WHY, WHY, WHY, DELILAH

WHY, WHY, WHY, DELILAH: One of the oddest things about the current Kaua`i Police Department complaints against Assistant Chief Roy Asher and is why the reported October complaint against Asher by Officer Darla Abbatiello-Higa seems to have fallen into a black hole while the January complaint against Quibilan spurred a full-fledged inquiry by Mayor Bernard Carvalho, Jr.

The reason may be the way the two complaints were filed.

According to an administration source the October complaint never reached the mayor's office in the first place but rather was filed internally and handled within KPD where an investigation was apparently launched. Whether that investigation is still active is unknown.

All we can say is that in January when the complaint was reportedly filed against Quibilan it was sent to both the Kaua`i Police Commission (KPC) and Carvalho.

The matter is on tomorrow's KPC agenda, scheduled for no less than three executive sessions. So why then did Carvalho feel the need to launch his own investigation and suspend Chief Darryl Perry, especially since there is nothing in the county charter that specifically gives the mayor the power to deal with the internal affairs of the department? In fact, the commission is designated as the entity that hires and fires and so, presumably, disciplines the chief although the "discipline" part is not specifically spelled out in the charter.

Apparently Carvalho found himself in an untenable position, especially given the likelihood that there will be yet another lawsuit involving, if not sexual harassment then certainly, "creating a hostile work environment" as has been reported is the subject of both complaints.

If he were to ignore the fact that the complaint was sent to him and wait for the commission to act, when the complaint was revealed and his name was on it he surely would have been accused of inaction in the face of this type of complaint. That's something of which the county has been accused over and over during the last decade plus, as multiple sexual harassment and hostile work environment cases have shown not only guilt but distinct attempts by the county to stonewall and even cover up the events by failing to launch timely investigations... or launch them at all.

Whether or not Carvalho's actions will be found to have been in violation of the ambiguous provisions in the charter, perhaps worse for him politically would have been to have it be known that the complaint was addressed to him and he failed to act post haste.

That being said all this criticism- such as a scathing editorial in Saturday's Honolulu Star Advertiser condemning Carvalho's attitude toward informing the public of some of the details that would not have violated anyone's privacy- could have been avoided by being a bit more open as to why he took the action he did.

The pay-wall protected editorial said, in part

Kauai residents have been left in the dark after Mayor Bernard Carvalho placed on leave the island's police chief and two assistant chiefs due to what he calls an "employee-generated complaint," which can mean just about anything. The mayor should provide more information about the allegations surrounding the three highest public officials entrusted with safeguarding the island's public safety...

The mayor added in a prepared statement, "It is standard procedure to keep all information relative to the complaint confidential while the investigation is in process. This is essential to safeguard the fairness of the process and the rights and privacy of all involved."

Of course, that depends on what the public already knows or soon will learn. When police chiefs were put on leave recently in other parts of the country, the mayors in each of those cases acknowledged the issues that already had been public knowledge: In Oklahoma, the chief's arrest on drug charges; in Texas, misuse of public funds; in Connecticut, sexual harassment; and at the University of California at Davis, pepper spraying students.

But in a small town in New Hampshire, residents are still left wondering why the police chief resigned Thursday, more than four months after he was put on paid leave that totaled $36,000.

Clearly, there is compelling reason for the public to know the circumstances under which their paid public officials are placed on leave. Kauai's situation is no different...

Mayor Carvalho read the statement to reporters that the "content of the complaint" will be kept secret "while the investigation is ongoing," but he would not say whether it would be made public afterward.

"This is not the first time an employee has been placed on leave pending the outcome of an investigation," he read, "and it should not be construed to be disciplinary in nature."

However, the police chief is more than your garden-variety county employee. Residents deserve to be advised about the nature of the allegations being made against the man who has been in charge of the county's law enforcement and his two top assistants.

But perhaps the most telling part of the editorial described what happened after Carvalho's press conference on Thursday where he read a prepare statement that revealed just about nothing.

Carvalho refused to answer questions by reporters on Thursday, directing them to his communications team. When asked whether that team would answer questions that day, he responded flippantly, "Welcome to Kauai." The county attorney has advised all county employees to remain silent, and Kauai police officers are telling reporters that they are under orders not to talk.

This just underlines not just Carvalho's inability to think and speak coherently on his own without displaying foot-in-mouth disease, but the amateurish nature of Carvalho's "communications team" which is headed by Beth Tokioka- the so-called "brains" behind the last three administrations.

Tokioka has no experience as a journalist and has gotten away with Carvalho's "Welcome to Kaua`i" attitude because the local newspaper has been, with rare periods of coherency, an administration lap dog.

All this does is to confirm the widely held view that Kaua`i is "a separate kingdom" where neither the ABCs of good public relations nor the rule of law apply.

It takes a shakeup of the proportions of the current debacle to get the attention of the outside press. The only problem is that when this story fades, so will the attention to the finger that Kaua`i mayors have been giving to the rest of the world for generations.

HORSESH*T OF A DIFFERENT COLOR

HORSESH*T OF A DIFFERENT COLOR: Stumblebums, troglodytes and mental midgets- oh my.

Those are just some of the words that come to mind over Mayor Bernard Carvalho Jr.'s "Goo-goo-ga-joob" response to charges he had no authority to place Kaua`i Police Department (KPD) Chief Darryl Perry on leave yesterday- an action reportedly taken after Assistant Chief Roy Asher and Ale Quibilan were the subject of a "creating a hostile work environment" complaint from- guess who- Officer Darla Abbatiello-Higa.

"Creating a hostile work environment" has cost the county millions and these guys are apparently still at it.

"Un-freakin'-believable," as one former Kaua`i official repeatedly yelled into the phone last night.

Perhaps the best line we heard yesterday came from "KPD Blue" author Anthony Sommer who wrote, regarding Carvalho, "maybe he just wants to keep the tradition of 'every Kauai mayor gets to fire one police chief' alive."

But if Asher and Quibilan are Neanderthals, it pales in comparison to Carvalho's "I am the Eggman, They are the Eggmen, I am the Walrus" statement that somehow the county charter gives him the right to place Chief Perry on leave.

Though he cites charter section 7.05, that section has 13 different provisions in it. But assuming the first one is the one to which he refers, it plainly begins with the phrase "unless otherwise provided" which, although Carvalho and real mayor Beth Tokioka disingenuously and conveniently chose not to read this part, means that the operable section, 11.04 supersedes 7.05(A). That's the section that says the police commission is the body empowered to hire and fire the chief and therefore apparently to whom he is responsible.

But not only is Carvalho tone deaf to the limits of his own authority, he apparently hasn't read the sunshine law either.

In his "statement" he explained that he contacted the chair and vice chair of the police commission and apparently discussed the matter with them. Since the mayor sits as a non-voting "ex-officio" member of all boards and commissions, this is a blatant violation of prohibitions on more than two members of a board discussing matters that are before that board, outside of a duly agendaed meeting.

The matter is on the police commission's agenda for a special "executive session" meeting next Tuesday.

Oh- and one last thing. Though the county has been tight-lipped about the type of leave Perry and the two assistant chiefs have been forced to take, one report may indicate it's not just some routine, non-disciplinary type.

Today's pay-walled Honolulu Star Advertiser reports that "(a)ll three were ordered to turn in their equipment."

You don't take away an officer's- or especially a chief's- gun and badge without some serious wrong-doing behind the action.

Another question that comes up is why if, as reported, the complaint against Asher was filed last October 24, it did not show up on the October, November, December or January police commission meeting agendas. It just goes to show how seriously the county continues to take charges like this.

We haven't been directly privy to the information that apparently came from either Abbatiello-Higa or Perry or both but it certainly wouldn’t be being spread by almost every media outlet in the state unless the source was unimpeachably "close to Abbatiello-Higa" or "has direct knowledge of the investigation" as they have characterized their source.

But the real issue is that even after efforts by current Councilmember Tim Bynum and former Councilperson Lani Kawahara to put an end to the sexual harassment that pervades the county offices, it continues.

A letter from the two dated October 13, 2010 states that the county "has repeatedly failed to respond appropriately to allegations of sexual harassment and a hostile work environment."

Yet the Carvalho administration hasn't done a thing other than have a few "training sessions." Many of the harassers- even some of those that cost the county big bucks- are still on the job in positions that actually ARE under the direct supervision of the mayor. Funny how he's willing to butt in where he's apparently forbidden by law to do so but when it comes to his own hand-picked cronies it's a "hand-off" policy that pervades.

If we didn't know better, we might think there was some kind of corruption going on in the administration.

AN UNSAVORY MORSEL

AN UNSAVORY MORSEL: We couldn’t have been more than two or three years old when we somehow became aware- we suspect it was via our fount of all knowledge in those days, Bug Bunny- that we had been missing out on a culinary treat called mock turtle soup.

Of course we immediately made the obvious inference- they were made from mock turtles.

We’d heard of and seen lots of kinds of turtles. Over the years we assumed that, as the case is many times, it was like places called “Bear Creek” that had no bears- it was “just the name of the turtle.”

Over the years Lewis Carroll did nothing to dissuade us from our presumptuous assumption and so a decade later a trip to a fancy restaurant and a bowl of weak broth with some soggy crackers made a, well, mockery of our postulation.

We had gotten what we had long craved only to find out it wasn’t at all what we really expected and wanted.

So it was a bit of deja vu for us today after tracking down the answer to a question that people have been asking us for a couple of months now- who the heck if Sarah Blane?

The answer- Blane is our very own mock turtle.

At first we feared the worst- that references to Blane as “Kaua`i county spokesperson” meant that our old friend Public Information Officer (PIO) Mary Daubert might be on the outs. But Daubert’s name continued to be preceded by the same title.

Observation yielded another of those assumptions- Blane’s name seemed to be attached to county press release emanating from the Kaua`i Police and Fire Departments.

Could it really be true? After years of complaints from the public and KPD chiefs that they needed their own embedded PIO in order to speak directly to the public- rather than having to filter everything through the mayor’s office and his or her PIO- KPD had their very own spokesperson?

After all, KPD is set up by charter to be an independent department with a police commission, not the mayor, doing the oversight. They don’t need to have the contents of each and every communication with the public filtered through the political whims of the mayor.

So, after a month or so of seeing Blane’s name attached to police and fire statements today we asked Mary “whassup?”

And, as if we couldn’t have predicted it, she wrote:

Sarah Blane is the newest member of Kaua`i County’s communications team. The other members of the team are Beth Tokioka, director of communications, and myself, public information officer. Sarah joined the Mayor’s office staff on Dec. 1 at the start of Mayor Carvalho’s first full term. Her title is public information assistant. She is responsible primarily for media communications for KPD and KFD, the county’s Facebook page, and assisting with community outreach efforts.

In an administration where even the smallest bit of PR minutia is carefully controlled we’d have to be as naive as a two year old searching for a delectable misnomer to think that any KPD spokesperson would be situated in KPD and answer to the chief.

We can only imagine how Chief Darryl Perry really feels about this after having had his, er, legs cut off while he was off island during the anti-marijuana rally fiasco with a deceptive press release going out on KPD letterhead under his name- a release that only hours later proved to be a lie in order to cover-up the fact that the rally was cancelled due to an ACLU compliant, not the weather.

So pity poor Sarah the county’s mock turtle. She aspires to be real meat but ends up nothing more than a mouthful of watery mush.

-----

We're taking a long weekend. Be back next week.

GET SMART

GET SMART: Though there’s been a deafening cone of silence over County Attorney Al Castillo’s response to the Hawai`i Chapter of the American Civil Liberties Union’s (ACLU) letter that led to the cancellation of the county’s anti marijuana rally last Thursday, PNN has learned that Castillo has apparently opined that the ACLU was correct in telling the county that using county resources for the activities is illegal.

And to no one’s surprise Prosecutor Shaylene Iseri-Carvalho is none too pleased and has written two nasty letters to Castillo saying so.

Although we weren’t able to obtain Castillo’s “confidential” letter- which was addressed to Iseri, each individual council member, the Kaua`i Police Department (KPD) Chief Darryl Perry as well as three administration honchos- it is obvious from Iseri's responses, which were also “cced” to Mayor Bernard Carvalho, that Castillo supported the ACLU’s position.

In response to Castillo’s original email Iseri wrote

Subject: RE: Anti-Drug Rally Scheduled for February 17, 2011

Aloha Al,

It is quite unfortunate that you chose to send out an email with that tone. You are violating all of the county employees’ rights who chose to attend the rally on their own time. You are suppressing their First Amendment rights and your actions should not be condoned. I will be submitting a letter to the oversight body to review your actions. I have already received calls about you and other County officials that are prohibiting people from attending, even after work hours. Please stop doing this, as I believe, this exposes the county to significant liability.

Further, please be aware that your Deputy County Attorney, on county time, testified on a televised Council meeting with you present, to strongly oppose these same bills, that “other county officials” you make reference to in the press release, exposed the county to significant liability. Yet, I don’t see any reference to your office taking responsibility for its use of county resources to oppose legislation. You were present at the Council meeting and said ABSOLUTELY NOTHING. There is absolutely no authority for the County Attorney’s Office to testify in criminal matters. Let’s call a spade a spade. It is inappropriate to place blame when your office is guilty of the same actions. We are one County and to try to place blame when you were present when all this was happening is totally inappropriate, unprofessional and not in the County’s best interests.

Mahalo,

Shay

But the ACLU did not say that there was anything wrong with employees using their own time and resources to lobby on legislation. In fact they said the opposite in their original letter writing:

At the outset, we note that the American Civil Liberties Union ("ACLU") has long advocated for individual free speech rights, regardless of the content of that speech. Additionally, the ACLU supports and defends the right of government officials and employees to comment on issues in their personal capacities. The issue with the upcoming Rally is not about the individual police officers, prosecuting attorneys and other county employees expressing their viewpoints, it is about the potential use of public resources (including time and labor of County employees) to do so.

The ACLU letter came the same day as the council meeting- which we described yesterday and presumably did not address the presentation made there.

After a response, also confidential, from Castillo, Iseri not only admitted that her office wrote the press release that the ACLU used to point out the illegality of Iseri’s actions, but gives a detailed description of who else acted in the same vein, writing:

Al,

If you haven’t done your total investigation, let it be clear that our office prepared the “draft” release. The “draft” release was provided to KPD to review. It was Beth Tokioka that reviewed it, edited it, and sent it onward. Beth even took the liberty of making amendments to include a quote from Theresa Koki that was never in our initial draft release. Theresa Koki was never presented the release, and never made any quotes because I specifically had asked her about it when the release was amended . It was very clear to me that once we mentioned that Jake had prepared the release, you then took the position to blame KPD and OPA, because of quotes in the release. I find it very sad that because of the unprofessional manner in which this matter was handled at your doing, what started out as a great act of collaboration between KPD, the Administration and the Prosecutor’s Office, has turned into a chaotic event.

Shay

So what did the ACLU say?

Before the passage on employees actions on their own as private citizens they wrote:

Re: February 17 Anti-Drug Rally

Dear Chief Perry and Mr. Castillo:

We write to raise serious legal concerns about the Anti-Drug Rally scheduled for tomorrow, February 17, 2011 ("Rally"). In short, we believe that Kauai County employees are acting outside the scope of their limited, delegated authority, thus exposing the County to litigation. See Rees v. Carlisle, 113 Hawai`i 446, 153 P.2d 1131 (2007). Consequently, we recommend that you cancel or postpone the Rally to allow for further discussion.

1- Factual Background

As we understand it, the Kauai Police Department, the Prosecuting Attorney and others are sponsoring the Rally to "raise awareness and inform the community about the dangers associated with pending marijuana legislation." Kauai Police Department News Release, February 12, 2011. The News Release quotes Prosecuting Attorney Shaylene Iseri-Carvalho, speaking in opposition to specific pieces of legislation currently pending before the Hawaii State Legislature, as stating that `"[i]f passed, these measures will result in increased violent crime, economic crisis and a rise in marijuana usage among our children.'" Id. Finally, the News Release unequivocally states that "Nine police chiefs and prosecuting attorneys from each of the four counties stand united against this dangerous legislation." Id. (emphasis added). Thus, it cannot be disputed that the overriding purpose of the Rally is to persuade constituents to lobby legislators to vote against the pending bills, HB 1169 and SB 58.

The main case that the ACLU cites in its “Legal Background” is Rees v. Carlisle, saying that:

In 2002, the ACLU of Hawaii Foundation ("ACLU of Hawaii") filed suit on behalf of journalist Robert Rees against County Prosecutor Peter Carlisle. The gravamen of the case concerned Carlisle's improper use of public funds to actively advocate in favor of and campaign for the passage of a state constitutional amendment, Senate Bill No. 996 of 2002 ("amendment" or "Question 3"). It was undisputed that Carlisle used public resources for this purpose. The ACLU of Hawaii argued, inter alia, that: (a) neither the City Charter nor Hawaii Revised Statutes ("HRS") § 2840.6 authorized Carlisle's expenditure of public funds to engage in partisan political campaigning; and (b) any law that purported to grant such authority would run afoul of a myriad of constitutional rights, including free association, free speech and the fundamental right to vote.

In 2007, the Hawaii Supreme Court held that "neither the Revised Charter of Honolulu nor HRS § 28-10.6 authorize the prosecuting attorney to advocate for a proposed constitutional election[.]" Rees v. Carlisle, 113 Hawai`i 446, 456, 153 P.2d 1131, 1141 (2007). Based on this holding, the Court declined to reach the constitutional issues. A copy of this decision is attached for your ready reference.

The case seems to go way beyond the incident at hand, going to the very heart of a government employee using office time and/or resources to lobby for or against any legislation- a common practice of police and prosecutors statewide.

In a section called “Neither the Police Department Nor the Prosecutor Is Empowered to Use Public Funds to Advocate for a Particular Legislative Result” the letter says that:

The powers of the Police Department and the Prosecutor are set forth by the County of Kauai Charter, Article XI and IXA, respectively. Notably absent from these articles is any language that authorizes either the Police Department or the Prosecutor to spend public resources to educate the public about issues relating to crime research, prevention and education. Cf. H.R.S. §28-10.6 (authorizing the state Attorney General to spend public resources in this regard); R.C.H. 8-104(e-i) (passed post-Rees to authorize the Honolulu Prosecutor to do the same).

First, the plain language of the County of Kauai Charter limits the authority of the Prosecutor to prosecuting crimes. County of Kauai Charter, Article IXA, Sec. 9A.03. It is well-settled that the Prosecutor's powers and functions are limited to those expressly accorded to his office by the statute creating it. 63A Arri.Jur.2d, Prosecuting Attorneys § 20 (1984). 1 The County of Kauai Charter similarly limits the authority of the Police. County of Kauai Charter, Article XI, Section 11.05. 2 There is no statutory or other Given the similarity in language in Kauai's County Charter and the pre-2007 Honolulu County Charter, court decisions affecting the Honolulu Prosecutor are analogous to the situation now presented by the Kauai County Prosecutor. Honolulu's Department of the Prosecuting Attorney was established in Article VIII of the Revised Charter of Honolulu ("R.C.H.") of 1973 (1983). "Unless otherwise specifically provided by statute, his powers and functions are limited by § 8-105 [now § 8-104] of the Charter to the prosecution of criminal offenses against the laws of the State and the ordinances and rules and regulations of the city." Marsland v. Pang, 5 Haw. App. 463, 472, 701 P.2d 175, 184 (1985) (noting that the county prosecutor only "has been delegated the primary authority and responsibility for initiating and conducting criminal prosecutions within his county jurisdiction").

Furthermore, this limitation on the Prosecutor's powers also eviscerates any argument that engaging in the Rally is germane to the Prosecutor's function. Thus, as fully set forth infra wider Abood v. Detroit Board of Education, 431 U.S. 209 (1977), and its progeny, the conduct of the Police Department and Prosecutor's Office constitutes forced speech in violation of the First Amendment of the U.S. Constitution and Article I, §4, of the Hawaii Constitution.

2 Notably, the Charter empowers the Police to engage in "traffic safety education." "It is a general principle of statutory construction that when 'Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Barnhart v. Sigtnon Coal Co., Inc., 534 U.S. 438, 452, 122 S.Ct. 941, 951, 151 L.Ed.2d 908, 922 (2002) (citing Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17, 24 (1983)). Where the County wanted to provide the authority that grants the Police Department of the Prosecutor the power to expend public resources to educate the public on criminal justice issues.

Consequently, Rees V. Carlisle, 113 Hawaii 446, 153 P.2d 1131 (2007) is directly on point: neither Kauai's Prosecutor nor Police Department may engage in the type of activity proposed by tomorrow's Rally.

The ACLU letter goes onto say that not only are the actions of the county illegal but it exposes the county to liability. In a section marked “Using Public Resources to Fund the Rally and Associated Events Could Expose the County to Liability Under the First Amendment” they say that:

Such openly biased speech by public officials raises serious First Amendment questions. In the words of Justice Black: Probably no one would suggest that Congress could, without violating [the First] Amendment, pass a law taxing workers, or any persons for that matter (even lawyers), to create a fund to be used in helping certain political parties or groups favored by the Government to elect their candidates or promote their controversial causes.

Compelling a man by law to pay his money to elect candidates or advocate laws or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against. The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the Government commands.

After a long passage describing various federal and Supreme Court of the US cases that support that, the ACLU letter concludes by saying:

Given the serious legal concerns about tomorrow's Rally, we would recommend that such Rally be canceled or postponed to allow for further discussion. A moderate delay will not hamper the legislative process on the contested bills given that HB 1169 appears to be dead and SB 58 has not yet been scheduled for hearing before the Senate Judiciary Committee.

Thank you in advance for your time and attention to this matter. If you have any questions or comments in the interim, please feel free to contact me at 383-8287 or Iperrin(at)acluhawaii)dot)org or Daniel Gluck, Senior Staff Attorney, at 522-5908 or dgluck(at)acluhawaii(dot)org.

Sincerely,
Lois K. Perrin
Legal Director

The fact that Castillo has apparently supported the ACLU’s position now makes it a controlling opinion that the county must follow in the future. We hope that county employees will remember this when they use their position and time and resources to testify and seek to influence legislation in the future.

STRIKING DEEP

STRIKING DEEP: Kaua`i has been called “The Garden Island”, “The Separate Kingdom” and a lot of other things but with the strict controls brought on by Mayor Bernard Carvalho and his insular “team” after last November’s election the name “The Paranoiac Secrecy Island” has become the more appropriate moniker.

Carvalho’s county employees- the same ones who be abused with politcally motivated unnecessary furloughs- are now under a gag edict that forbids them from speaking to the media or anyone likely to repeat what they say in a public way, according to numerous county employees.

But while Carvalho and his PR mastermind Beth Tokioka have the ability to control employees under threat of losing their jobs- despite their civil service employment- there’s a whole other set of county functionaries that have less to lose by acting on their own and actually doing their job competently rather than whatever way the administration directs them to act.

The scores of board and commission (B&C) members are usually a pretty compliant lot having been selected more often for their cronyism than their expertise. But there’s always a few, eh?...

Since their meetings are open to the public and their minutes are either available on-line now or will be very soon, what they say may not be what the administration wants the public to hear.

So it shouldn’t be any surprise that B&C Administrator John Isobe has come up with a plan to make sure that those “few” will receive the proper indoctrination to ensure that any and all things said or done are subject to the proper PR filter.

That’s why Isobe is seeking to procure- albeit in as secretive manner as possible- a “person to provide Public Relations advice and services to the various Boards and Commissions of the County of Kauai” at an estimated Cost of $15,000.00 - $ 30,000.00 a year with the ability to extend the contract.

First of all we have to ask the question, “isn’t that Isobe’s job?” And where exactly is the money coming from? Isn’t it a line item in the county budget?

Those will have to be asked rhetorically for now. The bigger concern is how the PR person will be selected- and controlled.

As the document we obtained this week says in it’s “Description of proposed procurement”:

The Office of Boards and Commissions anticipates the need to select a person or firm qualified to provide Public Relations advice and services to the various Boards and Commissions of the County of Kauai. The objectives of this effort are to:

• Provide general public relations support and assistance to County Boards and Commissions;

• Assist and facilitate public educational efforts as any be required related to specific issues or topics under consideration by the various Boards and Commissions;

• Directly advise board and staff members with tips and talking points needed to enhance communication and relationship skills to factually, diplomatically and courteously address public concerns and issues that are brought before a Board or Commission;

• Develop and implement a public relations program that will improve awareness. Knowledge and perception about the service and value that Boards and Commissions provide to the County;

Interested person or firms should have at least five (5) years of combined experience in public relations on the island of Kaua`i that demonstrate knowledge about the pros & cons of current government and community issues. Desirable qualifications also include previous work experience directly related to the State of County government.

But even with the restrictive way the qualifications are written there are dozens of PR firms out there and if the contract was indeed subject to normal procurement it would have to be widely advertised and the person selected based on the best qualifications and price quote.

Obviously that won’t do- they need someone who will teach them to shut up, not to actually speak to the public and press.

So Isobe has received a waiver from the procurement process because, as Isobe writes in his “Explanation describing how procurement by competitive means is either not practical or not advantageous to the County”:

Public Relations is more an "art" than a "science". The creativity, resourcefulness, background experience, and work ethic/style of an individual or the firm are important in ensuring a good working foundation and relationship.

A negotiated process provides the venue for Q&A to properly evaluate and select the most appropriate and qualified person/firm to meet the objectives and scope for an effective public relations program effort.

But even without proper procurement processes how can Isobe make sure the person selected is a true crony who will do as he or she is told?

In the “Details of the process or procedures to be followed in determining or developing at a list of eligible persons/entities, and in selecting the vendor to ensure maximum fair and open competition” it says:

A solicitation requesting resumes from qualified persons or firms interested in undertaking this work will be advertised in a local newspaper(s) of general circulation and posted on the website (htto://www.spo.hawaii.gov).

Resumes will then be evaluated and ranked by an evaluation committee consisting of three (3) members. Immediately thereafter, a three (3) member committee will negotiate the terms and conditions for a contract with the top ranked respondent.

And who might the three people be?

Why of course Isobe and two other mayoral appointees who work directly out of the office of the mayor and can be fired on the spot by the mayor: ADA Coordinator, Christina Pilkington and Anti-Drug Coordinator, Theresa Koki.

As the wall between the public and Carvalho’s minions gets higher and higher we can expect that this is just the beginning of an era of darkness and obfuscation that few could have imagined could have gotten much more opaque before last November.

For those seeking information from the county it’s going to be a long four years.

ROOT ROOT ROOT FOR THE HOME TEAM

ROOT ROOT ROOT FOR THE HOME TEAM: Government is really not that hard. Even for the ego-centric demagogue or the power seeking crook, the people aren’t really watching too carefully and if you can avoid major gaffs and blunders that evoke ridicule you’ll probably pass the test at the next election.

But on Kaua`i our leaders and institutions are so buffoonish sometimes that we have developed a special category for their foibles and blunders taken from a line spoken by the manager of dismally inept the 1962 NY Mets, Casey Stengle.

But because our editor thinks it’s dumb and nobody gets it, we’ve generally avoided the “Can’t anyone here play this game?” tagline lately.

But when the county’s civil defense telephones everyone on the island to tell them that “The Sky Is Falling” we have trouble thinking of anything more apropos.

Because while many ask “how could they send that out” we’ve gotta ask how someone could have even made that recording and then placed or left it in the system where if the wrong button were to be pushed it was capable of being distributed via the emergency notification system.

It’s bad enough that, in the middle of trying to hold back the flood waters, Auntie had to run into the house to answer the phone. But to think that, depending on her level of sophistication, her next move might be to make like chicken little, running down the street and screaming about the imminent collision of heaven and earth...

But of course it takes more than one head-scratcher to make a true CAHPTG moment.

The next day we were all greeted with a headline in the local newspaper announcing that

Civil Defense’s ‘sky is falling’ message sent in error

No kidding? We thought maybe they meant to do that to see if anyone was paying attention.

Of course Beth Tokioka, the fount of all county information- who has made it known that she and she alone is responsible for all county announcements- was the first to blame it on someone else, telling the paper

“We are in contact with Connect CTY to diagnose what went wrong to insure it does not happen again,” she said. “We sincerely apologize for the error.”

We’d normally sense a “heads will roll” moment in the making. Unfortunately this is Kaua`i and so that’s doubtful... and if anyone is fired you can bet it most certainly won’t be Tokioka.

Because in a place where, when it comes to hiring practices, competency is secondary to loyalty, you can expect anything but crackerjack proficiency at the old ball game.

OPAQUE- AND PROUD OF IT

OPAQUE- AND PROUD OF IT: We don’t know what we’d do for source material if it wasn’t for the local newspaper’s now ubiquitous Leo Azambuja whose reports today added more confusion to that caused by his recent muddled coverage.

Today was a two-fer with the primary article on the preliminary hearing in the Anahola murder case that he apparently attended, missing facts and even quotes that somehow the Honolulu Advertiser “staff” bylined article- apparently written from their offices- contain regarding future witnesses yet to testify in the continued hearing.

And when the secondary article, based on an interview with the victim’s father, gets to the meat of the article- a description of what allegedly actually occurred- it’s completely unattributed. Though many may assume it was part of the narrative from the father assumptions can always get you in trouble.

But although it’s easy to blame the newspaper and the Azambuja’s amateurism for the community’s “what the heck is going on here?” attitude toward the Anahola murder and other cases, people's ire should really be directed toward Mayor Bernard Carvalho.

We are in possession of an email from hizonnah to a constituent who, like the local newspaper and many others in the community (us included), has been focused on trying to get Kaua`i Police Department (KPD) its own public information officer (PIO) like any normal police department.

Although he has been tight lipped on the subject until now, in the email Carvalho out and out rejects the idea in favor of the current practice of controlling every bit if information that comes out of the administration through his “Communications Team”.

The email, in full, reads:

I appreciate your continued concern and support for the Kaua`i Police Department. I can assure you that the present arrangement provides the Kaua`i Police Department 24/7 access to our Communications Team, including support at the scene of an incident if that is requested by KPD. I would challenge anyone to come up with an instance where a call from KPD to one of our Communications Team members was not immediately picked up or returned within minutes of the call. This happens in the evening, on weekends, holidays and furlough days.

Information received from KPD is turned around by members of our communications team quickly in the form of a draft for review by KPD personnel. There is never a release, quote or other information relating to KPD that is not first scrutinized and approved by KPD senior personnel before being released to the media – including the quote that you reference in your email.

Again, I appreciate your concern and can only assure you that KPD is well-served by three competent, experienced, and well-trained individuals who are fully committed to serving the needs of our police department as well as satisfy the public’s need to know to the greatest extent possible.

Mahalo,

Mayor Carvalho

As most know, Carvalho’s “team” is headed by political operative Beth Tokioka who has tightly controlled the messages from the last three administrations.

It’s not about the timeliness of what is released. It’s about the amount and type and general lack of information the public receives about crimes committed on the island.

Carvalho’s rampant paranoia has not only resulted in the lack of information that normally would be released by a police department to calm the citizenry but it flouts the intent of having a police force that is supposed to be out of the normal political control of the administration- as evidenced by the fact that the Kaua`i Police Commission is solely responsible for oversight of KPD.

It’s all part of his petty-vindictive, politically-motivated, commend-and-control style of management that has become the most insulated and corrupt Kaua`i administration in memory- and that’s saying a lot.

The local newspaper can take their share of the blame for less than coherent reporting. But unless and until KPD has its own professional PIO within its ranks Kaua`i will continue to get the mushroom treatment by being kept in the dark and fed bullsh*t.

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Clarification: Although we can’t see how, a few people somehow got the impression yesterday that we are a part of the new “For Kaua`i” newspaper. We have not been asked and so far, are not. Sorry if we some how caused any confusion.

And the link we provided didn’t work- the correct one is here.

... SAME AS THE OLD BOSS

... SAME AS THE OLD BOSS: When we last reported on “pay-raise-gate”- the scandal regarding the illegal pay raise that County Clerk Peter Nakamura received via a brief memo written by former Kaua`i County Council Chair Kaipo Asing, rather than following the evaluation and reporting process proscribed by the rules of the Salary Commission- we relied on a confusing local newspaper account that seemed to say that the confidential personnel memo was released by mayoral assistant Beth Tokioka.

But now we are finally in possession of a key document in the saga- a so-called “Media Statement” written and distributed by current Council Chair Jay Furfaro to various media outlets.

Although the article states that:

(i)n a “media statement” last week, Furfaro said Bynum voted in favor of measures concerning Nakamura’s pay raise twice, once when receiving the commission’s communication and again when approving the FY11 budget

it never made clear whether this was merely a verbal statement or the detailed one page manuscript attached to 21 pages of supporting documents Furfaro provided, including the memo from Asing.

The article also said that:

A memo from the council chair to the personnel director seems to back up (Councilperson JoAnn Yukimura’s) claim (that a the Salary Commission mandated process was not followed) ... The memo does not indicate that there was any attachment that could contain the evaluation required by the rules. County spokeswoman Beth Tokioka confirmed Wednesday that there was no evaluation attached to the memo.

Although many interpreted that to mean that Tokioka revealed the memo- which was part of Nakamura’s confidential personnel file- it was in fact the last document provided in Furfaro’s “Media Statement” packet.

The Statement provides the basis for the contention that the council’s acceptance of the original Salary Commission Resolution (2009-2) was sufficient to serve as the formal process for the evaluation of Nakamura saying:

Under Section 29.03 of the Kaua`i County Charter, the Salary Commission adopts a resolution setting forth the salaries of various elected and non-elected County officers and employees. The resolution is then forwarded to the Mayor and the Council. The Council may, by a vote of not less than five members, reject all and any selected portion of the resolution. (Section 29.03 is attached hereto).

On August 25, 2009, the Salary Commission transmitted the Resolution No. 2002-2 to the County Council. (Transmittal and Resolution No. 2009-2 are attached hereto). The Resolution was placed on the September 23, 2009 Council agenda. Councilmember Tim Bynum seconded the motion to receive the Resolution, meaning that the Council would not be rejecting any portion of the Resolution, including the line item that set the County Clerk’s salary. (Relevant portions of the minutes of the September 23, 2009 Council meeting are attached hereto).

The Statement doesn’t however even mention the Salary Commission mandated, formal evaluation process to actually set the exact amount of the salary (within a proscribed “range”) and effectuate the raise, which the council must follow as the “appointing authority” for the county clerk- separate from its function regarding the Salary Commission Resolution as provided in the county charter.

According to the resolution- and the Salary Commission rules- that process includes providing the Director of Personnel with:

- A memo from the officer’s or employee’s appointing authority at least 30 days prior to the increase certifying that appointee’s performance has been evaluated pursuant to procedures established by the personnel director.

- A copy of the officer’s or employee’s completed performance evaluation evidencing that the appointee has met or exceeded job requirements.

- Based on the evaluation, the appointing authority’s recommendation on whether a proposed increase should be granted.

The mention of Bynum’s “second” is apparently designed to question why Bynum has been one of the two council voices- along with Councilmember JoAnn Yukimura- to question the process, by making it personal- apparently trying to say that, if you buy the false premise that accepting the Salary Commission’s recommendation is enough to effectuate Nakamura’s raise, Bynum’s second would make his raising of issues with the process duplicitous.

It ignores of course that many times people second a motion for discussion purposes and that a second in no way requires one to vote for the motion according to Roberts Rule of Order.

The statement goes on to describe the process that Asing did use in supplanting the correct procedure saying.

The Council Chair Kaipo Asing circulated evaluations forms prepared by the Director of Personnel. I filled out the evaluation and I know that Mr. Nakamura was also evaluated by Councilmember Derek Kawakami and Mr. Bynum. While I cannot disclose the contents of the evaluation because it is a personnel matter, I am confident that Mr. Nakamura met the requirements for his raise. Council Chair Asing sent a memorandum to the Director of Personnel indicating that Mr. Nakamura met the criteria and was entitled to his salary. (A copy of the memorandum is attached hereto).

The Statement further states that:

On April 1, 2010, Mr. Bynum submitted written testimony to the Salary Commission. In the testimony, he stated that, “Currently, the County Clerk, County Auditor and Prosecutor all have salaries greater that the Mayor” and asked the Salary Commission to adjust the salaries. (A copy of the testimony is attached hereto). Mr. Bynum appeared before the Salary Commission and testified that the salaries should be adjusted not because of any concern about the Clerk’s performance, but because it was improper for the clerk, auditor and persecutor to have higher salaries than the mayor (a copy of the minutes are attached hereto).

It’s not clear what the relevance of this might be other than to again try to use the false premise to personally discredit Bynum.

Finally Furfaro makes one more reach, this time with a paragraph saying

On May 26, 2010, the County Council unanimously approved Bill No. 2356, Draft 1, which again included a line item that set the County Clerk’s salary. (Relevant portions of Bill No 2356 are attached hereto). As you can see from the record of the votes cast, Mr. Bynum voted for approval of this bill.

That one is particularly silly considering that the council negotiates line items in the budget for weeks on end and, although no one supports every single line, in the end the “compromise” package is usually passed unanimously- as Furfaro has himself stated publicly on occasion.

The 21 pages of documents in the packet include:

- Article XXIX of the County Charter regarding the Salary commission

- The memorandum communicating the resolution from the Salary Commission

- The Resolution itself (five pages)

- Minutes of the September 23, 2009 council meeting regarding the resolution including a conversation with County Attorney Al Castillo regarding the process for “receiving” the resolution so as to make it effective or for rejecting it by the vote of at east five councilmembers, as provided in County Charter Article XXIX (seven pages)

- The FY 2010-11 Budget Ordinance with a county clerk salary line item and certification page (three pages)

-Bynum’s testimony, with cover letter, to the Salary Commission (two pages)

-Asing’s one paragraph memo to Director of Personnel Malcolm Fernandez, in violation of both the rules for effectuating the county clerk’s raise and the County Code of Ethics (as discussed in our coverage linked above)

What is most distressing in all this is that rather than coming forward and recommending that the proper process be followed and declaring that Asing’s memo was done in violation of the law or at least “done in error,” he chose to defend Asing’s actions and declare that it was “close enough for government work” as the expression goes, supplanting fully extraneous material- which included an invasion of privacy in releasing the contents of Nakamura’s personnel file- and attempting to personally discredit one of the two councilmembers who acted as “whistleblowers.”

This is not the type of leadership the people of Kaua`i want or deserve.

We call on Furfaro to either rectify this by complying with the law and scheduling the proper agenda items to conduct the proper evaluation - even though the timeframe violation cannot be overcome- or, if he continues to stonewall and obfuscate, to resign his post as Chair.

And, if he will not resign as chair we ask the other six councilmembers to remove him.

We also call on the county prosecutor and the Kaua`i Board of Ethics (BOE) to investigate this matter.

CONFIRMATION

CONFIRMATION: One thing reporters for the local newspaper can do that we have trouble doing is compelling newsmakers to answer questions for fear that their spin will be left out of whatever is written on a given subject.

And today’s article on the illegal pay raise County Clerk Peter Nakamura received- as we’ve detailed the past two Mondays - confirms our speculation that indeed former Chair Kaipo Asing successfully circumvented the law in getting the raise approved.

After a lot of irrelevant “that’s my story and I’m sticking too it” hoo-ha from current Council Chair Jay Furfaro regarding his contention that the original vote on the salary commission’s pay raise resolution for all department heads should have sufficed for the fully separate process of the full council’s action as the appointing authority for the clerk- and a listing of the three required evaluation related documents from the appointing authority (the council in the case of the clerk) to the personnel director to effectuate any raise, the article reveals that:

On Dec. 14, 2009, two weeks after Nakamura’s pay increase took effect, Asing sent Fernandez a one-paragraph memo stating that Nakamura had met or exceeded job requirements for the position of county clerk.

“I understand that you will transmit the results of his evaluation to the Salary Commission,” Asing said in his memo to (Personnel Director Malcolm) Fernandez, almost four months after the commission submitted its resolution to the council and almost three months after the council unanimously received it.

The only person copied on the memo was Nakamura. The memo does not indicate that there was any attachment that could contain the evaluation required by the rules. County spokeswoman Beth Tokioka confirmed Wednesday that there was no evaluation attached to the memo.

“He sent that over there without any council approval, on his own, unilaterally,” (former Councilperson Lani) Kawahara said of the memo Asing sent to Fernandez, adding that the chair can not act alone as the appointing authority.

“It needs to be presented to the full body,” she said. “That memo was sent without the body’s authority.”

Even though that crux of the story was buried after a lot of irrelevant silliness about Bynum seconding the original salary commission resolution and other blather the story does reveal that, although at one point Asing handed out evaluation forms to council members there was never a meeting where the evaluation was approved meaning Asing did act on his own, using his position to give a special privilege to Nakamura in violation of the Kaua`i County Charter’s Code of Ethics (20.02E).

Just as interesting are some of the quotes regarding Asing’s action and the lack of documentation in Nakamura’s file:

Furfaro said that on Sept. 23, 2009, Asing circulated evaluation forms prepared by Personnel Director Malcolm Fernandez.

All seven council members serving on the legislative body at the time confirmed they completed the evaluation form.

Because it is a personnel matter, Furfaro said he could not disclose the contents of the evaluation.

“I am confident that Mr. Nakamura met the requirements for his raise,” he said in a statement.

Bynum, however, said there is no evaluation in Nakamura’s personnel files.

“How could the Salary Commission or the personnel director have an evaluation when it doesn’t exist in his file?” Bynum said.

Though some might question the propriety of revealing something in Nakamura’s personnel file it appears that those quoted are rather, revealing the lack of anything in the file.

The real violation of privacy might just be that of mayoral assistant Beth Tokioka who apparently provided whatever Asing sent to Fernandez- who also apparently violated the law by okaying the raise without the required evaluation forms from the council, rather substituting the one-paragraph memo from Asing.

That said the state’s open records laws (UIPA-HRS 92F- 12-13) say that the decision to reveal matters covered by privacy of personnel files has to balance the need for that privacy and the public interest in opening those records to scrutiny. In addition, if a crime has been committed, whistleblower provisions might protect anyone that reveals confidential information.

It appears that Furfaro’s “new style” of leadership is going to be an extension of the same old “stonewall, distract and deny” approach of his predecessor and that some of his supporters are willing to use rose-colored glasses to ignore his evasions and outright violations of law in the name of paternalism.

The issue is not Clerk Nakamura any more than the issue was former Chief of Police KC Lum, who was the victim of a deceitful determination of the similar ethics case that wrongfully chided then Police Commission Chair Michael Ching. Though Nakamura, was the recipient of the special favor on Asing’s part the blame is with Asing and Fernandez for failing to follow the law.

But if people are unwilling to publicly say “enough” due to past vendetta’s and political alliances we can expect more of the same from this “new era” of the Kaua`i County Council.

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We’ll be taking a long weekend. Be back Monday.

ON A WING AND A PRAYER

ON A WING AND A PRAYER: Ever since Joan Conrow’s article a week ago in Honolulu Weekly about the county’s decision to end what she said was traditionally called “Friday Night Lights”- a term we’ve never heard used on Kaua`i to describe high school football games in 30 years of attending them- in response to the federal suit brought to protect the endangered Newell’s Shearwaters, she’s been building to something.

And today she really let loose on Mayor Bernard Carvalho, accusing him of intentionally planning the “Buck the Firds” backlash by making the county’s first and thus far only reaction to the suit to shut down the traditional night games in favor of afternoon contests- something bound to get people up in arms and blaming the birds, not the county for it’s decades of inaction in the face of federal threats to clamp down.

She writes that:

the outcry over the end of Friday Night Lights was never based in reason or reality. Otherwise, people would have been calling for Mayor Bernard Carvalho’s head. Because as leader of the county, and former director of Parks and Recreation, he’s the one responsible for the decision to end the games.

And make no mistake, it was a calculated decision, a diversionary tactic intended to take the heat off the county and instead, as one friend noted, “make people want to stomp the birds and the Sierra Clubbers.”

She cites an email from a reader “who has been close to the action” and was similarly enraged over the ploy, who wrote

one thing you failed to mention was that the county did not have to go to this extreme in shutting off all the lights and canceling night football games. They could have focused on other areas such as Kilauea, and other games such as night soccer or tennis courts. The county cut the Friday night games to spite the state and the feds and to turn public sentiment against the birds. It's absolutely disgusting the way they handled it and what they did and I think your article should have been tougher on them.

But while, in the rest of the post, she searches for answers from the administration, an examination of events before the county council for the last decade or so reveals what’s at the core of the county’s malfeasance in ignoring those warnings.

The Carvalho administration isn’t the first to ignore the feds when they told the county as far back as the 1990’s that they had to at least start mitigating the effect on endangered birds of county facilities including, but not limited to, lights.

But rather than getting started and then developing an ongoing mitigation program, which is all the feds really asked at the time, the council, which controls the purse-strings to get the work done, decided in their incredible arrogance and stupidity to demand a list of precisely what the feds wanted the county to do and seek assurances from the feds that, once they had jumped through these specified hoops, they would be free to kill as many birds as they wanted.

Instead of heeding the answer of “just get started already” they all agreed that until they had an “end point” in a list of everything they needed to do in order to not get fined for “taking” any more birds, they wouldn’t do anything.

Eventually by the mid ‘00’s the council’s position, most often expressed by Mr. Liability, Councilmember Jay Furfaro, became that they would do nothing until they council was assured that there would never be any problems again with the feds over the `a`o- the real name for the shearwaters.

The feds of course finally threw up their hands at trying to get the county to get with the program and sued them.

While Carvalho- or most likely his chief henchwoman Beth Tokioka- is certainly to blame for the treacherous decision to whip up the misplaced community backlash there’s certainly enough blame to go around for the predicament in which the county has found itself today.

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We’re taking a long weekend. Be back Monday.

PANTS ON FIRE

PANTS ON FIRE: In the wake of County Attorney Al Castillo’s performance in requesting the council go into executive session to discuss the ordinance banning plastic bags last Wednesday things have became curiouser and curiouser over the weekend.

As we noted last week on Wednesday and Friday Castillo told the council that, despite the fact that the ordinance had been passed about a year ago, the Department of Public Works (DPW) had not even begun to promulgate Chapter 91 administrative rules (ad rules) because they- and he- were confused about the “intent” of the ordinance.

He also told them apparently after doing their due diligence the DPW found there were no bags in existence that fit the requirements that “no fossil fuel polymers” be used in manufacturing them.

But late Friday, an email showed up in the inbox of one of those most active in the passage of the bill with a brand new informational county web page containing a draft of those very rules which were supposedly nonexistent.

Brad Parson, who worked diligently with others to pass the bill last year, said he had run into Mayor Bernard Carvalho’s assistant Beth Tokioka after the council meeting and asked about the rules and apparently, in response, she sent him a link to the brand new country web page containing a copy of the ordinance, the ad rules and the public hearing notice for the bill.

The rules were either done in one night by Menehunes or more likely existed despite Castillo’s assurance they didn’t exist.

The rules do contain a “list” of acceptable plastic bags under which is printed the word “none”. They also have a section describing a process for submission by merchants of bags for testing to see if they comply.

But the contention that there are no bags being made today that do not contain fossil fuel polymers and in fact that they had checked, seemed a little too pat an answer for Parsons who got busy over the weekend to see if it was true.

It didn’t take him long to find at least one called the “Naturtech Nature Bag” from Northern Technologies Industrial Corp (NTIC) out of Minnesota that thus far appears meets the standard in addition to others that may.

Parsons, a meticulous researcher, is still on the case today to verify the claims made by NTIC as well as others.

But one thing was becoming apparent to Parsons as he did his inquiry- that no one else had asked questions of these manufacturers that he found on-line.

As anyone who has done any research knows- especially in the on-line age- when you start nosing around you will find the fingerprints of anyone who did the same research before you. But Parsons says that so far he seems to be asking questions of the various manufacturers that haven’t been asked before, possibly due to the unique nature of the Kaua`i ordinance.

Another problem with the administration’s whole approach to the implementation is that the notice of public hearing for the rules is being held the very day Ordinance 885 goes into effect, January 11, 2011. That apparently “builds in” a delay in implementation between when the old bags become illegal and when stores can know what bags to use, if any- or even worse, submit one for testing and wait until the results come back- and then order and receive them.

And, in typical “fire ready aim” county manner, they have scheduled a series of three “public information meetings” on October 25 and November 4 and 8, however they are all being held from 10:00 am to 11:00 am for some reason.

The answer to the question as to what “information” is to be disseminated if the rules have yet to be finalized through a public hearing isn’t apparent... unless of course the public hearing is actually superfluous and it doesn’t really matter to them what the public says.

The whole thing is up for discussion this Wednesday at the meeting of the council’s Public Works and Energy Committee where Chair Tim Bynum is “requesting the Administration's presence to discuss Ordinance No. 885, relating to Plastic Bag Reduction.”

In addition there is another request on the agenda from Castillo to go behind closed doors to discuss some kind of “liability” with the council.

Whatever the outcome, one extremely troublesome issue with Castillo’s approach is in his contention that without knowing the council’s “intent” it is impossible to know what to put into the ad rules.

This isn’t the first time that Kaua`i CAs have decided that they need to “interpret” ordinances rather than relying on the plain reading of the law. The same has happened in the Board of Ethics brouhaha over the plain reading of the charter and how it conflicts with the rules of the BOE because someone decided to “interpret” the plain meaning of the charter... interpreting the plain reading out of existence, as it were.

The ordinance is plain- if a bag that meets the criteria exists, it is permissible, If not it isn’t and people must use paper or preferable reusable canvas bags, as is stated in the “purpose” section of the bill that became Ordinance 885.

The reality is that there are only 18 jurisdictions that have any plastic bag bills and the one on Kaua`i is unique in allowing only those that contain no petroleum products. In doing so we are leading the way in providing the industry with the impetus to manufacture them so that other jurisdictions will be able follow in our steps.

But apparently there are bags that meet out standards if the DPW gets off their butts and looks for them.

CHOKIN’ ON THOSE BONES:

CHOKIN’ ON THOSE BONES: Today’s follow-up on a for-the-most-part erroneous January 15 article in the local newspaper that has left the community- with the exception of our and Joan Conrow’s readers- thinking that Mayor Bernard Carvalho had acquiesced and removed the bike path from Wailua Beach does one thing.

It answers affirmatively the question of whether Carvalho and his administration has heard the old joke about ascertaining that their lips are moving in order to tell if they are lying.

They seemingly live by the motto “if you don’t speak no one can accuse you of deceit”.

Though the matter has gone from clear as mud to clear as muddy water it’s not as though it wasn’t a valiant effort on the part of ace reporter Mike Levine who seemingly couldn’t get anyone to give him a straight answer and couldn’t even get the protesters to admit they were duped by hizzonah.

Once again the headline is somewhat unclear in saying New path route to straddle shoulder, sand because, as we wrote the Monday following the original article, the definition of the “shoulder” is in question- it the shoulder the paved part or is there a shoulder” that’s on the sand? And what does straddle mean in that context? And what exactly does “straddle” mean in this context?

The lead seems to make it clear at least that:

A concrete multi-use path will still sit on the sand dunes in Wailua even after last month’s compromise moved the proposed route from the county park to the state highway right-of-way, officials recently confirmed.

But the next paragraph is again somewhat baffling:

“Based upon the preliminary plans for the path, the maximum distance from the edge of the current pavement out to the outer edge of the new path will be between four and five feet,” state Department of Transportation spokeswoman Tammy Mori said via e-mail after consulting with Kaua`i District Engineer Ray McCormick.

It would seem to say that part of the path is going to be where the paved shoulder currently sits and go to up to five feet onto the beach. But what the rest of the article says indicates is that no one but Mori would talk to Levine and she might not be too sure of her facts.

That’s followed by a roundabout quote from Building Division Chief Doug Haigh- one that had to be obtained through an email from the county’s public information officer Mary Daubert rather than through a conversation with Haigh himself.

And no wonder- it’s so confused and uninformative, it begs a few follow-up questions, ones which Haigh was of course unavailable to answer.

First he says:

“Along the middle of Wailua Beach, the path will essentially straddle the location of the existing rock wall (to be removed),”

The “middle” of Wailua Beach? The middle of what? And it does not say whether it will be fully on the beach since the rock wall is on the beach, not the paved shoulder.

Another key of the original deception was the use of the word “shoulder” without referring to the paved part so that when they said it was on the shoulder it was actually on the beach sands. When combined with the term “right of way” it seemed to indicate the paved shoulder.

But Haigh’s next statement confirms our suspicion that the use of the term “right of way” was being used by Carvalho and his mouthpiece Beth Tokioka to confuse people.

“The Kuhio Highway right-of-way is approximately four to five feet makai of the rock wall. Some vegetation may be removed and some earth shoulder may need grading.”

That confirms that the right of way extends onto the beach so that statement itself can’t be right either since the “right of way” includes all of the highway. To say the “right-of-way IS approximately four to five feet makai of the rock wall” can’t be true- only that it “extends” to that point.

We pick this apart to show the obvious attempt by county officials to try to cover for Carvalho’s and Tokioka’s attempted bamboozle by using confusing terms and seemingly contradictory statements.

Also note that Mori made her statement “via email after consulting with Kaua`i District Engineer Ray McCormick”. That means McCormick- who when cornered was quoted by participants at the mayors meeting with dissidents on Thursday Jan. 14 as saying the bike path would start where the pavement ends- also apparently wouldn’t take calls or answer Levine’s questions, pushing the question “upstairs” to Mori

What exactly did he tell Mori? And why was it different than what he told people at the meeting? Did Mori get it right? Did she even ask the question Levine wanted answered?

Who knows- we’ve danced this reporter’s dance before and can recognize it when it gets into print. Obviously Levine was stymied at every turn in attempting to get to the truth, as evidenced by the fact that it took him almost a month to get this much.

The mere fact that neither Haigh or McCormick- nor apparently Carvalho- would speak to him directly tells you that all is not as it appears and someone is fudging something.

And to make the whole thing even more confusing there was another paragraph with more of Mori’s statement.

(T)he state Department of Transportation is still planning to widen the road to four lanes. The widening project will add one 11-foot-wide lane to the Lihu`e-bound side of the road and a turn lane for Kuamo`o Road, and all the widening will take place on the mauka side, Mori said. The maximum distance from the existing edge of the pavement to the furthest point of new pavement will be approximately 15 feet. (emphasis added)

The question is of course does that refer to the “existing edge of the pavement” on the mauka side or makai side? To say “all the widening will take place on the mauka side” obviously isn’t true since she already admitted that it will be widened onto the beach.

Don’t forget- Mori is just a spokesperson, not an engineer and apparently has a very loose grasp on what is actually happening.

Well at least the wider community now knows that the bike path was not removed from the beach. But it’s still unclear how much of the beach it will take. Is it four or five feet?... is it 11 feet?.. is it more?

Don’t expect the truth from Carvalho’s lips. When they move they apparently speak only the words of his spinmeister Tokioka , warbling “Together We Can... Hoodwink Them All”.

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We’ll be taking a long weekend- unless something sets our hair on fire we’ll see ya Monday.

ANOTHER STEAMING PILE ON THE BIKE PATH

ANOTHER STEAMING PILE ON THE BIKE PATH: When confronted with government snow-jobs we’ve often asked “what are we- a bunch of freakin’ idiots”.

The answer this weekend is apparently yes because somehow many if not most of the people opposing putting the bike path on a boardwalk on Wailua Beach are apparently convinced that the “new alignment”- craftily announced by Mayor Bernard Carvalho and his “brains”, Beth Tokioka- will no longer be on the beach but on the highway.

Apparently that is a bunch of shibai.

The only thing that has changed is that the path will now be a permanent strip of concrete rather than the “removable boardwalk” that was originally put in place because a permanent sidewalk on the beach would have been considered a “hardening of the shoreline” requiring an almost impossible to obtain Army Corps of Engineers permit.

The first step in the misdirection came in the form of the local newspaper’s Friday article faithfully rehashing the carefully written county release.

The headline falsely stated “Mayor shifting path from beach to highway” and the article doesn’t refute that statement.

A careful examination of the county press release shows that it never actually states that the new “alignment” will not be on the beach. And actually, if you read between the lines, it says it will.

The relevant portions of the release says:

(T)he proposed alignment for the Wailua Beach section will be shifted from the beach to the right-of-way on the makai side of Kūhi‘ō Highway...

(T)he mayor told the groups (he met with Friday), “As a result of all of the input we’ve received, I’ve decided to move forward on a makai alignment, keeping the path within the Kūhiō Highway right-of-way.”...

In the new design, the existing rock wall will be removed and a replacement barrier will be constructed as an integral part of the path.

“We are hopeful that this adjustment addresses many of the concerns raised by the community,” said the mayor...

In aligning the path within the highway right-of-way, the path will be constructed of concrete at a depth of just 18 inches, even shallower than that of the adjacent roadway.

“There will be no additional drilling or ‘augers’ required,” said Building Division Superintendent Doug Haigh.

Notice how it sounds like it is going to be where the highway pavement and wall are currently located. Nowhere does it say it will not be on the beach anymore, only that “there will be no additional drilling or ‘augers’ required”.

The article in the local newspaper is careful not to say what the headline does and does not make clear where exactly it will be but it does contain the first hint that all may not be as it appears.

Way down towards the end Mike Levine- who may or may not have written the headline but was not at the Friday meeting where the Mayor announced the “change”, according to participants- reports:

(I)t’s still on the beach,” Judy Dalton said Friday evening.“As long as it’s still on the beach, we feel that the alternate route described in the environmental assessment as one of the three alternatives ... on the canal behind Coco Palms would be the least impactful, environmentally and culturally,” Dalton said.

According to some who attended the meeting Friday at which Carvalho “met with representatives of several Hawaiian groups” according to the county release, the issue of exactly where the path would be was presented in a manner seemingly designed to make the matter “as clear as mud”.

Some of the confusion centered around the use of the word “shoulder” which many took to mean the paved shoulder off the highway itself but still on the paved portion- a “shoulder” currently used for a “bike lane”.

But upon questioning it became apparent that the shoulder the officials were talking about was the “soft” shoulder adjacent to the paved portion defining the “shoulder” they were talking about as “where the pavement ends”.

Another key in the misdirection is that it may well be that the state’s “right of way” is not limited to the paved highway itself with part of it extending onto the beach. Although the exact location is not addressed in either the article or the press release, the “on the right of way” statement has led many to believe that the “right of way” mentioned as the location of the realignment was on the paved highway itself.

Looking at two maps on the county web site is a joke. Both are crisscrossed with seemingly meaningless, unlabeled lines all over the place with no clearly marked “new alignment” much less the old one.

As if to prove the extent to which the public has been duped, a letter to the editor appeared over the weekend from one of those who has been calling on the mayor to change the alignment to get it off the beach.

What with the headline in the paper and the carefully parsed county release it’s understandable that Jimmy Trujillo wrote:

The mayor’s decision to stay off the sand but stay on the roadside is a compromise that warrants support.

It may be one of the few times in the short time I’ve lived on Kaua`i that a government leader has demonstrated any kind of respect to the kupuna leaders and cultural practitioners of the host culture.

The first irony in all this is that a perfectly good bike path exists right now on the makai side of the highway on the pavement- the spot many are erroneously thinking the “new alignment” would put the path.

The problem is that there’s only so much room to put the new four lane highway and for some reason the county has never pursued acquiring land on the mauka “Coco Palms” side of the highway despite the countless permits and extensions issued to the land owners

The second is that the concept of a “removable” boardwalk came about precisely because a permanent concrete sidewalk on the beach would have been an approval nightmare with not just the Army Corp but various state and county agencies who were sold the idea on the basis of a removable boardwalk, not a permanent concrete ribbon.

The county recently passed a bill exempting itself from our “strictest in the nation” shoreline setback laws under some circumstances. Changes in the path should trigger a new “certified shoreline” especially considering that waves commonly deposit sand on the highway during large storms.

Going back to the original unacceptable concrete-on-the-beach idea reminds us of the joke about the guy who eats at Luigi’s Italian restaurant every day and with his meal he is served two slices of Italian bread.

“Luigi” he asks “What’s with the two slices- how come your so stingy with the beard every day”.

The next day Luigi serves him four slices and the man still isn’t happy and wants more. The next day Luigi gives him six and the man still complains.

Finally the next day Luigi takes the whole Italian loaf and slices it down the center the long way and serves it to his customer.

The man looks at Luigi and says “What, Luigi- you’re back to the two slices. eh?”

Can’t anyone here play this game?

INDECISIVE DREAMIN’

INDECISIVE DREAMIN’: We’re not skilled in dream interpretation but you don’t have to be to figure out the one we had last night right after watching the administration and their consultants’ presentation to the council on the “proposed” new dump location in the middle of the island’s most productive ag land in Kalaheo.

In it, we were having coffee with Mayor Bernard Carvalho and, as he blathered on about what a great mayor he was and how, as he said in his last campaign, “it’s all about leadership”, we stopped hearing him speak and suddenly focused on his moving mouth.

And slowly beyond the gums, over the teeth and through the tonsils and adenoids there it was- the slowly emerging image of Beth Tokioka spinning a silk purse out of a sows ear.

OK not really... but it coulda happened.

For those who haven’t watched the meeting yet, what stood out was the amazing backtracking and finally actual denial- done through the mouth of County Engineer Donald Fujimoto- that the “Umi” site had actually been “selected” by the mayor.

This bit of convoluted 180 could only have come from Tokioka in a desperate attempt to quell the outrage that’s built since Carvalho put his stamp of approval on his task force’s site selection, even touting how he had “done it” where other mayors had failed.

Now that the shibai has hit the fan everyone is running for cover, including Bernard who apparently just “supported the recommendation of his task force” but wasn’t really “selecting” anything... in fact. all the other potential sites are still in play.

That came after, upon council questioning, the consultant admitted that

1) They didn’t really know what was going to be effected or usurped at each potential site due to existing uses- all they did was check the tax maps and zoning.

2) No one even asked the land owners what the availability of their property was and

3) The fact that coffee was growing on the Kalaheo site was not part of the information considered in the “scoring” of each site in their supposed “double-blind” site selection process, one purportedly used to avoid any “NIMBY”- “not in my backyard”- conclusions.

But that “double blind” methodology was a complete joke according to one of the participants we spoke to who said that the members would have had to be total idiots to not know what they were scoring and in fact all of them scored the site(s) in the areas they represented the lowest.

In addition of course, as we could have predicted, their report began with the “fact” that no matter how much reuse, recycling and “transshipment” we will need a new landfill.

But as usual the “why” was conveniently skipped.

So, to get out the old baseball bat and deceased equine, they now have moved from totally ignoring the option of shipping out all the crap we ship in, to acknowledging the possibility but claiming they’ve invented some new kind of opala that can’t be “transshipped” to one of those readily available mainland dumps that are just begging for our discards.

In doing so they’ve moved from “why” we can’t ship it out- especially now that “cost” is not a good answer since Honolulu is doing it for less than it’s costing us per ton now- to “what” exactly is that substance that can’t be shipped out?

Watching the session one can’t help but do what councilmembers did- see a string of those little dollar signs with wings flying away as they listed all the hidden costs of just siting a new landfill, much less opening, running and closing one.

Yet for all the council’s concerns, none of them questioned the consultant’s brief “because I said so” premise for why we need a new dump at all, essentially saying that even with a good zero waste, Max-3R program the shipment of the last few drops to the mainland is impossible for some unstated reason and we still need to dig a hole somewhere and bury all the crap we bring in.

If you buy that, well, we have a bike path to sell ya.

A SERIES OF PAINFUL SHOTS IN THE BELLY

A SERIES OF PAINFUL SHOTS IN THE BELLY: Our last two chief executives – the late Mayor Bryan Baptiste and current Mayor Bernard Carvalho- have had somewhat divergent management styles. While Baptiste’s explosive temper, petty vindictive nature and penchant for secrecy belied his moniker of “Mayor Aloha” Carvalho is more of a well meaning boob and a self-imposed prisoner of an inherited crooked system.

But the resultant entrenched entropic enterprise remained consistently corrupt because both had a weapon in their arsenal to overcome their shortcoming- mouthpiece Beth Tokioka, the brains behind both operations.

So it’s no surprise that she can both deny and confirm “rumors” in the same breath.

The contention in our Monday post that tonight’s meeting on the new landfill in Kalaheo is indeed not just a public “informational meeting” but a “scoping meeting” for the environmental impact statement (EIS) was deftly addressed in today’s newspaper thusly by when reporter Michael Levine asked if it was true:

Tokioka said Wednesday that a rumor floating around that the meeting is “secretly a scoping meeting” and would be the only opportunity for community members to officially testify for the EIS is untrue.

While comments tonight “are valid and should be considered” in the EIS, the formal process has not yet begun and there will be other scoping meetings and other opportunities for community members to voice their concerns, Tokioka said.

There will be another community meeting on Dec. 16, she said. Those two meetings are “above and beyond” what the mayor is required to do by law, she added

Now to the uncritical reader it might appear that Tokioka is denying that this is indeed a scoping meeting. But, like any true weasel, the weasel words she uses belie the denial.

What she “denies” in the first paragraph is only that it is the “only” scoping meeting, announcing for the first time that there will apparently be other scoping meetings- something that the original press release failed to say.

What she isn’t saying is that this is not a scoping meeting.

By way of explanation as we detailed the other day but didn’t state in as many words, no one publicly calls them scoping meetings- the legal term for the information gathering meetings- any more.

That term had become one that alerted the public that it was the time to give input and list items to be mitigated in the EIS so they now call them call them “informational meetings”.

But if you did take the first paragraph as a denial that it was indeed a scoping meeting the second paragraph makes it clear that “there will be other scoping meetings” meaning our contention that this is a “secret” scoping meeting absolutely true in the sense that the fact that it is a scoping meeting was not mentioned in the press release.

The statement that “the formal process has not yet begun” simply depends on what you consider the “formal process” to be. If you don’t include the scoping meetings and consider the beginning to be the compilation of the draft EIS then this is true. But it doesn’t mean that the EIS process doesn’t begin tonight especially since the outfit preparing the EIS will be there tonight- as Tokioka admits “(w)hile comments tonight ‘are valid and should be considered’ in the EIS”.

Based on the press release and the lack of any mention of other “public informational” meetings we wrote on Monday:

What that means is that if you don’t show up to the little “Q&A” you will have missed the all important opportunity to present testimony- legally know as a “scoping meeting”- regarding the issues that should be considered in the EIS that must be prepared for the landfill project to go forward.

Yes- the use of the words “the... opportunity” would indicate it’s the only one.

And that was what gave Tokioka- the now-divorced half of a power couple with State Representative Jimmy Tokioka until the second time he couldn’t keep his pants on- the ability to deny that it was going to be the “only” scoping meeting- something that, with the new information today that there will be other meetings, has changed.

But that’s all that’s changed, The mealy-mouthed way governmental entities try to hide the scoping meetings and corral people into boring presentations and then deny the community the right to have a conversation rather than a lecture is a methodology that Kaua`i county has embraced- Tokioka’s ability to talk out of both sides of her mouth notwithstanding.

ROOTING OUT THE RUBBISH

ROOTING OUT THE RUBBISH: Although the article in today’s local paper announcing that Mayor Bernard Carvalho will be supporting- and presumably signing- the bill banning plastic grocery bags set for council approval next Wednesday, it doesn’t mention what anyone following the bill knows... that this is a major flip flop for hizzonah.

But anyone who thinks that this is some kind of decision resulting from a studied change of heart borne of a concern over the environmental degradation caused by these scurrilous sacks either isn’t paying attention or is on the mayor’s payroll.

Reporter Michael Levine, who penned today’s story, can be excused if he missed Coco Zickos’ story last May before the bill was introduced where she wrote

(A)t Mayor Bernard Carvalho Jr.’s office, the administration says it remains concerned about the environment but seems to favor incentivizing the behavior as opposed to banning the sale of plastic bags.

“The mayor has no immediate plans to introduce legislation banning plastic bags, however, efforts like that of some Kaua`i retail outlets to incentivize the use of reusable grocery bags via discounts or rebates is a great first step in reducing the number of plastic bags on Kaua`i,” said Beth Tokioka, the mayor’s executive assistant, in an e-mail Wednesday.

Carvalho has publicly remained silent on his intentions, although PNN has heard from two different advocates for the bill who were told by him that he opposed the bill and did not intend to sign it.

The “letter” to the council that Levine cited came not in a press release from county spokesperson Mary Daubert but in an email from Carvalho’s mouthpiece and chief political advisor Tokioka who distributed the announcement of the Mayor’s new stance yesterday afternoon in a "reply all" response to a widely distributed email containing an article from local activist Ken Taylor.

The letter was actually a copy of “testimony” sent to the council and doesn’t mention the Carvalho’s former apparent opposition to the ban nor does it of course offer an explanation or any of Carvalho’s thinking on why he changed his mind at the last minute- or more precisely, in a way, after the last minute since the council was poised to pass the bill last Wednesday until testimony from the Chamber of Commerce and the Retail Merchants of Hawai`i opposing the bill caused a deferral for two weeks in order to “consider” the testimony from potential big campaign contributors.

As an aside, we’ve got to say that in 30 years of council watching we’ve never seen any council defer a bill just prior to “second reading” to consider the testimony from an individual community member asking them to reconsider a vote they were about to take.

Well, so what? Well, let us fill in Carvalho’s assessment of his - or should we say Tokioka’s- options... politically that is.

The delay was simply a “consideration” for the all powerful CofC, but not because anyone on the council was going to be changing their mind and voting against the bill two weeks hence.

To do so would be political suicide, as has become apparent during the month or so the bill has been before the council with virtually no testimony opposing it and an island-wide- or more precisely world wide- movement to end the era of plastic grocery bags.

Indeed, as they say, the whole world is watching due to the huge plastic bag patch in the Pacific Ocean, right on our doorstep.

At one point Tokioka- er, Carvalho- must have thought he could garner the votes to sustain a veto. But when it became apparent that all six councilmembers hearing the bill- with Derek “Mr. Big Save” Kawakami recusing himself- were going to vote for the bill Tokioka rightly saw the potential political fallout in November of 2010 and the opportunity that an overridden veto would present to Carvalho’s opponents.

On Kaua`i where people generally want to see the mayor and council working together to address issues, any veto would be a blot on the record of a mayor. Indeed there hasn’t been one that we can recall in the last decade or so.

And an override would stick out like a sore thumb and be not just a meaningless gesture but a meaningful one to his detractors.

Carvalho will certainly be challenged next year and needs to make sure he doesn’t hand any potential opponents- especially ones with superior environmental credentials and endorsements- an issue that would resonate with the powerful environmental protection constituency.

He also can’t afford to be seen as favoring the Chamber of Commerce position among the same constituency that would see it as kow-towing to the fat cats that will no doubt fill his campaign coffers. He can’t hide many of his contributions this time like he did last election when he used the sudden election- and his lack of any past contributions- as well as the laws allowing late filing to delay revealing many of his contributors until after the election was over.

While some may be duped into thinking that this was something that came from a concern for environment on Carvalho’s part they would do well to look at the politics involved and figure out what the real reason is for Carvalho’s 180.