Showing posts sorted by relevance for query Al Castillo. Sort by date Show all posts
Showing posts sorted by relevance for query Al Castillo. Sort by date Show all posts
Monday, May 26, 2014
COUNCIL TO HOLD VOTE OF "NO CONFIDENCE" IN COUNTY ATTORNEY AL CASTILLO; SEEKS RESIGNATION OR DISMISSAL
(PNN) A Resolution (2014035) on Wednesday's Kauai County Council agenda from Councilmembers Gary Hooser and Mel Rapozo seeks a council vote of "no confidence" in County Attorney Al Castillo and requests his resignation.
If Castillo does not resign within 30 days of it's passage the resolution requests that Mayor Bernard Carvalho Jr. fire him.
The resolution says that the council "has become increasingly dissatisfied with the performance of the County Attorney and the advice provided to the Council" and "is concerned about the significantly higher legal costs that have been incurred for special counsel."
The document "requests his resignation" going on to say that "(i)f no resignation that is effective is submitted in thirty (30) days, it is hereby requested that Mayor Bernard P. Carvalho, Jr., seek his immediate dismissal."
Here is the full resolution
COUNTY COUNCIL
COUNTY OF KAUA’I
RESOLUTION EXPRESSING NO CONFIDENCE IN AND REQUESTING THE RESIGNATION OF THE COUNTY ATTORNEY
WHEREAS, Alfred B. Castillo, Jr., County Attorney, is the chief legal adviser and legal representative of all agencies, including the Council, and of all officers and employees in matters relating to their official powers and duties; and
WHEREAS, the Kaua’i County Council (“Council”) has become increasingly dissatisfied with the performance of the County Attorney and the advice provided to the Council; and
WHEREAS, the Council is concerned about the significantly higher legal costs that have been incurred for special counsel, now therefore,
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF KAUA’I, STATE OF HAWAI’I, THAT:
The Kaua’i County Council hereby declares a vote of no confidence in the County Attorney and requests his resignation. If no resignation that is effective is submitted in thirty (30) days, it is hereby requested that Mayor Bernard P. Carvalho, Jr., seek his immediate dismissal
BE IT FINALLY RESOLVED that certified copies of this Resolution be transmitted to Mayor Bernard P. Carvalho, Jr., and Alfred B. Castillo, Jr., County Attorney.
Introduced by:
GARY L. HOOSER
MEL RAPOZO
Monday, November 23, 2009
(PNN) BOE’S WEIL CALLS CA’S 20.02(D) OPINION “LOUSY LAWYERING”
BOE’S WEIL CALLS CA’S 20.02(D) OPINION “LOUSY LAWYERING”: (PNN) -- In a stunningly blunt couple of letters written in mid September, Board of Ethics member, attorney Paul Weil, scathingly attacked and belittled both a county attorney opinion regarding the conflict of interest provisions of the controversial county charter section 20.02(D) and County Attorney Al Castillo’s behavior and professional abilities.
In the document- released to the public and posted at the local newspaper’s web site by reporter Michael Levine-.Weir calls the latest opinion “lousy lawyering” and states that “(n)either you nor the Board should twist the law to accommodate or solve such "problems"
Weil had previously called the opinion “fatally flawed.” The letters apparently followed a meeting between Castillo and Weil at Weil’s home.
Weil wrote to Castillo that after the meeting he expected Castillo to come to the next BOE meeting but instead Castillo sent his deputy Mauna Kea Trask.
He wrote:
I really expected that, as I had suggested, you might withdraw the (opinion) letter and make proper revisions along the lines of our discussion.
Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!
As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!
The first letter from Weir to Castillo lays out his disappointment that Trask seemed unaware of their meeting and goes on to detail the specific problems with the opinion as well as Weir’s disappointment in Castillo’s absence from the BOE meeting.
But rather than address Weir’s specific questions regarding the opinion, Castillo’s reply merely explained why he wasn’t there and put the onus on Weir to “tweak” the opinion. That was followed up by Weir’s second more detailed and more apparently exasperated reply.
Rather than excerpt and/or try to characterize the exchange further, since we have no space constraints we will reprint all three letters “(e)ntered into the record by Board of Ethics Member Paul Weil at the 10/15/09 Board of Ethics Meeting” here.
For background information click on the appropriate link to PNN coverage of county charter provision 20.02(D) and the BOE including our three part series linked on the left rail.
--------------
From: Paul Weil
Sent: Friday, September 11, 2009 8:41 AM
To: Alfred Castillo Jr.
Cc: Leila Fuller
Subject: Opinion Letter
Good morning, Al:
I was disappointed that Mr. Trask was not familiar with, and stated, in effect, that he was barely aware of our meeting and extended conversation. Regrettably, I believe that the waters are only further muddied.
I realize that you, some of the Administration, and some members of the BOE would simply like to get this matter behind them. But it wont simply go away unless and until you properly close the serious gap in the Opinion.
Chairwoman Fuller expressed to me that she was pleased with the opinion because it said in writing what your predecessor had told the Board in leading to their opinion in the Chun matter. I still cannot reach that suggested conclusion.
Assuming, arguendo, that you are correct in concluding that the Charter provision and the Code Section must be read together, I am simply unable to find legal support for the conclusion recited in Mr. Trask's opinion, which you endorsed.
As I told you, I have read and re-read the provisions and simply cannot make that leap. It is incumbent upon you or your office to provide definitive information and guidelines.
Simply put, why, if at all, does 20.02D not apply to an Attorney who is a member of a Board or Commission, representing a private client or interest before another Board or agency? How, if at all, does 3-1.7 or any other section of the Code provide an exception? If you can properly answer those questions and bridge the flaw and gap, you may be able to convince me and the properly restless public. I would hate to think that, once again, you (and some members of the BOE) start with a desired conclusion and then work to justify the result.
I ask again that you explicitly and with specificity explain how you make that leap. Whether or not a fee is fixed or contingent, there is an obvious Conflict of Interest in such representation. Dancing around the issue wont make it go away. I'm sure that you would hate to see some citizen or group test the issue in Court.
I’ll be happy to discuss.
PAUL
----------
Sent: Friday, September 11, 2009 3:59 PM
To: Paul Well
Subject: RE: Opinion Letter
Paul,
Thank you for your hospitality. Well, after I visited with you I had to rush back to Lihu`e to meet with the Mayor. The meeting with the Mayor took more than 2 hours. I got home about 6:45 p.m. I was exhausted and did not want to pack. I woke up at 4:30 a.m. because I had to be at the Lihu`e Airport at 5:15 a.m. I had a meeting with my deputy in Honolulu at 7:30 p.m. The HGEA arbitration hearing started at 9:00 a.m. I called Mauna Kea and Mona to brief them on how we should handle the day with Ethics. I also mentioned to both of them that I sat down with you the day before.
There may be a few areas in which we may tweak. I do not know whether or not we will be able to meet your expectations and the standards that you require. I'm curious? How would you bridge the gap?
al
--------
From: Paul Weil
Sent: Saturday, September 12, 2009 12 29 PM
To: 'Alfred Castillo Jr '
Subject: RE Opinion
Aloha, Al.
I'm glad that I deferred responding to your email. One should never respond when disappointed, frustrated, or angry. I was all three.
Sorry that you had a bad day Thursday, but mine was, in many ways, worse. Particularly when compared to Wednesday when I felt that we had enjoyed a candid and productive meeting, sharing ideas as we continued to strive for the welfare and benefit of the people of Kauai. I had been especially heartened by your expressions of agreement in many areas as I reviewed with you the latest iteration of an Opinion letter from your office and pointed out the shortcomings and errors in the document. I stated to you and I said publicly that this letter is a far superior product to that produced by your predecessor and/or by your office in the past. But, as we discussed at length, and as I publicly stated, it still falls far short.
Nor do I understand why the letter, which was prepared in late June, was not delivered until early September! Ripening did not make it any better.
There are those who have publicly stated that you had previously tried to "co-opt" me. I now believe that they may have been right. But, following the old adage of "fool me once, shame on you; fool me twice, shame on me", it won’t happen again. Nor can I be bullied, intimidated or coerced. You see, I am not seeking any separate personal benefit from my volunteer service. I am not and will not be a candidate for any office or appointment. I will respond appropriately the next time anyone from your office again insults me or patronizes me, publicly or otherwise, as Mr. Trask again did at the BOE meeting.
I appreciate that you apologized to me for your statements and actions at the prior Board meeting. I urge you to attend the next BOE meeting and apologize to the entire Board. I really expected that, as I had suggested, you might withdraw the letter and make proper revisions along the lines of our discussion.
Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!
As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!
• Unfortunately, you did not instruct them to provide what I was led by you to believe was the open candor that I felt you tried to show during our meeting at my home. None was shown at the Board meeting. It may be good politics, but it's lousy lawyering. The Board and the County are entitled to better.
I realize that you feel some pressure. As you told me, the mayor and John Isobe are concerned because four Board or Commission members have resigned, allegedly because of actions by the BOE. I can only respond, so be it. Neither you nor the Board should twist the law to accommodate or solve such "problems".
You go on to state that "/ do riot know whether or not we will be able to meet your expectations and the standards that you require". Let's be clear; these are not MY expectations and standards. They are the proper expectations and standards imposed upon you as County Attorney. They are, quite properly, the expectations and standards of the citizens of Kauai.
You then state that "there may be a few areas in which we may tweak," Did you laugh as you wrote that one, Al knowing full well that "tweaking a few areas" falls far short of really correcting the admitted distortions and omissions in the document?
I hope that your "tweaking" will include removing the suggested illustrations of absurdities which, themselves, are simply even more absurd, since they ignore the fact that a meeting with a water dept. clerk or a police officer, both of whose duties are ministerial to be performed within the scope of rules and regulations promulgated by the governing agency, is not an "appearance" before that governing agency. The clerk or police officer has no discretionary or policymaking authority, is performing a purely ministerial function, and there cannot be a conflict of interest under such circumstances. Trying to stretch that far simply discredits and makes suspect other assertions in the Opinion. It may be correctable by proper further "tweaking" of the definitions. Leaving them in as illustrations would likely mislead the Board, the Council and others in the future. As we discussed and as you had agreed, they are, simply, wrong.
Further, The Opinion fails to specifically address the three questions submitted by the Board at its August meeting and previously set forth in my July 24 m email to Mr. Trask with a cc to you.
(a)whether a charitable non-profit organization providing eleemosynary* services to our community is a "private interest" within the meaning of the Code (this does not include unions, political organization, PACS, or other non-profits which are not based upon charitable purposes);
(THIS ONE IS PARTIALLY, THOUGH NOT DIRECTLY OR COMPLETELY, ANSWERED IN THE LATEST OPINION LETTER).
(b) whether the County Council can adopt legislation clarifying the issues in the Chun case for others who might be similarly situated in the future or if this would be an improper attempt to amend the Charter;
(WE DISCUSSED THIS POSSIBLE APPROACH BUT THE BOE NEEDS THE REQUESTED SPECIFIC OPINION FROM YOU ON WHETHER AND HOW THIS CAN BE DONE. I ALSO REALIZE THAT THE COUNCIL MAY NOT BE WILLING TO HANDLE WHAT COULD BE A CONTROVERSIAL MATTER.)
(c) the affect, if any, of the voters' rejection of the Charter Commission's proposed Amendment at the last election. I have restrained from going public with these thoughts and concerns other than those expressed at the Board meeting and in my email exchanges and discussion with you. I fear that the same may not be said about your office. However, this exchange of emails is not subject to any Privilege since it is all addressed to me individually. I waive any such privilege, if one actually exists, since it would belong to me and not to you or the BOE. I therefore invite you to provide copies to the Mayor, to Mr. Isobe and to others as may be appropriate. Just let me know so that I can be sure that my remarks are unexpurgated and unedited.
Lastly, you use the old ploy of trying to dump the problem on my side of the field by asking how I would bridge the gap! I think that you must be aware that the chasm created by your predecessor and perpetuated by your office is too deep and too wide to be bridged by trying to cover it with sand, as your predecessor tried and as you have been doing. The simple answer is, it cannot be done without either changing the Charter (which was defeated by the voters) or by adopting clarifying legislation if, in fact, that can legally be done in a fashion which can withstand judicial scrutiny, all as discussed above.
Your attempts to follow your predecessor's lead and blow it away with a ruling that concludes that the Charter provision and the existing purported codification in Sections 3-1 et seq. just doesn't get you there. Neither you nor Mr. Trask have undertaken to show us how reading any of those sections with the Charter provision brings the result you so fondly desire. Instead, your office again provides broad generalities and unsupportable declaratory conclusions without regard to proper cogent legal standards. Rather, you leave it in the dictatorial or parental mode of "I said it, so it must be right"!
Once again, I'll be happy to discuss and to try to further assist in any way reasonably possible. It's up to you. None of this will simply go away.
PAUL
*eleemosynary [adj] generous in assistance to the poor; "a benevolent contributor"; "eleemosynary relief"; "philanthropic contributions"
In the document- released to the public and posted at the local newspaper’s web site by reporter Michael Levine-.Weir calls the latest opinion “lousy lawyering” and states that “(n)either you nor the Board should twist the law to accommodate or solve such "problems"
Weil had previously called the opinion “fatally flawed.” The letters apparently followed a meeting between Castillo and Weil at Weil’s home.
Weil wrote to Castillo that after the meeting he expected Castillo to come to the next BOE meeting but instead Castillo sent his deputy Mauna Kea Trask.
He wrote:
I really expected that, as I had suggested, you might withdraw the (opinion) letter and make proper revisions along the lines of our discussion.
Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!
As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!
The first letter from Weir to Castillo lays out his disappointment that Trask seemed unaware of their meeting and goes on to detail the specific problems with the opinion as well as Weir’s disappointment in Castillo’s absence from the BOE meeting.
But rather than address Weir’s specific questions regarding the opinion, Castillo’s reply merely explained why he wasn’t there and put the onus on Weir to “tweak” the opinion. That was followed up by Weir’s second more detailed and more apparently exasperated reply.
Rather than excerpt and/or try to characterize the exchange further, since we have no space constraints we will reprint all three letters “(e)ntered into the record by Board of Ethics Member Paul Weil at the 10/15/09 Board of Ethics Meeting” here.
For background information click on the appropriate link to PNN coverage of county charter provision 20.02(D) and the BOE including our three part series linked on the left rail.
--------------
From: Paul Weil
Sent: Friday, September 11, 2009 8:41 AM
To: Alfred Castillo Jr.
Cc: Leila Fuller
Subject: Opinion Letter
Good morning, Al:
I was disappointed that Mr. Trask was not familiar with, and stated, in effect, that he was barely aware of our meeting and extended conversation. Regrettably, I believe that the waters are only further muddied.
I realize that you, some of the Administration, and some members of the BOE would simply like to get this matter behind them. But it wont simply go away unless and until you properly close the serious gap in the Opinion.
Chairwoman Fuller expressed to me that she was pleased with the opinion because it said in writing what your predecessor had told the Board in leading to their opinion in the Chun matter. I still cannot reach that suggested conclusion.
Assuming, arguendo, that you are correct in concluding that the Charter provision and the Code Section must be read together, I am simply unable to find legal support for the conclusion recited in Mr. Trask's opinion, which you endorsed.
As I told you, I have read and re-read the provisions and simply cannot make that leap. It is incumbent upon you or your office to provide definitive information and guidelines.
Simply put, why, if at all, does 20.02D not apply to an Attorney who is a member of a Board or Commission, representing a private client or interest before another Board or agency? How, if at all, does 3-1.7 or any other section of the Code provide an exception? If you can properly answer those questions and bridge the flaw and gap, you may be able to convince me and the properly restless public. I would hate to think that, once again, you (and some members of the BOE) start with a desired conclusion and then work to justify the result.
I ask again that you explicitly and with specificity explain how you make that leap. Whether or not a fee is fixed or contingent, there is an obvious Conflict of Interest in such representation. Dancing around the issue wont make it go away. I'm sure that you would hate to see some citizen or group test the issue in Court.
I’ll be happy to discuss.
PAUL
----------
Sent: Friday, September 11, 2009 3:59 PM
To: Paul Well
Subject: RE: Opinion Letter
Paul,
Thank you for your hospitality. Well, after I visited with you I had to rush back to Lihu`e to meet with the Mayor. The meeting with the Mayor took more than 2 hours. I got home about 6:45 p.m. I was exhausted and did not want to pack. I woke up at 4:30 a.m. because I had to be at the Lihu`e Airport at 5:15 a.m. I had a meeting with my deputy in Honolulu at 7:30 p.m. The HGEA arbitration hearing started at 9:00 a.m. I called Mauna Kea and Mona to brief them on how we should handle the day with Ethics. I also mentioned to both of them that I sat down with you the day before.
There may be a few areas in which we may tweak. I do not know whether or not we will be able to meet your expectations and the standards that you require. I'm curious? How would you bridge the gap?
al
--------
From: Paul Weil
Sent: Saturday, September 12, 2009 12 29 PM
To: 'Alfred Castillo Jr '
Subject: RE Opinion
Aloha, Al.
I'm glad that I deferred responding to your email. One should never respond when disappointed, frustrated, or angry. I was all three.
Sorry that you had a bad day Thursday, but mine was, in many ways, worse. Particularly when compared to Wednesday when I felt that we had enjoyed a candid and productive meeting, sharing ideas as we continued to strive for the welfare and benefit of the people of Kauai. I had been especially heartened by your expressions of agreement in many areas as I reviewed with you the latest iteration of an Opinion letter from your office and pointed out the shortcomings and errors in the document. I stated to you and I said publicly that this letter is a far superior product to that produced by your predecessor and/or by your office in the past. But, as we discussed at length, and as I publicly stated, it still falls far short.
Nor do I understand why the letter, which was prepared in late June, was not delivered until early September! Ripening did not make it any better.
There are those who have publicly stated that you had previously tried to "co-opt" me. I now believe that they may have been right. But, following the old adage of "fool me once, shame on you; fool me twice, shame on me", it won’t happen again. Nor can I be bullied, intimidated or coerced. You see, I am not seeking any separate personal benefit from my volunteer service. I am not and will not be a candidate for any office or appointment. I will respond appropriately the next time anyone from your office again insults me or patronizes me, publicly or otherwise, as Mr. Trask again did at the BOE meeting.
I appreciate that you apologized to me for your statements and actions at the prior Board meeting. I urge you to attend the next BOE meeting and apologize to the entire Board. I really expected that, as I had suggested, you might withdraw the letter and make proper revisions along the lines of our discussion.
Boy, was I wrong! The same old game became apparent when your Deputy started by denying that he had spoken with you; then later stating that he had only a "brief general discussion" with you, and then proceeded to demonstrate that he was familiar with at least the major points of our extended discussion and was prepared to try to rebut! They also neglected to state that you had briefed them on how to handle the Board!
As for your statement that you were only able to "brief them on how we should handle the day with Ethics", I believe that they did a very good job of following your instructions. That is, if your instructions were to stonewall; to obfuscate; to continue a program of less than subtle attacks maligning, patronizing and insulting those who had contrary views; avoiding questions and discussion; providing specious and erroneous explanations to try to justify some of the statements in the Opinion letter; playing to friendly or seemingly sympathetic members of the Board (some of whom, I believe, want only that their prior actions in the Chun matter be vindicated and the entire mess forgotten); and, by Mr. Trask, following your own example of getting out of there at the first opportunity, departing before the end of the meeting claiming that other duties prevented him from remaining to respond to further discussion or questions and dumping it on Mona!
• Unfortunately, you did not instruct them to provide what I was led by you to believe was the open candor that I felt you tried to show during our meeting at my home. None was shown at the Board meeting. It may be good politics, but it's lousy lawyering. The Board and the County are entitled to better.
I realize that you feel some pressure. As you told me, the mayor and John Isobe are concerned because four Board or Commission members have resigned, allegedly because of actions by the BOE. I can only respond, so be it. Neither you nor the Board should twist the law to accommodate or solve such "problems".
You go on to state that "/ do riot know whether or not we will be able to meet your expectations and the standards that you require". Let's be clear; these are not MY expectations and standards. They are the proper expectations and standards imposed upon you as County Attorney. They are, quite properly, the expectations and standards of the citizens of Kauai.
You then state that "there may be a few areas in which we may tweak," Did you laugh as you wrote that one, Al knowing full well that "tweaking a few areas" falls far short of really correcting the admitted distortions and omissions in the document?
I hope that your "tweaking" will include removing the suggested illustrations of absurdities which, themselves, are simply even more absurd, since they ignore the fact that a meeting with a water dept. clerk or a police officer, both of whose duties are ministerial to be performed within the scope of rules and regulations promulgated by the governing agency, is not an "appearance" before that governing agency. The clerk or police officer has no discretionary or policymaking authority, is performing a purely ministerial function, and there cannot be a conflict of interest under such circumstances. Trying to stretch that far simply discredits and makes suspect other assertions in the Opinion. It may be correctable by proper further "tweaking" of the definitions. Leaving them in as illustrations would likely mislead the Board, the Council and others in the future. As we discussed and as you had agreed, they are, simply, wrong.
Further, The Opinion fails to specifically address the three questions submitted by the Board at its August meeting and previously set forth in my July 24 m email to Mr. Trask with a cc to you.
(a)whether a charitable non-profit organization providing eleemosynary* services to our community is a "private interest" within the meaning of the Code (this does not include unions, political organization, PACS, or other non-profits which are not based upon charitable purposes);
(THIS ONE IS PARTIALLY, THOUGH NOT DIRECTLY OR COMPLETELY, ANSWERED IN THE LATEST OPINION LETTER).
(b) whether the County Council can adopt legislation clarifying the issues in the Chun case for others who might be similarly situated in the future or if this would be an improper attempt to amend the Charter;
(WE DISCUSSED THIS POSSIBLE APPROACH BUT THE BOE NEEDS THE REQUESTED SPECIFIC OPINION FROM YOU ON WHETHER AND HOW THIS CAN BE DONE. I ALSO REALIZE THAT THE COUNCIL MAY NOT BE WILLING TO HANDLE WHAT COULD BE A CONTROVERSIAL MATTER.)
(c) the affect, if any, of the voters' rejection of the Charter Commission's proposed Amendment at the last election. I have restrained from going public with these thoughts and concerns other than those expressed at the Board meeting and in my email exchanges and discussion with you. I fear that the same may not be said about your office. However, this exchange of emails is not subject to any Privilege since it is all addressed to me individually. I waive any such privilege, if one actually exists, since it would belong to me and not to you or the BOE. I therefore invite you to provide copies to the Mayor, to Mr. Isobe and to others as may be appropriate. Just let me know so that I can be sure that my remarks are unexpurgated and unedited.
Lastly, you use the old ploy of trying to dump the problem on my side of the field by asking how I would bridge the gap! I think that you must be aware that the chasm created by your predecessor and perpetuated by your office is too deep and too wide to be bridged by trying to cover it with sand, as your predecessor tried and as you have been doing. The simple answer is, it cannot be done without either changing the Charter (which was defeated by the voters) or by adopting clarifying legislation if, in fact, that can legally be done in a fashion which can withstand judicial scrutiny, all as discussed above.
Your attempts to follow your predecessor's lead and blow it away with a ruling that concludes that the Charter provision and the existing purported codification in Sections 3-1 et seq. just doesn't get you there. Neither you nor Mr. Trask have undertaken to show us how reading any of those sections with the Charter provision brings the result you so fondly desire. Instead, your office again provides broad generalities and unsupportable declaratory conclusions without regard to proper cogent legal standards. Rather, you leave it in the dictatorial or parental mode of "I said it, so it must be right"!
Once again, I'll be happy to discuss and to try to further assist in any way reasonably possible. It's up to you. None of this will simply go away.
PAUL
*eleemosynary [adj] generous in assistance to the poor; "a benevolent contributor"; "eleemosynary relief"; "philanthropic contributions"
Monday, July 20, 2009
DON’T ROLL OVER
DON’T ROLL OVER: It’s nice to see the local newspaper opining in the form of classic editorials again lately.
Sunday’s entry demanding County Attorney Al Castillo enforce the infamous Charter provision 20.02(d) which bans employees and officials from “appear(ing) in behalf of private interests before any county board, commission or agency”, was a commendable no-brainer.
In it they illuminated the dearth of neural interplay that went into Castillo’s bizarre opinion on the subject and the resultant Board of Ethics (BOE) actions clearing undeniably conflicted county officials- including two members of the BOE itself, Mark Hubbard and Judy Lenthall- even though Castillo himself said the law is “crystal clear”.
They wrote:
It’s Castillo’s job to ensure that the law — the County Code, Kaua`i Charter, Hawai`i Constitution and U.S. Constitution — is applied appropriately on our small island, and his continued misrepresentation of the law to the Board of Ethics on the matter of 20.02(d) is nothing short of a dereliction of duty...
In an interview this week with Michael Levine, Castillo... still tried to defend his office’s disregard of the county’s primary legal document...
Reading that made many of us who have been shaking our heads in disbelief, feel a little less alone, thinking it’s nice to know someone else “gets it”.
But then, as if to say “not so fast” the editorial made it apparent that they don’t, saying
Castillo told Levine he weighs adherence to the law against his “desire to allow for public participation” in government, and in an earlier appearance before the Board of Ethics said full application of 20.02(d) could lead to “absurd results.”
We think Castillo’s heart is in the right place. We agree that 20.02(d), if applied overzealously, could lead to absurdity. We agree that public participation in government is a noble aim. We aren’t advocating that Judy Lenthall be chastised for her public service with the Kaua`i Food Bank or that Mark Hubbard be run out of town for repping the Kaua`i Planning and Action Alliance....
It’s up to the Charter Review Commission to help fix the poorly worded section of the charter, and it’s up to them to outline what, if any, exemptions should be extended to those who do volunteer work in the public interest.
As we’ve said that’s a bunch of hogwash. “Chastising” Lenthall and Hubbard for their appearance on behalf of private interests is not the point. It’s their action in refusing to abide by the law and resign their BOE posts that is in need of chastising.
The law is fine just the way it is. As a matter of fact the enforcement of the law, as written, is a key to ending hold the revolving-door, old boys and girls network has on our boards and commissions.
The contention there could be “absurd results” in upholding the 20.02(d) only applies if one absurdly abuses the plain language of the charter.
As we’ve said before when the phrase “appearing on behalf of a private interest” is applied it does not include simply appearing- as one’s self- for a personal matter such as applying for a driver’s license. There is no problem with the law there. It’s only the equivocational use of the word “interest” that is absurd.
But the big problem is in the contention that because people “do good” they should be exempted through a charter amendment.
First of all, who is “doing good” is a matter of opinion.
But even if we all agree, it doesn’t matter whether one is “doing good” or appearing for a non profit. The potential for a quid-pro-quo, “one hand washes the other” result that the law foresees exists nonetheless.
When Ms. Lenthall or Mr. Hubbard appears before the county council on behalf of the food bank or KAPA and asks for money and then turns around and rules on the ethics of a county council member’s actions, his and her positions are compromised and such a person should not be serving on a board or commission, “good work” not withstanding.
That doesn’t mean that we think either of them will necessarily do something wrong. It means that we don’t want to put people in positions where their integrity has to be even questioned by virtue of the potential conflict of interest presented.
This goes for all board and commission members who make discretionary decisions. We can’t ask them to be above reproach if we put them in a position in which they are reproachable.
Like Caesar’s wife they should be beyond reproach.
Finally the contention that somehow those who have these conflicts are the only ones who can serve is perhaps the most absurd thing here. There are tens of thousands of Kaua`i citizens who can serve on boards and commissions without violating 20.02(d). There are tens of thousands have never and will never appear before a board or commission on behalf of a private “special” interest.
We don’t need to keep seeing the same few dozen conflicted faces over and over, rotating from board to board while they come hat in hand before other boards.
It’s not a matter of questioning their integrity. It’s a matter of them putting themselves in a position where their integrity is naturally in question by serving two masters.
The law is a good one. The law is a necessary one. The law is, in fact, exactly what’s needed most on Kaua`i. All we need is enforcement.
Sunday’s entry demanding County Attorney Al Castillo enforce the infamous Charter provision 20.02(d) which bans employees and officials from “appear(ing) in behalf of private interests before any county board, commission or agency”, was a commendable no-brainer.
In it they illuminated the dearth of neural interplay that went into Castillo’s bizarre opinion on the subject and the resultant Board of Ethics (BOE) actions clearing undeniably conflicted county officials- including two members of the BOE itself, Mark Hubbard and Judy Lenthall- even though Castillo himself said the law is “crystal clear”.
They wrote:
It’s Castillo’s job to ensure that the law — the County Code, Kaua`i Charter, Hawai`i Constitution and U.S. Constitution — is applied appropriately on our small island, and his continued misrepresentation of the law to the Board of Ethics on the matter of 20.02(d) is nothing short of a dereliction of duty...
In an interview this week with Michael Levine, Castillo... still tried to defend his office’s disregard of the county’s primary legal document...
Reading that made many of us who have been shaking our heads in disbelief, feel a little less alone, thinking it’s nice to know someone else “gets it”.
But then, as if to say “not so fast” the editorial made it apparent that they don’t, saying
Castillo told Levine he weighs adherence to the law against his “desire to allow for public participation” in government, and in an earlier appearance before the Board of Ethics said full application of 20.02(d) could lead to “absurd results.”
We think Castillo’s heart is in the right place. We agree that 20.02(d), if applied overzealously, could lead to absurdity. We agree that public participation in government is a noble aim. We aren’t advocating that Judy Lenthall be chastised for her public service with the Kaua`i Food Bank or that Mark Hubbard be run out of town for repping the Kaua`i Planning and Action Alliance....
It’s up to the Charter Review Commission to help fix the poorly worded section of the charter, and it’s up to them to outline what, if any, exemptions should be extended to those who do volunteer work in the public interest.
As we’ve said that’s a bunch of hogwash. “Chastising” Lenthall and Hubbard for their appearance on behalf of private interests is not the point. It’s their action in refusing to abide by the law and resign their BOE posts that is in need of chastising.
The law is fine just the way it is. As a matter of fact the enforcement of the law, as written, is a key to ending hold the revolving-door, old boys and girls network has on our boards and commissions.
The contention there could be “absurd results” in upholding the 20.02(d) only applies if one absurdly abuses the plain language of the charter.
As we’ve said before when the phrase “appearing on behalf of a private interest” is applied it does not include simply appearing- as one’s self- for a personal matter such as applying for a driver’s license. There is no problem with the law there. It’s only the equivocational use of the word “interest” that is absurd.
But the big problem is in the contention that because people “do good” they should be exempted through a charter amendment.
First of all, who is “doing good” is a matter of opinion.
But even if we all agree, it doesn’t matter whether one is “doing good” or appearing for a non profit. The potential for a quid-pro-quo, “one hand washes the other” result that the law foresees exists nonetheless.
When Ms. Lenthall or Mr. Hubbard appears before the county council on behalf of the food bank or KAPA and asks for money and then turns around and rules on the ethics of a county council member’s actions, his and her positions are compromised and such a person should not be serving on a board or commission, “good work” not withstanding.
That doesn’t mean that we think either of them will necessarily do something wrong. It means that we don’t want to put people in positions where their integrity has to be even questioned by virtue of the potential conflict of interest presented.
This goes for all board and commission members who make discretionary decisions. We can’t ask them to be above reproach if we put them in a position in which they are reproachable.
Like Caesar’s wife they should be beyond reproach.
Finally the contention that somehow those who have these conflicts are the only ones who can serve is perhaps the most absurd thing here. There are tens of thousands of Kaua`i citizens who can serve on boards and commissions without violating 20.02(d). There are tens of thousands have never and will never appear before a board or commission on behalf of a private “special” interest.
We don’t need to keep seeing the same few dozen conflicted faces over and over, rotating from board to board while they come hat in hand before other boards.
It’s not a matter of questioning their integrity. It’s a matter of them putting themselves in a position where their integrity is naturally in question by serving two masters.
The law is a good one. The law is a necessary one. The law is, in fact, exactly what’s needed most on Kaua`i. All we need is enforcement.
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, May 26, 2009
MEANWHILE, BACK AT THE LAB(YRINTH)
MEANWHILE, BACK AT THE LAB(YRINTH): Few on Kaua`i dispute that Uncle-Chair Kaipo Potter operates his Council Chamber of Secrets with a iron-fisted and paternalistic combination of deceit and intimidation.
But never is that more so than when he and his fellow Minotaurs cut short testimony they don’t like by falsely claiming the state sunshine law forbids members of the public from discussing matters not specifically on the agenda.
What does not bode well for the future of open governance on Kaua`i is that at last Wednesday’s council meeting someone who should know better didn’t, as usual, just remain silent when Chair Asing used this misrepresentation to cut off testimony he didn’t want spoken on television but, without invitation, that someone initiated a challenge to public testimony based on the falsification.
New County Attorney Al Castillo is apparently so new to the job that he has yet to review the essential Office of Information Practices (OIP) rulings on the matter and has rather let Asing’s mealy-mouth interpretation guide his actions.
While testifying before passage of the council’s ill-advised million-dollar flush down the crapper of toruism promotion, council watchdog and “nitpicker” Ken Taylor used the opportunity to suggest the money might be better spent on other essentials- such as addressing one of his pet issues, peak oil.
But while Asing sat passively giving Taylor his perfunctory “three minutes” who should rudely interrupt and raise an objections but Castillo who has no business in any way shape or form doing so, warning Asing that the testimony was “off-agenda” and should not be allowed.
The issue was quite clearly addressed by the OIP relatively recently, in 2005 when someone on the Big Island raised the issue of their council’s tradition of allowing members of the public to speak on any subject they desire- on or off the agenda- for a short period of time at the end of each meeting.
The OIP said two things quite clearly and forcefully.
First of all OIP opinion 2005-02 says
A board may permit members of the public to speak at a meeting on matters that are not on the agenda but is not required to do so.
The important word there is “may”. The discretionary term gives the chair the ability to disallow testimony that is not about something that is on the agenda. But though he is allowed to do so, he is not required by law to stop it, as Asing has consistently claimed for years.
This has led to councilmembers- each of whom chairs a council committee- to use the same lie to control testimony at their various committee meetings... especially councilmembers Jay Furfaro and Darryl Kaneshiro who routinely follow Asing’s lead when someone says something they don’t wish to hear- or more importantly something they don’t want others to hear.
Each has refused to admit that it is up to them to allow it or not, going so far as to reiterate that they would gladly allow the testimony but state law forbids them from doing so.
Castillo was certainly not just reminding them they had the discretionary power to disallow the testimony but warning them that to allow the testimony might be counter to the Sunshine Law.
Secondly, the other half of the ruling is restrictive of what one certain group of people can and can’t discuss at the meetings- councilmembers themselves.
It says:
Board members may not discuss, deliberate or decide matters that are not on the agenda, Thus if a board elects to hear public statements regarding matters not on the agenda and the statements relate to matters over which the board has supervision, control, jurisdiction or advisory power, the board must be careful not to respond by discussing the matter.
Apparently, rather than doing his homework and verifying whether Asing and the Kaua`i County Council’s standard operation procedure complies with state law, Castillo made the fatal mistake of assuming that Asing and his henchman County Clerk Peter Nakamura weren’t willfully ignoring the Sunshine Law and OIP and substituting their own outlaw justice for the actual meaning and intent of the statute.
Since Castillo is new on the job and indeed new to governmental and public policy law we’ll assume this was a mere understandable oversight. Afterall, hey- who would figure that the council chair and the county clerk would conspire to violate the Sunshine Law- something that, if true, could yield jail time for the two?
We’ll assume that Castillo isn’t “in on” the plot as the last two county attorneys apparently were after having this matter brought to their attention numerous times by various “nitpickers”- and PNN reports- in the past.
We do hope that Castillo will take this as a wakeup call to make sure he personally dots the i’s and crosses the t’s on the legality of the council’s maze of procedures.
One incident like this under the new CA is understandable but a second would indicate complicity in activities that have given Kaua`i a statewide reputation as “a separate kingdom” when it comes to complying with state law, especially the Sunshine statutes.
But never is that more so than when he and his fellow Minotaurs cut short testimony they don’t like by falsely claiming the state sunshine law forbids members of the public from discussing matters not specifically on the agenda.
What does not bode well for the future of open governance on Kaua`i is that at last Wednesday’s council meeting someone who should know better didn’t, as usual, just remain silent when Chair Asing used this misrepresentation to cut off testimony he didn’t want spoken on television but, without invitation, that someone initiated a challenge to public testimony based on the falsification.
New County Attorney Al Castillo is apparently so new to the job that he has yet to review the essential Office of Information Practices (OIP) rulings on the matter and has rather let Asing’s mealy-mouth interpretation guide his actions.
While testifying before passage of the council’s ill-advised million-dollar flush down the crapper of toruism promotion, council watchdog and “nitpicker” Ken Taylor used the opportunity to suggest the money might be better spent on other essentials- such as addressing one of his pet issues, peak oil.
But while Asing sat passively giving Taylor his perfunctory “three minutes” who should rudely interrupt and raise an objections but Castillo who has no business in any way shape or form doing so, warning Asing that the testimony was “off-agenda” and should not be allowed.
The issue was quite clearly addressed by the OIP relatively recently, in 2005 when someone on the Big Island raised the issue of their council’s tradition of allowing members of the public to speak on any subject they desire- on or off the agenda- for a short period of time at the end of each meeting.
The OIP said two things quite clearly and forcefully.
First of all OIP opinion 2005-02 says
A board may permit members of the public to speak at a meeting on matters that are not on the agenda but is not required to do so.
The important word there is “may”. The discretionary term gives the chair the ability to disallow testimony that is not about something that is on the agenda. But though he is allowed to do so, he is not required by law to stop it, as Asing has consistently claimed for years.
This has led to councilmembers- each of whom chairs a council committee- to use the same lie to control testimony at their various committee meetings... especially councilmembers Jay Furfaro and Darryl Kaneshiro who routinely follow Asing’s lead when someone says something they don’t wish to hear- or more importantly something they don’t want others to hear.
Each has refused to admit that it is up to them to allow it or not, going so far as to reiterate that they would gladly allow the testimony but state law forbids them from doing so.
Castillo was certainly not just reminding them they had the discretionary power to disallow the testimony but warning them that to allow the testimony might be counter to the Sunshine Law.
Secondly, the other half of the ruling is restrictive of what one certain group of people can and can’t discuss at the meetings- councilmembers themselves.
It says:
Board members may not discuss, deliberate or decide matters that are not on the agenda, Thus if a board elects to hear public statements regarding matters not on the agenda and the statements relate to matters over which the board has supervision, control, jurisdiction or advisory power, the board must be careful not to respond by discussing the matter.
Apparently, rather than doing his homework and verifying whether Asing and the Kaua`i County Council’s standard operation procedure complies with state law, Castillo made the fatal mistake of assuming that Asing and his henchman County Clerk Peter Nakamura weren’t willfully ignoring the Sunshine Law and OIP and substituting their own outlaw justice for the actual meaning and intent of the statute.
Since Castillo is new on the job and indeed new to governmental and public policy law we’ll assume this was a mere understandable oversight. Afterall, hey- who would figure that the council chair and the county clerk would conspire to violate the Sunshine Law- something that, if true, could yield jail time for the two?
We’ll assume that Castillo isn’t “in on” the plot as the last two county attorneys apparently were after having this matter brought to their attention numerous times by various “nitpickers”- and PNN reports- in the past.
We do hope that Castillo will take this as a wakeup call to make sure he personally dots the i’s and crosses the t’s on the legality of the council’s maze of procedures.
One incident like this under the new CA is understandable but a second would indicate complicity in activities that have given Kaua`i a statewide reputation as “a separate kingdom” when it comes to complying with state law, especially the Sunshine statutes.
Saturday, April 21, 2012
P.O.H.A.K.U.: ROCKIN' IN THE SHAY WORLD; A PNN INVESTIGATIVE REPORT
P.O.H.A.K.U.: ROCKIN' IN THE SHAY WORLD;
WHAT ARE THE QUESTIONS THE COUNCIL WANTS ANSWERED ON PROSECUTOR'S SIGNATURE DIVERSION PROGRAM?
A PNN INVESTIGATIVE REPORT
(PNN) -- Prosecuting Attorney Shaylene Iseri-Carvalho's much ballyhooed P.O.H.A.K.U. program to "divert" minor offenders from jail has blown-up recently as two councilmembers have tried to ask questions about the program while the rest have blocked those queries, even refusing to hold closed door discussions of the program.
A PNN investigation has uncovered what some of those questions may be and found both process and monetary improprieties associated with the program as well as false claims on the part of Iseri and conflicts of interest within the Office of the Prosecuting Attorney (OPA).
For those who have not followed the council machinations lately, for weeks now Iseri, her First Deputy Jake Delaplane and her chief ally on the council Mel Rapozo have thwarted Councilmembers JoAnn Yukimura and Tim Bynum from even discussing the P.O.H.A.K.U. program, with the latest dust-up occurring at Friday's budget session for the OPA.
The council has twice defeated requests for an executive session with County Attorney Al Castillo, and when Council Chair Jay Furfaro was at a doctor's appointment Friday morning, Rapozo acted as chair and banned all discussion of P.O.H.A.K.U.
That enraged Bynum and Yukimura with Yukimura forced to withhold a power point presentation she had prepared to expose some of the alleged wrongdoing in the P.O.H.A.K.U. program.
But Rapozo banned discussion despite its direct relevance to the the agenda item: the OPA's budget, because, he claimed, County Attorney Al Castillo had banned the discussion- something Castillo later denied.
For those who want a blow-by-blow of the multi-level, multi-player chess game of the past month or so, including Friday's budget session, we recommend reading Joan Conrow's Kaua`i Eclectic coverage here, here and here
The overriding question no one has answered is why? What is Iseri so apparently trying to hide? No one can honestly watch the meetings without asking themselves that question. Why are she and Delaplane "running out the clock" with repetitive power point presentations and long winded answers to questions no one asked every time they are subjected to council questioning?
So what are Yukimura and Bynum trying to question her about?
The key to answering that is apparently a company that, despite Iseri's claim that the program is fully of her design and implementation, is apparently the entity that is responsible for the nuts and bolts of the P.O.H.A.K.U. program... a company called Strategic Justice Partners (SJP) LLC of Nevada.
Politically, P.O.H.A.K.U., which has been implemented for a few years now, has been a key to Iseri's campaign for re-election and she has promoted it recently in two articles in the local newspaper touting community meetings and the program's alleged successes. Iseri's official P.O.H.A.K.U. website calls it "a new innovative diversion program that was designed by the Office of the Prosecuting Attorney (OPA) as an alternative to the traditional court process."
But although SJP has never publicly been mentioned by Iseri or her department's personnel, a look at the bottom of the P.O.H.A.K.U. web site says "Content copyright 2011-2012. Strategic Justice Partners. All rights reserved."
And a visit to the SJP web site reveals where the program really came from. The very first thing you see there on the right side is the statement that:
Strategic Justice Partners is a leader in Alternative Sentencing, Diversion and Early Release Programs.
"Our Diversion programs have a 94% completion rate with over 96% of participants rating their experience as "good" or "outstanding".
And under the "What We Do" button it describes a service that sound exactly like the P.O.H.A.K.U. program, saying they provide:
Diversion Programs
Diversion Programs result in lower recidivism than “Stand in line-Pay a fine” justice while dramatically reducing the burden and costs on Prosecutors and Courts. http://www.strategicjusticepartners.com/What_We_Do.html
And the main program exemplary of their work? At the top of the left had side of the home page of the site is a color photo of a smiling, lei-bedecked Iseri alongside a photo of a Kaua`i-style poi pounder (the symbol of P.O.H.A.K.U.) under the title "Kaua'i County Hawai`i; P.O.H.A.K.U. Program." and a blurb that says "We are pleased to introduce P.O.H.A.K.U., an innovative alternative to the traditional court Process."
It doesn't really say who "we" is but the context demands one interpret it as being SJP especially because it's their web site.
Iseri has recently been holding a series of meetings- meetings dutifully reported upon by the local newspaper- apparently as a part of, or at least in conjunction with, her campaign for re-election in the fall. One example of how she has used P.O.H.A.K.U. for political haymaking at every turn is the wording of a communication to the county council for a special council meeting on April 11.
At the time Iseri was asking the "Council approval to apply for and receive Technical Assistance from the Bureau of Justice Assistance and the Vera Institute of Justice's national Cost-Benefit Knowledge Bank for Criminal Justice," although it has since been withdrawn at Iseri's request, apparently because that would have opened the door to questioning about P.O.H.A.K.U.
What would make us say that might be the reason? Well, Iseri had already applied for the "technical assistance" before the item was to have been approved by the council. Not only that but she withdrew the request after all the other delay requests on her part had failed... and she did so in a late night email to the chair, sent the night before the meeting where P.O.H.A.K.U. was to have been discussed.
But it's the rest of the communication that had many laughing at the unique wording that was anything but the usual kind of straightforward "communications for approval." It went on to say that the assistance "will allow the OPA to find innovative programs and develop procedures to ensure that the community is served in the most cost efficient manner and in the best way possible."
Some may say "so what?- it's politics... nothing wrong with that... they all do it." But we bring this up not just to point to the use of the program as a political tool for Iseri but to point out what exactly amounts to wrongdoing here.
It's not clear what precisely SJP's full role is. But what is true is that the association between the OPA and SJP has never come before the council nor has there even been any type of official "procurement process" for SJP's services, as provided by law.
Any "grant" to any department or for that matter any donation of anything, including information or assistance must, by law, come before the county council for approval. It's usually in an official communication for approval to "apply for, accept and indemnify" as the agenda item would normally read. But the words "Strategic Justice Partners" have never been mentioned in even verbal form to the council much less written.
That would be for a grant or donation type of thing. What if the OPA is involved financially with SJP? The fact is that there has never been any official procurement of services from SJP. Nor of course has there ever been a type of contract or "memorandum of agreement" (MOA) which would also have to have been approved by the council.
Finally there have never been any HRS Chapter 91 Administrative Rules promulgated, which according to state law are required to establish procedures for how, say, the OPA would engage with SJP in the P.O.H.A.K.U. program.
But all that is just procedural. Here's what happens if you, as they say, "follow the money."
Because SJP is a Nevada corporation if it wants to do business in Hawai`i it must file with the Department of Commerce and Consumer Affairs (DCCA) and have an "agent" in Hawai`i.
The DCCA filing shows SJP to be a for-profit corporation and the agent in Hawai`i is none other than Iseri's second-in-command, Delaplane.
The filing is simply the initial corporate document and apparently no 2012 report has been submitted. There is nothing to indicate whether Delaplane is being paid for being the sole representative of SJP in Hawai`i. But the fact that he is both their agent and part of the team that is contracting with SJP- the OPA- makes for a blatant conflict of interest.
So who gets what money and where does it come from?
The upcoming OPA's budget for 2013 shows a request for around $20,000 for four different diversion programs although there is no breakdown of how much of that would go to P.O.H.A.K.U. That is one reason why Yukimura and Bynum were asking questions- or want to ask them- in the first place; to find out how much is for each program and in fact what the county funding mechanism(s) for P.O.H.A.K.U. actually are/is. It also "opens the door" so to speak, to discuss the program.
But PNN did learn of one funding source that isn't listed anywhere and certainly has not been communicated to the council.
At Iseri's P.O.H.A.K.U. website those in the program can go to the "Register for Class" page. Under "P.O.H.A.K.U. Class Registration" it says:
You may schedule your P.O.H.A.K.U. class date below.
You must pay your program fees prior to registering.
You may REGISTER with a credit or debit card below or visit any Bank of Hawaii Branch with the deposit slip you were given (emphasis added).
And, PNN has learned, that the "deposit slip" is filled out to deposit $200 to an account bearing the name of, not the County of Kaua`i as one would expect for a program designed and run by Iseri but rather, Strategic Justice Partners.
According to testimony by Delaplane on Friday before the council 49 people have completed the program and so what is clear is that at least that many have paid SJP $200 each for a total of almost $10,000.
What is not clear however is whether the money is refunded if the person doesn't complete the diversion program. The question of how many people failed has, of course, not been discussed because nothing about POHAKU has been able to be discussed, even though both Delaplane and Iseri were permitted to tout it Friday during their "power point" presentation to the council on the budget.
Even- or maybe especially- if the OPA never sees or touches a nickel, improprieties abound with this setup. As we said, P.O.H.A.K.U. itself has never even been approved by the council. Plus, there has never been a procurement of services for SJP nor has there been any MOA, both of which would have to come before the council for approval.
Oh- and one more thing.
The only person listed as a "member" of SJP is one Kirk Barrus. That means he is the sole owner of SJP. Yet a search of SJP's web site does not readily yield Barrus' name- or any other associated with the company.
So who is Barrus? What is his background?
According to David Lazarus' "Consumer Confidential" in the February 20, 2008, Los Angeles Times, Kirk Barrus was the Senior Vice President and spokesperson for a company called American Corrective Counseling Services (ACCS).
In an article in which Lazarus discusses Bush-era court rulings providing full immunity to companies doing business with the government he cites the example of "AT&T and Verizon immunity for their roles in any past and future eavesdropping on the American people."
But ACCS was not granted immunity in the case at hand and Lazarus writes that:
when it comes to public-private canoodling, the most egregious case I've seen recently involved a San Clemente company, American Corrective Counseling Services, that worked with public prosecutors to go after people who bounced checks.
He describes the scam this way:
In contacting consumers, ACCS represented itself as actually being the district attorney's office, even though the cases involved may not have been vetted in advance by an actual prosecutor.
In return for its efforts, ACCS typically would be entitled to a $100 fee and as much as 60% of any fines paid...
Lois Artz, a 72-year-old resident of the Northern California city of Petaluma, received what looked like a very serious letter from the Sonoma County district attorney's office in November 2005.
"The Sonoma County District Attorney's Office has received a CRIME REPORT alleging you have violated Penal Code 476(a) of the California State Statute: Issuing a Worthless Check," the letter warned.
"A conviction under this statute is punishable by up to one (1) year in county jail, or in a state prison, and up to $1,000 in fines," it said.
The letter advised Artz, a former Bank of America branch manager, to enroll in a "bad check restitution program" and to pay $196.62 in fines.
"When I saw that letter, I almost fainted," she told me. "I was beside myself."
Her crime, Artz said, was writing a check for a $26.62 carton of smokes and not having sufficient funds in her bank account to cover it. Artz said she'd been distracted caring for her daughter, who has breast cancer, but she knows that's no excuse.
What troubled her was that her case seemingly was elevated with alarming speed to the level of criminal prosecution without anyone trying to work things out with her.
"I was humiliated and terrified," Artz said. "I felt like any time I turned around, there would be somebody there telling me to come with them."
According to court documents, ACCS went after more than 100,000 Californians in 2001, the latest year for which data are available. And most if not all those people believed they'd been contacted by a government agency, not a private company.
In speaking for ACCS, Barrus
denied that the company acts independently when it chases down suspected check scofflaws.
"We operate under the total control of the district attorney," he said. "We're basically a secretarial service, and therefore should carry the district attorney's immunity.
"They're not letters from a private company," Barrus insisted. "They're letters from a district attorney."
There is another article in The Press Democrat describing the situation in more detail
The fact that the council has questions for Iseri about P.O.H.A.K.U. shouldn't surprise anybody.
We'd certainly like to know a few things.
Did SJP receive other funds such as ACCS did in collecting "as much as 60% of any fines paid" in the California case? Did the OPA either receive or expend any funding directly or indirectly to or from SJP? What exactly is Delaplane's role? What does he do as "agent?" Is he a paid agent? If so, how much? If so, what if anything is Iseri's cut? Doesn't Delaplane or Iseri see an inherent conflict in a operation where someone- so far apparently SJP- is receiving at least $10,000? Why is Iseri so transparently covering up her and the OPA's association with SJP? Is it simply to take credit for a program she didn't really design and implement or is there more?.. perhaps a financial association?
We haven't been able to uncover all the facts or follow all the money. But we sure hope that Rapozo- along with Councilmembers Kipukai Kuali`i, Dickie Chang, and Chair Jay Furfaro- stop blocking at least an executive session but preferably have a full public airing of the issues involved.
Oh by the way- Kuali`i refused to recuse himself from discussions of the OPA's budget despite the fact that the Erin Wilson Victim Witness position cut by Iseri- which is the subject of a complaint by Wilson as we discussed in January - was contracted out to the YWCA where Kuali`i works.
The next thing scheduled for the matter is an executive session set to take place April 30.
WHAT ARE THE QUESTIONS THE COUNCIL WANTS ANSWERED ON PROSECUTOR'S SIGNATURE DIVERSION PROGRAM?
A PNN INVESTIGATIVE REPORT
(PNN) -- Prosecuting Attorney Shaylene Iseri-Carvalho's much ballyhooed P.O.H.A.K.U. program to "divert" minor offenders from jail has blown-up recently as two councilmembers have tried to ask questions about the program while the rest have blocked those queries, even refusing to hold closed door discussions of the program.
A PNN investigation has uncovered what some of those questions may be and found both process and monetary improprieties associated with the program as well as false claims on the part of Iseri and conflicts of interest within the Office of the Prosecuting Attorney (OPA).
For those who have not followed the council machinations lately, for weeks now Iseri, her First Deputy Jake Delaplane and her chief ally on the council Mel Rapozo have thwarted Councilmembers JoAnn Yukimura and Tim Bynum from even discussing the P.O.H.A.K.U. program, with the latest dust-up occurring at Friday's budget session for the OPA.
The council has twice defeated requests for an executive session with County Attorney Al Castillo, and when Council Chair Jay Furfaro was at a doctor's appointment Friday morning, Rapozo acted as chair and banned all discussion of P.O.H.A.K.U.
That enraged Bynum and Yukimura with Yukimura forced to withhold a power point presentation she had prepared to expose some of the alleged wrongdoing in the P.O.H.A.K.U. program.
But Rapozo banned discussion despite its direct relevance to the the agenda item: the OPA's budget, because, he claimed, County Attorney Al Castillo had banned the discussion- something Castillo later denied.
For those who want a blow-by-blow of the multi-level, multi-player chess game of the past month or so, including Friday's budget session, we recommend reading Joan Conrow's Kaua`i Eclectic coverage here, here and here
The overriding question no one has answered is why? What is Iseri so apparently trying to hide? No one can honestly watch the meetings without asking themselves that question. Why are she and Delaplane "running out the clock" with repetitive power point presentations and long winded answers to questions no one asked every time they are subjected to council questioning?
So what are Yukimura and Bynum trying to question her about?
The key to answering that is apparently a company that, despite Iseri's claim that the program is fully of her design and implementation, is apparently the entity that is responsible for the nuts and bolts of the P.O.H.A.K.U. program... a company called Strategic Justice Partners (SJP) LLC of Nevada.
Politically, P.O.H.A.K.U., which has been implemented for a few years now, has been a key to Iseri's campaign for re-election and she has promoted it recently in two articles in the local newspaper touting community meetings and the program's alleged successes. Iseri's official P.O.H.A.K.U. website calls it "a new innovative diversion program that was designed by the Office of the Prosecuting Attorney (OPA) as an alternative to the traditional court process."
But although SJP has never publicly been mentioned by Iseri or her department's personnel, a look at the bottom of the P.O.H.A.K.U. web site says "Content copyright 2011-2012. Strategic Justice Partners. All rights reserved."
And a visit to the SJP web site reveals where the program really came from. The very first thing you see there on the right side is the statement that:
Strategic Justice Partners is a leader in Alternative Sentencing, Diversion and Early Release Programs.
"Our Diversion programs have a 94% completion rate with over 96% of participants rating their experience as "good" or "outstanding".
And under the "What We Do" button it describes a service that sound exactly like the P.O.H.A.K.U. program, saying they provide:
Diversion Programs
Diversion Programs result in lower recidivism than “Stand in line-Pay a fine” justice while dramatically reducing the burden and costs on Prosecutors and Courts. http://www.strategicjusticepartners.com/What_We_Do.html
And the main program exemplary of their work? At the top of the left had side of the home page of the site is a color photo of a smiling, lei-bedecked Iseri alongside a photo of a Kaua`i-style poi pounder (the symbol of P.O.H.A.K.U.) under the title "Kaua'i County Hawai`i; P.O.H.A.K.U. Program." and a blurb that says "We are pleased to introduce P.O.H.A.K.U., an innovative alternative to the traditional court Process."
It doesn't really say who "we" is but the context demands one interpret it as being SJP especially because it's their web site.
Iseri has recently been holding a series of meetings- meetings dutifully reported upon by the local newspaper- apparently as a part of, or at least in conjunction with, her campaign for re-election in the fall. One example of how she has used P.O.H.A.K.U. for political haymaking at every turn is the wording of a communication to the county council for a special council meeting on April 11.
At the time Iseri was asking the "Council approval to apply for and receive Technical Assistance from the Bureau of Justice Assistance and the Vera Institute of Justice's national Cost-Benefit Knowledge Bank for Criminal Justice," although it has since been withdrawn at Iseri's request, apparently because that would have opened the door to questioning about P.O.H.A.K.U.
What would make us say that might be the reason? Well, Iseri had already applied for the "technical assistance" before the item was to have been approved by the council. Not only that but she withdrew the request after all the other delay requests on her part had failed... and she did so in a late night email to the chair, sent the night before the meeting where P.O.H.A.K.U. was to have been discussed.
But it's the rest of the communication that had many laughing at the unique wording that was anything but the usual kind of straightforward "communications for approval." It went on to say that the assistance "will allow the OPA to find innovative programs and develop procedures to ensure that the community is served in the most cost efficient manner and in the best way possible."
Some may say "so what?- it's politics... nothing wrong with that... they all do it." But we bring this up not just to point to the use of the program as a political tool for Iseri but to point out what exactly amounts to wrongdoing here.
It's not clear what precisely SJP's full role is. But what is true is that the association between the OPA and SJP has never come before the council nor has there even been any type of official "procurement process" for SJP's services, as provided by law.
Any "grant" to any department or for that matter any donation of anything, including information or assistance must, by law, come before the county council for approval. It's usually in an official communication for approval to "apply for, accept and indemnify" as the agenda item would normally read. But the words "Strategic Justice Partners" have never been mentioned in even verbal form to the council much less written.
That would be for a grant or donation type of thing. What if the OPA is involved financially with SJP? The fact is that there has never been any official procurement of services from SJP. Nor of course has there ever been a type of contract or "memorandum of agreement" (MOA) which would also have to have been approved by the council.
Finally there have never been any HRS Chapter 91 Administrative Rules promulgated, which according to state law are required to establish procedures for how, say, the OPA would engage with SJP in the P.O.H.A.K.U. program.
But all that is just procedural. Here's what happens if you, as they say, "follow the money."
Because SJP is a Nevada corporation if it wants to do business in Hawai`i it must file with the Department of Commerce and Consumer Affairs (DCCA) and have an "agent" in Hawai`i.
The DCCA filing shows SJP to be a for-profit corporation and the agent in Hawai`i is none other than Iseri's second-in-command, Delaplane.
The filing is simply the initial corporate document and apparently no 2012 report has been submitted. There is nothing to indicate whether Delaplane is being paid for being the sole representative of SJP in Hawai`i. But the fact that he is both their agent and part of the team that is contracting with SJP- the OPA- makes for a blatant conflict of interest.
So who gets what money and where does it come from?
The upcoming OPA's budget for 2013 shows a request for around $20,000 for four different diversion programs although there is no breakdown of how much of that would go to P.O.H.A.K.U. That is one reason why Yukimura and Bynum were asking questions- or want to ask them- in the first place; to find out how much is for each program and in fact what the county funding mechanism(s) for P.O.H.A.K.U. actually are/is. It also "opens the door" so to speak, to discuss the program.
But PNN did learn of one funding source that isn't listed anywhere and certainly has not been communicated to the council.
At Iseri's P.O.H.A.K.U. website those in the program can go to the "Register for Class" page. Under "P.O.H.A.K.U. Class Registration" it says:
You may schedule your P.O.H.A.K.U. class date below.
You must pay your program fees prior to registering.
You may REGISTER with a credit or debit card below or visit any Bank of Hawaii Branch with the deposit slip you were given (emphasis added).
And, PNN has learned, that the "deposit slip" is filled out to deposit $200 to an account bearing the name of, not the County of Kaua`i as one would expect for a program designed and run by Iseri but rather, Strategic Justice Partners.
According to testimony by Delaplane on Friday before the council 49 people have completed the program and so what is clear is that at least that many have paid SJP $200 each for a total of almost $10,000.
What is not clear however is whether the money is refunded if the person doesn't complete the diversion program. The question of how many people failed has, of course, not been discussed because nothing about POHAKU has been able to be discussed, even though both Delaplane and Iseri were permitted to tout it Friday during their "power point" presentation to the council on the budget.
Even- or maybe especially- if the OPA never sees or touches a nickel, improprieties abound with this setup. As we said, P.O.H.A.K.U. itself has never even been approved by the council. Plus, there has never been a procurement of services for SJP nor has there been any MOA, both of which would have to come before the council for approval.
Oh- and one more thing.
The only person listed as a "member" of SJP is one Kirk Barrus. That means he is the sole owner of SJP. Yet a search of SJP's web site does not readily yield Barrus' name- or any other associated with the company.
So who is Barrus? What is his background?
According to David Lazarus' "Consumer Confidential" in the February 20, 2008, Los Angeles Times, Kirk Barrus was the Senior Vice President and spokesperson for a company called American Corrective Counseling Services (ACCS).
In an article in which Lazarus discusses Bush-era court rulings providing full immunity to companies doing business with the government he cites the example of "AT&T and Verizon immunity for their roles in any past and future eavesdropping on the American people."
But ACCS was not granted immunity in the case at hand and Lazarus writes that:
when it comes to public-private canoodling, the most egregious case I've seen recently involved a San Clemente company, American Corrective Counseling Services, that worked with public prosecutors to go after people who bounced checks.
He describes the scam this way:
In contacting consumers, ACCS represented itself as actually being the district attorney's office, even though the cases involved may not have been vetted in advance by an actual prosecutor.
In return for its efforts, ACCS typically would be entitled to a $100 fee and as much as 60% of any fines paid...
Lois Artz, a 72-year-old resident of the Northern California city of Petaluma, received what looked like a very serious letter from the Sonoma County district attorney's office in November 2005.
"The Sonoma County District Attorney's Office has received a CRIME REPORT alleging you have violated Penal Code 476(a) of the California State Statute: Issuing a Worthless Check," the letter warned.
"A conviction under this statute is punishable by up to one (1) year in county jail, or in a state prison, and up to $1,000 in fines," it said.
The letter advised Artz, a former Bank of America branch manager, to enroll in a "bad check restitution program" and to pay $196.62 in fines.
"When I saw that letter, I almost fainted," she told me. "I was beside myself."
Her crime, Artz said, was writing a check for a $26.62 carton of smokes and not having sufficient funds in her bank account to cover it. Artz said she'd been distracted caring for her daughter, who has breast cancer, but she knows that's no excuse.
What troubled her was that her case seemingly was elevated with alarming speed to the level of criminal prosecution without anyone trying to work things out with her.
"I was humiliated and terrified," Artz said. "I felt like any time I turned around, there would be somebody there telling me to come with them."
According to court documents, ACCS went after more than 100,000 Californians in 2001, the latest year for which data are available. And most if not all those people believed they'd been contacted by a government agency, not a private company.
In speaking for ACCS, Barrus
denied that the company acts independently when it chases down suspected check scofflaws.
"We operate under the total control of the district attorney," he said. "We're basically a secretarial service, and therefore should carry the district attorney's immunity.
"They're not letters from a private company," Barrus insisted. "They're letters from a district attorney."
There is another article in The Press Democrat describing the situation in more detail
The fact that the council has questions for Iseri about P.O.H.A.K.U. shouldn't surprise anybody.
We'd certainly like to know a few things.
Did SJP receive other funds such as ACCS did in collecting "as much as 60% of any fines paid" in the California case? Did the OPA either receive or expend any funding directly or indirectly to or from SJP? What exactly is Delaplane's role? What does he do as "agent?" Is he a paid agent? If so, how much? If so, what if anything is Iseri's cut? Doesn't Delaplane or Iseri see an inherent conflict in a operation where someone- so far apparently SJP- is receiving at least $10,000? Why is Iseri so transparently covering up her and the OPA's association with SJP? Is it simply to take credit for a program she didn't really design and implement or is there more?.. perhaps a financial association?
We haven't been able to uncover all the facts or follow all the money. But we sure hope that Rapozo- along with Councilmembers Kipukai Kuali`i, Dickie Chang, and Chair Jay Furfaro- stop blocking at least an executive session but preferably have a full public airing of the issues involved.
Oh by the way- Kuali`i refused to recuse himself from discussions of the OPA's budget despite the fact that the Erin Wilson Victim Witness position cut by Iseri- which is the subject of a complaint by Wilson as we discussed in January - was contracted out to the YWCA where Kuali`i works.
The next thing scheduled for the matter is an executive session set to take place April 30.
Wednesday, July 15, 2009
LETTING LYIN’ DOGS LIE
LETTING LYIN’ DOGS LIE: We’ve been an unabashed fan of reporter Michael Levine whose clear informative prose in covering, first the police and courts beat and now county government, has been a breath of fresh air, joining now-Editor Nathan Eagle in bringing long needed professionalism and basic literacy to the local paper.
But today’s four-part report (here, here, here, and here) on last Thursday’s Board of Ethics (BOE) session was, in the parlance, off the hook. We struggled for days to make sense of three different reports from attendees and it was like the proverbial blind men describing the elephant.
The details of the “through the looking glass” session- with Levine playing Alice- are a must read for anyone who doubts the “incestuous” nature of the population of boards and commissions on Kaua`i (as Levine reports Cost Commission Chair Randy Finlay “acknowledged”). And it’s but the latest chapter in the associated Tales of the Minotaur’s Labyrinth.
One new wrinkle to the effort to butcher the language and make a mockery of critical reading skills came disappointingly from new BOE member Paul Weil who has usually been a breath of clean air on the board.
Weil is trying to interpret the infamous 20.02(d) charter provision banning board and commission (B &C) members from “appearing” before other Bs and Cs on behalf of “private interests”, using the word not as opposed to “personal interest” in the broad definition of a private interest, but by claiming that non-profit organizations operate in the “public interest”- a notion about non-profits that, even if it did apply, is patently absurd what with trade organizations and other private interest non-profits.
But that matter notwithstanding, one thing is clear- there is no longer doubt that any hope that new county Attorney Al Castillo might ignore those who butter his bread, lies face down in the dust bunnies in the corner of the maze.
To insist that an ordinance can change the plain reading of a charter provision is something that can only happen on Kaua`i where rule of law is notoriously a “wonderland” experience and “execution first, trial later” is the order of the day.
Yet despite original promises by Castillo that he would reverse such holdings, his position has now morphed into a validation of the crooked opinions of the past on the matter. Not only that but he didn’t even have the guts to do it himself and sent a henchman, new Deputy County Attorney Mauna Kea Track, to deliver the bad news.
The fact is that the ordinance- which like the controlling charter provision and the state constructional section on ethics- is confusingly called the "Code of Ethics"- is flawed, written by sycophants of the revolving-door, old boys and girls network, intentionally and illegally to reverse a charter provision barring them from doing their dirty work though quid pro quos and mutual handwashing.
The ones that would act to change that- the county council-certainly don’t seem like it’s even on their radar screen- they like it just the way it is and wouldn’t want to upset the ethical apple cart that routinely clears them of serious charges under absurd BOE rulings
Apparently the only avenue left is to have a judge strike down the ordinance since, even by Castillo’s own admission, it muddies a clear and controlling charter provision
Although we’ve been loath to report this fact because of dubious relevance it now seems more than relevant given Castillo’s 180. According to a reliable source Castillo has said he consulted with former Councilperson and current Circuit Court judge Randall Valenciano on the subject.
That apparently “ex-parte” communication seems to have changed Castillo’s mind because right after it he was quoted as worrying that if the charter provision is enforced “no one will be able to serve” citing that as an “absurd” result even though there are literally tens of thousand of people on the island who would have no problem meeting the standards.
And guess who would most likely hear a suit to enforce the notorious 20.02(d)? You got it- Valenciano, with the other 5th Circuit Judge Kathleen Watanabe (yes- we’ve finally started spelling it right) having set aside most of her calendar for the next year for the “Pflueger vs. everyone on gods formerly green earth” series of lawsuits.
But assuming that even Valenciano couldn’t dispute basic supremacy laws and if he does that that he would be reversed on appeal, the little red hen’s question stands out.... And who will file the suit?
“Not I” said the sustainability organization.
“Not I” said the land use non profit.
“Not I” said the beach clean-up brigade.
“Not I” said the coastal path enthusiasts.
“Not I” said the organic farmer.
“Not I” said the head in the said new-age “too spiritual to care” minions.
But you can be. If someone did file suit the refrain to the question of who will help me to enjoy the benefits of this now-functional, responsive, open government would be “I will, I will, I will, I will”
As always on Kaua`i the $64 question is “who will help...”. For some reason this island is unique in all the country in that no one seems care enough any more about good governance issues, at least enough to get some basic insane and illegal practices before the judiciary.
And guess what? As far as the council and administration are concerned, the name of the place is I like it like that.
The corporate elite routinely intimidates the council into actions that favor them with threats of a lawsuit.
Attorney for the Board of Realtors Jonathan Chun threatened suit last summer if the council didn’t flout the law in grandfathering apparent illegal vacation rental in residential areas and viola- vacation rentals in residential neighborhoods that were forbidden by controlling state law to start with.
And now suing in the public interest? Introducing... nobody.
It’s happening again right now with attorneys Lorna Nishimitsu and, disappointingly, Dan Hempey doing the same for owners of vacation rentals on ag land where state law specifically forbids “overnight accommodations” on ag land ancillary operations.
Yet the council seems poised to pass a bill to, if not give them illegal “use permits” as the planning commission recommended, actually require the planning department to enter into (get this) “non enforcement agreements”, as stated in the original council bill
Years ago citizens had some leverage when Kaua`i activist extraordinaire Ray Chuan’s "Limu Coalition" dared to file suit a few times and put the county on notice that someone was willing to challenge their patently illegal actions in court. He and the rest of the 90’s set of community advocates found out how easy it was to get positive injunctions and rulings regarding many of these absurd abuses perpetrated by county government.
That led to actions such as the opening of the access to “Queen’s Bath” where just the threat of a lawsuit by Limu-guys led to repeal of an action by the county engineer in closing the access.
But currently there seems to be no one who does anything but nibble around the edges when filing suit, such as 1000 Friends vs. County of Kaua`i suit which is still in court over the minutia surrounding the development across the street from Safeway. Even if they win it will little or nothing to change county policies although it could relatively slightly add some cost to the developers.
We’ve listed umpteen blatant abused of process over the last year and a half that are easily winnable in court, from the non enforcement of the citizen’s petition "enforcement of the General Plan" charter amendment to a slew of Sunshine Law violations with dozens of cases in between similar to the ethics situation where ordinances fly in the face of superior charter, state law and constructional provisions.
All have their root in a corrupt self-serving county attorney’s office that spins opinion out of whole cloth. Yet even with a now perpetual charter commission there has been no public advocacy- much less outcry- for changing the charter provisions for the county attorney to provide for a public component to the job or even- gasp- electing the CA to provide for autonomy.
No one seems motivated to dig into their pockets to file suit on these broad issues. Until we do, no amount of great reporting will do anything but cause more head shaking and a deeper sense of helplessness and apathy.
But today’s four-part report (here, here, here, and here) on last Thursday’s Board of Ethics (BOE) session was, in the parlance, off the hook. We struggled for days to make sense of three different reports from attendees and it was like the proverbial blind men describing the elephant.
The details of the “through the looking glass” session- with Levine playing Alice- are a must read for anyone who doubts the “incestuous” nature of the population of boards and commissions on Kaua`i (as Levine reports Cost Commission Chair Randy Finlay “acknowledged”). And it’s but the latest chapter in the associated Tales of the Minotaur’s Labyrinth.
One new wrinkle to the effort to butcher the language and make a mockery of critical reading skills came disappointingly from new BOE member Paul Weil who has usually been a breath of clean air on the board.
Weil is trying to interpret the infamous 20.02(d) charter provision banning board and commission (B &C) members from “appearing” before other Bs and Cs on behalf of “private interests”, using the word not as opposed to “personal interest” in the broad definition of a private interest, but by claiming that non-profit organizations operate in the “public interest”- a notion about non-profits that, even if it did apply, is patently absurd what with trade organizations and other private interest non-profits.
But that matter notwithstanding, one thing is clear- there is no longer doubt that any hope that new county Attorney Al Castillo might ignore those who butter his bread, lies face down in the dust bunnies in the corner of the maze.
To insist that an ordinance can change the plain reading of a charter provision is something that can only happen on Kaua`i where rule of law is notoriously a “wonderland” experience and “execution first, trial later” is the order of the day.
Yet despite original promises by Castillo that he would reverse such holdings, his position has now morphed into a validation of the crooked opinions of the past on the matter. Not only that but he didn’t even have the guts to do it himself and sent a henchman, new Deputy County Attorney Mauna Kea Track, to deliver the bad news.
The fact is that the ordinance- which like the controlling charter provision and the state constructional section on ethics- is confusingly called the "Code of Ethics"- is flawed, written by sycophants of the revolving-door, old boys and girls network, intentionally and illegally to reverse a charter provision barring them from doing their dirty work though quid pro quos and mutual handwashing.
The ones that would act to change that- the county council-certainly don’t seem like it’s even on their radar screen- they like it just the way it is and wouldn’t want to upset the ethical apple cart that routinely clears them of serious charges under absurd BOE rulings
Apparently the only avenue left is to have a judge strike down the ordinance since, even by Castillo’s own admission, it muddies a clear and controlling charter provision
Although we’ve been loath to report this fact because of dubious relevance it now seems more than relevant given Castillo’s 180. According to a reliable source Castillo has said he consulted with former Councilperson and current Circuit Court judge Randall Valenciano on the subject.
That apparently “ex-parte” communication seems to have changed Castillo’s mind because right after it he was quoted as worrying that if the charter provision is enforced “no one will be able to serve” citing that as an “absurd” result even though there are literally tens of thousand of people on the island who would have no problem meeting the standards.
And guess who would most likely hear a suit to enforce the notorious 20.02(d)? You got it- Valenciano, with the other 5th Circuit Judge Kathleen Watanabe (yes- we’ve finally started spelling it right) having set aside most of her calendar for the next year for the “Pflueger vs. everyone on gods formerly green earth” series of lawsuits.
But assuming that even Valenciano couldn’t dispute basic supremacy laws and if he does that that he would be reversed on appeal, the little red hen’s question stands out.... And who will file the suit?
“Not I” said the sustainability organization.
“Not I” said the land use non profit.
“Not I” said the beach clean-up brigade.
“Not I” said the coastal path enthusiasts.
“Not I” said the organic farmer.
“Not I” said the head in the said new-age “too spiritual to care” minions.
But you can be. If someone did file suit the refrain to the question of who will help me to enjoy the benefits of this now-functional, responsive, open government would be “I will, I will, I will, I will”
As always on Kaua`i the $64 question is “who will help...”. For some reason this island is unique in all the country in that no one seems care enough any more about good governance issues, at least enough to get some basic insane and illegal practices before the judiciary.
And guess what? As far as the council and administration are concerned, the name of the place is I like it like that.
The corporate elite routinely intimidates the council into actions that favor them with threats of a lawsuit.
Attorney for the Board of Realtors Jonathan Chun threatened suit last summer if the council didn’t flout the law in grandfathering apparent illegal vacation rental in residential areas and viola- vacation rentals in residential neighborhoods that were forbidden by controlling state law to start with.
And now suing in the public interest? Introducing... nobody.
It’s happening again right now with attorneys Lorna Nishimitsu and, disappointingly, Dan Hempey doing the same for owners of vacation rentals on ag land where state law specifically forbids “overnight accommodations” on ag land ancillary operations.
Yet the council seems poised to pass a bill to, if not give them illegal “use permits” as the planning commission recommended, actually require the planning department to enter into (get this) “non enforcement agreements”, as stated in the original council bill
Years ago citizens had some leverage when Kaua`i activist extraordinaire Ray Chuan’s "Limu Coalition" dared to file suit a few times and put the county on notice that someone was willing to challenge their patently illegal actions in court. He and the rest of the 90’s set of community advocates found out how easy it was to get positive injunctions and rulings regarding many of these absurd abuses perpetrated by county government.
That led to actions such as the opening of the access to “Queen’s Bath” where just the threat of a lawsuit by Limu-guys led to repeal of an action by the county engineer in closing the access.
But currently there seems to be no one who does anything but nibble around the edges when filing suit, such as 1000 Friends vs. County of Kaua`i suit which is still in court over the minutia surrounding the development across the street from Safeway. Even if they win it will little or nothing to change county policies although it could relatively slightly add some cost to the developers.
We’ve listed umpteen blatant abused of process over the last year and a half that are easily winnable in court, from the non enforcement of the citizen’s petition "enforcement of the General Plan" charter amendment to a slew of Sunshine Law violations with dozens of cases in between similar to the ethics situation where ordinances fly in the face of superior charter, state law and constructional provisions.
All have their root in a corrupt self-serving county attorney’s office that spins opinion out of whole cloth. Yet even with a now perpetual charter commission there has been no public advocacy- much less outcry- for changing the charter provisions for the county attorney to provide for a public component to the job or even- gasp- electing the CA to provide for autonomy.
No one seems motivated to dig into their pockets to file suit on these broad issues. Until we do, no amount of great reporting will do anything but cause more head shaking and a deeper sense of helplessness and apathy.
Thursday, February 24, 2011
EVERYBODY’S LAUGHING, EVERYBODY’S HAPPY
EVERYBODY’S LAUGHING, EVERYBODY’S HAPPY: County Attorney (CA) Al “The Nebbish” Castillo surprised a select few with his apparent agreement with the ACLU- Hawai`i opinion about illegality of the Prosecutor Shaylene Iseri-Carvalho/KPD/anti-drug office-sponsored, anti-marijuana rally last week.
Others suspect though that perhaps his opinion had less to do with the issue at hand than it did with the long standing feud between Castillo and Iseri ever since both took office over two years ago. The infamous game of musical chairs at the time has left the county with a bunch of ex-prosecutors in the CA’s office and vice versa which may be why Castillo took the opportunity to stick it to Iseri.
But at the same council meeting where Iseri and Councilmember Mel Rapozo held their “Reefer Madness” cotillion, Castillo was busy doing his best Louis Quarorze impression, once again interrupting the council to remind them who, in reality, L'Etat c'est.
The issue at hand was a complicated one that has been doggedly pursued by activist Horace Stoessel even since January’s inaugural meeting fiasco over the evaluations of appointed officials, including the county clerk.
Stoessel has become a resource extraordinaire on the subject for the council, having sat on the Salary Commission and after spending years to emerge as an expert on the subject- as well as others- as it relates to the county charter.
So after Stoessel’s “three minutes times two” were up the council had many questions and was trying to ascertain his opinion on who should be responsible for writing into law the process for evaluations.
It’s all very esoteric but suffice it to say that it had gone on for quite a while when, like a petulant child piping up during a “grown-up conversation” Castillo couldn’t take it any more.
His first interruption was, as if they needed it, to “direct” the council to “stop”, saying Stoessel was well past his three minutes and was- gasp - actually engaging with them during deliberations- something former Chair Kaipo Asing invented and then promptly banned in order to take the public out of the public participatory process.
He was pretty much ignored and the council was finally getting to the nitty gritty of whether the council actually had the authority to dictate a system for evaluating administration appointees when Councilmember JoAnn Yukimura asked if she had properly understood Stoessel’s “legal conclusion” on a fine point.
That was just too much for Castillo who loudly protested that a “legal conclusion by anyone but the county attorney is irrelevant” and that it was “really improper” for Stoessel to reflect back on his time with the salary commission.
As Castillo spoke, the camera showed a clearly agitated Yukimura, rolling her eyes and shaking her head in disbelief. Then Council Chair Jay Furfaro tried to calm things reminding Castillo that he, Furfaro, was the chair and was “acting like any good manager,” likening it to seeking input from a valued employee whose knowledge and experience was essential to the conversation.
That brought back some decorum and discussion continued with a clearly agitated Castillo keeping his peace. But when it became apparent that the council was going to take Stoessel’s testimony to heart, the Sun King couldn’t control himself any more screeching out “I am the County Attorney” and then blathering on about how he should be consulted and boo-hoo-hoo and blah-blah-blah.
So tune in again next week folks for the comedic stylings of Iseri and Castillo and their ensemble of rotating attorneys. You can’t go wrong and well, the price is right... if you ignore the fact that your taxes paying for it.
Others suspect though that perhaps his opinion had less to do with the issue at hand than it did with the long standing feud between Castillo and Iseri ever since both took office over two years ago. The infamous game of musical chairs at the time has left the county with a bunch of ex-prosecutors in the CA’s office and vice versa which may be why Castillo took the opportunity to stick it to Iseri.
But at the same council meeting where Iseri and Councilmember Mel Rapozo held their “Reefer Madness” cotillion, Castillo was busy doing his best Louis Quarorze impression, once again interrupting the council to remind them who, in reality, L'Etat c'est.
The issue at hand was a complicated one that has been doggedly pursued by activist Horace Stoessel even since January’s inaugural meeting fiasco over the evaluations of appointed officials, including the county clerk.
Stoessel has become a resource extraordinaire on the subject for the council, having sat on the Salary Commission and after spending years to emerge as an expert on the subject- as well as others- as it relates to the county charter.
So after Stoessel’s “three minutes times two” were up the council had many questions and was trying to ascertain his opinion on who should be responsible for writing into law the process for evaluations.
It’s all very esoteric but suffice it to say that it had gone on for quite a while when, like a petulant child piping up during a “grown-up conversation” Castillo couldn’t take it any more.
His first interruption was, as if they needed it, to “direct” the council to “stop”, saying Stoessel was well past his three minutes and was- gasp - actually engaging with them during deliberations- something former Chair Kaipo Asing invented and then promptly banned in order to take the public out of the public participatory process.
He was pretty much ignored and the council was finally getting to the nitty gritty of whether the council actually had the authority to dictate a system for evaluating administration appointees when Councilmember JoAnn Yukimura asked if she had properly understood Stoessel’s “legal conclusion” on a fine point.
That was just too much for Castillo who loudly protested that a “legal conclusion by anyone but the county attorney is irrelevant” and that it was “really improper” for Stoessel to reflect back on his time with the salary commission.
As Castillo spoke, the camera showed a clearly agitated Yukimura, rolling her eyes and shaking her head in disbelief. Then Council Chair Jay Furfaro tried to calm things reminding Castillo that he, Furfaro, was the chair and was “acting like any good manager,” likening it to seeking input from a valued employee whose knowledge and experience was essential to the conversation.
That brought back some decorum and discussion continued with a clearly agitated Castillo keeping his peace. But when it became apparent that the council was going to take Stoessel’s testimony to heart, the Sun King couldn’t control himself any more screeching out “I am the County Attorney” and then blathering on about how he should be consulted and boo-hoo-hoo and blah-blah-blah.
So tune in again next week folks for the comedic stylings of Iseri and Castillo and their ensemble of rotating attorneys. You can’t go wrong and well, the price is right... if you ignore the fact that your taxes paying for it.
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”.
Monday, October 18, 2010
(PNN) $250,000 SETTLEMENT IN “DOE V COK” EEOC CASE BEGAN WITH ALLEGED ‘02 ASSAULT BY COUNTY CLERK NAKAMURA UPON COUNCIL’S DEPUTY COUNTY ATTORNEY
$250,000 SETTLEMENT IN “DOE V COK” EEOC CASE BEGAN WITH ALLEGED ‘02 ASSAULT BY COUNTY CLERK NAKAMURA UPON COUNCIL’S DEPUTY COUNTY ATTORNEY
“DOE” ILLEGALLY IDED AS HANSON-SUEOKA BY CA CASTILLO, WHO FIRED HER IN ‘08
by Andy Parx
(PNN) -- The $250,000 settlement of a “hostile/violent work environment” Equal Employment Opportunity Commission (EEOC) complaint identified only as “Jane Doe vs. County of Kaua`i” was actually a complaint filed by former Deputy County Attorney Margaret Hanson-Sueoka according to records illegally revealed by County Attorney Al Castillo.
The case apparently goes back to early 2002 during the waning days of Mayor Maryanne Kusaka’s administration but the precipitating incident occurred, not in administration offices where the county attorney’s offices are housed but in the “workplace” of council services.
According to numerous council services employees, past reporters and “regulars” at council meetings at the time, then and present County Clerk Peter Nakamura allegedly “beat up” Hanson-Sueoka, who was at the time his “girlfriend”, causing Hanson to seek a restraining order against Nakamura.
Though some alleged that at the time Nakamura was actually arrested others claim that he was not, with some of those saying that this was due to his position and Hanson-Sueoka’s refusal to press charges due to fear of repercussions on her job situation. Almost all however agreed in maintaining that Hanson had obtained a protective restraining order against Nakamura after telling people she was assaulted by him.
Although the county clerk heads the “council services” office and runs every aspect of council doings including hiring and firing of personnel, technically Hanson-Sueoka’s boss was the county attorney although the attorney assigned to the council often works closely and under the supervision of the county clerk.
But EEOC law also covers those that, while technically are not “superiors, but those that act as such.
An examination of county records and newspaper articles indicates Hanson-Sueoka was soon terminated from her plum assignment as attorney for the council and, when the Bryan Baptiste administration took over in December of 2002, she was retained as a deputy in new CA Lani Nakazawa’s office but assigned to attend various long and often boring and routine board and commission meetings to provide attorney advice.
Hanson-Sueoka remained with the office when Nakazawa left and was replaced by CA Matthew Pyun, and was the main county attorney involved in the infamous removal from office of Police Commission Chair Michael Ching- as well as the cover-up of the hearing judge’s full report exonerating Ching- and the resulting politically motivated firing of Police Chief KC Lum.
But when Bernard Carvalho was elected as mayor in 2008 and appointed Castillo, Hanson was fired for no stated reason, although her EEOC case presumably maintains it was retaliatory for whistle-blowing for past the incidents.
The EEOC complaint was filed after Hanson-Sueoka’s firing by Castillo and confirmation of the $250,000 award- along with the confirmation that it was a hostile/violent workplace compliant- came at least week’s council meeting as part of a presentation by Councilpersons Lani Kawahara and Tim Bynum on the pervasive disregard for sexual harassment and hostile work environment laws by the county.
At the meeting the pair cited the “Jane Doe” case and that of Kristan Hirakawa- a case detailed by PNN over the past year- saying cases against the county are rarely if ever even investigated and that harassers are apparently never disciplined much less fired even after judgments against the county.
The incident in 2002 was the talk of the county building at the time including among councilmembers who were called into executive session to discuss personnel issues within council services although none would confirm publicly that the subject was Nakamura who remains on the job today despite the settlement.
Though the incident occurred during the time when then Councilperson Ron Kouchi was the chair of the council after the 2002 election- where he ran and lost in a bid to be mayor- current Chair Kaipo Asing took over and has remained chair ever since okaying, along with the rest of the council, various settlements for harassment of county employees as well as reappointing Nakamura as county clerk every two years.
Though EEOC cases are, by federal law, to be kept confidential, after firing Hanson-Sueoka Castillo twice revealed that indeed she was the EEOC plaintiff, the first time on the council agenda for April 22, 2009 where he requested executive session (ES) 382 which read in part,
the Office of the County Attorney requests an executive session with the Council to provide the Council a briefing on Margaret H. Sueoka v. County of Kaua`i, EEOC Charge No. 486-2009-00268 and/or related matters and/or subsequent legal proceedings resulting in any way from this matter.
Then, even after a rejected request from PNN to examine the EEOC case files- where we were told by the CA’s office that federal law maintains strict confidentiality for EEOC complaints, superseding the state sunshine law- in a local newspaper article on August 28, 2009 about the $3 million that has been spent on outside counsel to defend lawsuits against the county, reporter Michael Levine wrote:
“Since I’ve been here, the only (lawsuit) that is mine is the Sueoka case, and that’s one where we really didn’t have a choice,” Castillo said, in reference to an equal employment opportunity claim filed against the county by former Deputy County Attorney Margaret Sueoka. He said having a staff attorney handle the case could constitute a conflict of interest.
But recently all references on council agendas to the Hanson-Sueoka case were noted as “Jane Doe vs. County of Kaua`i” although both the recent postings and the one for April of 2009 referred to the same “Charge number”, 486-2009-00268.
Talk regarding the original incident when Nakamura was alleged to have “beat up” Hanson- who has since married and changed her name to Sueoka- was pervasive at the county building in 2002 when PNN was actively covering weekly council meetings and, while more than a dozen people repeated the story about Nakamura and Hanson, PNN has not been able to confirm the incidents through documentation.
It should be noted that this report was compiled after speaking to many knowledgeable sources both in 2002 and this week and after a review of our notes from that era. It is the best available rendering of the truth of what has occurred in this case. All undocumented allegation are just that- undocumented allegations.
“DOE” ILLEGALLY IDED AS HANSON-SUEOKA BY CA CASTILLO, WHO FIRED HER IN ‘08
by Andy Parx
(PNN) -- The $250,000 settlement of a “hostile/violent work environment” Equal Employment Opportunity Commission (EEOC) complaint identified only as “Jane Doe vs. County of Kaua`i” was actually a complaint filed by former Deputy County Attorney Margaret Hanson-Sueoka according to records illegally revealed by County Attorney Al Castillo.
The case apparently goes back to early 2002 during the waning days of Mayor Maryanne Kusaka’s administration but the precipitating incident occurred, not in administration offices where the county attorney’s offices are housed but in the “workplace” of council services.
According to numerous council services employees, past reporters and “regulars” at council meetings at the time, then and present County Clerk Peter Nakamura allegedly “beat up” Hanson-Sueoka, who was at the time his “girlfriend”, causing Hanson to seek a restraining order against Nakamura.
Though some alleged that at the time Nakamura was actually arrested others claim that he was not, with some of those saying that this was due to his position and Hanson-Sueoka’s refusal to press charges due to fear of repercussions on her job situation. Almost all however agreed in maintaining that Hanson had obtained a protective restraining order against Nakamura after telling people she was assaulted by him.
Although the county clerk heads the “council services” office and runs every aspect of council doings including hiring and firing of personnel, technically Hanson-Sueoka’s boss was the county attorney although the attorney assigned to the council often works closely and under the supervision of the county clerk.
But EEOC law also covers those that, while technically are not “superiors, but those that act as such.
An examination of county records and newspaper articles indicates Hanson-Sueoka was soon terminated from her plum assignment as attorney for the council and, when the Bryan Baptiste administration took over in December of 2002, she was retained as a deputy in new CA Lani Nakazawa’s office but assigned to attend various long and often boring and routine board and commission meetings to provide attorney advice.
Hanson-Sueoka remained with the office when Nakazawa left and was replaced by CA Matthew Pyun, and was the main county attorney involved in the infamous removal from office of Police Commission Chair Michael Ching- as well as the cover-up of the hearing judge’s full report exonerating Ching- and the resulting politically motivated firing of Police Chief KC Lum.
But when Bernard Carvalho was elected as mayor in 2008 and appointed Castillo, Hanson was fired for no stated reason, although her EEOC case presumably maintains it was retaliatory for whistle-blowing for past the incidents.
The EEOC complaint was filed after Hanson-Sueoka’s firing by Castillo and confirmation of the $250,000 award- along with the confirmation that it was a hostile/violent workplace compliant- came at least week’s council meeting as part of a presentation by Councilpersons Lani Kawahara and Tim Bynum on the pervasive disregard for sexual harassment and hostile work environment laws by the county.
At the meeting the pair cited the “Jane Doe” case and that of Kristan Hirakawa- a case detailed by PNN over the past year- saying cases against the county are rarely if ever even investigated and that harassers are apparently never disciplined much less fired even after judgments against the county.
The incident in 2002 was the talk of the county building at the time including among councilmembers who were called into executive session to discuss personnel issues within council services although none would confirm publicly that the subject was Nakamura who remains on the job today despite the settlement.
Though the incident occurred during the time when then Councilperson Ron Kouchi was the chair of the council after the 2002 election- where he ran and lost in a bid to be mayor- current Chair Kaipo Asing took over and has remained chair ever since okaying, along with the rest of the council, various settlements for harassment of county employees as well as reappointing Nakamura as county clerk every two years.
Though EEOC cases are, by federal law, to be kept confidential, after firing Hanson-Sueoka Castillo twice revealed that indeed she was the EEOC plaintiff, the first time on the council agenda for April 22, 2009 where he requested executive session (ES) 382 which read in part,
the Office of the County Attorney requests an executive session with the Council to provide the Council a briefing on Margaret H. Sueoka v. County of Kaua`i, EEOC Charge No. 486-2009-00268 and/or related matters and/or subsequent legal proceedings resulting in any way from this matter.
Then, even after a rejected request from PNN to examine the EEOC case files- where we were told by the CA’s office that federal law maintains strict confidentiality for EEOC complaints, superseding the state sunshine law- in a local newspaper article on August 28, 2009 about the $3 million that has been spent on outside counsel to defend lawsuits against the county, reporter Michael Levine wrote:
“Since I’ve been here, the only (lawsuit) that is mine is the Sueoka case, and that’s one where we really didn’t have a choice,” Castillo said, in reference to an equal employment opportunity claim filed against the county by former Deputy County Attorney Margaret Sueoka. He said having a staff attorney handle the case could constitute a conflict of interest.
But recently all references on council agendas to the Hanson-Sueoka case were noted as “Jane Doe vs. County of Kaua`i” although both the recent postings and the one for April of 2009 referred to the same “Charge number”, 486-2009-00268.
Talk regarding the original incident when Nakamura was alleged to have “beat up” Hanson- who has since married and changed her name to Sueoka- was pervasive at the county building in 2002 when PNN was actively covering weekly council meetings and, while more than a dozen people repeated the story about Nakamura and Hanson, PNN has not been able to confirm the incidents through documentation.
It should be noted that this report was compiled after speaking to many knowledgeable sources both in 2002 and this week and after a review of our notes from that era. It is the best available rendering of the truth of what has occurred in this case. All undocumented allegation are just that- undocumented allegations.
Monday, February 1, 2010
BELIEVE IT OR ELSE
BELIEVE IT OR ELSE: How dumb are we? You don’t wanna know... no, really, seriously, apparently you actually don’t want to know.
Or at least the county once again is relying on that premise.
Because everywhere we went this weekend all we heard was the gurgling sound of people swallowing the hook, line and sinker of Al “The Mad Hat Police” Castillo’s improbable spin on the county’s whopping close to 1/3 of the responsibility in the Ka Loko Dam break tragedy.
Instead of admitting to the scandalous behavior of Mayor Maryanne Kusaka and her Department of Public Works henchmen Cesar Portugal, Wally Kudo and Ian Costa (among others) in intentionally allowing accused murderer Jimmy Pflueger to do whatever the hell he wanted with his “lakes”, Castillo wants us to believe that that “the difference between the state’s portion of the settlement and the county’s had little to do with culpability, and instead reflected financial realities and state law regarding immunity” according to a county press release.
Ah- pay no attention to the man behind the curtain. I am The Great and Powerful Al...
The fact is there is no immunity law that distinguishes between the gross incompetence of the state and the malfeasance of the county.
Government employees usually receive a broad immunity in performing their duties. The general rule is that as long as they aren’t unbelievably and grossly incompetent- and usually forewarned of the potential results of their incompetence- they and/or their government can’t be held financially responsible.
But even more lacking of that kind of protection is something like what occurred on Kaua`i- a criminal conspiracy among government officials to lie, cover-up and generally block enforcement of the law.
You don’t have to go far to find the damning evidence of that- just review the year and a half of public exposition of their malfeasance through testimony contained in the verbatim minutes of council meetings in the late 1990’s and early 2000’s.
Some we’ve spoken to have an inking that we’re being sold a bill of goods here but can’t really put their finger on it. That may be because preceding the paragraph containing the “culpability” BS was this little ditty:
“While the County believed it had viable defenses, joint and several liability applied in this case. Had the County lost at trial with the other defendants, we could have ended up having to pay almost everything, not just the percentage the jury assigned to us,” said County Attorney Alfred Castillo. “Since this case had potentially huge damages, well in excess of our insurance limits, the County and its insurance carriers believed that settling was in the best interest of the County.”
Joan Conrow smelled a rat , in her Saturday column, but understandably took the mis-directional bait in assuming the razzle-dazzle of that paragraph had anything to do with the culpability paragraph saying:
Something’s not right here. Doesn’t the state have insurance, too? And does this talk about “financial realities” mean that the county now has deeper pockets than the state?
What about former Mayor Maryanne Kusaka, who told the county inspector to lay off in his investigations of Pflueger’s illegal grading at the dam? Will she be charged for the $250,000 that the insurance doesn’t cover? Will she ever be held accountable for her deeds? Is the desire to spare her one reason why the county decided to settle out of court?
The state in fact is self insured while the county holds a policy- one for which premiums are bound to be going up by a hefty amount... something Castillo fails to mention in assessing the cost to the county.
But the fact is this has nothing to do with the state’s liability law because no law can protect government officials when they are grossly negligent or even in fact engaged in malfeasance.
Of course the “deep pockets” excuse is total bullsh-t- the state’s would even be bigger with its deeper pockets if that had any relevance whatsoever- unless of course the county was far more to blame.
But since the depositions are sealed- which we would argue in the case of state and county culpability they shouldn’t be under the sunshine and open records laws- we’ll never see the evidence... a fact Castillo is relying upon.
One question should show what a load of shibai Castillo is trying to get the press and the people to believe- apparently successfully until now.
If Castillo’s claim were to be taken seriously, apparently that there has to be some kind of state law giving the state some kind of total immunity to their own incompetence and malfeasance under all circumstances- one that doesn’t so protect the counties. If that were true- which is isn’t- how did the state come to be held responsible for any amount at all, much less the reported $1.5 million for which they settled?
Answer- of course there can’t be. It’s simply based on the responsibility of each entity- in the state’s case, regular inspection of the dams but in the county’s case, enforcement of grubbing and grading laws.
The fact is that the $7.5 million the county was assessed shows nothing if not culpability and means the actions- or inactions as the case may be- of the Kusaka Administration were more than four times worse than the state’s.
As the years have gone by most observers- especially those in Honolulu but also notably the handful of supporters and family members of Pflueger’s have filled the comment pages of the newspapers- and in the case of the latter, our email inbox- contending that the lack of state inspections means that the state should be held partially responsible- or fully in the case of Jimmyphiles.
It’s the old “oh the cops didn’t stop me from robbing that bank so they’re responsible” defense.
We don’t expect anything to satisfy those who think Pflueger can do no wrong but it makes it understandable why they never brought up the county’s part in this because that would mean that, since Pflueger himself was both involved in and the beneficiary of the local corruption he can’t claim it should relieve him of any and all liability.
But it should also give the rest of the state $1.5 million reasons to stop ignoring and laughing at local Kaua`i corruption and joking about “a separate kingdom”.
And those of you who think it’s ok because we on Kaua`i won’t have to actually pay anything but $250,000 ought to be asking about what we are paying for our insurance policy- or will be in the near future... assuming that at this point we’re even insurable.
And don’t think the bond rating people for the county’s bond float- currently being negotiated- haven’t noticed the same thing.
Or at least the county once again is relying on that premise.
Because everywhere we went this weekend all we heard was the gurgling sound of people swallowing the hook, line and sinker of Al “The Mad Hat Police” Castillo’s improbable spin on the county’s whopping close to 1/3 of the responsibility in the Ka Loko Dam break tragedy.
Instead of admitting to the scandalous behavior of Mayor Maryanne Kusaka and her Department of Public Works henchmen Cesar Portugal, Wally Kudo and Ian Costa (among others) in intentionally allowing accused murderer Jimmy Pflueger to do whatever the hell he wanted with his “lakes”, Castillo wants us to believe that that “the difference between the state’s portion of the settlement and the county’s had little to do with culpability, and instead reflected financial realities and state law regarding immunity” according to a county press release.
Ah- pay no attention to the man behind the curtain. I am The Great and Powerful Al...
The fact is there is no immunity law that distinguishes between the gross incompetence of the state and the malfeasance of the county.
Government employees usually receive a broad immunity in performing their duties. The general rule is that as long as they aren’t unbelievably and grossly incompetent- and usually forewarned of the potential results of their incompetence- they and/or their government can’t be held financially responsible.
But even more lacking of that kind of protection is something like what occurred on Kaua`i- a criminal conspiracy among government officials to lie, cover-up and generally block enforcement of the law.
You don’t have to go far to find the damning evidence of that- just review the year and a half of public exposition of their malfeasance through testimony contained in the verbatim minutes of council meetings in the late 1990’s and early 2000’s.
Some we’ve spoken to have an inking that we’re being sold a bill of goods here but can’t really put their finger on it. That may be because preceding the paragraph containing the “culpability” BS was this little ditty:
“While the County believed it had viable defenses, joint and several liability applied in this case. Had the County lost at trial with the other defendants, we could have ended up having to pay almost everything, not just the percentage the jury assigned to us,” said County Attorney Alfred Castillo. “Since this case had potentially huge damages, well in excess of our insurance limits, the County and its insurance carriers believed that settling was in the best interest of the County.”
Joan Conrow smelled a rat , in her Saturday column, but understandably took the mis-directional bait in assuming the razzle-dazzle of that paragraph had anything to do with the culpability paragraph saying:
Something’s not right here. Doesn’t the state have insurance, too? And does this talk about “financial realities” mean that the county now has deeper pockets than the state?
What about former Mayor Maryanne Kusaka, who told the county inspector to lay off in his investigations of Pflueger’s illegal grading at the dam? Will she be charged for the $250,000 that the insurance doesn’t cover? Will she ever be held accountable for her deeds? Is the desire to spare her one reason why the county decided to settle out of court?
The state in fact is self insured while the county holds a policy- one for which premiums are bound to be going up by a hefty amount... something Castillo fails to mention in assessing the cost to the county.
But the fact is this has nothing to do with the state’s liability law because no law can protect government officials when they are grossly negligent or even in fact engaged in malfeasance.
Of course the “deep pockets” excuse is total bullsh-t- the state’s would even be bigger with its deeper pockets if that had any relevance whatsoever- unless of course the county was far more to blame.
But since the depositions are sealed- which we would argue in the case of state and county culpability they shouldn’t be under the sunshine and open records laws- we’ll never see the evidence... a fact Castillo is relying upon.
One question should show what a load of shibai Castillo is trying to get the press and the people to believe- apparently successfully until now.
If Castillo’s claim were to be taken seriously, apparently that there has to be some kind of state law giving the state some kind of total immunity to their own incompetence and malfeasance under all circumstances- one that doesn’t so protect the counties. If that were true- which is isn’t- how did the state come to be held responsible for any amount at all, much less the reported $1.5 million for which they settled?
Answer- of course there can’t be. It’s simply based on the responsibility of each entity- in the state’s case, regular inspection of the dams but in the county’s case, enforcement of grubbing and grading laws.
The fact is that the $7.5 million the county was assessed shows nothing if not culpability and means the actions- or inactions as the case may be- of the Kusaka Administration were more than four times worse than the state’s.
As the years have gone by most observers- especially those in Honolulu but also notably the handful of supporters and family members of Pflueger’s have filled the comment pages of the newspapers- and in the case of the latter, our email inbox- contending that the lack of state inspections means that the state should be held partially responsible- or fully in the case of Jimmyphiles.
It’s the old “oh the cops didn’t stop me from robbing that bank so they’re responsible” defense.
We don’t expect anything to satisfy those who think Pflueger can do no wrong but it makes it understandable why they never brought up the county’s part in this because that would mean that, since Pflueger himself was both involved in and the beneficiary of the local corruption he can’t claim it should relieve him of any and all liability.
But it should also give the rest of the state $1.5 million reasons to stop ignoring and laughing at local Kaua`i corruption and joking about “a separate kingdom”.
And those of you who think it’s ok because we on Kaua`i won’t have to actually pay anything but $250,000 ought to be asking about what we are paying for our insurance policy- or will be in the near future... assuming that at this point we’re even insurable.
And don’t think the bond rating people for the county’s bond float- currently being negotiated- haven’t noticed the same thing.
Wednesday, April 22, 2009
(PNN) COUNCIL TO SPEND $50,000 TO DEFEND SUEOKA EEOC CHARGE
Former long time Deputy County Attorney Margaret Sueoka has filed an EEOC complaint that has resulted in a case against the county that is apparently serious enough that the county attorney’s office is asking the council for 50,000 to defend the charge.
The federal Equal Employment Opportunity Commission (EEOC) has substantiated the claim to the extent that they have filed a “charge” and given the case a number (486-2009-00268) but any detailed information is “not available to anyone except to parties” of the case according to an EEOC intake representative and, at least preliminarily, the state according to Amy Esaki current First Deputy CA for the county.
Esaki said after briefly checking with the state Office of Information Practices (OIP) the county’s position is that any further information is, at least for now, protected at the state level by HRS section 92F-14, claiming that the privacy issues involved outweigh the public interest in releasing the charges made by Sueoka.
PNN was unable to contact Sueoka and there is no number listed for her name.
Sueoka was apparently fired sometime during the change of administration and resultant change in county attorneys presumably by either Esaki, who was interim CA, or by current CA Al Castillo. Sueoka was sworn in on December 1 with the rest of the deputy CA’s.
Esaki said she couldn’t comment or provide any details surrounding the firing. even the fact that Sueoka was terminated, although the EEOC charge apparently verifies that.
It is unknown what the basis of the charge is although usually the EEOC deals with cases of discrimination against a “protected class” such as in race, gender or age bias.
Though no information on the specifics exist, some political insiders have speculated that Sueoka was fired due to the various controversial opinions she wrote, advice she gave and cases she pursued when she worked for former CA’s Lani Nakazawa and Matthew Pyun.
Nakazawa and Pyun initiated a widely criticized and unprecedented era of secrecy in the CA’s office as PNN has detailed in past reports, claiming that the CA’s only function was to serve the administration and council and that all official opinions rendered were the sole possession of those to whom they were issued and that only those so advised could release them to the public.
Previously, although county law is silent on the matter, most CA written opinions were considered public record, as state law requires of attorneys general’s opinions.
It has been revealed in various public session of boards and commissions including those of the council, that Sueoka, along with Nakazawa, had written the opinion that bans public release by the CA’s office and removed any public component to the CA office’s duties.
In addition, it has been revealed at meetings that she penned many of the advisory opinions that seemed to fly in the face of exiting laws and regulations. But since they were secret, no one could challenge them on the particulars.
Sueoka was instrumental in the apparent railroading of former police chief KC Lum by the Board of Ethics (BOE)- at the council and mayor’s behest- serving as the long time legal advisor of the beleaguered BOE. She also apparently wrote the still-secret opinion that allowed violations of the prohibitions in section 20.02(D) of the county charter that PNN’s investigatory three part series detailed this and last week.
Based on some of Castillo’s words and actions at various meetings over the past month or so he has been in office it is thought – or at least hoped- by many county government observers that he will be reversing many of Sueoka’s, Pyun’s and Nakazawa’s opinions.
Castillo has been observed with shocked expressions, eye rolling and head shaking upon observing the consequences of the apparent misconceptions of law, as stated by members of the various bodies (including the county council and BOE), based on Sueoka’s legal advice.
He has also given verbal indications that a potential change in policy is in the works at some of those meetings.
Both Esaki and Castillo are new to the CA’s office, Castillo coming from private practice after a stint in the prosecutor’s office in the 90’s and Esaki coming from council services where she served as a legal analyst for many years.
Both are considered to be “straight shooters” by various sources who have worked with them over the years although it cannot be verified if any of this was in any way behind the firing of Sueoka.
According to sources both are primed to clean up the CA’s office and repair its severely tarnished reputation, built through the years by issuing opinions that served the reported paternalistic and secretive efforts of Kaua`i County Council Chair Kaipo Asing and the administration of former Mayor Bryan Baptiste.
The CA’s office has also been under fire for the inordinate number of cases referred to “special counsel”- a small cabal of outside Honolulu attorneys who seem to most political observers and government watchdogs almost incapable of winning a case
That has cost the county millions in attorneys’ fees and more in settlements, much to councilmembers’ vocal chagrin.
Though the particulars of the Sueoka case are confidential to non-parties according to the EEOC itself, the public interest vs. private concerns may be less inviolable if it can be shown that there is a great public interest in releasing the details of the case.
Esaki said she presented the specific case to the OIP- the body that administrates the Uniform Information Practices Act or UIPA (HRS 92F) and the Sunshine Law (HRS 92 Section 1)- but attorney Linden Joesting of OIP, who spoke to Esaki, said that her counsel was just “advice over the phone” based on “preliminary information” and was not to be taken as a formal ruling as to whether the public interest in this case might outweigh Sueoka’s privacy interest of.
Joesting said she had not seen anything in writing but said that if we made a formal written request for the record of the case from the county and were denied she would be able to make, if not a formal ruling at least more than a preliminary one.
PNN will be filing that request tomorrow with the CA’s office and has been promised the denial will be expedited.
Joesting also indicated that it all might depend on EEOC rules on releasing the case file about which she didn’t have enough information to determine if there were strict or situational-dependent prohibitions against public release of the documents regarding the case.
This is not the first recent case of an EEOC charge. As PNN reported in December Kaua`i Bus driver Kathleen M. Ah Quin has filed suit against the Kaua`i Department of Transportation- specifically Executive on Transportation Janine Rapozo- for gender discrimination after the county refused to answer or even, according to her suit, investigate an EEOC complaint. The council also appropriated $50,000 at the time to defend that case.
Rapozo, a holdover from the Baptiste administration, is the wife of now Parks and Recreation Department head Lenny Rapozo who served as current Mayor Bernard Carvalho’s campaign manager in the fall 2008 campaign for mayor.
The federal Equal Employment Opportunity Commission (EEOC) has substantiated the claim to the extent that they have filed a “charge” and given the case a number (486-2009-00268) but any detailed information is “not available to anyone except to parties” of the case according to an EEOC intake representative and, at least preliminarily, the state according to Amy Esaki current First Deputy CA for the county.
Esaki said after briefly checking with the state Office of Information Practices (OIP) the county’s position is that any further information is, at least for now, protected at the state level by HRS section 92F-14, claiming that the privacy issues involved outweigh the public interest in releasing the charges made by Sueoka.
PNN was unable to contact Sueoka and there is no number listed for her name.
Sueoka was apparently fired sometime during the change of administration and resultant change in county attorneys presumably by either Esaki, who was interim CA, or by current CA Al Castillo. Sueoka was sworn in on December 1 with the rest of the deputy CA’s.
Esaki said she couldn’t comment or provide any details surrounding the firing. even the fact that Sueoka was terminated, although the EEOC charge apparently verifies that.
It is unknown what the basis of the charge is although usually the EEOC deals with cases of discrimination against a “protected class” such as in race, gender or age bias.
Though no information on the specifics exist, some political insiders have speculated that Sueoka was fired due to the various controversial opinions she wrote, advice she gave and cases she pursued when she worked for former CA’s Lani Nakazawa and Matthew Pyun.
Nakazawa and Pyun initiated a widely criticized and unprecedented era of secrecy in the CA’s office as PNN has detailed in past reports, claiming that the CA’s only function was to serve the administration and council and that all official opinions rendered were the sole possession of those to whom they were issued and that only those so advised could release them to the public.
Previously, although county law is silent on the matter, most CA written opinions were considered public record, as state law requires of attorneys general’s opinions.
It has been revealed in various public session of boards and commissions including those of the council, that Sueoka, along with Nakazawa, had written the opinion that bans public release by the CA’s office and removed any public component to the CA office’s duties.
In addition, it has been revealed at meetings that she penned many of the advisory opinions that seemed to fly in the face of exiting laws and regulations. But since they were secret, no one could challenge them on the particulars.
Sueoka was instrumental in the apparent railroading of former police chief KC Lum by the Board of Ethics (BOE)- at the council and mayor’s behest- serving as the long time legal advisor of the beleaguered BOE. She also apparently wrote the still-secret opinion that allowed violations of the prohibitions in section 20.02(D) of the county charter that PNN’s investigatory three part series detailed this and last week.
Based on some of Castillo’s words and actions at various meetings over the past month or so he has been in office it is thought – or at least hoped- by many county government observers that he will be reversing many of Sueoka’s, Pyun’s and Nakazawa’s opinions.
Castillo has been observed with shocked expressions, eye rolling and head shaking upon observing the consequences of the apparent misconceptions of law, as stated by members of the various bodies (including the county council and BOE), based on Sueoka’s legal advice.
He has also given verbal indications that a potential change in policy is in the works at some of those meetings.
Both Esaki and Castillo are new to the CA’s office, Castillo coming from private practice after a stint in the prosecutor’s office in the 90’s and Esaki coming from council services where she served as a legal analyst for many years.
Both are considered to be “straight shooters” by various sources who have worked with them over the years although it cannot be verified if any of this was in any way behind the firing of Sueoka.
According to sources both are primed to clean up the CA’s office and repair its severely tarnished reputation, built through the years by issuing opinions that served the reported paternalistic and secretive efforts of Kaua`i County Council Chair Kaipo Asing and the administration of former Mayor Bryan Baptiste.
The CA’s office has also been under fire for the inordinate number of cases referred to “special counsel”- a small cabal of outside Honolulu attorneys who seem to most political observers and government watchdogs almost incapable of winning a case
That has cost the county millions in attorneys’ fees and more in settlements, much to councilmembers’ vocal chagrin.
Though the particulars of the Sueoka case are confidential to non-parties according to the EEOC itself, the public interest vs. private concerns may be less inviolable if it can be shown that there is a great public interest in releasing the details of the case.
Esaki said she presented the specific case to the OIP- the body that administrates the Uniform Information Practices Act or UIPA (HRS 92F) and the Sunshine Law (HRS 92 Section 1)- but attorney Linden Joesting of OIP, who spoke to Esaki, said that her counsel was just “advice over the phone” based on “preliminary information” and was not to be taken as a formal ruling as to whether the public interest in this case might outweigh Sueoka’s privacy interest of.
Joesting said she had not seen anything in writing but said that if we made a formal written request for the record of the case from the county and were denied she would be able to make, if not a formal ruling at least more than a preliminary one.
PNN will be filing that request tomorrow with the CA’s office and has been promised the denial will be expedited.
Joesting also indicated that it all might depend on EEOC rules on releasing the case file about which she didn’t have enough information to determine if there were strict or situational-dependent prohibitions against public release of the documents regarding the case.
This is not the first recent case of an EEOC charge. As PNN reported in December Kaua`i Bus driver Kathleen M. Ah Quin has filed suit against the Kaua`i Department of Transportation- specifically Executive on Transportation Janine Rapozo- for gender discrimination after the county refused to answer or even, according to her suit, investigate an EEOC complaint. The council also appropriated $50,000 at the time to defend that case.
Rapozo, a holdover from the Baptiste administration, is the wife of now Parks and Recreation Department head Lenny Rapozo who served as current Mayor Bernard Carvalho’s campaign manager in the fall 2008 campaign for mayor.
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