Thursday, December 16, 2010


CONFIRMATION: One thing reporters for the local newspaper can do that we have trouble doing is compelling newsmakers to answer questions for fear that their spin will be left out of whatever is written on a given subject.

And today’s article on the illegal pay raise County Clerk Peter Nakamura received- as we’ve detailed the past two Mondays - confirms our speculation that indeed former Chair Kaipo Asing successfully circumvented the law in getting the raise approved.

After a lot of irrelevant “that’s my story and I’m sticking too it” hoo-ha from current Council Chair Jay Furfaro regarding his contention that the original vote on the salary commission’s pay raise resolution for all department heads should have sufficed for the fully separate process of the full council’s action as the appointing authority for the clerk- and a listing of the three required evaluation related documents from the appointing authority (the council in the case of the clerk) to the personnel director to effectuate any raise, the article reveals that:

On Dec. 14, 2009, two weeks after Nakamura’s pay increase took effect, Asing sent Fernandez a one-paragraph memo stating that Nakamura had met or exceeded job requirements for the position of county clerk.

“I understand that you will transmit the results of his evaluation to the Salary Commission,” Asing said in his memo to (Personnel Director Malcolm) Fernandez, almost four months after the commission submitted its resolution to the council and almost three months after the council unanimously received it.

The only person copied on the memo was Nakamura. The memo does not indicate that there was any attachment that could contain the evaluation required by the rules. County spokeswoman Beth Tokioka confirmed Wednesday that there was no evaluation attached to the memo.

“He sent that over there without any council approval, on his own, unilaterally,” (former Councilperson Lani) Kawahara said of the memo Asing sent to Fernandez, adding that the chair can not act alone as the appointing authority.

“It needs to be presented to the full body,” she said. “That memo was sent without the body’s authority.”

Even though that crux of the story was buried after a lot of irrelevant silliness about Bynum seconding the original salary commission resolution and other blather the story does reveal that, although at one point Asing handed out evaluation forms to council members there was never a meeting where the evaluation was approved meaning Asing did act on his own, using his position to give a special privilege to Nakamura in violation of the Kaua`i County Charter’s Code of Ethics (20.02E).

Just as interesting are some of the quotes regarding Asing’s action and the lack of documentation in Nakamura’s file:

Furfaro said that on Sept. 23, 2009, Asing circulated evaluation forms prepared by Personnel Director Malcolm Fernandez.

All seven council members serving on the legislative body at the time confirmed they completed the evaluation form.

Because it is a personnel matter, Furfaro said he could not disclose the contents of the evaluation.

“I am confident that Mr. Nakamura met the requirements for his raise,” he said in a statement.

Bynum, however, said there is no evaluation in Nakamura’s personnel files.

“How could the Salary Commission or the personnel director have an evaluation when it doesn’t exist in his file?” Bynum said.

Though some might question the propriety of revealing something in Nakamura’s personnel file it appears that those quoted are rather, revealing the lack of anything in the file.

The real violation of privacy might just be that of mayoral assistant Beth Tokioka who apparently provided whatever Asing sent to Fernandez- who also apparently violated the law by okaying the raise without the required evaluation forms from the council, rather substituting the one-paragraph memo from Asing.

That said the state’s open records laws (UIPA-HRS 92F- 12-13) say that the decision to reveal matters covered by privacy of personnel files has to balance the need for that privacy and the public interest in opening those records to scrutiny. In addition, if a crime has been committed, whistleblower provisions might protect anyone that reveals confidential information.

It appears that Furfaro’s “new style” of leadership is going to be an extension of the same old “stonewall, distract and deny” approach of his predecessor and that some of his supporters are willing to use rose-colored glasses to ignore his evasions and outright violations of law in the name of paternalism.

The issue is not Clerk Nakamura any more than the issue was former Chief of Police KC Lum, who was the victim of a deceitful determination of the similar ethics case that wrongfully chided then Police Commission Chair Michael Ching. Though Nakamura, was the recipient of the special favor on Asing’s part the blame is with Asing and Fernandez for failing to follow the law.

But if people are unwilling to publicly say “enough” due to past vendetta’s and political alliances we can expect more of the same from this “new era” of the Kaua`i County Council.


We’ll be taking a long weekend. Be back Monday.

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