THE RULING CLASS

THE RULING CLASS: We've been fairly merciless with Council Chair Jay Furfaro and his foibles and blunders, not to mention his tendency toward chest-beating blowhardism.

His insistence that his business experience in the tourism industry can be translated and applied to just about any situation has resulted in some real head-scratchers and outright bad results.

But recently, out of the blue, Furfaro has suddenly rectified one of the most blatant violations of the state Sunshine Law- one which, despite our constant whining, sniveling and even letters to the Office of Information Practices (OIP) asking them to intercede, has never been enforced on Kaua`i.

In the late 90's we made it our mission to drag the council- often kicking and screaming- as well as other boards and commissions, into compliance with the simplest of sunshine law provisions.

We joined with then Honolulu Star Bulletin Kaua`i Bureau Chief Anthony Sommer- author of KPD Blue (see left rail)- to request the listing of each specific executive session (ES) on council agendas. At the time, council chairs had always just announced that "we're going into executive session now so please clear the room."

Although the move was at first resisted by then Council Chair Ron Kouchi, it was first instituted by the Police Commission when then new Chair Michael Ching and new Vice Chair Carol Furtado acquiesced, saying they couldn’t believe it had never been done before.

Well soon Kouchi consulted then County Attorney Hartwell Blake, waking him up from his notorious perch under the air conditioner at the back of the council chambers, and finally the specific ES's began to appear routinely on council agendas, starting with ES-1 (we're now up to ES-505).

The Sunshine law provision regarding executive sessions reads

§92-4 Executive meetings. A board may hold an executive meeting closed to the public upon an affirmative vote, taken at an open meeting, of two-thirds of the members present; provided the affirmative vote constitutes a majority of the members to which the board is entitled. A meeting closed to the public shall be limited to matters exempted by section 92-5. The reason for holding such a meeting shall be publicly announced and the vote of each member on the question of holding a meeting closed to the public shall be recorded, and entered into the minutes of the meeting. (emphasis added)

But when we asked Kouchi to take a recorded, roll call vote he failed to respond and when Kaipo Asing took over as chair he continued the tradition despite years of prodding from us before we finally just gave up.

Well lo and behold a few weeks ago our ears and eyes perked up when the council was about to go into executive session and Furfaro asked then County Clerk Peter Nakamura for a roll call vote on each matter. And he's done so for each matter at each meeting since.

But of course for every step forward it's two steps backward for the Kaua`i County Council.

Furfaro is a stickler for the "council rules" which are generally passed by resolution at the inaugural meeting every two years, although they can be amended at any time by reso, as they were this year after a committee examined them.

But although community activist Bruce Pleas made it an issue a few years back, the following extremely important rule has gone back to non-enforcement status under Furfaro.

Rule 12 under Public Hearings states in Section e(4)C states that:

(C) Persons testifying shall clearly state their name, address, whom they represent, and whether they are a registered lobbyist, in compliance with H.R.S. Chapter 97, Lobbyist Law.

Not only is this a council rule but a state law.

Anyone either attending or watching the meeting on TV or on-line knows that this rule is never enforced. Recently during the debate over asking the legislature to close the loopholes in the solar hot water heater requirement for new homes, lobbyists from the Gas Company filed up to testify against the measure. They even flew one in from Honolulu. Not one identified themselves as a lobbyist, nor were they asked.

But Furfaro, who seems to constantly cite the rules, especially when it comes to limiting public testimony, seems to have somehow missed this provision.

Apparently the minotaur giveth, the minotaur taketh away.

STRONG AS THE EARTH FROM WHICH HE'S BORN

STRONG AS THE EARTH FROM WHICH HE'S BORN: The labyrinth was quiet- too quiet. But that's the way the minotaur likes it.

So he was surely overjoyed at the extra layer of opaqueness the Kaua`i County Council added via their final rules changes passed at the last full council meeting (7/6).

What began with a proverbial bang during the knock down drag out battles of the summer of '10, ended with the predictable whimper when, to no one's surprise, the council made it both harder for television viewers follow what they're doing and harder still for those in attendance to speak truth to power in front of the TV viewing public.

But it wasn't even the fact that they approved the use of a "consent calendar" and continued to forbid a suggested short period before each meeting for the public to speak on non-agendaed items, it was the excuses for doing so that were the most irksome part of the discussion before the unanimous vote to approve the new rules.

It's was bad enough before if you were the average citizen who decided to try to watch a meeting or two and figure out what the heck your government is up to. Unless an item needed "approval" they weren't even read aloud but rather all lumped together and referred to by number before being "received for the record" in one fell swoop.

But now, with the institution of the consent calendar, those routine measures "for approval" will also remain unread by the clerk.

That means that, while before no one at home- especially those who might not have access to a computer and therefore the agenda- would know for instance that, according to the agenda of the 7/6 meeting, two "(s)tatement(s) of the Condition of the County Treasury," one "as of February 17, 2011" the other "as of May 16, 2011," were even available for the public to peruse, now they won't even hear about the approval, for instance, of a half a dozen grants for things like the police or prosecutor.

Do we not need to know that the prosecutor just received a "Career Criminal Prosecution Program Grant in the amount of $61,938.00" or a "Crime Victim Assistance Grant in the amount of $191,417.00 for the Kaua'i Victim Of Crime Act (VOCA) Expansion Program?"

Are those important? Who knows? But no one will know if they don't know about them. You can be sure though that if a "victim of crime" knows there is a "Crime Victim Assistance" program they might be more likely to take advantage of it.

The council's excuse for the new process? It's "a waste of time" to let the public know what they are doing.

They tried to excuse the new practice by saying that if a councilmember wants to discuss an item they can "pull" it from the consent agenda and if a member of the public who is in attendance at the meeting wants to speak on the matter they can waive frantically as the consent agenda is being approved and try to get the chair's attention.

Well, they didn't exactly say it like that but that's only because they don't seem to appreciate the little bubble in which they appear to operate to any non-councilmember.

Despite the fact they the are always hyper-aware of the cameras and play to them like a ham in a high school play, councilmembers acted like it never occurred to them that home viewers might actually be watching in order to find out what was going on and repeatedly tried to reassure the public they they weren't trying to pull a fast one or cover up anything.

It's as if they are so enraptured with their own little ego-plays that they think that the public is watching because they enjoy the performance itself rather than watching for the content.

It doesn’t seem to occur to them that the same citizens that they complain never get involved in their government are actually being discouraged from doing so because it's so incredibly frustrating to see a dozen items dispatched without even a "reading" of what's actually being voted upon.

Even worse sometimes when the item is actually read it's totally incomprehensible and receives no explanation whatsoever by anyone... but of course we don't expect miracles.

It's as if those who don't actually show up to the meetings don't matter... maybe because they can't say anything to the cameras that might embarrass councilmembers.

Speaking of which, for those who do show up, the councilmembers had their excuses for why they won't set aside 15 minutes at the beginning of the meeting for people to speak for three minutes on any county government issue they choose. They do that on other islands and, as the OIP has ruled, it's permissible as long as the council refrains from addressing any non-agendaed item.

That last part of course is the key because one thing that the council has learned to do really well over the last few years is to control testimony so that the council gets the final word on any subject.

Of course the council's "final word" may be half-truths or even outright lies but the viewing audience is left with the impression that the final word is the correct word.

But that was essentially what some councilmembers stated was the problem, saying "what if what something someone says isn't true and we can't speak to correct it?"

"Why we can't have anyone speaking truth to power here- this is a public council meeting"... well they might as well have said that.

Nowadays a testifier can't even get through any semi-controversial words without Council Chair Jay Furfaro interrupting them- often with barely controlled anger virtually dripping from his mouth- "correcting" what is often their opinion.

The intimidation factor alone has been enough to discourage all but the most determined citizens from even showing up to a meeting- unless of course they are there to heap praise on Furfaro and his sycophants who, under his tutelage, have begun to engage in similar deterrence of public expression by grilling the testifier until they start losing the argument, at which point Furfaro interrupts saying "this is for questions, not a dialogue."

So sleep well my sweet bull-man knowing that all is well back at the bone mill and rest assured that the dark will remain as dark as dark can be... even darker if the council has its druthers.

THE AGE OF NEFARIOUS

THE AGE OF NEFARIOUS: Sometimes watching a Kaua`i County Council meeting is like reading a redacted document that leaves in only the articles, conjunctions and punctuation. You know something must be going on but damn if you know what... or more to the point, why.

Often it seems like well orchestrated kabuki where you missed an act or two, especially when they're all on the same page of the script but only they have seen it.

Why it's as if they all discussed what was going to happen before the cameras rolled. But that would be an illegal violation of the state Sunshine Law and they'd never do that, would they?

Well not only would they, this council has actually written violations into their rules by assuring that members who want to introduce bills share them with both Chair Jay Furfaro- who insisted on the procedure- and the chair of the appropriate committee where the bill will be sent.

Only two members of a board are permitted to discuss anything not on an agenda and even they they can't commit to a vote.

But while Furfaro is infamous for not "getting" the prohibition on "serial one-on-one communications" and doesn't seem to care who knows it, there's a bit more sophistication to similar violations over in Honolulu.

Civil Beat's Mike Levine- who cut his Hawai`i teeth busting the Kaua`i Council's inability to follow simple open meeting laws- smelled a rat yesterday and wrote:

Hours before soon-to-be-former Honolulu City Council Chair Nestor Garcia announced his plan to step down, numerous council members seemed to be well aware of the impending change.

How did those members learn about the plan if the Hawaii Sunshine Law requires six days of advance notice before any public meeting with more than two members of the City Council?

But unlike on Kaua`i where councilmembers have a "so what" attitude toward sunshine violation, their Honolulu brethren have not only pre-decided the matter but apparently pre-decided how to cover up their pre-decision.

Levine first describes a similar Honolulu council reorganization case six years ago when the Office of Information Practices (OIP) first banned those serial one-on-one communications and then describes what happened when he started asking questions.

The opinion was sent to (then-City Council Chair-and current Hawaii senator-Donovan) Dela Cruz, but the eight other council members were copied. One of them was Garcia. Just two others remain on the council today: Ann Kobayashi and Romy Cachola.

Kobayashi and Cachola each expressed support for a reorganization Wednesday morning, telling Civil Beat they'd likely vote in favor of installing Ernie Martin as council chair. But both were careful to avoid revealing how they'd come to be aware of the coup.

"That's always the question, and it's part of why a lot of us say we don't know exactly what's going on," Kobayashi told Civil Beat. "We do it by circulating a resolution, and if you don't support it, you don't sign onto it. It's not like over at the Legislature where those guys can go into a closed room and have a meeting."

Unless someone steps forward to volunteer that they violated the Sunshine Law — or unless there's a paper trail of a series of written or electronic one-on-one communications — it'll be hard to prove a violation of the Sunshine Law took place.

Garcia's insistence that the shake-up was his idea and his idea alone gives his colleagues a cover story.

Despite the attempts to be careful not to violate the Sunshine Law, the question remains whether a violation took place.

Ikaika Anderson, who would become council vice chair if the resolution is approved as written, told Civil Beat Wednesday he had a conversation with Garcia about the reorganization.

"He's comfortable with moving forward," Anderson said. "Nestor Garcia has told me that he's committed to seeing the council move forward in the best interest of the taxpayers of Honolulu."

At his press conference, Garcia in turn said he'd had a conversation with Martin about 30 minutes earlier.

Those two discussions alone could constitute a violation of the law — oddly enough, by the man who's being ousted and not any of the possible conspirators.

It's hard to believe that would be enough to put the proposal in jeopardy if the majority of the council is ready for a change in leadership, but it might mean the public isn't going to get any further explanation for the ouster from members at the council's next public meeting, where the vote will be held to install new leadership.

The "circulation" of a bill or resolution before it's on the agenda is a favorite trick on Kaua`i as we saw when Furfaro spent almost a year battling with OIP over a letter and proposed bill addressed to all the other councilmembers which, he claims, was never actually sent, although it was posted on-line.

While OIP cleared Furfaro of the charges because they couldn't show he actually sent the letter and bill, they didn't comment on the fact that it appeared on-line where other councilmembers could presumably see it.

The problem is that in the age of the internet, anyone can post anything on-line- even do it anonymously- even a bill or resolution, avoiding any possibility of a paper trial to prove a Sunshine law violation.

The OIP has proposed that the legislature take a new look at the Sunshine Law in the age of the internet and while some loopholes like this need closing it's anyone's guess what the lege will do once they open the law for review.

But whatever happens you can bet that the Kaua`i Council won't be letting the sunshine in anytime soon... and won't really care who knows it.

LIKE A VIRGIN

LIKE A VIRGIN: Like the butcher who backed into the meat slicer we've been getting a little behind in our work (okay they all can't be gems... or even non eye-rollers) so we were catching up on the March 16 Council Committee of the Whole meeting last night and perusing the discussion of the new council rules that have been proposed by the Rules Subcommittee with Chair Councilperson JoAnn Yukimura going over some of the proposals.

And to no one's surprise, instead of increasing transparency and public participation the proposal goes in quite the opposite direction.

There is no provision for a much discussed period at each meeting for the public to bring non-agenda items to the council's attention- something that other island councils routinely do ever since the practice was okayed by the Office of Information Practices (OIP) with the provision that councilmembers themselves may not talk about any topics the public may introduce.

And of course instead of considering our suggestion that all agenda items be read aloud- including those informational communications usually coming from the administration that are simply "for receipt"- they are hell bent on further opaqueness in creating a "consent calendar" whereby those items are lumped together for one big vote on all of them, leaving the TV and on-line viewing public in the dark and those that do come to the meeting having to wave frantically and beg to speak on those agenda items.

But a strange little item pressed for by non-subcommittee member Councilperson Tim Bynum- who was the one who pushed for rule revisions in the first place- was what caught our ear.

It involves one of the two provisions related to the release of county attorney (CA) opinions which were not okayed by the subcommittee. The first would have set up a process for releasing county attorney opinions on subjects of law by a 2/3 vote, finally providing a process for CA opinion releases after the council has used the excuse of not having any official procedure to refuse to release any county attorney opinions at all.

But the one that left us shaking our head concerned opinions of law that are requested by individual councilmembers before legislation comes before the body and called for them to be automatically released to all other councilmembers when the matter hits the council table.

At first the talk centered around who the "client" was and other seemingly extraneous issues with Councilperson Mel Rapozo saying that if he was the client asking for the opinion why should his confidentiality be automatically violated, adding that he didn't even think it was legal to do so.

But when emerging political climber Councilmember Derek Kawakami spoke the real core of the matter- and the reason why, as a subcommittee member, he had vehemently opposed it- suddenly emerged.

Kawakami is known among his associates as the kind of politician's politician whose first response to an issue is not "how does this effect the public?" but "how does this effect my political career?" And after echoing Rapozo's apprehensions he ended his comment with a rather telling interjection saying "This IS politics."

And suddenly it became crystal clear what Kawakami had against letting other councilmembers in on a county attorney opinion on the law after he had requested it.

If you're asking about the legalities of an upcoming bill or resolution it usually means you are planning how and whether you can do whatever it is you're planning to do. But what if you get an answer that you didn't want- one that would make it difficult or even impossible to get your way on the legislation?

Naturally if you had the interest of the public in mind you'd want to alert the other councilmembers- and the public- to the legal ramification. But if your own political machination were of prime concern you might want to hide that legal opinion and go ahead with your plans for whatever it is you have up your sleeve.

In other words, if other councilmember- or member of the public- aren't smart enough or unable to articulate or even ask, the right legal questions- well, screw 'em.

And that is sooooo Kawakami.... all except for slipping up and saying it out loud.

Imagine that- the legislative scion who can't even hide from the public his covetousness of the now open north shore state representative seat made a sophomore mistake.

Our advice? Brush up on your Machiavelli, Derek- you'll need it some day when you join all the other hacks in Honolulu.