Thursday, June 4, 2009



(PNN)- In a stunning and scathing rebuke to the substance and style of the leadership of Kaua`i County Council Chair Kaipo Asing, dissident Councilmembers Tim Bynum and Lani Kawahara have written duel essays detailing a two year quest for basic fairness and democratic principles and adherence to council rules and state law in their own shadow web site .

Bynum’s essay details how Asing has blocked measures Bynum has attempted to introduce from appearing on the agenda including “a bill related to release of County Attorney opinions; a bill proposing funding for a study to address erosion and safety issues at Po`ipu Beach; and rules related to the release of confidential documents”.

It details his two year quest to appeal to reason and enforce what he calls a “basic tenet of democracy”- that in our representational, republican form of government elected members of a legislative body have the right to place items before the body for consideration.

Although council rules state that any member may introduce measures for consideration they also call for the chair to “initial” all items for the agenda and Asing has simply used that administrative measure to refuse to initial any item he doesn’t want introduced.

It all spilled over onto the council floor yesterday when Bynum attempted to place a rule clarification on the agenda to say the chair could not use the initialing power to block introduction of legislation.

The resolution however was never actually mentioned during the meeting with Asing successfully blocking pubic discussion with the aid of new County Attorney Al Castillo

The Sunshine Law allows items to be added to the agenda under certain circumstances but, despite an Office of Information Practices OIP memo stating the specific addition complied with the advance notification provisions in the law, Asing successfully blocked the discussion with the support of the other four members of the council.

Kawahara’s letter details many of the public information and sunshine law issues she raised in an exclusive interview with PNN last month when she ran into roadblocks from Asing and County Clerk Peter Nakamura in getting council minutes, public documents and agenda-related communications posted on-line.

In it she says that “(t)he current practices at Council Services that control access to information are indefensible and an embarrassment. They stand in stark contrast to your legal right to expect your government to inform you, educate you and urge you to become an active participant”.

In addition both Bynum and Kawahara say that they were denied documents that other councilmembers were given and that councilmembers could not get “electronic versions” of documents that were created in that form causing them and the pubic at large to physically travel to Lihu`e to pick up paper versions of them.

Documents posted at the site also detail how the administration, under former Mayor the late Bryan Baptiste and his IT specialist Eric Knutzen had made a concerted effort to put the information and documents from all administrative boards and commissions on-line over the past two and a half years and offered to help Nakamura and council services to do the same.

Their help was rejected by Asing and Nakamura.

Also on the web site is an example from yesterday’s meeting of the council agenda information packet that the council- and the public if they request it and go down and pick it up- are given for each meeting.

In his essay entitled “Sunshine on Kaua`i?” Bynum first describes his “love for democracy” and how people should “honor each other’s ideas in a spirit of compromise and work together with mutual respect on a level playing field, good decisions are reached and implemented”

Then he writes:

(S)adly I have found that the legislative process as currently practiced on Kauai falls far short of fundamental democratic standards. Access to basic legislative information is being restricted, open dialog and debate is significantly stifled and frequently misinterpreted and often ignored rules of conduct are rendered ineffective.

When I started on the Council in December 2006 I was determined to work hard, go slow, and learn from the senior members on the Council. I felt a huge responsibility having one of seven votes on issues that are important to our community. At first I was in no hurry to put my own proposals forward as there were important issues already on the plate, and I had plenty to learn. My time would come. The one issue I felt I could move on was improving public access to what is clearly public information. To my dismay, however, access to information is not only difficult for the general public. My access as a Council Member is strictly controlled. In a number of ways that will be outlined by Council Member Kawahara, many documents intended for all Council Members are screened, delayed, or even withheld by the County Clerk. I soon discovered that some Council Members had access to information that others did not. I found this situation intolerable and inexcusable. In March 2007 I asked for it to be rectified immediately, a request that remains unfulfilled. The County Clerk—who by adopted Council rules is required to “ forward at once to the proper parties all communications and other matters either directly of through committee as the case maybe “—refused to rectify the situation, telling me he required direction from the Council Chair, who, by Council rules, supervises the Clerk. The Council Chair refused to address my concerns in any manner. To this day, the Council Chair refuses to sit down with the County Clerk and me to discuss the inequities.

He goes on to describe his two year quest to persistently but quietly change the autocratic system to a democratic one, not just by detailing Asing and Nakamura’s rebukes but by providing links to copies of the documents showing his efforts.

In her essay entitled “Just Do It: Government Transparency at Kauai County Council” Kawahara expresses her outrage over her experiences since she joined the council last November, especially at the lack of availability of documents and the way the public and she herself are denied access to what should be public documents

She writes:

Since my election to the Kauai County Council in December, I have been working to advance the council’s use of the internet to support efficient operations, provide more timely responses to constituents, and to widely disseminate our council and committee meeting minutes to educate/inform more citizens about issues that affect their daily lives.

Unfortunately, you will be disappointed to find out that efforts to provide council and committee meeting minutes in electronic format for the public on our county council website or for emailing, are opposed by Council Chair Asing and his appointed County Clerk Peter Nakamura.

Just as troubling is the lack of information coming into the Council Members’ offices from outside. Communications addressed to all Councilmembers (including emails, US mail, and Interoffice mail) are consistently and systematically screened by Mr. Nakamura. Mail for “all council members” does not necessarily get to all council members, and if it does, it may be delayed by days or weeks. Mail is doled out according to some criteria that are unknown to me and much of it is not delivered at all.

Imagine coming into a council meeting or committee meeting to find documents date- stamped “received” days earlier that are related to the agenda / or decision-making to be done that day. Imagine, even more interestingly, that such information may be provided to some but not all council members. Email intended for all Councilmembers is not sent electronically and when eventually circulated does not contain the return email address making it impossible to even acknowledge the communication or respond in any way.

In his time on the Council, council member Bynum has diligently attempted to address these issues by seeking an open dialog, clarifying council rules and leading legislative efforts to increase the availability of information but has been denied access to the Council agenda (an issue that he will outline separately).

She goes on to describe what she hopes to do by providing the kauaiinfo web site

Councilmember Bynum and I have set up an alternate website,, which documents our attempts to work with Chair Asing and Mr. Nakamura to advance the County Council into 21st century government transparency. Visit where we will also provide the public documents which we are unable to post on the county council website due to the environment cultivated by Chair Asing and Mr. Nakamura. We will get the public information to you. We’re doing it because they won’t.

Right now, our dedicated staff and council members spend copious amounts of time photocopying, collating and generally using reams upon reams of paper getting ready for each and every council meeting and attending to every request for information that comes across the desk. And constituents drive from all over the island to retrieve those copies. Then they drive back home. The State Senate started going paperless in 2007. Most of their work is now online. The Mayor’s administration and all Kauai County boards and commissions provide meeting minutes online. It is past time the County Council provide that same standard of government transparency.

The current practices at Council Services that control access to information are indefensible and an embarrassment. They stand in stark contrast to your legal right to expect your government to inform you, educate you and urge you to become an active participant.

Kawahara told PNN that the dustup at yesterday’s meeting happened because introducing an addition to the agenda at the meeting itself was the only avenue that they had left to address the situation internally before going public with the web site. She said she and Bynum felt compelled to try to accomplish their goals through the one internal avenue they had left after having been denied agenda access by Asing.

The council actually voted to place the item on the agenda at the beginning of the meeting but it was immediately moved to the end of the agenda by Asing who was caught by surprise by the move.

But when it finally came up Asing objected to adding it to the agenda claiming the item could not be added to the agenda even though it had already been so placed.

Section 92-7(d) of the state Sunshine law says that all items must be placed on the council agenda six days in advance if they are “of reasonably major importance and action thereon by the board will affect a significant number of persons.”. If they are not they may be added to the agenda by a 2/3 vote of the council

According to a May 15 OIP memo obtained by Bynum in anticipation of the introduction of the rule change

The proposed change to Council Rule 10(c) set forth in the attached Resolution does not appear to be of reasonably major importance or to affect a significant number of people. Thus, the Resolution appears suitable to be added to the agenda by 2/3 vote, and the Council would be acting in good faith in so adding it.

But even though an OIP opinion trumps any ruling on the Sunshine Law that a county may want to make, Castillo insisted that the discussion would indeed effect everyone on Kaua`i and is of “reasonably major importance”.

Then bafflingly he insisted that the discussion be held but held in secret “executive” session and reasoned that it was “unanticipated”

Asing and Castillo would not even allow Bynum to discuss the matter and, with Nakamura pacing, arms-crossed around the table and alternately glaring at Bynum and nodding with Asing’s comments, Castillo claimed that the question of placing the item on the agenda should be discussed in executive session without prior discussion.

Although the council is allowed to “consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities” it must do so in a regularly agendaed item.

There is though an exception which Castillo cited. The law, as printed on all agendas, is that “(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” (emphasis added).

Castillo did not explain how the council could discuss whether to place an item on the agenda in executive session since that would presume it was on the agenda in order to be heard in an “unanticipated” executive session .

When the council returned from secret apparently illegal confab Castillo claimed that any further discussion would violate the Sunshine Law and the item should not have been placed on the agenda although no vote was ever taken to remove it.

When Bynum and Kawahara attempted to bring up the OIP opinion they were rebuked by Castillo.

Bynum did get to say that it was “ironic” that the sunshine law was being used to “censor discussion” and Kawahara added that anyone watching would have no idea what the discussion was even all about. She did though manage to say it was about council rules and read from her good governance manual about how the council rules were a living document and should always be subject to update.

When Bynum said that “there was nothing said in the executive session that couldn’t have been said in public” Asing, forehead veins bulging, screamed “no- you cannot do that” admonishing Bynum that he was revealing executive matters even though characterizations of the general nature of the executive session are done routinely by councilmembers, even by Asing himself.

According to the Sunshine Law minutes of an executive session are to be released as soon as the reason for secrecy no longer exists although on Kaua`i none ever have been. If Bynum was saying that that was immediately the case that would seemingly be legitimate subject for discussion as long as no specifics were mentioned.

Finally it was Castillo himself who mentioned that “I know you have an OIP opinion” but his advice was that the measure was of major importance affecting all of Kaua`i causing Bynum to ask “so it’s fair to say you disagree with the OIP opinion?”.

At that point all hell broke loose, with Castillo screaming similarly vein-bulgingly at Bynum and Asing quickly bringing the meeting back to order and then quickly adjourning the session.

Another account of the meeting by reporter Michael Levine appears in today’s local paper.

In it Levine reported that after adjournment

(t)he chair was asked if there were plans to include Bynum’s resolution on the agenda for the next meeting.

“No,” he said

When asked if there was any reason why it would not be, as there is now enough time to bring the council into compliance with the Sunshine Law by posting the agenda item in advance of the June 16 meeting, Asing said, “Nothing especially.”

“I am just following the rules of the council,” he said.

It should be noted that in the confusion the measure, which had been legally placed on the agenda by council vote at the beginning of the session was never either removed from the agenda by vote or “received for the record” so legally it remains on the agenda and where by rule it should be placed on the next full council agenda for action.


Doug said...

Great work, Andy. This is an insane abuse of power. Do you know why the other members don't also support the rule change?

Mauibrad said...

Excellent report, Andy. I believe this is outrageous and is the single biggest issue on the island right now.

What is Asing afraid of? The Council Members are all equal. They should each be able to get their issues on the agenda and put them to a vote. Does Mr. Asing presume that he knows everything and that there is no benefit for discussion, information presentation, and debate? Anything reasonable should be let on the agenda. Let the merits of the ideas be voted on up or down. What is Mr. Asing afraid of?

Ace Harbinger said...

Let's hope that in the interest of fairness, someone from TGI (or even PNN) will offer Mssrs. Asing, Nakamura, Castillo, et al. the opportunity to respond to Bynum and Kawahara - for the record.

- A.H.

Observer said...

A petition on these matters just began today. This is a formal petition. With enough response we can force these items on the Council Agenda by petition. See: