Sunday, June 8, 2008


DUCK HUNTER: Perhaps we should be listening to the sunrise symphony every morning instead of rolling over because today Joan Conrow heard one of those little birdies and reports that we can look forward to another dot-connecting report from Derrick DePledge in case any spatially challenged among us hasn’t been able to draw the smoking gun in the Lingle-Bennett cover-up of illegal deeds and political shenanigans in the ramming of the Hawai`i Superferry up- er, down- our throats.

The focus is on the public release of public legal opinions from attorney General Mark Bennett which despite an Office of Information Practices (OIP) opinion dating back 17 years requiring them to be released, are still being withheld using an absurdly inapplicable umbrella of “attorney-client privilege” to flout the law- a law that, according to Hawaii Revised Statutes (HRS) the Attorney General is supposed to enforce.

The fact is that there are dual functions performed by government attorneys by definition. The first is to give government officials advice on public policy. The other is to advise them on personal liability for their actions in the case of potential malfeasance, malpractice and the like.

(Parenthetically there is also the function of advising them on lawsuits and the like where the official must hear confidential matter involving litigation, usually in executive session for legislators. But that is a separate category where there is an “exemption” to open meeting requirements, along with a list of seven more exempt circumstances under HRS 92-5[a] [1-8]).

When a government official needs an opinion on public policy from their lawyer- in the case of Kaua`i, the County Attorney’s (CA) office but on other islands from their “Corporation Consul” and in the state’s case the AG- they ask and if they’re lucky they receive that opinion.

But recently there has been a trend- one picked up upon by the apparently shyster Bennett- to call into the mix this “attorney-client” privilege.

Believe it or not this lawyerly convolution came from little dumb Kaua`i County although, as one might expect it was devised by a shrewd Honolulu attorney hired to be the Kaua`i County Attorney in 2002, Lani Nakazawa.

Seems that new Council Chair at the time Kaipo Asing was getting fed up with being questioned as to his performance as a long time council-person and worse, people were using “his” (in his eyes) own CA’s opinions to point out what dumb and even illegal decisions he and he council were making.

“Even your own attorney says you are a _______ (fill-in the blank with schmuck, crook, idiot or worse)” the pubic screamed in the newspapers and on TV to councilmembers’ faces at Council meetings.

But the Sunshine law was and is quite clear in it’s intent saying public policy is to be conducted publicly and that was always to be construed toward openness in the most liberal way possible.

So Nakazawa realized a couple of things

The first was that that the OIP is a toothless tiger and it doesn’t matter what it opines, we can do whatever we want and there is no mechanism for them to enforce their opinions.

And two that just because previously no one- including the law itself- ever contemplated that anyone would try to essentially say there was no such thing as public policy and so everything imaginable could be a secret, it didn’t mean she couldn’t contemplate it.

And so she made a bizarre legal claim, one no previous CA had ever contemplated according to two of them, Mike Belles who would never do it on an ethical basis and even Hartwell Blake who probably would have done it if he were bright enough to think of it.

She claimed that the attorney-client privilege we’ve all heard of applied to every interaction between a government official and the CA’s office, with the government official being the client.

This ignores of course that problem that if the public official is making an inquiry as regards public policy it is the PUBLIC that is the ultimate client. Otherwise it would be the politician part of the official not the public policy decisions maker that wanted the advice and that is clearly an abuse of power and the retaining of a special privilege in violation of all ethics laws since their campaign should pay for that- or in the case of an administration official, a part of their job-seeking and retention expenses.

But ethics is not a popular word in Asing’s dictionary. If it’s used at all it’s in toeing, ignoring or, if necessary, obliterating the ethical line.

And that was apparently true of his chief ally on this issue the two faced JoAnn Yukimura who constantly claims to be a champion of open government but has bought this little legal turd as divinely inspired to negate any questions of how a council member reached a decision in any controversial case.

What a boon for those who have to make the public happy in order to get reelected. “I had to make the decision I made but I can’t tell you why because that would violate attorney client privilege.”

It’s all very Star-Chamber stuff . But on Kaua`i Asing and Yukimura pass for the intelligencia and many, especially the press like Lester Chang bought the gobbledy gook and regurgitated it to the public in the local paper..

Except for the fact that, if you do buy this cock and bull, you have to question whether,. since it’s the “client” whose “privilege” is covered why doesn’t the client just release it?

It took months for them to come up with this one, as people like Glenn Mickens and Ken Taylor and Walter Lewis asked it to no response.

But when dumb-as-a-rock Councilmember Tim Bynum – like the idiot child who asked why the Emperor had no clothes- said he wanted to release them they told him he couldn’t because it was the whole Council who was now the client.

And when he tried to get the Council to release the opinions they told him they couldn’t because they had no “process” in place to release them- this despite the fact that they had voted to release some of them when it suited them politically since this scheme had been imagineered by Nakazawa and Asing.

According to the sunshine law all it would take would be to file a case in 5th Circuit Court to end this nonsense. But as of now no one can even get an opinion from the OIP to appeal since they fired firebrand Les Kondo as Director because he was working on this very case and replaced him with the usual gang of foot-and-knuckle-draggers afraid of their shadows .

And the problems with going to Court are multifaceted, not the least of which being finding a lawyer on Kaua`i who would take the case and risk pissing off the Council which rules on development issues... since all Kaua`i attorneys either work for or want to work for Wanton Hong or Max Graham who split up all the development shilling on the island. Or they might want to work for the government and of course suing the government wouldn’t do much for their résumé in that case either.

Plus going to court means that everything stops and the whole matter is placed on the interminable civil case calendar, typically taking years to even come before a judge for a decision.

But you would think that, since court costs are guaranteed in these “Sunshine” cases by law if you win the case, there would be an industrious lawyer making a cottage industry out of lawyering OIP and CA opinions.

But it turns out it’s like the old joke about the farmer and the hunter and the duck. The hunter shoots the duck and it lands in the farmer’s yard. They argue over whose duck it is for a while and the farmer proposes that they take turns kicking each other in the crotch until one of them gives up. The farmer goes first since he’s holding the duck and after the hunter spends a ten minutes on the ground writhing in pain he gets up and says “OK- it’s my turn”.

To which the farmer say “that’s ok- you can have the duck”.

And that’s been the situation with winning Sunshine law cases in court. What anyone who has tried that has found out is that you can spend months, even years, trying to get a document or some minutes and by the time the judge is ready to rule, the information sought has become so moot or outdated that the morning of the trial the County comes in and says “ok- you can have the duck” and hands over the document.

Then the now useless document technically wasn’t given to you because you “won” the case, they gave it up voluntarily. So the lawyer doesn’t get paid for hundreds of hours of work..

No one ever heard this of this business of applying attorney client privilege to public policy opinions before and maybe Bennett and his cohorts- even Lingle herself- figured this out this scam on their own. But our hearts swell with pride in thinking that this scam originated on stumble-bum Kaua`i, giving us hicks some prestige in having our big city cousins adopt a method of screwing the public that we came up with.


Anonymous said...

Cool Andy,

Get a whole posting from Joan's Sunday post and information provided by commentators. Original?

Anonymous said...

Lani was not doing anything new. Back in D.C., G.W. and his A.G. were invoking the same sort of atty - client privilege arguments. Elect bad guys, get bad policy. The law provides too little too late in such circumstances. So who are our viable alternate candidates for the next council election? Shalene will account for at least one new slot. Andy Parx for council?

Anonymous said...

That would be amusing. At least he'd have a reason to be there.

Let's vote for Bob the Can man instead though. More likely we'll get stuck with Ron Kouchi Junior (Kawakami)

Andy Parx said...

Bob Carriffe may just be the only one I’ll vote for. I like his reason for running- so his wife will take him back. I remember being at Candidates Night at the County Fair a few years back and we left during the speeches and listened to it on the radio. Kaipo got up and told everyone we needed to spend $30 million for solid waste and talked for 10 minutes about landfills and such. the bob got up and promised to get rid of the mosquitoes. It was at that moment that I realized that to the uninformed voter listening on the radio the obvious choice for most malahini was Bob.

It send the message “you guys are such bozos I’d rather vote for a nut case”.

Andy Parx said...

(as i mentioned at Joan's site)

That’s the point- when does getting “advice on duties” become a request for an opinion? Is it just the say so of the one asking the question? The new current system seems to say that it just an arbitrary- and then probably capriccios- choice so as to make any distinction impossible. But there is a law saying “opinions” are public as opposed to advice on duties so it must mean something has to be an opinion.

Is it whether it’s in writing that makes the difference- that seems silly. It would seem that when the opinion regards public policy it is no longer a simple question on the official’s duties, which is a pretty limited term to begin with.

Do duties include politics? I don’t think so no matter how ubiquitous political considerations are in the performance of government officials. “Common sense” says political considerations it what is wrong in decision making not that it’s something we embrace- or should even put up with, human nature notwithstanding