AND HAST THOU SLAIN THE JABBERWOCK?: When the local paper’s former editor Adam Harju left for Cambodia many in the community clinked Champaign glasses and happily warned him against letting the egress barrier strike him in the posterior upon his way out.
And why not? Like most others he came here “on the circuit”- a loose web of small newspapers around the country where journalists float from job to job for short periods until they wear out their welcome or have a chance to “move up” to either a larger newspaper or an editorial or management position.
Many chortled at Harju’s oft-stated concern for the community and his vow to stick around (as long as the surf was good). It was nothing we hadn’t heard from the others and won’t hear again.
And although Harju was originally gung ho for the idea of regular local columnists he was soon set straight by Publisher Mark Lewis as to what was and wasn’t acceptable to the advertisers and local power elite.
Though many- us included- sought a regular column only two scribes made the grade. The first, Juan Wilson, was soon hastily dispatched when he submitted an article critical of the local constabulary’s militaristic buildup.
And that left one- retired Princeville attorney Walter Lewis whose prose graces the lowest circulation day’s opinion page every other week.
Lewis’ columns are generally repetitive, plodding , bland and, though many have criticized the county council and other boards and commissions for their penchant for secrecy, pretty innocuous.
But although his subject matter has been limited, his factual claims have generally been on target... until now.
The problem with Walter is- as anyone who has tried to work with him on any issue soon finds out- he is never wrong, never makes a mistake and won’t listen to anyone. If any idea isn’t Walter’s it not only goes in one ear and out the other but is dismissed through the kind of smug and disingenuous obtuseness only Walter can muster.
And so it was no surprise this week that, when we found a major error in the main premise of his column on property tax appeals this past Saturday, even when faced with the irrefutable error in fact, his final word on the matter was essentially “that’s my story and I’m sticking with it”.
Lewis’s offending paragraph read as follows:
The property tax law contains a serious flaw affecting whether taxpayers must accept an unjust assessment of their property. Under the tax code a taxpayer may not appeal an assessment made unless the assessment amount is more than 20 percent higher than the prior annual assessment. In our present climate even continuing the 2008 year opening value may be a serious overassessment but a taxpayer would have no right to appeal it. Elementary justice requires that this be changed.
Problem is that this just plain wrong. Nowhere in the law does it even mention anything about “prior annual assessments” or anything like it.
Having followed the public hearing at which both Lewis and North Shore Realtor Mike Dyer testified we though we heard Walter say the same thing in testimony only to be contradicted by Dyer and by what we had understood to be the process for many years.
In fact the “20%”- which is a figure subject to a reduction to 10% in a bill on the agenda at next Wednesday’s council Finance Committee meeting- refers to the difference between what the county assessor claims is the value of your house or property and what the Board of Review finds to be the actual “market value”.
The language in Section 5A-12.3(a) is as follows:
"No owner shall be deemed aggrieved by an assessment, nor shall an assessment be lowered ... unless there is shown: (1) Assessment of the property exceeds by more than twenty per cent (20%) the assessment of market value used by the Director as the real property tax base".
So we spent the last week emailing both Lewis and Dyer to straighten it out and give Lewis a chance to simply recognize his error and correct it. We all make mistakes and it’s something one would think any responsible journalist with a regular column in the newspaper would welcome the chance to do.
Ah but not Lewis who stated to the council he had never actually filed an appeal while Dyer, who owns a lot of property on the island, said he usually files one or more almost every year.
In an email to PNN Dyer explained the way it actually works, the same way he did when he testified before the council in favor of not just lowering the difference to 10% but advocating for an arbitrator type system to replace the current method used- a determination by the Board of Review (the only county board that pays its members) using some set of secretive almost magical soothsaying machinations to find out whether the assessor’s valuation is off by more than 20% and what the correct value should be.
In an email Dyer explained:
The "Taxpayer's Notice of Real Property Tax Appeal" form requires that the taxpayer state what his assessed value should be. The value stated must be 20% lower than the assessed value provided to the taxpayer "on or before March 15th preceding the tax year" by the assessor's office. The form only includes one check box option for " ... grounds of objection to the assessment per Section 5A-12.3 ...": " The assessed value of the property exceeds by more than twenty percent (20%) the ratio of assessment to market value." If you submit an appeal claiming a market value that is not at least 20% lower than the assessor's valuation you won't be scheduled for an appeal hearing.
The language in Section 5A-12.3(a) is as follows: "No owner shall be deemed aggrieved by an assessment, nor shall an assessment be lowered ..., unless there is shown: (1) Assessment of the property exceeds by more than twenty per cent (20%) the assessment of market value used by the Director as the real property tax base, ...". I have no idea what the last phrase means. However, my experience has been that you must contend that the assessor is too high by at least 20% or you don't even get to play.
In actual appeals it has been my experience that the Board of Review can be fickle. I have seen them grant adjustments of less than 20% and I have seen them uphold the assessor's valuation because the taxpayer didn't convince them in an amount which quite reached the 20% threshold ... losing even though you win.
Dyer’s email was addressed to Lewis too and we thought that surly with the ordinance being cited- a law that Lewis presumably has seen since he was observed reading from the entire current ordinance as he testified- that Lewis would act to correct himself.
But suddenly Lewis became obtuse and unresponsive until we persisted in finding out whether he wanted to make his own statement rather than having us correct it for him.
If the misstatement was left to stand there’s no telling how many homeowners might be wrongly dissuaded from thinking that could even file an appeal.
That’s when he told us it was only our “opinion” as to what the ordinance said and that he would not be correcting anything.
This is typical Lewis, the father of the infamous “Ohana” Prop.13-type tax measure approved by voters and struck down by the Hawai`i Supreme Court, exemplifying his modus operandi.
At the time, when the idea was in it’s infancy, the notion of capping the annual growth of the actual tax paid by the home-owner/occupant at 2% a year and rolling the “base” back to the time before assessments started to sky-rocket, seemed a decent one to many.
Horror tales abounded especially those whose taxes went from a few hundred to many thousands a year, including retired people on fixed incomes and others whose valuations increased exponentially due to sales of neighboring properties to rich off-island speculators during the housing bubble.
But as in uffish thought they stood, many said “hey wait a minute”. The measure was designed to accommodate those who had no intention of selling their homes and just wanted to live in their now million dollar houses for which they paid maybe $50,000 or less... or even inherited.
So one provision was suggested to Lewis, eventually even by Ohana co-founders Ray Chuan and Glenn Mickens as well as then Council Chair Ron Kouchi.
To get more support for his “charter amendment” and perhaps get the council on board or even put it in an ordinance, they simply asked that when and if the house was sold, the taxes saved over the years should be paid back to the county.
But Walter wouldn’t listen and so when the council sued- and the courts struck it down saying only the council could determine taxes- homeowners were left with no real cap except one that the council passed without the rollback to the pre-bubble prices- after the horse was out of the barn.
And because of that, many lost their homes or are still paying inflated taxes today.
Iconoclastic is often a nice way of saying pig-headed and never did that apply more than in the odd case of this oddly pompous man, Walter Lewis.
Showing posts with label Ray Chuan. Show all posts
Showing posts with label Ray Chuan. Show all posts
Friday, January 16, 2009
Monday, December 15, 2008
SAME OLD TRICKS
SAME OLD TRICKS: Wednesday’s Kaua`i County Council meeting’s packed agenda. contains quite a few eyebrow raisers which we’ll detail today and tomorrow.
The meeting will be preceded by long overdue recognition of legendary Kaua`i activist and original “nitpicker” Dr. Ray Chuan, who will be receiving a certificate honoring his dedication and tenacity in exposing corruption and incompetence in county government and repeatedly telling the council exactly what they didn’t want to hear... no, really.
Quite a few of the items promise to provide fodder for some 2009 “nitpicking” including a series of reports on the county’s finances with a report on the “condition of the treasury” dated October 8th which contains a whopping $173,533,919.44 in “investments”.
The lengthy reports contained in three communication for Council information are on the agenda apparently as the result of some prodding for financial accountability by Council Vice Chair Jay Furfaro who has headed the council’s finance committee for the past couple of years.
But the “statement” in a fourth communication shows just where the actual money “is”- depending on what the definition of “is” is.
It lists what “ought to be in said Treasury” and is signed by Director of finance Wally Rezentes Jr. and County Clerk Peter Nakamura. and lists our investments as well as the $18,733,329.79 in “cash”
Where this “cash” is physically located is not always apparent. It lists $499,446.58 as “cash in treasury” along with amounts of both cash and investments in various banks such as American Savings and Loan, The Bank of Hawai`i, Central Pacific Bank and First Hawaiian Bank (which has the bulk of the money, just under $90 million in “cash” and “investments”),
It also lists for some reason, the First Tennessee Bank where the tally is apparently $0.
But our money is not only in banks. Just over $70 million it is “invested” with four different securities brokers: Merrill Lynch ($31,107,576), Multi-Bank Securities ($15,720,270.90) UBS Financial Services Vining Sparks: ($19,620,500) and Capital Securities of America ($4,964,742.43).
When the next accounting will be submitted is not clear but with the recent crash of the financial markets and stock prices we can be assured that we don’t have all of the $70 million that was there Oct 8.
Although most taxpayers are familiar with our regular and capital improvements budgets many are unaware that all this money- not just from local property taxes but other sources of income like the state and federal governments- sits in no less than 34 different “funds”.
Most people are familiar with the “General Fund” which has over $96 million in it but not so much with things like the “Golf Fund”, the “Beautification Fund” or the “Liquor Fund” which despite the names are not there for pau hana parties.
Perhaps the First Tennessee account is there for purchasing Jack Daniels for the Liquor Fund- that would certainly explain some of the more bizarre county decisions..
There’s a Grant Fund, a Bond Fund, a Public Access Fund, a Housing Revolving Fund, a Special Trust Fund for Parks and Playgrounds, a Trust and Agency Fund, a Bikeway Fund, a Debt Service Fund, a Parks Revolving Fund, a Self Insurance Fund, a Sewer Fund and many others.
And a there’s one fund that will be raided Wednesday if certain measures are approved- the Criminal Assets Forfeiture Fund.
For those unfamiliar with the controversial program the government can seize property that was supposedly used in the commission of a crime although may times property is seized even when no one is convicted of a crime.
There are actually three funds- federal, state and local- and in Hawai`i at least they are supposed to be used for items that are a “supplemental sum to support a legitimate law enforcement purpose of any state or county law enforcement agency” according to Rule 712A-16.4.1 under HRS § 712A-16(4).
According to discussions among councilmembers last year they are aware of the fact that the money is supposed to be spent for things that would not normally be budgeted
Last year during a long dialogue regarding the use of the fund then Councilperson Shaylene Iseri-Carvalho and the rest of the council discussed the matter of what was and wasn’t an item that would “normally” be budgeted, with Iseri questioning whether a specific item qualified and what indeed is “supplemental”.
But apparently now that she is a department head, Prosecuting Attorney Iseri is quite sure that her request for the council to approve the use of $1504.05 from the state fund “for the purchase of a fax machine to replace one of our existing broken machine” (that’s been) repaired numerous times” is “supplemental”.
In her request she goes on to say “since the cost to purchase a new machine was not planned in our FY09 budget we will use our State Asset Forfeiture Funds for the purchase”.
The question of what kind of super-duper, fancy-schmancy fax machine costs $1500 aside, we’ll be asking the council to examine the issue that Iseri originally raised.
Another request from the fund comes along with the announcement of newly designed badges for the Kaua`i Police Department (KPD) officers.
In the request for “$18,020 from the Assets Forfeiture Account”- which of the three accounts is not stated but presumably it is the county’s- Chief Darryl Perry says “the purchase of the badges will serve as a symbol of a new beginning as has our new mission statement. The design encompasses the County seal with its significant uniqueness to the island of Kaua`i. As an additional bonus it would be very difficult to impersonate a KPD officer because of its distinctive design.”
And indeed the badge is a spiffy new design replete with the four elements of the county seal- the Nounou Mountains, a Mokihana flower, a Maile lei and our historically unique poi pounder with the puka handle.
But is there any way a badge- the very essence of a police uniform- can be considered “supplemental?”. If you’re in doubt ask any officer if his or her badge is supplemental.
The final request is also from Perry asking for “$929.02 from the Asset Forfeiture account to purchase a 2007 Livingston boat that was forfeited to the United States Marshall Service (USMS) during a marijuana investigation on Kaua`i”.
The request for approval says the “cost is for reimbursement for USMS expenses” and says “KPD could utilize a vessel of this nature for surveillance and investigations whereby normal vehicular transportation is not feasible.”
From the pictures attached to the communication the boat appears to be about a 14 foot fiberglass vessel with Mercury outboard motor and a trailer and is “appraised at $2,525.00”.
If indeed it is for “surveillance and investigations” and the department doesn’t have one among its “normal vehicular transportation” fleet it would appear to be another item that should be routinely budgeted for rather than acquired with asset forfeiture monies, although one might argue it is to “supplement” their “normal” transportation capabilities.
The complete agenda. is available on-line however only paper copies of documents pertaining to agenda items are available and they are available only at the county clerk’s office in the Historic County Building where the meeting will be held, beginning at 9 a.m..
The meeting will be preceded by long overdue recognition of legendary Kaua`i activist and original “nitpicker” Dr. Ray Chuan, who will be receiving a certificate honoring his dedication and tenacity in exposing corruption and incompetence in county government and repeatedly telling the council exactly what they didn’t want to hear... no, really.
Quite a few of the items promise to provide fodder for some 2009 “nitpicking” including a series of reports on the county’s finances with a report on the “condition of the treasury” dated October 8th which contains a whopping $173,533,919.44 in “investments”.
The lengthy reports contained in three communication for Council information are on the agenda apparently as the result of some prodding for financial accountability by Council Vice Chair Jay Furfaro who has headed the council’s finance committee for the past couple of years.
But the “statement” in a fourth communication shows just where the actual money “is”- depending on what the definition of “is” is.
It lists what “ought to be in said Treasury” and is signed by Director of finance Wally Rezentes Jr. and County Clerk Peter Nakamura. and lists our investments as well as the $18,733,329.79 in “cash”
Where this “cash” is physically located is not always apparent. It lists $499,446.58 as “cash in treasury” along with amounts of both cash and investments in various banks such as American Savings and Loan, The Bank of Hawai`i, Central Pacific Bank and First Hawaiian Bank (which has the bulk of the money, just under $90 million in “cash” and “investments”),
It also lists for some reason, the First Tennessee Bank where the tally is apparently $0.
But our money is not only in banks. Just over $70 million it is “invested” with four different securities brokers: Merrill Lynch ($31,107,576), Multi-Bank Securities ($15,720,270.90) UBS Financial Services Vining Sparks: ($19,620,500) and Capital Securities of America ($4,964,742.43).
When the next accounting will be submitted is not clear but with the recent crash of the financial markets and stock prices we can be assured that we don’t have all of the $70 million that was there Oct 8.
Although most taxpayers are familiar with our regular and capital improvements budgets many are unaware that all this money- not just from local property taxes but other sources of income like the state and federal governments- sits in no less than 34 different “funds”.
Most people are familiar with the “General Fund” which has over $96 million in it but not so much with things like the “Golf Fund”, the “Beautification Fund” or the “Liquor Fund” which despite the names are not there for pau hana parties.
Perhaps the First Tennessee account is there for purchasing Jack Daniels for the Liquor Fund- that would certainly explain some of the more bizarre county decisions..
There’s a Grant Fund, a Bond Fund, a Public Access Fund, a Housing Revolving Fund, a Special Trust Fund for Parks and Playgrounds, a Trust and Agency Fund, a Bikeway Fund, a Debt Service Fund, a Parks Revolving Fund, a Self Insurance Fund, a Sewer Fund and many others.
And a there’s one fund that will be raided Wednesday if certain measures are approved- the Criminal Assets Forfeiture Fund.
For those unfamiliar with the controversial program the government can seize property that was supposedly used in the commission of a crime although may times property is seized even when no one is convicted of a crime.
There are actually three funds- federal, state and local- and in Hawai`i at least they are supposed to be used for items that are a “supplemental sum to support a legitimate law enforcement purpose of any state or county law enforcement agency” according to Rule 712A-16.4.1 under HRS § 712A-16(4).
According to discussions among councilmembers last year they are aware of the fact that the money is supposed to be spent for things that would not normally be budgeted
Last year during a long dialogue regarding the use of the fund then Councilperson Shaylene Iseri-Carvalho and the rest of the council discussed the matter of what was and wasn’t an item that would “normally” be budgeted, with Iseri questioning whether a specific item qualified and what indeed is “supplemental”.
But apparently now that she is a department head, Prosecuting Attorney Iseri is quite sure that her request for the council to approve the use of $1504.05 from the state fund “for the purchase of a fax machine to replace one of our existing broken machine” (that’s been) repaired numerous times” is “supplemental”.
In her request she goes on to say “since the cost to purchase a new machine was not planned in our FY09 budget we will use our State Asset Forfeiture Funds for the purchase”.
The question of what kind of super-duper, fancy-schmancy fax machine costs $1500 aside, we’ll be asking the council to examine the issue that Iseri originally raised.
Another request from the fund comes along with the announcement of newly designed badges for the Kaua`i Police Department (KPD) officers.
In the request for “$18,020 from the Assets Forfeiture Account”- which of the three accounts is not stated but presumably it is the county’s- Chief Darryl Perry says “the purchase of the badges will serve as a symbol of a new beginning as has our new mission statement. The design encompasses the County seal with its significant uniqueness to the island of Kaua`i. As an additional bonus it would be very difficult to impersonate a KPD officer because of its distinctive design.”
And indeed the badge is a spiffy new design replete with the four elements of the county seal- the Nounou Mountains, a Mokihana flower, a Maile lei and our historically unique poi pounder with the puka handle.
But is there any way a badge- the very essence of a police uniform- can be considered “supplemental?”. If you’re in doubt ask any officer if his or her badge is supplemental.
The final request is also from Perry asking for “$929.02 from the Asset Forfeiture account to purchase a 2007 Livingston boat that was forfeited to the United States Marshall Service (USMS) during a marijuana investigation on Kaua`i”.
The request for approval says the “cost is for reimbursement for USMS expenses” and says “KPD could utilize a vessel of this nature for surveillance and investigations whereby normal vehicular transportation is not feasible.”
From the pictures attached to the communication the boat appears to be about a 14 foot fiberglass vessel with Mercury outboard motor and a trailer and is “appraised at $2,525.00”.
If indeed it is for “surveillance and investigations” and the department doesn’t have one among its “normal vehicular transportation” fleet it would appear to be another item that should be routinely budgeted for rather than acquired with asset forfeiture monies, although one might argue it is to “supplement” their “normal” transportation capabilities.
The complete agenda. is available on-line however only paper copies of documents pertaining to agenda items are available and they are available only at the county clerk’s office in the Historic County Building where the meeting will be held, beginning at 9 a.m..
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.
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