SPOTLESS: When it comes to blogs not all are created equal.
Though what we do is no different than the news analysis and op-ed type column we’ve been writing on and off for 25 years- except for the freedom to extend to 12-1500 words from the standard 800 limit that the newspaper “news hole” imposes- we have suddenly morphed into a blogger.
So be it. Although we often run straight PNN news it’s all in one place due to our sketchy ability to manipulate the technology beyond what the “blogger” software provides.
Not so for the oxymoronic “on-line newspaper” where their reporters can file standard stories and also post “blogs”- if they dare
Trouble is few do. Most of the hard news reporters who have tried such as KITV’s Darryl Huff quickly remove themselves from the fray after finding the opportunity to express themselves is countered by the exposure to vagaries of public discourse with readers.
Perhaps the only one who has done it successfully with any consistency is Honolulu Advertiser’s Derrick DePledge.
None can dispute the hard news value of DePledge’s blog posts. They are often the only coverage of some of the most important events of the day that eventually appear in the headlines of the Advertiser and other papers.
And therein lies the pitfall.
What at face value is a value-added feature, at times turns into a dumping ground for important stories that corporate overlording editors either don’t want to see in print or don’t see the importance of so they wind up before a handful of on-line readers instead of the thousands that their print or even regular on-line coverage reaches.
While more and more people turn to independent blogs as a source of news outside corporate control, the corporate press has apparently usurped that independence and actually used it to counter the charge that they are ignoring certain stories by relegating them to blogs like DePledge’s.
One example is the story of State Rep. Joe Bertram’s (D-Makena-Kihei) defense of a man accused of being a child predator after being caught in one of those “Dateline” style entrapments where there is no actual child involved- a police tactic Bertram called an “imaginary crime” invoking images of the Orwellian thought police.
Bertram became the target of whack job Willes Lee head of the Hawai`i Republican Party who started a radio ad and eventually a TV campaign spinning Bertram’s support of constitutional rights as being “pro child molester”.
But aside from a couple of posts here defending Bertram-electing the same accusations against us- the story was the chief province of DePledge’s blog with a couple of posts on the story as it evolved.
No one but those who perused DePledge’s “Notebook” would have known anything about the story until today when, not DePledge or the Advertiser but the Associated Press picked up the story that Lee decided for reasons unknown to “cut it out” and pull the ads, presumably due to outside pressures- an accusation upon which Lee had “no comment” according to AP.
But if that story could be excused from prime time coverage due to some kind of anti “inside baseball” rule editors often use to dismiss reporters’ stories, it has to make us wonder what the editor was thinking when he relegated DePledge’s coverage of the last minute petition campaign to revive HB 444, the civil unions bill.
Even though the activists, pushing the revival and the petition, put on a full court press on the media, the advertiser’s sum total of coverage was in DePledge’s blog and the Advertiser has yet to run a story on the subject, even after a couple of TV news stations finally relented and ran stories on the filing of the 7000-plus name petition.
DePledge has to be commended for hanging in there with his blog especially after episodes like our post the other day wondering, along with a couple of other bloggers- Poinography!’s Doug White and Kauai Eclectic’s Joan Conrow- why the scrupulously “objective” reporter apparently signed the petition
White had his comment asking about it on DePledge’s post deleted- “accidentally” according to DePledge- from the post and Conrow left a comment on our post saying “(b)etter be careful, Derrick. You wouldn't want someone ratting you out to the editors as a political activist.”.
That seeingly refers to the fact that she lost the race for the job as Advertiser Kaua`i Bureau chief after long time reporter Jan TenBruggencate retired last year when, she says, DePledge turned her in to the editor for an alleged lack of “objectivity” in covering the Superferry story for the paper after she expressed her opposition to the project in her blog.
Then when Conrow tried to post a comment on DePledge’s original post she found herself “awaiting moderation” until it was finally posted today
All that that apparently forced DePledge to put on a full court of his own to clear his name and reputation.
Sensing that it didn’t look good DePledge, after unequivocally saying he didn’t sign the petition, went to the source of the email he cited- and posted portions of along with a personalized URL that provided the petition with a “signed Derrick DePledge” at the bottom- and got an explanation for why he received a copy with his name from Alan R. Spector who organized the emailing campaign to the media and supporters.
He wrote to DePledge saying that:
I just verified all the signatures and your name is not on our petition.How did you get the URL that you posted on your Blog?the correct URL should be
http://eqfed.org/campaign/cupetition
You indicated a different URL (below). that one takes you to a page that auto fills out your info.
http://eqfed.org/campaign/cupetition/8wi8esd4h7k3k5kj
I just figured out what happened. You are entered in our database as a media contact only. On April 27, you received an email from us with a link to the petition. It was my understanding that this was going out to just "General Members" and not "media contacts". Don must have goofed when he ran the query. I noticed that it also went out to media in error. That URL is specific to your account. It makes it easy for our members to click on a link, whether it be an action alert, petition, etc, and have everything automatically filled out based on the information we have on file. In your case, just a name, email, and phone number but no address.
No other media we contacted received an email with that “error” and none of our six emails- all in the form of letters urging us to write about the petition, not press releases per se, contained anything but a “blank” form.
It’s no wonder many if not most MSM reporters refuse to blog, especially with the “appearance of impartiality” requirements of the job and the exposure to criticism reporters face if they “blog”.
“Objectivity” and “lack of bias”, while mythical, remains an imperative of the late 20th and early 21st century press. It’s always been exercise is futility and duality when juxtaposed with the first-day journalism school axiom of “news is what we say it is”.
It insults the intelligence of the reader to think that reporters and editors are either something less than human and that people cannot separate opinion from factual reporting even within a single piece or handle a first person style that is at the core of the news analysis of the now half-century of “New Journalism" originated by Tom Wolfe and Hunter Thompson among others.
No one with a modicum of sense reading this could confuse the opinions in preceding two paragraphs from the factual material reported above it. But somehow it is considered something less than reporting when the reporters expose their preconceptions in order to give readers an accurate prism through which to read the piece rather than try and obfuscate the biases all humans have.
The only ones who complain about the biases of the media are those whose biases are exposed and contradicted by the elements of factual reporting. But as long as the mainstream media insists they are something they can’t be, people like DePledge will come under scrutiny, not necessarily for actual bias but for the contention of the lack thereof.
Thursday, April 30, 2009
Wednesday, April 29, 2009
FIRST THERE IS A STICK, THEN THERE IS NO STICK, THEN THERE IS
FIRST THERE IS A STICK, THEN THERE IS NO STICK, THEN THERE IS: Some are astounded, some are ambivalent, some are apathetic, some are angry.
But no one who watches the twice-monthly circus on TV should be baffled at the Kaua`i Planning Commission’s approval of an extension of the zoning permits for the Coco Palms developers.
The commission isn’t chock-full-o-nuts, it’s just choke pre-corrupted citizens who operate at the behest of revolving door planners whose only relationship with smart growth principles are that they think themselves too smart to be principled.
It’s not surprising that new commissioner Hartwell Blake most likely voted for the measure (we only know the vote was 6-1 according to this morning’s brief notice in the local paper). The former county attorney for former Mayor Maryanne Kusaka- who, along with her flunkies took a financial beating in the collapse of the project- was pre-approved for serving the interests of developers during his years aiding and abetting the crimes of Kusaka.
Blake recently was rubber-stamped by the council to fill the “environmental” slot on the commission recently when no one from the organized environmental community stepped up to object his lack of credentials or offer themselves for service despite by attempts by rookie councilperson Lani Kawahara to get them involved in the council’s decision.
And, although many thought that perhaps former progressive Democratic Party stalwart Commission Chair Jimmy Nishida might actually represent the community’s interests, once he sold his soul to upzone some of his vast Wailua ag land holdings to residential- supposedly so he could put up as yet unbuilt, promised but not required to be, “affordable” housing- he went the way of Kaipo Asing who also not so coincidentally did a 180 after being granted a personal zoning favor by the county council in the 90’s.
But the real brains behind the extension was planner Mike Lauretta- a charter member of the conflicted, revolving-door, old-boys network, having moved back and forth with ease from his position with the planning department to the employ of developers over the years.
His convoluted plea at the last commission meeting was no doubt the deciding factor for many planners, even though his spiel flew in the face of a vast movement to obtain the abandoned hotel for use as a cultural park.
Everyone from Lihu`e Business Association chief Pat Griffin, to State Senator Gary Hooser to Kanaka activist Nani Rogers and hundreds if not thousands of people- from the average working Keone to the highest mucky mucks of all stripe- have watched as the community got scammed by the current owner and waited for yesterday so the value of the property would plummet to an affordable realm so the poised-for-success project could go forward once the property was valued at an “undevelopable” price.
At the previous meeting Lauretta launched into a “where are they all with specific plans and funding?” spiel, despite the packed chamber and dozens who filed up to ask the commission to reject the extension so the long-envisioned park project could be realized.
Lauretta simply ignored the fact that land is just land but land with the rights to develop it is worth it’s weight in gold, at least doubling if not tripling it’s value in the case of Coco Palms.
He listed all the people who had not come up with the money and the plan- DLNR, Hooser, OHA and a slew of others who have in fact put forth extensive plans and commitments and are waiting for the commission to put the final nail in the developer’s coffin after the “two local guys from Princeville”- who turned out to be shopping center developers from Maryland- intentionally put the kibosh on their own permits by asking for a “spa” in a place and of a nature that they could be assured they would be rejected, after their funding disappeared in the real estate bubble-burst.
Under Planning Director Ian Costa- whose conflicts and corruption go back to the grubbing and grading cover-ups during the Kusaka administration that ended up on the Pflueger debacle- the commission has become an incompetent joke. The members are selected solely for their ability to do the bidding of Costa who actually serves at the pleasure of the commission according to the county charter... that and a seemingly pierced nose to accommodate the tethered ring Costa apparently installs upon their swearing in.
The problem is that commission rules conveniently leave out any process for removing a sitting planning director and not only have none ever been removed (the past ones have all resigned and gone on to represent developers, even before the commission and department) the ones that have served have all been “appointed” by the Mayor and rubber stamped by the commission without any inkling sometimes that they even know they have the power to do a search for a skilled competent director and hire one on their own.
The three year extension for all intent and purpose puts the cultural park on the back burner thanks to Lauretta’s threats that the property will just become more of a public nuisance and the commission’s usual “fool me a hundred times, fool me a hundred-and-one times” stupidity in believing the owners will clean up the place now when they’ve refused to do so for many years.
Expect a sale of the property to another developer soon when we’ll all issue a particularly unsatisfying “we told you so”.
But no one who watches the twice-monthly circus on TV should be baffled at the Kaua`i Planning Commission’s approval of an extension of the zoning permits for the Coco Palms developers.
The commission isn’t chock-full-o-nuts, it’s just choke pre-corrupted citizens who operate at the behest of revolving door planners whose only relationship with smart growth principles are that they think themselves too smart to be principled.
It’s not surprising that new commissioner Hartwell Blake most likely voted for the measure (we only know the vote was 6-1 according to this morning’s brief notice in the local paper). The former county attorney for former Mayor Maryanne Kusaka- who, along with her flunkies took a financial beating in the collapse of the project- was pre-approved for serving the interests of developers during his years aiding and abetting the crimes of Kusaka.
Blake recently was rubber-stamped by the council to fill the “environmental” slot on the commission recently when no one from the organized environmental community stepped up to object his lack of credentials or offer themselves for service despite by attempts by rookie councilperson Lani Kawahara to get them involved in the council’s decision.
And, although many thought that perhaps former progressive Democratic Party stalwart Commission Chair Jimmy Nishida might actually represent the community’s interests, once he sold his soul to upzone some of his vast Wailua ag land holdings to residential- supposedly so he could put up as yet unbuilt, promised but not required to be, “affordable” housing- he went the way of Kaipo Asing who also not so coincidentally did a 180 after being granted a personal zoning favor by the county council in the 90’s.
But the real brains behind the extension was planner Mike Lauretta- a charter member of the conflicted, revolving-door, old-boys network, having moved back and forth with ease from his position with the planning department to the employ of developers over the years.
His convoluted plea at the last commission meeting was no doubt the deciding factor for many planners, even though his spiel flew in the face of a vast movement to obtain the abandoned hotel for use as a cultural park.
Everyone from Lihu`e Business Association chief Pat Griffin, to State Senator Gary Hooser to Kanaka activist Nani Rogers and hundreds if not thousands of people- from the average working Keone to the highest mucky mucks of all stripe- have watched as the community got scammed by the current owner and waited for yesterday so the value of the property would plummet to an affordable realm so the poised-for-success project could go forward once the property was valued at an “undevelopable” price.
At the previous meeting Lauretta launched into a “where are they all with specific plans and funding?” spiel, despite the packed chamber and dozens who filed up to ask the commission to reject the extension so the long-envisioned park project could be realized.
Lauretta simply ignored the fact that land is just land but land with the rights to develop it is worth it’s weight in gold, at least doubling if not tripling it’s value in the case of Coco Palms.
He listed all the people who had not come up with the money and the plan- DLNR, Hooser, OHA and a slew of others who have in fact put forth extensive plans and commitments and are waiting for the commission to put the final nail in the developer’s coffin after the “two local guys from Princeville”- who turned out to be shopping center developers from Maryland- intentionally put the kibosh on their own permits by asking for a “spa” in a place and of a nature that they could be assured they would be rejected, after their funding disappeared in the real estate bubble-burst.
Under Planning Director Ian Costa- whose conflicts and corruption go back to the grubbing and grading cover-ups during the Kusaka administration that ended up on the Pflueger debacle- the commission has become an incompetent joke. The members are selected solely for their ability to do the bidding of Costa who actually serves at the pleasure of the commission according to the county charter... that and a seemingly pierced nose to accommodate the tethered ring Costa apparently installs upon their swearing in.
The problem is that commission rules conveniently leave out any process for removing a sitting planning director and not only have none ever been removed (the past ones have all resigned and gone on to represent developers, even before the commission and department) the ones that have served have all been “appointed” by the Mayor and rubber stamped by the commission without any inkling sometimes that they even know they have the power to do a search for a skilled competent director and hire one on their own.
The three year extension for all intent and purpose puts the cultural park on the back burner thanks to Lauretta’s threats that the property will just become more of a public nuisance and the commission’s usual “fool me a hundred times, fool me a hundred-and-one times” stupidity in believing the owners will clean up the place now when they’ve refused to do so for many years.
Expect a sale of the property to another developer soon when we’ll all issue a particularly unsatisfying “we told you so”.
Tuesday, April 28, 2009
KIBBLES AND BITS
KIBBLES AND BITS: The push to revive HB 444, establishing civil unions, is on with three, count ‘em three, emails from activists arriving with petitions under Senate Rule 67, not in our usual yahoo email account but in the gotwindmills(at)gmail inbox listed only at the bottom of our “right rail”, showing the work that’s going into the effort.
One link was for a sheet you can print out and circulate and another is for signing it electronically.
The petitions got some play from Honolulu Advertiser capitol reporter Derrick DePledge, not in an article but in his blog. which contained a link to the electronic petition web site.
But the scrupulously “objective” DePledge didn’t count on the electronic fingerprints the internet often provides because the link he provided was apparently lifted from the site after he personally signed it with “Signed by: D. DePledge [Your address]” at the bottom of the linked page and a note saying “If you are not D. DePledge, click here” where the sign-in portion appears.
-----------
It seems like follow-up Tuesday and although it was stated over and over at last Wednesday’s council meeting that there would be a written plan available “by tomorrow” (last Thursday) for flushing a million county dollars down the rat-hole of Kaua`i tourism “marketing”- as we described last Friday- a request for the supposedly detailed strategy at council services yesterday elicited some scratched heads and only a re-regurgitation of the one-page appropriation bill
So far no one seems to care, even those who need the services that will be cut in next year’s budget. Perhaps it’s because those that whine about government spending are commonly the self-same types who populate the board rooms at the hotel plantations, whose bottom line is all that will benefit most from the corporate welfare.
---------
We still have not received our promised “expedited" rejection of our request for the particulars of apparently fired deputy County Attorney Margaret Sueoka’s discrimination suit against the county allowing us to file with the state to declare the public interest in the case more important than Sueoka’s privacy.
But we were struck that, unless you were a reader of our news article last week or the agenda for last Wednesday’s meeting, her name would not be known to you.
Seems that when the agenda item was read aloud to appropriate the $50,000 to fight the EEOC charge, along with another for an executive session where the real decision to spend it was made, the name of the litigant was glaringly omitted, depriving the home viewing public the specificity that the sunshine law requires of the agenda items themselves if not the public reading of them.
We’ve heard through sources- although we still cannot confirm it through new County Attorney Al Castillo, who apparently was the one who fired Sueoka since she was still working for the county attorney’s office until he came on board- that our speculation that Sueoka was canned for her past work and a “difference in philosophy” and not due to her gender, race or any other “protected class” status, was pretty much right on target. We’ll keep you informed.
-------
We certainly don’t have an exclusive beat in uncovering county corruption although it might seem so when perusing the “all fluff all the time pages” local newspaper.
If you haven’t seen it take a gander at Joan Conrow’s bombshell as an adjunct to a Kaua`i People piece she wrote on Uncle Bernard Mahuiki, the trash-master at the Hanalei Transfer station.
Unfit for the local paper’s wholly owned freebie, mid-week advertising-throwaway, Joan relegated the real news to her Kaua`i Eclectic blog where she wrote in prose so disarmingly charming and folksy you might have missed the significance of what you were reading
( Mahuiki) said he was given a list of guys — cronies of county bosses — who shouldn’t be asked for their pre-paid tickets to dump commercial waste because they were getting freebies. In that case, he told them, I won't ask for anyone’s tickets. Oh, you can’t do that, he was told. I can and I will, he replied. Either everybody pays or nobody pays.Folks often think that really big money changes hands in back room deals and friendly favors. But a lot of times, it’s pretty manini, like $10 or $20 bucks a day in waived dumping charges. Still, as Uncle Bernard noted, that does add up over time.
Just how much info does the FBI need for it’s investigation we reported last December?
-----------
Finally check out right-wing, yet strangely also sometimes intelligently written Big Island blogger Aaron Stene and his post regarding our defense of State Rep. Joe Bertram’s fear of the “thought police” taking over by prosecuting “imaginary crimes” where alleged on-line child predators are prosecuted for soliciting, not actual children but, cops posing as children.
Stene calls our defense “disgusting” and as we predicted tries to paint the issue as one of Bertram- and us- being pro-child molesting instead of one of punishing people for their thoughts and ignoring the substitution of expedient yet unconstitutional measures in supplanting the good yet difficult police work that identification and surveillance would entail... as do others who commented on the piece.
Stene asks “Andy, I guess you haven't seen Chris Hansen's To Catch a Predator.” Yes we have, speaking of disgusting....
There’s nothing wrong with surveiling a suspect when probable cause exists to think they will commit an actual crime and doing so until he or she actually attempts one. But there is in entrapping that individual. The only thing disgusting is the thought that some- be they sick or otherwise- don’t deserve and in fact have the same rights as everyone else.
It isn’t just child predators, drug dealers and terrorists that are caught in these new laws that the current anti-civil rights US. Supreme Court claims trump your rights in the name of providing for the catch-all safety and welfare of the nation.
Lately protest groups and activists have been caught up in roundups of those who have committed no crime but have thought about committing non-violent civil disobedience such as occurred during the Republican Convention last summer.
---------
Well, go Rangers... and take the Knicks with you.
One link was for a sheet you can print out and circulate and another is for signing it electronically.
The petitions got some play from Honolulu Advertiser capitol reporter Derrick DePledge, not in an article but in his blog. which contained a link to the electronic petition web site.
But the scrupulously “objective” DePledge didn’t count on the electronic fingerprints the internet often provides because the link he provided was apparently lifted from the site after he personally signed it with “Signed by: D. DePledge [Your address]” at the bottom of the linked page and a note saying “If you are not D. DePledge, click here” where the sign-in portion appears.
-----------
It seems like follow-up Tuesday and although it was stated over and over at last Wednesday’s council meeting that there would be a written plan available “by tomorrow” (last Thursday) for flushing a million county dollars down the rat-hole of Kaua`i tourism “marketing”- as we described last Friday- a request for the supposedly detailed strategy at council services yesterday elicited some scratched heads and only a re-regurgitation of the one-page appropriation bill
So far no one seems to care, even those who need the services that will be cut in next year’s budget. Perhaps it’s because those that whine about government spending are commonly the self-same types who populate the board rooms at the hotel plantations, whose bottom line is all that will benefit most from the corporate welfare.
---------
We still have not received our promised “expedited" rejection of our request for the particulars of apparently fired deputy County Attorney Margaret Sueoka’s discrimination suit against the county allowing us to file with the state to declare the public interest in the case more important than Sueoka’s privacy.
But we were struck that, unless you were a reader of our news article last week or the agenda for last Wednesday’s meeting, her name would not be known to you.
Seems that when the agenda item was read aloud to appropriate the $50,000 to fight the EEOC charge, along with another for an executive session where the real decision to spend it was made, the name of the litigant was glaringly omitted, depriving the home viewing public the specificity that the sunshine law requires of the agenda items themselves if not the public reading of them.
We’ve heard through sources- although we still cannot confirm it through new County Attorney Al Castillo, who apparently was the one who fired Sueoka since she was still working for the county attorney’s office until he came on board- that our speculation that Sueoka was canned for her past work and a “difference in philosophy” and not due to her gender, race or any other “protected class” status, was pretty much right on target. We’ll keep you informed.
-------
We certainly don’t have an exclusive beat in uncovering county corruption although it might seem so when perusing the “all fluff all the time pages” local newspaper.
If you haven’t seen it take a gander at Joan Conrow’s bombshell as an adjunct to a Kaua`i People piece she wrote on Uncle Bernard Mahuiki, the trash-master at the Hanalei Transfer station.
Unfit for the local paper’s wholly owned freebie, mid-week advertising-throwaway, Joan relegated the real news to her Kaua`i Eclectic blog where she wrote in prose so disarmingly charming and folksy you might have missed the significance of what you were reading
( Mahuiki) said he was given a list of guys — cronies of county bosses — who shouldn’t be asked for their pre-paid tickets to dump commercial waste because they were getting freebies. In that case, he told them, I won't ask for anyone’s tickets. Oh, you can’t do that, he was told. I can and I will, he replied. Either everybody pays or nobody pays.Folks often think that really big money changes hands in back room deals and friendly favors. But a lot of times, it’s pretty manini, like $10 or $20 bucks a day in waived dumping charges. Still, as Uncle Bernard noted, that does add up over time.
Just how much info does the FBI need for it’s investigation we reported last December?
-----------
Finally check out right-wing, yet strangely also sometimes intelligently written Big Island blogger Aaron Stene and his post regarding our defense of State Rep. Joe Bertram’s fear of the “thought police” taking over by prosecuting “imaginary crimes” where alleged on-line child predators are prosecuted for soliciting, not actual children but, cops posing as children.
Stene calls our defense “disgusting” and as we predicted tries to paint the issue as one of Bertram- and us- being pro-child molesting instead of one of punishing people for their thoughts and ignoring the substitution of expedient yet unconstitutional measures in supplanting the good yet difficult police work that identification and surveillance would entail... as do others who commented on the piece.
Stene asks “Andy, I guess you haven't seen Chris Hansen's To Catch a Predator.” Yes we have, speaking of disgusting....
There’s nothing wrong with surveiling a suspect when probable cause exists to think they will commit an actual crime and doing so until he or she actually attempts one. But there is in entrapping that individual. The only thing disgusting is the thought that some- be they sick or otherwise- don’t deserve and in fact have the same rights as everyone else.
It isn’t just child predators, drug dealers and terrorists that are caught in these new laws that the current anti-civil rights US. Supreme Court claims trump your rights in the name of providing for the catch-all safety and welfare of the nation.
Lately protest groups and activists have been caught up in roundups of those who have committed no crime but have thought about committing non-violent civil disobedience such as occurred during the Republican Convention last summer.
---------
Well, go Rangers... and take the Knicks with you.
Monday, April 27, 2009
YANKING ON THE CHOKE-CHAIN
YANKING ON THE CHOKE-CHAIN : Among red diaper babies who came of age in the sixties, when paranoia struck deep into our lives it often crept in the form of a book which had not yet come of age- George Orwell’s 1984.
Written in 1948, at it’s then futuristic heart was a depiction of the now common practice of using less ominous euphemisms to replace hot button words with cooler though less accurate language.
Sure enough the practice was perfected during the Regan years and has become a de rigor cog of the modern political spin machine.
At first the press was skeptical but as real journalism devolved into a quick juxtaposition of unexamined opposing quotes of the “he said she said” ilk, truth became a casualty and “they say it- we print it” became the standard M..O. for every corporate reporter and editor.
What used to be episodes of acknowledged Orwellian doublethink- and the resultant popular term doublespeak, which is actually not part of the book- are now part of a widely accepted Orwellianism that doesn’t even elicit a second thought from the Joe News-consumer.
So it’s not really surprising that every- and we mean every- news report about the Bush administration’s torturing of prisoners refers to “enhanced interrogation techniques” sometimes adding “that some refer to as torture”
No! (and we don’t use exclamation marks lightly). What are we, freakin’ idiots? It’s torture- it never was and never will be anything else. The only ones who call it “enhanced interrogation” are the ones who tortured people.
The fact that some wigged-out wise-asses tried to write their way out of it at the behest of the administration overlords doesn’t make it anything but torture under an assumed name.
But the mainstream corporate press is so entombed in the cacophony of their own echo chamber that they can actually no longer press the BS button and report the “truth”, allowing special interests to dictate the very language that the last generation so profoundly feared would supplant the apparent.
Perhaps due to 21st Century corporate-style reporting, apparently the current “current occupant”- to use humorist Garrison Keilor’s catch-phrase for the last White House denizen- is perfectly happy being every bit as lawless as his predecessor, using George Bush’s creative constitutionalism to think himself enough of a “unitary executive” to say who is and isn’t above the law.
It is illegal to the US to torture prisoners, not just under international law but under the 1988 U.N. Convention Against Torture that Ronald Regan signed, making the law of the land.
What’s even worse than the misuse of language may be the notion that somehow “it worked” so it’s all an “ends justifies the means” wash.
Where to start with this little bit of disingenuous drivel, where to start?
We could start with the fact that the ends rarely justify the means.
Or we might ask who defines “works”... Dick Chaney? His citation of the fact that there hasn’t been another 9/11-style incident to show it “worked” is like the old joke about the guy wearing a tin-foil hat, dancing on one foot on the center stripe of the freeway, saying he’s keeping away the elephants and citing the lacking proximal presence of pachyderms as proof of his success.
Only a war-criminal could ignore decades of research showing that torture does not work.
The latest in a long line of interrogators who have almost unanimously reached this conclusion is U.S. Major Matthew Alexander -a named assumed for security reasons- who personally interrogated 300 Iraqi prisoners.
According to the UK newspaper The Independent, in his book with John R Bruning called “How to Break a Terrorist: The US interrogators who used brains, not brutality, to take down the deadliest man in Iraq”, he details what everyone from the FBI to the CIA to every cop-on-the-beat knows- that developing a relationship with a subject is what elicits information.
Torture elicits, at best no information and at worst incorrect information and “confessions” from those who will say whatever the torturer wants to hear, many times “information” designed to mislead and sometimes to injure those in whose name the torture is performed.
The squishy moral center of American political leadership isn’t something new- for all the deification of the founding fathers their genocide of 30 million native Americans and enslavement of an equal number of Africans sometimes makes the Nazis look like incompetent amateurs.
According to Wikipedia the Nuremberg Principles were a set of guidelines for determining what constitutes a war crime, set down during the Nuremberg trials of Nazis after WWII and signed by the U.S.
Principle IV says:
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
That’s principle came as a result of the famous Nuremberg Defense used by those who, like the CIA personnel and others in Iraq and Guantanamo, were “ordered” to torutre or kill but said they were not responsible because they were “just following orders.”
As important for President Barack Obama, who has apparently “decided”- or at least “instructed” the Attorney General- not to prosecute the actual torturers, is Principle VII which says:
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.
Complicity under U.S, law includes obstructing justice especially to hinder prosecution which would make Obama an accessory to war crimes if he bans prosecution of those covered under Principle IV.
It should also be noted that war crimes include not just actual torture but any “ill-treatment of prisoners of war”
Torture itself is banned under Article 4 of the 1949 Third Geneva Convention and defined in part as
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a male or female person for such purposes as obtaining from him, or a third person, information...
Some, even among those who show the intelectual curioisty and consistancy to go beyond the usual left-right, Democratic-Republican and American-forigner axese, may accepet the “truths” herein described and yet still feel compelled to case-specifically shun the rule of law.
They may see the war crimes of Bush, Chaney, Rice, Gonzalez and others so heinous as to shake the county to it’s core and undermine the foundation should they be proescuted and many rather call for a “truth and recociliation commission” type resolution.
But the rule of law, if not to insure punishment or make re-offending impossible, is to insure, as people said after “the” holocaust, it happens “never again”.
If they count on the people of the country to “never again” elect someone with a predilection for such criminal intent they’d best remember how unlikely many American voters thought such a scenario in November of 2000.
1984 came, just as predicted- both the year and the world ascribed to it in the book. But while we calmly munch our pita-bread and watch reporters on the wall mounted screen discuss the circus of a recent NY Times editorial discussion regarding whether the “enhanced interrogations” were merely “harsh” or should now be described as “brutal”, we’d best remember that 2540 is yet to come and even now it’s beginning to look like a “Brave New World”.
Written in 1948, at it’s then futuristic heart was a depiction of the now common practice of using less ominous euphemisms to replace hot button words with cooler though less accurate language.
Sure enough the practice was perfected during the Regan years and has become a de rigor cog of the modern political spin machine.
At first the press was skeptical but as real journalism devolved into a quick juxtaposition of unexamined opposing quotes of the “he said she said” ilk, truth became a casualty and “they say it- we print it” became the standard M..O. for every corporate reporter and editor.
What used to be episodes of acknowledged Orwellian doublethink- and the resultant popular term doublespeak, which is actually not part of the book- are now part of a widely accepted Orwellianism that doesn’t even elicit a second thought from the Joe News-consumer.
So it’s not really surprising that every- and we mean every- news report about the Bush administration’s torturing of prisoners refers to “enhanced interrogation techniques” sometimes adding “that some refer to as torture”
No! (and we don’t use exclamation marks lightly). What are we, freakin’ idiots? It’s torture- it never was and never will be anything else. The only ones who call it “enhanced interrogation” are the ones who tortured people.
The fact that some wigged-out wise-asses tried to write their way out of it at the behest of the administration overlords doesn’t make it anything but torture under an assumed name.
But the mainstream corporate press is so entombed in the cacophony of their own echo chamber that they can actually no longer press the BS button and report the “truth”, allowing special interests to dictate the very language that the last generation so profoundly feared would supplant the apparent.
Perhaps due to 21st Century corporate-style reporting, apparently the current “current occupant”- to use humorist Garrison Keilor’s catch-phrase for the last White House denizen- is perfectly happy being every bit as lawless as his predecessor, using George Bush’s creative constitutionalism to think himself enough of a “unitary executive” to say who is and isn’t above the law.
It is illegal to the US to torture prisoners, not just under international law but under the 1988 U.N. Convention Against Torture that Ronald Regan signed, making the law of the land.
What’s even worse than the misuse of language may be the notion that somehow “it worked” so it’s all an “ends justifies the means” wash.
Where to start with this little bit of disingenuous drivel, where to start?
We could start with the fact that the ends rarely justify the means.
Or we might ask who defines “works”... Dick Chaney? His citation of the fact that there hasn’t been another 9/11-style incident to show it “worked” is like the old joke about the guy wearing a tin-foil hat, dancing on one foot on the center stripe of the freeway, saying he’s keeping away the elephants and citing the lacking proximal presence of pachyderms as proof of his success.
Only a war-criminal could ignore decades of research showing that torture does not work.
The latest in a long line of interrogators who have almost unanimously reached this conclusion is U.S. Major Matthew Alexander -a named assumed for security reasons- who personally interrogated 300 Iraqi prisoners.
According to the UK newspaper The Independent, in his book with John R Bruning called “How to Break a Terrorist: The US interrogators who used brains, not brutality, to take down the deadliest man in Iraq”, he details what everyone from the FBI to the CIA to every cop-on-the-beat knows- that developing a relationship with a subject is what elicits information.
Torture elicits, at best no information and at worst incorrect information and “confessions” from those who will say whatever the torturer wants to hear, many times “information” designed to mislead and sometimes to injure those in whose name the torture is performed.
The squishy moral center of American political leadership isn’t something new- for all the deification of the founding fathers their genocide of 30 million native Americans and enslavement of an equal number of Africans sometimes makes the Nazis look like incompetent amateurs.
According to Wikipedia the Nuremberg Principles were a set of guidelines for determining what constitutes a war crime, set down during the Nuremberg trials of Nazis after WWII and signed by the U.S.
Principle IV says:
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
That’s principle came as a result of the famous Nuremberg Defense used by those who, like the CIA personnel and others in Iraq and Guantanamo, were “ordered” to torutre or kill but said they were not responsible because they were “just following orders.”
As important for President Barack Obama, who has apparently “decided”- or at least “instructed” the Attorney General- not to prosecute the actual torturers, is Principle VII which says:
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.
Complicity under U.S, law includes obstructing justice especially to hinder prosecution which would make Obama an accessory to war crimes if he bans prosecution of those covered under Principle IV.
It should also be noted that war crimes include not just actual torture but any “ill-treatment of prisoners of war”
Torture itself is banned under Article 4 of the 1949 Third Geneva Convention and defined in part as
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a male or female person for such purposes as obtaining from him, or a third person, information...
Some, even among those who show the intelectual curioisty and consistancy to go beyond the usual left-right, Democratic-Republican and American-forigner axese, may accepet the “truths” herein described and yet still feel compelled to case-specifically shun the rule of law.
They may see the war crimes of Bush, Chaney, Rice, Gonzalez and others so heinous as to shake the county to it’s core and undermine the foundation should they be proescuted and many rather call for a “truth and recociliation commission” type resolution.
But the rule of law, if not to insure punishment or make re-offending impossible, is to insure, as people said after “the” holocaust, it happens “never again”.
If they count on the people of the country to “never again” elect someone with a predilection for such criminal intent they’d best remember how unlikely many American voters thought such a scenario in November of 2000.
1984 came, just as predicted- both the year and the world ascribed to it in the book. But while we calmly munch our pita-bread and watch reporters on the wall mounted screen discuss the circus of a recent NY Times editorial discussion regarding whether the “enhanced interrogations” were merely “harsh” or should now be described as “brutal”, we’d best remember that 2540 is yet to come and even now it’s beginning to look like a “Brave New World”.
Friday, April 24, 2009
DAMN THE DALMATIAN; MUFFY NEEDS A MAKEOVER
DAMN THE DALMATIAN; MUFFY NEEDS A MAKEOVER: The word irony apparently isn’t in the county council’s lexicon although we’re not sure if that’s because County Clerk Peter Nakamura simply refuses to release the dictionary to councilmembers or because the pontiff of Kaua`i, Chair Kaipo Asing, believes in his own self-proclaimed infallibility.
Wednesday’s council meeting presented a plethora of inexplicable and baffling contradictory discussions. When juxtaposed they make it all too obvious why the council makes it almost impossible to access the minutes to their meetings- if people read their words in print rather than seeing snippets in catch-as-catch can cablecasts they might just hold them accountable for what they say and do.
Early on the council chambers was packed with pastel aloha shirts and mu`umu`us with name tags along with a few suits, as a virtual who’s who of tourism and business community hacks filed before the council to sing the praises of the first half of a million dollar flush down the toilet of the Kauai Visitors’ Bureau, which we tore into last month.
The smiling faces and self congratulatory excesses turned stomachs for about an hour as the recipients paraded up to thank the council for tossing taxpayer money into the rat-hole of their bottom lines, one even carefully using the words “domino down” to describe how it will trickle all-over the low paid, expendable workers in the hotel plantations.
Others voiced the unverifiable assurances that there was a “plan” with “measurable” results despite the fact that there is, as yet, no such plan in the hands of the public.
But never fear- the plan had been verbally “shared” in an apparently mesmerizing two hour session where KVB honcho Sue Kanoho, County Economic Development Director George Costa and Hypnotist-In-Chief/Councilmember Dickie Chang (how else would you explain a minimally-talented, sycophantic tourism-shill being our top TV personality) bedazzled nit-picker and council watchdogs Glenn Mickens and Ken Taylor with where and how the money would be spent.
As we said in March, everyone wants to come here- advertising does no good. While we win out all the time on location, location, location the only thing stopping people from coming here is price, price, price.
But rather than use the money, as we and Mickens suggested in March, to directly subsidize tourists’ trips- assuming it is ever a good idea to spend taxpayer dollars on corporate welfare like this- we’re actually using it to pay off travel agents and “wholesalers” to “talk us up”- which presumes other locations aren’t paying them more and that simply advertising big resorts on Kaua`i provides us with additional visitors at all.
When Councilwoman Lani Kawahara suggested that perhaps at least some of the responsibility for promotion should lie with those who stood to benefit she was basically told not to worry her pretty little head about it and literally laughed at by councilmembers and the crowd.
But otherwise, never was heard a discouraging word and the looming budget deficit did not elicit a discouraging word all day as the bankers and hotel executives spread their deer and antelope manure throughout the council chambers.
And why wouldn’t they- if the plan benefits anyone- which is certainly not a given or even knowable in the long run- it certainly isn’t directly going to benefit any small businesses, just the Sheratons and Hyatts and Prineville Hotels who are the promotional targets and set to receive all of any largess the grant “stimulates”.
The bill now heads from the public hearing to the council’s Finance Committee for preliminary decision making and then a predictably swift passage.
But if there’s plenty of cash in the coffers to waste in this million dollar handout to these assorted thieves an afternoon of gloomy projections were yet to come.
Apparently sometime between mid morning and mid afternoon the council “found out” there might be a budget shortfall.
So it seems like it was just bad timing when the agenda turned to getting the administrative personnel of the Kaua`i Fire Department (KFD) out of the shoe box they currently occupy.
The council was being asked to a measly $40,000 cover the rest of the budget year and get them moved into new, although supposedly temporary, digs right now with about $100,000 in yearly lease payments to come.
Yet this request got more scrutiny than State Senator Donna Kim gave the DBEDT this year.
The reason for this- conveniently blamed on “the administration” although the council has been more than complicit- is the total inaction on making the empty space in the Pi`ikoi building available for KFD offices- for which architectural design plans were completed years ago but was never built when the first renovation was done
The council has been throwing money at three administrations- including that of Chair Asing who was mayor for a few months last summer- to get it done but of course as usual without holding them accountable and just giving them all the money they requested for quarter-million-dollars-a-pop consultants... and doing so for the third time just last April with no results.
Poor chief Bob Westerman- perhaps the most competent and honest person in the employ of the county- begging for a an office where they don’t have to work at “mini-desks” to administer arguably the most important service the county provides.
After a fog filled discussion with Public Works Deputy Ed Renaud and Administrative Assistant Gary Heu where they hemmed and hawed their way through an explanation of what the f—k is taking so long to get the space-planner they hired in April to so some planning Asing took center stage for the big disconnect.
Asing asked no one in particular why this delay wasn’t brought to his attention when he was mayor- conveniently ignoring the fact that he, if anybody, should have been most aware of the 20-year delay in getting the various county agencies into the buildings the county purchased for that purpose in the 1980’s since he’s been on the council ever since then except for a two year stint in the 90’s.
Then, as if to highlight all he knew but somehow forgot while he was in the round building, it was time for one of Asing’s famous “presentations”- ones he never seems to be at a lack for especially now that he controls all of the council’s staff research time and an issue which other council members have complained about in public session,
Anyway he started off with a long discussion that flew in the face of his usual admonitions of not just the public but councilmembers to only address times within the strict confines of the matter as described on the agenda- a tactic supposedly to comply with the sunshine law” but usually used by Asing to stop “uncomfortable” discussion when on occasion someone tries to honestly discuss the topic and to connect it to the real impediments or corruption.
Asing launched into his version of the “financial crisis” with long rehashing of national and even international monetary policy passing through the state’s crunch and eventually getting to the point- the possibility the state won’t give us our share of the transient accommodation tax to the tune of a projected $11 million this year.
Conclusion? We might not be able to afford to give the KFD the space it so desperately needs and has so patiently awaited with Westerman’s usual “we will continue to meet our obligations to provide public safety” no matter how shabbily they are treated by the council and administration.
So let’s get this straight Kaipo- there’s plenty of money to throw a million down the tubes of visitor industry’s bottom line needs but, because we won’t get our fair share of the money that is collected from that same industry, we can’t afford $40,000 to get the fire department out of an impossibly cramped room, smaller than the council chambers and containing more people than showed up that day, according to Kawahara.
It’s no wonder getting things like pertinent documents and meeting minutes from the council is nearly impossible and the idea of putting them on-line is anathema to Asing and Nakamura who rule with an iron fist.
Even the cable casts of the meetings are “descheduled” with a catch as catch can, rarely announced scheduling that never puts them on at the same time twice and simply presents them on a revolving basis presenting the most current council, planning and police commission and mayor’s PR programs.
Ho`ike TV is nothing if not accommodating of the power elite on Kaua`i.
We can’t even come up with clever concluding sentences anymore- trite clichés will suffice... as usual... same as it ever was... new week, same s--t.
Wednesday’s council meeting presented a plethora of inexplicable and baffling contradictory discussions. When juxtaposed they make it all too obvious why the council makes it almost impossible to access the minutes to their meetings- if people read their words in print rather than seeing snippets in catch-as-catch can cablecasts they might just hold them accountable for what they say and do.
Early on the council chambers was packed with pastel aloha shirts and mu`umu`us with name tags along with a few suits, as a virtual who’s who of tourism and business community hacks filed before the council to sing the praises of the first half of a million dollar flush down the toilet of the Kauai Visitors’ Bureau, which we tore into last month.
The smiling faces and self congratulatory excesses turned stomachs for about an hour as the recipients paraded up to thank the council for tossing taxpayer money into the rat-hole of their bottom lines, one even carefully using the words “domino down” to describe how it will trickle all-over the low paid, expendable workers in the hotel plantations.
Others voiced the unverifiable assurances that there was a “plan” with “measurable” results despite the fact that there is, as yet, no such plan in the hands of the public.
But never fear- the plan had been verbally “shared” in an apparently mesmerizing two hour session where KVB honcho Sue Kanoho, County Economic Development Director George Costa and Hypnotist-In-Chief/Councilmember Dickie Chang (how else would you explain a minimally-talented, sycophantic tourism-shill being our top TV personality) bedazzled nit-picker and council watchdogs Glenn Mickens and Ken Taylor with where and how the money would be spent.
As we said in March, everyone wants to come here- advertising does no good. While we win out all the time on location, location, location the only thing stopping people from coming here is price, price, price.
But rather than use the money, as we and Mickens suggested in March, to directly subsidize tourists’ trips- assuming it is ever a good idea to spend taxpayer dollars on corporate welfare like this- we’re actually using it to pay off travel agents and “wholesalers” to “talk us up”- which presumes other locations aren’t paying them more and that simply advertising big resorts on Kaua`i provides us with additional visitors at all.
When Councilwoman Lani Kawahara suggested that perhaps at least some of the responsibility for promotion should lie with those who stood to benefit she was basically told not to worry her pretty little head about it and literally laughed at by councilmembers and the crowd.
But otherwise, never was heard a discouraging word and the looming budget deficit did not elicit a discouraging word all day as the bankers and hotel executives spread their deer and antelope manure throughout the council chambers.
And why wouldn’t they- if the plan benefits anyone- which is certainly not a given or even knowable in the long run- it certainly isn’t directly going to benefit any small businesses, just the Sheratons and Hyatts and Prineville Hotels who are the promotional targets and set to receive all of any largess the grant “stimulates”.
The bill now heads from the public hearing to the council’s Finance Committee for preliminary decision making and then a predictably swift passage.
But if there’s plenty of cash in the coffers to waste in this million dollar handout to these assorted thieves an afternoon of gloomy projections were yet to come.
Apparently sometime between mid morning and mid afternoon the council “found out” there might be a budget shortfall.
So it seems like it was just bad timing when the agenda turned to getting the administrative personnel of the Kaua`i Fire Department (KFD) out of the shoe box they currently occupy.
The council was being asked to a measly $40,000 cover the rest of the budget year and get them moved into new, although supposedly temporary, digs right now with about $100,000 in yearly lease payments to come.
Yet this request got more scrutiny than State Senator Donna Kim gave the DBEDT this year.
The reason for this- conveniently blamed on “the administration” although the council has been more than complicit- is the total inaction on making the empty space in the Pi`ikoi building available for KFD offices- for which architectural design plans were completed years ago but was never built when the first renovation was done
The council has been throwing money at three administrations- including that of Chair Asing who was mayor for a few months last summer- to get it done but of course as usual without holding them accountable and just giving them all the money they requested for quarter-million-dollars-a-pop consultants... and doing so for the third time just last April with no results.
Poor chief Bob Westerman- perhaps the most competent and honest person in the employ of the county- begging for a an office where they don’t have to work at “mini-desks” to administer arguably the most important service the county provides.
After a fog filled discussion with Public Works Deputy Ed Renaud and Administrative Assistant Gary Heu where they hemmed and hawed their way through an explanation of what the f—k is taking so long to get the space-planner they hired in April to so some planning Asing took center stage for the big disconnect.
Asing asked no one in particular why this delay wasn’t brought to his attention when he was mayor- conveniently ignoring the fact that he, if anybody, should have been most aware of the 20-year delay in getting the various county agencies into the buildings the county purchased for that purpose in the 1980’s since he’s been on the council ever since then except for a two year stint in the 90’s.
Then, as if to highlight all he knew but somehow forgot while he was in the round building, it was time for one of Asing’s famous “presentations”- ones he never seems to be at a lack for especially now that he controls all of the council’s staff research time and an issue which other council members have complained about in public session,
Anyway he started off with a long discussion that flew in the face of his usual admonitions of not just the public but councilmembers to only address times within the strict confines of the matter as described on the agenda- a tactic supposedly to comply with the sunshine law” but usually used by Asing to stop “uncomfortable” discussion when on occasion someone tries to honestly discuss the topic and to connect it to the real impediments or corruption.
Asing launched into his version of the “financial crisis” with long rehashing of national and even international monetary policy passing through the state’s crunch and eventually getting to the point- the possibility the state won’t give us our share of the transient accommodation tax to the tune of a projected $11 million this year.
Conclusion? We might not be able to afford to give the KFD the space it so desperately needs and has so patiently awaited with Westerman’s usual “we will continue to meet our obligations to provide public safety” no matter how shabbily they are treated by the council and administration.
So let’s get this straight Kaipo- there’s plenty of money to throw a million down the tubes of visitor industry’s bottom line needs but, because we won’t get our fair share of the money that is collected from that same industry, we can’t afford $40,000 to get the fire department out of an impossibly cramped room, smaller than the council chambers and containing more people than showed up that day, according to Kawahara.
It’s no wonder getting things like pertinent documents and meeting minutes from the council is nearly impossible and the idea of putting them on-line is anathema to Asing and Nakamura who rule with an iron fist.
Even the cable casts of the meetings are “descheduled” with a catch as catch can, rarely announced scheduling that never puts them on at the same time twice and simply presents them on a revolving basis presenting the most current council, planning and police commission and mayor’s PR programs.
Ho`ike TV is nothing if not accommodating of the power elite on Kaua`i.
We can’t even come up with clever concluding sentences anymore- trite clichés will suffice... as usual... same as it ever was... new week, same s--t.
Thursday, April 23, 2009
ELEPHANT IN THE DOGHOUSE
ELEPHANT IN THE DOGHOUSE: Kaua`i usually gets the shortest of shrifts when it comes to the two Honolulu dailies.
But when the big guns air lift in such as they did yesterday to bring Jimmy Pflueger to justice for murdering seven people (ok “allegedly”- there ya happy now) not only does the Advertiser fetch Diana Leone out of mothballs but the Star Bulletin adds insult to injury by asking downsized Tom Finnegan to file a “special to” report.
And as they and the local paper’s Michael Levine reported, Mike Dyer wasn’t the only one to warn Pflueger about filling in a spillway. The grand jury heard from Tom Hitch- who operated the irrigation system. He did the same and was also told to get lost.
The problem is that the picture that the Honolulu-bound get is one that Pflueger’s lead attorney attempts to paint- that somehow Pflueger isn’t to blame because the state and county didn’t stop him... kind of like saying a bank robber isn’t guilty because no one stopped him until after he robbed it.
And so a comment typical of many appeared below Leone’s piece today saying
Don't comment on this story until you have read the Kaloko dam report for yourselves. After reading that you can see that it wasn't one man all alone at that dam working all the construction himself to create that hazard. Do you know how OLD that man is? There was plenty of contributors to this tragedy, the STATE, and people like THE MAYOR, have some blood on their hands too, even if they dont (sic) want to admit it with such an accessable (sic) scape goat (sic) right there.
The incomplete, quickly-assembled “report” notwithstanding, no one is saying that the state and county weren’t lax, perhaps intentionally and corruptly on the part of the county and former Mayor Maryanne Kusaka who Pflueger says took a bribe from him to make sure the county looked the other way, if Malia Zimmerman’s report is to be believed.
How that somehow exonerates Pflueger is hard to fathom.
The fact that few outsiders know is that Ka Loko wasn’t the first time Pflueger made headlines on Kaua`i.
Two prior incidents- the infamous Pflueger “berm” and the Pila`a mudslide that presaged Ka Loko- should have raised red flags with county administration officials and did with the county council, especially then Councilperson Gary Hooser, when outraged local resident successfully demanded stricter grubbing and grading regulations.
During the “Developers Gone Wild” series of county council meetings over almost a year long period Hooser demanded that the matter be kept on the agenda every week as citizens presented weekly videos of the damage that Pflueger did, along with that caused by developer Tom McCloskey who also enjoyed a “special relationship” with Kusaka. McCloskey donated huge sums to a favorite charity foundation Kusaka controlled and allegedly promised her a luxury oceanside home in his Kealia Kai development.
The first time people on Kaua`i heard the name Pflueger- other than in ads for his Honolulu car dealership- was in the early 90’s when a “berm” appeared along the highway- a 40 foot high embankment that Pflueger illegally constructed on his property’s border without permits and with Pflueger at times seen personally driving the heavy equipment.
The Pflueger Berm, as it became known, blocked ocean view planes and after much protest he was made to take it down.
According to residents- many of whom told their stories before the county council- Pflueger has always had his scofflaw attitude, one that he had learned from McCloskey.
Historically on Kaua`i all that was ever done when illegal construction was done - especially so-called “grubbing and grading” which often included the flattening of hills and mountains- the only punishment the county had ever imposed had been to fine the developer a small amount of money and then usually allow them to file for “after the fact” permits which allowed construction that would have never been allowed in the first place to remain, sometimes with minor and usually useless “mitigations”.
It was way cheaper and more productive to just go ahead and do the dirty work and pay the fines and wind up with what they wanted than to go through the county permitting system and risk being denied.
One complicating factor- one that still has not been “fixed”- is that there were then and still are not now any administrative rules on the books for grubbing and grading fines on Kaua`i even though they were promised by Costa “within six months” after the new grubbing and grading ordinance was passed. The only way for the county to proceed is and was through judicial proceedings with a penalty of only up to $1000 and six months in jail.
But even after the berm episode the only lesson Pflueger apparently learned was that if he were going to do these things without permits, don’t do them along side the highway and block view planes.
His next move was to construct a road- with no plans or permits, using a bulldozer he rode himself- leading down the cliff side of his Pila`a property just above the kuleana of Rick and Amy Marvin.
And when the next heavy rains came a short time later the mountainside fell on top of the Marvin’s tiny house and the beach next to it, killing the reef by burying it under a few feet of mud.
This time Pflueger was fined by the federal government in what was the biggest fine of it’s type ever levied at the time. He still faces- and has managed to stall for many years- a civil damages lawsuit filed by the Marvins.
Then came Ka Loko.
Today Levine for the first time in the mainstream media reports part of what PNN has reported many times in the past:
Bennett also told Valenciano that the Grand Jury had heard testimony that Pflueger had filled in the spillway himself because the permitting process “took too long.” Bennett said illegal grading had been done on the North Shore property in the late 1990s to make room for a private home and a 49-unit condominium project that would have increased the land’s appraised value from $19 million to $68 million.
And Finnegan ends his piece by saying:
Bennett also provided evidence that, while doing the grading work in 1997-98 that allegedly caused the spillway to fill, Pflueger was making home sites so that he could subdivide his land and the land around the reservoir owned by the Mary Lucas Trust, of which he was a trustee and beneficiary.
Now we’re getting somewhere. As we have reported before, according to two sources- FOJ’s or Friends of Jimmy as many called them- this was the whole motive for filling in the spillway- to provide a “lake” as Pflueger called it and provide the “best water skiing on the island” as he told his FOJ's and even promoted in his plans for the development.
To say the county was at best negligent and more likely and apparently complicitous is not a new charge here on Kaua`i. And although the state was technically responsible under a then little known law requiring them to inspect reservoirs in practice the state depended on the county for enforcing grubbing and grading violations without which the dam probably wouldn’t have had any problems.
The county did it’s level best to look the other way, at times even falsely claiming to the council that it was impossible get access to the property unless Pflueger allowed them in until the council appropriated money to at least take an aerial look. As PNN reported at the time the Public Works Department hadn’t even asked the county attorney regarding entry and Kusaka had blocked them from doing so.
Then, after all that, after all the red flags, after all the uproar, after Pflueger was even fined again, this time for grubbing and grading just above the reservoir, the dam broke and killed seven people.
And despite that the current county council is still intent on spending millions defending the county rather than cooperating in the investigation and seeking to settle.
Yes, the county quite obviously is responsible too. And if criminal charges are pursued against Pflueger, to let Kusaka or County Engineer (CE) Cesar Portugal and Deputy and once-acting CE Ian Costa (who is now Planning Director)- both of whom knowingly did the bidding of Kusaka in obstructing any investigations- off the hook is certainly an abuse of prosecutorial discretion on the part of Attorney General Mark Bennett.
So of course Pflueger’s lawyers aren’t going to push the county’s guilt since it would be tantamount to admitting Pflueger’s guilt too. Instead they are concentrating on attacking the state, even though the state’s complicity is actually just negligence due to their dependence on a corrupt county as opposed to the active complicity of county.
How, given the bribery and persistent illegal activity for financial gain in the face of prior citations and outraged community, all this makes Pflueger a sympathetic figure and somehow immune from prosecution is something only the underinformed readers of the Honolulu papers could cogitate.
But when the big guns air lift in such as they did yesterday to bring Jimmy Pflueger to justice for murdering seven people (ok “allegedly”- there ya happy now) not only does the Advertiser fetch Diana Leone out of mothballs but the Star Bulletin adds insult to injury by asking downsized Tom Finnegan to file a “special to” report.
And as they and the local paper’s Michael Levine reported, Mike Dyer wasn’t the only one to warn Pflueger about filling in a spillway. The grand jury heard from Tom Hitch- who operated the irrigation system. He did the same and was also told to get lost.
The problem is that the picture that the Honolulu-bound get is one that Pflueger’s lead attorney attempts to paint- that somehow Pflueger isn’t to blame because the state and county didn’t stop him... kind of like saying a bank robber isn’t guilty because no one stopped him until after he robbed it.
And so a comment typical of many appeared below Leone’s piece today saying
Don't comment on this story until you have read the Kaloko dam report for yourselves. After reading that you can see that it wasn't one man all alone at that dam working all the construction himself to create that hazard. Do you know how OLD that man is? There was plenty of contributors to this tragedy, the STATE, and people like THE MAYOR, have some blood on their hands too, even if they dont (sic) want to admit it with such an accessable (sic) scape goat (sic) right there.
The incomplete, quickly-assembled “report” notwithstanding, no one is saying that the state and county weren’t lax, perhaps intentionally and corruptly on the part of the county and former Mayor Maryanne Kusaka who Pflueger says took a bribe from him to make sure the county looked the other way, if Malia Zimmerman’s report is to be believed.
How that somehow exonerates Pflueger is hard to fathom.
The fact that few outsiders know is that Ka Loko wasn’t the first time Pflueger made headlines on Kaua`i.
Two prior incidents- the infamous Pflueger “berm” and the Pila`a mudslide that presaged Ka Loko- should have raised red flags with county administration officials and did with the county council, especially then Councilperson Gary Hooser, when outraged local resident successfully demanded stricter grubbing and grading regulations.
During the “Developers Gone Wild” series of county council meetings over almost a year long period Hooser demanded that the matter be kept on the agenda every week as citizens presented weekly videos of the damage that Pflueger did, along with that caused by developer Tom McCloskey who also enjoyed a “special relationship” with Kusaka. McCloskey donated huge sums to a favorite charity foundation Kusaka controlled and allegedly promised her a luxury oceanside home in his Kealia Kai development.
The first time people on Kaua`i heard the name Pflueger- other than in ads for his Honolulu car dealership- was in the early 90’s when a “berm” appeared along the highway- a 40 foot high embankment that Pflueger illegally constructed on his property’s border without permits and with Pflueger at times seen personally driving the heavy equipment.
The Pflueger Berm, as it became known, blocked ocean view planes and after much protest he was made to take it down.
According to residents- many of whom told their stories before the county council- Pflueger has always had his scofflaw attitude, one that he had learned from McCloskey.
Historically on Kaua`i all that was ever done when illegal construction was done - especially so-called “grubbing and grading” which often included the flattening of hills and mountains- the only punishment the county had ever imposed had been to fine the developer a small amount of money and then usually allow them to file for “after the fact” permits which allowed construction that would have never been allowed in the first place to remain, sometimes with minor and usually useless “mitigations”.
It was way cheaper and more productive to just go ahead and do the dirty work and pay the fines and wind up with what they wanted than to go through the county permitting system and risk being denied.
One complicating factor- one that still has not been “fixed”- is that there were then and still are not now any administrative rules on the books for grubbing and grading fines on Kaua`i even though they were promised by Costa “within six months” after the new grubbing and grading ordinance was passed. The only way for the county to proceed is and was through judicial proceedings with a penalty of only up to $1000 and six months in jail.
But even after the berm episode the only lesson Pflueger apparently learned was that if he were going to do these things without permits, don’t do them along side the highway and block view planes.
His next move was to construct a road- with no plans or permits, using a bulldozer he rode himself- leading down the cliff side of his Pila`a property just above the kuleana of Rick and Amy Marvin.
And when the next heavy rains came a short time later the mountainside fell on top of the Marvin’s tiny house and the beach next to it, killing the reef by burying it under a few feet of mud.
This time Pflueger was fined by the federal government in what was the biggest fine of it’s type ever levied at the time. He still faces- and has managed to stall for many years- a civil damages lawsuit filed by the Marvins.
Then came Ka Loko.
Today Levine for the first time in the mainstream media reports part of what PNN has reported many times in the past:
Bennett also told Valenciano that the Grand Jury had heard testimony that Pflueger had filled in the spillway himself because the permitting process “took too long.” Bennett said illegal grading had been done on the North Shore property in the late 1990s to make room for a private home and a 49-unit condominium project that would have increased the land’s appraised value from $19 million to $68 million.
And Finnegan ends his piece by saying:
Bennett also provided evidence that, while doing the grading work in 1997-98 that allegedly caused the spillway to fill, Pflueger was making home sites so that he could subdivide his land and the land around the reservoir owned by the Mary Lucas Trust, of which he was a trustee and beneficiary.
Now we’re getting somewhere. As we have reported before, according to two sources- FOJ’s or Friends of Jimmy as many called them- this was the whole motive for filling in the spillway- to provide a “lake” as Pflueger called it and provide the “best water skiing on the island” as he told his FOJ's and even promoted in his plans for the development.
To say the county was at best negligent and more likely and apparently complicitous is not a new charge here on Kaua`i. And although the state was technically responsible under a then little known law requiring them to inspect reservoirs in practice the state depended on the county for enforcing grubbing and grading violations without which the dam probably wouldn’t have had any problems.
The county did it’s level best to look the other way, at times even falsely claiming to the council that it was impossible get access to the property unless Pflueger allowed them in until the council appropriated money to at least take an aerial look. As PNN reported at the time the Public Works Department hadn’t even asked the county attorney regarding entry and Kusaka had blocked them from doing so.
Then, after all that, after all the red flags, after all the uproar, after Pflueger was even fined again, this time for grubbing and grading just above the reservoir, the dam broke and killed seven people.
And despite that the current county council is still intent on spending millions defending the county rather than cooperating in the investigation and seeking to settle.
Yes, the county quite obviously is responsible too. And if criminal charges are pursued against Pflueger, to let Kusaka or County Engineer (CE) Cesar Portugal and Deputy and once-acting CE Ian Costa (who is now Planning Director)- both of whom knowingly did the bidding of Kusaka in obstructing any investigations- off the hook is certainly an abuse of prosecutorial discretion on the part of Attorney General Mark Bennett.
So of course Pflueger’s lawyers aren’t going to push the county’s guilt since it would be tantamount to admitting Pflueger’s guilt too. Instead they are concentrating on attacking the state, even though the state’s complicity is actually just negligence due to their dependence on a corrupt county as opposed to the active complicity of county.
How, given the bribery and persistent illegal activity for financial gain in the face of prior citations and outraged community, all this makes Pflueger a sympathetic figure and somehow immune from prosecution is something only the underinformed readers of the Honolulu papers could cogitate.
Wednesday, April 22, 2009
(PNN) COUNCIL TO SPEND $50,000 TO DEFEND SUEOKA EEOC CHARGE
Former long time Deputy County Attorney Margaret Sueoka has filed an EEOC complaint that has resulted in a case against the county that is apparently serious enough that the county attorney’s office is asking the council for 50,000 to defend the charge.
The federal Equal Employment Opportunity Commission (EEOC) has substantiated the claim to the extent that they have filed a “charge” and given the case a number (486-2009-00268) but any detailed information is “not available to anyone except to parties” of the case according to an EEOC intake representative and, at least preliminarily, the state according to Amy Esaki current First Deputy CA for the county.
Esaki said after briefly checking with the state Office of Information Practices (OIP) the county’s position is that any further information is, at least for now, protected at the state level by HRS section 92F-14, claiming that the privacy issues involved outweigh the public interest in releasing the charges made by Sueoka.
PNN was unable to contact Sueoka and there is no number listed for her name.
Sueoka was apparently fired sometime during the change of administration and resultant change in county attorneys presumably by either Esaki, who was interim CA, or by current CA Al Castillo. Sueoka was sworn in on December 1 with the rest of the deputy CA’s.
Esaki said she couldn’t comment or provide any details surrounding the firing. even the fact that Sueoka was terminated, although the EEOC charge apparently verifies that.
It is unknown what the basis of the charge is although usually the EEOC deals with cases of discrimination against a “protected class” such as in race, gender or age bias.
Though no information on the specifics exist, some political insiders have speculated that Sueoka was fired due to the various controversial opinions she wrote, advice she gave and cases she pursued when she worked for former CA’s Lani Nakazawa and Matthew Pyun.
Nakazawa and Pyun initiated a widely criticized and unprecedented era of secrecy in the CA’s office as PNN has detailed in past reports, claiming that the CA’s only function was to serve the administration and council and that all official opinions rendered were the sole possession of those to whom they were issued and that only those so advised could release them to the public.
Previously, although county law is silent on the matter, most CA written opinions were considered public record, as state law requires of attorneys general’s opinions.
It has been revealed in various public session of boards and commissions including those of the council, that Sueoka, along with Nakazawa, had written the opinion that bans public release by the CA’s office and removed any public component to the CA office’s duties.
In addition, it has been revealed at meetings that she penned many of the advisory opinions that seemed to fly in the face of exiting laws and regulations. But since they were secret, no one could challenge them on the particulars.
Sueoka was instrumental in the apparent railroading of former police chief KC Lum by the Board of Ethics (BOE)- at the council and mayor’s behest- serving as the long time legal advisor of the beleaguered BOE. She also apparently wrote the still-secret opinion that allowed violations of the prohibitions in section 20.02(D) of the county charter that PNN’s investigatory three part series detailed this and last week.
Based on some of Castillo’s words and actions at various meetings over the past month or so he has been in office it is thought – or at least hoped- by many county government observers that he will be reversing many of Sueoka’s, Pyun’s and Nakazawa’s opinions.
Castillo has been observed with shocked expressions, eye rolling and head shaking upon observing the consequences of the apparent misconceptions of law, as stated by members of the various bodies (including the county council and BOE), based on Sueoka’s legal advice.
He has also given verbal indications that a potential change in policy is in the works at some of those meetings.
Both Esaki and Castillo are new to the CA’s office, Castillo coming from private practice after a stint in the prosecutor’s office in the 90’s and Esaki coming from council services where she served as a legal analyst for many years.
Both are considered to be “straight shooters” by various sources who have worked with them over the years although it cannot be verified if any of this was in any way behind the firing of Sueoka.
According to sources both are primed to clean up the CA’s office and repair its severely tarnished reputation, built through the years by issuing opinions that served the reported paternalistic and secretive efforts of Kaua`i County Council Chair Kaipo Asing and the administration of former Mayor Bryan Baptiste.
The CA’s office has also been under fire for the inordinate number of cases referred to “special counsel”- a small cabal of outside Honolulu attorneys who seem to most political observers and government watchdogs almost incapable of winning a case
That has cost the county millions in attorneys’ fees and more in settlements, much to councilmembers’ vocal chagrin.
Though the particulars of the Sueoka case are confidential to non-parties according to the EEOC itself, the public interest vs. private concerns may be less inviolable if it can be shown that there is a great public interest in releasing the details of the case.
Esaki said she presented the specific case to the OIP- the body that administrates the Uniform Information Practices Act or UIPA (HRS 92F) and the Sunshine Law (HRS 92 Section 1)- but attorney Linden Joesting of OIP, who spoke to Esaki, said that her counsel was just “advice over the phone” based on “preliminary information” and was not to be taken as a formal ruling as to whether the public interest in this case might outweigh Sueoka’s privacy interest of.
Joesting said she had not seen anything in writing but said that if we made a formal written request for the record of the case from the county and were denied she would be able to make, if not a formal ruling at least more than a preliminary one.
PNN will be filing that request tomorrow with the CA’s office and has been promised the denial will be expedited.
Joesting also indicated that it all might depend on EEOC rules on releasing the case file about which she didn’t have enough information to determine if there were strict or situational-dependent prohibitions against public release of the documents regarding the case.
This is not the first recent case of an EEOC charge. As PNN reported in December Kaua`i Bus driver Kathleen M. Ah Quin has filed suit against the Kaua`i Department of Transportation- specifically Executive on Transportation Janine Rapozo- for gender discrimination after the county refused to answer or even, according to her suit, investigate an EEOC complaint. The council also appropriated $50,000 at the time to defend that case.
Rapozo, a holdover from the Baptiste administration, is the wife of now Parks and Recreation Department head Lenny Rapozo who served as current Mayor Bernard Carvalho’s campaign manager in the fall 2008 campaign for mayor.
The federal Equal Employment Opportunity Commission (EEOC) has substantiated the claim to the extent that they have filed a “charge” and given the case a number (486-2009-00268) but any detailed information is “not available to anyone except to parties” of the case according to an EEOC intake representative and, at least preliminarily, the state according to Amy Esaki current First Deputy CA for the county.
Esaki said after briefly checking with the state Office of Information Practices (OIP) the county’s position is that any further information is, at least for now, protected at the state level by HRS section 92F-14, claiming that the privacy issues involved outweigh the public interest in releasing the charges made by Sueoka.
PNN was unable to contact Sueoka and there is no number listed for her name.
Sueoka was apparently fired sometime during the change of administration and resultant change in county attorneys presumably by either Esaki, who was interim CA, or by current CA Al Castillo. Sueoka was sworn in on December 1 with the rest of the deputy CA’s.
Esaki said she couldn’t comment or provide any details surrounding the firing. even the fact that Sueoka was terminated, although the EEOC charge apparently verifies that.
It is unknown what the basis of the charge is although usually the EEOC deals with cases of discrimination against a “protected class” such as in race, gender or age bias.
Though no information on the specifics exist, some political insiders have speculated that Sueoka was fired due to the various controversial opinions she wrote, advice she gave and cases she pursued when she worked for former CA’s Lani Nakazawa and Matthew Pyun.
Nakazawa and Pyun initiated a widely criticized and unprecedented era of secrecy in the CA’s office as PNN has detailed in past reports, claiming that the CA’s only function was to serve the administration and council and that all official opinions rendered were the sole possession of those to whom they were issued and that only those so advised could release them to the public.
Previously, although county law is silent on the matter, most CA written opinions were considered public record, as state law requires of attorneys general’s opinions.
It has been revealed in various public session of boards and commissions including those of the council, that Sueoka, along with Nakazawa, had written the opinion that bans public release by the CA’s office and removed any public component to the CA office’s duties.
In addition, it has been revealed at meetings that she penned many of the advisory opinions that seemed to fly in the face of exiting laws and regulations. But since they were secret, no one could challenge them on the particulars.
Sueoka was instrumental in the apparent railroading of former police chief KC Lum by the Board of Ethics (BOE)- at the council and mayor’s behest- serving as the long time legal advisor of the beleaguered BOE. She also apparently wrote the still-secret opinion that allowed violations of the prohibitions in section 20.02(D) of the county charter that PNN’s investigatory three part series detailed this and last week.
Based on some of Castillo’s words and actions at various meetings over the past month or so he has been in office it is thought – or at least hoped- by many county government observers that he will be reversing many of Sueoka’s, Pyun’s and Nakazawa’s opinions.
Castillo has been observed with shocked expressions, eye rolling and head shaking upon observing the consequences of the apparent misconceptions of law, as stated by members of the various bodies (including the county council and BOE), based on Sueoka’s legal advice.
He has also given verbal indications that a potential change in policy is in the works at some of those meetings.
Both Esaki and Castillo are new to the CA’s office, Castillo coming from private practice after a stint in the prosecutor’s office in the 90’s and Esaki coming from council services where she served as a legal analyst for many years.
Both are considered to be “straight shooters” by various sources who have worked with them over the years although it cannot be verified if any of this was in any way behind the firing of Sueoka.
According to sources both are primed to clean up the CA’s office and repair its severely tarnished reputation, built through the years by issuing opinions that served the reported paternalistic and secretive efforts of Kaua`i County Council Chair Kaipo Asing and the administration of former Mayor Bryan Baptiste.
The CA’s office has also been under fire for the inordinate number of cases referred to “special counsel”- a small cabal of outside Honolulu attorneys who seem to most political observers and government watchdogs almost incapable of winning a case
That has cost the county millions in attorneys’ fees and more in settlements, much to councilmembers’ vocal chagrin.
Though the particulars of the Sueoka case are confidential to non-parties according to the EEOC itself, the public interest vs. private concerns may be less inviolable if it can be shown that there is a great public interest in releasing the details of the case.
Esaki said she presented the specific case to the OIP- the body that administrates the Uniform Information Practices Act or UIPA (HRS 92F) and the Sunshine Law (HRS 92 Section 1)- but attorney Linden Joesting of OIP, who spoke to Esaki, said that her counsel was just “advice over the phone” based on “preliminary information” and was not to be taken as a formal ruling as to whether the public interest in this case might outweigh Sueoka’s privacy interest of.
Joesting said she had not seen anything in writing but said that if we made a formal written request for the record of the case from the county and were denied she would be able to make, if not a formal ruling at least more than a preliminary one.
PNN will be filing that request tomorrow with the CA’s office and has been promised the denial will be expedited.
Joesting also indicated that it all might depend on EEOC rules on releasing the case file about which she didn’t have enough information to determine if there were strict or situational-dependent prohibitions against public release of the documents regarding the case.
This is not the first recent case of an EEOC charge. As PNN reported in December Kaua`i Bus driver Kathleen M. Ah Quin has filed suit against the Kaua`i Department of Transportation- specifically Executive on Transportation Janine Rapozo- for gender discrimination after the county refused to answer or even, according to her suit, investigate an EEOC complaint. The council also appropriated $50,000 at the time to defend that case.
Rapozo, a holdover from the Baptiste administration, is the wife of now Parks and Recreation Department head Lenny Rapozo who served as current Mayor Bernard Carvalho’s campaign manager in the fall 2008 campaign for mayor.
Tuesday, April 21, 2009
(PNN) Unethical culture- Government service with a personal “touch”- Part 3
Unethical culture- Government service with a personal “touch”
Part three- Deep Thoughts- a “Handy” Diversion.
One would think that a member of any ethics board or commission would be a proponent of the highest ethical standard. But on Kaua`i, as we’ve noted in the first two parts of this report, the three prime officers of our Board of Ethics have been in violation of the plain reading of the charter’s section 20.02(D) prohibitions on those “employees and officers” who “appear on behalf of a private interest” before an “agency board or commission” while serving on any of the county’s boards or commissions.
We detailed two recent cases- those of Dee Crowell of the water board and Jonathan Chun of the charter commission- where the BOE apparently chose to simply ignore those provisions of the charter and claim that, because the ordinance (Kaua`i County Code [KCC] Section 3) didn’t detail the prohibitions in the charter’s section 20.02(D) they didn’t have to be enforced, in violation of the supremacy principles expressed in the US Constitution.
So what was behind the thinking of those two chairs of the BOE- Mark Hubbard and Lei Fuller- and the secretary, Judith Lenthall, who are in apparent violation?
After the Crowell and Chun rulings clearing them of violating the charter, a group of citizens were outraged. Horace Stoessel, Bruce Pleas, Walter Lewis, Glenn Mickens and others were outraged and told the board so during and after the discussions.
(Note: In part 2 we said there was no apparent discussion of the Crowell decision at a BOE meeting. The minutes reveal the matter was decided at their 12/07 meeting. We apologize for the oversight).
In response past and current Chair Mark Hubbard – who has also served as chair of another board embroiled in discretionary controversy, the state Burial Council of Kaua`i- wrote and presented the BOE with a long and extremely revealing “memo” at their 4/08 meeting .
We will examine it here in detail.
We do so because the rambling letter reveals the mental machinations of a man- and board- trying his best to twist the meanings of words by isolating and equivocating them trying every rationale- whether valid or simply laughable- to clear others who were seeking to exonerate themselves and so, by precedent, Hubbard, Fuller and Lenthall from their apparently prohibited activities.
The letter, the contents of which was supported by the other BOE members according to the minutes of the 4/08 meeting, reveals what appears to be a basic lack of ethical standards and ability to make ethical judgment calls with an unbiased eye on the BOE’s part and an inability or unwillingness to apply the “to be liberally construed” provision of the Code of Ethics contained in KCC section 3.1.
We will excerpt the letter here and reprint it in full at the end of this article, Because we received only a paper version we had to type it in manually and although we read and re-read it a few times it may contain a typo or three, which we apologize for in advance.
After saying he represents only himself Hubbard actually admits that the board was seemingly oblivious to the section 20.02(D) prohibitions in the Crowell case saying:
When the board discussed Dee Crowell’s request for an advisory opinion in late 2007, I do not remember any discussion of how 20.02D might impact the opinion. I only remember referencing the County Code, section 3-1.7{d}. The board concluded that a Board of Water Commission appointee is not precluded from acting in a representative capacity before other County agencies and departments as long as he complied with code section 3-1.7.
He then says that during the Chun case:
I saw 20.02D for the first time in the light of its plain language and was shocked to realize that I had been on the Ethics board for several years (I have served at least one term prior to my current term without being aware of this issue. I guess it should not be surprising as I believe that this issue has been seldom if ever raised in the 40+ years of the Charter’s existence.
Amazingly he actually admits to apparently never having read the charter section on ethics or at least not giving it any thought before that time. He even admits that on reading the plain meeting he found himself in apparent violation.
But the next paragraph begins to show how his own prejudices- and conflict- clouds his own thinking. He says he:
talked with a former Ethics board member who said it could simply be interpreted to mean that no employee or officer could appear “wearing the hat of their office: in behalf of private interests before any agency, board or commission. This sounded reasonable to me.
Nowhere does any provision of charter, law or rule mention this “hat wearing” construction of Hubbard’s.
But rather than leave it at that he proceeds to try to deconstruct the key phrase and reconstruct it using alternative dictionary definitions of the words that take the words out of context of “appear on behalf of a private interest”
First he separates out the word “appear” from “on behalf of” saying
The word “appear”, particularly when used with the word “before” means “to come formally before an authoritative body”. Another definition is to “come into view, become visible”.
It’s called equivocation, not, as he says earlier being “exact, specific, rational and literal”. “Appear on behalf of” is never a phrase that uses “appear” to mean simply come into view but is rather in the sense that an attorney “appears on behalf” of a client.
Then he continues to work on the words “on behalf of” trying to also separate them from appear” and redefine so it, saying it
can mean in support of, in the interest of, for the benefit of, as a representative of, in defense of. It is my belief, in hearing testimony by Walter Lewis and Horace Stoessel, that they believe that the primary meaning and possibly the only relevant meaning in the context of 20.02D is “as a representative of”. again, I maintain that there are different interpretations here.
To isolate them from appear is to falsify the plain meaning of the phrase by taking them out of context. to read them together is to give them plain meaning
Finally he deconstructs a “private inertest” and tries to pull it out of context saying
“Private interests”, by dictionary definition, means “intended for or restricted to the use of a particular person, group or class”. Yet, I heard Walter Lewis state in his testimony that he felt that the meaning in 20.02D did not include “personal interest” but only the interest of another person or entity. That jives with the above interpretation of behalf = represent. Here again, we have different interpretations.
Whatever Walter Lewis said or didn’t say is irrelevant. In addition to there being a huge difference between a private and public interest (we’ll get to that later) it also removes the two words from the context of the whole phrase.
Hubbard uses this later to say that renewing his driver’s license would seem to be prohibited by this phrase but he ignores the fact that one does not “appear on behalf of” one’s self but rather appears AS one’s self. One cannot refer to one’s self in the third person except as a poetic affectation. When one says “I’m appearing on behalf of myself” it is usually with a note of sarcasm and elicits a chuckle because of course one is just “appearing”, not on behalf of someone by him or herself
He also ignores the fact that renewing a driver’s license is not discretionary as we discussed earlier.
But if those “examples” are troublesome his next few paragraphs are even more telling of his grasping at straws constructed of whole cloth, to combine two phrases.
He says:
The above detail is only to point out that most of us interpret the meaning of 20.02D to make it reasonable to us. I maintain that the board can also interpret the meaning of 20.02D in order to most closely find and identify conflicts of interest.
As we said before, there are separate sections dealing with real and direct conflicts. 20.02(D) is a prohibition on a list of prohibitions in order to avoid potential or perceived conflicts of interest
But next he makes the fatal error, that destroys any relevance of any of his arguments no matter how convoluted and contorted. He writes
If one looks at Code section 3-1.7 (c), (d), and (e), it is apparent that the County Council intended to interpret the meaning of 20.02D when it enacted the code.
Each section of the KCC section 3 notes the charter provision from which it is derived if indeed it is derived from the charter. But 3-1.7 only mentions section 20.01, not 20.02 much less 20.02(D)- which as we said before is not specifically mentioned in the ordinance- leaving the ordinance “silent” on the matter and so leaving the charter provision to stand as the only guide in the matter.
So with blatantly wrong premises in hand Hubbard attempts to list specific cases that could be rationalized using his irrational construct.
The part that stands out here is that if the "appear on behalf of a private interest” phrase is read with plain meaning, all of these “examples” provide areas where application is simple and direct. Only when pretzel logic and wordsmithing – along with a personal interest in making the provision meaningless- is used do they become cloudy.
After the driver’s licenses example Hubbard list others.
Here are some of the most contorted.
While I was on the salary commission and ethics board, I represented Grove Farm at the Real Property Division for agricultural dedications. Did I appear? Some say no since I did not go before a group. While I did not appear before the appeals board, would that have been any different than my dealings with the agency in getting agricultural dedications approved? Was there any conflict of interest?
As we said before he attempts to use the magician’s definition of “appear” rather than the lawyer’s.
While Allan Smith was a member of the Salary Commission, I am sure he appeared before the County Council, Planning Department, Public Works, Water Department and Planning Commission as a representative of Grove Farm. Is there any conflict here? This merits some discussion as the Salary Commission has no influence over any other board or commission, with whom Mr. Smith was also dealing.
As we said before, it doesn’t matter if it’s the same board. Hubbard again tries to conflate the conflict of interest provisions with the prohibitions which are based on potential for conflicts when even the ordinance does not list charter 20.02 as the basis for KCC 3-1.7.
Some planners in the Planning Department do drafting work as side employment. The department ethics rules, which the ethics board has approved, allows these planners to bring their work to the department for approval as long as they do not review their own work. They can also walk their plans through other departments with no restrictions (on their own time, of course). Is this appearing before an agency?
This is outrageous if it’s truly happening in our county- not that we doubt it does. People who work in the planning department should certainly not be allowed to seek outside employment where they come to their co-workers for approval of their projects. The prohibition of “work on their own plans” as the only violation is, in itself, a violation of all ethical principles that few if any can’t see is an unethical practice. The questions “what happens when you have to approve the plans of someone who just approved your plan” is almost to silly to have to ask.
Again it makes one ask if someone who can’t see this should even be on an ethics board much less the chair. As does the next one that says
Judy Lenthall appeared last year before the County Council representing the Food Bank. Is that a “private interest”? Did she appear as a board of ethics member?
Again it doesn’t matter if she is wearing a hat or any other finagling apparel . And of course the food bank is a private interest- for profit and not for profit isn’t a charter criteria and there are no “exceptions” for doing “good work”.
A planning commissioner is an architect who represents clients before various county agencies. The board of ethics opines that he cannot represent clients before the planning department, yet may do so before other departments in the county.
If they do they apparently have no basis for doing so.
But finally Hubbard comes upon one important exception- the first amendment "free speech" rights of an individual who seeks to speak in the “public” interest as one on a general law or measure before the county councilor planning commission.
In addition between not being able to distinguish between a private and a personal interest he has trouble with the difference between a private and a public interest
Next he says
A councilmember testifies in favor of a development project before the Planning Commission. Happens all the time. Is that “in behalf of”? A councilmember testifies against a development project before the Planning Commission. Happens all the time. Any difference? What about any employee or officer testifying in favor of a project before the Planning Commission? Don’t we all have the right of free speech and doesn’t the sunshine law to allow us to speak at a meeting? I believe yes and yes, but I must appear as an individual, not a board of ethics member.
Here there is that “public interest” component. What Hubbard attempts to do is to separate out the words “private” and “interest” and reconstruct them giving them a different reading. The word “interest” in the phrase “appear on behalf of a private interest” is one that denotes a direct or even indirect financial or otherwise tangible interest yet Hubbard again seeks to deconstruct and reconstruct in order to evade the plain meaning of the phrase.
In any case the first amendment trumps the county charter under supremacy principles and receives the highest protection from the courts whereas “private interests” do not.
Hubbard’s final evasion is to try to conflate 20.02(D) with 20.02(E) and claim they must be read together.
He writes
An objection by Horace Stoessel and others to the board’s opinions is that they feel my interpretation totally guts the intent of 20.02D and that there would be no examples of violation of 20.02D using my interpretation. I used some examples of an officer or employee using his official position to apply undue influence for a private interest. The objection to this was that section 20.02E covered that and so the meaning of 20.02D was being distorted by the board.
Let’s look at 20.02D and E.
20.02D – “No officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”
20.02E – “No officer or employee of the county shall use his official position to secure a special benefit, privilege or exemption for himself or others.”
Here he implies that only situations that violate the second provision also violate the first, which is simply not what the prohibition list in 20.02 says.
Finally he gives it his last and best misinterpretational effort concluding that somehow the person in question is “ok” as long as they claim they are not “wearing the hat” of the board they sit on based on his equivocal and out of context use of the word “appear”.
If I tried to put my interpretation of 20.02D into words, it would be “No officer or employee of the county shall appear in the capacity of his county position on behalf of private interests before any board, commission or agency. I think that is an appropriate use of the word “appear”. In the dictionary definition, examples given are that you appearing in court as the attorney, at the witness, or as the client. So, it is not just the individual appearing, but appearing in a certain capacity. I maintain this is a little different from 20.02E and use an example to demonstrate the difference.
Hubbard’s letter serves to show not just how his own personal prohibited actions drove his “logic” but how the appointing and approving authorities- the mayor and council- aren’t doing their due diligence in appointing people like him in the first place.
But he isn’t the only one.
At the same 4/08 meeting a memo- also reproduced in whole at the end of this piece and also typed out- from Lenthall was presented. It highlights how, in these people’s minds, it is possible to make these kinds of claims.
She apparently went back to the original charter commission- the one that wrote the charter in the 60’s.
She write to Hubbard
Hi Mark,
HOORAY! In fact, EUREKA! Mystery solved re. Intent of the Code of Ethics issue. Here’s the scoop:
In 1964, work first started on a Kaua`i Charter. A Charter Commission was established in 1965 and in 1966 they had a pretty solid draft that the Commission eventually approved. They seemed to have spent a lot of time trying to reinvent the wheel in 1965, but eventually they called upon the example charters from several mainland cities. The city that they eventually plagiarized the most was Salem, Oregon. And Salem Oregon has the same language that interests us.
Really that’s all you need to know if you read it carefully. But the original charter commission- made up of many attorneys who, like those today, “appeared on behalf of” all sorts of private interests but wanted to serve on the boards and commissions that approve their projects so they tried to insert all sorts of language that would allow them to do so.
She dug up some documents that indicate, not some kind of “original intent”- as she apparently would like to believe- but those thoughts rejected in favor of the ultimately voter-approved provisions.
These might have been some things that some wanted to include to allow their potential conflicts to stand as long as there was no quid pro quo apparent. But the important part is that they were not included in the charter, most likely not as some kind of oversight but for good reason..
She wrote
Since 1968, the language we currently see in our Code of Ethics (for those sections that interest us for the moment) has been identical. No changes. Thus, the intent of this language has to be found sometime in 1965-1966 (I’m assuming that this went to a public vote in 1967? I don’t know).
So, I got the minutes from their discussion about this and here it goes:
1964
Code of Ethics DRAFT PROPOSAL (NOTE: This is a typed sheet with lots of internal corrections and hand-written notes on it). This is NOT the Charter Commission people’s work yet, but elected leaders?)
1. Nothing contained herein shall preclude the acceptance of contributions for election campaigns.
2. Full disclosure in writing to appointing authority or council, to be of public record, of such interests, at any time that such conflict becomes apparent.
3. No outside employment, business or professional activity which may impair his independence of judgment in exercise of official duties, or might induce him to disclose confidential information, or which is otherwise inconsistent or incompatible with or which interferes with the proper discharge of official duties.
4. Council to disclose interest in writing prior to vote.
Lenthall also seems to rely on the ordinance that as we said is actually silent as to the 20.02 prohibitions and then tries to divine some kind of “intent” from the proposed provisions even though. as she notes, they were rejected.
She goes on to say
So, the above was the original start of this issue. This draft was sent to the newly formed Charter Commission who promptly rejected it (and a LOT more), The Charter Commission apparently felt that THEY were supposed to be the crafters of this document. The first Charter Commission in Kaua`i discussed the code of ethics stuff at their April 19th and April 26, 1966 meetings, and they flushed out the section we’re interested in.
Though she’s not clear about who “they” are it’s presumably the council although the words “code of ethics” refer to both KCC section 3- passed by the council after the charter- and the charter section 20 itself.
She then apparently cites some other proposed but rejected language to show it should have been included or indicates some kind of intent, even though it also was never included.
April 19, 1966 info:
I need to scan and attach this whole page because it’s too much to write. Briefly, it says if you get PAID in whole or part by the County, (NOTE: This would exclude Board volunteers!), you can’t represent private interests before any agency. Then it says:
This section shall not be construed:
to prohibit any officer or employee from being affiliated with, employed by or representing a person, firm or corporation whose direct and indirect interest in business dealings with the county forms an insubstantial part of its total business, provided that he has not been retained for the purpose of appearing before the whole agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency.
to prohibit any officer or employee from appearing before any agency upon matters only incidentally part of the employment provided that he has not been retained for the purpose of appearing before the agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency;
Her interpretation again indicates how her compromised position has compromised any objectivity in the matter, further writing
The jist (sic) of the above is that I think they were trying to REALLY define stuff to be important and payment can’t be contingent on the action of the agency...
.
To me, the intent of the original crafters (1964) was a) disclose; b) don’t mess with anything that could impair your independent judgment. I’ll buy BOTH of those intents. The 2nd version again tries to a) disclose; and b) establish an importance factor to the matter; but muddies the waters with the WHOLE AGENCY language. What? It’s OK to meet before PART of the agency?
Unfortunately, ALL this deliberation got reduced to the VERY simplistic phrase, “Thou shalt not appear before any agency” because this was the copied language from Salem, Oregon. this was the language that was eventually approved for the County’s FIRST charter, and the language which has remained ever since 1968.
But the point is, I think I’m clear now in the intent, and I think it makes sense.
It might “make sense” if you are trying to construct some rationale for violating the plain reading of a law of which you are in violation.
It might “make sense” if you forget about the fact that they apparently rejected the provisions because they were simply so unethical that they thought they’d better go to a generally accepted standard of ethics rather than insert one cooked up in a paternalistic backroom by representatives of plantations seeking to implement watered down ethics laws and allow themselves carte blanche to concoct public policy to their own benefit.
But if all that isn’t troublesome enough, the fact that she is in a compromised position has clouded her judgment even on such issues as stealing from the county.
She finally says
Alas, there is NOTHING on “don’t use county property for personal use” because that too appears to be a copied section with ABSOLUTELY no wiggle-room. Seems to me that if we use the original crafters logic, a level of importance or value might be tried to using county property for person use, before we get every mislaid paper clip, phone call, vehicle person errand, etc. before the Board of Ethics.
The much abused “paper clip” example has been used by thieves to discredit the law since paper clips were introduced to offices.
It all points to the self-distorted mindset of the Kaua`i Board of Ethics that attempts to reduce all ethical provisions- except for direct self-dealing transaction and observable quid pro quos- to absurdity through disingenuous self-serving, out-of-context word manipulation and faulty logic, combined with an intentional misreading and just plain untrue claims.
Many see this debacle as a reason for re-writing the ethics provisions in the charter and county code. But other than amending the county code to reiterate the charter provisions there is little that needs clarifying to those who approach the issues raised before the BOE with a clear mind and without being in violations of those provisions they are sworn to uphold.
But it is hard to really blame the appointed individuals and hold them wholly responsible. If the county council and the mayor had bothered to read the laws they were sworn to uphold, they wouldn’t be appointing those few in the community who routinely appear on behalf of private interest before agencies, board and commissions to those very board and commissions, especially the one that determines complicity with the law.
Like Caesar’s wife the BOE members should be beyond reproach, and certainly not guilty of the laws they are supposed to uphold.
But there may be one provision that needs to be enacted. At present, according to county and state law the place to file a complaint would be... yes, the Kaua`i Board of Ethics.
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Mark Hubbard’s Perspective of Kauai County Charter Section 20.02D (in full)
The issue of Charter Section 20.02D has been bothering me for about a year now and I wish to give you some history and mostly my rationale for my current personal position on the interpretation of section 20.02 D. The below views and statements are mine personally and are not to be attributed to the Board of Ethics or any other member of that board.
When the board discussed Dee Crowell’s request for an advisory opinion in late 2007, I do not remember any discussion of how 20.02D might impact the opinion. I only remember referencing the County Code, section 3-1.7{d}. The board concluded that a Board of Water Commission appointee is not precluded from acting in a representative capacity before other County agencies and departments as long as he complied with code section 3-1.7.
In early 2008, the issue of section 20.02 came up in regard to Jonathan Chun’s request for an advisory opinion regarding his representing clients before various County agencies and departments. Several members of the public, including Horace Stoessel, maintained private interests before any board, commission or agency. I saw 20.02D for the first time in the light of its plain language and was shocked to realize that I had been on the Ethics board for several years (I have served at least one term prior to my current term without being aware of this issue. I guess it should not be surprising as I believe that this issue has been seldom if ever raised in the 40+ years of the Charter’s existence.
Another reason for my being bothered by this language is that I like to be exact, specific, rational and literal. I talked with Horace Stoessel who I had previously served with on the Salary Commission and for whom I have considerable respect. I also talked with a former Ethics board member who said it could simply be interpreted to mean that no employee or officer could appear “wearing the hat of their office: in behalf of private interests before any agency, board or commission. This sounded reasonable to me as a way of fitting the board’s opinion regarding Dee Crowell and many other examples in apparent conflict with a plain language interpretation of 20.02D. Yet, Horace and others felt that the broad has no authority to “narrow: the language of 20.02D, as it is the Charter and the voice of the people. The board ended up saying that Jonathan Chun could in fact represent private interests in front of boards and commissions other than the Charter Review Commission, of which he was a member.
The controversy is still around as evidenced by Horace’s email. What continues to concern me is how am I able to reconcile a myriad of situations which can be seen to conflict with a plain language interpretation of 20.02D.
It is my current belief that the board has the right to interpret 20.02D. This is based on my observation that everyone who has opposed the board’s opinions in this matter (with possible exception of Bruce Pleas) has in fact interpreted 20.02D in their own way (as I will indicate below).
Let us look specifically at the language and some examples. The language says that “no officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”
- “Officer or employee” covers all county employees, elected officials, appointees and board and commission members. No one seems to have different interpretations of this term.
- The word “appear”, particularly when used with the word “before” means “to come formally before an authoritative body”. Another definition is to “come into view, become visible”. Here there are different interpretations. Many would say that getting one’s driver’s license is not “appearing” before the Finance Department. I won’t disagree.
- The word “behalf”, often used as “in behalf of” or “on behalf of”, can mean in support of, in the interest of, for the benefit of, as a representative of, in defense of. It is my belief, in hearing testimony by Walter Lewis and Horace Stoessel, that they believe that the primary meaning and possibly the only relevant meaning in the context of 20.02D is “as a representative of”. again, I maintain that there are different interpretations here.
- “Private interests”, by dictionary definition, means “intended for or restricted to the use of a particular person, group or class”. Yet, I heard Walter Lewis state in his testimony that he felt that the meaning in 20.02D did not include “personal interest” but only the interest of another person or entity. That jives with the above interpretation of behalf = represent. Here again, we have different interpretations.
- “board, commission or agency” means, by Charter definition, “any office, department, board, commission or other governmental unit of the county”. This would include the County Council. I have seen no disagreement on this interpretation to date.
The above detail is only to point out that most of us interpret the meaning of 20.02D to make it reasonable to us. I maintain that the board can also interpret the meaning of 20.02D in order to most closely find and identify conflicts of interest.
If one looks at Code section 3-1.7 (c), (d), and (e), it is apparent that the County Council intended to interpret the meaning of 20.02D when it enacted the code.
Let’s look at several examples of how a broad interpretation of 20.02D can affect many actions that have occurred in the past and are occurring today, without any claim of conflict of interest or ethical misconduct. While I mention individual names and companies in the some cases, it is only that I know of these and to give a clear example, yet I am sure that there are a myriad of other similar examples that I do not know personally about.
- I go to the Finance Dept to renew my driver’s license. Am I appearing before them? Is it a private interest?
- While I was on the salary commission and ethics board, I represented Grove Farm at the Real Property Division for agricultural dedications. Did I appear? Some say no since I did not go before a group. While I did not appear before the appeals board, would that have been any different than my dealings with the agency in getting agricultural dedications approved? Was there any conflict of interest?
- While Allan Smith was a member of the Salary Commission, I am sure he appeared before the County Council, Planning Department, Public Works, Water Department and Planning Commission as a representative of Grove Farm. Is there any conflict here? This merits some discussion as the Salary Commission has no influence over any other board or commission, with whom Mr. Smith was also dealing.
- Councilmember Mel Rapozo appeared before the Ethics board to seek an opinion about his company’s successful bid to deliver subpoenas for the County. Of note is that he stated that he was appearing not as a councilmember, but as the owner of his business. This was at the same meeting when members of the public were objecting to Jonathan Chun’s representing clients in front of other commissions. At the same Ethics board meeting, Councilmember Shaylene Iseri-Carvalho spoke in favor of Mel’s company contract. When I asked if any of them thought that Mel or Shaylene’s appearance before us violated 20.02D, no one spoke up. In fact several said it was appropriate. This still bothers me as I see no difference between the actions of Jonathan and the actions of Mel and Shaylene when it comes to section 20.02D.
- Some planners in the Planning Department do drafting work as side employment. The department ethics rules, which the ethics board has approved, allows these planners to bring their work to the department for approval as long as they do not review their own work. They can also walk their plans through other departments with no restrictions (on their own time, of course). Is this appearing before an agency?
- Judy Lenthall appeared last year before the County Council representing the Food Bank. Is that a “private interest”? Did she appear as a board of ethics member?
- Any officer or employee goes before the Planning Commission for a permit for his own property. This happens on a regular basis. Is this “in behalf of private interests”? More often, they go to the Planning Department and Public Works Department for building permits. Many times, they will walk the permits through. I have done that. Is this “appearing before”?
- A planning commissioner is an architect who represents clients before various county agencies. The board of ethics opines that he cannot represent clients before the planning department, yet may do so before other departments in the county.
- A County solid waste worker wants to bid on a competitive proposal by the county within his own department. He comes before the Ethics board to ask for an opinion. Is he appearing in behalf of private interests?
- A councilmember testifies in favor of a development project before the Planning Commission. Happens all the time. Is that “in behalf of”? A councilmember testifies against a development project before the Planning Commission. Happens all the time. Any difference? What about any employee or officer testifying in favor of a project before the Planning Commission? Don’t we all have the right of free speech and doesn’t the sunshine law to allow us to speak at a meeting? I believe yes and yes, but I must appear as an individual, not a board of ethics member. I believe there is a difference. Jonathan Chun is on the Charter Review Commission. He represents clients in front of the Planning Commission and County Council. Is there a conflict of interest?
I hope you can imagine that there are many more examples. I see no conflict of interest or inherent violation of ethical conduct in any of the above examples.
Judy Lenthall did some research into the history of the language of 20.02 and the intent behind 20.02D. I attach her email for your interest. While her research gives an indication of the intent of the charter language, I will never be sure of the intent since it was done in the mid-sixties and I was not there. I do have one indication of the intent and that is section 20.04 (Disclosure) which states that included in the disclosure must be “the names of persons represented before government agencies”. Why would this disclosure be required if one was prohibited from representing private interests?
An objection by Horace Stoessel and others to the board’s opinions is that they feel my interpretation totally guts the intent of 20.02D and that there would be no examples of violation of 20.02D using my interpretation. I used some examples of an officer or employee using his official position to apply undue influence for a private interest. The objection to this was that section 20.02E covered that and so the meaning of 20.02D was being distorted by the board.
Let’s look at 20.02D and E.
20.02D – “No officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”
20.02E – “No officer or employee of the county shall use his official position to secure a special benefit, privilege or exemption for himself or others.”
If I tried to put my interpretation of 20.02D into words, it would be “No officer or employee of the county shall appear in the capacity of his county position on behalf of private interests before any board, commission or agency. I think that is an appropriate use of the word “appear”. In the dictionary definition, examples given are that you appearing in court as the attorney, at the witness, or as the client. So, it is not just the individual appearing, but appearing in a certain capacity. I maintain this is a little different from 20.02E and use an example to demonstrate the difference.
- The mayor goes to the building department and asks the department to issue his friend a pending permit right away. In my opinion, this would be undue influence and a violation of ethics and 20.02D. It might not be a violation of 20.02E as a permit being issued is not necessarily a special benefit, privilege or exemption.
As a final bit of information, I looked through all the board of ethics opinions since 1976. I only found 5 that related to appearing before boards, commissions or agencies. Two opinions, in 1999 and 2005, stated that an officer or employee could testify or appear before boards commissions or agencies in a personal capacity, but no in their county capacity. Three opinions, two in 2007 and one in 2008, allowed board or commission members to represent private interests before boards, commissions and agencies other than their own. These last three opinions, by the way, were made by the same board of ethics, which included myself, Judy Lenthall, Leila Fuller and Bob Farias.
I agree with Horace that the County’s Guide to Ethical Issues has an example which can be considered contrary to the Jonathan Chun and Dee Crowell opinions. I suggest a remedy that I am sure Horace would object to and that is to delete this example from the handbook. We can in the near future review the entire handbook and may be able to address section 20.02D in a clear manner. Yet, we should delete the example of page 7 now,
Sincerely,
Mark Hubbard
2-23-09
Attachment: email from Judy Lenthall dated 5-14-08
_______________
Judith Lenthall memo (in full)
Hi Mark,
HOORAY! In fact, EUREKA! Mystery solved re. Intent of the Code of Ethics issue. Here’s the scoop:
In 1964, work first started on a Kaua`i Charter. A Charter Commission was established in 1965 and in 1966 they had a pretty solid draft that the Commission eventually approved. They seemed to have spent a lot of time trying to reinvent the wheel in 1965, but eventually they called upon the example charters from several mainland cities. The city that they eventually plagiarized the most was Salem, Oregon. And Salem Oregon has the same language that interests us.
Since 1968, the language we currently see in our Code of Ethics (for those sections that interest us for the moment) has been identical. No changes. Thus, the intent of this language has to be found sometime in 1965-1966 (I’m assuming that this went to a public vote in 1967? I don’t know).
So, I got the minutes from their discussion about this and here it goes:
1964
Code of Ethics DRAFT PROPOSAL (NOTE: This is a typed sheet with lots of internal corrections and hand-written notes on it). This is NOT the Charter Commission people’s work yet, but elected leaders?)
5. Nothing contained herein shall preclude the acceptance of contributions for election campaigns.
6. Full disclosure in writing to appointing authority or council, to be of public record, of such interests, at any time that such conflict becomes apparent.
7. No outside employment, business or professional activity which may impair his independence of judgment in exercise of official duties, or might induce him to disclose confidential information, or which is otherwise inconsistent or incompatible with or which interferes with the proper discharge of official duties.
8. Council to disclose interest in writing prior to vote.
So, the above was the original start of this issue. This draft was sent to the newly formed Charter Commission who promptly rejected it (and a LOT more), The Charter Commission apparently felt that THEY were supposed to be the crafters of this document. The first Charter Commission in Kaua`i discussed the code of ethics stuff at their April 19th and April 26, 1966 meetings, and they flushed out the section we’re interested in.
April 19, 1966 info:
I need to scan and attach this whole page because it’s too much to write. Briefly, it says if you get PAID in whole or part by the County, (NOTE: This would exclude Board volunteers!), you can’t represent private interests before any agency. Then it says:
This section shall not be construed:
to prohibit any officer or employee from being affiliated with, employed by or representing a person, firm or corporation whose direct and indirect interest in business dealings with the county forms an insubstantial part of its total business, provided that he has not been retained for the purpose of appearing before the whole agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency.
to prohibit any officer or employee from appearing before any agency upon matters only incidentally part of the employment provided that he has not been retained for the purpose of appearing before the agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency;
The jist (sic) of the above is that I think they were trying to REALLY define stuff to be important and payment can’t be contingent on the action of the agency. What is a little confusing is the “you can’t be retained to appear before the whole agency.” What do you think that means?
To me, the intent of the original crafters (1964) was a) disclose; b) don’t mess with anything that could impair your independent judgment. I’ll buy BOTH of those intents. The 2nd version again tries to a) disclose; and b) establish an importance factor to the matter; but muddies the waters with the WHOLE AGENCY language. What? It’s OK to meet before PART of the agency?
Unfortunately, ALL this deliberation got reduced to the VERY simplistic phrase, “Thou shalt not appear before any agency” because this was the copied language from Salem, Oregon. this was the language that was eventually approved for the County’s FIRST charter, and the language which has remained ever since 1968.
But the point is, I think I’m clear now in the intent, and I think it makes sense.
Alas, there is NOTHING on “don’t use county property for personal use” because that too appears to be a copied section with ABSOLUTELY no wiggle-room. Seems to me that if we use the original crafters logic, a level of importance or value might be tried to using county property for person use, before we get every mislaid paper clip, phone call, vehicle person errand, etc. before the Board of Ethics.
So the question I have now is what do I do with this info? Turn it over to Barbara? Can I give it to the guy that seems to have the biggest beef about this language? What?
In any even, I am finally satisfied about the intent and if given this information BEFORE, I would NOT have abstained from my vote.
IMUA!
Aloha,
Judy
Part three- Deep Thoughts- a “Handy” Diversion.
One would think that a member of any ethics board or commission would be a proponent of the highest ethical standard. But on Kaua`i, as we’ve noted in the first two parts of this report, the three prime officers of our Board of Ethics have been in violation of the plain reading of the charter’s section 20.02(D) prohibitions on those “employees and officers” who “appear on behalf of a private interest” before an “agency board or commission” while serving on any of the county’s boards or commissions.
We detailed two recent cases- those of Dee Crowell of the water board and Jonathan Chun of the charter commission- where the BOE apparently chose to simply ignore those provisions of the charter and claim that, because the ordinance (Kaua`i County Code [KCC] Section 3) didn’t detail the prohibitions in the charter’s section 20.02(D) they didn’t have to be enforced, in violation of the supremacy principles expressed in the US Constitution.
So what was behind the thinking of those two chairs of the BOE- Mark Hubbard and Lei Fuller- and the secretary, Judith Lenthall, who are in apparent violation?
After the Crowell and Chun rulings clearing them of violating the charter, a group of citizens were outraged. Horace Stoessel, Bruce Pleas, Walter Lewis, Glenn Mickens and others were outraged and told the board so during and after the discussions.
(Note: In part 2 we said there was no apparent discussion of the Crowell decision at a BOE meeting. The minutes reveal the matter was decided at their 12/07 meeting. We apologize for the oversight).
In response past and current Chair Mark Hubbard – who has also served as chair of another board embroiled in discretionary controversy, the state Burial Council of Kaua`i- wrote and presented the BOE with a long and extremely revealing “memo” at their 4/08 meeting .
We will examine it here in detail.
We do so because the rambling letter reveals the mental machinations of a man- and board- trying his best to twist the meanings of words by isolating and equivocating them trying every rationale- whether valid or simply laughable- to clear others who were seeking to exonerate themselves and so, by precedent, Hubbard, Fuller and Lenthall from their apparently prohibited activities.
The letter, the contents of which was supported by the other BOE members according to the minutes of the 4/08 meeting, reveals what appears to be a basic lack of ethical standards and ability to make ethical judgment calls with an unbiased eye on the BOE’s part and an inability or unwillingness to apply the “to be liberally construed” provision of the Code of Ethics contained in KCC section 3.1.
We will excerpt the letter here and reprint it in full at the end of this article, Because we received only a paper version we had to type it in manually and although we read and re-read it a few times it may contain a typo or three, which we apologize for in advance.
After saying he represents only himself Hubbard actually admits that the board was seemingly oblivious to the section 20.02(D) prohibitions in the Crowell case saying:
When the board discussed Dee Crowell’s request for an advisory opinion in late 2007, I do not remember any discussion of how 20.02D might impact the opinion. I only remember referencing the County Code, section 3-1.7{d}. The board concluded that a Board of Water Commission appointee is not precluded from acting in a representative capacity before other County agencies and departments as long as he complied with code section 3-1.7.
He then says that during the Chun case:
I saw 20.02D for the first time in the light of its plain language and was shocked to realize that I had been on the Ethics board for several years (I have served at least one term prior to my current term without being aware of this issue. I guess it should not be surprising as I believe that this issue has been seldom if ever raised in the 40+ years of the Charter’s existence.
Amazingly he actually admits to apparently never having read the charter section on ethics or at least not giving it any thought before that time. He even admits that on reading the plain meeting he found himself in apparent violation.
But the next paragraph begins to show how his own prejudices- and conflict- clouds his own thinking. He says he:
talked with a former Ethics board member who said it could simply be interpreted to mean that no employee or officer could appear “wearing the hat of their office: in behalf of private interests before any agency, board or commission. This sounded reasonable to me.
Nowhere does any provision of charter, law or rule mention this “hat wearing” construction of Hubbard’s.
But rather than leave it at that he proceeds to try to deconstruct the key phrase and reconstruct it using alternative dictionary definitions of the words that take the words out of context of “appear on behalf of a private interest”
First he separates out the word “appear” from “on behalf of” saying
The word “appear”, particularly when used with the word “before” means “to come formally before an authoritative body”. Another definition is to “come into view, become visible”.
It’s called equivocation, not, as he says earlier being “exact, specific, rational and literal”. “Appear on behalf of” is never a phrase that uses “appear” to mean simply come into view but is rather in the sense that an attorney “appears on behalf” of a client.
Then he continues to work on the words “on behalf of” trying to also separate them from appear” and redefine so it, saying it
can mean in support of, in the interest of, for the benefit of, as a representative of, in defense of. It is my belief, in hearing testimony by Walter Lewis and Horace Stoessel, that they believe that the primary meaning and possibly the only relevant meaning in the context of 20.02D is “as a representative of”. again, I maintain that there are different interpretations here.
To isolate them from appear is to falsify the plain meaning of the phrase by taking them out of context. to read them together is to give them plain meaning
Finally he deconstructs a “private inertest” and tries to pull it out of context saying
“Private interests”, by dictionary definition, means “intended for or restricted to the use of a particular person, group or class”. Yet, I heard Walter Lewis state in his testimony that he felt that the meaning in 20.02D did not include “personal interest” but only the interest of another person or entity. That jives with the above interpretation of behalf = represent. Here again, we have different interpretations.
Whatever Walter Lewis said or didn’t say is irrelevant. In addition to there being a huge difference between a private and public interest (we’ll get to that later) it also removes the two words from the context of the whole phrase.
Hubbard uses this later to say that renewing his driver’s license would seem to be prohibited by this phrase but he ignores the fact that one does not “appear on behalf of” one’s self but rather appears AS one’s self. One cannot refer to one’s self in the third person except as a poetic affectation. When one says “I’m appearing on behalf of myself” it is usually with a note of sarcasm and elicits a chuckle because of course one is just “appearing”, not on behalf of someone by him or herself
He also ignores the fact that renewing a driver’s license is not discretionary as we discussed earlier.
But if those “examples” are troublesome his next few paragraphs are even more telling of his grasping at straws constructed of whole cloth, to combine two phrases.
He says:
The above detail is only to point out that most of us interpret the meaning of 20.02D to make it reasonable to us. I maintain that the board can also interpret the meaning of 20.02D in order to most closely find and identify conflicts of interest.
As we said before, there are separate sections dealing with real and direct conflicts. 20.02(D) is a prohibition on a list of prohibitions in order to avoid potential or perceived conflicts of interest
But next he makes the fatal error, that destroys any relevance of any of his arguments no matter how convoluted and contorted. He writes
If one looks at Code section 3-1.7 (c), (d), and (e), it is apparent that the County Council intended to interpret the meaning of 20.02D when it enacted the code.
Each section of the KCC section 3 notes the charter provision from which it is derived if indeed it is derived from the charter. But 3-1.7 only mentions section 20.01, not 20.02 much less 20.02(D)- which as we said before is not specifically mentioned in the ordinance- leaving the ordinance “silent” on the matter and so leaving the charter provision to stand as the only guide in the matter.
So with blatantly wrong premises in hand Hubbard attempts to list specific cases that could be rationalized using his irrational construct.
The part that stands out here is that if the "appear on behalf of a private interest” phrase is read with plain meaning, all of these “examples” provide areas where application is simple and direct. Only when pretzel logic and wordsmithing – along with a personal interest in making the provision meaningless- is used do they become cloudy.
After the driver’s licenses example Hubbard list others.
Here are some of the most contorted.
While I was on the salary commission and ethics board, I represented Grove Farm at the Real Property Division for agricultural dedications. Did I appear? Some say no since I did not go before a group. While I did not appear before the appeals board, would that have been any different than my dealings with the agency in getting agricultural dedications approved? Was there any conflict of interest?
As we said before he attempts to use the magician’s definition of “appear” rather than the lawyer’s.
While Allan Smith was a member of the Salary Commission, I am sure he appeared before the County Council, Planning Department, Public Works, Water Department and Planning Commission as a representative of Grove Farm. Is there any conflict here? This merits some discussion as the Salary Commission has no influence over any other board or commission, with whom Mr. Smith was also dealing.
As we said before, it doesn’t matter if it’s the same board. Hubbard again tries to conflate the conflict of interest provisions with the prohibitions which are based on potential for conflicts when even the ordinance does not list charter 20.02 as the basis for KCC 3-1.7.
Some planners in the Planning Department do drafting work as side employment. The department ethics rules, which the ethics board has approved, allows these planners to bring their work to the department for approval as long as they do not review their own work. They can also walk their plans through other departments with no restrictions (on their own time, of course). Is this appearing before an agency?
This is outrageous if it’s truly happening in our county- not that we doubt it does. People who work in the planning department should certainly not be allowed to seek outside employment where they come to their co-workers for approval of their projects. The prohibition of “work on their own plans” as the only violation is, in itself, a violation of all ethical principles that few if any can’t see is an unethical practice. The questions “what happens when you have to approve the plans of someone who just approved your plan” is almost to silly to have to ask.
Again it makes one ask if someone who can’t see this should even be on an ethics board much less the chair. As does the next one that says
Judy Lenthall appeared last year before the County Council representing the Food Bank. Is that a “private interest”? Did she appear as a board of ethics member?
Again it doesn’t matter if she is wearing a hat or any other finagling apparel . And of course the food bank is a private interest- for profit and not for profit isn’t a charter criteria and there are no “exceptions” for doing “good work”.
A planning commissioner is an architect who represents clients before various county agencies. The board of ethics opines that he cannot represent clients before the planning department, yet may do so before other departments in the county.
If they do they apparently have no basis for doing so.
But finally Hubbard comes upon one important exception- the first amendment "free speech" rights of an individual who seeks to speak in the “public” interest as one on a general law or measure before the county councilor planning commission.
In addition between not being able to distinguish between a private and a personal interest he has trouble with the difference between a private and a public interest
Next he says
A councilmember testifies in favor of a development project before the Planning Commission. Happens all the time. Is that “in behalf of”? A councilmember testifies against a development project before the Planning Commission. Happens all the time. Any difference? What about any employee or officer testifying in favor of a project before the Planning Commission? Don’t we all have the right of free speech and doesn’t the sunshine law to allow us to speak at a meeting? I believe yes and yes, but I must appear as an individual, not a board of ethics member.
Here there is that “public interest” component. What Hubbard attempts to do is to separate out the words “private” and “interest” and reconstruct them giving them a different reading. The word “interest” in the phrase “appear on behalf of a private interest” is one that denotes a direct or even indirect financial or otherwise tangible interest yet Hubbard again seeks to deconstruct and reconstruct in order to evade the plain meaning of the phrase.
In any case the first amendment trumps the county charter under supremacy principles and receives the highest protection from the courts whereas “private interests” do not.
Hubbard’s final evasion is to try to conflate 20.02(D) with 20.02(E) and claim they must be read together.
He writes
An objection by Horace Stoessel and others to the board’s opinions is that they feel my interpretation totally guts the intent of 20.02D and that there would be no examples of violation of 20.02D using my interpretation. I used some examples of an officer or employee using his official position to apply undue influence for a private interest. The objection to this was that section 20.02E covered that and so the meaning of 20.02D was being distorted by the board.
Let’s look at 20.02D and E.
20.02D – “No officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”
20.02E – “No officer or employee of the county shall use his official position to secure a special benefit, privilege or exemption for himself or others.”
Here he implies that only situations that violate the second provision also violate the first, which is simply not what the prohibition list in 20.02 says.
Finally he gives it his last and best misinterpretational effort concluding that somehow the person in question is “ok” as long as they claim they are not “wearing the hat” of the board they sit on based on his equivocal and out of context use of the word “appear”.
If I tried to put my interpretation of 20.02D into words, it would be “No officer or employee of the county shall appear in the capacity of his county position on behalf of private interests before any board, commission or agency. I think that is an appropriate use of the word “appear”. In the dictionary definition, examples given are that you appearing in court as the attorney, at the witness, or as the client. So, it is not just the individual appearing, but appearing in a certain capacity. I maintain this is a little different from 20.02E and use an example to demonstrate the difference.
Hubbard’s letter serves to show not just how his own personal prohibited actions drove his “logic” but how the appointing and approving authorities- the mayor and council- aren’t doing their due diligence in appointing people like him in the first place.
But he isn’t the only one.
At the same 4/08 meeting a memo- also reproduced in whole at the end of this piece and also typed out- from Lenthall was presented. It highlights how, in these people’s minds, it is possible to make these kinds of claims.
She apparently went back to the original charter commission- the one that wrote the charter in the 60’s.
She write to Hubbard
Hi Mark,
HOORAY! In fact, EUREKA! Mystery solved re. Intent of the Code of Ethics issue. Here’s the scoop:
In 1964, work first started on a Kaua`i Charter. A Charter Commission was established in 1965 and in 1966 they had a pretty solid draft that the Commission eventually approved. They seemed to have spent a lot of time trying to reinvent the wheel in 1965, but eventually they called upon the example charters from several mainland cities. The city that they eventually plagiarized the most was Salem, Oregon. And Salem Oregon has the same language that interests us.
Really that’s all you need to know if you read it carefully. But the original charter commission- made up of many attorneys who, like those today, “appeared on behalf of” all sorts of private interests but wanted to serve on the boards and commissions that approve their projects so they tried to insert all sorts of language that would allow them to do so.
She dug up some documents that indicate, not some kind of “original intent”- as she apparently would like to believe- but those thoughts rejected in favor of the ultimately voter-approved provisions.
These might have been some things that some wanted to include to allow their potential conflicts to stand as long as there was no quid pro quo apparent. But the important part is that they were not included in the charter, most likely not as some kind of oversight but for good reason..
She wrote
Since 1968, the language we currently see in our Code of Ethics (for those sections that interest us for the moment) has been identical. No changes. Thus, the intent of this language has to be found sometime in 1965-1966 (I’m assuming that this went to a public vote in 1967? I don’t know).
So, I got the minutes from their discussion about this and here it goes:
1964
Code of Ethics DRAFT PROPOSAL (NOTE: This is a typed sheet with lots of internal corrections and hand-written notes on it). This is NOT the Charter Commission people’s work yet, but elected leaders?)
1. Nothing contained herein shall preclude the acceptance of contributions for election campaigns.
2. Full disclosure in writing to appointing authority or council, to be of public record, of such interests, at any time that such conflict becomes apparent.
3. No outside employment, business or professional activity which may impair his independence of judgment in exercise of official duties, or might induce him to disclose confidential information, or which is otherwise inconsistent or incompatible with or which interferes with the proper discharge of official duties.
4. Council to disclose interest in writing prior to vote.
Lenthall also seems to rely on the ordinance that as we said is actually silent as to the 20.02 prohibitions and then tries to divine some kind of “intent” from the proposed provisions even though. as she notes, they were rejected.
She goes on to say
So, the above was the original start of this issue. This draft was sent to the newly formed Charter Commission who promptly rejected it (and a LOT more), The Charter Commission apparently felt that THEY were supposed to be the crafters of this document. The first Charter Commission in Kaua`i discussed the code of ethics stuff at their April 19th and April 26, 1966 meetings, and they flushed out the section we’re interested in.
Though she’s not clear about who “they” are it’s presumably the council although the words “code of ethics” refer to both KCC section 3- passed by the council after the charter- and the charter section 20 itself.
She then apparently cites some other proposed but rejected language to show it should have been included or indicates some kind of intent, even though it also was never included.
April 19, 1966 info:
I need to scan and attach this whole page because it’s too much to write. Briefly, it says if you get PAID in whole or part by the County, (NOTE: This would exclude Board volunteers!), you can’t represent private interests before any agency. Then it says:
This section shall not be construed:
to prohibit any officer or employee from being affiliated with, employed by or representing a person, firm or corporation whose direct and indirect interest in business dealings with the county forms an insubstantial part of its total business, provided that he has not been retained for the purpose of appearing before the whole agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency.
to prohibit any officer or employee from appearing before any agency upon matters only incidentally part of the employment provided that he has not been retained for the purpose of appearing before the agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency;
Her interpretation again indicates how her compromised position has compromised any objectivity in the matter, further writing
The jist (sic) of the above is that I think they were trying to REALLY define stuff to be important and payment can’t be contingent on the action of the agency...
.
To me, the intent of the original crafters (1964) was a) disclose; b) don’t mess with anything that could impair your independent judgment. I’ll buy BOTH of those intents. The 2nd version again tries to a) disclose; and b) establish an importance factor to the matter; but muddies the waters with the WHOLE AGENCY language. What? It’s OK to meet before PART of the agency?
Unfortunately, ALL this deliberation got reduced to the VERY simplistic phrase, “Thou shalt not appear before any agency” because this was the copied language from Salem, Oregon. this was the language that was eventually approved for the County’s FIRST charter, and the language which has remained ever since 1968.
But the point is, I think I’m clear now in the intent, and I think it makes sense.
It might “make sense” if you are trying to construct some rationale for violating the plain reading of a law of which you are in violation.
It might “make sense” if you forget about the fact that they apparently rejected the provisions because they were simply so unethical that they thought they’d better go to a generally accepted standard of ethics rather than insert one cooked up in a paternalistic backroom by representatives of plantations seeking to implement watered down ethics laws and allow themselves carte blanche to concoct public policy to their own benefit.
But if all that isn’t troublesome enough, the fact that she is in a compromised position has clouded her judgment even on such issues as stealing from the county.
She finally says
Alas, there is NOTHING on “don’t use county property for personal use” because that too appears to be a copied section with ABSOLUTELY no wiggle-room. Seems to me that if we use the original crafters logic, a level of importance or value might be tried to using county property for person use, before we get every mislaid paper clip, phone call, vehicle person errand, etc. before the Board of Ethics.
The much abused “paper clip” example has been used by thieves to discredit the law since paper clips were introduced to offices.
It all points to the self-distorted mindset of the Kaua`i Board of Ethics that attempts to reduce all ethical provisions- except for direct self-dealing transaction and observable quid pro quos- to absurdity through disingenuous self-serving, out-of-context word manipulation and faulty logic, combined with an intentional misreading and just plain untrue claims.
Many see this debacle as a reason for re-writing the ethics provisions in the charter and county code. But other than amending the county code to reiterate the charter provisions there is little that needs clarifying to those who approach the issues raised before the BOE with a clear mind and without being in violations of those provisions they are sworn to uphold.
But it is hard to really blame the appointed individuals and hold them wholly responsible. If the county council and the mayor had bothered to read the laws they were sworn to uphold, they wouldn’t be appointing those few in the community who routinely appear on behalf of private interest before agencies, board and commissions to those very board and commissions, especially the one that determines complicity with the law.
Like Caesar’s wife the BOE members should be beyond reproach, and certainly not guilty of the laws they are supposed to uphold.
But there may be one provision that needs to be enacted. At present, according to county and state law the place to file a complaint would be... yes, the Kaua`i Board of Ethics.
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Mark Hubbard’s Perspective of Kauai County Charter Section 20.02D (in full)
The issue of Charter Section 20.02D has been bothering me for about a year now and I wish to give you some history and mostly my rationale for my current personal position on the interpretation of section 20.02 D. The below views and statements are mine personally and are not to be attributed to the Board of Ethics or any other member of that board.
When the board discussed Dee Crowell’s request for an advisory opinion in late 2007, I do not remember any discussion of how 20.02D might impact the opinion. I only remember referencing the County Code, section 3-1.7{d}. The board concluded that a Board of Water Commission appointee is not precluded from acting in a representative capacity before other County agencies and departments as long as he complied with code section 3-1.7.
In early 2008, the issue of section 20.02 came up in regard to Jonathan Chun’s request for an advisory opinion regarding his representing clients before various County agencies and departments. Several members of the public, including Horace Stoessel, maintained private interests before any board, commission or agency. I saw 20.02D for the first time in the light of its plain language and was shocked to realize that I had been on the Ethics board for several years (I have served at least one term prior to my current term without being aware of this issue. I guess it should not be surprising as I believe that this issue has been seldom if ever raised in the 40+ years of the Charter’s existence.
Another reason for my being bothered by this language is that I like to be exact, specific, rational and literal. I talked with Horace Stoessel who I had previously served with on the Salary Commission and for whom I have considerable respect. I also talked with a former Ethics board member who said it could simply be interpreted to mean that no employee or officer could appear “wearing the hat of their office: in behalf of private interests before any agency, board or commission. This sounded reasonable to me as a way of fitting the board’s opinion regarding Dee Crowell and many other examples in apparent conflict with a plain language interpretation of 20.02D. Yet, Horace and others felt that the broad has no authority to “narrow: the language of 20.02D, as it is the Charter and the voice of the people. The board ended up saying that Jonathan Chun could in fact represent private interests in front of boards and commissions other than the Charter Review Commission, of which he was a member.
The controversy is still around as evidenced by Horace’s email. What continues to concern me is how am I able to reconcile a myriad of situations which can be seen to conflict with a plain language interpretation of 20.02D.
It is my current belief that the board has the right to interpret 20.02D. This is based on my observation that everyone who has opposed the board’s opinions in this matter (with possible exception of Bruce Pleas) has in fact interpreted 20.02D in their own way (as I will indicate below).
Let us look specifically at the language and some examples. The language says that “no officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”
- “Officer or employee” covers all county employees, elected officials, appointees and board and commission members. No one seems to have different interpretations of this term.
- The word “appear”, particularly when used with the word “before” means “to come formally before an authoritative body”. Another definition is to “come into view, become visible”. Here there are different interpretations. Many would say that getting one’s driver’s license is not “appearing” before the Finance Department. I won’t disagree.
- The word “behalf”, often used as “in behalf of” or “on behalf of”, can mean in support of, in the interest of, for the benefit of, as a representative of, in defense of. It is my belief, in hearing testimony by Walter Lewis and Horace Stoessel, that they believe that the primary meaning and possibly the only relevant meaning in the context of 20.02D is “as a representative of”. again, I maintain that there are different interpretations here.
- “Private interests”, by dictionary definition, means “intended for or restricted to the use of a particular person, group or class”. Yet, I heard Walter Lewis state in his testimony that he felt that the meaning in 20.02D did not include “personal interest” but only the interest of another person or entity. That jives with the above interpretation of behalf = represent. Here again, we have different interpretations.
- “board, commission or agency” means, by Charter definition, “any office, department, board, commission or other governmental unit of the county”. This would include the County Council. I have seen no disagreement on this interpretation to date.
The above detail is only to point out that most of us interpret the meaning of 20.02D to make it reasonable to us. I maintain that the board can also interpret the meaning of 20.02D in order to most closely find and identify conflicts of interest.
If one looks at Code section 3-1.7 (c), (d), and (e), it is apparent that the County Council intended to interpret the meaning of 20.02D when it enacted the code.
Let’s look at several examples of how a broad interpretation of 20.02D can affect many actions that have occurred in the past and are occurring today, without any claim of conflict of interest or ethical misconduct. While I mention individual names and companies in the some cases, it is only that I know of these and to give a clear example, yet I am sure that there are a myriad of other similar examples that I do not know personally about.
- I go to the Finance Dept to renew my driver’s license. Am I appearing before them? Is it a private interest?
- While I was on the salary commission and ethics board, I represented Grove Farm at the Real Property Division for agricultural dedications. Did I appear? Some say no since I did not go before a group. While I did not appear before the appeals board, would that have been any different than my dealings with the agency in getting agricultural dedications approved? Was there any conflict of interest?
- While Allan Smith was a member of the Salary Commission, I am sure he appeared before the County Council, Planning Department, Public Works, Water Department and Planning Commission as a representative of Grove Farm. Is there any conflict here? This merits some discussion as the Salary Commission has no influence over any other board or commission, with whom Mr. Smith was also dealing.
- Councilmember Mel Rapozo appeared before the Ethics board to seek an opinion about his company’s successful bid to deliver subpoenas for the County. Of note is that he stated that he was appearing not as a councilmember, but as the owner of his business. This was at the same meeting when members of the public were objecting to Jonathan Chun’s representing clients in front of other commissions. At the same Ethics board meeting, Councilmember Shaylene Iseri-Carvalho spoke in favor of Mel’s company contract. When I asked if any of them thought that Mel or Shaylene’s appearance before us violated 20.02D, no one spoke up. In fact several said it was appropriate. This still bothers me as I see no difference between the actions of Jonathan and the actions of Mel and Shaylene when it comes to section 20.02D.
- Some planners in the Planning Department do drafting work as side employment. The department ethics rules, which the ethics board has approved, allows these planners to bring their work to the department for approval as long as they do not review their own work. They can also walk their plans through other departments with no restrictions (on their own time, of course). Is this appearing before an agency?
- Judy Lenthall appeared last year before the County Council representing the Food Bank. Is that a “private interest”? Did she appear as a board of ethics member?
- Any officer or employee goes before the Planning Commission for a permit for his own property. This happens on a regular basis. Is this “in behalf of private interests”? More often, they go to the Planning Department and Public Works Department for building permits. Many times, they will walk the permits through. I have done that. Is this “appearing before”?
- A planning commissioner is an architect who represents clients before various county agencies. The board of ethics opines that he cannot represent clients before the planning department, yet may do so before other departments in the county.
- A County solid waste worker wants to bid on a competitive proposal by the county within his own department. He comes before the Ethics board to ask for an opinion. Is he appearing in behalf of private interests?
- A councilmember testifies in favor of a development project before the Planning Commission. Happens all the time. Is that “in behalf of”? A councilmember testifies against a development project before the Planning Commission. Happens all the time. Any difference? What about any employee or officer testifying in favor of a project before the Planning Commission? Don’t we all have the right of free speech and doesn’t the sunshine law to allow us to speak at a meeting? I believe yes and yes, but I must appear as an individual, not a board of ethics member. I believe there is a difference. Jonathan Chun is on the Charter Review Commission. He represents clients in front of the Planning Commission and County Council. Is there a conflict of interest?
I hope you can imagine that there are many more examples. I see no conflict of interest or inherent violation of ethical conduct in any of the above examples.
Judy Lenthall did some research into the history of the language of 20.02 and the intent behind 20.02D. I attach her email for your interest. While her research gives an indication of the intent of the charter language, I will never be sure of the intent since it was done in the mid-sixties and I was not there. I do have one indication of the intent and that is section 20.04 (Disclosure) which states that included in the disclosure must be “the names of persons represented before government agencies”. Why would this disclosure be required if one was prohibited from representing private interests?
An objection by Horace Stoessel and others to the board’s opinions is that they feel my interpretation totally guts the intent of 20.02D and that there would be no examples of violation of 20.02D using my interpretation. I used some examples of an officer or employee using his official position to apply undue influence for a private interest. The objection to this was that section 20.02E covered that and so the meaning of 20.02D was being distorted by the board.
Let’s look at 20.02D and E.
20.02D – “No officer or employee of the county shall appear in behalf of private interests before any board, commission or agency.”
20.02E – “No officer or employee of the county shall use his official position to secure a special benefit, privilege or exemption for himself or others.”
If I tried to put my interpretation of 20.02D into words, it would be “No officer or employee of the county shall appear in the capacity of his county position on behalf of private interests before any board, commission or agency. I think that is an appropriate use of the word “appear”. In the dictionary definition, examples given are that you appearing in court as the attorney, at the witness, or as the client. So, it is not just the individual appearing, but appearing in a certain capacity. I maintain this is a little different from 20.02E and use an example to demonstrate the difference.
- The mayor goes to the building department and asks the department to issue his friend a pending permit right away. In my opinion, this would be undue influence and a violation of ethics and 20.02D. It might not be a violation of 20.02E as a permit being issued is not necessarily a special benefit, privilege or exemption.
As a final bit of information, I looked through all the board of ethics opinions since 1976. I only found 5 that related to appearing before boards, commissions or agencies. Two opinions, in 1999 and 2005, stated that an officer or employee could testify or appear before boards commissions or agencies in a personal capacity, but no in their county capacity. Three opinions, two in 2007 and one in 2008, allowed board or commission members to represent private interests before boards, commissions and agencies other than their own. These last three opinions, by the way, were made by the same board of ethics, which included myself, Judy Lenthall, Leila Fuller and Bob Farias.
I agree with Horace that the County’s Guide to Ethical Issues has an example which can be considered contrary to the Jonathan Chun and Dee Crowell opinions. I suggest a remedy that I am sure Horace would object to and that is to delete this example from the handbook. We can in the near future review the entire handbook and may be able to address section 20.02D in a clear manner. Yet, we should delete the example of page 7 now,
Sincerely,
Mark Hubbard
2-23-09
Attachment: email from Judy Lenthall dated 5-14-08
_______________
Judith Lenthall memo (in full)
Hi Mark,
HOORAY! In fact, EUREKA! Mystery solved re. Intent of the Code of Ethics issue. Here’s the scoop:
In 1964, work first started on a Kaua`i Charter. A Charter Commission was established in 1965 and in 1966 they had a pretty solid draft that the Commission eventually approved. They seemed to have spent a lot of time trying to reinvent the wheel in 1965, but eventually they called upon the example charters from several mainland cities. The city that they eventually plagiarized the most was Salem, Oregon. And Salem Oregon has the same language that interests us.
Since 1968, the language we currently see in our Code of Ethics (for those sections that interest us for the moment) has been identical. No changes. Thus, the intent of this language has to be found sometime in 1965-1966 (I’m assuming that this went to a public vote in 1967? I don’t know).
So, I got the minutes from their discussion about this and here it goes:
1964
Code of Ethics DRAFT PROPOSAL (NOTE: This is a typed sheet with lots of internal corrections and hand-written notes on it). This is NOT the Charter Commission people’s work yet, but elected leaders?)
5. Nothing contained herein shall preclude the acceptance of contributions for election campaigns.
6. Full disclosure in writing to appointing authority or council, to be of public record, of such interests, at any time that such conflict becomes apparent.
7. No outside employment, business or professional activity which may impair his independence of judgment in exercise of official duties, or might induce him to disclose confidential information, or which is otherwise inconsistent or incompatible with or which interferes with the proper discharge of official duties.
8. Council to disclose interest in writing prior to vote.
So, the above was the original start of this issue. This draft was sent to the newly formed Charter Commission who promptly rejected it (and a LOT more), The Charter Commission apparently felt that THEY were supposed to be the crafters of this document. The first Charter Commission in Kaua`i discussed the code of ethics stuff at their April 19th and April 26, 1966 meetings, and they flushed out the section we’re interested in.
April 19, 1966 info:
I need to scan and attach this whole page because it’s too much to write. Briefly, it says if you get PAID in whole or part by the County, (NOTE: This would exclude Board volunteers!), you can’t represent private interests before any agency. Then it says:
This section shall not be construed:
to prohibit any officer or employee from being affiliated with, employed by or representing a person, firm or corporation whose direct and indirect interest in business dealings with the county forms an insubstantial part of its total business, provided that he has not been retained for the purpose of appearing before the whole agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency.
to prohibit any officer or employee from appearing before any agency upon matters only incidentally part of the employment provided that he has not been retained for the purpose of appearing before the agency, and provided further that the compensation in whole or in part is not contingent or dependent upon action by such agency;
The jist (sic) of the above is that I think they were trying to REALLY define stuff to be important and payment can’t be contingent on the action of the agency. What is a little confusing is the “you can’t be retained to appear before the whole agency.” What do you think that means?
To me, the intent of the original crafters (1964) was a) disclose; b) don’t mess with anything that could impair your independent judgment. I’ll buy BOTH of those intents. The 2nd version again tries to a) disclose; and b) establish an importance factor to the matter; but muddies the waters with the WHOLE AGENCY language. What? It’s OK to meet before PART of the agency?
Unfortunately, ALL this deliberation got reduced to the VERY simplistic phrase, “Thou shalt not appear before any agency” because this was the copied language from Salem, Oregon. this was the language that was eventually approved for the County’s FIRST charter, and the language which has remained ever since 1968.
But the point is, I think I’m clear now in the intent, and I think it makes sense.
Alas, there is NOTHING on “don’t use county property for personal use” because that too appears to be a copied section with ABSOLUTELY no wiggle-room. Seems to me that if we use the original crafters logic, a level of importance or value might be tried to using county property for person use, before we get every mislaid paper clip, phone call, vehicle person errand, etc. before the Board of Ethics.
So the question I have now is what do I do with this info? Turn it over to Barbara? Can I give it to the guy that seems to have the biggest beef about this language? What?
In any even, I am finally satisfied about the intent and if given this information BEFORE, I would NOT have abstained from my vote.
IMUA!
Aloha,
Judy
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