WRIT LARGE: We’re now in possession of a “quotable” text copy of the Office of Information Practice (OIP) application for “writ of certiorari” (mahalo to Larry Geller for the excellent conversion work) regarding the infamous ES (executive session) 177 the Kaua`i County Council held in January 2005 (we mistakenly said 2006 yesterday).
If the Hawai`i Supreme Court accepts the writ they will hear an appeal of an Intermediate Court of Appeal’s (ICA) decision upholding a 5th circuit court ruling denying the access to the minutes of the meeting.
According to the brief
The ICA decision concerns an OIP administrative determination that certain council meeting minutes be disclosed under the State public records law, chapter 92F, FIRS, the Uniform Information Practices Act (Modified) (the - UIPA"). I The ICA affirmed the lower court's ruling that this action was properly brought under chapter 92, HRS, because that chapter's statutory scheme controls the disclosure of minutes.`' The ICA also affirmed the lower court's conclusion that the minutes were properly withheld in their entirety because of the compelling reasons for respecting and preserving the attorney-client privilege also afforded public agencies and because the privileged portions of the minutes were so intertwined with non-privileged portions that redaction would be impractical.
But let’s start at the beginning.
In January 2005 a new county council had just taken office with two new members- Mel Rapozo and Shaylene Iseri-Carvalho. Both were avowed political enemies of newly selected Police Chief KC Lum who was the Lieutenant on duty when the “lap dancer incident” took place and Rapozo by all accounts claimed Lum “turned in” Rapozo after another officer told Lum what was going on in the room next door that night.
Rapozo held Lum responsible for his ouster from the Kaua`i Police Department in the infamous “lap dancer” incident as detailed in the book “KPD Blue” (see left rail to read the book in it’s entirety). Iseri was married to Destry Carvalho, a KPD officer who was part of a faction that opposed Lum. She also, according to multiple sources, hald a grudge against Lum stemming from an incident when Lum was an officer and he tried multiple times to break up a loud party Iseri- at the time a deputy county prosecutor- was hosting at Lydgate Pavilion.
At the time Democratic Party members of the council also didn’t like the two members of the Police Commission who installed Lum- Chair Michael Ching, a prominent independent Hanalei business owner and commissioner Carol Furtado, a Republican.
So they called for an executive session to talk about either, for the first time ever invoking a charter provision, (3.17) that allows the council to investigate administrative departments, and/or finding out what the Board of Ethics was doing regarding their own investigation of the appointment.
Here’s the notice as it appeared on the agenda on Jan 20, 2005
Pursuant to Haw. Rev. Stat. §§92-4, 92-5(a)(4 and 92-5(a)(6), the purposes of this executive session are (1) to deliberate and decide whether an investigation of the Kaua`i Police Department should be conducted pursuant to §3.17 of the Kaua`i County Charter and the process to be used in the investigation (2) to consult with the County's legal counsel on legal issues regarding these matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item.
According to OIP’s “Statement of the Case” there’s probably more than you wanted to know about what happened next.
(After the meeting) OIP was initially asked by then chairperson of the Kauai Police Commission, Mr. Michael Ching, to investigate whether the meeting had complied with the Sunshine Law, including whether the executive meeting purposes cited applied to the matters discussed by the Council in the ES-177 Meeting.
OIP reviewed the ES-177 Meeting transcript (the "ES-177 Minutes") in camera, and considered the Council's stated justification for the executive meeting. By letter dated April 14, 2005 (the "April 14 opinion"), OIP found that a limited portion of the ES-177 meeting in fact consisted of protected attorney-client consultation under the standard for the open meeting exception at § 92-5(a)(4). (ES-177 Minutes filed under seal). However, OIP found that the remainder of the Council's discussion did not fall within the cited exceptions, and thus found that the remainder of the ES-177 Meeting should have been open to the public. Accordingly, O1P advised the Council to make the minutes of those portions of the ES-177 Meeting public (the "Public ES-177 Minutes").
OIP subsequently received UIPA appeals from Mr. Ching and another member of the public (the "Requesters"), who stated that they had made record requests to the Council in April 2005 for copies of the ES-177 Minutes, but had not received any response. Prior to and after those appeals, the Council asked for reconsideration of the underlying
Sunshine Law issue, and cited to three additional executive meeting purposes. OIP found no basis for reconsideration of the Sunshine Law question because the ES-177 Meeting discussions did not fall within any of the newly cited purposes. Accordingly, OIP determined that the UIPA required the Council to give the Requesters access to the Public ES-177 Minutes (the "May 20 determination").
Note here that the matter was no longer just whether or not there should have been an “open meeting” under the Sunshine Law (HRS- §92) but whether the minutes to the meeting were open records under the Uniform Information Practices Act (HRS- §92F).
The writ continues:
OIP agreed by letter dated June 9, 2005, to allow the Council a final opportunity to supplement its position. However, OIP could not agree to a "commitment of confidentiality" regarding that position, OIP only reviewed Council's subsequently offered general discussion of the attorney-client privilege and desire to discuss investigations in closed meetings, which OIP again determined insufficient to warrant reconsideration of its April 14 opinion and May 20 determination. On June 22, 2005, the Council again provided a generalized discussion of the attorney-client privilege and the Council's desire to discuss investigations in closed meetings, which OIP had previously determined was insufficient to warrant reconsideration of its April 14 opinion and May 20 determination. On July 14, 2005, the Council filed its action seeking declaratory and injunctive relief from OIP's determination that the Public ES-177 Minutes must be disclosed.
There are basically four arguments for why the ICA erred in upholding the 5th circuit court decision. We’ll list them with partial excerpts excluding much of the case law but including the pertinent statutory language and citations for those that want to understand the case the OIP is presenting and why it’s implications go far beyond ES-177, affecting the very future of the OIP itself.
I. The ICA gravely erred by affirming that Chapter 92 authorizes Council's action challenging an OIP decision to disclose a record, given chapter 92F's plain language, clear statutory scheme and legislative history that denies an agency the right to bring a court action for that purpose.
OIP believes that the ICA committed grave error in affirming circuit court jurisdiction to hear the Council's original action under chapter 92 without then limiting its review to determining applicability of that chapter. Rather, the court went further, applying its Sunshine Law interpretation to determine disclosure of a government record under both the Sunshine Law and the UIPA. Allowing an agency to bring a court action to challenge an OIP decision to disclose a government record in this matter conflicts with the plain language of § 92F-15.5, and circumvents the UIPA's underlying policy and remedial scheme and stated legislative intent clearly disallowing such agency action. In effect, the ICA decision now allows agencies to utilize the court system, delaying for years any resolution on disclosure and circumventing the legislative intent to provide the public with efficient resolution of records disputes. Given the Legislature's stated purpose of the UIPA and the policy of this state in § 92F-2, it is clear that in denying agencies the right to sue each other, the Legislature found the rights of the public to scrutinize and participate in government to outweigh an agency's ability to judicially contest disclosure of a government record.
Where a government agency denies a person access to any record, that person may appeal by judicial action under § 92F-15 or, alternatively, by administrative appeal to OIP under § 92F-15.5 (without prejudice to the right to seek judicial review). Where appeal to OIP is made, § 92F-15.5(b) directs in full as follows:
(b) If the decision is to disclose, the office of information practices shall notify the person and the agency, and the agency shall make the record available. If the denial of access is upheld, in whole or in part, the office of information practices shall, in writing, notify the person of the decision, the reasons for the decision, and the right to bring a judicial action under section 92F-15(a). (emphasis added).
OIP believes that this unambiguous language must mean that when a person appeals to OIP and OIP's decision is to disclose, an agency must generally be bound by that decision... Further, any possible ambiguity is extinguished by the Legislature's clear intent to bar agency suits against OIP over its record decision:
Your Committee wishes to emphasize that while a person has a right to bring a civil action in circuit court to appeal a denial of access to a government record, a government agency dissatisfied with an administrative ruling by the OIP does not have the right to bring an action in circuit court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government records would be frustrated by agencies suing each other. Conf Comm. Rep. No. 17, Haw. S. J. 763-64 (1989) (emphasis added).
Thus, the ICA's affirmation based upon a right of action arising outside of chapter 92F, despite the plain language of § 92F-15.5(b), appears to "completely ignore the obvious meaning and intent of the statute."
But the ICA did not recognize any of that and, as the OIP then says,
The Sunshine Law, in contrast to the UIPA, which provides for no agency actions (including by OIP), has a general "any person may commence an action" standard, for the purpose of requiring compliance, preventing violations, or determining applicability of part I of chapter 92. Compare HRS § 92-12(c) with § 92F-15 and -15.5(b). However, the Council here did not solely seek the court's application of a Sunshine Law provision. Its action went further, directly seeking to invalidate OIP's decision under the UIPA to disclose the ES-177 Minutes. Given the foregoing, OIP believes that finding the Sunshine Law to allow court adjudication of OIP's determination regarding the minutes cannot be reconciled with the language of § 92-15.5, its legislative history, or the UIPA's purpose and remedial scheme.
The second argument is one that shows how persistence pays off. A couple of years back, what has been called the “secret sunshine law” was “discovered”. Since then council watchdog Glenn Mickens has told the council of HRS 92-71 part of Section II of the part that contains the Sunshine Law. It states
"in the event that any political subdivision of the State shall provide by charter, ordinance or otherwise, more stringent requirements relating to mandating the openness of meetings, the more stringent provisions of said charter, ordinance, or otherwise, shall apply."
Well as fate would have it, the Kaua`i County charter has a provision 3.07(e) that says. according to the brief that “restricts the Council's use of closed meetings to (1) deliberations to confirm appointees or (2) ‘consultations with the county attorney on claims.’ (emphasis added)”
Though the charter was changed this past November by tricking people into voting to delete it under the guise of assuring that the charter “conform” with the Sunshine Law, it was in effect when ES-177 was held and a ruling releasing those minutes could also free up many of the minutes of ES meetings held before the provision took effect.
Mickens and later open government advocate Ken Taylor hounded the OIP with this matter, at first being rejected because OIP only administers Part 1 of the Sunshine Law (92-71 is in part two) but through his persistence the argument is included in the Supreme Court brief.
OIP asked
2. Assuming this action may properly be heard, the ICA gravely erred by not giving effect to the Kauai County Charter's more restrictive standard for closing a council meeting, given the plain language of § 92-71 that directs that a more stringent county standard "shall apply."
OIP did not have reason to address § 3.07E in its UIPA decision because OIP found that the Sunshine Law required the minutes to be public. OIP raised this provision to the circuit court and to the ICA to show that the Council's broadly applied attorney-client privilege to protect all its discussions with its counsel was not only contrary to the legislative intent underlying § 92- 5(a)(4) and other judicial opinions limiting to varying degrees the extent of the privilege for government attorneys, but also directly contradicted its own charter provision.
The third is really the meat of the appeal for those who object to the Kaua`i council’s penchant for going into executive session for public policy matters disguising them under a provision (HRS 92-5(a)4) that allows them to “consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities” and it’s relationship to the standard “attorney client privilege” which, the OIP says, is limited by overriding state law in the case of boards and commissions covered by the Sunshine Law.
The OIP says
3. The ICA gravely erred by failing to consider the legislative history indicating that he Legislature intentionally narrowed the attorney-client executive meeting purpose to cover only specified types of consultation between a board and its attorney.
As discussed in OIP's Opening Brief at 25-27, in 1985 the Legislature deliberately narrowed § 92-5(a)(4), the attorney-client executive meeting purpose, to apply to only limited types of consultation between a board and its attorney. As further discussed in OIP's Opening Brief at 23-30, this limitation of the attorney-client executive meeting purpose is consistent with the narrower scope of the attorney-client privilege generally when applied to government attorneys and clients in both this State and in other jurisdictions, as well as with the Sunshine Law's and the UIPA's general purpose and intent. See, e.g., HRS §§ 28-3, 92-1, and 92F-2. The ICA gravely erred by failing to consider the legislative history of § 92-5(a)(4) in deciding its scope. See Decision at 19-22. Instead, contrary to the legislative intent expressed in the 1985 amendment to § 92-5(a)(4) and the legislative mandate expressed in § 92-1 that exceptions to open meetings shall be strictly construed against closed meetings, the ICA interpreted the attorney-client executive meeting purpose broadly to encompass all discussion between the Council and its attorney in the meeting in question.
Lastly the OIP basically says "what are we here for if not this kind of determination since our oversight is plainly stated in the law and legislative intent". They say
4. The ICA gravely erred by failing to defer to OIP's interpretation of the breadth of the Sunshine Law's attorney-client executive meeting purpose under the "palpably erroneous" standard and to OIP's UIPA determination under the "abuse of discretion" standard.
One other thing of note is contained in a separate brief – the one filed by the county and upheld by the ICA. It contains a brief description of what went on in ES-177.
OIP's review of the ES[-]177 Minutes indicate[s] that the ongoing investigations discussed were limited to (1) an investigation being conducted by the County of Kauai, Board of Ethics, (2) a police investigation which had been turned over to the County of Kauai Prosecutor and (3) a proposed investigation into the termination of a KPD recruit. It is the opinion of OIP that the matters considered by the Council in ES[-]177 do not constitute "sensitive matters related to public safety or security."
Many believe that what went on was that Rapozo “went off” on Lum, Ching and/or Furtado and aired long held gripes against the department. Some of that was intimated in some of the correspondence between OIP and the county following the OIP’s review of the minutes and determination that they were public records.
It was thought by many political observers that Chair Kaipo Asing then “protected” Rapozo by fighting the release of the minutes, giving him a political Sword of Damocles to hang over Rapozo’s head should Rapozo try to maintain his rebel and maverick image, cultivated during the previous campaign
We’ll try to keep up with the case when and if it is granted review by the Supreme Court of Hawai`i. If anyone wants a copy of both documents- the OIP’s appeal and the ICA ruling- let us know at gotwindmills(at)gmail.com and we’ll get them to you.
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The powers that be will be happy to know that we’ll be taking the occasional day off during the next two months while entertaining ka mo`opuna, who’s here for the summer. We’ll try to make up for it by being twice as caustic when we do post.
Wednesday, July 1, 2009
Tuesday, June 30, 2009
ASK THE BIG DOG
ASK THE BIG DOG: The Office of Information Practices (OIP) has appealed the Intermediate Court’s denial of it’s appeal of a 5th circuit court ruling that kept the minutes of the infamous “ES-177” from pubic eyes.
The case stems from a January 2006 Kaua`i County Council closed-door meeting regarding its then-pending investigation of the Kaua`i Police Department. When the OIP told the council to give up the minutes, the council sued the OIP to stop their release.
But while we’re in receipt of the Supreme Court appeal brief we’re unable to lift quotes from the document that was also scanned in cockeyed as it was sent to us.
So while we’re awaiting a usable copy to go into some depth on the case we’ll preview a couple of relevant matters in the brief.
People keep wondering what the heck is in the minutes that would cause such a battle- one in which the OIP maintains the council can’t even sue them in the first place and the council digging in to keep matter from the public eye.
What it seems to come down to is that the lower courts have ruled solely on the basis of the Sunshine Law, HRS 92. It deals solely with open meetings and allows the council to meet to “consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities”.
Since it’s obviously too late to stop the council from going into executive session, so the original request was for the minutes to the meeting.
The OIP says that the “minutes” of those meetings fall not under the sunshine Law but under the Unified Information Practices Act (UIPA) HRS 92F which deal with open records since the minutes are by definition records.
The UIPA provides strict and specific limits as to what specific kinds of information can be withheld and also specifically denies the council and covered agencies the right to go to court to appeal OIP rulings and allows only for “persons” to go to court to appeal the OIP’s denial of access to records.
But more importantly the brief argues that the UIPA also apparently limits the county-claimed broad use of the private standards of “attorney client privilege” and places limitation on that privilege for state and county agencies covered by the law.
We’ll quote some law on that when we get the brief in usable form but in a nutshell the case has broad implications for the Kaua`i council’s penchant for using the above quoted Sunshine Law passage- “to consult with the board's attorney”- to go into executive session at the drop of a hat to discuss sensitive political issues by bringing in their attorney and asking a legal question or two.
Part of the OIP case is as to whether the council even has “standing” since the law is pretty explicit- and the legislative committee report on the UIPA specifically states that- the idea was to not allow covered agencies to appeal OIP rulings even though “persons” who were denied records could go to circuit court.
But assuming the court rejects that argument as the lower courts have (although according to the OIP brief they didn’t address the matter and relied only on the Sunshine Law, as the county highlighted) the OIP says that the intent of the Sunshine Law, read with UIPA, was to limit the attorney-client privilege that applies to private individuals and organizations.
That is a contention which would cause the county to have to limit when it goes into executive session if it doesn’t want the minutes- which are a records under UIPA- released.
We’ll get into it more when we get a clean copy because there is a lot of information that wasn’t previously available about the case in the Supreme Court appeal including a description from the county’s intermediate court of appeals filing describing what they say happened in ES-177.
But for now the important part is that if the Supreme Court looks at the law in full it may mean an end to the council’s ability to discuss private policy behind closed doors as we’ve detailed in this space for the last year and a half.
The case stems from a January 2006 Kaua`i County Council closed-door meeting regarding its then-pending investigation of the Kaua`i Police Department. When the OIP told the council to give up the minutes, the council sued the OIP to stop their release.
But while we’re in receipt of the Supreme Court appeal brief we’re unable to lift quotes from the document that was also scanned in cockeyed as it was sent to us.
So while we’re awaiting a usable copy to go into some depth on the case we’ll preview a couple of relevant matters in the brief.
People keep wondering what the heck is in the minutes that would cause such a battle- one in which the OIP maintains the council can’t even sue them in the first place and the council digging in to keep matter from the public eye.
What it seems to come down to is that the lower courts have ruled solely on the basis of the Sunshine Law, HRS 92. It deals solely with open meetings and allows the council to meet to “consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities”.
Since it’s obviously too late to stop the council from going into executive session, so the original request was for the minutes to the meeting.
The OIP says that the “minutes” of those meetings fall not under the sunshine Law but under the Unified Information Practices Act (UIPA) HRS 92F which deal with open records since the minutes are by definition records.
The UIPA provides strict and specific limits as to what specific kinds of information can be withheld and also specifically denies the council and covered agencies the right to go to court to appeal OIP rulings and allows only for “persons” to go to court to appeal the OIP’s denial of access to records.
But more importantly the brief argues that the UIPA also apparently limits the county-claimed broad use of the private standards of “attorney client privilege” and places limitation on that privilege for state and county agencies covered by the law.
We’ll quote some law on that when we get the brief in usable form but in a nutshell the case has broad implications for the Kaua`i council’s penchant for using the above quoted Sunshine Law passage- “to consult with the board's attorney”- to go into executive session at the drop of a hat to discuss sensitive political issues by bringing in their attorney and asking a legal question or two.
Part of the OIP case is as to whether the council even has “standing” since the law is pretty explicit- and the legislative committee report on the UIPA specifically states that- the idea was to not allow covered agencies to appeal OIP rulings even though “persons” who were denied records could go to circuit court.
But assuming the court rejects that argument as the lower courts have (although according to the OIP brief they didn’t address the matter and relied only on the Sunshine Law, as the county highlighted) the OIP says that the intent of the Sunshine Law, read with UIPA, was to limit the attorney-client privilege that applies to private individuals and organizations.
That is a contention which would cause the county to have to limit when it goes into executive session if it doesn’t want the minutes- which are a records under UIPA- released.
We’ll get into it more when we get a clean copy because there is a lot of information that wasn’t previously available about the case in the Supreme Court appeal including a description from the county’s intermediate court of appeals filing describing what they say happened in ES-177.
But for now the important part is that if the Supreme Court looks at the law in full it may mean an end to the council’s ability to discuss private policy behind closed doors as we’ve detailed in this space for the last year and a half.
Monday, June 29, 2009
MADNESS TO THE METHODS
MADNESS TO THE METHODS: A small notice in today’s local paper announced what may seem to malihini to be about a ho-hum blessing of the new papaya disinfection plant on Kaua`i.
But in simply rewriting a county press release the paper’s editor allows more questions to be raised than answered for many kama`aina who remember the history of the papaya “industry” and the issues of disinfection.
The press release conveniently fails to answer the big question- exactly how will the papaya’s be disinfected?
There was a time in the 70’s when papaya was “the future of ‘diversified’ agriculture” on Kaua`i. The export market seemed so unlimited that farmers were actually tearing out fields of bananas in Kilauea to plant papaya.
All it would take was a disinfection facility,
That led to one of the biggest political protest battles in Hawaiian history- the fight against “irradiation facilities”- exposing them to nuclear material- and the efforts of the state backed by University of Hawai`i and some large farms to construct the facilities.
Long story short, the people won their fight against irradiation, especially on the Big Island, buy only after it became academic because the people of Japan said they wouldn’t eat them. Eventually the movement went nationwide where people refused to buy irradiated foods when they were labeled as such.
That led to a “hot water disinfection” method which never worked and destroyed the papayas. Eventually these “hot water dip” facilities that had been built- including one on Kaua`i- went defunct and ours was actually demolished.
So naturally this peaked our interest- what kind of disinfection process was to be used in the new plant?
We called Bill Spitz, who was listed in the article as Agricultural Specialist with the county’s Office of Economic Development and he told us that the plant would use a “hot air” process which would heat the fruit to 117 degrees with a big fan and a little bit of water.
Wow, we thought- a new method and one that could have saved everyone from a lot of pilikila over the past 20 years if we had it then.
But guess what? Spitz told us that this method not new and indeed was developed at UH more than 20 years ago.
Of course at the time many irradiation opponents claimed there were other safer methods of fighting bugs and disease and that the state was being sold a bill of goods by the burgeoning irradiation industry.
Even though the label was an innocuous looking symbol that told you nothing if you didn’t already know what it was, people learned fast enough, and rejected such fruits and vegetables.
Gee it’s great they learned their lesson and haven’t tried to use any unproven potentially harmful methodologies developed in UH labs to “save” the papaya and other produce industries.... not.
What they have learned is to fight like hell against current efforts to require labeling of genetically modified products, including of course papayas.
Overseas in Japan and across Europe they do require labeling and many governments have banned the importation of GM produce entirely- meaning now that we have a way to disinfect them no one will accept our GM papayas.
There are many ways other than genetic modification to control plant diseases and insect vulnerabilities, as sustainability experts will tell you. Maybe in 20 years state policy makers and UH researchers will listen.
Currently though the facility isn’t the only thing that’s full of hot air.
But in simply rewriting a county press release the paper’s editor allows more questions to be raised than answered for many kama`aina who remember the history of the papaya “industry” and the issues of disinfection.
The press release conveniently fails to answer the big question- exactly how will the papaya’s be disinfected?
There was a time in the 70’s when papaya was “the future of ‘diversified’ agriculture” on Kaua`i. The export market seemed so unlimited that farmers were actually tearing out fields of bananas in Kilauea to plant papaya.
All it would take was a disinfection facility,
That led to one of the biggest political protest battles in Hawaiian history- the fight against “irradiation facilities”- exposing them to nuclear material- and the efforts of the state backed by University of Hawai`i and some large farms to construct the facilities.
Long story short, the people won their fight against irradiation, especially on the Big Island, buy only after it became academic because the people of Japan said they wouldn’t eat them. Eventually the movement went nationwide where people refused to buy irradiated foods when they were labeled as such.
That led to a “hot water disinfection” method which never worked and destroyed the papayas. Eventually these “hot water dip” facilities that had been built- including one on Kaua`i- went defunct and ours was actually demolished.
So naturally this peaked our interest- what kind of disinfection process was to be used in the new plant?
We called Bill Spitz, who was listed in the article as Agricultural Specialist with the county’s Office of Economic Development and he told us that the plant would use a “hot air” process which would heat the fruit to 117 degrees with a big fan and a little bit of water.
Wow, we thought- a new method and one that could have saved everyone from a lot of pilikila over the past 20 years if we had it then.
But guess what? Spitz told us that this method not new and indeed was developed at UH more than 20 years ago.
Of course at the time many irradiation opponents claimed there were other safer methods of fighting bugs and disease and that the state was being sold a bill of goods by the burgeoning irradiation industry.
Even though the label was an innocuous looking symbol that told you nothing if you didn’t already know what it was, people learned fast enough, and rejected such fruits and vegetables.
Gee it’s great they learned their lesson and haven’t tried to use any unproven potentially harmful methodologies developed in UH labs to “save” the papaya and other produce industries.... not.
What they have learned is to fight like hell against current efforts to require labeling of genetically modified products, including of course papayas.
Overseas in Japan and across Europe they do require labeling and many governments have banned the importation of GM produce entirely- meaning now that we have a way to disinfect them no one will accept our GM papayas.
There are many ways other than genetic modification to control plant diseases and insect vulnerabilities, as sustainability experts will tell you. Maybe in 20 years state policy makers and UH researchers will listen.
Currently though the facility isn’t the only thing that’s full of hot air.
Friday, June 26, 2009
(PNN) REPORT: DAM DITCH INTAKE AND RETURN WATER TO MOLOA`A STREAM
REPORT: DAM DITCH INTAKE AND RETURN WATER TO MOLOA`A STREAM
(PNN) -- Moloa`a Stream's flow will be “restored to it’s natural state” if a consultant’s recommendation are followed, the county council was told Wednesday.
But although Moloa`a water activist Hope Kallai, who has pushed for the return of water to Moloa`a residents and farmers, was pleased, she also said not so fast there. She explained that the point of diversion is on conservation land and any effort at all would need permissions and permits to work on the current stream alteration that diverts river water into Moloa`a Ditch.
In addition, although Kallai did not mention it, water course alterations also usually need federal permits.
In a presentation of the final draft of the “Kilauea Irrigation Water Engineering Monitoring Study”, Andy Hood of “Sustainable Resources Group International Inc.” told council members that the water that flows into the Ka Loko Ditch system from the Kalua`a tributary of Moloa`a Stream is “not needed” to sustain agriculture in the area and “recommend(ed) at the point of diversion at Kalua`a stream, the intake to Moloa`a ditch be dammed up and restored to its natural state”.
Hood said that although “Moloa`a Ditch had never been registered to receive a stream works diversion permit nor was the ditch permitted” there was “nothing sinister” in that and there was “no malfeasance”. Rather he theorized that Brewer Inc, who owned the land prior to 1987, “just didn’t need the water” and the permitting “slipped through the cracks”.
He did not mention the part of the original draft report that says that the current condition of the intake dam was apparently the result of work done only about 10 ago, as PNN reported in its series on the Moloa`a Water theft (see left “rail” for links to prior reports).
Hood said that the Mary Lucas Trust (MLT)- which according to a 1987 “allocation” shares the water equally with the Kilauea Irrigation company (KICO) and owns land abutting Ka Loko Reservoir- has agreed to pay for restoring the flow to farmers and residents in Moloa`a Valley who say they have noticed a marked decrease in water flow and area wells ever since the late 90’s around the time the work was allegedly done.
According to that 1987 water rights agreement to serve the 105 acre “Kilauea Farms Subdivision” below the reservoir, KICO and MLT are to share the water “50-50”, Hood told the council.
But State Aquatic Resources Kaua`i Manager Don Heacock said that water rights nowadays are subject to the “pubic trust doctrine”- as established in the Wai`ahole Ditch Hawai`i Supreme Court decision- and should be allocated based on need and use by the “State Commission of Water Resources”.
Hood said that he could not determine use by KICO because it’s owner Thomas Hitch has seemingly disappeared and the current users claim “proprietary information” that “their competitors” would like to get their hands on a survey of the users done for the study drew few responses.
In addition due to the massive and complicated litigation surrounding the March 2006 Ka Loko dam break tragedy that killed seven people downstream, no one wants to talk about anything although he said much of the report would not have been possible without the discovery” process as a result of the suits.
He also said MLT only uses the water they receive to support around a hundred head of cattle.
One discrepancy as stated by Hood is that MLT receives water through a pipe that takes water from the Ka Loko ditch way up valley but also shares a 50-50 use arrangement just above the reservoir implying that MLT may be receiving much more than 50% despite their limited need.
In a power point presentation cut short by the enforcement of the council’s “three minutes” rules, Kallai presented documents showing that prior to the ’87 agreement both the county council in 1979 and the Water Department subsequently, had designs on the water. The council wanted to supply planned “diversified agriculture” in the entire Kilauea area from Kalihiwai to Moloa`a and the Department wanted some for potable water.
As to whether there is sufficient water to serve the Kilauea Farms subdivision- which was the actual subject of the $75,000 study initiated by Councilmembers Jay Furfaro and Darryl Kaneshiro- the answer is “just barely” under the current arrangement and condition of Ka Loko reservoir.
Hood provided a few options for increasing the flow including a limited repair of the breach at the bottom of the reservoir where overflow currently runs down valley into the ocean when the three big pipes that remove the water for irrigation are fully supplied.
Kallai claimed that the overflow is a huge mess that was never investigated by the EPA, and never cleaned up making the damage downstream and to the reef and ocean something that would “make Pila`a look manini.”
Some councilmembers wanted to know if and how the system might serve the entire Kilauea area since it is just barely sufficient in its current state to serve the Kilauea Farms Subdivision. But it was determined that historically there were other components of the entire Kilauea Sugar Company operations irrigation system, including the Kalihiwai reservoir which originally served some lands in that area until sugar production was shut down in the early 70’s.
That area would include the new Kilauea Agricultural Park that the county has recently obtained after a 30 year battle to acquire and set it up. Present plans are to use the potable county water system for the farm rather than a the old gravity driven cane ditch system.
The council discussed briefly whether funding a wider study to get a comprehensive idea of the water resources and needs- and current flows which were not in the report aside from some guesswork on the Ka Loko system- but Heacock recommended contacting the state Department of Land and Natural Resources (DLNR), the federal Department of Agriculture’s National Resources Conservation Service and the US Geologic Service in Honolulu to get them to coordinate and possibly fund the study since it was essentially their kuleana.
Heacock said that there are actually 26 streams that feed Ka Loko system, something Hood intimated when saying that the flow intake at the head end of the Ka Loko system was less than the amount flowing at the end, guessing that there were areas where streams fed the ditch at lower elevation although his staff did not observe them.
And of course that net gain includes the previously mentioned “pipe” at higher elevations that removes water for MLT’s cows
Heacock said there needs to be a full disclosure on “what’s being serviced- what crops are being grown” implying that some farms’ claim to “proprietary information” was not going to get them water if the “public trust” involved in water rights is enforced.
Kallai was denied permission by Economic Development and Housing Committee Chair Dickie Chang to use the testimony time of the roomful of KNA members present and was cut off without being able to finish her whole presentation which included documents not in the county report, many from a 1984 federal study of ag in the Kilauea area and water usage stakeholders at that time that were excluded in the ’87 agreement between KICO and MLT.
But as she was being given the bums rush she did mange to blurt out that the intake was on state conservation land and therefore no activity may take place without the DLNR’s permission and no changes to water flow may be effectuated without the OK of the DLNR’s “Commission of Water Resources” which determine water usage based on the Wai`ahole pubic trust doctrine.
Despite the testimony by Hood regarding Moloa`a Ditch, previous to and in anticipation of Kallai’s testimony Councilperson Darryl Kaneshiro and Council Chair Kaipo Asing attempted to limit her testimony because the specific subject of Moloa`a Ditch wasn’t on the council’s official agenda. But councilperson Jay Furfaro countered that under the state sunshine law the public was permitted to speak “off agenda” at the discretion of Committee Chair Chang.
The 155 page PDF file of the report is available on-line. It was funded through the county’s Office of Economic Development.
(PNN) -- Moloa`a Stream's flow will be “restored to it’s natural state” if a consultant’s recommendation are followed, the county council was told Wednesday.
But although Moloa`a water activist Hope Kallai, who has pushed for the return of water to Moloa`a residents and farmers, was pleased, she also said not so fast there. She explained that the point of diversion is on conservation land and any effort at all would need permissions and permits to work on the current stream alteration that diverts river water into Moloa`a Ditch.
In addition, although Kallai did not mention it, water course alterations also usually need federal permits.
In a presentation of the final draft of the “Kilauea Irrigation Water Engineering Monitoring Study”, Andy Hood of “Sustainable Resources Group International Inc.” told council members that the water that flows into the Ka Loko Ditch system from the Kalua`a tributary of Moloa`a Stream is “not needed” to sustain agriculture in the area and “recommend(ed) at the point of diversion at Kalua`a stream, the intake to Moloa`a ditch be dammed up and restored to its natural state”.
Hood said that although “Moloa`a Ditch had never been registered to receive a stream works diversion permit nor was the ditch permitted” there was “nothing sinister” in that and there was “no malfeasance”. Rather he theorized that Brewer Inc, who owned the land prior to 1987, “just didn’t need the water” and the permitting “slipped through the cracks”.
He did not mention the part of the original draft report that says that the current condition of the intake dam was apparently the result of work done only about 10 ago, as PNN reported in its series on the Moloa`a Water theft (see left “rail” for links to prior reports).
Hood said that the Mary Lucas Trust (MLT)- which according to a 1987 “allocation” shares the water equally with the Kilauea Irrigation company (KICO) and owns land abutting Ka Loko Reservoir- has agreed to pay for restoring the flow to farmers and residents in Moloa`a Valley who say they have noticed a marked decrease in water flow and area wells ever since the late 90’s around the time the work was allegedly done.
According to that 1987 water rights agreement to serve the 105 acre “Kilauea Farms Subdivision” below the reservoir, KICO and MLT are to share the water “50-50”, Hood told the council.
But State Aquatic Resources Kaua`i Manager Don Heacock said that water rights nowadays are subject to the “pubic trust doctrine”- as established in the Wai`ahole Ditch Hawai`i Supreme Court decision- and should be allocated based on need and use by the “State Commission of Water Resources”.
Hood said that he could not determine use by KICO because it’s owner Thomas Hitch has seemingly disappeared and the current users claim “proprietary information” that “their competitors” would like to get their hands on a survey of the users done for the study drew few responses.
In addition due to the massive and complicated litigation surrounding the March 2006 Ka Loko dam break tragedy that killed seven people downstream, no one wants to talk about anything although he said much of the report would not have been possible without the discovery” process as a result of the suits.
He also said MLT only uses the water they receive to support around a hundred head of cattle.
One discrepancy as stated by Hood is that MLT receives water through a pipe that takes water from the Ka Loko ditch way up valley but also shares a 50-50 use arrangement just above the reservoir implying that MLT may be receiving much more than 50% despite their limited need.
In a power point presentation cut short by the enforcement of the council’s “three minutes” rules, Kallai presented documents showing that prior to the ’87 agreement both the county council in 1979 and the Water Department subsequently, had designs on the water. The council wanted to supply planned “diversified agriculture” in the entire Kilauea area from Kalihiwai to Moloa`a and the Department wanted some for potable water.
As to whether there is sufficient water to serve the Kilauea Farms subdivision- which was the actual subject of the $75,000 study initiated by Councilmembers Jay Furfaro and Darryl Kaneshiro- the answer is “just barely” under the current arrangement and condition of Ka Loko reservoir.
Hood provided a few options for increasing the flow including a limited repair of the breach at the bottom of the reservoir where overflow currently runs down valley into the ocean when the three big pipes that remove the water for irrigation are fully supplied.
Kallai claimed that the overflow is a huge mess that was never investigated by the EPA, and never cleaned up making the damage downstream and to the reef and ocean something that would “make Pila`a look manini.”
Some councilmembers wanted to know if and how the system might serve the entire Kilauea area since it is just barely sufficient in its current state to serve the Kilauea Farms Subdivision. But it was determined that historically there were other components of the entire Kilauea Sugar Company operations irrigation system, including the Kalihiwai reservoir which originally served some lands in that area until sugar production was shut down in the early 70’s.
That area would include the new Kilauea Agricultural Park that the county has recently obtained after a 30 year battle to acquire and set it up. Present plans are to use the potable county water system for the farm rather than a the old gravity driven cane ditch system.
The council discussed briefly whether funding a wider study to get a comprehensive idea of the water resources and needs- and current flows which were not in the report aside from some guesswork on the Ka Loko system- but Heacock recommended contacting the state Department of Land and Natural Resources (DLNR), the federal Department of Agriculture’s National Resources Conservation Service and the US Geologic Service in Honolulu to get them to coordinate and possibly fund the study since it was essentially their kuleana.
Heacock said that there are actually 26 streams that feed Ka Loko system, something Hood intimated when saying that the flow intake at the head end of the Ka Loko system was less than the amount flowing at the end, guessing that there were areas where streams fed the ditch at lower elevation although his staff did not observe them.
And of course that net gain includes the previously mentioned “pipe” at higher elevations that removes water for MLT’s cows
Heacock said there needs to be a full disclosure on “what’s being serviced- what crops are being grown” implying that some farms’ claim to “proprietary information” was not going to get them water if the “public trust” involved in water rights is enforced.
Kallai was denied permission by Economic Development and Housing Committee Chair Dickie Chang to use the testimony time of the roomful of KNA members present and was cut off without being able to finish her whole presentation which included documents not in the county report, many from a 1984 federal study of ag in the Kilauea area and water usage stakeholders at that time that were excluded in the ’87 agreement between KICO and MLT.
But as she was being given the bums rush she did mange to blurt out that the intake was on state conservation land and therefore no activity may take place without the DLNR’s permission and no changes to water flow may be effectuated without the OK of the DLNR’s “Commission of Water Resources” which determine water usage based on the Wai`ahole pubic trust doctrine.
Despite the testimony by Hood regarding Moloa`a Ditch, previous to and in anticipation of Kallai’s testimony Councilperson Darryl Kaneshiro and Council Chair Kaipo Asing attempted to limit her testimony because the specific subject of Moloa`a Ditch wasn’t on the council’s official agenda. But councilperson Jay Furfaro countered that under the state sunshine law the public was permitted to speak “off agenda” at the discretion of Committee Chair Chang.
The 155 page PDF file of the report is available on-line. It was funded through the county’s Office of Economic Development.
Thursday, June 25, 2009
TROT VS. GALLOP
TROT VS. GALLOP: We spent the morning playing catch-up, watching last week’s “county manager forum” and were expecting a good presentation from David Mora, the West Coast regional director of the International City/County Management Association and probably a bunch of ill-informed clueless questions from the attendees.
While Mora didn’t disappoint, nothing could be farther from the truth on the latter point.
Anyone who cares about the future of county governance would be behooved to give it a gander or fire up the VCR tomorrow morning (Friday) at 8:08 a.m. and hopefully continuing over the weekend on Ho`ike Channel 53.
The questions asked revealed the breadth and depth of the project and made it apparent that there are myriad considerations that need to go into any new system.
One thing became clear about what Mora insisted we call the “Council/County Manager (C-CM)” system- there are as many ways to set up a system as there are jurisdictions and virtually no two are the same. Each reflects the needs of the community, compliance with the existing state constitution and laws and especially political history and culture of the area.
Other than saying he made clear that the position of mayor never disappears under a C-CM scheme we won’t go into all the devilish details but one thing is clear- if the particulars of the system we choose isn’t appropriate there will be the devil to pay.
That means that having the existing three person sub-committee of the Charter Review Commission meet once a month in untelevised thus practical anonymity and come up with a fully fleshed out and vetted proposal may be impossible and certainly is not appropriate for a plan of this magnitude.
Such a change would be many times more important to the people of Kaua`i than our General Plan (GP) Updates, another of which is due to begin after the next election.
Writing any “new charter”- which is what it will take to implement a C-CM plan- must be subject to the same level of public education, input and scrutiny as the GP updates including a citizen’s advisory panel, island-roving, televised meetings and all the public input possible.
If we don’t do that we are likely to produce a document that doesn’t reflect the needs and wants of a consensus of the people and guarantee that all that work will be for nil when people are asked to institute a new system of government that they don’t understand or particularly want with all the details being released next summer fully formed, each giving someone a reason to vote against it.
As we all know when asked to pass a ballot measure we don’t understand or aren’t sure we like, people will vote no.
If we go through all this and it is shot down it will be the death of any chance for a re-write of our charter to reflect the distance we’ve traveled since the current charter was written in the mid 60’s to reflect a plantation economy and society.
We ask the proponents of the C-CM system to slow down and instead of insisting we rush head-long into a potential flawed document without a community buy-in. We urge them to consider allowing the subcommittee to recommend a process similar to the one employed to come up with a GP, which is usually a two year process.
We owe it to ourselves to make this work and if it’s going to work, there’s plenty of work to do.
While Mora didn’t disappoint, nothing could be farther from the truth on the latter point.
Anyone who cares about the future of county governance would be behooved to give it a gander or fire up the VCR tomorrow morning (Friday) at 8:08 a.m. and hopefully continuing over the weekend on Ho`ike Channel 53.
The questions asked revealed the breadth and depth of the project and made it apparent that there are myriad considerations that need to go into any new system.
One thing became clear about what Mora insisted we call the “Council/County Manager (C-CM)” system- there are as many ways to set up a system as there are jurisdictions and virtually no two are the same. Each reflects the needs of the community, compliance with the existing state constitution and laws and especially political history and culture of the area.
Other than saying he made clear that the position of mayor never disappears under a C-CM scheme we won’t go into all the devilish details but one thing is clear- if the particulars of the system we choose isn’t appropriate there will be the devil to pay.
That means that having the existing three person sub-committee of the Charter Review Commission meet once a month in untelevised thus practical anonymity and come up with a fully fleshed out and vetted proposal may be impossible and certainly is not appropriate for a plan of this magnitude.
Such a change would be many times more important to the people of Kaua`i than our General Plan (GP) Updates, another of which is due to begin after the next election.
Writing any “new charter”- which is what it will take to implement a C-CM plan- must be subject to the same level of public education, input and scrutiny as the GP updates including a citizen’s advisory panel, island-roving, televised meetings and all the public input possible.
If we don’t do that we are likely to produce a document that doesn’t reflect the needs and wants of a consensus of the people and guarantee that all that work will be for nil when people are asked to institute a new system of government that they don’t understand or particularly want with all the details being released next summer fully formed, each giving someone a reason to vote against it.
As we all know when asked to pass a ballot measure we don’t understand or aren’t sure we like, people will vote no.
If we go through all this and it is shot down it will be the death of any chance for a re-write of our charter to reflect the distance we’ve traveled since the current charter was written in the mid 60’s to reflect a plantation economy and society.
We ask the proponents of the C-CM system to slow down and instead of insisting we rush head-long into a potential flawed document without a community buy-in. We urge them to consider allowing the subcommittee to recommend a process similar to the one employed to come up with a GP, which is usually a two year process.
We owe it to ourselves to make this work and if it’s going to work, there’s plenty of work to do.
Wednesday, June 24, 2009
THAT DOG NEVER DID HUNT
THAT DOG NEVER DID HUNT: The Superferry is making headlines again today but as Joan Conrow pointed out this morning, the Honolulu Advertiser’s story missed the mark in reporting that “Hawaii Superferry wants to abandon both its catamarans when the real story, as reported in the Mobile (AL) Press Register (P-R), is that it was anything but about what Hawai`i Superferry (HSf) Inc. wanted to do but rather about the fact that the “Government (is) to repossess Hawaii Superferry”
One things that stands out is a discrepancy between how much of their “investment” in the project HSf maker Austal is eating on the deal, with the Advertiser reporting the figure at $29.9 million and the P-R saying it is only 11 of that 29 million that they will “write off”.
As Joan points out a key passage in the P-R article- at least for those of us who have seen through all the gorilla dust and spin and seen how the project was always about demonstrating the aluminum catamaran design of Austal’s so that they could get the huge military contract they have now signed- says:
Browning said that Austal approved lending $23 million to the ferry venture in part because the deal would help raise the profile of Austal's U.S. shipyard, which at the time had been operating in Mobile for only a few years. Although it succeeded in doing that — the Mobile shipyard in November won a potential $1.6 billion contract to build up to 10 high-speed fast ferries for the military — Browning said the company's lending days are over.
But another couple of passages in the P-R article were, well, pretty outrageous, the first saying
Talks among MARAD, Austal and Hawaii Superferry broke down last week, Austal officials said....
Austal Ltd. President Bob Browning said he was disappointed that MARAD decided to seize the ferries without involving Austal in a project to prepare them for military use.
Maybe Austal is “disappointed” but that is certainly good news for HSf- it seems that the “taxpayer guarantee” is now being “activated” which lets the owners off the hook for trying to find work for the apparently unwanted ferry, as evidenced by the lack of interest thus far in leasing the vessels even to the military.
But the bombshell in this, if true, might just be this sentence:
MARAD made the ferry loans under its Title XI program, which is supposed to support U.S. shipyards by reducing their reliance on military work.
With what we know now about how the whole deal went down in order to have Austal positioned to do military work, the fact that MARAD- the U.S. Maritime Administration- made the loan to “support U.S. shipyards by reducing their reliance on military work” points to one conclusion- the whole deal was a fraud.
Austal has admitted as much by saying publicly and repeatedly that their “investment” was in order to prove the ferry’s seaworthiness so it could eventually rely on military work, while knowing full well of the thus-far-unreported “strings attached” to the MARAD loan.
And by fraud we don’t mean just some petty theft- we’re talking about defrauding the taxpayer out of $136.8 million.
If nothing else it goes a long way in explaining the constant, adamant denial of military involvement in the venture- for no good reason- in the face the mounting evidence, as first reported by Conrow.
It also raises the question of what the liability of former Naval Secretary John Lehman may be now that MARAD has stepped in. Funny how he personally seems to be getting away scot-free, at least financially, when it was his machinations that cost everyone big bucks, including the Hawai`i taxpayers who will probably never see the $40 million Harbor improvements Governor Linda Lingle’s “Unified command” was duped out of .
As a matter of fact, he may turn a profit since, as the Advertiser article reports:
The company has no current source of revenue yet has to cover the cost of insurance, maintenance, security, storage and a skeleton crew for the catamarans at an Alabama shipyard owned by J.F. Lehman & Co., the project's main private investor.
So Lehman gets off from any financial responsibility for the fiasco he created and is most likely collecting “maintenance storage, security, and (salaries for) a skeleton crew” now that MARAD has taken “possession” of the boats.
We’ll see what happens in bankruptcy court where proceedings are now taking place in Delaware although the state is trying to move them to Hawai`i. But due to the insane bankruptcy laws that allow fat cats to form “limited liability” companies and duck out of obligations through bankruptcy yet stick working class credit card and home debtors with paying back every penny, don’t expect Lehman to be crying all the way to the bank.
---------
Correction:
Yesterday we said that Councilman Darryl Kaneshiro served in the Eduardo Malapit administration as Mala’s “Administrative Assistant”, a second-in-command “assistant mayor” position as defined in the county charter.
Rather, Kaneshiro’s service was in the administration of Tony Kunimura where he served as economic development director and, apparently, as a generic administrative aide. We regret the error.
One things that stands out is a discrepancy between how much of their “investment” in the project HSf maker Austal is eating on the deal, with the Advertiser reporting the figure at $29.9 million and the P-R saying it is only 11 of that 29 million that they will “write off”.
As Joan points out a key passage in the P-R article- at least for those of us who have seen through all the gorilla dust and spin and seen how the project was always about demonstrating the aluminum catamaran design of Austal’s so that they could get the huge military contract they have now signed- says:
Browning said that Austal approved lending $23 million to the ferry venture in part because the deal would help raise the profile of Austal's U.S. shipyard, which at the time had been operating in Mobile for only a few years. Although it succeeded in doing that — the Mobile shipyard in November won a potential $1.6 billion contract to build up to 10 high-speed fast ferries for the military — Browning said the company's lending days are over.
But another couple of passages in the P-R article were, well, pretty outrageous, the first saying
Talks among MARAD, Austal and Hawaii Superferry broke down last week, Austal officials said....
Austal Ltd. President Bob Browning said he was disappointed that MARAD decided to seize the ferries without involving Austal in a project to prepare them for military use.
Maybe Austal is “disappointed” but that is certainly good news for HSf- it seems that the “taxpayer guarantee” is now being “activated” which lets the owners off the hook for trying to find work for the apparently unwanted ferry, as evidenced by the lack of interest thus far in leasing the vessels even to the military.
But the bombshell in this, if true, might just be this sentence:
MARAD made the ferry loans under its Title XI program, which is supposed to support U.S. shipyards by reducing their reliance on military work.
With what we know now about how the whole deal went down in order to have Austal positioned to do military work, the fact that MARAD- the U.S. Maritime Administration- made the loan to “support U.S. shipyards by reducing their reliance on military work” points to one conclusion- the whole deal was a fraud.
Austal has admitted as much by saying publicly and repeatedly that their “investment” was in order to prove the ferry’s seaworthiness so it could eventually rely on military work, while knowing full well of the thus-far-unreported “strings attached” to the MARAD loan.
And by fraud we don’t mean just some petty theft- we’re talking about defrauding the taxpayer out of $136.8 million.
If nothing else it goes a long way in explaining the constant, adamant denial of military involvement in the venture- for no good reason- in the face the mounting evidence, as first reported by Conrow.
It also raises the question of what the liability of former Naval Secretary John Lehman may be now that MARAD has stepped in. Funny how he personally seems to be getting away scot-free, at least financially, when it was his machinations that cost everyone big bucks, including the Hawai`i taxpayers who will probably never see the $40 million Harbor improvements Governor Linda Lingle’s “Unified command” was duped out of .
As a matter of fact, he may turn a profit since, as the Advertiser article reports:
The company has no current source of revenue yet has to cover the cost of insurance, maintenance, security, storage and a skeleton crew for the catamarans at an Alabama shipyard owned by J.F. Lehman & Co., the project's main private investor.
So Lehman gets off from any financial responsibility for the fiasco he created and is most likely collecting “maintenance storage, security, and (salaries for) a skeleton crew” now that MARAD has taken “possession” of the boats.
We’ll see what happens in bankruptcy court where proceedings are now taking place in Delaware although the state is trying to move them to Hawai`i. But due to the insane bankruptcy laws that allow fat cats to form “limited liability” companies and duck out of obligations through bankruptcy yet stick working class credit card and home debtors with paying back every penny, don’t expect Lehman to be crying all the way to the bank.
---------
Correction:
Yesterday we said that Councilman Darryl Kaneshiro served in the Eduardo Malapit administration as Mala’s “Administrative Assistant”, a second-in-command “assistant mayor” position as defined in the county charter.
Rather, Kaneshiro’s service was in the administration of Tony Kunimura where he served as economic development director and, apparently, as a generic administrative aide. We regret the error.
Tuesday, June 23, 2009
IT TAKES TWICE TWO BABY- AND BABY ONLY MAKES THREE
IT TAKES TWICE TWO BABY- AND BABY ONLY MAKES THREE: No one can accuse Councilperson Jay Furfaro of missing enough moist fingers to tell which way the political winds are blowing. So of course the fact that he beat a path to the door of the never-never land of the local newspaper to say “I'm a dissident too” should come as no surprise, especially to our readers who heard about his apparent 180 last week.
But inaccuracies like the mayor having a role in the selection of the county clerk aside (the council alone makes the choice), the article attempts to makes sure everyone in town now adds his name to the list of “good guys”, making for three votes where four is the magic number.
People may remember- and the article fails to note- that actually Furfaro ran for chair this year and garnered the votes of the original council dissidents Tim Bynum and Lani Kawahara, who have had the courage of their convictions as opposed to Furfaro who jumped on the bandwagon after wide-spread outrage in the community and a lack of support for Chair Kaipo Asing surfaced, even among many of Asing’s lock step supporters.
That may answer at least the first of the questions Joan Conrow asked today, wondering why:
Given Kaipo’s history, why did the Council vote to again make Kaipo chair? Why doesn’t the Council act now to remove him from that position? And why didn’t the Council move to change some of its rules when Kaipo was briefly dethroned and warming the seat at the mayor’s office? Surely they would have found an ally in former Councilwoman JoAnn Yukimura.
The first two being a matter of “doing the math”- and the math being a function of the political climbing of freshman Derrek Kawakami, the deer-in-the-headlights wits of the glad-handing Dickie Chang and the founding nature of Darryl Kaneshiro’s membership in the old boys club (he was Mayor Eduardo Malapit’s administrative assistant)- Kaipo will remain in power until either Derrek gets the message from voters or Dickie buys a pair (no, eyes).
But the third question begs a little recent history lesson.
In the article Furfaro touts how he tried to deal with the “secret county attorney opinions” quagmire created by Asing and former County Attorney Lani Nakazawa and continued by her successor Matthew Pyun.
In typical credit grabbing Furfaro style the article neglects to mention that it was Bynum who kept harping on the Star Chamber nature of the “we have an opinion that explains our actions but we can’t share it with you” machinations.
It was actually Bynum who challenged the policy over and over in open council session and was prepared to overturn it immediately.
While it was Furfaro who put it on the agenda while he was temporary chair in Asing’s absence last summer after Asing moved to the mayor’s slot when Bryan Baptiste died, it was also he who said they needed to wait to act until they had a “county-wide policy”- applying to boards and commissions too- for releasing the opinion, which of course the county attorney had to come up with- and still hasn’t to this day.
That was after he had adamantly agreed with Asing that there first must be a council policy enacted to release them, even though they had been routinely released for years before Asing’s reign as chair.
But that could have been done quickly as Bynum said he had prepared just such a policy, hence the requirement for a county-wide policy to further delay the seemingly not so inevitable.
That leads to the related statement in last sentence of Joan’s ponderings- “Surely they would have found an ally in former Councilwoman JoAnn Yukimura.”
Well Joan, surely you jest.
If there was one person who not just allowed but promulgated the secrecy of the Asing regime it was our dear JoAnn.
She used her status and abilities as an attorney to talk out of both sides of her mouth on this, claiming to support open governance but doing everything she could to perpetuate both the “secret county attorney opinions” and use of the executive session to hide embarrassing political decisions regarding public policy under the guise of “discussions with their attorney” matters of “potential, future litigation” arising from discussions of pending legislation- a warping of the sunshine law that was used just last week to discuss either implementing, or more likely fighting, the new citizen’s general plan enforcement charter amendment.
This all came to a head last summer during the bill to allow existing illegal transient vacation rentals in non visitor destination areas after threats to sue the county from Board of Realtors’ attorney Jonathan Chun “forced” her, as planning committee chair, to pass out a bill grandfathering anyone who had been violating state law for years, based on a convoluted county attorney opinion that had been released before the change was made to keep them secret.
(Actually the release of that opinion at the time was instrumental in the thinking of Yukimura that these opinions should not be released because the release of that opinion was cited by Chun as giving people reason to believe that their illegal activities were indeed legal.)
The Star Chamber-ish nature of the problem was that no one could question the legal basis for the grandfathering because it was all based on an unreleased newer county attorney’s opinion that was also another excuse to talk about public policy behind closed doors.
Although the article contains a lot of convoluted thinking and feigned ignorance by Furfaro- which we may go into at a later date- one particularly typifies Furfaro’s seeming need to be associated with the reformers while still helping construct roadblocks.
Trying to archive the past two years’ meeting minutes, as Bynum and Kawahara requested through a still unanswered UIPA request, would be tough to do logistically until then, Furfaro said. He noted additional concerns over what minutes should even be posted online, particularly executive session minutes.
First of all no one is asking to post executive session (ES) minutes although there is a move to get the council to release ES minutes that are required by law to be made public when the purpose of the ES would no longer be defeated by releasing them. The clerk’s office must segregate them now so the disingenuity of that is apparent.
The fact is that Bynum and Kawahara have already posted the minutes going back to February and are planning to complete the project whether their UIPA request is granted or not... and the ones that were posted were done in a short session of scanning and posting by Bynum.
The purpose of the UIPA request to avoid the scanning since the minutes exist in electronic form meaning that all it would take to post them is a few key board strokes, no scanning needed.
It’s typical of Furfaro’s style, probably learned at the feet of Yukimura, where lip service to open governance is negated by actions to set up roadblocks to accountability and transparency.
Can’t anyone here play this game?
As they (ok, we) say, the Minotaur can’t guard the labyrinth all alone and with dissidents like Furfaro, who needs sycophants?.
But inaccuracies like the mayor having a role in the selection of the county clerk aside (the council alone makes the choice), the article attempts to makes sure everyone in town now adds his name to the list of “good guys”, making for three votes where four is the magic number.
People may remember- and the article fails to note- that actually Furfaro ran for chair this year and garnered the votes of the original council dissidents Tim Bynum and Lani Kawahara, who have had the courage of their convictions as opposed to Furfaro who jumped on the bandwagon after wide-spread outrage in the community and a lack of support for Chair Kaipo Asing surfaced, even among many of Asing’s lock step supporters.
That may answer at least the first of the questions Joan Conrow asked today, wondering why:
Given Kaipo’s history, why did the Council vote to again make Kaipo chair? Why doesn’t the Council act now to remove him from that position? And why didn’t the Council move to change some of its rules when Kaipo was briefly dethroned and warming the seat at the mayor’s office? Surely they would have found an ally in former Councilwoman JoAnn Yukimura.
The first two being a matter of “doing the math”- and the math being a function of the political climbing of freshman Derrek Kawakami, the deer-in-the-headlights wits of the glad-handing Dickie Chang and the founding nature of Darryl Kaneshiro’s membership in the old boys club (he was Mayor Eduardo Malapit’s administrative assistant)- Kaipo will remain in power until either Derrek gets the message from voters or Dickie buys a pair (no, eyes).
But the third question begs a little recent history lesson.
In the article Furfaro touts how he tried to deal with the “secret county attorney opinions” quagmire created by Asing and former County Attorney Lani Nakazawa and continued by her successor Matthew Pyun.
In typical credit grabbing Furfaro style the article neglects to mention that it was Bynum who kept harping on the Star Chamber nature of the “we have an opinion that explains our actions but we can’t share it with you” machinations.
It was actually Bynum who challenged the policy over and over in open council session and was prepared to overturn it immediately.
While it was Furfaro who put it on the agenda while he was temporary chair in Asing’s absence last summer after Asing moved to the mayor’s slot when Bryan Baptiste died, it was also he who said they needed to wait to act until they had a “county-wide policy”- applying to boards and commissions too- for releasing the opinion, which of course the county attorney had to come up with- and still hasn’t to this day.
That was after he had adamantly agreed with Asing that there first must be a council policy enacted to release them, even though they had been routinely released for years before Asing’s reign as chair.
But that could have been done quickly as Bynum said he had prepared just such a policy, hence the requirement for a county-wide policy to further delay the seemingly not so inevitable.
That leads to the related statement in last sentence of Joan’s ponderings- “Surely they would have found an ally in former Councilwoman JoAnn Yukimura.”
Well Joan, surely you jest.
If there was one person who not just allowed but promulgated the secrecy of the Asing regime it was our dear JoAnn.
She used her status and abilities as an attorney to talk out of both sides of her mouth on this, claiming to support open governance but doing everything she could to perpetuate both the “secret county attorney opinions” and use of the executive session to hide embarrassing political decisions regarding public policy under the guise of “discussions with their attorney” matters of “potential, future litigation” arising from discussions of pending legislation- a warping of the sunshine law that was used just last week to discuss either implementing, or more likely fighting, the new citizen’s general plan enforcement charter amendment.
This all came to a head last summer during the bill to allow existing illegal transient vacation rentals in non visitor destination areas after threats to sue the county from Board of Realtors’ attorney Jonathan Chun “forced” her, as planning committee chair, to pass out a bill grandfathering anyone who had been violating state law for years, based on a convoluted county attorney opinion that had been released before the change was made to keep them secret.
(Actually the release of that opinion at the time was instrumental in the thinking of Yukimura that these opinions should not be released because the release of that opinion was cited by Chun as giving people reason to believe that their illegal activities were indeed legal.)
The Star Chamber-ish nature of the problem was that no one could question the legal basis for the grandfathering because it was all based on an unreleased newer county attorney’s opinion that was also another excuse to talk about public policy behind closed doors.
Although the article contains a lot of convoluted thinking and feigned ignorance by Furfaro- which we may go into at a later date- one particularly typifies Furfaro’s seeming need to be associated with the reformers while still helping construct roadblocks.
Trying to archive the past two years’ meeting minutes, as Bynum and Kawahara requested through a still unanswered UIPA request, would be tough to do logistically until then, Furfaro said. He noted additional concerns over what minutes should even be posted online, particularly executive session minutes.
First of all no one is asking to post executive session (ES) minutes although there is a move to get the council to release ES minutes that are required by law to be made public when the purpose of the ES would no longer be defeated by releasing them. The clerk’s office must segregate them now so the disingenuity of that is apparent.
The fact is that Bynum and Kawahara have already posted the minutes going back to February and are planning to complete the project whether their UIPA request is granted or not... and the ones that were posted were done in a short session of scanning and posting by Bynum.
The purpose of the UIPA request to avoid the scanning since the minutes exist in electronic form meaning that all it would take to post them is a few key board strokes, no scanning needed.
It’s typical of Furfaro’s style, probably learned at the feet of Yukimura, where lip service to open governance is negated by actions to set up roadblocks to accountability and transparency.
Can’t anyone here play this game?
As they (ok, we) say, the Minotaur can’t guard the labyrinth all alone and with dissidents like Furfaro, who needs sycophants?.
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