Friday, July 29, 2011


ELECTROCUTION ELOCUTION: Perhaps the biggest chuckle we got during the whole KIUC FERC vote debacle was the electric co-op's promise that, like any five year old who had lied and misbehaved, they would never do it again.

So the new era of openness and transparency that was promised after the vote failed, is upon us, right?

OK you can stop laughing now. Because as many have heard, after the second petition- one to try to force a re-vote due to the massive abuse of the voting process on KIUC's part- allegedly failed to garner enough signatures, they wouldn't even allow the petitioners to go over the petition and the membership list to ascertain the co-op's claim that many of the signatures were either duplicates or those of non-members.

But for a real eyeful of what the future of "member relations" is going to look like nothing can beat the "Fear and Loathing" style first hand account of Tuesday's KIUC Board meeting by Tek Nickerson- a regular guy who was outraged by many of the things he saw and got involved with the second petition.

So we hand over the rest of today's column to Tek's "report" on what went down (all SIC).



KIUC held their regularly scheduled Board meeting yesterday, Tuesday, 7.26.11. In response to the Members’ Second Petition and strong request for a verifiable count of signatures, KIUC simply issued a statement, defining a valid signature vs an invalid signature, plus a restatement of the count. They completely sidestepped the question about verification and that they might have a vested interest in protecting their own privacy how the determination was made on each signature.

I was the only one from the public signed in to talk, which was first on the agenda. Chairman Phil Tacbian said only members could talk and they could only talk in items on the agenda for three minutes.

I was called “to the stand.” I introduced myself as the point person on the second petition (to recall the election). The chairman said the petition was not on the agenda, and therefore COULD NOT BE DISCUSSED, so I could not talk. I thanked him and sat down, setting my precedence for respect.

(It was later explained to me that items are put on the agenda five days prior to the meeting. The agenda is posted on the KIUC web site. Since Tuesday was the sixth day after they received the petition, they CHOSE to avoid the issue by ignoring it on the agenda.)

I sat and listened as each person at the table gave their report. Consulting Counsel Proudfoot reported that he advised the Board how to proceed in response to the Second Petition.


“A point of order, Mr. Chairman! Mr Proudfoot just brought the subject of the Second Petition to the table! I may now speak on the subject!”

“No, you may not.”

This is the second time the Chair CHOSE to be dismissive.

Steve Raposo, Vice Chair and chairman of the Members Relations Committee, did not mention the Second Petition in his report. This was the third time that a KIUC elected representative chose to ignore their commitment to being open and reaching out to the public.

During a break, Consulting Counsel Proudfoot approached Director Jan TenBruggencarte and me. He said he was intending to tell Jan something to tell me. Finding me pleasant and inviting his advice, he said that I could ask the Chair to wave the rule and allow me to speak. This is encouraging, especially coming from him. We showed each other we were reasonable men and could work with each other.

Raposo’s Members Relations report centered on defining exactly what their course of action would be for outreach with the public. After ten minutes of discussion, it was still a quandary for them what it would look like.

Knowing that Raposo probably categorized me as an unreasonable obstructionist, I approached him with a suggestion. He was a bit taken aback, but he listened. I reminded him that history has taught us the approach that works under similar circumstances: the Dolley Madison solution of giving weekly parties for opposing political sides in the neutral territory of her home. I.e. Take the budget for talk-down “dog and pony shows” and apply it to island-wide regional parties, where the public is attracted first by the food and then by the opportunity to ask questions of their elected directors and opposing views one-on-one. Raposo listened. Time will tell if he is receptive to Dolley Madison’s ingeniously iconic solution, used in the White House to this day.

Raposo is one of the Gang of Five, who controls the direction that the board votes. (About the First Petition, he reportedly remarked that some people are only obstructionists. This is the third opportunity they passed up.)

At each opportunity ANY one of the directors could have interjected an objection…and did not.


During a break, Jan B. told me that until the elections give them FIVE votes aligned with our thinking, the board will continue to vote as they have. I characterize this as an archaic corporate/plantation-style mentality. The progeny of field hands have come of age to think on their own without the aid of the dumbing down from a political machine.

The three up for re-election are Ben Sullivan, Stu Burley and Steve Raposo. Jan explained that if we vote out Stu and Steve with strong candidates, we’ll have purged the Gang of Five with our own Five Alive.

This is the light at the end of the tunnel.

Meanwhile, sitting in the back of the room for a while was Free Flow Power representatives, Jason Hines and his assistant, Dawn. The chairman invited them to report an update on their progress. THIS WAS NOT ON THE AGENDA.

Then we all took a break before they went onto Executive session. I took the opportunity to complain to Ben Sullivan that FFP should not have been given the floor, since they weren’t on the Agenda. Ben said he let it go, because they wouldn’t be taking a vote. That’s contrary to their own rules! Thus, there is NO WAY in which the situation can be “corrected” if the Board can continue to “pick and choose” what it can do accordingly.

Will KIUC consider the “possibility” of a forum approach in getting to the root of the matter discussed in a neutral venue with an opportunity for both sides of the issue to be in the planning process of determining what should be discussed and how both sides can be fairly presented?

If you are a member of KIUC and wish to express your position on any of these matters, you are encouraged to contact the KIUC Board of Directors at

Thursday, July 28, 2011


HOME HOME ON THE RANGE: It didn't take long for the other shoe to drop after the eyebrow-raising buyout of the Goliath Honolulu Advertiser by the David Star Bulletin.

But the reasoning for the new pay wall for on-line readers of the new Star-Advertiser (S-A) had us in stitches as Publisher Dennis Frances claimed they were just following the lead of the New York Times, as if the two had anything in common journaistically other than the fact that both call themselves newspapers.

It kind of reminded us of when our own local Kaua`i newspaper informed readers of their then-owners by printing a blurb on the masthead saying "A Pulitzer Newspaper"- as if they were actually somehow associated with the prize instead of the chain of small fluff and pap publications.

But if a story in today's S-A is any indication news seekers may not be missing much if they eschew the "newspaper of record"- because if you're the only newspaper in town you are, by definition, the newspaper of record- in favor of other news sources.

While the S-A was busy telling it's readers about how the APEC will conclude at Ihilani resort in Ko Olina and wondering how the sharing of the wealth with out of town facilities might effect traffic, those who turned to KITV's web site got the real story.

In an un-bylined report, they repeated their exclusive from yesterday's 6 p.m. telecast saying that

APEC's two most important events with 21 world leaders attending will not be held at the Hawaii Convention Center in Waikiki.KITV4 first reported in May that law enforcement officials raised security concerns about the glass throughout the convention center. If a bomb was detonated even fairly far away from the building, shards of the glass ceiling and glass walls could injure people inside and outside the building, sources said. As a result, security experts recommended against having APEC leaders' meetings at the convention center involving President Barack Obama and heads of state from APEC's 21 countries, sources said.

The worst part is that the exorcizing of the real news wasn't because the KITV report was too late in the day to make the morning paper but rather because the S-A either intentionally ignored or didn't bother to seek out the KITV's earlier May and January reports on security- which, given the history of these kinds of gatherings should be issue number one.

That or, more likely, they simply regurgitated a pre-packaged press release without, as they are wont to do, any attribution- a lapse of ethics that neither the Times or even the local Kaua`i paper would allow.

If the S-A insists on being a paper where never is heard a discouraging word there are few, if any, that are going to pay the $120 a year for very long especially if all they get is a watered down product that reports only what their advertisers and the Chamber of Commerce want readers to know.

The worst part is that the reasonable rate of $1.95 a month is available to mainland subscribers.

Some may say that $10 a month is not a lot of money to pay for news. But the problem is that those who read news on-line don't read just one source. And if this trend continues it will be ten dollars and ten dollars and ten dollars and... well you get the point.

There has to be a way for newspapers to reap revenues for the on-line versions of their newspapers. But having all the individual publications each charge their own fee for their limited coverage isn't it.

We've long advocated for an "all you can eat" pricing for a massive consortium of newspapers including those with a national readership such as the NY Times, Washington Post and Wall Street Journal as well as the vast number of city and community newspapers... all for one reasonable fee, perhaps to be distributed via a "per-click" system.

Systems like ASCAP and BMI have been working for music publishing and radio play for decades and nascent music subscription services are cropping up everywhere and will soon be ubiquitous, as the large record companies as well as the independents come around to a business model of necessity.

But apparently the "news industry" feels like it has to go through all the wrong moves that the music business did rather than learning from them and creating a business model with will serve everyone going into the future.

All that will happen as medium sized newspapers like the Star-Advertiser become providers and aggregators is that the number of independent news sources will be diminished. And of course each one thinks that they will be the sole survivor of a war like that. And in the S-A's case that would be to ignore their own history wherein the size of the publication had nothing whatsoever to do with who "won" the contraction of Honolulu newspapers.

We fully expect the quality of the Star-Advertiser to diminish further with this pay wall as they become even more alienated from their readers. And if today's coverage is any example that inexorable march has already begun.

Tuesday, July 26, 2011


INFORMATION TAR-TAR: Ever since the Office of Information Practices (OIP) lost the infamous ES-177 case- wherein the County of Kaua`i went to court to avoid releasing the minutes of an executive session despite apparent legislative intent to give OIP ultimate authority and ban such court action- we've kind of felt like the guy in the movies screaming in futility while spinning through the vacuum of space.

But recent attention has been paid by Civil Beat Editor John Temple prompting the OIP to defend itself- in a letter from the current director entitled "The Raw Truth"- for refusing to, as they see it, waste their time trying to claim their "teeth" that the court took away.

We're not going to try to rehash the long and winding road of ES-177 and CofK vs OIP again here but today Temple does point out a new wrinkle that puts OIP's finger-pointing at the legislature in a new light saying that under:

sections 92F-15.5 and 92F-28 of Hawaii Revised Statutes that the OIP has authority to hear and make binding decisions in appeals if it exercises its rule-making authority.

Apparently OIP has never bothered to promulgate Chapter 91 Administrative Rules to set up an appeals process for agencies who disagree with their Uniform Information Practices Act (UIPA) rulings to follow- one of Kaua`i County's major gripes in their suit having been the denial of "due process."

In addition today, another open records and meetings junkie, blogger/journalist Ian Lind takes a shot at OIP's defense by noting that in CofK vs OIP the court actually distinguished it from another case where OIP's authority was upheld, noting that "board meeting minutes are specifically covered by HRS Chapter 92, whereas development proposals, such as the ones at issue" in the other case, are not.

Of course the only reason the ES-177 case is finally getting statewide attention is that Governor Neil Abercrombie refused to adhere to an OIP decision on releasing the names of candidates for the Hawaii Supreme Court and then refused to reappoint the OIP director who made the decision.

But one thing that again occurs to us today, has bothered us since the first day the CofK decided to file suit.

Why exactly did the county bother to sue and not just ignore the OIP?

By filing suit they risked losing but by ignoring the OIP- as many are doing today, they apparently would have risked nothing. That's because of something that neither Temple nor Lind nor OIP itself has mentioned- something that really exposed the weak link in all of this.

According to the Sunshine Law under §92-12 Enforcement,

(a) The attorney general and the prosecuting attorney shall enforce this part.

The fact is that, because the law also says that anyone who doesn't agree with an OIP directive can sue in circuit court, attorneys general have consistently said that one must go to court first and so, they have refused to enforce OIP's opinions.

Thus the root of the claim that OIP is a "toothless tiger" is that the AG refuses to enforce its decisions.

That is why Abercrombie can get away with thumbing his nose at the OIP- not because the legislature hasn't been clear enough, as Temple points out today in citing the 1989 conference committee report for the sunshine law, as the OIP did in it's arguments in CofK vs. OIP.

Seems that "The Raw Truth" is that OIP does have options- options that you can bet the always-reticent-to-act legislature will be sure to iterate next year when they consider the OIP's request for tooth sharpening.

Monday, July 25, 2011


SEE HOW THEY RUN: Try to pull a con-job on a New Yorker and it's likely his- or her- response will be a sneering "what am I- a freakin' idiot?".

But when one examines the ingestion and regurgitation of mindless claptrap that passes for the cranial contents of some of these vapid tea-party-addled denizens of the fly-over states, you just know that an honest response to that same query, would be "indubitably."

But mainlanders have no monopoly on helpfully doling out "two tens for a five" upon request if a story in this morning's Honolulu newspaper is any indication.

The headline "State may sell buildings, then pay developers rent" doesn't even tell the whole story.

Apparently the Brainiacs at the capitol have passed legislation allowing the fiscally-challenged gang at state Department of Accounting and General Services (DAGS) to "sell buildings under its ownership to developers with an agreement by which the developer pays for upgrades and the state pays to rent the improved facilities."

Of course as long as you don't think too much- or at all- about it it sounds like a great deal. But, as the article notes in one of those passive-aggressive passages reporters have designed to give credence to even the most harebrained of ideas:

Concerns have been raised that the law... could end up making it more expensive in the long range to own and maintain buildings, given that developers will need to earn a return on their investment through charging the state rent.

Gee, ya think?

Where exactly do we find one of these saps who think that instead of fixing his broken-down car it would be cheaper to sell it to you and then buy it back for the price you paid plus the amount of the repair bill and then throw in 10% for YOUR trouble?

Well apparently you find at least 49 of these Lady Madonnas in the state house and 25 of them in the senate- and of course one more on the fifth floor- who do indeed think that money is heaven sent.

So who's the real idiot? Well, in New York they say to look all around the room and if you can't find the mark it's because you don't have a mirror handy.

Friday, July 22, 2011


DEMON SEED: Apparently it's the crime that will not speak its name.

When the first word in the headline- "Decapitation"- caught our eye Wednesday we almost kept scanning the Honolulu paper for less bloody fare- until, that is, we read "of papaya trees unnerves Hawaii isle farmers."

According to the article, someone took a machete to 10 acres on the Big Island. The same thing occurred at this time last summer to 17 acres there and another farm three months before that.

But the article ended without any speculation by anyone as to a motive for the "crime," saying

(Police) said while farmers talk and speculate, they have no clues about who is committing the vandalism or why it is happening.

"There's no rhyme or reason for these thoughtless acts."

The TV news stories weren't much help either but the next day the Honolulu newspaper made clear what their theory was in an editorial that squarely pointed a finger, saying:

In all incidents, the papaya trees were genetically modified. William Julian, brother of the Kapoho farmer, speculated that the destruction was the work of people who oppose genetically modified crops or the use of chemicals to control weeds and pests...

Julian's speculation is not far-fetched. His brother, Laureto Julian, who has grown papayas since 1967, said he had harvested his first patch of genetically engineered, or GE, "Rainbow" and "Sun Up" papayas just three days before what he called "a gang of up to five people" whacked away at his trees.

The editorial predictably went on to condemn the "organized vandalism" saying:

Police need to step up their investigation of this criminality and, along with the public, recognize that this goes beyond mere property damage and is becoming a form of agricultural terrorism.

But even though it's hard to root for seeing anyone's rice bowl get broken it's apparent that the paper's editorial board has it's economic blinders pointed in the wrong direction because from our vantage point the "agricultural terrorists" are not the decapitators but the "decapitees".

Though the creators of "genetically modified organisms" (GMO)- or Frankenfoods as many depict them- claim the scientific high ground, real scientists, especially those without any economic interest, recognize the violation of the first rule of science- the precautionary principle. It says that anything being released into the wild- especially for human consumption- should be considered unsafe until proven safe rather than the other way around.

It's certainly the way the Food and Drug Administration treats new drugs. But for some reason- most likely the massive amounts of cash poured into lobbying efforts and politicians' campaign coffers- testing of GMO foods have been done subject to the use of this kind of Carrollian logic.

But safety issues aside- and make no mistake many are emerging such as colony collapse in bees which has increasingly been thought to be associated with the widespread use of GMO cereal seeds- the violation of the right of people to choose what they put in their pieholes has many hopping mad... mad enough to take matters into their own hands.

The not just lack of but actual suppression of information makes any attempt to simply refuse to buy or eat GMO products impossible. Not only are GMO foods not required to have labels informing consumers but it is actually illegal to say a product contains no GMOs. Not only that but federal law actually forbids states and local jurisdictions from enacting such informational legislation on their own.

Those who try to grow organic or even just non-GMO papayas- the latter of which, by the way, are the only ones accepted in the biggest foreign papaya market, Japan- are fed up having their crops infected by the pollen that drifts on the wind from near-by GMO fields making their harvests useless for them and their customers.

In some cases GMO seed distributors on the mainland such as Monsanto have gone so far as to actually sue those whose crops were infected by their seeds. And to add insult to injury they forbid anyone to grow their GMO brands from the seeds of their own harvests, including those whose "legacy crops" have been infected.

So far the courts- in the US at least- have bizarrely upheld Monsanto's and other GMO seed creators' and distributors' own "agricultural terrorism," although some small victories have led to ambiguity as to what will happen next in the appellate courts.

Is it really terrorism to engage in protecting your non-GMO papayas by taking matters into your own hands and physically preventing the flowering and pollen drift of the GMO brands?

Who are the real criminals- the ones who are protecting their own health, safety and livelihood where the courts have failed to protect them or those who could care less about health and safety of others as long as they get paid?

It may be "illegal" to destroy someone else's property but it certainly is at worst a form of civil disobedience, at best self-defense, to eradicate the source of the scourge of GMO crops.

Tuesday, July 19, 2011


DIVIDING BY ZERO: Is it possible that the pablum that passes for the product of the press on Kaua`i is actually getting less informative? It's kind of like asking whether the sound of zero hands clapping is quieter than the sound of one.

We expected to get shafted with KIUC-spun articles in the FERC vote debacle, given that the electric co-op remains one of the local newspaper's biggest advertisers... that and the fact that it was made abundantly clear to the current business editor- who covered the story- that the last business editor was fired for not toeing the Chamber of Commerce line.

Coverage of the planning commission's wholesale permitting of the new transient vacation rentals on ag land shouldn't have to fall to Joan Conrow whose KauaiEclectic blog told the sad tale Monday of how "county planner Mike Laureta prepared Bruce Fehring’s TVR application" as well as other eyebrow raising horror stories from last Tuesday's meeting.

But in reading her exclusive report we could not help but ask how the planning commission is able to get away with violating the now-not-so-new, citizen-petitioned charter amendment that was supposed to give "teeth" to the growth numbers contained in the general plan.

The amendment essentially put a hold on the processing of any new tourist accommodations by the planning commission and gave that job to the county council unless and until the council enacts an ordinance delineating the nuts and bolts of how the limitations are to work and then and only then return the power to the planning commission.

At the last full council meeting just such a proposed ordinance finally returned from the scrutiny of the planning department and commission- albeit in the form of a totally new bill- which passed first reading and is headed for a public hearing on August 3 at 1:30 p.m.

Bill 2140- which, along with all the other documents accompanying council agendas, is still not on-line even though a year has gone by since they were supposed to be made available there- is apparently still a long way from being a legitimate reflection of the intent of the amendment, with some of the "creative interpretations" of the starting point that were contained in the previous version of the bill, still being a point of contention.

The point is that the pointed disregard of the charter shown in the planning commission's approval of these TVRs is just another example of the predictable results of the lack of effective media scrutiny of county government on Kaua`i.

Rote regurgitation of press releases and unquestioned repetition of officials' political talking points does not a watchdog make.

Our local newspaper is bought and paid for, there is no local TV and there are enough shenanigans in Honolulu to keep both the Honolulu newspaper and the on-line "Civil Beat" busy over there, eight days a week, thank you very much.

That has left Kaua`i citizen's with no recourse but to file expensive lawsuits in order to put a stop to these violations of the law, especially those dealing with land use where the big money interests have sewed up just about every attorney in town.

That makes the lack of funding secondary to the availability of a lawyer to take the case- and don't think they don't know and count on that.

Because when it comes enumerating potentially effective opposition to rampant lawlessness, it doesn't take very long to count to zero.

Monday, July 18, 2011


NOTHING TO SEE HERE: One thing that rampant county cronyism creates is a bunch of well-connected board and commission members whose qualifications are often as dubious as their conscientiousness.

When Charter Commission Chair Sherman Shiraishi showed up at last Wednesday's Council Committee of the Whole meeting to request the council's input on a "proposal to establish a permanent Charter Review Commission," it was the council that seemed befuddled as to why the commission is sitting for 10 years in the first place.

Seems that when the 2007-8 commission was empaneled for the then-usual "once every 10 years" assemblage there were so many proposals for changes to the charter that they had to limit the number that made it to the ballot to 15 from as many as 50 at one point, just so as not to overwhelm voters.

And that was without even touching the whole "county manager" mess or the apparent need for a slew of housekeeping changes.

As the session began a letter from Mayor Bernard Carvalho to the commission and council was produced raising the question as to why, if the commission was good to go until 2018, it was necessary to make it permanent now.

Well that was enough for Shiraishi to take his cue and all of a sudden, after months of charter commission meetings and weeks of council deferrals until Shiraishi could come to address the council, he instantly decided he agreed with the mayor after all.

Nope- no cronyism here... just good old independent thought.

But since Shiraishi and Board and Commissions Director John Isobe were there anyway the councilmembers decided to air some gripes about the charter and past amendments- whether they had any idea what they were talking about or not.

First up was Councilperson JoAnn Yukimura who has a special black place in her heart for the ease with which citizen's can petition for a charter amendment- a 5% of registered voters threshold. That came about after she initiated and led the court fight- where the county sued the county- against the "Proposition 13" style property tax amendment that passed overwhelmingly in the early 2000's, only to be overturned by the Hawai`i Supreme Court in a confused ruling that no one really understood.

She and others maintain that a county's charter is "like the federal or state constitutions" in that it should be hard to change since it is a guiding document. But the difference is that while the federal and state constitutions grant rights to citizens and delineate powers, local charters merely take the powers left over and delineate the structure of the legislative and executive branches and list the various departments, board and commissions and the like, describing their functions- nuts and bolts measures that occasionally need revision due to changes in the needs of the community.

But that's a philosophical matter that can be argued either way. What wasn't was Yukimura's bemoaning of the fact that the people of Kaua`i "still need education" after they rejected changes to the infamous anti-cronyism section 20.02(D) of the charter which prohibits members of boards and commissions from "(a)ppear(ing) in behalf of private interests before any county board, commission or agency."

It's a simple measure that stops perceptions of conflicts of interest before they start so that the "one hand washes the other" style of governance can be nipped in the bud.

It seems the charter commission has recently lost three of its members because they routinely represented clients before the council and planning commission and even though there are only a handful of such good old boys and girls on the island they have populated boards and commissions in droves. The county tried to ignore the provision for years even appointing conflicted individuals to the Ethics Board to rule for allowing the practice.

But when they finally tried to change the charter the voters rejected it and the Ethics Board was left with no other choice to finally issue an opinion enforcing the charter.

Of course there were nods of agreement around the council table as well as from Shiraishi and Isobe that indeed it is the voters who "don't get it."

Despite the need for things like reform of the county attorney section (we're the only island without a "corporation counsel") and a the transformation of the Department of Personnel Services into a modern Department Human Resources (another example of changing times leading to the need for changes to the charter) as well as a slew of needed housekeeping changes (like removing all the references to "he") councilmembers insist on the commission asking voters the same questions over and over (like four year council terms) even when they've been answered again and again... resoundingly.

Once again the trophy for the most dunderheaded performance of the day had to go to- who else- Chair Jay Furfaro.

Recently the council discovered that the Cost Control Commission (CCC) was taking the powers the charter gave them seriously, such as requiring the administration to submit bills to the council to carry out their recommendations within 30 days of their request. But despite the charter requirement, the administration had simply ignored three such requests in 2009.

That apparently got Furfaro looking through CCC documents where he noticed that they were discussing possible changes to the real property tax laws- something that Furfaro rarely fails to tell the public, whether it's on the agenda or not, that he is working on reforming.

Like a lion building up from a growl to a roar, Furfaro essentially asked what the heck the CCC was doing butting into the council's kuleana finally reading Section 3.10 from the charter:

Annual Budget and Capital Program. The council shall enact an annual budget ordinance, which shall include both the operational and capital expenditures for the fiscal year and the method of financing same. The council shall provide sufficient revenues to assure a balanced budget (emphasis his).

The council is in charge of property taxes, he bellowed, not the cost control commission.

Apparently Furfaro failed to read the charter's Section 28, regarding the CCC. Isobe, left with no choice but to defend the CCC- and so himself as the person in charge- then read 28.04 aloud:

The commission shall review personnel costs, real property taxes (emphasis added), travel budgets, contract procedures; review with the aim of eliminating programs and services available or more efficiently supplied by other governments or organizations; eliminate or consolidate overlapping or duplicate programs and services; scrutinize for reduction any county operation.

Furfaro hemmed and hawed and with a Ralph Kramden "hahmana-hamamana" quickly changed the subject but we were laughing too hard to hear what he said next.

What wasn't surprising at all was how quickly Shiraishi changed from the need for a perpetual charter commission to saying that there was barely any work to do as soon as the mayor told him what to think- and how fast the council agreed.

Because after all what's the good of being able to nominate and confirm a select set of yes men and women to board and commissions if they start to tell you no?

Friday, July 15, 2011


STRONG AS THE EARTH FROM WHICH HE'S BORN: The labyrinth was quiet- too quiet. But that's the way the minotaur likes it.

So he was surely overjoyed at the extra layer of opaqueness the Kaua`i County Council added via their final rules changes passed at the last full council meeting (7/6).

What began with a proverbial bang during the knock down drag out battles of the summer of '10, ended with the predictable whimper when, to no one's surprise, the council made it both harder for television viewers follow what they're doing and harder still for those in attendance to speak truth to power in front of the TV viewing public.

But it wasn't even the fact that they approved the use of a "consent calendar" and continued to forbid a suggested short period before each meeting for the public to speak on non-agendaed items, it was the excuses for doing so that were the most irksome part of the discussion before the unanimous vote to approve the new rules.

It's was bad enough before if you were the average citizen who decided to try to watch a meeting or two and figure out what the heck your government is up to. Unless an item needed "approval" they weren't even read aloud but rather all lumped together and referred to by number before being "received for the record" in one fell swoop.

But now, with the institution of the consent calendar, those routine measures "for approval" will also remain unread by the clerk.

That means that, while before no one at home- especially those who might not have access to a computer and therefore the agenda- would know for instance that, according to the agenda of the 7/6 meeting, two "(s)tatement(s) of the Condition of the County Treasury," one "as of February 17, 2011" the other "as of May 16, 2011," were even available for the public to peruse, now they won't even hear about the approval, for instance, of a half a dozen grants for things like the police or prosecutor.

Do we not need to know that the prosecutor just received a "Career Criminal Prosecution Program Grant in the amount of $61,938.00" or a "Crime Victim Assistance Grant in the amount of $191,417.00 for the Kaua'i Victim Of Crime Act (VOCA) Expansion Program?"

Are those important? Who knows? But no one will know if they don't know about them. You can be sure though that if a "victim of crime" knows there is a "Crime Victim Assistance" program they might be more likely to take advantage of it.

The council's excuse for the new process? It's "a waste of time" to let the public know what they are doing.

They tried to excuse the new practice by saying that if a councilmember wants to discuss an item they can "pull" it from the consent agenda and if a member of the public who is in attendance at the meeting wants to speak on the matter they can waive frantically as the consent agenda is being approved and try to get the chair's attention.

Well, they didn't exactly say it like that but that's only because they don't seem to appreciate the little bubble in which they appear to operate to any non-councilmember.

Despite the fact they the are always hyper-aware of the cameras and play to them like a ham in a high school play, councilmembers acted like it never occurred to them that home viewers might actually be watching in order to find out what was going on and repeatedly tried to reassure the public they they weren't trying to pull a fast one or cover up anything.

It's as if they are so enraptured with their own little ego-plays that they think that the public is watching because they enjoy the performance itself rather than watching for the content.

It doesn’t seem to occur to them that the same citizens that they complain never get involved in their government are actually being discouraged from doing so because it's so incredibly frustrating to see a dozen items dispatched without even a "reading" of what's actually being voted upon.

Even worse sometimes when the item is actually read it's totally incomprehensible and receives no explanation whatsoever by anyone... but of course we don't expect miracles.

It's as if those who don't actually show up to the meetings don't matter... maybe because they can't say anything to the cameras that might embarrass councilmembers.

Speaking of which, for those who do show up, the councilmembers had their excuses for why they won't set aside 15 minutes at the beginning of the meeting for people to speak for three minutes on any county government issue they choose. They do that on other islands and, as the OIP has ruled, it's permissible as long as the council refrains from addressing any non-agendaed item.

That last part of course is the key because one thing that the council has learned to do really well over the last few years is to control testimony so that the council gets the final word on any subject.

Of course the council's "final word" may be half-truths or even outright lies but the viewing audience is left with the impression that the final word is the correct word.

But that was essentially what some councilmembers stated was the problem, saying "what if what something someone says isn't true and we can't speak to correct it?"

"Why we can't have anyone speaking truth to power here- this is a public council meeting"... well they might as well have said that.

Nowadays a testifier can't even get through any semi-controversial words without Council Chair Jay Furfaro interrupting them- often with barely controlled anger virtually dripping from his mouth- "correcting" what is often their opinion.

The intimidation factor alone has been enough to discourage all but the most determined citizens from even showing up to a meeting- unless of course they are there to heap praise on Furfaro and his sycophants who, under his tutelage, have begun to engage in similar deterrence of public expression by grilling the testifier until they start losing the argument, at which point Furfaro interrupts saying "this is for questions, not a dialogue."

So sleep well my sweet bull-man knowing that all is well back at the bone mill and rest assured that the dark will remain as dark as dark can be... even darker if the council has its druthers.

Wednesday, July 13, 2011


LOOKIN' LIKE A FOOL WITH YOUR BRAINS ON THE GROUND: Mom always said that the only reason to keep banging your head against the wall is that it feels so good when you stop.

But sometimes it feels a little better when someone comes along and and joins in by banging theirs.

We've concussed more times than we care to remember over the "paper tiger" status of the state's Office of Information Practices (OIP) that resulted from the infamous "ES-177" case in which the County of Kaua`i sued the OIP rather than give up the minutes to an "executive session (ES)" in 2005.

But today we gained a banging-mate in the person of John Temple of the on-line news source Civil Beat who, in bemoaning the fact that new OIP chief Cheryl Kakazu Park called "futile," any effort to force either Governor Neil Abercrombie or the Honolulu Police Department to release records that, despite OIP orders to "give 'em up," remain ferreted away in some filing cabinet.

Temple actually figured out why, despite a clear law backed up by legislative intent documents, OIP lost it's sole authority to determine when documents must be made public by the state and its political subdivisions, actually citing the ES-177 case, albeit through a link.

In County of Kaua`i vs Office of Information Practices the Intermediate Court of Appeals ruled that the county could in fact go to circuit court to overturn an OIP directive.

According to the decision:

OIP maintained that HRS § 92F-15.5(b) (1993) did not provide County "the right to appeal or otherwise contest an OIP determination that a record must be disclosed under the [Uniform Information Practices Act (UIPA)]." OIP cited to Conference Committee Report No. 17 on Senate Bill No. 1799, in 1989 Senate Journal, at 763-64, which stated that "a government agency dissatisfied with an administrative ruling by the OIP does not have the right to bring an action in circuit court to contest the OIP ruling." OIP also cited to HRS § 632-1, which provided, inter alia, that "[w]here . . . a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed."

But despite the fact that the original request was for the minutes- clearly a document- the court ruled that the real intent somehow dealt with HRS 92, the open meetings or Sunshine law, over which OIP does not have sole discretion.

We're certainly gratified to have someone with a bigger megaphone take up the cause and couldn't agree more with Temple who concluded today's first of two columns by saying that the language in HRS 92F-15.5:

clearly gives the OIP the power to order government agencies to make records available. Yet, that power isn't being wielded today, at least in part because of a 2009 Hawaii Intermediate Court of Appeals decision. That case involved not just the UIPA but also the open meetings law, known as the Sunshine law, which doesn't give the OIP the same strong powers as the open records law.

The result of the appeals court decision appears to be confusion — and a weakened OIP.

Cheryl Kakazu Park, OIP's director, defends her office, but says she's going to seek clarification of its powers from the Legislature next year. She says she sees agencies voluntarily comply with OIP advice.

"For the most part, they have wanted to comply," she told me.


But it was Park who wrote that it would be "futile" for her to rule on an appeal of the governor's rejection of requests for the names of judicial nominees.

Futile. Even though the language of the statute clearly says what should happen when OIP rules on appeal that a document should be public: "The agency shall make the record available."

Something is terribly wrong with this picture.

It's a two edged sword. Even though the open meetings and records laws in Hawai`i are broken, anyone who has seen the legislature in action know that they are just as libel to make things worse as they are to remedy the situation once they get a bill on the table.

But perhaps the sound of other headbangers will force the legislature to give the OIP the authority that they were supposedly given when the law was passed.

Tuesday, July 12, 2011


BLOW ME: There's a big difference between an angry young man and an angry old man.

While the former may be credited with social movements that change the world, the latter is usually associated with sending back soup in a deli.

We never had a big problem with what many have contended is our own need for anger management, especially given the need for ginning up a good infuriated rant when the powerful take a dump on the little guy. But after some recent personal turmoil we've found that we just can't seem to find the requisite ire anymore, cold soup notwithstanding.

Until, that is, we started to pay attention to what's being called "The Big Wind" project.

For the uninformed the billion-dollar-idea is to build a slew of windmills in order to fulfill the wasteful gluttonous Honolulu population's bloated energy needs, not on O`ahu but on Lanai and Molokai, and connected by an underwater cable.

And, in a SuperFerry redux, it seems that the state and the electric company HECO are going to ram it down the throats of the people who live there whether they like it or not.

And like it they don't.

On the PBS program Island Insights last week local Molokai activist Walter Ritte explained that on a recent trip to Honolulu he had to go shi-shi and walked up to the bathroom where on his approach the door opened up automatically. The the toilet flushed itself when he was done. Next the faucet rained down water without him touching it and when he finished washing his hands the self-activating paper towel dispenser automatic rolled out a sheet to dry his hands.

And, to paraphrase Walter, these people want to screw up half of Molokai rather than give up their robotic bathrooms.

But the thing that spurs anger among Lanai and Molokai denizens is the same sense of entitlement by the Honolulu settlers and their local enablers who have taken the attitude that they are somehow owed the project.

And, the people who live there be damned, they're going to get it.

Just like with the SuperFerry, O`ahu denizens just don't get it. They just can't figure out why we wouldn't welcome them to come in an take whatever we've got- which ain't much- since "we're all in the same canoe," forgetting that we've built our canoe to accommodate about a tenth as many people.

And if you want to see an example of exactly the attitude that irked Kaua`i and Maui then, and Molokai and Lanai today, you need look no further than a commentary in today's Honolulu Star-Advertiser by columnist and business lawyer Jay Fidell.

He starts off demeaning the residents for even questioning the project calling objections "a litany of charges" and saying "(w)e all know that these endless demands for information and meetings aren't for a good reason, but only to perpetuate the potshots."

But it only gets worse.

Fidell then launches into a rant of entitlement claiming that Honolulu's need is justification for turning Molokai into their personal power plant.

He starts off by saying:

Claims of ownership in the wind don't work in the 21st century, especially in a state that must shift to renewables, and quickly, to survive. The wind, like the air, is a public resource. No group, even an indigenous one, can "own" and deny it to others. These claims are not and cannot be in the public interest; they distract and obstruct implementation of the state's clean-energy mandate.

And how exactly are you planning on harvesting that wind? From up in the sky? No, on the land- the land that serves first and foremost those who live there not people who think their wants justify the theft, as is the American custom.

Then comes the big one - the extortionate threat we heard from many in Honolulu during the SuperFerry debacle.

The rhetoric suggested that one island can tell another island to take a hike, but that's not sustainable when one island is dependent on taxes paid by the other. Aren't we all one state; don't these resources belong to all of us? Two islands, not even political subdivisions, openly turning their backs on state policy can only lead to constitutional crisis. Didn't we work this out in 1865?

Grrrrrrrr. Why not cite 1893 Jay?

Then comes the last refuge of a scoundrel in Hawai`i- the use of the tourism bureau sense of "aloha."

Ritte has his own windmill and wants to return to subsistence living, which is his right. But he wants the many to support the few, and in return the few to withhold from the many. That ignores local values of kindness and sharing.

Kindness and sharing? The real "local value" of aloha is respect. You don't come in with a sense of entitlement and take advantage of the good nature of the people to steal them blind- you ask and abide by the answer. It's reminiscent of the old story about how when westerners got here they had the bible and the people had the land. And in a few short years they had the land and all the people had was the bible.

It's been said that the billion dollars could put photovoltaic system on every roof in Honolulu generating as much or more juice then the Big Wind project. But then of course HECO couldn't really execute their business model of "we sell you electricity."

Insanely enough, at one point Fidell argues against this suggestion by claiming that photovoltaic is "intermittent" in that it only generates electricity during the day. Of course he fails to mention that the same is true of wind which doesn't give juice when the wind stops blowing.

Finally he says "the best thing (Ritte) can do for the people of Molokai is to negotiate a good benefits package. This would be a matter of fairness."

Fairness? What, your gonna give them $24 in beads and trinkets? Or another Mahele where this time you give them the land and they give you a community center and a highway right through the middle of the pristine area currently used by the majority of Molokai citizens for subsistence, according to Ritte.

It should be noted that the offer of free electricity for the people of Molokai and Lanai has never been on the table.

The sense that people in Honolulu are "owed" this project may, by itself, be the biggest impediment to the Big Wind. But they didn't see the handwriting on the side of the SuperFerry and, it seems, they won't be noticing which way the wind is blowing now.

Monday, July 11, 2011


CRETINS FORM THE BLACK LAGOON: It doesn't take an engineer to know that the county's effort to dredge and restore the Morgan's Pond's at Lydgate has resulted in a mammoth mess of suspended silt permeating the once pristine pools.

Perhaps the fact that there wasn't one there at last Wednesday's meeting is why Kaua`i County Council members and administration officials took it upon themselves to decide to do nothing about it and kick the can down the road for at least four months.

But that's what happens when you appoint your otherwise-unqualified, former campaign manager to head up the Parks and Recreation Department- as Mayor Bernard Carvalho did with Lenny Rapozo- and then fail to consult the engineers in the Department of Public Works (DPW) on a project like this.

It's no wonder County Engineer Larry Dill wasn't the the one sent in response to the council's "request... for the Administration to provide the Council with a status report on the Lydgate Pond Restoration Project" and Rapozo showed up- because Dill, who is new to the county, might have told the truth- that the ponds could be screwed up for years due to county ineptitude and negligence in allowing the project to proceed the way it did.

Rapozo tried to paint a picture of a normal result of the project, telling the council that it will only take six months to get rid of the "turbidity"- a fancy word for the mud and muck suspended in the pool- if we "let mother nature take it's course" and do nothing.

But between Rapozo's "don't worry be happy" message he also described what actually happened.

Seems that the idea was to dredge the "sand" that had accumulated over the last almost 50 years and use it to replenish the beach. But instead what happened instead, and "surprised" the county according to Rapozo, was that the "sand" only went about three feet deep and below that was pure silt and muck.

Not only that but the sand itself was so full of trash and mixed with the silt that the state Department of Health won't let them use it on the beach so it sits in a pile now- replete with "coke cans" and "cigarette butts" according to testimony- with no one knowing quite what to do with the mess.

And, according to many who have actually been in the pond, anyone attempting to stand up in it will sink at a foot or more into the bottom "like quicksand," as it was described.

So in other words despite a decade-and-a-half of planning and obtaining the permits no one bothered to take a core sample to see what was there and just assumed it would all be pristine sand, not the garbage-strewn silt-sand mix that was actually present.

The real problem in fixing it is that when they dug up the giant boulders that had fallen into the pool from the barrier "wall" that created the ponds, and piled them back on it, it created a situation where all that 50 years of silt that had come from the adjacent Wailua River mouth and flowed into the ponds is now "sealed in."

And of course it will keep out any sand needed to cover the quicksand.

The Lydgate ponds are, of course, one of the "jewels" of the island- a must see attraction for tourists and a mainstay for local parents and their keiki. It also is- or was- one of the most recommended snorkeling locales in Kapa`a/Wailua where, according to many, the Kapa`a area snorkel rental outlets are still sending their customers.

As a matter of fact the whole mess has resulted in a new activity for many local people- standing around and watching what happens when the tourists- especially those with rented snorkels and fins- come out covered in muck after 30 second dip in the muddy mess.

Apparently the project was done without involvement of the DPW building and engineering divisions and may be one of the reasons why Carvalho has recently ordered all capital improvement projects be run through DPW.

But that won't change the past or clean up the mess at Lydgate, the perusal of which was deferred without action until November by the council.

Meanwhile, for those that claim there's nothing to do on Kaua`i, there's a new show down at Lydgate... watching the pissed-off, muck-caked tourists struggle to free themselves from the quicksand.

Wednesday, July 6, 2011


STOP MAKING SENSE: With Friday's high noon deadline for the ballots to be received in Kaua`i Island Utilities Co-op (KIUC) "Hydro Vote"- as they insist on calling it, with the words Federal Energy Regulatory Commission (FERC) being entirely absent on the the ballot- looming, the lack of full disclosure, straight talk and transparency in the process are what stand out to those voters who have done their own "due diligence."

In examining the ballot one question that hasn't received much attention is, what exactly are co-op members being asked to vote upon?

In asking "As a KIUC member do you approve of the Board action set out above?" the "above" part says, in main:

This ballot allows KIUC members to approve or reject a KIUC Board action that authorized contracting services for hydroelectric development and acquiring those hydroelectric assets...

A valid petition... requests a member vote on the KIUC Board’s action taken at its Regular Board Meeting on March 29, 2011, approving a Development Services Agreement and an LLC Assignment Agreement that had been negotiated by KIUC Staff with Free Flow Power Corporation.(emphasis added)

So in essence members are being asked whether they approve of the "Development Services Agreement and an LLC Assignment Agreement."

We aren't just being asked to approve or disapprove of a board decision. It's not the decision that's central to the vote. Instead members are being asked to approve or disapprove the contracts the board approved.

The problem is that, as we all know, those agreements- referred to as a Memoranda of Agreement or MOAs- are not being made available to the voters making the decision on whether they are in the best interest of members effectively impossible.

How exactly are members to decide if they approve of the "contracts" if they have no idea what exactly they say?

Well, that "Star Chamber" aspect of this whole affair will certainly be central to any legal action by "no" vote proponents should the co-op members approve of the contracts- that and KIUC's costly, "vote yes," disinformation campaign and suppressing the claims of the petitioners

That alone should be enough for a judge to grant an injunction to enjoin a suit to invalidate the vote, giving the shareholders- the co-op members- derivative injunctive relief, according to a legal expert we spoke to who asked not to be identified.

In other words, we were told, "the guy in the robe would, most likely, tell Proudfoot 'no way'" can you ask voters to approve or disapprove of a document they're not allowed to see.

But let's examine the central claims that we do know concerning the whole deal.

According to documents uncovered by reporter Joan Conrow and information that has been dragged out of KIUC CEO David Bissell and their attorney David Proudfoot, the MOAs came about after FFP filed for six- and already received at least three- FERC preliminary permits that allow the holder to exclusively investigate the possibility of constructing hydroelectric systems for the named areas, potentially leading to FERC licensing of the projects.

But those permits are non-transferable so FFP set up shell corporation to file for the permits and after they were granted they "sold" the shell corporations to KIUC under those MOAs.

There's a reason why we put sold in quotes. Because, according to the information repeated over and over by Bissell and Proudfoot, should the members vote no, the MOAs say that the permits would have to be turned over to FFP- AND we would have to pay them $325,000 to take them back to boot.

Of course we have no way to know how much of this is the truth because no one can see the MOAs. But one thing rises to the top.

If the preliminary permits were part of the deal to "purchase" the shell corporations- which KIUC apparently now "owns"- how can the "non-transferable" permits be transferred back to FFP? And why would we have to pay them almost a third of a million dollars for taking them off our hands?

Especially if the MOA has been invalidated by the vote- something that all involved knew was a possibility when they were signed.

Another note before we take a long weekend and await the vote...

People might be interested to know that the person who approached KIUC for FFP to set up the "offer they couldn't refuse" is said to be investment banker Bill Collett, the same person who set up the whole purchase of Kaua`i Electric from Citizen's Electric for an exorbitant amount of money that was still way more than the book value even after it was decreased by $50 million by the PUC.

We've heard from many of the opponents of the FERC process that they are waiting to see the outcome before filing suit, saying that they would be satisfied if the contract is rejected.

But frankly as someone who smells corruption behind the whole deal, at this point we care less about the outcome of the vote than the contents of the two contracts that are likely so explosive that KIUC would go to these extraordinary measures suppress contents.

Regardless of what happens at 12:00 noon on Friday we hope members will still be demanding to see those MOAs at 12:01 pm. Because if we don't you can be assured that we'll be right back here again after the board and executive staff of KIUC gets the message that they can get away with withholding vital information from its members.

Tuesday, July 5, 2011


WHERE'S THE PROFESSOR WHEN WE NEED HIM?: When an illusionist plies his trade his best friend is the old diversion or the misdirection, where the eyes of onlookers are forced to observe a moving object while the prestidigitator "disappears" the object of obfuscation.

Of course it's a lot easier if you only have to deceive a single fool to make the magic happen.

But when that fool is designated to tell the whole town what an amazing trick he just saw it's easier yet to assure that everyone is bamboozled.

So when our "Little Buddy" down at the local newspaper, Leo Azambuja, saw how, as he reported, "(t)hree days waiting for an answer became five months and $28,000 snowballed into $338,500 for an upcoming stretch of the county’s multi-use path in Kapa`a" he made sure he dutifully reported only what "The Skipper" showed him- a bungling administration boondoggle.

It wouldn't be hard to believe what Chair Jay Furfaro wanted our Gilligan to report- that the council, through no fault of their own, was lied to when the usual dullards at the Department of Public Works and their equally clueless allies at the Department of Parks and Recreation misinformed them about the cost of a short stretch of the already ridiculously expensive "bike... er, multi-use path."

But even in an editorial- apparently run by Gilligan who, as first mate, had the run of the ship while Editor Nathan Eagle was away for a week- excoriating the administration for the cost overrun, there was no indication that the truth of the matter was that the council, as they have done over and over on the project, actually approved the "blank check" before they knew the amount or full extent of the work being proposed.

And that little scene has been repeated over and over with the bike path, as well as other projects.

Here's the usual script. The administration comes to the council with a "communication for approval" asking to be given the green light to proceed on, let's say, a portion of the path. The council asks them to come up and give specifics as to, not just cost but sometimes, the actual route the path is supposed to take as well as a dozen other specifics.

The administration representative- sometimes the county engineer, sometimes the head of the building division, sometimes the administrative assistant- sits there and when he's asked for answers, he doesn't really have them but says someone else will come next week to answer them.

And the council, even though they've been stood up and lied to ad nausium in the past, goes ahead and, instead of deferring the matter until they are satisfied, approves the administration's request to proceed.

Sometimes of course they remember to send a new communication "asking the administration to be present to answer questions" as to whatever information they didn't get. But usually after getting the runaround for weeks on end they give up and the matter slips off into council oblivion.

But then, sometimes a year later if we're lucky (more usually it's never), there is such a glaring problem that someone on the council gets pissed off enough to call the administration back in to explain why, as for example in this case, $28K had become $338.5K.

The council of course is then "outraged" to find that they were flim-flammed. But the most important fact- that the project could not have proceeded without their original approval without sufficient information- is buried in their indignation.

That may just be why Furfaro was elected chair- he is the master of the misdirected outrage, puffing out his chest and holding everyone and their uncle (actually when it comes to public works and parks and rec, in many cases they ARE each others' uncles) responsible... except of course the councilmembers who were so diligent in uncovering the latest pig in a poke they had approved.

So join us here next week my friend, you're sure to get a smile, from seven elected stumblebums here on Council's Isle.