Tuesday, July 27, 2010


BOOM: What, other than explosive, can you call Joan Conrow’s report today on our very own Kaua`i Beer Summit, with four- count ‘em four- deputy county attorneys, cold pack in hand, showing up at Councilperson Dickie Chang’s home to put the thumb screws on him to vote for the vacation rentals bill tomorrow.

According to Conrow

Upon hearing reports that Deputy County Attorney Mike Dahelig had called Councilman Dickie Chang at home one evening and asked if he wanted to have a beer, then showed up with a cold pack, followed thereafter by the separate arrivals of Deputy County Attorney Ian Jung and County Attorney Al Castillo and a discussion of the pending transient vacation rental bill, in which Dickie reportedly was told it was his duty to pass the measure because otherwise the county would be sued, I called Mike late yesterday afternoon and asked if it was typical for county attorneys to meet with Councilmembers at their homes and have conversations about bills before the Council.

But Joan didn’t leave it there and if that wasn’t disturbing- and potentially illegal and certainly of questionable ethics- enough she called Dahelig and he had some outrageous and memorable things to say about the clandestine confab outside of the council chambers where the council’s consultations with attorneys are supposed to take place.

“You are not the first person to make that inquiry of our office today,” Mike said. “What we did was not illegal. We’re the attorneys for all the Council members. And it’s like any other attorney and client. If they wish to talk with us, we are not going to dictate the venue they choose; we are not going to discern where the locale is. Our office does not engage in direct lobbying, but if there are legal concerns, we will discuss those matters with them.”

“But I heard that you called Dickie,” I said. “He didn’t call you.”

“We may even ask to sit down with Council members if we feel there is some confusion about the issue raised about them on the [Council] floor,” Mike said. “We’re going to advise and counsel, but never take any type of action to tell them how to vote. If we feel that there is some issues being raised that are not on point, we will raise issues with them. We do not go and say actually you have to vote a certain way.

Well that certainly is a strange interpretation of their job, especially considering that it’s been a rule of the council that the county attorney’s office does not represent individual councilpersons but the council as a whole- a rule used in order to squelch individual councilmembers' ability to divulge county attorney opinions without the approval of the whole body among other things.

We’ve talked to councilmembers who were denied access to county attorney advice and told to bring it up in executive session where the whole council could share in the answer.

But Conrow’s report wasn’t without a little hilarity. She asked Dahelig

“What about the beer?” I asked. “Is that just a guy thing, or what’s up with that?”

“Beer is not a substance that we’re not allowed to engage in,” Mike said. “In terms of what beverages we’re drinking, that’s not our job to be in a position to describe the circumstances of the meeting. As far as alcohol consumption, I can’t find anywhere that says it’s illegal.”

Somehow the tortured language of the reply reminds us of the famous Churchill quote saying “that is something up with which I shall not put”.

But back to the illegality. Joan said:

“Did you talk to any other Councilmembers?” I asked

"I’m not going to answer that, and I’m not going to discuss the nature of the conversation,” he said. “That’s privileged information [under attorney-client privilege].”

Here we go again. If indeed they had done the same thing with only one other councilperson it might not violate the sunshine law. But if a total of three were similarly consulted outside the confines of a duly agendaed or otherwise legally called executive session it would apparently violate the serial consultations provisions which forbid three or more councilmembers from deliberating toward a decision and especially discussing how they would vote and forbids using others to accomplish the same banned communications.

But the use of “attorney client privilege” when it comes to the open meetings provisions of the sunshine law was the subject of the infamous ES 177 case which we’re certainly not going to rehash here except to say the county won and now the Office Of Information Practices (OIP) is reluctant to challenge the council when attorney client privilege is concerned.

It may all hit the fan- although we wouldn’t be surprised to see it be either swept under the rug on Wednesday or if it does come up taken into executive session- at tomorrow’s meeting because, in the comments section of Joan’s article, former Councilperson and current council candidate Mel Rapozo wrote:

I have submitted a written request, through Council Chair Asing, that the Council defer this matter until these allegations can be investigated by an outside agency. This is a serious matter that should not be taken lightly. The County Attorney has a duty to represent all departments of the County, and should not be "taking sides" of either the Executive or Legislative branches of government.

There are certainly other issues here especially since the council as a whole is the client, not Chang. But as we’ve said the reign of current county Attorney Al Castillo continues to be punctuated with questionable ethics and a need to influence legislation in a manner that is way outside the bounds of the “powers, duties, privileges and liabilities” of the office of the county attorney.

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