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.

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.

IT'S A DIRTY JOB BUT NOBODY'S GOT TO DO IT

IT'S A DIRTY JOB BUT NOBODY'S GOT TO DO IT: Sometime it's an occasion for a straight rant, usually after an unusually pathetic, yet successful injustice has been perpetrated. But sometimes things are so enraging and we find it so hard to fit into our new and improved engagingly rabid outfit that we resort to a simple news report.

So after receiving word last week that the Office of Information Practices (OIP) decided to issue an "informal opinion" saying that Former Chair Kaipo Asing conspired with former County Clerk Peter Nakamura to go behind closed doors under false pretenses three years ago, in order to contain our rage we went with the just the facts, ma’am.

We were just going to leave it at that until yesterday when Joan Conrow carefully inserted the opinion in our craw speaking about how

former County Council Chair Kaipo Asing violated the sunshine law — three years ago. Yup, that's how long it took the OIP to rule on a citizen complaint. And even then, you still would have to go to court to void any action that was taken during an improperly noticed meeting, adding many more months to the process. It seems government transparency, absent expediency, doesn't really count for much.

ALL RIGHT, ALL RIGHT, ALL RIGHT. We can't get away with anything around here.

We did intentionally leave out the end of the opinion because to delve into what it truly meant would have generated enough ear-steam to power a small village.

It repeated one of the most egregious half truths in the annals of open governance. Under the title "Right to Bring Suit to Enforce Sunshine Law and to Void Board Action" it said:

Any person may file a lawsuit to require compliance with or to prevent a violation of the Sunshine Law or to determine the applicability of the Sunshine Law to discussions or decisions of a government board. The court may order payment of reasonable attorney fees and costs to the prevailing party in such a lawsuit.

This bit of butt-derived garbage directly conflicts with the state Sunshine Law which, in Section §92-12 "Enforcement" says:

(a) The attorney general and the prosecuting attorney shall enforce this part.
(b) The circuit courts of the State shall have jurisdiction to enforce the provisions of this part by injunction or other appropriate remedy.

Pretty clear, eh? Yet not one of the hundreds of of formal and informal opinions OIP has issued since 1989- especially the dozens that essentially called the actions of various boards unlawful- has been enforced by either the attorney general or any of the county prosecuting attorneys.

But how can that be- isn't the law clear as to their responsibility?

You'd think so- but noooooo.

Although it's been a while since the last time any attorney general has responded to an inquiry- and we don't believe there is a written opinion on the subject- when we did get an answer way back when, we were referred to the rest of the "Enforcement" section. It says:

(c) Any person may commence a suit in the circuit court of the circuit in which a prohibited act occurs for the purpose of requiring compliance with or preventing violations of this part or to determine the applicability of this part to discussions or decisions of the public body.

Though the reasoning is way too tortured for the way understand logic to work the gist of the AG's contention is that, because "(a)ny person may commence a suit in the circuit court of the circuit in which a prohibited act occurs for the purpose of requiring compliance," the AG will not do a damn thing and rather, will graciously allow one of those "any persons" do the dirty work.

The problem with that is two-fold. First of all the law doesn't say the AG may enforce this part it says (s)he "shall" enforce it.

For the second problem the first thing one must do is take a look at the next part of the Sunshine Law- §92-13 Penalties.

It says:

Any person who wilfully (sic) violates any provisions of this part shall be guilty of a misdemeanor, and upon conviction, may be summarily removed from the board unless otherwise provided by law.

Misdemeanors in the state of Hawai`i are punishable by not more than $1000 fine, a year in jail or both.

Yet §92-12(c) refers to the lawsuit a person files being "for the purpose of requiring compliance with or preventing violations of this part or to determine the applicability of this part to discussions or decisions of the public body. "

The problem that we're talking abut meetings where the board is about to go into what is essentially an unlawful secret meeting. So how would you stop them? With an injunction? Well, a certain conundrum is presented by the rest of §92-12. That bit of unreality says:

(d) The proceedings for review shall not stay the enforcement of any agency decisions; but the reviewing court may order a stay if the following criteria have been met:
(1) There is likelihood that the party bringing the action will prevail on the merits;
(2) Irreparable damage will result if a stay is not ordered;
(3) No irreparable damage to the public will result from the stay order; and
(4) Public interest will be served by the stay order.

As we said, it doesn't matter what the heck the likelihood is of a party prevailing, any irreparable damage or some kind of public interest because the deed will have already been done by the time a "person" files a suit... unless you have one of those Twilight Zone stop watches that can put the board meeting in suspended animation while you track down a lawyer who can track down a judge who can and will rush over to interrogate the board and issue an injunction.

Of course this is all practically moot these days because of a case called "OIP vs County of Kaua`i" which- leaving out all the juicy stuff involving the infamous ES-177, Asing, current Councilperson and former star of the book KPD Blue (see left rail) Mel Rapozo, former Finance Director and current Grove Farm Veep and Koloa Camp evictor Mike Tressler, the Kaua`i Board of Ethics, former Police Chief KC Lum and a cast of seemingly thousands- essentially defanged OIP and turned what used to be known as the best Sunshine Law in the country into a parody of open meetings laws.

Because all a person can do is file a civil suit and seek to overturn the actions. Even if this opinion wasn't three years old it doesn't seem to mean anything as far as the Penalty section is concerned.

Although in this case the opinion appears to say that the action was "willful"- especially since Asing and Nakamura refused to even respond to OIP inquiries- who exactly is there from whom to seek the criminal penalties... which, if we understand the American jurisprudence system correctly, is what is supposed to deter people from doing it again in the future, not encourage the action over and over by essentially saying the law is a joke.

Ah, crap- now we're thoroughly pissed off. Shoulda stuck with the news.

CONTROL OF ALT- DO NOT DELETE

CONTROL OF ALT- DO NOT DELETE: Yesterday’s “alternative reality” regarding “lap dancer” Monica Alves’ conviction and incarceration for the murder of Kimberly Washington Cohen elicited a few emails ranging in response from “ah, I knew it all the time” all the way to “you’re nuts- and irresponsible to boot Parx”.

But the one from KPD Blue author Anthony Sommer- who covered the trial from start to finish as the then Honolulu Star Bulletin Kaua`i Bureau Chief- needs to be put on the record.

Tony wrote:

As you know, you passed this information on to me about a month ago and, while I'm very dubious, anything is possible (if not probable) on Kauai and if the claim is true it would make a good article or addition to the book.

I covered the murder trial of Monica Alves and Mitch Peralto from start to finish.

Never once did she claim she was in police custody at the time of the abduction or at the time of Kimberly Washington's subsequent (she was alive when they put her in the car, according to the witnesses) death by suffocation.

That would have been the perfect alibi and easy to prove because the KPD does keep records (getting to see them is another matter).

But it never was raised.

She, of course, had a right to refuse to testify (and she didn't) but her attorney could have called police officers who arrested her and released her and produced records of her arrest and release.

In fact, the prosecutor has a duty to provide the defense attorney that information even if it isn't requested. I've known the prosecutor in that case for about 25 years (he used to practice in Phoenix before he moved to Kauai) and he is a very ethical fellow. He certainly knew he was required to turn over any evidence that would help the defense.

Never happened. The issue of Alves being in custody at the time simply was not raised.

Nor has it been raised on appeal (seems like a good basis for an "ineffective assistance of counsel" argument if it is true).

I gave you permission to pass along my email address to whoever Rob is. Even if he doesn't have it, I live in Phoenix (as is noted in the book) and I have a listed phone number (always have had).

If Rob can come up with some records (booking slips are public record and KPD actually produces them on request) or the statements or even names of KPD officers who arrested her, there may be something worth looking into here.

But, if not, I don't give any credibility to an unsubstantiated claim from an anonymous source.

The normal ebb and flow of the political tides on Kauai are bizarre enough without having to play "What if?"

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Honolulu Advertiser government correspondent Derrick DePledge had an interesting take today on the “announcement”- or lack threrof- that OIP Director Paul Tsukiyama has left his post.

But Derrick had more to say about the New World Order and Tsukiyama’s resignation.

He wrote:

Not only do we have local bloggers who hate the Mainstream Media, now national bloggers, who hate the Mainstream Media even more deeply, are branching out into our territory.

The Post & Email, a Connecticut-based Web site which describes itself as “a new media initiative of American patriots,” was apparently the first to report that Paul Tsukiyama has left as director of the state Office of Information Practices.

Really? We couldn’t help but comment on that saying:

Actually in a roundabout way Mike Levine of The Garden Island first reported it last week by mentioning the "acting director "Kathy Takase" in an article about our infamous ES-177. I've been putting off reporting on it myself being busy with another more local topic this week.

And I'm not anti MSM- just extremely critical of the lazy lack of enterprise journalism and "he said she said" reporting without good followup,,, present company excluded of course Derrick

Tsukiyama’s departure could very well have something to do with the Hawai`i Supreme court decision regarding the case of County of Kaua`i vs. OIP where the county sued the OIP over an order to release minutes of an executive session a few years back.

The OIP claimed that the regulatory scheme set out by the legislature- and stated in the legislative committee report on the UIPA- says that the OIP has final say over release of records specifically to avoid having agencies suing each other all the time.

The 5th circuit found that the releasable parts were "irretrievably intertwined" with the attorney client privileged part and therefore ruled against OIP and the ICA and SC agreed without much comment.

This leaves the OIP even more of a “toothless tiger” than ever- their “opinions” on record requests under the UIPA (HRS 92F) as well as sunshine law (HRS 92 Sect 1) issues are now subject to suits by the involved agencies in circuit court and, according to the Levine article, Takase said the OIP will therefore not issue any more formal opinions and presumably serve only an advisory role in the future.

Tsukiyama fought hard through staff attorney Jennifer Z. Brooks to protect our sunshine and open records laws and would have led what is now a useless entity if he stayed on. I wouldn’t head an agency like that either.

Only the legislature can change this but I don’t see them addressing that what with all those important issues like denying civil rights and slashing social services and education budgets while making sure tax credits and other corporate welfare programs remain in place.

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And finally Joan Conrow attended the planning commission meeting Tuesday where they inexplicably refused to enforce the permit condition that requires that the burial council approve a burial plan in able for Joe Brescia’s to build his already built Naue monstrosity and has good write-ups in both her blog and an article in The Hawaii Independent.

Although we’re loathe to enter the fray in the comment column today we just had to say:

I’ve never seem the planning commission revoke a permit because the one of the conditions weren’t met, which is supposed to be what they are there for- to make and enforce conditions. Instead they extend or ignore them. Look at Coco Palms.

Remember the 30 years it took to get the Safeway bridge- and then the county “settled” so they could build their precious “coastal” bike path through the Safeway/Foodland parking lot and back across the busiest intersection on the island.

Where were all you “no bike path on he beach” protesters then? Maybe if you had woken up to what a sham the sleight-of-hand segmented EA process was when these other travesties were in their infancy instead of selfishly supporting and praising your dog path it might not have come to this- but I digress.

Brescia did not meet the condition that he get approval from the burial council, whatever the law is currently. flawed or not. That’s why Watanabe said “proceed at your own risk”. That’s why the petition was even able to be heard by the commission. The matter was entirely discretionary on the part of the commission and if they can’t enforce “reasonable” conditions- especially one as basic as burial council approval- then why have one. Ian and Imai could just rubber stamp them without the commission for all the enforcement they do.

If you wear the kings uniform you carry the king’s sword. Jimmy has discovered that. If they were really upset over the decision they were “forced” into they would fire Ian, which is their kuleana according to the charter. Instead they are King Bernard’s lackeys and do his bidding to keep the prestige of their appointments... truly a disgusting way to “serve”.

(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.

(PNN) COUNCIL TO SPEND $50,000 TO DEFEND SUEOKA EEOC CHARGE

Former long time Deputy County Attorney Margaret Sueoka has filed an EEOC complaint that has resulted in a case against the county that is apparently serious enough that the county attorney’s office is asking the council for 50,000 to defend the charge.

The federal Equal Employment Opportunity Commission (EEOC) has substantiated the claim to the extent that they have filed a “charge” and given the case a number (486-2009-00268) but any detailed information is “not available to anyone except to parties” of the case according to an EEOC intake representative and, at least preliminarily, the state according to Amy Esaki current First Deputy CA for the county.

Esaki said after briefly checking with the state Office of Information Practices (OIP) the county’s position is that any further information is, at least for now, protected at the state level by HRS section 92F-14, claiming that the privacy issues involved outweigh the public interest in releasing the charges made by Sueoka.

PNN was unable to contact Sueoka and there is no number listed for her name.

Sueoka was apparently fired sometime during the change of administration and resultant change in county attorneys presumably by either Esaki, who was interim CA, or by current CA Al Castillo. Sueoka was sworn in on December 1 with the rest of the deputy CA’s.

Esaki said she couldn’t comment or provide any details surrounding the firing. even the fact that Sueoka was terminated, although the EEOC charge apparently verifies that.

It is unknown what the basis of the charge is although usually the EEOC deals with cases of discrimination against a “protected class” such as in race, gender or age bias.

Though no information on the specifics exist, some political insiders have speculated that Sueoka was fired due to the various controversial opinions she wrote, advice she gave and cases she pursued when she worked for former CA’s Lani Nakazawa and Matthew Pyun.

Nakazawa and Pyun initiated a widely criticized and unprecedented era of secrecy in the CA’s office as PNN has detailed in past reports, claiming that the CA’s only function was to serve the administration and council and that all official opinions rendered were the sole possession of those to whom they were issued and that only those so advised could release them to the public.

Previously, although county law is silent on the matter, most CA written opinions were considered public record, as state law requires of attorneys general’s opinions.

It has been revealed in various public session of boards and commissions including those of the council, that Sueoka, along with Nakazawa, had written the opinion that bans public release by the CA’s office and removed any public component to the CA office’s duties.

In addition, it has been revealed at meetings that she penned many of the advisory opinions that seemed to fly in the face of exiting laws and regulations. But since they were secret, no one could challenge them on the particulars.

Sueoka was instrumental in the apparent railroading of former police chief KC Lum by the Board of Ethics (BOE)- at the council and mayor’s behest- serving as the long time legal advisor of the beleaguered BOE. She also apparently wrote the still-secret opinion that allowed violations of the prohibitions in section 20.02(D) of the county charter that PNN’s investigatory three part series detailed this and last week.

Based on some of Castillo’s words and actions at various meetings over the past month or so he has been in office it is thought – or at least hoped- by many county government observers that he will be reversing many of Sueoka’s, Pyun’s and Nakazawa’s opinions.

Castillo has been observed with shocked expressions, eye rolling and head shaking upon observing the consequences of the apparent misconceptions of law, as stated by members of the various bodies (including the county council and BOE), based on Sueoka’s legal advice.

He has also given verbal indications that a potential change in policy is in the works at some of those meetings.

Both Esaki and Castillo are new to the CA’s office, Castillo coming from private practice after a stint in the prosecutor’s office in the 90’s and Esaki coming from council services where she served as a legal analyst for many years.

Both are considered to be “straight shooters” by various sources who have worked with them over the years although it cannot be verified if any of this was in any way behind the firing of Sueoka.

According to sources both are primed to clean up the CA’s office and repair its severely tarnished reputation, built through the years by issuing opinions that served the reported paternalistic and secretive efforts of Kaua`i County Council Chair Kaipo Asing and the administration of former Mayor Bryan Baptiste.

The CA’s office has also been under fire for the inordinate number of cases referred to “special counsel”- a small cabal of outside Honolulu attorneys who seem to most political observers and government watchdogs almost incapable of winning a case

That has cost the county millions in attorneys’ fees and more in settlements, much to councilmembers’ vocal chagrin.

Though the particulars of the Sueoka case are confidential to non-parties according to the EEOC itself, the public interest vs. private concerns may be less inviolable if it can be shown that there is a great public interest in releasing the details of the case.

Esaki said she presented the specific case to the OIP- the body that administrates the Uniform Information Practices Act or UIPA (HRS 92F) and the Sunshine Law (HRS 92 Section 1)- but attorney Linden Joesting of OIP, who spoke to Esaki, said that her counsel was just “advice over the phone” based on “preliminary information” and was not to be taken as a formal ruling as to whether the public interest in this case might outweigh Sueoka’s privacy interest of.

Joesting said she had not seen anything in writing but said that if we made a formal written request for the record of the case from the county and were denied she would be able to make, if not a formal ruling at least more than a preliminary one.

PNN will be filing that request tomorrow with the CA’s office and has been promised the denial will be expedited.

Joesting also indicated that it all might depend on EEOC rules on releasing the case file about which she didn’t have enough information to determine if there were strict or situational-dependent prohibitions against public release of the documents regarding the case.

This is not the first recent case of an EEOC charge. As PNN reported in December Kaua`i Bus driver Kathleen M. Ah Quin has filed suit against the Kaua`i Department of Transportation- specifically Executive on Transportation Janine Rapozo- for gender discrimination after the county refused to answer or even, according to her suit, investigate an EEOC complaint. The council also appropriated $50,000 at the time to defend that case.

Rapozo, a holdover from the Baptiste administration, is the wife of now Parks and Recreation Department head Lenny Rapozo who served as current Mayor Bernard Carvalho’s campaign manager in the fall 2008 campaign for mayor.

PAGING DR. HEIMLICH

PAGING DR. HEIMLICH: It’s not unusual for besieged pols to pee on your foot and tell you it’s raining while asking us if we’re going to believe them or our own lyin’ eyes..

But for a classic Kaua`i-style “that’s my story and I’m stickin’ to it” take on County Council Chair Kaipo Asing’s and his henchman county clerk Peter Nakamura’s obstinate fight for opaque, closed governance and lack of access to records it took the administration to whip up a gourmet feast of ridiculous, roll-on-the-floor-funny fiction in announcing that they will post the minutes to council meetings on-line at the county’s web site.

Their press release announcing the posting now that dissident Councilmembers Lani Kawahara and Tim Bynum have already done it at their kauaiinfo.org web site, answers our oft asked question “what are we- a bunch of freakin’ idiots” with a resounding “if you believe this, yes”.

The bullsh-t we’re asked to swallow starts at the top where, despite well publicized quotes from administration IT specialist Erik Knutzen that he has been ready for more than a year to post them in an instant and had been prevented by Nakamura and Asing from doing so,

after more than a year of planning the County Council web site will include Council meeting minutes, along with memoranda of actions taken at Council meetings (also called “Recap Memos”)...

Putting meeting minutes and Recap Memos on the Council website is part of a county-wide effort to make more and more public information available online.

The truth is the only year-long effort was to keep them off-line as Bynum and Kawahara have documented and detailed at their kauaiinfo.org web site where they’ve also been posting minutes going back to February as well as other public documents since they posted it in early May.

On to the next mouthful of utter crap.

The implementation of posting Council minutes was delayed by several factors, including the untimely passing of the late Mayor Bryan Baptiste, the complex subsequent transition in county leadership, the special 2008 Mayoral election, the relocation of the Office of the County Clerk - Elections Division, and the seating of a new Council.

As we said Knutzen said, the dynamic duo had been stymied only by Asing’s and Nakamura’s refusal to take two seconds to okay the posting, not by seemingly unrelated minutia.

The fact is that the administration has been posting board and commission meeting minutes routinely for quite some time now and has offered to do so for the council. All these very apparently irrelevant excuses notwithstanding.

One thing that struck us was the availability of what is called “recap memos”- not the fact that they are now going to be available but the fact that such a document exists.

We and others have been asking for years for a way to find out what official actions the council took at meetings as soon as they are over and have always been told there was no such document much less offered one.

It’s always been a supreme hassle to find out what happened at council meetings with the only way to know being to watch the meeting and divine the results from examining future agendas.

No one has ever been offered any such “recap memos” that, we are told, are routinely distributed to the administration.

This press release comes, of course, on the same day as the agenda was released for the July 8 meeting, the first of two alternative dates that a slew of equally if not more important inequities and dictatorial edicts from Chair Asing were supposed to be placed on the agenda for discussion.

It’s not on the July 8 agenda, leaving the showdown scheduled for the July 22 meeting if Asing follows the vote of the council to discuss it on one of the two dates.

One head scratchier is how- and why- Asing and Nakamura had to go to the administration and get poor County Public Information Officer Mary Daubert to do their lying for them.

It indicates that Friend of the Minotaur Mayor Bernard Carvalho is now acting as a cog in Asing’s plantation-era style paternalism in support of the cabal of insiders that run the county through the revolving door personnel polices that have been in effect for decades.

It’s no revelation that they are feeling challenged and threatened by Bynum and Kawahara’s quest for transparency, open governance and democratic principles, especially in light of the current FBI investigation of the county which is still on-going according to recent bureau interviewees.

It is also telling that the “announcement” comes not just from Asing but Vice Chair Jay Furfaro who ran against Asing for the chair last December- with Bynum’s and Kawahara’s support- in a challenge to Asing’s iron-fisted reign.

Furfaro objected to our characterization of the “180” he did between the two meetings earlier this year. During the first, Bynum was blocked from placing resolutions changing the council rules on the agenda and the in next Kawahara changed tactics and managed to get the item placed on a “future” agenda.

Furfaro managed to get his fingerprints on the “day late and dollar short”, minute-posting concession in an self serving and blatant attempt to publicly associate himself with the popular dissidents without actually doing anything about the myriad of other documents that are denied to the public via on-line posting.

Things like the actual communications, resolutions, bills, committee reports and other documentation that accompanies each agenda item- documents which are already available at kauaiinfo.org- remain available only in paper form and require a trip to Lihu`e to obtain.

In addition to Knutzen's document posting program he has said that the administration is also about to start posting and even doing live streaming of the meetings of the planning and police commissions with a feature allowing direct access to “clips” sorted by agenda item.

But despite Knutzen’s offer to do the same for council meetings there’s no announcement here of any plans to allow that to happen when again all that would take is permission from Nakamura and Asing to do so.

It should be pointed out that, for what it’s worth, the county charter says that council and administration are separate organizational entities and, according to the Sunshine Law and UIPA, each are responsible for maintaining their own “records”. But in practice both share the county web site and the contract to facilitate the televising of the various meetings and the “mayor’s show”.

So are we “a bunch of freakin’ idiots”? We sure are if we look at this as some kind of wonderful breakthrough. It’s like ordering and paying for a 12 course meal and getting only a glass of water.

The news here is not that the minutes and recap will be posted- they’re already available on-line no thanks to Asing and Nakamura.

The real news is the council chair’s- not to mention the administration’s- refusal to make all public record available on-line and in a timely manner.

The time to celebrate will only be when all legally-public documents relating to the council, boards, commissions and the administration and it’s departments- itself including all public testimony and correspondence- are available on-line.

Until then the availability of anything less is just another denial of records that apparently violates the Uniform Information Practices Act which, the OIP has recently indicated, mandates widespread distribution of covered documents in electronic form.

The only thing transparent here is the transparently vapid spin claiming that any progress is being made.

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Update: In the ES-177 County vs. OIP case we detailed this week, according to reporter Michael Levine of the local newspaper the Hawaii Supreme Court accepted “OIP’s petition for a writ of certiorari on June 23, according to a clerk, and on Wednesday scheduled oral arguments for the morning of Aug. 10.”

DOESN’T PASS THE SNIFF TEST

DOESN’T PASS THE SNIFF TEST: Though it took some prodding from PNN to get it posted on-line, an editorial tripping over itself to find a silver lining in KPD Chief Darryl’s Perry’s slap-in-the-face-of-Kaua`i application to become Honolulu’s Police chief was finally posted yesterday.

This Sunday’s editorial in the local newspaper is more striking for what it leaves out than what it says. Although we suspect it was written or at least informed by “somebody please love me” oft-fired, piss-poor reporter Paul Curtis we usually get a response of “it’s a collaborative effort” when we’ve asked in the past about who the editorial scribes are since the paper recently established a once a week editorial voice.

If Curtis’ involvement is not the case then the excuse that the dynamic duo- journalists par excellence Editor Nathan Eagle and Assistant Editor Michael Levine- are newbies and don’t know the history could explain the revisionist history contained, although we’re pretty sure they have read the book “KPD Blue” and many of the reminders of the real history of the department in the last 10 years, as detailed in this space over the past year and a half.

But there really is no excuse for at least three passages that ignore reality and rather provide false premises for sycophantic lapdog hand-licking opinions.

The editorial somehow schizophrenically both criticizes and admonishes Perry for leaving unfinished business after he and his promoters screwed over two chiefs and caused no small amount of pilikila on the force and in the community over the years in revenge for his being passed over for the job twice.

The first paragraph that stands out says:

We are particularly impressed with his community outreach efforts and ability to connect with the people here. From writing a column for us answering your questions to reading at local elementary schools and generally making himself available at any time, Perry has gone above and beyond the call of duty.

The problem is that this “community outreach” has been a top-down, tin-ear attempt to take the community out of the equation in tossing aside the “community policing” programs instituted under Chief George Freitas- whose community policing successes in Richmond CA are noted nationwide- and continued under the short reign of Chief KC Lum.

Instead Perry promoted an “us vs. them” attitude on the force as he sought to bring a big-city style arms buildup to the tiny Kaua`i. He then refused to directly respond community criticism over that and noted incidents of police abuse of power and even brutality- which he pooh-poohed, indeed attacking those who would question his new techniques even twisting arms at the newspaper which fired regular columnist Juan Wilson over such criticisms.

The next paragraph is particularly galling to many on the force and their families and friends.

We continually hear from officers and people on the street how much better the department, historically known for its unstable footing, has been running since his arrival.

We’ll bet you have- since they are the only ones who will dare speak up on the subject. The fact is that many officers we’ve spoken to- especially who were caught on “the other side” in the 10 year battle to secure the job for Perry- tell us they found out early that any criticism or even suggestions would be met with retaliation.

Dissent has largely moved underground and certainly no one is going to tell the newspaper.

Even the “bottom up departmental review”- a review that would allow officers to freely and openly give input on structure, operations and policing methods - that was discussed for years by the police commission has been killed, giving officers who remain unsatisfied with the direction of the department marching orders to shut up and stew in their own juices.

The next two paragraphs are chock-full-o’ contradictions and misinformation

The tumultuous process of selecting a new chief is something we'd be OK not having to endure again for another couple decades if possible.

Then why the pass on leaving us in the lurch only a couple of years after battling for the job, a process we detailed in our editorial on the subject a couple of weeks ago.

Remember how messy things got last time around? Our county is still fighting the Office of Information Practices in the Hawai`i Supreme Court on a matter relating to the dismissal of former Police Chief K.C. Lum.

What a load. Although it came out of a request for minutes of a council meeting regarding a council investigation of the department, the case is really about the county’s ability to tell the OIP to shove it when OIP ruled the minutes of an executive session should be made public.

Calling it “a matter relating to the dismissal of former Police Chief K.C. Lum” and. among other things disregarding the race discrimination suit by Lum in the “Hop Sing” fiasco- which is still alive in federal court- is to shift the blame for the debacle from a politically motivated purge by the good old boys to some sort of internal dispute caused by Lum.

The next sentence it the topper:

It's not about breaking commitments to serve Kaua`i. How could he have foreseen that this opportunity would open up? And why should he be asked to turn a blind eye?

How could he have foreseen it? Don’t you guys read the papers? Honolulu Chief Boisse Correa’s five year contract is expiring and he has been hobbled with a bad back which caused him to take a long leave of absence.

Correa hasn’t had a shot in hell of continuing beyond his current tenure and that was a forgone conclusion way before Perry ever set foot at the already-falling-apart brand new police station.

But what’s most distressing is that, despite the “new blood” news department the mysterious editorial board- which we have no doubt includes old-boy-come-lately Publisher Mark Lewis- is exercising the right to distort history and ignore reality just because they’re the only ones on the island who still buys ink by the barrel.

The editorial is a blot on the once revered, then reviled, now revived local newspaper. With this revisionist history and the rehiring of the oft-fired Paul Curtis, it does not bode well for the future of islands’ “newspaper of record”.

A DAY AT THE RACES

A DAY AT THE RACES: Tomorrow is the first full council meeting since the June 3 dust up and it’s anyone’s guess how the melodramas will play out.

(Cue organ music) When we last left our intrepid heroes Tim Bynum and Lani Kawahara they had been thwarted by the three evil geniuses, Drs. Asing, Nakamura and Castillo, in their attempt to bring sunshine and democracy to the Separate Kingdom.

Make no mistake about it. If Councilpersons Tim Bynum efforts to open the council’s agenda processes and bring sunshine to pubic documents – as PNN has described throughout last week or so- are to have fruitful results they must continue to challenge Chair Kaipo Asing’s despotism

The ball is in the dissidents’ court. The status quo is what it always was. If past is prologue Office Of Information Practices (OIP) and even court challenges could take months or even years during which time councilmembers’ measures will not find their way onto the council agenda and documents will linger in the darkest recesses of the Historic county Building.

On Kaua`i stonewalling silence and “doing what’s wrong as long as they can” has a long tradition. And no one expects that to suddenly change.

While we don’t know what (or even if) Bynum will do tomorrow, we do know what needs to happen for this challenge to entrenched power to succeed.

There are two different avenues that Bynum- and in fact members of the public- can take to force a discussion of his rule change to clarify that all councilmembers have the right, under council rules, to place bills, resolutions and other matters on the council’s agenda.

The first is to repeat the attempt he made at the June 3 to amend the agenda when the subject of “the agenda” comes up at the beginning of the meeting.

Last time Bynum was unprepared for the legal mumbo jumbo that county Attorney Al Castillo used to block the introduction, discussion and vote upon whether or not to add the matter to the agenda.

HRS §92-7(a) says that “(t)he board shall give written public notice of any.. meeting when anticipated in advance... at least six calendar days before the meeting.

But HRS §92-7(d) anticipates there being situations where the agenda may be amended at the time of the meeting “by adding items thereto with.. a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons”.

Castillo and Asing focused on the “reasonably major importance and action thereon by the board will affect a significant number of persons” section. They argued that even just the discussion of any matter to be added the council would violate the sunshine law.

Though Bynum was armed with an OIP opinion saying the matter could be added to agenda no one anticipated that Castillo and Asing would try to block even the introduction, discussion and vote to add it to the agenda.

By anticipating additions being made and making it conditional, the Sunshine Law, like all others, anticipates that the introduction, discussion and decision is to be made through the normal due deliberatory processes of the council.

If Castillo’s argument- that introduction, deliberation and decision-making would itself violate the Sunshine Law- were valid, nothing could ever be added to the agenda at a meeting whether it meets the two conditions or not because the due deliberation and decision by the council could never take place.

It’s a basic tenet of American jurisprudence that if a law anticipates something occurring, it must be interpreted so as to make that occurrence possible. In large part the case law goes back about as far as one can go, all the way to 1803’s US Supreme Court “Marbury vs. Madison” decision which basically says you can’t have administrative policies that invalidate the law.

It clearly cannot be a Sunshine Law violation to introduce, discuss and vote upon adding a matter to the agenda since the law itself describes the process to do so and the three thresholds the council must meet in order to add something (the third being the 2/3 vote).

The second “opening” for Bynum and even the public to speak on the matter is the presence on the agenda of the approval of the minutes of the June 3 meeting.

As PNN reported last week the OIP has opened up an investigation to determine whether the minutes of the executive session held at the meeting should be made public.

HRS §92-9(b) states that “minutes of executive meetings may be withheld (only) so long as their publication would defeat the lawful purpose of the executive meeting, but no longer”.

The purported lawful purpose Castillo stated was that the matter was not on that meeting’s agenda. But that day’s meeting is over so the condition can no longer be defeated and the council can- and should- vote to release those minutes or at least have a discussion and hold a vote on whether to do so.

We can’t say what Bynum will do tomorrow. Nor can we say if any members of the public will step forward and make these points when these matter come up on the agenda. But if Bynum doesn’t act perhaps the people will.

Members of the public have two, three-minute segments to speak on each agenda item and if they want to speak on either of these they had better be there before 9 a.m. since the first matter on the agenda after the roll call is “approval of the agenda” which is a condition precedent to holding the meeting.

That’s followed by the “approval of the minutes” although minutes approval is something that can be “moved to the end of the agenda”- a tool often used by Asing to delay discussion of controversial matters until interested people are either out of the room or get tired of waiting and go home.

(Cue organ music) Will our heroes accept the status quo and simply lick their wounds? Or will Bynum continue to strike while the iron is hot and the issue is fresh and clear in the minds of the outraged Kaua`i citizenry?

Will the evil genius’ once again thwart our dynamic duo? Or will Bynum and Kawahara’s clear thinking, honesty and penchant for democracy and rule of law, rule the day?

Will Dickie Chang and Derek Kawakami do the bidding of their new masters and establish themselves as political climbers and the latest members of the good ol’ boys club? Or will they support the torch and pitchfork bearing masses and join the side of goodness and sunshine... or will they even just be forced to vote on the matter and show their hand?

Join us again tomorrow in the Minotaur’s Labyrinth for another episode of... “All My Cronies”.