SchMUSINGS: It was actually a dark and stormy night. The rain was harder than the two feet in three days last weekend and hail was pelting the window so hard it woke us up. But we don't have dogs to walk, the electricity was off and the last time we saw the dawn- or even got up, got out of bed and went outside in the dark- was probably 30 years ago when seeing the sunrise was a result of an all-nighter. So we grabbed another blanket and some ear plugs, rolled over and went back to sleep.
Our apologies to Joan Conrow but since we're going to flit around and do it between games today it seems an appropriate way to commence.
First comes the news that former local Kaua`i newspaper editor Nathan Eagle, the other half of the dynamic duo, has landed a gig with his former cohort, joining ace reporter Mike Levine at Civil Beat.
No surprise on this end since whenever, against all odds, our local paper ends up mysteriously hiring someone even halfway competent, they eventually leave for a real publication. But congrats to CB and Nathan. We can only hope that maybe with two (count 'em two) ex-Kaua`i residents CB will treat Kaua`i like we exist.
Better news on the medical marijuana front. SB 2262 which "clarifies that the medical use of marijuana is considered to be consistent with the Pain Patients' Bill of Rights" has passed the senate and first reading in the house. Passage of the bill will mean that chronic pain patients will now have the right to receive medical marijuana in addition to all other appropriate medications.
That is coupled with the death of House Bill 1963 which was the horrendous effort courtesy of Assistant Director of the Department of Public Safety Keith Kamita- an effort also backed by Kaua`i Prosecutor Shaylene Iseri Carvalho- that would have actually removed chronic pain as a condition for which medical marijuana could be recommended. HB 1963 miraculously didn't get a hearing scheduled by the house Judiciary Committee.
Of course in the "now you see it now you don't" Hawai`i State Legislature, nothing is ever approved until it actually gets signed into law and nothing is ever-ever-ever really dead.
Then, from the "shocked-shocked" file, according to Civil Beat, Kaua`i State Senator Ron Kouchi has jumped on the ethically-bankrupt, legalized-bribery bandwagon by holding a Honolulu fundraiser during the legislative session. Last Night's soiree was a hundred-bucks-a-head affair held at the Mandalay restaurant.
Some states ban the practice of holding fund-raisers during a legislative session. But of course in catch-me-if-you-can-Hawai`i, legislators routinely cash in by holding these events in the hopes of scooping up some cash from those who have an interest in seeing the recipient's vote go a certain way on certain soon-to-be-considered bills. Since quid pro quo's are hard if not impossible to prove it's a practice that is looked upon with disgust by good governance and campaign reform mavens everywhere.
The fundraiser by-the-by is being organized by former Kaua`i Deputy County Attorney Harrison Kawate who worked under perennially county-government-employed former County Attorney Lani Nakazawa. We could go on with many more revolving door connections but the next game is starting soon.
Last but certainly not least is the latest dust up involving our always bafflingly buffoonish Prosecutor, the aforementioned reefer-madness adherent, Shaylene Iseri Carvalho.
Those who missed the real story behind the vague coverage in the local newspaper of the horse-abuse case will want to check in with the aforementioned Joan Conrow and read her coverage beginning last Friday.
Seems dear Shay actually threatened to use her prosecutorial discretion to drop the infamous animal cruelty case because one of the animal control officers at Kaua`i Human Society (KHS) got into a dust up with one of Shay's cousin over a complaint about the cousin's barking dogs and then his lack of dog licenses. Shay claimed the officer was trespassing and is a habitual liar whose testimony in the horse case would be unreliable, so Iseri wanted KHS to fire her.
It's a lot more juicy than that so read Joan's coverage.
But Iseri is back this week with more questionable behavior in a series of emails received by most of the attorneys on Kaua`i regarding the formation of a "Kaua'i Bar Bench Committee"- a "working group of attorneys [formed to] discuss and present issues to our judges [regarding] matters pertaining to judicial administration" according to one local attorney.
The group is being put together through the efforts of local attorney Rosa Flores who, after apparently putting in hours of volunteer time on behalf of the "Kaua`i Bar," innocently sent the following email confirming the "members" of the group, apparently "BCCing" almost all of the attorneys on Kaua`i
Subject: Re: KBA Bench Bar Committee Members
Hi Everyone,
I am very happy to announce the Bench Bar Committee Members. We are very fortunate to have had such an amazing amount of interest and support in the creation of this Committee.
Civil (Circuit Court): Dan Hempey
Collections (District Court): Tim Tobin
Landlord/Tenant, Self-Help Center, Legal Aid, Indigent Services: Emiko Meyers
Criminal Defense: June Ikemoto
Family Law: Caren Dennemeyer
Public Defenders: revolving
Prosecutors Office: revolving/unknown
County Attorneys: Justin Kollar
KBA President/Chair: Rosa Flores
KBA Vice-President/Vice-Chair: Shauna Cahill
The private attorneys on the Committee all wear many hats with various specialties, so we'll have a great overlap in coverage at all times. Please feel free to direct concerns, inquiries, comments, etc. that you would like to bring to the attention of our judges to the Committee member representing your particular area of interest. Everyone is also welcome to direct any inquiries to myself or Shauna Cahill anytime.
Committee Members, I will be in touch soon with all of you.
Thank you,
Rosa
This seemingly pleasant note, apparently following a lot of hard work on Flores' part, elicited a disturbing response from Iseri addressed Flores and CCed to around 75 local attorneys (with the original email in the thread) as well as the Kaua`i judges.
Subject: Re: KBA Bench Bar Committee Members
Aloha Rosa,
It would have been considerate of you to have contacted our office to inquire who would be the representative for the OPA because I would have told you clearly, that it would be me. Please put my name down as the representative of our office.
Shay
Okey-dokey. Apparently because the email was sent to the entire Kaua`i bar, Flores felt compelled to reply to the content and the tone of Iseri's response. She wrote:
Talk about a slap in the face for the best of intentions. Thank you for everyone else for their support in this endeavor, and to the volunteer representatives who took the initiative to contact me.
But Iseri wasn't done with Flores and, CCing the other, wrote back:
We did contact you. Your response is very unprofessional.
Unprofessional? Flores had had just about enough and felt she had to set the record straight. She wrote back saying:
As you very well know, I responded to you directly last week following your assertion that your agency should be represented, and in my response I agreed that your agency should be represented. No mention was made from you as to who would be the representative, and I do not have the time to hunt down attorneys from every possible section to see who is willing to attend the meetings. Yours was not the only agency which did not have name for their rep, but they were nonetheless indicated as being part of the committee.
If anyone else is offended that I did not put their names, please know that it was not intentional; my psychic mind-reading skills are not developed to the point at which I would like them to be. And I apologize for yet another unprofessional response from me.
Not having appeared rude and offensive enough Iseri first wrote:
It definitely is another unprofessional response.
finally adding
I also do not want to be a party to anymore unprofessional emails
Finally Flores realized who she was dealing with and ended the futile conversation by stating
Duly noted. Thank you and God Bless!
Isn't this an election year? Seems everyone knows that but Shaylene.
Showing posts with label Lani Nakazawa. Show all posts
Showing posts with label Lani Nakazawa. Show all posts
Saturday, March 10, 2012
Monday, November 29, 2010
G-MEN AND THE TWO C-MEN
G-MEN AND THE TWO C-MEN: The sudden resignation of Planning Director Ian Costa was apparently forced due to a current FBI investigation of the Kaua`i Planning Department focusing on Costa and his Deputy Imai Aiu.
According to an extremely reliable source close to the investigation, the bureau has been focusing on the planning department in recent weeks. This was also confirmed by a second source independent of the first one.
Anyone who watched the planning commission meeting last Tuesday couldn’t help but be convinced that Costa didn’t simply resign- the measured hesitating speeches, the down-looking faces, the references to a “sad day”, the reassurances by Mayor Bernard Carvalho that “no matter what” there would be “good days ahead for Costa”, even comments from commission members referring to “the situation we’re in” and “the steps we’ve taken.”
Prior to Costa’s “resignation”, at their 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.”
The investigation may be related to the cases upon which we reported recently that were brought before the Kaua`i Board of Ethics (BOE).
They involved the practice of department employees of taking outside work that came back to the department for approval. And it wasn’t limited to underlings but extended to Costa himself who was reportedly the subject of a complaint that he did architectural work on projects his department later approved.
Not only is this kind of thing a violation of the local Code of Ethics, if the FBI finds that there was say, a link between their work and the approvals or that the amount of work was not really commensurate with the amount they were paid or even that a kickback scheme existed, indictments could be ahead... not just for the actions themselves but under conspiracy and racketeering laws if it were found to be pervasive in the department.
But aside from the inherent nature of Carvalho’s “ode to cronyism” speech to the commission- in which he pledged to give Costa another job because their “relationship goes back to ‘hanabata’ days” and talked of how “it’s all about the relationships,” his attempt to use his “ex-officio” membership on the planning commission to promote and lobby for Deputy County Attorney Michael Dahilig as interim planning director is a huge ethics violation in and of itself.
Ethics and Sunshine watchdog Rob Abrew made it plain in his testimony before the commission.
The Kaua`i County Charter makes the mayor an “ex-officio”, non-voting member of every county board and commission. And as a member of a board or commission- which is the capacity in which Carvalho wrote he was acting in his letter to the commission- one is not permitted to lobby for a vote except during a duly agendaed and called-to-order meeting. To do so beforehand- and to make sure, as Carvalho did, that everyone saw it when it was printed on the front page of the local newspaper - is a blatant violation of HRS 92.
But that isn’t the worst ethics violation inherent in Carvalho’s request.
Most remember the case of former Police Commissioner Michael Ching who was accused of using his position on the commission to lobby for the hiring of K.C. Lum as police chief.
And although the decision was tainted by a series of manipulations by the BOE and county council to get the result they wanted, that kind of action was found to be a violation of the code of ethics which prohibits the use of one’s position to seek a special favor or benefit for another.
Ching was forced to resign and Lum’s contract was nullified.
How that case differs from the case of Planning Commission “member” Carvalho lobbying for the appointment of Dahilig as interim planning director is anything but apparent.
While details of the FBI investigation are not available just yet, it is known that they have been looking into the possibility of corruption in Kaua`i county government since the end of the Baptiste administration, as revealed by then Councilperson now Prosecutor Shaylene Iseri-Carvalho in an open council session.
She and others in county government revealed that they had been grilled- often for hours at a time- by FBI officials who then opened an office on the island for the first time.
There’s one more interesting note on Costa’s appointment by Carvalho to the post of deputy director of parks and recreation.
Back in the late 90’s then Mayor Maryanne Kusaka attempted to appoint the deputy director of the planning department, even though the county charter specifically calls for the appointment of a department directors who are then to hire and fire his or her own staff.
Then County Attorney Hartwell Blake, in a bizarre opinion, told Kusaka that it was all legal for her to hire the deputy.
That outraged another ethics and sunshine activist, Horace Stoessel, who waged a years-long battle to have the opinion reversed. When Baptiste was elected the first action of his new County Attorney, Lani Nakazawa, was to reverse the opinion.
The Nakazawa opinion stands to this day and would ban Carvalho from hiring a deputy director of parks and recreation.
Of course the Director of Parks and Recreation is one of Carvalho’s closest cronies, his former campaign director Lenny Rapozo so the actual appointment of Costa may be moot. But once again using one's position to secure a special favor or benefit for another- something Carvalho didn’t mince words in admitting he was doing in his testimony before the planning commission- is a violation of the county charter, section 20.02(E).
According to an extremely reliable source close to the investigation, the bureau has been focusing on the planning department in recent weeks. This was also confirmed by a second source independent of the first one.
Anyone who watched the planning commission meeting last Tuesday couldn’t help but be convinced that Costa didn’t simply resign- the measured hesitating speeches, the down-looking faces, the references to a “sad day”, the reassurances by Mayor Bernard Carvalho that “no matter what” there would be “good days ahead for Costa”, even comments from commission members referring to “the situation we’re in” and “the steps we’ve taken.”
Prior to Costa’s “resignation”, at their 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.”
The investigation may be related to the cases upon which we reported recently that were brought before the Kaua`i Board of Ethics (BOE).
They involved the practice of department employees of taking outside work that came back to the department for approval. And it wasn’t limited to underlings but extended to Costa himself who was reportedly the subject of a complaint that he did architectural work on projects his department later approved.
Not only is this kind of thing a violation of the local Code of Ethics, if the FBI finds that there was say, a link between their work and the approvals or that the amount of work was not really commensurate with the amount they were paid or even that a kickback scheme existed, indictments could be ahead... not just for the actions themselves but under conspiracy and racketeering laws if it were found to be pervasive in the department.
But aside from the inherent nature of Carvalho’s “ode to cronyism” speech to the commission- in which he pledged to give Costa another job because their “relationship goes back to ‘hanabata’ days” and talked of how “it’s all about the relationships,” his attempt to use his “ex-officio” membership on the planning commission to promote and lobby for Deputy County Attorney Michael Dahilig as interim planning director is a huge ethics violation in and of itself.
Ethics and Sunshine watchdog Rob Abrew made it plain in his testimony before the commission.
The Kaua`i County Charter makes the mayor an “ex-officio”, non-voting member of every county board and commission. And as a member of a board or commission- which is the capacity in which Carvalho wrote he was acting in his letter to the commission- one is not permitted to lobby for a vote except during a duly agendaed and called-to-order meeting. To do so beforehand- and to make sure, as Carvalho did, that everyone saw it when it was printed on the front page of the local newspaper - is a blatant violation of HRS 92.
But that isn’t the worst ethics violation inherent in Carvalho’s request.
Most remember the case of former Police Commissioner Michael Ching who was accused of using his position on the commission to lobby for the hiring of K.C. Lum as police chief.
And although the decision was tainted by a series of manipulations by the BOE and county council to get the result they wanted, that kind of action was found to be a violation of the code of ethics which prohibits the use of one’s position to seek a special favor or benefit for another.
Ching was forced to resign and Lum’s contract was nullified.
How that case differs from the case of Planning Commission “member” Carvalho lobbying for the appointment of Dahilig as interim planning director is anything but apparent.
While details of the FBI investigation are not available just yet, it is known that they have been looking into the possibility of corruption in Kaua`i county government since the end of the Baptiste administration, as revealed by then Councilperson now Prosecutor Shaylene Iseri-Carvalho in an open council session.
She and others in county government revealed that they had been grilled- often for hours at a time- by FBI officials who then opened an office on the island for the first time.
There’s one more interesting note on Costa’s appointment by Carvalho to the post of deputy director of parks and recreation.
Back in the late 90’s then Mayor Maryanne Kusaka attempted to appoint the deputy director of the planning department, even though the county charter specifically calls for the appointment of a department directors who are then to hire and fire his or her own staff.
Then County Attorney Hartwell Blake, in a bizarre opinion, told Kusaka that it was all legal for her to hire the deputy.
That outraged another ethics and sunshine activist, Horace Stoessel, who waged a years-long battle to have the opinion reversed. When Baptiste was elected the first action of his new County Attorney, Lani Nakazawa, was to reverse the opinion.
The Nakazawa opinion stands to this day and would ban Carvalho from hiring a deputy director of parks and recreation.
Of course the Director of Parks and Recreation is one of Carvalho’s closest cronies, his former campaign director Lenny Rapozo so the actual appointment of Costa may be moot. But once again using one's position to secure a special favor or benefit for another- something Carvalho didn’t mince words in admitting he was doing in his testimony before the planning commission- is a violation of the county charter, section 20.02(E).
Monday, October 18, 2010
(PNN) $250,000 SETTLEMENT IN “DOE V COK” EEOC CASE BEGAN WITH ALLEGED ‘02 ASSAULT BY COUNTY CLERK NAKAMURA UPON COUNCIL’S DEPUTY COUNTY ATTORNEY
$250,000 SETTLEMENT IN “DOE V COK” EEOC CASE BEGAN WITH ALLEGED ‘02 ASSAULT BY COUNTY CLERK NAKAMURA UPON COUNCIL’S DEPUTY COUNTY ATTORNEY
“DOE” ILLEGALLY IDED AS HANSON-SUEOKA BY CA CASTILLO, WHO FIRED HER IN ‘08
by Andy Parx
(PNN) -- The $250,000 settlement of a “hostile/violent work environment” Equal Employment Opportunity Commission (EEOC) complaint identified only as “Jane Doe vs. County of Kaua`i” was actually a complaint filed by former Deputy County Attorney Margaret Hanson-Sueoka according to records illegally revealed by County Attorney Al Castillo.
The case apparently goes back to early 2002 during the waning days of Mayor Maryanne Kusaka’s administration but the precipitating incident occurred, not in administration offices where the county attorney’s offices are housed but in the “workplace” of council services.
According to numerous council services employees, past reporters and “regulars” at council meetings at the time, then and present County Clerk Peter Nakamura allegedly “beat up” Hanson-Sueoka, who was at the time his “girlfriend”, causing Hanson to seek a restraining order against Nakamura.
Though some alleged that at the time Nakamura was actually arrested others claim that he was not, with some of those saying that this was due to his position and Hanson-Sueoka’s refusal to press charges due to fear of repercussions on her job situation. Almost all however agreed in maintaining that Hanson had obtained a protective restraining order against Nakamura after telling people she was assaulted by him.
Although the county clerk heads the “council services” office and runs every aspect of council doings including hiring and firing of personnel, technically Hanson-Sueoka’s boss was the county attorney although the attorney assigned to the council often works closely and under the supervision of the county clerk.
But EEOC law also covers those that, while technically are not “superiors, but those that act as such.
An examination of county records and newspaper articles indicates Hanson-Sueoka was soon terminated from her plum assignment as attorney for the council and, when the Bryan Baptiste administration took over in December of 2002, she was retained as a deputy in new CA Lani Nakazawa’s office but assigned to attend various long and often boring and routine board and commission meetings to provide attorney advice.
Hanson-Sueoka remained with the office when Nakazawa left and was replaced by CA Matthew Pyun, and was the main county attorney involved in the infamous removal from office of Police Commission Chair Michael Ching- as well as the cover-up of the hearing judge’s full report exonerating Ching- and the resulting politically motivated firing of Police Chief KC Lum.
But when Bernard Carvalho was elected as mayor in 2008 and appointed Castillo, Hanson was fired for no stated reason, although her EEOC case presumably maintains it was retaliatory for whistle-blowing for past the incidents.
The EEOC complaint was filed after Hanson-Sueoka’s firing by Castillo and confirmation of the $250,000 award- along with the confirmation that it was a hostile/violent workplace compliant- came at least week’s council meeting as part of a presentation by Councilpersons Lani Kawahara and Tim Bynum on the pervasive disregard for sexual harassment and hostile work environment laws by the county.
At the meeting the pair cited the “Jane Doe” case and that of Kristan Hirakawa- a case detailed by PNN over the past year- saying cases against the county are rarely if ever even investigated and that harassers are apparently never disciplined much less fired even after judgments against the county.
The incident in 2002 was the talk of the county building at the time including among councilmembers who were called into executive session to discuss personnel issues within council services although none would confirm publicly that the subject was Nakamura who remains on the job today despite the settlement.
Though the incident occurred during the time when then Councilperson Ron Kouchi was the chair of the council after the 2002 election- where he ran and lost in a bid to be mayor- current Chair Kaipo Asing took over and has remained chair ever since okaying, along with the rest of the council, various settlements for harassment of county employees as well as reappointing Nakamura as county clerk every two years.
Though EEOC cases are, by federal law, to be kept confidential, after firing Hanson-Sueoka Castillo twice revealed that indeed she was the EEOC plaintiff, the first time on the council agenda for April 22, 2009 where he requested executive session (ES) 382 which read in part,
the Office of the County Attorney requests an executive session with the Council to provide the Council a briefing on Margaret H. Sueoka v. County of Kaua`i, EEOC Charge No. 486-2009-00268 and/or related matters and/or subsequent legal proceedings resulting in any way from this matter.
Then, even after a rejected request from PNN to examine the EEOC case files- where we were told by the CA’s office that federal law maintains strict confidentiality for EEOC complaints, superseding the state sunshine law- in a local newspaper article on August 28, 2009 about the $3 million that has been spent on outside counsel to defend lawsuits against the county, reporter Michael Levine wrote:
“Since I’ve been here, the only (lawsuit) that is mine is the Sueoka case, and that’s one where we really didn’t have a choice,” Castillo said, in reference to an equal employment opportunity claim filed against the county by former Deputy County Attorney Margaret Sueoka. He said having a staff attorney handle the case could constitute a conflict of interest.
But recently all references on council agendas to the Hanson-Sueoka case were noted as “Jane Doe vs. County of Kaua`i” although both the recent postings and the one for April of 2009 referred to the same “Charge number”, 486-2009-00268.
Talk regarding the original incident when Nakamura was alleged to have “beat up” Hanson- who has since married and changed her name to Sueoka- was pervasive at the county building in 2002 when PNN was actively covering weekly council meetings and, while more than a dozen people repeated the story about Nakamura and Hanson, PNN has not been able to confirm the incidents through documentation.
It should be noted that this report was compiled after speaking to many knowledgeable sources both in 2002 and this week and after a review of our notes from that era. It is the best available rendering of the truth of what has occurred in this case. All undocumented allegation are just that- undocumented allegations.
“DOE” ILLEGALLY IDED AS HANSON-SUEOKA BY CA CASTILLO, WHO FIRED HER IN ‘08
by Andy Parx
(PNN) -- The $250,000 settlement of a “hostile/violent work environment” Equal Employment Opportunity Commission (EEOC) complaint identified only as “Jane Doe vs. County of Kaua`i” was actually a complaint filed by former Deputy County Attorney Margaret Hanson-Sueoka according to records illegally revealed by County Attorney Al Castillo.
The case apparently goes back to early 2002 during the waning days of Mayor Maryanne Kusaka’s administration but the precipitating incident occurred, not in administration offices where the county attorney’s offices are housed but in the “workplace” of council services.
According to numerous council services employees, past reporters and “regulars” at council meetings at the time, then and present County Clerk Peter Nakamura allegedly “beat up” Hanson-Sueoka, who was at the time his “girlfriend”, causing Hanson to seek a restraining order against Nakamura.
Though some alleged that at the time Nakamura was actually arrested others claim that he was not, with some of those saying that this was due to his position and Hanson-Sueoka’s refusal to press charges due to fear of repercussions on her job situation. Almost all however agreed in maintaining that Hanson had obtained a protective restraining order against Nakamura after telling people she was assaulted by him.
Although the county clerk heads the “council services” office and runs every aspect of council doings including hiring and firing of personnel, technically Hanson-Sueoka’s boss was the county attorney although the attorney assigned to the council often works closely and under the supervision of the county clerk.
But EEOC law also covers those that, while technically are not “superiors, but those that act as such.
An examination of county records and newspaper articles indicates Hanson-Sueoka was soon terminated from her plum assignment as attorney for the council and, when the Bryan Baptiste administration took over in December of 2002, she was retained as a deputy in new CA Lani Nakazawa’s office but assigned to attend various long and often boring and routine board and commission meetings to provide attorney advice.
Hanson-Sueoka remained with the office when Nakazawa left and was replaced by CA Matthew Pyun, and was the main county attorney involved in the infamous removal from office of Police Commission Chair Michael Ching- as well as the cover-up of the hearing judge’s full report exonerating Ching- and the resulting politically motivated firing of Police Chief KC Lum.
But when Bernard Carvalho was elected as mayor in 2008 and appointed Castillo, Hanson was fired for no stated reason, although her EEOC case presumably maintains it was retaliatory for whistle-blowing for past the incidents.
The EEOC complaint was filed after Hanson-Sueoka’s firing by Castillo and confirmation of the $250,000 award- along with the confirmation that it was a hostile/violent workplace compliant- came at least week’s council meeting as part of a presentation by Councilpersons Lani Kawahara and Tim Bynum on the pervasive disregard for sexual harassment and hostile work environment laws by the county.
At the meeting the pair cited the “Jane Doe” case and that of Kristan Hirakawa- a case detailed by PNN over the past year- saying cases against the county are rarely if ever even investigated and that harassers are apparently never disciplined much less fired even after judgments against the county.
The incident in 2002 was the talk of the county building at the time including among councilmembers who were called into executive session to discuss personnel issues within council services although none would confirm publicly that the subject was Nakamura who remains on the job today despite the settlement.
Though the incident occurred during the time when then Councilperson Ron Kouchi was the chair of the council after the 2002 election- where he ran and lost in a bid to be mayor- current Chair Kaipo Asing took over and has remained chair ever since okaying, along with the rest of the council, various settlements for harassment of county employees as well as reappointing Nakamura as county clerk every two years.
Though EEOC cases are, by federal law, to be kept confidential, after firing Hanson-Sueoka Castillo twice revealed that indeed she was the EEOC plaintiff, the first time on the council agenda for April 22, 2009 where he requested executive session (ES) 382 which read in part,
the Office of the County Attorney requests an executive session with the Council to provide the Council a briefing on Margaret H. Sueoka v. County of Kaua`i, EEOC Charge No. 486-2009-00268 and/or related matters and/or subsequent legal proceedings resulting in any way from this matter.
Then, even after a rejected request from PNN to examine the EEOC case files- where we were told by the CA’s office that federal law maintains strict confidentiality for EEOC complaints, superseding the state sunshine law- in a local newspaper article on August 28, 2009 about the $3 million that has been spent on outside counsel to defend lawsuits against the county, reporter Michael Levine wrote:
“Since I’ve been here, the only (lawsuit) that is mine is the Sueoka case, and that’s one where we really didn’t have a choice,” Castillo said, in reference to an equal employment opportunity claim filed against the county by former Deputy County Attorney Margaret Sueoka. He said having a staff attorney handle the case could constitute a conflict of interest.
But recently all references on council agendas to the Hanson-Sueoka case were noted as “Jane Doe vs. County of Kaua`i” although both the recent postings and the one for April of 2009 referred to the same “Charge number”, 486-2009-00268.
Talk regarding the original incident when Nakamura was alleged to have “beat up” Hanson- who has since married and changed her name to Sueoka- was pervasive at the county building in 2002 when PNN was actively covering weekly council meetings and, while more than a dozen people repeated the story about Nakamura and Hanson, PNN has not been able to confirm the incidents through documentation.
It should be noted that this report was compiled after speaking to many knowledgeable sources both in 2002 and this week and after a review of our notes from that era. It is the best available rendering of the truth of what has occurred in this case. All undocumented allegation are just that- undocumented allegations.
Tuesday, January 26, 2010
REAL OPTIONS
REAL OPTIONS: As our readers- and anyone who’s seen a council meeting lately- know, one of the more power-drunk county officials is often demented County Attorney (CA) Al Castillo who last week thought it was within his purview to order someone testifying before the council to remove his hat.
Castillo is the latest in line of CA’s that have acted as political hacks and stooges for the council and mayor, following in the “law is what we say it is” footsteps of Hartwell Blake, Matthew Pyun and Lani Nakazawa who is currently serving Mayor Bernard Carvalho as his own private attorney and political “advisor”.
We’ve called for a charter amendment to elect the county attorney since the current 10-year-long charter review commission (CRC) first met in 2004 but it has escaped their radar screen due partially to the fact that the post-2006 members don’t seem capable of walking and chewing gum at the same time except for regurgitating an old seven-time rejected amendment for four-year council terms and other assorted Titanic seating-chart tinkering.
Today we received an advance copy of a letter from CRC watchdog Horace Stoessel making the case for an elected CA with a particularly pithy set of choices.
Here it is.
OPTIONS
The county charter provides for the county attorney to be appointed by the mayor, with council approval, and to serve as the county’s chief legal adviser and legal representative.
The charter also mandates that the Charter Commission “study and review the operation of the county government under this charter” and propose amendments to the charter that it deems necessary or desirable.
Based on my observations of government operations and study of the charter, if the commission honors its mandate it has two options for proposing amendments regarding the county attorney’s office.
If the commission wants to bring the operations of the office into line with the charter, it should propose that the county attorney, like the prosecuting attorney, be elected for a four-year term, thereby freeing the office from having to serve not one but two political masters who are sometimes at odds with each other.
However, if the commission deems that the proper course is to bring the charter into line with current practice, it should propose adding a phrase to make the charter read, “chief legal adviser, legal representative, and political enforcer.”
For reasons too obvious to require spelling out, I favor a proposal for a four-year elected term.
Horace Stoessel
Castillo is the latest in line of CA’s that have acted as political hacks and stooges for the council and mayor, following in the “law is what we say it is” footsteps of Hartwell Blake, Matthew Pyun and Lani Nakazawa who is currently serving Mayor Bernard Carvalho as his own private attorney and political “advisor”.
We’ve called for a charter amendment to elect the county attorney since the current 10-year-long charter review commission (CRC) first met in 2004 but it has escaped their radar screen due partially to the fact that the post-2006 members don’t seem capable of walking and chewing gum at the same time except for regurgitating an old seven-time rejected amendment for four-year council terms and other assorted Titanic seating-chart tinkering.
Today we received an advance copy of a letter from CRC watchdog Horace Stoessel making the case for an elected CA with a particularly pithy set of choices.
Here it is.
OPTIONS
The county charter provides for the county attorney to be appointed by the mayor, with council approval, and to serve as the county’s chief legal adviser and legal representative.
The charter also mandates that the Charter Commission “study and review the operation of the county government under this charter” and propose amendments to the charter that it deems necessary or desirable.
Based on my observations of government operations and study of the charter, if the commission honors its mandate it has two options for proposing amendments regarding the county attorney’s office.
If the commission wants to bring the operations of the office into line with the charter, it should propose that the county attorney, like the prosecuting attorney, be elected for a four-year term, thereby freeing the office from having to serve not one but two political masters who are sometimes at odds with each other.
However, if the commission deems that the proper course is to bring the charter into line with current practice, it should propose adding a phrase to make the charter read, “chief legal adviser, legal representative, and political enforcer.”
For reasons too obvious to require spelling out, I favor a proposal for a four-year elected term.
Horace Stoessel
Monday, August 10, 2009
WHEN DARRYL COMES MARCHIN’ HOME
WHEN DARRYL COMES MARCHIN’ HOME: Prominent Kaua`i attorney Warren Perry is suing his brother, Kaua`i Police chief Darryl Perry for defamation in a real head-scratchier for those who followed Perry’s path to the top cop job according to an article in today’s Honolulu Advertiser.
Seems that, according to Warren’s lawsuit in 5th Circuit court on Kaua`i
Darryl Perry, Eugene Perry, Antone Perez Perry and others filed a groundless complaint with the Hawai`i Office of Disciplinary Council accusing him of concealing the fact that he used insurance settlement money to make repairs to a Perry family estate home in Lawai, Kaua`i, that was damaged by Hurricane Iwa in 1982 and Hurricane Iniki in 1992.
In his lawsuit against Darryl and the other Perry brothers, Warren Perry claimed the "frivolous ODC" complaint was leaked to the Kaua`i County Council in 2007, ruining his chances of becoming Kaua'i's (sic) county attorney.
Warren Perry said he had to decline a second offer, in 2008, to become county attorney because of the allegations contained in the ODC complaint.
The lawsuit came to light when Allstate Insurance Co. filed a case in U.S. District Court saying “that it should not have to pay the legal costs of Kaua`i Police Chief Darryl D. Perry in defending himself in a defamation lawsuit” according to the article.
During the KPD scandals in the early to mid ‘00’s--
...from Darryl Perry’s bitter defeat by KC Lum for the Chief’s job, opened up specifically for Perry when Mayor Marianne Kusaka forced Chief George Freitas out by buying him off with a huge “settlement” after he beat her trumped up charges,
...through the attempted and failed removal of Police Commissioner Leon “Angus” Gonsalves for making racist remarks about Lum (calling him “Hop Sing”), a feigned attempt forced by public pressure upon the late Mayor Bryan Baptiste and the county council,
...through the Ethics Board “trials”- many say on Perry’s behalf- of Police Commission Chair Michael Ching and Co-Chair Carol Furtado on phony charges of favoritism toward Lum, with allegations filed by Council Chair Kaipo Asing, who, although he filed the complaint on county council letterhead avoided a “trial” of his own on ethics charges by claiming he made a “mistake” in using council stationary and was actually filing as a private citizen,
...to the hiring of Perry after Ching and Furtado were gone from the commission and Lum was forced to resign to keep his pension when County Director of Finance- now Grove Farm VP in charge of lobbying the county- Mike Tressler threatened to illegally withdraw Lum’s contract,
-- Warren Perry was reportedly and observably one of the main operatives pulling the behind-the-scenes strings locally to insure his brother got, not just the job but revenge on those who opposed him.
Much of this is described in detail in the book KPD Blue, serialized here at Parx News Daily (linked on the right rail).
So it seems odd that Warren would be suing Darryl or that Darryl would have filed a disciplinary action against Warren after Warren had apparently been one of his main benefactors in obtaining the job of KPD Chief.
The only clue, if true, might come from an unsubstantial claim made in the comments section of the article.
And it’s a big “if”.
“LocalKineStyle”- who like others making comments on the article supporting Perry “registered” to comment at the Advertiser site only today- said in “fake pidgin”:
One thing else. Da chief neva file the ODC the complaint, one of ths sistas when do that.
How the commenter would know that if he or she isn’t party to the suit is unclear since OCA complaints are confidential unless and until a disciplinary action is taken..
Warren Perry is a long-time active member of the Republican Party, and a long time leader in the Royal Society of Kamehameha who served in the county attorney’s (CA) office more than a decade ago. New CA Al Castillo, a Democrat, was hired this year by the current all-Democratic mayor and council.
Warren’s name did not come up publicly either this year or when former Judge Matthew Pyun replaced Lani Nakazawa as the CA after Baptiste- a Republican- was re-elected and while two Republicans- both since turned Democrats (Jimmy Tokioka and Jay Furfaro)- served on the council.
It is not stated in the article exactly who “leaked” the OCA complaint to the council or if the council actually saw the document or were simply “informed” of it but, although it was never done publicly, it was presumably Darryl and/or one of the others named in Warren’s lawsuit who “told” them.
PNN will try to get hold of the lawsuit filings and, if possible, find out more about the ODC complaint but for now it certainly seems to indicate a falling out between Darryl and his family- to whom, he stated, he wanted to be closer when giving reasons for returning to Kaua`i... and whom he would seemingly be abandoning by moving back to Honolulu to take the Chief position at HPD, a job for which he applied a week or so back.
It remains speculative as to whether the suit has anything directly to do with Darryl Perry’s sudden “jilting of Kaua`i” after publicly indicating upon taking the Kaua`i job that he was home to stay until his retirement.
Seems that, according to Warren’s lawsuit in 5th Circuit court on Kaua`i
Darryl Perry, Eugene Perry, Antone Perez Perry and others filed a groundless complaint with the Hawai`i Office of Disciplinary Council accusing him of concealing the fact that he used insurance settlement money to make repairs to a Perry family estate home in Lawai, Kaua`i, that was damaged by Hurricane Iwa in 1982 and Hurricane Iniki in 1992.
In his lawsuit against Darryl and the other Perry brothers, Warren Perry claimed the "frivolous ODC" complaint was leaked to the Kaua`i County Council in 2007, ruining his chances of becoming Kaua'i's (sic) county attorney.
Warren Perry said he had to decline a second offer, in 2008, to become county attorney because of the allegations contained in the ODC complaint.
The lawsuit came to light when Allstate Insurance Co. filed a case in U.S. District Court saying “that it should not have to pay the legal costs of Kaua`i Police Chief Darryl D. Perry in defending himself in a defamation lawsuit” according to the article.
During the KPD scandals in the early to mid ‘00’s--
...from Darryl Perry’s bitter defeat by KC Lum for the Chief’s job, opened up specifically for Perry when Mayor Marianne Kusaka forced Chief George Freitas out by buying him off with a huge “settlement” after he beat her trumped up charges,
...through the attempted and failed removal of Police Commissioner Leon “Angus” Gonsalves for making racist remarks about Lum (calling him “Hop Sing”), a feigned attempt forced by public pressure upon the late Mayor Bryan Baptiste and the county council,
...through the Ethics Board “trials”- many say on Perry’s behalf- of Police Commission Chair Michael Ching and Co-Chair Carol Furtado on phony charges of favoritism toward Lum, with allegations filed by Council Chair Kaipo Asing, who, although he filed the complaint on county council letterhead avoided a “trial” of his own on ethics charges by claiming he made a “mistake” in using council stationary and was actually filing as a private citizen,
...to the hiring of Perry after Ching and Furtado were gone from the commission and Lum was forced to resign to keep his pension when County Director of Finance- now Grove Farm VP in charge of lobbying the county- Mike Tressler threatened to illegally withdraw Lum’s contract,
-- Warren Perry was reportedly and observably one of the main operatives pulling the behind-the-scenes strings locally to insure his brother got, not just the job but revenge on those who opposed him.
Much of this is described in detail in the book KPD Blue, serialized here at Parx News Daily (linked on the right rail).
So it seems odd that Warren would be suing Darryl or that Darryl would have filed a disciplinary action against Warren after Warren had apparently been one of his main benefactors in obtaining the job of KPD Chief.
The only clue, if true, might come from an unsubstantial claim made in the comments section of the article.
And it’s a big “if”.
“LocalKineStyle”- who like others making comments on the article supporting Perry “registered” to comment at the Advertiser site only today- said in “fake pidgin”:
One thing else. Da chief neva file the ODC the complaint, one of ths sistas when do that.
How the commenter would know that if he or she isn’t party to the suit is unclear since OCA complaints are confidential unless and until a disciplinary action is taken..
Warren Perry is a long-time active member of the Republican Party, and a long time leader in the Royal Society of Kamehameha who served in the county attorney’s (CA) office more than a decade ago. New CA Al Castillo, a Democrat, was hired this year by the current all-Democratic mayor and council.
Warren’s name did not come up publicly either this year or when former Judge Matthew Pyun replaced Lani Nakazawa as the CA after Baptiste- a Republican- was re-elected and while two Republicans- both since turned Democrats (Jimmy Tokioka and Jay Furfaro)- served on the council.
It is not stated in the article exactly who “leaked” the OCA complaint to the council or if the council actually saw the document or were simply “informed” of it but, although it was never done publicly, it was presumably Darryl and/or one of the others named in Warren’s lawsuit who “told” them.
PNN will try to get hold of the lawsuit filings and, if possible, find out more about the ODC complaint but for now it certainly seems to indicate a falling out between Darryl and his family- to whom, he stated, he wanted to be closer when giving reasons for returning to Kaua`i... and whom he would seemingly be abandoning by moving back to Honolulu to take the Chief position at HPD, a job for which he applied a week or so back.
It remains speculative as to whether the suit has anything directly to do with Darryl Perry’s sudden “jilting of Kaua`i” after publicly indicating upon taking the Kaua`i job that he was home to stay until his retirement.
Tuesday, June 23, 2009
IT TAKES TWICE TWO BABY- AND BABY ONLY MAKES THREE
IT TAKES TWICE TWO BABY- AND BABY ONLY MAKES THREE: No one can accuse Councilperson Jay Furfaro of missing enough moist fingers to tell which way the political winds are blowing. So of course the fact that he beat a path to the door of the never-never land of the local newspaper to say “I'm a dissident too” should come as no surprise, especially to our readers who heard about his apparent 180 last week.
But inaccuracies like the mayor having a role in the selection of the county clerk aside (the council alone makes the choice), the article attempts to makes sure everyone in town now adds his name to the list of “good guys”, making for three votes where four is the magic number.
People may remember- and the article fails to note- that actually Furfaro ran for chair this year and garnered the votes of the original council dissidents Tim Bynum and Lani Kawahara, who have had the courage of their convictions as opposed to Furfaro who jumped on the bandwagon after wide-spread outrage in the community and a lack of support for Chair Kaipo Asing surfaced, even among many of Asing’s lock step supporters.
That may answer at least the first of the questions Joan Conrow asked today, wondering why:
Given Kaipo’s history, why did the Council vote to again make Kaipo chair? Why doesn’t the Council act now to remove him from that position? And why didn’t the Council move to change some of its rules when Kaipo was briefly dethroned and warming the seat at the mayor’s office? Surely they would have found an ally in former Councilwoman JoAnn Yukimura.
The first two being a matter of “doing the math”- and the math being a function of the political climbing of freshman Derrek Kawakami, the deer-in-the-headlights wits of the glad-handing Dickie Chang and the founding nature of Darryl Kaneshiro’s membership in the old boys club (he was Mayor Eduardo Malapit’s administrative assistant)- Kaipo will remain in power until either Derrek gets the message from voters or Dickie buys a pair (no, eyes).
But the third question begs a little recent history lesson.
In the article Furfaro touts how he tried to deal with the “secret county attorney opinions” quagmire created by Asing and former County Attorney Lani Nakazawa and continued by her successor Matthew Pyun.
In typical credit grabbing Furfaro style the article neglects to mention that it was Bynum who kept harping on the Star Chamber nature of the “we have an opinion that explains our actions but we can’t share it with you” machinations.
It was actually Bynum who challenged the policy over and over in open council session and was prepared to overturn it immediately.
While it was Furfaro who put it on the agenda while he was temporary chair in Asing’s absence last summer after Asing moved to the mayor’s slot when Bryan Baptiste died, it was also he who said they needed to wait to act until they had a “county-wide policy”- applying to boards and commissions too- for releasing the opinion, which of course the county attorney had to come up with- and still hasn’t to this day.
That was after he had adamantly agreed with Asing that there first must be a council policy enacted to release them, even though they had been routinely released for years before Asing’s reign as chair.
But that could have been done quickly as Bynum said he had prepared just such a policy, hence the requirement for a county-wide policy to further delay the seemingly not so inevitable.
That leads to the related statement in last sentence of Joan’s ponderings- “Surely they would have found an ally in former Councilwoman JoAnn Yukimura.”
Well Joan, surely you jest.
If there was one person who not just allowed but promulgated the secrecy of the Asing regime it was our dear JoAnn.
She used her status and abilities as an attorney to talk out of both sides of her mouth on this, claiming to support open governance but doing everything she could to perpetuate both the “secret county attorney opinions” and use of the executive session to hide embarrassing political decisions regarding public policy under the guise of “discussions with their attorney” matters of “potential, future litigation” arising from discussions of pending legislation- a warping of the sunshine law that was used just last week to discuss either implementing, or more likely fighting, the new citizen’s general plan enforcement charter amendment.
This all came to a head last summer during the bill to allow existing illegal transient vacation rentals in non visitor destination areas after threats to sue the county from Board of Realtors’ attorney Jonathan Chun “forced” her, as planning committee chair, to pass out a bill grandfathering anyone who had been violating state law for years, based on a convoluted county attorney opinion that had been released before the change was made to keep them secret.
(Actually the release of that opinion at the time was instrumental in the thinking of Yukimura that these opinions should not be released because the release of that opinion was cited by Chun as giving people reason to believe that their illegal activities were indeed legal.)
The Star Chamber-ish nature of the problem was that no one could question the legal basis for the grandfathering because it was all based on an unreleased newer county attorney’s opinion that was also another excuse to talk about public policy behind closed doors.
Although the article contains a lot of convoluted thinking and feigned ignorance by Furfaro- which we may go into at a later date- one particularly typifies Furfaro’s seeming need to be associated with the reformers while still helping construct roadblocks.
Trying to archive the past two years’ meeting minutes, as Bynum and Kawahara requested through a still unanswered UIPA request, would be tough to do logistically until then, Furfaro said. He noted additional concerns over what minutes should even be posted online, particularly executive session minutes.
First of all no one is asking to post executive session (ES) minutes although there is a move to get the council to release ES minutes that are required by law to be made public when the purpose of the ES would no longer be defeated by releasing them. The clerk’s office must segregate them now so the disingenuity of that is apparent.
The fact is that Bynum and Kawahara have already posted the minutes going back to February and are planning to complete the project whether their UIPA request is granted or not... and the ones that were posted were done in a short session of scanning and posting by Bynum.
The purpose of the UIPA request to avoid the scanning since the minutes exist in electronic form meaning that all it would take to post them is a few key board strokes, no scanning needed.
It’s typical of Furfaro’s style, probably learned at the feet of Yukimura, where lip service to open governance is negated by actions to set up roadblocks to accountability and transparency.
Can’t anyone here play this game?
As they (ok, we) say, the Minotaur can’t guard the labyrinth all alone and with dissidents like Furfaro, who needs sycophants?.
But inaccuracies like the mayor having a role in the selection of the county clerk aside (the council alone makes the choice), the article attempts to makes sure everyone in town now adds his name to the list of “good guys”, making for three votes where four is the magic number.
People may remember- and the article fails to note- that actually Furfaro ran for chair this year and garnered the votes of the original council dissidents Tim Bynum and Lani Kawahara, who have had the courage of their convictions as opposed to Furfaro who jumped on the bandwagon after wide-spread outrage in the community and a lack of support for Chair Kaipo Asing surfaced, even among many of Asing’s lock step supporters.
That may answer at least the first of the questions Joan Conrow asked today, wondering why:
Given Kaipo’s history, why did the Council vote to again make Kaipo chair? Why doesn’t the Council act now to remove him from that position? And why didn’t the Council move to change some of its rules when Kaipo was briefly dethroned and warming the seat at the mayor’s office? Surely they would have found an ally in former Councilwoman JoAnn Yukimura.
The first two being a matter of “doing the math”- and the math being a function of the political climbing of freshman Derrek Kawakami, the deer-in-the-headlights wits of the glad-handing Dickie Chang and the founding nature of Darryl Kaneshiro’s membership in the old boys club (he was Mayor Eduardo Malapit’s administrative assistant)- Kaipo will remain in power until either Derrek gets the message from voters or Dickie buys a pair (no, eyes).
But the third question begs a little recent history lesson.
In the article Furfaro touts how he tried to deal with the “secret county attorney opinions” quagmire created by Asing and former County Attorney Lani Nakazawa and continued by her successor Matthew Pyun.
In typical credit grabbing Furfaro style the article neglects to mention that it was Bynum who kept harping on the Star Chamber nature of the “we have an opinion that explains our actions but we can’t share it with you” machinations.
It was actually Bynum who challenged the policy over and over in open council session and was prepared to overturn it immediately.
While it was Furfaro who put it on the agenda while he was temporary chair in Asing’s absence last summer after Asing moved to the mayor’s slot when Bryan Baptiste died, it was also he who said they needed to wait to act until they had a “county-wide policy”- applying to boards and commissions too- for releasing the opinion, which of course the county attorney had to come up with- and still hasn’t to this day.
That was after he had adamantly agreed with Asing that there first must be a council policy enacted to release them, even though they had been routinely released for years before Asing’s reign as chair.
But that could have been done quickly as Bynum said he had prepared just such a policy, hence the requirement for a county-wide policy to further delay the seemingly not so inevitable.
That leads to the related statement in last sentence of Joan’s ponderings- “Surely they would have found an ally in former Councilwoman JoAnn Yukimura.”
Well Joan, surely you jest.
If there was one person who not just allowed but promulgated the secrecy of the Asing regime it was our dear JoAnn.
She used her status and abilities as an attorney to talk out of both sides of her mouth on this, claiming to support open governance but doing everything she could to perpetuate both the “secret county attorney opinions” and use of the executive session to hide embarrassing political decisions regarding public policy under the guise of “discussions with their attorney” matters of “potential, future litigation” arising from discussions of pending legislation- a warping of the sunshine law that was used just last week to discuss either implementing, or more likely fighting, the new citizen’s general plan enforcement charter amendment.
This all came to a head last summer during the bill to allow existing illegal transient vacation rentals in non visitor destination areas after threats to sue the county from Board of Realtors’ attorney Jonathan Chun “forced” her, as planning committee chair, to pass out a bill grandfathering anyone who had been violating state law for years, based on a convoluted county attorney opinion that had been released before the change was made to keep them secret.
(Actually the release of that opinion at the time was instrumental in the thinking of Yukimura that these opinions should not be released because the release of that opinion was cited by Chun as giving people reason to believe that their illegal activities were indeed legal.)
The Star Chamber-ish nature of the problem was that no one could question the legal basis for the grandfathering because it was all based on an unreleased newer county attorney’s opinion that was also another excuse to talk about public policy behind closed doors.
Although the article contains a lot of convoluted thinking and feigned ignorance by Furfaro- which we may go into at a later date- one particularly typifies Furfaro’s seeming need to be associated with the reformers while still helping construct roadblocks.
Trying to archive the past two years’ meeting minutes, as Bynum and Kawahara requested through a still unanswered UIPA request, would be tough to do logistically until then, Furfaro said. He noted additional concerns over what minutes should even be posted online, particularly executive session minutes.
First of all no one is asking to post executive session (ES) minutes although there is a move to get the council to release ES minutes that are required by law to be made public when the purpose of the ES would no longer be defeated by releasing them. The clerk’s office must segregate them now so the disingenuity of that is apparent.
The fact is that Bynum and Kawahara have already posted the minutes going back to February and are planning to complete the project whether their UIPA request is granted or not... and the ones that were posted were done in a short session of scanning and posting by Bynum.
The purpose of the UIPA request to avoid the scanning since the minutes exist in electronic form meaning that all it would take to post them is a few key board strokes, no scanning needed.
It’s typical of Furfaro’s style, probably learned at the feet of Yukimura, where lip service to open governance is negated by actions to set up roadblocks to accountability and transparency.
Can’t anyone here play this game?
As they (ok, we) say, the Minotaur can’t guard the labyrinth all alone and with dissidents like Furfaro, who needs sycophants?.
Thursday, June 18, 2009
SAME OLD DOG, SAME OLD TRICK:
SAME OLD DOG, SAME OLD TRICK: Many in the community are finally opening their eyes to the abuses of open government principles involved in a quest by the two dissident councilperson’s of late.
But if they are shocked at how both the public and even some of those they elected are given the mushroom treatment, while we’ve got their attention all we can do is quote Al Jolson- “you ain’t seen nothing yet”.
The matters that Tim Bynum and Lani Kawahara forced onto a future council agenda on Tuesday are but minor “first steps” toward cleaning up at least seven years of a concerted effort by Council Chair Kaipo Asing to evade, flout and pervert the Sunshine Law in order to avoid public scrutiny in matters of public affairs.
Bynum has complained bitterly in the past about one of the main vehicles for hiding what the council is doing- the “secret” official county attorney (CA) pubic policy opinions. That issue as received notice not just here but in the local newspaper and those that follow council doings are all too familiar with the practice.
It reeks of Star Chamber methodology whereby the council tells the public the council is compelled to do something baffling because they have a county attorney’s opinion... an opinion that they “can’t” reveal.
But although related, far worse is the practice of meeting in executive session (ES) to discuss prospective legislation and even bills that are on the table.
Just this past week the council met in secret by saying
(T)he purpose of this executive session is to consult with the Council’s attorney regarding the charter amendments adopted in the 2008 General Election and other related matters.
Pretty outrageous, eh? And this isn’t the first time.
These ES’s, as revealed for the first time this past Tuesday, are ostensibly to discuss the implementation of the “General Plan” charter amendment passed this past November- a matter of public policy if there ever was one.
You would think the drafters of the amendment who worked so hard to pass it would be up in arms. But you’d be wrong because not one has objected at any of the ES’s.
You would also think that this practice would be forbidden. In fact the very first provision of the Sunshine Law, §92-1 Declaration Of Policy And Intent, reads, in part
Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible. To implement this policy the legislature declares that:
(1) It is the intent of this part to protect the people's right to know;
(2) The provisions requiring open meetings shall be liberally construed; and
(3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.
There are of course legitimate reasons for holding closed meeting- lawsuits, personnel matters and the like. They’re addressed in 8 exceptions in §92-5(a)
But one of those exceptions, #4, contains a provision that has been abused so as to obliterate any pretense of following these principles, It reads:
§92-5 A board may hold a meeting closed to the public pursuant to section 92-4 for one or more of the following purposes:...
(4) To consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities.
Now obviously this is supposed to be read along with the principles and the rest of the law. If it weren’t then as long as “the board’s attorney” is in the room and speaks and they discuss “the board's powers, duties, privileges, immunities, and liabilities”- which covers just about everything the council does, including pubic policy- all meetings could be conducted behind closed doors in their entirety.
Despite the absurd result of interpreting the law this way, that is just what the county started to do gradually when Mayor Bryan Baptiste appointed County Attorney Lani Nakazawa who developed both the “secret opinion” and the principle that allowed 92-5(a)4 to be interpreted to cover anything she said it did- especially any possible “future litigation” as well as holding that the council’s “powers, duties and privileges” include discussing and drafting legislation... the very thing that’s supposed to be done in public.
But isn’t there an Office of Information Practices (OIP) to make sure this doesn’t happen?
You would think so, at least in theory. But in actuality what has happened is that any complaint, if it’s accepted by OIP and gets that far, is subject to what’s called an “in camera” review whereby the OIP can look at the ES minutes and decide if they are to be released.
And that’s exactly what happened in January of 2003 when, in the infamous “ES-177”, new councilmember Mel Rapozo apparently went ballistic and attacked the Kaua`i Police Department as the first volley in his campaign to remove newly appointed Chief KC Lum.
The OIP asked for the minutes, examined them and ordered them released. But the county then sued OIP and years later Circuit Court Judge Kathleen Wantanabe- a former Kaua`i deputy county attorney- ruled that the releasable parts of the minutes were “inexorably intertwined” with the legitimately discussed items and so nothing could be released.
At the time OIP was headed by a real open government crusader, director Les Kondo who was willing to go to the hilt to defend the Sunshine Law. But by the time the case came up the OIP had a new director though an appeal was promised its status is apparently “on hold”.
The council, under the tutelage of Asing, Nakazawa and the next CA Matthew Pyun, used this as a signal that they could pretty much allow the council to meet in ES on any subject they desired with impunity, including pending legislation as happened over and over during the contentious “Transient Vacation Rental Bill” passed last summer as well as with other matters.
It should be noted that the “charter amendment” ES’s have been held with unanimous votes, including Bynum’s and Kawahara’s. Bynum did on Tuesday protest the immense amount of money spent on “outside counsel” so far (up to $150,000) without what he characterized as a sufficient work product before being cut off by new County Attorney Al Castillo.
But if they are shocked at how both the public and even some of those they elected are given the mushroom treatment, while we’ve got their attention all we can do is quote Al Jolson- “you ain’t seen nothing yet”.
The matters that Tim Bynum and Lani Kawahara forced onto a future council agenda on Tuesday are but minor “first steps” toward cleaning up at least seven years of a concerted effort by Council Chair Kaipo Asing to evade, flout and pervert the Sunshine Law in order to avoid public scrutiny in matters of public affairs.
Bynum has complained bitterly in the past about one of the main vehicles for hiding what the council is doing- the “secret” official county attorney (CA) pubic policy opinions. That issue as received notice not just here but in the local newspaper and those that follow council doings are all too familiar with the practice.
It reeks of Star Chamber methodology whereby the council tells the public the council is compelled to do something baffling because they have a county attorney’s opinion... an opinion that they “can’t” reveal.
But although related, far worse is the practice of meeting in executive session (ES) to discuss prospective legislation and even bills that are on the table.
Just this past week the council met in secret by saying
(T)he purpose of this executive session is to consult with the Council’s attorney regarding the charter amendments adopted in the 2008 General Election and other related matters.
Pretty outrageous, eh? And this isn’t the first time.
These ES’s, as revealed for the first time this past Tuesday, are ostensibly to discuss the implementation of the “General Plan” charter amendment passed this past November- a matter of public policy if there ever was one.
You would think the drafters of the amendment who worked so hard to pass it would be up in arms. But you’d be wrong because not one has objected at any of the ES’s.
You would also think that this practice would be forbidden. In fact the very first provision of the Sunshine Law, §92-1 Declaration Of Policy And Intent, reads, in part
Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible. To implement this policy the legislature declares that:
(1) It is the intent of this part to protect the people's right to know;
(2) The provisions requiring open meetings shall be liberally construed; and
(3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.
There are of course legitimate reasons for holding closed meeting- lawsuits, personnel matters and the like. They’re addressed in 8 exceptions in §92-5(a)
But one of those exceptions, #4, contains a provision that has been abused so as to obliterate any pretense of following these principles, It reads:
§92-5 A board may hold a meeting closed to the public pursuant to section 92-4 for one or more of the following purposes:...
(4) To consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities.
Now obviously this is supposed to be read along with the principles and the rest of the law. If it weren’t then as long as “the board’s attorney” is in the room and speaks and they discuss “the board's powers, duties, privileges, immunities, and liabilities”- which covers just about everything the council does, including pubic policy- all meetings could be conducted behind closed doors in their entirety.
Despite the absurd result of interpreting the law this way, that is just what the county started to do gradually when Mayor Bryan Baptiste appointed County Attorney Lani Nakazawa who developed both the “secret opinion” and the principle that allowed 92-5(a)4 to be interpreted to cover anything she said it did- especially any possible “future litigation” as well as holding that the council’s “powers, duties and privileges” include discussing and drafting legislation... the very thing that’s supposed to be done in public.
But isn’t there an Office of Information Practices (OIP) to make sure this doesn’t happen?
You would think so, at least in theory. But in actuality what has happened is that any complaint, if it’s accepted by OIP and gets that far, is subject to what’s called an “in camera” review whereby the OIP can look at the ES minutes and decide if they are to be released.
And that’s exactly what happened in January of 2003 when, in the infamous “ES-177”, new councilmember Mel Rapozo apparently went ballistic and attacked the Kaua`i Police Department as the first volley in his campaign to remove newly appointed Chief KC Lum.
The OIP asked for the minutes, examined them and ordered them released. But the county then sued OIP and years later Circuit Court Judge Kathleen Wantanabe- a former Kaua`i deputy county attorney- ruled that the releasable parts of the minutes were “inexorably intertwined” with the legitimately discussed items and so nothing could be released.
At the time OIP was headed by a real open government crusader, director Les Kondo who was willing to go to the hilt to defend the Sunshine Law. But by the time the case came up the OIP had a new director though an appeal was promised its status is apparently “on hold”.
The council, under the tutelage of Asing, Nakazawa and the next CA Matthew Pyun, used this as a signal that they could pretty much allow the council to meet in ES on any subject they desired with impunity, including pending legislation as happened over and over during the contentious “Transient Vacation Rental Bill” passed last summer as well as with other matters.
It should be noted that the “charter amendment” ES’s have been held with unanimous votes, including Bynum’s and Kawahara’s. Bynum did on Tuesday protest the immense amount of money spent on “outside counsel” so far (up to $150,000) without what he characterized as a sufficient work product before being cut off by new County Attorney Al Castillo.
Saturday, November 1, 2008
KPD Blue- Chapter 13 : Kaipo Asing
KPD Blue
By Anthony Sommer
Chapter 13 : Kaipo Asing
For a decade and a half, Kauai County Council member Bill “Kaipo” Asing was the hero of the small band of “good government” activists on Kauai: A reformer and a smiter of mayors.
Asing cast a bright light into the dark corners of Kauai County government.
The old Asing was the picture of a passionate minority leader, of the loyal opposition, of the independent politician with no ties to special interests (he never spent more than $100 on any campaign).
Asing’s own probing of county government’s shortcomings was the equal of any investigative journalist.
In one instance, his digging—literally—discovered a pipe serving a fire hydrant at a county dump was not the standard high-capacity, high-volume hardware usually associated with fire fighting. Instead, it was the diameter of the water pipes in a residential home.
Someone in county government had installed a cheap substitute and probably pocketed the difference. The loser was the Kauai Fire Department when the dump caught fire. Typically, though, there was no investigation by the county to follow up on Asing’s allegations. There never is. The fingers might all point to the top.
One of the real failings of Kauai County government is its inability to understand the checks and balances built into American democracy.
There is supposed to be friction between the mayor and the council and the courts and the press.
On Kauai there are no checks or balances. Everyone— including the lapdog press—signs on before any votes are taken. The Council passes a bill, the mayor signs it, the reporters sing its praises.
If it is challenged in court (highly unlikely), the judge blesses it.
In his days as the “Conscience of the County Council,” Kaipo Asing was the only one willing to say the emperor was naked.
When Maryanne Kusaka was mayor, she was Asing’s favorite target during his televised long-winded “chalk talks” on government ineptitude and corruption at the blackboard during Council meetings.
In turn, Kusaka and her department heads did not conceal the special loathing they reserved only for Asing. But a funny thing happened when the County Council handed Asing the gavel in 2002. The position was vacated when Ron Kouchi left the Council to run for mayor.
In the blink of an eye, Chairman Asing transformed into a petty tyrant, a champion of closed-door deal-making, and a close ally of newly-elected Mayor Bryan Baptiste in Baptiste’s campaign to purge the Kauai Police Department of haole influence.
The activists who show up at every Council meetings to rail against county government all, without exception, adored Kaipo Asing.
For many years, Asing had been saying the things they would say if they could get a seat on the Council. The instant Asing became Council chairman, everything changed.
The rants Asing formerly aimed at mayors and department heads suddenly were pointed at activists and journalists.
The mere holding of power rather than actually using it for anything constructive appeared to be sufficient reward for Asing. Perhaps he felt he earned it for his many years of being the outsider. He guarded it jealously.
In his first year as chairman, the Council did little at its meetings except approve the minutes of the prior meeting.
When asked about the inaction of the Council, Asing pointed at the mayor and said (correctly) that Baptiste hadn’t asked for a single bill during that year. In 2006, Asing was elected to his 12th term on the Council and his third term as Council chairman.
Between January 2003 and July 2005, the first two and a half years of Asing’s chairmanship, the Kauai Council conducted more than 140 executive sessions, according to activist Ray Chuan, who keeps score.
That’s an average of 58 executive sessions per year. In the last two years of Ron Kouchi’s chairmanship, the Council averaged 20 executive sessions a year. sing had almost tripled the number of executive sessions.
The result was a war between Kauai County and the state Office of Information Practices (OIP), the agency charged with interpreting Hawaii’s open meetings and public records laws.
Sadly (although it is clear the politicians want it this way), the OIP has no enforcement powers. If it orders a government agency to open a meeting or its file cabinets, there is nothing the OIP can do if the agency refuses. It is often said that Hawaii has the best open government laws and the worst enforcement of those laws in the United States.
Under state law, the state Attorney General’s Office is supposed to file lawsuits when the OIP is ignored. In practice, Republican Gov. Linda Lingle’s appointed Attorney General Mark Bennett refused to do anything to enforce the open meetings and public records laws unless a private citizen has first taken the agency to court and won.
In keeping the Council chamber door and the file cabinets locked, Asing was ably abetted by County Clerk Peter Nakamura, a career bureaucrat whose main tactic is to ignore legitimate requests for county records as if they never had been made.
Alternatively, Nakamura charges huge sums for “staff” time to retrieve public records.
When the OIP ordered Nakamura to turn over the 140-plus executive session minutes to two private citizens, Nakamura finally did so and billed them $2,886.75 for “staff time” to look up public records.
In most jurisdictions, a reporter or private citizen wanting to look through government files is pointed to the file cabinets and turned loose, often with a sarcastic “Knock yourself out.” comment from the chief bureaucrat in charge.
Not on Kauai.
On Jan. 11, 2005, an OIP attorney told the Kauai County Council staff that the Council would be violating the law if it went ahead with closed-door confirmation hearings for a roster of Baptiste appointee to boards and commissions. An hour later, Asing thumbed his nose at the OIP and went ahead with the secret sessions.
The previous month, Councilwoman (and former Mayor) JoAnn Yukimura asked OIP for an opinion as to whether closed-door confirmation hearings were legal.
In early January, OIP Director Les Kondo said he was informing Yukimura that the hearings had to be public.
On the morning of January 11, OIP attorney Lorna Aratani told Council staff the planned hearings later that day would violate the law.
“I told them the hearings should not be done in executive session,” she said in an interview that day. “I told them a written opinion was being drafted and the OIP’s conclusion would be the same as the verbal opinion I was giving them. “If they insisted on something in writing, I could have written ‘No Executive Session’ on a piece of paper and faxed it to them,” she said.
The Council ran 18 Baptiste appointees through the closed confirmation hearings that day.
Nine days later, on Jan. 20, 2005, the County Council met in what became the highly controversial Executive Session 177. (As a means of identifying them, executive sessions were numbered).
ES 177 was all about the Council investigating the KPD. The OIP later ruled ES 177 was illegal and ordered the county to make the minutes public.
On April 14, 2005, the OIP answered a request for an opinion from Police Commission Chairman Mike Ching, who was one of the subjects of the ES177 meeting. After reviewing the secret transcript, the OIP noted: “It appears a significant portion of that meeting involved discussion of whether the Council should in fact be considering ES 177 in an executive meeting and what specific matter the Council was considering in ES 177.”
The OIP ruled that debate should have taken place in public before the Council voted on going into ES 177. “The situation raises the question of how the council can vote to discuss a particular issue in executive session when the particular issue has not been identified,” the OIP opinion said.
The second question was whether the matters addressed in ES 177 fit into one or more of the eight specific reasons in state law that allow executive sessions.
The OIP opinion states:
“Prior to convening ES 177, the county attorney represented to OIP that the executive session would include discussions related to sensitive ongoing investigations involving the Federal Bureau of Investigation and the State Attorney General.
“It was further represented that these ongoing investigations involved confidential informants and undercover officers.
“It was asserted that discussions regarding these investigations in a public forum would jeopardize the investigations.
“Based upon the representations made by the county attorney, OIP indicated that it did not appear to be inappropriate for the Council to convene an executive meeting.”
Well, guess what? The county attorney lied. There were no “ongoing investigations” discussed.
The OIP opinion goes on to say:
“Upon reviewing the ES 177 minutes there is no indication that the Council considered or discussed any such investigations described by the county attorney.”
The OIP said the minutes show the Council discussed three investigations:
• An investigation being conducted by the County of Kauai Ethics Board.
• A KPD investigation that had been turned over to the Kauai county prosecutor.
• A proposed investigation into the termination of a KPD recruit.
The exception to the public meeting law that the county attorney claimed allowed the Council to go into executive session involves “sensitive matters related to public safety or security.”
The OIP concluded:
“It is OIP’s opinion that the actual matters discussed by the Council in ES 177 fall short of constituting ‘related to public safety and security.’ Therefore, it is OIP’s opinion that the matters discussed and decided on therein should have been done so in a public meeting.”
The Kauai County attorney claimed the executive session also was legal under a provision in the law that allows a board to go into closed-door meetings “to consult with its attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities and liabilities.” The Kauai County attorney uses this boilerplate for every executive session conducted by every Kauai county board or commission.
In the sole instance where executive session minutes for a closed County Council meeting “to consult with the board’s attorney” were obtained (through the lawsuit filed by the author of this book), the vast majority of the discussion had nothing to do with consulting with the board’s attorney.
It’s very likely (there’s no way to know for sure with minutes that remain eternally sealed) that “consulting with the board’s attorney” is simply a Kauai County attorney smokescreen to hide many, many illegally closed meetings on Kauai.
From the OIP opinion on ES 177, that certainly was true in this closed meeting:
“In reviewing the ES 177 minutes, it is OIP’s opinion that only an extremely limited portion of the discussion that occurred during ES 177 can reasonably fall within the attorney-client privilege.
“It is our strong recommendation that the Council act to immediately remedy its violation of the Sunshine Law (the public meetings statute) by making public the ES 177 minutes, subject only to the redaction of those limited portions which constitute attorney-client privilege communications.”
At Asing’s (and County Attorney Lani Nakazawa’s) urging, the Kauai County then sued the OIP in an effort to keep the transcript sealed.
Here was an amazing (everywhere except on Kauai) situation: A county government was suing the state to keep public documents from the public.
Even more amazing (but not surprising), the court on Kauai sided with the County. It ruled that items involving attorney-client privilege between the Council and the county attorney were so intermingled with the non-privileged parts of the transcript that it was impossible to determine what was public and what wasn’t.
The OIP appealed to the State Intermediate Court of Appeals where a decision still is pending. Even if the OIP eventually wins, the transcripts will be several years old and of little news value. But that’s what the Kauai County attorney was hoping for when she sued the OIP.
There are many, many government attorneys outside of Kauai County who would stand up in those instances and say to their client: “No! You can’t do that! It’s wrong!”
Neither Kauai County Attorney Lani Nakazawa nor any of her staff attorneys appeared to have had that brand of moral fiber. They believed it was their jobs to make the county’s illegal acts look legal, even if they knew the law had been violated.
By Anthony Sommer
Chapter 13 : Kaipo Asing
For a decade and a half, Kauai County Council member Bill “Kaipo” Asing was the hero of the small band of “good government” activists on Kauai: A reformer and a smiter of mayors.
Asing cast a bright light into the dark corners of Kauai County government.
The old Asing was the picture of a passionate minority leader, of the loyal opposition, of the independent politician with no ties to special interests (he never spent more than $100 on any campaign).
Asing’s own probing of county government’s shortcomings was the equal of any investigative journalist.
In one instance, his digging—literally—discovered a pipe serving a fire hydrant at a county dump was not the standard high-capacity, high-volume hardware usually associated with fire fighting. Instead, it was the diameter of the water pipes in a residential home.
Someone in county government had installed a cheap substitute and probably pocketed the difference. The loser was the Kauai Fire Department when the dump caught fire. Typically, though, there was no investigation by the county to follow up on Asing’s allegations. There never is. The fingers might all point to the top.
One of the real failings of Kauai County government is its inability to understand the checks and balances built into American democracy.
There is supposed to be friction between the mayor and the council and the courts and the press.
On Kauai there are no checks or balances. Everyone— including the lapdog press—signs on before any votes are taken. The Council passes a bill, the mayor signs it, the reporters sing its praises.
If it is challenged in court (highly unlikely), the judge blesses it.
In his days as the “Conscience of the County Council,” Kaipo Asing was the only one willing to say the emperor was naked.
When Maryanne Kusaka was mayor, she was Asing’s favorite target during his televised long-winded “chalk talks” on government ineptitude and corruption at the blackboard during Council meetings.
In turn, Kusaka and her department heads did not conceal the special loathing they reserved only for Asing. But a funny thing happened when the County Council handed Asing the gavel in 2002. The position was vacated when Ron Kouchi left the Council to run for mayor.
In the blink of an eye, Chairman Asing transformed into a petty tyrant, a champion of closed-door deal-making, and a close ally of newly-elected Mayor Bryan Baptiste in Baptiste’s campaign to purge the Kauai Police Department of haole influence.
The activists who show up at every Council meetings to rail against county government all, without exception, adored Kaipo Asing.
For many years, Asing had been saying the things they would say if they could get a seat on the Council. The instant Asing became Council chairman, everything changed.
The rants Asing formerly aimed at mayors and department heads suddenly were pointed at activists and journalists.
The mere holding of power rather than actually using it for anything constructive appeared to be sufficient reward for Asing. Perhaps he felt he earned it for his many years of being the outsider. He guarded it jealously.
In his first year as chairman, the Council did little at its meetings except approve the minutes of the prior meeting.
When asked about the inaction of the Council, Asing pointed at the mayor and said (correctly) that Baptiste hadn’t asked for a single bill during that year. In 2006, Asing was elected to his 12th term on the Council and his third term as Council chairman.
Between January 2003 and July 2005, the first two and a half years of Asing’s chairmanship, the Kauai Council conducted more than 140 executive sessions, according to activist Ray Chuan, who keeps score.
That’s an average of 58 executive sessions per year. In the last two years of Ron Kouchi’s chairmanship, the Council averaged 20 executive sessions a year. sing had almost tripled the number of executive sessions.
The result was a war between Kauai County and the state Office of Information Practices (OIP), the agency charged with interpreting Hawaii’s open meetings and public records laws.
Sadly (although it is clear the politicians want it this way), the OIP has no enforcement powers. If it orders a government agency to open a meeting or its file cabinets, there is nothing the OIP can do if the agency refuses. It is often said that Hawaii has the best open government laws and the worst enforcement of those laws in the United States.
Under state law, the state Attorney General’s Office is supposed to file lawsuits when the OIP is ignored. In practice, Republican Gov. Linda Lingle’s appointed Attorney General Mark Bennett refused to do anything to enforce the open meetings and public records laws unless a private citizen has first taken the agency to court and won.
In keeping the Council chamber door and the file cabinets locked, Asing was ably abetted by County Clerk Peter Nakamura, a career bureaucrat whose main tactic is to ignore legitimate requests for county records as if they never had been made.
Alternatively, Nakamura charges huge sums for “staff” time to retrieve public records.
When the OIP ordered Nakamura to turn over the 140-plus executive session minutes to two private citizens, Nakamura finally did so and billed them $2,886.75 for “staff time” to look up public records.
In most jurisdictions, a reporter or private citizen wanting to look through government files is pointed to the file cabinets and turned loose, often with a sarcastic “Knock yourself out.” comment from the chief bureaucrat in charge.
Not on Kauai.
On Jan. 11, 2005, an OIP attorney told the Kauai County Council staff that the Council would be violating the law if it went ahead with closed-door confirmation hearings for a roster of Baptiste appointee to boards and commissions. An hour later, Asing thumbed his nose at the OIP and went ahead with the secret sessions.
The previous month, Councilwoman (and former Mayor) JoAnn Yukimura asked OIP for an opinion as to whether closed-door confirmation hearings were legal.
In early January, OIP Director Les Kondo said he was informing Yukimura that the hearings had to be public.
On the morning of January 11, OIP attorney Lorna Aratani told Council staff the planned hearings later that day would violate the law.
“I told them the hearings should not be done in executive session,” she said in an interview that day. “I told them a written opinion was being drafted and the OIP’s conclusion would be the same as the verbal opinion I was giving them. “If they insisted on something in writing, I could have written ‘No Executive Session’ on a piece of paper and faxed it to them,” she said.
The Council ran 18 Baptiste appointees through the closed confirmation hearings that day.
Nine days later, on Jan. 20, 2005, the County Council met in what became the highly controversial Executive Session 177. (As a means of identifying them, executive sessions were numbered).
ES 177 was all about the Council investigating the KPD. The OIP later ruled ES 177 was illegal and ordered the county to make the minutes public.
On April 14, 2005, the OIP answered a request for an opinion from Police Commission Chairman Mike Ching, who was one of the subjects of the ES177 meeting. After reviewing the secret transcript, the OIP noted: “It appears a significant portion of that meeting involved discussion of whether the Council should in fact be considering ES 177 in an executive meeting and what specific matter the Council was considering in ES 177.”
The OIP ruled that debate should have taken place in public before the Council voted on going into ES 177. “The situation raises the question of how the council can vote to discuss a particular issue in executive session when the particular issue has not been identified,” the OIP opinion said.
The second question was whether the matters addressed in ES 177 fit into one or more of the eight specific reasons in state law that allow executive sessions.
The OIP opinion states:
“Prior to convening ES 177, the county attorney represented to OIP that the executive session would include discussions related to sensitive ongoing investigations involving the Federal Bureau of Investigation and the State Attorney General.
“It was further represented that these ongoing investigations involved confidential informants and undercover officers.
“It was asserted that discussions regarding these investigations in a public forum would jeopardize the investigations.
“Based upon the representations made by the county attorney, OIP indicated that it did not appear to be inappropriate for the Council to convene an executive meeting.”
Well, guess what? The county attorney lied. There were no “ongoing investigations” discussed.
The OIP opinion goes on to say:
“Upon reviewing the ES 177 minutes there is no indication that the Council considered or discussed any such investigations described by the county attorney.”
The OIP said the minutes show the Council discussed three investigations:
• An investigation being conducted by the County of Kauai Ethics Board.
• A KPD investigation that had been turned over to the Kauai county prosecutor.
• A proposed investigation into the termination of a KPD recruit.
The exception to the public meeting law that the county attorney claimed allowed the Council to go into executive session involves “sensitive matters related to public safety or security.”
The OIP concluded:
“It is OIP’s opinion that the actual matters discussed by the Council in ES 177 fall short of constituting ‘related to public safety and security.’ Therefore, it is OIP’s opinion that the matters discussed and decided on therein should have been done so in a public meeting.”
The Kauai County attorney claimed the executive session also was legal under a provision in the law that allows a board to go into closed-door meetings “to consult with its attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities and liabilities.” The Kauai County attorney uses this boilerplate for every executive session conducted by every Kauai county board or commission.
In the sole instance where executive session minutes for a closed County Council meeting “to consult with the board’s attorney” were obtained (through the lawsuit filed by the author of this book), the vast majority of the discussion had nothing to do with consulting with the board’s attorney.
It’s very likely (there’s no way to know for sure with minutes that remain eternally sealed) that “consulting with the board’s attorney” is simply a Kauai County attorney smokescreen to hide many, many illegally closed meetings on Kauai.
From the OIP opinion on ES 177, that certainly was true in this closed meeting:
“In reviewing the ES 177 minutes, it is OIP’s opinion that only an extremely limited portion of the discussion that occurred during ES 177 can reasonably fall within the attorney-client privilege.
“It is our strong recommendation that the Council act to immediately remedy its violation of the Sunshine Law (the public meetings statute) by making public the ES 177 minutes, subject only to the redaction of those limited portions which constitute attorney-client privilege communications.”
At Asing’s (and County Attorney Lani Nakazawa’s) urging, the Kauai County then sued the OIP in an effort to keep the transcript sealed.
Here was an amazing (everywhere except on Kauai) situation: A county government was suing the state to keep public documents from the public.
Even more amazing (but not surprising), the court on Kauai sided with the County. It ruled that items involving attorney-client privilege between the Council and the county attorney were so intermingled with the non-privileged parts of the transcript that it was impossible to determine what was public and what wasn’t.
The OIP appealed to the State Intermediate Court of Appeals where a decision still is pending. Even if the OIP eventually wins, the transcripts will be several years old and of little news value. But that’s what the Kauai County attorney was hoping for when she sued the OIP.
There are many, many government attorneys outside of Kauai County who would stand up in those instances and say to their client: “No! You can’t do that! It’s wrong!”
Neither Kauai County Attorney Lani Nakazawa nor any of her staff attorneys appeared to have had that brand of moral fiber. They believed it was their jobs to make the county’s illegal acts look legal, even if they knew the law had been violated.
Saturday, October 18, 2008
KPD BLUE- Chapter 11: A New Mayor
(With “A New Mayor” in 2002 came a new era of mind boggling and often illegal secrecy and legal deception initiated by Bryan Baptiste’s new County Attorney, Lani Nakazawa.
In Chapter 11 of KPD Blue by Anthony Sommer we meet Nakazawa, the Red Queen of the Smokescreen and initiator of a new era of secret meetings and padlocked records, who now represents Kaua`i as a state “legislative liaison”- a cushy, low-work, high-pay, unbudgeted, lobbying position created by Baptiste without council approval- or knowledge
Despite months of requests from the county council to have Nakazawa appear before them to go over the agenda for the last and the coming legislative sessions, she’s refused to appear with a new excuse every two weeks.
Meet her and get to know the real Bryan Baptiste in this week’s serialization of KPD Blue)
-------------
KPD BLUE
By Anthony Sommer
Chapter 11: A New Mayor
George Freitas’ reinstatement as police chief came early in 2002, the last year of Maryanne Kusaka’s term as mayor. By 2002, Kusaka was very much a lame duck and had little incentive to reopen her war with the chief. She left it to her successor to try again to get rid of Freitas.
Bryan Baptiste, a member of the County Council and Maryanne Kusaka’s protégé, was elected mayor in the fall of 2002. He was known in some circles (not very flatteringly) as “Son of Kusaka.”
Baptiste was so accomplished at fleecing Kauai taxpayers that he managed one last grab at the public coffers even in death.
After Baptiste died following heart surgery in June 2008, his cabinet put on a huge memorial service at the Kauai Convention Center.
The county paid overtime for drivers and fuel costs for special buses to collect anyone anywhere on the island who wanted to attend. Additional buses were added to ferry mourners from a nearby parking lot to the convention center.
Obviously, there was no money for a “state funeral” in the county’s budget, the costs were not made public and the Council never approved the funding beforehand.
Baptiste’s cronies simply spent the tax dollars without approval from anyone.
Baptiste won Kusaka’s favor while he was on the County Council. He volunteered to head one of her pet projects: The beautification of the entrance to Lihue Airport.
Never mind the fact that Lihue Airport was a state airport and the entrance was on a state highway and maybe the state, not Kauai County, should have paid for it.
Baptiste rounded up a large roster of clubs and organizations. Each “adopted” an area of the project with a promise of perpetual care.
When completed, the area, formerly fallow cane fields, had been transformed into a beautiful garden. Signs welcomed tourists driving out of the airport when they arrived and thanked tourists entering the airport when they departed.
On Kauai, tourists are indeed the geese that lay golden eggs.
But the “perpetual care” didn’t last long.
AMFAC (long ago shortened from American Factors and then bought by a real estate company in Chicago), the onetime huge sugar plantation that had promised to provide free water for the flowers, went out of business.
The clubs soon ignored the project and the gardens started to become tangled masses of weeds.
When he became mayor, Baptiste put county work crews to work repairing and maintaining the project. No one mentioned the “volunteerism” that vanished or the fact the county taxpayers were stuck with the maintenance bill. Kusaka didn’t publicly endorse Baptiste as her choice for the next mayor until late in the campaign.
But that was all for show. The same business interests that backed Kusaka had found their new puppet in Baptiste and were pouring money into his coffers.
Largely thanks to what he claimed was a sizable lastminute “loan” from a wealthy relative on Oahu, Baptiste was able to launch a media blitz in the final weeks of the campaign.
The roadsides of Kauai were blanketed with placards promoting “Honest Bryan Baptiste.”
Baptiste narrowly defeated long-time Council Chairman Ron Kouchi, easily the brightest and most politically intuitive politician on Kauai. Drop a pebble in a pond, and Kouchi could accurately predict where and when every ripple would
touch the shore.
The early favorite, Kouchi’s greatest strength, his intellect, also was his Achilles’ heel. In the eyes of Kauai locals who pride themselves on their very minimal education, Kouchi was “scary smart.”
He operated on a level most locals couldn’t comprehend (he used a lot of big words) and hinted at support for changes. Kouchi became a potential threat to the “Kauai Style” that true locals want to remain forever fixed.
Kouchi, a member of the wealthy family that owned and operated Kauai’s largest private waste disposal company, exuded more than a little arrogance.
He was and remains an elitist. In an Asian culture in which perceived humility is the greatest virtue, Kouchi’s lack of appropriate modesty fatally flawed his campaign for mayor.
Exhibit A: Rarely would anyone come up and hug Ron Kouchi.
Exhibit B: Everyone hugged Bryan Baptiste.
Shaped somewhat like a brown Pillsbury Doughboy, bald and with a wispy mustache, Baptiste appeared not the least bit threatening: The very portrait of a benign despot, a Kauai local’s dream leader.
The fact that he was not terribly bright or articulate actually was a political plus on Kauai. He was an “everyman,” the candidate most like the voters.
And he had a political pedigree.
Baptiste’s father, Tony Baptiste, had been chairman of the county board of supervisors in the 1950s and ‘60s, before the counties all switched to a municipal form of government. In effect, he was the equivalent of the mayor.
Tony Baptiste ran Kauai County from a jail cell for a year while serving a term for tax evasion, and that says a great deal about the forgiving nature of the Kauai electorate.
“The voters were so angry at him, they only re-elected him three more times,” Bryan Baptiste liked to point out. That boast says a whole lot more about Bryan Baptiste and his lack of a moral compass than it does about his father.
As long as the voters love you, it doesn’t matter how crooked you are. That was the mindset Baptiste carried into the mayor’s office.
Like Kusaka, who became a Republican to run for mayor in the 1994 primary, Baptiste was a Democrat who turned Republican.
RINO (Republican In Name Only) is what both Kusaka and Baptiste were called.
Just as Kauai County government is almost exclusively a brown-skinned club, a conclave of Kauai Republicans is a vast sea of white faces drinking punch and eating cookies in a resort conference room.
Many were members of the Navy League (which won them free joyrides on Navy ships), and it was this constituency retired Capt. Bob Mullins had brought to Kusaka’s front door. When Mullins left to sell military hardware, they remained true to Kusaka and later to Baptiste.
Kusaka and Baptiste certainly looked out of place in the great haole herd but they got what they wanted: The GOP faithful believed each of the mayors were one of them. No need to look any further.
Events would prove exactly the opposite was true, but that “R” behind a politician’s name carries a lot of weight in the wealthy retirement communities of Princeville and Poipu.
Baptiste’s conversion came after Kusaka gave him the job of managing the county’s convention center, a large meeting facility that never actually hosted a major convention. Many people who went to the convention center mistook Baptiste for the janitor.
And so, Baptiste became a Republican.
“The mayor was a Republican, so switching parties when I took the job just seemed the polite thing to do,” Baptiste said.
Baptiste was hardly a true believer in the GOP. Nor was he philosophically a true Democrat.
The longer Baptiste served as mayor, the more it seemed he became convinced he had been chosen to rule by “Divine Right.”
It didn’t hurt him at all that Republican Linda Lingle had just become the first GOP governor of Hawaii since the 1960s in the same election in which Baptiste became Republican mayor of Kauai.
He brought in several new department heads—all of them born on Kauai, although some had migrated to Honolulu and had to be “brought home.”
Included was County Attorney Lani Nakazawa, a Stanford classmate of former mayor (now Council Member) JoAnn Yukimura.
Nakazawa brought to the office both a keen intellect and a philosophy that it was the role of an attorney to do anything (and everything) to protect her client, no matter what laws or ethical codes she violated.
And she brought with her a very mean and vindictive spirit that she cloaked behind a benign and constant smile. Under Nakazawa’s guidance, virtually any complaint to the Council or a board or commission instantly became “a possible subject for future litigation.” The topic of the complaint thus was forever barred from becoming a matter of public record.
This was true even if the person complaining was simply exerting a First Amendment right and had no intention of filing a lawsuit against the county.
Similarly (although this was true during Kusaka’s reign as well), any time a board or commission met in executive session to discuss its powers, duties, liabilities and limitations with the County Attorney (an exemption from the open meetings statutory requirement that appeared on every agenda of every board and commission), the entire meeting was closed and the minutes forever kept secret.
The fact is, usually only a tiny fraction of the meetings involved getting advice from the lawyer (sometimes none of it at all because the lawyer wasn’t even in the meeting room). There is no doubt that most (or all) of the executive sessions consisted of discussions that legally should have been in open session.
Hawaii’s Open Meeting Law contains a preamble that states the statute should be “liberally construed” and errors, if they are made, should be in the direction of keeping meetings open to the public.
Give Kusaka’s County Attorney Hartwell Blake credit, at least, for honesty. “I construe that statute very conservatively,” he explained. He was admitting he was violating the law, or at least its stated intent.
Nakazawa did the same but she was much more devious than Blake.
Nakazawa also introduced a new fad, already popular on the mainland, which sealed records because personal information about private citizens was discussed in executive sessions: “Privacy Rights.”
She encouraged members of boards and commissions to toss out a few tidbits of gossip about private individuals so the executive session minutes could be forever sealed because there were “privacy issues” involved.
And she had a sense of humor, of sorts.
Asked whether there was any case law in Hawaii or elsewhere to back up any of her constant advice to the county officials to keep meetings closed and file cabinets locked, her response, given with her trademark smile, was: “Well that’s why they’re called county attorney’s opinions, not county attorney’s facts.”
Translation: “If you don’t like it, sue me.”
Nakazawa knew the chances of any journalist or any political activist challenging her methods in court was just about zero.
And, if they did sue, Kauai County has unlimited taxpayer dollars to hire outside lawyers to keep its secrets from public scrutiny.
The County Council repeatedly appropriated sums of $100,000 and more to hire outside legal counsel for her to fight any legal challenges in court. No individual challenger could match the county’s war chest and no news editor had the backbone.
The number of executive sessions skyrocketed. The news media editors continued to sit on their hands and their publishers’ wallets.
A study by The Garden Island newspaper found Kauai County paid $1.9 million to private law firms defending the county and KPD against lawsuits in 2006. That’s out of a total county budget of only $122 million.
And in every case but one (the only one that went to trial), Kauai County settled all of the lawsuits against KPD for large sums of taxpayer money.
Rather than risking public trials with the press covering highly embarrassing public testimony of witnesses— including county officials—Kauai County agreed to pay huge sums of money to almost anyone who sued the police department.
In Chapter 11 of KPD Blue by Anthony Sommer we meet Nakazawa, the Red Queen of the Smokescreen and initiator of a new era of secret meetings and padlocked records, who now represents Kaua`i as a state “legislative liaison”- a cushy, low-work, high-pay, unbudgeted, lobbying position created by Baptiste without council approval- or knowledge
Despite months of requests from the county council to have Nakazawa appear before them to go over the agenda for the last and the coming legislative sessions, she’s refused to appear with a new excuse every two weeks.
Meet her and get to know the real Bryan Baptiste in this week’s serialization of KPD Blue)
-------------
KPD BLUE
By Anthony Sommer
Chapter 11: A New Mayor
George Freitas’ reinstatement as police chief came early in 2002, the last year of Maryanne Kusaka’s term as mayor. By 2002, Kusaka was very much a lame duck and had little incentive to reopen her war with the chief. She left it to her successor to try again to get rid of Freitas.
Bryan Baptiste, a member of the County Council and Maryanne Kusaka’s protégé, was elected mayor in the fall of 2002. He was known in some circles (not very flatteringly) as “Son of Kusaka.”
Baptiste was so accomplished at fleecing Kauai taxpayers that he managed one last grab at the public coffers even in death.
After Baptiste died following heart surgery in June 2008, his cabinet put on a huge memorial service at the Kauai Convention Center.
The county paid overtime for drivers and fuel costs for special buses to collect anyone anywhere on the island who wanted to attend. Additional buses were added to ferry mourners from a nearby parking lot to the convention center.
Obviously, there was no money for a “state funeral” in the county’s budget, the costs were not made public and the Council never approved the funding beforehand.
Baptiste’s cronies simply spent the tax dollars without approval from anyone.
Baptiste won Kusaka’s favor while he was on the County Council. He volunteered to head one of her pet projects: The beautification of the entrance to Lihue Airport.
Never mind the fact that Lihue Airport was a state airport and the entrance was on a state highway and maybe the state, not Kauai County, should have paid for it.
Baptiste rounded up a large roster of clubs and organizations. Each “adopted” an area of the project with a promise of perpetual care.
When completed, the area, formerly fallow cane fields, had been transformed into a beautiful garden. Signs welcomed tourists driving out of the airport when they arrived and thanked tourists entering the airport when they departed.
On Kauai, tourists are indeed the geese that lay golden eggs.
But the “perpetual care” didn’t last long.
AMFAC (long ago shortened from American Factors and then bought by a real estate company in Chicago), the onetime huge sugar plantation that had promised to provide free water for the flowers, went out of business.
The clubs soon ignored the project and the gardens started to become tangled masses of weeds.
When he became mayor, Baptiste put county work crews to work repairing and maintaining the project. No one mentioned the “volunteerism” that vanished or the fact the county taxpayers were stuck with the maintenance bill. Kusaka didn’t publicly endorse Baptiste as her choice for the next mayor until late in the campaign.
But that was all for show. The same business interests that backed Kusaka had found their new puppet in Baptiste and were pouring money into his coffers.
Largely thanks to what he claimed was a sizable lastminute “loan” from a wealthy relative on Oahu, Baptiste was able to launch a media blitz in the final weeks of the campaign.
The roadsides of Kauai were blanketed with placards promoting “Honest Bryan Baptiste.”
Baptiste narrowly defeated long-time Council Chairman Ron Kouchi, easily the brightest and most politically intuitive politician on Kauai. Drop a pebble in a pond, and Kouchi could accurately predict where and when every ripple would
touch the shore.
The early favorite, Kouchi’s greatest strength, his intellect, also was his Achilles’ heel. In the eyes of Kauai locals who pride themselves on their very minimal education, Kouchi was “scary smart.”
He operated on a level most locals couldn’t comprehend (he used a lot of big words) and hinted at support for changes. Kouchi became a potential threat to the “Kauai Style” that true locals want to remain forever fixed.
Kouchi, a member of the wealthy family that owned and operated Kauai’s largest private waste disposal company, exuded more than a little arrogance.
He was and remains an elitist. In an Asian culture in which perceived humility is the greatest virtue, Kouchi’s lack of appropriate modesty fatally flawed his campaign for mayor.
Exhibit A: Rarely would anyone come up and hug Ron Kouchi.
Exhibit B: Everyone hugged Bryan Baptiste.
Shaped somewhat like a brown Pillsbury Doughboy, bald and with a wispy mustache, Baptiste appeared not the least bit threatening: The very portrait of a benign despot, a Kauai local’s dream leader.
The fact that he was not terribly bright or articulate actually was a political plus on Kauai. He was an “everyman,” the candidate most like the voters.
And he had a political pedigree.
Baptiste’s father, Tony Baptiste, had been chairman of the county board of supervisors in the 1950s and ‘60s, before the counties all switched to a municipal form of government. In effect, he was the equivalent of the mayor.
Tony Baptiste ran Kauai County from a jail cell for a year while serving a term for tax evasion, and that says a great deal about the forgiving nature of the Kauai electorate.
“The voters were so angry at him, they only re-elected him three more times,” Bryan Baptiste liked to point out. That boast says a whole lot more about Bryan Baptiste and his lack of a moral compass than it does about his father.
As long as the voters love you, it doesn’t matter how crooked you are. That was the mindset Baptiste carried into the mayor’s office.
Like Kusaka, who became a Republican to run for mayor in the 1994 primary, Baptiste was a Democrat who turned Republican.
RINO (Republican In Name Only) is what both Kusaka and Baptiste were called.
Just as Kauai County government is almost exclusively a brown-skinned club, a conclave of Kauai Republicans is a vast sea of white faces drinking punch and eating cookies in a resort conference room.
Many were members of the Navy League (which won them free joyrides on Navy ships), and it was this constituency retired Capt. Bob Mullins had brought to Kusaka’s front door. When Mullins left to sell military hardware, they remained true to Kusaka and later to Baptiste.
Kusaka and Baptiste certainly looked out of place in the great haole herd but they got what they wanted: The GOP faithful believed each of the mayors were one of them. No need to look any further.
Events would prove exactly the opposite was true, but that “R” behind a politician’s name carries a lot of weight in the wealthy retirement communities of Princeville and Poipu.
Baptiste’s conversion came after Kusaka gave him the job of managing the county’s convention center, a large meeting facility that never actually hosted a major convention. Many people who went to the convention center mistook Baptiste for the janitor.
And so, Baptiste became a Republican.
“The mayor was a Republican, so switching parties when I took the job just seemed the polite thing to do,” Baptiste said.
Baptiste was hardly a true believer in the GOP. Nor was he philosophically a true Democrat.
The longer Baptiste served as mayor, the more it seemed he became convinced he had been chosen to rule by “Divine Right.”
It didn’t hurt him at all that Republican Linda Lingle had just become the first GOP governor of Hawaii since the 1960s in the same election in which Baptiste became Republican mayor of Kauai.
He brought in several new department heads—all of them born on Kauai, although some had migrated to Honolulu and had to be “brought home.”
Included was County Attorney Lani Nakazawa, a Stanford classmate of former mayor (now Council Member) JoAnn Yukimura.
Nakazawa brought to the office both a keen intellect and a philosophy that it was the role of an attorney to do anything (and everything) to protect her client, no matter what laws or ethical codes she violated.
And she brought with her a very mean and vindictive spirit that she cloaked behind a benign and constant smile. Under Nakazawa’s guidance, virtually any complaint to the Council or a board or commission instantly became “a possible subject for future litigation.” The topic of the complaint thus was forever barred from becoming a matter of public record.
This was true even if the person complaining was simply exerting a First Amendment right and had no intention of filing a lawsuit against the county.
Similarly (although this was true during Kusaka’s reign as well), any time a board or commission met in executive session to discuss its powers, duties, liabilities and limitations with the County Attorney (an exemption from the open meetings statutory requirement that appeared on every agenda of every board and commission), the entire meeting was closed and the minutes forever kept secret.
The fact is, usually only a tiny fraction of the meetings involved getting advice from the lawyer (sometimes none of it at all because the lawyer wasn’t even in the meeting room). There is no doubt that most (or all) of the executive sessions consisted of discussions that legally should have been in open session.
Hawaii’s Open Meeting Law contains a preamble that states the statute should be “liberally construed” and errors, if they are made, should be in the direction of keeping meetings open to the public.
Give Kusaka’s County Attorney Hartwell Blake credit, at least, for honesty. “I construe that statute very conservatively,” he explained. He was admitting he was violating the law, or at least its stated intent.
Nakazawa did the same but she was much more devious than Blake.
Nakazawa also introduced a new fad, already popular on the mainland, which sealed records because personal information about private citizens was discussed in executive sessions: “Privacy Rights.”
She encouraged members of boards and commissions to toss out a few tidbits of gossip about private individuals so the executive session minutes could be forever sealed because there were “privacy issues” involved.
And she had a sense of humor, of sorts.
Asked whether there was any case law in Hawaii or elsewhere to back up any of her constant advice to the county officials to keep meetings closed and file cabinets locked, her response, given with her trademark smile, was: “Well that’s why they’re called county attorney’s opinions, not county attorney’s facts.”
Translation: “If you don’t like it, sue me.”
Nakazawa knew the chances of any journalist or any political activist challenging her methods in court was just about zero.
And, if they did sue, Kauai County has unlimited taxpayer dollars to hire outside lawyers to keep its secrets from public scrutiny.
The County Council repeatedly appropriated sums of $100,000 and more to hire outside legal counsel for her to fight any legal challenges in court. No individual challenger could match the county’s war chest and no news editor had the backbone.
The number of executive sessions skyrocketed. The news media editors continued to sit on their hands and their publishers’ wallets.
A study by The Garden Island newspaper found Kauai County paid $1.9 million to private law firms defending the county and KPD against lawsuits in 2006. That’s out of a total county budget of only $122 million.
And in every case but one (the only one that went to trial), Kauai County settled all of the lawsuits against KPD for large sums of taxpayer money.
Rather than risking public trials with the press covering highly embarrassing public testimony of witnesses— including county officials—Kauai County agreed to pay huge sums of money to almost anyone who sued the police department.
Sunday, June 8, 2008
DUCK HUNTER
DUCK HUNTER: Perhaps we should be listening to the sunrise symphony every morning instead of rolling over because today Joan Conrow heard one of those little birdies and reports that we can look forward to another dot-connecting report from Derrick DePledge in case any spatially challenged among us hasn’t been able to draw the smoking gun in the Lingle-Bennett cover-up of illegal deeds and political shenanigans in the ramming of the Hawai`i Superferry up- er, down- our throats.
The focus is on the public release of public legal opinions from attorney General Mark Bennett which despite an Office of Information Practices (OIP) opinion dating back 17 years requiring them to be released, are still being withheld using an absurdly inapplicable umbrella of “attorney-client privilege” to flout the law- a law that, according to Hawaii Revised Statutes (HRS) the Attorney General is supposed to enforce.
The fact is that there are dual functions performed by government attorneys by definition. The first is to give government officials advice on public policy. The other is to advise them on personal liability for their actions in the case of potential malfeasance, malpractice and the like.
(Parenthetically there is also the function of advising them on lawsuits and the like where the official must hear confidential matter involving litigation, usually in executive session for legislators. But that is a separate category where there is an “exemption” to open meeting requirements, along with a list of seven more exempt circumstances under HRS 92-5[a] [1-8]).
When a government official needs an opinion on public policy from their lawyer- in the case of Kaua`i, the County Attorney’s (CA) office but on other islands from their “Corporation Consul” and in the state’s case the AG- they ask and if they’re lucky they receive that opinion.
But recently there has been a trend- one picked up upon by the apparently shyster Bennett- to call into the mix this “attorney-client” privilege.
Believe it or not this lawyerly convolution came from little dumb Kaua`i County although, as one might expect it was devised by a shrewd Honolulu attorney hired to be the Kaua`i County Attorney in 2002, Lani Nakazawa.
Seems that new Council Chair at the time Kaipo Asing was getting fed up with being questioned as to his performance as a long time council-person and worse, people were using “his” (in his eyes) own CA’s opinions to point out what dumb and even illegal decisions he and he council were making.
“Even your own attorney says you are a _______ (fill-in the blank with schmuck, crook, idiot or worse)” the pubic screamed in the newspapers and on TV to councilmembers’ faces at Council meetings.
But the Sunshine law was and is quite clear in it’s intent saying public policy is to be conducted publicly and that was always to be construed toward openness in the most liberal way possible.
So Nakazawa realized a couple of things
The first was that that the OIP is a toothless tiger and it doesn’t matter what it opines, we can do whatever we want and there is no mechanism for them to enforce their opinions.
And two that just because previously no one- including the law itself- ever contemplated that anyone would try to essentially say there was no such thing as public policy and so everything imaginable could be a secret, it didn’t mean she couldn’t contemplate it.
And so she made a bizarre legal claim, one no previous CA had ever contemplated according to two of them, Mike Belles who would never do it on an ethical basis and even Hartwell Blake who probably would have done it if he were bright enough to think of it.
She claimed that the attorney-client privilege we’ve all heard of applied to every interaction between a government official and the CA’s office, with the government official being the client.
This ignores of course that problem that if the public official is making an inquiry as regards public policy it is the PUBLIC that is the ultimate client. Otherwise it would be the politician part of the official not the public policy decisions maker that wanted the advice and that is clearly an abuse of power and the retaining of a special privilege in violation of all ethics laws since their campaign should pay for that- or in the case of an administration official, a part of their job-seeking and retention expenses.
But ethics is not a popular word in Asing’s dictionary. If it’s used at all it’s in toeing, ignoring or, if necessary, obliterating the ethical line.
And that was apparently true of his chief ally on this issue the two faced JoAnn Yukimura who constantly claims to be a champion of open government but has bought this little legal turd as divinely inspired to negate any questions of how a council member reached a decision in any controversial case.
What a boon for those who have to make the public happy in order to get reelected. “I had to make the decision I made but I can’t tell you why because that would violate attorney client privilege.”
It’s all very Star-Chamber stuff . But on Kaua`i Asing and Yukimura pass for the intelligencia and many, especially the press like Lester Chang bought the gobbledy gook and regurgitated it to the public in the local paper..
Except for the fact that, if you do buy this cock and bull, you have to question whether,. since it’s the “client” whose “privilege” is covered why doesn’t the client just release it?
It took months for them to come up with this one, as people like Glenn Mickens and Ken Taylor and Walter Lewis asked it to no response.
But when dumb-as-a-rock Councilmember Tim Bynum – like the idiot child who asked why the Emperor had no clothes- said he wanted to release them they told him he couldn’t because it was the whole Council who was now the client.
And when he tried to get the Council to release the opinions they told him they couldn’t because they had no “process” in place to release them- this despite the fact that they had voted to release some of them when it suited them politically since this scheme had been imagineered by Nakazawa and Asing.
According to the sunshine law all it would take would be to file a case in 5th Circuit Court to end this nonsense. But as of now no one can even get an opinion from the OIP to appeal since they fired firebrand Les Kondo as Director because he was working on this very case and replaced him with the usual gang of foot-and-knuckle-draggers afraid of their shadows .
And the problems with going to Court are multifaceted, not the least of which being finding a lawyer on Kaua`i who would take the case and risk pissing off the Council which rules on development issues... since all Kaua`i attorneys either work for or want to work for Wanton Hong or Max Graham who split up all the development shilling on the island. Or they might want to work for the government and of course suing the government wouldn’t do much for their résumé in that case either.
Plus going to court means that everything stops and the whole matter is placed on the interminable civil case calendar, typically taking years to even come before a judge for a decision.
But you would think that, since court costs are guaranteed in these “Sunshine” cases by law if you win the case, there would be an industrious lawyer making a cottage industry out of lawyering OIP and CA opinions.
But it turns out it’s like the old joke about the farmer and the hunter and the duck. The hunter shoots the duck and it lands in the farmer’s yard. They argue over whose duck it is for a while and the farmer proposes that they take turns kicking each other in the crotch until one of them gives up. The farmer goes first since he’s holding the duck and after the hunter spends a ten minutes on the ground writhing in pain he gets up and says “OK- it’s my turn”.
To which the farmer say “that’s ok- you can have the duck”.
And that’s been the situation with winning Sunshine law cases in court. What anyone who has tried that has found out is that you can spend months, even years, trying to get a document or some minutes and by the time the judge is ready to rule, the information sought has become so moot or outdated that the morning of the trial the County comes in and says “ok- you can have the duck” and hands over the document.
Then the now useless document technically wasn’t given to you because you “won” the case, they gave it up voluntarily. So the lawyer doesn’t get paid for hundreds of hours of work..
No one ever heard this of this business of applying attorney client privilege to public policy opinions before and maybe Bennett and his cohorts- even Lingle herself- figured this out this scam on their own. But our hearts swell with pride in thinking that this scam originated on stumble-bum Kaua`i, giving us hicks some prestige in having our big city cousins adopt a method of screwing the public that we came up with.
The focus is on the public release of public legal opinions from attorney General Mark Bennett which despite an Office of Information Practices (OIP) opinion dating back 17 years requiring them to be released, are still being withheld using an absurdly inapplicable umbrella of “attorney-client privilege” to flout the law- a law that, according to Hawaii Revised Statutes (HRS) the Attorney General is supposed to enforce.
The fact is that there are dual functions performed by government attorneys by definition. The first is to give government officials advice on public policy. The other is to advise them on personal liability for their actions in the case of potential malfeasance, malpractice and the like.
(Parenthetically there is also the function of advising them on lawsuits and the like where the official must hear confidential matter involving litigation, usually in executive session for legislators. But that is a separate category where there is an “exemption” to open meeting requirements, along with a list of seven more exempt circumstances under HRS 92-5[a] [1-8]).
When a government official needs an opinion on public policy from their lawyer- in the case of Kaua`i, the County Attorney’s (CA) office but on other islands from their “Corporation Consul” and in the state’s case the AG- they ask and if they’re lucky they receive that opinion.
But recently there has been a trend- one picked up upon by the apparently shyster Bennett- to call into the mix this “attorney-client” privilege.
Believe it or not this lawyerly convolution came from little dumb Kaua`i County although, as one might expect it was devised by a shrewd Honolulu attorney hired to be the Kaua`i County Attorney in 2002, Lani Nakazawa.
Seems that new Council Chair at the time Kaipo Asing was getting fed up with being questioned as to his performance as a long time council-person and worse, people were using “his” (in his eyes) own CA’s opinions to point out what dumb and even illegal decisions he and he council were making.
“Even your own attorney says you are a _______ (fill-in the blank with schmuck, crook, idiot or worse)” the pubic screamed in the newspapers and on TV to councilmembers’ faces at Council meetings.
But the Sunshine law was and is quite clear in it’s intent saying public policy is to be conducted publicly and that was always to be construed toward openness in the most liberal way possible.
So Nakazawa realized a couple of things
The first was that that the OIP is a toothless tiger and it doesn’t matter what it opines, we can do whatever we want and there is no mechanism for them to enforce their opinions.
And two that just because previously no one- including the law itself- ever contemplated that anyone would try to essentially say there was no such thing as public policy and so everything imaginable could be a secret, it didn’t mean she couldn’t contemplate it.
And so she made a bizarre legal claim, one no previous CA had ever contemplated according to two of them, Mike Belles who would never do it on an ethical basis and even Hartwell Blake who probably would have done it if he were bright enough to think of it.
She claimed that the attorney-client privilege we’ve all heard of applied to every interaction between a government official and the CA’s office, with the government official being the client.
This ignores of course that problem that if the public official is making an inquiry as regards public policy it is the PUBLIC that is the ultimate client. Otherwise it would be the politician part of the official not the public policy decisions maker that wanted the advice and that is clearly an abuse of power and the retaining of a special privilege in violation of all ethics laws since their campaign should pay for that- or in the case of an administration official, a part of their job-seeking and retention expenses.
But ethics is not a popular word in Asing’s dictionary. If it’s used at all it’s in toeing, ignoring or, if necessary, obliterating the ethical line.
And that was apparently true of his chief ally on this issue the two faced JoAnn Yukimura who constantly claims to be a champion of open government but has bought this little legal turd as divinely inspired to negate any questions of how a council member reached a decision in any controversial case.
What a boon for those who have to make the public happy in order to get reelected. “I had to make the decision I made but I can’t tell you why because that would violate attorney client privilege.”
It’s all very Star-Chamber stuff . But on Kaua`i Asing and Yukimura pass for the intelligencia and many, especially the press like Lester Chang bought the gobbledy gook and regurgitated it to the public in the local paper..
Except for the fact that, if you do buy this cock and bull, you have to question whether,. since it’s the “client” whose “privilege” is covered why doesn’t the client just release it?
It took months for them to come up with this one, as people like Glenn Mickens and Ken Taylor and Walter Lewis asked it to no response.
But when dumb-as-a-rock Councilmember Tim Bynum – like the idiot child who asked why the Emperor had no clothes- said he wanted to release them they told him he couldn’t because it was the whole Council who was now the client.
And when he tried to get the Council to release the opinions they told him they couldn’t because they had no “process” in place to release them- this despite the fact that they had voted to release some of them when it suited them politically since this scheme had been imagineered by Nakazawa and Asing.
According to the sunshine law all it would take would be to file a case in 5th Circuit Court to end this nonsense. But as of now no one can even get an opinion from the OIP to appeal since they fired firebrand Les Kondo as Director because he was working on this very case and replaced him with the usual gang of foot-and-knuckle-draggers afraid of their shadows .
And the problems with going to Court are multifaceted, not the least of which being finding a lawyer on Kaua`i who would take the case and risk pissing off the Council which rules on development issues... since all Kaua`i attorneys either work for or want to work for Wanton Hong or Max Graham who split up all the development shilling on the island. Or they might want to work for the government and of course suing the government wouldn’t do much for their résumé in that case either.
Plus going to court means that everything stops and the whole matter is placed on the interminable civil case calendar, typically taking years to even come before a judge for a decision.
But you would think that, since court costs are guaranteed in these “Sunshine” cases by law if you win the case, there would be an industrious lawyer making a cottage industry out of lawyering OIP and CA opinions.
But it turns out it’s like the old joke about the farmer and the hunter and the duck. The hunter shoots the duck and it lands in the farmer’s yard. They argue over whose duck it is for a while and the farmer proposes that they take turns kicking each other in the crotch until one of them gives up. The farmer goes first since he’s holding the duck and after the hunter spends a ten minutes on the ground writhing in pain he gets up and says “OK- it’s my turn”.
To which the farmer say “that’s ok- you can have the duck”.
And that’s been the situation with winning Sunshine law cases in court. What anyone who has tried that has found out is that you can spend months, even years, trying to get a document or some minutes and by the time the judge is ready to rule, the information sought has become so moot or outdated that the morning of the trial the County comes in and says “ok- you can have the duck” and hands over the document.
Then the now useless document technically wasn’t given to you because you “won” the case, they gave it up voluntarily. So the lawyer doesn’t get paid for hundreds of hours of work..
No one ever heard this of this business of applying attorney client privilege to public policy opinions before and maybe Bennett and his cohorts- even Lingle herself- figured this out this scam on their own. But our hearts swell with pride in thinking that this scam originated on stumble-bum Kaua`i, giving us hicks some prestige in having our big city cousins adopt a method of screwing the public that we came up with.
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