Tuesday, May 26, 2009


MEANWHILE, BACK AT THE LAB(YRINTH): Few on Kaua`i dispute that Uncle-Chair Kaipo Potter operates his Council Chamber of Secrets with a iron-fisted and paternalistic combination of deceit and intimidation.

But never is that more so than when he and his fellow Minotaurs cut short testimony they don’t like by falsely claiming the state sunshine law forbids members of the public from discussing matters not specifically on the agenda.

What does not bode well for the future of open governance on Kaua`i is that at last Wednesday’s council meeting someone who should know better didn’t, as usual, just remain silent when Chair Asing used this misrepresentation to cut off testimony he didn’t want spoken on television but, without invitation, that someone initiated a challenge to public testimony based on the falsification.

New County Attorney Al Castillo is apparently so new to the job that he has yet to review the essential Office of Information Practices (OIP) rulings on the matter and has rather let Asing’s mealy-mouth interpretation guide his actions.

While testifying before passage of the council’s ill-advised million-dollar flush down the crapper of toruism promotion, council watchdog and “nitpicker” Ken Taylor used the opportunity to suggest the money might be better spent on other essentials- such as addressing one of his pet issues, peak oil.

But while Asing sat passively giving Taylor his perfunctory “three minutes” who should rudely interrupt and raise an objections but Castillo who has no business in any way shape or form doing so, warning Asing that the testimony was “off-agenda” and should not be allowed.

The issue was quite clearly addressed by the OIP relatively recently, in 2005 when someone on the Big Island raised the issue of their council’s tradition of allowing members of the public to speak on any subject they desire- on or off the agenda- for a short period of time at the end of each meeting.

The OIP said two things quite clearly and forcefully.

First of all OIP opinion 2005-02 says

A board may permit members of the public to speak at a meeting on matters that are not on the agenda but is not required to do so.

The important word there is “may”. The discretionary term gives the chair the ability to disallow testimony that is not about something that is on the agenda. But though he is allowed to do so, he is not required by law to stop it, as Asing has consistently claimed for years.

This has led to councilmembers- each of whom chairs a council committee- to use the same lie to control testimony at their various committee meetings... especially councilmembers Jay Furfaro and Darryl Kaneshiro who routinely follow Asing’s lead when someone says something they don’t wish to hear- or more importantly something they don’t want others to hear.

Each has refused to admit that it is up to them to allow it or not, going so far as to reiterate that they would gladly allow the testimony but state law forbids them from doing so.

Castillo was certainly not just reminding them they had the discretionary power to disallow the testimony but warning them that to allow the testimony might be counter to the Sunshine Law.

Secondly, the other half of the ruling is restrictive of what one certain group of people can and can’t discuss at the meetings- councilmembers themselves.

It says:

Board members may not discuss, deliberate or decide matters that are not on the agenda, Thus if a board elects to hear public statements regarding matters not on the agenda and the statements relate to matters over which the board has supervision, control, jurisdiction or advisory power, the board must be careful not to respond by discussing the matter.

Apparently, rather than doing his homework and verifying whether Asing and the Kaua`i County Council’s standard operation procedure complies with state law, Castillo made the fatal mistake of assuming that Asing and his henchman County Clerk Peter Nakamura weren’t willfully ignoring the Sunshine Law and OIP and substituting their own outlaw justice for the actual meaning and intent of the statute.

Since Castillo is new on the job and indeed new to governmental and public policy law we’ll assume this was a mere understandable oversight. Afterall, hey- who would figure that the council chair and the county clerk would conspire to violate the Sunshine Law- something that, if true, could yield jail time for the two?

We’ll assume that Castillo isn’t “in on” the plot as the last two county attorneys apparently were after having this matter brought to their attention numerous times by various “nitpickers”- and PNN reports- in the past.

We do hope that Castillo will take this as a wakeup call to make sure he personally dots the i’s and crosses the t’s on the legality of the council’s maze of procedures.

One incident like this under the new CA is understandable but a second would indicate complicity in activities that have given Kaua`i a statewide reputation as “a separate kingdom” when it comes to complying with state law, especially the Sunshine statutes.

No comments: