WRIT LARGE

WRIT LARGE: We’re now in possession of a “quotable” text copy of the Office of Information Practice (OIP) application for “writ of certiorari” (mahalo to Larry Geller for the excellent conversion work) regarding the infamous ES (executive session) 177 the Kaua`i County Council held in January 2005 (we mistakenly said 2006 yesterday).

If the Hawai`i Supreme Court accepts the writ they will hear an appeal of an Intermediate Court of Appeal’s (ICA) decision upholding a 5th circuit court ruling denying the access to the minutes of the meeting.

According to the brief

The ICA decision concerns an OIP administrative determination that certain council meeting minutes be disclosed under the State public records law, chapter 92F, FIRS, the Uniform Information Practices Act (Modified) (the - UIPA"). I The ICA affirmed the lower court's ruling that this action was properly brought under chapter 92, HRS, because that chapter's statutory scheme controls the disclosure of minutes.`' The ICA also affirmed the lower court's conclusion that the minutes were properly withheld in their entirety because of the compelling reasons for respecting and preserving the attorney-client privilege also afforded public agencies and because the privileged portions of the minutes were so intertwined with non-privileged portions that redaction would be impractical.

But let’s start at the beginning.

In January 2005 a new county council had just taken office with two new members- Mel Rapozo and Shaylene Iseri-Carvalho. Both were avowed political enemies of newly selected Police Chief KC Lum who was the Lieutenant on duty when the “lap dancer incident” took place and Rapozo by all accounts claimed Lum “turned in” Rapozo after another officer told Lum what was going on in the room next door that night.

Rapozo held Lum responsible for his ouster from the Kaua`i Police Department in the infamous “lap dancer” incident as detailed in the book “KPD Blue” (see left rail to read the book in it’s entirety). Iseri was married to Destry Carvalho, a KPD officer who was part of a faction that opposed Lum. She also, according to multiple sources, hald a grudge against Lum stemming from an incident when Lum was an officer and he tried multiple times to break up a loud party Iseri- at the time a deputy county prosecutor- was hosting at Lydgate Pavilion.

At the time Democratic Party members of the council also didn’t like the two members of the Police Commission who installed Lum- Chair Michael Ching, a prominent independent Hanalei business owner and commissioner Carol Furtado, a Republican.

So they called for an executive session to talk about either, for the first time ever invoking a charter provision, (3.17) that allows the council to investigate administrative departments, and/or finding out what the Board of Ethics was doing regarding their own investigation of the appointment.

Here’s the notice as it appeared on the agenda on Jan 20, 2005

Pursuant to Haw. Rev. Stat. §§92-4, 92-5(a)(4 and 92-5(a)(6), the purposes of this executive session are (1) to deliberate and decide whether an investigation of the Kaua`i Police Department should be conducted pursuant to §3.17 of the Kaua`i County Charter and the process to be used in the investigation (2) to consult with the County's legal counsel on legal issues regarding these matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item.



According to OIP’s “Statement of the Case” there’s probably more than you wanted to know about what happened next.

(After the meeting) OIP was initially asked by then chairperson of the Kauai Police Commission, Mr. Michael Ching, to investigate whether the meeting had complied with the Sunshine Law, including whether the executive meeting purposes cited applied to the matters discussed by the Council in the ES-177 Meeting.

OIP reviewed the ES-177 Meeting transcript (the "ES-177 Minutes") in camera, and considered the Council's stated justification for the executive meeting. By letter dated April 14, 2005 (the "April 14 opinion"), OIP found that a limited portion of the ES-177 meeting in fact consisted of protected attorney-client consultation under the standard for the open meeting exception at § 92-5(a)(4). (ES-177 Minutes filed under seal). However, OIP found that the remainder of the Council's discussion did not fall within the cited exceptions, and thus found that the remainder of the ES-177 Meeting should have been open to the public. Accordingly, O1P advised the Council to make the minutes of those portions of the ES-177 Meeting public (the "Public ES-177 Minutes").

OIP subsequently received UIPA appeals from Mr. Ching and another member of the public (the "Requesters"), who stated that they had made record requests to the Council in April 2005 for copies of the ES-177 Minutes, but had not received any response. Prior to and after those appeals, the Council asked for reconsideration of the underlying
Sunshine Law issue, and cited to three additional executive meeting purposes. OIP found no basis for reconsideration of the Sunshine Law question because the ES-177 Meeting discussions did not fall within any of the newly cited purposes. Accordingly, OIP determined that the UIPA required the Council to give the Requesters access to the Public ES-177 Minutes (the "May 20 determination").

Note here that the matter was no longer just whether or not there should have been an “open meeting” under the Sunshine Law (HRS- §92) but whether the minutes to the meeting were open records under the Uniform Information Practices Act (HRS- §92F).

The writ continues:

OIP agreed by letter dated June 9, 2005, to allow the Council a final opportunity to supplement its position. However, OIP could not agree to a "commitment of confidentiality" regarding that position, OIP only reviewed Council's subsequently offered general discussion of the attorney-client privilege and desire to discuss investigations in closed meetings, which OIP again determined insufficient to warrant reconsideration of its April 14 opinion and May 20 determination. On June 22, 2005, the Council again provided a generalized discussion of the attorney-client privilege and the Council's desire to discuss investigations in closed meetings, which OIP had previously determined was insufficient to warrant reconsideration of its April 14 opinion and May 20 determination. On July 14, 2005, the Council filed its action seeking declaratory and injunctive relief from OIP's determination that the Public ES-177 Minutes must be disclosed.

There are basically four arguments for why the ICA erred in upholding the 5th circuit court decision. We’ll list them with partial excerpts excluding much of the case law but including the pertinent statutory language and citations for those that want to understand the case the OIP is presenting and why it’s implications go far beyond ES-177, affecting the very future of the OIP itself.

I. The ICA gravely erred by affirming that Chapter 92 authorizes Council's action challenging an OIP decision to disclose a record, given chapter 92F's plain language, clear statutory scheme and legislative history that denies an agency the right to bring a court action for that purpose.

OIP believes that the ICA committed grave error in affirming circuit court jurisdiction to hear the Council's original action under chapter 92 without then limiting its review to determining applicability of that chapter. Rather, the court went further, applying its Sunshine Law interpretation to determine disclosure of a government record under both the Sunshine Law and the UIPA. Allowing an agency to bring a court action to challenge an OIP decision to disclose a government record in this matter conflicts with the plain language of § 92F-15.5, and circumvents the UIPA's underlying policy and remedial scheme and stated legislative intent clearly disallowing such agency action. In effect, the ICA decision now allows agencies to utilize the court system, delaying for years any resolution on disclosure and circumventing the legislative intent to provide the public with efficient resolution of records disputes. Given the Legislature's stated purpose of the UIPA and the policy of this state in § 92F-2, it is clear that in denying agencies the right to sue each other, the Legislature found the rights of the public to scrutinize and participate in government to outweigh an agency's ability to judicially contest disclosure of a government record.

Where a government agency denies a person access to any record, that person may appeal by judicial action under § 92F-15 or, alternatively, by administrative appeal to OIP under § 92F-15.5 (without prejudice to the right to seek judicial review). Where appeal to OIP is made, § 92F-15.5(b) directs in full as follows:

(b) If the decision is to disclose, the office of information practices shall notify the person and the agency, and the agency shall make the record available. If the denial of access is upheld, in whole or in part, the office of information practices shall, in writing, notify the person of the decision, the reasons for the decision, and the right to bring a judicial action under section 92F-15(a). (emphasis added).

OIP believes that this unambiguous language must mean that when a person appeals to OIP and OIP's decision is to disclose, an agency must generally be bound by that decision... Further, any possible ambiguity is extinguished by the Legislature's clear intent to bar agency suits against OIP over its record decision:

Your Committee wishes to emphasize that while a person has a right to bring a civil action in circuit court to appeal a denial of access to a government record, a government agency dissatisfied with an administrative ruling by the OIP does not have the right to bring an action in circuit court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government records would be frustrated by agencies suing each other. Conf Comm. Rep. No. 17, Haw. S. J. 763-64 (1989) (emphasis added).

Thus, the ICA's affirmation based upon a right of action arising outside of chapter 92F, despite the plain language of § 92F-15.5(b), appears to "completely ignore the obvious meaning and intent of the statute."

But the ICA did not recognize any of that and, as the OIP then says,

The Sunshine Law, in contrast to the UIPA, which provides for no agency actions (including by OIP), has a general "any person may commence an action" standard, for the purpose of requiring compliance, preventing violations, or determining applicability of part I of chapter 92. Compare HRS § 92-12(c) with § 92F-15 and -15.5(b). However, the Council here did not solely seek the court's application of a Sunshine Law provision. Its action went further, directly seeking to invalidate OIP's decision under the UIPA to disclose the ES-177 Minutes. Given the foregoing, OIP believes that finding the Sunshine Law to allow court adjudication of OIP's determination regarding the minutes cannot be reconciled with the language of § 92-15.5, its legislative history, or the UIPA's purpose and remedial scheme.

The second argument is one that shows how persistence pays off. A couple of years back, what has been called the “secret sunshine law” was “discovered”. Since then council watchdog Glenn Mickens has told the council of HRS 92-71 part of Section II of the part that contains the Sunshine Law. It states

"in the event that any political subdivision of the State shall provide by charter, ordinance or otherwise, more stringent requirements relating to mandating the openness of meetings, the more stringent provisions of said charter, ordinance, or otherwise, shall apply."

Well as fate would have it, the Kaua`i County charter has a provision 3.07(e) that says. according to the brief that “restricts the Council's use of closed meetings to (1) deliberations to confirm appointees or (2) ‘consultations with the county attorney on claims.’ (emphasis added)”

Though the charter was changed this past November by tricking people into voting to delete it under the guise of assuring that the charter “conform” with the Sunshine Law, it was in effect when ES-177 was held and a ruling releasing those minutes could also free up many of the minutes of ES meetings held before the provision took effect.

Mickens and later open government advocate Ken Taylor hounded the OIP with this matter, at first being rejected because OIP only administers Part 1 of the Sunshine Law (92-71 is in part two) but through his persistence the argument is included in the Supreme Court brief.

OIP asked

2. Assuming this action may properly be heard, the ICA gravely erred by not giving effect to the Kauai County Charter's more restrictive standard for closing a council meeting, given the plain language of § 92-71 that directs that a more stringent county standard "shall apply."

OIP did not have reason to address § 3.07E in its UIPA decision because OIP found that the Sunshine Law required the minutes to be public. OIP raised this provision to the circuit court and to the ICA to show that the Council's broadly applied attorney-client privilege to protect all its discussions with its counsel was not only contrary to the legislative intent underlying § 92- 5(a)(4) and other judicial opinions limiting to varying degrees the extent of the privilege for government attorneys, but also directly contradicted its own charter provision.

The third is really the meat of the appeal for those who object to the Kaua`i council’s penchant for going into executive session for public policy matters disguising them under a provision (HRS 92-5(a)4) that allows them to “consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities” and it’s relationship to the standard “attorney client privilege” which, the OIP says, is limited by overriding state law in the case of boards and commissions covered by the Sunshine Law.

The OIP says

3. The ICA gravely erred by failing to consider the legislative history indicating that he Legislature intentionally narrowed the attorney-client executive meeting purpose to cover only specified types of consultation between a board and its attorney.

As discussed in OIP's Opening Brief at 25-27, in 1985 the Legislature deliberately narrowed § 92-5(a)(4), the attorney-client executive meeting purpose, to apply to only limited types of consultation between a board and its attorney. As further discussed in OIP's Opening Brief at 23-30, this limitation of the attorney-client executive meeting purpose is consistent with the narrower scope of the attorney-client privilege generally when applied to government attorneys and clients in both this State and in other jurisdictions, as well as with the Sunshine Law's and the UIPA's general purpose and intent. See, e.g., HRS §§ 28-3, 92-1, and 92F-2. The ICA gravely erred by failing to consider the legislative history of § 92-5(a)(4) in deciding its scope. See Decision at 19-22. Instead, contrary to the legislative intent expressed in the 1985 amendment to § 92-5(a)(4) and the legislative mandate expressed in § 92-1 that exceptions to open meetings shall be strictly construed against closed meetings, the ICA interpreted the attorney-client executive meeting purpose broadly to encompass all discussion between the Council and its attorney in the meeting in question.

Lastly the OIP basically says "what are we here for if not this kind of determination since our oversight is plainly stated in the law and legislative intent". They say

4. The ICA gravely erred by failing to defer to OIP's interpretation of the breadth of the Sunshine Law's attorney-client executive meeting purpose under the "palpably erroneous" standard and to OIP's UIPA determination under the "abuse of discretion" standard.

One other thing of note is contained in a separate brief – the one filed by the county and upheld by the ICA. It contains a brief description of what went on in ES-177.

OIP's review of the ES[-]177 Minutes indicate[s] that the ongoing investigations discussed were limited to (1) an investigation being conducted by the County of Kauai, Board of Ethics, (2) a police investigation which had been turned over to the County of Kauai Prosecutor and (3) a proposed investigation into the termination of a KPD recruit. It is the opinion of OIP that the matters considered by the Council in ES[-]177 do not constitute "sensitive matters related to public safety or security."

Many believe that what went on was that Rapozo “went off” on Lum, Ching and/or Furtado and aired long held gripes against the department. Some of that was intimated in some of the correspondence between OIP and the county following the OIP’s review of the minutes and determination that they were public records.

It was thought by many political observers that Chair Kaipo Asing then “protected” Rapozo by fighting the release of the minutes, giving him a political Sword of Damocles to hang over Rapozo’s head should Rapozo try to maintain his rebel and maverick image, cultivated during the previous campaign

We’ll try to keep up with the case when and if it is granted review by the Supreme Court of Hawai`i. If anyone wants a copy of both documents- the OIP’s appeal and the ICA ruling- let us know at gotwindmills(at)gmail.com and we’ll get them to you.

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The powers that be will be happy to know that we’ll be taking the occasional day off during the next two months while entertaining ka mo`opuna, who’s here for the summer. We’ll try to make up for it by being twice as caustic when we do post.

KPD Blue- Chapter 13 : Kaipo Asing

KPD Blue

By Anthony Sommer

Chapter 13 : Kaipo Asing

For a decade and a half, Kauai County Council member Bill “Kaipo” Asing was the hero of the small band of “good government” activists on Kauai: A reformer and a smiter of mayors.

Asing cast a bright light into the dark corners of Kauai County government.

The old Asing was the picture of a passionate minority leader, of the loyal opposition, of the independent politician with no ties to special interests (he never spent more than $100 on any campaign).

Asing’s own probing of county government’s shortcomings was the equal of any investigative journalist.

In one instance, his digging—literally—discovered a pipe serving a fire hydrant at a county dump was not the standard high-capacity, high-volume hardware usually associated with fire fighting. Instead, it was the diameter of the water pipes in a residential home.

Someone in county government had installed a cheap substitute and probably pocketed the difference. The loser was the Kauai Fire Department when the dump caught fire. Typically, though, there was no investigation by the county to follow up on Asing’s allegations. There never is. The fingers might all point to the top.

One of the real failings of Kauai County government is its inability to understand the checks and balances built into American democracy.

There is supposed to be friction between the mayor and the council and the courts and the press.

On Kauai there are no checks or balances. Everyone— including the lapdog press—signs on before any votes are taken. The Council passes a bill, the mayor signs it, the reporters sing its praises.

If it is challenged in court (highly unlikely), the judge blesses it.

In his days as the “Conscience of the County Council,” Kaipo Asing was the only one willing to say the emperor was naked.

When Maryanne Kusaka was mayor, she was Asing’s favorite target during his televised long-winded “chalk talks” on government ineptitude and corruption at the blackboard during Council meetings.

In turn, Kusaka and her department heads did not conceal the special loathing they reserved only for Asing. But a funny thing happened when the County Council handed Asing the gavel in 2002. The position was vacated when Ron Kouchi left the Council to run for mayor.

In the blink of an eye, Chairman Asing transformed into a petty tyrant, a champion of closed-door deal-making, and a close ally of newly-elected Mayor Bryan Baptiste in Baptiste’s campaign to purge the Kauai Police Department of haole influence.

The activists who show up at every Council meetings to rail against county government all, without exception, adored Kaipo Asing.

For many years, Asing had been saying the things they would say if they could get a seat on the Council. The instant Asing became Council chairman, everything changed.

The rants Asing formerly aimed at mayors and department heads suddenly were pointed at activists and journalists.

The mere holding of power rather than actually using it for anything constructive appeared to be sufficient reward for Asing. Perhaps he felt he earned it for his many years of being the outsider. He guarded it jealously.

In his first year as chairman, the Council did little at its meetings except approve the minutes of the prior meeting.

When asked about the inaction of the Council, Asing pointed at the mayor and said (correctly) that Baptiste hadn’t asked for a single bill during that year. In 2006, Asing was elected to his 12th term on the Council and his third term as Council chairman.

Between January 2003 and July 2005, the first two and a half years of Asing’s chairmanship, the Kauai Council conducted more than 140 executive sessions, according to activist Ray Chuan, who keeps score.

That’s an average of 58 executive sessions per year. In the last two years of Ron Kouchi’s chairmanship, the Council averaged 20 executive sessions a year. sing had almost tripled the number of executive sessions.

The result was a war between Kauai County and the state Office of Information Practices (OIP), the agency charged with interpreting Hawaii’s open meetings and public records laws.

Sadly (although it is clear the politicians want it this way), the OIP has no enforcement powers. If it orders a government agency to open a meeting or its file cabinets, there is nothing the OIP can do if the agency refuses. It is often said that Hawaii has the best open government laws and the worst enforcement of those laws in the United States.

Under state law, the state Attorney General’s Office is supposed to file lawsuits when the OIP is ignored. In practice, Republican Gov. Linda Lingle’s appointed Attorney General Mark Bennett refused to do anything to enforce the open meetings and public records laws unless a private citizen has first taken the agency to court and won.

In keeping the Council chamber door and the file cabinets locked, Asing was ably abetted by County Clerk Peter Nakamura, a career bureaucrat whose main tactic is to ignore legitimate requests for county records as if they never had been made.

Alternatively, Nakamura charges huge sums for “staff” time to retrieve public records.

When the OIP ordered Nakamura to turn over the 140-plus executive session minutes to two private citizens, Nakamura finally did so and billed them $2,886.75 for “staff time” to look up public records.

In most jurisdictions, a reporter or private citizen wanting to look through government files is pointed to the file cabinets and turned loose, often with a sarcastic “Knock yourself out.” comment from the chief bureaucrat in charge.

Not on Kauai.

On Jan. 11, 2005, an OIP attorney told the Kauai County Council staff that the Council would be violating the law if it went ahead with closed-door confirmation hearings for a roster of Baptiste appointee to boards and commissions. An hour later, Asing thumbed his nose at the OIP and went ahead with the secret sessions.

The previous month, Councilwoman (and former Mayor) JoAnn Yukimura asked OIP for an opinion as to whether closed-door confirmation hearings were legal.

In early January, OIP Director Les Kondo said he was informing Yukimura that the hearings had to be public.

On the morning of January 11, OIP attorney Lorna Aratani told Council staff the planned hearings later that day would violate the law.

“I told them the hearings should not be done in executive session,” she said in an interview that day. “I told them a written opinion was being drafted and the OIP’s conclusion would be the same as the verbal opinion I was giving them. “If they insisted on something in writing, I could have written ‘No Executive Session’ on a piece of paper and faxed it to them,” she said.

The Council ran 18 Baptiste appointees through the closed confirmation hearings that day.

Nine days later, on Jan. 20, 2005, the County Council met in what became the highly controversial Executive Session 177. (As a means of identifying them, executive sessions were numbered).

ES 177 was all about the Council investigating the KPD. The OIP later ruled ES 177 was illegal and ordered the county to make the minutes public.

On April 14, 2005, the OIP answered a request for an opinion from Police Commission Chairman Mike Ching, who was one of the subjects of the ES177 meeting. After reviewing the secret transcript, the OIP noted: “It appears a significant portion of that meeting involved discussion of whether the Council should in fact be considering ES 177 in an executive meeting and what specific matter the Council was considering in ES 177.”

The OIP ruled that debate should have taken place in public before the Council voted on going into ES 177. “The situation raises the question of how the council can vote to discuss a particular issue in executive session when the particular issue has not been identified,” the OIP opinion said.

The second question was whether the matters addressed in ES 177 fit into one or more of the eight specific reasons in state law that allow executive sessions.

The OIP opinion states:

“Prior to convening ES 177, the county attorney represented to OIP that the executive session would include discussions related to sensitive ongoing investigations involving the Federal Bureau of Investigation and the State Attorney General.

“It was further represented that these ongoing investigations involved confidential informants and undercover officers.

“It was asserted that discussions regarding these investigations in a public forum would jeopardize the investigations.

“Based upon the representations made by the county attorney, OIP indicated that it did not appear to be inappropriate for the Council to convene an executive meeting.”

Well, guess what? The county attorney lied. There were no “ongoing investigations” discussed.

The OIP opinion goes on to say:

“Upon reviewing the ES 177 minutes there is no indication that the Council considered or discussed any such investigations described by the county attorney.”

The OIP said the minutes show the Council discussed three investigations:

• An investigation being conducted by the County of Kauai Ethics Board.

• A KPD investigation that had been turned over to the Kauai county prosecutor.

• A proposed investigation into the termination of a KPD recruit.

The exception to the public meeting law that the county attorney claimed allowed the Council to go into executive session involves “sensitive matters related to public safety or security.”

The OIP concluded:

“It is OIP’s opinion that the actual matters discussed by the Council in ES 177 fall short of constituting ‘related to public safety and security.’ Therefore, it is OIP’s opinion that the matters discussed and decided on therein should have been done so in a public meeting.”

The Kauai County attorney claimed the executive session also was legal under a provision in the law that allows a board to go into closed-door meetings “to consult with its attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities and liabilities.” The Kauai County attorney uses this boilerplate for every executive session conducted by every Kauai county board or commission.

In the sole instance where executive session minutes for a closed County Council meeting “to consult with the board’s attorney” were obtained (through the lawsuit filed by the author of this book), the vast majority of the discussion had nothing to do with consulting with the board’s attorney.

It’s very likely (there’s no way to know for sure with minutes that remain eternally sealed) that “consulting with the board’s attorney” is simply a Kauai County attorney smokescreen to hide many, many illegally closed meetings on Kauai.

From the OIP opinion on ES 177, that certainly was true in this closed meeting:

“In reviewing the ES 177 minutes, it is OIP’s opinion that only an extremely limited portion of the discussion that occurred during ES 177 can reasonably fall within the attorney-client privilege.

“It is our strong recommendation that the Council act to immediately remedy its violation of the Sunshine Law (the public meetings statute) by making public the ES 177 minutes, subject only to the redaction of those limited portions which constitute attorney-client privilege communications.”

At Asing’s (and County Attorney Lani Nakazawa’s) urging, the Kauai County then sued the OIP in an effort to keep the transcript sealed.

Here was an amazing (everywhere except on Kauai) situation: A county government was suing the state to keep public documents from the public.

Even more amazing (but not surprising), the court on Kauai sided with the County. It ruled that items involving attorney-client privilege between the Council and the county attorney were so intermingled with the non-privileged parts of the transcript that it was impossible to determine what was public and what wasn’t.

The OIP appealed to the State Intermediate Court of Appeals where a decision still is pending. Even if the OIP eventually wins, the transcripts will be several years old and of little news value. But that’s what the Kauai County attorney was hoping for when she sued the OIP.

There are many, many government attorneys outside of Kauai County who would stand up in those instances and say to their client: “No! You can’t do that! It’s wrong!”

Neither Kauai County Attorney Lani Nakazawa nor any of her staff attorneys appeared to have had that brand of moral fiber. They believed it was their jobs to make the county’s illegal acts look legal, even if they knew the law had been violated.

BEST PAW FORWARD

BEST PAW FORWARD: Well, one council meeting down and if last Wednesday’s is any indication the next 101 for this council will provide plenty of nap time.

Because for all the talk of change there wasn’t a peep of challenge of anything by anyone.

The biggest controversy was who gushed the most in lavishing undeserved praise of another one of those vapid content-free PowerPoint presentations, this time from new Director of Parks and Recreation Leonard “Lenny” Rapozo,

Rapozo was rewarded with the job despite no expertise or experience in the area, taking over for now-Mayor Bernard Carvalho after qualifying by running Carvalho’s campaign.

The meeting started out with promise when the monthly-minister- whose name we didn’t catch- slyly told a story about the time he ran a red light.

When confronted by his son in his lawlessness, instead of stressing how important a person he was and making excuses like “I had to get to church to deliver my sermon”, he told the boy he’d (pardon the interruption) “try to do better next time”.

If any of the re-elected councilmembers caught the significance or applicability of his parable they didn’t let on.

That was followed by the first indication that this is going to be yet another “go along to get along council” when an executive session was yanked from the end of the agenda and inserted into a mid-morning slot, leaving those who came to speak on other items out in the hall waiting.

Despite pleas from the nitpickers to explain 1) why the council allowed a trick question on the ballot to remove our own Kaua`i Sunshine Law from the county charter, 2) why, if it was removed from the charter, it was still on the agenda and 3) when they could see the now-moot county attorney’s opinion on the matter as proscribed by the state sunshine law- they were, as usual dismissed summarily by Chair Kaipo Asing.

But surprisingly enough the county’s “outside” attorney- only identified as “David” despite the fact he is working for the council, got up and actually lied in trying to “explain to the new council members” how the infamous 3.07(e) provision was rejected by a judge.

The fact is that the charter provision had nothing to do with the infamous ES-177 case.

David- Minkins, we believe his last name is- tried to use a judges ruling specific to ES-177 to give the impression that the judge ruled that the council could do anything they damn well please in secret meetings as long as they cloak it in “attorney client privilege”.

First he attempted to try to mash-up and mix-up the case with a request by Walter Lewis and Ray Chuan to see a slew of past executive sessions minutes after the need for secrecy was no longer valid- something provided for in the Sunshine Law.- a case that had nothing to do with ES-177 in which the county sued the Office of Information Practices (OIP) which oversees the Sunshine Law.

The case of ES-177 involved newly elected at the time Councilmember Mel Rapozo when, acceding to OIP, he apparently ranted and raged over a bunch of police department matters that had nothing to do with the agendaed subject matter.

Judge Kathleen Wantanabe’s ruling however was actually very specific to that particular ES transcript saying that any “attorney-client privilege” at the meeting was “inexorably intertwined” with the portions that normally would not be covered- something that Minkins of course did not mention at all.

And the councilmembers- all seven – sat there like bumps on a log and okayed the current request for an ES on a current unrelated lawsuit against the county.

Later the questionable use of asset forfeiture funds we discussed last week- and specifically sent to the council as testimony- wasn’t even mentioned by any of the seven

The uses of the fund for a boat, new badges and a fax machine was approved unanimously without discussion of whether they were “supplemental” in nature as the law for the funds’ use requires.

But this was all a prelude for “the show” when Rapozo, with his deputy Kylan Dela Cruz by his side, whipped out a stack of apparently expensive, spiral-bound booklets, with plastic covers, printed on high quality, almost poster-board like, paper and distributed them to councilmembers before proceeding with their “presentation”.

“Lenny” was introduced with no last name and when Councilmember Tim Bynum asked him to identify himself Rapozo claimed he already had.

Rapozo actually started off trying to get away without doing his PowerPoint presentation and had to be forced to use the glorified overhead projector..

Then believe it or not he started off by saying “On the first page we identified the dog path task force members”.

But this was no mere slip of the tongue like the one that an embarrassed Kaipo Asing used a few months ago to be met with derisive laughter.

He followed it up by describing the next item- “meeting dates... to help us with the enforcement part of the dog path”.

“PowerPoint” presentations for the council have been the coin of the realm for department heads in recent times under the late Mayor Bryan Baptiste, especially Carvalho who used them in order to feign competence, as we discussed a while back.

They obviously figure that the councilmembers are too dumb- or too incompetent themselves- to notice that the content is usually just a bare-bones outline of stuff that would fit on one sheet of paper with no exposition of the specifics of each “point”,

This one though went further, presenting pages of two-per sheet giant color photos of the various signs and other “features” that anyone could see if they visited the path.... none of which explained any specifics.

The first page appeared to have maybe 25 word tops with such outline subjects as “Maintenance” and lines under it saying “trash cans”, “landscape”, “informational signs”, and “dispensers and refills”

That was followed by the only other thing on the page the heading “Enforcement” which was followed by “2 bicycles (stored at Kapa`a Neighborhood center), “3 vehicles” and “hand held radios.”

Actually this brought the only questioning because apparently they took three old police vehicles to use on the non-motorized traffic bike path.

Asing was incredulous because, as anyone in county government knows and he explained, there is a strict policy against using old “retired” police vehicles because they are “high powered” and notorious gas-hogs.

After some other superfluous info with a distinct lack of detail and the “how I spent my summer vacation” picture-show came the most important thing the council had demanded they come up with more than a month ago but never got because Carvalho was too busy running for Mayor- the actual forms for the bureaucratic functioning of the experimental “dog path”- those for writing tickets, signing up volunteers etc.

Problem was that, although they were in that Cadillac of Booklets they weren’t on the actual slide show- er, PowerPoint..

Well with all the gushing from all- and we mean all- the councilmembers you would have thought these geniuses had expanded string theory what with all the oooo’s and ahhhh’s over the presentation.

We’re distinctly disappointed in the new council for starting off on the wrong foot.

The fact is that it becomes increasingly more difficult to stop unethical, even illegal practices once you allow them to happen by not raising your hand to question them.

No one’s asking the newbies to be confrontational but at least ask the questions required of an oversight body when you’re made aware of them.

That’s been the major complaint about the council- even when members of the public legitimately question practices, do research to back it up and testify or submit it to them they’re greeted with “thanks for sharing- all in favor?- next item please”.

In the case of the police requests, the chief was even in the room. And in the case of the prosecutor’s fax machine if she wasn’t there, why not? Certainly when she was a councilperson the new prosecutor, Shaylene Iseri Carvalho would have demanded someone requesting money from the council be there to answer questions.

And accepting shoddy work without asking pertinent - not impertinent- questions is bad enough. But heaping praise instead of deserved criticism can only be seen as a political ploy possibly to secure a place at the corruption table.

Worse is actually voting for the measure that should have gotten more scrutiny without asking the questions the voters expect will be asked.

Once you have complemented people who are doing shoddy work on one matter how do you confront them later?

Some may say “hey- give them a chance- that was just their first meeting”. But that misses the point- that first meeting will set the tone for other 101 over the next two years.

If past is prologue it could be “same old, same old” as the new members especially if instead of sharpening elbows they just use them to make room for themselves in the “look the other way” old boys and girls club.

We’ll see how it goes in January but if last Wednesday was any indication we’re not too hopeful for any change.

(PNN) HIGH COURT DENIES OIP APPEAL OF “ES-177” CASE

HIGH COURT DENIES OIP APPEAL OF “ES-177” CASE:

(PNN) -- In a stunning rebuke to the authority and power of the Office Of Information Practices (OIP) the Hawai`i State Supreme Court, without comment, upheld the intermediate court of appeals denial of OIP’s ordered release of the infamous minutes of the “ES-177” Kauai County Council meeting held in January of 2006.

The Monday decision upholds the original ruling of fifth circuit court Judge Kathleen Watanabe that the attorney-client protected material in the minutes is “irretrievably intertwined” with the material that the OIP ordered released to the public.

More importantly it also sets a precedent upholding the notion that individual agencies may now sue in circuit court to overturn OIP rulings despite apparent legislative intent and construction that allowed OIP to have “final say” on matters involving the state sunshine (open meetings- HRS 92-section 1) and Uniform Information Practices Act or UIPA (open records- HRS 92F) laws

The executive session was called to purportedly allow the council to discuss a council investigation of the Kaua`i Police Department (KPD) but the minutes were believed to contain a wide ranging discussion of specific charges against KPD personnel by former police officer and then council member Mel Rapozo according to OIP letters to the county attorney that were released to the public at the time.

For a detailed analysis of and links to the OIP brief see our July 1 post or click here to listen to the entire audio recording of the audio arguments or here to read the background at the state judiciary web site.

The following is the full text of Monday’s ruling:

ORDER AFFIRMING JUDGMENT ON APPEAL

(By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Circuit Judge Hare, in place of Recktenwald, J., recused)

Petitioners/Defendants-Appellants Office of Information Practices filed a timely application for a writ of certiorari from the judgment of the Intermediate Court of Appeals (ICA) dated February 19, 2009, entered pursuant to the publishedopinion dated January 30, 2009 in County of Kauai v. Office of Information Practices, 120 Hawaii 34, 200 P.3d 403 (App. 2009) which affirmed the February 11, 2008 judgment of the circuit court of the fifth Circuit. This court accepted certiorari on June 23, 2009, and subsequently ordered oral argument.

Upon careful review of the record and the briefs submitted by the parties, having given due consideration to the arguments advanced and the issues raised, and also having heard and carefully considered the parties' respective arguments at oral argument held on August 10, 2009,

IT IS HEREBY ORDERED that the ICA's February 19, 2009 judgment on appeal is affirmed.

DATED: Honolulu, Hawai`i, October 26, 2009.

(Sent to attorneys) Paul T. Tsukiyama, Cathy L. Takase, and Jennifer Z. Brooks, (of Office of Information Practices) , and Gail Y. Cosgrove and Kunio Kuwabe (of Hisaka Yoshida & Cosgrove) for petitioners/defendants/­appellants

Alfred B. Castillo (of Office of the County Attorney, County of Kauai) David J. Minkin and Becky T. Chestnut (of McCorriston Miller Mukai MacKinnon LLP) for respondents/plaintiffs ­appellees.

INFORMATION TAR-TAR

INFORMATION TAR-TAR: Ever since the Office of Information Practices (OIP) lost the infamous ES-177 case- wherein the County of Kaua`i went to court to avoid releasing the minutes of an executive session despite apparent legislative intent to give OIP ultimate authority and ban such court action- we've kind of felt like the guy in the movies screaming in futility while spinning through the vacuum of space.

But recent attention has been paid by Civil Beat Editor John Temple prompting the OIP to defend itself- in a letter from the current director entitled "The Raw Truth"- for refusing to, as they see it, waste their time trying to claim their "teeth" that the court took away.

We're not going to try to rehash the long and winding road of ES-177 and CofK vs OIP again here but today Temple does point out a new wrinkle that puts OIP's finger-pointing at the legislature in a new light saying that under:

sections 92F-15.5 and 92F-28 of Hawaii Revised Statutes that the OIP has authority to hear and make binding decisions in appeals if it exercises its rule-making authority.

Apparently OIP has never bothered to promulgate Chapter 91 Administrative Rules to set up an appeals process for agencies who disagree with their Uniform Information Practices Act (UIPA) rulings to follow- one of Kaua`i County's major gripes in their suit having been the denial of "due process."

In addition today, another open records and meetings junkie, blogger/journalist Ian Lind takes a shot at OIP's defense by noting that in CofK vs OIP the court actually distinguished it from another case where OIP's authority was upheld, noting that "board meeting minutes are specifically covered by HRS Chapter 92, whereas development proposals, such as the ones at issue" in the other case, are not.

Of course the only reason the ES-177 case is finally getting statewide attention is that Governor Neil Abercrombie refused to adhere to an OIP decision on releasing the names of candidates for the Hawaii Supreme Court and then refused to reappoint the OIP director who made the decision.

But one thing that again occurs to us today, has bothered us since the first day the CofK decided to file suit.

Why exactly did the county bother to sue and not just ignore the OIP?

By filing suit they risked losing but by ignoring the OIP- as many are doing today, they apparently would have risked nothing. That's because of something that neither Temple nor Lind nor OIP itself has mentioned- something that really exposed the weak link in all of this.

According to the Sunshine Law under §92-12 Enforcement,

(a) The attorney general and the prosecuting attorney shall enforce this part.

The fact is that, because the law also says that anyone who doesn't agree with an OIP directive can sue in circuit court, attorneys general have consistently said that one must go to court first and so, they have refused to enforce OIP's opinions.

Thus the root of the claim that OIP is a "toothless tiger" is that the AG refuses to enforce its decisions.

That is why Abercrombie can get away with thumbing his nose at the OIP- not because the legislature hasn't been clear enough, as Temple points out today in citing the 1989 conference committee report for the sunshine law, as the OIP did in it's arguments in CofK vs. OIP.

Seems that "The Raw Truth" is that OIP does have options- options that you can bet the always-reticent-to-act legislature will be sure to iterate next year when they consider the OIP's request for tooth sharpening.

(PNN) COUNCIL IGNORES, FLOUTS OIP IN CONFIRMING BOARD, COMMISSION MEMBERS

COUNCIL IGNORES, FLOUTS OIP IN CONFIRMING BOARD, COMMISSION MEMBERS

(PNN) -- To the surprise of few if any, the Kaua`i County Council ignored state law and two Office of Information Practices (OIP) directives in refusing to provide the public with certain information contained in the applications of some 21 nominees for positions on Board and Commissions (B&C) before confirming most of them at Wednesday’s council meeting.

The confirmations came despite the detailed testimony from good governance activist Rob Abrew- posted Wednesday in this space- documenting how OIP had twice explained the importance of the public interest (over privacy concerns) in receiving the information contained in the applications of prospective B&C members before they are confirmed.

After consulting with the county attorney during a recess, Councilperson Lani Kawahara promised to send a communication to the Office of B&C (OBC) asking them to look into the matter, But according to Abrew if and when the information is made available it will be “too late” to be useful in testifying about specific applicants.

Abrew and council watcher Glenn Mickens both told PNN that during a recess in the meeting Councilperson Jay Furfaro told them that the council need not follow OIP directions because “the OIP can be wrong” as evidenced by the council winning their lawsuit against the county over the ES (executive session) 177 case.

The county’s recent victory in the “ES-177” lawsuit was related to OIP’s authority over open meetings or “sunshine law" (HRS 92 section I) matters, not the open records or the Uniform Information Practices Act (UIPA HRS 92F) matters where the law is specific in granting the OIP the authority to decide which should prevail privacy vs. pubic interest matters.

The OIP sought to define the ES-177 dispute as a matter of UIPA law because it involved the release of executive session minutes, a “record”. But the Hawai`i Supreme Count ruled that it was an open meetings matter, because it was related to an open meeting issue.

The OIP has said that because of the ruling it will no longer release “formal opinions” on sunshine issues but will continue in it’s role in determining UIPA matters

The applications were made available to the council but were not released to the public with councilmembers contending that it was a matter for the OBC to decide even though the OIP specifically instructed the council itself to release the material.

According to Abrew’s testimony:

In an Letter dated January 1, 2005 addressed to Former Council Member JoAnn Yukimura concerning Executive Session Interviews, the issue of public disclosure of a successful applicant's information was discussed at great length. This letter was responsible for the interviews of the successful applicant's moving from Executive Session to a Public Meeting.

This Letter was also copied and sent to Chair Asing, Former County Attorney Nakazawa and County Clerk Peter Nakamura

It stated:

The Charter provides that all members of boards and commissions shall be appointed and may be removed by the mayor, with the approval of the council.” Charter, Art. XXIII, § 23.02. It is our understanding that, in accordance with the Charter, the Mayor transmits to the Council the names of the appointees for the Council’s approval. A copy of each appointee’s application for appointment to the board or commission is also transmitted to the Council. The application includes, among other things, the appointee’s name and employer, a summary of the appointee’s major work experience, and a statement of the applicant’s understanding of the primary duties of the appointment.

Although the UIPA recognizes that individuals have a significant privacy interest in “applications” and “nominations” for “appointment to a governmental position,” the OIP has previously opined that this significant privacy interest is outweighed by the public interest in the application information concerning successful applicants, or nominees, because it “sheds light upon the composition, conduct, and potential conflicts of interest of government board and commission members.” OIP Op. Ltr. No. 91-8 (June 24, 1991). Therefore, the UIPA would require the disclosure of the appointees’ application information.

The resolutions to confirm a handful of the applicants was deferred pending a rescheduling of their missed interviews but there is no indication whether the information in their applications would be forthcoming.

FOURTH AND FORTY

FOURTH AND FORTY: The Office of Information Practices (OIP) has been taking it on the chin lately over what has been described ad nausium as their decision to "punt" to the courts on this issue of whether Governor Neil Abercrombie had to reveal the full list of his judicial nominees after he made the appointment.

For those who haven't been following the story Abercrombie's predecessors routinely released the list but he claims that doing so would result in attorneys' reluctance to apply, should their law firms or clients find out.

The story has been reported and analyzed in the mainstream and alternative press as well as blogs- both mainstream and alternative- culminating with a Honolulu Star Advertiser editorial today and all have one thing in common- they routinely miss the point in criticizing the OIP for not opining on the matter since, they say, the law appears to require them to do so.

Typical of the criticisms is today's post by S-A columnist/blogger Dave Shapiro who, in telling the saga thus far, writes:

The saga of Gov. Neil Abercrombie’s secrecy on the names of judicial candidates has taken a troubling new turn with his hand-picked director of the Office of Information Practices, Cheryl Kakazu Park, refusing to issue an opinion on whether state law allows the governor to keep secret the nominees given him by the Judicial Selection Commission.

Park said it’s a waste of time for OIP to become further involved because Abercrombie has said he’ll ignore any OIP opinion against him unless a court tells him he must abide.

Park’s “punt,” as one news story described it, isn’t surprising; her predecessor, Cathy Takase, was fired after ruling against Abercrombie with a letter reiterating a 2003 OIP ruling that the names must be released.

The troubling part is that the governor now has not only shut the public out of the process of selecting judges who wield great power over our lives, but has politicized the OIP in an unprecedented way that diminishes its credibility and relevance.

And the law seems to be clear as is set out in this passage from blogger Ian Lind's post on the subject:

In Section 92F-42, which sets out the powers and responsibilities of OIP, this is right there at the top of the list. Responsibility #1.

The director of the office of information practices: (1) Shall, upon request, review and rule on an agency denial of access to information or records, or an agency’s granting of access;

I added the bold type on the word “shall.” OIP shall rule on an agency’s denial of access. It doesn’t use the word “may,” which would have given OIP discretion on whether to issue a ruling. It doesn’t say that OIP shall rule except when it looks futile because an agency stubbornly insists that it has the right to do whatever it wants. It says, simply, OIP shall do this job. It’s #1 responsibility. Top of the list, top line priority.

Someone needs to go back to OIP and ask what legal authority they have to “punt” in this case, given what appears to be clear statutory language (emphasis Ian's).


The problem is that each and every one who has written on the subject has either failed to read or comprehend the operative sentence in the letter from Park:

Toward the end of her memo she simply writes that:

since the Hawaii Supreme Court's (ruling) in County of Kaua`i vs Office of Information Practices OIP has been issuing advisory opinions rather than determinations.

For those for whom the case doesn't ring a bell it revolves around the infamous Kaua`i County

Council executive session- ES 177- the tentacles of which not only chimed over and over in Kaua`i Police Deportment politics for years but was one of the major highlights of the tale told in the book KPD Blue (see right rail).

At the secret conclave, then and now-again Councilmember Mel Rapozo, who was present at the infamous lap dance party at KPD headquarters and lost his cop job because of it- went off on KPD personnel blasting Chief KC Lum and others in the department according to an OIP memo observed but not copied by PNN at the time.

After an "on camera" examination the OIP ordered the minutes of the meeting to be released but the county, in the person of County Clerk Peter Nakamura, acting on the orders of then Council Chair Kaipo Asing, refused and decided to sue in circuit court.

The problem, as far as the OIP was concerned, was that the OIP was set up, in part, just to avoid these kinds of inter-agency lawsuits and then Director Les Kondo fought the case tooth and nail to avoid having the OIP become a "toothless tiger".

He argued that the provision allowing parties aggrieved by the OIP to sue in circuit court was to provide due process to individuals who were denied access to records, not for agencies told to "give 'em up" to sue the OIP. And he presented not just the specific wording of the law but the legislative committee reports- which clearly stated stated as much- as evidence.

But, to perhaps over simplify, the Supreme Court (SC) didn't listen or didn't care what Kondo foresaw happening to the OIP.

They essentially ruled that the county was entitled to access to the courts if due process was to be served. They also ruled, somewhat bizarrely, that although the request was for the minutes of ES-177- a "record request" over which the law clearly gave OIP authority in HRS 92F- it was actually a suit regarding a meeting, which falls the Sunshine Law (HRS 92) where the OIP did not have the "final bite of the apple" authority.

That essentially meant ithat Kondo's argument was deemed irrelevant.

And now the chickens have come home to roost.

In dealing with the ruling the OIP has simply stopped handing down binding opinions as the law calls for and now simply issues "advisory opinions", all of which can be appealed to the circuit court by anyone, as the SC precedent said.

Kondo was almost apoplectic over what he saw as the end of the OIP and of course he was right. But the Hawai`i press still doesn’t get it.

The SC opinion is not entirely clear as to whether the case was decided on the minutes vs open meeting matter or the lack of due process, the latter seeming to be just to get around Kondo's argument and get to what they- and the C of K- saw as the meat of the issue at hand... the release of the ES-177 minutes.

The County may have won the case but people who value open government and records rue the day that the decision came down. And until our punditry class cuts through the clutter of the politics of the judicial appointment list case and recognize the roots of the OIP's action, we'll continue to be kept in the dark about the state of affairs in the OIP.

ALL EARS

ALL EARS: The case of the release of the minutes of the infamous ES 177 Kauai County Council meeting was heard by the Supreme Court of Hawai`i on August 10. We’re still looking for the transcript but for your weekend listening pleasure you may now listen to the entire audio recording in mp3 format.

The ruling is apparently still pending.

For a detailed analysis of and links to the OIP brief see our July 1 post.

Here’s some background from the state judicary web site.

ORAL ARGUMENTS BEFORE THE SUPREME COURT
NO. 29059 - Monday, August 10, 2009 - 11 a.m.

COUNTY OF KAUAI, KAUAI COUNTY COUNCIL; BILL "KAIPO" ASING, JAMES KUNANE TOKIOKA, JAY FURFARO, SHAYLENE ISERI-CARVALHO, DARYL W. KANESHIRO, MEL RAPOZO, JOANN A. YUKIMURA, and PETER A. NAKAMURA, in their official capacities, Plaintiffs-Appellees,

vs.

OFFICE OF INFORMATION PRACTICES, STATE OF HAWAII; and the Director of the Office of Information Practices, in his official capacity, Defendants-Appellants.(Declaratory Judgment)

Attorney(s) for Petitioners-Defendants-Appellant(s)Paul T. Tsukiyama, Cathy L. Takase and Jennifer Z. Brooks, Office of Information Practices, and Gail Y. Cosgrove and Kunio Kuwabe (Hisaka Yoshida & Cosgrove)

Attorney(s) for Respondents-Plaintiffs-Appellee(s)Honorable Matthew S. K. Pyun, Jr., County Attorney, County of Kauai, and David J. Minkin and Becky T. Chestnut (McCorristion Miller Mukai MacKinnon)

NOTE: Certificate of Recusal by Justice Mark E. Recktenwald, filed 5/15/09.

NOTE: Order assigning Judge Glenn Hara in place of Recktenwald, recused, filed 5/18/09.

NOTE: Oral argument rescheduled from 10:00 a.m. to 11:00 a.m.

COURT: RTYM, CJ; PAN, SRA & JED, JJ, and Circuit Judge Glenn Hara in place of Recktenwald, recused.

Brief description:
Petitioners/Defendants-Appellants Office of Information Practices, State of Hawai`i (OIP) and the Director of OIP, in his official capacity (collectively “OIP”) filed an application for writ of certiorari seeking review of the Intermediate Court of Appeals’ (ICA’s) February 19, 2009 judgment on appeal in support of its January 30, 2009 opinion. The ICA’s opinion affirmed the Circuit Court of the Fifth Circuit’s grant of summary judgment in favor of Respondents-Plaintiffs-Appellees County of Kaua`i, Kaua`i County Council, and Bill “Kaipo” Asing, James Kunane Tokioka, Jay Furfaro, Shaylene Iseri-Carvalho, Daryl W. Kaneshiro, Mel Rapozo, Joann A. Yukimura, and Peter A. Nakamura in their official capacities (collectively “the County”) and ordered that the minutes from a meeting conducted by the Kaua`i County Council on January 20, 2005, identified as Executive Session 177 (ES-177), shall not be disclosed. In its application for writ of certiorari before this court, OIP asserts that the ICA gravely erred in (1) affirming the circuit court’s jurisdiction to hear the Council’s original action under the Sunshine Law, Hawai`i Revised Statutes (HRS) chapter 92, without then limiting its review to determining the applicability of that chapter; (2) not giving effect to the Kauai County Charter’s more restrictive standard for closing a counsel meeting; (3) failing to consider the legislative history indicating that the Legislature intentionally narrowed the attorney-client executive meeting purpose provided by HRS § 92-5(a)(4); and (4) failing to defer to OIP’s interpretation of Sunshine Law provisions under the palpably erroneous standard.

LOOKIN' LIKE A FOOL WITH YOUR BRAINS ON THE GROUND

LOOKIN' LIKE A FOOL WITH YOUR BRAINS ON THE GROUND: Mom always said that the only reason to keep banging your head against the wall is that it feels so good when you stop.

But sometimes it feels a little better when someone comes along and and joins in by banging theirs.

We've concussed more times than we care to remember over the "paper tiger" status of the state's Office of Information Practices (OIP) that resulted from the infamous "ES-177" case in which the County of Kaua`i sued the OIP rather than give up the minutes to an "executive session (ES)" in 2005.

But today we gained a banging-mate in the person of John Temple of the on-line news source Civil Beat who, in bemoaning the fact that new OIP chief Cheryl Kakazu Park called "futile," any effort to force either Governor Neil Abercrombie or the Honolulu Police Department to release records that, despite OIP orders to "give 'em up," remain ferreted away in some filing cabinet.

Temple actually figured out why, despite a clear law backed up by legislative intent documents, OIP lost it's sole authority to determine when documents must be made public by the state and its political subdivisions, actually citing the ES-177 case, albeit through a link.

In County of Kaua`i vs Office of Information Practices the Intermediate Court of Appeals ruled that the county could in fact go to circuit court to overturn an OIP directive.

According to the decision:

OIP maintained that HRS § 92F-15.5(b) (1993) did not provide County "the right to appeal or otherwise contest an OIP determination that a record must be disclosed under the [Uniform Information Practices Act (UIPA)]." OIP cited to Conference Committee Report No. 17 on Senate Bill No. 1799, in 1989 Senate Journal, at 763-64, which stated that "a government agency dissatisfied with an administrative ruling by the OIP does not have the right to bring an action in circuit court to contest the OIP ruling." OIP also cited to HRS § 632-1, which provided, inter alia, that "[w]here . . . a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed."

But despite the fact that the original request was for the minutes- clearly a document- the court ruled that the real intent somehow dealt with HRS 92, the open meetings or Sunshine law, over which OIP does not have sole discretion.

We're certainly gratified to have someone with a bigger megaphone take up the cause and couldn't agree more with Temple who concluded today's first of two columns by saying that the language in HRS 92F-15.5:

clearly gives the OIP the power to order government agencies to make records available. Yet, that power isn't being wielded today, at least in part because of a 2009 Hawaii Intermediate Court of Appeals decision. That case involved not just the UIPA but also the open meetings law, known as the Sunshine law, which doesn't give the OIP the same strong powers as the open records law.

The result of the appeals court decision appears to be confusion — and a weakened OIP.

Cheryl Kakazu Park, OIP's director, defends her office, but says she's going to seek clarification of its powers from the Legislature next year. She says she sees agencies voluntarily comply with OIP advice.

"For the most part, they have wanted to comply," she told me.

Maybe.

But it was Park who wrote that it would be "futile" for her to rule on an appeal of the governor's rejection of requests for the names of judicial nominees.

Futile. Even though the language of the statute clearly says what should happen when OIP rules on appeal that a document should be public: "The agency shall make the record available."

Something is terribly wrong with this picture.

It's a two edged sword. Even though the open meetings and records laws in Hawai`i are broken, anyone who has seen the legislature in action know that they are just as libel to make things worse as they are to remedy the situation once they get a bill on the table.

But perhaps the sound of other headbangers will force the legislature to give the OIP the authority that they were supposedly given when the law was passed.

A “CONCERTED CONSPIRATORIAL EFFORT”?

A “CONCERTED CONSPIRATORIAL EFFORT”?: A few years back the Kaua`i County Council finally discovered the best way to manipulate the dialogue before the cameras during what some of them call “the show” by taking required testimony on agenda items before and only before their discussions and then, if it’s embarrassing, finding a way to deflect it- often by answering a different question or addressing a different topic than the testimony raised.

Never was that more in evidence than at the last council meeting when the subject of former Kaua`i Police Department (KPD) Chief KC Lum’s lawsuit against the county was addressed.

Council watchdog Glen Mickens had the temerity to state that the persecution and dismissal of Lum was a “concerted conspiratorial effort” which, as the local newspaper’s Michael Levine reported, was met with vehement denials by two of the Minotaur’s gate keepers, Councilmembers Darryl Kaneshiro and Jay Furfaro, and the bone-gnasher himself Chair Kaipo Asing.

But what those who read the article or watched the cablecast of the meeting might have missed was the slight of hand on the council’s part in addressing, not the agenda item detailing an appropriation to fight the Lum lawsuit- which was struck down again in federal court at the 9th circuit level days before, apparently unbeknownst to the council at the time- but the separate somewhat related case of ES-177 which was “won” by the county weeks ago in Hawai`i Supreme Court.

The smoke and mirrors, hocus-pocus was because the charge of there having been a “concerted conspiratorial effort” to get rid of Lum would be difficult if not impossible to deny by anyone who really followed the saga from start to finish.

The first thing about the 9th Circuit decision that should be noted is that they did not rule that there was no conspiracy to get rid of Lum in general, just that it wasn’t race based.

As reported in another article- this one on the 9th Circuit decision itself- the court specifically said:

Lum and attorney Clayton Ikei failed to show former county Finance Department Director Michael Tresler acted with conspiracy based on racial bias when Tresler canceled Lum’s employment agreement (emphasis added)

The second important thing was that the decision was based on the “fact” that former Police Commission Chair Michael Ching showed bias in the hiring of Lum, based on a Board of Ethics (BOE) case that was enforced by the county council after a BOE “trial” of Ching which was held behind closed doors at Ching's behest.

It should be noted that fellow Police Commissioner Carol Furtado was brought up on the same charges of favoritism but chose a public hearing of her case resulting in an acquittal, most observers believe, because it was held in the open.

But looking at the whole sad story it would have been truly absurd for the council to claim that there was no concerted conspiratorial effort in Lum’s firing.

Let’s remember how it happened concerning at least two pertinent events.

The whole business started when former Councilperson and former KPD Officer Mel Rapozo came onto the council along with now Prosecutor Shaylene Iseri-Carvalho, both of whom held a grudge against Lum for events in their past.

Rapozo had been in the room during the infamous “lap dancer” molestation incident and Lum was the lieutenant on duty that night. When Officer Darla Abbatiello- who later sued and won a suit for harassment against the department and county- burst into Lum’s office and told him what was happening down the hall, Lum had no choice but to report the incident- something Rapozo and others to this day claim resulted in the firing of the “three good officer” who molested the “lap dancer” and the resignation of Rapozo who, supposedly, “just” stood by watching and laughing.

Iseri’s grudge came from a party she was hosting at Lydgate Park pavilion where the level of noise and boisterousness was such that a complaint was filed and Lum was the responding officer. A drunken Iseri, then a deputy prosecutor, confronted Lum when he came a second time to tell her to break it up and she always held a grudge based on the incident according to multiple sources.

Then came ES-177 and, according to an OIP letter to County Clerk Peter Nakamura during the back and forth about releasing the minutes, Rapozo went off on the whole department, especially Lum, detailing what he saw as injustices.

Rapozo obviously thought no one would ever know what he said since no executive session minutes had ever been released by the council- a fact still true today. Since it would have been embarrassing to the newly elected Rapozo had the minutes been released Chair Asing took the opportunity to try to corral the “maverick” Rapozo and hang the ES content over his head, assuring compliance with Asing's wishes and machinations over the next two council terms whenever Rapozo’s enthusiasm got in the way or “rocked the boat” as Asing is fond of saying.

It was in fact Asing who filed the charges with the BOE against Lum, at first on council letterhead and then, when he realized the whole council had never approved such a charge and that it would have indeed been an ethics violation to use his office to file the complaint against Ching, he said he made a “mistake” and said he was filing as a private citizen.

But the real heart of the conspiracy occurred at the mayor-appointed, council-confirmed BOE. The Ching case was heard by a retired Maui judge in secret and the secret report was given to the BOE. But while the report the BOE released to the council seemed to indicate that Ching had indeed used his position to secure a special privilege for Lum that wasn’t what the full report indicated.

Citizen activist Richard Stauber came before the council during the council’s session held to approve the BOE report and had a copy of the full report in which the judge essentially said that nothing untoward had happened and actually exonerated Ching although he did allow the county attorney’s office to write up the summery judgment which is what the council considered without officially seeing the whole report.

Saying a “little bird dropped (the full document) in my widow” Stauber tried to present it to the council as part of his testimony. But the council, perhaps fully aware of the content and not wanting the full report to become part of the public record, actually not only refused to accept the document and but when Stauber placed it on their table they instructed staff to physically give it back to Stauber.

Though the document was presented to the then council-beat reporter for the local newspaper Lester Chang- whose writing skills bordered on incompetence and who was widely known for his kow-towing to Asing and his penchant for trying to please the council- he refused to report on or even mention the additional data making sure that the general public never heard about the full report.

Finally a reluctant Mayor Bryan Baptiste, who originally really wanted the whole thing to just go away but later came to see which way the wind was blowing, joined the conspiracy apparently instructing Finance Director Michael Tressler- who was reward with a cushy. do-nothing vice-presidency at a big local land owner Grove Farm- to terminate Lum’s contract, resulting in Lum’s retirement because if he had allow himself to be “fired” as chief it could have resulted in him losing his seniority and thus pension.

Many other little oddities occurred during the time, mostly related to Police Commissioner Leon Gonsalves’ “hop sing” letter.

That bled over into the Lum persecution which also involved supporters of current Police Chief Darryl Perry including his brother, prominent attorney Warren Perry, and the leadership of the police union SHOPPO along with others in the administration who had begun to understand that their support of Lum might lead to consequences such as when another officer was disciplined for circulating a petition supporting Lum.

Soon the silence in support of Lum was deafening and no one was left to say boo when he was canned.

We certainly haven’t covered all the elements of the conspiracy here. To find out more details, if you’ve never read former Honolulu Star Bulletin Kaua`i Bureau Chief Anthony Sommer’s book KPD Blue (see left rail) it’s about time you did. And if any of the names or terms seem unfamiliar you can cut and paste them into the search box at the top of the page to see our past coverage.

What’s perhaps most galling about last Wednesday’s council “show” was the little conspiracy in the room and the way councilmembers browbeat and intimidated Mickens because, although he sat through the whole debacle along with Sommer and PNN, he might not always be as quick with his wits and as ready for confrontation as we might be had we been there and been given the opportunity to say what we’ve said here.

So pick on someone your own size Kaipo, Jay and Darryl. Anytime, any place we’d be not just glad but elated to debate any or all of you on the topic of the “concerted conspiratorial effort”. No?- well your silence is deafening, especially given your treatment of other who may be less articulate when they appear before you and your avoidance of people who can verbally hold their own.

We feel that Lum made a mistake in trying to make the whole case about racial/ethnic discrimination rather than a general wrongful termination. We also feel like his attorney Clayton Ikei didn’t serve him well in the various courts. Since it’s doubtful Lum has the money to continue the fight it seems that the county’s victory at the three-judge-panel level of the federal 9th Circuit will stand.

To claim there was no conspiracy in general to reverse the hiring of Lum- who would have been approved by the commission even without Ching's vote- unfortunately serves as a lesson to those who might enter the Minotaur’s labyrinth- have your wits about you and sword drawn even when the dark is as dark as can be, lest you serve as grist for the bonemill.

ASK THE BIG DOG

ASK THE BIG DOG: The Office of Information Practices (OIP) has appealed the Intermediate Court’s denial of it’s appeal of a 5th circuit court ruling that kept the minutes of the infamous “ES-177” from pubic eyes.

The case stems from a January 2006 Kaua`i County Council closed-door meeting regarding its then-pending investigation of the Kaua`i Police Department. When the OIP told the council to give up the minutes, the council sued the OIP to stop their release.

But while we’re in receipt of the Supreme Court appeal brief we’re unable to lift quotes from the document that was also scanned in cockeyed as it was sent to us.

So while we’re awaiting a usable copy to go into some depth on the case we’ll preview a couple of relevant matters in the brief.

People keep wondering what the heck is in the minutes that would cause such a battle- one in which the OIP maintains the council can’t even sue them in the first place and the council digging in to keep matter from the public eye.

What it seems to come down to is that the lower courts have ruled solely on the basis of the Sunshine Law, HRS 92. It deals solely with open meetings and allows the council to meet to “consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities”.

Since it’s obviously too late to stop the council from going into executive session, so the original request was for the minutes to the meeting.

The OIP says that the “minutes” of those meetings fall not under the sunshine Law but under the Unified Information Practices Act (UIPA) HRS 92F which deal with open records since the minutes are by definition records.

The UIPA provides strict and specific limits as to what specific kinds of information can be withheld and also specifically denies the council and covered agencies the right to go to court to appeal OIP rulings and allows only for “persons” to go to court to appeal the OIP’s denial of access to records.

But more importantly the brief argues that the UIPA also apparently limits the county-claimed broad use of the private standards of “attorney client privilege” and places limitation on that privilege for state and county agencies covered by the law.

We’ll quote some law on that when we get the brief in usable form but in a nutshell the case has broad implications for the Kaua`i council’s penchant for using the above quoted Sunshine Law passage- “to consult with the board's attorney”- to go into executive session at the drop of a hat to discuss sensitive political issues by bringing in their attorney and asking a legal question or two.

Part of the OIP case is as to whether the council even has “standing” since the law is pretty explicit- and the legislative committee report on the UIPA specifically states that- the idea was to not allow covered agencies to appeal OIP rulings even though “persons” who were denied records could go to circuit court.

But assuming the court rejects that argument as the lower courts have (although according to the OIP brief they didn’t address the matter and relied only on the Sunshine Law, as the county highlighted) the OIP says that the intent of the Sunshine Law, read with UIPA, was to limit the attorney-client privilege that applies to private individuals and organizations.

That is a contention which would cause the county to have to limit when it goes into executive session if it doesn’t want the minutes- which are a records under UIPA- released.

We’ll get into it more when we get a clean copy because there is a lot of information that wasn’t previously available about the case in the Supreme Court appeal including a description from the county’s intermediate court of appeals filing describing what they say happened in ES-177.

But for now the important part is that if the Supreme Court looks at the law in full it may mean an end to the council’s ability to discuss private policy behind closed doors as we’ve detailed in this space for the last year and a half.

SAME OLD DOG, SAME OLD TRICK:

SAME OLD DOG, SAME OLD TRICK: Many in the community are finally opening their eyes to the abuses of open government principles involved in a quest by the two dissident councilperson’s of late.

But if they are shocked at how both the public and even some of those they elected are given the mushroom treatment, while we’ve got their attention all we can do is quote Al Jolson- “you ain’t seen nothing yet”.

The matters that Tim Bynum and Lani Kawahara forced onto a future council agenda on Tuesday are but minor “first steps” toward cleaning up at least seven years of a concerted effort by Council Chair Kaipo Asing to evade, flout and pervert the Sunshine Law in order to avoid public scrutiny in matters of public affairs.

Bynum has complained bitterly in the past about one of the main vehicles for hiding what the council is doing- the “secret” official county attorney (CA) pubic policy opinions. That issue as received notice not just here but in the local newspaper and those that follow council doings are all too familiar with the practice.

It reeks of Star Chamber methodology whereby the council tells the public the council is compelled to do something baffling because they have a county attorney’s opinion... an opinion that they “can’t” reveal.

But although related, far worse is the practice of meeting in executive session (ES) to discuss prospective legislation and even bills that are on the table.

Just this past week the council met in secret by saying

(T)he purpose of this executive session is to consult with the Council’s attorney regarding the charter amendments adopted in the 2008 General Election and other related matters.

Pretty outrageous, eh? And this isn’t the first time.

These ES’s, as revealed for the first time this past Tuesday, are ostensibly to discuss the implementation of the “General Plan” charter amendment passed this past November- a matter of public policy if there ever was one.

You would think the drafters of the amendment who worked so hard to pass it would be up in arms. But you’d be wrong because not one has objected at any of the ES’s.

You would also think that this practice would be forbidden. In fact the very first provision of the Sunshine Law, §92-1 Declaration Of Policy And Intent, reads, in part

Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible. To implement this policy the legislature declares that:
(1) It is the intent of this part to protect the people's right to know;
(2) The provisions requiring open meetings shall be liberally construed; and
(3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.

There are of course legitimate reasons for holding closed meeting- lawsuits, personnel matters and the like. They’re addressed in 8 exceptions in §92-5(a)

But one of those exceptions, #4, contains a provision that has been abused so as to obliterate any pretense of following these principles, It reads:

§92-5 A board may hold a meeting closed to the public pursuant to section 92-4 for one or more of the following purposes:...
(4) To consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities.

Now obviously this is supposed to be read along with the principles and the rest of the law. If it weren’t then as long as “the board’s attorney” is in the room and speaks and they discuss “the board's powers, duties, privileges, immunities, and liabilities”- which covers just about everything the council does, including pubic policy- all meetings could be conducted behind closed doors in their entirety.

Despite the absurd result of interpreting the law this way, that is just what the county started to do gradually when Mayor Bryan Baptiste appointed County Attorney Lani Nakazawa who developed both the “secret opinion” and the principle that allowed 92-5(a)4 to be interpreted to cover anything she said it did- especially any possible “future litigation” as well as holding that the council’s “powers, duties and privileges” include discussing and drafting legislation... the very thing that’s supposed to be done in public.

But isn’t there an Office of Information Practices (OIP) to make sure this doesn’t happen?

You would think so, at least in theory. But in actuality what has happened is that any complaint, if it’s accepted by OIP and gets that far, is subject to what’s called an “in camera” review whereby the OIP can look at the ES minutes and decide if they are to be released.

And that’s exactly what happened in January of 2003 when, in the infamous “ES-177”, new councilmember Mel Rapozo apparently went ballistic and attacked the Kaua`i Police Department as the first volley in his campaign to remove newly appointed Chief KC Lum.

The OIP asked for the minutes, examined them and ordered them released. But the county then sued OIP and years later Circuit Court Judge Kathleen Wantanabe- a former Kaua`i deputy county attorney- ruled that the releasable parts of the minutes were “inexorably intertwined” with the legitimately discussed items and so nothing could be released.

At the time OIP was headed by a real open government crusader, director Les Kondo who was willing to go to the hilt to defend the Sunshine Law. But by the time the case came up the OIP had a new director though an appeal was promised its status is apparently “on hold”.

The council, under the tutelage of Asing, Nakazawa and the next CA Matthew Pyun, used this as a signal that they could pretty much allow the council to meet in ES on any subject they desired with impunity, including pending legislation as happened over and over during the contentious “Transient Vacation Rental Bill” passed last summer as well as with other matters.

It should be noted that the “charter amendment” ES’s have been held with unanimous votes, including Bynum’s and Kawahara’s. Bynum did on Tuesday protest the immense amount of money spent on “outside counsel” so far (up to $150,000) without what he characterized as a sufficient work product before being cut off by new County Attorney Al Castillo.

CHASING ANOTHER TALE

CHASING ANOTHER TALE: This week’s Kaua`i Board of Ethics (BOE) meeting promises to be more of the same- a few hours of attempts to act unethically, cover-up past lapses of ethics by board members and hide everything else they do from the public, along with yet another attempt to strip the county charter’s ethics provisions of it’s conflict-of-interest section.

Testimony by designated BOE watchdog and “nitpicker” Horace Stoessel arrived in our inbox this morning and it’s too important to let it wait for later this week, if only so that perhaps it will motivate some to clear their calendar for this Thursday morning and show up, preferably with pitchforks and torches.

The first thing Stoessel addresses is a little item at the end of the agenda- an “executive session” closed to the public which is listed on the agenda as

ES-3: CONSULTATION WITH ATTORNEY
Discussion and consultation with the County Attorney regarding the process for releasing County Attorney opinions and is there a need for consistency throughout the County.

Horace wrote:

The primary fact confronting the public for months, now stretching into years, is that county agencies are not releasing opinions even though the authority and responsibility for releasing them resides with client agencies. Indeed, focusing on process and the need for uniformity has served as a prime excuse for not releasing opinions and not holding open discussions.

“Months” is an understatement since the refusal to acknowledge any public function to the office of the county attorney (CA) goes back to the beginning of Mayor Bryan Baptiste’s administration when he appointed Lani Nakazawa to the post and she redefined the job to eliminate any public component and only serve her “clients”- defined as county government officials and personnel.

At first that meant that any release of official written “opinions” had to be through the entity that asked for and got the opinion.

And that was, at first, routinely done.

But with the election of now former Councilmembers Mel Rapozo and Shaylene Iseri Carvalho things changed in most part due to two related matters- an “investigation” of the Kaua`i Police Department the two cooked up and the council approved (but never officially executed after the council used the BOE to purge Police Chief KC Lum) and a matter known as the infamous “ES-177” where Rapozo. a former scandal-plagued KPD officer apparently said way too much behind closed doors about police matters and the then-upcoming investigation.

This led to a full clamp down on public release of all correspondence- even formal opinions on matters of law- from the CA’s office to the council.

Whereas before opinions were either released by the CA or by a councilmember if he or she originally sought it, an informal policy was used to release the opinions only after a “council approval”, where a majority vote was used at least once.

When Councilmember Tim Bynum came on board and tried to get the council to vote on the release of some of these opinions- as most councilmembers publicly promised to do- Chair Kaipo Asing and then member, now Vice Chair, Jay Furfaro claimed that before the vote there had to be a written formal policy for how the vote would be conducted and what percentage the affirmative vote had to be- just a majority, two-thirds or even unanimous.

This little ploy has now become the “de rigor” delaying tactic, not just for the council but for all boards and commissions on the island, This has especially benefited the BOE which has not just withheld opinions but constantly flouted the sunshine and open records laws, even codifying illegal activity in their administrative rules.

But that wasn’t enough of a delaying scheme to stand up forever and now, after a couple of years of playing Alphonse and Gaston the BOE came under pressure to simply enact a policy for the release of CA opinions.

Enter John Isobe, director of boards and commissions, a post created by a charter amendment in 2006 supposedly to oversee and assist commissioners and board members in fulfilling their duties.

Isobe- a long time entrenched member of the revolving-door old boys and girls network- has used his position to make sure that those citizen members did things the way they’ve always done things and not rock the boat.

In service of continuing the delay, Isobe has suggested that an individual board or commission should wait on creating a policy for CA releases until, as the agenda for ES-3 says, the question “is there a need for consistency throughout the County?” is answered.

The agenda promises to rehash an even more absurd but related matter- the attempt by the BOE to gut the county charter of the conflict of interest provisions in Section 20.02(D) of the county charter that prohibits board and commission members from representing private interest before the county, including of course boards and commissions... including the county council.

Seems some of the BOE members are still in blatant conflict of that pesky little provision.

Apparently is wasn’t enough of a rebuke to both the BOE and the charter commission when voters overwhelmingly rejected dropping the charter provision in 2008, because on the agenda this week is this item:

Letter of March 25, 2009 from Charter Review Commission requesting input from the Board of Ethics as to whether Section 20.05 D (2) of the Kaua`i County Charter should be amended and, if yes, suggestions on how it should be amended.

For years the 20.02(D) conflict provisions were just ignored by the well connected who routinely went before the council and county boards and commissions seeking, for example, things like zoning or even grants of money from the council or development projects’ approval permits from the planning commission, while serving on other boards of commissions.

But in 2007-8 a member of the charter commission, former state senator and attorney Jonathan Chun, was routinely appearing before the council representing the Board of Realtors on the vacation rental bill before the council at the time.

Chun then made a fatal error of judgment when he actually asked the BOE for a ruling on whether he was in violation of 20.02(D)

Stoessel’s testimony tells the story from there in what he calls “The Case Of 20.02D”

The issue of the County Attorney opinion related to Jonathan Chun’s request for an advisory opinion has been outstanding for more than a year. It may represent the only time the Board of Ethics has sought a legal opinion before issuing an advisory opinion. It is also interesting that the Board issued an advisory opinion involving similar circumstances just three months previously in which the Board felt no need to ask for a legal opinion or to meet in executive session.

Once the Board emerged from executive session in March, 2008 a motion was made and approved to allow Mr. Chun to continue the activities referenced in his request for an advisory opinion. The motion as approved failed to meet even the minimum test for public disclosure because it cited no statutory basis for the decision, instead making a vague and misleading reference to information in the Code of Ethics and the Charter.

The Board also refused to release the legal opinion it purportedly used to justify its decision. When I asked the Board to justify keeping the opinion secret, the chairman replied, “I do not intend to answer that, Horace. It could be that I don’t know; it could be that I just don’t wish to answer that question.”

But the BOE’s utter refusal to enforce the law- or state why- was only the beginning.

Chun wasn’t the only one engaged in this practice.

In fact then BOE Chair, now Vice Chair Mark “Mother” Hubbard was a vice president at land baron Grove Farm and he and his brethren- many also serving on boards and commissions- routinely made requests from the county council and administrative boards and commissions on behalf of themselves and/or clients.

BOE member Judy Lenthall is the Executive Director of the Kaua`i Food Bank which just received another grant from the county council this year after she appeared before them hat in hand.

Oh and by the way, the BOE has also cleared Furfaro, Asing, Rapozo and other council members from potential conflicts in the past.

So in appreciation for the clean bill of health for Chun’s apparently “dead on arrival” clearance, Chun turned around and, as a member of the charter commission, put a measure on the ballot to just eliminate that pesky 20.02(D) from the charter.

Stoessel’s testimony takes it up from the Chun decision:

In succeeding months the Board encouraged the Charter Commission to offer a charter amendment exempting all county personnel from having to comply with 20.02D rather than exempting only board/commission members. However, the commission restricted the scope of its proposed amendment to board/commission members and the amendment was then rejected by the voters in November, 2008. Their rejection revived questions about the Board’s handling of 20.02D and the March, 2008 legal opinion.

For my part as a responsible member of the public, I am still waiting for the Board to respond directly to the formal argument I offered in February, 2008 in support of basing a response to Jonathan Chun on 20.02D and to additional information I have since cited in support of that argument. The public has been prevented from further commenting directly on the Board’s actions by the Board’s failure to cite a statutory basis for its decision in the Chun case and its refusal to release the legal opinion.

The Board postponed discussion of 20.02D at the March meeting, and seemed to me to indicate that both 20.02D and the March, 2008 opinion would appear on the agenda for April. Did I miss something, or was I justified in being surprised that neither appears on the April agenda?

If it is within the scope of ES-3 (or the last item under BUSINESS), I would like to see the Board vote to release the March, 2008 legal opinion now. Failing that, I ask the Board to place on the May agenda a vote on releasing the opinion and a discussion of 20.02D. In view of the fact that the Board’s last formal statement regarding 20.02D was an expressed desire to exempt all county personnel from having to comply with it, I would like to hear what effect the November vote has had on the thinking of the Board.

So would we. If you’d like to know too go on down there and ask them.

The BOE meeting is at 9:00 A.M. this Thursday, April 9, 2009 in the Liquor Conference Room on the first floor of the Mo`ikeha Building in Lihu`e (the complex where the planning commission meets and where you get your car registered and drivers’ license renewed).