(PNN) SPECIAL COMMITTEE NIXES COUNTY MANAGER PROPOSAL; SAYS NO TO NOV. BALLOT PLACEMENT

SPECIAL COMMITTEE NIXES COUNTY MANAGER PROPOSAL; SAYS NO TO NOV. BALLOT PLACEMENT

(PNN) -- The proposal for a county manager form of government on Kaua`i will not appear on the ballot this November if the Charter Review Commission follows the recommendation of its Special Committee on County Governance (SCCG).

According to the recommendation section of the SCCG’s Report to the Kauai County Charter Review Commission:

The Special Committee on County Governance, by unanimous vote, recommends against placing a measure for a Council-Manager form of government on the 2010 General Election ballot. The committee, accordingly, recommends the adoption of this report, and further recommends that the issue of a Council-Manager form of government be postponed indefinitely.

After five meetings and three public sessions held across the island, Chair Patrick Stack and members Joel Guy and Jan TenBruggencate ultimately decided that, in keeping with their charge according to the county charter itself, they could not place the matter before the voters despite what they called “frequent, long-term and. well-reasoned arguments in its favor by a small group of committed citizens”

According to the report:

The Special Committee was constrained by the authority given the Charter Review Commission under the existing Kaua`i County Charter. Section 24-03 of the County Charter contains this authority: "In the event the commission deems changes are necessary or desirable, the commission may propose amendments to the existing charter or draft a new charter which shall be submitted to the county clerk." (Emphasis added) This is a key point. The Charter Review Commission is not authorized, as many public testifiers suggested, to place an item on the ballot simply to allow voters to express their choice.

The committee found the key phrase to be “necessary or desirable” after they compiled an actual 78 page Proposal for a County Manager Form of Government based on a submission from a group called “Citizens Ad Hoc Committee for a County Manager System”.

The committee did note that, although the charter commission has to find the changes necessary or desirable there are two other ways to get charter amendments on the ballot- via citizen petition or via county council resolution, neither of which have the restrictions the commission does.

The proposal document was complied by the committee by going through the county charter, page by page and word by word, replacing the word “mayor” with “county manager” where applicable, giving instructions for designating the chair of the county council as the “mayor”, listing methodologies for the appointment of the manager and listing qualifications for the job as well other changes.
The document has not yet been cleared by the county attorney’s and attorney general’s offices according to the report which also notes that none of the committee members are attorneys. The report does not say whether it be submitted to those offices before it comes before the full charter commission for a vote.

Despite questions raised as to whether the meetings, and especially the document produced- were covered by the sunshine law, according to one of the members of the Citizens Ad Hoc Committee, Glenn Mickens, the Office of Information Practices told him that the committee’s activites were exempt from the open meeting law under section 92 2.5 as long as the full commission dealt with the report according to the sunshine law provisions.

The report describes the changes that were made in the proposal saying

(t)he draft charter proposed a county governance system in which citizens would elect six members of a County Council, and would separately elect a Mayor. The Mayor would sit as chair of the County Council and would have limited administrative authority.

The Mayor and County Council would together select a professional County Manager. The County Manager under this system would be charged with the administration of county affairs, including the appointment of department heads unless otherwise provided for in the Charter.

But while the committee noted that the majority of those that they heard from were opposed to putting the measure on the ballot, the report say that:

(w)e note that in passing, but counting votes is not the Special Committee's assignment.

An important measure is whether the proposed system passes legal muster, which requires an opinion. from the County Attorney and/or the state Attorney General. We have not received a legal opinion on this specific proposal. State law requires a "county executive, administrative and legislative structure."

That structure is required in two different parts of the law of our state: Article VIll of the state constitution and Hawaii Revised Statutes Section 46. But making legal determination is not our assignment.

The Charter Review Commission's authority and thus the Special Committee's authority under the County Charter is to "study and review the operation of the county" and to recommend changes that it feels are "necessary or desirable." Setting aside our own judgment is not within our authority. If the members of this Special Committee were to move forward an issue the committee members do not feel is necessary or desirable, simply to give voters a chance to make a selection, we would violate our oaths to defend the County Charter.

Our assignment is to determine, after our own honest, extensive and considered review, whether the proposed form of government is a better form of government for this county at this time, or if it represents a necessary change. If we believe that it is, then we should recommend putting it on the ballot. If not, we should not.

The “findings” section of the report weighs the current mayor-council and county manager systems and lists the benefits and limitations of both concluding by saying that:

(t)he Special Committee finds no fundamental flaws with the Council-Manager form of government, but does not find that it inherently superior to Kauai’s current form of government, and does not find that a change from the current system is necessary or desirable for the effective functioning of government.

The full finding section reads as follows:

The Special Committee on County Governance finds that a Council-Manager form of government is a viable means of governing a municipality. The Committee finds that the Council-Mayor form is also a viable system, and one with a long history in Hawaii and on Kaua`i. The Special Committee finds that a large majority of individuals testifying or otherwise providing information to the committee favor retaining the current Council-Mayor system, for a variety of reasons. One often repeated reason was to have a direct voice in the selection of the county administrator, rather than an indirect voice through selection of a county manager through a single Mayor-Council panel.

The Special Committee finds that a key argument for the Council-Manager form of government is that it provides for an administrator for the county who has specific education and experience in management. The Committee finds that such experience could also be mandated for a mayoral aide under the current Mayor-Council system.

The Special Committee finds that a County Manager would be unable to function with the flexibility envisioned by some proponents due to legal limitations on his/her authority. In part, this is because under existing state law and county charter provisions, a County Manager would not be able to appoint many of the county's chief department heads. State law requires the personnel director and liquor control department head to be appointed by commission, and county charter requires the planning director, water department manager and the police and fire chiefs to be appointed by commission. A Mayor is similarly limited in oversight.

The Special Committee finds that the County Manager system removes certain cheeks and balances from county government, including the veto power of a mayor over legislative measures, and the development of a recommended budget under an elected administrator and its approval by an elected legislative body.

The Special Committee finds no fundamental flaws with the Council-Manager form of government, but does not find that it inherently superior to Kauai’s current form of government, and does not find that a change from the current system is necessary or desirable for the effective functioning of government.

According to the Charter Review Commission section of the county web site no meetings of the commission are scheduled yet.

POLITICAL WON’T

POLITICAL WON’T: Our post Wednesday on the flakey “opinion” given to the charter commission regarding the county manager issue drew a couple of comments that deserve exposition, on an issue we kind of glossed over because it seemed to be self-apparent to us- but obviously not to everybody.

Doug White, who’s left a huge hole in the blogosphere since June when he last posted to his Poinography blog, asked

...under a manager system, who or what would lead the Executive Branch? If that leader is chosen by the Legislative Branch, then in effect there would be no autonomous Executive Branch, and thus no separation of powers. That's how I interpret the CA opinion.

Attorney blogger Charley Foster was of course more to the legal point saying

I think a better way for the county attorney to have argued it would have been to point out that plain text of HRS §46-1.5(1) requires counties to "establish the county executive, administrative, and legislative structure and organization," and that the proposed manager system would establish only an "administrative and legislative structure" in violation of the plain language of the statute. As Doug points out, a "mayor" who is chosen by and serves at the pleasure of the council is not really an "executive." It is true that separation of powers is at the heart of the issue and of the three-branches requirement. But it's possible to argue that the plain meaning of the statute requires an independent executive department without having to invoke that other doctrine.

So let’s look at the words in the relevant constitution and statue passages.

In Deputy County Attorney Mauna Kea Trask opinion he cites the fact that:

Art. VIII, section 2, Hawaii State Constitution states: Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law. Such procedures, however, shall not require the approval of a charter by a legislative body.

Charter provisions with respect to a political subdivision's executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions...

HRS section 46-1.5(1) states: Each county shall have the power to frame and adopt a charter for its own self-government, which shall establish the county executive, administrative, and legislative structure and organization, including but not limited to, the method of appointment or election of officials, their duties, responsibilities, and compensation, and the terms of their office.

Nothing there mentions any “autonomous” executive or an executive “branch”, certainly nothing about “separation of powers.” and as a matter of fact the law allows for the “county... to frame and adopt a charter” and determine “the method of appointment OR election of officials” (emphasis added).

Clearly the county may do whatever it pleases as far as not just the method of selecting or electing it’s executive officer but need not make any of them autonomous or adhere to any separation of powers doctrine. As a matter of fact, currently the executive and the administrative entities are indeed part of the same organizational structure with the mayor appointing and overseeing the department heads without any autonomy or separation of powers.

As matter of fact. unless you use an adjective to describe the word “executive”- one that isn’t in the law- no one can argue a county manager (CM) would not be an executive

All a county manager system would do is switch the executive to legislative oversight and make that position appointed rather than elected.

And, it would seem that by saying “appointment or election” the statue leaves room for a county manager type system. Any argument against an unelected executive is clearly a political rather than a legal one.

It should also be pointed out that currently the charter provides for an administrative assistant (AA) whose duties are very close to what a county manager’s would be. That position- who serves solely at the pleasure of the mayor- is one that has routinely overseen department heads on a day to day basis leaving the mayor free to look at the “big picture”, concentrate on “the vision thing” by delegating the nuts and bolts to the AA.

We also mentioned Wednesday that Trask included a section that makes it clear that no more than what is stated in the constitution and statute should be read into it- despite the fact that after saying that he proceeds to read into it separation of powers, checks and balances, autonomy and the lack of an election of the executive.

Trask writes:

According to the law, "The fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it. This intent is to be found in the instrument itself. When the text of a constitutional provision is not ambiguous, the court, in construing it, is not at liberty to search for its meaning beyond the instrument." State ex rel. Anzai v. City & County of Honolulu, 99 Haw. 508, 519, 57 P.3d 433, 444 (2002).

Moreover, a constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was adopted and the history preceding it." Blair v. Harris, 98 Haw. 179, 45 P.3d 798, 801 (2002).

So let’s look at Trask’s arguments one by one:

The phrase included in both Art. VIII, section 2 and HRS section 46-1.5(1) requiring that each county "shall establish the county executive, administrative, and legislative structure and organization", is interpreted by the County Attorney's office to require each county within the state to have specific separation of powers between the executive and legislative branches, which the proposed council-county manager form would not have.

Given that the words “separation of powers” aren’t in the law and the fact that there is currently no separation of powers between the executive and administrative entitles- note also the lack of the word “branches” in law- this argument is clearly erroneous especially since “intent is to be found in the instrument itself” and that one “is not at liberty to search for its meaning beyond the instrument”.

Trask continues:

Furthermore, so as to not render either the, "legislative, executive, or administrative structure and organization," of the county superfluous, void or insignificant said branches need to be substantive and not merely formal.

We’re not quite sure what that means and whether it is a differentiation without a difference but assuming it isn’t, well, the current attachment of the administration to the executive belies irrelevance.

He then seeks to establish what may be called a four prong test.

The proposed amendment would be contrary to both the text and the intent of the State Constitution and the general laws of Hawaii, and therefore illegal, for the following reasons:

1. The State Constitution and the general laws on the subject clearly and unambiguously call for the counties to establish a legislative, executive, and administrative structure and organization of government.

True- and clearly that “structure and organization” is up to the county to determine as long as all three exist- which they would as we established under a county manager executive, certainly to the extent that they exist now.

2. Passage of the proposed amendment would deprive the public of their constitutional and statutory right to a democratically elected executive.

It’s hard to say where he found a “constitutional and statutory right to a democratically elected executive” since the words “democratically elected” not only do not appear but the statute specifically allows for an appointed executive.

And as to any national constitutional or statutory prohibition, how many hundreds of county manager systems exist and have presumably passed legal muster around the country?

3. The proposed council-county manager form of government would deprive the public of a democratic governmental structure that employs checks and balances that would ensure that no particular branch would get too powerful and abuse the representative system of democracy. This is clearly illustrated by the fact that the proposed amendment seeks to delete section 4.03 of the charter thus extinguishing the executive veto power.

We’re not quite sure what the relevance of this is but again the words “checks and balances” do not appear anywhere. Clearly this is a political argument and not a legal one.

4. Under the proposed amendment the council chair would be given
the title of "mayor” but would not exercise any executive authority. Such a titular mayor would not satisfy the mandate of either the constitution or the general laws on the subject.

Ceremonial mayors are common under county manager systems, where the executive is the county manager not the mayor if we’re looking for the “substantive” executive. As a matter of fact some mayors are even appointed by the legislative entity, some on a rotating basis from among the legislative members.

Trask implies that only a title of mayor bestows executive status- clearly an erroneous and presumptuous assertion.

The preconceived notions, the use of the straw man of the specific Lewis proposal to condemn all CM systems- illogically generalizing from the specific argument- and the outright interpretation based on additional language not found in law- especially when the law bans that- and causes Trask’s analysis to fall on it’s fallacious face.

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Also on Wednesday, we cited the inability of the council to compel administrative testimony without a formal investigation under the current charter as one of the good arguments for a CM system.

Doug also asked

... has the Council ever actually went the official investigation and subpoena route? If not, then they are fools for not at least trying to exhaust their existing powers before seeking a Charter change, aren't they?

That’s somewhat of a complicated question.- one that has roots in the political, statutory and fiscal realms.

Calling for and authorizing an investigation to obtain subpoena power every time an administrative person doesn’t show up when requested is pretty cumbersome and impractical.

For the last 10 years the council has at times sought to launch investigations. The first obstacle was the lack of any set method of doing so. After dickering around for a year or so they finally passed a resolution that defined a process. But then it became a political football as to which department to investigate first.

Originally it was to be the massive Department of Public Works but the word “massive” was the operative obstacle. Which division to investigate became a problem because so many of them were problematic. Finally a half a million dollars was appropriated to investigate one division but no one could decide which one to investigate.

But then a new council took office and with the departure of a majority of members- including the three main proponents, now-State Senator Gary Hooser, now 5th Circuit Judge Randall Valenciano and then-Chair Ron Kouchi, the newbies decided to investigate the police department instead- a subject well covered in KPD Blue.

The next decision was to, instead of spending lots of money to look at a tree amidst the forest, appropriate salaries for a county auditor position and staff to be able to essentially conduct investigations without having to deal with the cost and limitations of each investigation.

But again after procrastinating over the hiring, the County Attorney stepped in and said this would violate the prohibition of council interference with the administration.

Finally last November the voters passed a charter amendment establishing a county auditor under council services that was specifically exempt from the prohibitions on interference. A month or so back one was appointed by the council.

But really this has been an exercise in lack of political will all along with a majority of the council member eyeing the mayor’s job and not wanting to tie his or her own hands once they took office.

Clear as mud?

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With the holiday and resultant “so much basketball, so little time” next week we’ll be a little lite in posting- here’s a little lite reading regarding the whole Board of Ethics 20.02D business which we’ll try to address during half times and between games.

SLIP-SLIDIN’ AWAY

SLIP-SLIDIN’ AWAY: Hyperbole notwithstanding, the worst reporter in the world at the worst newspaper in the world, Leo Azambuja of our local newspaper, seems to be making an effort to learn what constitutes a “lede”- the journalistic slang for the “lead”, the opening sentence that covers the “who, what, when, where and why” in about 25 words or less, as part of the inverted triangle that puts the most important information nearer the top and the less important stuff further down.

So Azambuja’s article on the fate of the “county manager” proposal that was before the Charter Review Commission is, on the surface, a step forward as he reported:

Kaua‘i’s strong mayoral form of government won’t be changing this election.

After several community meetings, the Charter Review Commission’s Special County Governance Committee last week unanimously voted down a proposal to ask voters this fall if they would like to see the Garden Island governed by an appointed county manager instead of an elected mayor.

Now perhaps it’s our fault because in the virtual reams of criticism of Azambuja’s apparent lack of journalistic training or ability we forgot to mention the most important part of the lede- that the information be ACCURATE.

Silly us for thinking that that went without saying.

As we reported a day short of a month ago, in actuality, according to the recommendation section of the SCCG’s Report to the Kauai County Charter Review Commission- which apparently Azambuja failed to read critically, understand or comprehend:

Special Committee on County Governance, by unanimous vote, recommend(ed) against placing a measure for a Council-Manager form of government on the 2010 General Election ballot. The committee, accordingly, recommends the adoption of this report, and further recommends that the issue of a Council-Manager form of government be postponed indefinitely.

What actually happened “last week”- at the July 26 meeting of the full Charter Review Commission to be precise- is that the full commission voted to accept the recommendation of the SCCG- something Azambuja could have found out by going to the county web site he cited as an information source at the end of the article, since he apparently failed to attend the all important meeting.

From there it only gets worse. So we decided to use the skills we gained as a teaching assistant to the legendary local newspaper editor Jean Holmes while she taught-and we attended- her journalism classes at Kauai Community College in the 80’s to take a blue pencil to Azambuja’s Adventures in Newswriting Wonderland.

Next Azambuja writes:

“The large majority of people didn’t see it as a desirable necessary change from the current situation,” said Patrick Stack, who chairs the three-member committee. North Shore resident Joel Guy and former reporter Jan TenBruggencate are the other members.

While that’s technically accurate it’s omits the most important information showing that he didn’t understand the SCCG report because, as we reported, they plainly based their recommendation on the a rationale that makes the decision anything but arbitrary or capricious, saying:

The Special Committee was constrained by the authority given the Charter Review Commission under the existing Kaua`i County Charter. Section 24-03 of the County Charter contains this authority: "In the event the commission deems changes are necessary or desirable, the commission may propose amendments to the existing charter or draft a new charter which shall be submitted to the county clerk." (Emphasis added) This is a key point. The Charter Review Commission is not authorized, as many public testifiers suggested, to place an item on the ballot simply to allow voters to express their choice.

Instead of emphasizing or even reporting that- as the SCCG did- Azambuja chose to stress what the committee insisted did not influence their decision at all writing:

“The large majority of people didn’t see it as a desirable necessary change from the current situation,” said Patrick Stack, who chairs the three-member committee. North Shore resident Joel Guy and former reporter Jan TenBruggencate are the other members.

From there the writing itself becomes a bizarre exercise in trying to write about something Azambuja didn’t quite get, as evidenced by his incorrect lede. He “writes”:

If the commission approved the proposal, voters would decide at the next election Nov. 2 if the mayor should be replaced by a county manager.

That tortured bit of the mother tongue mixes the future looking “if” with the past tense “approved” returning to the future “would decide”. The correct way to express the thought might be to say:

"If the commission HAD approved the proposal, voters would HAVE decideD at the next election Nov. 2 if the mayor should be replaced by a county manager."

In addition this indicates that somewhere he did understand that it was the full commission not the SCCG that acted last week although he could have just conflated the committee and the commission. Either way it’s particularly mis-informative in any number of ways.

One of the rookie mistakes made in J-School is the unattributed opinion over which the prof usually scribbles “Sez who?”. And skipping down a little further is this language-challenged, unattributed “Azambujism”:

If the measure would be adopted, it would likely be stricter to meet qualifications for the county manager than for the U.S. president.

We won’t even attempt to dissect or diagram that one.

One of the things a newswriting class teaches is to avoid negative characterization of the person you are quoting. There’s noting wrong with the neutral word “said” but, unless it’s well explained and under extreme circumstances where it’s called for, reporters should avoid using pejorative terms like “claimed”, “boasted” or “admitted” or use of prejudicial adverbs. But in characterizing a quote from Glenn Mickens. a proponent of the county manager proposal, Azambuja wrote:

He admitted the county manager system wouldn’t be a cure for all, and if it didn’t work, the island could return to the mayor system of governance.

You get the idea.

Back in the 90’s our solid waste mess was almost as bad as it is today and then-Mayor Maryanne Kusaka was called before the council to explain why, given the “crisis” she insisted on having the bumbling, bungling, uneducated and inexperienced Troy Tanigawa in charge of the Solid Waste Division of the Department of Public Works- someone activist and original “nitpicker” Ray Chuan used to characterize as one of the “protecteds”.

Even when, after council interrogation, it became apparent Tanigawa- who is still in the position today- was incapable of handing the situation Kusaka wouldn’t give up on Troy telling the council she was willing to “send him back to school” rather than replace him.

Though we all rolled in the council chambers isles at that one perhaps if Editor Nathan Eagle won’t look for someone with basic newswriting skills from among the many out of work journalistic casualties of the Honolulu newspaper “merger” debacle- and pay them more than the local paper’s notorious starvation wages- at this point we’d even settle for the “Tanigawa Solution”.

Or at least spring for a textbook Nathan.

PAWED AND FLAWED AGAIN

PAWED AND FLAWED AGAIN: While sitting around kibitzing and kvetching in the council chambers with our pal Tony Sommer, former Honolulu Star- Bulletin Kauai Bureau Chief and author of “KPD Blue” he used to routinely pronounce judgment on the foibles and folly with one of his favorite sayings- “when you work for the king you carry the king’s sword”.

And that’s apparently the case with Deputy County Attorney Mauna Kea Trask’s newly released opinion on the proposed county manager system, obtained by the local paper’s ace reporter Mike Levine and posted on line to accompany his article on the document.

We’ll have a more detailed analysis as soon as we get a hold of an “OCA” text copy so quoting it isn’t a chore, but on first blush it appears that Trask simply self-selected his own bowling pins, set them up and knocked them down in a string of straw-man arguments replete with out-of-context suppositions and red herrings in order to declare the concept of a county manager system generally illegal in Hawai`i and maybe the country.

After glossing over the fact that the opinion is proposal specific- based on the unbelievably flawed document authored by Walter Lewis in an attempt to exact revenge for the county’s supreme court victory in declaring his “’Ohana” property tax charter amendment null and void (as we detailed last month)- he then attempts to use a broad brush and questionable interpretations of a passage in state law to argue that any CM system would be illegal, not just in Hawai`i but in the country in general.

Two examples stand out for their disingenuousness.

Unbelievably, after quoting case law requiring those interpreting state law to take the plain meaning at face value and not try to read something into it, Levine accurately reports

Section 46-1.5 of the Hawai`i Revised Statutes states that each county’s charter “shall establish the county executive, administrative and legislative structure and organization,” a phrase that “is interpreted by the County Attorney’s office to require each county within the state to have specific separation of powers between the executive and legislative branches, which the proposed council-county manager system form would not have.”

If that isn’t reading into the words “county executive, administrative and legislative structure and organization,” that there must be a certain structure including a mayor and council it’s hard to imagine what would be.

The other we’ll discuss today- because it’s refereed to not just in the article but in a post by attorney-blogger Charley Foster who also apparently misses the point in Trask’s completely out of context use of one contention that accompanies the specific proposal.

As Foster writes:

Beyond the legal analysis, the county attorney goes on to strenuously argue against the county manager proposal on policy grounds, proposing answers to a number of criticisms of the current mayoral system. I especially like the attorney's response to what really is the most clueless of the criticisms:

The current exectutive branch of government interferes with the council's ability to enact public policy laws and investigate subjects for which it is responsible.

To which the attorney correctly replies –

This criticism misses the whole point of the American form of representative democracy that utilizes a system of checks and balances.

The problem is that if one actually read the passage in the proposal it specifically and uniquely refers not to general policy but to the main problem that has spurred some to support the CM system- the fact that the council has no ability to compel administrative personnel to come before the council to explain anything without an official investigation and subpoena, including on matters that the council must decide.

This was illustrated last year when the last council questioned the methodology- reported exclusively here, here and here- that the Department of Personnel uses to “reallocate” jobs- some say in order to manipulate the civil service system to place a mayor’s favored but unskilled choice in a job in place of a appropriately skilled and experienced hire.

But when the council tried to ask Personnel Services Division Malcolm “Mel” Fernandez to come before the council and explain himself, he actually refused.

But really what do you expect? We’ve been ambivalent from the start of a CM form of government and many of Trask’s political and policy arguments and criticisms are well founded- although what they’re doing in a legal analysis is a mystery.

They come from not just the overstated benefits contained in Lewis’s proposal- as drawn up and submitted by former charter commission member, the late Walter Briant- but from the actual piss-poor proposal which was apparently hastily drawn up by substituting the words “county manager” for the word mayor in the county charter and then adding a brief description of the method of appointment.

We’ve recommended from the start that the proponents slow down and properly study all relevant matters including the state constitution and laws, the political culture on Kaua`i, the real world way our system currently works- and doesn’t work- and an examination of the literally hundreds of different CM set-ups in use around the country (which certainly belies Trask’s contention that they violate the national constitution and national laws) and draw up a well considered specific proposal... something Trask even admits might pass legal muster before he contradicts himself.

We’ll have more when we get the OCA version and go over it but on first blush, as with another Trask penned option, it appears this one is also “fatally flawed”.

YOU CAN’T SMELLTHAT?

YOU CAN’T SMELLTHAT?: Rachel Gehrlein’s rather confused report today in the local paper about Monday’s Charter Commission (CC) meeting reports both a deferral and a “moving forward” of the controversial County Manager proposal being considered,

Thought the article lacks cohesion and continuity, as if written by the specter of Lester Chang, it does characterize and quote CC Chair Jonathan Chun this way:.

Commission Chair Jonathan Chun said he still didn’t see the need for the proposed amendment.

“What is the problem we are trying to solve?” Chun said. “No one, in my mind, has said what the problem is.

"Every time the question is asked, different answers are given, Chun said.

Maybe because so may things are broken and more are breaking all the time so like the procrastinating unhandy homeowner with the house that’s falling apart, every time you ask “what’s the problem” you get “a different answer”

So let’s assume for argument sake the quote and surrounding material is accurate. It brings up an interesting question

Are you friggin insane Jonathan or just a disingenuous liar trying to squelch the measure for some ulterior motive... because we know you’re not an idiot?

We haven’t exactly been on the County Manager conga line ourselves although we are starting to come around with Walter Lewis and Walter Briant’s specific proposal, even though the proposal itself is extremely problematic and poorly written, disregarding the 89 state laws that would have to be changed to accommodate the lack of an administrative “mayor”

But there are no problems with Kaua`i County government and the strong mayor system that makes every department head job a political appointee, Jonathan? Have you seen these bozos? Have you noticed how mayors are eaten alive when they try to get each new “temp” at the helm to get the department “we-bes” (we be here when you got here we be here when you go) to actually do anything differently?

Have you seen these people give what is laughingly called testimony before the council? Or were you just engulfed by “the fog” as they call it when mumbling incompetents who got their job by campaigning or collecting bundles of cash for the mayor try play their shell games.

The game typically goes like this.

Department head: “Oh I can’t answer that, Wendel has to tell you.”

Councilperson: Where’s Wendel?”

“He’s not here today”

“OK we’ll defer to next week and you get Wendel here”

Wendel comes in next week but no Department head and Wendel says “well I have to ask the department head for more information”

“Where’s he?”

“He’s out of town today”

“OK we’ll defer until next week”

Next meeting there’s the department head but no Wendel

“Wendel’s on vacation”

Finally they get Wendel and the department head there on the same day but either
A) They now say Clayton- who isn’t there- has the real information or
B) The department head testifies, then Wendel testifies and then when they want to get back to the department head he’s
1) left for lunch,
2) left for a meeting or
3) taken a plane to Honolulu

And on and on until the council gives up and moves on to the next calamity caused by an incompetent political appointee department head comes up on the agenda.

For god sake look at Ian Costa. He practically invented “the fog” as the unqualified de facto head of Public Works where he caused the grading and grubbing crisis a while back.

As Baptiste’s top bulldog during the campaign the barely-qualified. huge land-owner has taken an already traditionally incompetent Planning Department and driven it into the ground.

He’s got millions appropriated and set aside for unstarted planning studies and development plans and his rubber stamp planners and befuddled and sycophantic Planning Commission can’t even properly deny a permit the one time they try, getting sued for their incompetence to the point where the County Attorneys had to throw up their hands and settle for the worst development possible.

Then there’s- he’s baaaack- the latest whiplash-of-the-revolving-door largess recipient Wally Rezentes Jr. who can’t seem to get the hang of line-item budgeting so he ignores it since the council is still reeling over the “program based budget” system he officiated over during the Kusaka administration.

He quit the first time when the level of corrupt spending got so out of hand the Mayor was leasing luxury cars from her campaign manager at inflated prices and the Council only found out they gave her the money for it when they saw her driving around in it.

The patronage system we have today actually created jobs that didn’t exist for the truly unqualified like Bernard Carvalho. He preeminently glad-handed every voter he could find during Baptiste’s first Mayoral run and cashed in on his football fame to get appointed as a quasi department head in an insane, hybrid cant-decide-what-it-is Community Assistance conglomeration of Public Works, Planning and a couple of other departments. Then the voters created a Parks and Recreation department for him to screw up.

Guess who’s really responsible for the dog path fiasco? Try Bernard whose “task force” apparently just illegally made the pronouncement that the path was now a park (where dogs are illegal), neglecting to follow the state administrative rules law. He’s the same guy who put together the “task force” to put the teen rehab center in the old dog pound near the culturally iconic salt pans in Hanapepe creating a virtual lynch mob when people found out.

And what about the biggest plum of all- the Conventional Hall manager... a do nothing position that pays well and usually employs the mayor’s best buddy to collect perks and kickbacks by doling out favors under an ambiguous rate sheet system that never undergoes any scrutiny because it’s a separate world over there.

We don’t even want to talk about Public Works, the worst mess of all where the Kusaka and then Baptiste couldn’t even find a crony to fill the position for half of each’s administration.

And once they found a young bright and qualified sucker to take the job they beat down poor Donald Fujimoto into another cover-up artist and administration apologist.

He recently refused to answer Council questions regarding the illegal and crumbling Pono Kai sea wall without going into an illegal executive session even though all the illegalities had been thoroughly discussed in open session previously.

Seem like he’s learned well and will probably be moving on through the revolving door as soon as it’s convenient, which should be soon with a new mayor coming on board.

If Jonathan is not seeing the lack of professionalism in this and every administration and the level of corruption within each department as a problem he’d better either take off the rose colored glasses or quit the Charter Commission so we can find someone who has a little firmer grasp on reality.

We’re not saying the county Manager will do anything to change all of this. What it would do is theoretically make the administrative department heads subject to hiring and firing based on whether the job is getting done since the county manager’s job would be similarly held or lost.

Also, although the manager would be beholden to the political whims of the Council, what it would do in essence is put the decision-making out in the open since the Council would have some control over how the money is spent and a little better chance at getting truthful and transparent testimony out of department heads and other administrative personnel.

And it would take some of those secret decision-making sessions and “task forces” that aren’t subject to the sunshine law and put them, if not under it a little closer to it’s umbrella by having their testimony a little more compellable in open session.

But the critics are right in that if we do have “a” county manger system that it be “the” county manager system that is appropriate and acceptable to the people whom it serves.

It will indeed be an upheaval of political culture if not politics itself to have a new governance system.

The proposal from the two Walters is a start but it doesn’t seem ready for prime time and the deadline is a-comin’ well before we can be sure it’s the right one and one that’s even applicable to state laws.

The problems cited in the article as described by various politicians all have to do with this point- fully discussing and vetting the proposal and allowing the Charter Commission to focus on doing the job they are supposed to be doing in studying and vetting systems, compiling data, holding hearings and getting ready to present a full-formed. fully-discussed, fully “right for Kaua`i” proposal for the 2010 election ballot.

It’s time for people like Jonathan to stop feigning ignorance, acknowledge the mess this county’s government is in, much of it due to the patronage system that has evolved under our strong mayoral system.

Jonathan himself has certainly been employed by it long enough to know not only where the bodies are buried but how they got there.

It’s how, not why Jonathan. You’re almost all alone out on that limb. Whether there is a “how” that will be acceptable can only be found if we look for it.

Anyone with your brains knows what the problems are so don’t play dumb with us

CHASING OUR TAILS:

CHASING OUR TAILS: In a discussion in the comments section of Kaua`i Councilman Mel Rapozo’s blog that came out of a posting on funding the budget requests for the Mayor’s Ka Leo program and PR positions in each department, KKCR radio public affairs programmer Jimmy Trujillo asks how a proposed County Manger system could be worse than what we have now.

Other than that being a question you don’t want to ever ask, just imagine what a corrupt Council could do without the check and balance of an elected administration.

Actually we have a County Manager right now- it’s called the Administrative Assistant (A.A.) and is defined in the Charter. Currently, his name is Gary Heu and he was appointed by the Mayor.

The position is supposed to be everything those who call for the elimination of a two-branch governance system want. The only difference is that the Council would hire and fire the A.A. instead of the Mayor in any of the proposed “County Manager” schemes and the office of mayor would be eliminated or made essentially “ceremonial”.

And just the history of Kaua`i Mayor-Council dust-ups and conflicts over the past 30 years shows how bad it has been and could be.

Right now there aren’t any “prizes” either on the Council or in the mayor’s seat, although more see hope in some councilmembers... sometimes. But just 20 years back the situation- especially as perceived by the limited/controlled growth and progressive community- was reversed.

Kaua`i arguably had a Mayor then who that movement supported and six pitifully-conflicted councilmembers who, it was often said, never met a development or developer they didn’t like. Everything that came before the council was passed by a veto-proof 6-1 vote, Kaipo Asing being the only controlled growth advocate.

Massive rezonings were quickly passed- many of the ones that are essentially causing the uncontrolled growth today- most with little or no community knowledge. And Mayor JoAnn Yukimura couldn’t do anything about her stated goal of stopping them, and other regressive measures.

There were tremendous battles from ‘88-‘94. But before that it was the reverse of those reversed days. when all the progressive “slates” for Council had failed to take a majority, albeit by slim margins.

The post-Nukoli`i and Nawiliwili “slow-growth movement” could never get enough votes to elect more than three akamai Council members at a time because one would always run for Mayor every two years and lose like Jeremy Harris, John Barretto and Yukimura, some who lost and gave up like Jack Lundgren and others moved on like Mina Morita or left politics entirely, some for the farm like Rodney Yadao.

Finally JoAnn won in ’88 and it all flipped 180 degrees. Harris had moved to Honolulu, and the rest were elsewhere. The Council finally became the all-out seat of corruption that the Mayor’s office had been during the Malapit and Kunimura administrations when the progressives populated the consistent 3-4 minority on the council with Asing, Yukimura and a rotating third from ‘78-’86.

Only the Mayor served as a check on their power- imagine if they had been able to hire and fire a de facto mayor- a county manager.

Yukimura was ousted and then it all flipped back again when MaryAnn Kusaka won and soon after her nemesis Gary Hooser came on the Council.

Kusaka’s comfy relationships with developers and land-rapers like Tom McCloskey and the notorious Jimmy Pflueger were held somewhat at bay by Hooser and his ability to, if not always get a second on his motions, at least expose things on TV and through the great newspaper reporting by the likes of Tony Sommer and Dennis Wilkins.

That caused Kusaka to try to shut down the televising of meetings with every trick she could muster, disparaging not just the televising but the Council meetings themselves when they exposed her developer patrons as crooks..

Now we’re stuck with a befuddled Council and Mayor. But changing the system because at this time we have bad people running everything is the very definition of moving deck chairs on the Titanic. It certainly doesn’t make as much sense as changing the people running things.

But that would take real work, not just proposals pulled from the ether.

Anyone who wants to win a council seat this November is already too late- they should have been knocking on every door on the island with gifts in hand for the last two years. and be prepared to lose the first time out and re-knock and re-gift for the two years following that. And have that self-same army that is on the conga-line for a county manager system go out knocking for them too.
If you want to throw some eggs at the wall and hope that maybe you’ll wind up with an omelet you must know that you might also wind up with a mess of broken eggs and shells on the floor- and maybe your face. And if you don’t know how to cook in the first place it won’t make much difference whether you’ve got gas, electric or an open fire when the cooks burns us up a breakfast every morning..

BRASS TACKS

BRASS TACKS: Much like eggs eaten three days ago making their reappearance in an unanticipated belch, local newspaper reporter Leo Azambuja is back and filing disjointed “day late and a dollar short” stories, not the least of which is Sunday’s attempt to make up for saying that Councilpersons Tim Bynum and JoAnn Yukimura "gave no reason” for asking that County Clerk Peter Nakamura not be reappointed at the inaugural meeting.

But in light of the elephant in the room- Nakamura’s harassment of former Deputy County Attorney Margaret Hanson which apparently cost the county $250,000 in settling an EEOC case- one line in the story speaks volumes:

Repeated attempts to reach Nakamura for comment failed prior to press time. Phone messages and a message left in person at the council services office in Nawiliwili Friday were not returned.

Though we’ve been attacked for reporting the story no one else will touch, the dearth of denials goes a long way toward corroboration.
Although the actual documents are “confidential” the reports continue to roll in from people who tell of the workplace harassment of Hanson after she and Nakamura broke off their “relationship”... although many-even most- say that the allegation made by some of physical violence on Nakamura’s part may be incorrect.

The quarter-million-dollar settlement by the county is apparently what’s at the unspoken heart of the two memos sent out by Bynum and Yukimura in an attempt to start a professional search for a county clerk.

Another quote in the newspaper story from Yukimura seems to confirm something that doesn’t meet the eye is up:

(Yukimura) also said she didn’t have access to the county’s legal or human-resources advice and counsel.

“The county attorney (Al Castillo) opined that I could not have access to the information or counsel until I became an officer of the county by being sworn in,” she said.

Because of the short time to review those documents, Yukimura said she did not have enough time to perform the required due diligence before voting for the clerk.

The obvious question this raises is why are the other four councilmembers so apparently unconcerned?

We’ll get to that analysis another day but suffice to say Nakamura has shown his ability to protect councilmembers from themselves through selective release of documents and other manipulations from which each, as charter members of “the club,” intend to benefit or have benefited.

Today, since no one else has, we’re going to concentrate on the serious charges made in Bynum’s memo going over our experiences with Nakamura and county procedures and laws in that context.

Bynum’s letter (in full) is in italics.

After long and serious consideration of the issues, I have decided that I will not be voting for Peter Nakamura to be reappointed as County Clerk this term. At a prior meeting I recommended that the Council appoint one of our capable current staff as an interim County Clerk and conduct an open search for the best-qualified candidate available to lead Council Services. Had we gone this route, Mr. Nakamura could have applied as a candidate in the search process.

While I recognize Mr. Nakamura’s talents, contributions and strong work ethic, there are, in my opinion, unresolved issues. The following are among those that led to my decision.

UIPA

The Uniform Information Practices Act is State law and requires that an agency provide a response to requests for public documents within ten business days. The Clerk has repeatedly failed to respond as required by law in the required time frame and, in a number of instances, has completely ignored the request and not responded at all. For example, a UIPA request for documents was made by Council members on May 26, 2009 and no response was received until July 8, 2009, and then only after follow-up memos from the Council members and an admonition from the County Attorney.

We’ve submitted no less than a dozen official documents requests that were fully ignored by Nakamura. While council services staff are usually forthcoming with regular public documents many times they are not under instructions from Nakamura.

At first we were unaware of the process for dealing with being ignored. Eventually we found out that the government official in charge of the record has 10 days by law to respond to a written request.

But if the official decides to ignore you your only option is to go to the toothless tiger of the Offices of Information Practices (OIP), which will usually fire off a letter to the denying official. Then, when that’s ignored another letter... and another... and another... until everyone just gives up.

Even when he does finally respond Nakamura has become a master of stonewalling giving excuse after excuse often dragging out cases for years.

Bynum then asks a question we asked a few months back- what ever happened to documents the local newspaper’s ace reporter Mike Levine requested which were similarly ignored during his Levine’s all-too-short stint here and, of course, once he left.

As another example, The Garden Island on their web site (http://thegardenisland.com/app/sunshine ) lists records requests made to various County departments, all of which were responded to within the timeline required by State law, except for those requests filed with the County Clerk. The requests made to Council Services were all ignored and not responded to at all. Other members of the public have informed me that their UIPA request for documents have gone unanswered.

That last sentence the understatement of the year.

Records

The Kaua`i County Charter requires the Clerk to “take charge of, safely keep and dispose of all books, papers and records which may properly be filed in his office and keep in separate files all ordinances, resolutions and regulations and cumulative indices of the same, or exact copies thereof, enacted or adopted by the council.”

One of the Clerk’s important responsibilities is to keep the County Code up-to-date. One can do a Google search of any Hawai`i county, except Kaua`i, and easily find an updated code. Not only can the public not find the Kaua`i County Code online, an up-to-date codified version has not been available in any form since 2006.

If we had a nickel for every time we’ve written about this, it wouldn’t amount to as much as we would have if we had one for every time we’ve had to tell someone shocked neophyte that there is not only no on-line version of our local county code- the laws of the island- but that it’s virtually impossible to get hard copies of them at the clerks office, since you have to ask for them by number and there’s no way to find out the number since there’s no available index.

Ordinances passed since 2006 are simply shoved loose in the back of the file so the actual pre-2006 code is incorrect unless it’s cross-referenced with every “loose” ordinance

We’re not surprised at all that there hasn’t been a codified version available since 2006, especially since there wasn’t even a codified version of the county charter available for many years until it was recently compiled, apparently by the county attorney’s office since the clerk- who is responsible for doing it- couldn’t seem to get it together.

If you requested a copy of the charter since 2002 the amendments were - yup - shoved in loose at the end, often unnumbered and in a different font.

When Council members sought electronic minutes of Council meetings, the Clerk informed Council members in writing that he “had difficulty locating electronic copies of Council meeting minutes” and that “extensive agency efforts have been required to search for and prepare the records for copying.” This response and other instances related to key Council records have raised alarms about the integrity of Council records and led to the submission to the Clerk of the following written inquiry in July 2009: “Is it the case then that our key public documents exist only on paper in the Historic County building? Is it the case that our office documents are not backed up on the County network? Is it the case that we are not availing ourselves of the backup capabilities provided by the County IT department? Does this not leave an unacceptable risk that these key public documents could be lost completely?” There has been, to this date, no response to this written inquiry and my concerns about the integrity of County records remain.

It’s simply unbelievable that this kind of thing has been going on. Yet it’s also our experience and that of many others we’ve spoken to. It’s apparently why there was such blowback when it became time to put all this stuff on-line last summer.

What Bynum leaves out is that according to Eric Knutzen, the county’s IT director, he’s been ready to go, literally for years, saying it’s a matter of will on the part of the clerk and council.

That’s why the mutual admiration society of Nakamura and former Chair Kaipo Asing functioned so well- each had an interest in keeping the public in the dark.

But as to the Nakamura salary issues rather than reading the newspaper version or other recent charicterizations, you may want to read what Bynum actually wrote to understand why some were calling it illegally done.

Salary Issues

The County Charter requires that department head salaries be determined by the Salary Commission. The County Clerk is a Department head. By Salary Commission resolution, requirements for department head raises include: 1) “employee’s completed performance evaluation evidencing that the appointee has met or exceeds job requirements” and 2) “the appointing authority’s recommendation on whether a proposed increase should be granted”.

Although neither criterion was met, the County Clerk received a pay raise in December 2009.

Other department heads and the mayor did not receive a salary increase in December 2009 due to economic conditions. This has led to a situation where the clerk’s current salary at $114,848.00 is higher than that of the Mayor’s.

The key here is that, while the salary commission okays a raise it only authorizes a range of salary. The actual salary is awarded based on the recommendation of the appointing authority, based on their evaluation.

But with the council-clerk relationship the council serves two different functions. First, they have a bite at the apple of the salary commission’s recommendation which they can either reject or, through inaction, implicitly approve without really approving.

But then they are also the “appointing authority” so they are responsible for going through the evaluation process to set the actual salary. That’s what never happened, yet Nakamura got his raise- one to the highest level of the “range” set by the commission- anyway.

Then there’s the kicker.

Over the last several years, without the knowledge of the Council body, the Clerk accepted and was paid unused vacation time. This is contrary to the County’s policy and practice with other County employees. Unused vacation time pay paid to the clerk is in the neighborhood of $50,000.00. The funds were apparently available without a separate appropriation because of salary surpluses in the Council Services budget resulting from vacancies. (Positions have remained unfilled for extended periods of time. Example: In the FY06-07 budget, a clerk typist position was added by a unanimous vote of the Council. Despite repeated Council requests and promises from the Clerk made in each budget cycle, the position remains unfilled four years later.)

We know many county employees who would love to have gotten this kind of deal. Many have also accumulated a huge bundle of vacation time and were forced to take it or lose it. One way around it has been to “use” it right before they retire so in essence the last “X” number of weeks- or, more usually, months- of employment are actually vacations.

But we’ve never heard of a county employee being allowed to just take the money and run. And certainly not without authorization of their boss... in this case, the council

Bynum’s letter concludes:

The Garden Island opined in November of this year, “When the council goes to organize itself, we also hope the members do their due diligence to ensure the current county clerk and the individuals holding other key positions are still the most appropriate choices for those jobs.”

This position I am taking and observations I have made are a result of my process of due diligence and the belief that this course of action is in the best interest of the County and its citizens.

Finally, since there’s been so much written about Yukimura’s “motion” to conduct an executive search, we will post her memo below in full.

PROPOSAL RE SELECTION OF THE COUNTY CLERK

TO: Kaua`i County Councilmembers-elect

FROM: Councilmember-elect JoAnn A. Yukimura

DATE: November 22, 2010

Motion: That the Council secure the assistance of an Executive Search firm and with such assistance, create and follow an executive search process for selecting the County Clerk that clearly defines the leadership and management skills, knowledge and qualities required and preferred for the position of County Clerk, solicits applications and evaluates the candidates for ultimate selection by the Council.

Background: By job description, the Clerk is equivalent of a Department Head. Department Heads constitute the highest level of administration in the County, next to the Mayor and Managing Director. Department heads are extremely important to the quality of operations and performance of any corporation, whether private or public. If our goal as County leaders is to support the “highest standards of government performance and service,” we have a responsibility to select the best possible candidate for the position of County Clerk.

Rationale:

1. An executive search is a business “best practice” that will increase the chances of finding the best qualified person. It will minimize the “politics” and focus instead on qualifications.

2. As an open, competitive process, it will provide the best choices available.

3. It will increase accountability.

4. By adopting such a process, the Council will demonstrate its commitment to the highest standards of government performance and service.

5. The Council will be using a process used successfully by the Police Commission; it produced a Police Chief, who, most people agree, is a capable leader and manager.

6. It will help to professionalize the County, which means it could enable the County to achieve some of the goals of a County Manager system within the existing “strong mayor” form of government.

7. An executive search process will be fair to the existing County Clerk. The executive search will not remove him from his position because his current position ends at noon on December 1, 2010. The process will allow him to apply for the new position, and if he chooses to apply he will arguably have an advantage by having served in previous years. If he is selected as the best of the candidates, the process will still be worthwhile in bringing greater clarity between the Council and the Clerk as to expectations, goals and the evaluation process to be followed. There will also likely be a greater appreciation and awareness of the qualifications and gifts that the present County Clerk has to offer because of the process he would have gone through.

ONCE UPON A TIME IN AN AUDITOR'S OFFICE NOT SO FAR, FAR AWAY

You don't have to wear a tin-foil hat to swallow the hook, line and sinker of conspiracy theories. Some otherwise normal, rational people seem to think that "they can't say it on the internet if it ain't true... can they?" Or the newspaper for that matter, especially on Kaua`i. Sometimes it feels like there's some national Confederacy of Dunces that's a strong enough alliance to make those of us who require more than speculation and innuendo to determine veracity, think that there actually is a conspiracy- one to designed to obliterate Americans' critical thinking and reading skills.

Kaua`i has it's own brand of conspiracy theorist who is more than happy to connect the disparate dots to form a picture of his or her own design.


The latest of these concerns "Fuel-gate"- the "scandal" surrounding the alleged misappropriation of county gasoline that came on the heels of County Auditor Ernie Pasion's report (still labeled "interim") which found irregularities and pointed fingers in the direction of Mayor Bernard Carvalho Jr.


Despite the efforts of former Prosecuting Attorney (PA) Shaylene Iseri- Carvalho (no relation) to indict the mayor- an effort that won her admonishment from the judge for not having enough votes on the grand jury but moving ahead as if she did- no one has been prosecuted in the case... yet.


The scuttlebutt-narrative around town and on social media has it that, for nefarious reasons, the County Council- which by county charter is responsible for hiring and firing the Auditor- has, instead of pinning a medal on his chest, met at least 20 times by some counts in closed-door executive session to discipline and possibly fire Pasion for some type of as yet unstated misconduct.


The claim is that the council is protecting the mayor and they're all just a bunch of corrupt bums- proof positive that they must be thrown out next November en masse when all are up for re-election.


Many seemingly intelligent self-appointed county government watchdogs and other supporters of Pasion have filed up to the council testimony desk to bemoan the corruption and praise Pasion as a pillar of honesty in the cesspool of misdeeds that is Kaua`i County government.


That is, if you'll pardon my French, Bullsh*t.


The more politically astute in the community- those that actually know the players and follow the action- know the whole affair to be yet another result of the infamous reign of terror of nefarious former PA Iseri-Carvalho (now just plain Iseri... you do the math) and her proxy war on everyone else, being waged by a handful of her still-loyal compatriots.


They include Councilmembers Mel Rapozo and his trusty manservant Ross Kagawa, former Councilmember Kipukai Kuali`i, regular council gadflies Glenn Mickens and Ken Taylor, newspaper columnist Walter Lewis and- no surprise to anyone who has paid attention over the years- Pasion. *


The whys and wherefores of this cabal of Iseri-ites is a subject for a particularly complicated series of flow charts, pie charts and Venn Diagrams to be complied by another reporter on another later day. But the genesis of the council's executive sessions and the fact that Pasion's job is hanging by a still unraveling thread may be more simply explained by examining a little noted actual "claim" submitted by a former Staff Internal Auditor in the Office of the County Auditor, Ron Rawls.


In it Rawls describes how first Pasion attempted to delete possibly exculpatory material from the report which had been compiled by an outside law firm regarding Carvalho's guilt or innocence. Then Rawls says Pasion sought to change key words to strengthen the charges against the Mayor.


But when Rawls insisted that ALL county employees who were found to be using county gasoline without paying for it- including then Prosecuting Attorney Iseri- be cited in the report, Passion refused and retaliated against Rawls, first by excluding him from meetings and anything else to do with the fuel audit and eventually banishing him to a windowless office in another building with no work to do.


The sections in italics below constitutes Rawls' entire statement. It is essential reading for anyone who thought they knew anything about "Fuel-gate."


According to Rawls' notarized declaration in support of his claim:


I was employed as a staff internal auditor in the Office of the County Auditor, County of Kauai.


On June 25,2012,1 filed a complaint alleging a hostile workplace and violations of State and County law involving corruption within the Office of the County Auditor. Since that time, I suffered illegal retaliation based on what and who I reported. I was forced to resign my employment, due to the actions taken against me, and the severe and pervasive hostile work environment that followed because I spoke out about illegal activity as well as ethics violations and misconduct in the Office.


1 was assigned to conduct an audit of county fuel costs, including controls designed to ensure that fuel usage is authorized and limited to valid county business purposes. During this audit, I discovered that the county's Mayor, Bernard Carvalho, may have inappropriately used county fuel in his private car for personal use purposes and I immediately reported this to Auditor Pasion. Auditor Pasion then contracted with the law firm of McCorriston Miller Mukai and MacKinnon LLP (hereinafter "McCorriston") who performed extended audit procedures in the form of investigations into the mayor's use of county fuel for personal use purposes and other . suspected instances of fuel misuse by county employees.


Generally speaking, the purpose of the investigations was supposed to be an independent assessment of the various facts and circumstances surrounding the appearance of fuel use/misuse, with the goal of determining whether illegal acts or fraud had likely occurred. The results of the McCorriston-led investigations were memorialized in two reports; one regarding the mayor's use of fuel and the other regarding a parks employee's alleged misappropriation of fuel. At the outset, I note that McCorriston's May 1, 2012 report regarding the mayor's use of fuel concludes that the mayor may or may not have possessed the mens rea required to support a criminal case against him. The McCorriston report also recommended referral to law enforcement (in this case, the state's Attorney General) if the County Council decided to seek further investigation into the lack of mens rea problem.


According to Wikipedia:


Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of some crimes. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act is not culpable unless the mind is guilty". Thus, in jurisdictions with due process, there must be an actus reus, or "guilty act," accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence). As a general rule, criminal liability does not attach to a person who merely acted with the absence of mental fault. The exception is strict liability crimes.


Anyway, that's when things really began to unravel. Rawls' claim continues saying:


Auditor Pasion submitted a summary report to the County Council based on McCorriston's May 1,2012 report. Prior to providing McCorriston report to the Council, however, Auditor Pasion and I met with the (then) Prosecuting Attorney, Shaylene Iseri- Carvalho. At the meeting, Auditor Pasion and Prosecuting Attorney Iseri-Carvalho decided to withhold from the County Council the portion of the investigators' report which indicated that the mayor may have lacked mens rea as to a potential criminal offense. Thus the report that was provided to the Council had important evidence of innocence removed, before the Council was briefed. I voiced my opposition to this decision to both Auditor Passion and (then) Prosecuting Attorney, Iseri-Carvalho.


Because I disagreed with the decision to withhold this information from the report I formally communicated my concerns to Auditor Pasion in an email message (which I sent to Auditor Pasion at 1:24 p.m. on June 5,2012). In particular, I communicated to Auditor Pasion that I felt that the councilmembers should be provided with all significant information pertaining to the investigation, including the investigators' findings regarding the mayor's possible (lawful) rationale for using county fuel in his private vehicle and the difficulty with lack of evidence regarding criminal intent. Nonetheless, Auditor Pasion removed references to the potential lack of criminal intent from the summary report that he submitted to the County Council. I also note that Auditor Pasion also declined to provide the councilmembers with full version copies of the McCorriston report, which delineates the lack of mens rea problem.

If true, that alone looks pretty bad for both Pasion and Iseri. But there was more manipulation of the report to be submitted to the council. Rawls continued:

I believe the intentional omission of potentially significant information from Auditor Pasion's report was an effort to manipulate the Council's decision regarding whether to refer this matter to law enforcement.. I further believe that this was only one of a number of instances in which Auditor Passion, along with Audit Manager Lani Nakazawa, violated government auditing standards (and hence violated legal requirements set forth in the county charter) relating to auditor independence, objectivity, impartiality, integrity and professional behavior in connection with the fuel costs audit investigations. During the course of the fuel costs audit investigations, I often spoke out about these types of instances. For example, when Ms. Nakazawa provided me with her proposed draft of a memorandum addressed to Council Chair Jay Furfaro, dated December 15, 2010, claiming that "fraud had likely occurred," I spoke out against the use of word "likely" because I felt that we did not have enough evidence to support that contention. Rather, I recommended softening the wording to "fraud may have occurred." However, Auditor Pasion and Ms. Nakazawa declined to change the wording (i.e., from "likely" to

"may"). It is important to note that the wording "fraud has likely occurred" was intentionally used by Auditor Pasion in the December 15,2010 memorandum in order to provide him with an avenue to directly report the mayor's possible misappropriation of county fuel to the Office of the Prosecuting Attorney.

From the early stages of the audit and investigations, it was clear to me that Auditor Pasion, Audit Manager Lani Nakazawa and Prosecuting Attorney Iseri-Carvalho wanted the mayor's fuel use matter referred for criminal prosecution. By contrast, I simply tried to ensure conformity with county charter-required government auditing standards and to be a "voice of reason" and impartiality throughout the fuel audit and investigation process. This often put me at odds with Auditor Pasion.

Lani Nakazawa is the former County Attorney who was appointed when Bryan Baptiste became mayor in 2002 and began the era when the county charter was reinterpreted to say that the office's functions and responsibilities had no public component but rather only represented the council, the mayor and administration personnel.

As we characterized her our introduction to Chapter 11 of our serialization of Anthony Sommer's book "KPD Blue"


With “A New Mayor” in 2002 came a new era of mind boggling and often illegal secrecy and legal deception initiated by Bryan Baptiste’s new County Attorney, Lani Nakazawa.

In Chapter 11 of KPD Blue by Anthony Sommer we meet Nakazawa, the Red Queen of the Smokescreen and initiator of a new era of secret meetings and padlocked records, who now represents Kaua`i as a state “legislative liaison”- a cushy, low-work, high-pay, unbudgeted, lobbying position created by Baptiste without council approval- or knowledge.

Despite months of requests from the county council to have Nakazawa appear before them to go over the agenda for the last and the coming legislative sessions, she’s refused to appear with a new excuse every two weeks.

Meet her and get to know the real Bryan Baptiste in this week’s serialization of KPD Blue.

Getting back to Rawls' claim, so far so bad. But that's when things really went through the looking glass and Pasion was "forced" to step in to protect his ally Iseri.

In November 2010, during the course of the same fuel costs audit, information came to my attention that a number of county employees were using county-owned vehicles on a take home basis. Since county-purchased fuel was likely used by these employees for commuting and other personal use purposes, investigating this possible misuse of fuel clearly fell within the scope of my fuel costs audit. State law required that I look into all people who may have been misappropriating fuel, as a part of such a fuel-use audit - not just they Mayor.


HRS, Division 1, Title 9, Chapter 105, Sections 105-1 through 105-5, provides that it is unlawful for any county employee to use a county-owned vehicle for personal use, including commuting. Penalties for violating section 105-1 include a fine (up to $50) and/or imprisonment (up to 10 days). In addition to the statutory restrictions, I found that the county has a policy prohibiting unauthorized use of county-owned vehicles dating back to November 2002. The policy was prepared in order to ensure compliance with the aforementioned state law.


On August 4,2011, before the McCorriston-led investigations commenced, the Office of the County Auditor received a written allegation from an anonymous person asserting that the (then) elected Prosecuting Attorney and her First Deputy Prosecuting Attorney were routinely using county-owned vehicles for personal use purposes, including commuting, daily errands and the like. The use of county-owned vehicles and fuel by the prosecuting attorney and her first deputy was substantiated and was quite analogous to the situation involving the mayor's alleged unauthorized use of county fuel. I reported my findings and the possibility that the Prosecuting Attorney had engaged in illegal fuel use to Auditor Pasion. I strongly advocated that the information that we had already gathered regarding the possible unauthorized use of county-owned vehicles and fuel by county employees (including the prosecuting attorney and her first deputy) should be provided to the McCorriston investigators for their review and consideration. Auditor Pasion objected.


However, shortly before entering a meeting with the investigators at the McCorriston offices in Honolulu in mid-August 2011,1 was able to persuade Auditor Pasion to allow me to provide the anonymous allegation letter and other information regarding "take home vehicle" use to the investigators. At the meeting, the investigators immediately recognized that the possible unauthorized use of county vehicles and fuel by the Prosecuting Attorney, her first deputy, and multiple other county employees needed to be fully investigated in conjunction with the investigation of possible unauthorized use of fuel by the mayor. The investigators were unequivocal in their position and cited the likelihood of serious prosecutorial problems arising from the appearance of "selective prosecution" if different audit/investigation standards were applied to different individuals.


Nonetheless, in early-September 2011, Auditor Pasion contacted the McCorriston investigators and directed them to focus their efforts first on investigating the possible misuse of fuel by the mayor and, secondly, on a parks department employee who appeared to have misappropriated gasoline by way of county 5-gallon gas cans.


The same month, Auditor Pasion specifically directed the investigators to not investigate the use of fuel by any other employees, including the prosecuting attorney and her first deputy. It was clear to me that Auditor Pasion was trying to quash or postpone indefinitely any investigation into possible unauthorized use of county-purchased fuel (and a county owned vehicle) by the Prosecuting Attorney - in violation of the scope of the audit and in violation of State and County law.


I have also come to learn that Mr. Pasion is a close political ally of the former • Prosecuting Attorney. On the contrary, I have observed that Auditor Pasion openly disdains and disparages Mayor Carvalho.


Finally, when Rawls refused to shut up like a good little county employee he was retaliated against by Pasion by being shut out of all office activity and finally shut out of the office itself.


In late-April 2012, after receiving documents from the McCorriston investigations into the mayor's unauthorized use of fuel and the parks employee's possible misappropriation of fuel, I discussed the take home vehicles and fuel use/misuse matter with Auditor Pasion.


I believed that Auditor Pasion was knowingly failing to perform his duties, which are inherent in the nature of the Office of the Auditor, as defined in the county charter. In April 2012,1 spoke up about this misconduct and I openly recommended that Auditor Pasion recuse himself from further involvement in the take home vehicles investigation. I also confronted him at that time with a report that he had engaged in illegal quid pro quo dealings with the Prosecuting Attorney.


On May 10,2012,1 formally recommended that Auditor Pasion "self-assess" his ability to maintain auditor independence with respect to the take home vehicles audit/investigation .matter and that he consider recusing himself from further involvement. In response, Auditor Pasion lashed out at me.


Auditor Pasion then retaliated against me by excluding me from any further involvement in the take home vehicles matter. In particular, he re-assigned the take home vehicles audit/investigation to Ms. Iwasaki and he ordered me to turn over all of my papers relating to the take home vehicles matter to Ms. Iwasaki.


Auditor Pasion further subjected me to various forms of unlawful retaliation for my role in uncovering/revealing possible illegal activity by the prosecuting attorney and her first deputy, even though investigating and discovering this information was part of my job responsibilities.


Among other things, Auditor Passion encouraged the auditing staff to stop speaking to me about anything but the most essential work matters. He and/or the auditing staff began having daily, multiple and secretive closed door meetings at work, and all of these meetings specifically excluded me. He also hid my other fuel costs audit workpaper files in a locked file cabinet drawer (without telling me) and he directed Ms. Iwasaki to take control of the file cabinet key - so that I could not access the key or the contents of the office file cabinet.


On June 5,2012, Auditor Pasion called for an impromptu staff meeting in which Auditor Pasion and Ms. Nakazawa ridiculed me with false accusations about the quality and timeliness of my work. This was done in the presence of my co-worker, Ms. Iwasaki, At least three times during the meeting I told Auditor Pasion that I felt that his and Ms. Nakazawa's comments and attacking tone, as well as the subject matter (i.e., my work performance) were inappropriate for an open staff meeting and I asked him to stop it. He declined each of my requests to stop the verbal attacks.


The June 5,2012 impromptu staff meeting was held at approximately 2:30 p.m., which was approximately one hour after I submitted the aforementioned email to Auditor Pasion citing my disagreement with his decision to omit significant information from the proposed audit report to the council regarding the investigation into the mayor's use of fuel.


It should also be noted that, in the moments immediately prior to the June 5th staff meeting, Auditor Pasion held a closed door meeting with Ms. Nakazawa and Ms. Iwasaki.


Between June 5th and June 25th, Auditor Pasion subjected my cash management audit different standards than were applied to audits conducted by my coworkers. On June 25, 2012,1 filed a complaint alleging a hostile workplace and corruption within the Office of the County Auditor. Shortly thereafter, I was offered a workspace in a separate building.


Even though I was physically located in a separate workspace, I was ready, willing and able to conduct audits as required by my job description.. In July 2012, Auditor Pasion assigned me to work on an audit of parks maintenance and improvement activities, for which I promptly began performing background research (a normal audit planning phase activity).


However, beginning in early-August 2012, Ms. Pasion began taking my assignments away from me without any explanation or logical reason. More specifically: • On August 8, Auditor Pasion re-assigned the remaining portion of my responsibility for the fuel costs audit to Ms. Iwasaki. Auditor Pasion offered no explanation for this change.


• On August 10,2012, 1 submitted a detailed, seven page audit "scoping statement" to Auditor Pasion, which provided an overall framework for a proposed audit of the county parks department maintenance and improvement activities. However, instead of reviewing and approving the scoping statement as he normally does, Auditor Pasion inexplicably declined to allow me to proceed with any meaningful work on this audit. By late-September 2012, this audit completely "stalled out" when Auditor Pasion discontinued all contact with me regarding this assignment. As a result of these actions, I was no longer allowed to work on meaningful audit assignments. In short, I was denied virtually all opportunity to do my job.


Also in August 2012, Auditor Pasion sent Ms. Nakazawa and Ms. Iwasaki to a three day national governmental accounting and auditing training conference in San Diego, California. I was not told about this conference nor was I allowed to attend an alternative training conference, as normally would have been the case. I was denied this in retaliation for my insisting that the Council be provided with evidence of the Mayor's potential innocence as well as guilt, and for my suggestion that the audit also cover allegedly similar fuel misuse by the Prosecuting Attorney, the auditor's political ally.


On August 30,2012,1 formally reported the ongoing retaliation by my supervisor against ' me to the County Council, as well as the county's Human Resources department and the Office of the County Attorney. I reported that the retaliation was having an adverse impact on my ability to do my job and I requested that immediate action be taken to stop the retaliation. (Note: The council hired an investigator in September 2012, but this action did not stop the retaliation.)


Between September 2012 and November 2012, the retaliation continued and I reported it to the council's investigator. For example, I reported that my responsibility as the Office's liaison with the external. CP A firm that performed the annual financial statement audit of the county's comprehensive annual financial report (CAFR) was taken away from me without any notice. A representative from the audit engagement partner for the CPA firm told me that Auditor Pasion had informed the firm something to the effect that "Ron Rawls no longer works for the Office of the Auditor" and that all communications between the CPA firm and the Office of the Auditor should be directed to Auditor Pasion. To my knowledge, the council's investigator provided substantial documentation regarding the retaliation to the County Council in mid-November 2012. Again, however, no discernible action was taken to stop the retaliation.


Consequently, I was left sitting in a small windowless office with no audit work assignments from mid-August 2012 through my last day of work, on January 7,2013. These working conditions and the continuing retaliation and hostile work environment became so intolerable that I felt I had been constructively discharged from my employment.

Quite the tale of fear and loathing but hardly unique in the annuls of Kaua`i County.

The slew of EEOC (Equal Employment Opportunity Commission) complaints and resulting "right to sue" letters- a few of which sprang forth from the actions of Iseri herself- stand as testimony to the fact that the county "just doesn't get it."

In fact the line of former employees that are trying to submit their cases to the EEOC to obtain the required determination to file suit is so long that finding local attorneys to take the cases is at best difficult and sometimes impossible because so many have conflicts-of-interest, having sued many of the same supervisors and department heads before on behalf of various other clients.

For completeness we've included the rest of the claim which discusses the damages Rawls was/is seeking.

Thus, I have lost, at a minimum, the following money and income due directly to Mr. Pasion's unlawful retaliation:


Increase in monthly expenses:
Expense Category Kaua'i Oahu
Net Increase in Monthly Expenses
Rent $ 850 $ 1,850 $ 1,000
Utilities: Electricity, and Cable TV 0 150 150
Parking at state parking garage 0 50 50
Groceries, household items 160 260 100
Meals out 200 280 80
Inter-island flights 0 220 220
Cab fares to/from HNL or parking at HNL 0 80 80
Golf 60 180 120
Total $ 1,800


On average, my general living costs in Honolulu are approximately $1,800 per month more than my cost of living on Kauai. This equates to $21,600 per year. I have nine working years remaining before my planned retirement age of 65, and therefore the projected additional cost for me to live and work in Honolulu until I reach retirement age is $194,400.


In addition, I believe my future earnings potential has been significantly damaged. As an auditor for the Office of the Auditor on Kaua'i, I was the likely candidate to advance into the audit manager position after Lani Nakazawa retired. And I was a likely candidate to be selected for the county auditor position upon Mr. Pasion's retirement. The annual salary for the county's audit manager position is currently $103,000 per year and the annual salary for the county auditor position is nearly $115,000 per year, whereas my current annual salary as an audit manager for the Office of the State Auditor in Honolulu is $91,000. Therefore, I have lost additional future earnings potential in the amount of $12,000 to $24,000 per year. Using $18,000 per year as an average, this equates to an additional $162,000.


Together, my lost earnings potential and the additional cost of living and working in Honolulu until retirement age can be reasonably projected to be $356,400.


I am hereby making a claim against the County in this amount ($356,400). As I incur attorney's fees to protect my right to work in a place that is free from illegal activity and retaliation for reporting the same, my demand my substantially increase. I am requesting that the County engage in dialogue with my attorney, Daniel Hempey, within 30 days of receiving this claim.


April 8,2013


The story about Rawls' claim was originally reported and his statement posted by Joan Conrow last May 31 but seemingly none of Iseri's minions- nor the conspiracy theorists- have bothered to read the claim... unless of course they simply chose to ignore it. We haven't heard of any even attempting to refute it.


We don't know what the council has found in the many executive sessions over the past year. We don't even know if Rawls' statement is true or made up out of whole cloth. Certainly some of it is verifiable and if sworn depositions are taken one would have to wonder how far Iseri, Pasion and their backers would go to protect them. Perjury is after all a serious crime.


But the notion that the council is protecting the mayor is patently ludicrous. The council is made up of seven individuals who, to varying degrees, support and oppose the mayor many times depending on the issue although permanent grudges and feuds are commonplace.


And there's certainly no love lost between Iseri and Mayor Carvalho or certain other councilmembers. Rapozo has been a proxy for Iseri in almost all matters before the council which may go a long way to explaining what the hold-up in dismissing Pasion is all about.


But to think that councilmembers would all agree to coverup crimes during official (and tape recorded) meetings is nonsensical, especially when one considers how well the narrative of Iseri's political alliances and her past alleged crimes- which include multiple alleged abuses of her prosecutorial powers and retaliation against those who tried to expose them- mesh with Rawls' allegations.


But the "don't confuse me with the facts" crowd will no doubt ignore and try to defame Rawls even though his account is the one thing that makes sense through it all.


(Note: the text of Rawls' sworn statement was derived by using optical character recognition software on the PDF linked above. Although we reviewed it for accuracy OCR can contain "typos.")

 
*(Correction: Shaylene Iseri was no longer on the council when Ernie Passion was appointed to the position of County Auditor. We apologize for the error which has been corrected.)