IT'S A DIRTY JOB BUT NOBODY'S GOT TO DO IT: Sometime it's an occasion for a straight rant, usually after an unusually pathetic, yet successful injustice has been perpetrated. But sometimes things are so enraging and we find it so hard to fit into our new and improved engagingly rabid outfit that we resort to a simple news report.
So after receiving word last week that the Office of Information Practices (OIP) decided to issue an "informal opinion" saying that Former Chair Kaipo Asing conspired with former County Clerk Peter Nakamura to go behind closed doors under false pretenses three years ago, in order to contain our rage we went with the just the facts, ma’am.
We were just going to leave it at that until yesterday when Joan Conrow carefully inserted the opinion in our craw speaking about how
former County Council Chair Kaipo Asing violated the sunshine law — three years ago. Yup, that's how long it took the OIP to rule on a citizen complaint. And even then, you still would have to go to court to void any action that was taken during an improperly noticed meeting, adding many more months to the process. It seems government transparency, absent expediency, doesn't really count for much.
ALL RIGHT, ALL RIGHT, ALL RIGHT. We can't get away with anything around here.
We did intentionally leave out the end of the opinion because to delve into what it truly meant would have generated enough ear-steam to power a small village.
It repeated one of the most egregious half truths in the annals of open governance. Under the title "Right to Bring Suit to Enforce Sunshine Law and to Void Board Action" it said:
Any person may file a lawsuit to require compliance with or to prevent a violation of the Sunshine Law or to determine the applicability of the Sunshine Law to discussions or decisions of a government board. The court may order payment of reasonable attorney fees and costs to the prevailing party in such a lawsuit.
This bit of butt-derived garbage directly conflicts with the state Sunshine Law which, in Section §92-12 "Enforcement" says:
(a) The attorney general and the prosecuting attorney shall enforce this part.
(b) The circuit courts of the State shall have jurisdiction to enforce the provisions of this part by injunction or other appropriate remedy.
Pretty clear, eh? Yet not one of the hundreds of of formal and informal opinions OIP has issued since 1989- especially the dozens that essentially called the actions of various boards unlawful- has been enforced by either the attorney general or any of the county prosecuting attorneys.
But how can that be- isn't the law clear as to their responsibility?
You'd think so- but noooooo.
Although it's been a while since the last time any attorney general has responded to an inquiry- and we don't believe there is a written opinion on the subject- when we did get an answer way back when, we were referred to the rest of the "Enforcement" section. It says:
(c) Any person may commence a suit in the circuit court of the circuit in which a prohibited act occurs for the purpose of requiring compliance with or preventing violations of this part or to determine the applicability of this part to discussions or decisions of the public body.
Though the reasoning is way too tortured for the way understand logic to work the gist of the AG's contention is that, because "(a)ny person may commence a suit in the circuit court of the circuit in which a prohibited act occurs for the purpose of requiring compliance," the AG will not do a damn thing and rather, will graciously allow one of those "any persons" do the dirty work.
The problem with that is two-fold. First of all the law doesn't say the AG may enforce this part it says (s)he "shall" enforce it.
For the second problem the first thing one must do is take a look at the next part of the Sunshine Law- §92-13 Penalties.
It says:
Any person who wilfully (sic) violates any provisions of this part shall be guilty of a misdemeanor, and upon conviction, may be summarily removed from the board unless otherwise provided by law.
Misdemeanors in the state of Hawai`i are punishable by not more than $1000 fine, a year in jail or both.
Yet §92-12(c) refers to the lawsuit a person files being "for the purpose of requiring compliance with or preventing violations of this part or to determine the applicability of this part to discussions or decisions of the public body. "
The problem that we're talking abut meetings where the board is about to go into what is essentially an unlawful secret meeting. So how would you stop them? With an injunction? Well, a certain conundrum is presented by the rest of §92-12. That bit of unreality says:
(d) The proceedings for review shall not stay the enforcement of any agency decisions; but the reviewing court may order a stay if the following criteria have been met:
(1) There is likelihood that the party bringing the action will prevail on the merits;
(2) Irreparable damage will result if a stay is not ordered;
(3) No irreparable damage to the public will result from the stay order; and
(4) Public interest will be served by the stay order.
As we said, it doesn't matter what the heck the likelihood is of a party prevailing, any irreparable damage or some kind of public interest because the deed will have already been done by the time a "person" files a suit... unless you have one of those Twilight Zone stop watches that can put the board meeting in suspended animation while you track down a lawyer who can track down a judge who can and will rush over to interrogate the board and issue an injunction.
Of course this is all practically moot these days because of a case called "OIP vs County of Kaua`i" which- leaving out all the juicy stuff involving the infamous ES-177, Asing, current Councilperson and former star of the book KPD Blue (see left rail) Mel Rapozo, former Finance Director and current Grove Farm Veep and Koloa Camp evictor Mike Tressler, the Kaua`i Board of Ethics, former Police Chief KC Lum and a cast of seemingly thousands- essentially defanged OIP and turned what used to be known as the best Sunshine Law in the country into a parody of open meetings laws.
Because all a person can do is file a civil suit and seek to overturn the actions. Even if this opinion wasn't three years old it doesn't seem to mean anything as far as the Penalty section is concerned.
Although in this case the opinion appears to say that the action was "willful"- especially since Asing and Nakamura refused to even respond to OIP inquiries- who exactly is there from whom to seek the criminal penalties... which, if we understand the American jurisprudence system correctly, is what is supposed to deter people from doing it again in the future, not encourage the action over and over by essentially saying the law is a joke.
Ah, crap- now we're thoroughly pissed off. Shoulda stuck with the news.
Showing posts with label Chief Lum. Show all posts
Showing posts with label Chief Lum. Show all posts
Wednesday, July 4, 2012
Friday, May 25, 2012
OFF THE DEEP END
OFF THE DEEP END: Nobody questions whether rats will desert a sinking ship. But how long they will wait before doing so probably depends on the circumstances. But when one starts, the rest usually follow
Obviously they can't take too long, which is why at least two councilmembers decided they'd waited long enough to abandon the SS P.O.H.A.K.U and they'd be damned if they were going down with Captain Spittle of Malaprop.
Councilmember Nadine Nakamura was backpedaling like Michael Jackson on steroids. She apparently didn’t like her political prospects should she let stand as her final word on the subject her recent vote to allow Kaua`i Prosecuting Attorney Shaylene Iseri Carvalho to run out the clock. And Chair Jay Furfaro also smelled trouble should he do the same.
Even Kipukai Kuali`i and Dickie Chang silently went along with the program, leaving only Iseri's first Mate Mel Rapozo standing on the deck.
For those who thought last week's vote to pass the Office of the Prosecuting Attorney's (OPA) budget without any resolution to Iseri's scandalous refusal to answer until she got a county-paid special counsel to represent her was going to be the last word on the subject, guess again.
Because Wednesday (go to 9:24:20), after Yukimura introduced a measure to ask the Board of Ethics (BOE) to look into the matter and read a statement written by Bynum (see below) detailing Iseri's misdeeds (Bynum was absent due to the imminent birth of his first grandchild), it became apparent that continuing to allow Iseri to get away with alleged crimes and misdemeanors was a bad idea if they expected to get reelected.
Before Bynum's statement was read, Iseri's First Mate, Councilmember Mel Rapozo, had attempted to defuse potential defections by launching into a "my-my, it's enough to give a lady the vapors" spiel, tying to claim that he'd never seen anything like this level of scrutiny in his political career- seemingly forgetting about his own politically motivated crusade to oust former Chief of Police KC Lum.
He then announced that, anyway, the administration had "launched an inquiry" into the whole matter.
But when Yukimura read Bynum's statement and "corrected" Rapozo by saying the administration was looking into the procurement improprieties but not the general ethics charges, it became apparent that no one was going to stay aboard with Mel and Shay.
Bynum's statement read:
On April 11, 2012 the Council met in executive session on matters that included the POHAKU program. An Executive Session was posted for a briefing related to POHAKU on April 18, 2012. On April 18th Deputy County Attorney Mona Clark responded to members questions in open session. Ms. Clark indicated that the information was time sensitive stating “I think it is important that the Council has as much information as possible, as soon as possible.” Council member Yukimura asked if there were possible liabilities for the Council that could increase if additional time went by. The answer was yes. In spite of this, a majority of the Council voted to delay the discussion for two weeks. On May 2, 2012 the briefing was finally held. However no action was taken.
I have concerns (Bynum continued) among them are:
- The use of county address as the address for the registered agent of a private business.
- The fact that the Pohakuprogram.com website directs payment to a private business and the Council has not been provided with a copy of any contract with that business.
- The Prosecutor has refused to answer questions from the Council related to the Pohaku program until the County provides her special Counsel for legal representation.
Subsequently we heard that the POHAKU program had stopped operating, however Ms. Iseri-Carvalho said last Tuesday May 15, on the Council floor “our office can internally run the P.O.H.A.K.U program, which we will continue to do almost immediately.” As of yet no one is looking into the possible Charter violations. After what, in my opinion, is too much delay the posting for this body to take appropriate action is finally here before us today.
County officials take an oath to uphold the Constitution of the United States, The Constitution of the State of Hawai‘i and the Kaua‘i County Charter. I have been told by all the County Attorneys that have held the office since I became a Council member that when a question regarding a potential violation of the Charter is raised the Council has a duty to see that an appropriate inquiry is held. The Board of Ethics is an appropriate body for such an inquiry. So I will obviously support this motion.
But rather than outright supporting the call for an ethics referral, Furfaro announced that, at the request of County Attorney Al Castillo, he would support a deferral to either June 6 or 13 until the administration’s "inquiry" was finished.
But it was Nakamura who really started the stampede to the exits when she said she would essentially support the ethics referral saying she would "support the bullet points" contained in Bynum's statement. That caused the other two rats present to get caught up in the stampede and Kuali`i and Chang went along with the deferral since there were not only apparently not enough votes to defeat it but enough to approve, if not the referral to the BOE, then at least the deferral until June.
We'll see what the "inquiry" comes up with but for now there appears to be a growing awareness among councilmembers that, whether the local newspaper is covering the scandal or not, people have been following the story on TV and on-line. And if councilmembers want to maintain a spot on their own SS Council it may be time to abandon Iseri's leaky little POHAKU putt-putt.
Obviously they can't take too long, which is why at least two councilmembers decided they'd waited long enough to abandon the SS P.O.H.A.K.U and they'd be damned if they were going down with Captain Spittle of Malaprop.
Councilmember Nadine Nakamura was backpedaling like Michael Jackson on steroids. She apparently didn’t like her political prospects should she let stand as her final word on the subject her recent vote to allow Kaua`i Prosecuting Attorney Shaylene Iseri Carvalho to run out the clock. And Chair Jay Furfaro also smelled trouble should he do the same.
Even Kipukai Kuali`i and Dickie Chang silently went along with the program, leaving only Iseri's first Mate Mel Rapozo standing on the deck.
For those who thought last week's vote to pass the Office of the Prosecuting Attorney's (OPA) budget without any resolution to Iseri's scandalous refusal to answer until she got a county-paid special counsel to represent her was going to be the last word on the subject, guess again.
Because Wednesday (go to 9:24:20), after Yukimura introduced a measure to ask the Board of Ethics (BOE) to look into the matter and read a statement written by Bynum (see below) detailing Iseri's misdeeds (Bynum was absent due to the imminent birth of his first grandchild), it became apparent that continuing to allow Iseri to get away with alleged crimes and misdemeanors was a bad idea if they expected to get reelected.
Before Bynum's statement was read, Iseri's First Mate, Councilmember Mel Rapozo, had attempted to defuse potential defections by launching into a "my-my, it's enough to give a lady the vapors" spiel, tying to claim that he'd never seen anything like this level of scrutiny in his political career- seemingly forgetting about his own politically motivated crusade to oust former Chief of Police KC Lum.
He then announced that, anyway, the administration had "launched an inquiry" into the whole matter.
But when Yukimura read Bynum's statement and "corrected" Rapozo by saying the administration was looking into the procurement improprieties but not the general ethics charges, it became apparent that no one was going to stay aboard with Mel and Shay.
Bynum's statement read:
On April 11, 2012 the Council met in executive session on matters that included the POHAKU program. An Executive Session was posted for a briefing related to POHAKU on April 18, 2012. On April 18th Deputy County Attorney Mona Clark responded to members questions in open session. Ms. Clark indicated that the information was time sensitive stating “I think it is important that the Council has as much information as possible, as soon as possible.” Council member Yukimura asked if there were possible liabilities for the Council that could increase if additional time went by. The answer was yes. In spite of this, a majority of the Council voted to delay the discussion for two weeks. On May 2, 2012 the briefing was finally held. However no action was taken.
I have concerns (Bynum continued) among them are:
- The use of county address as the address for the registered agent of a private business.
- The fact that the Pohakuprogram.com website directs payment to a private business and the Council has not been provided with a copy of any contract with that business.
- The Prosecutor has refused to answer questions from the Council related to the Pohaku program until the County provides her special Counsel for legal representation.
Subsequently we heard that the POHAKU program had stopped operating, however Ms. Iseri-Carvalho said last Tuesday May 15, on the Council floor “our office can internally run the P.O.H.A.K.U program, which we will continue to do almost immediately.” As of yet no one is looking into the possible Charter violations. After what, in my opinion, is too much delay the posting for this body to take appropriate action is finally here before us today.
County officials take an oath to uphold the Constitution of the United States, The Constitution of the State of Hawai‘i and the Kaua‘i County Charter. I have been told by all the County Attorneys that have held the office since I became a Council member that when a question regarding a potential violation of the Charter is raised the Council has a duty to see that an appropriate inquiry is held. The Board of Ethics is an appropriate body for such an inquiry. So I will obviously support this motion.
But rather than outright supporting the call for an ethics referral, Furfaro announced that, at the request of County Attorney Al Castillo, he would support a deferral to either June 6 or 13 until the administration’s "inquiry" was finished.
But it was Nakamura who really started the stampede to the exits when she said she would essentially support the ethics referral saying she would "support the bullet points" contained in Bynum's statement. That caused the other two rats present to get caught up in the stampede and Kuali`i and Chang went along with the deferral since there were not only apparently not enough votes to defeat it but enough to approve, if not the referral to the BOE, then at least the deferral until June.
We'll see what the "inquiry" comes up with but for now there appears to be a growing awareness among councilmembers that, whether the local newspaper is covering the scandal or not, people have been following the story on TV and on-line. And if councilmembers want to maintain a spot on their own SS Council it may be time to abandon Iseri's leaky little POHAKU putt-putt.
Wednesday, February 8, 2012
PRESUMPTUOUS ASSUMPTIONS
PRESUMPTUOUS ASSUMPTIONS: The outrage is palpable over the actions of Mayor Bernard Carvalho Jr. in placing ever popular Kaua`i Police Department (KPD) Chief Darryl Parry on leave pending investigation of a reported "hostile workplace" complaint by Officer Darla Abbatiello-Higa against Perry's two assistant Chiefs- Roy Asher and Ale Quibilan.
It fits the narrative- one we admit to perpetuating- of a pompous, politically-motivated. power-hungry mayor, yet again overstepping his authority and perhaps, as many have speculated, going after a potential 2014 political opponent with Perry's name being bandies about by many as the only person who could successfully challenge Carvalho for his job in two years.
But what if the narrative is wrong? What if there was misconduct on Perry's part in handling Abbatiello's complaint- actions that violated the county's own policies on how to handle a complaint?
One thing we can report is that, although Perry's first and only statement to the press- or at least on-the-record comment- stressed that he had "the utmost trust in the... decision-making" of Asher and Quibilan and that "they’re beyond reproach,” literally dozens of people will tell you that it is in fact Abbatiello that has a sterling reputation for being a "straight shooter" and beyond reproach.
And another dozen will tell you that they have no difficulty at all in believing that either Asher or Quibilan were the types who would think they are so "beyond reproach" that they could get away with harassing Abbatiello even after she had successfully sued the county for just such actions by other KPD officers and brass in the past.
It is certainly strange then that Perry's first reaction was to tell the local press he apparently fully supported his two assistants despite what had to be an extremely credible complaint from "Officer Darla" as she is affectionately known.
Remember that a hostile workplace complaint was filed internally by Abbatiello, reportedly against Asher, in October. That complaint seems to have been all but ignored and was apparently mishandled with, at minimum, no "separation" of Asher and Abbatiello as county policy calls for.
The county's 2010 edition of their "Policy Against Discrimination and Harassment" says that “(p)ending investigation, the investigator(s) shall take immediate and reasonable action to limit the work contact between employees where there has been a complaint of discrimination or harassment.”
Seemingly the fact that going up the chain of command in October- a chain that ends with Perry- met with no success led to Abbatiello's January 31 complaint, reportedly against Quibilan, being sent to both the police commission and the mayor.
While we're not privy to the contents of the complaint, the scenario that makes the most sense is that, after finding out about the complaint- and presumably its contents- Perry tried to stop the bleeding by placing Asher and Quibilan on leave. But he felt compelled to side with them against Abbatiello in a comment to the press even after being warned, according to the same article, not to comment on the matter.
So put yourself in Carvalho's place. Assuming the complaint included the fact that Perry had filed to act properly in the October complaint, the "beyond reproach" comment was too much for the politically-oriented Carvalho. But more importantly consider that the comment exacerbated the situation intimating that Officer Darla was a liar. Having the department head take sides against the complainant would be yet another violation of the sexual harassment guidelines.
And we're pretty sure Carvalho was reminded of all this by County Attorney Al Castillo who has also been under fire for allowing these sexual harassment suits to be mishandled and even ignored.
The fact that the complaint was addressed to the mayor left him in a place where, if he failed to act by putting Perry on leave- and not just allowing him to "work from home" as Perry claimed he had demanded- he would be doing what the county has done in similar sexual harassment complaints- at best just ignore them and worse put pressure on the complainant to drop the charges by allowing Perry's statement to stand as the county's only reaction to the complaint.
While we've gone back and forth on the subject of whether Carvalho had the authority to discipline the chief, it's a subject that has even received scrutiny in Honolulu with an exchange between blogger Ian Lind- who asserted Carvalho did not have the authority- and, in comments on the post, former local Kaua`i newspaper reporter and current "Civil Beat" correspondent Mike Levine.
Levine essentially said "not so fast" in pointing out that, while the authority might seem to be with the police commission which hires and fires the chief, it's a leap to say they are the only ones who can discipline the chief since there is no clear written authority to do so anywhere in the Kaua`i County Charter.
The most popular narrative on Perry in the community is that, after a recently reported 61 official grievances having been filed during the brief tenure of his predecessor KC Lum- who was essentially "quitted" for allowing "low morale" to spread through the department- Perry has been able to cut those grievances to a negligible level. But among those who thought Lum got a raw deal, the narrative is that the reason why there were so many grievances under Lum is that he was actually processing them by the book, encouraging an atmosphere where employees felt their complaints would actually be heard, causing the number to snowball not because of morale but because there was so much misconduct.
They say that the reason why the grievances have slowed to a trickle under Perry is that he has sought to "smooth things over" and either ignore the complaints until they went away or intervening and using his authority to intimidate complainants into withdrawing their complaints so as not to "make waves" and "rock the boat."
That, some say, has allowed some "bad apples" to remain in place and created a "don't bother to complain" atmosphere under Perry's permissive reign.
Is that the situation here? While we can speculate and even state that Perry's public handling of Abbatiello's latest complaint was in violation of the county's workplace policy- making them a violation of the law since the law requires employers to have a policy and stick to it- we have no direct evidence other than the public statements to believe one way or the other.
But if others, as they have in almost unanimity, want to speculate that Hizzonah is once again on the wrong end of an issue of process, they would be wise to consider that there is another narrative that, while it doesn't fit the observable past, may just have the quality of the proverbial broken clock- one that right at least twice a day.
It fits the narrative- one we admit to perpetuating- of a pompous, politically-motivated. power-hungry mayor, yet again overstepping his authority and perhaps, as many have speculated, going after a potential 2014 political opponent with Perry's name being bandies about by many as the only person who could successfully challenge Carvalho for his job in two years.
But what if the narrative is wrong? What if there was misconduct on Perry's part in handling Abbatiello's complaint- actions that violated the county's own policies on how to handle a complaint?
One thing we can report is that, although Perry's first and only statement to the press- or at least on-the-record comment- stressed that he had "the utmost trust in the... decision-making" of Asher and Quibilan and that "they’re beyond reproach,” literally dozens of people will tell you that it is in fact Abbatiello that has a sterling reputation for being a "straight shooter" and beyond reproach.
And another dozen will tell you that they have no difficulty at all in believing that either Asher or Quibilan were the types who would think they are so "beyond reproach" that they could get away with harassing Abbatiello even after she had successfully sued the county for just such actions by other KPD officers and brass in the past.
It is certainly strange then that Perry's first reaction was to tell the local press he apparently fully supported his two assistants despite what had to be an extremely credible complaint from "Officer Darla" as she is affectionately known.
Remember that a hostile workplace complaint was filed internally by Abbatiello, reportedly against Asher, in October. That complaint seems to have been all but ignored and was apparently mishandled with, at minimum, no "separation" of Asher and Abbatiello as county policy calls for.
The county's 2010 edition of their "Policy Against Discrimination and Harassment" says that “(p)ending investigation, the investigator(s) shall take immediate and reasonable action to limit the work contact between employees where there has been a complaint of discrimination or harassment.”
Seemingly the fact that going up the chain of command in October- a chain that ends with Perry- met with no success led to Abbatiello's January 31 complaint, reportedly against Quibilan, being sent to both the police commission and the mayor.
While we're not privy to the contents of the complaint, the scenario that makes the most sense is that, after finding out about the complaint- and presumably its contents- Perry tried to stop the bleeding by placing Asher and Quibilan on leave. But he felt compelled to side with them against Abbatiello in a comment to the press even after being warned, according to the same article, not to comment on the matter.
So put yourself in Carvalho's place. Assuming the complaint included the fact that Perry had filed to act properly in the October complaint, the "beyond reproach" comment was too much for the politically-oriented Carvalho. But more importantly consider that the comment exacerbated the situation intimating that Officer Darla was a liar. Having the department head take sides against the complainant would be yet another violation of the sexual harassment guidelines.
And we're pretty sure Carvalho was reminded of all this by County Attorney Al Castillo who has also been under fire for allowing these sexual harassment suits to be mishandled and even ignored.
The fact that the complaint was addressed to the mayor left him in a place where, if he failed to act by putting Perry on leave- and not just allowing him to "work from home" as Perry claimed he had demanded- he would be doing what the county has done in similar sexual harassment complaints- at best just ignore them and worse put pressure on the complainant to drop the charges by allowing Perry's statement to stand as the county's only reaction to the complaint.
While we've gone back and forth on the subject of whether Carvalho had the authority to discipline the chief, it's a subject that has even received scrutiny in Honolulu with an exchange between blogger Ian Lind- who asserted Carvalho did not have the authority- and, in comments on the post, former local Kaua`i newspaper reporter and current "Civil Beat" correspondent Mike Levine.
Levine essentially said "not so fast" in pointing out that, while the authority might seem to be with the police commission which hires and fires the chief, it's a leap to say they are the only ones who can discipline the chief since there is no clear written authority to do so anywhere in the Kaua`i County Charter.
The most popular narrative on Perry in the community is that, after a recently reported 61 official grievances having been filed during the brief tenure of his predecessor KC Lum- who was essentially "quitted" for allowing "low morale" to spread through the department- Perry has been able to cut those grievances to a negligible level. But among those who thought Lum got a raw deal, the narrative is that the reason why there were so many grievances under Lum is that he was actually processing them by the book, encouraging an atmosphere where employees felt their complaints would actually be heard, causing the number to snowball not because of morale but because there was so much misconduct.
They say that the reason why the grievances have slowed to a trickle under Perry is that he has sought to "smooth things over" and either ignore the complaints until they went away or intervening and using his authority to intimidate complainants into withdrawing their complaints so as not to "make waves" and "rock the boat."
That, some say, has allowed some "bad apples" to remain in place and created a "don't bother to complain" atmosphere under Perry's permissive reign.
Is that the situation here? While we can speculate and even state that Perry's public handling of Abbatiello's latest complaint was in violation of the county's workplace policy- making them a violation of the law since the law requires employers to have a policy and stick to it- we have no direct evidence other than the public statements to believe one way or the other.
But if others, as they have in almost unanimity, want to speculate that Hizzonah is once again on the wrong end of an issue of process, they would be wise to consider that there is another narrative that, while it doesn't fit the observable past, may just have the quality of the proverbial broken clock- one that right at least twice a day.
Friday, December 16, 2011
ROUND AND ROUND SHE GOES
ROUND AND ROUND SHE GOES: When we wrote our "how-to" instruction manual for how one breaks into the county's old boy network a week ago- using the case of former KIUC Board Member, now County Energy Coordinator, Ben Sullivan as an example- we might have made it seem like the system was an invention of current Mayor Bernard Carvalho, Jr.
Hardly.
The "flack catcher" model has been the prime modus operandi of up-and-comers for decades, with administrations going back to statehood and before, picking the best and the brightest of those willing to stick their neck out, draw a dotted line and place it on the chopping block, somehow surviving to populate many if not most of the county's appointed positions.
The only difference is that Carvalho has established the ability to "take one for the team" as the only pre-requisite for a job in his administration.
But when Joan Conrow broke the story on Tuesday about the absurd plans of Grove Farm to tear down the most affordable of all housing, the old sugar-cane-era "Koloa Camp", to build "affordable housing,"- here defined as almost half-a-million-dollar homes that people need to make around $75,000 to get a mortgage for- we realized that we touched only on those entering the county's revolving door system.
We were reminded that the spokesperson for Grove Farm is VP Mike Tresler whose rise to the plantation-era company- now owned by AOL founder Steve Case, cousin of senate candidate Ed Case- is a prime example of what one can accomplish on the back end if one is inclined to fall on swords on a regular basis.
You can read Conrow's coverage at her Kaua`i Eclectic blog and her account of last night's meeting with Koloa residents at the web site of "For Kaua`i" for all the gory details- except for this "what the 'f' was he thinking?" quote from Tresler, obtained by Vanessa Van Voorhis of the local newspaper:
“(The eviction is) a tenant-landlord issue. That’s a private issue … They’re trying to make it a public issue and we’ll push back and just say it’s nobody’s business. We’re required to give that notice, so we’re going to give them that notice. … have we applied for any permits or anything yet? No. Are we in the whole planning stages of it? Yes, we are.”
Tresler- who, perhaps because of the publication of the ill-advised quote, was not at the meeting because, Conrow says, he allegedly had a flight to Honolulu last night- didn't just stumble upon his high paying job as a Grove Farm's chief henchman.
Tresler earned it as Director of Finance for the county and his role in putting the final nail in the coffin of the police career of former Kaua`i Police Department (KPD) Chief KC Lum by, when all else had failed, canceling his contract with the county on orders from... well, let's just say from above because, although Mayor Brian Baptiste was in charge at the time, anyone paying attention knew that forces behind the effort to slander and fire Lum was former Council Chair Kaipo Asing and current Councilmember Mel Rapozo.
We've detailed the stories of both Lum and Tresler in these pages before, describing details of secret investigations and pseudo trials as well as the covering up of secret documents, including the one written by the administrative judge in Lum's hearing containing exculpatory language actually clearing Lum. When the document was leaked and a member of the public tried to submit it to the council as part of his testimony, Asing actually refused to allow council services to take possession of the report.
But none of that was legally enough to fire Lum. The only way to do that, according to the county charter, was apparently by getting the Director of Finance to cancel Lum's contract.
Tresler, a sycophant of Baptiste, whose loud rants in the county building halls attempting to intimidate those who had publicly charged Baptiste with a variety of unethical and politically unsound actions was legendary among the "nitpickers,"- the council regulars who "got" what was going on as Lum, along with the Chair and Vice Chair of the Police Commission, got the shaft.
Well, as if you couldn't guess, canceling Lum's contract was one of Tresler's last actions as Finance Director and it wasn't more than a twinkling of an eye before he landed his cushy VP job with Grove Farm.
Has Tresler gone too far getting caught in a callous sounding quote? If you think so, you haven't been paying attention. A raise and a promotion seem more like it. Or did you forget that this is Kaua`i?
----
Look for light posting next week- we need a break.
Hardly.
The "flack catcher" model has been the prime modus operandi of up-and-comers for decades, with administrations going back to statehood and before, picking the best and the brightest of those willing to stick their neck out, draw a dotted line and place it on the chopping block, somehow surviving to populate many if not most of the county's appointed positions.
The only difference is that Carvalho has established the ability to "take one for the team" as the only pre-requisite for a job in his administration.
But when Joan Conrow broke the story on Tuesday about the absurd plans of Grove Farm to tear down the most affordable of all housing, the old sugar-cane-era "Koloa Camp", to build "affordable housing,"- here defined as almost half-a-million-dollar homes that people need to make around $75,000 to get a mortgage for- we realized that we touched only on those entering the county's revolving door system.
We were reminded that the spokesperson for Grove Farm is VP Mike Tresler whose rise to the plantation-era company- now owned by AOL founder Steve Case, cousin of senate candidate Ed Case- is a prime example of what one can accomplish on the back end if one is inclined to fall on swords on a regular basis.
You can read Conrow's coverage at her Kaua`i Eclectic blog and her account of last night's meeting with Koloa residents at the web site of "For Kaua`i" for all the gory details- except for this "what the 'f' was he thinking?" quote from Tresler, obtained by Vanessa Van Voorhis of the local newspaper:
“(The eviction is) a tenant-landlord issue. That’s a private issue … They’re trying to make it a public issue and we’ll push back and just say it’s nobody’s business. We’re required to give that notice, so we’re going to give them that notice. … have we applied for any permits or anything yet? No. Are we in the whole planning stages of it? Yes, we are.”
Tresler- who, perhaps because of the publication of the ill-advised quote, was not at the meeting because, Conrow says, he allegedly had a flight to Honolulu last night- didn't just stumble upon his high paying job as a Grove Farm's chief henchman.
Tresler earned it as Director of Finance for the county and his role in putting the final nail in the coffin of the police career of former Kaua`i Police Department (KPD) Chief KC Lum by, when all else had failed, canceling his contract with the county on orders from... well, let's just say from above because, although Mayor Brian Baptiste was in charge at the time, anyone paying attention knew that forces behind the effort to slander and fire Lum was former Council Chair Kaipo Asing and current Councilmember Mel Rapozo.
We've detailed the stories of both Lum and Tresler in these pages before, describing details of secret investigations and pseudo trials as well as the covering up of secret documents, including the one written by the administrative judge in Lum's hearing containing exculpatory language actually clearing Lum. When the document was leaked and a member of the public tried to submit it to the council as part of his testimony, Asing actually refused to allow council services to take possession of the report.
But none of that was legally enough to fire Lum. The only way to do that, according to the county charter, was apparently by getting the Director of Finance to cancel Lum's contract.
Tresler, a sycophant of Baptiste, whose loud rants in the county building halls attempting to intimidate those who had publicly charged Baptiste with a variety of unethical and politically unsound actions was legendary among the "nitpickers,"- the council regulars who "got" what was going on as Lum, along with the Chair and Vice Chair of the Police Commission, got the shaft.
Well, as if you couldn't guess, canceling Lum's contract was one of Tresler's last actions as Finance Director and it wasn't more than a twinkling of an eye before he landed his cushy VP job with Grove Farm.
Has Tresler gone too far getting caught in a callous sounding quote? If you think so, you haven't been paying attention. A raise and a promotion seem more like it. Or did you forget that this is Kaua`i?
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Look for light posting next week- we need a break.
Tuesday, October 11, 2011
LIKE A GLOVE
LIKE A GLOVE: It isn't like it was a surprise when Kauai County Clerk Peter Nakamura* was apparently fired this week.
After all, the first shoe had been dropped over and over throughout the years with allegations that he had cost the county a cool quarter-million in the Margaret Hanson Sueoka harassment suit along with his alleged misdoings in collecting unapproved cash-for-vacation-time from former Chair Kaipo Asing as has been splashed all over the front page of the local newspaper recently.
Not only that but the second shoe had been poised for a gravity-driven trip for months with executive sessions concerning his employ showing up on the council's agenda almost every time they met.
But the fact that Nakamura was offered and accepted a job in the planning department was a bit odd given that the revolving door was wide open for him after his performance as perhaps the best flack-catcher the county has even seen.
We've had a love/hate relationship with Nakamura throughout his tenure. Early in his tenure his penchant for providing information and documents was unique in the county if not the state, where our sunshine law has been cited nationally for being one of the best while showing up among the worst when it comes to how it actually functions.
But that was before the ascendancy of Asing and, in serving the new king, Nakamura of course took to carrying the king's sword which in Asing's case was a heavy instrument indeed.
As per Asing's instructions, Nakamura became the scrooge of public information, fighting with aplomb councilmembers' battles with the Office of Information Practices (OIP)- like the one over the infamous ES-177 that eventually resulted in the recent full de-toothification of the OIP.
Someone that is willing to fall on his sword like that is invaluable in the corporate world and Kaua`i is littered with such former county officials who have found a place in the close knit Kaua`i business community based on their ability to take a bullet for their bosses... people like current Grove Farm VP Mike Tressler who, as Finance Director, parlayed his part in the pogrom that resulted in the removal of former Police Chief KC Lum, into his current high-paying position.
Could it be that Nakamura's claim that he was returning to his first love- planning- actually be true?
Whether or not that's the full explanation, his trip across the street to the administrative offices, while unique, fits quite well into Mayor Bernard Carvalho's scheme for filling positions with "protected" cronies. Anyone who has served with the kind of blind loyalty Nakamura has exhibited over the years can't help but be an asset to Carvalho in a way few if any from the outside can be.
But would Nakamura settle for a position as a lowly planner when lucrative job the business sector beckons? Of course not.
It just so happens that the planning department has a "temporary" director right now- Mike Dahilig who, according to the county charter, is unqualified to take the position permanently. And he has done the job he was sent to do- take over the reins of a department allegedly under FBI investigation and get the feds off their backs... not to mention guiding the difficult and potentially contentious process of passing the all important ordinance that returns scrutiny of tourist accommodation permits from the council back to the planning department in compliance with the so-called citizen-petitioned General Plan charter amendment.
Nakamura- who ironically served as Planning Director under then-Mayor, now-Councilmember JoAnn Yukimura (who apparently was instrumental in his firing)- seems to be the beneficiary of a circumstance that makes his future as planning director all but a formality once the commission acts.
So all's well in the Minotaur’s labyrinth as the bone mill cranks out another bowl of that distinctly Kaua`i-flavored porridge which, while sweet-smelling to the minotaur and his minions, stinks to high heaven to the rest of the island's denizens.
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*Correction: We inadvertently left off Peter Nakamura's name in the first paragraph. This on-line version has been corrected. We apologize for the error.
After all, the first shoe had been dropped over and over throughout the years with allegations that he had cost the county a cool quarter-million in the Margaret Hanson Sueoka harassment suit along with his alleged misdoings in collecting unapproved cash-for-vacation-time from former Chair Kaipo Asing as has been splashed all over the front page of the local newspaper recently.
Not only that but the second shoe had been poised for a gravity-driven trip for months with executive sessions concerning his employ showing up on the council's agenda almost every time they met.
But the fact that Nakamura was offered and accepted a job in the planning department was a bit odd given that the revolving door was wide open for him after his performance as perhaps the best flack-catcher the county has even seen.
We've had a love/hate relationship with Nakamura throughout his tenure. Early in his tenure his penchant for providing information and documents was unique in the county if not the state, where our sunshine law has been cited nationally for being one of the best while showing up among the worst when it comes to how it actually functions.
But that was before the ascendancy of Asing and, in serving the new king, Nakamura of course took to carrying the king's sword which in Asing's case was a heavy instrument indeed.
As per Asing's instructions, Nakamura became the scrooge of public information, fighting with aplomb councilmembers' battles with the Office of Information Practices (OIP)- like the one over the infamous ES-177 that eventually resulted in the recent full de-toothification of the OIP.
Someone that is willing to fall on his sword like that is invaluable in the corporate world and Kaua`i is littered with such former county officials who have found a place in the close knit Kaua`i business community based on their ability to take a bullet for their bosses... people like current Grove Farm VP Mike Tressler who, as Finance Director, parlayed his part in the pogrom that resulted in the removal of former Police Chief KC Lum, into his current high-paying position.
Could it be that Nakamura's claim that he was returning to his first love- planning- actually be true?
Whether or not that's the full explanation, his trip across the street to the administrative offices, while unique, fits quite well into Mayor Bernard Carvalho's scheme for filling positions with "protected" cronies. Anyone who has served with the kind of blind loyalty Nakamura has exhibited over the years can't help but be an asset to Carvalho in a way few if any from the outside can be.
But would Nakamura settle for a position as a lowly planner when lucrative job the business sector beckons? Of course not.
It just so happens that the planning department has a "temporary" director right now- Mike Dahilig who, according to the county charter, is unqualified to take the position permanently. And he has done the job he was sent to do- take over the reins of a department allegedly under FBI investigation and get the feds off their backs... not to mention guiding the difficult and potentially contentious process of passing the all important ordinance that returns scrutiny of tourist accommodation permits from the council back to the planning department in compliance with the so-called citizen-petitioned General Plan charter amendment.
Nakamura- who ironically served as Planning Director under then-Mayor, now-Councilmember JoAnn Yukimura (who apparently was instrumental in his firing)- seems to be the beneficiary of a circumstance that makes his future as planning director all but a formality once the commission acts.
So all's well in the Minotaur’s labyrinth as the bone mill cranks out another bowl of that distinctly Kaua`i-flavored porridge which, while sweet-smelling to the minotaur and his minions, stinks to high heaven to the rest of the island's denizens.
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*Correction: We inadvertently left off Peter Nakamura's name in the first paragraph. This on-line version has been corrected. We apologize for the error.
Thursday, December 16, 2010
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.
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.
Wednesday, December 1, 2010
EVERYTHING OLD IS NEW AGAIN
EVERYTHING OLD IS NEW AGAIN: We’re still counting our blessings that the local newspaper’s Editor Nathan Eagle has taken an “if you want something done right, do it yourself” attitude toward covering county government- a fear-struck moment of seeing Leo Azambuja’s name on an article yesterday notwithstanding.
Although it’s a bit ambiguous, his rewrite of a county press release on the hiring of former Planning Director Dee Crowell as new Director Mike Dahilig’s deputy contained this tidbit the county release left out.
Crowell will replace current Deputy Planning Director Imai Aiu.
We’re not sure whether that’s just a good assumption on Eagle’s part- since the deputy job is non civil service and there’s only one “deputy director” budgeted in planning- or whether the other shoe has actually dropped due to the FBI probe of former Director Ian Costa and Aiu which we reported Monday and so is confirmation that Aiu is actually out of a job too.
It’s not unheard of on Kaua`i to see a former appointee who was forced out to be hired in a civil service position in the same department as happened with County Engineer Cesar Portugal during the Kusaka administration.
But Eagle’s by-lined article was even more revelatory, reporting that the Kaua`i County Council “met behind closed doors” yesterday to discuss the fate of County Clerk Peter Nakamura who apparently cost the county a quarter million dollars in a recently settled EEOC case.
Eagle fails to mention that the meeting was apparently not duly agendaed, as it does not appear on the county council web site, perhaps not trying to toot his own horn in ferreting out the secret confab.
But Eagle’s main story is one he’s been championing since last week- including in a weekend editorial- regarding whether the council should hire an executive search team to look for a county clerk, writing”
Community members have voiced their concerns over the cost of an executive search while others have said such a process is necessary in this instance.
But the question for the council may not be a matter of best practices vs. cost but a matter of fear and necessity.
In the wake of Police Commission Chair Michael Ching’s ethics case- where Ching was unceremoniously dumped for merely stating his preference for former Chief KC Lum during the process of the commission’s deliberations on hiring a new chief- local boards who hire and fire department heads are apparently scared bleepless to do the job themselves.
When the police commission hired a chief after Lum’s departure they indeed got the council to appropriate money for a professional search for a new chief even though they had apparently already decided to hire current Chief Darryl Perry, who had come in second in the process of hiring Lum.
Since then there have been no other hirings or firings by boards or commissions- the heads of the Fire, Liquor, and Personnel Departments remain on the job- although now of course the planning commission will be hiring a new permanent planning director too.
Any taint of favoritism of one candidate over another during the hiring process will naturally be seen as an ethics violation based on the precedent of the Ching case- which is, according to the county charter, binding on future cases until and unless it’s overturned by the Board of Ethics (BOE).
And indeed what the council does will also be seen as a precedent for the planning commission who will either take a hiring of a county clerk without a search as a green light for a simple selection process or take the hiring of professional search consultant as a signal they had better follow suit.
Though of course it’s silly to think that hiring a consultant is now going to be mandatory for all county boards and commissions that hire their department heads, so was the ethics case against Ching who was essential skewered for doing what he was supposed to do- picking one candidate and convincing the others that the person is the best one for the job.
The political repercussions of spending money on a search may be minor compared to those of going through a process of another trumped up ethics case based on the political persecutions of the past.
But of course the Ching case was a bed made by a past council- one that included the two new council returnees- and one in which the current members will have to lay.
Although it’s a bit ambiguous, his rewrite of a county press release on the hiring of former Planning Director Dee Crowell as new Director Mike Dahilig’s deputy contained this tidbit the county release left out.
Crowell will replace current Deputy Planning Director Imai Aiu.
We’re not sure whether that’s just a good assumption on Eagle’s part- since the deputy job is non civil service and there’s only one “deputy director” budgeted in planning- or whether the other shoe has actually dropped due to the FBI probe of former Director Ian Costa and Aiu which we reported Monday and so is confirmation that Aiu is actually out of a job too.
It’s not unheard of on Kaua`i to see a former appointee who was forced out to be hired in a civil service position in the same department as happened with County Engineer Cesar Portugal during the Kusaka administration.
But Eagle’s by-lined article was even more revelatory, reporting that the Kaua`i County Council “met behind closed doors” yesterday to discuss the fate of County Clerk Peter Nakamura who apparently cost the county a quarter million dollars in a recently settled EEOC case.
Eagle fails to mention that the meeting was apparently not duly agendaed, as it does not appear on the county council web site, perhaps not trying to toot his own horn in ferreting out the secret confab.
But Eagle’s main story is one he’s been championing since last week- including in a weekend editorial- regarding whether the council should hire an executive search team to look for a county clerk, writing”
Community members have voiced their concerns over the cost of an executive search while others have said such a process is necessary in this instance.
But the question for the council may not be a matter of best practices vs. cost but a matter of fear and necessity.
In the wake of Police Commission Chair Michael Ching’s ethics case- where Ching was unceremoniously dumped for merely stating his preference for former Chief KC Lum during the process of the commission’s deliberations on hiring a new chief- local boards who hire and fire department heads are apparently scared bleepless to do the job themselves.
When the police commission hired a chief after Lum’s departure they indeed got the council to appropriate money for a professional search for a new chief even though they had apparently already decided to hire current Chief Darryl Perry, who had come in second in the process of hiring Lum.
Since then there have been no other hirings or firings by boards or commissions- the heads of the Fire, Liquor, and Personnel Departments remain on the job- although now of course the planning commission will be hiring a new permanent planning director too.
Any taint of favoritism of one candidate over another during the hiring process will naturally be seen as an ethics violation based on the precedent of the Ching case- which is, according to the county charter, binding on future cases until and unless it’s overturned by the Board of Ethics (BOE).
And indeed what the council does will also be seen as a precedent for the planning commission who will either take a hiring of a county clerk without a search as a green light for a simple selection process or take the hiring of professional search consultant as a signal they had better follow suit.
Though of course it’s silly to think that hiring a consultant is now going to be mandatory for all county boards and commissions that hire their department heads, so was the ethics case against Ching who was essential skewered for doing what he was supposed to do- picking one candidate and convincing the others that the person is the best one for the job.
The political repercussions of spending money on a search may be minor compared to those of going through a process of another trumped up ethics case based on the political persecutions of the past.
But of course the Ching case was a bed made by a past council- one that included the two new council returnees- and one in which the current members will have to lay.
Thursday, June 17, 2010
SHHHH
SHHHH: Another day another Hawai`i governmental travesty of justice, this time the red-queen-style “execution first, trial later” firing of Hawaii State Ethics Commission Executive Director Dan Mollway after 24 years on the job.
While we’ve criticized Mollway for his lack of aggression and tendency to seek slaps on the wrist in many cases, the way he was fired typifies the shady way many boards and commissions hire and fire their executives behind closed doors.
In response to the news today Disappeared News’ Larry Geller is questioning the firing and:
has faxed a request to the Chair of the Commission requesting copies of the minutes of its executive sessions that included discussion of the termination of Mr. Mollway.
The request is based on the strong public interest in the process by which the Ethics Commission carried out its action, a process that has been criticized in public testimony presented to the Commission. The Commission has declined to post the testimony on its website, but under Hawaii’s public records law it must provide copies to anyone who requests it.
But while Geller is rightfully asking the commission to provide the “secret sauce” there’s really only one person to blame for the surreptitious nature of the whole process- Mollway himself.
Under law, investigatory and/or disciplinary proceedings regarding “personnel matters” are to be closed to the pubic with one exception- the target may request that the matter is dealt with entirely in public.
But Mollway, like almost every other employee in his position, chose to keep the investigation and surrounding documents secret- a traditionally losing strategy.
That’s because the elephant in the room that no one is really mentioning is that these things are usually political in nature, in this case involving a board that has, over eight years, been stacked with appointees of Republican Linda Lingle and as the clock is running out, they’re going after someone that has been a target of partisan snipes for many years.
So why did Mollway choose to keep the investigation under wraps? It’s anyone’s guess but it was probably something he didn’t give much thought to, possibly related to the fact that a medical problem- identified for the first time today as a problem with “migraines”- was at the heart of the matter.
It’s hard to think of many examples of people who decided to make their matter public. But when they do they seem to be successful in turning the tables on the investigatory body because, as anyone whose dealt with governmental secrecy knows, it’s usually the body doing the investigation that has more to hide.
This was shown in archetype during the political persecution of two Kaua`i police commission members who were charged with unethical activities involved in the hiring of former Police Chief KC Lum.
Both Chair Michael Ching and Commissioners Carl Furtado were targets of a Kaua`i Board of Ethics investigation based on allegations contained in a complaint filed by Council Chair Kaipo Asing, at first on official stationary but later, after that was found to be improper and itself a violation of the ethics code, as a private citizen.
But the two chose divergent tactics in fighting the charges with Ching preferring to go the closed door route and Furtado demanding an open review.
The results? While the retired Maui judge appointed to hear Ching’s case didn’t really find a true violation and stated so in his report the ethics board revealed only sections of his report to make it seem like he did and presented those pages to the council to show guilt.
Despite the fact that the whole report surfaced - including the exculpatory portions- when a citizen claimed “ a little bird dropped it through my window”, when he tried to submit it as testimony before the council, they refused to accept it and the actual pages were physically thrown back at him during an open council session.
When he tried to go to the local newspaper with the full report he was equally thwarted by a reporter and editor of questionable intelligence and/or integrity who either couldn’t or didn’t want to figure out what the truth was.
Furtado on the other hand was cleared of charges because under the light of day it was apparent there was no real evidence of unethical activity- or, more importantly, no evidence that the county attorney’s office was willing to state in public and submit to cross-examination.
If Mollway had chosen the open session route it seems that the lack of evidence his attorney has alleged as well as the illegal nature of the firing (apparently based on a medical condition) might well have cause the charges to be dropped rather than expose the commission’s actions to the scrutiny of the press in the high profile case.
If nothing else it should serve as a precautionary tale for those who have the opportunity to open charges against them to public review, turning the intimidation tables on those who would use their office for political vendettas.
While we’ve criticized Mollway for his lack of aggression and tendency to seek slaps on the wrist in many cases, the way he was fired typifies the shady way many boards and commissions hire and fire their executives behind closed doors.
In response to the news today Disappeared News’ Larry Geller is questioning the firing and:
has faxed a request to the Chair of the Commission requesting copies of the minutes of its executive sessions that included discussion of the termination of Mr. Mollway.
The request is based on the strong public interest in the process by which the Ethics Commission carried out its action, a process that has been criticized in public testimony presented to the Commission. The Commission has declined to post the testimony on its website, but under Hawaii’s public records law it must provide copies to anyone who requests it.
But while Geller is rightfully asking the commission to provide the “secret sauce” there’s really only one person to blame for the surreptitious nature of the whole process- Mollway himself.
Under law, investigatory and/or disciplinary proceedings regarding “personnel matters” are to be closed to the pubic with one exception- the target may request that the matter is dealt with entirely in public.
But Mollway, like almost every other employee in his position, chose to keep the investigation and surrounding documents secret- a traditionally losing strategy.
That’s because the elephant in the room that no one is really mentioning is that these things are usually political in nature, in this case involving a board that has, over eight years, been stacked with appointees of Republican Linda Lingle and as the clock is running out, they’re going after someone that has been a target of partisan snipes for many years.
So why did Mollway choose to keep the investigation under wraps? It’s anyone’s guess but it was probably something he didn’t give much thought to, possibly related to the fact that a medical problem- identified for the first time today as a problem with “migraines”- was at the heart of the matter.
It’s hard to think of many examples of people who decided to make their matter public. But when they do they seem to be successful in turning the tables on the investigatory body because, as anyone whose dealt with governmental secrecy knows, it’s usually the body doing the investigation that has more to hide.
This was shown in archetype during the political persecution of two Kaua`i police commission members who were charged with unethical activities involved in the hiring of former Police Chief KC Lum.
Both Chair Michael Ching and Commissioners Carl Furtado were targets of a Kaua`i Board of Ethics investigation based on allegations contained in a complaint filed by Council Chair Kaipo Asing, at first on official stationary but later, after that was found to be improper and itself a violation of the ethics code, as a private citizen.
But the two chose divergent tactics in fighting the charges with Ching preferring to go the closed door route and Furtado demanding an open review.
The results? While the retired Maui judge appointed to hear Ching’s case didn’t really find a true violation and stated so in his report the ethics board revealed only sections of his report to make it seem like he did and presented those pages to the council to show guilt.
Despite the fact that the whole report surfaced - including the exculpatory portions- when a citizen claimed “ a little bird dropped it through my window”, when he tried to submit it as testimony before the council, they refused to accept it and the actual pages were physically thrown back at him during an open council session.
When he tried to go to the local newspaper with the full report he was equally thwarted by a reporter and editor of questionable intelligence and/or integrity who either couldn’t or didn’t want to figure out what the truth was.
Furtado on the other hand was cleared of charges because under the light of day it was apparent there was no real evidence of unethical activity- or, more importantly, no evidence that the county attorney’s office was willing to state in public and submit to cross-examination.
If Mollway had chosen the open session route it seems that the lack of evidence his attorney has alleged as well as the illegal nature of the firing (apparently based on a medical condition) might well have cause the charges to be dropped rather than expose the commission’s actions to the scrutiny of the press in the high profile case.
If nothing else it should serve as a precautionary tale for those who have the opportunity to open charges against them to public review, turning the intimidation tables on those who would use their office for political vendettas.
Tuesday, March 2, 2010
EVEN MORE ‘WANTED'
EVEN MORE ‘WANTED’: When it comes to playing kissy face in covering the police and courts beat for the local newspaper “reporter” Paul Curtis is a champ with his ceaseless publication of the “Kaua`i “Most Wanted” list and write-ups for every award and commendation given at the monthly police commission (PC) meetings.
But when it comes to covering controversies that come up at the meetings Curtis’ coverage is, shall we say, strangely absent.
You’d never know it if you read the local newspaper but if you watch the government channel you know that during February’s PC meeting Mayor Carvalho’s power grab- formerly covered in January by Curtis in his usual sycophantic style- caused conniption fits on the part of at least two commissioners.
To be fair the quest to allow counties to change their charters to allow the mayors of each island to appoint their respective police chief and others department heads currently hired by boards and commissions has been requested not just by Kaua`i Mayor Bernard Carvalho but by the Hawai`i Council of Mayors- a four person group that includes all the counties’ chief executives.
Right now a state law HRS 52D requires police chiefs be appointed by citizen police commissions. But, using the seemingly phony excuse of “home rule”, Administrative Assistant Gary Heu and Board and Commission Administrator John Isobe have been pushing Senate Bill SB2177 and it’s companion House Bill HB 2016 which would allow the counties to change their charters with a vote of the people.
But when Commissioner Leon Gonsalves- the controversial commissioner who authored the “Hop Sing” email that began the political purge of former Chief KC Lum and was attending his last meeting due to term limits- got wind of it he apparently authored a scathing letter criticizing the plan and defending his now former fiefdom.
He placed the letter on the PC agenda for discussion and vetting by fellow commissioners and that brought Heu and Isobe to the meeting to defend the plan.
But it was another controversial commissioner, homophobic, former marine “Pastor Tom” Iannucci, who started off the critique accusing the administration of “entering scary territory”.
“I support my mayor” Iannucci told the assembled and TV audience in a theme he repeated at every criticism of the plan. “I just worry about what comes after him”.
Saying the police commission “should be a buffer for the people to keep politics out of pubic safety” he wondered what would happen “if we get an ‘old boy’, corrupt mayor” in the future as, he said, has happened in the past although he mentioned no names.
Failing to see the irony of his praise of Carvalho’s administration while addressing to two of the mayor’s chief ‘old boy’ operatives, Heu and Isobe, he told of how when he joined the commission he found out about how procedures called for a list of prospective KPD employees- including officers- to go to the mayor for approval. a violation of civil service law.
Iannucci began his stint on the commission during the Baptiste Administration and seemed unaware that the practice continues today according to many county employees.
“That’s the way it used to be” he said complaining how it wasn’t just the idea of the change he objected to but the way the administration was trying to flim flam the commission into “approval” of it by claiming all they wanted to do was change the state law “for now” when everyone knew and the administration admitted that this was done in order to ultimately take the hiring and firing of the chief out of the hands of the police commission.
Gonsalves, whose letter wasn’t available on the county web site, said he completely agrees with Iannucci who had cited Gonsalves letter in his rant.
“Leave it alone- don’t play with it” said Gonsalves chiding Heu and Isobe by saying they “should have approached the commissions first” and discussed it before the legislative push to change the state law, not after.
“There’s a reason it’s set up that way” he said noting that the set-up goes “back to the 40’s”.
Chief Darryl Perry agreed saying “my fear down the line (is that) things may change for the worse” adding that “ we do investigations from parking citations to the top of government.
“This process may be compromised if one person has the power over this department.”
Nowhere was a discussion of how civilian control over our paramilitary police should be the norm and that taking the politics out of police departments is the norm across the country, not the other way around.
They also failed to mention the incidents during Mayor Maryanne Kusaka’s administration when she tried to personally fire Chief George Freitas for not protecting her “people” until she was informed that only the police commission could do that. Eventually Freitas sued and got a hefty “retirement package” in exchange for dropping his suit.
Strangely enough after discussion of the “good governance” item was over- without approval or disapproval or any vote on disposition- the commission discussed whether and how they could stop the televising of police commission meetings with Iannucci saying "commissioners (are) making statements that shouldn’t go out” to the public and seemingly unaware of the sunshine law which requires open meetings.
Iannucci used the excuse of how money was tight to call for an end to televised commission meetings right before the commission went on to the subject of how many commissioners they could send to the next junket to attend a state police commissioners’ meeting on the Big Island.
We just thought that if you don’t watch the meetings on TV you might want to know about this stuff since we don’t expect Curtis will be publishing anything controversial regarding the commission or department- or the administration for that matter- any time soon.
But when it comes to covering controversies that come up at the meetings Curtis’ coverage is, shall we say, strangely absent.
You’d never know it if you read the local newspaper but if you watch the government channel you know that during February’s PC meeting Mayor Carvalho’s power grab- formerly covered in January by Curtis in his usual sycophantic style- caused conniption fits on the part of at least two commissioners.
To be fair the quest to allow counties to change their charters to allow the mayors of each island to appoint their respective police chief and others department heads currently hired by boards and commissions has been requested not just by Kaua`i Mayor Bernard Carvalho but by the Hawai`i Council of Mayors- a four person group that includes all the counties’ chief executives.
Right now a state law HRS 52D requires police chiefs be appointed by citizen police commissions. But, using the seemingly phony excuse of “home rule”, Administrative Assistant Gary Heu and Board and Commission Administrator John Isobe have been pushing Senate Bill SB2177 and it’s companion House Bill HB 2016 which would allow the counties to change their charters with a vote of the people.
But when Commissioner Leon Gonsalves- the controversial commissioner who authored the “Hop Sing” email that began the political purge of former Chief KC Lum and was attending his last meeting due to term limits- got wind of it he apparently authored a scathing letter criticizing the plan and defending his now former fiefdom.
He placed the letter on the PC agenda for discussion and vetting by fellow commissioners and that brought Heu and Isobe to the meeting to defend the plan.
But it was another controversial commissioner, homophobic, former marine “Pastor Tom” Iannucci, who started off the critique accusing the administration of “entering scary territory”.
“I support my mayor” Iannucci told the assembled and TV audience in a theme he repeated at every criticism of the plan. “I just worry about what comes after him”.
Saying the police commission “should be a buffer for the people to keep politics out of pubic safety” he wondered what would happen “if we get an ‘old boy’, corrupt mayor” in the future as, he said, has happened in the past although he mentioned no names.
Failing to see the irony of his praise of Carvalho’s administration while addressing to two of the mayor’s chief ‘old boy’ operatives, Heu and Isobe, he told of how when he joined the commission he found out about how procedures called for a list of prospective KPD employees- including officers- to go to the mayor for approval. a violation of civil service law.
Iannucci began his stint on the commission during the Baptiste Administration and seemed unaware that the practice continues today according to many county employees.
“That’s the way it used to be” he said complaining how it wasn’t just the idea of the change he objected to but the way the administration was trying to flim flam the commission into “approval” of it by claiming all they wanted to do was change the state law “for now” when everyone knew and the administration admitted that this was done in order to ultimately take the hiring and firing of the chief out of the hands of the police commission.
Gonsalves, whose letter wasn’t available on the county web site, said he completely agrees with Iannucci who had cited Gonsalves letter in his rant.
“Leave it alone- don’t play with it” said Gonsalves chiding Heu and Isobe by saying they “should have approached the commissions first” and discussed it before the legislative push to change the state law, not after.
“There’s a reason it’s set up that way” he said noting that the set-up goes “back to the 40’s”.
Chief Darryl Perry agreed saying “my fear down the line (is that) things may change for the worse” adding that “ we do investigations from parking citations to the top of government.
“This process may be compromised if one person has the power over this department.”
Nowhere was a discussion of how civilian control over our paramilitary police should be the norm and that taking the politics out of police departments is the norm across the country, not the other way around.
They also failed to mention the incidents during Mayor Maryanne Kusaka’s administration when she tried to personally fire Chief George Freitas for not protecting her “people” until she was informed that only the police commission could do that. Eventually Freitas sued and got a hefty “retirement package” in exchange for dropping his suit.
Strangely enough after discussion of the “good governance” item was over- without approval or disapproval or any vote on disposition- the commission discussed whether and how they could stop the televising of police commission meetings with Iannucci saying "commissioners (are) making statements that shouldn’t go out” to the public and seemingly unaware of the sunshine law which requires open meetings.
Iannucci used the excuse of how money was tight to call for an end to televised commission meetings right before the commission went on to the subject of how many commissioners they could send to the next junket to attend a state police commissioners’ meeting on the Big Island.
We just thought that if you don’t watch the meetings on TV you might want to know about this stuff since we don’t expect Curtis will be publishing anything controversial regarding the commission or department- or the administration for that matter- any time soon.
Wednesday, December 9, 2009
A “CONCERTED CONSPIRATORIAL EFFORT”?
A “CONCERTED CONSPIRATORIAL EFFORT”?: A few years back the Kaua`i County Council finally discovered the best way to manipulate the dialogue before the cameras during what some of them call “the show” by taking required testimony on agenda items before and only before their discussions and then, if it’s embarrassing, finding a way to deflect it- often by answering a different question or addressing a different topic than the testimony raised.
Never was that more in evidence than at the last council meeting when the subject of former Kaua`i Police Department (KPD) Chief KC Lum’s lawsuit against the county was addressed.
Council watchdog Glen Mickens had the temerity to state that the persecution and dismissal of Lum was a “concerted conspiratorial effort” which, as the local newspaper’s Michael Levine reported, was met with vehement denials by two of the Minotaur’s gate keepers, Councilmembers Darryl Kaneshiro and Jay Furfaro, and the bone-gnasher himself Chair Kaipo Asing.
But what those who read the article or watched the cablecast of the meeting might have missed was the slight of hand on the council’s part in addressing, not the agenda item detailing an appropriation to fight the Lum lawsuit- which was struck down again in federal court at the 9th circuit level days before, apparently unbeknownst to the council at the time- but the separate somewhat related case of ES-177 which was “won” by the county weeks ago in Hawai`i Supreme Court.
The smoke and mirrors, hocus-pocus was because the charge of there having been a “concerted conspiratorial effort” to get rid of Lum would be difficult if not impossible to deny by anyone who really followed the saga from start to finish.
The first thing about the 9th Circuit decision that should be noted is that they did not rule that there was no conspiracy to get rid of Lum in general, just that it wasn’t race based.
As reported in another article- this one on the 9th Circuit decision itself- the court specifically said:
Lum and attorney Clayton Ikei failed to show former county Finance Department Director Michael Tresler acted with conspiracy based on racial bias when Tresler canceled Lum’s employment agreement (emphasis added)
The second important thing was that the decision was based on the “fact” that former Police Commission Chair Michael Ching showed bias in the hiring of Lum, based on a Board of Ethics (BOE) case that was enforced by the county council after a BOE “trial” of Ching which was held behind closed doors at Ching's behest.
It should be noted that fellow Police Commissioner Carol Furtado was brought up on the same charges of favoritism but chose a public hearing of her case resulting in an acquittal, most observers believe, because it was held in the open.
But looking at the whole sad story it would have been truly absurd for the council to claim that there was no concerted conspiratorial effort in Lum’s firing.
Let’s remember how it happened concerning at least two pertinent events.
The whole business started when former Councilperson and former KPD Officer Mel Rapozo came onto the council along with now Prosecutor Shaylene Iseri-Carvalho, both of whom held a grudge against Lum for events in their past.
Rapozo had been in the room during the infamous “lap dancer” molestation incident and Lum was the lieutenant on duty that night. When Officer Darla Abbatiello- who later sued and won a suit for harassment against the department and county- burst into Lum’s office and told him what was happening down the hall, Lum had no choice but to report the incident- something Rapozo and others to this day claim resulted in the firing of the “three good officer” who molested the “lap dancer” and the resignation of Rapozo who, supposedly, “just” stood by watching and laughing.
Iseri’s grudge came from a party she was hosting at Lydgate Park pavilion where the level of noise and boisterousness was such that a complaint was filed and Lum was the responding officer. A drunken Iseri, then a deputy prosecutor, confronted Lum when he came a second time to tell her to break it up and she always held a grudge based on the incident according to multiple sources.
Then came ES-177 and, according to an OIP letter to County Clerk Peter Nakamura during the back and forth about releasing the minutes, Rapozo went off on the whole department, especially Lum, detailing what he saw as injustices.
Rapozo obviously thought no one would ever know what he said since no executive session minutes had ever been released by the council- a fact still true today. Since it would have been embarrassing to the newly elected Rapozo had the minutes been released Chair Asing took the opportunity to try to corral the “maverick” Rapozo and hang the ES content over his head, assuring compliance with Asing's wishes and machinations over the next two council terms whenever Rapozo’s enthusiasm got in the way or “rocked the boat” as Asing is fond of saying.
It was in fact Asing who filed the charges with the BOE against Lum, at first on council letterhead and then, when he realized the whole council had never approved such a charge and that it would have indeed been an ethics violation to use his office to file the complaint against Ching, he said he made a “mistake” and said he was filing as a private citizen.
But the real heart of the conspiracy occurred at the mayor-appointed, council-confirmed BOE. The Ching case was heard by a retired Maui judge in secret and the secret report was given to the BOE. But while the report the BOE released to the council seemed to indicate that Ching had indeed used his position to secure a special privilege for Lum that wasn’t what the full report indicated.
Citizen activist Richard Stauber came before the council during the council’s session held to approve the BOE report and had a copy of the full report in which the judge essentially said that nothing untoward had happened and actually exonerated Ching although he did allow the county attorney’s office to write up the summery judgment which is what the council considered without officially seeing the whole report.
Saying a “little bird dropped (the full document) in my widow” Stauber tried to present it to the council as part of his testimony. But the council, perhaps fully aware of the content and not wanting the full report to become part of the public record, actually not only refused to accept the document and but when Stauber placed it on their table they instructed staff to physically give it back to Stauber.
Though the document was presented to the then council-beat reporter for the local newspaper Lester Chang- whose writing skills bordered on incompetence and who was widely known for his kow-towing to Asing and his penchant for trying to please the council- he refused to report on or even mention the additional data making sure that the general public never heard about the full report.
Finally a reluctant Mayor Bryan Baptiste, who originally really wanted the whole thing to just go away but later came to see which way the wind was blowing, joined the conspiracy apparently instructing Finance Director Michael Tressler- who was reward with a cushy. do-nothing vice-presidency at a big local land owner Grove Farm- to terminate Lum’s contract, resulting in Lum’s retirement because if he had allow himself to be “fired” as chief it could have resulted in him losing his seniority and thus pension.
Many other little oddities occurred during the time, mostly related to Police Commissioner Leon Gonsalves’ “hop sing” letter.
That bled over into the Lum persecution which also involved supporters of current Police Chief Darryl Perry including his brother, prominent attorney Warren Perry, and the leadership of the police union SHOPPO along with others in the administration who had begun to understand that their support of Lum might lead to consequences such as when another officer was disciplined for circulating a petition supporting Lum.
Soon the silence in support of Lum was deafening and no one was left to say boo when he was canned.
We certainly haven’t covered all the elements of the conspiracy here. To find out more details, if you’ve never read former Honolulu Star Bulletin Kaua`i Bureau Chief Anthony Sommer’s book KPD Blue (see left rail) it’s about time you did. And if any of the names or terms seem unfamiliar you can cut and paste them into the search box at the top of the page to see our past coverage.
What’s perhaps most galling about last Wednesday’s council “show” was the little conspiracy in the room and the way councilmembers browbeat and intimidated Mickens because, although he sat through the whole debacle along with Sommer and PNN, he might not always be as quick with his wits and as ready for confrontation as we might be had we been there and been given the opportunity to say what we’ve said here.
So pick on someone your own size Kaipo, Jay and Darryl. Anytime, any place we’d be not just glad but elated to debate any or all of you on the topic of the “concerted conspiratorial effort”. No?- well your silence is deafening, especially given your treatment of other who may be less articulate when they appear before you and your avoidance of people who can verbally hold their own.
We feel that Lum made a mistake in trying to make the whole case about racial/ethnic discrimination rather than a general wrongful termination. We also feel like his attorney Clayton Ikei didn’t serve him well in the various courts. Since it’s doubtful Lum has the money to continue the fight it seems that the county’s victory at the three-judge-panel level of the federal 9th Circuit will stand.
To claim there was no conspiracy in general to reverse the hiring of Lum- who would have been approved by the commission even without Ching's vote- unfortunately serves as a lesson to those who might enter the Minotaur’s labyrinth- have your wits about you and sword drawn even when the dark is as dark as can be, lest you serve as grist for the bonemill.
Never was that more in evidence than at the last council meeting when the subject of former Kaua`i Police Department (KPD) Chief KC Lum’s lawsuit against the county was addressed.
Council watchdog Glen Mickens had the temerity to state that the persecution and dismissal of Lum was a “concerted conspiratorial effort” which, as the local newspaper’s Michael Levine reported, was met with vehement denials by two of the Minotaur’s gate keepers, Councilmembers Darryl Kaneshiro and Jay Furfaro, and the bone-gnasher himself Chair Kaipo Asing.
But what those who read the article or watched the cablecast of the meeting might have missed was the slight of hand on the council’s part in addressing, not the agenda item detailing an appropriation to fight the Lum lawsuit- which was struck down again in federal court at the 9th circuit level days before, apparently unbeknownst to the council at the time- but the separate somewhat related case of ES-177 which was “won” by the county weeks ago in Hawai`i Supreme Court.
The smoke and mirrors, hocus-pocus was because the charge of there having been a “concerted conspiratorial effort” to get rid of Lum would be difficult if not impossible to deny by anyone who really followed the saga from start to finish.
The first thing about the 9th Circuit decision that should be noted is that they did not rule that there was no conspiracy to get rid of Lum in general, just that it wasn’t race based.
As reported in another article- this one on the 9th Circuit decision itself- the court specifically said:
Lum and attorney Clayton Ikei failed to show former county Finance Department Director Michael Tresler acted with conspiracy based on racial bias when Tresler canceled Lum’s employment agreement (emphasis added)
The second important thing was that the decision was based on the “fact” that former Police Commission Chair Michael Ching showed bias in the hiring of Lum, based on a Board of Ethics (BOE) case that was enforced by the county council after a BOE “trial” of Ching which was held behind closed doors at Ching's behest.
It should be noted that fellow Police Commissioner Carol Furtado was brought up on the same charges of favoritism but chose a public hearing of her case resulting in an acquittal, most observers believe, because it was held in the open.
But looking at the whole sad story it would have been truly absurd for the council to claim that there was no concerted conspiratorial effort in Lum’s firing.
Let’s remember how it happened concerning at least two pertinent events.
The whole business started when former Councilperson and former KPD Officer Mel Rapozo came onto the council along with now Prosecutor Shaylene Iseri-Carvalho, both of whom held a grudge against Lum for events in their past.
Rapozo had been in the room during the infamous “lap dancer” molestation incident and Lum was the lieutenant on duty that night. When Officer Darla Abbatiello- who later sued and won a suit for harassment against the department and county- burst into Lum’s office and told him what was happening down the hall, Lum had no choice but to report the incident- something Rapozo and others to this day claim resulted in the firing of the “three good officer” who molested the “lap dancer” and the resignation of Rapozo who, supposedly, “just” stood by watching and laughing.
Iseri’s grudge came from a party she was hosting at Lydgate Park pavilion where the level of noise and boisterousness was such that a complaint was filed and Lum was the responding officer. A drunken Iseri, then a deputy prosecutor, confronted Lum when he came a second time to tell her to break it up and she always held a grudge based on the incident according to multiple sources.
Then came ES-177 and, according to an OIP letter to County Clerk Peter Nakamura during the back and forth about releasing the minutes, Rapozo went off on the whole department, especially Lum, detailing what he saw as injustices.
Rapozo obviously thought no one would ever know what he said since no executive session minutes had ever been released by the council- a fact still true today. Since it would have been embarrassing to the newly elected Rapozo had the minutes been released Chair Asing took the opportunity to try to corral the “maverick” Rapozo and hang the ES content over his head, assuring compliance with Asing's wishes and machinations over the next two council terms whenever Rapozo’s enthusiasm got in the way or “rocked the boat” as Asing is fond of saying.
It was in fact Asing who filed the charges with the BOE against Lum, at first on council letterhead and then, when he realized the whole council had never approved such a charge and that it would have indeed been an ethics violation to use his office to file the complaint against Ching, he said he made a “mistake” and said he was filing as a private citizen.
But the real heart of the conspiracy occurred at the mayor-appointed, council-confirmed BOE. The Ching case was heard by a retired Maui judge in secret and the secret report was given to the BOE. But while the report the BOE released to the council seemed to indicate that Ching had indeed used his position to secure a special privilege for Lum that wasn’t what the full report indicated.
Citizen activist Richard Stauber came before the council during the council’s session held to approve the BOE report and had a copy of the full report in which the judge essentially said that nothing untoward had happened and actually exonerated Ching although he did allow the county attorney’s office to write up the summery judgment which is what the council considered without officially seeing the whole report.
Saying a “little bird dropped (the full document) in my widow” Stauber tried to present it to the council as part of his testimony. But the council, perhaps fully aware of the content and not wanting the full report to become part of the public record, actually not only refused to accept the document and but when Stauber placed it on their table they instructed staff to physically give it back to Stauber.
Though the document was presented to the then council-beat reporter for the local newspaper Lester Chang- whose writing skills bordered on incompetence and who was widely known for his kow-towing to Asing and his penchant for trying to please the council- he refused to report on or even mention the additional data making sure that the general public never heard about the full report.
Finally a reluctant Mayor Bryan Baptiste, who originally really wanted the whole thing to just go away but later came to see which way the wind was blowing, joined the conspiracy apparently instructing Finance Director Michael Tressler- who was reward with a cushy. do-nothing vice-presidency at a big local land owner Grove Farm- to terminate Lum’s contract, resulting in Lum’s retirement because if he had allow himself to be “fired” as chief it could have resulted in him losing his seniority and thus pension.
Many other little oddities occurred during the time, mostly related to Police Commissioner Leon Gonsalves’ “hop sing” letter.
That bled over into the Lum persecution which also involved supporters of current Police Chief Darryl Perry including his brother, prominent attorney Warren Perry, and the leadership of the police union SHOPPO along with others in the administration who had begun to understand that their support of Lum might lead to consequences such as when another officer was disciplined for circulating a petition supporting Lum.
Soon the silence in support of Lum was deafening and no one was left to say boo when he was canned.
We certainly haven’t covered all the elements of the conspiracy here. To find out more details, if you’ve never read former Honolulu Star Bulletin Kaua`i Bureau Chief Anthony Sommer’s book KPD Blue (see left rail) it’s about time you did. And if any of the names or terms seem unfamiliar you can cut and paste them into the search box at the top of the page to see our past coverage.
What’s perhaps most galling about last Wednesday’s council “show” was the little conspiracy in the room and the way councilmembers browbeat and intimidated Mickens because, although he sat through the whole debacle along with Sommer and PNN, he might not always be as quick with his wits and as ready for confrontation as we might be had we been there and been given the opportunity to say what we’ve said here.
So pick on someone your own size Kaipo, Jay and Darryl. Anytime, any place we’d be not just glad but elated to debate any or all of you on the topic of the “concerted conspiratorial effort”. No?- well your silence is deafening, especially given your treatment of other who may be less articulate when they appear before you and your avoidance of people who can verbally hold their own.
We feel that Lum made a mistake in trying to make the whole case about racial/ethnic discrimination rather than a general wrongful termination. We also feel like his attorney Clayton Ikei didn’t serve him well in the various courts. Since it’s doubtful Lum has the money to continue the fight it seems that the county’s victory at the three-judge-panel level of the federal 9th Circuit will stand.
To claim there was no conspiracy in general to reverse the hiring of Lum- who would have been approved by the commission even without Ching's vote- unfortunately serves as a lesson to those who might enter the Minotaur’s labyrinth- have your wits about you and sword drawn even when the dark is as dark as can be, lest you serve as grist for the bonemill.
Wednesday, October 14, 2009
A THIRD OF A NINTH
A THIRD OF A NINTH: Today the United States Court Of Appeals For The Ninth Circuit will be hearing the case of KC Lum v. Kauai County Council, former Kauai` Police Department Chief Lum’s appeal of the dismissal of his civil rights case against the county council and other county entities.
It may or may not be telling that it’s the last case of a two day calendar.
The audio of the oral hearings should be available here by noon tomorrow.
But when we went to review the briefs filed in search of all the particulars, we found that they were filed “under seal”.
We were able though to obtain what was filed and the list is fascinating. Anyone who has read KPD Blue or this space will recognize many of the names. Keep these in mind when listening to the tape tomorrow.
For those who want a to peruse the scorecard, here’s the full docket so far ...sans details (thanks to Charley Foster).
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05/05/2008
1 3 pg, 172.92 KB
DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND CADS: No. The schedule is set as follows: Designation of RT for Appellant King C. Lum due 05/05/2008. Designation of RT for Appellee Bryan Baptiste, Leon Gonsalves Sr., Kauai County, Kauai County Council and Michael H. Tresler due 05/15/2008. Transcript order for Appellant King C. Lum due 05/27/2008. Certificate of record due 06/02/2008. Appellant King C. Lum opening brief due 08/11/2008. Appellee Bryan Baptiste, Appellee Leon Gonsalves Sr., Appellee Kauai County, Appellee Kauai County Council and Appellee Michael H. Tresler answering brief due 09/09/2008. Appellant's optional reply brief is due 14 days after service of the answering brief. (GR)
05/05/2008
2
Filed representation notice of Clayton C. Ikei and Jerry P.S. Chang (GR)
05/05/2008
3
Filed Civil Appeals Docketing Statement. Served on 04/25/2008. (GR)
05/08/2008
4 8 pg, 78.65 KB
Filed order MEDIATION (VLS): Case referred to Mediation for assessment conference only. Telephone conference to be on 06/02/2008 at 02:30 pm. (Pacific Standard Time) (KKW)
05/14/2008
5
Filed certificate of record on appeal. RT filed in DC 6/12/08 (EL)
05/15/2008
6
Filed Appellant King C. Lum notice of order of transcript. Reporters transcript ordered: (NONE) (RC)
06/02/2008
7 1 pg, 32.39 KB
Filed order MEDIATION (RGA):The court will initiate a further assessment conference by telephone on July 1, 2008, at 3:00 p.m. PACIFIC (San Francisco) Time.The briefing schedule previously set by the court is amended as follows: appellant shall file an opening brief on or before September 15, 2008; appellees shall file an answering brief on or before October 15, 2008; appellant may file an optional reply brief within fourteen (14) days from the service date of the answering brief. (KKW)
06/30/2008
8 1 pg, 31.74 KB
Filed order MEDIATION (RGA):. At the request of counsel for appellees, the further assessment conference originally scheduled for July 1, 2008, is continued to August 5, 2008, at 3:00 p.m. PACIFIC (San Francisco) Time. (KKW)
08/06/2008
9 2 pg, 28.05 KB
Filed order MEDIATION (RGA): The court has determined that this appeal will not be selected for inclusion in the Mediation Program. All further inquiries regarding this appeal, including requests for extensions of time, should be directed to the Clerk’s office. The briefing schedule previously set by the court is amended as follows: appellant shall file an opening brief on or before October 6, 2008; appellees shall file an answering brief on or before November 20, 2008; appellant may file an optional reply brief within fourteen (14) days from the service date of the answering brief. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant further settlement discussions while the appeal is pending. (WL)
10/03/2008
10
Received Appellant King C. Lum's notification of filing Vol. 5 of EOR UNDER SEAL, with copy of DC protective order attached. (LA)
10/03/2008
11
Filed original and 15 copies of Appellant King C. Lum (Informal: No) opening brief of 62 pages. Five copies Excerpts of record in 12 volumes (Vol. 5 FILED UNDER SEAL). Served on 10/02/2008. (LA)
11/21/2008
12
Filed original and 15 copies of Appellee Leon Gonsalves, Sr. answering brief of 30 pages and separate addendum. Supplemental Excerpts of record in 4 volumes. Served on 11/19/2008. (LA)
11/24/2008
13
Filed original and 15 copies of Appellees Bryan Baptiste, Kauai County, Kauai County Council and Michael H. Tresler answering brief of 50 pages. Supplemental Excerpts of record in 2 volumes. Served on 11/20/2008. (LA)
12/03/2008
14
Filed original and 15 copies of Appellant King C. Lum (Informal: No) reply brief of 6 pages. Served on 12/02/2008. (LA)
06/29/2009
15
Calendar check performed. [6972743] (AW)
07/24/2009
16 1 pg, 77.09 KB
Received copy of transcript designation and ordering form filed in DC. [7003647] (MT)
08/06/2009
17
Calendar materials being prepared. [7018072] [08-10422, 09-10092, 08-16167, 08-17166, 08-15648, 08-16352, 08-16093, 09-10147] (AM)
08/10/2009
18
CALENDARED: 10/14/2009 9:00 AM Honolulu, HI Sixth Flr Courtroom [7021130] [08-10422, 09-10092, 08-16167, 08-17166, 08-15648, 08-16352, 08-16093, 09-10147] (AM)
09/02/2009
19 4 pg, 121.29 KB
Notice of Oral Argument on OCTOBER 14, 2009 Calendar. Please return ACKNOWLEDGEMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Please open attached documents to view details about your case. [7049601] (AM)
09/14/2009
20
UPDATED CASE CALENDARED: 10/14/2009 9:30 AM Honolulu, HI, The University of Hawaii @ Manoa, William .S Richardson School of Law, Moot Courtroom [7060079] [09-10147, 08-10422, 09-10092, 08-17166, 08-15648, 08-16352, 08-16093] (AM)
09/14/2009
21 7 pg, 323.31 KB
REVISED Notice of Oral Argument on OCTOBER 14, 2009 at The University of Hawaii @ Manoa Law School. Please note the location and time change of hearing, and return ACKNOWLEDGEMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Open attached documents to view details about your case. [7060349] (AM)
It may or may not be telling that it’s the last case of a two day calendar.
The audio of the oral hearings should be available here by noon tomorrow.
But when we went to review the briefs filed in search of all the particulars, we found that they were filed “under seal”.
We were able though to obtain what was filed and the list is fascinating. Anyone who has read KPD Blue or this space will recognize many of the names. Keep these in mind when listening to the tape tomorrow.
For those who want a to peruse the scorecard, here’s the full docket so far ...sans details (thanks to Charley Foster).
----------------------
05/05/2008
1 3 pg, 172.92 KB
DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND CADS: No. The schedule is set as follows: Designation of RT for Appellant King C. Lum due 05/05/2008. Designation of RT for Appellee Bryan Baptiste, Leon Gonsalves Sr., Kauai County, Kauai County Council and Michael H. Tresler due 05/15/2008. Transcript order for Appellant King C. Lum due 05/27/2008. Certificate of record due 06/02/2008. Appellant King C. Lum opening brief due 08/11/2008. Appellee Bryan Baptiste, Appellee Leon Gonsalves Sr., Appellee Kauai County, Appellee Kauai County Council and Appellee Michael H. Tresler answering brief due 09/09/2008. Appellant's optional reply brief is due 14 days after service of the answering brief. (GR)
05/05/2008
2
Filed representation notice of Clayton C. Ikei and Jerry P.S. Chang (GR)
05/05/2008
3
Filed Civil Appeals Docketing Statement. Served on 04/25/2008. (GR)
05/08/2008
4 8 pg, 78.65 KB
Filed order MEDIATION (VLS): Case referred to Mediation for assessment conference only. Telephone conference to be on 06/02/2008 at 02:30 pm. (Pacific Standard Time) (KKW)
05/14/2008
5
Filed certificate of record on appeal. RT filed in DC 6/12/08 (EL)
05/15/2008
6
Filed Appellant King C. Lum notice of order of transcript. Reporters transcript ordered: (NONE) (RC)
06/02/2008
7 1 pg, 32.39 KB
Filed order MEDIATION (RGA):The court will initiate a further assessment conference by telephone on July 1, 2008, at 3:00 p.m. PACIFIC (San Francisco) Time.The briefing schedule previously set by the court is amended as follows: appellant shall file an opening brief on or before September 15, 2008; appellees shall file an answering brief on or before October 15, 2008; appellant may file an optional reply brief within fourteen (14) days from the service date of the answering brief. (KKW)
06/30/2008
8 1 pg, 31.74 KB
Filed order MEDIATION (RGA):. At the request of counsel for appellees, the further assessment conference originally scheduled for July 1, 2008, is continued to August 5, 2008, at 3:00 p.m. PACIFIC (San Francisco) Time. (KKW)
08/06/2008
9 2 pg, 28.05 KB
Filed order MEDIATION (RGA): The court has determined that this appeal will not be selected for inclusion in the Mediation Program. All further inquiries regarding this appeal, including requests for extensions of time, should be directed to the Clerk’s office. The briefing schedule previously set by the court is amended as follows: appellant shall file an opening brief on or before October 6, 2008; appellees shall file an answering brief on or before November 20, 2008; appellant may file an optional reply brief within fourteen (14) days from the service date of the answering brief. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant further settlement discussions while the appeal is pending. (WL)
10/03/2008
10
Received Appellant King C. Lum's notification of filing Vol. 5 of EOR UNDER SEAL, with copy of DC protective order attached. (LA)
10/03/2008
11
Filed original and 15 copies of Appellant King C. Lum (Informal: No) opening brief of 62 pages. Five copies Excerpts of record in 12 volumes (Vol. 5 FILED UNDER SEAL). Served on 10/02/2008. (LA)
11/21/2008
12
Filed original and 15 copies of Appellee Leon Gonsalves, Sr. answering brief of 30 pages and separate addendum. Supplemental Excerpts of record in 4 volumes. Served on 11/19/2008. (LA)
11/24/2008
13
Filed original and 15 copies of Appellees Bryan Baptiste, Kauai County, Kauai County Council and Michael H. Tresler answering brief of 50 pages. Supplemental Excerpts of record in 2 volumes. Served on 11/20/2008. (LA)
12/03/2008
14
Filed original and 15 copies of Appellant King C. Lum (Informal: No) reply brief of 6 pages. Served on 12/02/2008. (LA)
06/29/2009
15
Calendar check performed. [6972743] (AW)
07/24/2009
16 1 pg, 77.09 KB
Received copy of transcript designation and ordering form filed in DC. [7003647] (MT)
08/06/2009
17
Calendar materials being prepared. [7018072] [08-10422, 09-10092, 08-16167, 08-17166, 08-15648, 08-16352, 08-16093, 09-10147] (AM)
08/10/2009
18
CALENDARED: 10/14/2009 9:00 AM Honolulu, HI Sixth Flr Courtroom [7021130] [08-10422, 09-10092, 08-16167, 08-17166, 08-15648, 08-16352, 08-16093, 09-10147] (AM)
09/02/2009
19 4 pg, 121.29 KB
Notice of Oral Argument on OCTOBER 14, 2009 Calendar. Please return ACKNOWLEDGEMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Please open attached documents to view details about your case. [7049601] (AM)
09/14/2009
20
UPDATED CASE CALENDARED: 10/14/2009 9:30 AM Honolulu, HI, The University of Hawaii @ Manoa, William .S Richardson School of Law, Moot Courtroom [7060079] [09-10147, 08-10422, 09-10092, 08-17166, 08-15648, 08-16352, 08-16093] (AM)
09/14/2009
21 7 pg, 323.31 KB
REVISED Notice of Oral Argument on OCTOBER 14, 2009 at The University of Hawaii @ Manoa Law School. Please note the location and time change of hearing, and return ACKNOWLEDGEMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Open attached documents to view details about your case. [7060349] (AM)
Tuesday, September 29, 2009
BARKING IN THE DARK
BARKING IN THE DARK: Joan Conrow’s recent interview with Kaua`i Police Department (KPD) Chief Darryl Perry in the Hawai`i Independent begins with Perry’s depiction of what he found when he took office saying:
When Police Chief Darryl Perry started work on Kauai two years ago, he was startled to find that his office lacked not only transition reports, but even such rudimentary supplies as a pencil and stapler.
“I wondered what else I would find if the basics were missing,” Perry recalled during a KKCR radio interview that I conducted with him on Thursday afternoon.
He soon discovered that much more was missing from the long-troubled department, including an internal affairs division, certain records, modern policies, good morale, and leadership. The force had some 30 vacant positions, and no disciplinary action had been taken against officers for the previous three years, resulting in a backlog of about 20 cases.
Whether this is due to ignorance of what happened before he took office along with a lack of comprehension of the laws governing the police commission and department or is the result of a selective memory is a matter only Perry himself can clarify.
But it’s essential that light be shed on some of the misconceptions and misperceptions that might result from reading the veiled passive aggressive allegations.
Let’s start with the complaint regarding processing of complaints.
There has been a fundamental problem of ambiguity and lack of clarity with the processing of complaints on Kaua`i since the county charter was adopted.
The relevant charter provisions read:
Section 11.03. General Powers of the Commission. The police
commission shall:
C. Receive, consider and investigate charges brought by the public against the conduct of the department or any of its members and submit a written report of its findings to the chief of police within ninety days.
Section 11.06. Discipline and Removal. The dismissal, suspension, or demotion of any police officer or employee in the police department shall be under procedures set forth by civil service laws and regulations.
There is nothing further stated in the charter as to what happens then. The problem has been that the HAR (Hawai`i Administrative Rules) are not of much help either. As a matter of fact they call for complaints to be filed with either the commission or the chief, according to a long standing commission complaint, causing no small confusion in tracking complaints.
Does the charter’s wording preclude an internal affairs division? After all if the commission is supposed to “(r)eceive, consider and investigate charges” what does an IA do? And what happens after the chief receives the report? And who is to do the investigation for the commission? It would seem to indicate an independent investigation is required conducted by the commission, not the department.
In practice the commission has received a small budget to hire investigators but that money has come up short of what is needed year after year with finding the most cost effective method of hiring investigators taking up an inordinate amount of commission time and energy in recent years.
One of the first police commission meetings PNN attended was when Mayor Maryanne Kusaka, apparently illegally interfering with the commission’s function, attempted to remove Chief George Freitas on her own by directing his secretary to seize his badge and gun under trumped up charges, all but a minor one of which- that his girlfriend rode in his police car- were determined by the commission to be unfounded.
According to the charter, the only function the Mayor serves regarding the KPD is to nominate the commissioners, who are confirmed by the county council.
At that meeting amidst the confusion and political machinations- under a county attorney, Hartwell Blake, who simply refused to recognize the charter and allowed the mayor to interfere with the commission and department in any manner she pleased- there was an agenda item that was deferred and did not show up on the agenda again for the next few years while the commission’s time was dominated with the proceedings regarding Freitas.
The item was to initiate review leading to new administrative rules as concerned complaints. To this day the commission operates under the rules they had found to be wanting for years before that meeting.
Once Freitas retired- with a huge “settlement” buyout in exchange for his dropping of a open-and-shut-case lawsuit against the county – the commission’s job number one was the search for a new chief. Through a series of interim chiefs the issues of administrative rules and insufficient money for investigators- and therefore the complaints themselves- took a backseat until it finally reappeared on the agenda again right after the appointment of Chief KC Lum.
But of course at that point all hell broke loose again with a new round of politically motivated charges against not just Lum but the chair and vice chair of the commission, all of whose time was consumed fighting the trumped up charges of two councilpersons- Mel Rapozo and Shaylene Iseri Carvalho- who held personal grudges against Lum.
Eventually Council Chair Kaipo Asing, in order to keep the support of the two for his now infamous iron fisted rule of the council, filed the complaint against Lum... at first officially on council letterhead appearing to speak for the whole council until complaints against Asing were filed when he claimed he just made a mistake by using county letterhead.
For the next two years the political shenanigans and charges dominated the commission meetings, interrupted and compounded by the “Hop Sing” episode where commissioner Leon Gonsalves’ email by using the racial slur was revealed spurring public pressure that caused then-Mayor Brian Baptiste to ask the council to remove Gonsalves.
When the council finally put the matter on the agenda under pressure from the police union leadership and others- including Perry’s brother Warren and many other of Perry’s supporters, including Gonsalves who also stated how he “could throw up” seeing Lum sworn in after Perry had lost out to Lum for the top cop job- the council refused to remove Gonsalves claiming it was “just his way of talking”.
Despite the blatant ethnic slur- Lum is of Chinese descent as was the Hop Sing character, a servant on the TV show Bonanza- Gonsalves was excused because he apparently had slurred many others with ethnic nicknames, as did others at the department, so somehow it didn’t matter because, as Asing and other councilmembers said, it was just “local culture”.
Amidst all that, the commission- by then the go to body to receive and investigate complaints- was in such constant turmoil and operating with bitter cross-table personal animosities, it made all other work, especially processing complaints, almost impossible.
And while all this was going on, the department’s chief financial officer took sick and went on leave with cancer right after Lum took office. This caused a constant lack of up to date accounting, compounding the longstanding deficiencies in the reporting system that kept reports from the financial officer up to three months behind causing the "actuals" of the last three months of the fiscal year to be unavailable until the year was over.
Since the department had been anywhere from 30 to 45 officer short for many years overtime pay was out of control. But rather than increase the line item for overtime the council expected Lum to cover all the shifts with the money appropriated for regular salary- something that, of course could never cover the higher overtime pay rate.
Lum was forced to scrimp and save in order to put enough officers on the streets- a policy the council and mayor, not to mention the community, insisted upon- without going over budget.
Despite this- and the fact that a final report from the finance director found he was not over budget- he was excoriated by the council for going over his budget when the real problem was apparently an accounting one caused by the absence of the long time financial officer.
That may explain why there were seemingly insufficient pencils and staplers with the money going to overtime salaries.
It would have been surprising- given all the political in-fighting, the major upheavals in removing two chiefs, the appointments of multiple interim chiefs, the procedural problems with complaint processing, the lack of a financial officer and all the other items detailed in Anthony Sommer’s book KPD Blue (which Perry recently seeming admitted was factual in saying “the days of KPD Blue are ‘over’”) – if anything else on the commission agenda was moving forward, including processing of complaints under unclear rules.
Pointing fingers is easy. Examining precisely what happened- especially when you’ve been in denial about it- is a little bit harder.
When Police Chief Darryl Perry started work on Kauai two years ago, he was startled to find that his office lacked not only transition reports, but even such rudimentary supplies as a pencil and stapler.
“I wondered what else I would find if the basics were missing,” Perry recalled during a KKCR radio interview that I conducted with him on Thursday afternoon.
He soon discovered that much more was missing from the long-troubled department, including an internal affairs division, certain records, modern policies, good morale, and leadership. The force had some 30 vacant positions, and no disciplinary action had been taken against officers for the previous three years, resulting in a backlog of about 20 cases.
Whether this is due to ignorance of what happened before he took office along with a lack of comprehension of the laws governing the police commission and department or is the result of a selective memory is a matter only Perry himself can clarify.
But it’s essential that light be shed on some of the misconceptions and misperceptions that might result from reading the veiled passive aggressive allegations.
Let’s start with the complaint regarding processing of complaints.
There has been a fundamental problem of ambiguity and lack of clarity with the processing of complaints on Kaua`i since the county charter was adopted.
The relevant charter provisions read:
Section 11.03. General Powers of the Commission. The police
commission shall:
C. Receive, consider and investigate charges brought by the public against the conduct of the department or any of its members and submit a written report of its findings to the chief of police within ninety days.
Section 11.06. Discipline and Removal. The dismissal, suspension, or demotion of any police officer or employee in the police department shall be under procedures set forth by civil service laws and regulations.
There is nothing further stated in the charter as to what happens then. The problem has been that the HAR (Hawai`i Administrative Rules) are not of much help either. As a matter of fact they call for complaints to be filed with either the commission or the chief, according to a long standing commission complaint, causing no small confusion in tracking complaints.
Does the charter’s wording preclude an internal affairs division? After all if the commission is supposed to “(r)eceive, consider and investigate charges” what does an IA do? And what happens after the chief receives the report? And who is to do the investigation for the commission? It would seem to indicate an independent investigation is required conducted by the commission, not the department.
In practice the commission has received a small budget to hire investigators but that money has come up short of what is needed year after year with finding the most cost effective method of hiring investigators taking up an inordinate amount of commission time and energy in recent years.
One of the first police commission meetings PNN attended was when Mayor Maryanne Kusaka, apparently illegally interfering with the commission’s function, attempted to remove Chief George Freitas on her own by directing his secretary to seize his badge and gun under trumped up charges, all but a minor one of which- that his girlfriend rode in his police car- were determined by the commission to be unfounded.
According to the charter, the only function the Mayor serves regarding the KPD is to nominate the commissioners, who are confirmed by the county council.
At that meeting amidst the confusion and political machinations- under a county attorney, Hartwell Blake, who simply refused to recognize the charter and allowed the mayor to interfere with the commission and department in any manner she pleased- there was an agenda item that was deferred and did not show up on the agenda again for the next few years while the commission’s time was dominated with the proceedings regarding Freitas.
The item was to initiate review leading to new administrative rules as concerned complaints. To this day the commission operates under the rules they had found to be wanting for years before that meeting.
Once Freitas retired- with a huge “settlement” buyout in exchange for his dropping of a open-and-shut-case lawsuit against the county – the commission’s job number one was the search for a new chief. Through a series of interim chiefs the issues of administrative rules and insufficient money for investigators- and therefore the complaints themselves- took a backseat until it finally reappeared on the agenda again right after the appointment of Chief KC Lum.
But of course at that point all hell broke loose again with a new round of politically motivated charges against not just Lum but the chair and vice chair of the commission, all of whose time was consumed fighting the trumped up charges of two councilpersons- Mel Rapozo and Shaylene Iseri Carvalho- who held personal grudges against Lum.
Eventually Council Chair Kaipo Asing, in order to keep the support of the two for his now infamous iron fisted rule of the council, filed the complaint against Lum... at first officially on council letterhead appearing to speak for the whole council until complaints against Asing were filed when he claimed he just made a mistake by using county letterhead.
For the next two years the political shenanigans and charges dominated the commission meetings, interrupted and compounded by the “Hop Sing” episode where commissioner Leon Gonsalves’ email by using the racial slur was revealed spurring public pressure that caused then-Mayor Brian Baptiste to ask the council to remove Gonsalves.
When the council finally put the matter on the agenda under pressure from the police union leadership and others- including Perry’s brother Warren and many other of Perry’s supporters, including Gonsalves who also stated how he “could throw up” seeing Lum sworn in after Perry had lost out to Lum for the top cop job- the council refused to remove Gonsalves claiming it was “just his way of talking”.
Despite the blatant ethnic slur- Lum is of Chinese descent as was the Hop Sing character, a servant on the TV show Bonanza- Gonsalves was excused because he apparently had slurred many others with ethnic nicknames, as did others at the department, so somehow it didn’t matter because, as Asing and other councilmembers said, it was just “local culture”.
Amidst all that, the commission- by then the go to body to receive and investigate complaints- was in such constant turmoil and operating with bitter cross-table personal animosities, it made all other work, especially processing complaints, almost impossible.
And while all this was going on, the department’s chief financial officer took sick and went on leave with cancer right after Lum took office. This caused a constant lack of up to date accounting, compounding the longstanding deficiencies in the reporting system that kept reports from the financial officer up to three months behind causing the "actuals" of the last three months of the fiscal year to be unavailable until the year was over.
Since the department had been anywhere from 30 to 45 officer short for many years overtime pay was out of control. But rather than increase the line item for overtime the council expected Lum to cover all the shifts with the money appropriated for regular salary- something that, of course could never cover the higher overtime pay rate.
Lum was forced to scrimp and save in order to put enough officers on the streets- a policy the council and mayor, not to mention the community, insisted upon- without going over budget.
Despite this- and the fact that a final report from the finance director found he was not over budget- he was excoriated by the council for going over his budget when the real problem was apparently an accounting one caused by the absence of the long time financial officer.
That may explain why there were seemingly insufficient pencils and staplers with the money going to overtime salaries.
It would have been surprising- given all the political in-fighting, the major upheavals in removing two chiefs, the appointments of multiple interim chiefs, the procedural problems with complaint processing, the lack of a financial officer and all the other items detailed in Anthony Sommer’s book KPD Blue (which Perry recently seeming admitted was factual in saying “the days of KPD Blue are ‘over’”) – if anything else on the commission agenda was moving forward, including processing of complaints under unclear rules.
Pointing fingers is easy. Examining precisely what happened- especially when you’ve been in denial about it- is a little bit harder.
Wednesday, August 19, 2009
DOESN’T PASS THE SNIFF TEST
DOESN’T PASS THE SNIFF TEST: Though it took some prodding from PNN to get it posted on-line, an editorial tripping over itself to find a silver lining in KPD Chief Darryl’s Perry’s slap-in-the-face-of-Kaua`i application to become Honolulu’s Police chief was finally posted yesterday.
This Sunday’s editorial in the local newspaper is more striking for what it leaves out than what it says. Although we suspect it was written or at least informed by “somebody please love me” oft-fired, piss-poor reporter Paul Curtis we usually get a response of “it’s a collaborative effort” when we’ve asked in the past about who the editorial scribes are since the paper recently established a once a week editorial voice.
If Curtis’ involvement is not the case then the excuse that the dynamic duo- journalists par excellence Editor Nathan Eagle and Assistant Editor Michael Levine- are newbies and don’t know the history could explain the revisionist history contained, although we’re pretty sure they have read the book “KPD Blue” and many of the reminders of the real history of the department in the last 10 years, as detailed in this space over the past year and a half.
But there really is no excuse for at least three passages that ignore reality and rather provide false premises for sycophantic lapdog hand-licking opinions.
The editorial somehow schizophrenically both criticizes and admonishes Perry for leaving unfinished business after he and his promoters screwed over two chiefs and caused no small amount of pilikila on the force and in the community over the years in revenge for his being passed over for the job twice.
The first paragraph that stands out says:
We are particularly impressed with his community outreach efforts and ability to connect with the people here. From writing a column for us answering your questions to reading at local elementary schools and generally making himself available at any time, Perry has gone above and beyond the call of duty.
The problem is that this “community outreach” has been a top-down, tin-ear attempt to take the community out of the equation in tossing aside the “community policing” programs instituted under Chief George Freitas- whose community policing successes in Richmond CA are noted nationwide- and continued under the short reign of Chief KC Lum.
Instead Perry promoted an “us vs. them” attitude on the force as he sought to bring a big-city style arms buildup to the tiny Kaua`i. He then refused to directly respond community criticism over that and noted incidents of police abuse of power and even brutality- which he pooh-poohed, indeed attacking those who would question his new techniques even twisting arms at the newspaper which fired regular columnist Juan Wilson over such criticisms.
The next paragraph is particularly galling to many on the force and their families and friends.
We continually hear from officers and people on the street how much better the department, historically known for its unstable footing, has been running since his arrival.
We’ll bet you have- since they are the only ones who will dare speak up on the subject. The fact is that many officers we’ve spoken to- especially who were caught on “the other side” in the 10 year battle to secure the job for Perry- tell us they found out early that any criticism or even suggestions would be met with retaliation.
Dissent has largely moved underground and certainly no one is going to tell the newspaper.
Even the “bottom up departmental review”- a review that would allow officers to freely and openly give input on structure, operations and policing methods - that was discussed for years by the police commission has been killed, giving officers who remain unsatisfied with the direction of the department marching orders to shut up and stew in their own juices.
The next two paragraphs are chock-full-o’ contradictions and misinformation
The tumultuous process of selecting a new chief is something we'd be OK not having to endure again for another couple decades if possible.
Then why the pass on leaving us in the lurch only a couple of years after battling for the job, a process we detailed in our editorial on the subject a couple of weeks ago.
Remember how messy things got last time around? Our county is still fighting the Office of Information Practices in the Hawai`i Supreme Court on a matter relating to the dismissal of former Police Chief K.C. Lum.
What a load. Although it came out of a request for minutes of a council meeting regarding a council investigation of the department, the case is really about the county’s ability to tell the OIP to shove it when OIP ruled the minutes of an executive session should be made public.
Calling it “a matter relating to the dismissal of former Police Chief K.C. Lum” and. among other things disregarding the race discrimination suit by Lum in the “Hop Sing” fiasco- which is still alive in federal court- is to shift the blame for the debacle from a politically motivated purge by the good old boys to some sort of internal dispute caused by Lum.
The next sentence it the topper:
It's not about breaking commitments to serve Kaua`i. How could he have foreseen that this opportunity would open up? And why should he be asked to turn a blind eye?
How could he have foreseen it? Don’t you guys read the papers? Honolulu Chief Boisse Correa’s five year contract is expiring and he has been hobbled with a bad back which caused him to take a long leave of absence.
Correa hasn’t had a shot in hell of continuing beyond his current tenure and that was a forgone conclusion way before Perry ever set foot at the already-falling-apart brand new police station.
But what’s most distressing is that, despite the “new blood” news department the mysterious editorial board- which we have no doubt includes old-boy-come-lately Publisher Mark Lewis- is exercising the right to distort history and ignore reality just because they’re the only ones on the island who still buys ink by the barrel.
The editorial is a blot on the once revered, then reviled, now revived local newspaper. With this revisionist history and the rehiring of the oft-fired Paul Curtis, it does not bode well for the future of islands’ “newspaper of record”.
This Sunday’s editorial in the local newspaper is more striking for what it leaves out than what it says. Although we suspect it was written or at least informed by “somebody please love me” oft-fired, piss-poor reporter Paul Curtis we usually get a response of “it’s a collaborative effort” when we’ve asked in the past about who the editorial scribes are since the paper recently established a once a week editorial voice.
If Curtis’ involvement is not the case then the excuse that the dynamic duo- journalists par excellence Editor Nathan Eagle and Assistant Editor Michael Levine- are newbies and don’t know the history could explain the revisionist history contained, although we’re pretty sure they have read the book “KPD Blue” and many of the reminders of the real history of the department in the last 10 years, as detailed in this space over the past year and a half.
But there really is no excuse for at least three passages that ignore reality and rather provide false premises for sycophantic lapdog hand-licking opinions.
The editorial somehow schizophrenically both criticizes and admonishes Perry for leaving unfinished business after he and his promoters screwed over two chiefs and caused no small amount of pilikila on the force and in the community over the years in revenge for his being passed over for the job twice.
The first paragraph that stands out says:
We are particularly impressed with his community outreach efforts and ability to connect with the people here. From writing a column for us answering your questions to reading at local elementary schools and generally making himself available at any time, Perry has gone above and beyond the call of duty.
The problem is that this “community outreach” has been a top-down, tin-ear attempt to take the community out of the equation in tossing aside the “community policing” programs instituted under Chief George Freitas- whose community policing successes in Richmond CA are noted nationwide- and continued under the short reign of Chief KC Lum.
Instead Perry promoted an “us vs. them” attitude on the force as he sought to bring a big-city style arms buildup to the tiny Kaua`i. He then refused to directly respond community criticism over that and noted incidents of police abuse of power and even brutality- which he pooh-poohed, indeed attacking those who would question his new techniques even twisting arms at the newspaper which fired regular columnist Juan Wilson over such criticisms.
The next paragraph is particularly galling to many on the force and their families and friends.
We continually hear from officers and people on the street how much better the department, historically known for its unstable footing, has been running since his arrival.
We’ll bet you have- since they are the only ones who will dare speak up on the subject. The fact is that many officers we’ve spoken to- especially who were caught on “the other side” in the 10 year battle to secure the job for Perry- tell us they found out early that any criticism or even suggestions would be met with retaliation.
Dissent has largely moved underground and certainly no one is going to tell the newspaper.
Even the “bottom up departmental review”- a review that would allow officers to freely and openly give input on structure, operations and policing methods - that was discussed for years by the police commission has been killed, giving officers who remain unsatisfied with the direction of the department marching orders to shut up and stew in their own juices.
The next two paragraphs are chock-full-o’ contradictions and misinformation
The tumultuous process of selecting a new chief is something we'd be OK not having to endure again for another couple decades if possible.
Then why the pass on leaving us in the lurch only a couple of years after battling for the job, a process we detailed in our editorial on the subject a couple of weeks ago.
Remember how messy things got last time around? Our county is still fighting the Office of Information Practices in the Hawai`i Supreme Court on a matter relating to the dismissal of former Police Chief K.C. Lum.
What a load. Although it came out of a request for minutes of a council meeting regarding a council investigation of the department, the case is really about the county’s ability to tell the OIP to shove it when OIP ruled the minutes of an executive session should be made public.
Calling it “a matter relating to the dismissal of former Police Chief K.C. Lum” and. among other things disregarding the race discrimination suit by Lum in the “Hop Sing” fiasco- which is still alive in federal court- is to shift the blame for the debacle from a politically motivated purge by the good old boys to some sort of internal dispute caused by Lum.
The next sentence it the topper:
It's not about breaking commitments to serve Kaua`i. How could he have foreseen that this opportunity would open up? And why should he be asked to turn a blind eye?
How could he have foreseen it? Don’t you guys read the papers? Honolulu Chief Boisse Correa’s five year contract is expiring and he has been hobbled with a bad back which caused him to take a long leave of absence.
Correa hasn’t had a shot in hell of continuing beyond his current tenure and that was a forgone conclusion way before Perry ever set foot at the already-falling-apart brand new police station.
But what’s most distressing is that, despite the “new blood” news department the mysterious editorial board- which we have no doubt includes old-boy-come-lately Publisher Mark Lewis- is exercising the right to distort history and ignore reality just because they’re the only ones on the island who still buys ink by the barrel.
The editorial is a blot on the once revered, then reviled, now revived local newspaper. With this revisionist history and the rehiring of the oft-fired Paul Curtis, it does not bode well for the future of islands’ “newspaper of record”.
Monday, August 10, 2009
WHEN DARRYL COMES MARCHIN’ HOME
WHEN DARRYL COMES MARCHIN’ HOME: Prominent Kaua`i attorney Warren Perry is suing his brother, Kaua`i Police chief Darryl Perry for defamation in a real head-scratchier for those who followed Perry’s path to the top cop job according to an article in today’s Honolulu Advertiser.
Seems that, according to Warren’s lawsuit in 5th Circuit court on Kaua`i
Darryl Perry, Eugene Perry, Antone Perez Perry and others filed a groundless complaint with the Hawai`i Office of Disciplinary Council accusing him of concealing the fact that he used insurance settlement money to make repairs to a Perry family estate home in Lawai, Kaua`i, that was damaged by Hurricane Iwa in 1982 and Hurricane Iniki in 1992.
In his lawsuit against Darryl and the other Perry brothers, Warren Perry claimed the "frivolous ODC" complaint was leaked to the Kaua`i County Council in 2007, ruining his chances of becoming Kaua'i's (sic) county attorney.
Warren Perry said he had to decline a second offer, in 2008, to become county attorney because of the allegations contained in the ODC complaint.
The lawsuit came to light when Allstate Insurance Co. filed a case in U.S. District Court saying “that it should not have to pay the legal costs of Kaua`i Police Chief Darryl D. Perry in defending himself in a defamation lawsuit” according to the article.
During the KPD scandals in the early to mid ‘00’s--
...from Darryl Perry’s bitter defeat by KC Lum for the Chief’s job, opened up specifically for Perry when Mayor Marianne Kusaka forced Chief George Freitas out by buying him off with a huge “settlement” after he beat her trumped up charges,
...through the attempted and failed removal of Police Commissioner Leon “Angus” Gonsalves for making racist remarks about Lum (calling him “Hop Sing”), a feigned attempt forced by public pressure upon the late Mayor Bryan Baptiste and the county council,
...through the Ethics Board “trials”- many say on Perry’s behalf- of Police Commission Chair Michael Ching and Co-Chair Carol Furtado on phony charges of favoritism toward Lum, with allegations filed by Council Chair Kaipo Asing, who, although he filed the complaint on county council letterhead avoided a “trial” of his own on ethics charges by claiming he made a “mistake” in using council stationary and was actually filing as a private citizen,
...to the hiring of Perry after Ching and Furtado were gone from the commission and Lum was forced to resign to keep his pension when County Director of Finance- now Grove Farm VP in charge of lobbying the county- Mike Tressler threatened to illegally withdraw Lum’s contract,
-- Warren Perry was reportedly and observably one of the main operatives pulling the behind-the-scenes strings locally to insure his brother got, not just the job but revenge on those who opposed him.
Much of this is described in detail in the book KPD Blue, serialized here at Parx News Daily (linked on the right rail).
So it seems odd that Warren would be suing Darryl or that Darryl would have filed a disciplinary action against Warren after Warren had apparently been one of his main benefactors in obtaining the job of KPD Chief.
The only clue, if true, might come from an unsubstantial claim made in the comments section of the article.
And it’s a big “if”.
“LocalKineStyle”- who like others making comments on the article supporting Perry “registered” to comment at the Advertiser site only today- said in “fake pidgin”:
One thing else. Da chief neva file the ODC the complaint, one of ths sistas when do that.
How the commenter would know that if he or she isn’t party to the suit is unclear since OCA complaints are confidential unless and until a disciplinary action is taken..
Warren Perry is a long-time active member of the Republican Party, and a long time leader in the Royal Society of Kamehameha who served in the county attorney’s (CA) office more than a decade ago. New CA Al Castillo, a Democrat, was hired this year by the current all-Democratic mayor and council.
Warren’s name did not come up publicly either this year or when former Judge Matthew Pyun replaced Lani Nakazawa as the CA after Baptiste- a Republican- was re-elected and while two Republicans- both since turned Democrats (Jimmy Tokioka and Jay Furfaro)- served on the council.
It is not stated in the article exactly who “leaked” the OCA complaint to the council or if the council actually saw the document or were simply “informed” of it but, although it was never done publicly, it was presumably Darryl and/or one of the others named in Warren’s lawsuit who “told” them.
PNN will try to get hold of the lawsuit filings and, if possible, find out more about the ODC complaint but for now it certainly seems to indicate a falling out between Darryl and his family- to whom, he stated, he wanted to be closer when giving reasons for returning to Kaua`i... and whom he would seemingly be abandoning by moving back to Honolulu to take the Chief position at HPD, a job for which he applied a week or so back.
It remains speculative as to whether the suit has anything directly to do with Darryl Perry’s sudden “jilting of Kaua`i” after publicly indicating upon taking the Kaua`i job that he was home to stay until his retirement.
Seems that, according to Warren’s lawsuit in 5th Circuit court on Kaua`i
Darryl Perry, Eugene Perry, Antone Perez Perry and others filed a groundless complaint with the Hawai`i Office of Disciplinary Council accusing him of concealing the fact that he used insurance settlement money to make repairs to a Perry family estate home in Lawai, Kaua`i, that was damaged by Hurricane Iwa in 1982 and Hurricane Iniki in 1992.
In his lawsuit against Darryl and the other Perry brothers, Warren Perry claimed the "frivolous ODC" complaint was leaked to the Kaua`i County Council in 2007, ruining his chances of becoming Kaua'i's (sic) county attorney.
Warren Perry said he had to decline a second offer, in 2008, to become county attorney because of the allegations contained in the ODC complaint.
The lawsuit came to light when Allstate Insurance Co. filed a case in U.S. District Court saying “that it should not have to pay the legal costs of Kaua`i Police Chief Darryl D. Perry in defending himself in a defamation lawsuit” according to the article.
During the KPD scandals in the early to mid ‘00’s--
...from Darryl Perry’s bitter defeat by KC Lum for the Chief’s job, opened up specifically for Perry when Mayor Marianne Kusaka forced Chief George Freitas out by buying him off with a huge “settlement” after he beat her trumped up charges,
...through the attempted and failed removal of Police Commissioner Leon “Angus” Gonsalves for making racist remarks about Lum (calling him “Hop Sing”), a feigned attempt forced by public pressure upon the late Mayor Bryan Baptiste and the county council,
...through the Ethics Board “trials”- many say on Perry’s behalf- of Police Commission Chair Michael Ching and Co-Chair Carol Furtado on phony charges of favoritism toward Lum, with allegations filed by Council Chair Kaipo Asing, who, although he filed the complaint on county council letterhead avoided a “trial” of his own on ethics charges by claiming he made a “mistake” in using council stationary and was actually filing as a private citizen,
...to the hiring of Perry after Ching and Furtado were gone from the commission and Lum was forced to resign to keep his pension when County Director of Finance- now Grove Farm VP in charge of lobbying the county- Mike Tressler threatened to illegally withdraw Lum’s contract,
-- Warren Perry was reportedly and observably one of the main operatives pulling the behind-the-scenes strings locally to insure his brother got, not just the job but revenge on those who opposed him.
Much of this is described in detail in the book KPD Blue, serialized here at Parx News Daily (linked on the right rail).
So it seems odd that Warren would be suing Darryl or that Darryl would have filed a disciplinary action against Warren after Warren had apparently been one of his main benefactors in obtaining the job of KPD Chief.
The only clue, if true, might come from an unsubstantial claim made in the comments section of the article.
And it’s a big “if”.
“LocalKineStyle”- who like others making comments on the article supporting Perry “registered” to comment at the Advertiser site only today- said in “fake pidgin”:
One thing else. Da chief neva file the ODC the complaint, one of ths sistas when do that.
How the commenter would know that if he or she isn’t party to the suit is unclear since OCA complaints are confidential unless and until a disciplinary action is taken..
Warren Perry is a long-time active member of the Republican Party, and a long time leader in the Royal Society of Kamehameha who served in the county attorney’s (CA) office more than a decade ago. New CA Al Castillo, a Democrat, was hired this year by the current all-Democratic mayor and council.
Warren’s name did not come up publicly either this year or when former Judge Matthew Pyun replaced Lani Nakazawa as the CA after Baptiste- a Republican- was re-elected and while two Republicans- both since turned Democrats (Jimmy Tokioka and Jay Furfaro)- served on the council.
It is not stated in the article exactly who “leaked” the OCA complaint to the council or if the council actually saw the document or were simply “informed” of it but, although it was never done publicly, it was presumably Darryl and/or one of the others named in Warren’s lawsuit who “told” them.
PNN will try to get hold of the lawsuit filings and, if possible, find out more about the ODC complaint but for now it certainly seems to indicate a falling out between Darryl and his family- to whom, he stated, he wanted to be closer when giving reasons for returning to Kaua`i... and whom he would seemingly be abandoning by moving back to Honolulu to take the Chief position at HPD, a job for which he applied a week or so back.
It remains speculative as to whether the suit has anything directly to do with Darryl Perry’s sudden “jilting of Kaua`i” after publicly indicating upon taking the Kaua`i job that he was home to stay until his retirement.
Saturday, August 1, 2009
PNN EDITORIAL: STEP DOWN NOW CHIEF PERRY
PNN EDITORIAL: STEP DOWN NOW CHIEF PERRY
Kauai Police Chief Darryl Perry’s announcement that he is seeking to leave the Kaua`i Police Department (KPD) after only a couple of years and become the Honolulu Department Chief is an outrageous slap in the face of everyone on the island, citizens and officers alike.
While we have never been a fan of Perry’s heavy handed abandonment of the “community policing” programs instituted by the two prior chiefs, his main accomplishment- improving the so-called “morale” of officers- is so severely undermined by his announcement that there is only one thing he can do to insure a well functioning KPD- resign immediately.
Despite some convoluted head-scratching rationale (as reported in the local Kaua`i newspaper) that somehow he will be helping KPD by heading up HPD and that he seeks to depart only reluctantly, his leaving makes it abundantly clear that he never had any intention other than to use Kaua`i as a stepping stone to the HPD job since without the “experience” as KPD Chief he would have never met the qualifications needed for consideration there.
But even more unsettling is the political upheaval his relentless pursuit of the job perpetrated upon the political apparatus of the county.
Perry’s supporters were relentless in their push to give him the job of KPD chief. They and he have caused Kaua`i to be torn apart by things like:
-racist slurs from a police commissioner and the lack of action by the appointing mayor and council;
-witch hunts against the two prior chiefs by two mayors and a handful of councilmembers who supported Perry and plotted revenge against former Chief KC Lum and the two commissioners who dared to support him rather than give Perry the job;
-a resulting unethical hatchet job by the ethics board, and when all else failed
-an threat to illegally cancel Lum’s contract by the finance director who was apparently rewarded with a cushy private sector job for his action.
All of these were very transparently either directed by Perry or at least done in his name after he was denied the job when former Chief George Freitas was chased out of office and Lum was hired.
To leave after only two years of a three year contract after pledging that he was “coming home” for good and sought to continue as chief until his retirement is bound to have many severe repercussions on the psyche of KPD employees.
Officers are bound to be left feeling hurt and confused after putting away many of their long standing grievances to rally around Perry in the hope that the once fractured and divided department could be made whole again under his reign.
The fact that he pledged to rebuild KPD through an effort to finally obtain the accreditation that all the other islands’ departments have and bring the number of sworn officers up to appropriated levels- and is now abandoning that pledge- makes his effectiveness a thing of the past.
As such he has but one choice if he is indeed acting in the best interest of Kaua`i – to step down now, save everyone months of uncertainty and perhaps animosity and allow someone who is a person of his or her word- someone who is actually committed to serving KPD and the people of Kaua`i and not just to perpetuating his or her own career- to take over the reigns as soon as possible.
We’ve never been a supporter of Perry after the scandalous way the last two chiefs were harassed out of office in order to place Perry at the helm, as described in the book KPD Blue by former Honolulu Star-Bulletin Kaua`i Bureau Chief Anthony Sommer (see right rail to read the book).
We’ve objected , among other things, to his rigid anachronistic stance opposing medical and general marijuana law reform and to his apparent complicity in the actions of officers who stepped over the thin blue line in reported incidents of excessive force, especially many involving kanaka maoli (“native Hawaiian”) sovereignty advocates.
On the other hand we have had to respect the way many officers have apparently rallied around him and resolved- or at least suppressed- many long standing intradepartmental animosities and disputes.
But this action in announcing that we were never anything but a means to an end for him makes it doubtful that he can still function effectively at the helm and do the one thing he has done well in uniting KPD officers.
Step down now chief and save us more pain on top of that which you’ve already inflicted in jilting us.
Kauai Police Chief Darryl Perry’s announcement that he is seeking to leave the Kaua`i Police Department (KPD) after only a couple of years and become the Honolulu Department Chief is an outrageous slap in the face of everyone on the island, citizens and officers alike.
While we have never been a fan of Perry’s heavy handed abandonment of the “community policing” programs instituted by the two prior chiefs, his main accomplishment- improving the so-called “morale” of officers- is so severely undermined by his announcement that there is only one thing he can do to insure a well functioning KPD- resign immediately.
Despite some convoluted head-scratching rationale (as reported in the local Kaua`i newspaper) that somehow he will be helping KPD by heading up HPD and that he seeks to depart only reluctantly, his leaving makes it abundantly clear that he never had any intention other than to use Kaua`i as a stepping stone to the HPD job since without the “experience” as KPD Chief he would have never met the qualifications needed for consideration there.
But even more unsettling is the political upheaval his relentless pursuit of the job perpetrated upon the political apparatus of the county.
Perry’s supporters were relentless in their push to give him the job of KPD chief. They and he have caused Kaua`i to be torn apart by things like:
-racist slurs from a police commissioner and the lack of action by the appointing mayor and council;
-witch hunts against the two prior chiefs by two mayors and a handful of councilmembers who supported Perry and plotted revenge against former Chief KC Lum and the two commissioners who dared to support him rather than give Perry the job;
-a resulting unethical hatchet job by the ethics board, and when all else failed
-an threat to illegally cancel Lum’s contract by the finance director who was apparently rewarded with a cushy private sector job for his action.
All of these were very transparently either directed by Perry or at least done in his name after he was denied the job when former Chief George Freitas was chased out of office and Lum was hired.
To leave after only two years of a three year contract after pledging that he was “coming home” for good and sought to continue as chief until his retirement is bound to have many severe repercussions on the psyche of KPD employees.
Officers are bound to be left feeling hurt and confused after putting away many of their long standing grievances to rally around Perry in the hope that the once fractured and divided department could be made whole again under his reign.
The fact that he pledged to rebuild KPD through an effort to finally obtain the accreditation that all the other islands’ departments have and bring the number of sworn officers up to appropriated levels- and is now abandoning that pledge- makes his effectiveness a thing of the past.
As such he has but one choice if he is indeed acting in the best interest of Kaua`i – to step down now, save everyone months of uncertainty and perhaps animosity and allow someone who is a person of his or her word- someone who is actually committed to serving KPD and the people of Kaua`i and not just to perpetuating his or her own career- to take over the reigns as soon as possible.
We’ve never been a supporter of Perry after the scandalous way the last two chiefs were harassed out of office in order to place Perry at the helm, as described in the book KPD Blue by former Honolulu Star-Bulletin Kaua`i Bureau Chief Anthony Sommer (see right rail to read the book).
We’ve objected , among other things, to his rigid anachronistic stance opposing medical and general marijuana law reform and to his apparent complicity in the actions of officers who stepped over the thin blue line in reported incidents of excessive force, especially many involving kanaka maoli (“native Hawaiian”) sovereignty advocates.
On the other hand we have had to respect the way many officers have apparently rallied around him and resolved- or at least suppressed- many long standing intradepartmental animosities and disputes.
But this action in announcing that we were never anything but a means to an end for him makes it doubtful that he can still function effectively at the helm and do the one thing he has done well in uniting KPD officers.
Step down now chief and save us more pain on top of that which you’ve already inflicted in jilting us.
Wednesday, July 1, 2009
WRIT LARGE
WRIT LARGE: We’re now in possession of a “quotable” text copy of the Office of Information Practice (OIP) application for “writ of certiorari” (mahalo to Larry Geller for the excellent conversion work) regarding the infamous ES (executive session) 177 the Kaua`i County Council held in January 2005 (we mistakenly said 2006 yesterday).
If the Hawai`i Supreme Court accepts the writ they will hear an appeal of an Intermediate Court of Appeal’s (ICA) decision upholding a 5th circuit court ruling denying the access to the minutes of the meeting.
According to the brief
The ICA decision concerns an OIP administrative determination that certain council meeting minutes be disclosed under the State public records law, chapter 92F, FIRS, the Uniform Information Practices Act (Modified) (the - UIPA"). I The ICA affirmed the lower court's ruling that this action was properly brought under chapter 92, HRS, because that chapter's statutory scheme controls the disclosure of minutes.`' The ICA also affirmed the lower court's conclusion that the minutes were properly withheld in their entirety because of the compelling reasons for respecting and preserving the attorney-client privilege also afforded public agencies and because the privileged portions of the minutes were so intertwined with non-privileged portions that redaction would be impractical.
But let’s start at the beginning.
In January 2005 a new county council had just taken office with two new members- Mel Rapozo and Shaylene Iseri-Carvalho. Both were avowed political enemies of newly selected Police Chief KC Lum who was the Lieutenant on duty when the “lap dancer incident” took place and Rapozo by all accounts claimed Lum “turned in” Rapozo after another officer told Lum what was going on in the room next door that night.
Rapozo held Lum responsible for his ouster from the Kaua`i Police Department in the infamous “lap dancer” incident as detailed in the book “KPD Blue” (see left rail to read the book in it’s entirety). Iseri was married to Destry Carvalho, a KPD officer who was part of a faction that opposed Lum. She also, according to multiple sources, hald a grudge against Lum stemming from an incident when Lum was an officer and he tried multiple times to break up a loud party Iseri- at the time a deputy county prosecutor- was hosting at Lydgate Pavilion.
At the time Democratic Party members of the council also didn’t like the two members of the Police Commission who installed Lum- Chair Michael Ching, a prominent independent Hanalei business owner and commissioner Carol Furtado, a Republican.
So they called for an executive session to talk about either, for the first time ever invoking a charter provision, (3.17) that allows the council to investigate administrative departments, and/or finding out what the Board of Ethics was doing regarding their own investigation of the appointment.
Here’s the notice as it appeared on the agenda on Jan 20, 2005
Pursuant to Haw. Rev. Stat. §§92-4, 92-5(a)(4 and 92-5(a)(6), the purposes of this executive session are (1) to deliberate and decide whether an investigation of the Kaua`i Police Department should be conducted pursuant to §3.17 of the Kaua`i County Charter and the process to be used in the investigation (2) to consult with the County's legal counsel on legal issues regarding these matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item.
According to OIP’s “Statement of the Case” there’s probably more than you wanted to know about what happened next.
(After the meeting) OIP was initially asked by then chairperson of the Kauai Police Commission, Mr. Michael Ching, to investigate whether the meeting had complied with the Sunshine Law, including whether the executive meeting purposes cited applied to the matters discussed by the Council in the ES-177 Meeting.
OIP reviewed the ES-177 Meeting transcript (the "ES-177 Minutes") in camera, and considered the Council's stated justification for the executive meeting. By letter dated April 14, 2005 (the "April 14 opinion"), OIP found that a limited portion of the ES-177 meeting in fact consisted of protected attorney-client consultation under the standard for the open meeting exception at § 92-5(a)(4). (ES-177 Minutes filed under seal). However, OIP found that the remainder of the Council's discussion did not fall within the cited exceptions, and thus found that the remainder of the ES-177 Meeting should have been open to the public. Accordingly, O1P advised the Council to make the minutes of those portions of the ES-177 Meeting public (the "Public ES-177 Minutes").
OIP subsequently received UIPA appeals from Mr. Ching and another member of the public (the "Requesters"), who stated that they had made record requests to the Council in April 2005 for copies of the ES-177 Minutes, but had not received any response. Prior to and after those appeals, the Council asked for reconsideration of the underlying
Sunshine Law issue, and cited to three additional executive meeting purposes. OIP found no basis for reconsideration of the Sunshine Law question because the ES-177 Meeting discussions did not fall within any of the newly cited purposes. Accordingly, OIP determined that the UIPA required the Council to give the Requesters access to the Public ES-177 Minutes (the "May 20 determination").
Note here that the matter was no longer just whether or not there should have been an “open meeting” under the Sunshine Law (HRS- §92) but whether the minutes to the meeting were open records under the Uniform Information Practices Act (HRS- §92F).
The writ continues:
OIP agreed by letter dated June 9, 2005, to allow the Council a final opportunity to supplement its position. However, OIP could not agree to a "commitment of confidentiality" regarding that position, OIP only reviewed Council's subsequently offered general discussion of the attorney-client privilege and desire to discuss investigations in closed meetings, which OIP again determined insufficient to warrant reconsideration of its April 14 opinion and May 20 determination. On June 22, 2005, the Council again provided a generalized discussion of the attorney-client privilege and the Council's desire to discuss investigations in closed meetings, which OIP had previously determined was insufficient to warrant reconsideration of its April 14 opinion and May 20 determination. On July 14, 2005, the Council filed its action seeking declaratory and injunctive relief from OIP's determination that the Public ES-177 Minutes must be disclosed.
There are basically four arguments for why the ICA erred in upholding the 5th circuit court decision. We’ll list them with partial excerpts excluding much of the case law but including the pertinent statutory language and citations for those that want to understand the case the OIP is presenting and why it’s implications go far beyond ES-177, affecting the very future of the OIP itself.
I. The ICA gravely erred by affirming that Chapter 92 authorizes Council's action challenging an OIP decision to disclose a record, given chapter 92F's plain language, clear statutory scheme and legislative history that denies an agency the right to bring a court action for that purpose.
OIP believes that the ICA committed grave error in affirming circuit court jurisdiction to hear the Council's original action under chapter 92 without then limiting its review to determining applicability of that chapter. Rather, the court went further, applying its Sunshine Law interpretation to determine disclosure of a government record under both the Sunshine Law and the UIPA. Allowing an agency to bring a court action to challenge an OIP decision to disclose a government record in this matter conflicts with the plain language of § 92F-15.5, and circumvents the UIPA's underlying policy and remedial scheme and stated legislative intent clearly disallowing such agency action. In effect, the ICA decision now allows agencies to utilize the court system, delaying for years any resolution on disclosure and circumventing the legislative intent to provide the public with efficient resolution of records disputes. Given the Legislature's stated purpose of the UIPA and the policy of this state in § 92F-2, it is clear that in denying agencies the right to sue each other, the Legislature found the rights of the public to scrutinize and participate in government to outweigh an agency's ability to judicially contest disclosure of a government record.
Where a government agency denies a person access to any record, that person may appeal by judicial action under § 92F-15 or, alternatively, by administrative appeal to OIP under § 92F-15.5 (without prejudice to the right to seek judicial review). Where appeal to OIP is made, § 92F-15.5(b) directs in full as follows:
(b) If the decision is to disclose, the office of information practices shall notify the person and the agency, and the agency shall make the record available. If the denial of access is upheld, in whole or in part, the office of information practices shall, in writing, notify the person of the decision, the reasons for the decision, and the right to bring a judicial action under section 92F-15(a). (emphasis added).
OIP believes that this unambiguous language must mean that when a person appeals to OIP and OIP's decision is to disclose, an agency must generally be bound by that decision... Further, any possible ambiguity is extinguished by the Legislature's clear intent to bar agency suits against OIP over its record decision:
Your Committee wishes to emphasize that while a person has a right to bring a civil action in circuit court to appeal a denial of access to a government record, a government agency dissatisfied with an administrative ruling by the OIP does not have the right to bring an action in circuit court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government records would be frustrated by agencies suing each other. Conf Comm. Rep. No. 17, Haw. S. J. 763-64 (1989) (emphasis added).
Thus, the ICA's affirmation based upon a right of action arising outside of chapter 92F, despite the plain language of § 92F-15.5(b), appears to "completely ignore the obvious meaning and intent of the statute."
But the ICA did not recognize any of that and, as the OIP then says,
The Sunshine Law, in contrast to the UIPA, which provides for no agency actions (including by OIP), has a general "any person may commence an action" standard, for the purpose of requiring compliance, preventing violations, or determining applicability of part I of chapter 92. Compare HRS § 92-12(c) with § 92F-15 and -15.5(b). However, the Council here did not solely seek the court's application of a Sunshine Law provision. Its action went further, directly seeking to invalidate OIP's decision under the UIPA to disclose the ES-177 Minutes. Given the foregoing, OIP believes that finding the Sunshine Law to allow court adjudication of OIP's determination regarding the minutes cannot be reconciled with the language of § 92-15.5, its legislative history, or the UIPA's purpose and remedial scheme.
The second argument is one that shows how persistence pays off. A couple of years back, what has been called the “secret sunshine law” was “discovered”. Since then council watchdog Glenn Mickens has told the council of HRS 92-71 part of Section II of the part that contains the Sunshine Law. It states
"in the event that any political subdivision of the State shall provide by charter, ordinance or otherwise, more stringent requirements relating to mandating the openness of meetings, the more stringent provisions of said charter, ordinance, or otherwise, shall apply."
Well as fate would have it, the Kaua`i County charter has a provision 3.07(e) that says. according to the brief that “restricts the Council's use of closed meetings to (1) deliberations to confirm appointees or (2) ‘consultations with the county attorney on claims.’ (emphasis added)”
Though the charter was changed this past November by tricking people into voting to delete it under the guise of assuring that the charter “conform” with the Sunshine Law, it was in effect when ES-177 was held and a ruling releasing those minutes could also free up many of the minutes of ES meetings held before the provision took effect.
Mickens and later open government advocate Ken Taylor hounded the OIP with this matter, at first being rejected because OIP only administers Part 1 of the Sunshine Law (92-71 is in part two) but through his persistence the argument is included in the Supreme Court brief.
OIP asked
2. Assuming this action may properly be heard, the ICA gravely erred by not giving effect to the Kauai County Charter's more restrictive standard for closing a council meeting, given the plain language of § 92-71 that directs that a more stringent county standard "shall apply."
OIP did not have reason to address § 3.07E in its UIPA decision because OIP found that the Sunshine Law required the minutes to be public. OIP raised this provision to the circuit court and to the ICA to show that the Council's broadly applied attorney-client privilege to protect all its discussions with its counsel was not only contrary to the legislative intent underlying § 92- 5(a)(4) and other judicial opinions limiting to varying degrees the extent of the privilege for government attorneys, but also directly contradicted its own charter provision.
The third is really the meat of the appeal for those who object to the Kaua`i council’s penchant for going into executive session for public policy matters disguising them under a provision (HRS 92-5(a)4) that allows them to “consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities” and it’s relationship to the standard “attorney client privilege” which, the OIP says, is limited by overriding state law in the case of boards and commissions covered by the Sunshine Law.
The OIP says
3. The ICA gravely erred by failing to consider the legislative history indicating that he Legislature intentionally narrowed the attorney-client executive meeting purpose to cover only specified types of consultation between a board and its attorney.
As discussed in OIP's Opening Brief at 25-27, in 1985 the Legislature deliberately narrowed § 92-5(a)(4), the attorney-client executive meeting purpose, to apply to only limited types of consultation between a board and its attorney. As further discussed in OIP's Opening Brief at 23-30, this limitation of the attorney-client executive meeting purpose is consistent with the narrower scope of the attorney-client privilege generally when applied to government attorneys and clients in both this State and in other jurisdictions, as well as with the Sunshine Law's and the UIPA's general purpose and intent. See, e.g., HRS §§ 28-3, 92-1, and 92F-2. The ICA gravely erred by failing to consider the legislative history of § 92-5(a)(4) in deciding its scope. See Decision at 19-22. Instead, contrary to the legislative intent expressed in the 1985 amendment to § 92-5(a)(4) and the legislative mandate expressed in § 92-1 that exceptions to open meetings shall be strictly construed against closed meetings, the ICA interpreted the attorney-client executive meeting purpose broadly to encompass all discussion between the Council and its attorney in the meeting in question.
Lastly the OIP basically says "what are we here for if not this kind of determination since our oversight is plainly stated in the law and legislative intent". They say
4. The ICA gravely erred by failing to defer to OIP's interpretation of the breadth of the Sunshine Law's attorney-client executive meeting purpose under the "palpably erroneous" standard and to OIP's UIPA determination under the "abuse of discretion" standard.
One other thing of note is contained in a separate brief – the one filed by the county and upheld by the ICA. It contains a brief description of what went on in ES-177.
OIP's review of the ES[-]177 Minutes indicate[s] that the ongoing investigations discussed were limited to (1) an investigation being conducted by the County of Kauai, Board of Ethics, (2) a police investigation which had been turned over to the County of Kauai Prosecutor and (3) a proposed investigation into the termination of a KPD recruit. It is the opinion of OIP that the matters considered by the Council in ES[-]177 do not constitute "sensitive matters related to public safety or security."
Many believe that what went on was that Rapozo “went off” on Lum, Ching and/or Furtado and aired long held gripes against the department. Some of that was intimated in some of the correspondence between OIP and the county following the OIP’s review of the minutes and determination that they were public records.
It was thought by many political observers that Chair Kaipo Asing then “protected” Rapozo by fighting the release of the minutes, giving him a political Sword of Damocles to hang over Rapozo’s head should Rapozo try to maintain his rebel and maverick image, cultivated during the previous campaign
We’ll try to keep up with the case when and if it is granted review by the Supreme Court of Hawai`i. If anyone wants a copy of both documents- the OIP’s appeal and the ICA ruling- let us know at gotwindmills(at)gmail.com and we’ll get them to you.
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The powers that be will be happy to know that we’ll be taking the occasional day off during the next two months while entertaining ka mo`opuna, who’s here for the summer. We’ll try to make up for it by being twice as caustic when we do post.
If the Hawai`i Supreme Court accepts the writ they will hear an appeal of an Intermediate Court of Appeal’s (ICA) decision upholding a 5th circuit court ruling denying the access to the minutes of the meeting.
According to the brief
The ICA decision concerns an OIP administrative determination that certain council meeting minutes be disclosed under the State public records law, chapter 92F, FIRS, the Uniform Information Practices Act (Modified) (the - UIPA"). I The ICA affirmed the lower court's ruling that this action was properly brought under chapter 92, HRS, because that chapter's statutory scheme controls the disclosure of minutes.`' The ICA also affirmed the lower court's conclusion that the minutes were properly withheld in their entirety because of the compelling reasons for respecting and preserving the attorney-client privilege also afforded public agencies and because the privileged portions of the minutes were so intertwined with non-privileged portions that redaction would be impractical.
But let’s start at the beginning.
In January 2005 a new county council had just taken office with two new members- Mel Rapozo and Shaylene Iseri-Carvalho. Both were avowed political enemies of newly selected Police Chief KC Lum who was the Lieutenant on duty when the “lap dancer incident” took place and Rapozo by all accounts claimed Lum “turned in” Rapozo after another officer told Lum what was going on in the room next door that night.
Rapozo held Lum responsible for his ouster from the Kaua`i Police Department in the infamous “lap dancer” incident as detailed in the book “KPD Blue” (see left rail to read the book in it’s entirety). Iseri was married to Destry Carvalho, a KPD officer who was part of a faction that opposed Lum. She also, according to multiple sources, hald a grudge against Lum stemming from an incident when Lum was an officer and he tried multiple times to break up a loud party Iseri- at the time a deputy county prosecutor- was hosting at Lydgate Pavilion.
At the time Democratic Party members of the council also didn’t like the two members of the Police Commission who installed Lum- Chair Michael Ching, a prominent independent Hanalei business owner and commissioner Carol Furtado, a Republican.
So they called for an executive session to talk about either, for the first time ever invoking a charter provision, (3.17) that allows the council to investigate administrative departments, and/or finding out what the Board of Ethics was doing regarding their own investigation of the appointment.
Here’s the notice as it appeared on the agenda on Jan 20, 2005
Pursuant to Haw. Rev. Stat. §§92-4, 92-5(a)(4 and 92-5(a)(6), the purposes of this executive session are (1) to deliberate and decide whether an investigation of the Kaua`i Police Department should be conducted pursuant to §3.17 of the Kaua`i County Charter and the process to be used in the investigation (2) to consult with the County's legal counsel on legal issues regarding these matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item.
According to OIP’s “Statement of the Case” there’s probably more than you wanted to know about what happened next.
(After the meeting) OIP was initially asked by then chairperson of the Kauai Police Commission, Mr. Michael Ching, to investigate whether the meeting had complied with the Sunshine Law, including whether the executive meeting purposes cited applied to the matters discussed by the Council in the ES-177 Meeting.
OIP reviewed the ES-177 Meeting transcript (the "ES-177 Minutes") in camera, and considered the Council's stated justification for the executive meeting. By letter dated April 14, 2005 (the "April 14 opinion"), OIP found that a limited portion of the ES-177 meeting in fact consisted of protected attorney-client consultation under the standard for the open meeting exception at § 92-5(a)(4). (ES-177 Minutes filed under seal). However, OIP found that the remainder of the Council's discussion did not fall within the cited exceptions, and thus found that the remainder of the ES-177 Meeting should have been open to the public. Accordingly, O1P advised the Council to make the minutes of those portions of the ES-177 Meeting public (the "Public ES-177 Minutes").
OIP subsequently received UIPA appeals from Mr. Ching and another member of the public (the "Requesters"), who stated that they had made record requests to the Council in April 2005 for copies of the ES-177 Minutes, but had not received any response. Prior to and after those appeals, the Council asked for reconsideration of the underlying
Sunshine Law issue, and cited to three additional executive meeting purposes. OIP found no basis for reconsideration of the Sunshine Law question because the ES-177 Meeting discussions did not fall within any of the newly cited purposes. Accordingly, OIP determined that the UIPA required the Council to give the Requesters access to the Public ES-177 Minutes (the "May 20 determination").
Note here that the matter was no longer just whether or not there should have been an “open meeting” under the Sunshine Law (HRS- §92) but whether the minutes to the meeting were open records under the Uniform Information Practices Act (HRS- §92F).
The writ continues:
OIP agreed by letter dated June 9, 2005, to allow the Council a final opportunity to supplement its position. However, OIP could not agree to a "commitment of confidentiality" regarding that position, OIP only reviewed Council's subsequently offered general discussion of the attorney-client privilege and desire to discuss investigations in closed meetings, which OIP again determined insufficient to warrant reconsideration of its April 14 opinion and May 20 determination. On June 22, 2005, the Council again provided a generalized discussion of the attorney-client privilege and the Council's desire to discuss investigations in closed meetings, which OIP had previously determined was insufficient to warrant reconsideration of its April 14 opinion and May 20 determination. On July 14, 2005, the Council filed its action seeking declaratory and injunctive relief from OIP's determination that the Public ES-177 Minutes must be disclosed.
There are basically four arguments for why the ICA erred in upholding the 5th circuit court decision. We’ll list them with partial excerpts excluding much of the case law but including the pertinent statutory language and citations for those that want to understand the case the OIP is presenting and why it’s implications go far beyond ES-177, affecting the very future of the OIP itself.
I. The ICA gravely erred by affirming that Chapter 92 authorizes Council's action challenging an OIP decision to disclose a record, given chapter 92F's plain language, clear statutory scheme and legislative history that denies an agency the right to bring a court action for that purpose.
OIP believes that the ICA committed grave error in affirming circuit court jurisdiction to hear the Council's original action under chapter 92 without then limiting its review to determining applicability of that chapter. Rather, the court went further, applying its Sunshine Law interpretation to determine disclosure of a government record under both the Sunshine Law and the UIPA. Allowing an agency to bring a court action to challenge an OIP decision to disclose a government record in this matter conflicts with the plain language of § 92F-15.5, and circumvents the UIPA's underlying policy and remedial scheme and stated legislative intent clearly disallowing such agency action. In effect, the ICA decision now allows agencies to utilize the court system, delaying for years any resolution on disclosure and circumventing the legislative intent to provide the public with efficient resolution of records disputes. Given the Legislature's stated purpose of the UIPA and the policy of this state in § 92F-2, it is clear that in denying agencies the right to sue each other, the Legislature found the rights of the public to scrutinize and participate in government to outweigh an agency's ability to judicially contest disclosure of a government record.
Where a government agency denies a person access to any record, that person may appeal by judicial action under § 92F-15 or, alternatively, by administrative appeal to OIP under § 92F-15.5 (without prejudice to the right to seek judicial review). Where appeal to OIP is made, § 92F-15.5(b) directs in full as follows:
(b) If the decision is to disclose, the office of information practices shall notify the person and the agency, and the agency shall make the record available. If the denial of access is upheld, in whole or in part, the office of information practices shall, in writing, notify the person of the decision, the reasons for the decision, and the right to bring a judicial action under section 92F-15(a). (emphasis added).
OIP believes that this unambiguous language must mean that when a person appeals to OIP and OIP's decision is to disclose, an agency must generally be bound by that decision... Further, any possible ambiguity is extinguished by the Legislature's clear intent to bar agency suits against OIP over its record decision:
Your Committee wishes to emphasize that while a person has a right to bring a civil action in circuit court to appeal a denial of access to a government record, a government agency dissatisfied with an administrative ruling by the OIP does not have the right to bring an action in circuit court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government records would be frustrated by agencies suing each other. Conf Comm. Rep. No. 17, Haw. S. J. 763-64 (1989) (emphasis added).
Thus, the ICA's affirmation based upon a right of action arising outside of chapter 92F, despite the plain language of § 92F-15.5(b), appears to "completely ignore the obvious meaning and intent of the statute."
But the ICA did not recognize any of that and, as the OIP then says,
The Sunshine Law, in contrast to the UIPA, which provides for no agency actions (including by OIP), has a general "any person may commence an action" standard, for the purpose of requiring compliance, preventing violations, or determining applicability of part I of chapter 92. Compare HRS § 92-12(c) with § 92F-15 and -15.5(b). However, the Council here did not solely seek the court's application of a Sunshine Law provision. Its action went further, directly seeking to invalidate OIP's decision under the UIPA to disclose the ES-177 Minutes. Given the foregoing, OIP believes that finding the Sunshine Law to allow court adjudication of OIP's determination regarding the minutes cannot be reconciled with the language of § 92-15.5, its legislative history, or the UIPA's purpose and remedial scheme.
The second argument is one that shows how persistence pays off. A couple of years back, what has been called the “secret sunshine law” was “discovered”. Since then council watchdog Glenn Mickens has told the council of HRS 92-71 part of Section II of the part that contains the Sunshine Law. It states
"in the event that any political subdivision of the State shall provide by charter, ordinance or otherwise, more stringent requirements relating to mandating the openness of meetings, the more stringent provisions of said charter, ordinance, or otherwise, shall apply."
Well as fate would have it, the Kaua`i County charter has a provision 3.07(e) that says. according to the brief that “restricts the Council's use of closed meetings to (1) deliberations to confirm appointees or (2) ‘consultations with the county attorney on claims.’ (emphasis added)”
Though the charter was changed this past November by tricking people into voting to delete it under the guise of assuring that the charter “conform” with the Sunshine Law, it was in effect when ES-177 was held and a ruling releasing those minutes could also free up many of the minutes of ES meetings held before the provision took effect.
Mickens and later open government advocate Ken Taylor hounded the OIP with this matter, at first being rejected because OIP only administers Part 1 of the Sunshine Law (92-71 is in part two) but through his persistence the argument is included in the Supreme Court brief.
OIP asked
2. Assuming this action may properly be heard, the ICA gravely erred by not giving effect to the Kauai County Charter's more restrictive standard for closing a council meeting, given the plain language of § 92-71 that directs that a more stringent county standard "shall apply."
OIP did not have reason to address § 3.07E in its UIPA decision because OIP found that the Sunshine Law required the minutes to be public. OIP raised this provision to the circuit court and to the ICA to show that the Council's broadly applied attorney-client privilege to protect all its discussions with its counsel was not only contrary to the legislative intent underlying § 92- 5(a)(4) and other judicial opinions limiting to varying degrees the extent of the privilege for government attorneys, but also directly contradicted its own charter provision.
The third is really the meat of the appeal for those who object to the Kaua`i council’s penchant for going into executive session for public policy matters disguising them under a provision (HRS 92-5(a)4) that allows them to “consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities” and it’s relationship to the standard “attorney client privilege” which, the OIP says, is limited by overriding state law in the case of boards and commissions covered by the Sunshine Law.
The OIP says
3. The ICA gravely erred by failing to consider the legislative history indicating that he Legislature intentionally narrowed the attorney-client executive meeting purpose to cover only specified types of consultation between a board and its attorney.
As discussed in OIP's Opening Brief at 25-27, in 1985 the Legislature deliberately narrowed § 92-5(a)(4), the attorney-client executive meeting purpose, to apply to only limited types of consultation between a board and its attorney. As further discussed in OIP's Opening Brief at 23-30, this limitation of the attorney-client executive meeting purpose is consistent with the narrower scope of the attorney-client privilege generally when applied to government attorneys and clients in both this State and in other jurisdictions, as well as with the Sunshine Law's and the UIPA's general purpose and intent. See, e.g., HRS §§ 28-3, 92-1, and 92F-2. The ICA gravely erred by failing to consider the legislative history of § 92-5(a)(4) in deciding its scope. See Decision at 19-22. Instead, contrary to the legislative intent expressed in the 1985 amendment to § 92-5(a)(4) and the legislative mandate expressed in § 92-1 that exceptions to open meetings shall be strictly construed against closed meetings, the ICA interpreted the attorney-client executive meeting purpose broadly to encompass all discussion between the Council and its attorney in the meeting in question.
Lastly the OIP basically says "what are we here for if not this kind of determination since our oversight is plainly stated in the law and legislative intent". They say
4. The ICA gravely erred by failing to defer to OIP's interpretation of the breadth of the Sunshine Law's attorney-client executive meeting purpose under the "palpably erroneous" standard and to OIP's UIPA determination under the "abuse of discretion" standard.
One other thing of note is contained in a separate brief – the one filed by the county and upheld by the ICA. It contains a brief description of what went on in ES-177.
OIP's review of the ES[-]177 Minutes indicate[s] that the ongoing investigations discussed were limited to (1) an investigation being conducted by the County of Kauai, Board of Ethics, (2) a police investigation which had been turned over to the County of Kauai Prosecutor and (3) a proposed investigation into the termination of a KPD recruit. It is the opinion of OIP that the matters considered by the Council in ES[-]177 do not constitute "sensitive matters related to public safety or security."
Many believe that what went on was that Rapozo “went off” on Lum, Ching and/or Furtado and aired long held gripes against the department. Some of that was intimated in some of the correspondence between OIP and the county following the OIP’s review of the minutes and determination that they were public records.
It was thought by many political observers that Chair Kaipo Asing then “protected” Rapozo by fighting the release of the minutes, giving him a political Sword of Damocles to hang over Rapozo’s head should Rapozo try to maintain his rebel and maverick image, cultivated during the previous campaign
We’ll try to keep up with the case when and if it is granted review by the Supreme Court of Hawai`i. If anyone wants a copy of both documents- the OIP’s appeal and the ICA ruling- let us know at gotwindmills(at)gmail.com and we’ll get them to you.
-----------
The powers that be will be happy to know that we’ll be taking the occasional day off during the next two months while entertaining ka mo`opuna, who’s here for the summer. We’ll try to make up for it by being twice as caustic when we do post.
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