Tuesday, July 31, 2012


I LOVE YOU- NOW CHANGE: To say Kapa`a in the 70's was a sleepy little town is to do a injustice to repose.

Town proper consisted of the Olympic Cafe, Ding's Bar and Cash and Mrs. Cash Kubayama's liquor store. The rest of the storefronts were pretty much closed up although a hippie head shop opened up where the old bank had been, followed by a couple of other somnambulent establishments like the fertilizer store that sold imported bat guano to the pot growers.

But down past Tony Rapozo's anything-you-wanted-upstairs and the strip of sidewalked businesses like Pono Market, on the mauka side of the "highway"- across from where Pono Kai was being built by coked-out haole construction workers- was what everyone called the "fake gas station."

There were two pumps where the Kodani Building now stands but it was apparent that no one wanted to sell anyone gas, although if you wanted a safety check Gary would come out and hand you the stickers in exchange for the buck-and-a-half or whatever they were charging in those days... kind of like it was a public service.

Well it it didn't take long for a niele newcomer to find out that there was a 24/7/365 gambling operation in the back. And with a little more inquiry it wasn't hard to discover that it was under the protection of "Kauai's Finest" at KPD... especially what with the ever-present patrol car parked out front.

So what brought this up? Well, these youthful memories come courtesy of a little "aside" in today's CivilBeat.com article about how "(a) top union official says he was fired after he refused to kill other union members who were critical of his boss"... in posts on Facebook.

Under the headline "Lawsuit: Hawaii IBEW Chief Wanted Hitman To Take Out His Enemies" the report says that:

The lawsuit was filed last week by Thomas Decano Jr., who says he was wrongfully terminated by Brian Ahakuelo, IBEW’s new business manager and financial secretary.

So what does this have to do with the fake gas station? What prodded our fond memory of the oldest established permanent non-floating crap game in Kapa`a?

Well about halfway down the page was this little piece of info:

Decano was also one of three Honolulu police officers who was arrested in 1975 for robbing a gambling operation on Kauai.

It was the talk of the town- and the island at the time. But the oddest part of all of it was that people of Kaua`i were outraged. No they weren't "shocked shocked" to find gambling at Rick's but rather at the thought that three Honolulu cops could and would fly over here and rob OUR card games at gun point.

And, more importantly, the word was that KPD just stood there and didn't do a thing.
We had our own little "Kaua`i mafia" in those days. It was a small but effective operation and as long as you didn't threaten them, they didn't threaten you. Actually they were pretty nice guys once you got to know them as we did, playing Mountain Ball at the old Kapa`a ball park a few nights a week.

But the idea that the Honolulu cops could come over here and rob our guys was an affront to local Kaua`i people's sense of local pride. There was still a sense that even though it was organized crime, it was OUR organized crime.

If it would have been someone on Kaua`i who tried to rob the game, people would have just thought he was crazy but it wouldn't have been an affront to our sensibilities.

In a way, if you can understand this attitude you can understand the Superferry protests.

There was a lot scuttlebutt about how some of our guys went over there and robbed some of their guys and even a rumor or two about some guys on both sides "disappearing"... after all, there's a big ocean out there between O`ahu and Kaua`i.

But that was just about the end for the fake gas station. It remained open for a while but the games were no longer full time, mostly because it was said that gamblers tended to shy away, afraid of another "scoop" by the big guys.

In a way, it seemed symbolic of the end of the age of isolation and indeed innocence on Kaua`i. Uncle Billy Fernandez made his fortune in the 70's building boom, and the Coconut Marketplace, Foodland and all the little strip malls between the post office and where Safeway was eventually built, were installed. There was actually somewhere closer than Kinipopo to buy beer when the Kubayama's closed for the evening. And while our all hippie-haole Mountain Ball team had been a shock to the system for many local people at the time- mostly because it meant that there were actually 10 of us living in Kapa`a, by the late 70's there were actually "integrated" teams.

Soon the traffic stopped moving as the mauka subdivisions multiplied and having a perpetual card game going on in the middle of Kapa`a these days would seem as out of place as Ding's bar.

But for many, the memory of the fake gas station makes us nostalgic for the days when everybody knew everybody and no one wanted to break anyone's rice bowl... even those of the local crime consortium.

After all, they were our mobsters and no Honolulu boys were going to come in here and mess with us.

Thursday, July 26, 2012


DEEP LACK OF BACKGROUND: We've learned through painful experience that rock bottom is a place that doesn't exist- there's always a longer and sharper drill bit in the pit.

So it's really no surprise that after more than a dozen regimes at the local newspaper over the past three decades- each, with brief respites of competency, worse than the last- the level of professionalism has plumbed new depths.

The general slipshod nature of the news-less wonder has irritated and generally disgusted residents island-wide. But many- notably us- have saved their ultimate wrath for the alleged skills of alleged reporter Leo Azambuja, whose biggest point of confusion is apparently whether he should bend over or get down on his knees in his dealings with elected officials.

But until now we never had any unpublished insight into what kind of warped thinking goes into the utter lack of accountability that Leo has made his hallmark.

Now, in a series of emails between Azambuja and Prosecuting Attorney Shaylene Iseri-Carvalho obtained by reporter Joan Conrow, Azambuja demonstrates his main concern- not informing the public but kissing up to those he covers.

Through a process she describes as tantamount to "pulling impacted wisdom teeth", Conrow requested and finally recently received some heavily redacted emails she had requested from Iseri's office regarding the testimony before the county council of former Victim-Witness counselor Erin Wilson who, according to Conrow, has won an EEOC case after being fired by Iseri.

But the Azambuja emails were not among those released and rather were obtained by Conrow through a "leak" after Iseri refused to include them in a packet.

Conrow's work on the various and sundry scandals in Iseri's office during our recent health challenges has been nothing short of essential to a community in which Azambuja's reporting has been all but non-existent.

We aren't going to go into the whole sordid tale of "Victim-Witness-Gate" here today. You can read some of our earlier coverage here
and here.

Our tale today goes back to January 10, 2012, when Wilson brought a series of charges against Iseri to the attention of the Kaua`i County Council in a letter that is part of the packet released by Iseri's office (last document in pdf).

Azambuja, and therefore the local paper, had been silent on most of Iseri's alleged misdeeds in the matter until January 14, 2012, when an article finally appeared under the headline of "Former Victim counselor fires at OPA."

Azambuja's article essentially briefly quotes Wilson's charges one by one and then quotes Iseri's extensive and detailed answers. But instead of informing readers that Iseri's response was in an email, Azambuja referred to Iseri's responses using the term "she said" over and over, never even mentioning the fact that the responses had been in writing.

That type of thing is considered a major ethical violation these days by the top news outlets like Associated Press and the NY Times. Readers should be informed and certainly should not be lied to as to the form of a response from a news subject.

But content of the leaked email shows even bigger lapses of ethical judgment on Azambuja's part.

It was apparent that Iseri's responses had been in writing and so, apparently, Wilson asked Azambuja for Iseri's full letter.

What Azambuja did next perhaps explains why no one would mistake Azambuja for a trained professional journalist.

Here's the bizarre exchange between Azambuja and Iseri. Astoundingly Azambuja tells Iseri that rather than being considered the subject of his article he was treating her as a "source" and that as such, Iseri's letter is "protected" material... and then he actually asks her if it is okay to give the letter to Wilson.

1) From Azambuja to Iseri:

Re: response to erin wilson (sic) letter Hi Shay

I got a call from Erin Wilson today and she wanted a copy of your response. I explained to her that I'm not sure if it's a public document. Her testimony was a public document but your response is just a answer sent to me through an email. I told her I would act the same if the situation was reversed out of ethics and respect. She insisted she wanted a copy so I said I told her I would ask you for permission.

No one else has seen it and no one will without your authorization. That's how reporters should treat their sources no matter who they are.

But since I told her I would ask you here goes her request.

Do you authorize me to send Eric Wilson a copy of your email

Aloha, Leo

2) From Iseri to Azambuja:



3) From Azambuja to Iseri:

Ha, not a problem Shay,

See you tomorrow at council.



4) From Iseri to Azambuja

Thanks for the sense of humor :-)


Iseri's response certainly was a pubic document. There are no exceptions for communications with reporters in HRS 92F 13-14. Emails to constituents are virtually always public.

But the real head-shaker here is that Azambuja treats her like a "source" when what she was was the "subject" of the story. This demonstrates an amazing lack of journalistic integrity showing a basic lack of understanding of the source-reporter and subject-reporter relationships.

Azambuja's contention to Iseri that "(Wilson's) testimony was a public document but your response is just a answer sent to me through an email" shows how little understanding he has, not just of journalistic ethics but of the state's open records laws.

Anything written by a government official that pertains to their work is a public document, with some exemptions for things like privacy, working drafts and personnel matters. The fact that a reporter who covers "government beat" lack that basic understanding of a law that is an integral part of his work may go a long way toward explaining the utter lack of substance of much of Azambuja's reporting.

As a matter of fact parenthetically we can't remember ever seeing Azambuja write about making an official record request whereas his predecessor in the job created a whole section at the paper's web site regarding "freedom of information" type requests. The last entry there is by that reporter, Michael Levine, who now works at CivilBeat.com

Next Azambuja wrote "I told (Wilson) I would act the same if the situation was reversed out of ethics and respect... No one else has seen it and no one will without your authorization. That's how reporters should treat their sources no matter who they are."

Ethics? Respect? Azambuja is so devoid of ethics it's hard to know where to begin. If Leo can't tell the difference between a public document and an off-the-record remark by a source he ought not be in the profession.

In asking Iseri whether it was okay to release her response- instead of just publishing it like any journalist would normally do- he has given up control of his reporting to someone who obviously has something to hide since she refused to release the rest.

Of course, many times a reporter will have a source-reporter relationship with people he or she covers. But according to well established ethical standards it must always be with the clear understanding that when asked for an on-the-record response that person is not to be treated as a source who can go back later and say "no- you can't use what I gave you 'on the record.'"

But regardless of whether Iseri occasionally acts as a source for Azambuja he is giving up his control over the news coverage he presents. A reporter should never take a written on-the-record response and then give the subject a chance to change or refuse to release it.

Given the email exchange, the "lie" to the readers as to the written nature of Iseri's response takes on an even bigger importance. It makes one wonder whether and how this chummy relationship has influenced Azambuja's coverage in the past.

Since there is no editor at the paper there is no one to take an objective look at Azambuja's relationships with those government officials he covers. That's one of the big functions of an editor- making sure that news isn't being manipulated by the source and that any source-reporter relationship primarily benefits the reporter, the paper and the reader, not the source.

Of course unpublished materials are the possession of the reporter, and under the Hawai`i "Reporters' Shield Law," for purposes of court proceeding, many reporters will withhold their unpublished notes. Reporters should not be seen as an arm of the constabulary.

But that isn't the situation here because there isn't any "source" to protect. Azambuja has lied to his readers and then, continuing the lie, withholds materials that any reporter would be more than glad to share under just about any circumstances. While in "ink and paper" news outlets space may be a factor in publishing a document such as Iseri's reply to Wilson's allegations, on-line publications routinely post full resource documents along with an article from which quotes are extracted.

It's apparent that Azambuja lied so that he wouldn't have to release Iseri's letter due to his self-delusional, mistaken impression that she was a source, not the subject of the story.

No reporter worth a damn would even consider withholding the Iseri letter. But in the schmoozy, "please like me" world of Azambuja, relationships with elected officials (especially, as we've reported in the past, with Council Chair Jay Furfaro who has all but led Leo around by a ring though his nose) is what seems to count. As a matter of fact it appears to be the determining factor in what news the island receives regarding government and politics.

This would be a fireable offense in any legitimate news organization. With the key words here being "legitimate news organization," don't expect anything to change any time soon at the local Kaua`i newspaper.

Wednesday, July 18, 2012


PROCESS OF ELUCIDATION: One of the more absurd of Yogi Berra's non-sequiturs was that "nobody goes there any more- it's too crowded."

When it comes the field of "acceptable" candidates in this year's elections the ballot is anything but crowded. That's the case up and down the ticket on Kaua`i but it's exemplified by the County Council election where a record low nine people are running for seven seats.

The key word there is "acceptable" because the way democracy has combined with capitalism in America we've managed to define "acceptable" as "corporate-funded, duopoly selected."

But that has little or nothing to do with the reason why Hawai`i in particular is at or near the bottom of the list in voter turnout. This week a six-part series by blogger/journalist Ian Lind in Civil Beat tried to explain why through statistical gymnastics that, while we're sure are true, seemed anything but insightful.

One thing missing in Lind's report is the "sun and surf" factor.

Stay with us. Hawai`i is the home of the tourism-industry crummy jobs that cause all members of the family to work at least two close-to-minimum-wage jobs apiece. With the cost of living higher than other places in the US, people just don't have time to pay attention to politics and certainly want to spend their leisure time doing something other than figuring out who to vote for.

Even though we political junkies don't see the logic in that, it makes more sense when you add in that "immigrants" don't exactly flock here to get involved in politics, which also goes for those born and raised here who have usually chosen to "stay home" after they finish school.

Most people are here one way or another because they can surf, hike, snorkel, fish and do all the things that make living in the islands unique. If anything, they came here- or stay here- because they are actually running away from places obsessed with politics and the like.

Then of course there are also those who aren't particularly interested in participating in what they see as the central activity that an "occupying nation" uses to justify their military control and "make the world safe for democracy." Though it's not a vast number who think that way, it's more than most people think.

But if you really want to know why few among the remaining are voting it may be the simplest reason of all: there's "no one" running.

Why vote when all the Democrats and Republicans are greedy power mongers who are all, in one way or another, on the take?

While there are exceptions that prove the rule like Mina Morita or Gary Hooser (who, maybe not so coincidentally, are both currently out of office although Hooser is seeking to return to the county council) it's been like pulling proverbial teeth to get people to run for office these days.

We just spent a year and a half recruiting candidates and didn’t find a one. We even lost a couple at the last second.

We approached almost every "community activist" we know, even some we disagree with because we knew that at least they fight for things they actually believe in. And every one said "thanks but no thanks," some adding "why in the hell would I want to do that?"

Indeed running for office is a daunting proposition. Just the prospect of having to ask people for money makes many back off. The idea of spending every spare moment for a year going door to door, attending every gathering and being subjected to more scrutiny than a prize pig at an auction is not one that makes one's heart go pitter-patter.

Surprisingly many say that actually serving- crafting legislation, guiding it through, going to meetings and all that intriguing stuff- is what they want to avoid because they'd have to deal with all the a-holes in office who, for the most part, actually enjoy all the back-stabbing political gamesmanship that got them into office and keeps them there.

Can you imagine having to sit there with Mel Rapozo or Dickie Chang- and not just sit there at a meeting but actually negotiate with and schmooze them? Are you going to listen to Jay Furfaro go on endlessly about his delusions of success or try to figure out why Kipukai Kuali`i would be aligning himself with Rapozo and the Queen of Spleen, Prosecutor Shaylene Iseri-Carvalho- and then actually come up with equally sinister plans to oppose their evil schemes?

What fun. Who'd wanna go surfing when you can listen to a three hour report on some incomprehensible, unattainable, feel-good plan to spend a million bucks to spruce up the county building parking lot?

So there you have it- an electorate that's already got better things to do and actually came or stayed here to get away from the backstabbing political culture on the mainland. And if they do take a look at the local political culture they see nothing but a bunch of moronic and vicious bozos appealing to what's left of the electorate. And those that do vote do so on the basis of who went to school with whom and whether they attend the same church... or cock fight.

And it's only getting worse. Don't forget the last mayoral election where the only one to run against a punch-drunk, concussion-syndrome-addled, ex-football player was a well-meaning too-smart-for-the-job, haole lady who'd lived here all of ten minutes. And this year, even with the criminally insane, moist-Malaprop-spewing Iseri running for prosecuting attorney against what appears to be a smart, honest and upstanding progressive apparently actually interested in serving justice (imagine that), it's still a race too close to call because she grew up here and he didn't.

It doesn't get any better with our choices for US congress where unlike the Kaua`i state legislative contest, there is one. For the U.S. house it's a war-obsessed vet who has gotten non-religion and is suddenly bigoted-no-more, running against a slimy pay-for-play veteran who has as much substance as dark matter. And for senate it's a pseudo-progressive against a pseudo-Democrat in the primaries and the winner gets to take on the Stepford Wife, chameleon ex-governor who has the unique talent for speaking out of all three sides of her mouth.

Those are our choices? Well actually not. Because even though we have convinced ourselves that we can only vote for one of them, there are others on the ballot, many of whom aren't corrupt caricatures of public servants. It's just that we've convinced ourselves we're not allowed to vote for them.

The fact is that people believe in the cockamamie "two party system" that has created a fraudulent scheme where legalized bribery is compulsory, corporate billionaires do the bribing and everyone is too intimidated to vote for the candidate they actually like because no one else will.

Maybe Yogi had it right: there's nobody running- the field is too crowded. In other words, why would you vote for Green Party presidential candidate Jill Stein? She's too popular.

Thursday, July 12, 2012


YOUR WRONG TO VOTE: Age has benefits. The "been there done that" factor can halve research time.

Unfortunately when combined with an inevitable senior moment it can lead to misinformation. That's what led us to wrongly tell our readers that the race for prosecuting attorney would be decided on August 11 because only two people are running and one, by definition, is bound to get "50% plus 1."

That's how it has been in every election for prosecuting attorney (PA) on Kaua`i. But now for the first time a charter amendment that was passed by voters in 2008 will take effect for the PA election. And of course, being Kaua`i, it is required that something about it be absurd so the provision essentially says that even though there are only two candidates they will appear on "the first nonpartisan election" ballot for no particular reason other than that is the way the provision was written.

The impetus for the amendment was the 2006 election where, in what is commonly called the "primary" election, then-Mayor Bryan Baptiste ran for reelection and got 50% plus exactly four votes, beating out four opponents in what turned out to be the closest election in Kaua`i history.

It's understandable that with five candidates people just didn't show up for the primaries thinking no one would get the "50% plus 1" needed to be elected outright, without the top two going on to the November election.

They felt cheated when Baptiste got 8,173 votes and chief challenger, former Councilmember Jesse Fukushima came in with 4,725 votes, because when the other three- John Hoff, Bruce Pleas and Janee Taylor- got 1,984, 1,083 and 377 respectively it added up to 8169 votes for the others... four votes shy of the amount that would have prompted a November showdown between Baptiste and Fukushima.

It seemed like a no-brainer- change the charter so that no matter what the vote totals were,d the top two finishers in the primary would meet in November.

So the attorneys (some hired specifically to make sure the amendment did what the charter review commission wanted it to do) worded the amendment this way:

Article I The County And Its Government
Section 1.03. County Elections.
(C)1. Offices of the Mayor, Prosecuting Attorney and Council members to be elected by districts, if any. In the case of the offices of mayor, prosecuting attorney, or any council members to be elected by districts, the names of the two candidates receiving the highest number of votes for these offices in the first nonpartisan election shall be placed on the ballot for the second nonpartisan election. However, if there is only one candidate for each of said offices, such candidate shall be elected. (Amended 2008)

There's one problem with that. It works fine when there are three or more candidates because no matter what "the names of the two candidates receiving the highest number of votes" go on to November.

But the current charter failed to recognize what would happen if there are only two candidates. There are two choices on what the new law could and should do in that case. It could declare that the election- the one that actually elects the candidate- be held during "the first nonpartisan election," unless there is an actual tie- exactly 50% for each in which case they'd go on to November. Or the names could be left off the "primary" ballot- since it's just a waste of paper and ink since it won't determine anything anyway- and let the actual election to be held in November.

But, this being Kaua`i, a third choice was selected and now, for no particular reason, the two candidates for PA- incumbent Shaylene Iseri-Carvalho and challenger Deputy County Attorney Justin Kollar- will appear on the ballot in both August and September.

Which means that there are no meaningful Kaua`i-only, non-partisan races whatsoever on the ballot in August. Although there are partisan Democratic primary elections for US senate and house of representatives, the races for council and prosecuting attorney will appear on the ballot even though the results are moot and all will go on to November.

The same will be true for any future mayoral election and for council races if districting is ever implemented.

Kaua`i has always been "A Separate Kingdom" and, when it comes to writing our laws, a separate reality too.

Wednesday, July 11, 2012


SCATTING TO A DIFFERENT DRUMMER: A few weeks back we got disgusted enough to pass on that retching sound to our readers regarding the entro-bacterial levels in the ocean on the North Shore of Kaua`i, specifically Hanalei Bay. Seems that, as we wrote then,

According to the Natural Resources Defense Council's (NRDC) 22nd annual beach water quality report on the cleanest beaches in America- as reported in today's pay-walled Honolulu Star Advertiser-

"Out of the country's 200 most popular beaches, no Hawaii beach earned the council's 5-star rating, which 12 beaches received."

We went on to make the point that many, notably the Surfrider Foundation of Kaua`i, have generally been calling bullsh*t on the contention that the source was, well, bull sh*t.

While Deputy Director of the State Health Department's environmental health division Gary Gill is quoted as saying "it's not an indication of sewage pollution," Surfrider Kaua`i- which has been doing its own testing- has said that the exceedingly high levels are primarily due to human excrement from the plethora of cesspools that still quasi-legally exist in Hanalei, especially those hooked into "illegal" transient vacation rentals (check out our original post for why illegal is in quotes).

But the original article was actually trying to make a different point than the one we picked up on. The second paragraph read:

On the other end of the scale, no Hawaii beach made the list of 15 "repeat offenders" for storm water runoff and sewage pollution that sicken people and harm coastal economies, the council said.

It went on to say:

The Hawaii percentage was up from 3 percent in 2009 and again in 2010, but down from the 9 percent measured in 2007, the council said.

Kauai County beaches had the highest "exceedance rate" — percent of beach water samples exceeding state standards in 2011 — at 9 percent, followed by Hawaii County (4 percent), City and County of Honolulu (2 percent) and Maui County (2 percent).

Really? It seems to be saying it's getting better... cleaner... less, uh, full of crap.

Well maybe not. According to marine biologist and head of the Kauai Surfrider Foundation Dr. Carl Berg it's not because it's any cleaner it's simply because the entity that's actually fullest of crap is the DOH which has simply stopped testing as often.

In an email Dr. Berg told us:

One way to get really bad beaches off the list of year-after-year high exceedance? Just stop sampling them! Then they don't show up on the list. Take for example, Hanama`ulu Beach Park which was tied for 10th place in the nation for greatest percent of the time in exceedance. What happened?.. no more sampling, so no data, so off the list. It is now being re-sampled periodically.

The reason Hawai`i beaches are not in the NRDC 5 star category is the fact that DOH does not meet some of the criteria.

NRDC says "Criteria include testing more than once a week (They do that), notifying the public promptly when tests reveal bacteria levels violating health standards (nope), and posting closings and advisories both online and at the beach (nope). Hopefully we will determine if the high bacteria counts are coming from human or animal feces this summer. If human feces, then Surfrider will be screaming to have a lot more Kauai beaches and streams posted with signs like the ones that were up at Nawiliwili Stream after the sewage spill.

We have a feeling that the Hawai`i Visitors' Bureau is just fine with the way DOH is doing its work. To complete Dr. Berg's thought "no more sampling, so no data, so off the list," so... instead of the headlines on the mainland screaming "Come to Hanalei and take a Dip in Sh*t" it reads "Hanalei: Jump Right In, Dipsh*t- The Water's Fine.

When the choices are "lies, damnable lies and statistics" it's easy to confuse the shibai and the kukai. But if you simply don't look for any of the three you don't have to fudge anything.

Wednesday, July 4, 2012


IT'S A DIRTY JOB BUT NOBODY'S GOT TO DO IT: Sometime it's an occasion for a straight rant, usually after an unusually pathetic, yet successful injustice has been perpetrated. But sometimes things are so enraging and we find it so hard to fit into our new and improved engagingly rabid outfit that we resort to a simple news report.

So after receiving word last week that the Office of Information Practices (OIP) decided to issue an "informal opinion" saying that Former Chair Kaipo Asing conspired with former County Clerk Peter Nakamura to go behind closed doors under false pretenses three years ago, in order to contain our rage we went with the just the facts, ma’am.

We were just going to leave it at that until yesterday when Joan Conrow carefully inserted the opinion in our craw speaking about how

former County Council Chair Kaipo Asing violated the sunshine law — three years ago. Yup, that's how long it took the OIP to rule on a citizen complaint. And even then, you still would have to go to court to void any action that was taken during an improperly noticed meeting, adding many more months to the process. It seems government transparency, absent expediency, doesn't really count for much.

ALL RIGHT, ALL RIGHT, ALL RIGHT. We can't get away with anything around here.

We did intentionally leave out the end of the opinion because to delve into what it truly meant would have generated enough ear-steam to power a small village.

It repeated one of the most egregious half truths in the annals of open governance. Under the title "Right to Bring Suit to Enforce Sunshine Law and to Void Board Action" it said:

Any person may file a lawsuit to require compliance with or to prevent a violation of the Sunshine Law or to determine the applicability of the Sunshine Law to discussions or decisions of a government board. The court may order payment of reasonable attorney fees and costs to the prevailing party in such a lawsuit.

This bit of butt-derived garbage directly conflicts with the state Sunshine Law which, in Section §92-12 "Enforcement" says:

(a) The attorney general and the prosecuting attorney shall enforce this part.
(b) The circuit courts of the State shall have jurisdiction to enforce the provisions of this part by injunction or other appropriate remedy.

Pretty clear, eh? Yet not one of the hundreds of of formal and informal opinions OIP has issued since 1989- especially the dozens that essentially called the actions of various boards unlawful- has been enforced by either the attorney general or any of the county prosecuting attorneys.

But how can that be- isn't the law clear as to their responsibility?

You'd think so- but noooooo.

Although it's been a while since the last time any attorney general has responded to an inquiry- and we don't believe there is a written opinion on the subject- when we did get an answer way back when, we were referred to the rest of the "Enforcement" section. It says:

(c) Any person may commence a suit in the circuit court of the circuit in which a prohibited act occurs for the purpose of requiring compliance with or preventing violations of this part or to determine the applicability of this part to discussions or decisions of the public body.

Though the reasoning is way too tortured for the way understand logic to work the gist of the AG's contention is that, because "(a)ny person may commence a suit in the circuit court of the circuit in which a prohibited act occurs for the purpose of requiring compliance," the AG will not do a damn thing and rather, will graciously allow one of those "any persons" do the dirty work.

The problem with that is two-fold. First of all the law doesn't say the AG may enforce this part it says (s)he "shall" enforce it.

For the second problem the first thing one must do is take a look at the next part of the Sunshine Law- §92-13 Penalties.

It says:

Any person who wilfully (sic) violates any provisions of this part shall be guilty of a misdemeanor, and upon conviction, may be summarily removed from the board unless otherwise provided by law.

Misdemeanors in the state of Hawai`i are punishable by not more than $1000 fine, a year in jail or both.

Yet §92-12(c) refers to the lawsuit a person files being "for the purpose of requiring compliance with or preventing violations of this part or to determine the applicability of this part to discussions or decisions of the public body. "

The problem that we're talking abut meetings where the board is about to go into what is essentially an unlawful secret meeting. So how would you stop them? With an injunction? Well, a certain conundrum is presented by the rest of §92-12. That bit of unreality says:

(d) The proceedings for review shall not stay the enforcement of any agency decisions; but the reviewing court may order a stay if the following criteria have been met:
(1) There is likelihood that the party bringing the action will prevail on the merits;
(2) Irreparable damage will result if a stay is not ordered;
(3) No irreparable damage to the public will result from the stay order; and
(4) Public interest will be served by the stay order.

As we said, it doesn't matter what the heck the likelihood is of a party prevailing, any irreparable damage or some kind of public interest because the deed will have already been done by the time a "person" files a suit... unless you have one of those Twilight Zone stop watches that can put the board meeting in suspended animation while you track down a lawyer who can track down a judge who can and will rush over to interrogate the board and issue an injunction.

Of course this is all practically moot these days because of a case called "OIP vs County of Kaua`i" which- leaving out all the juicy stuff involving the infamous ES-177, Asing, current Councilperson and former star of the book KPD Blue (see left rail) Mel Rapozo, former Finance Director and current Grove Farm Veep and Koloa Camp evictor Mike Tressler, the Kaua`i Board of Ethics, former Police Chief KC Lum and a cast of seemingly thousands- essentially defanged OIP and turned what used to be known as the best Sunshine Law in the country into a parody of open meetings laws.

Because all a person can do is file a civil suit and seek to overturn the actions. Even if this opinion wasn't three years old it doesn't seem to mean anything as far as the Penalty section is concerned.

Although in this case the opinion appears to say that the action was "willful"- especially since Asing and Nakamura refused to even respond to OIP inquiries- who exactly is there from whom to seek the criminal penalties... which, if we understand the American jurisprudence system correctly, is what is supposed to deter people from doing it again in the future, not encourage the action over and over by essentially saying the law is a joke.

Ah, crap- now we're thoroughly pissed off. Shoulda stuck with the news.

Tuesday, July 3, 2012


LET'S GO OUT TO THE LOBBY AND GET OURSELVES A WRIT: The news that the Kaua`i Police Commission has filed suit against Mayor Bernard Carvalho Jr. to have a court determine whether hizzonah had the power to suspend Police Chief Darryl Perry in February is no surprise.

On March 23 we noted that:

The agenda for next Wednesday's council meeting contains the following item:

C 2012-98 Request (03/13/2012) from the Police Commission for authorization to expend funds up to $10,000.00 to retain special counsel to represent the Police Commission in filing a complaint with the Fifth Circuit Court and asking for a declaratory judgment as to who has the authority to supervise and/or discipline the Chief of Police.

In noting the appropriation we said that:

People are always claiming "I hate to tell you 'I told you so,' but..."

Yet who are we kidding?- we love to do it.

So today we'll set up what will most assuredly be a little "see?" moment, sometime in the near future.

So call this Act 2 of this would-be three-act melodrama that, as we noted, will no doubt finish with a somewhat existential ending where, when it’s all over, the characters wind up right were they started.

Because we're willing to bet the farm that neither of the two 5th Circuit Count judges, Randall Valenciano and Kathleen Watanabe, are going to rule on what is essentially a political matter- a matter that the council could, according to the county charter, decide by themselves if they had once iota of election year political will.

Yeah- that'll happen... about the time Kapa`a traffic is a quaint anachronism.

Both judges have shown a propensity for "punting" whenever they possibly can. As we previously pointed out:

Watenabe has a history of punting these kinds of things. For example, in her decisions regarding various cases of disturbances of `iwi kupuna- the bones of native Hawaiians- by developers, she adamantly refused to rule, saying that the laws and regulations regarding the individual island burial councils and the State Historical Preservation Department (SHPD) that oversees the process, are unclear and that the legislature needs to clear thing up.

Our description is an oversimplification. But what is clear is that Watanabe did indicate that the solution was a political decision, not a judicial one.

As to Valenciano he was recently asked by Council members Mel Rapozo and Kipukai Kuali`i to clear up the use of the word "shall" in a matter regarding the Kaua`i Salary Commission's March 15 deadline for submission of their yearly "recommendations." County Attorney Al Castillo had written an opinion that, in this case, ""shall" was used "administratively" and therefor has to be read as "should."

But when the two council members went before Valenciano's court, he also said that it was a political matter and not only didn't the two have standing but that they should look to changing the law to make things clear rather than asking him to essentially split a baby.

Does anyone think that in this case either of the judges are going to get involved? Both come from a government background and perspective, Watanabe having served as county attorney and in other government jobs and Valenciano having been a long-time council member, even running for mayor one time. Both have a healthy respect for letting the government wheels turn as freely as possible and apparently do not want to get involved in inter-agency squabbles like the one over who should discipline the chief.

The ball here is clearly and fully in the council's court...

Section 7.05 of the Kaua`i County Charter details the "Powers, Duties and Functions" of the mayor.
There are 13 "Powers, Duties and Functions" The very last one reads:

"M. Exercise such other powers and perform such other duties as may be prescribed by this charter or by ordinance. (emphasis added)."

This means that the council can actually pass an ordinance regardless of whether the charter defines a specific power of the mayor or not. This is somewhat unusual in that powers not designated in a controlling document cannot normally just be taken in an inferior document (such as the charter and an ordinance respectively)... unless, as it is in this case, it is specifically granted.

The council also has the power to put a charter amendment before the electorate via a resolution.

But either way the problem here is that it exists in the political realm. It is doubly political in that the council must make a political decision as to which entity they want to give that power to- whether they do so via an ordinance or a charter amendment.

Should they give it to the mayor or to the police commission? They will no doubt face criticism for doing either. If they passed an ordinance, first they would have to decide themselves which way to go. If they proposed a charter amendment, they could only propose one or the other for the electorate to vote for- there's no provision for having a referendum type of charter amendment- so they face the same dilemma.

In either scenario, if the council decides to spent the $10,000, the money is completely wasted.

And we're pretty confident that if they do approve the expenditure, we'll wind up with a nice "we told you so" to tack up on the wall with all the others.

At the time we had no illusion that the council would do anything the "easy" way. Then, as now, the seven councilmembers were and are all too aware that public opinion's on the side of the police commission. But not by as wide a margin as many may think.

Despite the brouhaha, Carvalho still has plenty of loyal political adherents who wouldn't take kindly to a charter amendment that would give the disiplining power to the commission.

Make no mistake- everyone in town has an opinion as to whether Carvalho was right or wrong and they're pretty adamant on each side... enough to make it a voting-decision issue.

As a matter of fact just proposing a charter amendment that would give one side or the other the power to discipline or suspend the chief would be a political hazard for councilmember... no matter which way they voted on whichever side the measure would give the power to.

No one on the council can afford to throw away a single "one vote" they're always asking voters to "save" for them. And with the popular former state Senator Gary Hooser in the race there is, with little doubt, going to be one eighth-place-finisher among the incumbents... a vote for one "side" or the other could be the determining factor as to who that "one" is.

The Charter Review Commission (CRC) is still, as far as we know, dithering as to whether to put a measure on the ballot- probably one giving the commission, not the mayor, the power. CRC Chair Sherman Shiraishi actually tried to ask the council what the commission should do earlier this year with no real response forthcoming.

So now that the suit has been filed, as the local newspaper noted this morning, it's conveniently out of the council's hands because supposedly no one is permitted to comment on the matter since it's a "legal" proceeding now.

The paper quoted one of the attorneys filing the suit as saying this.

(Corlis J) Chang said the case is not a complicated one, and they seek to have a 5th Circuit judge decide on who has the authority to discipline the chief of police. The mayor has one view and the police commission has a different view, she said.

“It’s a really simple issue and its one where there are two different viewpoints, and our goal is to get a resolution from the court,” Chang said. “This is straight forward and there are no other agendas here.”

But apparently it is about- well no actually, exactly- 10G's worth of complicated.

This though may just be the key quote in the article:

Chang said it’s very early in the case and once the mayor has responded to the summons they will submit their motions and wait to be assigned a judge and a hearing date. Then she said it would be a matter of presenting legal issues based on documentation and legal precedents.

Apparently getting a ruling that tells the council and police commission to stop wasting the court’s time with what is essentially a political decisions should take until... let's see, subtract the campaign contribution... carry the sign waver... divide by the stack of council certificates and awards... oh we'd say... about... Wednesday, November 7- the day after the election.

Sunday, July 1, 2012



(PNN) A key Kaua`i County Council Executive Session (ES) held more than two years ago was not "allowed under the Sunshine Law," according to a "Memorandum Opinion" issued by the Office of Information Practices (OIP) on Friday (June 29, 2012).

The June 4, 2009 ES was a major skirmish in the war between former Council Chair Kaipo Asing and Councilmembers Tim Bynum and Lani Kawahara over Asing's secrecy and dictatorial rule- a war which led eventually to the end of Asing's decades long political career when he was unseated in the 2010 election.

The opinion stated that:

In appropriate circumstances, a board may go into an unanticipated executive session with its attorney to discuss its ability to add an item to its agenda, so long as the board does not discuss the underlying item proposed to be added. See HRS § 92-5(a)(4) (Supp. 2011).

However, given the length of the executive session and the fact that the County Attorney publicly announced his advice on whether the proposed item could be added to the agenda by vote, OIP infers that the discussion was not limited to advice on that legal question. Because the Council failed to rebut that inference by explaining what discussion occurred during the executive session and why it properly fell within an executive session purpose, and failed to provide any evidence or arguments to meet its burden to justify the executive session, OIP cannot find that the executive session was allowed under the Sunshine Law.

As PNN reported on June 5 2009 the OIP had previously warned that holding such an ES would be a violation of the state open meetings or "Sunshine Law" (HRS 92). In the article PNN also detailed issues over Asing's abuses of power according to essays by Bynum and Kawahara. The essays were posted at their kauaiinfo.org web site which the two used to post documents and information on Asing's penchant for secrecy and, in the dust-up at hand, his use of ambiguous council rules to block Bynum from introducing measures before the council.

The opinion itself says that:

Requester (Bra Parsons) asked for an investigation into whether the Kauai County Council (Council) violated the Sunshine Law by holding an executive session to discuss a motion to add an item to the agenda for its meeting held on June 3, 2009 (the Meeting). Unless otherwise indicated, this opinion is based solely upon the facts presented in Requester’s e mail correspondence dated June 4, 2009 and attached materials. Although OIP requested the Council’s position on Requester’s complaint, including a detailed explanation of the events in question, in letters dated June 5 and December 2, 2009, the Council did not submit its position or any factual explanation of the events. OIP thus takes the factual accounts in materials submitted by Requester, and any reasonable inference therefrom, as uncontested. Requester relied primarily on the facts presented in an article in The Garden Island newspaper: Michael Levine, Following the Rules.

Levine's article, upon which OIP attorney Jennifer Brooks said she based most of the opinion, describes the meeting, saying:

With the only two avenues of adding an item to the agenda — with Asing’s initial or through a floor motion — effectively closed off, Asing, who finished fourth in voting in November’s election behind Vice Chair Jay Furfaro, newcomer Derek Kawakami and Bynum, has essentially vested in himself a preemptive veto power even surpassing that held by Mayor Bernard Carvalho Jr. in that Asing’s decisions cannot be overridden by a supermajority vote and that his decisions are shielded from public view.

After Bynum made the motion at the outset of Wednesday’s meeting, Asing moved the discussion to the end of the agenda.

Five hours later, after dealing with the six-page agenda, Asing said Section 92-7(d) of the Hawai‘i Revised Statutes precluded the council from voting on or even discussing Bynum’s resolution because it is of “reasonably major importance and action thereon by the board will affect a significant number of persons.”

Bynum provided to his fellow council members and the public a May 15 e-mail correspondence between himself and state Office of Information Practices staff attorney Jennifer Brooks in which she told him his proposed resolution “does not appear to be of reasonably major importance or to affect a significant number of people” and “appears suitable to be added to the agenda by a 2/3 vote, and the council would be acting in good faith in so adding it.”

Castillo said the unanticipated matter should be discussed in executive session to protect the council from potential liability. After a 5-2 vote approving the secret session — Bynum and Lani Kawahara dissented — the council closed its doors for about an hour.

When it reconvened, Castillo told the council “the proposed resolution encroaches upon the duties of the chairman as the presiding officer of the council. Therefore it is of reasonably major importance. The way that the council is run affects all of the people in this county.”

“The people of Kaua‘i did not have an opportunity to know what was placed on the agenda. That’s the reason for the Sunshine Law,”Castillo said, adding that there are rules in place to govern how much time must elapse between the public posting of the agenda and the meeting to which it applies.
After Asing called the meeting back to order and ended discussion by quickly adjourning it to comply with Castillo’s advice, the 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.

Readers can access additional PNN coverage of the matter via Parx News Daily archives from 2009. Some key posts include:


Wednesday, June 10, 2009: DON’T LET GO, DON’T LET GO

Thursday, June 11, 2009: DARKNESS, DARKNESS
Friday, June 12, 2009: ON AND ON, ON AND ON, ON AND ON

Monday, June 15, 2009: A DAY AT THE RACES


Thursday, June 18, 2009: SAME OLD DOG, SAME OLD TRICK:

Because the OIP opinion is not (yet) available on line we are posting the entire "Statement of Reasons for Opinion" below:

Requester asked for an investigation and enforcement action against the Kauai County Council based on various news reports of the Meeting. Specifically, Requester questioned whether the Council’s executive session held to discuss a motion to add an item to its agenda was proper under the Sunshine Law.

At the time of the Meeting, the Council’s Rule 10 allowed any member to introduce any bill or resolution, but required bills and resolutions to be initialed by the Council Chair before being placed on an agenda. Certain members complained that the Council’s then-Chair would not initial bills and resolutions they requested, thus preventing those items from being placed on the Council’s agenda. One of the members thus affected, Tim Bynum, brought a motion during the Meeting to add to the Meeting’s agenda a resolution to amend Rule 10 to clarify that the Council Chair could not use the initialing requirement to indefinitely postpone hearing bills or resolutions requested by a Council member. The Chair moved discussion on Mr. Bynum’s pending motion to the end of the Meeting’s agenda.

When the Council reached the end of its agenda five hours later, the Chair, supported by County Attorney Al Castillo (County Attorney), stated that Mr. Bynum’s motion to add a resolution clarifying Rule 10 to the agenda could not be voted on because the issue was of reasonably major importance and action thereon would affect a significant number of persons. Mr. Bynum responded by sharing an e-mail dated May 15, 2009, from OIP Staff Attorney Jennifer Brooks, which advised that the proposed resolution did “not appear to be of reasonably major importance or to affect a significant number of people,” that it “appear[ed] suitable to be added to the agenda by a 2/3 vote,” and that the Council “would be acting in good faith in so adding it.”

The County Attorney then advised the Council, which still had not voted on the motion to add an item to its agenda, to discuss the motion in executive session to protect the Council from potential liability. The Council voted 5-2 in favor of going into executive session, apparently for the purpose of consulting with its attorney, and then went into a closed session for about an hour. When the public meeting reconvened, the County Attorney announced that “the proposed resolution encroaches upon the duties of the Chairman as the presiding officer of the Council. Therefore it is of reasonably major importance. The way that the council is run affects all of the people in this County.” The meeting was adjourned shortly thereafter, with no vote having been taken on the motion. As an initial matter, OIP notes that the e-mail setting forth OIP’s advice did not put the Council under any obligation to add the item to its agenda. An item may be added to a filed agenda only with “a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons.” HRS § 92-7(b) (Supp. 2011). Thus, even if an item was qualified to be added to a Council agenda because it was not of reasonably major importance and action on it would not affect a significant number of persons, the Council’s failure to add the item to its agenda would not violate the Sunshine Law because it was up to the board to decide whether to add the item, and there was no vote to do so. OIP further notes that the c-mailed advice given to Mr. Bynum is consistent with the informal advice OIP has given in other situations regarding a board’s ability to add an alteration to the board’s internal procedures to an agenda by vote: the persons affected by a change to the Council’s rules regarding a member’s ability to place an item on the agenda would be only the nine Council members, who do not represent a significant number of persons when compared to the Council’s entire constituency.

Requester argues that the Council’s filed agenda stated that the Council can hold an unanticipated executive session “on any agenda item,” and based on that, Requester questions whether the executive session was proper when the issue being discussed was not an agenda item itself but instead was whether the Council could place an item on the agenda. The Sunshine Law anticipates that items may be added to an agenda and that an executive session not anticipated in advance need not be listed on a board’s agenda. $HRS § 92-7 (providing that notice of an executive session necessary only “when anticipated in advance” and explaining the requirements for adding an item to an agenda that has already been filed). Moreover, while section 92-5(b), HRS, bars a board from discussing matters not directly related to purposes listed in section 92-5(a), HRS, one of the permitted purposes for an executive session is “[t]o consult with the board’s attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities, and liabilities.” HRS § 92-5(a) (5). OIP therefore believes that in appropriate circumstances, a board may go into an unanticipated executive session with its attorney to discuss its ability to add an item to its agenda, so long as the board does not discuss the underlying item proposed to be added.

The question remaining to be resolved is whether the Council’s executive session discussion was, in fact, limited to consultation with the County Attorney regarding the Council’s ability to add the proposed item to its agenda by vote. As mentioned above, despite having been asked to provide its position on the complaint, including a detailed explanation, the Council did not provide any explanation of what it actually discussed during the executive session. OIP is required to receive and resolve complaints under the Sunshine Law, and in doing so to strictly construe the exceptions to the open meeting requirement against closed meetings. HRS §S 92-1 and 92F-42(18) (Supp. 2011). Thus, when a member of the public complains to OIP that a Council executive session was not in compliance with the Sunshine Law, the Council has the burden to justify that executive session to OIP. See id. In this case, the Council failed to meet its burden when it provided no response to OIP.

Additionally, the facts presented by Requester raise a reasonable inference that the executive session discussion was not limited to the apparent topic for which it was called, which was consultation with the County Attorney regarding the Council’s ability to add a proposed item by vote. In the public portion of the meeting, the Chair and County Attorney had already announced their conclusions on the question the board was supposedly considering, when they stated that Mr. Bynum’s motion to add a resolution clarifying Rule 10 to the agenda could not be voted on and the proposed resolution could not be added to the agenda because the issue was of reasonably major importance and action thereon would affect a significant number of persons. The County Attorney repeated his opinion when the Council emerged from the executive session, which suggests that neither the Council nor the County Attorney was primarily concerned with protecting the County Attorney’s advice on the question of whether the Council could add the proposed item to its agenda by vote. The length of the executive session, approximately an hour, also suggests that the Council’s discussion was not limited to that fairly straightforward legal question.

From the length of the session and the fact that the County Attorney’s advice was publicly announced, OIP infers that the Council’s discussion was not limited to consultation with the County Attorney regarding the Council’s ability to add the proposed item to its agenda by vote. Because the Council failed to rebut this inference by explaining what discussion occurred during the executive session and why it properly fell within an executive session purpose, and did not in any way attempt to meet its burden to justify the executive session, OIP cannot conclude that the executive session was allowed under the Sunshine Law.