TEXTGATE AND 2491: THIS TIME IT'S PERSONALLY "DEVICIVE"

TEXTGATE AND 2491: THIS TIME IT'S PERSONALLY "DEVICIVE": If you want answers you have to ask questions. And if you want the right answers you need to ask the right questions.


But in the spirit of "ask me no questions, I'll tell you no lies" if you ask an incomplete question you're likely to get an incomplete answer.


When we broke the "Textgate" story last week we weren't the only ones concerned as to whether or not there were improprieties in the exchange of text messages between Mayor Bernard Carvalho Jr.'s Communications Director and chief political advisor, Beth Tokioka and then-outgoing Councilmember Nadine Nakamura- who was to become the Mayor's Managing Director, on November 1- as well as Councilmember JoAnn Yukimura, during the marathon October 16 council meeting at which Bill 2491 was passed in the wee hours of the 17th.


Were these "texts" government records and subject to disclosure under state law? In this case the answer was apparently dependent on who was doing the asking and what they asked. But when the answer came in and it was "no" we certainly weren't going to leave it to Tokioka, Carvalho and the county attorney to have asked the question the way we would have.


It seems that councilmember Gary Hooser was also concerned about the texts and sent a memo to Hizzonah basically asking "WTF?"


Here's Hooser's memo including three questions:

It has been brought to my attention and is being asserted by credible members of the community that members of the Kaua'i County Administration may have been communicating directly with a member or members of the Kaua'i County Council via numerous text messages during the active deliberation of Bill No. 2491, Draft 2 and while the Council meeting was officially in session on October 15 and 16, 2013.

Further, it is alleged that the nature of the text conversations demonstrated an intent of the County administration to influence the vote and actions of members of the Council on Bill No. 2491, Draft 2.

Please respond to the following:

1. During the October 15, 2013 Special Council Meeting in which Bill 2491, Draft 1 was being discussed, were members of the Administration who were present in the Council Chambers engaged in texting, or E-mailing Councilmembers while the meeting was in progress?

2. If the answer to #1 is "yes," was the nature of their communications such that they were intended to influence the direction of Councilmembers actions or the outcome of the deliberations? -

3. Did members of the Administrative text then Council Vice Chair Nakamura, during the Council Meeting and discuss or encourage her to encourage other Councilmembers to support a deferral of Bill No. 2491, Draft 1? A response by November 7, 2013 is requested.

Although the questions were of a general nature and just asked to confirm whether the incident took place- perhaps with a subtext of questioning the ethics rather than the legality of the texts- Carvalho, apparently in, let's call it "deep consultation" with Tokioka, chose to respond in detail, admitting, in answer to question #1 that "(y)es, some text messages were exchanged" and described the texts- pretty much as we described them but with a "nothing to see here- go back to your homes" spin to it all.


As often happens when people are asked about ethical matters, they responded with the "we didn't do anything illegal" retort. It's one of the first rules of spin- if you can't deny whatever they are saying, deny something else... as long as you deny something.


The second question, predicated on the a "yes" answer to the first, was about whether the texts "were such that they were intended to influence the outcome of Councilmembers (sic) actions or the outcome of deliberations." If there was any subtext (no pun intended) of a legal question being asked it was whether the texts may have violated the state Sunshine Law had there been a third councilmember involved, thus violating the "serial communication" rule that bans attempts to circumvent the prohibition on three or more councilmembers "deliberating toward a decision" by using a third party to communicate.


It should be pointed out that nowhere did the administration's memo address the question of whether there was or was not a third councilmember involved in the texting that day.


The answer to question #2 was non-responsive at worst, contradictory at best saying "No" but then going on to say the texts were to "clarify and reaffirm positions on the deferral" taken in previous discussions on 2491 which certainly would be part and parcel of "deliberating toward a decision."


Dictionary.com's defines deliberation as "careful consideration before a decision."


Of course the administration isn't covered by any of the "open meeting" provisions of HRS 92- aka the state Sunshine Law- anyway and there was no mention of a third councilmember being involved. But the administration is subject to the open records provisions of HRS 92-F, the Uniform Information Practices Act (UIPA).


The third question was answered- or not answered as the case may be- much as the second. The question of whether Tokioka's texts encouraged Nakamura to support or encourage other councilmembers to support a deferral of 2491 was answered "No." But then they admitted that they had already discussed the deferral and stated that Tokioka never encourag(ed) her to make a motion to defer (emphasis added)," thus answering a different and much more restrictive question than the one that was asked.


A motion to defer brings a meeting to a grinding halt no matter what is going on and if it passes the meeting is adjourned to a later date. There is no debate or further discussion once the motion is made.


But anyway this is all the preliminary to the "one final comment" that was added, unsolicited, at the bottom of Carvalho's memo.


It says that the county attorney contacted the OIP and asked "(i)s it a violation of the sunshine law if a member of the administration texts a member of the council during a council meeting (and vice versa)?"


This rather self serving question is, as we said, impossible since the Sunshine Law pertains to meetings of "boards" such as the council, not to administration members.

But it's the second question that proves the old adage "garbage in, garbage out."


The question asked is: "Must personal (there's that equivocal word) texts sent during a council meeting be disclosed as a public record under UIPA?"


They might as well have asked the childhood conundrum "if you're flying in a canoe and your ears fall off, how many elephants can you fit in a dog house?" (the answer is, as we all know "13- ice cream has no bones) for all the clarity it contained.


But let's have fun and try to make sense of it. First of all these were not "personal" texts, there being no discussion of, let's say, family, the weather or Beth's level of angst and anger after all these years at her ex-hubby, State Representative James "Put-Your-Pants-On, Jimmy (Again)" Tokioka.


They apparently claim the texts were "personal," which could mean- take you pick of the three- 1) those made on what's commonly called a "'personal' hand-held-device," 2) those made on a "phone" bought and paid for by her "personally," or 3) those containing messages of a "personal" nature.


So when they asked the question of the Office of Information Practices (OIP), which oversees both the Sunshine Law and the UIPA, as a group of lawyers of course they answered the legal question that was asked saying:


(P)ersonal texts are not considered government records under the UIPA as long as there is no nexus between the technology used and the County. Meaning that as long as the County is not paying for the phone, does not reimburse for usage of the phone and the method of communication is not part of the County's electronic database, i.e. emails etc., then personal texts are not considered public records.


What this seemed to say to us was that someone would be permitted to get around the UIPA by simply conducting official business on their own personal texting device rather than a county-paid-for phone and storing the texts there.


So we got to wondering what would happen if we asked the question with a little more precision.


We sent an email to OIP asking three different ways whether they could get away with this. We wrote:


"I am writing to confirm what Kaua`i County official Beth Tokioka says is her understanding of an OIP position regarding texts that were sent between her and Kaua`i County Council members during the Oct 16 meeting. (See: http://lauhala.com/hinano/20131119-084957-mayor-response-to-text-memo-11.15.13.pdf at the very bottom).


At issue is whether a text message sent from an official's personal devices- those not owned or distributed by the county- is never subject to the UIPA even if official county business is conducted via that text. However her explanation did not precisely ask the question of whether, if official county business is conducted via a text sent on an official's personal device, that text is public information.


To make it clear, I am asking whether the UIPA can be circumvented by an official by using his or her own personal smart-phone or other texting device (not issued or paid for by the county) to conduct official county business that otherwise would be subject to disclosure."


And of course we got a response that was worthy of the query.


I am responding to your e-mail correspondence below regarding whether the Uniform Information Practices Act (Modified), chapter 92F, HRS (UIPA), can ever apply to text messages on agency employees' personal cell phones.

As you may know, the UIPA governs the public's right to inspect or obtain copies of "government records." The term "government record" is defined as "information maintained by an agency in written, auditory, visual, electronic, or other physical form." HRS Sec. 92F-3 (2012) (emphasis added). Ordinarily, text messages on a personal cell phone would not be "government records" because an agency is not maintaining them. However, if, hypothetically, an agency tries to circumvent the Quip’s public disclosure requirements by storing records on a personal cell phone, an argument could be made that these records may be considered to be maintained by the agency as government records under the UIPA.
Yours truly,
Lorna Araucanian
Staff Attorney


So is Tokioka "circumvent(ing) the UIPA's public disclosure requirements by storing records on a personal cell phone?" Given not only her somewhat pathetic attempt to deny that she was conducting official business on the phone but her attempt to get a ruling that she could store communications regarding that "official county business" on her own personal cell phone without having to provide them under the UIPA, we'd say that the case can easily be made that she was intentionally circumventing the law and should be required to provide those records pursuant to a request.


We haven't filed a formal "complaint" or asked for an OIP investigation and hope that this article will serve as one, as has happened in the past. Nor have we made an official request for the texts and gotten an official denial, even though the memo could be considered to constitute a denial.


But the sneaky and some might say sleazy way this whole affair was conducted by the administration and the fact that it took a citizen to notice what was going on and blow the whistle- without which the existence of the documents would never have been known- means we should have the right to see all official text communications regarding Bill 2491 conducted during the October 16th meeting and stored on Beth Tokioka's personal cell phone.

(PNN) HOOSER VOTES "NO" TO SPYING SOFTWARE; COUNCIL OKAYS FEDERAL AID TO BATTLE "DOMESTIC TERRORISM"

HOOSER VOTES "NO" TO SPYING SOFTWARE;
COUNCIL OKAYS FEDERAL AID TO BATTLE "DOMESTIC TERRORISM"


(PNN) Councilmember Gary Hooser was the only one to vote against allowing the KPD to accept computer software designed to allow the sharing of intelligence regarding "domestic terrorism,".


The measure passed the Kaua`i County Council this morning (Wednesday 11/20) by a 5-1 vote.


According to a memorandum from KPD chief Darryl Perry the action allows local police to "accept and utilize CrimeNtel, a Windows based software, through the Kaua’i Police Department’s (KPD) collaboration with the Hawai`i State Civil Defense Division of the Department of Defense, for law enforcement purposes and to bring KPD in compliance with the 28 Code of Federal Regulations (CFR) Part 23."


During discussion, members of KPD said hypothetically that one uses of the software could be to track and surveil a suspect in the alleged multiple incidents of vandalism of genetically modified (GM) papaya trees on Hawai`i Island over the past few years.


The Hawai`i Island County Council voted yesterday to ban genetically modified organisms (GMO) but exempted papayas.


According to an attached explanatory sheet also sent to the council by Perry, the federal regulation "governs interjurisdictional and multijurisdictional criminal intelligence systems that are operated by or on behalf of state and local law enforcement agencies and that are funded with certain federal funds."


Hooser indicated he was troubled about the trend toward the sacrificing of people's rights and freedoms in exchange for supposed increased security.


According to Perry's memo "due to its assignment to the Criminal Intelligence Unit, KPD is precluded from publically (sic) releasing any detailed information about the new software."


GM papaya trees have been cut down on Hawai`i Island and representatives from KPD said, under questioning by Councilmember JoAnn Yukimura, that if the Hawai`i Island Police Department (HiPD) told them there was a suspect who was living on Kaua`i they would be able to use the software to surveil the suspect and share the information with HiPD regarding the acts of what they termed "domestic terrorism."

MAYOR'S POLITICAL ADVISOR TOKIOKA CAUGHT EXCHANGING TEXTS, DISCUSSING STRATEGY, WITH NAKAMURA, YUKIMURA, DURING FINAL 2491 MEETING; COUNTY MANAGER-TO-BE SEEN COMMUNICATING WITH MAYOR THROUGH GO-BETWEEN PRIOR TO "FINAL" VOTE

MAYOR'S POLITICAL ADVISOR TOKIOKA CAUGHT EXCHANGING TEXTS, DISCUSSING STRATEGY, WITH NAKAMURA, YUKIMURA, DURING FINAL 2491 MEETING;
COUNTY MANAGER-TO-BE SEEN COMMUNICATING WITH MAYOR THROUGH GO-BETWEEN PRIOR TO "FINAL" VOTE


It was just before 3 a.m., about 45 minutes before Bill 2491 was passed by the Kaua`i County Council last Oct. 16, when then-Councilmember, and soon-to-be top deputy to Mayor Bernard Carvalho Jr, Nadine Nakamura, told the assembled that she was going to move to defer the bill based on considerations of her future job rather than her then-current one.


But if the bill's introducer Councilmember Gary Hooser was, as he said "flabbergasted" at what co-introducer Tim Bynum called Nakamura's "highly inappropriate and unethical" intentions, their heads might have spun around a few times with steam emanating from their ears if they had known that Nakamura had been discussing strategy with and taking directions from Carvalho's chief political adviser, Beth Tokioka, with whom Nakamura had been texting all day on the 15th and into the night.


According to Jennifer Ruggles, who was attending the meeting on behalf of "Pesticide Action Network," one of the many members of the "Pass the Bill Coalition," she was sitting behind Tokioka and began to notice something out of the ordinary was taking place.


Ruggles told PNN in an email that she noticed Nakamura and Councilmember JoAnn Yukimura seemed to keep looking in her direction.


"At first it seemed like they were looking at me but then I realized they were constantly making eye contact with Beth. All three of them had their phones in their hands. I could see Beth's phone clearly with Nadine Nakamura's name in big letters at the top and I could see they were texting back and forth. They did this through out the entire meeting. Beth copied and pasted messages received from Nadine and JoAnn and pasted them into a group message with (then County Manager) Gary Heu and Mayor Carvalho. Sometimes she explained to Gary and Bernard what was happening in the meeting."


Ruggles said she jotted down snippets of the conversation as Tokioka and Nakamura discussed, among other things, strategy, how other councilmembers indicated to Nakamura they would vote and what Nakamura had discussed with other councilmembers regarding the mayor's deferral request. Tokioka also exchanged texts with Yukimura pushing her to ask the mayor, as he was testifying before the council, about a potential veto.


"I felt concerned because it didn't seem ethical that the person who works most closely with the mayor, who after his presentation revealed the administration's agenda in opposition to the bill, should be lobbying JoAnn Yukimura and conspiring for a deferral with Nadine Nakamura during a public hearing," Ruggles said.


"The lobbying was especially inappropriate because it was happening during public testimony. Beth initiated these conversations disregarding the many people who had slept overnight to have their voice heard."


The texts made plain that Tokioka was directing Nakamura as to the political machinations that might lead to a deferral of the scheduled final vote on the bill- communications which might well be seen as a quid pro quo and a violation of the county's Code of Ethics in offering her vote to defer in exchange for appointment to the position which Nakamura would take 16 days hence.


"Defer and delay" had been the way proponents of the bill characterized the tactics used by opponents of the bill as it wound its way through a first reading, a public hearing, multiple committee meetings and scores of hours of testimony. A deferral of the scheduled final vote was seen by most to be the potential "death" of the bill.


The revelation of the texts also make apparent that the mayor had already decided that if it wasn't deferred he would veto the bill with Tokioka telling Yukimura to make sure that if she asked the mayor about a possible veto that she put it in the context of a deferral as an alternative.


The bill- which was eventually vetoed by the mayor and is up for an override vote at a special council meeting this Thursday Nov. 14 at 9 a.m.- would require detailed disclosure of the use of "Restricted Use Pesticides (RUP)" and the associated "Genetically Modified Organisms" (GMO) by the five chemical companies at their west Kaua`i experimental facilities where they claim to be "seed corn farmers."


The chemical spraying is alleged to take place 240 days a year with multiple RUPs used each spraying day, on fields adjacent to homes, schools, hospitals, waterways and roads according to disclosures made in a federal court lawsuit against one company, DuPont-Pioneer, on behalf of Waimea residents.


The bill also calls for buffer zones as well as a study of the use of RUPs and GMOs which contain genetic pesticides designed to withstand the poisons used to kill surrounding weeds.


Dozens of Kaua`i physicians have said that they have noticed a spike in illnesses such as skin lesions, respiratory problems and certain rare birth defects which, they say, requires further study.


RUPs are more dangerous than unrestricted pesticides- a term inclusive of herbicides- that can be purchased over-the-counter at any hardware store or garden shop. RUPs require a permit to purchase and use.


According to the real-time captions of the meeting (the minutes are not yet available), shortly before 3 a.m. at the meeting which had begun at 10 a.m. the previous day, the sleep deprived Nakamura told the council of her fidelity to her future employer, the mayor, as opposed to her then-current job representing her constituents as a councilmember, saying:


You know, earlier, and I'm proposing this, just because I know that in a few weeks I'm going to have to be involved in implementing this law. And I believe based on the transient vacation rental experience, that if we do not pay attention to how we enforce the laws that this body creates, we run into a lot of problems. Just in the number of contested case hearings (in enforcing out the law) that is a result of not good implementation, the number of appeals that our county attorneys have to deal with, the hearings for renewals, cease and desist orders all because we did not pay attention to the implementation of a law.


So the mayor asked for time to establish and clarify roles and responsibilities to develop a memorandum of agreement, a cooperative agreement and I just feel that we should -- this is not a political ploy as people have made it out to be. The killing of this bill or standing down to bullies, this is about really taking a close look and developing relationships with the state entities, who we have to work with to implement this law and unfortunately, that is something that I need to consider. So I'm just putting that on the table.

Hooser responded to Nakamura's statement saying that he was:

"flabbergasted to put it mildly after getting here to 10 to 3:00 A.M. And looking through the amendments and having the vice-chair lead the efforts on the amendments and then to hear support for the mayor's deferral after we had such extended discussion earlier. Yeah, flabbergasted, disappointed, you know? It is no question and this is not to put to anybody's personal intent, but a motion to defer in my opinion is a motion to kill the bill.

And again, it's not to intent, if the audience could please bear with me, this is my opinion. I think if we defer this bill, given the circumstances of a change on the council, it will be deferred again. If we wait to the department of Ag, it will be deferred again. And we have come so far and this community has come so far. They have been here for three days, some of these people, okay? 36 hours. Counting on us to do what is our responsibility. We have talked about it for months. The genesis of this bill is about a year. We have crafted amendments which significantly weaken the bill. and we continue to weaken the bill, catering to the industry and I have accepted that.

As disappointed as I am, I have accepted that because the core of what we need to do, the right to know is still intact. And we cannot count on the state to do this. We cannot count on the mayor to do this. We cannot count on Russell Kokubun to do this and it's up to us. So I am hopeful that we will not have the votes to sustain or to carry a vote to defer and I think that would be just an affront is to put it mildly to our community and to the work that we have done on this issue. And that is it. Thank you.


But if Hooser wasn't direct enough, Bynum made no bones about how he felt about Nakamura's shirking of her responsibilities as a council member in favor of her boss-to-be's request for deferral. After asking her if she intended to move and vote for a deferral and getting an answer of "yes," Bynum said:

I don't even know how to respond to that, but I have to respond from my heart. It's no secret that I'm a huge supporter of Nadine Nakamura. I have made positive statements about her leadership and her work many times. I'm disappointed she is not going to be here on the council to provide that leadership, but I honor the decision that she made to work for the mayor. But until you resign, you represent the people of Kaua`i. And for you to say that you have to consider that next week you are going to work for the mayor and have to implement this is highly inappropriate and unethical.

As soon as you resign from this body, then you need to do the mayor's bidding. But until then, you already voted for this bill, Nadine and stated your intention as a councilmember. That is all I have to say.

The mayor had said in earlier testimony that day that he was asking for the deferral so that the state could have time to work out a deal for "voluntary," and broad "aggregate" disclosures by the chemical companies sometime in the undetermined future. That would presumably be done via the HRS Chapter 91 Administrative Rules process which can sometimes take years especially if there's opposition which of course is expected from the chemical companies.

That proposal had been ridiculed by bill proponents after Governor Neil Abercrombie proposed it at the behest of state legislators from Kaua`i in what many saw as an attempt to derail the bill which, on the other hand, requires that the public to be notified of the specific day, time, type and location of each spraying of chemicals.

Abercrombie took $34,400 in campaign money from the biotech industry in the last election cycle.

Carvalho, who recently took $4000 himself, eventually vetoed the bill on the last possible day to do so, October 31st- the day before Nakamura took office as his new "County Manager," the mayor's second in command.


This ensured that the override session would take place after Nakamura left the council leaving it with only six members and little margin for error after the 6-1 vote to pass the bill.


Had the mayor vetoed the bill the day after it passed it would have left plenty of time for Nakamura, who eventually voted for the bill that night, to vote on the override which specifically requires five votes according to the county charter. It was presumed that Nakamura would have voted to override the veto despite her intention to defer it on the 15th especially since she had been one of the two authors of the amendments that so severely changed the bill, including substituting the self-styled, facilitated-roundtable, group of stakeholders type of study that wound up in the bill in the stead of the a full Environmental Impact Statement (EIS) that was proposed in the original bill.


But in his veto message Carvalho barely cited the "voluntary disclosure" state proposal and rather, based his veto on a county attorney's (CA) opinion essentially taken from opinions written by the lawyers for the chemical companies, Marjery Bronster and Paul Alston.


Most points in the CA's opinion were refuted in a letter to the mayor and council signed by dozens of local attorneys. No private attorneys not associated with the chemical companies that we could find have said they agree with the CA's opinion while slews of lawyers across the island and country have roundly rejected it.


As to Thursday's override meeting of a six-member council most political observers think that there are at lest four votes to override the veto but the fifth of the six that voted "aye" (Nakamura being the sixth in the 6-1 vote), Councilmember Ross Kagawa, has said he hasn't made up his mind as to whether he will vote to override the veto.


A meeting is scheduled for Friday to pick a seventh councilmember after the council rejected a request from Hooser and Bynum last week that a seventh member be named by the council before the override meeting.


The first irony in all of this, one that Bynum and Hooser intimated at, is that most of the midnight-hours at the Oct. 15-16 meeting had been spent proposing and passing amendments that were written, researched and insisted upon by Nakamura. She and Yukimura had worked together throughout the process since discussion with one other councilmember is permitted under the state's Sunshine Law.


Although virtually every one of the bill's supporters acknowledged that these amendment "watered down" the bill, almost all of the bills proponents still support the bill as a "step in the right direction."


Those amendments were personally rammed onto the bill by Yukimura who, during an uncharacteristic, often contentious and anger-tinged, hours-long "tour-de-force," managed to foist them on the other three "yes-vote" councilmembers because without her and Nakamura's "yes" votes the bill would have only had the three votes- Hooser's, Bynum's and Furfaro's.


Kagawa, based on prior statements and actions, was at the time not expected to support the bill but, apparently at the last minute, he decided to vote against deferral and for the bill. The other Councilmember, Mel Rapozo, voted against the bill as he had indicated he probably would ever since the bill was introduced.


Kagawa and Rapozo were the ones who approached the Kaua`i legislative contingent to ask them to ask the governor for the "voluntary disclosure" measure.


The second irony is that much of the content of the Nakamura/Yukimura amendments was cited by Carvalho in his veto message as being the very provisions that were "legally deficient" and the reasons for his override.


In essence, Nakamura had set up the bill for veto by crafting and introducing the measures that her future boss would use as a reason to veto the bill.


PNN plans on filing an open record UIPA request for Tokioka's texts.


Thursday's meeting is expected to be a long one with public testimony by both the bill's proponents and the chemical company employees and their families and friends taking one more day off to be there and speak. Although each is actually permitted by law to speak for a total of six minutes Chair Furfaro has limited testimony to three minutes throughout the process.


Councilmembers have said that if the mayor's veto is not overridden they will introduce the bill again once a seventh member is appointed. Members of the community have also begun organizing a ballot initiative on the matter.


The county will be live streaming the meeting (at http://kauai.granicus.com/MediaPlayer.php?view_id=2&clip_id=1211) and we will be live blogging and providing commentary and discussion on Facebook starting at 9 a.m.