FOOL ME TWICE I’LL BITE YOUR HEAD OFF: Yesterday, in wondering what the heck the council was doing meeting behind closed doors in order to discuss the public policy regarding what we called “implementation” of the citizens’ petitioned charter amendment to enforce the general plan’s growth parameters, we noted that the notice for the June 16 meeting read:
(T)he purpose of this executive session is to consult with the Council’s attorney regarding the charter amendments adopted in the 2008 General Election and other related matters.
In addition we noted that $150,000 had been appropriated and approved to hire a special outside attorney for whatever they were doing.
We stand corrected- the amount is actually $220,000 according to Councilmember Tim Bynum who had complained publicly before the executive session (ES) on Tuesday that he was dissatisfied with the “work product” so far especially for the money they were spending.
And that got us to thinking- always a dangerous proposition.
It led us to wonder why we had characterized the ES as relating to “implementation” of the amendment and presume it was to conduct public policy.
We had seen them do it so often in the past we had to assume, illegal or not, they were doing it again. And when you assume, as the saying goes, you make an ass(of)u(and)me.
So after a little searching we discovered that the term “implement” was never used in the notices for the two previous ES’s on the subject since the ballot measure passed last November.
Our bad-, although we could have sworn the previous notices contained the word it was most likely referred to that way during the meeting and/or in various interviews we conducted while trying to find out why the planning department was continuing to process permitting for visitor accommodations... even though a search of our notes turns up a blank.
The amendment plainly banned the department from doing this and requires the council to do the permitting until they pass legislation forcing the department to enforce the growth limits stated in the general plan.
The working of the amendment raises all sorts of questions as to how this all would work, as we detailed both before and after the election in describing it as a “monkey wrench” provision which we opposed at first but later endorsed fully since the council didn’t seem to be doing anything about out of control growth and this would force them to deal with it.
One thing we didn’t report yesterday was that actually the previous council had met in ES prior to the election and appropriated some of the $220,000- presumably $145,000- for special council at that time according to statements made by Bynum at Tuesday’s meeting.
The other $75,000 was appropriated on June 10 at a “special” council meeting where the appropriation and an ES regarding the matter were the only thing on the agenda other than a routine approval of a state grant.
Questions about why the planning department is still processing zoning permits for visitor accommodation aside, as complicated as it might seem, why would it take six months and $220,000 to figure out how to write the bill to return the permitting power to the Planning Department by restricting growth numbers to those in the general plan?
Councilperson Jay Furfaro, saying the amendment took effect 50 days after the election, also said during the discussion preceding the ES that “some departments are having applicants sign affidavits” when filing for permits but did not elaborate as to which departments and what they signed.
The only possible answer is that, although the agenda notices are carefully worded to avoid saying so, the council is gearing up to file suit to block implementation of the amendment.
Here the what the notice for the January 14. 2009 ES said
(T)he purpose of this executive session is to provide the Council a briefing on the legal ramifications and/or requirements and/or claims and/or potential claims relating to charter amendments adopted in the 2008 general election and other related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to legal ramifications and/or requirements and/or claims and/or potential claims relating to this agenda item.
That should have alerted us to the what was happening but at the time many thought that the wording was just there so they could have a plausible excuse to meet in executive session and hold a discussion of public policy behind closed doors by saying there could be “potential claims” involved.
After all, that was the excuse used last summer when similar closed door discussions of the bill permitting then-illegal vacation rental in residential areas were conducted outside the public purview
Later, on the June 10 agenda it had morphed to say:
(T)he purpose of this executive session is to provide the Council a briefing on the Charter amendments adopted in the 2008 General Election and other related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to legal ramifications and/or requirements and/or claims and/or potential claims relating to this agenda item.
Although the change is subtle it makes it actually further disguises an intent to block implantation and confirm the scuttlebutt that the council was meeting in ES to discuss public policy rather than legal matters.
Misdirection accomplished, both here and among the supporters some of whom told us they were anticipating the council implementing the provision.
Of course that was fine with the council assuming they are trying to get a leg up by filing suit before anyone realizes they are meeting to stop the amendment from taking effect rather than figuring out how to make it work.
The last time they successfully tried to block a citizens' petitioned charter amendment- the so called “`Ohana” amendment to restrict property taxes- they announced their intention and the proponents were ready with a California property rights law firm at the pro bono ready.
Fool them once.....
It should be noted that we have absolutely no direct knowledge that this is the case but this would certainly explain a lot.
That said, one possibly telling statement came from Councilperson Lani Kawahara who, despite an attempt by Castillo to stop any discussion in open session said “I want to assure the public that my main goal is to enact the amendment... aligning our growth with the general plan”.
Also, Bynum in fact did use the word “implementation and other aspects” at one point in referring to the goal of hiring the outside consultant and holding the ES.
It would apparently behoove those who worked so hard to throw this monkey wrench into planning commission and department’s rubber-stamping “dumb growth” program, to gear up for a fight or perhaps file for their own injunction to block zoning permits from being issued before the council files one to block the whole shebang.
Forewarned is forearmed.
Friday, June 19, 2009
Thursday, June 18, 2009
SAME OLD DOG, SAME OLD TRICK:
SAME OLD DOG, SAME OLD TRICK: Many in the community are finally opening their eyes to the abuses of open government principles involved in a quest by the two dissident councilperson’s of late.
But if they are shocked at how both the public and even some of those they elected are given the mushroom treatment, while we’ve got their attention all we can do is quote Al Jolson- “you ain’t seen nothing yet”.
The matters that Tim Bynum and Lani Kawahara forced onto a future council agenda on Tuesday are but minor “first steps” toward cleaning up at least seven years of a concerted effort by Council Chair Kaipo Asing to evade, flout and pervert the Sunshine Law in order to avoid public scrutiny in matters of public affairs.
Bynum has complained bitterly in the past about one of the main vehicles for hiding what the council is doing- the “secret” official county attorney (CA) pubic policy opinions. That issue as received notice not just here but in the local newspaper and those that follow council doings are all too familiar with the practice.
It reeks of Star Chamber methodology whereby the council tells the public the council is compelled to do something baffling because they have a county attorney’s opinion... an opinion that they “can’t” reveal.
But although related, far worse is the practice of meeting in executive session (ES) to discuss prospective legislation and even bills that are on the table.
Just this past week the council met in secret by saying
(T)he purpose of this executive session is to consult with the Council’s attorney regarding the charter amendments adopted in the 2008 General Election and other related matters.
Pretty outrageous, eh? And this isn’t the first time.
These ES’s, as revealed for the first time this past Tuesday, are ostensibly to discuss the implementation of the “General Plan” charter amendment passed this past November- a matter of public policy if there ever was one.
You would think the drafters of the amendment who worked so hard to pass it would be up in arms. But you’d be wrong because not one has objected at any of the ES’s.
You would also think that this practice would be forbidden. In fact the very first provision of the Sunshine Law, §92-1 Declaration Of Policy And Intent, reads, in part
Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible. To implement this policy the legislature declares that:
(1) It is the intent of this part to protect the people's right to know;
(2) The provisions requiring open meetings shall be liberally construed; and
(3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.
There are of course legitimate reasons for holding closed meeting- lawsuits, personnel matters and the like. They’re addressed in 8 exceptions in §92-5(a)
But one of those exceptions, #4, contains a provision that has been abused so as to obliterate any pretense of following these principles, It reads:
§92-5 A board may hold a meeting closed to the public pursuant to section 92-4 for one or more of the following purposes:...
(4) To consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities.
Now obviously this is supposed to be read along with the principles and the rest of the law. If it weren’t then as long as “the board’s attorney” is in the room and speaks and they discuss “the board's powers, duties, privileges, immunities, and liabilities”- which covers just about everything the council does, including pubic policy- all meetings could be conducted behind closed doors in their entirety.
Despite the absurd result of interpreting the law this way, that is just what the county started to do gradually when Mayor Bryan Baptiste appointed County Attorney Lani Nakazawa who developed both the “secret opinion” and the principle that allowed 92-5(a)4 to be interpreted to cover anything she said it did- especially any possible “future litigation” as well as holding that the council’s “powers, duties and privileges” include discussing and drafting legislation... the very thing that’s supposed to be done in public.
But isn’t there an Office of Information Practices (OIP) to make sure this doesn’t happen?
You would think so, at least in theory. But in actuality what has happened is that any complaint, if it’s accepted by OIP and gets that far, is subject to what’s called an “in camera” review whereby the OIP can look at the ES minutes and decide if they are to be released.
And that’s exactly what happened in January of 2003 when, in the infamous “ES-177”, new councilmember Mel Rapozo apparently went ballistic and attacked the Kaua`i Police Department as the first volley in his campaign to remove newly appointed Chief KC Lum.
The OIP asked for the minutes, examined them and ordered them released. But the county then sued OIP and years later Circuit Court Judge Kathleen Wantanabe- a former Kaua`i deputy county attorney- ruled that the releasable parts of the minutes were “inexorably intertwined” with the legitimately discussed items and so nothing could be released.
At the time OIP was headed by a real open government crusader, director Les Kondo who was willing to go to the hilt to defend the Sunshine Law. But by the time the case came up the OIP had a new director though an appeal was promised its status is apparently “on hold”.
The council, under the tutelage of Asing, Nakazawa and the next CA Matthew Pyun, used this as a signal that they could pretty much allow the council to meet in ES on any subject they desired with impunity, including pending legislation as happened over and over during the contentious “Transient Vacation Rental Bill” passed last summer as well as with other matters.
It should be noted that the “charter amendment” ES’s have been held with unanimous votes, including Bynum’s and Kawahara’s. Bynum did on Tuesday protest the immense amount of money spent on “outside counsel” so far (up to $150,000) without what he characterized as a sufficient work product before being cut off by new County Attorney Al Castillo.
But if they are shocked at how both the public and even some of those they elected are given the mushroom treatment, while we’ve got their attention all we can do is quote Al Jolson- “you ain’t seen nothing yet”.
The matters that Tim Bynum and Lani Kawahara forced onto a future council agenda on Tuesday are but minor “first steps” toward cleaning up at least seven years of a concerted effort by Council Chair Kaipo Asing to evade, flout and pervert the Sunshine Law in order to avoid public scrutiny in matters of public affairs.
Bynum has complained bitterly in the past about one of the main vehicles for hiding what the council is doing- the “secret” official county attorney (CA) pubic policy opinions. That issue as received notice not just here but in the local newspaper and those that follow council doings are all too familiar with the practice.
It reeks of Star Chamber methodology whereby the council tells the public the council is compelled to do something baffling because they have a county attorney’s opinion... an opinion that they “can’t” reveal.
But although related, far worse is the practice of meeting in executive session (ES) to discuss prospective legislation and even bills that are on the table.
Just this past week the council met in secret by saying
(T)he purpose of this executive session is to consult with the Council’s attorney regarding the charter amendments adopted in the 2008 General Election and other related matters.
Pretty outrageous, eh? And this isn’t the first time.
These ES’s, as revealed for the first time this past Tuesday, are ostensibly to discuss the implementation of the “General Plan” charter amendment passed this past November- a matter of public policy if there ever was one.
You would think the drafters of the amendment who worked so hard to pass it would be up in arms. But you’d be wrong because not one has objected at any of the ES’s.
You would also think that this practice would be forbidden. In fact the very first provision of the Sunshine Law, §92-1 Declaration Of Policy And Intent, reads, in part
Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible. To implement this policy the legislature declares that:
(1) It is the intent of this part to protect the people's right to know;
(2) The provisions requiring open meetings shall be liberally construed; and
(3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.
There are of course legitimate reasons for holding closed meeting- lawsuits, personnel matters and the like. They’re addressed in 8 exceptions in §92-5(a)
But one of those exceptions, #4, contains a provision that has been abused so as to obliterate any pretense of following these principles, It reads:
§92-5 A board may hold a meeting closed to the public pursuant to section 92-4 for one or more of the following purposes:...
(4) To consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities.
Now obviously this is supposed to be read along with the principles and the rest of the law. If it weren’t then as long as “the board’s attorney” is in the room and speaks and they discuss “the board's powers, duties, privileges, immunities, and liabilities”- which covers just about everything the council does, including pubic policy- all meetings could be conducted behind closed doors in their entirety.
Despite the absurd result of interpreting the law this way, that is just what the county started to do gradually when Mayor Bryan Baptiste appointed County Attorney Lani Nakazawa who developed both the “secret opinion” and the principle that allowed 92-5(a)4 to be interpreted to cover anything she said it did- especially any possible “future litigation” as well as holding that the council’s “powers, duties and privileges” include discussing and drafting legislation... the very thing that’s supposed to be done in public.
But isn’t there an Office of Information Practices (OIP) to make sure this doesn’t happen?
You would think so, at least in theory. But in actuality what has happened is that any complaint, if it’s accepted by OIP and gets that far, is subject to what’s called an “in camera” review whereby the OIP can look at the ES minutes and decide if they are to be released.
And that’s exactly what happened in January of 2003 when, in the infamous “ES-177”, new councilmember Mel Rapozo apparently went ballistic and attacked the Kaua`i Police Department as the first volley in his campaign to remove newly appointed Chief KC Lum.
The OIP asked for the minutes, examined them and ordered them released. But the county then sued OIP and years later Circuit Court Judge Kathleen Wantanabe- a former Kaua`i deputy county attorney- ruled that the releasable parts of the minutes were “inexorably intertwined” with the legitimately discussed items and so nothing could be released.
At the time OIP was headed by a real open government crusader, director Les Kondo who was willing to go to the hilt to defend the Sunshine Law. But by the time the case came up the OIP had a new director though an appeal was promised its status is apparently “on hold”.
The council, under the tutelage of Asing, Nakazawa and the next CA Matthew Pyun, used this as a signal that they could pretty much allow the council to meet in ES on any subject they desired with impunity, including pending legislation as happened over and over during the contentious “Transient Vacation Rental Bill” passed last summer as well as with other matters.
It should be noted that the “charter amendment” ES’s have been held with unanimous votes, including Bynum’s and Kawahara’s. Bynum did on Tuesday protest the immense amount of money spent on “outside counsel” so far (up to $150,000) without what he characterized as a sufficient work product before being cut off by new County Attorney Al Castillo.
Wednesday, June 17, 2009
(PNN) KAWAHARA, BYNUM OUTMANEUVER ASING, NAKAMURA; DISCUSSION OF RULE CHANGES PUT ON FUTURE AGENDA.
KAWAHARA, BYNUM OUTMANEUVER ASING, NAKAMURA; DISCUSSION OF RULE CHANGES PUT ON FUTURE AGENDA.
(PNN)-- In a masterful piece of political theater, Councilperson Lani Kawahara succeeded in putting a discussion of her and Tim Bynum’s reforms on the council’s agenda at either the July 8 or July 22 meeting with even Chair Kaipo Asing in the end being forced to reluctantly vote “aye” along with the other six councilmembers.
Two weeks ago Bynum’s attempt to add a resolution to that day’s agenda was nixed by the County Attorney Al Castillo as being a violation of the Sunshine Law
This time when the subject of approval of the agenda came up, it was Kawahara who asked to simply add a “communication” to the agenda that would require discussion of the changes be discussed on the agenda at the next council meeting on July 8.
Last meeting Bynum and Kawahara were opposed by the other five councilmembers. This time though the first chink in the armor was an apparent 180 by councilmember Jay Furfaro who immediately said that “if the purpose is discussion... that doesn’t sound unreasonable”,
Although he tried to block an attempt to discuss council rules at the last council meeting, public pressure seemed to have caused him a change of heart.
Then Castillo surprisingly decided that he could split the baby and announced that, in his legal opinion, discussing adding the matter to a future agenda differed from discussing the actual subject matter as far as the Sunshine Law was concerned.
“It’s just a communication”, he told an apparently stunned Asing and the rest of the council. “This time there’s no substance to it (so) it’s not of ‘reasonably major importance’ and will not ‘effect a significant number of persons’.”
In her presentation, an animated and obviously nervous Kawahara stood up and listed the reforms to the council rules she and Bynum have requested be discussed including on-line access to all public documents, timely distribution of materials addressed to councilmembers and most importantly, an enforcement of the rule providing for councilpersons to have the ability to place matters on the agenda.
The issues are fully detailed at their kauaiinfo web site which has recently been updated with minutes of recent council meetings going back to February 25.
She also referred to the on-line petition supporting the changes which, she said had 290 signatures. Her “communication” asked that discussion of these matters be placed on the agenda of the next regular council meeting, July 8.
That gave Councilperson Darryl Kaneshiro an opening to say to Castillo “so the 290 signatures is not a significant amount” intimating that if 290 people were concerned with the issue that would constitute “a significant number of persons” who would be effected.
But Castillo reiterated that by only introducing a communication to place the matter on a future agenda, that is the action that must meet the standard and that the actual substance would be discussed on July 8 at a duly agendaed meeting
“I’ve got to split this” he said, “It’s the legal analysis”.
Asing still not satisfied said “placement of the minutes on the web site?” referring to one of the reforms Kawahara and councilperson Tim Bynum have asked for. “That’s going to affect the whole county.”
But Castillo again said he was separating the substance from the request to put it on a future agenda.
Furfaro then reiterated his support for having the discussion saying “by a 2/3 vote this council has the ability to put this matter on the agenda” although he noted that the chair has “the management rights” to say on which agenda it would appear.
Then in a jaw-dropping, politically tone-deaf statement Asing took one last stab at retaining control.
“Why would we want to discuss in-house rules with the public?” he asked Castillo. “There are in-house rules and you want to take that and discuss that in a public forum? Why would you want to do that?”
Furfaro then pointed out that “our rules are passed in a public forum, by resolution” and Bynum added that they can be changed by “subsequent resolution” all in public, open meetings.
Asing then called what he said would be a “short recess”.
According to witnesses, during the next hour a flurry of animated conversations between Asing and Castillo and County Clerk Peter Nakamura ensued. Toward the end of the hour Nakamura was observed conversing with Kaneshiro.
When the meeting was called back to order, in an obviously scripted manner a defeated Asing immediately called on Kaneshiro who, in a face-saving move for both himself and Asing, noted that the request was encroaching on the managerial duties of the chair and asked that the communication be amended to provide for adding the item to either the July 8 meeting or, if the agenda was too full, the July 22 meeting.
Without discussion Asing called for a vote on the amendment, to which all councilmember including Asing voted “aye”.
Then also without discussion the council unanimously voted aye to adding the item to the agenda of the meeting of either July 8th or 22nd.
Neither councilmember Derek Kawakami nor Dickie Chang ventured a comment during the discussion essentially exhibiting a deer in the headlights expressions along with a bewildered “what just happened” look after the item was added to the future agenda.
But the day of challenges to the abuse of power by, not just the chair but under his direction, Nakamura (as PNN has detailed over the past two weeks) was not over.
This time it was Bynum taking the reigns in order to highlight the way he and other councilmembers have been denied access to communication that are addressed to them.
First Bynum detailed how a bill that was on this week’s agenda related to changes to the shoreline setback law that the council passed last year had been time-stamped as “received” by the clerk on May 12 but, Bynum said, he had not gotten the new bill until June 12 and the related documents “just yesterday”
He noted that council rules require the county clerk to “forward at once” all communication to those to whom they are addressed, noting the measure was addressed to the “chair and all councilmembers”.
The bill had come from the planning department along with amendments, transcripts and staff reports that resulted from planning commission review.
Bynum said that he had been following the bill closely and had even recently asked the planning director what the delay was since the bill had been disposed of by the planning commission in April. The planning director had expressed surprise that it hadn’t gotten to Bynum and said he had forwarded it the council at the time.
Bynum complained that this left him with only a day to review the voluminous materials rather than five weeks, saying that this kind of thing was a common occurrence.
Furfaro offered an explanation in saying that legislation is supposed to be “managed” by the appropriate committee chair according to council rules and took responsibility for withholding the material.
He said he had received the bill and materials as planning committee chair and claimed that to forward them to all councilmembers would put him in jeopardy of violating the prohibition on “serial one-on-one” communications, referring to a recent letter from the OIP that had admonished him for violating serial one-on-one prohibitions.
He noted that the Earth Justice organization had pointed out some “conflicts” in the law and that might have accounted for the delay, waving a letter to the planning department he planned to send asking about those changes.
Though he did not say what the letter specifically referred to, PNN filed a complaint with the OIP in December regarding a serial one-on-one communication accusing Furfaro of violating that provisions of the Sunshine Law.
But it didn’t end there. When the routine quarterly report from the Kaua`i Humane Society came up on the agenda Bynum again compained that although it was received by the clerk on May 27 he had just gotten it last week, noting that this time it had nothing to do with “managing legislation”.
Bynum noted that these were only examples and that there are literally dozens of communications addressed to him every week that he never receives.
That spurred the only remark made by rookie Councilperson Kawakami who said Nakamura’s actions were “ok with me”.
“The last thing I want is to be overwhelmed with communications” he said thanking the clerk for screening and limiting his interactions with his constituents.
Asing then exploded at Bynum saying that “this is the first time in 26 years” that any councilmember had complained about any of the rules or the process and that Bynum seemed to “have all sorts of complaints.
Asing routinely protested council policy and rules when he was a dissident early in his political career when he was on the losing end of many 6-1 votes and as have other councilmembers over the years.
It was at that point that county Attorney put a halt to the discussion saying that "subtle allegations against the county clerk (are) an employment matter” and should only be discussed in executive session.
(PNN)-- In a masterful piece of political theater, Councilperson Lani Kawahara succeeded in putting a discussion of her and Tim Bynum’s reforms on the council’s agenda at either the July 8 or July 22 meeting with even Chair Kaipo Asing in the end being forced to reluctantly vote “aye” along with the other six councilmembers.
Two weeks ago Bynum’s attempt to add a resolution to that day’s agenda was nixed by the County Attorney Al Castillo as being a violation of the Sunshine Law
This time when the subject of approval of the agenda came up, it was Kawahara who asked to simply add a “communication” to the agenda that would require discussion of the changes be discussed on the agenda at the next council meeting on July 8.
Last meeting Bynum and Kawahara were opposed by the other five councilmembers. This time though the first chink in the armor was an apparent 180 by councilmember Jay Furfaro who immediately said that “if the purpose is discussion... that doesn’t sound unreasonable”,
Although he tried to block an attempt to discuss council rules at the last council meeting, public pressure seemed to have caused him a change of heart.
Then Castillo surprisingly decided that he could split the baby and announced that, in his legal opinion, discussing adding the matter to a future agenda differed from discussing the actual subject matter as far as the Sunshine Law was concerned.
“It’s just a communication”, he told an apparently stunned Asing and the rest of the council. “This time there’s no substance to it (so) it’s not of ‘reasonably major importance’ and will not ‘effect a significant number of persons’.”
In her presentation, an animated and obviously nervous Kawahara stood up and listed the reforms to the council rules she and Bynum have requested be discussed including on-line access to all public documents, timely distribution of materials addressed to councilmembers and most importantly, an enforcement of the rule providing for councilpersons to have the ability to place matters on the agenda.
The issues are fully detailed at their kauaiinfo web site which has recently been updated with minutes of recent council meetings going back to February 25.
She also referred to the on-line petition supporting the changes which, she said had 290 signatures. Her “communication” asked that discussion of these matters be placed on the agenda of the next regular council meeting, July 8.
That gave Councilperson Darryl Kaneshiro an opening to say to Castillo “so the 290 signatures is not a significant amount” intimating that if 290 people were concerned with the issue that would constitute “a significant number of persons” who would be effected.
But Castillo reiterated that by only introducing a communication to place the matter on a future agenda, that is the action that must meet the standard and that the actual substance would be discussed on July 8 at a duly agendaed meeting
“I’ve got to split this” he said, “It’s the legal analysis”.
Asing still not satisfied said “placement of the minutes on the web site?” referring to one of the reforms Kawahara and councilperson Tim Bynum have asked for. “That’s going to affect the whole county.”
But Castillo again said he was separating the substance from the request to put it on a future agenda.
Furfaro then reiterated his support for having the discussion saying “by a 2/3 vote this council has the ability to put this matter on the agenda” although he noted that the chair has “the management rights” to say on which agenda it would appear.
Then in a jaw-dropping, politically tone-deaf statement Asing took one last stab at retaining control.
“Why would we want to discuss in-house rules with the public?” he asked Castillo. “There are in-house rules and you want to take that and discuss that in a public forum? Why would you want to do that?”
Furfaro then pointed out that “our rules are passed in a public forum, by resolution” and Bynum added that they can be changed by “subsequent resolution” all in public, open meetings.
Asing then called what he said would be a “short recess”.
According to witnesses, during the next hour a flurry of animated conversations between Asing and Castillo and County Clerk Peter Nakamura ensued. Toward the end of the hour Nakamura was observed conversing with Kaneshiro.
When the meeting was called back to order, in an obviously scripted manner a defeated Asing immediately called on Kaneshiro who, in a face-saving move for both himself and Asing, noted that the request was encroaching on the managerial duties of the chair and asked that the communication be amended to provide for adding the item to either the July 8 meeting or, if the agenda was too full, the July 22 meeting.
Without discussion Asing called for a vote on the amendment, to which all councilmember including Asing voted “aye”.
Then also without discussion the council unanimously voted aye to adding the item to the agenda of the meeting of either July 8th or 22nd.
Neither councilmember Derek Kawakami nor Dickie Chang ventured a comment during the discussion essentially exhibiting a deer in the headlights expressions along with a bewildered “what just happened” look after the item was added to the future agenda.
But the day of challenges to the abuse of power by, not just the chair but under his direction, Nakamura (as PNN has detailed over the past two weeks) was not over.
This time it was Bynum taking the reigns in order to highlight the way he and other councilmembers have been denied access to communication that are addressed to them.
First Bynum detailed how a bill that was on this week’s agenda related to changes to the shoreline setback law that the council passed last year had been time-stamped as “received” by the clerk on May 12 but, Bynum said, he had not gotten the new bill until June 12 and the related documents “just yesterday”
He noted that council rules require the county clerk to “forward at once” all communication to those to whom they are addressed, noting the measure was addressed to the “chair and all councilmembers”.
The bill had come from the planning department along with amendments, transcripts and staff reports that resulted from planning commission review.
Bynum said that he had been following the bill closely and had even recently asked the planning director what the delay was since the bill had been disposed of by the planning commission in April. The planning director had expressed surprise that it hadn’t gotten to Bynum and said he had forwarded it the council at the time.
Bynum complained that this left him with only a day to review the voluminous materials rather than five weeks, saying that this kind of thing was a common occurrence.
Furfaro offered an explanation in saying that legislation is supposed to be “managed” by the appropriate committee chair according to council rules and took responsibility for withholding the material.
He said he had received the bill and materials as planning committee chair and claimed that to forward them to all councilmembers would put him in jeopardy of violating the prohibition on “serial one-on-one” communications, referring to a recent letter from the OIP that had admonished him for violating serial one-on-one prohibitions.
He noted that the Earth Justice organization had pointed out some “conflicts” in the law and that might have accounted for the delay, waving a letter to the planning department he planned to send asking about those changes.
Though he did not say what the letter specifically referred to, PNN filed a complaint with the OIP in December regarding a serial one-on-one communication accusing Furfaro of violating that provisions of the Sunshine Law.
But it didn’t end there. When the routine quarterly report from the Kaua`i Humane Society came up on the agenda Bynum again compained that although it was received by the clerk on May 27 he had just gotten it last week, noting that this time it had nothing to do with “managing legislation”.
Bynum noted that these were only examples and that there are literally dozens of communications addressed to him every week that he never receives.
That spurred the only remark made by rookie Councilperson Kawakami who said Nakamura’s actions were “ok with me”.
“The last thing I want is to be overwhelmed with communications” he said thanking the clerk for screening and limiting his interactions with his constituents.
Asing then exploded at Bynum saying that “this is the first time in 26 years” that any councilmember had complained about any of the rules or the process and that Bynum seemed to “have all sorts of complaints.
Asing routinely protested council policy and rules when he was a dissident early in his political career when he was on the losing end of many 6-1 votes and as have other councilmembers over the years.
It was at that point that county Attorney put a halt to the discussion saying that "subtle allegations against the county clerk (are) an employment matter” and should only be discussed in executive session.
Tuesday, June 16, 2009
EVERYBODY’S BITCH
EVERYBODY’S BITCH: To whore or not to whore- that is the question every “blogger” faces, whether of the journalistic or social networking type.
Last week Honolulu Advertiser blogger and former Star-Bulletin Editor Dave Shapiro set off a turd-storm describing how he
read in the Pacific Business News how a bunch of bloggers and social media types from the Mainland were here on a free Hawai`i vacation compliments of the Hawai`i Tourism Authority.
I don't have the marketing expertise to say whether the $15,000 paid by HTA on the So Much More Hawai`i junkets was worthwhile in terms of attracting visitors to Hawai`i.
But the new media folks accepting the freebies were a throwback to the bad old days of journalism when favorable coverage was for sale at the right price
Well after Dave referred them to the Society of Professional Journalists Ethics Code which forbids “freebies” for travel writers (and other “reviewers) because of the obvious conflict of interest, many of the blogger/whores- who were acting as journalists but were really just PR hacks masquerading as reporters- got wind of the post and tried to defend themselves.
After the denials by some that “I’m not a journalists- I’m just a blogger”- despite the fact that they are doing exactly what a reporter does- their reactions were, like any child caught with their hand in the cookie jar, expected and priceless in defending their actions with either “but everyone else is doing it” or “well, really I didn’t take THAT much money/freebie”.
But those who “blog” and also try to maintain actual journalistic principles face the same dilemma facing newspapers these days- how to financially support their efforts and still maintain those ethical standards.
Some may solicit donations like Disappeared News’ Larry Geller. But many others like Ian Lind have turned to advertising which is all too easy with “googleads” and “doubleclick” offering cash-for-eyeballs, even if it is at a rate of pennies a click.
Today Ian- and the rest of us- got a lesson on the pitfalls of “signing up” to allow ads to appear with his posts.
Ian, a former investigative reporter for the Honolulu Star-Bulletin, usually provides comments and added content on local stories and provides links to interesting web sites and posts, all interspersed with original reporting.
But today he presented arguably the best piece of investigative journalism in the state this year with under the professionally crafted headline Door-to-door security sales ringing consumer alarms.
It details an apparent scam happening on O`ahu involving Mormon students on summer vacation who are parlaying their door-to-door skills gained in “missionary” work into selling fly-by-night, long-term contacts for “free” home security systems.
The problem is that when you click through to the stand-along page for Lind's article, right across the top, googleads/doubleclick has pasted a click-on ad reading
Need and Alarm system?
Let Buyerzone Save You Time and Money
Compare Alarm System Price Quotes and Save
And of course when you click it on you see
Buyer Zone- used by over 4 million buyers
Compare Free Quotes- Let us save you time and money in 5 minutes- Take our Survey
Or....Search our Directory of Monitored Alarm System Companies
Of course when you “search” there is only one company to “compare” - ADT Monitored Alarm Systems”, a “reputable” company with many years in the business.
Lind has no control over which ad google will post with which article, but of course google is well known for automating a process where their ads correlate with the content- as anyone who uses gmail knows all too well
The problem is that to anyone who doesn’t know how google works or doesn’t put it together with the ad on Ian’s site, it makes what is an extraordinary piece of investigative work onto one that raises questions about the integrity of the author by making it appear Lind is just running down the competition for his “paid” masters.
No reputable newspaper runs ads based on content- note the word “reputable” since it seems to happen more and more these days. And certainly they would never be so gauche as to put the ad at the top of a page that contains an article on a related subject. And that goes double for on-line ads... if they have the ability to control it.
While on-line ad revenue for news providers will seemingly be minimal for the foreseeable future. if the google-style information gobbling and regurgitation advertising model is the future of newspaper reporting, those getting freebies on tourism marketing junkets may be the least of the ethical problems for the “news business”.
Last week Honolulu Advertiser blogger and former Star-Bulletin Editor Dave Shapiro set off a turd-storm describing how he
read in the Pacific Business News how a bunch of bloggers and social media types from the Mainland were here on a free Hawai`i vacation compliments of the Hawai`i Tourism Authority.
I don't have the marketing expertise to say whether the $15,000 paid by HTA on the So Much More Hawai`i junkets was worthwhile in terms of attracting visitors to Hawai`i.
But the new media folks accepting the freebies were a throwback to the bad old days of journalism when favorable coverage was for sale at the right price
Well after Dave referred them to the Society of Professional Journalists Ethics Code which forbids “freebies” for travel writers (and other “reviewers) because of the obvious conflict of interest, many of the blogger/whores- who were acting as journalists but were really just PR hacks masquerading as reporters- got wind of the post and tried to defend themselves.
After the denials by some that “I’m not a journalists- I’m just a blogger”- despite the fact that they are doing exactly what a reporter does- their reactions were, like any child caught with their hand in the cookie jar, expected and priceless in defending their actions with either “but everyone else is doing it” or “well, really I didn’t take THAT much money/freebie”.
But those who “blog” and also try to maintain actual journalistic principles face the same dilemma facing newspapers these days- how to financially support their efforts and still maintain those ethical standards.
Some may solicit donations like Disappeared News’ Larry Geller. But many others like Ian Lind have turned to advertising which is all too easy with “googleads” and “doubleclick” offering cash-for-eyeballs, even if it is at a rate of pennies a click.
Today Ian- and the rest of us- got a lesson on the pitfalls of “signing up” to allow ads to appear with his posts.
Ian, a former investigative reporter for the Honolulu Star-Bulletin, usually provides comments and added content on local stories and provides links to interesting web sites and posts, all interspersed with original reporting.
But today he presented arguably the best piece of investigative journalism in the state this year with under the professionally crafted headline Door-to-door security sales ringing consumer alarms.
It details an apparent scam happening on O`ahu involving Mormon students on summer vacation who are parlaying their door-to-door skills gained in “missionary” work into selling fly-by-night, long-term contacts for “free” home security systems.
The problem is that when you click through to the stand-along page for Lind's article, right across the top, googleads/doubleclick has pasted a click-on ad reading
Need and Alarm system?
Let Buyerzone Save You Time and Money
Compare Alarm System Price Quotes and Save
And of course when you click it on you see
Buyer Zone- used by over 4 million buyers
Compare Free Quotes- Let us save you time and money in 5 minutes- Take our Survey
Or....Search our Directory of Monitored Alarm System Companies
Of course when you “search” there is only one company to “compare” - ADT Monitored Alarm Systems”, a “reputable” company with many years in the business.
Lind has no control over which ad google will post with which article, but of course google is well known for automating a process where their ads correlate with the content- as anyone who uses gmail knows all too well
The problem is that to anyone who doesn’t know how google works or doesn’t put it together with the ad on Ian’s site, it makes what is an extraordinary piece of investigative work onto one that raises questions about the integrity of the author by making it appear Lind is just running down the competition for his “paid” masters.
No reputable newspaper runs ads based on content- note the word “reputable” since it seems to happen more and more these days. And certainly they would never be so gauche as to put the ad at the top of a page that contains an article on a related subject. And that goes double for on-line ads... if they have the ability to control it.
While on-line ad revenue for news providers will seemingly be minimal for the foreseeable future. if the google-style information gobbling and regurgitation advertising model is the future of newspaper reporting, those getting freebies on tourism marketing junkets may be the least of the ethical problems for the “news business”.
Monday, June 15, 2009
A DAY AT THE RACES
A DAY AT THE RACES: Tomorrow is the first full council meeting since the June 3 dust up and it’s anyone’s guess how the melodramas will play out.
(Cue organ music) When we last left our intrepid heroes Tim Bynum and Lani Kawahara they had been thwarted by the three evil geniuses, Drs. Asing, Nakamura and Castillo, in their attempt to bring sunshine and democracy to the Separate Kingdom.
Make no mistake about it. If Councilpersons Tim Bynum efforts to open the council’s agenda processes and bring sunshine to pubic documents – as PNN has described throughout last week or so- are to have fruitful results they must continue to challenge Chair Kaipo Asing’s despotism
The ball is in the dissidents’ court. The status quo is what it always was. If past is prologue Office Of Information Practices (OIP) and even court challenges could take months or even years during which time councilmembers’ measures will not find their way onto the council agenda and documents will linger in the darkest recesses of the Historic county Building.
On Kaua`i stonewalling silence and “doing what’s wrong as long as they can” has a long tradition. And no one expects that to suddenly change.
While we don’t know what (or even if) Bynum will do tomorrow, we do know what needs to happen for this challenge to entrenched power to succeed.
There are two different avenues that Bynum- and in fact members of the public- can take to force a discussion of his rule change to clarify that all councilmembers have the right, under council rules, to place bills, resolutions and other matters on the council’s agenda.
The first is to repeat the attempt he made at the June 3 to amend the agenda when the subject of “the agenda” comes up at the beginning of the meeting.
Last time Bynum was unprepared for the legal mumbo jumbo that county Attorney Al Castillo used to block the introduction, discussion and vote upon whether or not to add the matter to the agenda.
HRS §92-7(a) says that “(t)he board shall give written public notice of any.. meeting when anticipated in advance... at least six calendar days before the meeting.
But HRS §92-7(d) anticipates there being situations where the agenda may be amended at the time of the meeting “by adding items thereto with.. a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons”.
Castillo and Asing focused on the “reasonably major importance and action thereon by the board will affect a significant number of persons” section. They argued that even just the discussion of any matter to be added the council would violate the sunshine law.
Though Bynum was armed with an OIP opinion saying the matter could be added to agenda no one anticipated that Castillo and Asing would try to block even the introduction, discussion and vote to add it to the agenda.
By anticipating additions being made and making it conditional, the Sunshine Law, like all others, anticipates that the introduction, discussion and decision is to be made through the normal due deliberatory processes of the council.
If Castillo’s argument- that introduction, deliberation and decision-making would itself violate the Sunshine Law- were valid, nothing could ever be added to the agenda at a meeting whether it meets the two conditions or not because the due deliberation and decision by the council could never take place.
It’s a basic tenet of American jurisprudence that if a law anticipates something occurring, it must be interpreted so as to make that occurrence possible. In large part the case law goes back about as far as one can go, all the way to 1803’s US Supreme Court “Marbury vs. Madison” decision which basically says you can’t have administrative policies that invalidate the law.
It clearly cannot be a Sunshine Law violation to introduce, discuss and vote upon adding a matter to the agenda since the law itself describes the process to do so and the three thresholds the council must meet in order to add something (the third being the 2/3 vote).
The second “opening” for Bynum and even the public to speak on the matter is the presence on the agenda of the approval of the minutes of the June 3 meeting.
As PNN reported last week the OIP has opened up an investigation to determine whether the minutes of the executive session held at the meeting should be made public.
HRS §92-9(b) states that “minutes of executive meetings may be withheld (only) so long as their publication would defeat the lawful purpose of the executive meeting, but no longer”.
The purported lawful purpose Castillo stated was that the matter was not on that meeting’s agenda. But that day’s meeting is over so the condition can no longer be defeated and the council can- and should- vote to release those minutes or at least have a discussion and hold a vote on whether to do so.
We can’t say what Bynum will do tomorrow. Nor can we say if any members of the public will step forward and make these points when these matter come up on the agenda. But if Bynum doesn’t act perhaps the people will.
Members of the public have two, three-minute segments to speak on each agenda item and if they want to speak on either of these they had better be there before 9 a.m. since the first matter on the agenda after the roll call is “approval of the agenda” which is a condition precedent to holding the meeting.
That’s followed by the “approval of the minutes” although minutes approval is something that can be “moved to the end of the agenda”- a tool often used by Asing to delay discussion of controversial matters until interested people are either out of the room or get tired of waiting and go home.
(Cue organ music) Will our heroes accept the status quo and simply lick their wounds? Or will Bynum continue to strike while the iron is hot and the issue is fresh and clear in the minds of the outraged Kaua`i citizenry?
Will the evil genius’ once again thwart our dynamic duo? Or will Bynum and Kawahara’s clear thinking, honesty and penchant for democracy and rule of law, rule the day?
Will Dickie Chang and Derek Kawakami do the bidding of their new masters and establish themselves as political climbers and the latest members of the good ol’ boys club? Or will they support the torch and pitchfork bearing masses and join the side of goodness and sunshine... or will they even just be forced to vote on the matter and show their hand?
Join us again tomorrow in the Minotaur’s Labyrinth for another episode of... “All My Cronies”.
(Cue organ music) When we last left our intrepid heroes Tim Bynum and Lani Kawahara they had been thwarted by the three evil geniuses, Drs. Asing, Nakamura and Castillo, in their attempt to bring sunshine and democracy to the Separate Kingdom.
Make no mistake about it. If Councilpersons Tim Bynum efforts to open the council’s agenda processes and bring sunshine to pubic documents – as PNN has described throughout last week or so- are to have fruitful results they must continue to challenge Chair Kaipo Asing’s despotism
The ball is in the dissidents’ court. The status quo is what it always was. If past is prologue Office Of Information Practices (OIP) and even court challenges could take months or even years during which time councilmembers’ measures will not find their way onto the council agenda and documents will linger in the darkest recesses of the Historic county Building.
On Kaua`i stonewalling silence and “doing what’s wrong as long as they can” has a long tradition. And no one expects that to suddenly change.
While we don’t know what (or even if) Bynum will do tomorrow, we do know what needs to happen for this challenge to entrenched power to succeed.
There are two different avenues that Bynum- and in fact members of the public- can take to force a discussion of his rule change to clarify that all councilmembers have the right, under council rules, to place bills, resolutions and other matters on the council’s agenda.
The first is to repeat the attempt he made at the June 3 to amend the agenda when the subject of “the agenda” comes up at the beginning of the meeting.
Last time Bynum was unprepared for the legal mumbo jumbo that county Attorney Al Castillo used to block the introduction, discussion and vote upon whether or not to add the matter to the agenda.
HRS §92-7(a) says that “(t)he board shall give written public notice of any.. meeting when anticipated in advance... at least six calendar days before the meeting.
But HRS §92-7(d) anticipates there being situations where the agenda may be amended at the time of the meeting “by adding items thereto with.. a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons”.
Castillo and Asing focused on the “reasonably major importance and action thereon by the board will affect a significant number of persons” section. They argued that even just the discussion of any matter to be added the council would violate the sunshine law.
Though Bynum was armed with an OIP opinion saying the matter could be added to agenda no one anticipated that Castillo and Asing would try to block even the introduction, discussion and vote to add it to the agenda.
By anticipating additions being made and making it conditional, the Sunshine Law, like all others, anticipates that the introduction, discussion and decision is to be made through the normal due deliberatory processes of the council.
If Castillo’s argument- that introduction, deliberation and decision-making would itself violate the Sunshine Law- were valid, nothing could ever be added to the agenda at a meeting whether it meets the two conditions or not because the due deliberation and decision by the council could never take place.
It’s a basic tenet of American jurisprudence that if a law anticipates something occurring, it must be interpreted so as to make that occurrence possible. In large part the case law goes back about as far as one can go, all the way to 1803’s US Supreme Court “Marbury vs. Madison” decision which basically says you can’t have administrative policies that invalidate the law.
It clearly cannot be a Sunshine Law violation to introduce, discuss and vote upon adding a matter to the agenda since the law itself describes the process to do so and the three thresholds the council must meet in order to add something (the third being the 2/3 vote).
The second “opening” for Bynum and even the public to speak on the matter is the presence on the agenda of the approval of the minutes of the June 3 meeting.
As PNN reported last week the OIP has opened up an investigation to determine whether the minutes of the executive session held at the meeting should be made public.
HRS §92-9(b) states that “minutes of executive meetings may be withheld (only) so long as their publication would defeat the lawful purpose of the executive meeting, but no longer”.
The purported lawful purpose Castillo stated was that the matter was not on that meeting’s agenda. But that day’s meeting is over so the condition can no longer be defeated and the council can- and should- vote to release those minutes or at least have a discussion and hold a vote on whether to do so.
We can’t say what Bynum will do tomorrow. Nor can we say if any members of the public will step forward and make these points when these matter come up on the agenda. But if Bynum doesn’t act perhaps the people will.
Members of the public have two, three-minute segments to speak on each agenda item and if they want to speak on either of these they had better be there before 9 a.m. since the first matter on the agenda after the roll call is “approval of the agenda” which is a condition precedent to holding the meeting.
That’s followed by the “approval of the minutes” although minutes approval is something that can be “moved to the end of the agenda”- a tool often used by Asing to delay discussion of controversial matters until interested people are either out of the room or get tired of waiting and go home.
(Cue organ music) Will our heroes accept the status quo and simply lick their wounds? Or will Bynum continue to strike while the iron is hot and the issue is fresh and clear in the minds of the outraged Kaua`i citizenry?
Will the evil genius’ once again thwart our dynamic duo? Or will Bynum and Kawahara’s clear thinking, honesty and penchant for democracy and rule of law, rule the day?
Will Dickie Chang and Derek Kawakami do the bidding of their new masters and establish themselves as political climbers and the latest members of the good ol’ boys club? Or will they support the torch and pitchfork bearing masses and join the side of goodness and sunshine... or will they even just be forced to vote on the matter and show their hand?
Join us again tomorrow in the Minotaur’s Labyrinth for another episode of... “All My Cronies”.
Friday, June 12, 2009
ON AND ON, ON AND ON, ON AND ON
ON AND ON, ON AND ON, ON AND ON: It’s been ten days of conflicting thoughts and emotions with the explosion of public interest in a subject that is anything but revelatory to us or our gw?/PNN subscribers and readers.
After a year and a half of exposes and detailed coverage of the secrecy and corrupt machinations of Council Chair Kaipo Asing and his henchmen, through the forced courage of one man the island suddenly sees their emperor has been nakedly rigging the process.
We feel like we owe Councilperson Tim Bynum an apology for some of the things we’ve written in the past, not just questioning the luminosity and focus of his cerebral candlepower but more importantly his integrity in acquiescing to Asing’s dictatorial hold on the council.
Who knew that he was apparently biding his time and going to eventually expose what we’ve been saying and he now admits has seen Asing’s active efforts to treat everyone like mushrooms- keeping us in the dark and bury us in bullsh-t.
Despite the outward signs that Bynum was occasionally frustrated as his first term went by, rather than take on any kind of adversarial role he showed the same inclination that other formerly idealistic new councilpersons had displayed- allowing their “respect” for Asing to squelch and stifle any penchant for reform.
We’ve wondered for years what it would take to pull back the veil for the general apathetic and uninvolved Kaua`i populace. Who knew that it would be Asing himself that would- or could- go a step too far in denying the basic tenets of democracy and violating the rule of law... and that some of his actions would be the straw that broke the camel’s back for Bynum.
Surely one factor in Bynum’s conversion- and one without which it never would have happened- was the election of Lani Kawahara who similarly could have spent years building up the courage of her convictions had Bynum not been through the same thing and poised to act.
How all this will play out is anyone’s guess. A courtroom is looking more and more like the place where the ability of councilpersons to place items on the agenda will be decided.
One local attorney, citing Marbury v. Madison- the 1803 Supreme Court decision establishing the “rule of law”-, wrote this morning in an email that “(i)f Tim Bynum sues, Tim should win”.
Another professional asked where people could contribute to a “democracy defense fund” as it were, to finance the case.
But with all the ire being directed at Asing what seems to escape many is that Asing’s hold on power is in the hands of the other four councilpersons.
If supporters of recently elected Councilmembers Dickie Chang and Derek Kawakami let them know their support of Asing could jeopardize their nascent political careers- something that both care deeply and apparently excursively about- as unlikely as it may seem the political pressure could cause them to vote to save their own necks.
It doubtful that either Jay Furfaro or Darryl Kaneshiro will buck Asing. Both are as paternalistic as Asing.
But even now, with their stress on the agenda availability and access to public documents Bynum and Kawahara makes one wonder what would happen if suddenly Asing, seeking to cut his losses, just gives up control of these two matters to run away and fight another day.
Though important and shockingly manipulative these matter are merely the tip of the iceberg and only symptomatic of the deeply seated corruption of process Asing and the rest of the council has traditionally promulgated and perpetuated.
Will the two dissidents stop voting with the majority to go into executive session at the drop of a hat, as they have despite reservations? Will they refuse to confirm conflicted board and commission appointees? Will they hold the administration’s feet to the fire when incompetence and corruption are exposed as they have been time and again, not just in this space but on the council floor.
We certainly hope they get the power to add items to the agenda and post public documents on-line. But the list of needed reform legislation is long and implantation will be arduous. Our county code and administrative rules are lettered with outdated ordinances that were written to protect the island’s power elite. And our charter is countermanded in many provisions.
The Ethics Board- which is appointed by the council- is itself the most corrupt and lawless of all county entities and the code of ethics ordinance is littered with illegal provisions. The Planning Commission is a rubber stamp of dumb growth and the director is so entranced he has convinced the commissioners that they work for him when the charter says the opposite. The well documented rampant corruption in the Personnel Department is in many ways encoded in county ordinances that permit patronage that would put Chicago to shame. The Access and Open Space Commission is forbidden by ordinance from even discussing re-establishing beach and mountain access.
And the Public Works Department is, as it has been for decades, as crooked as a hundred year old `Ohia tree with a cash-greased revolving door system that is all but detailed in printed in wall-hanging notices.
The people just approved a new county auditor and other reforms this past fall but the council has voted unanimously to meet in secret to discuss the implementation legislation for that, the general plan enforcement charter amendment and other reforms.
It’s not a stretch to think that those sessions are all about figuring out ways to negate the effects people expected when they ratified them.
We could go on and on but you get the idea.
If Bynum and Kawahara succeed in effectuating the three goals listed at kauaiinfo.org will they and everyone who is currently up in arms be happy and go back to sleep?
Sources close to the two have described to us the trepidation that Bynum and Kawahara had in “going public” with the situation. Would the public understand? Was it too “inside baseball” as they say? Would they simply be crushed?
Or would people rally to their side and appreciate the courage it took to go public with their frustrations and not just “go along to get along” and become one of the old boys and girls as the years go by.
Many other “reformers” have done as much over the years when Asing and his cronies corner them and subvert them as happened most recently with Mel Rapozo.
We obviously misunderestimated Bynum and are glad to have been wrong in our assessment of his courage and intellect. Though we weren’t “shocked-shocked to find gambling” we do hope that “this is the beginning of a beautiful friendship”.
After a year and a half of exposes and detailed coverage of the secrecy and corrupt machinations of Council Chair Kaipo Asing and his henchmen, through the forced courage of one man the island suddenly sees their emperor has been nakedly rigging the process.
We feel like we owe Councilperson Tim Bynum an apology for some of the things we’ve written in the past, not just questioning the luminosity and focus of his cerebral candlepower but more importantly his integrity in acquiescing to Asing’s dictatorial hold on the council.
Who knew that he was apparently biding his time and going to eventually expose what we’ve been saying and he now admits has seen Asing’s active efforts to treat everyone like mushrooms- keeping us in the dark and bury us in bullsh-t.
Despite the outward signs that Bynum was occasionally frustrated as his first term went by, rather than take on any kind of adversarial role he showed the same inclination that other formerly idealistic new councilpersons had displayed- allowing their “respect” for Asing to squelch and stifle any penchant for reform.
We’ve wondered for years what it would take to pull back the veil for the general apathetic and uninvolved Kaua`i populace. Who knew that it would be Asing himself that would- or could- go a step too far in denying the basic tenets of democracy and violating the rule of law... and that some of his actions would be the straw that broke the camel’s back for Bynum.
Surely one factor in Bynum’s conversion- and one without which it never would have happened- was the election of Lani Kawahara who similarly could have spent years building up the courage of her convictions had Bynum not been through the same thing and poised to act.
How all this will play out is anyone’s guess. A courtroom is looking more and more like the place where the ability of councilpersons to place items on the agenda will be decided.
One local attorney, citing Marbury v. Madison- the 1803 Supreme Court decision establishing the “rule of law”-, wrote this morning in an email that “(i)f Tim Bynum sues, Tim should win”.
Another professional asked where people could contribute to a “democracy defense fund” as it were, to finance the case.
But with all the ire being directed at Asing what seems to escape many is that Asing’s hold on power is in the hands of the other four councilpersons.
If supporters of recently elected Councilmembers Dickie Chang and Derek Kawakami let them know their support of Asing could jeopardize their nascent political careers- something that both care deeply and apparently excursively about- as unlikely as it may seem the political pressure could cause them to vote to save their own necks.
It doubtful that either Jay Furfaro or Darryl Kaneshiro will buck Asing. Both are as paternalistic as Asing.
But even now, with their stress on the agenda availability and access to public documents Bynum and Kawahara makes one wonder what would happen if suddenly Asing, seeking to cut his losses, just gives up control of these two matters to run away and fight another day.
Though important and shockingly manipulative these matter are merely the tip of the iceberg and only symptomatic of the deeply seated corruption of process Asing and the rest of the council has traditionally promulgated and perpetuated.
Will the two dissidents stop voting with the majority to go into executive session at the drop of a hat, as they have despite reservations? Will they refuse to confirm conflicted board and commission appointees? Will they hold the administration’s feet to the fire when incompetence and corruption are exposed as they have been time and again, not just in this space but on the council floor.
We certainly hope they get the power to add items to the agenda and post public documents on-line. But the list of needed reform legislation is long and implantation will be arduous. Our county code and administrative rules are lettered with outdated ordinances that were written to protect the island’s power elite. And our charter is countermanded in many provisions.
The Ethics Board- which is appointed by the council- is itself the most corrupt and lawless of all county entities and the code of ethics ordinance is littered with illegal provisions. The Planning Commission is a rubber stamp of dumb growth and the director is so entranced he has convinced the commissioners that they work for him when the charter says the opposite. The well documented rampant corruption in the Personnel Department is in many ways encoded in county ordinances that permit patronage that would put Chicago to shame. The Access and Open Space Commission is forbidden by ordinance from even discussing re-establishing beach and mountain access.
And the Public Works Department is, as it has been for decades, as crooked as a hundred year old `Ohia tree with a cash-greased revolving door system that is all but detailed in printed in wall-hanging notices.
The people just approved a new county auditor and other reforms this past fall but the council has voted unanimously to meet in secret to discuss the implementation legislation for that, the general plan enforcement charter amendment and other reforms.
It’s not a stretch to think that those sessions are all about figuring out ways to negate the effects people expected when they ratified them.
We could go on and on but you get the idea.
If Bynum and Kawahara succeed in effectuating the three goals listed at kauaiinfo.org will they and everyone who is currently up in arms be happy and go back to sleep?
Sources close to the two have described to us the trepidation that Bynum and Kawahara had in “going public” with the situation. Would the public understand? Was it too “inside baseball” as they say? Would they simply be crushed?
Or would people rally to their side and appreciate the courage it took to go public with their frustrations and not just “go along to get along” and become one of the old boys and girls as the years go by.
Many other “reformers” have done as much over the years when Asing and his cronies corner them and subvert them as happened most recently with Mel Rapozo.
We obviously misunderestimated Bynum and are glad to have been wrong in our assessment of his courage and intellect. Though we weren’t “shocked-shocked to find gambling” we do hope that “this is the beginning of a beautiful friendship”.
Thursday, June 11, 2009
DARKNESS, DARKNESS
DARKNESS, DARKNESS: To no one’s surprise the matter of amending council rules to force Chair Kaipo Asing to allow all councilmembers to place matters on the agenda is not on this week’s council agenda, filed yesterday for a rare Tuesday meeting next week.
The complete “packet” containing all the paperwork for the agendaed communications, bills, claims, legal matters, public hearings, executive sessions and committee reports for the meeting are set to be posted by Councilperson Tim Bynum on Friday at his and Councilperson Lani Kawahara’s kauaiinfo.org web site where a new essay on their efforts appears on the main page today.
The piece details three goals:
Goal # 1 - Allow all Councilmembers to place items on the Council agenda for consideration.
Goal # 2 - Make key public documents readily available to the public on the County's web site.
Goal # 3 - Circulate Council Service documents equitably to all Councilmembers in a timely manner.
Bynum and Kawahara are set to appear on community radio KKCR-FM this afternoon at 4 p.m. to discuss their efforts.
One matter that may not be clear to many is the “Catch-22” nature of the dilemma that Bynum faced when he tried to place consideration of the rules on the agenda at the June 3 meeting if letters to the editor in today’s local newspaper are any indication.
As a letter by council watchdog Glenn Mickens points out there are only two ways that a matter can be placed on the council’s agenda. One is to get it “initialed” by the chair and have it duly posted six days before the meeting.
The other is to move to amend the agenda when it is up for approval at the meeting itself.
According to the state sunshine law, nothing maybe added to the posted agenda if it is “of reasonably major importance” and “action thereon by the board will affect a significant number of persons”.
Though it is not clear in the law who is to determine whether those conditions are met. The law is clear that nothing may be discussed unless it is on the agenda. So at the meeting when Chair Asing and County Attorney Al Castillo declared that those conditions were met, in doing so they claimed that it precluded even a discussion of the matter.
This would seem to be a flaw in the law but what is clear is that the Office of Information Practices (OIP) is the entity that is charged with making determinations with regard to the Sunshine law.
At Bynum’s behest they had reviewed the proposed rule change and ruled it was ok to add it on the day of the meeting but even that was ruled by Castillo to be a taboo subject for discussion.
The problem is that it raises the question of how any matter could be ever added to the agenda if even the discussion of whether to add the matter cannot take place, much less a council vote on the matter.
The catch-22 is simply that a matter cannot be placed on the posted agenda without the chair’s “initials” but the chair also apparently can block discussion of an addition on the day of the meeting by claiming the sunshine law forbids discussion of non-agendaed items.
It became even more obvious there are still many who don’t know or understand what happened at the meeting when a letter by Alfred Laureta appeared suggesting that there was a simple solution.
Lauretta wrote:
A councilperson who wants to bring a serious matter to the attention of the council for serious consideration and action has a vehicle available to him/her. This is called a “motion” which, if duly “seconded,” is discussed and voted upon. A motion lacking a second is denied discussion or dies for want of a majority vote.
Parliamentary rules are available also to prevent or shorten discussion which involve matters not of substance or material to the issue and which so often, on televised sessions of the council, becomes political in nature.
I suggest that the Guest Viewpoint authors sponsor motions on the council floor of the next council meeting that will appropriately correct the situation they complain about. Will rule changes involve constitutional, charter, legal considerations? Or simple majority vote?
If they succeed in their motions, it is true that Kaipo is a “dictator.” If not...?
As PNN readers know from our reports of the events of June 3, Bynum did indeed make that motion to place the matter on the agenda and it was seconded by Kawahara.
Since the attempt and motion was made and seconded only to be thwarted in an apparently unlawful manner (council rules require that Robert’s Rules are to be used unless otherwise stated), it would seem that Lauretta, a retired Kaua`i 5th Circuit Court judge and known ally of Asing’s, would agree with the “dictator” tag Asing has earned.
One more thought that came up today when we received an email from someone seeking information on how to go through the required filings to release the minutes of the executive session on June 3.
In Section 92-9(b) the Sunshine Law states that
minutes of executive meetings may be withheld so long as their publication would defeat the lawful purpose of the executive meeting, but no longer.
The lawful purpose was purportedly to determine whether the matter could be placed on that meeting’s agenda. Since that meeting is over the lawful purpose can no longer be defeated so the condition no longer exists and the minutes should be made public immediately.
The complete “packet” containing all the paperwork for the agendaed communications, bills, claims, legal matters, public hearings, executive sessions and committee reports for the meeting are set to be posted by Councilperson Tim Bynum on Friday at his and Councilperson Lani Kawahara’s kauaiinfo.org web site where a new essay on their efforts appears on the main page today.
The piece details three goals:
Goal # 1 - Allow all Councilmembers to place items on the Council agenda for consideration.
Goal # 2 - Make key public documents readily available to the public on the County's web site.
Goal # 3 - Circulate Council Service documents equitably to all Councilmembers in a timely manner.
Bynum and Kawahara are set to appear on community radio KKCR-FM this afternoon at 4 p.m. to discuss their efforts.
One matter that may not be clear to many is the “Catch-22” nature of the dilemma that Bynum faced when he tried to place consideration of the rules on the agenda at the June 3 meeting if letters to the editor in today’s local newspaper are any indication.
As a letter by council watchdog Glenn Mickens points out there are only two ways that a matter can be placed on the council’s agenda. One is to get it “initialed” by the chair and have it duly posted six days before the meeting.
The other is to move to amend the agenda when it is up for approval at the meeting itself.
According to the state sunshine law, nothing maybe added to the posted agenda if it is “of reasonably major importance” and “action thereon by the board will affect a significant number of persons”.
Though it is not clear in the law who is to determine whether those conditions are met. The law is clear that nothing may be discussed unless it is on the agenda. So at the meeting when Chair Asing and County Attorney Al Castillo declared that those conditions were met, in doing so they claimed that it precluded even a discussion of the matter.
This would seem to be a flaw in the law but what is clear is that the Office of Information Practices (OIP) is the entity that is charged with making determinations with regard to the Sunshine law.
At Bynum’s behest they had reviewed the proposed rule change and ruled it was ok to add it on the day of the meeting but even that was ruled by Castillo to be a taboo subject for discussion.
The problem is that it raises the question of how any matter could be ever added to the agenda if even the discussion of whether to add the matter cannot take place, much less a council vote on the matter.
The catch-22 is simply that a matter cannot be placed on the posted agenda without the chair’s “initials” but the chair also apparently can block discussion of an addition on the day of the meeting by claiming the sunshine law forbids discussion of non-agendaed items.
It became even more obvious there are still many who don’t know or understand what happened at the meeting when a letter by Alfred Laureta appeared suggesting that there was a simple solution.
Lauretta wrote:
A councilperson who wants to bring a serious matter to the attention of the council for serious consideration and action has a vehicle available to him/her. This is called a “motion” which, if duly “seconded,” is discussed and voted upon. A motion lacking a second is denied discussion or dies for want of a majority vote.
Parliamentary rules are available also to prevent or shorten discussion which involve matters not of substance or material to the issue and which so often, on televised sessions of the council, becomes political in nature.
I suggest that the Guest Viewpoint authors sponsor motions on the council floor of the next council meeting that will appropriately correct the situation they complain about. Will rule changes involve constitutional, charter, legal considerations? Or simple majority vote?
If they succeed in their motions, it is true that Kaipo is a “dictator.” If not...?
As PNN readers know from our reports of the events of June 3, Bynum did indeed make that motion to place the matter on the agenda and it was seconded by Kawahara.
Since the attempt and motion was made and seconded only to be thwarted in an apparently unlawful manner (council rules require that Robert’s Rules are to be used unless otherwise stated), it would seem that Lauretta, a retired Kaua`i 5th Circuit Court judge and known ally of Asing’s, would agree with the “dictator” tag Asing has earned.
One more thought that came up today when we received an email from someone seeking information on how to go through the required filings to release the minutes of the executive session on June 3.
In Section 92-9(b) the Sunshine Law states that
minutes of executive meetings may be withheld so long as their publication would defeat the lawful purpose of the executive meeting, but no longer.
The lawful purpose was purportedly to determine whether the matter could be placed on that meeting’s agenda. Since that meeting is over the lawful purpose can no longer be defeated so the condition no longer exists and the minutes should be made public immediately.
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