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.

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