LET'S GO OUT TO THE LOBBY AND GET OURSELVES A WRIT

LET'S GO OUT TO THE LOBBY AND GET OURSELVES A WRIT: The news that the Kaua`i Police Commission has filed suit against Mayor Bernard Carvalho Jr. to have a court determine whether hizzonah had the power to suspend Police Chief Darryl Perry in February is no surprise.

On March 23 we noted that:

The agenda for next Wednesday's council meeting contains the following item:

C 2012-98 Request (03/13/2012) from the Police Commission for authorization to expend funds up to $10,000.00 to retain special counsel to represent the Police Commission in filing a complaint with the Fifth Circuit Court and asking for a declaratory judgment as to who has the authority to supervise and/or discipline the Chief of Police.

In noting the appropriation we said that:

People are always claiming "I hate to tell you 'I told you so,' but..."

Yet who are we kidding?- we love to do it.

So today we'll set up what will most assuredly be a little "see?" moment, sometime in the near future.

So call this Act 2 of this would-be three-act melodrama that, as we noted, will no doubt finish with a somewhat existential ending where, when it’s all over, the characters wind up right were they started.

Because we're willing to bet the farm that neither of the two 5th Circuit Count judges, Randall Valenciano and Kathleen Watanabe, are going to rule on what is essentially a political matter- a matter that the council could, according to the county charter, decide by themselves if they had once iota of election year political will.

Yeah- that'll happen... about the time Kapa`a traffic is a quaint anachronism.

Both judges have shown a propensity for "punting" whenever they possibly can. As we previously pointed out:

Watenabe has a history of punting these kinds of things. For example, in her decisions regarding various cases of disturbances of `iwi kupuna- the bones of native Hawaiians- by developers, she adamantly refused to rule, saying that the laws and regulations regarding the individual island burial councils and the State Historical Preservation Department (SHPD) that oversees the process, are unclear and that the legislature needs to clear thing up.

Our description is an oversimplification. But what is clear is that Watanabe did indicate that the solution was a political decision, not a judicial one.

As to Valenciano he was recently asked by Council members Mel Rapozo and Kipukai Kuali`i to clear up the use of the word "shall" in a matter regarding the Kaua`i Salary Commission's March 15 deadline for submission of their yearly "recommendations." County Attorney Al Castillo had written an opinion that, in this case, ""shall" was used "administratively" and therefor has to be read as "should."

But when the two council members went before Valenciano's court, he also said that it was a political matter and not only didn't the two have standing but that they should look to changing the law to make things clear rather than asking him to essentially split a baby.

Does anyone think that in this case either of the judges are going to get involved? Both come from a government background and perspective, Watanabe having served as county attorney and in other government jobs and Valenciano having been a long-time council member, even running for mayor one time. Both have a healthy respect for letting the government wheels turn as freely as possible and apparently do not want to get involved in inter-agency squabbles like the one over who should discipline the chief.

The ball here is clearly and fully in the council's court...

Section 7.05 of the Kaua`i County Charter details the "Powers, Duties and Functions" of the mayor.
There are 13 "Powers, Duties and Functions" The very last one reads:

"M. Exercise such other powers and perform such other duties as may be prescribed by this charter or by ordinance. (emphasis added)."

This means that the council can actually pass an ordinance regardless of whether the charter defines a specific power of the mayor or not. This is somewhat unusual in that powers not designated in a controlling document cannot normally just be taken in an inferior document (such as the charter and an ordinance respectively)... unless, as it is in this case, it is specifically granted.

The council also has the power to put a charter amendment before the electorate via a resolution.

But either way the problem here is that it exists in the political realm. It is doubly political in that the council must make a political decision as to which entity they want to give that power to- whether they do so via an ordinance or a charter amendment.

Should they give it to the mayor or to the police commission? They will no doubt face criticism for doing either. If they passed an ordinance, first they would have to decide themselves which way to go. If they proposed a charter amendment, they could only propose one or the other for the electorate to vote for- there's no provision for having a referendum type of charter amendment- so they face the same dilemma.

In either scenario, if the council decides to spent the $10,000, the money is completely wasted.

And we're pretty confident that if they do approve the expenditure, we'll wind up with a nice "we told you so" to tack up on the wall with all the others.

At the time we had no illusion that the council would do anything the "easy" way. Then, as now, the seven councilmembers were and are all too aware that public opinion's on the side of the police commission. But not by as wide a margin as many may think.

Despite the brouhaha, Carvalho still has plenty of loyal political adherents who wouldn't take kindly to a charter amendment that would give the disiplining power to the commission.

Make no mistake- everyone in town has an opinion as to whether Carvalho was right or wrong and they're pretty adamant on each side... enough to make it a voting-decision issue.

As a matter of fact just proposing a charter amendment that would give one side or the other the power to discipline or suspend the chief would be a political hazard for councilmember... no matter which way they voted on whichever side the measure would give the power to.

No one on the council can afford to throw away a single "one vote" they're always asking voters to "save" for them. And with the popular former state Senator Gary Hooser in the race there is, with little doubt, going to be one eighth-place-finisher among the incumbents... a vote for one "side" or the other could be the determining factor as to who that "one" is.

The Charter Review Commission (CRC) is still, as far as we know, dithering as to whether to put a measure on the ballot- probably one giving the commission, not the mayor, the power. CRC Chair Sherman Shiraishi actually tried to ask the council what the commission should do earlier this year with no real response forthcoming.

So now that the suit has been filed, as the local newspaper noted this morning, it's conveniently out of the council's hands because supposedly no one is permitted to comment on the matter since it's a "legal" proceeding now.

The paper quoted one of the attorneys filing the suit as saying this.

(Corlis J) Chang said the case is not a complicated one, and they seek to have a 5th Circuit judge decide on who has the authority to discipline the chief of police. The mayor has one view and the police commission has a different view, she said.

“It’s a really simple issue and its one where there are two different viewpoints, and our goal is to get a resolution from the court,” Chang said. “This is straight forward and there are no other agendas here.”

But apparently it is about- well no actually, exactly- 10G's worth of complicated.

This though may just be the key quote in the article:

Chang said it’s very early in the case and once the mayor has responded to the summons they will submit their motions and wait to be assigned a judge and a hearing date. Then she said it would be a matter of presenting legal issues based on documentation and legal precedents.

Apparently getting a ruling that tells the council and police commission to stop wasting the court’s time with what is essentially a political decisions should take until... let's see, subtract the campaign contribution... carry the sign waver... divide by the stack of council certificates and awards... oh we'd say... about... Wednesday, November 7- the day after the election.

NEWS DIRECT FROM THE MAGIC KINGDOM

NEWS DIRECT FROM THE MAGIC KINGDOM: We've done a lot of kvetching over the years regarding what passes for news reporting in our local Kaua`i newspaper. Although the depth of the newspaper's recent reporting has been particularly abysmal, it positively glows when compared to what the Honolulu press collectively thinks is going on over here.

The contraction of both the print and TV press in the "city and county" hasn't helped. Not only did the Honolulu Star-Bulletin somehow "buy out" it's mammoth competitor the Advertiser, even before they became the pay-walled "Star-Advertiser (S-A)" they had eliminated their permanent news bureaus on the neighbor island.

That, along with a decision to forgo even "stringers," has left their coverage of all things Kaua`i to either non-datelined blurbs containing city-desk-generated, re-written press releases or synopses of articles from our local Kaua`i newspaper.

When there is a byline on a "news" article about Kaua`i, the lack of a dateline (the name of the place the reporter is physically reporting from), noted at the start of an article indicates the closest anyone came to Kaua`i was their travel section.

TV is even worse. With the "merger" of KHNL and KGMB there is one less local news program- not that the Honolulu-centric nature of any of the Honolulu TV news outlets has ever really served Kaua`i.

Case in point has been the recent coverage of the Kaua`i Charter Review Commission's (CRC) so-called "hearings" on the recent kerfuffle between Mayor Bernard Carvalho Jr. and Chief of Police Darryl Perry.

At issue, as those who haven't been on Jupiter for the last couple of months have heard, is whether Carvalho overstepped his authority in "suspending" the chief over, well, no one will really say over what, but there sure has been a lot of speculation.

The problem with the way the Honolulu press covers Kaua`i might be summed-up by looking more closely at a blurb from the "Newswatch" column- a daily series of news briefs- in today's S-A.

It repeats a notion that has crept into reports on the matter from all the Honolulu news outlet for weeks now. Their "lede" says:

The Kauai County Charter Review Commission has yet to rule on whether the mayor has the authority to suspend the police chief.

We're not sure where they got the idea that our CRC has any power whatsoever to "rule" on the subject but if any of them had bothered to peruse the Kaua`i County Charter they would have found that ruling on interpretations of the charter is not one of the CRC's enumerated powers.

Section 24.03 of the Kaua`i charter, "Charter Review," says that the seven members of the CRC are to be appointed by the mayor and "serve in accordance with Section 23.02C of this Charter."

The only power enumerated is that:

In the event the commission deems changes are necessary or desirable, the commission may propose amendments to the existing charter or draft a new charter...

Then it explains how any such change is submitted to and voted upon by the electorate.

But there is, if anything, a prohibition on any "ruling." The aforementioned Section 23.02, "Boards and Commissions," enumerates 14 general provisions regarding boards and commission. And the 13th, section M, says that:

Except for purposes of inquiry, no board or commission, nor its members, shall interfere in any way with the routine administrative affairs of its department normally administered by the department head.

We don't know from which orifice this "fact" about waiting for a "ruling" was originally pulled. Perhaps the Honolulu Charter gives their CRC- assuming they have one- a similar power. But it's the very presumption itself- that neighbor islands are "just like Honolulu, only smaller" that represents the uselessness of the S-A to those on Kaua`i, if not Maui and Hawai`i Island.

It took us all of 10 minutes, tops, to look this up. Yet this business of some forthcoming "ruling" from CRC has been repeated over and over by all three Honolulu TV news outlets and the local newspaper. Not only is it "statewide news" regarding the Perry-Carvalho dust-up, it is the ONLY statewide news recently regarding the subject.

Due to the nature of this column, we're sort of forced to pay the fee to read the S-A, which actually is pretty cheap- around $20 for the year for neighbor islanders.

Apparently you get what you pay for.

TAKING THE MINOTAUR BY THE HORNS

TAKING THE MINOTAUR BY THE HORNS: People are always claiming "I hate to tell you 'I told you so,' but..."

Yet who are we kidding?- we love to do it.

So today we'll set up what will most assuredly be a little "see?" moment, sometime in the near future.

The agenda for next Wednesday's council meeting contains the following item:

C 2012-98 Request (03/13/2012) from the Police Commission for authorization to expend funds up to $10,000.00 to retain special counsel to represent the Police Commission in filing a complaint with the Fifth Circuit Court and asking for a declaratory judgment as to who has the authority to supervise and/or discipline the Chief of Police.

In addition the council has scheduled a closed-door, executive session (ES 535) for

a briefing on the retention of special counsel to represent the Police Commission in filing a declaratory action to determine who has the authority to supervise and/or discipline the Chief of Police.

But let us save you some time and money folks- neither judge on Kaua`i is going to even rule on the matter. Both of them will tell you that essentially this is a political matter that needs a political solution.

Fifth Circuit Judges Randall Valenciano and Kathleen Watanabe have both shown this propensity for "punting" before and it's doubtful they will change now.

We've found it amusing that both "sides"- the administration of Mayor Bernard Carvalho Jr. vs. Police Chief Darryl Perry and the Kaua`i Police Commission- both adamantly claim the charter gives them the power to discipline the chief.

But, as we've said a number of times there is nothing in the charter or Kaua`i County Code- or for that matter state law- regarding who has the authority to discipline or suspend the chief.

Hiring and/or firing him or her does rest with the police commission. But otherwise the law is "silent."

Watenabe has a history of punting these kinds of things. For example, in her decisions regarding various cases of disturbances of `iwi kupuna- the bones of native Hawaiians- by developers, she adamantly refused to rule, saying that the laws and regulations regarding the individual island burial councils and the State Historical Preservation Department (SHPD) that oversees the process, are unclear and that the legislature needs to clear thing up.

Our description is an oversimplification. But what is clear is that Watanabe did indicate that the solution was a political decision, not a judicial one.

As to Valenciano he was recently asked by Council members Mel Rapozo and Kipukai Kuali`i to clear up the use of the word "shall" in a matter regarding the Kaua`i Salary Commission's March 15 deadline for submission of their yearly "recommendations." County Attorney Al Castillo had written an opinion that, in this case, ""shall" was used "administratively" and therefor has to be read as "should."

But when the two council members went before Valenciano's court, he also said that it was a political matter and not only didn't the two have standing but that they should look to changing the law to make things clear rather than asking him to essentially split a baby.

Does anyone think that in this case either of the judges are going to get involved? Both come from a government background and perspective, Watanabe having served as county attorney and in other government jobs and Valenciano having been a long-time council member, even running for mayor one time. Both have a healthy respect for letting the government wheels turn as freely as possible and apparently do not want to get involved in inter-agency squabbles like the one over who should discipline the chief.

The ball here is clearly and fully in the council's court as we said in the post cited above.

Section 7.05 of the Kaua`i County Charter details the "Powers, Duties and Functions" of the mayor.
There are 13 "Powers, Duties and Functions" The very last one reads:

M. Exercise such other powers and perform such other duties as may be prescribed by this charter or by ordinance. (emphasis added)

This means that the council can actually pass an ordinance regardless of whether the charter defines a specific power of the mayor or not. This is somewhat unusual in that powers not designated in a controlling document cannot normally just be taken in an inferior document (such as the charter and an ordinance respectively)... unless, as it is in this case, it is specifically granted.

The council also has the power to put a charter amendment before the electorate via a resolution.

But either way the problem here is that it exists in the political realm. It is doubly political in that the council must make a political decision as to which entity they want to give that power to- whether they do so via an ordinance or a charter amendment.

Should they give it to the mayor or to the police commission? They will no doubt face criticism for doing either. If they passed an ordinance, first they would have to decide themselves which way to go. If they proposed a charter amendment, they could only propose one or the other for the electorate to vote for- there's no provision for having a referendum type of charter amendment- so they face the same dilemma.

In either scenario, if the council decides to spent the $10,000, the money is completely wasted.

And we're pretty confident that if they do approve the expenditure, we'll wind up with a nice "we told you so" to tack up on the wall with all the others.

ALL TONGUE

ALL TONGUE: Aw, isn't that cute. Now kiss and make up.

Apparently it was all a silly lover's spat now that Kaua`i Police Department (KPD) Chief Darryl Parry and Mayor Bernard Carvalho Jr. have decided that Perry can return to work after they and the police commission chair "held a joint news conference this morning to announce the chief’s return to duty."

We say apparently because strangely, although a Honolulu Star Advertiser "breaking news" item quotes "a news release" saying that, no such release appears on the appropriate page of the county's web site.

The article quotes Carvalho in the release:

“Discussions among our administration, our legal team, the leadership of the police commission and the chief himself have helped us to arrive at this decision, where we are confident that the chief can provide the leadership for this organization while the investigation into an employee complaint is conducted with integrity to its conclusion...

“I also believe that through discussion with the commission we have reached a place of consensus on how the department should be managed beginning today.” 

What that "way" in which "the department should be managed beginning today" is anybody's guess.

Like most lovers' spats, who was right and who was wrong is a function of silence, with the press conference substituting for makeup sex.

The article also says:

Carvalho said he still “firmly” believes that he has the authority to put the chief on leave.

Perry, for his part:

thanked the police commission and the public for their support and said he “looked forward to continued collaboration with the commission and the mayor.”

But Perry noted that it is important that the lines of authority be clarified for future police chiefs, commissioners and mayors.

Despite the apparent contention of County Attorney Al Castillo that Carvalho had the authority to suspend the chief versus Perry and the commission's adamancy that he didn't, the fact is that the issue is not addressed in the laws governing the police chief, notably the county charter.

Yet apparently they can't even agree on that.

We've taken our share of flack for supporting Carvalho's suspension of Perry, albeit a limited support due solely to Perry's apparent bungling of an earlier almost identical complaint. That came despite a recent effort to educate Kaua`i county employees, especially department heads, on how to avoid yet another in a string of "sexual harassment/hostile workplace " lawsuits that have plagued the county for decades.

Perry apparently still doesn't "get it" that when you are "in charge" you don't try to get the complainant to drop the complaint. That is, in fact, an implicit threat of retaliation and, in and of itself, "harassment."

Any "manager" in private or public sector either knows this or isn't a manager for every long, especially after they have all, no doubt, been sent to "school" where they have this drummed into their heads, leaving class with an organization-developed-and-issued "handbook" of how to treat such complaints.

That is, the Equal Opportunity Employment Commission (EEOC) essentially says, how to avoid letting a single episode of sexual harassment among co-workers turn into an organization-wide "hostile workplace" leading to million-dollar settlements that otherwise might have been settled for a small fraction of the amount.

Plus a plan to make sure it doesn't happen again.

Yet despite the county's "plan" there's no accounting for the type of, to coin a term "troglodism," of which Perry has apparently been charged.

The "who's in charge here" issue, while a serious "constitutional crisis" for Kaua`i, is nothing that can't be solved with a lawyer drawing up clear lines of authority and the county submitting them to the voters this fall. However, if we know Carvalho, the council and the Sherman-Shiraishi-led Charter Review Commission, this will no doubt be a politically-tainted process leading to some kind of power grab on Carvalho's part.

But that will sort itself out, we can only hope, by making sure the electorate demands a police department that is as far from political control as possible.

So now the question is not who has the authority but who SHOULD have the authority.

By all rights, the intent should be to give the authority to discipline the chief to the ones who hire and fire him or her- the police commission. If we've set up a quasi-independent body to keep politics out of the department in the first place, consistency would dictate that the commission should be the ones to discipline the chief.

But the Kaua`i Police Commission is notorious for its insularity being comprised of almost all "good old boys"- with an extra accent on "boys." Most have been a product of the department- either ex-KPD brass or those who have been close to the department for years.

The two historical exceptions- former Chair, businessman Michael Ching and Vice Chair, tourism industry executive Carol Furtado- found out what happens when you try to change that set up--you get put "on trial" on trumped-up charges by a corrupt ethic board doing the bidding of the mayor, council and many of those in the department and on the commission who wanted a different chief and who didn't like Ching and Furtado sticking their noses "where they didn't belong."

But we digress... sort of. The power must be placed somewhere. And the "best practice" resolution of this is to give that power to the commission. But what's been needed all along is a truly independent commission that inspires the confidence of the public.

Change on Kaua`i is not usually incremental. Those in power are skilled at cosmetic modifications that quell the demands for reform but actually further entrench power.

Can the people of Kaua`i seize this opening and bring about sudden reform ? Not likely, especially if this is seen as just another power struggle between outsized egos.

Which may, in the final analysis, be exactly what it was.

AND WE GET ON OUR KNEES AND PRAY...

AND WE GET ON OUR KNEES AND PRAY...: It's no secret among Kaua`i county-watchers. Mayor Bernard Carvalho Jr.'s attempt at power grabbing is nothing new- this time by claiming authority in disciplining Kaua`i Police Department (KPD) Chief Darryl Perry.

For a few years now Carvalho has been running a different but related proposal up the flagpole, one which would change the Kaua`i County Charter to take the power of appointment of department heads away from the boards and commissions that currently have it and give it to the mayor.

To hizzonah's chagrin though, there wasn't much saluting going on.

Currently the Kaua`i charter gives the power to appoint and remove their respective department heads to the Fire, Civil Service, Planning, Liquor Control and Police Commissions. In the case of the police chiefs of the various counties, it is a set-up that has been mandated by state law, making any charter change to give mayors that power effective only after legislative action.

The common wisdom behind this type of police department set-up (one that is used in most US jurisdictions) is that the local "para-military" constabulary should be under civilian control so as to "take the politics out of the police department."

Carvalho took his proposal to the police commission for their support, saying that, of course, there would first need to be a change in state law- something for which he said he was lobbying.

But the commission rebuffed his request. Of course being political appointees they weren't about to piss off their "boss" so, although they diplomatically said they "trusted" Carvalho himself to not interject politics into department business (perish the thought) were he to have the power to do so, they feared his successors might not be inclined to be as altruistic.

That's been percolating around the back of our mind while watching the current political circus, assuming that any charter change of this nature would have to wait for a change in Hawai`i Revised Statues (HRS).

You'd think we'd have learned by now. To paraphrase another meshugana, fool us 1,274 times... you can still get fooled again... and again... and again.

HRS 52D regulates county "Police Departments." Prior to 2010, HRS Section 52D-2 read "Chief of police. The police commission shall appoint a chief of police. "

However, unbeknownst to many, the 2010 legislature passed SB 2177 SD1, deleting those two sentences and substituting the following words "A chief of police shall be appointed and may be removed as prescribed by the charter of each county."

That means that, although the current charter remains legally binding, were the charter commission or the county council to place a different "prescription" before the electorate and should it pass, it would no longer be illegal to have any structure of control they desire- including of course moving the authority to hire and fire the chief of police from the police commission to the mayor.

Watch out for this one.

The Charter Review Commission (CRC) has been meeting to consider the current Perry vs Carvalho brouhaha as recently as this past Monday when they held a closed door executive session on the matter where presumably they considered a charter change to address the current "constitutional crisis."

As we described a week ago Thursday the current "crisis" is based on the fact that the charter is essentially silent on the disciplining of the police chief allowing both the mayor and the police commission to claim control- even though neither is given that clear authority in the charter.

The CRC used to meet every 10 years but now sits continually until 2016 after a charter change in 2006. Prior to the current election cycle, the CRC has been extremely independent, doing their work without checking with anyone regarding their proposed amendments. However the current CRC has been anything but independent with Chair and noted county lap-dog Sherman Shiraishi constantly coming before the council looking for scratches behind the ear and tummy rubs of approval on every move the commission is considering.

The mayor has had a more direct pipeline, not just as an ex-officio member of the CRC but through the Director of Boards and Commissions who was, until recently, Carvalho's spying eyes, ears and mouthpiece, John Isobe.

All Carvalho has to do is simply tell Shiraishi what he wants on the ballot- something he has not been shy about doing, sometimes even in writing. And in the Shiraishi family tradition, Sherm, like Clint before him, makes no bones about indicating his and the commission's desire to be as accommodating of elected officials as possible. After all it isn't like the Shiraishis haven't been on the receiving end of such largess for generations.

Oh, and even though the CRC is set up to be an independent, alternative to having the council propose charter amendments (they may also be proposed via citizen petition) the CRC has become simply an arms-length method of politically insulating the council from having to propose politically sensitive amendments in an election year.

That could well be the scenario that plays out this year. The council actually could take the reins over who can discipline the chief of police via an ordinance if they wanted to, leaving the appointment scheme the way it is now.

Yeah- right... right after they raise taxes and their salaries. Anyone got a 10 foot pole? Do we hear 20?

With the way the local press is led around by county-installed brass rings through their collective noses we wouldn't put it past the administration to try to get away with proposing an amendment that purports to "clear up" the confusion over who is in charge of disciplining the chief but actually transfers control over hiring and firing.

It wouldn't be the first time that the electorate was hornschwoggled via a "trick question" on the ballot- one that doesn't really reflect what the content of the amendment is. Remember that "conform to the sunshine law" bamboozle that actually did anything but "turn off the dark?"

It's not beyond the realm of possibility that in "clarifying" who has control of discipline of the chief the administration would also try to slip in a provision to give the mayor a little more power.

And if voters did somehow figure it out, the few that actually pay attention can be told that it was an innocent provision to avoid future conflict, resolving it in favor of "accountability to an elected official," the mayor, rather than an appointed group, the commission.

After all, Bernard has put so much effort into his patronage-based, "members only" cronyism, especially in the appointment of all boards members and commissioners, it'd be a shame to see it all go to waste.

(PNN) CHIEF’S WIFE SAYS PERRY OFFERED "SETTLEMENT" BY MAYOR CARVALHO AT MONDAY MEETING

CHIEF’S WIFE SAYS PERRY OFFERED "SETTLEMENT" BY MAYOR CARVALHO AT MONDAY MEETING

(PNN) -- Kaua`i Police Chief Darryl Perry was "offered a settlement" by Mayor Bernard Carvalho at a meeting Monday night, Perry's wife Sollette told the county council Wednesday (2/29) evening.

In testimony before the council she said that there was a settlement discussion at the meeting, which was attended members of the police commission, but before she could give details she was interrupted by County Attorney Al Castillo who had previously tried to stop her testimony on two other occasions.*

After previously denying Castillo's demands Council Chair Jay Furfaro did stop Mrs. Perry's testimony at that point saying he would "not allow personnel issues to be raised" and that "no names of employees" were to be spoken although Mrs. Perry had previously named others.

Mrs Perry also demanded that the council launch an investigation under County Charter Section 3.17 and hire special counsel to do so.

After citing her extensive experience in "human resources" Mrs. Perry described the events of the last month saying Chief Perry was originally called to Carvalho's office on January 30 on what he thought was another matter.

There, Mrs. Perry said, the Chief was told that although he was "not being investigated" and was "expected to carry out his duties" when he returned to work, he was being "suspended as Chief of Police for seven days. "

Mrs. Perry said that at the meeting her husband was "shown a letter" from an employee complaining of a "hostile work environment" although he was not given a copy. She said the letter named Assistant Chiefs Roy Asher and Ale Quibilan as subjects of the complaint.

She said that this meeting was attended by Heu, Kollar and one other Carvalho aide.

The evening after the meeting at 8 p.m. she said the Chief got a call from Heu telling him he was to "stand by for a meeting in the morning" but to "avoid (the complainant) at all costs.

"For a month the Chief has been under attack" Mrs. Perry told council members saying that there was "nothing in the county charter that gives the mayor the power to suspend the chief."

Mrs. Perry stated that, when Chief Perry did return to work, as has been reported, Acting Assistant Chief Mark Begley refused three direct orders from Perry requesting Perry's gun, badge and access to his office in what she called "an act of grave insubordination... under directions from the mayor."

She added that current Acting Chief Michael Contrades had also received a communication from Heu on behalf of the mayor ordering Contrades to withhold the chief's equipment.

She told the council she didn’t see the authority to suspend the chief as resting with the mayor but rather that "the (police) commission should direct the chief."

Mrs. Perry testified just before the council went into a previously scheduled executive session regarding the matter. Chair Furfaro said that she had "called in" to request to testify before the session and was told to come in and do so.

For background on this story see previous posts at:

http://parxnewsdaily.blogspot.com/2012/02/ha-cha-cha-cha-cha.html
http://parxnewsdaily.blogspot.com/2012/02/im-afraid-i-cant-do-that-dave.html
http://parxnewsdaily.blogspot.com/2012/02/legally-schmegally.html
http://parxnewsdaily.blogspot.com/2012/02/assorted-secret-valentines.html
http://parxnewsdaily.blogspot.com/2012/02/presumptuous-assumptions.html
http://parxnewsdaily.blogspot.com/2012/02/why-why-why-delilah.html
http://parxnewsdaily.blogspot.com/2012/02/horsesht-of-different-color.html
http://parxnewsdaily.blogspot.com/2012/02/well-i-wonder-wonder-wonder-wonder-who.html

Correction: Deputy County Attorney Justin Kollar did not attend Monday's "settlement" meeting between suspended Police Chief Darryl Perry and Mayor Bernard Carvalho Jr. The meeting was, according to sources, attended by some members of the police commission. The post has been corrected.

HA-CHA-CHA-CHA-CHA

HA-CHA-CHA-CHA-CHA: With yesterday's "oh yeah, well so's ya mutha" public pissing contest between Kaua`i Police Department (KPD) Chief Darryl Perry and Mayor Bernard Carvalho Jr. playing out throughout the day, apparently some felt left out of the act.

Under the "yeah, you think?" headline of "Kauai police chief's status unclear," the "readership-schmeadership" Honolulu Star-Advertiser decided not to "lede" with Perry wandering the halls of the cop shop waiting for someone to "toss him a sandwich" (lest he lose his self-administered authority by going out for lunch) or Carvalho going "off-leash" and calling TV stations to let them know that he was "not making big chest mayor."

Rather, in a "stop da music- STOP da music" moment, they led with:

The Kauai County Charter Review Commission (CRC) is scheduled to meet Monday to look at whether Mayor Bernard Carvalho has the authority to keep Police Chief Darryl Perry on leave.

And in fact it seems that they've scheduled an executive session without any charge or expertise to do so, to examine Section 7.05 of the Kaua`i County Charter which details the "Powers, Duties and Functions" of the mayor.

The fact that banks of attorneys, bloggers, reporters and assorted members of the peanut galley have been unable to interpret the ancient hieroglyphics that pass for the county's guiding document over the past three weeks apparently means that, because the word "charter" appears in the name of the commission, they feel the need to add to the babble.

In case you haven't been sufficiently confused with both sides claiming the authority to discipline the chief let us try to not make sense of it.

The fact is that nowhere in the charter sections on the Police Department (Article 11) or the Mayor (Article 7) is the power to do anything specifically regarding the chief mentioned except for "Section 11.04. Chief of Police" which says:

The chief of police shall be appointed by the police commission. He may be removed by the police commission only after being given a written statement of the charges against him and a hearing before the commission.

Appointed and removed? Yes. Disciplined, suspended, placed on leave, told to stick his head in gravy and sell it to the Navy? No.

But though this has been reported ad nausium some of the other parts of Article 11 haven't.

Section 11.03 "General Powers of the Commission" says that:

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.

D. Refer all matters relating to administration of the department to the chief of police.

Certainly the chief is a "member" of the department. Section 11.01. "Organization" specifically states that:

There shall be a police department consisting of a police commission, a chief of police and the necessary staff.

But this only covers complaints made by "members of the public." And if a complaint against him goes anywhere, it's right back to him.

But under Section 11.06. Discipline and Removal, the charter reads

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.

That's where things go kabluey because appointed officials are not civil service employees so are not subject to civil service laws and regulations (also making "Section 11.07 Appeals" moot). This would also seem to indicate that the chief is not to be treated as other "members" of the department since he is not subject to civil service laws as most are.

So does the mayor have the authority?

The only reference for that is in Section 7.05. "Powers, Duties and Functions" of the mayor. It says that:

The mayor shall be the chief executive officer of the county. He shall have the power
to:

A. Except as otherwise provided, exercise direct supervision over all departments and coordinate all administrative activities and see that they are honestly, efficiently and lawfully conducted.

And that's about it. Although many have pointed to the phrase "(e)xcept as otherwise provided" and said that the police commission is where the power to hire and fire the chief is seated, as delineated above, that's the only power given to the commission where the chief is concerned.

Is Carvalho claiming that he making sure that "administrative activities" are being "honestly, efficiently and lawfully conducted?" Honesty doesn't seem to involved. Or efficiency. And legality would seem to be for the courts to decide.

Thus, the "constitutional crisis," the charter being the "constitution of the county."

Anyone claiming authority for anyone to do anything to the chief but hire and fire him is simply whistling in the graveyard.

There is however an "out."

There are 13 "Powers, Duties and Functions" of the mayor in Under Section 7.05 not just the one we cited above. The very last one reads:

M. Exercise such other powers and perform such other duties as may be prescribed by this charter or by ordinance.

We can plainly see that the charter does not proscribe who is in charge of "disciplining" the chief. However although the police commission cannot claim the power in their administrative rules (under HRS Chapter 91) the county council could, conceivably, pass an "ordinance" placing the power wherever it chooses.

We're sure they're just soooo appreciative for having this thrown into their collective laps.

This of course would be subject to review by the courts. Many times courts will rule that, under the type of "supremacy" established in the 10th amendment of the US Constitution, powers not taken by a "higher" authority are reserved for the next one down. In the case of the 10th Amendment that means anything congress doesn't make a "law regarding" is "reserved for the states."

In the case of state, supremacy plays out in that anything not regulated by the state constitution is reserved for the legislature. And anything the state constitution or statutes don't cover is left to the counties. And if a county charter doesn't address it, the council may usually do by ordinance.

Maybe. There are instances where a judge will say that just because the "higher" document is silent it doesn't necessarily give the next one down the right to regulate. You just never know. It's apparently a situational, "case by case" thing and we're not an attorney nor are we in possession of those dauntingly huge collections of every court decision.

But if the authority to resolve this "crisis" exists anywhere it is with the county council which may, by ordinance, establish which "other powers and... duties" the mayor may "exercise" and "perform," including the disciplining of the police chief and other department heads that are hired and fired by boards or commissions such as fire, liquor, personnel and planning.

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One more thing- again burying the lede- before we take a long weekend.

We said yesterday that, in violation of county policy and EEOC regulations, according to multiple sources, Chief Perry tried get Officer Darla Abbatiello-Higa to drop her October hostile work environment/sexual harassment complaint against an assistant chief. That, we said, prompted her to file her second complaint in January- this time not internal to the department but sent to the mayor and police commission- alleging that not only were Assistant Chiefs Ale Quibilan and Roy Asher harassing her but that Perry was among those "creating a hostile workplace."

Yesterday, in a report on KHON-TV, Perry stated that the reason he asked to either work from home or be suspended or take a leave (or whatever he's saying today):

I didn't want to come back to a hostile work environment and be placed in a situation where this person may see me in the hallway and say that I looked that person (sic) in a wrong way and make another complaint.

By using the word "another" Perry apparently confirms that a hostile workplace environment" complaint was filed against him.

I'M AFRAID I CAN'T DO THAT DAVE

I'M AFRAID I CAN'T DO THAT DAVE: He has no key, no badge, no gun... no office.

Yet, according to sources close to the Kaua`i Police Department (KPD) Police Chief Darryl Perry is back on the job today although his whereabouts inside police headquarters at any given moment is anybody's guess.

It all started late yesterday when Perry told the TV's Hawai`i News Now (HNN) that he was returning to work today based on unanimous instructions from the police commission Friday, despite a county attorney's opinion that reportedly gives Mayor Bernard Carvalho Jr. the authority to determine Perry's status after Perry was placed on leave on February 2.

But this morning HNN reported that:

Kauai Police Chief Darryl Perry was turned away from his office when he tried to return to work Wednesday morning in a power struggle with Mayor Bernard Carvalho.

Perry told a Hawaii News Now news crew that he was not allowed to receive his gun and badge and get access to his office Wednesday at police headquarters in Lihue just before 8 a.m.

"I ordered Assistant Chief Mark Begley to open my office and reissue my equipment. He stated to me that under direct orders from the mayor and the county attorney, that he is not to do that," Perry said in an interview at police headquarters.

"The police commissioners have expressed their opinion and also directed the issuance of equipment and my ID card and everything else that comes with it, my weapons. But they have refused," Perry said.

"Right now, I'm actually on duty, but I don't have any equipment with me. I can't get in to my office. I don't have access to my computer," he added.

As of press time we have learned Perry is still "at work" although still locked out of his office

This morning at 9:29:16 a.m. Carvalho's Director Of Communications Beth Tokioka issued a "Statement by Mayor Bernard Carvalho Jr. Regarding The Kaua`i Police Department," in which Carvalho claims that it was initially Perry's idea to be placed on leave and Carvalho initially disagreed.

In the release Carvalho tells the following story for the first time:

“First of all, I would like to state that it is still my belief, based on advice from legal counsel, that I have the authority to supervise the daily activities of the Chief and that I have acted within my authority for all actions taken regarding this matter. The members of the Police Commission have been advised of this as well.

“As you know, on February 2, I made an announcement that the Chief of Police had been placed on leave pending the outcome of the investigation of the complaint in question. I want to make it absolutely clear that this action was taken upon the request of the Chief. Initially, when the Chief made this request on January 30, I felt that there was no need to place him on leave and that he could continue to lead the department under certain conditions that would preserve the integrity of the compliant investigation. After I advised the Chief that I would not be placing him on leave, he sent an email to the Police Commission on that same day – January 30 - asking them to pressure me into placing him on leave. I am providing you with a copy of that email so that you can see how emphatically he felt about being placed on leave.

“After further discussions on January 31 and February 1, it was determined that the Chief’s concerns had merit, and that an appropriate course of action would be to place him on leave until the complaint was properly addressed. There has been public speculation and statements regarding the type of leave the Chief was placed on. Because this is a personnel matter, I will release no details on that aspect of this matter.

“On Sunday, February 19, I was informed by Police Commission Chair Ernie Kanekoa that the Commission wanted the Chief to return to the job as soon as possible. I listened to his reasons and, although the Chief had previously made a strong case for why he should be placed on leave in the best interests of all involved, I was willing to talk to the Chief and better understand the reasons for his change of heart. I asked that Ernie and the Chief be available to discuss this with me on Tuesday, February 21, at 3:00 pm. My intent was to determine if conditions could be agreed upon that would protect the interests of all involved in the complaint so that Chief Perry could return to work.

“It is important to remember - above all else - that I have been served with a complaint that involves Chief Perry and other high-ranking officials in the department. It is my legal responsibility - which I take very seriously - to ensure that complaint is handled properly.

“Unfortunately, yesterday afternoon Ernie advised us that the Chief, on advice of his attorney, would not meet with us. This meeting was very important before we could even consider bringing the Chief back to work. In earlier discussions I've had with the Chief on this matter, he expressed deep concerns about protecting the integrity of the investigation, the department, County of Kaua`i, and his personal interest with respect to further risk and exposure to himself and his family if he were to continue working while the complaint was being investigated. I had my own concerns for protecting the interests of all involved in the complaint. For those reasons, I feel it is very important to have a shared understanding of the terms under which the Chief could return to work while the complaint is being investigated. Unfortunately for all concerned, the Chief refused to meet and chose instead to communicate through the media.

That is certainly a different story- in fact the opposite of the one told by Perry, who said he asked to be allowed to work from home but it was Carvalho who insisted he be placed on leave.

Carvalho went on to state he was " disappointed in the way this has been handled over the past 24 hours," saying the department "is in capable hands" while reiterating that "the Charter gives me that authority and (I) have been advised as such by the County Attorney," and stating that "(t)he Chief even acknowledges this in his email of January 30."

Perry's January 30 email seems to confirm Carvalho's narrative. It is addressed to individual police commission members, the mayor and some of his senior advisers and community supporters as well as some of the KPD brass.

It reads, in full,

As you know, AC Quibilan and AC Asher were placed on administrative leave with pay at the closing of this business day pending the outcome of the investigations relating to hostile working environment complaints initiated by an officer.

Additionally, at this morning’s meeting I too was placed on notice by the Mayor for my involvement relating to the most recent complaint against AC Quibilan.

In order to protect the integrity of the investigation, the department, County of Kauai, and personal interest with respect to further risk and exposure to myself and family, I too was about to put myself on administrative leave with pay at the close of this business day. However, I was informed by KPD’s legal advisor, Justin Kollar, that I do not have the authority to do that.

Therefore, I am requesting that this body contact the Mayor’s Office as soon as is practical to have my request approved without delay.

In the interim, Deputy Chief Michael Contrades shall be the Acting Chief of Police and Assistant Chief Mark Begley will be the Acting Deputy Chief until further notice and/or modifications are made.

I will send a notification to All KPD at the end of the day and will be turning in my equipment immediately in accordance with policy and procedure.

Because I will not have access to departmental communications systems, you may contact me directly via my cell phone 351-5004, or by email perrys007@hawaii.rr.com.
Mahalo. Chief Perry
Darryl D. Perry
Chief of Police

 In not immediately launching an investigation when Officer Darla Abbatiello-Higa filed an internal "hostile work environment" complaint against Perry's assistant chiefs, Roy Asher and Ale Quibilan, there's no doubt that Perry's actions were a violation of county policy which has the force of civil law according to the Equal Employment Opportunity Commission (EEOC) rules.

That, according to sources familiar with the filing, is essentially what Abbatiello's January complaint- this time addressed to the mayor and police commission- said. It also, according to sources, complained that Perry indirectly tried to get the idea across that she might be jeopardizing her beloved work with youth and the Explorer Scouts if she didn't drop the October compliant.

As to Perry, like "Charlie on the MTA" he may never go "home" and his fate is still unknown. He may walk forever though the halls of the cop shop, he's the chief who never (actually) returned.

LEGALLY SCHMEGALLY

LEGALLY SCHMEGALLY: You'd think we'd have learned by now.

But because the lackluster MidWeek advertising rag- the one that's shoved in everyone's mailbox and overflows the trash cans at the Post Office on Tuesdays and Wednesdays- generally has so little relevant content past the puff pieces, we've been tossing them ourselves occasionally without skimming for the rare relevant content.

And in doing so, we'd have missed former Police Commissioner Tom Iannucci's impossibly befuddled and schizophrenic piece on the latest Kaua`i Police Department (KPD) sexual harassment debacle if it weren't for Kaua`i Eclectic's Joan Conrow, who herself only noticed it as she was throwing it out.

Calling Iannucci's tome"an obtuse piece," as she did, is an act of kindness.

Iannucci rambles on with vague analogies about hotel management and all you get out of it is that he- surprise surprise- is yet another troglodytic troll who thinks sexual harassment is best swept under the rug, calling Perry and the two suspended Assistant Chiefs, Ale Quibilan and Roy Asher "wrongly accused," having the unbelievable nerve to state:

Two wrongs don’t make a right. And a wrong may have truly occurred, but to what degree the whip should extend and whom it should consume comes into question, and the motives behind it....

These three officers are men who do care and, in my opinion, their actions and motives are being wrongly accused, and the quicker this is resolved, the better for our island and our department. I stand behind them and their integrity. But they are just the top tiers of a problem whose inception, whose roots are deeper in many different ways.

When all is stripped away and peeled back, we will have to ask: Did it really need to go this far, or was it just opportunity and ability to extend the whip and cause hurt for the sake of doing so? Maybe it will all be buried in legal findings and judgments, and we may never know.

As Perry's biggest supporter- and an ex-Marine with the well-known requisite attitude toward women that goes with it- Iannucci can be expected to take a "boys will be boys" attitude.

But Conrow? We're sure that that isn't the case, at least consciously. But could her admiration and staunch support for Perry be clouding her reasoning? Read on.

Conrow tells the story that we've heard, albeit second hand because the story is apparently being told by, guess who, Perry himself who, we understand, is the source of most of the anonymous quotes in the press since the day he was put on leave by Mayor Bernard Carvalho, Jr.

She re-tells Perry's cockamamie story about asking to work from home and instead being publicly disgraced by Carvalho who "illegally," according to many, put him on leave... all because Carvalho sees Perry as his biggest potential rival not just for power, as Iannucci would have us believe, but in his 2014 re-election bid.

She also adds a new wrinkle that was brought to our attention over the weekend and that is that current Acting Chief Michael Contrades is the son of Tommy Contrades, "whom the mayor already generously rewarded by creating especially for him the new, highly-paid position of managing the county's capital improvement projects," Conrow reports.

Although we have no direct knowledge of Conrow's source, she, unlike us, has a "hot-line" relationship with the chief as she has written many times. Perry would no sooner take a call from us than respond by-the-book to a sexual harassment complaint.

But she does tell two seemingly incongruous stories.

She first tells the story as to how, as we said a couple of weeks back,

It all started when Officer Darla Abbatiello-Higa reportedly rebuffed Quibilan's sexual advances, and he allegedly retaliated by making mean, sexually-oriented cracks to and about her in front of others, including the kids she works with in the Kauai Police Explorers program. She complained to Asher, who reportedly did nothing to separate the two — as is required under a rule in the county handbook — or chastise Quibilan, whose alleged harassment then reportedly worsened.

And she follows that by acknowledging that:

She next took her concerns to the chief, who allegedly twice tried to dissuade her from pursuing a formal EEOC complaint and allegedly expressed resistance at placing Asher and Quibilan on leave. Instead, he reportedly urged her to try to work things out internally.

That, right there, according to the county's own handbook on sexual harassment- as well as the EEOC's- is reason enough for suspending Perry and placing him on administrative leave. Instead, by law and policy, he should not have tried to get her to withdraw her complaint, as apparently he had been doing since she filed the complaint last October.

But then Conrow says that:

Dissatisfied with his response, Officer Darla then took the matter to the mayor, who reportedly directed Perry to put Asher and Quibilan on leave while the complaint was investigated, which Perry did. Now here's where politics rears its ugly head.

The chief then reportedly said that since the complaint involved him, he also should stay away from the cop shop, and would instead work at home.

Uh, well, actually no. Perry's misconduct in trying to dissuade Abbatiello made it mandatory that whomever was in charge formally suspend Perry for misconduct. It's called an attempted cover-up. Don’t forget either, the second complaint was also sent to the police commission which had failed to act before Carvalho took action. It was only after Perry was placed on leave that the commission scheduled a meeting, one for a Sunshine Law mandated six days later despite the fact that they could have acted under emergency provisions of the Law to meet immediately and confirm any action taken when the properly noticed meeting took place with the required six days notice.

The story that Conrow tells- which could only have come from Perry or Carvalho- and it's doubtful it was the latter- is that:

the mayor disagreed (with allowing him to work from home) and told Perry to come into the office. The two, who have long been at odds, reportedly argued, and Perry stood firm by his decision and stayed home. The mayor then suspended Perry without pay for seven days for insubordination, after which he was placed on paid leave with Asher and Quibilan, pending an investigation of Officer Darla's complaint.

Conrow first cites Carvalho's desire to put Contrades in as acting chief and then explains the politics behind Carvalho's move. As she sees it:

it was appropriate for Carvalho to take some immediate action when Officer Darla came directly to him. Not only was it appropriate, it was mandatory, from a staunch-the-bleeding legal standpoint.

But it was Carvalho's responsibility only to ensure that Officer Darla's complaint was appropriately handled once it came to his attention. It's really a stretch to say that his kuleana also included getting into a power struggle with his political enemy, the police chief, and ultimately suspending him.

Surely, once the chief placed Asher and Quibilan on leave, as he is authorized to do, he could have been allowed to take vacation, comp or personal leave until the police commission could be convened to sort out the issues that specifically involved him.

Instead, Carvalho took the opportunity to thuggishly grab power and mete out some political pay back against Perry. Unfortunately, by taking that particular approach he threw the police department and community into a tizzy, caused Officer Darla to be dragged into the spotlight by those seeking to make sense of the turmoil, possibly exposed the county to litigation by Perry, created a lot of ill will and made our island once again the subject of statewide derision.

As we said two weeks ago, it certainly fits the narrative across the island of the politically motivated Carvalho screwing the beloved Chief Perry for political gain.

It seems like Conrow is of two minds- one in which she says that Carvalho's action was "mandatory" and one in which he should have allowed Perry to "work from home,"

Has her belief in Perry has clouded her judgment?

Maybe. Because the real story as we've heard floating around is that Perry, Quibilan and Asher all threatened Abbatiello that if she didn't drop the October complaint she might just lose her beloved position in administrative services working with youth and heading up the police recruitment program with the Explorer Scouts (sorry to bury the lede). Maybe not in those stark terms but the general idea was broadcast loud and clear.

Either story cold be true. A vindictive, politically ruthless mayor seizing the opportunity to repay a supporter or a chief who is known to try to "smooth over" conflicts in order to "boost morale" going too far and violating the law- one that has cost the county millions already.

But the latter is the story that makes sense here, not the one that Iannucci is pushing on Perry's behalf and that Conrow wants desperately to believe- that Bernard's well known penchant for rewarding his friends and punishing his enemies has gone over the line and is threatening to destroy the reputation of the chief.

We could be wrong- but we doubt it.

ASSORTED SECRET VALENTINES

ASSORTED SECRET VALENTINES: Although those involved with events surrounding the harassment compliant and subsequent shakeup in the Kaua`i Police Department have been tight lipped as to the "result" of Tuesday's Kaua`i Police Commission executive sessions on the matter, the Kaua`i County Council will apparently get some kind of closed-door briefing their own selves tomorrow, if only a session with the county attorney discussing the legality of Mayor Bernard Carvalho Jr.'s "removal" of Police Chief Darryl Perry a couple of weeks back.

Apparently Perry, along with Roy Asher and Ale Quibilan- the two Assistant Chiefs Perry he put on leave the day before Carvalho's ax similarly fell on him- remain on paid administrative leave pending who knows what.

But the council has scheduled its own closed door briefing tomorrow with an agenda notice that reads:

ES-524 Pursuant to HRS sections 92-4, 92-5(a)(4), and section 3.07(e) of the Kaua'i County Charter, the Office of the County Attorney, on behalf of the Council, requests an executive session with the Council to provide the Council with a briefing on the Mayor's authority to exercise direct supervision over or discipline of the Chief of Police. The briefing and 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.

But although the public will not be privy to what presumably County Attorney Al Castillo tells them, citizens will be permitted to public vent their frustrations, not just for the council's edification but for that of the viewing public.

Also on the agenda is an interesting little item that, although also scheduled for a clandestine confab, reveals that someone in the county has been busy with shenanigans of their own.

Communication 2012-52 requests council's "authorization to expend funds up to $50,000.00 to retain special counsel to represent the Board of Ethics in BOE 11-003 and BOE 11-004 and related matters."

And what exactly are BOE 11-003 and 11-004? According to the December 9, 2011 Board of Ethics agenda:

BOE 11-003 Letter dated 11/25/11 requesting the BOE to initiate an investigation into allegations that an employee or officer of the county has improperly used county resources

BOR 11- 004 Letter dated 11/25/11 alleging an employee or officer of the county has improperly disclosed information and used their (sic) position to secure a benefit, privilege or exemption for them selves (sic) or others

This of course could be anything from simple theft to abuse of power. But it could also have to do with the alleged misconduct, primarily in the Department of Personnel, regarding filings for sick and vacation leave, as we reported the day the story of the suspension of the two assistant chiefs broke.

Whichever it is, it will certainly be one to watch.

And, in a followup to the story of the closing of the Jailhouse Pub and Grill and how it will effects the county's efforts to somehow return the municipal Wailua Golf Course to it's "enterprise fund" status- essentially a place where the county at least breaks even on running it, money-wise- one problem, albeit apparently a political one, is that has been that the way because of the way the charter reads and how fee setting has "worked" since the golf course's inception.

Currently it is the council that sets the rates per round. But a public discussion of the matter has already been held and it's obvious that the council doesn't want to be held responsible for raising ridiculously low rates for seniors and youth- especially in an election year. Yet the county attorney has verbally opined that they are somehow stuck doing it due to charter provisions that disallow the administrative setting of the rates by the Department of Parks and Recreation- where the council would much rather the authority reside.

The argument is that the rates need changing over and over in order to find the "point of diminishing returns"- the place where the cost of a round will not discourage people from playing in Wailua rather than the half a gazillion commercial golf courses- thus finding the "just right price" to optimize revenue.

Why they need to do this in executive session is anyone's guess but apparently the verbal expression of the legal situation by Castillo wasn’t enough and so tomorrow they will be:

consult(ing) with the County Attorney regarding the Council's release of the County Attorney's written legal opinion dated January 17,2012, regarding the delegation of fee setting for Wailua Golf Course and related matters.

As usual all the "good stuff" tomorrow will be done in executive session. Although the Minotaur has departed the labyrinth, "Uncle Kaipo Potter's Council Chamber of Secrets" is alive and functioning well. There's an unsubstantiated rumor going around (spread by us) that they’re working on creating a banner- costing $5,000 and to be funded in executive session- saying "Under New Management."

Perhaps they can borrow a practically brand new one from the Jailhouse Pub and Grill.

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.

WHY, WHY, WHY, DELILAH

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

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

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

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

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

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

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

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

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

The pay-wall protected editorial said, in part

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HORSESH*T OF A DIFFERENT COLOR

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WELL I WONDER, WONDER, WONDER, WONDER WHO

WELL I WONDER, WONDER, WONDER, WONDER WHO: The "fact" that Kaua`i Police Department (KPD) Chief Darryl Perry "is on leave" seems to be the only thing that is clear after chapter two of the latest departmental saga hit the streets.

Chapter one was the leave that was apparently forced on two assistant chiefs by Perry on Tuesday. But as to how Perry wound up on leave there seems to be about as much confusion in the press as there is silence on the part of the administration of Mayor Bernard Carvalho Jr.

The first report of Perry's "situation" came from a county press release last night and simply said:

As of this morning, Police Chief Darryl Perry is on leave and Deputy Police Chief Michael Contrades will serve as Acting Police Chief until further notice.

The local Kaua`i newspaper claims to have reached Perry who told them that indeed it was hizzonah who did the deed saying:

While the county offered no explanation in terse statements that were released Tuesday and Wednesday, Perry said late Wednesday that“the truth will come out,” and that the actions were brought about by the mayor’s office.

The pay-walled Honolulu Star Advertiser, while detailing some of the ways past chiefs have departed on less than friendly terms with the county apparently reached county KPD spokesperson Sarah Blane who told them "she was not told who placed Perry on leave."

Although the county claims it cannot say anything because it is a "personnel matter" the sunshine law says that, if appropriate in the specific case, the public's interest in the information can trump privacy concerns. That, however, would be a matter for the toothless Office of Information Practices (OIP) to determine and, even if they had fangs, they seem to work at glacial speeds.

So who dunnit?

Well if it was the mayor all we can say is "here we go again."

According to Section 11-4 of the Kaua`i County Charter

The chief of police shall be appointed by the police commission. He may be removed by the police commission only after being given a written statement of the charges against him and a hearing before the commission.

And while the power to place the chief on leave is not directly addressed, Police Commissions statewide are, according to state law, supposed to be autonomous in their dealings with the police chiefs.

But while it's not within Carvalho's powers to remove- or even place on leave- the chief, it's not for lack of wishing on his part. He has been engaged in a campaign to have the state law changed so that the chiefs of the police departments across the state would be hired and fired by the mayors, making the police commissions little more than advisory boards.

It may be of note that both Perry and the commission have gone on the record opposing Carvalho's would-be new law.

A perusal of the police commission's most recent agenda produces no recent "emergency" meeting where any executive session placing Perry on leave might have taken place and to do so would have violated the state sunshine law anyway which requires six days notice before a meeting can be held.

However this morning at 8:15 an agenda for a meeting scheduled for next Tuesday February 7- the first day one could be legally held- calls for no less than three "executive sessions."

The first, ES 5 reads in part

Pursuant to Hawai`i Revised Statutes, §92-4, 92-5(a) (2) and (4), the purpose of this Executive Session is for Mayor Bernard P. Carvalho Jr. to provide the Commission with a briefing regarding personnel and/or disciplinary actions related to notarized complaint filed with the Police Commission on 01/31/12, and for the Commission to further consider and discuss said personnel and/or disciplinary actions.

While it's not clear what "disciplinary action" Carvalho has taken it seems pretty clear it refers to placing Perry on leave because the next item, ES 6 reads

Pursuant to Hawai`i Revised Statutes, §92-4 and 92-5 (a) (4), the purpose of this Executive Session is for the Commission to consult with its attorney as to its powers, duties, privileges, immunities and liabilities as they relate to Section 11.04 of the County of Kaua'i Charter

Charter section 11-4 of course is the one cited above about the hiring and firing of the chief being the sole kuleana of the police commission.

The third item on the 2/7 agenda reads:

Pursuant to Hawai`i Revised Statutes, §92-4 and 92-5 (a) (4), the purpose of this Executive Session is for the Commission to consult with its attorney as to its powers, duties, privileges, immunities, and liabilities as they relate to Rule 6-1.f of the Rules of the Kaua'i County Police Commission.

But if you thought that would clarify what was going on you'll be sorely disappointed because Rule 6 is entitled "Control, Management And Direction Of The Department" and 6-1 is an incredibly long and list of the "Powers, Duties and Responsibilities of the Police Commission."

Although 6-1-3 does deal with "Investigation of Charge (sic)" it does not directly address what happens if the target of the investigation is the chief.

So what does it matter who put Perry on leave?

Well if past is prologue the county might just be in for another big settlement should Perry decide to sue for denying his rights under the charter.

To make a long story short, back when George Freitas was the chief and Maryanne Kusaka was the mayor- this during the time when Kusaka was allegedly covering up for her buddies with grubbing and grading violations by allegedly telling a Department of Public Works engineer to butt out when it came to Jimmy Pflueger and the Ka Loko Dam area that later burst during a storm killing seven people- Kusaka "removed" Freitas from his office.

She apparently got the long time secretary for Freitas and past chiefs to take his gun and badge from his desk and give it to her. There was a long list of serious charges made but when it was all over the only one the police commission upheld was that Freitas had given a ride to his girlfriend in his police car.

And in the end Freitas settled for a reported half-million dollar golden parachute and "retiring" from the force.

Hard to say what will happen tomorrow- or next Tuesday for that matter because the usual open session for decision making after executive sessions on complaint against KPD personnel is decidedly missing from the 2/7 agenda.

But one thing is clear- in his notorious quest for power Carvalho is certainly putting the county in jeopardy by usurping the commission's oversight.

FEELING KINDA SEASICK

FEELING KINDA SEASICK: We admit it- we have a hard time keeping up with the voluminous viewing of council meetings.

First of all, even if we do watch them "gavel to gavel" figuring out what the bleep is going on is often a fool's mission because the actual communications, reports, memos, bills, resolutions and the rest of the accompanying paperwork is still not available on line after years of promises from two different council chairs and even a budgetary appropriation for another staff member dedicated solely to this supposedly daunting task

So again it's time to ask how hard it is to take the packet of hard copies, already sorted and ready for replication and distribution to the public at the counter of Council Services, and scan and post them at the council's web site? Apparently it's beyond the capabilities of anyone who works there, although we suspect that it is, rather, a reluctance to actually let people know any more than they want us to know.

But it's not all due to the speed bumps and blind spots strategically placed on the information highway. We do get overwhelmed on occasion as it was earlier this year when the outside, independent auditors came in for their "report" to the council.

Yes, we missed the audit report. Somehow it quite literally put us to sleep as we remember it. Imagine that.

And so it was that later, last Wednesday well after the miller had told his tale, that we were taken aback when Director of Finance Wall Rezentes Jr.- or "Little Wally" as he is known around county government- took the hot seat to answer some 13 questions the council had for him regarding the findings in the charter-mandated audit.

Apparently, according to Councilmember Mel Rapozo, the audit showed that the "ending balance for vacation and sick leave were not matching the beginning balance for the next year." And, 90% of them were in the Personnel Department of Malcolm Fernandez.

"It's more than an anomaly" said Rapozo, "it's a trend.

"Obviously it's human error... we know that," he told Little Wally and the assembled, saying that there were "too many occurrences for it to be just a mistake.

"I want to make sure there's no evidence of fraud- that nobody's getting extra vacation and sick leave hours," Rapozo said.

But Rezentes couldn't say that was so, only that the amounts had been reconciled and that "Fernandez is taking corrective action." He admitted no one had really checked for wrongdoing or what really happened other than ascertaining, in response to a final question from Rapozo, that "somebody" did reconcile the numbers.

Rapozo seemed to indicate that there were 20 instances of "irreconciled" sick and vacation filings in the Personnel Department alone and let slip that that was "90%" of the total and, apparently there were "one or two" in- drum roll please- the Kaua`i Police Department (KPD).

That was last Wednesday. And, although "we ain't sayin', we're just saying" as they say, yesterday it was reported in the local newspaper that KPD Chief Darryl Perry has placed his two assistant chiefs, Roy Asher and Ale Quibilan, on leave "due to a 'personnel matter.'"

Oh, and of course neither the audit, nor the 13 questions- nor for that matter the written answers to the 13 questions that were apparently provided to the council by Rezentes- is posted on the county's web site.