Keeping Up With The Kealohas

Yes it's local TV's Latest Hit Show HNN's "Keeping Up With The Kealohas." Last night's special featured a blast of foul smelling stinkerino from the past in the name of Jake Delaplane. For newbies or those with short memories he was disgraced former Kaua`i Prosecutor Shaylene Iseri's second-alcoholic-and-respondent-in-command who is now apparently, they say, representing a couple of the "co-conspirators" in HPD's spin-off "Pimp My Mail Box."
Does sleaze know no bottom rung? We'll see.
But do read up on Jake's involvement in the Kaua`i "Rice-Cooker-Gate" in a few investigative pieces I penned in 2012 and thereabouts... and look for Judge Watenabe's from-the-bench chiding of self same Delaplane.

SEPARATING THE WHITE FROM THE RICE

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

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

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

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

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

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

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

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

Nothing was too much for Asing to ask.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

home.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

County Council meetings.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

P.O.H.A.K.U.: ROCKIN' IN THE SHAY WORLD; A PNN INVESTIGATIVE REPORT

P.O.H.A.K.U.: ROCKIN' IN THE SHAY WORLD;
WHAT ARE THE QUESTIONS THE COUNCIL WANTS ANSWERED ON PROSECUTOR'S SIGNATURE DIVERSION PROGRAM?
A PNN INVESTIGATIVE REPORT

(PNN) -- Prosecuting Attorney Shaylene Iseri-Carvalho's much ballyhooed P.O.H.A.K.U. program to "divert" minor offenders from jail has blown-up recently as two councilmembers have tried to ask questions about the program while the rest have blocked those queries, even refusing to hold closed door discussions of the program.

A PNN investigation has uncovered what some of those questions may be and found both process and monetary improprieties associated with the program as well as false claims on the part of Iseri and conflicts of interest within the Office of the Prosecuting Attorney (OPA).

For those who have not followed the council machinations lately, for weeks now Iseri, her First Deputy Jake Delaplane and her chief ally on the council Mel Rapozo have thwarted Councilmembers JoAnn Yukimura and Tim Bynum from even discussing the P.O.H.A.K.U. program, with the latest dust-up occurring at Friday's budget session for the OPA.

The council has twice defeated requests for an executive session with County Attorney Al Castillo, and when Council Chair Jay Furfaro was at a doctor's appointment Friday morning, Rapozo acted as chair and banned all discussion of P.O.H.A.K.U.

That enraged Bynum and Yukimura with Yukimura forced to withhold a power point presentation she had prepared to expose some of the alleged wrongdoing in the P.O.H.A.K.U. program.

But Rapozo banned discussion despite its direct relevance to the the agenda item: the OPA's budget, because, he claimed, County Attorney Al Castillo had banned the discussion- something Castillo later denied.

For those who want a blow-by-blow of the multi-level, multi-player chess game of the past month or so, including Friday's budget session, we recommend reading Joan Conrow's Kaua`i Eclectic coverage here, here and here

The overriding question no one has answered is why? What is Iseri so apparently trying to hide? No one can honestly watch the meetings without asking themselves that question. Why are she and Delaplane "running out the clock" with repetitive power point presentations and long winded answers to questions no one asked every time they are subjected to council questioning?

So what are Yukimura and Bynum trying to question her about?

The key to answering that is apparently a company that, despite Iseri's claim that the program is fully of her design and implementation, is apparently the entity that is responsible for the nuts and bolts of the P.O.H.A.K.U. program... a company called Strategic Justice Partners (SJP) LLC of Nevada.

Politically, P.O.H.A.K.U., which has been implemented for a few years now, has been a key to Iseri's campaign for re-election and she has promoted it recently in two articles in the local newspaper touting community meetings and the program's alleged successes. Iseri's official P.O.H.A.K.U. website calls it "a new innovative diversion program that was designed by the Office of the Prosecuting Attorney (OPA) as an alternative to the traditional court process."

But although SJP has never publicly been mentioned by Iseri or her department's personnel, a look at the bottom of the P.O.H.A.K.U. web site says "Content copyright 2011-2012. Strategic Justice Partners. All rights reserved."

And a visit to the SJP web site reveals where the program really came from. The very first thing you see there on the right side is the statement that:

Strategic Justice Partners is a leader in Alternative Sentencing, Diversion and Early Release Programs.

"Our Diversion programs have a 94% completion rate with over 96% of participants rating their experience as "good" or "outstanding".

And under the "What We Do" button it describes a service that sound exactly like the P.O.H.A.K.U. program, saying they provide:

Diversion Programs
Diversion Programs result in lower recidivism than “Stand in line-Pay a fine” justice while dramatically reducing the burden and costs on Prosecutors and Courts. http://www.strategicjusticepartners.com/What_We_Do.html

And the main program exemplary of their work? At the top of the left had side of the home page of the site is a color photo of a smiling, lei-bedecked Iseri alongside a photo of a Kaua`i-style poi pounder (the symbol of P.O.H.A.K.U.) under the title "Kaua'i County Hawai`i; P.O.H.A.K.U. Program." and a blurb that says "We are pleased to introduce P.O.H.A.K.U., an innovative alternative to the traditional court Process."

It doesn't really say who "we" is but the context demands one interpret it as being SJP especially because it's their web site.

Iseri has recently been holding a series of meetings- meetings dutifully reported upon by the local newspaper- apparently as a part of, or at least in conjunction with, her campaign for re-election in the fall. One example of how she has used P.O.H.A.K.U. for political haymaking at every turn is the wording of a communication to the county council for a special council meeting on April 11.

At the time Iseri was asking the "Council approval to apply for and receive Technical Assistance from the Bureau of Justice Assistance and the Vera Institute of Justice's national Cost-Benefit Knowledge Bank for Criminal Justice," although it has since been withdrawn at Iseri's request, apparently because that would have opened the door to questioning about P.O.H.A.K.U.

What would make us say that might be the reason? Well, Iseri had already applied for the "technical assistance" before the item was to have been approved by the council. Not only that but she withdrew the request after all the other delay requests on her part had failed... and she did so in a late night email to the chair, sent the night before the meeting where P.O.H.A.K.U. was to have been discussed.

But it's the rest of the communication that had many laughing at the unique wording that was anything but the usual kind of straightforward "communications for approval." It went on to say that the assistance "will allow the OPA to find innovative programs and develop procedures to ensure that the community is served in the most cost efficient manner and in the best way possible."

Some may say "so what?- it's politics... nothing wrong with that... they all do it." But we bring this up not just to point to the use of the program as a political tool for Iseri but to point out what exactly amounts to wrongdoing here.

It's not clear what precisely SJP's full role is. But what is true is that the association between the OPA and SJP has never come before the council nor has there even been any type of official "procurement process" for SJP's services, as provided by law.

Any "grant" to any department or for that matter any donation of anything, including information or assistance must, by law, come before the county council for approval. It's usually in an official communication for approval to "apply for, accept and indemnify" as the agenda item would normally read. But the words "Strategic Justice Partners" have never been mentioned in even verbal form to the council much less written.

That would be for a grant or donation type of thing. What if the OPA is involved financially with SJP? The fact is that there has never been any official procurement of services from SJP. Nor of course has there ever been a type of contract or "memorandum of agreement" (MOA) which would also have to have been approved by the council.

Finally there have never been any HRS Chapter 91 Administrative Rules promulgated, which according to state law are required to establish procedures for how, say, the OPA would engage with SJP in the P.O.H.A.K.U. program.

But all that is just procedural. Here's what happens if you, as they say, "follow the money."

Because SJP is a Nevada corporation if it wants to do business in Hawai`i it must file with the Department of Commerce and Consumer Affairs (DCCA) and have an "agent" in Hawai`i.

The DCCA filing shows SJP to be a for-profit corporation and the agent in Hawai`i is none other than Iseri's second-in-command, Delaplane.

The filing is simply the initial corporate document and apparently no 2012 report has been submitted. There is nothing to indicate whether Delaplane is being paid for being the sole representative of SJP in Hawai`i. But the fact that he is both their agent and part of the team that is contracting with SJP- the OPA- makes for a blatant conflict of interest.

So who gets what money and where does it come from?

The upcoming OPA's budget for 2013 shows a request for around $20,000 for four different diversion programs although there is no breakdown of how much of that would go to P.O.H.A.K.U. That is one reason why Yukimura and Bynum were asking questions- or want to ask them- in the first place; to find out how much is for each program and in fact what the county funding mechanism(s) for P.O.H.A.K.U. actually are/is. It also "opens the door" so to speak, to discuss the program.

But PNN did learn of one funding source that isn't listed anywhere and certainly has not been communicated to the council.

At Iseri's P.O.H.A.K.U. website those in the program can go to the "Register for Class" page. Under "P.O.H.A.K.U. Class Registration" it says:

You may schedule your P.O.H.A.K.U. class date below.
You must pay your program fees prior to registering.
You may REGISTER with a credit or debit card below or visit any Bank of Hawaii Branch with the deposit slip you were given (emphasis added).

And, PNN has learned, that the "deposit slip" is filled out to deposit $200 to an account bearing the name of, not the County of Kaua`i as one would expect for a program designed and run by Iseri but rather, Strategic Justice Partners.

According to testimony by Delaplane on Friday before the council 49 people have completed the program and so what is clear is that at least that many have paid SJP $200 each for a total of almost $10,000.

What is not clear however is whether the money is refunded if the person doesn't complete the diversion program. The question of how many people failed has, of course, not been discussed because nothing about POHAKU has been able to be discussed, even though both Delaplane and Iseri were permitted to tout it Friday during their "power point" presentation to the council on the budget.

Even- or maybe especially- if the OPA never sees or touches a nickel, improprieties abound with this setup. As we said, P.O.H.A.K.U. itself has never even been approved by the council. Plus, there has never been a procurement of services for SJP nor has there been any MOA, both of which would have to come before the council for approval.

Oh- and one more thing.

The only person listed as a "member" of SJP is one Kirk Barrus. That means he is the sole owner of SJP. Yet a search of SJP's web site does not readily yield Barrus' name- or any other associated with the company.

So who is Barrus? What is his background?

According to David Lazarus' "Consumer Confidential" in the February 20, 2008, Los Angeles Times, Kirk Barrus was the Senior Vice President and spokesperson for a company called American Corrective Counseling Services (ACCS).

In an article in which Lazarus discusses Bush-era court rulings providing full immunity to companies doing business with the government he cites the example of "AT&T and Verizon immunity for their roles in any past and future eavesdropping on the American people."

But ACCS was not granted immunity in the case at hand and Lazarus writes that:

when it comes to public-private canoodling, the most egregious case I've seen recently involved a San Clemente company, American Corrective Counseling Services, that worked with public prosecutors to go after people who bounced checks.

He describes the scam this way:

In contacting consumers, ACCS represented itself as actually being the district attorney's office, even though the cases involved may not have been vetted in advance by an actual prosecutor.

In return for its efforts, ACCS typically would be entitled to a $100 fee and as much as 60% of any fines paid...

Lois Artz, a 72-year-old resident of the Northern California city of Petaluma, received what looked like a very serious letter from the Sonoma County district attorney's office in November 2005.

"The Sonoma County District Attorney's Office has received a CRIME REPORT alleging you have violated Penal Code 476(a) of the California State Statute: Issuing a Worthless Check," the letter warned.

"A conviction under this statute is punishable by up to one (1) year in county jail, or in a state prison, and up to $1,000 in fines," it said.

The letter advised Artz, a former Bank of America branch manager, to enroll in a "bad check restitution program" and to pay $196.62 in fines.

"When I saw that letter, I almost fainted," she told me. "I was beside myself."
Her crime, Artz said, was writing a check for a $26.62 carton of smokes and not having sufficient funds in her bank account to cover it. Artz said she'd been distracted caring for her daughter, who has breast cancer, but she knows that's no excuse.

What troubled her was that her case seemingly was elevated with alarming speed to the level of criminal prosecution without anyone trying to work things out with her.

"I was humiliated and terrified," Artz said. "I felt like any time I turned around, there would be somebody there telling me to come with them."

According to court documents, ACCS went after more than 100,000 Californians in 2001, the latest year for which data are available. And most if not all those people believed they'd been contacted by a government agency, not a private company.

In speaking for ACCS, Barrus

denied that the company acts independently when it chases down suspected check scofflaws.

"We operate under the total control of the district attorney," he said. "We're basically a secretarial service, and therefore should carry the district attorney's immunity.

"They're not letters from a private company," Barrus insisted. "They're letters from a district attorney."

There is another article in The Press Democrat describing the situation in more detail

The fact that the council has questions for Iseri about P.O.H.A.K.U. shouldn't surprise anybody.

We'd certainly like to know a few things.

Did SJP receive other funds such as ACCS did in collecting "as much as 60% of any fines paid" in the California case? Did the OPA either receive or expend any funding directly or indirectly to or from SJP? What exactly is Delaplane's role? What does he do as "agent?" Is he a paid agent? If so, how much? If so, what if anything is Iseri's cut? Doesn't Delaplane or Iseri see an inherent conflict in a operation where someone- so far apparently SJP- is receiving at least $10,000? Why is Iseri so transparently covering up her and the OPA's association with SJP? Is it simply to take credit for a program she didn't really design and implement or is there more?.. perhaps a financial association?

We haven't been able to uncover all the facts or follow all the money. But we sure hope that Rapozo- along with Councilmembers Kipukai Kuali`i, Dickie Chang, and Chair Jay Furfaro- stop blocking at least an executive session but preferably have a full public airing of the issues involved.

Oh by the way- Kuali`i refused to recuse himself from discussions of the OPA's budget despite the fact that the Erin Wilson Victim Witness position cut by Iseri- which is the subject of a complaint by Wilson as we discussed in January - was contracted out to the YWCA where Kuali`i works.

The next thing scheduled for the matter is an executive session set to take place April 30.

POLITICAL THEATER ON RYE... WITH MUSTARD PLEASE

POLITICAL THEATER ON RYE... WITH MUSTARD PLEASE: What with all the fun and games of the Iseri-Bynum circus of the absurd, the status and functionality of the Victim-Witness Program (VWP), the meat of the recent political sandwich, hasn't really received much press.

As we reported two weeks ago (January 12) according to a scathing letter to the Kaua`i County Council by Erin Wilson, a terminated Victim-Witness Counselor at the Office of the Prosecuting Attorney (OPA, the program is now dysfunctional due to the requirement that all communications with outside agencies and the world in general be channeled through Prosecutor Shaylene Iseri-Carvalho, the lack of communications between those performing VWP services and many other issues such as the 17 new faces at the OPA since Iseri came into office.

According to the agenda for last Thursday's council meeting, Council Vice Chair JoAnn Yukimura asked Iseri to come before the council to discuss "the status of the Victim-Witness Program and OPA." And when Councilmember Tim Bynum recused himself due to Iseri's prosecution of him for alleged zoning violations at his home- as we detailed yesterday- Yukimura took over the questioning that, according to Bynum, had been suspended in 2009 when then Chair Kaipo Asing stopped it.

But not before Iseri, trying to direct the show, dragged up her whole department to blow smoke up everyone's butts after demanding that Wilson be questioned, spurring Chair Jay Furfaro to remind her that he was the one running the show.

Instead Yukimura asked for current VWP employee Dianne Gauspohl-White to come up to tesfy. She pretty much backed up most of Wilson's complaints although saying she could only speak from her perspective.

At first Yukimura's questioning elicited mostly red-faced rage, bluster and misdirection on Iseri's part, complaining how she and her staff had to take valuable time to present information they had supposedly already presented.

But after Iseri's right hand man First Deputy Prosecutor Jake DelaPlane- who continually throughout the session pulled her butt out of the sling she had created through her own belligerence- did a PowerPoint presentation with lots of numbers and statistics but almost nothing on the VWP, the questioning of Iseri by Yukimura began, mostly based on Wilson's allegations.

Things were going along swimmingly (not) with Iseri parrying Yukimura's questions with non-responsive "answers" and continual reminders that she had already presented the requested material, when Yukimura finally asked the right questions and hit a jackpot of an answer.

"The Victim Witness Program no longer exists" Iseri told a stunned council.

Seems that Iseri has instituted a program called "vertical prosecution." Formerly deputy prosecutors were assigned to individual courts, not to individual cases. That meant that many times an attorney got the case for the first time when he showed up to court after a case had, for example, been moved from district to circuit court or from the court of one judge to another.

"Vertical prosecution" (VP) is a system where each case is assigned to one attorney who takes it from beginning to end, usually sorted by subject matter- drugs, violent crime, domestic, white collar crime etc.- supposedly creating attorneys with expertise in a certain area.

It actually sounds like a good and long overdue practice.

Under VP each individual attorney has a "team" assigned to him or her- a law clerk, and now, a Victim-Witness (VW) counselor.

And in Iseri's office that apparently has come to mean that there's no cross communication anymore between the various VW employees.

According to White and Wilson, VW employees are now tasked by the attorney who almost exclusively assigns them tasks like calling specific victims and witnesses to let them know about court dates, changes in case status and those kinds of things.

Apparently the actual "counseling" part has fallen through the cracks and not only that but the only victims and witnesses contacted by the counselors are those the attorney on the team tells them to call- and then only to communicate matters regarding the case status.

It used to be that VW employees met every month, traveled to conferences and did a lot of evaluation of whether and how services were being delivered to VWs. But that is a thing of the past with VP where counselors are now "team members" whose actions are dictated by either the attorneys in charge of the team or Iseri herself.

Whereas vertical integration is growing in popularity in the offices of prosecutors and district attorneys across the country- and, according to Councilmember and Iseri ally Mel Rapozo, is by far the most popular management scheme- robust victim witness counseling can wind up being be sacrificed.

Especially if a megalomaniacal, puerile, petty, vindictive, ego-driven prosecutor is the one running the show.

The rest of Yukimura's questioning revealed that, despite requests from the council that statistics and information be presented in an intelligible manner and one that addresses questions the council has- like how all the monies from the various VW programs from the county state and federal governments are actually spent- they are embedded in spread sheets and long narratives where there's little or no possibility of extracting the pertinent information.

It all ended up with DelaPlane- who had taken over much of the question-answering after Iseri's patented self-righteous, rage-filled and spittle-spewing attacks on the questions and questioner became self-defeating- promising to put the statistics in meaningful formats for the new budget... and, importantly, to provide the evaluation forms that victims and witnesses have filled out for those entities providing the grants, which had never been provided to the council previous to the request.

We can expect a repeat performance during the budget hearings starting in March when the OPA presents its budget. But more importantly we just may get some of the issues aired during this year's election campaign where current Deputy County Attorney for the Kaua`i Police Department (KPD), Justin Kollar, is challenging Iseri for the Prosecutor's job.

Iseri won her first and only term as prosecutor in 2008 running unopposed, leaving her position on the county council after four years there.

Although the community has suffered in all this, personally we can't be too distressed with the Bynum matter, the victim witness program questions and other brewing debacles promise that this summer will be anything but a dull one in this space.

So thank you Shay- you're a columnist's dream. So much so that we're torn between supporting Justin for the sake of the community or you for being the gift that keeps on giving.

VIDEO: WATENABE COOKS ISERI'S RICE

VIDEO: WATENABE COOKS ISERI'S RICE: Even if you heard the story of how Fifth Circuit Court Judge Kathleen Watenabe unceremoniously removed Prosecutor Shaylene Iseri-Carvalho and her office from pursuing the prosecution of Tim Bynum in the "Rice Cooker Gate" case, it can't hold a candle to actually seeing her chide Deputy PA Jake Delaplane. Here the priceless clip of her doing just that.

SPIT IT UP

SPIT IT UP: No, Shaylene didn't grab us off the street and throw us in her own personal dungeon. Nor did Beth Tokioka get out the pins and the voodoo doll.

And after an MRI "gut check" we've confirmed that our recent nausea is not, as we suspected, due to the prospect of four years of having to listen to the voice of former Governor Ben Cayetano should he become the mayor of Honolulu.

We regret the lack of a high fiber diet for the past 20 years (damn, dem Safeway baguettes is tasty), but the diverticular gods apparently have other people to sicken today so maybe between bathroom runs we can play a little catch-up today.

Of course the news that Judge Kathleen Watanabe threw out Prosecutor Shaylene Iseri-Carvalho's politically motivated charges against her blood-feud enemy Councilmember Tim Bynum in the "Rice-Cooker-Gate" case- and made sure she couldn't file them again- wasn't much of a surprise. The real laughter was that the "special prosecutor" assigned to the case was none other than former one-term Kaua`i Councilmember and current Deputy Prosecutor on Maui, Richard "Sweating Bullets" Minatoya.

Minatoya really had little choice but to go along with Watanabe's charade of taking Iseri's department off the case and then getting someone else to "investigate" Iseri's envisioned manifestations of the criminal mind of Tim Bynum.

Apparently Watanabe couldn't bring herself to just dismiss the charges all by herself, or better still jail Iseri for fraud and other "alleged" misconduct. The Judgy-Wudgy wouldn't want to deprive Iseri of due process just because Iseri has so little regard for due process herself.

(Parenthetically we just have to ask why it is that people who hate lawyers have such reverence for judges. Where do they think judges come from- the Judge Fairy?)

Once Minatoya talked to Iseri's hench-persons in the planning department and examined some of the evidence of Shay's and her "Igor," First Deputy Prosecutor Jake Delaplane's crimes and misdemeanors, he fulfilled his role of being "shocked, shocked" to find gambling at Rick's.

As an aside we can't let the fact that Minatoya's name is in the news go by without telling the tale of how he got that middle name.

It was we believe 1998 (we don't need no stinkin' fact checks) when then one-term Councilmember Mary Thronas decided to run for mayor (if we remember the correct chronology), trying to unseat then-Mayor Maryanne Kusaka.

Thronas failed in her mayoral bid after referring to Kusaka's office as "a Filipino taxi cab" and talking about "jewing-down" somebody-or-other... all within earshot of a reporter who apparently didn't know that those kinds of things aren't supposed to be reported on Kaua`i.

We were helping produce a "Video Voters' Guide" and had a couple of freebie rooms at the old Kaua`i Resort to do it. We had prepared questions for council and mayoral candidates and the questions were to be provided to each candidate exactly one hour before their individually scheduled taping times.

When Thronas came in we handed her the questions. She looked the piece of paper and then looked back at us and then looked back to the paper as if to ask "what the heck am I supposed to do with this?"

She never did glance at the content but rather spent the next hour gossiping with her hair and makeup people as they put her face in order. We actually had to read her the questions to her before she answered them... without of course really answering them, in quite the "accomplished politician" style .

Next up was the head-shaven Minatoya who had squeaked onto the council two years previously and had not exactly spent the biennium endearing himself to the electorate, serving as just another "bum" to be thrown out... just like the bum he had replaced.

Minatoya came in ten minutes before his appointed time to receive the questions and when we told him that, to be fair, we had to wait until exactly one hour before his taping time to give him the questions, he proceeded to stare at his watch for the next 10 minutes like he was waiting for the priest to arrive for last rites.

When we finally gave him the paper he began to look it over like it was his death warrant. What had previously been a trickle of perspiration now began flowing from his chrome-dome by the barrel-full. We didn't take a lot of notice and continued to yack about nothing in particular until Minatoya jumped up and, loud enough for them to hear him at the nearby Lydgate Park Pavilion, screamed "SHUT UP- I'VE ONLY GOT AN HOUR."

Needless to say by "showtime" Minatoya looked like he'd stepped out of a dunking booth. He stumbled his way through his answers, lost the election (some say because of the performance which played for months on public access TV) and was never heard from again on Kaua`i- until now.

Anyway, now we wait for the other shoe to drop as Bynum plots his revenge against Iseri, who has been busy lawyering-up over budget-related as well as other questions the council has over her P.O.H.A.K.U. program and other assorted sordid activities.

The council met in secret executive session on Wednesday regarding P.O.H.A.K.U. and next Wednesday will discuss it in public although the effect on Iseri's budget- which goes to public hearing next Wednesday at 5 p.m.- may be negligible in an election year since "dollar-funding" the entire Office of the Prosecutor (OPA) isn't really an option.

By the way, we just can't let this go without noting how hilarious it is that other island media have- due to a well established hatred of Bynum over the transient vacation rental issue- credited Councilmember JoAnn Yukimura with leading the investigative battle to reveal Iseri's "alleged" crimes.

The fact is that Yukimura has actually been serving as a mouthpiece for Bynum's research into Iseri's activities, but because Bynum wouldn't exactly be the best front-man for any public interrogation, Yukimura, to her credit, as taken up the reigns of the fight to publicize Iseri's shenanigans.

But the real news this week is the sudden departure of the local newspaper's "new" editor Renee Haines. We hear she was fired, not because she was censoring huge swaths of copy filed by her less-than-competent staff regarding Shaylene-related scandals and instead running fluff pieces Iseri gave her.

The publisher could care less about that and might have even been ordering it. They don't really care about much as long as the Happy Camper's column isn't printed blurry.

But apparently Haines had so little news savvy after coming over from the advertising side of the newspaper business that, as a fake newsperson, she personally wrote and published a fake story from fake marine biologist named Terry Lilley- who works for fake-everything Hanalei boatyard owner Mike Sheehan- and Lilley's fake "toxic levels of heavy metals in Hanalei Bay" report- all without checking with anyone as to what the truth is.

But if the local paper is a joke, the real joke is of course the Honolulu Star-Advertiser which has yet to say a word about the whole Iseri-Bynum brouhaha. That may be changing after Bynum's attorney Dan Hempey sent out a press release regarding Watanabe's ruling yesterday. But the joke may be about to become a shaggy dog story because the reporter assigned to the neighbor islands, Rosemary "No Dateline" Bernardo, has apparently yet to set foot on a neighbor island for a story, preferring to file her stories from the S-A's city desk.

We just love this place. Even bending over the toilet, it's endlessly entertaining.

We'll be posting whenever we can.

Eat your fiber kiddies.

BUT WAS IT BASMATI OR LOCAL-KINE STICKY?

BUT WAS IT BASMATI OR LOCAL-KINE STICKY?: Only on Kauai could we have a scandal that revolves around whether having a rice-cooker in the wrong room constitutes a zoning violation.

That's because "Rice-cooker-gate" is a direct result of what happens when a dysfunctional planning department and an ego-maniacal prosecutor collude to "bring down" a councilmember.

The matter- into which we've been delving for the past year or so- has finally spilled over into the local newspaper with an article yesterday that scratched the surface of the prosecution of Councilmember Tim Bynum by Prosecuting Attorney Shaylene Iseri-Carvalho, after the release of various documents and a back and forth between Iseri and Bynum on the matter.

Despite Iseri's denial of any ill-feeling between the two, the feud between her and Bynum goes back to their days together on the council when she and Councilmember Mel Rapozo were allies and sided with then-Chair Kaipo Asing in the infamous days when Bynum and Asing butted heads with all of them over Asing's paternalistic leadership of the council involving issues of process, staffing, introduction of measures and other issues.

Iseri was then elected prosecuting attorney in 2008.

According to a complaint form we've obtained dated 3/26/10 Bynum was alleged to have an "illegal dwelling multi family" unit at his home which is on agriculturally zoned land.

The problem is that, under "Complainer/Requester" the form notes "*wants to remain anonymous!" (the asterisk and exclamation marks are written on the form)

The complaint has two initializations, one for "inspector" and another for "assigned by" but who they actually are is not readily apparent. However what is known is that, according to Bynum's press release that followed an email from Iseri to current Council Chair Jay Furfaro sent just before last Wednesday's council meeting where Iseri appeared on a budgetary matter related to the Victim Witness program:

Apparently, sometime prior to April 2010 a trespasser entered onto my property, looked into my windows and observed a rice cooker and a refrigerator in the family room.

That someone is apparently Planning Inspector Sheilah Miyake who was CCed in a series of memos between Iseri and then Planning Director Ian Costa and has been identified by numerous reliable sources close to the investigation as being the "trespasser."

On April 7, 2010, Iseri wrote to Costa:

We received information to corroborate an anonymous complaint dated March 2.6, 2010 that was sent to the Planning Department and our office, that Councilmember Tim Bynum was renting out his house, or a portion thereof. Can you let me know if renting out a portion of his residence is ill~gal given his land status, and what ordinance/statute would he be violating by doing so? Please advise.

Costa wrote back, CCing Miyake, saying

Sorry for delay Shaylene.

The CZO really doesn't prohibit renting portions of structures. Even the issue of "lock-outs" is not addressed.

The CZO does not dictate where locks are permitted and not permitted (thank goodness!). The issue would be whether the area, in question creates a "multi-family" dwelling. What was permitted is a "single-family" dwelling based on "one kitchen". If a second kitchen (area used for the preparation of food) is present, then a violation would exist for an illegal "multi-family" dwelling unit.

I understand Sheila has been assisting and monitoring .......let me know if we can be of further assistance.

Despite Iseri's previous contention that actions on the complaint was initiated by the planning department alone, her memo indicates that now she says the complaint was sent to both planning and the prosecutor's office. She also seems to say that she and Miyake worked together to get the "rice cooker" information that was arguably obtained illegally via Miyake's trespassing.

In a comment on our November 5, 2010 report on Bynum's denial of allgations, Iseri wrote"

Mr. Parx,

Your statements are completely erroneous. I was never involved in the investigation of Tim Bynum's violations. The entire investigation was conducted by the Planning Department.

The memo seems to indicate that it was Iseri who initiated the action in conjunction with Miyake and without Director Costa's prior involvement. It also shows that Costa essentially confirms what people have been told at planning previous to this incident- that a "second kitchen" is what makes it illegal. And, as everyone is told, it is a stove that constituted what a "kitchen" was.

But Iseri wasn't to be stopped by the prior definition of a kitchen by planning. Apparently when Miyake told her she saw a "rice cooker" on the counter when she sneaked onto Bynum's property without his permission- or even asking- Iseri saw her opening and decided that, despite what planning had said ever since the CZO was established in the early 70's, now any device- presumably even a toaster or coffee maker- is a "kitchen."

The most hilarious part of all this is Iseri's continuing contention that there is no feud or even animosity between her and Bynum. Anyone who ever watched those council sessions where she butted heads with Bynum would have no doubt she despises Bynum.

So as to who made the complaint? Well we can't say for sure but for some reason former Chair Kaipo Asing has taken an unusual interest in Bynum's cases, showing up to Bynum's court dates and last week's council meeting where, if Bynum had not recused himself, sparks between Iseri and Bynum would surely have flown.

Was it Asing? Was it Iseri's ally Mel Rapozo whose animosity toward Bynum is thinly, if at all, disguised? Some seem to think the latter is the case but so far Rapozo's name hasn't come up in any documents.

The answer is apparently another question- does it really matter which of them it was? To think that there was no collusion in the matter would strain credulity.

Another question is what will happen when these people are put under oath. We understand that new Planning Director Mike Dahilig is privy to the whole story and even if the others were thinking of perjuring themselves, his testimony would surely be straightforward, the thinking being that Dahilig, a former deputy county attorney, isn't going to lie under oath for anyone.

A final question is why Iseri's office is even prosecuting the case and why she hasn't recused herself and her office by letting the state attorney general's office take it over. It would seem, given the history between Iseri and Bynum, recusal would be a no brainer.

Also, Iseri's email was stamped with a big "Confidential" across the top and the original did not contain any redactions. But under the Sunshine law she has no apparent right to say an email to the council is confidential. All emails to councilmembers are considered public documents.

We'll leave it there for today. Below are the full texts of Iseri's letter asking for Bynum's recusal last Wednesday and Bynum's "press release" that followed this weekend. It should be noted that there may be misprints in Iseri's email. First of all, names of those involved are redacted and second we had to use optical character recognition software to get it in "text" form. There may be redactions that are not noted so the sentences may seem disjointed. But you'll get the gist of it.

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Iseri's letter to Council Chair Jay Furfaro CCed to all councilmembers except Bynum.

January 19, 2011

TO: Council Chair Jay Furfaro

FR: Prosecuting Attorney Shaylene Iseri-Carvalho

RE: Conflict Notice Regarding Councilmember Timothy Bynum

This communication serves as a notice to the Council regarding a conflict of interest between Councilmember Timothy Bynum and the Office of the Prosecuting Attorney. This conflict arises from several incidents involving Councilmember Bynum and employees in our office, as well as the pending criminal case filed by our Office against Councilmember Bynum in November 2011.

1. Bynum's Inappropriate Confrontation Of Deputy Prosecuting (redacted)

On September 28, 2011, Councilmember Timothy Bynum attended a court proceeding with his son, David Bynum, at the 5th Judicial Circuit Courthouse in Lihu`e. After the hearing, Mr. Bynum stood outside the courtroom door in the public hallway and confronted Deputy Prosecuting Attorney (redacted) regarding David's case. As (redacted) exited the courtroom, Mr. Bynum stated directly to (redacted) "Do you think justice was done? This was because [expletive] Shaylene doesn't like me and is out to get me." (Redacted) was standing nearby and also witnessed the confrontation.

According to the Kaua`i County Charter section 3.07(D)

The council may, upon an affirmative vote of at least two-thirds of its entire membership, suspend without pay for not more than one month any member for disorderly or contemptuous behavior in its presence. The presiding officer or the council by a majority vote may expel any other person who is guilty of disorderly, contemptuous or improper conduct at any meeting.

While this section deals with disorderly and contemptuous conduct that occurs in the presence of the Council, it is also instructive as to the appropriate conduct expected from Councilmembers in their dealings with county employees as well as the general public.

Additionally, Section 3.18 of the Kaua`i County Charter states:

Except for the purpose of investigative inquiries under Section 3.17, the council or its members, in dealing with county employees, or with county officers who are subjected to the direction and supervision of the mayor, shall deal solely through the mayor. and neither the council nor its members shall give orders to any such employee or officer either publicly or privately. Any willful violation of the provisions of this section by a member of the council shall be sufficient grounds for an action for his removal from office.

Clearly, Councilmember Bynum did not handle this situation appropriately. If Mr. Bynum had questions or concerns about the case, the appropriate course of action would have been to communicate those to the elected Department Head, which is me, rather than confronting one of our Deputies, who, in fact, was not assigned to handling the case. This confrontation clearly illustrates the undue bias Mr. Bynum harbors toward both me personally, as well as the Office of the Prosecuting Attorney. As such, Mr. Bynum must recuse himself from any matter before the Council involving the Office of the Prosecuting Attorney.

2. Bynum's inappropriate confrontation of (redacted)

Before coming to work at the OPA (redacted) was employed by (redacted) as (redacted). She applied to the OPA as a (redacted) and was offered the job in (redacted) . After accepting the position (redacted), who had turned in her 2 week notice (redacted) was confronted by Councilmember Bynum in her office. Bynum stated that he was concerned because it was well known that he and Shaylene did not 'get along' and adamantly believed that the only reason Shaylene hired her was to 'get back at him.' These statements and allegations continued for a prolonged period, leaving (redacted) to feel uncomfortable and offended.

Councilmember Bynum's inappropriate confrontation with (redacted) regarding her employment at the OPA demonstrates Mr. Bynum's continued undue bias toward me and my office. This bias and proclivity to engage in inappropriate conduct with OPA employees further establishes the need to have Mr. Bynum precluded from participating in any matters relating to the operations of the OPA.

3. Bynum's Pending Criminal Case

On November 9, 2011, the OPA filed a criminal complaint in the District Court of the Fifth Circuit against Timothy Bynum, alleging 4 counts of violations of the Kaua`i County Code. Each Count is a misdemeanor offense, punishable by up to one year in jail and a $2,000.000 fine for each. This means that if convicted, Bynum could face up to 4 total years imprisonment and $8,000.00 in fines. There have already been two motion hearings on the case, in which Mr. Bynum has been represented by a private attorney. At each hearing, First Deputy Prosecutor Jake Delaplane represented the State and made all arguments on behalf of the State. Councilmember Bynum's criminal case clearly establishes a conflict with the OPA. He has a clear financial interest in the operations of the OPA, as he would directly benefit if the OPA's operations were negatively impacted by any action of the Council. By virtue of being a criminal defendant, he has a vested interest in ensuring that the OPA not operate at peak efficiency. In accordance with Article )0( of the Kaua`i County Charter, this financial interest clearly prohibits Bynum from participating in any matter relating to the OPA that comes before the Council. Further, because Councilmember Bynum is represented by an attorney in his criminal case, our office is prohibited from having direct contact with Bynum without his attorney present; as such contact would violate Bynum's 6th Amendment Right to Counsel and could result in dismissal of his case. Bynum's paranoid belief that the actions taken by our office were calculated personal attacks against him is without any merit and is completely baseless. The criminal case against his son was investigated by the Kaua`i Police Department and referred to our office for prosecution. The case initiated against Councilmember Bynum was investigated by the Planning Department and referred to our office for criminal prosecution. The contact with (redacted) was solely initiated by Councilmember Bynum. Her decision to apply to the OPA and our decision to hire her was purely based on (redacted) exceptional experience and qualifications.

For the above stated reasons, Councilmember Bynum has a clear conflict of interest with the Office of the Prosecuting Attorney and should not be allowed to participate in any Council proceedings involving the OPA. It is our hope that the Council will address this situation in a timely and appropriate manner. Feel free to contact me with any questions regarding this matter.

SHAYLENE ISERI-CARVALHO
PROSECUTING ATTORNEY

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Bynum's Press Release

I was elected to legislate for the county and to provide oversight of various government agencies and offices. Among these is the Office of the Prosecuting Attorney (OPA).

However, the OPA has recently filed criminal zoning violations against me and I must now defend those in Court. Since I was charged, the County Prosecutor has now cited those same charges as a basis for having me recused from all legislative oversight over her office. Out of an over abundance of caution I agreed to recuse myself from the January 19th meeting.

Likewise, I believe that it would be appropriate for the Kauai Prosecuting Attorney to be recused from prosecuting my case and allow the Attorney General's office to properly evaluate this case. I believe that this would be the best assurance of a fair proceeding and a fair process that is certain to be governed by the rule of law.

The Prosecuting Attorney states in a Jan 19 letter that her criminal prosecution is not personal, and was a routine matter “investigated by the Planning Department and referred to our office for criminal prosecution.” What I have learned is that as early as April 2010, the Prosecuting Attorney asked the Planning Director in an email for a legal basis on which to prosecute me. I am attaching a copy of emails between the Prosecuting Attorney and then-Planning Department Head Ian Costa. These e-mails establish that the Prosecuting Attorney was involved in the matter before Planning even investigated the “anonymous complaint” and that this was not just a routine Planning Department investigation.

In her email, the Prosecutor refers to an "anonymous" complaint. Apparently, sometime prior to April 2010 a trespasser entered onto my property, looked into my windows and observed a rice cooker and a refrigerator in the family room.

I hope that through the court-process I will be able to ascertain the identity of this trespasser and learn how this person was able to anonymously commence a criminal investigation - especially when I have previously been assured by the Planning Department that my house was properly permitted. I also hope to find out who, if anyone in government authorized sending someone to peer into the windows of my family home. I believe that the trespasser should be prosecuted, but thus far his or her identity appears to have been protected. The documents provided to my defense attorney so far only state that he or she "wishes to remain anonymous".

Finally, just minutes prior to the January 19, 2012 Special Council Meeting, the Prosecuting Attorney sent a letter marked confidential demanding my recusal. The letter was sent to all Council Members except for me. I was allowed to read the letter in the presence of the County Attorneys but I was not given a copy.

I am now informed that the Prosecuting Attorney intends to release to the public this letter she stamped “confidential.” The letter misrepresents conversations I had with two individuals I have long respected and have had a cordial professional relationship with for years.

The intended subject matter of the January 19 Council Meeting was a valid examination of concerns raised by a number of citizens regarding the Victim Witness program, the reported backlog of cases, finance issues and the high turnover / vacancies of Deputies. Council member Joann Yukimura instigated the request. Anyone who follows the Council knows that this type of oversight agenda item is common and a legitimate Council responsibility.

Additional information regarding the alleged zoning violation:

In 2005, at times there were 4 generations of my family (7 people total) living in my home (my father, myself and my wife, my son, my daughter, our grandson and his mother). We decided to do an addition to our home. We wanted to create a living space that was integrated. We constructed two bedrooms, a bathroom and family room. The addition also included a ramp because my elderly father was increasingly having difficulty negotiating the steps to the front door much less the stairs to the second story where the existing bedrooms were located.

When the drawings were done I took them to the County Planning department and the Building division for informal review. I was told everything was fine as long as no stove was installed. Subsequently we submitted the plans to the County for formal review and approval. The plans were approved after being circulated to and approved by various departments including the Planning department.

We hired a contractor and built according to the plans. The County sent inspectors during construction including a final inspection after which we were issued a certificate of occupancy. The addition is exactly as it was when “final inspection” occurred; nothing has been added or deleted. No installed cooking facilities have ever existed in the addition. Our home has one kitchen; every person that has ever resided in our home has used the one kitchen.