be interesting to see whether any of the boards and commissions have more than a bare majority that are members of the newly expanded Democratic party.

One of the problems might be verifying with the party whether they are or are not actually members. There’s no law that we know of that they must disclose their list. But since supplying false information on the application is a criminal offense we would expect- even if we wouldn’t assume- the applicants to be truthful.

We’ll keep you up on Abrew’s latest quest. But knowing the administration’s response to these kinds of things- we can only imagine what kind of naked dodge the county attorney might come up with in defining “bare majority”- we expect it to be anything but a walk in the park.

DESIGNS ON THE DOGHOUSE

DESIGNS ON THE DOGHOUSE: The disclosure statements obtained by reporter Michael Levine and posted at the web site of the local newspaper which we discussed yesterday seem to have one thing in common – with a few exceptions each seems to raises questions of potential and real conflict-of-interest to one extent or another.

Though many are familiar by now with the notorious section 20.02(d) of the county charter which states that “(n)o officer or employee of the county shall (a)ppear in behalf of private interests before any county board, commission or agency” fewer are aware of much less controversial section 20.02(c) which states that “(n)o officer or employee of the county shall (a)cquire financial interest in business enterprises which he may be directly involved in official action to be taken by him”.

Which is why today we are looking at the disclosure form for Kaua`i County Director of Planning Ian Costa.

According to Costa’s notarized submission dated July 28, 2009 Costa is the “Owner...Sole Proprietor (and) 100% owner” of “Costa Architectural Design” located at 1104 Kealoha St. in Kapa`a.

This appears to be a direct and irrefutable violation of the county code of ethics, especially since Costa, an architect by education and trade, lists an income of $40,000 from the business.

The question is whether Costa “may be directly involved in official action to be taken by him”, noting that he doesn’t have to have actually been involved, only that it is conceivable that he “may be involved”.

And the “action” need not be taken by him, only that he be “involved” in the action.

Presumably if Costa is doing “architectural design” on Kaua`i, his designs are likely to come up before his planning department or, most likely, the planning commission although the disclousre form does not list clients.

Under charter “section 14.05- Powers, Duties and Functions of the Director
The planning director shall:
A. Prepare a general plan and development plans for the improvement and development of the county.
B. Be charged with the administration of the zoning and subdivision ordinance and the regulations adopted thereunder.
C. Prepare zoning and subdivision ordinances, zoning maps and regulations and any amendments or modifications thereto for the council.
D. Consolidate the lists of proposed capital improvements contemplated by the several departments in the order of their priority for the county.
E. Advise the mayor, council and planning commission on matters concerning the planning programs of the county.”

Any one of those functions could have his in a position of being “directly involved in official action” especially B and D.

The planning director serves as the clerk of the planning commission and attends all meeting usually sitting to the left of the chair and advises the chair and commission including whispered asides to the chair on many occasions.

The “administration of the zoning and subdivision ordinance and the regulations adopted thereunder” also involved wide discretionary powers on the part of the director who oversees all planning employees.

Any citizen who thinks that Costa may be guilty of violating the county’s Code of Ethics can file charges with the Board of Ethics (BOE) by contacting Administrator of the Office of Boards and Commissions, John Isobe or the BOE’s Secretary, Barbara Davis by calling 241-4919 (fax 241-5721) or writing them at 4444 Rice St. suite 150 Lihu`e HI. 96766.

LOVE AT FIRST BITE

LOVE AT FIRST BITE: After perusing today’s news in the local paper this morning and reading Board of Ethics (BOE) watchdog Horace Stoessel’s description of the latest debacle in the continuing quest for enforcement of charter provision 20.02(d)- examined in excruciating detail in this space including our three part report (see left rail)- we just happened to turn back to the “Kaua`i News” page and scroll down past today’s entries to catch an article seen only in the “previous headlines” section entitled “TOMORROW'S NEWS — $3M requested for special counsel since 2007”.

Apparently reporter Michael Levine’s quest for county documents is bearing fruit and County Attorney Al Castillo is giving up long-sought documents after they were requested by Levine in the name of the local newspaper.

The new, apparently permanent page at the paper’s website shows that Levine received the list of 42 county appropriations for outside council dating back to January 2007 along with the case and amounts for each.

But that list is something anyone could have compiled albeit with a painstaking examination of past agendas and “recap memos” although the latter have just recently been made available.

The big accomplishment is in getting the BOE to give up the actual disclosure statements of various recent applicants for various board and commission members.

In the past the BOE has kept these statements under close wraps and actually edited them and blacked out the potential conflicts of interest that violated 20.02(d) as well as other information calling it “an invasion of privacy” even though they are called “public disclosure documents”.

Although it is certainly not a complete list – they appear under two separate links- a quick run-through shows on first blush a pattern of appearance before other boards and commissions on behalf of private interests on the part of many of the applicants heretofore unreported.

Another pattern is illegible handwriting making many of the documents virtually useless.

But one statement stands out for simply it’s lack of any information- and it’s one that is an all-important link to what happens with huge stacks of county, state and federal taxpayer monies.

Though few will recognize the name Randy Finlay- whose address and phone number are not blacked out as the law requires- anyone who has passed by a road repaving or construction project will recognize the name of the company he owns and runs- Unlimited Construction.

His application to continue to be a member of the Cost Control Commission (CCC) is devoid of any information required and instead lists “no change” on all the information points required to be included when one fills out the form.

But what’s interesting in the fact that he is serving on the CCC when his company has been complicit in one of the biggest-yet underreported rip-offs on the island.

To try to be brief, a few years back- make that more than a decade ago- council “nitpicker” Glen Mickens began to notice that, as he took his daily walks pieces of broken off pavement sat by the side of the road which upon measurement were apparently thinner than the standard and required 1 ½ inches thick.

He made it his quest- one that, despite detailed presentation to the council no one so far seems to want to hear- to inform the council about how not only is the county paying for 1 ½ inch paving and not getting it but that, for some reason no one can adequately explain, on Kaua`i the standard of 90 sq. ft. of asphalt per ton is used while the national standard is 120 sq. ft. per ton to get that 1 ½”.

That means that, if anything, we should be getting roads that are 33% thinker than 1 ½” or 2” thick.

The question is, where is the extra asphalt going- a question the Public Works Department has been unable to answer.

And when Mickens presented the facts for the umpteenth time- as he has to each new council and individually to all new councilmembers over the last decade plus- one of the suggestions has been to have the CCC look into it.

Of course the more basic question is whether someone who bids on tens of millions of dollars worth of county contracts should be serving on a county commission where he might be considering cost savings such as investigating county road repaving methodologies and contracts.

Mickens’ full detailed written testimony before the council from this year’s budget hearings in April is presented at the end of this post for all those who want to fully understand this scam that has been going on for years with the apparent complicity of Unlimited Construction as well as Niu construction which Mickens mentions in his testimony

We’ll be getting out the fine tooth comb in coming days for the other disclosures, as well as filing for the statements for the council, mayor, department heads and their deputies and the rest of the sitting board and commission members covered by the pubic disclosure laws.

In the meantime we welcome you to peruse the current ones and let us know anything you might find missing from the forms or less than apparent conflicts raised by the disclosures.

-------

Glenn Mickens’ Testimony April 2009:

Our code for resurfacing roads as outlined in your Standard Details manual shows a thickness of 1 1/2". Two bids that Ryan was nice enough to give me both show the same specifications---1 1/2".If you will check the Asphalt Paving Job Calculator that all paving contractors use or if you will use simple mathematics, you will see that by using 1 TON of asphalt (AC) to pave 108 square feet, you will get a thickness of 1 1/2".

Yet, if you will refer to the memo I have from public works you will see that we use 1 Ton of AC to pave 90 square feet.

Also a check of the 07-08 Island Wide Resurfacing list will verify that we ARE using this 1 ton of AC to pave 90 square feet. A check of the calculator will show that 1 Ton of AC per 90 square feet will give a thickness of about 1 7/8"

To put this into perspective:
If we pave 1 mile of road using the 1 ton per 90 sq ft. we would use 1056 tons of AC. At today's price of about $200 per ton that cost would be 1056 x $200 or $211,200.

By using the 1 ton of AC to pave 108 sq. ft. (to give the 1 1/2" that code specifies) we would need 880 tons to pave 1 mile or, 880 x $200 = $176,000.

Thus we are spending $35,200 MORE for each mile of road that we pave. Since we have 300 miles of county roads on Kauai that means it is costing the tax payers $10,560,000 more by using the county method over the correct method.

You might argue that we are getting 3/8" more AC put on our roads but the contractors are bidding on 1 1/2" so they would lose money if their bid was for 1 1/2" and they put down 1 7/8". Also, I have picked up pieces of AC from our roads (I walk 4 miles a day over them) and they are less than an inch thick. So not only are we not getting the extra 3/8" we are paying for, we are not even getting the 1 1/2" that be bid specifies.

So, the questions are, (1) why are we using the 1 ton of AC to pave 90 sq ft. instead of the correct 1 ton to pave 108 sq ft.? (2) Where is the extra AC going or where is the money going that is costing us more? (3) Shouldn't the weight ticket at the AC plant and the core samples taken from the roads match the amount of money we are being charged for?

Also for clarity, In the 2 bids that Ryan gave me from Niu and Glover. Glovers bid (cost per ton) on 10 roads went from $268 to $762 or an average of $416 per ton all in the Waimea district, close to their plant. This was for phase 2.
Niu appears to have gotten the bid (both they and Glover for 06-07) for phase 1 on the North Shore. Their bid per ton was for an average of $224 so why this huge difference in the bids that they were awarded.

My next question. Why are we not following the Hawaii Asphalt Paving Industry (HAPI) standards for paving our roads? Both Grace Pacific and Glover are members of HAPI and they abide by their recommended paving methods.

When I spoke to a roads engineer from Glover he told me that he has asked and suggested to Public Works that they use HAPI standards but was told that our county doesn't have the funds to do it that way Thus we are being penny smart and dollar stupid as even if our roads would cost more to originally pave they will last 15 to 20 years (WITHOUT POTHOLES) or deterioration instead of being in the shape they are in now.

In other words when the county issues an RFP they do not specify replacing the old cracked base or putting a leveling course down before the final layer---all HAPI specifications. So why don't we ask for more money in the budget and do the job right with whatever funds we have?

And, if I understood what Ryan told me, we used the 07-08 budget for resurfacing for the 08-09 year and thus, instead of paving more roads with the extra money we got in 07-08 (I believe it was over $3 million) we are actually repaving less since we have less money. I asked this question since I have never seen the budget for 08-09. If I am wrong maybe Ryan can correct me.

At about $200 per ton for AC today and a budget of under 2 million dollars a year, we are only capable of paving about 10 miles of roads. That means it would take 30 years to pave all 300 miles of our county roads plus by using these incorrect methods of paving our roads will only remain a mess.

The shoulders of our paved and repaved roads. In the bid contract it states that the level of the shoulders will be put back to the level of the newly resurfaced road BUT that it will be done by Public Works. Many of our repaved roads have never had the shoulders fixed to these standards and it is a hazard. I have addressed this to PW many times but it still has not been taken care of. .

Striping our roads. I have addressed this to Donald many times and he said that unless the road is at least 20 feet wide it is their POLICY not to stripe them. This "POLICY" should be changed as it is dangerous for vehicles driving at night or in rain not to have a reference point or for opposite driving vehicles to stay on their side of the road. Hauiki road is a good example of this as it was just repaved, is 18' wide and has no stripe.

Pot Holes. Code states that pot holes will be cut on a square or rectangular pattern, new 4" of base course put in, and 2" of AC compacted into the hole. All we do now (and have done in my 20 Years on Island) is dump cold mix in the hole (sometimes with water still in it) do not compact it, and it is gone after the next rain. So we waste our time, material, and manpower doing the job wrong----this MUST be changed.

Picking the roads to be resurfaced. There is no methodology as to which roads are to be paved. As long as we only have finite money in the budget for roads repaving and can only do about 10 miles a year, we need to pick the heaviest traveled roads and the ones that are in the worst shape. But this isn't done. As an example Kealia Road was resurfaced in the 05-06 budget year at a cost of $250,800. This road has few homes along it---most of it with none---but it was still repaved. A 2000 acre subdivision is going in at the top of this road but the tax payers shouldn't have to pay the cost of a road that benefits a developer.

DON’T ROLL OVER

DON’T ROLL OVER: It’s nice to see the local newspaper opining in the form of classic editorials again lately.

Sunday’s entry demanding County Attorney Al Castillo enforce the infamous Charter provision 20.02(d) which bans employees and officials from “appear(ing) in behalf of private interests before any county board, commission or agency”, was a commendable no-brainer.

In it they illuminated the dearth of neural interplay that went into Castillo’s bizarre opinion on the subject and the resultant Board of Ethics (BOE) actions clearing undeniably conflicted county officials- including two members of the BOE itself, Mark Hubbard and Judy Lenthall- even though Castillo himself said the law is “crystal clear”.

They wrote:

It’s Castillo’s job to ensure that the law — the County Code, Kaua`i Charter, Hawai`i Constitution and U.S. Constitution — is applied appropriately on our small island, and his continued misrepresentation of the law to the Board of Ethics on the matter of 20.02(d) is nothing short of a dereliction of duty...

In an interview this week with Michael Levine, Castillo... still tried to defend his office’s disregard of the county’s primary legal document...

Reading that made many of us who have been shaking our heads in disbelief, feel a little less alone, thinking it’s nice to know someone else “gets it”.

But then, as if to say “not so fast” the editorial made it apparent that they don’t, saying

Castillo told Levine he weighs adherence to the law against his “desire to allow for public participation” in government, and in an earlier appearance before the Board of Ethics said full application of 20.02(d) could lead to “absurd results.”

We think Castillo’s heart is in the right place. We agree that 20.02(d), if applied overzealously, could lead to absurdity. We agree that public participation in government is a noble aim. We aren’t advocating that Judy Lenthall be chastised for her public service with the Kaua`i Food Bank or that Mark Hubbard be run out of town for repping the Kaua`i Planning and Action Alliance....

It’s up to the Charter Review Commission to help fix the poorly worded section of the charter, and it’s up to them to outline what, if any, exemptions should be extended to those who do volunteer work in the public interest.

As we’ve said that’s a bunch of hogwash. “Chastising” Lenthall and Hubbard for their appearance on behalf of private interests is not the point. It’s their action in refusing to abide by the law and resign their BOE posts that is in need of chastising.

The law is fine just the way it is. As a matter of fact the enforcement of the law, as written, is a key to ending hold the revolving-door, old boys and girls network has on our boards and commissions.

The contention there could be “absurd results” in upholding the 20.02(d) only applies if one absurdly abuses the plain language of the charter.

As we’ve said before when the phrase “appearing on behalf of a private interest” is applied it does not include simply appearing- as one’s self- for a personal matter such as applying for a driver’s license. There is no problem with the law there. It’s only the equivocational use of the word “interest” that is absurd.

But the big problem is in the contention that because people “do good” they should be exempted through a charter amendment.

First of all, who is “doing good” is a matter of opinion.

But even if we all agree, it doesn’t matter whether one is “doing good” or appearing for a non profit. The potential for a quid-pro-quo, “one hand washes the other” result that the law foresees exists nonetheless.

When Ms. Lenthall or Mr. Hubbard appears before the county council on behalf of the food bank or KAPA and asks for money and then turns around and rules on the ethics of a county council member’s actions, his and her positions are compromised and such a person should not be serving on a board or commission, “good work” not withstanding.

That doesn’t mean that we think either of them will necessarily do something wrong. It means that we don’t want to put people in positions where their integrity has to be even questioned by virtue of the potential conflict of interest presented.

This goes for all board and commission members who make discretionary decisions. We can’t ask them to be above reproach if we put them in a position in which they are reproachable.

Like Caesar’s wife they should be beyond reproach.

Finally the contention that somehow those who have these conflicts are the only ones who can serve is perhaps the most absurd thing here. There are tens of thousands of Kaua`i citizens who can serve on boards and commissions without violating 20.02(d). There are tens of thousands have never and will never appear before a board or commission on behalf of a private “special” interest.

We don’t need to keep seeing the same few dozen conflicted faces over and over, rotating from board to board while they come hat in hand before other boards.

It’s not a matter of questioning their integrity. It’s a matter of them putting themselves in a position where their integrity is naturally in question by serving two masters.

The law is a good one. The law is a necessary one. The law is, in fact, exactly what’s needed most on Kaua`i. All we need is enforcement.