Tuesday, June 30, 2009


ASK THE BIG DOG: The Office of Information Practices (OIP) has appealed the Intermediate Court’s denial of it’s appeal of a 5th circuit court ruling that kept the minutes of the infamous “ES-177” from pubic eyes.

The case stems from a January 2006 Kaua`i County Council closed-door meeting regarding its then-pending investigation of the Kaua`i Police Department. When the OIP told the council to give up the minutes, the council sued the OIP to stop their release.

But while we’re in receipt of the Supreme Court appeal brief we’re unable to lift quotes from the document that was also scanned in cockeyed as it was sent to us.

So while we’re awaiting a usable copy to go into some depth on the case we’ll preview a couple of relevant matters in the brief.

People keep wondering what the heck is in the minutes that would cause such a battle- one in which the OIP maintains the council can’t even sue them in the first place and the council digging in to keep matter from the public eye.

What it seems to come down to is that the lower courts have ruled solely on the basis of the Sunshine Law, HRS 92. It deals solely with open meetings and allows the council to meet to “consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities”.

Since it’s obviously too late to stop the council from going into executive session, so the original request was for the minutes to the meeting.

The OIP says that the “minutes” of those meetings fall not under the sunshine Law but under the Unified Information Practices Act (UIPA) HRS 92F which deal with open records since the minutes are by definition records.

The UIPA provides strict and specific limits as to what specific kinds of information can be withheld and also specifically denies the council and covered agencies the right to go to court to appeal OIP rulings and allows only for “persons” to go to court to appeal the OIP’s denial of access to records.

But more importantly the brief argues that the UIPA also apparently limits the county-claimed broad use of the private standards of “attorney client privilege” and places limitation on that privilege for state and county agencies covered by the law.

We’ll quote some law on that when we get the brief in usable form but in a nutshell the case has broad implications for the Kaua`i council’s penchant for using the above quoted Sunshine Law passage- “to consult with the board's attorney”- to go into executive session at the drop of a hat to discuss sensitive political issues by bringing in their attorney and asking a legal question or two.

Part of the OIP case is as to whether the council even has “standing” since the law is pretty explicit- and the legislative committee report on the UIPA specifically states that- the idea was to not allow covered agencies to appeal OIP rulings even though “persons” who were denied records could go to circuit court.

But assuming the court rejects that argument as the lower courts have (although according to the OIP brief they didn’t address the matter and relied only on the Sunshine Law, as the county highlighted) the OIP says that the intent of the Sunshine Law, read with UIPA, was to limit the attorney-client privilege that applies to private individuals and organizations.

That is a contention which would cause the county to have to limit when it goes into executive session if it doesn’t want the minutes- which are a records under UIPA- released.

We’ll get into it more when we get a clean copy because there is a lot of information that wasn’t previously available about the case in the Supreme Court appeal including a description from the county’s intermediate court of appeals filing describing what they say happened in ES-177.

But for now the important part is that if the Supreme Court looks at the law in full it may mean an end to the council’s ability to discuss private policy behind closed doors as we’ve detailed in this space for the last year and a half.

Monday, June 29, 2009


MADNESS TO THE METHODS: A small notice in today’s local paper announced what may seem to malihini to be about a ho-hum blessing of the new papaya disinfection plant on Kaua`i.

But in simply rewriting a county press release the paper’s editor allows more questions to be raised than answered for many kama`aina who remember the history of the papaya “industry” and the issues of disinfection.

The press release conveniently fails to answer the big question- exactly how will the papaya’s be disinfected?

There was a time in the 70’s when papaya was “the future of ‘diversified’ agriculture” on Kaua`i. The export market seemed so unlimited that farmers were actually tearing out fields of bananas in Kilauea to plant papaya.

All it would take was a disinfection facility,

That led to one of the biggest political protest battles in Hawaiian history- the fight against “irradiation facilities”- exposing them to nuclear material- and the efforts of the state backed by University of Hawai`i and some large farms to construct the facilities.

Long story short, the people won their fight against irradiation, especially on the Big Island, buy only after it became academic because the people of Japan said they wouldn’t eat them. Eventually the movement went nationwide where people refused to buy irradiated foods when they were labeled as such.

That led to a “hot water disinfection” method which never worked and destroyed the papayas. Eventually these “hot water dip” facilities that had been built- including one on Kaua`i- went defunct and ours was actually demolished.

So naturally this peaked our interest- what kind of disinfection process was to be used in the new plant?

We called Bill Spitz, who was listed in the article as Agricultural Specialist with the county’s Office of Economic Development and he told us that the plant would use a “hot air” process which would heat the fruit to 117 degrees with a big fan and a little bit of water.

Wow, we thought- a new method and one that could have saved everyone from a lot of pilikila over the past 20 years if we had it then.

But guess what? Spitz told us that this method not new and indeed was developed at UH more than 20 years ago.

Of course at the time many irradiation opponents claimed there were other safer methods of fighting bugs and disease and that the state was being sold a bill of goods by the burgeoning irradiation industry.

Even though the label was an innocuous looking symbol that told you nothing if you didn’t already know what it was, people learned fast enough, and rejected such fruits and vegetables.

Gee it’s great they learned their lesson and haven’t tried to use any unproven potentially harmful methodologies developed in UH labs to “save” the papaya and other produce industries.... not.

What they have learned is to fight like hell against current efforts to require labeling of genetically modified products, including of course papayas.

Overseas in Japan and across Europe they do require labeling and many governments have banned the importation of GM produce entirely- meaning now that we have a way to disinfect them no one will accept our GM papayas.

There are many ways other than genetic modification to control plant diseases and insect vulnerabilities, as sustainability experts will tell you. Maybe in 20 years state policy makers and UH researchers will listen.
Currently though the facility isn’t the only thing that’s full of hot air.

Friday, June 26, 2009



(PNN) -- Moloa`a Stream's flow will be “restored to it’s natural state” if a consultant’s recommendation are followed, the county council was told Wednesday.

But although Moloa`a water activist Hope Kallai, who has pushed for the return of water to Moloa`a residents and farmers, was pleased, she also said not so fast there. She explained that the point of diversion is on conservation land and any effort at all would need permissions and permits to work on the current stream alteration that diverts river water into Moloa`a Ditch.

In addition, although Kallai did not mention it, water course alterations also usually need federal permits.

In a presentation of the final draft of the “Kilauea Irrigation Water Engineering Monitoring Study”, Andy Hood of “Sustainable Resources Group International Inc.” told council members that the water that flows into the Ka Loko Ditch system from the Kalua`a tributary of Moloa`a Stream is “not needed” to sustain agriculture in the area and “recommend(ed) at the point of diversion at Kalua`a stream, the intake to Moloa`a ditch be dammed up and restored to its natural state”.

Hood said that although “Moloa`a Ditch had never been registered to receive a stream works diversion permit nor was the ditch permitted” there was “nothing sinister” in that and there was “no malfeasance”. Rather he theorized that Brewer Inc, who owned the land prior to 1987, “just didn’t need the water” and the permitting “slipped through the cracks”.

He did not mention the part of the original draft report that says that the current condition of the intake dam was apparently the result of work done only about 10 ago, as PNN reported in its series on the Moloa`a Water theft (see left “rail” for links to prior reports).

Hood said that the Mary Lucas Trust (MLT)- which according to a 1987 “allocation” shares the water equally with the Kilauea Irrigation company (KICO) and owns land abutting Ka Loko Reservoir- has agreed to pay for restoring the flow to farmers and residents in Moloa`a Valley who say they have noticed a marked decrease in water flow and area wells ever since the late 90’s around the time the work was allegedly done.

According to that 1987 water rights agreement to serve the 105 acre “Kilauea Farms Subdivision” below the reservoir, KICO and MLT are to share the water “50-50”, Hood told the council.

But State Aquatic Resources Kaua`i Manager Don Heacock said that water rights nowadays are subject to the “pubic trust doctrine”- as established in the Wai`ahole Ditch Hawai`i Supreme Court decision- and should be allocated based on need and use by the “State Commission of Water Resources”.

Hood said that he could not determine use by KICO because it’s owner Thomas Hitch has seemingly disappeared and the current users claim “proprietary information” that “their competitors” would like to get their hands on a survey of the users done for the study drew few responses.

In addition due to the massive and complicated litigation surrounding the March 2006 Ka Loko dam break tragedy that killed seven people downstream, no one wants to talk about anything although he said much of the report would not have been possible without the discovery” process as a result of the suits.

He also said MLT only uses the water they receive to support around a hundred head of cattle.

One discrepancy as stated by Hood is that MLT receives water through a pipe that takes water from the Ka Loko ditch way up valley but also shares a 50-50 use arrangement just above the reservoir implying that MLT may be receiving much more than 50% despite their limited need.

In a power point presentation cut short by the enforcement of the council’s “three minutes” rules, Kallai presented documents showing that prior to the ’87 agreement both the county council in 1979 and the Water Department subsequently, had designs on the water. The council wanted to supply planned “diversified agriculture” in the entire Kilauea area from Kalihiwai to Moloa`a and the Department wanted some for potable water.

As to whether there is sufficient water to serve the Kilauea Farms subdivision- which was the actual subject of the $75,000 study initiated by Councilmembers Jay Furfaro and Darryl Kaneshiro- the answer is “just barely” under the current arrangement and condition of Ka Loko reservoir.

Hood provided a few options for increasing the flow including a limited repair of the breach at the bottom of the reservoir where overflow currently runs down valley into the ocean when the three big pipes that remove the water for irrigation are fully supplied.

Kallai claimed that the overflow is a huge mess that was never investigated by the EPA, and never cleaned up making the damage downstream and to the reef and ocean something that would “make Pila`a look manini.”

Some councilmembers wanted to know if and how the system might serve the entire Kilauea area since it is just barely sufficient in its current state to serve the Kilauea Farms Subdivision. But it was determined that historically there were other components of the entire Kilauea Sugar Company operations irrigation system, including the Kalihiwai reservoir which originally served some lands in that area until sugar production was shut down in the early 70’s.

That area would include the new Kilauea Agricultural Park that the county has recently obtained after a 30 year battle to acquire and set it up. Present plans are to use the potable county water system for the farm rather than a the old gravity driven cane ditch system.

The council discussed briefly whether funding a wider study to get a comprehensive idea of the water resources and needs- and current flows which were not in the report aside from some guesswork on the Ka Loko system- but Heacock recommended contacting the state Department of Land and Natural Resources (DLNR), the federal Department of Agriculture’s National Resources Conservation Service and the US Geologic Service in Honolulu to get them to coordinate and possibly fund the study since it was essentially their kuleana.

Heacock said that there are actually 26 streams that feed Ka Loko system, something Hood intimated when saying that the flow intake at the head end of the Ka Loko system was less than the amount flowing at the end, guessing that there were areas where streams fed the ditch at lower elevation although his staff did not observe them.

And of course that net gain includes the previously mentioned “pipe” at higher elevations that removes water for MLT’s cows

Heacock said there needs to be a full disclosure on “what’s being serviced- what crops are being grown” implying that some farms’ claim to “proprietary information” was not going to get them water if the “public trust” involved in water rights is enforced.
Kallai was denied permission by Economic Development and Housing Committee Chair Dickie Chang to use the testimony time of the roomful of KNA members present and was cut off without being able to finish her whole presentation which included documents not in the county report, many from a 1984 federal study of ag in the Kilauea area and water usage stakeholders at that time that were excluded in the ’87 agreement between KICO and MLT.

But as she was being given the bums rush she did mange to blurt out that the intake was on state conservation land and therefore no activity may take place without the DLNR’s permission and no changes to water flow may be effectuated without the OK of the DLNR’s “Commission of Water Resources” which determine water usage based on the Wai`ahole pubic trust doctrine.

Despite the testimony by Hood regarding Moloa`a Ditch, previous to and in anticipation of Kallai’s testimony Councilperson Darryl Kaneshiro and Council Chair Kaipo Asing attempted to limit her testimony because the specific subject of Moloa`a Ditch wasn’t on the council’s official agenda. But councilperson Jay Furfaro countered that under the state sunshine law the public was permitted to speak “off agenda” at the discretion of Committee Chair Chang.

The 155 page PDF file of the report is available on-line. It was funded through the county’s Office of Economic Development.

Thursday, June 25, 2009


TROT VS. GALLOP: We spent the morning playing catch-up, watching last week’s “county manager forum” and were expecting a good presentation from David Mora, the West Coast regional director of the International City/County Management Association and probably a bunch of ill-informed clueless questions from the attendees.

While Mora didn’t disappoint, nothing could be farther from the truth on the latter point.

Anyone who cares about the future of county governance would be behooved to give it a gander or fire up the VCR tomorrow morning (Friday) at 8:08 a.m. and hopefully continuing over the weekend on Ho`ike Channel 53.

The questions asked revealed the breadth and depth of the project and made it apparent that there are myriad considerations that need to go into any new system.

One thing became clear about what Mora insisted we call the “Council/County Manager (C-CM)” system- there are as many ways to set up a system as there are jurisdictions and virtually no two are the same. Each reflects the needs of the community, compliance with the existing state constitution and laws and especially political history and culture of the area.

Other than saying he made clear that the position of mayor never disappears under a C-CM scheme we won’t go into all the devilish details but one thing is clear- if the particulars of the system we choose isn’t appropriate there will be the devil to pay.

That means that having the existing three person sub-committee of the Charter Review Commission meet once a month in untelevised thus practical anonymity and come up with a fully fleshed out and vetted proposal may be impossible and certainly is not appropriate for a plan of this magnitude.

Such a change would be many times more important to the people of Kaua`i than our General Plan (GP) Updates, another of which is due to begin after the next election.

Writing any “new charter”- which is what it will take to implement a C-CM plan- must be subject to the same level of public education, input and scrutiny as the GP updates including a citizen’s advisory panel, island-roving, televised meetings and all the public input possible.

If we don’t do that we are likely to produce a document that doesn’t reflect the needs and wants of a consensus of the people and guarantee that all that work will be for nil when people are asked to institute a new system of government that they don’t understand or particularly want with all the details being released next summer fully formed, each giving someone a reason to vote against it.

As we all know when asked to pass a ballot measure we don’t understand or aren’t sure we like, people will vote no.

If we go through all this and it is shot down it will be the death of any chance for a re-write of our charter to reflect the distance we’ve traveled since the current charter was written in the mid 60’s to reflect a plantation economy and society.

We ask the proponents of the C-CM system to slow down and instead of insisting we rush head-long into a potential flawed document without a community buy-in. We urge them to consider allowing the subcommittee to recommend a process similar to the one employed to come up with a GP, which is usually a two year process.

We owe it to ourselves to make this work and if it’s going to work, there’s plenty of work to do.

Wednesday, June 24, 2009


THAT DOG NEVER DID HUNT: The Superferry is making headlines again today but as Joan Conrow pointed out this morning, the Honolulu Advertiser’s story missed the mark in reporting that “Hawaii Superferry wants to abandon both its catamarans when the real story, as reported in the Mobile (AL) Press Register (P-R), is that it was anything but about what Hawai`i Superferry (HSf) Inc. wanted to do but rather about the fact that the “Government (is) to repossess Hawaii Superferry

One things that stands out is a discrepancy between how much of their “investment” in the project HSf maker Austal is eating on the deal, with the Advertiser reporting the figure at $29.9 million and the P-R saying it is only 11 of that 29 million that they will “write off”.

As Joan points out a key passage in the P-R article- at least for those of us who have seen through all the gorilla dust and spin and seen how the project was always about demonstrating the aluminum catamaran design of Austal’s so that they could get the huge military contract they have now signed- says:

Browning said that Austal approved lending $23 million to the ferry venture in part because the deal would help raise the profile of Austal's U.S. shipyard, which at the time had been operating in Mobile for only a few years. Although it succeeded in doing that — the Mobile shipyard in November won a potential $1.6 billion contract to build up to 10 high-speed fast ferries for the military — Browning said the company's lending days are over.

But another couple of passages in the P-R article were, well, pretty outrageous, the first saying

Talks among MARAD, Austal and Hawaii Superferry broke down last week, Austal officials said....

Austal Ltd. President Bob Browning said he was disappointed that MARAD decided to seize the ferries without involving Austal in a project to prepare them for military use.

Maybe Austal is “disappointed” but that is certainly good news for HSf- it seems that the “taxpayer guarantee” is now being “activated” which lets the owners off the hook for trying to find work for the apparently unwanted ferry, as evidenced by the lack of interest thus far in leasing the vessels even to the military.

But the bombshell in this, if true, might just be this sentence:

MARAD made the ferry loans under its Title XI program, which is supposed to support U.S. shipyards by reducing their reliance on military work.

With what we know now about how the whole deal went down in order to have Austal positioned to do military work, the fact that MARAD- the U.S. Maritime Administration- made the loan to “support U.S. shipyards by reducing their reliance on military work” points to one conclusion- the whole deal was a fraud.

Austal has admitted as much by saying publicly and repeatedly that their “investment” was in order to prove the ferry’s seaworthiness so it could eventually rely on military work, while knowing full well of the thus-far-unreported “strings attached” to the MARAD loan.

And by fraud we don’t mean just some petty theft- we’re talking about defrauding the taxpayer out of $136.8 million.

If nothing else it goes a long way in explaining the constant, adamant denial of military involvement in the venture- for no good reason- in the face the mounting evidence, as first reported by Conrow.

It also raises the question of what the liability of former Naval Secretary John Lehman may be now that MARAD has stepped in. Funny how he personally seems to be getting away scot-free, at least financially, when it was his machinations that cost everyone big bucks, including the Hawai`i taxpayers who will probably never see the $40 million Harbor improvements Governor Linda Lingle’s “Unified command” was duped out of .

As a matter of fact, he may turn a profit since, as the Advertiser article reports:

The company has no current source of revenue yet has to cover the cost of insurance, maintenance, security, storage and a skeleton crew for the catamarans at an Alabama shipyard owned by J.F. Lehman & Co., the project's main private investor.

So Lehman gets off from any financial responsibility for the fiasco he created and is most likely collecting “maintenance storage, security, and (salaries for) a skeleton crew” now that MARAD has taken “possession” of the boats.

We’ll see what happens in bankruptcy court where proceedings are now taking place in Delaware although the state is trying to move them to Hawai`i. But due to the insane bankruptcy laws that allow fat cats to form “limited liability” companies and duck out of obligations through bankruptcy yet stick working class credit card and home debtors with paying back every penny, don’t expect Lehman to be crying all the way to the bank.


Yesterday we said that Councilman Darryl Kaneshiro served in the Eduardo Malapit administration as Mala’s “Administrative Assistant”, a second-in-command “assistant mayor” position as defined in the county charter.

Rather, Kaneshiro’s service was in the administration of Tony Kunimura where he served as economic development director and, apparently, as a generic administrative aide. We regret the error.

Tuesday, June 23, 2009


IT TAKES TWICE TWO BABY- AND BABY ONLY MAKES THREE: No one can accuse Councilperson Jay Furfaro of missing enough moist fingers to tell which way the political winds are blowing. So of course the fact that he beat a path to the door of the never-never land of the local newspaper to say “I'm a dissident too” should come as no surprise, especially to our readers who heard about his apparent 180 last week.

But inaccuracies like the mayor having a role in the selection of the county clerk aside (the council alone makes the choice), the article attempts to makes sure everyone in town now adds his name to the list of “good guys”, making for three votes where four is the magic number.

People may remember- and the article fails to note- that actually Furfaro ran for chair this year and garnered the votes of the original council dissidents Tim Bynum and Lani Kawahara, who have had the courage of their convictions as opposed to Furfaro who jumped on the bandwagon after wide-spread outrage in the community and a lack of support for Chair Kaipo Asing surfaced, even among many of Asing’s lock step supporters.

That may answer at least the first of the questions Joan Conrow asked today, wondering why:

Given Kaipo’s history, why did the Council vote to again make Kaipo chair? Why doesn’t the Council act now to remove him from that position? And why didn’t the Council move to change some of its rules when Kaipo was briefly dethroned and warming the seat at the mayor’s office? Surely they would have found an ally in former Councilwoman JoAnn Yukimura.

The first two being a matter of “doing the math”- and the math being a function of the political climbing of freshman Derrek Kawakami, the deer-in-the-headlights wits of the glad-handing Dickie Chang and the founding nature of Darryl Kaneshiro’s membership in the old boys club (he was Mayor Eduardo Malapit’s administrative assistant)- Kaipo will remain in power until either Derrek gets the message from voters or Dickie buys a pair (no, eyes).

But the third question begs a little recent history lesson.

In the article Furfaro touts how he tried to deal with the “secret county attorney opinions” quagmire created by Asing and former County Attorney Lani Nakazawa and continued by her successor Matthew Pyun.

In typical credit grabbing Furfaro style the article neglects to mention that it was Bynum who kept harping on the Star Chamber nature of the “we have an opinion that explains our actions but we can’t share it with you” machinations.

It was actually Bynum who challenged the policy over and over in open council session and was prepared to overturn it immediately.

While it was Furfaro who put it on the agenda while he was temporary chair in Asing’s absence last summer after Asing moved to the mayor’s slot when Bryan Baptiste died, it was also he who said they needed to wait to act until they had a “county-wide policy”- applying to boards and commissions too- for releasing the opinion, which of course the county attorney had to come up with- and still hasn’t to this day.

That was after he had adamantly agreed with Asing that there first must be a council policy enacted to release them, even though they had been routinely released for years before Asing’s reign as chair.

But that could have been done quickly as Bynum said he had prepared just such a policy, hence the requirement for a county-wide policy to further delay the seemingly not so inevitable.

That leads to the related statement in last sentence of Joan’s ponderings- “Surely they would have found an ally in former Councilwoman JoAnn Yukimura.”

Well Joan, surely you jest.

If there was one person who not just allowed but promulgated the secrecy of the Asing regime it was our dear JoAnn.

She used her status and abilities as an attorney to talk out of both sides of her mouth on this, claiming to support open governance but doing everything she could to perpetuate both the “secret county attorney opinions” and use of the executive session to hide embarrassing political decisions regarding public policy under the guise of “discussions with their attorney” matters of “potential, future litigation” arising from discussions of pending legislation- a warping of the sunshine law that was used just last week to discuss either implementing, or more likely fighting, the new citizen’s general plan enforcement charter amendment.

This all came to a head last summer during the bill to allow existing illegal transient vacation rentals in non visitor destination areas after threats to sue the county from Board of Realtors’ attorney Jonathan Chun “forced” her, as planning committee chair, to pass out a bill grandfathering anyone who had been violating state law for years, based on a convoluted county attorney opinion that had been released before the change was made to keep them secret.

(Actually the release of that opinion at the time was instrumental in the thinking of Yukimura that these opinions should not be released because the release of that opinion was cited by Chun as giving people reason to believe that their illegal activities were indeed legal.)

The Star Chamber-ish nature of the problem was that no one could question the legal basis for the grandfathering because it was all based on an unreleased newer county attorney’s opinion that was also another excuse to talk about public policy behind closed doors.

Although the article contains a lot of convoluted thinking and feigned ignorance by Furfaro- which we may go into at a later date- one particularly typifies Furfaro’s seeming need to be associated with the reformers while still helping construct roadblocks.

Trying to archive the past two years’ meeting minutes, as Bynum and Kawahara requested through a still unanswered UIPA request, would be tough to do logistically until then, Furfaro said. He noted additional concerns over what minutes should even be posted online, particularly executive session minutes.

First of all no one is asking to post executive session (ES) minutes although there is a move to get the council to release ES minutes that are required by law to be made public when the purpose of the ES would no longer be defeated by releasing them. The clerk’s office must segregate them now so the disingenuity of that is apparent.

The fact is that Bynum and Kawahara have already posted the minutes going back to February and are planning to complete the project whether their UIPA request is granted or not... and the ones that were posted were done in a short session of scanning and posting by Bynum.

The purpose of the UIPA request to avoid the scanning since the minutes exist in electronic form meaning that all it would take to post them is a few key board strokes, no scanning needed.

It’s typical of Furfaro’s style, probably learned at the feet of Yukimura, where lip service to open governance is negated by actions to set up roadblocks to accountability and transparency.

Can’t anyone here play this game?

As they (ok, we) say, the Minotaur can’t guard the labyrinth all alone and with dissidents like Furfaro, who needs sycophants?.

Monday, June 22, 2009



(PNN)-- Public disclosure of financial information required by state law of certain county officials will now be subject to public review according to a letter to all board and commission members from Executive Assistant and Administrator of the Office of Boards and Commissions, John Isobe.

The Hawai`i State Constitution’s "Code of Ethics” Article XVI states that

financial disclosure provisions shall require all elected officers, all candidates for elective office and such appointed officers and employees as provided by law to make public financial disclosures.

That has apparently never been the case on Kaua`i where the Board of Ethics (BOE) has for decades routinely received the pubic disclosures in executive session where they have redacted whatever they consider to be sensitive and/or personal and financial information as defined in the Universal Information Practices Act’s (UIPA) section 92F-14(6).

As a matter of fact, the very financial information meant to be reviewed for violations of conflict of interest provisions by the board so they can stop the conflict from occurring appear to be the ones that have been hidden from the public so as not to embarrass those required to file.

According to the County Charter, Article XX, the “mayor, councilpersons, all department heads and deputies, members of boards and commissions and the purchasing agent” are specifically required to publicly make public financial disclosures. All others may file a confidential disclosure.

According to Isobe’s letter

At its meeting on June 4, 2009, the Board of Ethics received a ruling from the Count (sic) Attorney's Office that all Disclosure Statements required to be filed with the Board are public record and must be released if requested by a member of the public.

When releasing this information, we have been instructed to only remove your personal information such as mailing address and contact phone number. For this reason, please be advised that any financial information will NOT be protected as defined under Section 92F-14(6), Hawaii Revised Statutes. (emphasis not added).

The warning is a apparently stunning admission that previously they were not “released if requested by a member of the public” and “financial information (was) protected”.

Two witnesses independently offered that the color went out of Isobe’s shocked-expression face when the board revealed the change of opinion in open session

According to the state constitution’s Code of Ethics:

financial disclosure provisions shall require all elected officers, all candidates for elective office and such appointed officers and employees as provided by law to make public financial disclosures... All financial disclosure statements shall include, but not be limited to, sources and amounts of income, business ownership, officer and director positions, ownership of real property, debts, creditor interests in insolvent businesses and the names of persons represented before government agencies.

The practice of not disclosing public disclosures is rooted in the county ordinance and BOE rules, both also called the Code of Ethics, which conflict with the more authoritative county charter and state constitution.

Currently the administrative rules of the BOE say


All elected and appointed officers and employees, who are elected or appointed by officers elected pursuant to law or by County agencies and who have discretionary, executive or policy making powers and responsibilities shall be required to file the disclosure pursuant to Article XX the Code of Ethics


Disclosures filed with the Board are confidential and the Board shall not release the contents thereof except as required by law except as provided under HRS 92F-14 (6).

But a new proposed change, based in part on what the county attorney has apparently told the BOE in a June 4 executive session meeting would reverse that 180 degrees and, if passed, the rules would read



The mayor, councilpersons, all department heads and deputies, members of boards and commissions and the purchasing agent (3/12/09) shall be required to file the disclosure pursuant to the Code of Ethics


Disclosures filed with the Board are public record.

The matter was brought to the attention of the board beginning in March through the efforts of a handful of public watchdogs including Horace Stoessel, Glenn Mickens, Ed Coll, Walter Lewis and, especially Rob Abrew who persisted in researching and presenting the documentation that led to the new policy after BOE member Rolf Briber insisted the board pay attention to the pubic testimony.

Abrew and the others questioned why the disclosure forms were being reviewed in executive session in the first place rather than going having them go straight to public purview.

At first members of the board listed an evolving series of seemingly innocuous reasons for the secrecy, none of which indicated any changes to the substantive financial disclosures were made by the board.

But at the April 4 BOE meeting Bieber brought the matter up and the minutes indicate that what went on in executive sessions on financial disclosures was anything but innocuous.

The minutes say:

Chair (Leila) Fuller explained that the Disclosures are reviewed in Executive Session for the purpose of checking for potential conflict of interest but in those Disclosures are personal financial information that may not want to by mistake open the door for something. After they are approved in Executive Session they become a public document so the public has access to those documents once they are approved but the confidential and private information that should not be public knowledge is redacted when a member of the public requests a copy of the disclosure,

Mr. (Paul) Weil asked if they were not public documents from the beginning, the public has access to them even before we have approved or accepted them. Chair Fuller said they have no reason to be a public document before they are accepted. Mr. Weil asked to be directed to the Code that says they are not public documents until the Board has accepted them. Attorney Clark referenced HRS 92-F 14. Staff noted it was a public document except where provided under HRS 92-F 14 (6) which lists items that would be redacted before anyone looks at them.

This was the first admission by a BOE member that financial disclosures were being changed at all much less to avoid “opening the door” by disclosing too much financial information regarding conflicts of interest.

Resistance has been high to changing the rules, first proposed earlier this year, primarily by Fuller and former Chair Mark Hubbard.

Previously reasons they offered for executive session receipt of the disclosures had included making sure they were “complete” and were not “incorrect” since, they said, filers might not realize what they are filing, despite the fact in fling they are required to notarize an “affidavit”.

The further minutes reflect a desperation to find reasons to resist complete public disclosure of the completed public disclosure forms.

Mr. Bieber said his point at minimum was they have a better relationship with the public regarding this. Chair Fuller asked Mr. Bieber how he proposed (the Board) do that. Mr. Bieber said maybe there was another way they could go over the Disclosures, perhaps a packet with Disclosures in them instead of spending time in the meeting in Executive Session doing that. Chair Fuller cautioned against that because if they were to get the Disclosures in a packet that is just that many more pieces of document that are out in the public in case their briefcase gets lost or misplaced and likened it to a State computer with sensitive information on it that got misplaced or lost.

Reached for comment Bieber, said in an email:

Change in application of Disclosure Law has been long overdue for the County employees and officers of Kauai. The Board of Ethics is finally conforming to State Law properly within its Rules.

I am proud to say this came from the public. I simply moved the Board of Ethics to continue to provide the public hearing arena to maintain open dialog. Ethics agreed.

Substantial credit for this change in important Disclosure Law application goes to the public individuals who testified to bring more sunshine into County government operation, a small yet substantial victory for much needed open government and democracy on Kauai.

According to Abrew, at the June 4 meeting after an executive session on the matter the board returned armed with a new county attorney’s opinion requiring the change in policy although he could not say which whether they met with new County Attorney Al Castillo or one of his deputies.

While the written opinion has not been released as yet, the BOE has been the only board or commission to release a county attorney’s opinion in many years and it could be released at their July meeting.

The public is still awaiting a promised new opinion on the enforcement of the prohibition of board and commission members appearing on behalf of private interests before other boards and commissions, as contained in the county charter’s section 20.02(d).

For more information on the BOE read PNN’s three part investigative series Unethical culture- Government service with a personal “touch”

Read Part 1- Bored of Ethics on the Board of Ethics?Read Part 2- The Long and Winding Road to InertiaRead Part 3- Deep Thoughts- A “Handy” Diversion

Friday, June 19, 2009


FOOL ME TWICE I’LL BITE YOUR HEAD OFF: Yesterday, in wondering what the heck the council was doing meeting behind closed doors in order to discuss the public policy regarding what we called “implementation” of the citizens’ petitioned charter amendment to enforce the general plan’s growth parameters, we noted that the notice for the June 16 meeting read:

(T)he purpose of this executive session is to consult with the Council’s attorney regarding the charter amendments adopted in the 2008 General Election and other related matters.

In addition we noted that $150,000 had been appropriated and approved to hire a special outside attorney for whatever they were doing.

We stand corrected- the amount is actually $220,000 according to Councilmember Tim Bynum who had complained publicly before the executive session (ES) on Tuesday that he was dissatisfied with the “work product” so far especially for the money they were spending.

And that got us to thinking- always a dangerous proposition.

It led us to wonder why we had characterized the ES as relating to “implementation” of the amendment and presume it was to conduct public policy.

We had seen them do it so often in the past we had to assume, illegal or not, they were doing it again. And when you assume, as the saying goes, you make an ass(of)u(and)me.

So after a little searching we discovered that the term “implement” was never used in the notices for the two previous ES’s on the subject since the ballot measure passed last November.

Our bad-, although we could have sworn the previous notices contained the word it was most likely referred to that way during the meeting and/or in various interviews we conducted while trying to find out why the planning department was continuing to process permitting for visitor accommodations... even though a search of our notes turns up a blank.

The amendment plainly banned the department from doing this and requires the council to do the permitting until they pass legislation forcing the department to enforce the growth limits stated in the general plan.

The working of the amendment raises all sorts of questions as to how this all would work, as we detailed both before and after the election in describing it as a “monkey wrench” provision which we opposed at first but later endorsed fully since the council didn’t seem to be doing anything about out of control growth and this would force them to deal with it.

One thing we didn’t report yesterday was that actually the previous council had met in ES prior to the election and appropriated some of the $220,000- presumably $145,000- for special council at that time according to statements made by Bynum at Tuesday’s meeting.

The other $75,000 was appropriated on June 10 at a “special” council meeting where the appropriation and an ES regarding the matter were the only thing on the agenda other than a routine approval of a state grant.

Questions about why the planning department is still processing zoning permits for visitor accommodation aside, as complicated as it might seem, why would it take six months and $220,000 to figure out how to write the bill to return the permitting power to the Planning Department by restricting growth numbers to those in the general plan?

Councilperson Jay Furfaro, saying the amendment took effect 50 days after the election, also said during the discussion preceding the ES that “some departments are having applicants sign affidavits” when filing for permits but did not elaborate as to which departments and what they signed.

The only possible answer is that, although the agenda notices are carefully worded to avoid saying so, the council is gearing up to file suit to block implementation of the amendment.

Here the what the notice for the January 14. 2009 ES said

(T)he purpose of this executive session is to provide the Council a briefing on the legal ramifications and/or requirements and/or claims and/or potential claims relating to charter amendments adopted in the 2008 general election and other related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to legal ramifications and/or requirements and/or claims and/or potential claims relating to this agenda item.

That should have alerted us to the what was happening but at the time many thought that the wording was just there so they could have a plausible excuse to meet in executive session and hold a discussion of public policy behind closed doors by saying there could be “potential claims” involved.

After all, that was the excuse used last summer when similar closed door discussions of the bill permitting then-illegal vacation rental in residential areas were conducted outside the public purview

Later, on the June 10 agenda it had morphed to say:

(T)he purpose of this executive session is to provide the Council a briefing on the Charter amendments adopted in the 2008 General Election and other related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to legal ramifications and/or requirements and/or claims and/or potential claims relating to this agenda item.

Although the change is subtle it makes it actually further disguises an intent to block implantation and confirm the scuttlebutt that the council was meeting in ES to discuss public policy rather than legal matters.

Misdirection accomplished, both here and among the supporters some of whom told us they were anticipating the council implementing the provision.

Of course that was fine with the council assuming they are trying to get a leg up by filing suit before anyone realizes they are meeting to stop the amendment from taking effect rather than figuring out how to make it work.

The last time they successfully tried to block a citizens' petitioned charter amendment- the so called “`Ohana” amendment to restrict property taxes- they announced their intention and the proponents were ready with a California property rights law firm at the pro bono ready.

Fool them once.....

It should be noted that we have absolutely no direct knowledge that this is the case but this would certainly explain a lot.

That said, one possibly telling statement came from Councilperson Lani Kawahara who, despite an attempt by Castillo to stop any discussion in open session said “I want to assure the public that my main goal is to enact the amendment... aligning our growth with the general plan”.

Also, Bynum in fact did use the word “implementation and other aspects” at one point in referring to the goal of hiring the outside consultant and holding the ES.

It would apparently behoove those who worked so hard to throw this monkey wrench into planning commission and department’s rubber-stamping “dumb growth” program, to gear up for a fight or perhaps file for their own injunction to block zoning permits from being issued before the council files one to block the whole shebang.

Forewarned is forearmed.

Thursday, June 18, 2009


SAME OLD DOG, SAME OLD TRICK: Many in the community are finally opening their eyes to the abuses of open government principles involved in a quest by the two dissident councilperson’s of late.

But if they are shocked at how both the public and even some of those they elected are given the mushroom treatment, while we’ve got their attention all we can do is quote Al Jolson- “you ain’t seen nothing yet”.

The matters that Tim Bynum and Lani Kawahara forced onto a future council agenda on Tuesday are but minor “first steps” toward cleaning up at least seven years of a concerted effort by Council Chair Kaipo Asing to evade, flout and pervert the Sunshine Law in order to avoid public scrutiny in matters of public affairs.

Bynum has complained bitterly in the past about one of the main vehicles for hiding what the council is doing- the “secret” official county attorney (CA) pubic policy opinions. That issue as received notice not just here but in the local newspaper and those that follow council doings are all too familiar with the practice.

It reeks of Star Chamber methodology whereby the council tells the public the council is compelled to do something baffling because they have a county attorney’s opinion... an opinion that they “can’t” reveal.

But although related, far worse is the practice of meeting in executive session (ES) to discuss prospective legislation and even bills that are on the table.

Just this past week the council met in secret by saying

(T)he purpose of this executive session is to consult with the Council’s attorney regarding the charter amendments adopted in the 2008 General Election and other related matters.

Pretty outrageous, eh? And this isn’t the first time.

These ES’s, as revealed for the first time this past Tuesday, are ostensibly to discuss the implementation of the “General Plan” charter amendment passed this past November- a matter of public policy if there ever was one.

You would think the drafters of the amendment who worked so hard to pass it would be up in arms. But you’d be wrong because not one has objected at any of the ES’s.

You would also think that this practice would be forbidden. In fact the very first provision of the Sunshine Law, §92-1 Declaration Of Policy And Intent, reads, in part

Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible. To implement this policy the legislature declares that:
(1) It is the intent of this part to protect the people's right to know;
(2) The provisions requiring open meetings shall be liberally construed; and
(3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.

There are of course legitimate reasons for holding closed meeting- lawsuits, personnel matters and the like. They’re addressed in 8 exceptions in §92-5(a)

But one of those exceptions, #4, contains a provision that has been abused so as to obliterate any pretense of following these principles, It reads:

§92-5 A board may hold a meeting closed to the public pursuant to section 92-4 for one or more of the following purposes:...
(4) To consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities.

Now obviously this is supposed to be read along with the principles and the rest of the law. If it weren’t then as long as “the board’s attorney” is in the room and speaks and they discuss “the board's powers, duties, privileges, immunities, and liabilities”- which covers just about everything the council does, including pubic policy- all meetings could be conducted behind closed doors in their entirety.

Despite the absurd result of interpreting the law this way, that is just what the county started to do gradually when Mayor Bryan Baptiste appointed County Attorney Lani Nakazawa who developed both the “secret opinion” and the principle that allowed 92-5(a)4 to be interpreted to cover anything she said it did- especially any possible “future litigation” as well as holding that the council’s “powers, duties and privileges” include discussing and drafting legislation... the very thing that’s supposed to be done in public.

But isn’t there an Office of Information Practices (OIP) to make sure this doesn’t happen?

You would think so, at least in theory. But in actuality what has happened is that any complaint, if it’s accepted by OIP and gets that far, is subject to what’s called an “in camera” review whereby the OIP can look at the ES minutes and decide if they are to be released.

And that’s exactly what happened in January of 2003 when, in the infamous “ES-177”, new councilmember Mel Rapozo apparently went ballistic and attacked the Kaua`i Police Department as the first volley in his campaign to remove newly appointed Chief KC Lum.

The OIP asked for the minutes, examined them and ordered them released. But the county then sued OIP and years later Circuit Court Judge Kathleen Wantanabe- a former Kaua`i deputy county attorney- ruled that the releasable parts of the minutes were “inexorably intertwined” with the legitimately discussed items and so nothing could be released.

At the time OIP was headed by a real open government crusader, director Les Kondo who was willing to go to the hilt to defend the Sunshine Law. But by the time the case came up the OIP had a new director though an appeal was promised its status is apparently “on hold”.

The council, under the tutelage of Asing, Nakazawa and the next CA Matthew Pyun, used this as a signal that they could pretty much allow the council to meet in ES on any subject they desired with impunity, including pending legislation as happened over and over during the contentious “Transient Vacation Rental Bill” passed last summer as well as with other matters.

It should be noted that the “charter amendment” ES’s have been held with unanimous votes, including Bynum’s and Kawahara’s. Bynum did on Tuesday protest the immense amount of money spent on “outside counsel” so far (up to $150,000) without what he characterized as a sufficient work product before being cut off by new County Attorney Al Castillo.

Wednesday, June 17, 2009



(PNN)-- In a masterful piece of political theater, Councilperson Lani Kawahara succeeded in putting a discussion of her and Tim Bynum’s reforms on the council’s agenda at either the July 8 or July 22 meeting with even Chair Kaipo Asing in the end being forced to reluctantly vote “aye” along with the other six councilmembers.

Two weeks ago Bynum’s attempt to add a resolution to that day’s agenda was nixed by the County Attorney Al Castillo as being a violation of the Sunshine Law

This time when the subject of approval of the agenda came up, it was Kawahara who asked to simply add a “communication” to the agenda that would require discussion of the changes be discussed on the agenda at the next council meeting on July 8.

Last meeting Bynum and Kawahara were opposed by the other five councilmembers. This time though the first chink in the armor was an apparent 180 by councilmember Jay Furfaro who immediately said that “if the purpose is discussion... that doesn’t sound unreasonable”,

Although he tried to block an attempt to discuss council rules at the last council meeting, public pressure seemed to have caused him a change of heart.

Then Castillo surprisingly decided that he could split the baby and announced that, in his legal opinion, discussing adding the matter to a future agenda differed from discussing the actual subject matter as far as the Sunshine Law was concerned.

“It’s just a communication”, he told an apparently stunned Asing and the rest of the council. “This time there’s no substance to it (so) it’s not of ‘reasonably major importance’ and will not ‘effect a significant number of persons’.”

In her presentation, an animated and obviously nervous Kawahara stood up and listed the reforms to the council rules she and Bynum have requested be discussed including on-line access to all public documents, timely distribution of materials addressed to councilmembers and most importantly, an enforcement of the rule providing for councilpersons to have the ability to place matters on the agenda.

The issues are fully detailed at their kauaiinfo web site which has recently been updated with minutes of recent council meetings going back to February 25.

She also referred to the on-line petition supporting the changes which, she said had 290 signatures. Her “communication” asked that discussion of these matters be placed on the agenda of the next regular council meeting, July 8.

That gave Councilperson Darryl Kaneshiro an opening to say to Castillo “so the 290 signatures is not a significant amount” intimating that if 290 people were concerned with the issue that would constitute “a significant number of persons” who would be effected.

But Castillo reiterated that by only introducing a communication to place the matter on a future agenda, that is the action that must meet the standard and that the actual substance would be discussed on July 8 at a duly agendaed meeting

“I’ve got to split this” he said, “It’s the legal analysis”.

Asing still not satisfied said “placement of the minutes on the web site?” referring to one of the reforms Kawahara and councilperson Tim Bynum have asked for. “That’s going to affect the whole county.”

But Castillo again said he was separating the substance from the request to put it on a future agenda.

Furfaro then reiterated his support for having the discussion saying “by a 2/3 vote this council has the ability to put this matter on the agenda” although he noted that the chair has “the management rights” to say on which agenda it would appear.

Then in a jaw-dropping, politically tone-deaf statement Asing took one last stab at retaining control.

“Why would we want to discuss in-house rules with the public?” he asked Castillo. “There are in-house rules and you want to take that and discuss that in a public forum? Why would you want to do that?”

Furfaro then pointed out that “our rules are passed in a public forum, by resolution” and Bynum added that they can be changed by “subsequent resolution” all in public, open meetings.

Asing then called what he said would be a “short recess”.

According to witnesses, during the next hour a flurry of animated conversations between Asing and Castillo and County Clerk Peter Nakamura ensued. Toward the end of the hour Nakamura was observed conversing with Kaneshiro.

When the meeting was called back to order, in an obviously scripted manner a defeated Asing immediately called on Kaneshiro who, in a face-saving move for both himself and Asing, noted that the request was encroaching on the managerial duties of the chair and asked that the communication be amended to provide for adding the item to either the July 8 meeting or, if the agenda was too full, the July 22 meeting.

Without discussion Asing called for a vote on the amendment, to which all councilmember including Asing voted “aye”.

Then also without discussion the council unanimously voted aye to adding the item to the agenda of the meeting of either July 8th or 22nd.

Neither councilmember Derek Kawakami nor Dickie Chang ventured a comment during the discussion essentially exhibiting a deer in the headlights expressions along with a bewildered “what just happened” look after the item was added to the future agenda.

But the day of challenges to the abuse of power by, not just the chair but under his direction, Nakamura (as PNN has detailed over the past two weeks) was not over.

This time it was Bynum taking the reigns in order to highlight the way he and other councilmembers have been denied access to communication that are addressed to them.

First Bynum detailed how a bill that was on this week’s agenda related to changes to the shoreline setback law that the council passed last year had been time-stamped as “received” by the clerk on May 12 but, Bynum said, he had not gotten the new bill until June 12 and the related documents “just yesterday”

He noted that council rules require the county clerk to “forward at once” all communication to those to whom they are addressed, noting the measure was addressed to the “chair and all councilmembers”.

The bill had come from the planning department along with amendments, transcripts and staff reports that resulted from planning commission review.

Bynum said that he had been following the bill closely and had even recently asked the planning director what the delay was since the bill had been disposed of by the planning commission in April. The planning director had expressed surprise that it hadn’t gotten to Bynum and said he had forwarded it the council at the time.

Bynum complained that this left him with only a day to review the voluminous materials rather than five weeks, saying that this kind of thing was a common occurrence.

Furfaro offered an explanation in saying that legislation is supposed to be “managed” by the appropriate committee chair according to council rules and took responsibility for withholding the material.

He said he had received the bill and materials as planning committee chair and claimed that to forward them to all councilmembers would put him in jeopardy of violating the prohibition on “serial one-on-one” communications, referring to a recent letter from the OIP that had admonished him for violating serial one-on-one prohibitions.

He noted that the Earth Justice organization had pointed out some “conflicts” in the law and that might have accounted for the delay, waving a letter to the planning department he planned to send asking about those changes.

Though he did not say what the letter specifically referred to, PNN filed a complaint with the OIP in December regarding a serial one-on-one communication accusing Furfaro of violating that provisions of the Sunshine Law.

But it didn’t end there. When the routine quarterly report from the Kaua`i Humane Society came up on the agenda Bynum again compained that although it was received by the clerk on May 27 he had just gotten it last week, noting that this time it had nothing to do with “managing legislation”.

Bynum noted that these were only examples and that there are literally dozens of communications addressed to him every week that he never receives.

That spurred the only remark made by rookie Councilperson Kawakami who said Nakamura’s actions were “ok with me”.

“The last thing I want is to be overwhelmed with communications” he said thanking the clerk for screening and limiting his interactions with his constituents.

Asing then exploded at Bynum saying that “this is the first time in 26 years” that any councilmember had complained about any of the rules or the process and that Bynum seemed to “have all sorts of complaints.

Asing routinely protested council policy and rules when he was a dissident early in his political career when he was on the losing end of many 6-1 votes and as have other councilmembers over the years.

It was at that point that county Attorney put a halt to the discussion saying that "subtle allegations against the county clerk (are) an employment matter” and should only be discussed in executive session.

Tuesday, June 16, 2009


EVERYBODY’S BITCH: To whore or not to whore- that is the question every “blogger” faces, whether of the journalistic or social networking type.

Last week Honolulu Advertiser blogger and former Star-Bulletin Editor Dave Shapiro set off a turd-storm describing how he

read in the Pacific Business News how a bunch of bloggers and social media types from the Mainland were here on a free Hawai`i vacation compliments of the Hawai`i Tourism Authority.

I don't have the marketing expertise to say whether the $15,000 paid by HTA on the
So Much More Hawai`i junkets was worthwhile in terms of attracting visitors to Hawai`i.

But the new media folks accepting the freebies were a throwback to the bad old days of journalism when favorable coverage was for sale at the right price

Well after Dave referred them to the Society of Professional Journalists Ethics Code which forbids “freebies” for travel writers (and other “reviewers) because of the obvious conflict of interest, many of the blogger/whores- who were acting as journalists but were really just PR hacks masquerading as reporters- got wind of the post and tried to defend themselves.

After the denials by some that “I’m not a journalists- I’m just a blogger”- despite the fact that they are doing exactly what a reporter does- their reactions were, like any child caught with their hand in the cookie jar, expected and priceless in defending their actions with either “but everyone else is doing it” or “well, really I didn’t take THAT much money/freebie”.

But those who “blog” and also try to maintain actual journalistic principles face the same dilemma facing newspapers these days- how to financially support their efforts and still maintain those ethical standards.

Some may solicit donations like Disappeared News’ Larry Geller. But many others like Ian Lind have turned to advertising which is all too easy with “googleads” and “doubleclick” offering cash-for-eyeballs, even if it is at a rate of pennies a click.

Today Ian- and the rest of us- got a lesson on the pitfalls of “signing up” to allow ads to appear with his posts.

Ian, a former investigative reporter for the Honolulu Star-Bulletin, usually provides comments and added content on local stories and provides links to interesting web sites and posts, all interspersed with original reporting.

But today he presented arguably the best piece of investigative journalism in the state this year with under the professionally crafted headline Door-to-door security sales ringing consumer alarms.

It details an apparent scam happening on O`ahu involving Mormon students on summer vacation who are parlaying their door-to-door skills gained in “missionary” work into selling fly-by-night, long-term contacts for “free” home security systems.

The problem is that when you click through to the stand-along page for Lind's article, right across the top, googleads/doubleclick has pasted a click-on ad reading

Need and Alarm system?
Let Buyerzone Save You Time and Money
Compare Alarm System Price Quotes and Save

And of course when you click it on you see

Buyer Zone- used by over 4 million buyers
Compare Free Quotes- Let us save you time and money in 5 minutes- Take our Survey
Or....Search our Directory of Monitored Alarm System Companies

Of course when you “search” there is only one company to “compare” - ADT Monitored Alarm Systems”, a “reputable” company with many years in the business.

Lind has no control over which ad google will post with which article, but of course google is well known for automating a process where their ads correlate with the content- as anyone who uses gmail knows all too well

The problem is that to anyone who doesn’t know how google works or doesn’t put it together with the ad on Ian’s site, it makes what is an extraordinary piece of investigative work onto one that raises questions about the integrity of the author by making it appear Lind is just running down the competition for his “paid” masters.

No reputable newspaper runs ads based on content- note the word “reputable” since it seems to happen more and more these days. And certainly they would never be so gauche as to put the ad at the top of a page that contains an article on a related subject. And that goes double for on-line ads... if they have the ability to control it.

While on-line ad revenue for news providers will seemingly be minimal for the foreseeable future. if the google-style information gobbling and regurgitation advertising model is the future of newspaper reporting, those getting freebies on tourism marketing junkets may be the least of the ethical problems for the “news business”.

Monday, June 15, 2009


A DAY AT THE RACES: Tomorrow is the first full council meeting since the June 3 dust up and it’s anyone’s guess how the melodramas will play out.

(Cue organ music) When we last left our intrepid heroes Tim Bynum and Lani Kawahara they had been thwarted by the three evil geniuses, Drs. Asing, Nakamura and Castillo, in their attempt to bring sunshine and democracy to the Separate Kingdom.

Make no mistake about it. If Councilpersons Tim Bynum efforts to open the council’s agenda processes and bring sunshine to pubic documents – as PNN has described throughout last week or so- are to have fruitful results they must continue to challenge Chair Kaipo Asing’s despotism

The ball is in the dissidents’ court. The status quo is what it always was. If past is prologue Office Of Information Practices (OIP) and even court challenges could take months or even years during which time councilmembers’ measures will not find their way onto the council agenda and documents will linger in the darkest recesses of the Historic county Building.

On Kaua`i stonewalling silence and “doing what’s wrong as long as they can” has a long tradition. And no one expects that to suddenly change.

While we don’t know what (or even if) Bynum will do tomorrow, we do know what needs to happen for this challenge to entrenched power to succeed.

There are two different avenues that Bynum- and in fact members of the public- can take to force a discussion of his rule change to clarify that all councilmembers have the right, under council rules, to place bills, resolutions and other matters on the council’s agenda.

The first is to repeat the attempt he made at the June 3 to amend the agenda when the subject of “the agenda” comes up at the beginning of the meeting.

Last time Bynum was unprepared for the legal mumbo jumbo that county Attorney Al Castillo used to block the introduction, discussion and vote upon whether or not to add the matter to the agenda.

HRS §92-7(a) says that “(t)he board shall give written public notice of any.. meeting when anticipated in advance... at least six calendar days before the meeting.

But HRS §92-7(d) anticipates there being situations where the agenda may be amended at the time of the meeting “by adding items thereto with.. a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons”.

Castillo and Asing focused on the “reasonably major importance and action thereon by the board will affect a significant number of persons” section. They argued that even just the discussion of any matter to be added the council would violate the sunshine law.

Though Bynum was armed with an OIP opinion saying the matter could be added to agenda no one anticipated that Castillo and Asing would try to block even the introduction, discussion and vote to add it to the agenda.

By anticipating additions being made and making it conditional, the Sunshine Law, like all others, anticipates that the introduction, discussion and decision is to be made through the normal due deliberatory processes of the council.

If Castillo’s argument- that introduction, deliberation and decision-making would itself violate the Sunshine Law- were valid, nothing could ever be added to the agenda at a meeting whether it meets the two conditions or not because the due deliberation and decision by the council could never take place.

It’s a basic tenet of American jurisprudence that if a law anticipates something occurring, it must be interpreted so as to make that occurrence possible. In large part the case law goes back about as far as one can go, all the way to 1803’s US Supreme Court “Marbury vs. Madison” decision which basically says you can’t have administrative policies that invalidate the law.

It clearly cannot be a Sunshine Law violation to introduce, discuss and vote upon adding a matter to the agenda since the law itself describes the process to do so and the three thresholds the council must meet in order to add something (the third being the 2/3 vote).

The second “opening” for Bynum and even the public to speak on the matter is the presence on the agenda of the approval of the minutes of the June 3 meeting.

As PNN reported last week the OIP has opened up an investigation to determine whether the minutes of the executive session held at the meeting should be made public.

HRS §92-9(b) states that “minutes of executive meetings may be withheld (only) so long as their publication would defeat the lawful purpose of the executive meeting, but no longer”.

The purported lawful purpose Castillo stated was that the matter was not on that meeting’s agenda. But that day’s meeting is over so the condition can no longer be defeated and the council can- and should- vote to release those minutes or at least have a discussion and hold a vote on whether to do so.

We can’t say what Bynum will do tomorrow. Nor can we say if any members of the public will step forward and make these points when these matter come up on the agenda. But if Bynum doesn’t act perhaps the people will.

Members of the public have two, three-minute segments to speak on each agenda item and if they want to speak on either of these they had better be there before 9 a.m. since the first matter on the agenda after the roll call is “approval of the agenda” which is a condition precedent to holding the meeting.

That’s followed by the “approval of the minutes” although minutes approval is something that can be “moved to the end of the agenda”- a tool often used by Asing to delay discussion of controversial matters until interested people are either out of the room or get tired of waiting and go home.

(Cue organ music) Will our heroes accept the status quo and simply lick their wounds? Or will Bynum continue to strike while the iron is hot and the issue is fresh and clear in the minds of the outraged Kaua`i citizenry?

Will the evil genius’ once again thwart our dynamic duo? Or will Bynum and Kawahara’s clear thinking, honesty and penchant for democracy and rule of law, rule the day?

Will Dickie Chang and Derek Kawakami do the bidding of their new masters and establish themselves as political climbers and the latest members of the good ol’ boys club? Or will they support the torch and pitchfork bearing masses and join the side of goodness and sunshine... or will they even just be forced to vote on the matter and show their hand?

Join us again tomorrow in the Minotaur’s Labyrinth for another episode of... “All My Cronies”.

Friday, June 12, 2009


ON AND ON, ON AND ON, ON AND ON: It’s been ten days of conflicting thoughts and emotions with the explosion of public interest in a subject that is anything but revelatory to us or our gw?/PNN subscribers and readers.

After a year and a half of exposes and detailed coverage of the secrecy and corrupt machinations of Council Chair Kaipo Asing and his henchmen, through the forced courage of one man the island suddenly sees their emperor has been nakedly rigging the process.

We feel like we owe Councilperson Tim Bynum an apology for some of the things we’ve written in the past, not just questioning the luminosity and focus of his cerebral candlepower but more importantly his integrity in acquiescing to Asing’s dictatorial hold on the council.

Who knew that he was apparently biding his time and going to eventually expose what we’ve been saying and he now admits has seen Asing’s active efforts to treat everyone like mushrooms- keeping us in the dark and bury us in bullsh-t.

Despite the outward signs that Bynum was occasionally frustrated as his first term went by, rather than take on any kind of adversarial role he showed the same inclination that other formerly idealistic new councilpersons had displayed- allowing their “respect” for Asing to squelch and stifle any penchant for reform.

We’ve wondered for years what it would take to pull back the veil for the general apathetic and uninvolved Kaua`i populace. Who knew that it would be Asing himself that would- or could- go a step too far in denying the basic tenets of democracy and violating the rule of law... and that some of his actions would be the straw that broke the camel’s back for Bynum.

Surely one factor in Bynum’s conversion- and one without which it never would have happened- was the election of Lani Kawahara who similarly could have spent years building up the courage of her convictions had Bynum not been through the same thing and poised to act.

How all this will play out is anyone’s guess. A courtroom is looking more and more like the place where the ability of councilpersons to place items on the agenda will be decided.

One local attorney, citing Marbury v. Madison- the 1803 Supreme Court decision establishing the “rule of law”-, wrote this morning in an email that “(i)f Tim Bynum sues, Tim should win”.

Another professional asked where people could contribute to a “democracy defense fund” as it were, to finance the case.

But with all the ire being directed at Asing what seems to escape many is that Asing’s hold on power is in the hands of the other four councilpersons.

If supporters of recently elected Councilmembers Dickie Chang and Derek Kawakami let them know their support of Asing could jeopardize their nascent political careers- something that both care deeply and apparently excursively about- as unlikely as it may seem the political pressure could cause them to vote to save their own necks.

It doubtful that either Jay Furfaro or Darryl Kaneshiro will buck Asing. Both are as paternalistic as Asing.

But even now, with their stress on the agenda availability and access to public documents Bynum and Kawahara makes one wonder what would happen if suddenly Asing, seeking to cut his losses, just gives up control of these two matters to run away and fight another day.

Though important and shockingly manipulative these matter are merely the tip of the iceberg and only symptomatic of the deeply seated corruption of process Asing and the rest of the council has traditionally promulgated and perpetuated.

Will the two dissidents stop voting with the majority to go into executive session at the drop of a hat, as they have despite reservations? Will they refuse to confirm conflicted board and commission appointees? Will they hold the administration’s feet to the fire when incompetence and corruption are exposed as they have been time and again, not just in this space but on the council floor.

We certainly hope they get the power to add items to the agenda and post public documents on-line. But the list of needed reform legislation is long and implantation will be arduous. Our county code and administrative rules are lettered with outdated ordinances that were written to protect the island’s power elite. And our charter is countermanded in many provisions.

The Ethics Board- which is appointed by the council- is itself the most corrupt and lawless of all county entities and the code of ethics ordinance is littered with illegal provisions. The Planning Commission is a rubber stamp of dumb growth and the director is so entranced he has convinced the commissioners that they work for him when the charter says the opposite. The well documented rampant corruption in the Personnel Department is in many ways encoded in county ordinances that permit patronage that would put Chicago to shame. The Access and Open Space Commission is forbidden by ordinance from even discussing re-establishing beach and mountain access.

And the Public Works Department is, as it has been for decades, as crooked as a hundred year old `Ohia tree with a cash-greased revolving door system that is all but detailed in printed in wall-hanging notices.

The people just approved a new county auditor and other reforms this past fall but the council has voted unanimously to meet in secret to discuss the implementation legislation for that, the general plan enforcement charter amendment and other reforms.

It’s not a stretch to think that those sessions are all about figuring out ways to negate the effects people expected when they ratified them.

We could go on and on but you get the idea.

If Bynum and Kawahara succeed in effectuating the three goals listed at kauaiinfo.org will they and everyone who is currently up in arms be happy and go back to sleep?

Sources close to the two have described to us the trepidation that Bynum and Kawahara had in “going public” with the situation. Would the public understand? Was it too “inside baseball” as they say? Would they simply be crushed?

Or would people rally to their side and appreciate the courage it took to go public with their frustrations and not just “go along to get along” and become one of the old boys and girls as the years go by.

Many other “reformers” have done as much over the years when Asing and his cronies corner them and subvert them as happened most recently with Mel Rapozo.

We obviously misunderestimated Bynum and are glad to have been wrong in our assessment of his courage and intellect. Though we weren’t “shocked-shocked to find gambling” we do hope that “this is the beginning of a beautiful friendship”.

Thursday, June 11, 2009


DARKNESS, DARKNESS: To no one’s surprise the matter of amending council rules to force Chair Kaipo Asing to allow all councilmembers to place matters on the agenda is not on this week’s council agenda, filed yesterday for a rare Tuesday meeting next week.

The complete “packet” containing all the paperwork for the agendaed communications, bills, claims, legal matters, public hearings, executive sessions and committee reports for the meeting are set to be posted by Councilperson Tim Bynum on Friday at his and Councilperson Lani Kawahara’s kauaiinfo.org web site where a new essay on their efforts appears on the main page today.

The piece details three goals:
Goal # 1 - Allow all Councilmembers to place items on the Council agenda for consideration.
Goal # 2 - Make key public documents readily available to the public on the County's web site.
Goal # 3 - Circulate Council Service documents equitably to all Councilmembers in a timely manner.

Bynum and Kawahara are set to appear on community radio KKCR-FM this afternoon at 4 p.m. to discuss their efforts.

One matter that may not be clear to many is the “Catch-22” nature of the dilemma that Bynum faced when he tried to place consideration of the rules on the agenda at the June 3 meeting if letters to the editor in today’s local newspaper are any indication.

As a letter by council watchdog Glenn Mickens points out there are only two ways that a matter can be placed on the council’s agenda. One is to get it “initialed” by the chair and have it duly posted six days before the meeting.

The other is to move to amend the agenda when it is up for approval at the meeting itself.

According to the state sunshine law, nothing maybe added to the posted agenda if it is “of reasonably major importance” and “action thereon by the board will affect a significant number of persons”.

Though it is not clear in the law who is to determine whether those conditions are met. The law is clear that nothing may be discussed unless it is on the agenda. So at the meeting when Chair Asing and County Attorney Al Castillo declared that those conditions were met, in doing so they claimed that it precluded even a discussion of the matter.

This would seem to be a flaw in the law but what is clear is that the Office of Information Practices (OIP) is the entity that is charged with making determinations with regard to the Sunshine law.

At Bynum’s behest they had reviewed the proposed rule change and ruled it was ok to add it on the day of the meeting but even that was ruled by Castillo to be a taboo subject for discussion.

The problem is that it raises the question of how any matter could be ever added to the agenda if even the discussion of whether to add the matter cannot take place, much less a council vote on the matter.

The catch-22 is simply that a matter cannot be placed on the posted agenda without the chair’s “initials” but the chair also apparently can block discussion of an addition on the day of the meeting by claiming the sunshine law forbids discussion of non-agendaed items.

It became even more obvious there are still many who don’t know or understand what happened at the meeting when a letter by Alfred Laureta appeared suggesting that there was a simple solution.

Lauretta wrote:

A councilperson who wants to bring a serious matter to the attention of the council for serious consideration and action has a vehicle available to him/her. This is called a “motion” which, if duly “seconded,” is discussed and voted upon. A motion lacking a second is denied discussion or dies for want of a majority vote.

Parliamentary rules are available also to prevent or shorten discussion which involve matters not of substance or material to the issue and which so often, on televised sessions of the council, becomes political in nature.

I suggest that the Guest Viewpoint authors sponsor motions on the council floor of the next council meeting that will appropriately correct the situation they complain about. Will rule changes involve constitutional, charter, legal considerations? Or simple majority vote?

If they succeed in their motions, it is true that Kaipo is a “dictator.” If not...?

As PNN readers know from our reports of the events of June 3, Bynum did indeed make that motion to place the matter on the agenda and it was seconded by Kawahara.

Since the attempt and motion was made and seconded only to be thwarted in an apparently unlawful manner (council rules require that Robert’s Rules are to be used unless otherwise stated), it would seem that Lauretta, a retired Kaua`i 5th Circuit Court judge and known ally of Asing’s, would agree with the “dictator” tag Asing has earned.

One more thought that came up today when we received an email from someone seeking information on how to go through the required filings to release the minutes of the executive session on June 3.

In Section 92-9(b) the Sunshine Law states that

minutes of executive meetings may be withheld so long as their publication would defeat the lawful purpose of the executive meeting, but no longer.

The lawful purpose was purportedly to determine whether the matter could be placed on that meeting’s agenda. Since that meeting is over the lawful purpose can no longer be defeated so the condition no longer exists and the minutes should be made public immediately.

Wednesday, June 10, 2009


DON’T LET GO, DON’T LET GO: Kaua`i has never been a hotbed of citizen participation when it comes to local government.

Even among the activist “usual suspects” most prefer to glom onto political issues that are state or even national in nature and if county government is involved they enter with a sense of helplessness as if approaching, if at all, an amorphous phagocyte ready to gobble them up dare they approach the monolithic blob.

Those of us who dare enter the labyrinth of the Minotaurs are steeled against its tentacles and though outrage is the coin of our realm it’s never a sure bet that our indignation will translate to community-wide ire.

How else do you explain why it took two years for Councilperson Tim Bynum to go public with the fact that councilmembers are not permitted to introduce legislation without the approval of the paternalistic hierarchy?

How else do you explain that it took another Councilperson Lani Kawahara to expose the lack of availability of public documents?

The trepidation Bynum and Kawahara felt over the months over openly challenging the status quo and leading up to last Wednesday’s challenge was only overcome after a last ditch effort at an end run around the beast that ended in humiliation and defeat.

For some reason this stab at the heart of our representational form of government has seemingly lit a spark if the daily letters to the editor of the local newspaper- which are now posted at the kauaiinfo.org web site set up by Bynum and Kawahara- are any indication.

Today someone went a step further by anonymously posting an on-line petition - with 42 signatories as of press time- that reads:

We, the residents of Kaua`i, respectfully request County Council agenda time for public discussion on open government, including, but not limited to, proposals related to the following items:

1. Councilmember's access to the agenda;

2. The placement of public documents, including meeting minutes, on the County's website;

3. Equitable and timely circulation of council service documents;

4. General access to information by the public and Councilmembers.

But don’t expect the agenda for next Wednesday’s full council meeting to reflect public anger when it’s posted tomorrow- or any time in the near future, especially as long as the protestations are made from afar.

While it’s gratifying to see the outpouring of support for the two councilmembers who dared to speak up for the community it’s only a first step in reclaiming our local government.

Future steps must include focusing on the machinations of the power elite, learning their stonewalling and obfuscating ways and, especially, showing up when they meet and holding their feet to the fire on every item.

Beyond the issues Bynum and Kawahara have raised are issues involving the webcast and cablecasts of council meetings which could be sent out live at no extra cost with the flip of a switch. Others include demanding full descriptions of agenda items and a full reading of them at the meetings. Eventually we must demand to have live telephone and email testimony taken on all items as many jurisdictions across the country allow.

Even if this agenda-access issue is resolved favorably if people go back to sleep when it’s over and allow not just the council but the administration to twist and warp laws and rules to their own ends, we’ll have no one to blame but ourselves when the good guys on the council just give up- as many have done in the past- and “join ‘em” when they figure out the people won’t stand by their sides when they “fight ‘em”.

Tuesday, June 9, 2009



(PNN) The state Office of Information Practices (OIP) has opened an investigation of the “unforeseen” executive session held at the June 3 meeting of the Kaua`i County Council.

As PNN reported last week, the un-agendaed secret meeting was held to discuss the attempt by Councilperson Tim Bynum to place an amendment to the council rules on the agenda for the purposes of clarifying the rule that states that Chair Kaipo Asing could not block councilmembers from introducing bills and resolutions, as Bynum alleges Asing has routinely done for at least two-and-a-half years.

Bynum has said and presented documentation showing how Asing has used an administrative rule provision requiring Asing “initial” agenda items to block introduction of measures.

A complaint filed by Kaua`i resident Brad Parsons on June 4 asks for an “investigation and enforcement actions by all means necessary” and cites both PNN’s report and one that appeared in the local paper.

Parsons asked that:

the OIP look into the appropriateness of the use of Executive Session during the events of Wed. June 3, 2009, by the Kaua`i County Council described in the above reports. I would also request that the OIP look at the all of the events and supporting documentation at Kauaiinfo.org to develop an effective case for broader action on these unacceptable matters inconsistent with "one man, one vote" standards of representative democracy.

In response OIP launched investigation S INVES-P 09-08 and on June 5 sent the following letter to Asing.

Dear Chair Asing,

The Office of Information Practices has received a complaint from Mr. Brad Parsons concerning the Kaua`i County Council (“the Council). Specifically Mr. Parsons asks whether the executive sessions held on June 3, 2009 violated part 1 of section 92 Hawai`i Revised Statutes (the Sunshine Law). A copy of Mr. Parson’s (sic) complaint is enclosed for your information.

We ask for your assistance in our review of this complaint. Please provide us with a detailed explanation. including any relevant legal citations setting forth the council’s position on this matter and any other information you deem relevant to this inquiry. We request that the council provide this response to the OIP no later than ten days from receipt of this letter.

Thank you for your attention to this matter. If you have any questions or would like to discuss this matter please do not hesitate to contact the undersigned attorney.

Very truly yours,
Jennifer Z. Brooks,
Staff Attorney.

To clarify our coverage of last Thursday, Bynum attempted to place the matter on the agenda by making a “motion to amend” when the matter of the agenda came up at the meeting. That motion was seconded by councilperson Lani Kawahara but the motion was apparently never voted upon by the council.

Instead County Clerk Peter Nakamura reminded Asing that the approval of the agenda was left pending due to a previous motion for approval and second.

The council’s vote to approve was apparently approval of the agenda, not the amendment even though according to rules of order the amendment should have taken precedence.

According to the Sunshine Law and previous OIP rulings “unanticipated” matters that come up during a council meeting may be heard in executive sessions but that is only for items that are actually on the agenda.

Each council agenda contains a caveat saying

(p)ursuant to Haw. Rev. Stat. (“H.R.S.”) §92-7(a), the Council may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance.

As to adding a matter to the agenda the Sunshine Law reads

No board shall change the agenda, once filed, by adding items thereto without a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons.

It should be noted that both conditions must be present for the matter to be rejected as an addition to the agenda. Since the current rules call for all councilmembers to be able to add items to the agenda it is unknown how clarifying that council rule- a basic tenet of American republican representational government- would be of “either major importance” or “affect a significant number of persons”.

At the meeting county Attorney Al Castillo briefly maintained that both conditions were met he did not say how, saying only that “council rules are important” and “affect everyone on the island”.

He then repeatedly cut off discussion by of the matter councilmembers Bynum and Kawahara in public session and demanded an executive session, even though his role is advisory.

Those wishing to view the meeting this weekend were greeted by a blank screens on Ch. 53 of Ho`ike Community Television which is paid by the county to tape and cablecast the meetings.

Although PNN called Saturday to alert them to the situation and talked to an employee who said he would take care of the matter, the screen remained blank all weekend during a time when most people are known to watch the meetings, especially those that have been controversial.

Asing and County Clerk Nakamura are in charge of administering the council’s portion of the Ho`ike contract and determine which council sessions will be presented on Public access TV.

In the past OIP has ordered that minutes of executive sessions that were illegally held must be made public immediately. In one such ruling the county sued the OIP delaying release for two years.

Presuming the OIP letter to Asing that was sent Friday arrived yesterday (6/9) a response is due June 19.