YOUR WRONG TO VOTE: Age has benefits. The "been there done that" factor can halve research time.
Unfortunately when combined with an inevitable senior moment it can lead to misinformation. That's what led us to wrongly tell our readers that the race for prosecuting attorney would be decided on August 11 because only two people are running and one, by definition, is bound to get "50% plus 1."
That's how it has been in every election for prosecuting attorney (PA) on Kaua`i. But now for the first time a charter amendment that was passed by voters in 2008 will take effect for the PA election. And of course, being Kaua`i, it is required that something about it be absurd so the provision essentially says that even though there are only two candidates they will appear on "the first nonpartisan election" ballot for no particular reason other than that is the way the provision was written.
The impetus for the amendment was the 2006 election where, in what is commonly called the "primary" election, then-Mayor Bryan Baptiste ran for reelection and got 50% plus exactly four votes, beating out four opponents in what turned out to be the closest election in Kaua`i history.
It's understandable that with five candidates people just didn't show up for the primaries thinking no one would get the "50% plus 1" needed to be elected outright, without the top two going on to the November election.
They felt cheated when Baptiste got 8,173 votes and chief challenger, former Councilmember Jesse Fukushima came in with 4,725 votes, because when the other three- John Hoff, Bruce Pleas and Janee Taylor- got 1,984, 1,083 and 377 respectively it added up to 8169 votes for the others... four votes shy of the amount that would have prompted a November showdown between Baptiste and Fukushima.
It seemed like a no-brainer- change the charter so that no matter what the vote totals were,d the top two finishers in the primary would meet in November.
So the attorneys (some hired specifically to make sure the amendment did what the charter review commission wanted it to do) worded the amendment this way:
Article I The County And Its Government
Section 1.03. County Elections.
(C)1. Offices of the Mayor, Prosecuting Attorney and Council members to be elected by districts, if any. In the case of the offices of mayor, prosecuting attorney, or any council members to be elected by districts, the names of the two candidates receiving the highest number of votes for these offices in the first nonpartisan election shall be placed on the ballot for the second nonpartisan election. However, if there is only one candidate for each of said offices, such candidate shall be elected. (Amended 2008)
There's one problem with that. It works fine when there are three or more candidates because no matter what "the names of the two candidates receiving the highest number of votes" go on to November.
But the current charter failed to recognize what would happen if there are only two candidates. There are two choices on what the new law could and should do in that case. It could declare that the election- the one that actually elects the candidate- be held during "the first nonpartisan election," unless there is an actual tie- exactly 50% for each in which case they'd go on to November. Or the names could be left off the "primary" ballot- since it's just a waste of paper and ink since it won't determine anything anyway- and let the actual election to be held in November.
But, this being Kaua`i, a third choice was selected and now, for no particular reason, the two candidates for PA- incumbent Shaylene Iseri-Carvalho and challenger Deputy County Attorney Justin Kollar- will appear on the ballot in both August and September.
Which means that there are no meaningful Kaua`i-only, non-partisan races whatsoever on the ballot in August. Although there are partisan Democratic primary elections for US senate and house of representatives, the races for council and prosecuting attorney will appear on the ballot even though the results are moot and all will go on to November.
The same will be true for any future mayoral election and for council races if districting is ever implemented.
Kaua`i has always been "A Separate Kingdom" and, when it comes to writing our laws, a separate reality too.
Showing posts with label Charter Review Commission. Show all posts
Showing posts with label Charter Review Commission. Show all posts
Thursday, July 12, 2012
Tuesday, July 3, 2012
LET'S GO OUT TO THE LOBBY AND GET OURSELVES A WRIT
LET'S GO OUT TO THE LOBBY AND GET OURSELVES A WRIT: The news that the Kaua`i Police Commission has filed suit against Mayor Bernard Carvalho Jr. to have a court determine whether hizzonah had the power to suspend Police Chief Darryl Perry in February is no surprise.
On March 23 we noted that:
The agenda for next Wednesday's council meeting contains the following item:
C 2012-98 Request (03/13/2012) from the Police Commission for authorization to expend funds up to $10,000.00 to retain special counsel to represent the Police Commission in filing a complaint with the Fifth Circuit Court and asking for a declaratory judgment as to who has the authority to supervise and/or discipline the Chief of Police.
In noting the appropriation we said that:
People are always claiming "I hate to tell you 'I told you so,' but..."
Yet who are we kidding?- we love to do it.
So today we'll set up what will most assuredly be a little "see?" moment, sometime in the near future.
So call this Act 2 of this would-be three-act melodrama that, as we noted, will no doubt finish with a somewhat existential ending where, when it’s all over, the characters wind up right were they started.
Because we're willing to bet the farm that neither of the two 5th Circuit Count judges, Randall Valenciano and Kathleen Watanabe, are going to rule on what is essentially a political matter- a matter that the council could, according to the county charter, decide by themselves if they had once iota of election year political will.
Yeah- that'll happen... about the time Kapa`a traffic is a quaint anachronism.
Both judges have shown a propensity for "punting" whenever they possibly can. As we previously pointed out:
Watenabe has a history of punting these kinds of things. For example, in her decisions regarding various cases of disturbances of `iwi kupuna- the bones of native Hawaiians- by developers, she adamantly refused to rule, saying that the laws and regulations regarding the individual island burial councils and the State Historical Preservation Department (SHPD) that oversees the process, are unclear and that the legislature needs to clear thing up.
Our description is an oversimplification. But what is clear is that Watanabe did indicate that the solution was a political decision, not a judicial one.
As to Valenciano he was recently asked by Council members Mel Rapozo and Kipukai Kuali`i to clear up the use of the word "shall" in a matter regarding the Kaua`i Salary Commission's March 15 deadline for submission of their yearly "recommendations." County Attorney Al Castillo had written an opinion that, in this case, ""shall" was used "administratively" and therefor has to be read as "should."
But when the two council members went before Valenciano's court, he also said that it was a political matter and not only didn't the two have standing but that they should look to changing the law to make things clear rather than asking him to essentially split a baby.
Does anyone think that in this case either of the judges are going to get involved? Both come from a government background and perspective, Watanabe having served as county attorney and in other government jobs and Valenciano having been a long-time council member, even running for mayor one time. Both have a healthy respect for letting the government wheels turn as freely as possible and apparently do not want to get involved in inter-agency squabbles like the one over who should discipline the chief.
The ball here is clearly and fully in the council's court...
Section 7.05 of the Kaua`i County Charter details the "Powers, Duties and Functions" of the mayor.
There are 13 "Powers, Duties and Functions" The very last one reads:
"M. Exercise such other powers and perform such other duties as may be prescribed by this charter or by ordinance. (emphasis added)."
This means that the council can actually pass an ordinance regardless of whether the charter defines a specific power of the mayor or not. This is somewhat unusual in that powers not designated in a controlling document cannot normally just be taken in an inferior document (such as the charter and an ordinance respectively)... unless, as it is in this case, it is specifically granted.
The council also has the power to put a charter amendment before the electorate via a resolution.
But either way the problem here is that it exists in the political realm. It is doubly political in that the council must make a political decision as to which entity they want to give that power to- whether they do so via an ordinance or a charter amendment.
Should they give it to the mayor or to the police commission? They will no doubt face criticism for doing either. If they passed an ordinance, first they would have to decide themselves which way to go. If they proposed a charter amendment, they could only propose one or the other for the electorate to vote for- there's no provision for having a referendum type of charter amendment- so they face the same dilemma.
In either scenario, if the council decides to spent the $10,000, the money is completely wasted.
And we're pretty confident that if they do approve the expenditure, we'll wind up with a nice "we told you so" to tack up on the wall with all the others.
At the time we had no illusion that the council would do anything the "easy" way. Then, as now, the seven councilmembers were and are all too aware that public opinion's on the side of the police commission. But not by as wide a margin as many may think.
Despite the brouhaha, Carvalho still has plenty of loyal political adherents who wouldn't take kindly to a charter amendment that would give the disiplining power to the commission.
Make no mistake- everyone in town has an opinion as to whether Carvalho was right or wrong and they're pretty adamant on each side... enough to make it a voting-decision issue.
As a matter of fact just proposing a charter amendment that would give one side or the other the power to discipline or suspend the chief would be a political hazard for councilmember... no matter which way they voted on whichever side the measure would give the power to.
No one on the council can afford to throw away a single "one vote" they're always asking voters to "save" for them. And with the popular former state Senator Gary Hooser in the race there is, with little doubt, going to be one eighth-place-finisher among the incumbents... a vote for one "side" or the other could be the determining factor as to who that "one" is.
The Charter Review Commission (CRC) is still, as far as we know, dithering as to whether to put a measure on the ballot- probably one giving the commission, not the mayor, the power. CRC Chair Sherman Shiraishi actually tried to ask the council what the commission should do earlier this year with no real response forthcoming.
So now that the suit has been filed, as the local newspaper noted this morning, it's conveniently out of the council's hands because supposedly no one is permitted to comment on the matter since it's a "legal" proceeding now.
The paper quoted one of the attorneys filing the suit as saying this.
(Corlis J) Chang said the case is not a complicated one, and they seek to have a 5th Circuit judge decide on who has the authority to discipline the chief of police. The mayor has one view and the police commission has a different view, she said.
“It’s a really simple issue and its one where there are two different viewpoints, and our goal is to get a resolution from the court,” Chang said. “This is straight forward and there are no other agendas here.”
But apparently it is about- well no actually, exactly- 10G's worth of complicated.
This though may just be the key quote in the article:
Chang said it’s very early in the case and once the mayor has responded to the summons they will submit their motions and wait to be assigned a judge and a hearing date. Then she said it would be a matter of presenting legal issues based on documentation and legal precedents.
Apparently getting a ruling that tells the council and police commission to stop wasting the court’s time with what is essentially a political decisions should take until... let's see, subtract the campaign contribution... carry the sign waver... divide by the stack of council certificates and awards... oh we'd say... about... Wednesday, November 7- the day after the election.
On March 23 we noted that:
The agenda for next Wednesday's council meeting contains the following item:
C 2012-98 Request (03/13/2012) from the Police Commission for authorization to expend funds up to $10,000.00 to retain special counsel to represent the Police Commission in filing a complaint with the Fifth Circuit Court and asking for a declaratory judgment as to who has the authority to supervise and/or discipline the Chief of Police.
In noting the appropriation we said that:
People are always claiming "I hate to tell you 'I told you so,' but..."
Yet who are we kidding?- we love to do it.
So today we'll set up what will most assuredly be a little "see?" moment, sometime in the near future.
So call this Act 2 of this would-be three-act melodrama that, as we noted, will no doubt finish with a somewhat existential ending where, when it’s all over, the characters wind up right were they started.
Because we're willing to bet the farm that neither of the two 5th Circuit Count judges, Randall Valenciano and Kathleen Watanabe, are going to rule on what is essentially a political matter- a matter that the council could, according to the county charter, decide by themselves if they had once iota of election year political will.
Yeah- that'll happen... about the time Kapa`a traffic is a quaint anachronism.
Both judges have shown a propensity for "punting" whenever they possibly can. As we previously pointed out:
Watenabe has a history of punting these kinds of things. For example, in her decisions regarding various cases of disturbances of `iwi kupuna- the bones of native Hawaiians- by developers, she adamantly refused to rule, saying that the laws and regulations regarding the individual island burial councils and the State Historical Preservation Department (SHPD) that oversees the process, are unclear and that the legislature needs to clear thing up.
Our description is an oversimplification. But what is clear is that Watanabe did indicate that the solution was a political decision, not a judicial one.
As to Valenciano he was recently asked by Council members Mel Rapozo and Kipukai Kuali`i to clear up the use of the word "shall" in a matter regarding the Kaua`i Salary Commission's March 15 deadline for submission of their yearly "recommendations." County Attorney Al Castillo had written an opinion that, in this case, ""shall" was used "administratively" and therefor has to be read as "should."
But when the two council members went before Valenciano's court, he also said that it was a political matter and not only didn't the two have standing but that they should look to changing the law to make things clear rather than asking him to essentially split a baby.
Does anyone think that in this case either of the judges are going to get involved? Both come from a government background and perspective, Watanabe having served as county attorney and in other government jobs and Valenciano having been a long-time council member, even running for mayor one time. Both have a healthy respect for letting the government wheels turn as freely as possible and apparently do not want to get involved in inter-agency squabbles like the one over who should discipline the chief.
The ball here is clearly and fully in the council's court...
Section 7.05 of the Kaua`i County Charter details the "Powers, Duties and Functions" of the mayor.
There are 13 "Powers, Duties and Functions" The very last one reads:
"M. Exercise such other powers and perform such other duties as may be prescribed by this charter or by ordinance. (emphasis added)."
This means that the council can actually pass an ordinance regardless of whether the charter defines a specific power of the mayor or not. This is somewhat unusual in that powers not designated in a controlling document cannot normally just be taken in an inferior document (such as the charter and an ordinance respectively)... unless, as it is in this case, it is specifically granted.
The council also has the power to put a charter amendment before the electorate via a resolution.
But either way the problem here is that it exists in the political realm. It is doubly political in that the council must make a political decision as to which entity they want to give that power to- whether they do so via an ordinance or a charter amendment.
Should they give it to the mayor or to the police commission? They will no doubt face criticism for doing either. If they passed an ordinance, first they would have to decide themselves which way to go. If they proposed a charter amendment, they could only propose one or the other for the electorate to vote for- there's no provision for having a referendum type of charter amendment- so they face the same dilemma.
In either scenario, if the council decides to spent the $10,000, the money is completely wasted.
And we're pretty confident that if they do approve the expenditure, we'll wind up with a nice "we told you so" to tack up on the wall with all the others.
At the time we had no illusion that the council would do anything the "easy" way. Then, as now, the seven councilmembers were and are all too aware that public opinion's on the side of the police commission. But not by as wide a margin as many may think.
Despite the brouhaha, Carvalho still has plenty of loyal political adherents who wouldn't take kindly to a charter amendment that would give the disiplining power to the commission.
Make no mistake- everyone in town has an opinion as to whether Carvalho was right or wrong and they're pretty adamant on each side... enough to make it a voting-decision issue.
As a matter of fact just proposing a charter amendment that would give one side or the other the power to discipline or suspend the chief would be a political hazard for councilmember... no matter which way they voted on whichever side the measure would give the power to.
No one on the council can afford to throw away a single "one vote" they're always asking voters to "save" for them. And with the popular former state Senator Gary Hooser in the race there is, with little doubt, going to be one eighth-place-finisher among the incumbents... a vote for one "side" or the other could be the determining factor as to who that "one" is.
The Charter Review Commission (CRC) is still, as far as we know, dithering as to whether to put a measure on the ballot- probably one giving the commission, not the mayor, the power. CRC Chair Sherman Shiraishi actually tried to ask the council what the commission should do earlier this year with no real response forthcoming.
So now that the suit has been filed, as the local newspaper noted this morning, it's conveniently out of the council's hands because supposedly no one is permitted to comment on the matter since it's a "legal" proceeding now.
The paper quoted one of the attorneys filing the suit as saying this.
(Corlis J) Chang said the case is not a complicated one, and they seek to have a 5th Circuit judge decide on who has the authority to discipline the chief of police. The mayor has one view and the police commission has a different view, she said.
“It’s a really simple issue and its one where there are two different viewpoints, and our goal is to get a resolution from the court,” Chang said. “This is straight forward and there are no other agendas here.”
But apparently it is about- well no actually, exactly- 10G's worth of complicated.
This though may just be the key quote in the article:
Chang said it’s very early in the case and once the mayor has responded to the summons they will submit their motions and wait to be assigned a judge and a hearing date. Then she said it would be a matter of presenting legal issues based on documentation and legal precedents.
Apparently getting a ruling that tells the council and police commission to stop wasting the court’s time with what is essentially a political decisions should take until... let's see, subtract the campaign contribution... carry the sign waver... divide by the stack of council certificates and awards... oh we'd say... about... Wednesday, November 7- the day after the election.
Sunday, April 15, 2012
DRIVING MR. CRAZY
DRIVING MR. CRAZY: It's been almost a dozen years since the first in a line of Kaua`i county attorneys began a new interpretation regarding just exactly whom they serve.
And it's been almost a dozen years that we've been waiting for a Kaua`i County Charter amendment that would put some kind of "public component" back into the job.
But even though a proposed charter amendment is in the pipeline it appears it's only going to make things worse.
Of course that is predictable considering the source.
Councilperson Mel Rapozo can always be counted upon to make muddy political waters even murkier. This time he's outdone himself with a pair of Resolutions, #'s 2012-22 and 2012-23 (neither of which is apparently available on-line), that, rather than put the Office of the County Attorney (CA) as far outside the reach of politics as is possible in county government, will insure that petty disagreements between future councils and administrations grow to Hatfield and McCoy proportions.
The first, Resolution 2012-22 is not actually directly related to the county attorney. But it is a result of the original event that begat the short-circuiting smoke currently emanating from the ears adjacent to Rapozo's decidedly less-than-legal mind.
The "reso" stems from Mel's head-scratching and seemingly meaningless obsession over last year's "late" salary commission (SC) proposal. It spawned a CA opinion that explained what "shall" meant in the context of the SC section of the charter, saying it was "administrative" rather than "directional" and citing some judicial rulings to that affect.
It basically said "give it a rest Mel."
But them's fightin' words to the Baboozster.
Rapozo decided to go to circuit court for a "ruling" but Judge Randall Valenciano essentially said the same thing as the CA had said. So now Mel has decided to take his obsession to the voters and, in Resolution 2012-22 he proposes to put the matter before the voters.
The rest of the council seems less than enthusiastic and at the second and potentially final reading last Wednesday they deferred the measure "Proposing A Charter Amendment Relating To Definitions Of 'Shall', 'Must', And 'May.'"
Oh joy... we can hardly wait to see how those terms will be defined in the "Mel Rapozo Legal Dictionary." We wouldn't want to depend on Black's when we can get it straight from the horse's read end.
But Mel wasn't done. After proposing to redefine legal terms with a Rapozian slant, he's decided that it was the dastardly-brilliant legal mind of Mayor Bernard Carvalho, Jr. that concocted well-known Philadelphia Lawyer, CA Al Castillo's opinion on the matter.
As a result of Mel's fixation he came up with "Resolution No. 2012-23 "Proposing A Charter Amendment Relating To The Establishment Of The Office Of The Council Attorney" which would apparently divide the CA's office in two giving both the administration and the council their own independent county attorneys.
The pertinent parts of the current charter under "Article VIII- County Attorney" say:
Section 8.02. Appointment and Removal. The county attorney shall be appointed and may be removed by the mayor, with the approval of the council....
Section 8.04. Powers, Duties and Functions. The county attorney shall be the chief legal adviser and legal representative of all agencies, including the council, and of all officers and employees in matters relating to their official powers and duties, and he shall represent the county in all legal proceedings. He shall perform all other services incident to his office as may be required by law.
But perhaps because he operates like them, Rapozo sees a political ghostie and ghoulie behind every door of the county's administrative offices and wants to enshrine his suspicions about Castillo's "opinions" by altering the county's overriding legal document, the charter, in his own image.
To understand how things got to this point- other than by simply saying "Mel got elected"- we need to go back to the history and evolution of the the functioning of the CA's office.
In 2001, then-newly-elected Mayor Bryan Baptiste hired current county "good-old-girl" Lani Nakazawa to her first-of-many positions with the county. She succeeded former Mayor Maryanne Kusaka's CA, Hartwell Blake, who rarely opined on anything other than how comfortable he was spending most of his years in the job sleeping under the air conditioner in the back of the council chambers.
Although the charter section on the CA is silent on anything relating to serving the public, before Nakazawa took office, CA's generally thought of the job as one that, while advising county administrative personnel as well as the council, publicly opined on questions of law regarding the county's charter, ordinances and administrative rules and routinely released those opinions to the public. .
He- yes of course they had all been "he's"- did it as part of what they saw as an implied "public component" of the CA's job.
When the 2006 Charter Review Commission (CRC) had its first confab one appointee was the former CA under then-Mayor JoAnn Yukimura, Michael Belles.
We attended that first meeting of the panel which was comprised of many surprisingly open-to-change appointees. In addition to testifying about our own experiences with shortcomings of the charter, we spoke to Belles during a break.
He asked what the one item was that we would most like see tackled. Our answer was "a total reorganization of all of Article VIII: County Attorney" especially parts regarding the "Appointment and Removal" and "Powers, Duties and Functions," excerpted above.
We explained the problems under Nakazawa which had included the fact that her strict reading of the section meant that she saw no public element to her job serving only county employees and officials- and never releasing any opinions unless her "clients" released them.
We even suggested that the CA become an elected position, thereby solving many of the problems created by conflicts between the mayor and council- or any two county entities for that matter.
Belles was surprised at the turn of events since his time as CA and said that during his tenure he would have "never imagined" that there was no "public component" to the job. As a matter of fact, he told us, he couldn't remember ever not releasing any of his or his offices opinion's of law.
A proposed amendment regarding the Office of the County Attorney's (OCA) never made it on any CRC list- it wasn't exactly a sexy issue and probably way too "inside baseball" for the public and maybe even the CRC. It wasn't even on commission members' radar screens.
They eventually put around a dozen-and-a-half amendments before the voters after narrowing it down from more than 30 original proposals so as to make citizen deliberation and decision-making manageable at election time.
But nothing on the OCA.
Ever since Nakazawa's reign, every county attorney has refused to release to the public opinions regarding interpretation of laws, especially those requested by the council. Add to that a council scheme to avoid releasing them until some convoluted, much debated, "process" for doing so was in place- something which the council under former-Chair Kaipo Asing quite mysteriously (yeah, right) could never figure out how to do- and of course no opinions were ever released.
That set up years of "Star Chamber" activities where not only couldn't they tell the public what the opinions were but the council would go into closed door "executive sessions (ES)" to even discuss what they were going to be discussing.
This year, under new Council Chair Jay Furfaro and after a years-on-end attempt by Councilmember Tim Bynum to just get the matter on the agenda under Asing, not only has a process been set up but opinions have even allegedly been "released."
But that's a big "allegedly."
Because damned if anyone has been able to get copies of the opinion or even find out if they have actually been released because the votes to release them have either been done in ES or, if they have actually been voted upon in open session, it's been done after the TV cameras have ceased to roll.
We still have not been able to get a copy of- or even figure out if it's available- the infamous opinion which, quite apparently, is actually at the heart of the Rapozo's discontent... the one that apparently says the mayor, not the police commission, has the authority to "discipline" or "suspend" the chief of police.
It's a perfect example of the continued dysfunction. The question of the release of that opinion was on the council's ES agenda for weeks on end only to stop appearing in March. Despite having asked numerous people who should be in the know, we still haven't been able to get a straight answer to the question of whether it's now a public document- much less get a copy of it if it is.
Oh sure- everyone including the Sultan of Brunei has referred to what the opinion supposedly says. But just try to get more than that out of anybody.
Today we're stuck with a definition of the appointment and duties of the CA that were written over 40 years ago at and for a time when the size of county government was probably less than a tenth of that of today. And the potential for political machination in- and so politicization of- the Office of the CA has grown exponentially along with that growth.
Throw one Mel Rapozo into the mix and something's gotta give.
Unfortunately the lack of political visionaries sitting around the council table- or at least ones willing to publicly spar with Mel over the matter- has enabled the original squeaky wheel to be poised to get all the grease.
And, as we intimated above, don't expect the CRC to tackle it. Chair Sherman Shiraishi has fully defeated the purpose of the CRC by coming before the council to ask them what they think each and every proposal the CRC is considering, effectively cutting the three ways of getting a charter amendment on the ballot- by citizen petition, by council resolution or by the CRC placing it there- down to two.
It looks like the council and mayor are going to "throw a rod" on the County's Truck-of-State long before anyone even bothers to look under the hood much less tackle a proper engine rebuild with what's best for the public in mind.
There's only one place that vehicle is being driven... and that's nuts.
And it's been almost a dozen years that we've been waiting for a Kaua`i County Charter amendment that would put some kind of "public component" back into the job.
But even though a proposed charter amendment is in the pipeline it appears it's only going to make things worse.
Of course that is predictable considering the source.
Councilperson Mel Rapozo can always be counted upon to make muddy political waters even murkier. This time he's outdone himself with a pair of Resolutions, #'s 2012-22 and 2012-23 (neither of which is apparently available on-line), that, rather than put the Office of the County Attorney (CA) as far outside the reach of politics as is possible in county government, will insure that petty disagreements between future councils and administrations grow to Hatfield and McCoy proportions.
The first, Resolution 2012-22 is not actually directly related to the county attorney. But it is a result of the original event that begat the short-circuiting smoke currently emanating from the ears adjacent to Rapozo's decidedly less-than-legal mind.
The "reso" stems from Mel's head-scratching and seemingly meaningless obsession over last year's "late" salary commission (SC) proposal. It spawned a CA opinion that explained what "shall" meant in the context of the SC section of the charter, saying it was "administrative" rather than "directional" and citing some judicial rulings to that affect.
It basically said "give it a rest Mel."
But them's fightin' words to the Baboozster.
Rapozo decided to go to circuit court for a "ruling" but Judge Randall Valenciano essentially said the same thing as the CA had said. So now Mel has decided to take his obsession to the voters and, in Resolution 2012-22 he proposes to put the matter before the voters.
The rest of the council seems less than enthusiastic and at the second and potentially final reading last Wednesday they deferred the measure "Proposing A Charter Amendment Relating To Definitions Of 'Shall', 'Must', And 'May.'"
Oh joy... we can hardly wait to see how those terms will be defined in the "Mel Rapozo Legal Dictionary." We wouldn't want to depend on Black's when we can get it straight from the horse's read end.
But Mel wasn't done. After proposing to redefine legal terms with a Rapozian slant, he's decided that it was the dastardly-brilliant legal mind of Mayor Bernard Carvalho, Jr. that concocted well-known Philadelphia Lawyer, CA Al Castillo's opinion on the matter.
As a result of Mel's fixation he came up with "Resolution No. 2012-23 "Proposing A Charter Amendment Relating To The Establishment Of The Office Of The Council Attorney" which would apparently divide the CA's office in two giving both the administration and the council their own independent county attorneys.
The pertinent parts of the current charter under "Article VIII- County Attorney" say:
Section 8.02. Appointment and Removal. The county attorney shall be appointed and may be removed by the mayor, with the approval of the council....
Section 8.04. Powers, Duties and Functions. The county attorney shall be the chief legal adviser and legal representative of all agencies, including the council, and of all officers and employees in matters relating to their official powers and duties, and he shall represent the county in all legal proceedings. He shall perform all other services incident to his office as may be required by law.
But perhaps because he operates like them, Rapozo sees a political ghostie and ghoulie behind every door of the county's administrative offices and wants to enshrine his suspicions about Castillo's "opinions" by altering the county's overriding legal document, the charter, in his own image.
To understand how things got to this point- other than by simply saying "Mel got elected"- we need to go back to the history and evolution of the the functioning of the CA's office.
In 2001, then-newly-elected Mayor Bryan Baptiste hired current county "good-old-girl" Lani Nakazawa to her first-of-many positions with the county. She succeeded former Mayor Maryanne Kusaka's CA, Hartwell Blake, who rarely opined on anything other than how comfortable he was spending most of his years in the job sleeping under the air conditioner in the back of the council chambers.
Although the charter section on the CA is silent on anything relating to serving the public, before Nakazawa took office, CA's generally thought of the job as one that, while advising county administrative personnel as well as the council, publicly opined on questions of law regarding the county's charter, ordinances and administrative rules and routinely released those opinions to the public. .
He- yes of course they had all been "he's"- did it as part of what they saw as an implied "public component" of the CA's job.
When the 2006 Charter Review Commission (CRC) had its first confab one appointee was the former CA under then-Mayor JoAnn Yukimura, Michael Belles.
We attended that first meeting of the panel which was comprised of many surprisingly open-to-change appointees. In addition to testifying about our own experiences with shortcomings of the charter, we spoke to Belles during a break.
He asked what the one item was that we would most like see tackled. Our answer was "a total reorganization of all of Article VIII: County Attorney" especially parts regarding the "Appointment and Removal" and "Powers, Duties and Functions," excerpted above.
We explained the problems under Nakazawa which had included the fact that her strict reading of the section meant that she saw no public element to her job serving only county employees and officials- and never releasing any opinions unless her "clients" released them.
We even suggested that the CA become an elected position, thereby solving many of the problems created by conflicts between the mayor and council- or any two county entities for that matter.
Belles was surprised at the turn of events since his time as CA and said that during his tenure he would have "never imagined" that there was no "public component" to the job. As a matter of fact, he told us, he couldn't remember ever not releasing any of his or his offices opinion's of law.
A proposed amendment regarding the Office of the County Attorney's (OCA) never made it on any CRC list- it wasn't exactly a sexy issue and probably way too "inside baseball" for the public and maybe even the CRC. It wasn't even on commission members' radar screens.
They eventually put around a dozen-and-a-half amendments before the voters after narrowing it down from more than 30 original proposals so as to make citizen deliberation and decision-making manageable at election time.
But nothing on the OCA.
Ever since Nakazawa's reign, every county attorney has refused to release to the public opinions regarding interpretation of laws, especially those requested by the council. Add to that a council scheme to avoid releasing them until some convoluted, much debated, "process" for doing so was in place- something which the council under former-Chair Kaipo Asing quite mysteriously (yeah, right) could never figure out how to do- and of course no opinions were ever released.
That set up years of "Star Chamber" activities where not only couldn't they tell the public what the opinions were but the council would go into closed door "executive sessions (ES)" to even discuss what they were going to be discussing.
This year, under new Council Chair Jay Furfaro and after a years-on-end attempt by Councilmember Tim Bynum to just get the matter on the agenda under Asing, not only has a process been set up but opinions have even allegedly been "released."
But that's a big "allegedly."
Because damned if anyone has been able to get copies of the opinion or even find out if they have actually been released because the votes to release them have either been done in ES or, if they have actually been voted upon in open session, it's been done after the TV cameras have ceased to roll.
We still have not been able to get a copy of- or even figure out if it's available- the infamous opinion which, quite apparently, is actually at the heart of the Rapozo's discontent... the one that apparently says the mayor, not the police commission, has the authority to "discipline" or "suspend" the chief of police.
It's a perfect example of the continued dysfunction. The question of the release of that opinion was on the council's ES agenda for weeks on end only to stop appearing in March. Despite having asked numerous people who should be in the know, we still haven't been able to get a straight answer to the question of whether it's now a public document- much less get a copy of it if it is.
Oh sure- everyone including the Sultan of Brunei has referred to what the opinion supposedly says. But just try to get more than that out of anybody.
Today we're stuck with a definition of the appointment and duties of the CA that were written over 40 years ago at and for a time when the size of county government was probably less than a tenth of that of today. And the potential for political machination in- and so politicization of- the Office of the CA has grown exponentially along with that growth.
Throw one Mel Rapozo into the mix and something's gotta give.
Unfortunately the lack of political visionaries sitting around the council table- or at least ones willing to publicly spar with Mel over the matter- has enabled the original squeaky wheel to be poised to get all the grease.
And, as we intimated above, don't expect the CRC to tackle it. Chair Sherman Shiraishi has fully defeated the purpose of the CRC by coming before the council to ask them what they think each and every proposal the CRC is considering, effectively cutting the three ways of getting a charter amendment on the ballot- by citizen petition, by council resolution or by the CRC placing it there- down to two.
It looks like the council and mayor are going to "throw a rod" on the County's Truck-of-State long before anyone even bothers to look under the hood much less tackle a proper engine rebuild with what's best for the public in mind.
There's only one place that vehicle is being driven... and that's nuts.
Wednesday, April 4, 2012
NEWS DIRECT FROM THE MAGIC KINGDOM
NEWS DIRECT FROM THE MAGIC KINGDOM: We've done a lot of kvetching over the years regarding what passes for news reporting in our local Kaua`i newspaper. Although the depth of the newspaper's recent reporting has been particularly abysmal, it positively glows when compared to what the Honolulu press collectively thinks is going on over here.
The contraction of both the print and TV press in the "city and county" hasn't helped. Not only did the Honolulu Star-Bulletin somehow "buy out" it's mammoth competitor the Advertiser, even before they became the pay-walled "Star-Advertiser (S-A)" they had eliminated their permanent news bureaus on the neighbor island.
That, along with a decision to forgo even "stringers," has left their coverage of all things Kaua`i to either non-datelined blurbs containing city-desk-generated, re-written press releases or synopses of articles from our local Kaua`i newspaper.
When there is a byline on a "news" article about Kaua`i, the lack of a dateline (the name of the place the reporter is physically reporting from), noted at the start of an article indicates the closest anyone came to Kaua`i was their travel section.
TV is even worse. With the "merger" of KHNL and KGMB there is one less local news program- not that the Honolulu-centric nature of any of the Honolulu TV news outlets has ever really served Kaua`i.
Case in point has been the recent coverage of the Kaua`i Charter Review Commission's (CRC) so-called "hearings" on the recent kerfuffle between Mayor Bernard Carvalho Jr. and Chief of Police Darryl Perry.
At issue, as those who haven't been on Jupiter for the last couple of months have heard, is whether Carvalho overstepped his authority in "suspending" the chief over, well, no one will really say over what, but there sure has been a lot of speculation.
The problem with the way the Honolulu press covers Kaua`i might be summed-up by looking more closely at a blurb from the "Newswatch" column- a daily series of news briefs- in today's S-A.
It repeats a notion that has crept into reports on the matter from all the Honolulu news outlet for weeks now. Their "lede" says:
The Kauai County Charter Review Commission has yet to rule on whether the mayor has the authority to suspend the police chief.
We're not sure where they got the idea that our CRC has any power whatsoever to "rule" on the subject but if any of them had bothered to peruse the Kaua`i County Charter they would have found that ruling on interpretations of the charter is not one of the CRC's enumerated powers.
Section 24.03 of the Kaua`i charter, "Charter Review," says that the seven members of the CRC are to be appointed by the mayor and "serve in accordance with Section 23.02C of this Charter."
The only power enumerated is that:
In the event the commission deems changes are necessary or desirable, the commission may propose amendments to the existing charter or draft a new charter...
Then it explains how any such change is submitted to and voted upon by the electorate.
But there is, if anything, a prohibition on any "ruling." The aforementioned Section 23.02, "Boards and Commissions," enumerates 14 general provisions regarding boards and commission. And the 13th, section M, says that:
Except for purposes of inquiry, no board or commission, nor its members, shall interfere in any way with the routine administrative affairs of its department normally administered by the department head.
We don't know from which orifice this "fact" about waiting for a "ruling" was originally pulled. Perhaps the Honolulu Charter gives their CRC- assuming they have one- a similar power. But it's the very presumption itself- that neighbor islands are "just like Honolulu, only smaller" that represents the uselessness of the S-A to those on Kaua`i, if not Maui and Hawai`i Island.
It took us all of 10 minutes, tops, to look this up. Yet this business of some forthcoming "ruling" from CRC has been repeated over and over by all three Honolulu TV news outlets and the local newspaper. Not only is it "statewide news" regarding the Perry-Carvalho dust-up, it is the ONLY statewide news recently regarding the subject.
Due to the nature of this column, we're sort of forced to pay the fee to read the S-A, which actually is pretty cheap- around $20 for the year for neighbor islanders.
Apparently you get what you pay for.
The contraction of both the print and TV press in the "city and county" hasn't helped. Not only did the Honolulu Star-Bulletin somehow "buy out" it's mammoth competitor the Advertiser, even before they became the pay-walled "Star-Advertiser (S-A)" they had eliminated their permanent news bureaus on the neighbor island.
That, along with a decision to forgo even "stringers," has left their coverage of all things Kaua`i to either non-datelined blurbs containing city-desk-generated, re-written press releases or synopses of articles from our local Kaua`i newspaper.
When there is a byline on a "news" article about Kaua`i, the lack of a dateline (the name of the place the reporter is physically reporting from), noted at the start of an article indicates the closest anyone came to Kaua`i was their travel section.
TV is even worse. With the "merger" of KHNL and KGMB there is one less local news program- not that the Honolulu-centric nature of any of the Honolulu TV news outlets has ever really served Kaua`i.
Case in point has been the recent coverage of the Kaua`i Charter Review Commission's (CRC) so-called "hearings" on the recent kerfuffle between Mayor Bernard Carvalho Jr. and Chief of Police Darryl Perry.
At issue, as those who haven't been on Jupiter for the last couple of months have heard, is whether Carvalho overstepped his authority in "suspending" the chief over, well, no one will really say over what, but there sure has been a lot of speculation.
The problem with the way the Honolulu press covers Kaua`i might be summed-up by looking more closely at a blurb from the "Newswatch" column- a daily series of news briefs- in today's S-A.
It repeats a notion that has crept into reports on the matter from all the Honolulu news outlet for weeks now. Their "lede" says:
The Kauai County Charter Review Commission has yet to rule on whether the mayor has the authority to suspend the police chief.
We're not sure where they got the idea that our CRC has any power whatsoever to "rule" on the subject but if any of them had bothered to peruse the Kaua`i County Charter they would have found that ruling on interpretations of the charter is not one of the CRC's enumerated powers.
Section 24.03 of the Kaua`i charter, "Charter Review," says that the seven members of the CRC are to be appointed by the mayor and "serve in accordance with Section 23.02C of this Charter."
The only power enumerated is that:
In the event the commission deems changes are necessary or desirable, the commission may propose amendments to the existing charter or draft a new charter...
Then it explains how any such change is submitted to and voted upon by the electorate.
But there is, if anything, a prohibition on any "ruling." The aforementioned Section 23.02, "Boards and Commissions," enumerates 14 general provisions regarding boards and commission. And the 13th, section M, says that:
Except for purposes of inquiry, no board or commission, nor its members, shall interfere in any way with the routine administrative affairs of its department normally administered by the department head.
We don't know from which orifice this "fact" about waiting for a "ruling" was originally pulled. Perhaps the Honolulu Charter gives their CRC- assuming they have one- a similar power. But it's the very presumption itself- that neighbor islands are "just like Honolulu, only smaller" that represents the uselessness of the S-A to those on Kaua`i, if not Maui and Hawai`i Island.
It took us all of 10 minutes, tops, to look this up. Yet this business of some forthcoming "ruling" from CRC has been repeated over and over by all three Honolulu TV news outlets and the local newspaper. Not only is it "statewide news" regarding the Perry-Carvalho dust-up, it is the ONLY statewide news recently regarding the subject.
Due to the nature of this column, we're sort of forced to pay the fee to read the S-A, which actually is pretty cheap- around $20 for the year for neighbor islanders.
Apparently you get what you pay for.
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