Monday, February 9, 2009


SAME LEASH, NEW LAW: As we mentioned a few weeks ago former mayoral candidate Rolf Bieber- an open and good governance advocate- has been appointed to the oft-criticized and apparently ethically challenged Kaua`i Board of Ethics (BOE).

He vows to bring a new era of openness and (gasp) lawful processing of complaints to the board which has recently refused to abide by the basic conflict-of-interest laws of the state and county even after a proposal to eliminate the county charter’s conflict laws in Section 20.02 provisions was rejected by voters last fall.

And one of the first things Bieber has done- even before his official swearing in- is to provide members of the public and PNN with a copy of the new draft administrative rules that coincidentally are on the BOE’s agenda for the meeting this Thursday at 9 a.m. in the “Liquor Conference Room” in the Mo`ikeha building in Lihu`e.

And while some of the rule changes are designed to actually bring the board’s antiquated rules into compliance with state law, some are apparently designed to befuddle the public, shut them out of the process and give the board even more discretionary, some might say arbitrary, power than they have now.

One change that is strewn all through the document is to change references to complying with “Section XX of the county charter”- the section on ethics and the board- to read, for instance,:

These rules, made pursuant to Section 20.05 B of the Charter of the County of Kaua`i, are intended to provide for the efficient administration of the declared policy of the Code of Ethics as set forth in Article XX of the Charter (addition) or Chapter 3 of the Kaua`i County Code.

For those who don’t quite understand how laws and rules flow from one another, the charter sets the general rules and the laws, as passed by the council- in this case Chapter 3 of the Kaua`i County Code (KCC)- flows from the Charter and must abide by it. Finally the rules are based on and must abide by both and cannot contradict them.

But often, unless challenged in court for some reason, the county code can conflict with the charter- both of which must also abide by all applicable state and federal laws which supercede anything the county enacts- even if it doesn’t mean to.

OK- stay with us. By saying Chapter XX “or” KCC Chapter 3 rather than “and” the Board can now pick and choose which provision they want to follow if they do conflict.

And then it’s up to someone aggrieved to go to court and get a ruling saying the law contradicts- or is different from- the charter.

But that’s only a preliminary problem with the proposed rules because one of the things the rules seeks to do is to seemingly give the BOE the power to actually ignore complaints solely at it’s arbitrary pleasure

First it leaves in a little know “automatic rejection” phrase that, in its current rules reads

Failure by the Board to render an advisory opinion within thirty (30) days after the filing of a request therefore shall be deemed a finding of no breach of Article XX.

That of course means that if the board doesn’t want to take up a complaint but wants to allow its target to go scott-free all they have to do is procrastinate or ignore the complaint for 30 days

The board, as a matter of fact, only meets once a month and not only is there often more than 30 days between scheduled meetings sometimes meetings are cancelled when not enough members show up to constitute a quorum.

That little provision is strengthened even further by a new proposed change that states that the BOE can just reject a complaint without any reason at all and decide not to even consider the matter. The added provision says:

Deliberation. Upon receipt of a complaint, the Board shall investigate and/or deliberate on its merits. The Board may request a meeting with the complainant to gather more information. The Board may reject such complaint at this time and so notify the complainant, or decide to investigate further by calling for an informal or formal hearing.

Notice it says “may” request a meeting, which means they don’t have to and can just reject a complaint out of hand for no reason at all.

In addition the section on “informal” hearings- which is also an option open to the BOE and which has been abused in the past to hide and reject complaints- is amended to say that

The Board reserves the right to not take witness testimony.

That means that if the Board decides on an informal hearing they can just decide not to hear from anyone- including the complainant.

This codifies a current practice of the board to adjudicate matters without the subject of the complaint even being aware of it.

The formal hearing section is also extensively amended to add a lot of specifics on how the hearings are to be conducted. Though they seem appropriate and may even improve the process by getting it to follow judicial standards we suspect devils in those details too knowing the BOE’s past actions.

Then there’s a little added paragraph toward the end is particularly open to abuse and therefore ominous. It says:

Notwithstanding the foregoing, if the Board finds that an imminent peril to the public health, safety or morals requires adoption, amendment or repeal of a rule without notice of a hearing or upon less than 30 days' notice of hearing and states in writing its reason for such finding, it may proceed without prior notice or hearing upon such abbreviated notice and hearing as it finds practicable to adopt an emergency rule to be effective for a period of not longer than one hundred twenty days without renewal.

Morals? And exactly what is the BOE adjudicating that effects public heath and safety?

Who knows- but basically if they want to, they can call it an emergency, throw the rules out the window and do whatever they damn well please... including apparently conducting secret meetings with no agenda in violation of the state sunshine (HRS 92) and freedom of information (HRS 92F) laws.

Again making rules up on the spot is something they’ve been accused of routinely doing for years but this codifies the lawlessness.

Finally one of the little known facts about these BOE complaint hearings is that if the subject of the hearing requests that the hearing be conducted in a public session they must be conducted publicly. That they are “little known” is partially because the rules now are silent but state law says otherwise since the state’s “privacy” rights are generally granted to the “accused” or subject of the complaint.

And while the new rules adds one sentence saying

Open Session. The respondent may request that the hearing be held in open session. Otherwise, the hearing shall be held in closed session,

apparently what the BOE giveth the BOE taketh away with another addition saying

A contested case hearing shall be held in closed session, unless all parties to the proceeding choose to have the hearing in open session.

giving the filer or even any witness the right to close the entire matter to public scrutiny even if the subject of the complaint asks for an open hearing.

And of course even though the right of the accused to have an open hearing exists, that doesn’t mean it’s part of the information the provided to those who are accused- an oversight” that in the past has resulted in people thinking that opening the process wasn’t even possible because no one ever told them.

Bieber says that an amendment calling for notification of the right to a public hearing will be a priority for him as well as one on the “and/or” change to the “Charter/KCC" sentences.

While it seems to be a technological challenge to actually post the full set of proposed changes (with brackets for deleted and underlines for added materials) due to the limits of formatting on this “blogger” software (the underlining won’t transfer) we will send a copy via an email attachment to anyone who wants to view it. You can request a copy from us at gotwindmills (at) . Specify pdf or MS Word attachment.

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