Sunday, April 15, 2012


DRIVING MR. CRAZY: It's been almost a dozen years since the first in a line of Kaua`i county attorneys began a new interpretation regarding just exactly whom they serve.

And it's been almost a dozen years that we've been waiting for a Kaua`i County Charter amendment that would put some kind of "public component" back into the job.

But even though a proposed charter amendment is in the pipeline it appears it's only going to make things worse.

Of course that is predictable considering the source.

Councilperson Mel Rapozo can always be counted upon to make muddy political waters even murkier. This time he's outdone himself with a pair of Resolutions, #'s 2012-22 and 2012-23 (neither of which is apparently available on-line), that, rather than put the Office of the County Attorney (CA) as far outside the reach of politics as is possible in county government, will insure that petty disagreements between future councils and administrations grow to Hatfield and McCoy proportions.

The first, Resolution 2012-22 is not actually directly related to the county attorney. But it is a result of the original event that begat the short-circuiting smoke currently emanating from the ears adjacent to Rapozo's decidedly less-than-legal mind.

The "reso" stems from Mel's head-scratching and seemingly meaningless obsession over last year's "late" salary commission (SC) proposal. It spawned a CA opinion that explained what "shall" meant in the context of the SC section of the charter, saying it was "administrative" rather than "directional" and citing some judicial rulings to that affect.

It basically said "give it a rest Mel."

But them's fightin' words to the Baboozster.

Rapozo decided to go to circuit court for a "ruling" but Judge Randall Valenciano essentially said the same thing as the CA had said. So now Mel has decided to take his obsession to the voters and, in Resolution 2012-22 he proposes to put the matter before the voters.

The rest of the council seems less than enthusiastic and at the second and potentially final reading last Wednesday they deferred the measure "Proposing A Charter Amendment Relating To Definitions Of 'Shall', 'Must', And 'May.'"

Oh joy... we can hardly wait to see how those terms will be defined in the "Mel Rapozo Legal Dictionary." We wouldn't want to depend on Black's when we can get it straight from the horse's read end.

But Mel wasn't done. After proposing to redefine legal terms with a Rapozian slant, he's decided that it was the dastardly-brilliant legal mind of Mayor Bernard Carvalho, Jr. that concocted well-known Philadelphia Lawyer, CA Al Castillo's opinion on the matter.

As a result of Mel's fixation he came up with "Resolution No. 2012-23 "Proposing A Charter Amendment Relating To The Establishment Of The Office Of The Council Attorney" which would apparently divide the CA's office in two giving both the administration and the council their own independent county attorneys.

The pertinent parts of the current charter under "Article VIII- County Attorney" say:

Section 8.02. Appointment and Removal. The county attorney shall be appointed and may be removed by the mayor, with the approval of the council....

Section 8.04. Powers, Duties and Functions. The county attorney shall be the chief legal adviser and legal representative of all agencies, including the council, and of all officers and employees in matters relating to their official powers and duties, and he shall represent the county in all legal proceedings. He shall perform all other services incident to his office as may be required by law.

But perhaps because he operates like them, Rapozo sees a political ghostie and ghoulie behind every door of the county's administrative offices and wants to enshrine his suspicions about Castillo's "opinions" by altering the county's overriding legal document, the charter, in his own image.

To understand how things got to this point- other than by simply saying "Mel got elected"- we need to go back to the history and evolution of the the functioning of the CA's office.

In 2001, then-newly-elected Mayor Bryan Baptiste hired current county "good-old-girl" Lani Nakazawa to her first-of-many positions with the county. She succeeded former Mayor Maryanne Kusaka's CA, Hartwell Blake, who rarely opined on anything other than how comfortable he was spending most of his years in the job sleeping under the air conditioner in the back of the council chambers.

Although the charter section on the CA is silent on anything relating to serving the public, before Nakazawa took office, CA's generally thought of the job as one that, while advising county administrative personnel as well as the council, publicly opined on questions of law regarding the county's charter, ordinances and administrative rules and routinely released those opinions to the public. .

He- yes of course they had all been "he's"- did it as part of what they saw as an implied "public component" of the CA's job.

When the 2006 Charter Review Commission (CRC) had its first confab one appointee was the former CA under then-Mayor JoAnn Yukimura, Michael Belles.

We attended that first meeting of the panel which was comprised of many surprisingly open-to-change appointees. In addition to testifying about our own experiences with shortcomings of the charter, we spoke to Belles during a break.

He asked what the one item was that we would most like see tackled. Our answer was "a total reorganization of all of Article VIII: County Attorney" especially parts regarding the "Appointment and Removal" and "Powers, Duties and Functions," excerpted above.

We explained the problems under Nakazawa which had included the fact that her strict reading of the section meant that she saw no public element to her job serving only county employees and officials- and never releasing any opinions unless her "clients" released them.

We even suggested that the CA become an elected position, thereby solving many of the problems created by conflicts between the mayor and council- or any two county entities for that matter.

Belles was surprised at the turn of events since his time as CA and said that during his tenure he would have "never imagined" that there was no "public component" to the job. As a matter of fact, he told us, he couldn't remember ever not releasing any of his or his offices opinion's of law.

A proposed amendment regarding the Office of the County Attorney's (OCA) never made it on any CRC list- it wasn't exactly a sexy issue and probably way too "inside baseball" for the public and maybe even the CRC. It wasn't even on commission members' radar screens.

They eventually put around a dozen-and-a-half amendments before the voters after narrowing it down from more than 30 original proposals so as to make citizen deliberation and decision-making manageable at election time.

But nothing on the OCA.

Ever since Nakazawa's reign, every county attorney has refused to release to the public opinions regarding interpretation of laws, especially those requested by the council. Add to that a council scheme to avoid releasing them until some convoluted, much debated, "process" for doing so was in place- something which the council under former-Chair Kaipo Asing quite mysteriously (yeah, right) could never figure out how to do- and of course no opinions were ever released.

That set up years of "Star Chamber" activities where not only couldn't they tell the public what the opinions were but the council would go into closed door "executive sessions (ES)" to even discuss what they were going to be discussing.

This year, under new Council Chair Jay Furfaro and after a years-on-end attempt by Councilmember Tim Bynum to just get the matter on the agenda under Asing, not only has a process been set up but opinions have even allegedly been "released."

But that's a big "allegedly."

Because damned if anyone has been able to get copies of the opinion or even find out if they have actually been released because the votes to release them have either been done in ES or, if they have actually been voted upon in open session, it's been done after the TV cameras have ceased to roll.

We still have not been able to get a copy of- or even figure out if it's available- the infamous opinion which, quite apparently, is actually at the heart of the Rapozo's discontent... the one that apparently says the mayor, not the police commission, has the authority to "discipline" or "suspend" the chief of police.

It's a perfect example of the continued dysfunction. The question of the release of that opinion was on the council's ES agenda for weeks on end only to stop appearing in March. Despite having asked numerous people who should be in the know, we still haven't been able to get a straight answer to the question of whether it's now a public document- much less get a copy of it if it is.

Oh sure- everyone including the Sultan of Brunei has referred to what the opinion supposedly says. But just try to get more than that out of anybody.

Today we're stuck with a definition of the appointment and duties of the CA that were written over 40 years ago at and for a time when the size of county government was probably less than a tenth of that of today. And the potential for political machination in- and so politicization of- the Office of the CA has grown exponentially along with that growth.

Throw one Mel Rapozo into the mix and something's gotta give.

Unfortunately the lack of political visionaries sitting around the council table- or at least ones willing to publicly spar with Mel over the matter- has enabled the original squeaky wheel to be poised to get all the grease.

And, as we intimated above, don't expect the CRC to tackle it. Chair Sherman Shiraishi has fully defeated the purpose of the CRC by coming before the council to ask them what they think each and every proposal the CRC is considering, effectively cutting the three ways of getting a charter amendment on the ballot- by citizen petition, by council resolution or by the CRC placing it there- down to two.

It looks like the council and mayor are going to "throw a rod" on the County's Truck-of-State long before anyone even bothers to look under the hood much less tackle a proper engine rebuild with what's best for the public in mind.

There's only one place that vehicle is being driven... and that's nuts.

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