Wednesday, March 18, 2009


LETTING SLEEPING DOGS LIE.. AND LIE... AND LIE AGAIN: Amidst all the secrecy, paternalism and arrogance of certain members of the Kaua`i County Council one of the most irksome tendencies has been to blame everyone in the world for their own foibles and blunders, taking the last words on any particular subject and spinning a cloak of their own excellency from whole cloth.

Last Friday (3/13) though the emperor’s fabrications were temporarily made transparent when that tact blew up in their faces, especially on the noggin of Chair Kaipo Asing after he lit into the Public Access and Open Space Commission in an emotional tirade over their alleged dereliction of duty and a lack of attention to their “top priority”- reestablishing lost public accesses to the beaches and the mountains.

“I’m very disappointed” Asing told commissioners Jean Souza and Beryl Blaich after their yearly report to the council where they presented a list prioritizing recommended land purchases for the county.

Asing’s voice was tinged with rage in a lengthy tirade blaming the commission for abandoning the issue of closed accesses which he called “the very reason” for the existence of the commission.

“What is happening?” he repeated, saying instead of concentrating on identifying existing accesses “the commission continues to go in another direction” by prioritizing new land parcels for county acquisition and ignoring access.

Vice Chair Jay Furfaro then detailed how he Asing and councilmember Daryl Kaneshiro passed this wonderful ordinance that would fund the efforts to identify and eventually reopen closed accesses, seemingly- to those who didn’t know better- taking credit for the whole idea of the fund along with Asing but never mentioning the Charter Amendment that was conceived, drafted and proposed solely by then outgoing Councilmember Gary Hooser.

But things quickly turned when Councilmember Tim Bynum took the floor.

“I want to put the responsibility where it lies” he told the council, audience and Blaich and Souza.

And that apparently was with the administration and council, not the commission

The real reason for commission inaction is that the administration has used a poorly written ordinance to ban the commission from even discussing re-establishing access, not just by denying them the information gathered by a designated department planner but by refusing to allow them to even put the matter on their agendas.

In addition funding for a position for an “open space planner” has been deleted in the new budget submitted by the mayor last week.

“I can’t tell you... the level of frustration” said Souza after finally being given the opportunity to explain, since Asing had refused to allow any response to his attack despite attempts by Blaich to respond.

Souza told the council that there is- get ready, here we go again - a secret county attorney’s opinion saying that the only thing the ordinance allows them to do is to “get public input and make a list” of parcels that the county might want to buy with money from the open space and access preservation fund which, by charter, contains 0.5% of the real property taxes collected since 2003.

“We’ve been fighting with our legal folks” to no avail said Souza explaining how even the information from a planner in the planning department that was assigned to investigate the access issue and pick the “low hanging fruit” was eventually cut off from the commission’s purview before they were eventually forbidden from even discussing the matter at their meetings.

“It’s important to clarify that your hands have been tied” said Bynum to Souza and Blaich after Asing’s tirade had been shown to be uninformed at best, typically disingenuous and self serving at worst.

While Souza chose her words in a painfully deliberate manner Blaich was less circumspect. She told the whole sad story in detail telling the story of how “staff has refused to give us information and we have not been able to put it on our agenda” adding that “we couldn’t even put that in our report”.

She explained how they wanted to put all this in the presentation they were making but when they got their report back from the county attorney the section on access had been replaced with an innocuous little passage about how “access remains a top priority” but saying little else about the way the administration- and council by ignoring the alleged problems contained in the ordinance- have been negligent in getting together to figure out why their “top priority” remains wholly unaddressed.

Bynum pulled no punches on the role of the council in this even though it was quite obvious most of the blame lay with the administration saying “I want to make sure we aren’t holding the commission responsible”

“It falls on the administration AND council” he said, adding “I’ll take responsibility”.

In testimony, former Councilmember JoAnn Yukimura put the blame only on the administration calling it a “lack of leadership on the part of the mayor” and disregarding council inaction in the face of two years of commission reports that didn’t address the access issue.

She chided both the late Mayor Bryan Baptiste and current Mayor Bernard Carvalho saying she was sure if then temporary Mayor Asing had served long enough he would have formed a “SWAT team” of the administration, the council, the county attorney and the commission to solve the impasse.

“The work can be done today with leadership” she said in denying that the bill she and Furfaro introduced was defective for the purposes of exploring access.

Most likely this all boils down to this secret county attorney’s opinion- yet another in a string of baffling actions and inactions blamed on such edicts. Although we have of course been unable to examine the opinions, one model seems to be become apparent to explain how the conclusions have been reached, based on the public statements made by those who have seen them.

In our analysis the emerging pattern seems to indicate that what many of the opinions have in common is that they apparently use the text of enabling legislation- i.e. the current ordinance or law- to define and proscribe provisions in the county charter rather than the other way around as it’s supposed to be under the primacy principle.

Many of these opinions seemingly rely on provisions in ordinances that are interpreted in a way so as to contradict the charter and in some instances the opinions apparently rely on only the ordinance when, if both the charter and ordinance are read together they would necessarily produce different conclusions.

What is becoming more and more apparent when looking at these opinions is that a lot of them need revisiting and word on the street is that that new County Attorney Al Castillo seems to be leaning in that direction.

No comments: