NOW YOU DON'T SEE IT, NOW YOU STILL DON'T SEE IT

NOW YOU DON'T SEE IT, NOW YOU STILL DON'T SEE IT: We realize that criticizing the council today may be one of those "no good deeds goes unpunished" type of things. After all, it only took a decade and half to get the paperwork for council agenda items posted on-line after the promise had been made to get it done "tout suite."


So today we have an excuse for our usual "but we digress" style.

Legendary local Kaua`i newspaper Editor Jean Holmes tells the story of how, when the paper's founder Charlie Fern hired her from the Howard County Times in Maryland, he assigned her to cover the Kaua`i County Council.

"When I walked in they practically had to put their pants on" she used to say of the colorful, equally legendary (albeit for different reasons) cast of council characters who had never seen a woman in the council chambers, much less a "lady reporter."

When we first attended a meeting in the pre-television days, not much had changed except that a different cast of characters were perturbed, this time at a haole hippie being in their midst.

Proceedings came to a screeching halt but after a bit of "who the heck are you and what are you here for?" then-County Clerk "Bunji" Shimomura (are we even close to the correct name and or spelling of either?) informed them, much to their astonishment, that indeed they had to allow members of the public- even this apparent wild man- to observe them in action.

But TV changed things. Dragged kicking and screaming into the 1990's, public access TV put council proceedings under the public microscope, albeit in fits and starts with officials finding ways to delay and indeed at times suspend cablecasts until almost 2000.

Around the same time, something called the "internet" was burgeoning and it took a mammoth effort to just get the weekly agendas posted at "kauai.com"- the domain purchased by then-Mayor Maryanne Kusaka, despite the fact that governments already had "dot gov" domains reserved exclusively for them.

By then, as a regular, we had gotten used to the cat and mouse game that interested members of the public, like the notorious "nitpickers"- and even reporters- were required to play, especially when it came to obtaining the aforementioned paperwork. The most annoying flaming hoop was the one called "how can you ask for it by name if you don't know it exists?". The OIP wasn't exactly accessible those days- even with a long distance call there was no "attorney of the day"- so we got pretty much got only what they wanted us to get.

But then suddenly, with the ascension of Ron Kouchi to Council Chair and Republican Kusaka in the mayor’s seat, revealing administration scandals- from, gem-gate to red-Chrysler-gate- became Kouchi's favorite game and the paperwork- especially the juicy stuff- began flowing on a more regular basis.

But there was a catch- although by the early 2000's the council's agendas began to be posted on-line the associated paperwork was available only at Council Services desk. Of course the game in those days was that agendas for the then-Thursday meetings came out as or after the doors to Council Services were locked for the weekend- with the required six days notice for meetings conveniently reduced to three beginning Monday at 9 a.m.

Than meant the already small window got smaller still and required a trip to Lihu`e to boot.

So, with the turn of the century began our quixotic century quest to get that paperwork posted on-line. But so too started the paternalistic reign of Chair Kaipo "it's not public information until I say it's public information... and the OIP can 'bite me'" Asing.

You get the idea. For ten years councilmembers promised posting of documents would begin post haste. Eventually though, not only Asing but even those self-same councilmembers- now having seen who was politically buttering their Portuguese Sweet Bread- were suddenly silent on the issue.

Without those documents by the way, the community would probably never know about the slew of sexual harassment cases which we only found out about because the suit was included- perhaps accidentally- in the "packet." Previous to that we had to be handed papers cloak and dagger style by anonymous sources- one time literally under a toilet stall.

Of course the main problem now is that although the paperwork is available- not at the council's page of the county web site but through "Granicus," a huge mainland company that is contracted to produce and "webcast" the meetings- it is not available in a "text" format but as a "scanned" file.


That means that someone trying to use any of the paperwork to testify- or for any reason like informing others- cannot simply "lift" the text from the file but must re-type it.

It is also probably a violation of the Americans With Disabilities Act (ADA) because the "voice recognition" software used by the visually-challenged will not work with a "picture" of the piece of paper- which is what is essentially what is being used by the county, which apparently supplies Granicus with the files.

Of course some of the paperwork either wasn't created in text or doesn't lend itself to text such as maps or graphs or the like. But there is what is called "Optical Recognition" software which is widely used these days to convert a scanned picture of the words into a "text file." Although errors may be contained in the conversion, going back and comparing it with the original is certainly preferable having to "key in" a 5,000 word document or even a 100-word quote.

Of course we complain because we do this all the time- take documents and post them in text. We have a friend (yes- we do have a few despite being a recovering asshole-a-holic) who has been very generous with his/her time in doing conversions for us. But the county could do this once, for everybody... after all they say they've had to create a new full-time position just to post the already available paperwork.

Scanning and posting around 25- 50 pages apparently takes 40 hours a week. Guess they had to look for an available slug because there wasn't a competent tortoise or snail on the civil service list (sorry- nothing personal, just personnel).

We just discovered the availability of the files today so we don't know yet when the documents will be posted each week (why do we suspect they won't be available when the agenda is ready- usually on Thursdays- but rather as late as they can get away with?.. maybe because we've been dealing with these guys for almost 30 years).

We're not sure who is responsible for the postings- given that "new" Council Chair Jay Furfaro has been on the job for 15 months now without change and brand new County Clerk Ricky Watenabe has been on the job for only about a month or so, we suspect that it is Ricky's doing... especially since Rick has been one of the only senior staffers in council services who has not just made himself available but actually never lied through his teeth to us or evaded our questions and/or requests, lo these decades.

Anyway there's still some stuff missing like committee reports, some communications, legal documents (a real biggie as to digging out news) and even a resolution and a bill for second reading (meaning "ready for final passage") as well as of course whatever is available for executive sessions- another document treasure trove which, many times, is where court filings of lawsuits may be available since they are public records.

So yes- it is a "what have you done for me lately" type of thing. Maybe we should make like the local newspaper... sit down, shut up and say "thanks for the crumbs massah"

All we can say is "put your pants on ladies and gentlemen of the council, there are woman and kids- and wildly rabid reporters- watching.

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.

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.

IT'S NEWS TO ME

IT'S NEWS TO ME: It only took a decade or so, which anywhere else might be seen as a snail's pace. But here on Kaua`i when it "only" takes a dozen to get the government follow the law your first thought is that it's miraculous that they complied at all.

When a long list of nominees for various boards and commissions were scheduled for interviews a week ago Tuesday we had little hope of seeing them on television. After all, it took over five year of complaining on our part to even get the Office of Information Practices (OIP) to tell the council to end the practice of holding the interviews in secret executive sessions and then another few years for the paternalistic then-Council Chair, Kaipo Asing, to actually comply.

But it took still a few more years before the council allowed the interviews to be video-recorded claiming they didn't have the money to do so- even though they paid to caption and televise up to an hour a week of those "grip and grin" certificates and awards that they present to auntie and uncle every time they sneeze and to every sports team that came in anywhere but last in Honolulu... especially around election time.

Now, after some dribs and drabs of individual interviews interspersed with council meetings over the last year or so, the yearly appointments- and more importantly reappointments- of a slew of board and commission members was actually televised last week.

And guess what? It actually produced news of sorts, although you wouldn't know it from perusing the local newspaper, probably because you had to actually be paying attention to both the interviews and the way government works around here to find it.

The biggest news came from outspoken Planning Commissioner Jay Kimura who has ascended to chair this year. Kimura is the one who, when you watch the planning commission meetings, is continually shaking his head in disbelief over the fact that transient vacation rentals (TVRs) can be put on agricultural lands in the first place, denouncing the way the permits for all types of TVRs are approved willy-nilly regardless of compliance with the law and generally kvetching about the lack of enforcement of TVR regulations for both existing permit holders and those for who have been rejected but continue to operate.

The news is that anyone who was wondering at the time exactly what happened in executive session when former Planning Director Ian Costa left his post under investigation by the FBI can wonder no more whether he resigned or was actually fired by the planning commission.

Mayor Bernard Carvalho Jr. was certainly circumspect about the circumstances, probably because he has since "hired" Costa- or at least told his former campaign manager Director of the Department of Parks and Recreation Lenny Rapozo to hire Costa- as a deputy director under Rapozo.

During Kimura's questioning Councilmember Tim Bynum directly asked Kimura "during your tenure the planning director changed. That was a decision of the board, correct?"

Kimura simply answered "Yes."

Bynum continued the questioning as to whether Kimura was happy with the new Director, former Deputy County Attorney Mike Dahilig, to which Kimura replied that he would "rather keep my opinion to myself," even though his disgust with Dahilig's lack of enforcement and lax attitude toward TVR permitting in general hasn't been very well disguised at planning commission meetings.

But now we do know that Costa was fired- as if there was really any doubt until now in the minds of any but the most rabid of Carvalho sycophants. Oh- that and, according to Rapozo, the "fact" that state attorney general is "going over the approved 'TVRs on ag land' permits"... whatever that means.

Another bit of major news is that Board and Commission Director John Isobe has "retired" and been replaced by former state House Representative from 1992-1993, Paula Ishii Morikami (D-12th District) who is apparently now the latest politically-connected apparatchik to join the Carvalho administration.

Isobe's "retirement" has yet to be formally announced but it came up during the interview with former District Court Judge Calvin Morishige who has been nominated to be on the Kaua`i Board of Ethics.

One bit of news of sorts that Morishige made was to say, in response to questions from Councilmember Mel Rapozo, that his opinion was that county attorneys who advise boards and commissions actually do just that and only that- advise them.

"Their opinion is only their opinion- the decision is up to the board," he told the council.

Now anywhere else in the world this would not be news. But under the Carvalho administration, County Attorney Al Castillo’s opinions are to be followed blindly by all. And if they are not, board and commission members have been threatened with the withholding of county representation should they be sued for their official actions, according to a lengthy discourse on the subject by Rapozo.

This has been especially true with the Ethics Board where commissioners have actually battled deputy county attorneys to get them to change their written opinion rather than make a ruling that would treat their advise as, well, advice as opposed to a dictum.

There was probably more news but it was really hard to stay awake through all the fawning and phoney praise for both the nominees and Carvalho for his wonderful choices... alternating with the occasional grinning through gritted teeth by both councilmembers and appointees, holding back what they really wanted to say.

It kind of makes you wonder what "news" might have come up behind closed doors for all those years where they didn't have to watch what they were saying. But then again current councilmembers are new at this "conducting the public’s' business in public" stuff, especially when it comes to having to interact with those who have seen the corruption of the Carvalho administration up close and personal and then allowing them to discuss it on TV.

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(Sorry for any flubs today- our editor's computer is down.)

ROOM AT THE TOP

ROOM AT THE TOP: When former County Clerk Peter Nakamura was fired- or, according to some, quit amidst council executive-session-protected investigations of various and sundry allegations of wrong doing- we didn't really expect to hear anything until the decision on a new clerk was a "done deal."

So when our sources at council services told us that ads were placed in both the local and Honolulu newspapers soliciting applications and that there were a significant number of applicants- even from the mainland- though it was nice to think that there might be a little public scrutiny of the list, we didn't hold out much hope.

And we haven't been disappointed in our pessimism.

The job description of the position of clerk is not just "the council's lackey" even though Nakamura's stint under former Chair Kaipo Asing might have given that impressions. He- or she (yeah- that'll happen)- is also the county's chief elections officer and has numerous other important public duties and responsibilities.

But of course the process- and the names of the applicants- has been a tightly held secret with closed-to-the-public, executive sessions the order of the day for review of those seeking the job.

But given the brouhaha over the release of the judicial appointment list and the Office of Information Practices' (OIP) original stance that the names should have been made public- with which a circuit court judge agreed before the judicial selection committee decided was the best policy on their part after all- we wondered if there might be enough of a public interest in release of the names of county clerk applicants to overcome the privacy concerns in the Uniform Information Practices Act (UIPA), HRS Chapter 92F.

Silly wabbit.

We gave a call to the attorney of the day at OIP and got an interesting if negatory answer. Staff Attorney Carlotta Amerino wrote:

This email responds to your telephone call to the Office of Information Practices (OIP) on November 17, 2011. You explained that the Kauai County Council is in the process of filling a vacant county clerk position and would be meeting on this matter on November 21. You asked whether you may know the names of all the applicants.

The Uniform Information Practices Act (Modified), Chapter 92F, Hawaii Revised Statutes (UIPA) requires generally that government records are available to the public. HRS section 92F-11. However, the UIPA does not require disclosure of records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy. HRS section 92F-13(1). Applications for government positions carry significant privacy interests under HRS section 92F-14(b)(4), which, when balanced against the public interest in disclosure, have often outweighed the public interest. See OIP Ltrs. No 90-14, 91-8, and 95-2. In Opinion 03-03, OIP found that a list of judicial nominees could be disclosed publicly, but that opinion was based in part upon the fact that judges have a great impact upon the public.

The UIPA also allows government agencies to withhold information if disclosure would cause the frustration of a legitimate government function. HRS section 92F-13(3). While OIP has not been asked to issue a formal opinion on your specific question, and has not discussed this matter with the County Council, it would not unreasonable for the Council to invoke the "frustration" exception if it feels that qualified applicants would not apply for government jobs if that fact is made public even for the unsuccessful applicants.

I hope this information is helpful.

Carlotta Amerino
Staff Attorney

Basically it's not really an answer because although the judicial selection process is cited, that process is detailed in both the Hawai`i State Constitution and in law and administrative rules whereas the county clerk simply serves "at the pleasure" of the council

That leaves what Amerino refers to as the "frustration" exception which says that things may be kept secret if revealing them would "frustrate a legitimate government function."

In the case of the judicial nominees, Governor Neil Abercrombie claimed the frustration clause in that it would have a "chilling effect" on attorneys causing many to decline to apply. But even that doesn't seem to be the case with the county attorney position any more than any other job where one might not want their current employer to know they were seeking another job. And, of course, in any event, the court struck down such an exception in the judicial selection case.

We haven't formally requested the list of applicants mostly because it would take at least a few weeks just to get an answer from the council- which we know would be "no" anyway- and then we would have to submit that refusal to the OIP for disposition and they are so "busy" and toothless these days we'd be lucky to get a "formal opinion" at all and if we did it could take months if not years.

And by then, most likely we'll have a new clerk.

It may be best to wait for the appointment and then ask for the list- we might have more of a chance then because there would be no way the release could effect the outcome due to political pressures, which Amerino suggested to us on the phone might be applicable in this situation.

It's been noted in national surveys that Hawai`i has one of the best sunshine/open records laws in the country- and one of the worst records for actually keeping meetings open and releasing records.

The minotaur thinks the labyrinth is working just the way it's been designed, thank you very much.

LIKE A GLOVE

LIKE A GLOVE: It isn't like it was a surprise when Kauai County Clerk Peter Nakamura* was apparently fired this week.

After all, the first shoe had been dropped over and over throughout the years with allegations that he had cost the county a cool quarter-million in the Margaret Hanson Sueoka harassment suit along with his alleged misdoings in collecting unapproved cash-for-vacation-time from former Chair Kaipo Asing as has been splashed all over the front page of the local newspaper recently.

Not only that but the second shoe had been poised for a gravity-driven trip for months with executive sessions concerning his employ showing up on the council's agenda almost every time they met.

But the fact that Nakamura was offered and accepted a job in the planning department was a bit odd given that the revolving door was wide open for him after his performance as perhaps the best flack-catcher the county has even seen.

We've had a love/hate relationship with Nakamura throughout his tenure. Early in his tenure his penchant for providing information and documents was unique in the county if not the state, where our sunshine law has been cited nationally for being one of the best while showing up among the worst when it comes to how it actually functions.

But that was before the ascendancy of Asing and, in serving the new king, Nakamura of course took to carrying the king's sword which in Asing's case was a heavy instrument indeed.

As per Asing's instructions, Nakamura became the scrooge of public information, fighting with aplomb councilmembers' battles with the Office of Information Practices (OIP)- like the one over the infamous ES-177 that eventually resulted in the recent full de-toothification of the OIP.

Someone that is willing to fall on his sword like that is invaluable in the corporate world and Kaua`i is littered with such former county officials who have found a place in the close knit Kaua`i business community based on their ability to take a bullet for their bosses... people like current Grove Farm VP Mike Tressler who, as Finance Director, parlayed his part in the pogrom that resulted in the removal of former Police Chief KC Lum, into his current high-paying position.

Could it be that Nakamura's claim that he was returning to his first love- planning- actually be true?

Whether or not that's the full explanation, his trip across the street to the administrative offices, while unique, fits quite well into Mayor Bernard Carvalho's scheme for filling positions with "protected" cronies. Anyone who has served with the kind of blind loyalty Nakamura has exhibited over the years can't help but be an asset to Carvalho in a way few if any from the outside can be.

But would Nakamura settle for a position as a lowly planner when lucrative job the business sector beckons? Of course not.

It just so happens that the planning department has a "temporary" director right now- Mike Dahilig who, according to the county charter, is unqualified to take the position permanently. And he has done the job he was sent to do- take over the reins of a department allegedly under FBI investigation and get the feds off their backs... not to mention guiding the difficult and potentially contentious process of passing the all important ordinance that returns scrutiny of tourist accommodation permits from the council back to the planning department in compliance with the so-called citizen-petitioned General Plan charter amendment.

Nakamura- who ironically served as Planning Director under then-Mayor, now-Councilmember JoAnn Yukimura (who apparently was instrumental in his firing)- seems to be the beneficiary of a circumstance that makes his future as planning director all but a formality once the commission acts.

So all's well in the Minotaur’s labyrinth as the bone mill cranks out another bowl of that distinctly Kaua`i-flavored porridge which, while sweet-smelling to the minotaur and his minions, stinks to high heaven to the rest of the island's denizens.

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*Correction: We inadvertently left off Peter Nakamura's name in the first paragraph. This on-line version has been corrected. We apologize for the error.

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.

WE LIKE THE DARK AS DARK AS CAN BE

WE LIKE THE DARK AS DARK AS CAN BE: To call Kaua`i Councilmembers' disingenuous claims to be champions of open meetings "lip service" is to do a disservice to all lips.

Because all the gum-flapping and tongue-wagging in the world can't negate the anti-Sunshine provisions contained in the final version of the new council rules, set for a vote at their June 15 meeting.

It's actually a double slap in the face for the public because not only did the one reform the public has demanded for years fail to be introduced by even one councilperson for inclusion, but a new rule will assure the home viewing public will be befuddled into a new sub-level of darkeness at every meeting.

For many years councilmembers insisted that the state Sunshine Law- HRS 92- forbade the public from speaking utterances that were not on the agenda. But in fact what the law actually says is that councilmembers are the only ones who are banned from discussing items that aren't posted on an agenda six days in advance of the meeting.

That "misconception"- to be generous, since the word implies no ill-intent- was dispelled by the Office of Information Practices (OIP) which, in responding to a question from the Big Island's county clerk and a member of the public, said in 2005 that

a board may permit members of the public to speak at a meeting on matters that are not on the agenda, but is not required to do so. The board members themselves, however, may not discuss, deliberate, or decide matters that are not on the agenda.

Thus, if a board elects to hear public statements regarding matters not on the agenda and the statements relate to “board business,” i.e., matters over which the board has supervision, control, jurisdiction, or advisory power, the board members must be careful not to respond or discuss the matter.

And in fact since 2005 the Hawai`i County Council has set aside time at the beginning of meetings when members of the public can come forward and testify on any matter within the purview of the council whether it is on the agenda or not.

That means that rather than allow Kaua`i councilmembers to sweep matter brought to their attention by members of the community under the rug, they might now- once it's cable and web-cast- have to acknowledge everything from allegations of mismanagement, corruption and cronyism to questions regarding unfilled potholes or the need for a bus stops.

But although a parade of people testified over the many months that the council's "Subcommittee on Rules" has been sitting, asking the council to emulate the Big Island's practice, not one councilmember even tried to introduce a rule requiring such a session, assuring that they wouldn’t have to face an on-the-record anti-Sunshine vote.

As a matter of fact when testimony was given councilmembers actually told the public that they were still awaiting word from OIP- even though anyone could look up formal opinion 05-02 in about a minute and a half as we did today- despite the fact that people testified that the practice was ongoing in Hawai`i County.

But the council didn't stop there. They actually made it so that people who are currently treated like mushrooms (kept in the dark and fed bullsh*t) will now be made totally blind to anything the council chooses not to discuss, by creating something called a "consent calendar."

Anyone who watches meetings at home has no doubt watched in confoundment as the county clerk rattles off a bunch of numbers and the council votes to "receive" the associated list of communications without revealing what they contain.

Forget the fact that people are watching so that they can find out what the council is doing- "don't worry you pretty little head about that" say councilmembers.

And then there are "communication for approval" which, although they are read aloud and, by law are supposed to contain enough information to let the average person know what they are about, are usually so brief as to confound rather than inform.

Usually these two types of communications pass with absolutely zero discussion. But at least when, for example, the prosecutor requests she be allowed to purchase a $3000 printer or the police department wants to buy 10 new $5,000 computers the home-viewing public gets to say to themselves "hey- how come so expensive... can't they get them cheaper at Wal-Mart?"

Now the council will be able to place all of these items on the new consent calendar and approve them in one fell swoop without even reading them aloud, making sure that any potentiality embarrassing or even interesting information contained therein is kept fully up their sleeves.

And guess what? They will get away with this because in making it harder for the public to understand what they are up to, they know that people will simply give up.

If anyone cares to let the council know how they feel about getting the fungi treatment email them at counciltestimony@kauai.gov.

EVEN REPORTERS GET THE BLUES

EVEN REPORTERS GET THE BLUES: Mesmer never had TV but if he had he would have done well to use the county council's budget hearings to lull his patients into the half-sleep of passive compliance he sought.

So we'll excuse ourself for having such heavy eyelids after attempting to view the un-viewable and relying on- god help us- Leo Azumbuja's account of the council services budget requests session.

Of course he starts off his article with a total fabrication from who knows what recess of his imagination in referring to "County Clerk Peter Nakamura’s mayoral re-appointment and subsequent Kaua`i County Council confirmation in December."

The obviously click-challenged Azumbuja might have at least checked the county charter to find out that the mayor has nothing whatsoever to do with the appointment of the clerk.

But we'll have to rely on his account of a much more important matter- one so important he saved it for paragraph 18 (of 21) in noting that:

(Nakamura) also asked for a new position in Council Services for secretarial support. This new hire would provide support to increase web postings of council documents.

“As part of our goal of increasingthe presence of the council and council documents on the Web, the primary objective that we were given by the council chair was to obtain and upgrade our copier systems to multi-function systems,” said Nakamura, adding that the system would allow the office to begin such process at Nawiliwili and be able to transition directly to the network systems in the renovated Historic County Building.

Nakamura said the office should obtain the second multi-function copier within one month.

“Our hope is that it would be able to decrease the amount of steps that we currently have to do to convert paper documents into readable, searchable documents,” he said.

As we've noted over and over, the posting of the supporting documents for council agenda items that are given out routinely at the council services office has been ourand others' source of choice for uncovering corruption and malfeasance by both the administration and council and therefore the council has had to be dragged kicking and screaming into the information age although they've been successful with foot dragging for years now.

As we revealed long ago, council services already has a fancy-schmancy super-duper "copy machine" right now that scans and then actually posts documents on their website- one they've used on things like minutes, agendas and summaries.

But while ignoring that- until now with their questionable claim that they need another one- their main claim has been that somehow they need a new "secretary" whose job we suppose will be to push the second button when they make hard copies of those supporting documents for the members of the council.

Now they need a second machine for the button pusher.

Of course now that they've told the lie about needing a new position for so long they are trapped into including it in the budget.

We can just imagine Nakamura calling up Personnel Director Malcolm Fernandez and asking for the civil service personnel code number for a button pusher. We're pretty sure civil service must have a special class of people with huge index fingers at the ready.

(PNN)AGREEMENT SHOWS COUNTY PAID SUNRISE SHRIMP FARM $250G TO MITIGATE SPREAD OF "WHITE SPOT" DISEASE FROM LANDFILL

AGREEMENT SHOWS COUNTY PAID SUNRISE SHRIMP FARM $250G TO MITIGATE SPREAD OF "WHITE SPOT" DISEASE FROM LANDFILL

(PNN) -- The County of Kaua`i paid the Kekaha shrimp farm $250,000 in Oct. 2009 to settle a claim that birds were libel to spread the "white spot" virus from the county landfill to the adjacent aquaculture project, according to a settlement agreement released by the county late last week.
The disease shut down a prior attempt at shrimp farming at that location but the landfill was never identified as the source of the virus.

The agreement between farm owners Sunrise Capitol and the county contained a stipulation that the settlement remain confidential unless the information release was prompted by a request under HRS 92F, the Uniform Information Practices Act (UIPA)- a request that was filed by community watchdogs Glenn Mickens and Ken Taylor last week.

The settlement came after "Sunrise Capital, requested a contested case hearing with the Hawaii Department of Health relating to the application filed by the county for a Solid Waste Management Permit for the Kekaha Landfill" and sought "the imposition of permit conditions on the basis of risks to Sunrise’s shrimp farm" according to the agreement.

Under the settlement the county recognized "the immense economic and community benefit that the aquacultural industry provides to the Kekaha area, the Island of Kaua`i, and the State of Hawai`i as a whole" and "the need for support toward securing agricultural and aquacultural activities on Kaua'i."

It goes on to state that:

In conjunction with the termination of the contested case hearing against county, and in consideration of Sunrise's other agreements herein, the Agreement Between Sunrise Capital, hie. and County of Kaua`i County shall provide and pay to Sunrise the sum of Two Hundred Fifty Thousand Dollars And No/100 ($250,000.00) by way of reimbursement for costs and expenses incurred by Sunrise In risk mitigation measures to protect its shrimp farm from shrimp diseases.

The $250,000 is a cap to liability under the agreement meaning Sunrise cannot extract any more money from the county due to contamination from the landfill. Sunrise also had to provide the county with documentation and receipts to prove that the money was indeed spent for mitigation however no receipts were provided along with the settlement agreement released by a county council attorney, Legislative Analyst Peter Morimoto.

The agreement stipulated that:

Preliminary to the execution of this Agreement by the county and Sunrise, Sunrise has provided to the county documentation and studies related to the spread and outbreak of the white spot syndrome virus in shrimp. Sunrise has further represented to the county that Sunrise believes that the risk mitigation measures that Sunrise plans to undertake are appropriate given concerns with the expansion of the Kekaha Landfill and will help promote the security of Sunrise's shrimp aquaculture activities in Kekaha.

The settlement also calls for "an ordinance to ban commercial and nonresidential raw, uncooked shrimp from the Kekaha Landfill and landfills operated by the county concern with potential contamination."

An ordinance was passed shortly after the agreement was signed with that provision buried in an otherwise unremarkable bill dealing with the landfill and the county's Solid Waste Division under the Department of Public Works.

The agreement calls for the county to:

instruct its site controllers at the Kekaha Landfill and transfer stations to inspect and spot for incoming loads of raw, uncooked shrimp. Before disposal thereof, county site controllers will strongly urge a disposer to boil the raw, uncooked shrimp. Should a disposer decline, the site controllers will order a disposer to place the raw, uncooked shrimp in sealed containers and double bag them before it is accepted into the landfill. This process is similar to what county site controllers require for the disposal of asbestos, dead animals, and offal.

The county has however never publicized the disposal procedures or announced any "ban" on raw shrimp from the landfill.

The confidentiality section states that:

Unless disclosure is required by HRS Chapter 92F or other applicable law, the Parties agree and hereby acknowledge that the alleged facts and circumstances giving rise to any and all Claims being released herein and the fact that the Parties have agreed to forever resolve and compromise a dispute between them, and the terms and conditions of this Agreement shall, except as otherwise provided in this Paragraph 12, remain strictly confidential.

As to other information pursuant to the Mickens/Taylor request, "Council Services will be providing you with a written response within ten business days as required by 92F," according to an email from Morimoto accompanying the settlement.

The release of the document came last month after Taylor noticed a small blurb in the paperwork for a money bill, unrelated for the most part to the settlement that referred to the $250,000 "extracted" from the county using the word settlement, as reported (here here and here) by PNN over the past two weeks.

Taylor had to go to Lihu`e to retrieve the paperwork because, despite promises to the contrary by the county council, they still do not post the paperwork for agenda items on-line and rather require an in-person visit to obtain a paper copy.

YOU CAN'T GET THERE FROM HERE

YOU CAN'T GET THERE FROM HERE: If drivers on county roads have had an easy time of it for the past few years with seemingly no delays there's a reason for it.

Because, as revealed at a couple of recent council meetings, the county has failed to do any of it's regular road repaving for at least the past three financial three years, possibly longer.

That's what new County Engineer Larry Dill reluctantly admitted to the council last Wednesday after councilmembers finally examined the budget and found that the monies they appropriated over the last two-plus budget years went unspent, including a "extra" almost two million dollars so that we could "catch up" on the routine maintenance that extends the life of roads.

It all started at the February 23 council meeting with an agenda item asking Department of Public Works (DPW) to discuss road resurfacing.

Our regular readers might remember that, as we wrote in August of 2009, something has been fishy with the contracts for road resurfacing for many years. But at least it was getting done.

According to Council Chair Jay Furfaro there is still $7.9 million sitting there that was supposed to be used for resurfacing to keep county owned roads- as opposed to the state roads- from deteriorating to the point where it would cost many times that amount to fix them.

But the preventive maintenance hasn't been performed in years although no one will quite admit to why.

Dill claims he's too "new" to be able to say what happened after he replaced former County Engineer Donald Fujimoto earlier this year. And long time DPW engineer Ed Renaud, who is now in charge of road resurfacing, was his ever-evasive self, repeating that he "can't" or "won't" answer the council's questions regarding why.

All the council could get out of Dill and Renaud is that a new era is at hand- again- and that all problems will be solved through the purchase of an expensive piece of software called "Micropaver" which will track what roads have been resurfaced and when and what condition all the county's 300 some odd miles of roads are in.

Always quite the character, Renaud claimed he was also "new" although he was apparently able to answer many questions in excruciating detail about how county crews have been doing the actual road resurfacing over the years in conjunction with the contract awardees.

Of course the council wasn't interested in going back and finding out why we were being short changed on the road resurfacing contracts for many years as council watchdog Glenn Mickens has pointed out for the last 15-odd years.

As we wrote in 2009 in describing his research:

To try to be brief, a few years back- make that more than a decade ago- council “nitpicker” Glen Mickens began to notice that, as he took his daily walks pieces of broken off pavement sat by the side of the road which upon measurement were apparently thinner than the standard and required 1 ½ inches thick.

He made it his quest- one that, despite detailed presentation to the council no one so far seems to want to hear- to inform the council about how not only is the county paying for 1 ½ inch paving and not getting it but that, for some reason no one can adequately explain, on Kaua`i the standard of 90 sq. ft. of asphalt per ton is used while the national standard is 120 sq. ft. per ton to get that 1 ½”.

That means that, if anything, we should be getting roads that are 33% thicker than 1 ½” or 2” thick.

The question is, where is the extra asphalt going- a question the Public Works Department has been unable to answer.

You can also read Mickens' more detailed account contained in the same post.

Supposedly a contract for a good portion of the money available- $5.4 million- has gone out to bid and will be awarded by the summer according to Dill and Renaud. But as far as accountability for the past we'll have to wait and see what County Auditor Ernie Pasion comes up with in his performance audit of the road resurfacing program that's due later this year.

CROSS YOUR HEART AND HOPE TO LIE

CROSS YOUR HEART AND HOPE TO LIE: To no one's surprise the yes-it-happened, no-it-didn't, I-ain't-sayin', alleged $250,000 payoff to the Kekaha shrimp farm by the Solid Waste Division of the Kaua`i Department of Public Works Department will most likely fade into the perpetual darkness of the labyrinth after Council Chair Jay Furfaro refused to adhere to his own schedule for releasing information on the matter.

For those who haven't been following (here and here) the now-you-see-it. now-you-don't payment, it all started with a blurb in some paperwork for an appropriation of $417,000 in Bill #2397 that said:

The Shrimp Farm extracted approximately $250,000 to provide assurance that the white spot syndrome would be mitigated flying trash within there (sic) property and laying (sic) in their ponds that could potentially lead to the spread of the disease. The cost of mitigation beyond the settlement is questionable as well as the negative publicity that could have a direct impact on our future landfill siting efforts (emphases added).

That elicited a promise by Furfaro that he would look into it and let council watchers Ken Taylor and Glenn Mickens know what the heck that meant and whether, in fact, the county paid the shrimp farm that's adjacent to the Kekaha landfill a quarter million dollars.

He first promised to reveal the info when the bill came back on the agenda "in seven days".

But in seven days he distributed copies of three past agenda items for executive sessions that didn't mention anything about any claim or settlement. Then he promised an answer in 10 days, conveniently three days after the bill was scheduled to pass final reading and disappear forever from public purview- at least at council meetings.

And sure enough, seven days after the "10 days" promise Wednesday, when badgered by Taylor and Mickens, Furfaro said of the three days left for him to fulfill his promise to reveal what really happened, "If I don't fulfill it in three days, I don't fulfill it in three days" telling Taylor and Mickens to see staff attorney Peter Morimoto who would help him fill out a public document request.

And of course the three days have passed and guess what- shockingly (for the impossibly naive) no info has been forthcoming from Furfaro.

Mickens says he still hasn't filed anything because he hasn't quite figured out what he is asking for- executive session minutes? settlement documents? administration communications? Not filing is apparently the sign of someone who has experience with the runaround given when the council and their clerk are committed to keeping information under wraps.

The only new thing revealed last Wednesday about those executive sessions is that the stated purpose on those agenda's back in 2009- on Sept. 23rd , Oct. 7th and Oct. 14th- was "relating to the expansion of the landfill and related matters."

The Office of Information Practices (OIP) which administrates the sunshine law says that agenda items must be specific in listing the purposes for matters discussed, which quite obviously would make these agenda items insufficient were a $250,000 claim settlement been discussed.

The one clue came from Councilperson Tim Bynum who said that he was "concerned about the secrecy" at the time and that "I put it in writing and I'm trying to get permission to share (it)."

Mickens says he's perplexed and wary of council staff which he says is apparently very eager for him to file for the information. He says he still intends to file for the documents but is trying to make sure that he covers all the bases so that if there is information or are documents that are allowed to be released his request will cover them.

In the past this kind of "put it in writing" demand for requests for documents has led to stonewalling and eventual denials with lengthy appeals to OIP which have on occasion resulted in an OIP demand to release the documents and the county's refusal to do so.

Meet the new minotaur- same as the old minotaur.

BLOVIATIN' IN THE WIND

BLOWVIATIN' IN THE WIND: Was anyone really expecting that Council Chair Jay Furfaro would keep his promise to have information "in seven days" on what appeared to be a "settlement" which "extracted $250,000" from the county related to windbourne trash from the Kekaha landfill causing white spot disease at the adjacent shrimp farm?

We didn't think so but there's always one....

As we reported a week ago, as part of the paperwork on Bill #2397 appropriating $417,000 for the landfill, the Department of Public Works' Solid Waste Division cryptically revealed that:

The Shrimp Farm extracted approximately $250,000 to provide assurance that the white spot syndrome would be mitigated flying trash within there (sic) property and laying (sic) in their ponds that could potentially lead to the spread of the disease. The cost of mitigation beyond the settlement is questionable as well as the negative publicity that could have a direct impact on our future landfill siting efforts.(emphases added).

Despite Furfaro's promise seven days later, when the bill came up on last week's agenda, Furfaro once more balked at revealing too much about it saying he wasn't even sure whether there was, in fact, any money paid.

What he did reveal was that the matter was the subject of three different closed door, executive sessions (ES) of the council back in 2009- on Sept. 23rd , Oct. 7th and Oct. 14th.

But although the county's on-line archive of agendas does not go back that far, the actual notices from those agenda's- which Furfrao handed out at the meeting- don't mention any "claims" or "lawsuits" or "settlements," only a discussion of issues with the landfill.

Now Furfrao promises to have "more information" in ten more days which, to no one's surprise, would put any revelation three days after next Wednesday's expected second and final reading of Bill #2397- after which the matter will not appear on any future agendas.

Although Furfrao cited the Office of Information Practices (OIP) May 2003 opinion letter No. 03-07 which says that certain decision making can be made in ES, it doesn't include lawsuit settlements and certainly doesn't excuse misleading agendas that fail to mention the discussion of possible claims and/or lawsuits- which appears to be the case here.

The strangest part of this is that Furfaro apparently needs 17 days to find out what council watchdog Glenn Mickens found out in about five minutes with a call to Finance Director Wally Rezentes' office last Friday afternoon.

Mickens simply asked Rezentes if there was a settlement with the shrimp farm and when the office called back just before closing the answer was "no"- there is no record of any payment or settlement.

Mickens and fellow "nitpicker," former council candidate Ken Taylor, who brought the matter to public attention, promise to bring it up again this Wednesday and try to get some answers before it disappears from the council agenda forever.

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We are sorry to have to announce that we are going on a curtailed posting schedule for the immediate future. In addition to the onslaught of college basketball tournaments we're also dealing with some other, more personal challenges that have us distracted enough that we feel like our work would suffer if we tried to keep the same schedule. We will be posting- just not five days a week but more intermittently. Please check back often- or use the "RSS feed" or email us at gotwindmills(at)gmail(dot)com to sign up for emailed postings.

We do hope to return to a more regular posting schedule sometime in the future. Thank you all for your incredible support over the last three years.

OH YOU MEAN THAT QUARTER MILLION DOLLARS

OH YOU MEAN THAT QUARTER MILLION DOLLARS: Even though on-line posting of the paperwork associated with Kaua`i County Council agenda items has been promised and re-promised for years it is still impossible to get access to it without a drive to Lihu`e.

That may be why a week or so back our friend Ken Taylor came running up to our door with his hair on fire, waiving a stack of papers showing us a passage, way at the end of a memo attached to a money bill- #2397- to request “funding to cover shortages in operating budget accounts for solid waste disposal and collection.”

Cryptically as all get out it reads:

The Shrimp Farm extracted approximately $250,000 to provide assurance that the white spot syndrome would be mitigated flying trash within there (sic) property and laying (sic) in their ponds that could potentially lead to the spread of the disease. The cost of mitigation beyond the settlement is questionable as well as the negative publicity that could have a direct impact on our future landfill siting efforts.(emphases added)

What it sounds like is that the county, at some time or another, paid the shrimp farm that borders the landfill a quarter of a million dollars for, well, it’s not quite clear what for.

We generally try to keep track of quarter million dollar settlements by the county, as does Ken and neither of us ever remember seeing it taken up at a televised meeting or even on a county council agenda.

So when the bill came up for public hearing last week Taylor basically read the above sentence and said neither he nor anyone remembers seeing it on the agenda much less a vote for payment of the money.

"Even a $900 park bench donation has to be approved by the council” Taylor said, also raising questions about why we would have to pay the shrimp farm anything since it was they who built their farm next to the existing dump, not the other way around.

Council Chair Jay Furfaro responded that “it appeared as a claim” against the county “on a previous agenda” and that he did remember an executive session (ES) on the matter.

When Taylor asked when the ES was and started demanding more answers, Furfaro said that Taylor’s “questions will be noted and I will raise those concerns with the legal department” regarding why the settlement- which apparent was made- was never voted upon in open session.

Taylor refused to settle for such a nebulous promise- one Furfaro has made many times on many matters without any follow-up repeatedly asking “when” he might get an answer.

Furfaro, saying he doesn’t even know if the case was indeed settled and that it might still “be open,” promised multiple times that “I’ll get the date (of the ES) and agenda item within a week.”

The matter appears on the Public Works Committee agenda this Wednesday which will be exactly one week from the Furfaro’s promise.

LOOK OUT KID, THEY KEEP IT ALL HID

LOOK OUT KID, THEY KEEP IT ALL HID: During the decade or so we regularly attended council meetings there were generally three sets of attendees.

First were governmental apparatchiks who slept in the back, if possible under the air conditioner, until called on by the council.

Then there were the great unwashed- the clueless who wandered in because they heard something was up or they took a wrong turn at the elections office.

Finally there were the regulars- aka nitpickers- and the reporters who generally sat around acting like the unruly kids in the back or the classroom kibitzing, whispering, giggling, passing notes, chewing gum and generally making a mockery of the whole thing.

But they always had something that the others two groups lacked- a copy of the agenda.

The administration people didn’t really need one. They know what they’d been summoned for.

But for the great uninitiated novices sometime we’d grab a stack and walk amongst them calling “Program- getcha program heah. Can’t tell your bill without a program- program heah.”

The truth is that even with a “program” many were often left shaking their heads, unable to follow the meeting and find their issue before it whisked by, by which time it was too late and they were left asking “wha-wha-wha just happened?”

For those who try to follow the proceedings on TV it’s even worse. As “Esatiene” wrote today in the comment section of a totally unrelated article in the local newspaper:

Watching the HOIKE Channel a few days ago i was saddened to see our elected officals skim over financial "bills" and passing them as fast as possible w/ no mention how the money will be earmaked. Sewage and Wailua (county workers' private) Golf Course, was a combined $300,000 of taxpayors money. The county council looked like a table of thieves in a den distributing stolen loot (all sic).

And it’s no wonder. Rather than actually having to read many measures the council rules state:

RULE NO. 3-OFFICERS AND THEIR DUTIES

(c) County Clerk. It shall be the duty of the County Clerk or an authorized representative, in addition to those duties prescribed by law:

(1) To read bills, resolutions, and other matters to the Council, if so required (emphasis added);

And for bills and resolutions the rules say

RULE NO. 10-GENERAL PROVISIONS REGARDING BILLS, RESOLUTIONS, MOTIONS AND AMENDMENTS

(h) Full oral readings of bills and resolutions are hereby waived and may be by title and/or number only unless a full reading is requested by any of the members present (empasis added).

As Esatiene noted many bills go through their four required appearances- going through the first reading, the public hearing, the committee meeting and the final reading- and are passed with nary a word other than the perfunctory reading by the clerk of the minimalist information already on the agenda.

Many times those notices seem to be intentionally sketchy so as not to peak anyone’s interest.

And it’s worse for “communications” especially those that don’t require approval. They aren’t even read but rather listed, by communication number, and “received” for the record, never to be heard- or heard from- again.

Not only aren’t they discussed, anyone watching the proceedings doesn’t even know they exist.

And while some are fairly innocuous, many contain vital information that is being communicated to the council- and presumably the public- including all sorts of administration reports, audits and other information.

It was only through people questioning the “reports” from the personnel department- ones listed for receipt by number only with a bunch of other communications- that the practice of downgrading budgeted positions so as to allow administration-favored applicants to get a skilled job (and to be taught “on the job”) came to light a couple of years ago... although it has seemingly died for lack of interest by the council since then.

It’s all too convenient for councilmembers who are seeking political cover to controversial subjects.

Even when the subject isn’t contentious it gives the impression that something is being hidden. Councilmembers who wonder why the public doesn’t trust them and is always calling them “secretive” and even “corrupt” need look no further that this practice to figure out at least one thing they can do about it.

As for bills and resolutions most of the times the actual “meat” of the bill or reason for the reso are short and sweet. But most of the time, unless a councilmember or a member of the public says something they fly on by under the radar unexplained and many times undebated.

So why do we mention it?

Because when the new council sub-committee recently designated to look at the council rules meets, one of the only things suggested so far is to hide things further.

Not only is there no plan to change the rules to require that they at least give a public explanation as to what each measure is about, they have proposed that those communication designated for “receipt” and even some routine “approvals” be moved to what is being called a “consense calendar” where, in one fell swoop, without even acknowledgment of each communication number as is now the practice, they will be dispatched at the beginning of the meeting.

For those attending the meetings now it’s hard enough if they want to speak on one of these “matters for receipt.”

They must listen carefully to the clerk mumble the number and jump up and frantically wave their hand so the chair sees them and then, to the dirty looks from councilmembers angry that they must endure three extra minutes at the meeting, sheepishly apologize for interrupting the “zoom agenda” with their testimony.

We’ll be looking at some other rules over the next few weeks as the sub-committee meetings get underway. But we can only hope that the review of the rules isn’t used as an excuse to pare down the public’s participation in the process- a matter that seems to get plenty of lip service but is thrown under the bus when the rubber meets the road.


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UPDATE/CORRECTION: In our January 6 post regarding President Obama’s Kailua vacation rental and a story in the on-line newspaper “Civil Beat” about how the agreement with the owner apparently violated the City and County of Honolulu’s ban on rentals for less than 30 days, we suggested that it might also violate the state ban on vacation rentals in the state conservation district.

While, as this map (pdf) of Kaua`i state districting shows, much of the coastal area on Kaua`i is in the state “conservation” district, that is not so in Honolulu where, as this map (pdf) shows, much of the coast is districted “urban.

This screen shot of a google map along side the relevant section of the state district boundary map- with point “A” on the google map indicating the 57-A Kailuana Place address where the president stayed- shows that the house in question is in the urban, not the conservation district.

Thanks to Civil Beat’s Mike Levine for setting us straight and providing the screen shot and map links.

We regret any confusion resulting from our incorrect presumption.

WHEN I AWOKE DEAR, I WAS MISTAKEN

WHEN I AWOKE DEAR, I WAS MISTAKEN: And while we’re on the subject of leadership and the way our county council views the Sunshine law, we mentioned in passing recently that a good indication of how seriously they take HRS 92 will be whether they conduct their organizational meeting(s) publicly.

But the fact of the matter is that, according to the Office of Information Practices (OIP) a “a loophole in the Sunshine Law allows such an assemblage, which would be prohibited after councilmembers officially take office”.

And as a matter of fact, according to an article in the Hawai`i Tribune Herald:

In an organizational meeting held Sunday at Hamakua Councilman Dominic Yagong's Honokaa home, Yagong was elected chairman and Kohala Councilman Pete Hoffmann vice chairman, Yagong confirmed. In addition to Yagong and Hoffmann, the meeting included South Kona Councilwoman Brenda Ford and councilors-elect Angel Pilago of North Kona, Fred Blas of Pahoa and Brittany Smart of Ka'u.

Not invited to the meeting were current Chairman J Yoshimoto and Councilmen Dennis "Fresh" Onishi and Donald Ikeda, all of Hilo.

The matter goes back to an OIP opinion from 2002 that says that although the loophole exists:

the OIP strongly recommends that a quorum of members-elect of a board not assemble prior to officially taking office to discuss selection of board officers, in keeping with the spirit of the Sunshine Law.

That’s all because of the lag time between election and swearing in during which the council elect isn’t technically subject to the sunshine law.

The OIP opinion quotes the law as saying

"[d]iscussions between two or more members of a board, but less than the number of members which would constitute a quorum for the board, concerning the selection of the board's officers may be conducted in private without limitation or subsequent reporting."

Thus, less than a quorum of a board may meet privately and without limitation or subsequent reporting to discuss selection of board officers, regardless of whether or not board members have officially taken office. Whether board members have officially taken office is irrelevant, so long as the meeting is restricted to less than the number of members that would constitute a quorum.

It is not illegal for a quorum of newly elected members of a council to meet to discuss selection of officers prior to commencement of their terms of office.

But the situation applies to members of the council-elect who are still technically members of the “existing” council at the time of the meeting.

That’s why the Big Island’s meeting was able to stay within the “spirit” of the law by inviting less than a quorum of current members (three of nine) and add three “new” members-elect.

As the Tribune Herald explained:

Hawaii's Sunshine Law allows secret meetings to select officers, but participation is limited to less than a quorum -- in this case, four members or fewer. The law doesn't apply to incoming councilors whose terms haven't started.

That means that, with three “new” members, Nadine Nakamura, Mel Rapozo and JoAnn Yukimura, any two members- who according to the sunshine law can meet to deliberate toward a decision as long as no actual commitment to vote is offered or made- can organize with the three newbies, leaving the other two returning members in the dust.

On Kaua`i, staying within the spirit of the law has been spotty with organizational meetings announced- if not officially agendaed- and held before the public.

But all those meetings were under the presumed returning chairmanship of the departing Kaipo Asing- despite a challenge in ’08 by council Vice Chair Jay Furfaro- so anything is possible, especially since there is no single figure authoritative enough to really “call” for a meeting.

We’ll see how the council acts when they are asked by the OIP to stay within the “spirit of the sunshine law” when they are not required to.

But with past not necessarily being prologue this year if you want to know what deals are being cut to determine the council chair and committee chairs and assignments- as well as what the new committees may be- you just might want to stake out the Barbeque Inn.

THE KING IS DEAD; LONG LIVE KING

THE KING IS DEAD; LONG LIVE KING: Some may think the room at the top of the Kauai County Council signifies the death of the Minotaur. But while the personage of the beast may change there’s always a defender of the darkness all too ready, willing and able to perpetuate the legacy.

So with Joan Conrow’s report that Derek Kawakami “made it clear he doesn’t want to be Chair, even though he was the top vote-getter, saying that as the youngest child in a big family, he’s learned to wait his turn” all eyes turn to the only elder left- current Vice Chair Jay Furfaro who’s made no secret of his desire to move on up to the head of the table.

But if anyone thinks that means some kind of new era of sunshine-inspired transparency and access to documents they haven’t been paying attention to Furfaro’s quest to outdo former Chair Kaipo Asing when it comes to sweeping HRS 92 under the rug.

While Asing apparently understood the open meetings provisions of the state sunshine law and chose to flout them, just as apparently Furfaro doesn’t even get the concept that council business is supposed to happen on the floor, in open session, not behind the scenes by trying to get “consensus” before a bill, resolution or any other matter for discussion is introduced.

Unfortunately many in the public don’t “get” this either but then they aren’t public officials ready to take the reins of the county’s legislative branch.

In Furfaro’s case he seems genuinely flummoxed when confronted by this notion as over and over, in open session, he even boasts of how he’s approached other councilmembers for their support for measures that have never been on a council agenda- something in opposition to the basics of the sunshine law.

The most blatant example of this is the still-open Office of Information Practices (OIP) case (S INVES-P 09-5) filed in January 2009 by PNN based on Furfaro’s written and documented circulation of the original version of the infamous “vacation rentals on ag land” bill to all other council members which would have, in and of itself, been a violation of the sunshine law had it not also included an actual solicitation for support, which made it doubly illegal.

We had been looking for a "smoking gun” indication of what’s been obvious for many years, especially in Furfaro’s case- that matters under council consideration have already been discussed among more than two councilmembers before they hit the floor.

The OIP has also said that you can’t get around the prohibition by using “serial communications” or by using a third party to conduct “deliberations toward a decision” and/or especially solicit or commit to a vote.

But rather than learning his lesson, Furfaro said publicly this summer that he has spent $1700 of his own money fighting the case, indicating that he still doesn’t “get” what he did that was wrong.

You can read the full story and supporting documents (read them in reverse order) for yourself but the case is only the tip of the iceberg when it comes to Furfaro’s dedication to conducting business in back rooms rather than before the public.

He was instrumental in delaying the posting of documents on-line last summer when the topic was again placed on the agenda after a year delay despite the fact that a contract had been signed with a company to organize and post on-line things like the paperwork surrounding agenda items (rather than forcing people to travel to Lihu`e to get hard copies of them) and links from documents to the actual video of the council meetings at which they were discussed.

Furfaro used some cockamamie excuse that it might require an increase of staff time while furloughs were in effect, to delay discussion until December. The fact is that council staff has been dealing with which documents are public information and which are confidential and part of “executive session” documents for many years- and the fact that the super fancy-schmancy copier council staff uses can actually post documents on-line with the push of a button, according to sources in council services.

Whether Furfaro genuinely can’t understand the concept keeping all public policy communications between councilmembers in open, duly agendaed council meetings or whether he just doesn’t want to do so- most likely due to the kind of paternalism that allowed his predecessor to rationalize that he was doing what was “best for the community”- doesn’t matter, although as we said we suspect the former.

But either way putting someone thus inclined in the position of chair- where the line can become blurred due to the chair's need to actually see agenda items in order to place them on the agenda in the first place, thus requiring an extra scrupulous conscientiousness and diligence in not sharing that advance knowledge- is tantamount to continuing the current regime of secrecy and darkness.

And that’s a lot of bull-man.

Meet the new Minotaur; same as the old Minotaur.

BANG V WHIMPER:

BANG V WHIMPER: It’s not without a wave of ambivalence that we greet the news that we won’t have Kaipo Asing to kick around anymore.

We relished the possibility that he would seek another term and actually lose at the polls after announcing earlier that the last term would be his final one, if for no other reason than to send a message that the old days of secrecy and paternalism were over.

But we can’t help but feel sad it came to that. Not only was Kaipo at one time a force for the people- and sometimes the only one- on a council full of self prompting, pro-development corporate shills but was a good friend during the years we spent attending every council meeting.

A few years ago at the first court hearing regarding the infamous ES-177 Kaipo told us privately- and later denied doing so- that he didn’t really care what the Sunshine Law said, he had always done what he thought was best for the people of Kaua`i and would continue to do so no matter no matter what it took or what people said and did.

Though we- and apparently most of the people of Kaua`i- eventually rejected this method of governance he was never the type of corporate shill that has dominated the council over the last few decades.

Looking up and down the list of those who comprise the new council that’s all we see- a new generation that’s all too willing to kow-tow to the mucky-mucks and embrace the old boys machine when it benefits them politically.

Even a political neophyte knows Kaipo’s departure leaves a huge leadership vacuum and the fight for the chair will show a lot about the new and returning councilmembers.

A three-way battle is shaping up between Derek Kawakami, Jay Furfaro and JoAnn Yukimura but the determining factor may not be who cuts the best deals for committee chairs as it usually is when a new chair comes in but whether or not the process plays out in public or behind closed doors.

Watch to see if the “open meeting” plays out with genuine intrigue and public horse-trading or whether it appears scripted and pre-determined to give the indication of whether this council will really move in a direction that rejects the back room dealings of Asing’s council or whether the change at the top just means more room for other assorted hacks and self absorbed buffoons.

Asing’s departure could serve as a new opportunity for progressive change but with the current crop of possibilities it will most assuredly serve an opportunity for another power junkie to climb to the top of the dung heap.

We’ve been watching this movie for many years and aren’t expecting much from this group. We’ve been surprised before but no one’s holding their breath.

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We’ll be taking tomorrow off.

WHERE’S DOROTHY LAMOURE WHEN YOU NEED HER

WHERE’S DOROTHY LAMOURE WHEN YOU NEED HER: One thing you’ve got to give the guardians at the gates of county council information: they don’t need Bing and Bob to guide us down the Road to Ignorance.

When it comes to using underhanded and unscrupulous methodologies that are rarely deciphered in time to do anything about it, they take a back seat to none.

But the clues are there for any forensic document reader if you know what to look for and are ready to do a little work to find out what the heck is going on.

So last Thursday when we received and examined the agenda for today’s council meeting this stood out as an executive session (ES) item begging for explanation and exposition.

The meat of it reads:

The Office of the County Attorney requests an executive session with the Council to discuss legal issues pertaining to the implementation of Ordinance 885.

Of course no one knows what ordinance 885 is.

When a bill becomes an ordinance it is given a number. But since the Kaua`i County Code essentially remains a secret document- with no on-line version and the only way to see it being to request it by number even though finding out the number is nearly impossible- with the topic, for the uninitiated, remaining meaningless.

They also cleverly post the agenda late on Thursdays, often after official office hours, so with “furlough Fridays” the earliest one can call and find out anything is Mondays, a mere 48 hours before the meeting. That makes notifying others- so as to gather a crowd to testify- a Herculean effort.

But apparently one of those that worked tirelessly to see the bill that became Ordinance 885 pass also actually reads each week’s agenda and wondered, with us, what 885 was all about.

We’ll let Pat Gegan’s letter to the mayor and the council (edited for spelling) speak for itself since we could not say it better.

Subject: Kauai's Bag Bill Under Attack???? HELP!

Date: Tue, 28 Sep 2010 17:48:52 -0400

Dear Zerowasters, Apollo Kauai Members, County Council Members and Honorable Mayor:

After pulling up the Council agenda last night and a quick call to Council Services this AM for clarification (since Kauai County doesn't want to make it too easy for citizens to get info by putting OUR information on the internet....) I began to get worried.........

I am confused and concerned by tomorrow's Council Agenda, specifically the Executive Session item #2. The item in question is Ordinance #885 which is the Plastic Bag Ban that is scheduled to be in place starting this January when Maui is also doing the same.

Why is an executive session needed to discuss the Plastic Bag Ban??? As I recall the issue was deferred multiple times as the county attorney and the council were trying to find the "correct" language for the definition of what constitutes a "plastic bag". Now - Only 3 months before implementation - the attorney and council want to meet behind closed doors to discuss this issue. What could be the "...powers, duties, privileges, immunities and/or liabilities of the council as they relate to this agenda item."? It has been over a year since the bill passed and the ordinance was signed.

What could the issue be??? The ordinance allows no single use plastic bags with petroleum products to be given away in retail establishments . This was meeting the needs of what we wanted, 1) Less rubbish for the landfill that lasts for a long time w/o breaking down, 2) less opala flying around our garden Island and harming our wildlife, 3) No new feed for the floating Pacific plastic patch, and 4) less use of petroleum based products. Section 1 of the Ordinance below states it better than I can:

"The Council of the County of Kauai finds and declares that to preserve health, safety, welfare and the scenic beauty of Kauai, the distribution of plastic bags should be regulated and prohibited."

Seems very clear to me - I would like to believe that when the council and the mayor propose and sign a bill into an ordinance that the legislation has some meaning. Why hasn't Kauai county government taken an active role in the implementation of this legislation like Maui appears to (look at the Maui county website dealing with implementation of their bag ban - http://www.co.maui.hi.us/index.aspx?NID=1688 )?

Going forward:

-I will be at the council meeting tomorrow to address my concerns,

-I humbly would ask for others to let your council members know how you feel about the bag ban as it was signed - if you have time (see email addresses above),

-I personally vow to vote against any council member who tries to change the Ordinance or the implementation date as it stands (and I will actively try to influence others similarly) .

I would appreciate feedback. I am concerned especially since it is in executive session and can only hope my concerns are unfounded.

Humbly,
Pat Gegen

According to a source who spoke to a councilperson, County Attorney Al Castillo has now decided that his own language- which he insisted on during the council sessions on the bill- regarding the "no petroleum content" requirement is now somehow problematic.

Of course it’s too late for you to go down there and insist on a public airing of the issues involved or demand they leave the bill alone- by the time we post this the meeting will be over.

Why it’s almost as if they planned it that way.

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For those interested in more information on Waldorf “Wally” Wilson whereabouts and related issues, please read Joan Conrow’s interview today with KPD Chief Darryl Perry.

(PNN) COUNTY SECRETLY SETTLES HIRAKAWA SEX DISCRIMINATION SUIT FOR $450,000

COUNTY SECRETLY SETTLES HIRAKAWA SEX DISCRIMINATION SUIT FOR $450,000

(PNN) -- PNN has learned that the County of Kaua`i has settled the sexual harassment lawsuit brought by Kristan C. Hirakawa and has paid her $450,000.

According to a reliable source who asked not to be identified, the check has been cut yet there has been no announcement and there is no record of the settlement which was apparently approved by the county council in an executive session at their July 27 meeting.

Hirakawa sued the county for a second time after winning her first suit against the Kaua`i Police Department and being reassigned to the liquor department where she was once again a victim of gender discrimination resulting in the current settlement, as PNN has exclusively reported.

Although settlements are public records according to the Office of Information Practices (OIP) the “recap memo” for the July 27 council meeting shows no settlement vote was taken in open session.

The agenda item, Executive Session (ES) 458, says it was held “for the purposes of deliberating, deciding, and authorizing a proposed settlement in the case of Kristan C. Hirakawa v. County of Kaua`i”.

According to OIP Opinion 89-10 regarding settlement agreements “(o)nce the litigation is concluded...all the settlement agreements must be publicly available.”

However OIP Opinion 03-07 regarding voting in executive meetings says that

Votes taken in executive meetings need not be disclosed to the public because the Sunshine Law allows minutes of executive meetings to be withheld so long as their publication would defeat the lawful purpose of the executive meeting, but no longer. Once disclosure of votes taken in executive meetings does not defeat the lawful purpose of holding an executive meeting, the votes should be disclosed.

A request for clarification was sent yesterday to OIP asking whether a lawsuit settlement vote must be taken in open session with the terms disclosed and, if not, how the public is supposed to know about the settlement. No answer was received by press time.

Also on the July 27 agenda was ES 256 which was held “for the purposes of deliberating, deciding, and authorizing a proposed settlement in the case of Jane Doe v. County of Kaua`i, EEOC (Equal Employment Opportunity Commission) Charge No. 37-B-2009-00620 and FEPA NO. K-15516”.

There is no record of any settlement of this case although as PNN reported there are multiple EEOC complaints against the county including one by former deputy county attorney Margaret Hanson Sueoka was mistakenly revealed by the county in June of 2009.

EEOC complaints are confidential according to federal law which supersedes the state sunshine law.

Although a source close to council services has told PNN that the Sueoka case has been settled there is no record of the settlement.

According to law, the EEOC must give the go-ahead in order for an employment discrimination suit to be brought in circuit court.

Also outstanding is the case of Kathleen Ah Quin against the county transportation agency which the council apparently voted to fight with an appropriation of money for outside council on June 9.

Follow the links above for details of these lawsuits and complaints.