SEPARATING THE WHITE FROM THE RICE

SEPARATING THE WHITE FROM THE RICE: It can't be a surprise to anyone who has followed our coverage of"Rice-Cooker-Gate"- going back to November of 2010 - that Councilmember Tim Bynum has finally filed a malicious prosecution suit against Kaua`i Prosecuting Attorney Shaylene Iseri-Carvalho.

The content of the suit- the "Facts" section of which are presented below, interspersed with background material and comments- won't shock our readers very much either. But for anyone who hasn't been able or attempted to put our real-time exposure of Iseri's blatant abuses of power into an even more horrific narrative, Bynum's attorneys- including local lawyer Dan Hempey and former State Attorney General Marjorie Bronster- have served up for Iseri what many hope will be some measure of the proverbial "dish best served cold"

The barely-scratching-the-surface coverage in the local and Honolulu papers failed to go into any depth, as could be expected. And that left former Kaua`i Council Chair Kaipo Asing- the mastermind behind the political hatchet job against Bynum- pretty much unidentified.

While his role is central to the plot and he is identified in the narrative of the suit as a driving force behind the farce, he isn't named as a defendant, so his role has yet to be widely exposed.

For the underpinnings of the whole story you can use the search box at the top of this page to go back and read how much of the basis for the suit began with Bynum's challenges of the paternalistic power exercised by the once beloved and eventually corrupt and reviled "Uncle Chair," as Bynum and others had taken to calling Asing.

In brief, toward the end of his career, Asing, the one time "voice of the people," began to abuse his evolving power until the wheels of Kaua`i government meshed solely at his whim.

Bynum, along with now-retired Councilperson Lani Kawahara, dared to challenge Asing's power grab simply by asking for things like adherence to the state's sunshine and open records laws, general transparency and public access to documents. They even had to do battle to place items on the agenda, something that Asing had come to deny councilmembers on matters which Asing didn't want publicly addressed.

When she was a councilmember, Iseri, along with fellow Councilperson Mel Rapozo, had become the chief minions of the Minotaur, owing much of their political careers to Asing's benevolence.

Nothing was too much for Asing to ask.

Going deeper though, much of this whole debacle has roots- as does everything seemingly on Kaua`i- in the infamous "Lap Dancer" episode, as described in the book KPD Blue by Tony Sommer which is serialized at this site (see left rail). That led to the infamous Executive Session (ES) 177 where Rapozo, a former Kaua`i Police Department (KPD) officer who was present in the room at police headquarters that night she was fondled by officers, went into a rant about the incident and other potentially explosive internal KPD matters.

Despite orders from the Office of Information Practices (OIP) that the potentially explosive minutes be released publicly, Asing successfully went all the way to the Hawai`i Supreme Court (HSC) to protect Rapozo from exposure, leaving Rapozo- and his ally Iseri of course- forever politically indebted to Asing.

In addition to everything else, Iseri had her own personal feud going with Bynum, much of it seemingly a part of Iseri's well known "anti-haole (Caucasian)" attitude- a mindset finally manifesting itself in the recent settlement of an EEOC racial harassment case.

Another factor in Iseri's enmity for Bynum was her opposition to Bynum's measure which ended Transient Vacation Rentals (TVRs) on Agriculturally zoned land but allowed existing ones to be grandfathered in. It was a major issue on Kaua`i and passage of the resulting ordinance left Iseri, Rapozo and Asing seething and licking their wounds.

So Iseri needed very little prodding to join Rapozo in doing the dirty work for "team Asing" during the well-documented good governance "Battle Royale" between Bynum and Asing.

That set up the "set up," so to speak, and Iseri set on a path to "get" Bynum after she successfully ran for Prosecuting Attorney in 2008.

The "Facts" section of the lawsuit lays out a chilling tale of how Planning Department Supervising Inspector Sheila Miyake trumped up charges against Bynum at the behest of Iseri and ultimately Asing, both of whom are identified by Miyake as apparent co-initiators of the scheme to issue the notice of a building violation.

Missing is the back story of Asing's years-long quest to silence Bynum who had been a thorn in Asing's side on the council as we briefly touched on above. Those seeking to read the whole sordid tale can make good use of the search box at the top of this page, inserting names and terms we've used here in order to follow the blow-by-blow accounts we've presented over the past almost three years.

The detailed "facts," as presented in suit itself (in italics), are a worth a look too. So, interspersed with a little background, here they are.

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Beginning in 2008, BYNUM, following legal guidance offered by the Kaua'i County Attorney's Office, voted for certain amendments to Kaua'i zoning laws with which Defendants MIYAKE and ISERI-CARVALHO disagreed.

BYNUM's right to vote as he did was protected by the First Amendment to the United States Constitution and his votes related to matters of public concern.

Defendant ISERI-CARVALHO left employment with the Kaua'i County Council after she began her term as Kaua'i County Prosecuting Attorney in 2008.

Defendant ISERI-CARVALHO has a history of animosity toward Plaintiff. She harbors personal animosity toward the Plaintiff. She vehemently disagreed with Plaintiffs vote for certain amendments to Kaua'i zoning laws beginning in 2008.

Defendant MIYAKE has a history of animosity toward Plaintiff. She harbors personal animosity toward the Plaintiff.

The "amendment" was a successful effort by Bynum to "grandfather" existing Transient Vacation Rentals (TVRs) on agriculturally zoned land but ban new ones.

From there Bynum's suit sets up some of the events that led Iseri to go after Bynum

2010 was an election year for the Kaua'i County Council. After the election, it was known that Deputy County Attorney Michael Dahilig would replace the sitting Director of the Kaua'i Planning Department, Ian Costa as of December 1,2010.

Prior to the 2010 election, Attorneys Michael Dahilig and Ian Jung were employed as deputy county attorneys for the Defendant COUNTY OF KAUAI. These two attorneys were tasked with, among other things, advising the various employees of the PLANNING DEPARTMENT, including but not limited to Defendant MIYAKE, as to the proper interpretation and enforcement of the COUNTY OF KAUAI'S Comprehensive Zoning Ordinance ("CZO") as well as regarding the ability and/or constraints on Planning Officials to enter private property for the purpose of conducting inspections related to zoning compliance.

At all times pertinent to this matter, and to this day, Plaintiff was the owner of a single family home in Kapaa, Hawai'i.

Pursuant to the Kaua'i CZO, it is illegal to convert a single-family dwelling unit into a multi-family dwelling unit without an appropriate permit.

In 2005, BYNUM built an addition onto his home to accommodate the four (4) generations of family members living there at the time. The drawings for the addition went through informal and formal review by the Planning Department. Prior to permitting, a representative of the Planning Department informed BYNUM that the addition, as designed, was legal as long as no stove was installed. The plans for the addition were approved by the Planning Department, after being circulated to and approved by various departments including the Planning Department and a valid building permit was issued. The County sent inspectors during construction, and conducted a final inspection, after construction, after which the Plaintiff was issued a certificate of occupancy.

A laundry room separated the original home from the permitted addition. The door between the original home and the addition had a lock at the time the addition was approved and permitted. The permitted addition also contained a counter top/bar and a sink, as well as several electrical receptacles.

In March and April 2010, plaintiff BYNUM allowed his daughter's friend, Victory Yokotake, to occupy a room in and reside in the BYNUM family home.

While residing at the BYNUM home, Ms. Yokotake had access to the family kitchen.

In early 2010 a female came to the BYNUM residence and allegedly assaulted Victory Yokotake. A police officer came to the house to investigate. The police officer generated a report that incorrectly characterized the addition to the BYNUM home as a separate apartment.

At the time it was generated, this police report regarding the assault of Ms. Yokotake was a protected and confidential document, only to be lawfully viewed by members of the police department and the Office of the Prosecuting Attorney.

But even though there was nothing illegal in what Bynum was doing, Iseri was determined to bend the facts and the law- to the point of breaking- in order to put an end to Bynum's political career and, she hoped, to convict him of a supposed crime... one that didn't exist.

In early 2010 an unknown person who had lawful access to the police report informed Defendants MIYAKE and ISERI-CARVALHO that s/he believed that BYNUM was "renting out a portion of his residence" illegally.

Defendants MIYAKE and ISERI-CARVALHO each knew or should have known at the time of the report that there was nothing illegal about plaintiff renting out a portion of his home to his daughter's friend.

Upon receiving the allegation that BYNUM was renting out a portion of his residence, Defendant MIYAKE wrote down the reporting person's name as "Kalani Martin" although, upon information and belief, she knew that not to be true. MIYAKE also claimed on the report form that she generated that the reporting person "wants to remain anonymous." Upon information and belief, "Kalani Martin" never made the subject report to MIYAKE, but his name was used falsely by MIYAKE as cover for the true reporting person. MIYAKE knew the true identity of the reporting person. Nonetheless, she treated the report as an anonymous complaint.

Defendant MIYAKE has stated that she acted on the subject report because, inter alia, the Kaua'i County Council Chair, "Kaipo Asing, was asking."

Government Inspectors at the Defendant PLANNING DEPARTMENT are not legally authorized, absent a warrant or an exception to the warrant requirement, to enter onto private property to investigate an anonymous complaint that someone is renting out a portion of his or her home, especially where renting out a portion of one's home is not illegal.

Next is the smoking gun which we reported on years ago- an email from Iseri showing her to be the one who contemplated and initiated action in the matter before it was ever on Miyake's radar screen- or for that matter anyone in the planning department.

(http://parxnewsdaily.blogspot.com/2010/11/pnn-bynum-denies-report-of-illegal-unit.html)

Iseri has repeatedly denied she was in anyway involved in the matter until the planning department came to her with the supposed "violation" which the email disproves.

On or about April 7, 2010, before the Planning Department had instigated any investigation of the "anonymous" complaint, defendant Prosecuting Attorney ISERI-CARVALHO emailed then-Director Ian Costa of the PLANNING DEPARTMENT, stating: "Aloha Ian, We received information to corroborate an anonymous complaint dated March 26,2010 that was sent to the Planning Department and our office, that Councilmember Tim BYNUM was renting out his house, or a portion thereof. Can you let me know if renting out a portion of his residence is illegal given his land status, and what ordinance/statute would he be violating by doing so? Please advise. Much Mahalo, Shay."

Mr. Costa responded to Ms. ISERI-CARVALHO's email, advising her in relevant part: "The CZO really doesn't prohibit renting portions of structures. Even the issue of "lock-outs" is not addressed. The CZO does not dictate where locks are permitted and not permitted (thank goodness!). The issue would be whether the area, in question creates a "multi-family" dwelling. What was permitted is a "single-family" dwelling based on "one kitchen". If a second kitchen (area used for the preparation of food) is present, then a violation would exist for an illegal "multi-family" dwelling unit. I understand Sheila has been assisting and monitoring. Let me know if we can be of farther assistance."

Next is a description of Miyake's tangled web of illegal activity- activity which, she had been repeatedly informed, was anything but lawful.

Despite the Planning Director's correct interpretation of the CZO, i.e. that the allegedly anonymous compliant did not allege any illegal activity, Defendant MIYAKE nonetheless instructed her subordinate, Planning Inspector Patrick Henriques, to enter the BYNUM property and search for potential zoning violations. MIYAKE made no attempt to obtain a search warrant, or even consult with anyone about the necessity of a warrant before entering private property for the purpose of conducting a search for zoning violations.

Prior to searching Plaintiffs property without a warrant, MIYAKE made no attempt to contact BYNUM or anyone else in his household to schedule an inspection or offer him a chance to consent to or refuse the search.

In early April 2010 Defendant MIYAKE and Inspector Henriques entered BYNUM's private property without a warrant, without notice and without permission, went through a gate, walked up a wheelchair ramp in the rear of BYNUM's home, looked in his windows and took photographs of the inside of his

home.

While conducting the warrantless search of BYNUM's home, Defendant MIYAKE allegedly observed a portable rice cooker and a refrigerator in the addition/family room in the family home.

Defendant MIYAKE specifically timed her entry on to Plaintiffs private property to a time and date when she knew Plaintiff would not be home - MIYAKE knew BYNUM would be attending a Kaua'i County Council Meeting at the time.

But later when it was apparent Miyake was in a deep hole she did what most criminals tend to do... keep digging... and digging... and digging...

During a subsequent investigation into the allegations of zoning violations of BYNUM's property by the State Attorney General, Defendant MIYAKE claimed to a Special Deputy Attorney General, Richard Minatoya, that the previous Kaua'i County Attorney, Matthew Pyun had trained her that she could lawfully search a private home without the need for a search warrant and without notice or consent of the property owner, as long as the private home was associated with a use permit.

Upon information and belief, County Attorney Pyun never actually taught MIYAKE that she could conduct a warrantless search of a private residence, without notice to the property owner based solely on the existence of a use permit on the property.

After MIYAKE searched Plaintiffs house and allegedly observed the rice cooker, she consulted with deputy County Attorneys Jung and Dahilig about what she had seen. Each of those deputy County Attorneys advised MIYAKE that she had trespassed onto the BYNUM property, thereby engaging in an illegal warrantless search. One or both of the two deputy County Attorneys also advised MIYAKE that the presence of a rice cooker and a refrigerator in the lawfully permitted family room did not constitute a second "kitchen" within the meaning of the CZO.

Despite having been clearly informed by COUNTY lawyers that BYNUM had not committed a crime by allowing a tenant who allegedly put a rice cooker and a refrigerator in BYNUM's lawfully permitted addition, and despite having been informed by County lawyers that she had illegally trespassed onto the BYNUM property and engaged in an illegal warrantless search, Defendant MIYAKE nonetheless caused an Zoning Notice Violation to be issued to Plaintiff by the COUNTY OF KAUAI.

Now as anyone who has even deal with the planning department on this knows, what constitutes a kitchen often depends on what the planner had for breakfast as much as anything else and Miyake took full advantage of that. But one thing was always clear- to be a separate apartment there has to be a stove installed. The suit goes on to tell the sordid tale.

At all times relevant to this Complaint, the KAUAI PLANNING DEPARTMENT maintained an official policy or custom of inadequate training and supervision of its planning inspectors, with respect to what constitutes a "kitchen," the legal standards and requirements for searching private property, and Kaua'i planning inspectors have no uniform or written standards other than the CZO to as to what is or is not a kitchen.

Defendant MIYAKE has stated that "each inspector has his own kingdom" with respect to such determinations. There are no written guidelines for inspectors to follow when interpreting the Kaua'i CZO with respect to the definition of "kitchen" and such determinations are made ad hoc, arbitrarily and, in this case, capriciously and maliciously.

52. On or about April 15, 2010, MIYAKE directed Inspector Henriques to prepare a Zoning Violation Notice ("ZVN") to be issued against BYNUM, using a standard PLANNING DEPARTMENT template.

So, determined to pound the square peg into the round hole, Miyake kept digging, bringing Chair Asing's henchman, County clerk Peter Nakamura, up-to-date.

On or about April 15,2010, MIYAKE emailed the County Clerk, Peter Nakamura, with the subject line that read "4 your eyes only" and attached a copy of the April 15, 2010 ZVN. BYNUM was not informed of the ZVN for nearly one month later on May 12, 2010.

Defendant MIYAKE sent the email copy of the ZVN to the County Clerk, with the intent that it would later be made public and used against BYNUM in the coming 2010 election.

The Planning Department's April 15, 2010 ZVN form, alleged that a zoning violation had been found to "exist" on the Plaintiffs property. Such language, alleging the actual existence of a violation of the CZO, is necessary for such a Zoning Violation Notice to have legal effect — as due process requires the existence of an actual violation before civil or criminal prosecution for a violation of the CZO.

However, in BYNUM's case, the PLANNING DEPARTMENT caused the standard ZVN form originally issued in April 2010 to be altered on or about November 10, 2010 to change the sentence "we have found that a zoning 13 violation exists" to "we have found that a zoning violation may exist." (emphasis added).

At the time of the November 10, 2010 ZVN, there was no probable cause to believe that an actual zoning violation existed on BYNUM's property.

Upon information and belief, the Zoning Notice Violation prepared against BYNUM was the only such notice ever issued by the County of Kaua'i that had alleged a violation based on what "may" exist - instead of what actually did exist.

On or about November 10, 2010, then-Planning Director Ian Costa sent BYNUM a letter stating, "This notice shall supersede our letter dated April 15, 2010," and stating that "we believe ... violations of Chapter 8, Kaua'i County Code may exist."

The November 10, 2010 ZVN did not allege probable cause to believe that either a civil or a criminal zoning violation had occurred.

Defendant MIYAKE then sent the uniquely modified November 10, 2010 Zoning Violation Notice, which claimed only that the Planning Department "believed" that a violation "may" exist to the Office of the Prosecuting Attorney.

Prior to the uniquely altered ZVN, the PLANNING DEPARTMENT routinely cc'd ZVN's to the Office of the Prosecuting Attorney. However, until the BYNUM ZVN, the Office of the Prosecuting Attorney has never filed criminal 14 charges until and unless the Planning Department had made a specific request for such criminal charges to be filed.

So Miyake had created quite the legal mess for those around her. And Iseri's First Deputy PA Jake Delaplane was taking no chances on letting himself or his boss be the fall guy, even though Iseri was key in pushing Miyake into the hole in the first place.

In November 2010, Jacob Delaplane, Esq. worked under the supervision and direction of defendant ISERI-CARVALHO at the Kaua'i Office of the Prosecuting Attorney, as a deputy prosecuting attorney. 64. In November 2010, Defendant MIYAKE met with deputy prosecuting Attorney Delaplane to discuss the BYNUM zoning matter, in depth.

Delaplane was an attorney licensed to practice law in Hawai'i at the time he met with MIYAKE.

Delaplane secretly recorded the approximately two-hour long conversation with Defendant MIYAKE.

During the November 2010 meeting with deputy prosecuting attorney Delaplane, MIYAKE informed Delaplane that deputy county attorneys Jung and Dahilig had previously advised MIYAKE that she had illegally trespassed on the BYNUM property, and engaged in an illegal search when she entered Plaintiffs property without a warrant in April 2010 and allegedly saw the portable ricecooker inside the BYNUM family home.

A portable rice-cooker is not an "installed appliance" within the meaning of the Kaua'i CZO.

Miyake, unaware she was being set up by being taped of course, spoke freely with Delaplane who wasn't about to do jail time for anyone- Miyake, or even apparently Iseri, if it came to that.

During the November 2010 meeting with Delaplane, MIYAKE informed Delaplane that deputy county attorneys Jung and Dahilig had previously advised her that the evidence that she had allegedly observed during her warrantless search (a refrigerator and a rice-cooker in the family room addition) did not constitute a second kitchen with "installed appliances" as contemplated by the Kaua'i CZO.

During the surreptitiously recorded meeting between MIYAKE and Delaplane, MIYAKE told Deputy Prosecuting Attorney Delaplane: "It is all political but I will never say on stand that it is political. It will be my demise." The prosecution of BYNUM was indeed for political reasons. MIYAKE also opined on the secretly-recorded tape that "the good guys lost" in the 2010 election. Knowing that a new Planning Director was taking over the Planning Department as a result of the 2010 election, MIYAKE and DOE defendants then arbitrarily and capriciously issued the second ZVN against Plaintiff so that she could "cc" it to the Prosecuting Attorney just before the new Planning Director (i.e., Dahilig - the former County Attorney who had concluded that MIYAKE had trespassed, engaged in an illegal search, and who had questioned whether Plaintiffs home had a second kitchen within the meaning of the Kaua'i CZO) took office.

Finally Miyake fingered "the Godfather" naming the then Council Chair as the one at whose behest she was acting when she issued the violation notice- an action on Asing's part that, if true, would be a violation of the County Code of Ethics and punishable by fines and even jail time described in the county charter.

Mr. Kaipo Asing was the Chair or the County Council at the time the revised ZVN was issued to BYNUM.

After MIYAKE told Delaplane about the advice she had received from deputy county attorneys JUNG and DAHILIG, (regarding trespass, illegal search and the definition of kitchen) and in response to further taped questioning by Delaplane, MIYAKE stated that she and PLANNING director Ian Costa issued the ZCN in November 2010: "Because Kaipo wanted it. Kaipo was asking. And I gotta answer to the Council Chair."

In fact, Defendant MIYAKE had no obligation as a Planning Inspector to "answer" to the Council Chair as to who was charged with zoning violations by the Planning Department. To the extent that MIYAKE based her decision-making as a Planning Inspector on the malicious political wishes of the Kaua'i County Council Chair at the time, her decision to issue the ZVN was arbitrary, capricious and malicious.

The November 2010 ZVN was not a valid ZVN based on admissible evidence of an actual zoning violation, but rather was a uniquely altered document that had no legal effect, did not state probable cause, and simply alleged a "belief' that a violation "may" have existed.

The November 2010 ZVN was issued against legal advice of at least one deputy County Attorney and was instead issued for political reasons at the urging of then Kaua'i County Council chair - as established by MIYAKE's taped admissions to Delaplane.

Meanwhile, back at the OPA ranch Iseri was drunk with, among other things, power. And, she was just getting started. Her dominoes were set up, and it was finally time to knock them over

76. Despite having learned that the two deputy county attorneys who were tasked with advising the PLANNING DEPARTMENT had already advised that there was no probable cause to believe that BYNUM had violated any zoning ordinance, and despite knowing that the alleged rice cooker and refrigerator were only discovered as a result of an illegal warrantless search, and although the November 10, 2010 ZVN did not allege probable cause to believe that either a civil or a criminal zoning violation had occurred - Defendant ISERI-CARVALHO waited approximately one year (until the next election-year cycle) and then filed four criminal zoning charges against BYNUM in the District Court for the 5th Judicial Circuit.

Two of the four alleged criminal acts were based on the alleged presence of a rice-cooker and a refrigerator approximately one year and a half years earlier, and the other two charges were based on the alleged presence of a lock on the door between the addition and the original house - even though Planning Director Costa had already informed Defendant ISERI-CARVALHO that there was no law governing which doors inside a private home could or could not have locks, and even though the subject lock was the same lock that existed at the time the addition was permitted and the certificate of occupancy issued, years earlier.

Oblivious to everything but getting Bynum, Iseri had set the seeds of her own demise because there was "no there there." No matter how hard they squint, when rational people look at a rice cooker none of them are going to see an installed stove.

There was no probable cause for Kaua'i Prosecuting Attorney ISERI-CARVALHO to charge BYNUM with any crimes based on the alleged presence of a rice cooker and refrigerator in his lawfully permitted addition.

ISERI-CARVALHO would not have charged BYNUM with a crime had the Planning Department and MIYAKE not sent an unsolicited copy of the November 2010 ZVN to the Office of the Prosecuting Attorney.

Prior to charging BYNUM with four zoning crimes, ISERI-CARVALHO, or Delaplane, acting under her authority, had an investigator interview Victory YOKOTAKE about the BYNUM home. Although YOKOTAKE told the investigator that BYNUM was unaware of the rice-cooker in the addition and that she was welcome to use the BYNUM kitchen (such that she did not need a second kitchen) neither Delaplane nor ISERI-CARVALHO provided that investigator's report to BYNUM or his attorney while ISERI-CARVALHO was prosecuting him, despite written requests for exculpatory information and the constitutional requirement that such material must be provided to a criminal defendant.

During ISERI-CARVALHO' s investigation into whether BYNUM had committed misdemeanors in connection with the rice-cooker and door lock, deputy prosecuting attorney Jake Delaplane ordered Lucas Burns, another deputy prosecuting attorney, to interview Victory Yokotake, the pretext of the interview being that the interview was to assist with the prosecution of the earlier alleged assault against her, but with the real purpose of bolstering ISERI-CARVALHO'S case against BYNUM. The deputy prosecuting attorney was instructed to surreptitiously tape record the interview.

In April 2012, Lucas Burns testified about the unusually aggressive investigation technique involving misleading and surreptitiously recording a victim of an assault with the real intent of extracting from the assault victim, evidence against BYNUM's alleged zoning violations - having no real intent to bolster the assault case in any way.

Iseri had created quite the mess with "Rice Cooker Gate" stories circulating in "the blogs," as this and Joan Conrow's "KauaiEclectic" site are often cumulatively referred to in government circles.

But Iseri had other things to hide and when the budget for the 2012-2013 fiscal year came around things blew up publicly despite her attempts to keep aspects of her department's budget under wraps... not to mention her almost wacky attempts to keep Bynum from questioning her during the yearly departmental budget review hearings.

From January 2012 until approximately May 2012, while the criminal zoning charges were pending against Plaintiff BYNUM, the Kaua'i County Council was simultaneously considering various matters related to the operations and budget of the Office of the Prosecuting Attorney.

BYNUM had previously been a critic of many of Prosecuting Attorney ISERI-CARVALHO's decisions and he had planned to question ISERI-CARVALHO about her operations and budget as was relevant to the matters pending on the Kaua'i Council's agenda during these council meetings in early 2012.

Plaintiff BYNUM had constitutional rights under the First Amendment to the U.S. Constitution and the Hawai'i State Constitution to speak about and debate, as an elected member of the Kaua'i County Council, the operations and budget of the Office of the Prosecuting Attorney at official Kaua'i

County Council meetings.

However, on January 19, 2012, while the false criminal charges were pending against BYNUM, prosecuting attorney ISERI-CARVALHO wrote a letter to the entire Kaua'i County Council, on Office of the Prosecuting Attorney letterhead, demanding that BYNUM be recused from County Council meetings involving legislative oversight of the prosecutor's office, while the BYNUM's criminal case was pending.

ISERI-CARVALHO initially stamped this January 19, 2012 letter as "confidential" but later released it to the public and to the mass media and press, with some names redacted.

The January 19, 2012 letter to the Council contained various erroneous statements of law to support ISERI-CARVALHO's demand that BYNUM should be recused from legislative matters concerning the OPA.

Iseri had reached the point where she had lost all contact with reality, living in her own self-constructed World of Shay- aka the Office of the Prosecuting Attorney. The letter read like the rantings of a lunatic. The only problem is that the lunatic in this case had- and still has, until at least December 1- the discretionary power to imprison people.

The January 19, 2012 letter also contained numerous statements that are disparaging of Mr. BYNUM's integrity including that "[Councilman BYNUM] has a clear financial interest in the operations of the OPA, as he would directly benefit if the OPA's operations were negatively impacted by any action of the Council. By virtue of being a criminal defendant, he has a vested interest in ensuring that the OPA not operate at peak efficiency" and "BYNUM's paranoid belief that the actions taken by our office were calculated personal attacks against him is without any merit and is completely baseless." ISERI-CARVALHO intentionally withheld from the public or the Council that the Director of the Planning Department had already "cleared" BYNUM of any violation or that BYNUM was innocent unless proven guilty.

90. When ISERI-CARVALHO demanded BYNUM's recusal on the basis that ISERI-CARVALHO had charged BYNUM in a criminal case that was premised on an illegal warrantless search, without probable cause, and on an interpretation of the CZO that was contrary to that stated by then Planning Director Costa and contrary to the advice of deputy county attorneys Jung and Dahilig, she was acting under the color of state law.

BYNUM had a clearly established constitutional and statutory right to fulfill his responsibilities as an elected councilman and to fully participate in 2012 Council hearings related to the operations and budget of the Office of the Prosecuting Attorney.

ISERI-CARVALHO wrote the January 19, 2012 with the intent of denying BYNUM his rights guaranteed statutes and under the U.S. Constitution and the Hawai'i State Constitution.

ISERI-CARVALHO wrote the January 19,2012 under the color of her authority under state law as an elected public prosecutor.

94. ISERI-CARVALHO wrote the January 19, 2012 with the intent of silencing BYNUM in his capacity as an elected official with respect to the operations and budget of the Office of the Prosecuting Attorney.

ISERI-CARVALHO's conduct, in writing and publishing the January 19, 2012 letter and her making her comments derogatory comments about BYNUM on the Council floor would have chilled or silenced a person of ordinary firmness from future First Amendment activities.

Fearful of the Prosecutor's unprincipled ire, and not wanting to risk violating the law related to recusal as it was presented to the Kaua'i County Council by the Prosecuting Attorney, BYMJM ceded to ISERI-CARVALHO's demand for his recusal from the January, 2012 County Council Meeting. Thereafter BYNUM solicited an opinion from the County of Kaua'i Board of Ethics, which later concluded, contrary to the legal assertions made by ISERICARVALHO to the Kaua'i County Council, that BYNUM did not have a conflict of interest such that he should not be recused from fulfilling his duties as an elected councilman with respect to questioning ISERI-CARVALHO, as would any other elected member of the Kaua'i County Council, with respect to the OPA operations and budget.

But it wasn't like Iseri didn't have a couple of loyal supporters on the council: members Mel Rapozo and Kipukai Kuali`i did their best to throw up smoke screens and throw down oil slicks to obscure, slow down and, they hoped, eliminate challenges to Iseri.

On March 14, 2012 and again on March 21, 2012 there was a Special Council meeting item involving the Prosecuting Attorney's request for Council permission to hire a Law Office Assistant. At the opening of the latter meeting ISERI-CARVALHO notified the Council, through counsel, that she would be asking questions of BYNUM before she would agree to testify before the Council. The proposed questions to councilman BYNUM included whether he would "waive [his] rights" and if [he was] aware that "statements that you make can be used against you in the criminal proceeding."

This March 14, 2012 questioning of BYNUM on behalf of ISERI-CARVALHO would have chilled or silenced a person of ordinary firmness from future First Amendment activities.

During these 2012 County Council meetings ISERI-CARVALHO repeatedly referred to the charges that her Office had filed against BYNUM as the primary basis for removing him from any legislative oversight of the Office of the Prosecuting Attorney. In none of these references did ISERI-CARVALHO reference any presumption of innocence or acknowledge the fact of Plaintiff s innocence as established by the legal opinions of deputy County Attorney's Jung and Dahilig.

In addition to the pressures Iseri was maliciously causing in Bynum's public life her actions made a mess of his personal financial affairs when he put his home up for sale.

While all of these matters were happening, BYNUM had listed his home for sale. In the spring of 2012, he entered into a contract for the sale of his home. The sale went into escrow. The buyers, however, became concerned that the house may not have been properly permitted after reading about the prosecution of BYNUM in the local newspaper. In response, the buyers went to the PLANNING DEPARTMENT and inquired whether there were problems with the permitting of the BYNUM property. The representative of the PLANNING DEPARTMENT wrongly and maliciously informed the buyers that the alleged zoning violations would run with the land and transfer to any new owners. The PLANNING DEPARTMENT employee then falsely informed the buyers that they would not be permitted to rent out any rooms in the residence if they bought the home. In response to these, and other false representations from the PLANNING DEPARTMENT, the buyers cancelled (sic) escrow. The house remains unsold. The loss of the sale of the home caused BYNUM to suffer significant financial damages to be proven at trial.

Finally Bynum had his day in court so a judge could ostensibly say to Iseri "what are you, nuckin futz?"

So Oye, Oye. All rise for the courtroom scene- Take One:

On April 5, 2012 a hearing was held in the Fifth Circuit Court, State of Hawai'i, after which the Honorable Kathleen N.A. Watanabe ordered that the Office of the Prosecuting Attorney was disqualified from further involvement in the criminal zoning case against BYNUM.

Thereafter, the State of Hawai'i Office of the Attorney General appointed a Special Deputy Attorney General to take over the case from the disqualified Office of the Prosecuting Attorney. The Special Deputy re-investigated the facts and circumstances related to the alleged zoning crimes and very rapidly concluded that there was no provable case against BYNUM.

The Circuit Court, with the agreement and written consent of the Special Deputy Attorney General, dismissed the entire criminal case against BYNUM with prejudice.

Thereafter, First Deputy Prosecuting Attorney Delaplane, working under the authority of ISERI-CARVALHO told the local newspaper reporter that the dismissal did not equate to innocence.

Iseri is opposed by Deputy County Attorney Justin Kollar in the November 6 election.

SAY NO MORE; I CAN SAY NO MORE

SAY NO MORE; I CAN SAY NO MORE: Incomprehensible.

The word can apply to any number of things - if not most anything- when it comes to government and politics on Kaua`i. Usually it can be used to describe the account of council meetings when the local newspaper's Leo Azumbuja sets digit to keyboard.

But in the case of his Thursday account of Wednesday's Committee of the Whole meeting- one held to "fix" an imbalance in the county's budget- one can give poor Leo a pass because his unintelligible account was only slightly more unintelligible than the meeting itself.

Don't bother to watch the meeting in order to try and find out what happened to cause the council to give preliminary approval to bills 2241 and 2242 in an attempt to rectify the fact that the county's budget apparently isn't balanced- or for that matter in order to figure out why no one knew it wasn't balanced until well after it was passed- or for that matter how much is- or isn't- "missing," depending on who you ask.

All the words were there- spoken at the meeting and dutifully reported by Azumbuja: "encumbrances"... "a million dollars"... "capital improvement"... "administration"... "adolescent drug treatment center"... "budget deliberation process." It's just that neither watching nor reading put them in any sensible and coherent order so as to tell the story of what the heck was going on.

It took a few days and talking to a few sources close to county government to figure out the whole story but here's what the whole meshugaas was apparently about.

Seems that the long anticipated and even longer delayed adolescent drug treatment center was funded (again) as part of the county's recent bond float. But actually locating and designing the facility has been a political football that was one of those "now you see it now you don't" items in this year's capital improvement project (CIP) budget.

A couple-or-few years back when Mayor Bernard Carvalho Jr. finally (again) "told" the community where it was to be located, those in the Lihu`e residential area of Isenburg Tract- a predominantly Japanese neighborhood named for a German family that was voted off the island after World War 1- didn't take too kindly to the announcement and took a decidedly NIMBY attitude toward it.

So to oversimplify a long story and make it short on top of that, when this year's budget was on the table, the council either (depending on who you talk to) told the mayor, or wrote it in the budget document that the mayor couldn't actually "encumber" the money until the council actually saw the plans for the center including a buy-in by the Isenberg residents.

Encumbering the money is a process whereby the actual dollars are, for lack of a better word, reserved for the specific project by the administration. At that point, it is, for all intents and purposes, considered spent.

And apparently that's exactly what the mayor did- encumber a half a million dollars for "phase one" of the project which included sighting and design.

So even though the council had told him not to do anything until hizzonah came back to them with "da plan"- and that meant before he encumbered the money- he decided to do it anyway. In other words even though the money was in the bond fund, it wasn't in the budget to be "encumbered" in the first place.

It's hard to say what the legality of all this is. County Attorney Al Castillo refused to say anything in open session even though Council Chair Jay Furfaro swore up and down the charter that nothing illegal happened- that even though the county charter says the budget must be balanced and quite obviously this year's budget wasn't. And even though the mayor "spent" the money that wasn't there. And even though during a recent debate current Prosecuting Attorney Shaylene "Go to your homes- nothing to see here" Iseri-Carvalho- who is running what looks like a losing battle for re-election- has sworn she will prosecute a million dollar theft of county money.

Castillo also warned the council not to talk about the adolescent drug treatment center because somehow it wasn't "on the agenda."

Supposedly the two bills will put the money where it belongs and everyone will live happily ever after.

According to the newspaper article the mayor's mouthpiece, Beth Tokioka, has seemingly blamed the council saying “(t)he imbalance was caused in part by errors in Mayor Bernard Carvalho Jr.’s March 15 initial and May 8 supplemental budget submission, which were not detected and addressed during the budget deliberation process.”

No one particularly wants anything to be perfectly clear because this is an election year and each councilmember's political ass is on the musical chairs line- one that's due to leave two people without seats when the music stops on November 6.

They're just lucky to have Azambuja on the job to make sure that the lack of any clarity and acumen at the meeting was reported with Leo's usual lack of grasp of the matter at hand.

Don't ya just love this town?

DID YOU KNOW OR NO, YA KNOW?

DID YOU KNOW OR NO, YA KNOW?: The more you know the less you know because as you come to know what you now know you also come to know what you don't know. The trick is to know now what you don't know now and what you didn't know then... ya know?

Didn't think so.

What we do know is that even a gallon of hot sauce isn't going to make our keyboard more palatable after our misguided ingestion pledge last week.

Civil Beat's (CB) robo-calling poll accurately predicted an astonishing 20+ point win by Tulsi Gabbard (54.0%) over Mufi Hannemann (33.6%) in the 2nd US Congressional District Democratic Primary, proving to be more accurate than the Honolulu Star-Advertiser "real live person" poll, which had Mufi up by10. The fact that the difference was apparently due to exceptionally low totals for Esther Kia`aina (5.7%) and Bob Marx (3.7%)- who had been predicted to come in closer to 10% each- doesn't make our esophagus any wider or teeth any sharper.

But the results may have had little or nothing to do with the polling method because in the US Senate race it was the reverse with CB predicting a virtual tie and the S-A prognosticating a 12% margin for Mazie Hirono who actually won by 17% over Ed Case.

Go figgah.

Another thing we we got wrong, albeit a year ago, was our support for the winner of this year's Corrupt Pol of the Year award, Kaua`i Councilmember KipuKai Kuali`i. Though he didn't actually win in 2010 he wound up being appointed to the council. But the worst part is that he finished in the money this Saturday with an appropriate 666 finish - 6th place with 6.6% of the vote.

We do know now what we didn't know then- that asking people to "plunk" for Kuali`i in 2010 joins our qwerty-chewing pledge as one of our more bone-headed moves because he's turned out to be a first-class hack who's traded in his political soul in support of Prosecuting Attorney Shaylene Iseri-Carvalho's prosecutorial crime spree.

He now blindly follows Iseri adherent, her boot-licker-in-chief Mel Rapozo. Together they lead the goose-stepping cadre that champions our favorite race-baiter, "Ms Shay it, don't spray it."

That support grew out Kipukai's apparent back room deal for the redirection of a Victim-Witness program grant from Iseri's office to Kualii`s employer at the YWCA.

It's become laughingly obvious to anyone who watches the council in action that Kipukai has now gone to the dark side. But not only did he trade various votes to allow Iseri to get away with a slew of shenanigans and outright unlawful activity, it has cost the county a hefty chunk of cash in the form of an EEOC settlement for the firing of Victim Witness Counselor Erin Wilson.

Wilson was succinctly described by Joan Conrow as "the single mom who moved here all the way from Colorado to work as a victim witness coordinator, only to be fired a couple of months into the job because there supposedly wasn't enough work."

Of course there wasn't enough work because Iseri shuffled the job over to the "Y" in exchange for Kipukai's undying support for Iseri in the slew of past, present and we presume, future Shay-related scandals.

We do know that, unbelievably enough, for now, Kuali`i finished 1/10% (102 votes) ahead of Gary Hooser and 2/10% (152 votes) ahead of Tim Bynum in Saturday's useless election.

What we don't know is how to make sure that by Nov. 6 everybody knows about Kualii's little pact.

HUNG UP?

HUNG UP?: Getting telephone polled (and everyone knows how painful that can be, as Steve Allen used to say) used to be a rare event. While some were annoyed at having to answer questions from a stranger at dinner time, more often "poll-ees" felt that it was so out of the ordinary that they might as well thoughtfully answer the "poll-ers'" questions.

But this year, with the ubiquitous use of the "robo-call"- those pre-recorded "push '1' if you plan to vote for candidate 'X'" calls- we knew it couldn't just be our imagination that the phone seems to ring with these things once a day and twice on Sunday.

We've actually answered at least a half a dozen of theses things this year and screened out another large handful- usually with an "egad, not again" attitude- more than the total number we've ever received over the years.

We'd gotten a strange feeling that these robo-calls- a term that some consider pejorative even though it's the common parlance for any pre-recorded call- were yielding bogus results for a long time, for many reasons.

But the absurdly counter-intuitive results of a "Civil Beat (CB)" poll yesterday that has Tulsi Gabbard taking a sudden and stunning 49%-29% lead over Mufi Hannemann in the 2nd U.S. Congressional District race, all but confirms our suspicions... especially coming, as it does, on the heels of a CB-reported tie a few weeks back and a 10 point lead by Hannemann in a "Hawai`i News Now/Star Advertiser HNN/SA" poll a week before.

Even with the respective "margins of error" a simply statistical explanation doesn't cut it. There has to be something else going on here.

And if our experiences, along with those of some of our Facebook "friends," is any indication it is the robo-calls themselves that provide an explanation.

First of all it appears that only those with a "land-line" have been robo-called. Those with cell phones need not apply. Some say that this discriminates against younger and poorer voters being included but no matter what demographic groups it favors, the results are going to be skewed one way or another.

It may be simply the annoyance factor that causes people to auto-hang-up on auto-calls.

We've developed a habit of doing just that. Whether it's the recent polling or other calls of late, as soon as it becomes apparent that the call is a recording, we hang up,`` having developed the attitude that if it's not important enough for them to call personally it's not important enough for us to answer.

Plus of course there is the modern phenomena of screening calls based on caller ID. This may vary with how busy one is at the moment but if we're busy in the kitchen and an unknown mainland number comes up, we're a whole lot less likely to answer it- and even less so if the caller's number and name are blocked.

We basically asked our Facebook "friends" if they had landlines or cells, how many calls they got and whether the calls were "live or Memorex" ("taped," for all you youngsters) as well as how the number of calls compared to past years.

What we found is that that we're not alone in our response to robo-calls or "touch-tone polling" as Civil Beat would prefer they be referred to. Here are some of the responses left on on our Facebook page (all "Sic"):

- I have been getting at least 3 to 4 a week on land line. I hang up or don't take calls but then they go to message and I still have to deal with them. Most of them come in early evening. They are from everywhere; local, state, fed.

- I think I've probably gotten about 3 in the last month. Not sure. I hang up as soon as I realize its a computer. Been getting a few voice mails asking me to vote for their candidate

-1) hangup on robo-calls, 2) Ask any live person who commissioned the poll, have yet to get an answer and hang-up, 3) if they tell me who commissioned the poll I throw flak at the pollster.

- I have had more survey calls than ever before. Maybe a total of six, four were robo calls. Two were definite push polls, maybe three. All calls were to a land line. Only screened one that I did not take, a repeat call from one surveyor I hung up on for being a push poll. One seemed pointed at prosecutor office, all others combined house and senate. One earlier included county council questions.

In response to that last one, probably because it wasn't clear, candidate for Prosecuting Attorney Justin Kollar responded, "Just so everyone knows, my campaign has done no robocalling. ZERO."

That concurs with a report from Joan Conrow- one that quite a few others have independently confirmed for us- that described what could only be called a "push poll" and seemed to be from Kollar's opponent, incumbent Shaylene Iseri Carvalho.

Our favorite questions from that Iseri push poll was "do you read the blogs?" quite obviously because she's in trouble if they do.

Oh, and here's one response we got via email,

I've had about the same experience you have Andy, though far more than a half dozen, with many calls being from out of the area and automated, a few were actual live interview calls. Some are obviously partisan, others I could not tell who was sponsoring them. I screened one caller, Bob Marx, as noted on my caller ID, and they called back 4 times within a couple of hours. They have all been on my land line, apparently gotten from the phone book. They are a nuisance.

But though this is a small sampling and of course is not a "scientific poll" it is significant in that everyone who responded did so with frustration- oh, all right call it anger- over robo-calls. Remember they don't seem to object to getting polling calls, just that they were the recorded type.

One factor we haven’t heard mentioned is the relative difficulty of the whole "touch tone call" phenomena. Although most of us are used to it by now, no one likes it. Humorists and comedians have had a field day with them for more than a decade now.

Arguably, once you get past the usual desire to talk to a live person- and the fact that that option either doesn't seem to be on the list or is the last one of 10 choices (and is never "0")- the worst part is trying to find the right button on these telephones that no longer have a separate receiver and number pad, but instead have the keypad right next to where you talk and listen so that you have to keep taking the phone away from your head to push the right button and bringing it back to your ear... until your arms (or ear) starts to fall off.

And boy are you in trouble if you didn't catch the first couple of selections of what has become a long, bewildering set of choices. Are you really going to have the machine read the selections again? Or are you more likely to just push any button just to get the thing over with?

And then there's the regular poll that turns into a push poll. Although there's been some argument- usually from the people who run them- that they aren't push polls for one double-talking reason or another, everyone knows them when they hear them.

And they've heard quite a few this year.

Our favorite was one where, five minutes in, the "caller" asks a series of questions beginning with "Would you be more or less likely to vote for Mufi if you knew that he" followed by some horrendous anecdotal tale of apparent avarice or corruption. One question included the words "Pearl Harbor" and "Senator Inouye" and if you weren’t paying close attention you might get the impression that Mufi was at the controls of a Japanese Zero honing in on the 442nd.

Another negative of robo-calls is the impatience factor with a long list of choices. You just know that 10 minutes into a call that had asked for "five minutes of your time" people are starting to push "1" or "2" just to make the process go faster, thinking they already have 10 minutes invested so they don't want to hang up now, they just want it to be over.

Whether these things we do make sense or not isn't important- it's simply what we do without really thinking about it.

Then of course there's the one where the choices change and they type of question remains the same. After a list of four or five questions with the same two possible answers, all of a sudden you realize there are now seven different choices and you just pushed "1" only because that was the one you had been pushing on similar questions.

But the big question here is, assuming that robo-calls give skewed data, why would it favor Tulsi over Mufi?

Well, let's look at those specifics.

Mufi is not exactly the kind of candidate that makes people excited about his candidacy. First of all he's a conservative candidate in what has been arguably described as "the most liberal district in the country." And he's running in a Democratic primary where he started with a big lead without any real progressive oppositions.

The Democratic base had been craving a candidate they could get excited about. Former Senate Majority Leader Gary Hooser apparently chose not to run for the post he ran for some years back and many suspect it was because of the daunting task of raising enough money to take on the presumed favorite, Hannemann. And he had name recognition after also running for lt. governor last year whereas Gabbard has never run for statewide office before, just state representative and Honolulu county council.

Enter Tulsi. Then enter lots of money- much of it from the mainland- to publicize her status as a "born-again lefty."

Even though anywhere else he'd be a Republican, Mufi's support has come from the Democratic "machine" who are supporting him as the "establishment" candidate. Many have been supporting him simply because of name recognition.

But as Gabbard started to raise money and get her name out there she negated much of that and now has become the "go to" candidate who, although they were probably going to vote for Mufi before, has now excited those who were looking for a "progressive alternative."

And make no mistake about it- the Democratic progressives have become excited having long "got over" her former radical right wing stance on marriage rights and other issues.

Those are the people who would be more likely to stay on the phone to get their "choice" registered with the thought that polls numbers create the bandwagon effect.

No one's getting "excited" over the prospect of Congressman Hannemann... except maybe for those who expect a federal contract from the well "know pay-to-play" pol.

And don't forget about the "Mufi haters." Hannemann has tremendous negatives with high "dislike" numbers that he's generated over the years. He's been characterized, if not caricatured, as having a "bullying" style and has been accused of negative- even allegedly racist- campaigning, most recently in his run for governor where he lost to Neil Abercrombie two years ago.

Not too many Mufi Mavens are going to stay on the phone through a robo-call to register their support for him. As a matter of fact, we'd venture to say most of his supporters think it's "in the bag" already- don't forget, this poll wasn't out at the time.

All that could lead to a situation where those most likely to stay through a recorded call- even though they hate robo-calls- would be Gabbard supporters whereas the least likely would be Hannemann supporters.

And for what it's worth, it's a lot easier to hang up on a recording than a person, especially in the "Aloha State" so there's a natural skewing at the most basic level.

We really feel sorry for our friend Mike Levine whose job at Civil Beat was to try to explain how such an anomaly could possibly be valid. He actually did a good job of it and you come away thinking "well, it could happen."

But, upon reflection, no- it couldn't happen. A 30 point difference in two almost simultaneous polls cannot be reasoned away even with the old standby of "it's just snapshot."

When you look at the difference between the HNN/SA and CB polls, the main thing- maybe the only thing- that sticks out is the method of gathering the information. And if it's the method that's in question and one candidate is roundly not just disliked but actively hated then, as most critical thinkers and rational people will tell you, the likely answer is going to be the correct one- that something is kapakahi with the robo-call methodology.

If Tulsi Gabbard beats Mufi Hannemann by 20 points this Saturday we'll eat this keyboard. Because it would be easier to ingest a pound of plastic and metal than it would to swallow the validity of these robo-calls.

DEEP LACK OF BACKGROUND

DEEP LACK OF BACKGROUND: We've learned through painful experience that rock bottom is a place that doesn't exist- there's always a longer and sharper drill bit in the pit.

So it's really no surprise that after more than a dozen regimes at the local newspaper over the past three decades- each, with brief respites of competency, worse than the last- the level of professionalism has plumbed new depths.

The general slipshod nature of the news-less wonder has irritated and generally disgusted residents island-wide. But many- notably us- have saved their ultimate wrath for the alleged skills of alleged reporter Leo Azambuja, whose biggest point of confusion is apparently whether he should bend over or get down on his knees in his dealings with elected officials.

But until now we never had any unpublished insight into what kind of warped thinking goes into the utter lack of accountability that Leo has made his hallmark.

Now, in a series of emails between Azambuja and Prosecuting Attorney Shaylene Iseri-Carvalho obtained by reporter Joan Conrow, Azambuja demonstrates his main concern- not informing the public but kissing up to those he covers.

Through a process she describes as tantamount to "pulling impacted wisdom teeth", Conrow requested and finally recently received some heavily redacted emails she had requested from Iseri's office regarding the testimony before the county council of former Victim-Witness counselor Erin Wilson who, according to Conrow, has won an EEOC case after being fired by Iseri.

But the Azambuja emails were not among those released and rather were obtained by Conrow through a "leak" after Iseri refused to include them in a packet.

Conrow's work on the various and sundry scandals in Iseri's office during our recent health challenges has been nothing short of essential to a community in which Azambuja's reporting has been all but non-existent.

We aren't going to go into the whole sordid tale of "Victim-Witness-Gate" here today. You can read some of our earlier coverage here
and here.

Our tale today goes back to January 10, 2012, when Wilson brought a series of charges against Iseri to the attention of the Kaua`i County Council in a letter that is part of the packet released by Iseri's office (last document in pdf).

Azambuja, and therefore the local paper, had been silent on most of Iseri's alleged misdeeds in the matter until January 14, 2012, when an article finally appeared under the headline of "Former Victim counselor fires at OPA."

Azambuja's article essentially briefly quotes Wilson's charges one by one and then quotes Iseri's extensive and detailed answers. But instead of informing readers that Iseri's response was in an email, Azambuja referred to Iseri's responses using the term "she said" over and over, never even mentioning the fact that the responses had been in writing.

That type of thing is considered a major ethical violation these days by the top news outlets like Associated Press and the NY Times. Readers should be informed and certainly should not be lied to as to the form of a response from a news subject.

But content of the leaked email shows even bigger lapses of ethical judgment on Azambuja's part.

It was apparent that Iseri's responses had been in writing and so, apparently, Wilson asked Azambuja for Iseri's full letter.

What Azambuja did next perhaps explains why no one would mistake Azambuja for a trained professional journalist.

Here's the bizarre exchange between Azambuja and Iseri. Astoundingly Azambuja tells Iseri that rather than being considered the subject of his article he was treating her as a "source" and that as such, Iseri's letter is "protected" material... and then he actually asks her if it is okay to give the letter to Wilson.

1) From Azambuja to Iseri:

Re: response to erin wilson (sic) letter Hi Shay

I got a call from Erin Wilson today and she wanted a copy of your response. I explained to her that I'm not sure if it's a public document. Her testimony was a public document but your response is just a answer sent to me through an email. I told her I would act the same if the situation was reversed out of ethics and respect. She insisted she wanted a copy so I said I told her I would ask you for permission.

No one else has seen it and no one will without your authorization. That's how reporters should treat their sources no matter who they are.

But since I told her I would ask you here goes her request.

Do you authorize me to send Eric Wilson a copy of your email

Aloha, Leo

2) From Iseri to Azambuja:

No.

Shay

3) From Azambuja to Iseri:

Ha, not a problem Shay,

See you tomorrow at council.

Aloha,

Leo

4) From Iseri to Azambuja

Thanks for the sense of humor :-)

Shay

Iseri's response certainly was a pubic document. There are no exceptions for communications with reporters in HRS 92F 13-14. Emails to constituents are virtually always public.

But the real head-shaker here is that Azambuja treats her like a "source" when what she was was the "subject" of the story. This demonstrates an amazing lack of journalistic integrity showing a basic lack of understanding of the source-reporter and subject-reporter relationships.

Azambuja's contention to Iseri that "(Wilson's) testimony was a public document but your response is just a answer sent to me through an email" shows how little understanding he has, not just of journalistic ethics but of the state's open records laws.

Anything written by a government official that pertains to their work is a public document, with some exemptions for things like privacy, working drafts and personnel matters. The fact that a reporter who covers "government beat" lack that basic understanding of a law that is an integral part of his work may go a long way toward explaining the utter lack of substance of much of Azambuja's reporting.

As a matter of fact parenthetically we can't remember ever seeing Azambuja write about making an official record request whereas his predecessor in the job created a whole section at the paper's web site regarding "freedom of information" type requests. The last entry there is by that reporter, Michael Levine, who now works at CivilBeat.com

Next Azambuja wrote "I told (Wilson) I would act the same if the situation was reversed out of ethics and respect... No one else has seen it and no one will without your authorization. That's how reporters should treat their sources no matter who they are."

Ethics? Respect? Azambuja is so devoid of ethics it's hard to know where to begin. If Leo can't tell the difference between a public document and an off-the-record remark by a source he ought not be in the profession.

In asking Iseri whether it was okay to release her response- instead of just publishing it like any journalist would normally do- he has given up control of his reporting to someone who obviously has something to hide since she refused to release the rest.

Of course, many times a reporter will have a source-reporter relationship with people he or she covers. But according to well established ethical standards it must always be with the clear understanding that when asked for an on-the-record response that person is not to be treated as a source who can go back later and say "no- you can't use what I gave you 'on the record.'"

But regardless of whether Iseri occasionally acts as a source for Azambuja he is giving up his control over the news coverage he presents. A reporter should never take a written on-the-record response and then give the subject a chance to change or refuse to release it.

Given the email exchange, the "lie" to the readers as to the written nature of Iseri's response takes on an even bigger importance. It makes one wonder whether and how this chummy relationship has influenced Azambuja's coverage in the past.

Since there is no editor at the paper there is no one to take an objective look at Azambuja's relationships with those government officials he covers. That's one of the big functions of an editor- making sure that news isn't being manipulated by the source and that any source-reporter relationship primarily benefits the reporter, the paper and the reader, not the source.

Of course unpublished materials are the possession of the reporter, and under the Hawai`i "Reporters' Shield Law," for purposes of court proceeding, many reporters will withhold their unpublished notes. Reporters should not be seen as an arm of the constabulary.

But that isn't the situation here because there isn't any "source" to protect. Azambuja has lied to his readers and then, continuing the lie, withholds materials that any reporter would be more than glad to share under just about any circumstances. While in "ink and paper" news outlets space may be a factor in publishing a document such as Iseri's reply to Wilson's allegations, on-line publications routinely post full resource documents along with an article from which quotes are extracted.

It's apparent that Azambuja lied so that he wouldn't have to release Iseri's letter due to his self-delusional, mistaken impression that she was a source, not the subject of the story.

No reporter worth a damn would even consider withholding the Iseri letter. But in the schmoozy, "please like me" world of Azambuja, relationships with elected officials (especially, as we've reported in the past, with Council Chair Jay Furfaro who has all but led Leo around by a ring though his nose) is what seems to count. As a matter of fact it appears to be the determining factor in what news the island receives regarding government and politics.

This would be a fireable offense in any legitimate news organization. With the key words here being "legitimate news organization," don't expect anything to change any time soon at the local Kaua`i newspaper.

PROCESS OF ELUCIDATION

PROCESS OF ELUCIDATION: One of the more absurd of Yogi Berra's non-sequiturs was that "nobody goes there any more- it's too crowded."

When it comes the field of "acceptable" candidates in this year's elections the ballot is anything but crowded. That's the case up and down the ticket on Kaua`i but it's exemplified by the County Council election where a record low nine people are running for seven seats.

The key word there is "acceptable" because the way democracy has combined with capitalism in America we've managed to define "acceptable" as "corporate-funded, duopoly selected."

But that has little or nothing to do with the reason why Hawai`i in particular is at or near the bottom of the list in voter turnout. This week a six-part series by blogger/journalist Ian Lind in Civil Beat tried to explain why through statistical gymnastics that, while we're sure are true, seemed anything but insightful.

One thing missing in Lind's report is the "sun and surf" factor.

Stay with us. Hawai`i is the home of the tourism-industry crummy jobs that cause all members of the family to work at least two close-to-minimum-wage jobs apiece. With the cost of living higher than other places in the US, people just don't have time to pay attention to politics and certainly want to spend their leisure time doing something other than figuring out who to vote for.

Even though we political junkies don't see the logic in that, it makes more sense when you add in that "immigrants" don't exactly flock here to get involved in politics, which also goes for those born and raised here who have usually chosen to "stay home" after they finish school.

Most people are here one way or another because they can surf, hike, snorkel, fish and do all the things that make living in the islands unique. If anything, they came here- or stay here- because they are actually running away from places obsessed with politics and the like.

Then of course there are also those who aren't particularly interested in participating in what they see as the central activity that an "occupying nation" uses to justify their military control and "make the world safe for democracy." Though it's not a vast number who think that way, it's more than most people think.

But if you really want to know why few among the remaining are voting it may be the simplest reason of all: there's "no one" running.

Why vote when all the Democrats and Republicans are greedy power mongers who are all, in one way or another, on the take?

While there are exceptions that prove the rule like Mina Morita or Gary Hooser (who, maybe not so coincidentally, are both currently out of office although Hooser is seeking to return to the county council) it's been like pulling proverbial teeth to get people to run for office these days.

We just spent a year and a half recruiting candidates and didn’t find a one. We even lost a couple at the last second.

We approached almost every "community activist" we know, even some we disagree with because we knew that at least they fight for things they actually believe in. And every one said "thanks but no thanks," some adding "why in the hell would I want to do that?"

Indeed running for office is a daunting proposition. Just the prospect of having to ask people for money makes many back off. The idea of spending every spare moment for a year going door to door, attending every gathering and being subjected to more scrutiny than a prize pig at an auction is not one that makes one's heart go pitter-patter.

Surprisingly many say that actually serving- crafting legislation, guiding it through, going to meetings and all that intriguing stuff- is what they want to avoid because they'd have to deal with all the a-holes in office who, for the most part, actually enjoy all the back-stabbing political gamesmanship that got them into office and keeps them there.

Can you imagine having to sit there with Mel Rapozo or Dickie Chang- and not just sit there at a meeting but actually negotiate with and schmooze them? Are you going to listen to Jay Furfaro go on endlessly about his delusions of success or try to figure out why Kipukai Kuali`i would be aligning himself with Rapozo and the Queen of Spleen, Prosecutor Shaylene Iseri-Carvalho- and then actually come up with equally sinister plans to oppose their evil schemes?

What fun. Who'd wanna go surfing when you can listen to a three hour report on some incomprehensible, unattainable, feel-good plan to spend a million bucks to spruce up the county building parking lot?

So there you have it- an electorate that's already got better things to do and actually came or stayed here to get away from the backstabbing political culture on the mainland. And if they do take a look at the local political culture they see nothing but a bunch of moronic and vicious bozos appealing to what's left of the electorate. And those that do vote do so on the basis of who went to school with whom and whether they attend the same church... or cock fight.

And it's only getting worse. Don't forget the last mayoral election where the only one to run against a punch-drunk, concussion-syndrome-addled, ex-football player was a well-meaning too-smart-for-the-job, haole lady who'd lived here all of ten minutes. And this year, even with the criminally insane, moist-Malaprop-spewing Iseri running for prosecuting attorney against what appears to be a smart, honest and upstanding progressive apparently actually interested in serving justice (imagine that), it's still a race too close to call because she grew up here and he didn't.

It doesn't get any better with our choices for US congress where unlike the Kaua`i state legislative contest, there is one. For the U.S. house it's a war-obsessed vet who has gotten non-religion and is suddenly bigoted-no-more, running against a slimy pay-for-play veteran who has as much substance as dark matter. And for senate it's a pseudo-progressive against a pseudo-Democrat in the primaries and the winner gets to take on the Stepford Wife, chameleon ex-governor who has the unique talent for speaking out of all three sides of her mouth.

Those are our choices? Well actually not. Because even though we have convinced ourselves that we can only vote for one of them, there are others on the ballot, many of whom aren't corrupt caricatures of public servants. It's just that we've convinced ourselves we're not allowed to vote for them.

The fact is that people believe in the cockamamie "two party system" that has created a fraudulent scheme where legalized bribery is compulsory, corporate billionaires do the bribing and everyone is too intimidated to vote for the candidate they actually like because no one else will.

Maybe Yogi had it right: there's nobody running- the field is too crowded. In other words, why would you vote for Green Party presidential candidate Jill Stein? She's too popular.

YOUR WRONG TO VOTE

YOUR WRONG TO VOTE: Age has benefits. The "been there done that" factor can halve research time.

Unfortunately when combined with an inevitable senior moment it can lead to misinformation. That's what led us to wrongly tell our readers that the race for prosecuting attorney would be decided on August 11 because only two people are running and one, by definition, is bound to get "50% plus 1."

That's how it has been in every election for prosecuting attorney (PA) on Kaua`i. But now for the first time a charter amendment that was passed by voters in 2008 will take effect for the PA election. And of course, being Kaua`i, it is required that something about it be absurd so the provision essentially says that even though there are only two candidates they will appear on "the first nonpartisan election" ballot for no particular reason other than that is the way the provision was written.

The impetus for the amendment was the 2006 election where, in what is commonly called the "primary" election, then-Mayor Bryan Baptiste ran for reelection and got 50% plus exactly four votes, beating out four opponents in what turned out to be the closest election in Kaua`i history.

It's understandable that with five candidates people just didn't show up for the primaries thinking no one would get the "50% plus 1" needed to be elected outright, without the top two going on to the November election.

They felt cheated when Baptiste got 8,173 votes and chief challenger, former Councilmember Jesse Fukushima came in with 4,725 votes, because when the other three- John Hoff, Bruce Pleas and Janee Taylor- got 1,984, 1,083 and 377 respectively it added up to 8169 votes for the others... four votes shy of the amount that would have prompted a November showdown between Baptiste and Fukushima.

It seemed like a no-brainer- change the charter so that no matter what the vote totals were,d the top two finishers in the primary would meet in November.

So the attorneys (some hired specifically to make sure the amendment did what the charter review commission wanted it to do) worded the amendment this way:

Article I The County And Its Government
Section 1.03. County Elections.
(C)1. Offices of the Mayor, Prosecuting Attorney and Council members to be elected by districts, if any. In the case of the offices of mayor, prosecuting attorney, or any council members to be elected by districts, the names of the two candidates receiving the highest number of votes for these offices in the first nonpartisan election shall be placed on the ballot for the second nonpartisan election. However, if there is only one candidate for each of said offices, such candidate shall be elected. (Amended 2008)

There's one problem with that. It works fine when there are three or more candidates because no matter what "the names of the two candidates receiving the highest number of votes" go on to November.

But the current charter failed to recognize what would happen if there are only two candidates. There are two choices on what the new law could and should do in that case. It could declare that the election- the one that actually elects the candidate- be held during "the first nonpartisan election," unless there is an actual tie- exactly 50% for each in which case they'd go on to November. Or the names could be left off the "primary" ballot- since it's just a waste of paper and ink since it won't determine anything anyway- and let the actual election to be held in November.

But, this being Kaua`i, a third choice was selected and now, for no particular reason, the two candidates for PA- incumbent Shaylene Iseri-Carvalho and challenger Deputy County Attorney Justin Kollar- will appear on the ballot in both August and September.

Which means that there are no meaningful Kaua`i-only, non-partisan races whatsoever on the ballot in August. Although there are partisan Democratic primary elections for US senate and house of representatives, the races for council and prosecuting attorney will appear on the ballot even though the results are moot and all will go on to November.

The same will be true for any future mayoral election and for council races if districting is ever implemented.

Kaua`i has always been "A Separate Kingdom" and, when it comes to writing our laws, a separate reality too.

PLENTY OF NOTHIN'

PLENTY OF NOTHIN': It's gonna be the best of elections. It's gonna be the worst of elections.

Yes it's a dickens o' pickin's and a tale all too sh*tty when it comes to the most dismal number of candidates for the seven seats on the the Kaua`i County Council in memory. Yet on the plus side the enumeration of only nine names includes Gary Hooser, a politician who makes us reluctant to use the term to describe Gary since it's usually reserved for corrupt cronies and despicable despots.

Hooser, who started his public service career on the council from 1998-2002 before becoming the Kauai's State Senator from 2002-2010, is returning to his roots. His presence will no doubt bring the level of council discourse and accomplishment, if not to the highest rung of the ladder of good governance, a least out of the existing swirling sewer of percolating pestilence.

The problem is that the rest of the list is made up of the same old seven incumbent-hacks we've grown to, in some cases loath, in others tolerate, plus local and UH baseball hero, Ross Kagawa, who has two chances- the proverbial slim and none, with slim nursing a terminal illness.

So we're down to a proverbial game of musical chairs and the only reason to vote in the election- the one in November that is because all will get past the August 11 "primary"- is to see who gets dumped when Hooser is inevitably added.

While we are tempted to just "plunk" for Gary (a term for not using all seven votes and simply "plunking" down only the names of those who one truly likes) and may do so in November, for now we will list the rest of those running based on exactly how much of a worthless piece of crap each one is and why.

So for all you dumpers out there (and if you're not one, please register now) here's our list of dumpees in order of dump-worthiness.

1) Dickie Chang. This is probably the hardest choice- whether to make our good friend Dickie our least favorite or save that honor for Mel Rapozo. It's like trying to decide whether you like the guy who is repeatedly plunging a knife in your back or prefer the guy who is standing there watching, trying to decide when and whether to either encourage the stabber or condemn him... although it would certainly never occur to him too stop him.

Dickie is the proverbial man who, like former State Rep Ezra Kanoho for whom the phrase was created, "never met a hotel he didn't like." Dickie's penchant for lap-dog behavior- usually in the service of Chair Jay Furfaro- is infamous and when he does take a stand it is clearly taken with clay feet planted firmly on both sides of the fence. The one thing we can say about Dickie is that this is exactly what we expected from him. That of course makes-

2) Mel Rapozo the next one to not vote for. Mel manages to play politics with the simplest of no-brainers, using his unique blend of bamboozical logic and contortionistic, convoluted unreasoning as his moral compass- a compass that continually points in one direction... toward Mel. Perhaps the most emblematic representation of this bit of Kabuki is his recent attempt to change the charter because he didn't like an opinion from County Attorney Al Castillo’s office regarding the legal use of the word "shall." Rapozo didn't like what Castillo told him the law said and what the courts have consistently ruled on the matter, so he first tried to get his cohorts to hire Mel's own personal choice of outside lawyer to tell him what he wanted the law to say. When that failed he unsuccessfully tried to garner enough votes to put the matter before the electorate even though if it did pass it would be moot from the day it was enacted because it doesn't matter what our charter says when the state courts have already ruled on the matter.

Rapozo's "are-you-going-to-believe-me-or-your-lyin'-eyes" defense of Prosecuting Attorney Shaylene Iseri-Carvalho as she "took the fifth" and demanded a private attorney to represent her rather than openly discuss her budget with the council- has known no bounds, making for some fascinatingly fractured farces... quintessential Rapozo.

That brings us to the aforementioned "larger than life" (both girth-wise and in his own mind-wise) current Chair-

3) Jay Furfaro. Furfaro managed to eek out a 4-3 vote for chair last election, something that he may not be able to do with Hooser on the council. More on that later.

Furfaro is a throwback to the old style Hawai`i "orator" whose chest-thumping, credit-taking, egotistical style of expression is endlessly enigmatic to watch especially as lunch and sometimes dinner breaks are approaching. As the clock ticks toward noon it invariably throws him into incoherent ramblings and rushed decision making, commensurate with the decibel level of his stomach growling. To be fair, he is diabetic but his munching-vs-governing meter is out of whack even for someone who has "the sugar." Speaking of sweetness, the next on our bottoms-up itemizing is someone who turned out to be NutraSweet. That would be-

4) Kipukai Kuali`i. Kipukai was appointed after current State Representative and then Councilmember Derek Kawakami was appointed to fill Mina Morita's spot when she was appointed to be the head the Public Utilities Commission. People expected a lot from his "win" of 2010's post-election version of musical chairs and got virtually nothing. He has turned out to be simply a little less of a political animal than Rapozo and seems quite content to learn more at Mel's feet. Although he has gone after some of the more absurd council appropriations- when they suit his political bent- the last straw was his unshakable support for Iseri after she fired the Victim/Witness Counselors in her office. That eliminated the long-time county positions and instead she contracted out the duties to (drum roll please) Kualii's employer, the YWCA, ensuring his support before the council. He not only sold his political soul but he then refused to recuse himself from participating in the council's deliberations regarding Iseri. And speaking of disappointments there's-

5) Nadine Nakamura, although in her case disappointment may be a bit strong because we never expected any more than we got. The would be a politically malleable councilmember who doesn't seem to have a position on anything other than compromise, even when one of the options is at best unpalatable, at worst patently absurd. Her prime directive for the past two years has apparently been to take good legislation and introduce difficult-to-reject amendments that make the original unacceptable, even in cases when the votes are there for passage. Even if she did govern from a progressive viewpoint no one would know it because her experience as a facilitator and mediator have made her into a gutless wonder who makes one question whether there is any substance there at all. And speaking of substance there's-

6) Tim Bynum. Some would have him positioned at the bottom of this list for his effort to allow transient vacation rentals (TVRs) on Ag land, not to mention his previous work to allow them to be grandfathered on all otherwise zoned land. We can hardly ignore that and other positions he's taken. On the other hand he was, with then Councilmember Lani Kawahara, primarily responsible for the plastic bag ban and also successfully took on then Council Chair Kaipo Asing over open governance issues. What we can say is that at least they have apparently been taken because he believes in whatever he has supported. But if for no other reason than his persecution-prosecution by political enemy Iseri in the Ricecooker-gate scandal- an abuse of power on her part that we hope will end in November with the election of Justin Kollar (more on that race in a future post)- we have positioned him among the keepers this time. He could have folded but his persistence has unveiled alleged criminal activity on Iseri's part. All that pretty much also goes for-

7) JoAnn Yukimura. It's not that our disappointment with JoAnn has diminished to a level where we enthusiastically rate her the numero uno councilmember- although she has done some really good stuff recently.* But she also went along with Bynum on the Ag TVR issue and was the prime mover behind the grandfathering efforts, preferring to knuckle under to big money developers rather than go to court to enforce the laws apparently forbidding them.

We've questioned the consistency of those we have spoken to who were dead set against supporting Bynum due to the TVR debacle but were equally as supportive of Yukimura. We've simply asked them how they can condemn Bynum on that issue without doing the same for JoAnn.

All we can say is that is, on balance- and especially given the reality of the fact that six of the seven are going to be on the council whether we like it or not- we are forced to rate Bynum and Yukimura as "plunkworthy," to coin a term.

That leaves only one issue to be decided in November when it comes to the council race- the question of council leadership, which hangs in the balance.

After the 2010 election Yukimura challenged Furfaro for chair. Furfaro had Chang's, Rapozo's and, at the time, Kawakami's votes leaving Yukimura with Bynum's and Nakamura's.

In order to wrest control of the chair- assuming either Yukimura or possibly Hooser will challenge Furfaro and that Nakamura will maintain her vote for Yukimura- the addition of Hooser makes a change in the chair a distinct possibility. That also assumes that the odd-man-out is either Chang, Rapozo or Kuali`i. We can't be sure of Kualii's vote but suspect he is politically indebted to Furfaro after Furfaro gave procedural support to Kuali`i and Rapozo during some of the budget hearings regarding Iseri.

If the election were held tomorrow in addition to being shocked, surprised and totally taken aback, we would be forced to plunk for Hooser, Yukimura, Bynum and Nakamura since leadership is the only issue to be decided. But equally as important is NOT to vote for Chang, Rapozo, Furfaro or Kuali`i.

The August primary will tell us something about the strength of each candidate- it has always been like a super-accurate poll since 14 candidates usually get though to the November vote. In this case although all - and only- nine will make it through, we'll certainly know more about the strength of each by August 12.

One thing is all but certain- this mess of a council will make it through this year's election with six or seven intact. And while it gives us plenty to froth and foam about, any plans we've had to be a kinder and gentler rabid reporter may well end up, shall we say, going to the dogs.

*Correction: It was Tim Bynum who, along with Lani Kawahara, was primarily responsible for the single use plastic bag "ban," not, as we originally said JoAnn Yukimura who was not on the council at the time the bill passed. The original on line version has been corrected. We regret the error

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We are heartsick over the loss of Rose Schlegel, the daughter of our good friends Sherry and Jim (Pole) Pollock, who lost her life in an apparent freak accident in Kalalau Valley Wednesday. It is horrendous to lose any loved one but to lose a child, even one aged 30, is unimaginably tragic and their pain and sorrow must be unbearable. Please keep them in your thoughts and, if appropriate, prayers. It makes one wonder how such bad things can happen to such good people while selfish and mean people go unscathed. Don't forget to hug your loved ones, especially your keiki, today and every day. Life is fragile, seemingly especially for the righteous. We love you Sherry and Pole and will hold Rose in our thoughts forever.